2019 PLP 2144 (YLR)

OMAR SIAL, J.

The appellants Mehboob Ilahi and Mohammad Shoaib alias Chand are real brothers. The accusation against them was that on 20.4.2012 at about 7:00 p.m. they, along with two other brothers of theirs, namely Qurban and Usman, went to the house of one Bashir Ahmed where upon the instigation of Mehboob Ilahi, his brothers Muhammad Shoaib, Qurban and Usman fired upon Bashir Ahmed and his two sons Naseer and Shabeer, which resulted in a firearm arm injury to Shabeer. Shabeer died subsequently. The police registered an FIR bearing number 156 of 2012 against all four brothers on the complaint of Bashir Ahmed.

2. Mehboob and Muhammad Shoaib were arrested and faced trial while Usman and Qurban were declared absconders. The prosecution examined a total of seven witnesses to prove its case against the accused. SIP Ghulam Mustafa Niazi who was the police officer who received the first information of the incident and subsequently registered the FIR on the complaint of Bashir Ahmed was examined as the first prosecution witness. Ubaidullah Niazi, Mohammad Yaqoob and Irfan Khan who claimed to be eye-witnesses to the incident were examined as the second, third and fourth prosecution witnesses, respectively. Bashir Ahmed the complainant and father of the deceased was examined as the fifth witness. Dr. Abdul Razak who medically examined the injured Bashir Ahmed and his son Naseer Ahmed was the sixth prosecution witness. Arshad Ali who was a witness to the inspection of dead body was the seventh prosecution witness whereas S.I.P. Madad Ali who investigated the case was the eighth prosecution witness. In their section 342, Cr.P.C. statements the two appellants pleaded innocence and stated that in fact they were not even present on the spot when the incident is said to have occurred.

3. The learned 1st Additional Sessions Judge, Malir, Karachi 29.10.2014 announced her judgment in terms of which she convicted and sentenced each appellant as follows: (i) Life imprisonment under section 302(b) P.P.C. and (ii) Seven years' imprisonment for an offence punishable under section 452, P.P.C. together with a fine of Rs. 50,000. (iii) Two years' imprisonment for an offence punishable under section 337-A(i), P.P.C. and daman of Rs. 5,000. (iv) Rs. 100,000 as compensation or simple imprisonment of five months in default.

4. The appellants have impugned the judgment of the learned trial court in these proceedings.

5. I have heard the learned counsel for the appellants as well as the learned counsel for the complainant and the learned A.P.G. I have also examined the record with their able assistance. My observations are as follows.

6. At the very outset, all counsel present agreed and admitted that none of the appellants have been assigned the role of shooting Shabeer Ahmed. The shot that injured Shabeer has been attributed solely to the absconding co-accused Usman. Mehboob Ilahi was accused of instigating his brothers to shoot at the complainant party and Muhammad Shoaib was accused of being present on the spot. Vague allegations of all the brothers firing and beating Bashir Ahmed and Naseer Ahmed were however raised at trial.

7. The case against both appellants is primarily that of vicarious liability. In addition to vicarious liability, as noted above, there were minor injuries ostensibly caused to the complainant at the hands of, inter alia, the two appellants. The two appellants were convicted for the murder of Shabeer Ahmed allegedly carried out by co-accused Usman. Mehboob was said to have instigated his brothers to shoot at the complainant party whereas Muhammad Shoaib was said to be present at the spot and indulged in ineffective firing. Section 34, P.P.C. provides that "when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone." For being vicariously liable for the act of a primary accused, it is therefore a condition precedent that the persons being burdened with vicarious liability should have shared a common intention with the primary accused.

8. In Mohammad Akbar v. The State (PLD 1991 SC 923) it was held that " ..it is evident that a joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some circumstance manifesting a common intention. Generally common intention inter alia precedes by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the spur of moment or during the commission of offence as pointed out hereinabove. Conversely, common intention may undergo change during the commission of offence."

9. In Mohammad Yaqoob, Sub-Inspector v. The State (PLD 2001 SC 378) the Hon'ble Supreme Court observed "It was held a few decades earlier by this Court which still holds the fields that it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis".

10. In Shoukat Ali v. The State (PLD 2007 SC 93) the Hon'ble Supreme Court held that "After having gone through almost entire law qua the provisions as contained in section 34, in our considered view the following are the prerequisites of the section 34 before it could be made applicable:-- (a) It must be proved that criminal act was done by various persons. (b) The completion of criminal act must be in furtherance of common intention as they all intended to do so. (c) There must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof. (d) Existence of strong circum-stances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention. (e) The real and substantial distinction in between 'common intention' and 'similar intention' be kept in view."

11. There was no evidence led at trial that the two appellants had a pre-arranged plan to murder Shabeer Ahmed. The only aspect therefore to be examined is whether such a plan developed on the spur of the moment or that whether there was evidence of circumstances which would necessarily lead to the inference of prior concert. The prosecution has gone to some length in an effort to establish that the shooting occurred at the instigation of Mehboob. In this regard, apart from the complainant, they relied at trial on the testimonies of Ubaidullah Niazi, Mohammad Yaqoob and Irfan Khan. The fact that Ubaidullah Niazi and Mohammad Yaqoob recorded their section 161 statements after a lapse of 7 days without any reason attributed to the delay causes the evidentiary value of their statements to be corroded. Reliance in this regard is placed on the observations of the Honorable Supreme Court in [Muhammad Asif v. The State (2017 SCMR 486)]. Further doubt is cast on the testimony of Ubaidullah as he testified that "accused Mehboob was arrested from Memon hospital." While Ubaidullah was present there, whereas according to the memo of arrest, he was arrested from a Bus Stop. Ubaidullah Niazi had a completely different version to give as compared to the other eye-witnesses regarding the post shooting scenario. He testified that "we brought the injured to hospital. Meanwhile, the sister of injured/deceased also reached there and with Quran and asked them to spare her brothers but even then the accused did not listen to them." This development is not corroborated by any other eye-witness. To the contrary, the other witnesses testified that the accused had all run away from the scene immediately after the shooting. Further, it seems rather improbable that Ubaidullah could have heard the dialogues attributed to Mehboob inside the house, when Ubaidullah himself testified that "I was not present inside the house of the complainant and was standing outside." The testimony of Irfan Khan becomes unreliable when he categorically testified that the shooting incident took place on the ground floor of the house whereas the official version according to other witnesses is that it took place on the first floor. Irfan Khan and Bashir Ahmed are the two witnesses to the memo of site inspection and both giving a different version as to where the incident took place creates a dent in their credibility. According to the version given in the FIR by the complainant, Muhammad Shoaib, Qurban, Usman, duly armed with weapons arrived first on the scene, their brother Mehboob arrived later and told his brothers to enter the house and shoot and kill them. According to Bashir Ahmed, Muhammad Shoaib, Qurban and Usman arrived and entered his house first and then ten minutes later Mehboob arrived and instigated them to shoot. An eye-witness, Ubaidullah Niazi, testified that all four brothers reached at the same time, all of them were holding pistols and that there was a fifth brother accompanying them who was holding a stick and a bat. This fifth mysterious person does not find mention in the accounts narrated by the other witnesses. The contradictions between the witnesses on basic facts creates an element of doubt regarding whether they were even present on the scene as they claimed.

12. In the light of touchstone of criterion as mentioned hereinabove, the record would show that, apart from some witness statements which do not appear unimpeachable, there is no reliable evidence to suggest that the alleged offence has been committed in furtherance of common intention or pursuant to prior concert of mind or pre-arranged plan. The prosecution was unable to distinguish between common intention and similar intention. To constitute common intention it was necessary that intention of each was known to the rest of them and shared by them. If there is a lacuna in the evidence, the accused is entitled to have the benefit of the same.

13. The prosecution version appears to be exaggerated and an attempt towards throwing the net wide. In spite of claims that all the accused fired indiscriminately, only one empty was recovered from the spot. The witness to the memo of seizure, Bashir Ahmed, testified that even that empty was not sealed on the spot by the investigating officer nor did he sign anything. There was admittedly no blood found on the scene and there was no damage to the property. S.I. Madad Ali testified "it is correct to suggest that no blood of injured was available in the site." The initial scuffle that led to the shooting was between Muhammad Shoaib and Naseer Ahmed. Why would the accused Usman shoot Shabeer when Naseer was standing right in front of them is rather difficult to understand. Also, in spite of the alleged indiscriminate firing, only Shabeer got injured whereas Bashir Ahmed and Naseer who were standing with him were not injured, nor was any of the many other occupants of the 120 square yard house injured in the firing. Naseer Ahmed not being examined as a witness without any reason being attributed raises a further red flag and a presumption under Article 129 illustration "g" of the Qanun-e-Shahadat Order, 1984 that had he been examined he would have not supported the prosecution case. Whether Shabeer Ahmed died of the firing incident also remained unproved as the doctor who had issued the death certificate, being one Dr. Jagdesh Kumar, was not examined at trial. He was the same doctor who had also ostensibly conducted the medical examination of Bashir Ahmed and Naseer Ahmed. Again, his absence without any reason being given would give rise to an Article 129 presumption. The medical certificate of cause of death does not have a date of issuance. No post mortem of the deceased was conducted to determine the real cause of death. S.I. Imdad Ali admitted at trial that no incriminating material had been found against Mehboob or Muhammad Shoaib.

14. The official version, as embedded in the FIR, is that the incident occurred at 7:00 p.m. on 20-4-2012 and the FIR was registered at 9:35 p.m. the same day. S.I. Ghulam Mustafa testified that on 20.4.2012, while he was at the Sukhan police station he received a telephone call at 7:30 p.m. informing him that a person had been injured in a firing incident and that the injured had been taken for treatment to Razia Medical Complex. This was the first information of the incident, however, the record reveals that the police officer did not register the FIR at that moment but instead headed towards the Razia Medical Complex. According to S.I. Ghulam Mustafa when he reached the Complex, he saw a young person named Shabeer lying in an injured state with a bullet wound. Shabeer was given first aid and then dispatched to Jinnah Hospital for further treatment. Later that night at 9:35 p.m., the complainant Bashir Ahmed accompanied by his son Naseer came to the police station and registered the FIR. Interestingly, Bashir Ahmed, the complainant had a different account to give. He testified that immediately upon the firing occurring he and his son Naseer fell unconscious - "we had gone unconscious". He then gained "consciousness the same day at about 4:00 a.m.". If Bashir fell unconscious at 7:00 p.m. and remained unconscious till 4:00 a.m. there is no way he could have been present at the Sukhan police station at 9:35 p.m. on the day of the incident i.e. 20-4-2012. As a further indication that either S.I. Ghulam Mustafa had not been honest in his testimony or that Bashir Ahmed was not telling the truth, Bashir in his examination-in-chief testified that "on the next day S.I.P. Madad Ali arrived and asked me to lodge the FIR" By this account it would mean that the FIR was registered on 21-4-2012 and not 20.4.2012, as the official account of the case records. A further dimension to when the incident occurred was given by the investigating officer S.I. Madad Ali when he testified at trial that "on 19.4.2012 I firstly visited the house of the accused persons at about 2200 hours". His statement would indicate that either the incident took place on 19-4-2012 or that the investigation had begun before the FIR being registered. Either way, it was the prosecution case that suffered.

15. It has been argued by the learned counsel for the complainant that Shabeer Ahmed had given a dying declaration in which he had also narrated that Mehboob instigated his brothers to shoot. A dying declaration can only receive sanctity when it is shown that the declaration was indeed given by the deceased, that the same was given while the deceased had his faculties intact and that the same was given without any external influence or prompting. In the current case, Shabeer Ahmed was allegedly shot on 20-4-2012, recorded his section 161, Cr.P.C. statement (which statement is being termed a dying declaration) on 27-4-2012 and finally died on 15-5-2012. The language of Article 46 of the Qanun-e-Shahadat, 1984 is wide enough to enable a statement to be taken into account even if the person making it does not die immediately after it, the lag time in between the deceased making the statement after being injured and then dying will have the consequence of treating such a statement with care and caution. The only piece of evidence to show that it was Shabeer himself who actually made the statement, is the testimony of S.I.P. Madad Ali. S.I. Madad Ali, at trial, admitted that he had not sought the permission of the Medical Legal Officer to record the statement and that the Resident Medical Legal Officer had given him oral permission to do so. He admitted his inability to produce any record or evidence to support his assertion. The statement that was produced was not signed by anybody - doctor, nurse, magistrate, independent person - which would help in showing that it was indeed recorded by Shabeer Ahmed. No witness was produced to establish that S.I. Madad Ali even visited the hospital to record Shabeer's statement. To the contrary, the Senior Medical Legal Officer, Dr. Abdul Razzak testified in court that he had never seen S.I. Madad Ali in the hospital and that he could also not confirm whether the S.I. had visited the hospital in his (the doctor's) absence. The statement does not record the time when the S.I. recorded Shabeer's statement. According to Shabeer's alleged statement he was taken to Jinnah Hospital after he was shot whereas, according to the other witnesses he was first taken to Razia Medical Complex. Admittedly, the S.I. did not make any effort to record Shabeer's statement between 20-4-2012 and 27.4.2012 and an aspect I find creating doubt in the genuineness of Shabeer's statement is that it was recorded the same day when the statements of the eye-witnesses Ubaidullah Niazi and Mohammad Yaqoob were recorded. The consequence of the foregoing observations is that the prosecution was unable to prove that the so-called dying declaration was recorded by Shabeer Ahmed on his own and with his freewill.

16. Contradictions between witness statements regarding the date of registration of the FIR; delay in recording the section 161, Cr.P.C. statements of two of the eye-witnesses; contradictions between eye-witness statements as to how the incident occurred and unfolded; no other person injured or property damaged; recovery of only one bullet empty inspite of claims of firing by all assailants: the one empty also not being sealed on the spot; no blood found on the scene; an unexplained story of why the assailants would shoot Shabeer when the prosecution story is that Muhammad Shoaib and Naseer had an altercation; Naseer and the doctor who issued the final medical report declaring the cause of death not being examined at trial; dying declaration of unconvincing credibility; doctor who allegedly examined the injuries to the complainant and his son not examined; investigation officer admitting that he had found nothing incriminating against the appellants; absence of proof of common intention on the part of the appellants; a probable attempt to throw the net wide, are all reasons that make me form the view that the prosecution was unable to prove its case against the appellants beyond reasonable doubt. Accordingly, giving them the benefit of doubt, the appeal is allowed. The appellants are acquitted of the charge and should be released forthwith if not required in any other custody case. JK/M-19/Sindh Appeal allowed.