2025 Y L R 169
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
MUHAMMAD RAFIQUE ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 230 of 2023, decided on 26th June, 2024.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 460, 147, 148 & 149 ---Qatl -i-amd, person jointly concerned in lurking
house -trespass or house -breaking by night, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Mere presence of place of occurrence
without any weapon ---Accused were charged for committing murder of the nephew of
complainant by firing--- Ocular account had been furnished by three eye -witnesses ---From
the statements of eye -witnesses, it revealed that the convict/accused, "G", made firing upon
the deceased, who sustained bullet injuries near his right eye on the spot however the role
attributed to the acquitted co- accused and the present accused by the eye- witnesses was
that they were present empty handed at the place of occurrence and they did not cause
injuries to the deceased ---Circumstances established that the prosecution had failed to
prove the charge against the accused beyond shadow of doubt ---Appeal against conviction
was accordingly allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 460, 147, 148 & 149 ---Qatl -i-amd, person jointly concerned in lurking
house -trespass or house -breaking by night, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Co -accused acquitted on same set of
evidence--- Effect ---Accused were charged for committing murder of the nephew of
complainant by firing ---Record showed that two accused person were acquitted from the
charge by extending the benefit of doubt ---Record showed that earlier the roles attributed
to the acquitted two co -accused and the present accused were the same as they were present
at the place of occurrence empty -handed and did not cause any injury to the deceased ---
Evidence produced by the prosecution against acquitted two co -accused was disbelieved by
the High Court ---If a set of evidence is disbelieved to the extent of some accused, the same
set of evidence can not be believed to the extent of the remaining accused facing the same
trial---Circumstances established that the prosecution had failed to prove the charge against
the accused beyond shadow of doubt ---Appeal against conviction was accordingly allowed.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 460, 147, 148 & 149 ---Qatl -i-amd, person jointly concerned in lurking
house -trespass or house -breaking by night, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence--- Motive, not proved ---Accused were
charged for committing murder of the nephew of complainant by firing--- Motive of the
occurrence was stated to be the visit of accused at the house of his father -in-law before
marriage ---After perusal of the entire record of the case as well as evidence of the parties
produced before the Trial Court, it transpired that the motive of the case alleged by the complainant in his report was the deceased's visit to the father -in law's house, but he did
not state a single word in his report that the present accused called the relatives and accused persons there and made an unlawful assembly and started a quarrel with the deceased ---Two eye -witnesses stated in their statement before the Trial Court that when the
accused, "G" made firing upon the deceased, all the accused said that they prohibited the deceased from visiting his father -in-law's house before marriage ---One of the eye -witnesses
stated in her statement that due to their tradition, after the engagement, the groom used to visit the house of his father -in-law, and whenever the deceased visited her house, the
present accused, who had a shop adjacent to her house, used to call relatives and accused
persons including accused "G" and whenever deceased would leave the house the accused persons used to quarrel with him ---According to the said witness, she was a parda nasheen
lady, and she did not meet with strangers, therefore, how could it be possible that she found the present accused at the time of calling the other accused persons about the visiting of the
deceased at her house--- Even otherwise, said witness did not state a single word that she
herself did see the present accused at the time of calling the other accused persons about
deceased's visit to his father -in-law's house ---Thus, motive of the occurrence against the
present accused had not been proved ---Circumstances established that the prosecution had
failed to prove the charge against the accused beyond shadow of doubt ---Appeal against
conviction was accordingly allowed.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 460, 147, 148 & 149--- Criminal Procedure Code (V of 1898), S. 342---Qatl -
i-amd, person jointly concerned in lurking house -trespass or house -breaking by night,
rioting, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence --
-Statement of the accused under S.342, Cr.P.C, not been recorded in accordance with its
spirit ---Accused were charged for committing murder of the nephew of complainant by
firing ---Record showed that relevant and very important incriminating pieces of evidence
had not been put to the accused for explanation/reply ---Perusal of the statement of the
accused recorded under S.342, Cr.P.C. further revealed that all the incriminating pieces of evidence brought on record were not put to him when his statement was recorded under S.342, Cr.P.C., enabling him to explain and reply to the same, whereas the Trial Court used such piece of evidence for convicting the accused ---If any piece of evidence was not put to
the accused in his statement recorded under S.342, Cr.P.C, the same could not be used for his conviction--- Circumstances established that the prosecution had failed to prove the
charge against the accused beyond shadow of doubt ---Appeal against conviction was
accordingly allowed.
Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Nawaz and others v.
The State and others 2016 SCMR 267 and Qaddan and others v. The State 2017 SCMR 148 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 460, 147, 148 & 149 ---Qatl -i-amd, person jointly concerned in lurking
house -trespass or house -breaking by night, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Common intention--- Vicarious liability ---
Scope ---Accused were charged for committing murder of the nephew of complainant by
firing ---Trial Court convicted the present accused merely on the basis of surmises,
conjectures, and probabilities ---To attract the provision of S.34, P.P.C., there must be some
proof of an overt act on the part of each accused in furtherance of the common intention---Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with the co -accused, who committed the offence, might not be sufficient to
connect the former with vicarious liability ---Principle of vicarious liability cannot be
invoked unless and until common intention and object are proved---For that purpose, strong circumstances must exist to manufacture a common intention, which was missing in the present case ---Prosecution had failed to establish the common intention and common object
of the accused for the commission of the crime, and no corroborative evidence was produced by the prosecution with the statement of eye -witness ---Circumstances established
that the prosecution had failed to prove the charge against the accused beyond shadow of doubt ---Appeal against conviction was accordingly allowed.
(f) Criminal trial ---
----Benefit of doubt ---Conviction--- Conjectures and probabilities ---Scope ---Mere
conjectures and probabilities cannot take the place of proof ---If a case is decided merely on
high probabilities regarding the existence or non- existence of a fact to prove the guilt of a
person, the golden rule of giving benefit of doubt to an accused person, which has been a dominant feature of the administration of criminal justice with the consistent approval of the Constitutional Courts, will be reduced to a naught.
Shah Rasool Kakar, Noor -ud-Din Kakar and Zafar Iqbal Hassani for Appellant.
Abdul Baqi Jan Kakar for the Complainant.
Ameer Hamza Mengal, APG for the State.
Date of hearing: 13th June, 2024.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant Muhammad Rafiq, son of Abdul
Razaq, was involved in case FIR No.09 of 2016 registered under sections 302, 460, 147, 148
and 149, P.P.C. at Levies Station Sinjavi District Ziarat and was tried by the learned
Additional Sessions Judge, Loralai, ("trial Court"). The trial court seized with the matter in terms of the judgment dated 26.05.2023 ("impugned Judgment"), convicted and sentenced the appellant in the following terms:-
"32. ……. And he is convicted and sentenced under section 302(b), P.P.C. to suffer
imprisonment for life as Tazir and having regards to the facts and circumstances of
the case the accused facing trial shall pay Rs.100,000/ - (one lac) as compensation to
legal heirs of deceased within the purview of section 544- A, Cr.P.C or in default to
suffer three months SI. The accused facing trial is further convicted and sentenced
under section 458, P.P.C. to suffer imprisonment for seven (7) years R.I. The accused
facing trial is also convicted and sentenced under section 147, P.P.C. to suffer
imprisonment for one (1) year R.I. The accused facing trial is further convicted and sentenced under section 148, P.P.C. to suffer imprisonment for one (1) year R.I. All
substantive punishments awarded to accused shall run concurrently. Benefit of
Section 382 -B, Cr.P.C is extended in his favour."
Aggrieved from the impugned judgment, the appellant, Muhammad Rafiq, has
assailed his conviction and sentence through the titled appeal.
2. The prosecution story, as disclosed in the first information report (Ex.P/7- A) recorded
on the written report of the complainant (PW -1) Muhammad Essa, son of Abdul Qadir
(Ex.P/1 -A), is that on 23.07.2016 he received information that his nephew namely Nazir
Ahmed was murdered at the house of his father -in-law i.e., Juma Khan, on the said
information he reached the house of Juma Khan and found the dead body of his nephew in
one room. On query, he came to know from PWs Hazrat Ullah and Aminullah that the deceased Nazir Ahmed was invited by them as a guest; after taking dinner, he slept in a room at about 1:00 a.m., accused persons Gul Muhammad, Mula Nazar, Pai Din, Para Din, and Muhammad Rafique came to his house and got them to awaken and asked about deceased Nazir Ahmed, while they had gone with them at the said room, where deceased Nazir Ahmed was sleeping, the above -accused persons also got awake the deceased Nazir Ahmed and
when the deceased awoke, accused Gul Muhammad made firing upon Nazir Ahmed who sustained a bullet injury near the right eye, due to which he succumbed to his injuries at the spot. Hence, crime report.
3. After completion of the investigation, the challan was submitted before the trial court.
After a full -dressed trial, the appellant was convicted and sentenced vide impugned judgment
dated 26.05.2023 in the above terms, whereafter the instant appeal was filed.
4. We have heard the learned counsel for the parties and perused the available record
with their able assistance.
5. In order to prove its case the prosecution produced seven witnesses in all. PW -1, who
is the complainant of the case and he, is not an eye- witness of the occurrence; however, he
received information about the injuries caused to his nephew, and when he reached the place of occurrence, he found the dead body of the deceased there. PW- 2, Ameenullah, PW -3
Hazratullah and PW- 5-A Mst. Gul Dana are eye- witnesses of the occurrence. PW -4 Dr. Noor
Baqi, Medical Officer T.H.Q Hospital Sinjavi District Ziarat, exami ned the dead body of the
deceased. PW- 6 Faiz Muhammad Levies Sepoy is the recovery witness of bloodstained
clothes, bloodstained earth, and bullet empties, which were taken into possession from the
place of occurrence through the recovery memo. Abdul Khaliq (PW -7-A), who conducted the
investigation of the case. It is worthwhile to mention here that the co- accused Gul
Muhammad, Pai Din, and Para Din were tried by the trial court in the first round when the
present appellant was an absconder in the challan, and the case was kept in dormant to his extent. In the first round, the co -accused Gul Muhammad, Para Din and Pai Din, were
convicted by the trial court for an offence under section 302, P.P.C. and sentenced to suffer
R.I for life as Ta'zir on 15.05.2019. Being aggrieved from the judgment dated 15.05.2019,
the co -accused Gul Muhammad, Para Din, and Pai Din filed Criminal Appeal No. 177/2019
before this court, and after hearing the arguments of learned counsel for the parties, this court vide judgment dated 18.12.2019 set aside the judgment dated 15.05.2019 passed by the trial court to the extent of co- accused Para Din and Pai Din and both of them were acquitted of
the charge, whereas the conviction and sentence awarded to the co -accused Gul Muhammad
was maintained.
6. From the statements of eye -witnesses, it revealed that the convict/accused, Gul
Muhammad made firing upon the deceased Nazir Ahmed, who sustained bullet injuries near his right eye on the spot however the role attributed to the acquitted co- accused Para Din and
Pai Din and the present appellant by the eye -witnesses is that they were present empty -
handed at the place of occurrence and they did not cause injuries to the deceased. While acquitted the co -accused Para Din and Pai Din, this court, in its judgment dated 18.12.2019,
observed that:
"13. The appraisal of direct and circumstantial coupled with medical evidence after
minute consideration of all the circumstances. We are of the considered view that the
appellant Gul Muhammad is convicted by the trial Court, we are unable to find
ourselves in agreement with the impugned judgment of the trial Court to the extent of
accused/appellants Pai Din and Para Din. The complainant of the case coupled with the statement of PW -2 Hazrat Ullah as well as statement of PW -3 Aminullah and
statement of PW -5 Gul Dana are suggestive of the fact that the appellants/accused Pai
Din and Para Din have not at all taken participation in the alleged crime. The prosecution has failed to establish the mens rea of the appellants/accused Pai Din and Para Din to commit such crime, because the appellants/accused Pai Din and Para Din were empty handed at the place of occurrence and did not cause any injuries to the deceased. The entire prosecution evidence would establish the fact that though the accused/appellants Pai Din and Para Din were present at the relevant time along with main accused Gul Muhammad but no overt act has been attributed to them by the prosecution rather both the accused/appellants have empty handed. The prosecution has failed to establish through incriminatory evidence with regard to common intention or common object of the appellants/accused Pai Din and Para Din to commit the murder of deceased Nazir Ahmed."
7. It is stated earlier that the roles attributed to the acquitted accused, Para Din and Pai
Din, and the present appellant are the same. They were present at the place of occurrence empty -handed and did not cause any injury to the deceased, and the evidence produced by
the prosecution against acquitted co -accused Para Din and Pai Din was disbelieved by this
court. It is well settled by now that if a set of evidence is disbelieved to the extent of some accused, the same set of evidence cannot be believed to the extent of the remaining accused facing the same trial.
8. The trial court found the appellant guilty on the sole ground that" There was located
shop of accused Muhammad Rafique present before the court adjacent the place of occurrence, whenever the deceased Nazir Ahmed paid a visit at the house of his fiancé, he called the relatives and accused persons at there and always made unlawful assembly, started a quarrel with the Nazir Ahmed, the present accused Muhammad Rafique was annoyed and reluctant the visit of Nazir Ahmed at the house of his fiancé, he always paid active role to gather the relatives, made unlawful assembly his role is distinguished than Pai Din and Para Din (acquitted accused) whose said role subsequently culminated upon the brutal murder of young groom, whose marriage was settled after two days of fateful occurrence. The present accused Muhammad Rafique always provoked and instigated his companions against the Nazir Ahmed; therefore, his common object and intention is well established from the present evidence."
9. We are unable to find ourselves in agreement with the impugned judgment of the trial
court. After perusal of the entire record of the case as well as evidence of the parties
produced before the trial court, it transpires that the motive of the case alleged by the complainant in his report is that the deceased's visit to the father -in law's house but he did
not state a single word in his report that the accused Muhammad Rafiq called the relatives
and accused persons at there and always made unlawful assembly and started a quarrel with
deceased Nazir Ahmed and because of accused Muhammad Rafiq reluctance the accused
visit at the house of the fiancé. On the other hand, PW -2 and PW -3 stated in their statement
before the trial court that when the accused, Gul Muhammad made a firing upon the deceased, all the accused said that they prohibited the deceased Nazir Ahmed from visiting his father -in-law's house before marriage.
10. The most important witness, i.e., PW -5-A Mst. Gul Dana stated in her statement that
due to their tradition, after the engagement, the groom used to visit the house of his father -in-
law. She further stated in her statement that whenever the deceased Nazir Ahmed visited her house, the accused Muhammad Rafiq, who had a shop adjacent to her house, used to call relatives and accused Gul Muhammad, Mulla Nazar, Pai Din, and Para Din, and whenever Nazir Ahmed would leave the house the accused persons used to quarrel with him. During
cross -examination, she stated that she is a Parda Nasheen lady; she neither used to meet
strangers nor unveiled her face. According to the said witness, she is a parda nasheen lady,
and she did not meet with strangers; therefore, how can it be possible that she found the
accused, Muhammad Rafiq, at the time of calling the other accused persons about the visiting
of the deceased to her house. Even otherwise, she did not state a single word that she herself did see the accused, Muhammad Rafiq, at the time of telephone calling the other accused persons about deceased Nazir Ahmed's visit to his father -in-law's house.
11. It is also observed that the statement of the appellant in terms of section 342, Cr.P.C.
had not been recorded in accordance with its spirit, and as such, departure therefrom is not permissible. The word "shall" in the latter part of subsection (i) of section 342, Cr.P.C. indicates that the examination of the accused is mandatory and not discretionary. If, after the conclusion of the trial, it is found by the trial court that any circumstances appearing in evidence against the accused is lightly helpful towards his conviction, then the court would not be competent to take the same into account without questioning him on that point so that the accused may be able to explain his position properly. In Para No.31 of the impugned judgment, the trial court relied on the allegation that the appellant had a shop "adjacent the place of occurrence, whenever the deceased Nazir Ahmed paid a visit at the house of his fiancé, he called the relatives and accused persons at there and always made unlawful assembly, started quarrel with the Nazir Ahmed, the present accused Muhammad Rafique was annoyed and reluctant the visit of Nazir Ahmed at the house of his fiancé, he always paid active role to gather the relatives, made unlawful assembly his role is distinguished than Pai Din and Para Din (acquitted accused) whose said role subsequently culminated upon the brutal murder of young groom, whose marriage was settled after two days of fateful occurrence. The present accused Muhammad Rafique always provoked and instigated his companions against the Nazir Ahmed, therefore, his common object and intention is well established from the present evidence." However, the trial court did not put any question to the appellant in this respect while recording his statement under section 342, Cr.P.C. It is clear from the record that the statement of the accused was recorded under Section 342, Cr.P.C. by the learned trial court in a very stereotypical manner. Relevant and very important incriminating pieces of evidence have not been put to the accused for explanation/reply. A perusal of the statement of the accused recorded under Section 342, Cr.P.C. further reveals that all the incriminating pieces of evidence brought on record were not put to him when his statement was recorded under Section 342, Cr.P.C., enabling him to explain and reply the same, whereas the trial court used such piece of evidence for convicting the accused. Under the law, if any piece of evidence is not put to the accused in his statement recorded under Section 342, Cr.P.C, the same cannot be used for his conviction. The position is exactly the same in the case in hand. Reliance is placed on the case of Muhammad Shah v. The State reported as 2010 SCMR 1009, in which the Hon'ble Supreme Court has held as under:
"11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross -examination for
convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the
words used are "For the purpose of enabling the accused to explain any circumstances
appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination- in-chief are put to the accused but the
circumstances appearing in cross -examination or re -examination are also required to
be put to the accused, if they are against him, because the evidence means
examination -in-chief and re- examination, as provided under Article 132 read with
Articles 2(c) and 71 of Qanun- e-Shahadat Order, 1984. The perusal of statement of
the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence
which appeared in the cross -examination was not put to the accused in his statement
under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well -settled that if any piece of evidence
is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be
sustained".
Reliance can also be placed on the case of Muhammad Nawaz and others v. The State
and others reported as 2016 SCMR 267, wherein the Hon'ble Apex Court has observed as
under: --
"6(c) .. There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence".
In another case of Qaddan and others v. The State reported as 2017 SCMR 148, the
Hon'ble Apex Court has held as follows:
"3. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recoding of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him."
12. The trial court convicted the accused/appellant merely on the basis of surmises,
conjectures, and probabilities. To attract the provision of Section 34, P.P.C., there must be some proof of an overt act on the part of each accused in furtherance of the common intention. The mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with the co -accused, who commits the offence, may not be
sufficient to connect the former with vicarious liability. The principle of vicarious liability cannot be invoked unless and until common intention and object are proved. For this purpose, strong circumstances must exist to manufacturing a common intention, which is missing in the present case. The word intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external acts and for this purpose, it is very necessary to examine the act itself of the accused. There must be material to show some overt act done in furtherance of common intention, which is missing in the present case. The prosecution has miserably failed to establish the common intention and common object of the appellant for the commission of the crime, and no corroborative evidence was produced by the prosecution with the statement of PW -5-A. It is of paramount importance to
mention here that the eye -witnesses and the complainant did not claim to have seen the
appellant at the time of the alleged telephone call to the other accused persons. No other incriminating piece of evidence was brought on record by the prosecution to establish the appellant's involvement in the incident in issue.
13. It is a well- established principle of administration of justice in criminal cases that
finding guilt against an accused person cannot be based merely on the high probabilities inferred from evidence in a given case. The finding regarding his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. Suppose a case is decided merely on high probabilities regarding the
existence or non- existence of a fact to prove the guilt of a person; in that case, the golden
rule of giving "benefit of the doubt" to an accused person, which has been a dominant feature
of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to naught.
14. The prosecution is under obligation to prove its case against the accused person at the
standard of proof required in criminal cases, namely, beyond reasonable doubt standard. It cannot be said that this obligation was discharged by producing evidence that merely meets the preponderance of probability standards applied in civil cases. Suppose the prosecution fails to discharge its said obligation, and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the accused person's guilt. In that case, the benefit of that doubt is to be given to the accused person as a right, not as a concession.
15. Keeping in view the said rule of giving the benefit of the doubt to an accused person
for the safe administration of criminal justice, we believe that all the evidence discussed above is completely unreliable and utterly deficient in proving the charge against the appellant beyond a reasonable doubt. We find that the court below, apparently being influenced by the heinous nature of the charges involved in the case, on the basis of surmises and conjectures, which have resulted in grave injustice. The court below has overlooked serious pitfalls and grave infirmities in the prosecution evidence by adopting a superficial and cursory approach, not befitting the seriousness of the crime charged in the present case. The verdict returned by the court below is manifestly erroneous, having been arrived at without a complete and comprehensive appreciation of all the evidence and relevant aspects of the case.
16. For the foregoing reasons, while accepting Criminal Appeal No. 230 of 2023, the
conviction and sentence awarded to the appellant Muhammad Rafiq, son of Abdul Razaq, vide judgment dated 26.05.2023 passed by the learned Additional Sessions Judge Loralai in Sessions Case No. 18/2017 is set aside, and the appellant is acquitted of the charge in FIR
No.09 of 2016 registered under sections 302, 460, 147, 148 and 149, P.P.C. at Levies Station
Sinjavi District Ziarat by extending the benefit of the doubt in his favour. The appellant,
Muhammad Rafiq, son of Abdul Razaq, shall be released forthwith if not required to be detained in any other case.
JK/70/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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