2012 P Cr. L J 63

[Peshawar]

Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi, JJ

IRFAN SAEED and others---Appellants

Versus

THE STATE and others---Respondents
 
Criminal Appeals Nos. 305 and 376 of 2010, decided on 27th September, 2011.
 
(a) Penal Code (XLV of 1860)---
 
----Ss.  302(b)  &  148---Qatl-e-amd---Appreciation of evidence---Report of  the  occurrence  having  been lodged  by  the  complainant  within 30 minutes of the occurrence, there was hardly any time for deliberation or consultation---Statements of the complainant and other eye-witness were consistent on material points---Said eye-witnesses were further corroborated by the medical evidence, motive and the abscondence of accused---Despite lengthy cross-examination consisting of 24 pages, no dent or contradiction, whatsoever was created in the statements of the said eye-witnesses and their veracity could not be shaken---Accused went into hiding to avoid lawful arrest and remained absconder for about seven months, which was also a strong corroborative piece of evidence---Prosecution had fully established the guilt of accused, who was singly charged for firing at the deceased---Substitution was a rare phenomenon and it was not possible that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person for the commission of the offence involving capital punishment---Conviction and sentence awarded to accused by the Trial Court under S.302(b), P.P.C., were maintained and appeal to his extent was dismissed---Community of intention and object having been disbelieved, conviction and sentence of accused under S.148, P.P.C. was set aside.
 
(b) Penal Code (XLV of 1860)---
 
----Ss. 302(b), 148, 149---Qatl-e-amd---Appreciation of evidence---Motive---Sentence---Motive was always hidden deep in the mind of accused and was a guess on the part of the witnesses which was not an essential ingredient of the offence---Weakness or presence of motive, or failure to prove the same, would hardly make any difference in awarding sentence.
 
(c) Penal Code (XLV of 1860)---
 
----Ss. 302(b), 148 & 149---Qatl-e-amd---Appreciation of evidence---Common intention---Scope---No evidence was on record to show pre-planning, pre-meditation, consultation and instigation against co-accused---Co-accused were only shown present at the spot and no overt act was attributed to them---Inference of common intention would only be reached, if it was deducible from the facts and circumstances of the case---All co-accused, deceased along with the eye-witnesses arrived at the scene of occurrence per chance similarly the accused also came there suddenly without knowing that deceased had come there---Co-accused in circumstances, had not shared common intention with main accused who was charged for firing at the deceased---Convictions and sentences awarded to co-accused were set aside and they were acquitted of the charges levelled against them and were released, in circumstances. 
 
(d) Penal Code (XLV of 1860)---
 
----Ss. 302(b), 148 & 149---Qatl-e-amd---Appreciation of evidence---Common intention---To establish common intention, it was necessary to have direct proof of pre-planning, premeditation, consultation and instigation, which leads to the inference, or the incriminating facts must be incompatible with the innocence of accused and incapable of any other explanation---Common intention would imply acting in pre-concert  in  pursuance  of  pre-arranged  plan,  which  was  to  be proved, either from conduct or from circumstances or from incriminating facts.
 
       Khawaja Muhammad Khan Gara and Mian Muhibullah Kaka Khel for Petitioners.
      
 Ishtiaq Ibrahim and Ikramullah Khan, A.A.-G. for the State.
   
    Date of hearing: 27th September, 2011.
 
JUDGMENT
 
       FAZAL-I-HAQ ABBASI, J.---We propose to dispose of Criminal Appeal No.305 of 2010 filed by Irfan Saeed and Faisal Saeed sons of Muhammad Saeed Khan, Bashir Ahmad Khan son of Bahramand resident of Mingora District Swat, and Criminal Appeal No.376 of 2010 filed by Muambar Khan son of Anat Khan resident of Manglor District Swat, as both the appeals arise from the judgment dated 25-3-2010 passed by the learned ASJ/Izafi Zilla Qazi-IV Swat, whereby the appellants were convicted and sentenced as follows:--
 
(i)    Under section 302-B, P.P.C. to imprisonment for life each.
 
(ii)   Under section 148, P.P.C. to one year's R.I. each.
 
(iii)   Rs.50,000 each as compensation under section 544-A, Cr.P.C. payable to the legal heirs of the deceased or in default to undergo six months' SI each. Benefit of section 382-B, Cr.P.C. was extended to the appellants. All the sentences were directed to run concurrently.
 
2.    Brief facts of the case given in the F.I.R. are that Nasir Khan (P.W.1) lodged a report on 14-10-2006 at 15.30 hours, which was recorded by Abdul Aziz Khan SI (P.W.3). The complainant stated that on the day of occurrence he along with Muhammad Khan, Purdil Khan sons of Bahader Khan residents of Charbagh came to Mingora in the Motor Car owned by Muhammad Khan. After finishing the private work when they reached in Green Chowk, due to cart on the way, he parked the vehicle on a side. Muhammad Khan was sitting on the front seat while Purdil Khan on the rare seat. It was 15.00 hours, in the meantime from a nearby street Irfan, Faisal sons of Saeed Khan, Muambar resident of Manglor and Bashir resident of Mingora, along with another unknown person, who could be identified by him, appeared and came near the Motor Car. Irfan Saeed, who was armed with a pistol fired upon Muhammad Khan, with which he was hit on head and died. He chased the accused, but they decamped. The dead body of Muhammad Khan was taken by Purdil Khan to the Hospital. Motive for the occurrence was stated to be the dispute over woman. He stated that his shirt was also stained with the blood of the deceased. The occurrence was stated to be witnessed by Purdil Khan besides him. The report was recorded in the shape of Murasila Exh.P.A/1, which was signed by him and the same was  sent  through  Barkat  Ali  FC  No. 705  to  PS  and  case  vide F.I.R.  Exh. P.A.  bearing  No. 2156  dated  14-10-2006  under  sections 302/148/149, P.P.C. was registered at Police Station Mingora District Swat.
 
3.    Investigation was carried out by Suleman Shah ASI (P.W.6) and after completion of investigation challan was submitted in the Court.
 
4.    Learned trial Court after compliance of the legal formalities, framing of the charge, recording the statements of P.Ws., statements of accused  and  hearing  the  arguments  of  the  parties  vide  judgment dated 25-3-2010 convicted and sentenced the appellants as stated above.
 
5.    The prosecution in order to prove its case produced as many as nine witnesses. Nasir Khan complainant appeared as P.W.1 and he supported the version given in the F.I.R. Purdil Khan eye-witness was examined as P.W.2, who also supported the prosecution case. Lengthy cross-examination consisting of 24 pages was conducted on these two eye­-witnesses, but nothing material could be brought out nor any dent could be created in their evidence.
 
6.    Abdul Aziz SI (P.W.3) drafted the Murasila Exh.P.A./1 on the report of Nasir Khan (P.W.1).
 
7.    Dr.Samiullah Khan (P.W.4) conducted postmortem on the dead body of
Muhammad Khan deceased on 14-10-2011 at 5-00 p.m. and found the following:--
(i)    Entry wound left ear near the left lobule about 4 x 4 c.m.
 
(ii)   Exit wound right ear near the anti helix of the ear about 1/2" in size. Bullet pierced the skull base of the brain damaged. Cause of death was stated due to the damage to the base of the brain and haemorrhage.
       Time between injury and death was less than four hours and between death and postmortem examination less than six hours.
 
8.    Nawab Khan SI (P.W.5) is the witness of recovery memo Exh.P.W.5/1 vide which blood through cotton was secured from inside the Motor Car, Purse containing Cash amount of Rs.3,460, three photographs of the deceased, one Cheque Book, Telephone Diary, 10 different  Keys  along  with  the  Key  Chain,  two  Mobile phone  sets, .30 bore pistol along with Bandolier containing 2 Magazines, each containing  12  Cartridges  along with  License  No. 857-DC/S dated 21-5-1995 in the name of the deceased, black and white photographs along with Motor Car of the deceased were taken into possession through Memo Exh.P.W.5/1 by the I.O.
 
9.    Suleman Shah ASI (P.W.6) is the Investigating Officer, who prepared the site plan Exh.P.B. at the pointation of eye-witnesses, secured blood and different articles belonging to the deceased and Motor Car through Memo Exh.P.W.5/1. He also secured blood through cotton Exh.P.I from the front seat of the Motor Car through memo Ex.P.W.6/1, took into possession blood-stained shirt Exh.P­3 belonging to Nasir complainant and through recovery memo Exh.P.W.6/6, took into possession shirt and shalwar both blood-stained Exh.P.2 belonging to the deceased. All the recoveries were effected in presence of the marginal witnesses to the recovery memos. He sent the blood-stained articles to Serologist through application Exh.P.W.6/8. He recorded the statements  of  the witnesses.  He  also  applied  for  warrants  under section 204, Cr.P.C. against the accused, the warrants are Exh.P.W.6/10 to Exh.P.W.6/13 and were handed over to the DFC for execution. Through application Exh.P.W.6/14 he applied for proclamation notices under section 87, Cr.P.C. which were issued and are Exh.P.W.6/15 to Exh.P.W.6/18. Faisal, Bashir Ahmad and Muambar accused were granted ad interim pre-arrest bail by the Court, which was re-called on 23-11-2006, as such they were arrested by Suleman Shah ASI (P.W.6). Through application Exh.P.V.6/26 he applied for physical remand of the accused on 23-11-2006 which was granted and on expiry of the remand on 27-11-2006 the accused were produced before the Court, who were sent to Judicial lock up.
 
10.  Suhrab Khan (P.W.7) is the witness of recovery memos Ex.P.W.6/1, 6/5 and 6/6 referred to hereinbefore.
 
11.  Rozi Gul (P.W.8) is the witness to the pointation of the place of occurrence made by Faisal accused.
 
12.  Bahram  Khan  SI  (P.W.9)  arrested  the  accused  Irfan  on  13-5-2007 and obtained two days police custody from the court and on 15-5-2007 produced the accused before the Court, who was sent to Judicial lock up.
13.  After recording evidence of the above referred P.Ws. the learned court recorded the statements of the accused, who did not opt to be examined on Oath under section 340(2), Cr.P.C. or produce any defence evidence.
 
14.  After hearing the arguments of the parties the learned trial Court convicted and sentenced the appellants as referred to above.
 
15.  Mr. Khawaja Muhammad Khan Gara, Advocate appearing on behalf of Irfan Saeed, Faisal Saeed and Bashir Ahmad Khan appellants argued that it is highly improbable that the complainant who was sitting on the driving seat situated in close proximity of the deceased did not receive even a scratch, therefore, the bullet made exit from injury of deceased. He further contended that the story of chasing of the accused by the complainant is highly improbable, because none would dare to chase a person holding a pistol in his hand. It was further contended that the car in question did not belong to the complainant and it was belonging to the deceased, therefore, the complainant is a chance witness, who has given the story of chasing the accused, in order to cover delay  in  the  F.I.R.  Learned  counsel  also  argued  that  the report was made at the spot and not in the Police Station and the same also casts doubt on the prosecution story. It was also argued that the motive alleged in the F.I.R. was not proved He argued that the prosecution story is highly improbable, not convincing and is, therefore, liable to be rejected.
 
       Learned counsel further argued that Faisal Saeed, Bashir Ahmad and Muamber Khan convict-appellants have not been attributed any role either of exhortation or any overt act qua the deceased or the witnesses, therefore, they deserve acquittal.
16.  Mian Muhibullah Kakakhel, learned counsel for Muamber appellant  argued  that  there  is  no  evidence of  pre-planning and no overt act has been attributed to his client. As such he also deserves acquittal.
 
18.  On the other hand Mr. Ishtiaq Ibrahim, Advocate for the complainant and Mr. Ikramullah Khan the learned AAG appearing for the State argued that the appellants are charged in a promptly lodged F.I.R. and that the eye-witnesses' account is corroborated by the medical evidence, recoveries from the spot, motive and abscondence of Irfan Saeed accused. They further argued that all the convict-appellants are equally liable for the commission of murder of Muhammad Khan deceased and they are liable to be convicted and sentenced and submitted that their appeals be dismissed.
 
19.  Arguments heard and evidence was minutely gone through.
 
20.  Perusal of the record shows that the report of the occurrence was lodged by Nasir Khan (P.W.1) within 30 minutes of the occurrence. There was hardly any time for deliberations or consultations. Statement of Nasir Khan (P.W.1) and Purdi Khan (P.W.2) are consistent on material points. These eye-witnesses are further corroborated by the medical evidence, motive and the abscondence of Irfan Saeed convict-appellant. Despite lengthy cross-examination consisting of 24 pages, meant for manipulation of error and bringing contradictions in the statements of P.Ws. no dent or contraction whatsoever was created in the statements of the said eye-witnesses and their veracity could not be shaken. The medical evidence given by P.W.4 also corroborates the testimony of P.Ws.l and 2. P.W.1 denied the suggestion that there was no dispute over the woman, while Purdil (P.W.2) who happened to be the brother of the deceased stated in his cross-examination that sister of Irfan  and  Faisal  married  with  the deceased  on  which  they  were annoyed. Even otherwise motive is always hidden deep in the mind of the accused and is a guess on the part of the witnesses, which is not an essential ingredient of the offence. Weakness or presence of motive or failure  to  prove  the  same  would  hardly  make  any  difference  in awarding sentence.
21.  Irfan Saeed appellant went into hiding to avoid lawful arrest and remained absconder for about seven months, which is also a strong corrotorative piece of evidence. The prosecution fully established the guilt of Irfan Saeed appellant, who is singally charged for firing at the deceased. Substitution is a rare phenomena. It is not possible that the close relative of the deceased would let the actual culprit scot-free and substitute an innocent person for the commission of an offence involving capital punishment.
 
22.  As far as the case of Faisal Saeed and Bashir Ahmad appellants in Criminal Appeal No. 305 of 2010 and Maumbar appellant in Criminal Appeal No.376 of 2010 are concerned, there is no evidence of pre-planning, premeditation, consultation and instigation against them. They were only shown present at the spot. No overt act was attributed to them. Inference of common intention would only be reached if it is deducible from the facts and circumstances of the case. It is necessary to have a direct proof of pre­planning, premeditation, consultation and instigation, which must lead to the inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of any other explanation. Common intention implies acting in pre-concert in pursuance of pre-arranged plan, which is to be proved either from conduct or from circumstances or from incriminating facts.

23.  In the present case all the accused, deceased along with the eye-witnesses arrived at the scene of occurrence per chance and similarly the accused also came there suddenly without knowing that deceased had come there, therefore, in the facts and circumstances of the case it is difficult to hold that Faisal Saeed, Bashir Ahmad and Muamber Khan shared common intention with Irfan Saeed, the main accused charged for firing at the deceased. In this view of the matter conviction and sentences of Irfan Saeed under section 302(b), P.P.C. are maintained and the Criminal Appeal No.305 of 2010 to his extent is dismissed. However, as we have disbelieved the community of intention and object, therefore, we set aside his conviction and sentence under section 148, P.P.C. Moreover the amount of compensation shall be recoverable as arrears of land revenue provided under section 544-A(2), Cr.P.C. We partially allow Criminal Appeal No.305 of 2010 to the extent of Faisal Saeed and Bashir Ahmad, we also allow Criminal Appeal No.376 of 2010 filed by Muambar Khan and set aside the convictions and sentences awarded to them through judgment dated 25-3-2010 by the learned ASJ/Izafi Zilla Qazi-IV Swat and acquit them of the charges levelled against them. They shall be released forthwith if not required in any other case.

H.B.T./338/P                                                                           Order accordingly.
 

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