2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Haleem son of Ahmed Ali, caste Wattu, resident of Chak No.7/G.D, District Okara, Nasir Ali son of Shahadat Ali, caste Wattu, resident of Chak No.7/G.D, District Okara and Muhammad Saleem son of Ali Muhammad, caste Wattu, resident of Chak No.7/G.D, District Okara along with Muhammad Saleem son of Bakhsha (convicted and P.O.) and Shajjar Abbas and Farooq alias Malkoo (tried and convicted separately), were involved in case FIR No.535, dated 27.09.2008, offence under sections 302, 460, 148,149, P.P.C. registered at Police Station Chuchak, District Okara and were tried by Mr. Shafiq-ur-Rehman Khan, learned Additional Sessions Judge, Renala Khurd. The learned trial court seized with the matter in terms of judgment dated 19.07.2011, convicted the appellants and convict under sections 302(b)/149, P.P.C., and sentenced them to death as Ta'zir along with direction to pay Rs.1,00,000/- each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, they were directed to undergo R.I. for one year. Under section 460, P.P.C., the appellants were sentenced to undergo imprisonment for life, whereas, under section 148, P.P.C., each of the appellants was sentenced to undergo R.I. for three years. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.

2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction by way of filing Crl. Appeal No.1538 of 2011 while the learned trial court has forwarded Murder Reference No.343 of 2011 for confirmation of death sentence inflicted upon the convicts in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as contained in the FIR (Exh.PA/1) lodged on the complaint (Exh.PA) of Muhammad Ifraheem son of Haji Talib Hussain, caste Lashari, resident of Chak No.11/G.D, Kalaypur (PW-1) is that on the night between 26.09.2008 and 27.09.2008 at about 11:30 p.m. the complainant along with his brothers namely Muhammad Aslam, Muhammad Ashraf and chacha Muhammad Mansha were sleeping in the courtyard when on hearing the noise of dog barking they woke up and in the light of lantern they saw that (1) Haleem son of Ahmed Din armed with pump action, (2) Saleem son of Bakhsha armed with pistol .30-bore, (3) Saleem son of Ali armed with rifle .303-bore, (4) Farooq alias Falkoo son of Nazal armed with sota, (5) Saleem son of Ali, armed with rifle .303-bore, (6) Shajar Abbas son of Shahadat armed with gun .12-bore double barrel, all Wattu by caste and residents of Chak No.7/G.D, who were previously known to the complainant, were standing besides their cots. The accused persons on gun point demanded keys and snatched Rs.1,700/- and Identity Card along with some other papers from the complainant while Rs.350/- and wrist watch (CITIZEN) from Muhammad Ashraf. While showing resistance Muhammad Aslam caught hold Saleem accused upon which Nasir accused made a fire shot with his rifle landing on nose beneath left eye of Muhammad Aslam, who on receipt of injury fell on the ground on which the other accused persons started making indiscriminate firing and fled away. Muhammad Aslam succumbed to the injuries at the spot. The complainant after leaving Muhammad Ashraf and Muhammad Mansha to safeguard the dead body went towards Police Station, however on way, met with Abdul Majeed Inspector/SHO, who recorded his statement/complaint and the complainant thumb marked/signed the same in token of its correctness. The complaint was transmitted to Police Station through Israr Naveed 1426/C for registration of formal FIR.

4. Investigation in this case was entrusted to Muhammad Tariq, S.I. (PW-9), who visited the place of occurrence, secured blood from the place of occurrence and made into sealed parcel (Exh.PB). While inspecting the dead body the Investigating Officer prepared injury statement (Exh.PP) and inquest report (Exh.PQ) and dispatched the dead body for postmortem examination. The Investigating Officer also prepared visual/rough site plan of the place of occurrence (Exh.PM) and recorded the statements of the prosecution witnesses under section 161, Cr.P.C. After the postmortem examination last worn clothes of the deceased shirt (PA), shalwar (P-2), string of shalwar (P-3), vest (P-4), all stained with blood were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PC. On 28.09.2008 the Investigating Officer arrested Haleem appellant, who during the course of investigation after making disclosure led to the recovery of gun .12-bore (P-5), which was taken into possession vide recovery memo Exh.PB. On 19.10.2008 the Investigating Officer further arrested Muhammad Saleem son of Bakhsha and Muhammad Saleem son of Ali Muhammad. On 01.11.2008, Muhammad Saleem son of Bakhsha appellant made disclosure and led to the recovery of pistol .30-bore (P-9), which was taken into possession vide recovery memo Exh.PG. On the same day Muhammad Saleem son of Ali Muhammad while in police custody got recovered rifle .303-bore (P-1), which was also taken into possession by the Investigating Officer vide recovery memo Exh.PM. On 28.11.2008 on the direction of the Investigating Officer and pointing out of the PWs, Niaz Ahmed Patwari (PW-6) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PL and Exh.PL/1), which was made part of the file. On 30.12.2008 Nasir Ali appellant, during the course of investigation, made disclosure and led to the recovery of single barrel gun .12-bore (P-11), which was made into sealed parcel vide recovery memo Exh.PJ. On reaching the police station the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.

5. Having found the appellants and convict guilty, the Investigating Officer prepared report under section 173, Cr.P.C. while placing their names in column No.3 and sent the same to the Court of Sessions en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 11.06.2009, learned Additional Sessions Judge, Okara, formally charge sheeted the appellants and convicted to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as nine (9) prosecution witnesses.

6. Occular account in this case consists on the statements of Muhammad Ifrahim (PW-1) and Muhammad Manasha (PW-2). On presentation of complaint Muhammad Sadiq, S.I. (PW-5) had chalked out formal FIR, whereas, Niaz Ahmed Patwari (PW-6) had prepared scaled site plan of the place of occurrence (Exh.PL and Exh.PL/1). Investigation in this case was conducted by Muhammad Tariq, S.I. (PW-9). Dr. Sarfraz Ahmad Khan (PW-4) had conducted postmortem examination upon the dead body of deceased and found following injury on his person:- "

1. Lacerated wound 1-1/2 cm x 1 cm deep going to cranial cavity with inverted margins and blackening and burning of the margins on the left side of nose just inner left eye. It was a wound of entry." After conducting the postmortem examination, the doctor had rendered the following remarks:- "In my opinion the excessive haemorrhage and shock due to injury to the brain as a result of injury No.1 was the cause of death in this case which was sufficient to cause the death. Injury was ante-mortem and was caused by fire arm weapon. The probable time between injury and death was immediate and the time between death and post mortem was 12 hours to 18 hours." Statements of rest of the prosecution witnesses are formal in nature.

7. On 07.04.2011, learned ADPP gave up Muhammad Ashraf, PW, being unnecessary. Thereafter on 21.04.2011 Zafar Iqbal C/1392, Muhammad Aslam and Muhammad Ashraf PWs, were given up again being unnecessary. Hameed Asghar 144/C and Khadim Hussain 805/C were given up on 23.06.2011 while vide his separate statement recorded on 30.06.2011, learned ADPP also gave up Mohabbat Ali 365/C again being unnecessary.

8. The appellants and convict were also examined in terms of section 342, Cr.P.C.; wherein they opted neither to appear as their own witnesses in terms of section 340(2), Cr.P.C. in disproof of the allegations levelled against them in the prosecution version and also opted to lead evidence in defence. While replying to the question why this case against him and why the PWs deposed against him, Haleem appellant made the following deposition:- "It is a false case. All PWs in this case are related inter se and with the deceased. The present case was a blind murder and the actual culprits were not known to any one nor they could be traced out by the police. I was already involved in false cases by the local police and in all those cases I was not convicted in any case and was acquitted. The police being collusive with the complainant party stopped the entries of Roznamcha and when failed to trace out actual culprit the complainant with the connivance of local police falsely involved me in this false case on the asking of police. The. I.O. wanted to show his efficiency and as such he involved me in this false case to show his performance and he dishonestly investigated the case and falsely involved and challaned me in this case. The PWs have deposed against me to prove false and fabricated version against me and co-accused for blackmailing and to extract money from me and co-accused." While replying to similar question Nasir, Saleem son of Ali Muhammad appellant and Saleem son of Bakhsha convict adopted the statement of Haleem appellant.

9. Learned trial court after evaluation of all facts and circumstances and evidence available on record found the version of prosecution correct and as such recorded conviction/sentence in the terms stated above.

10. Learned counsel for the appellants while advancing his arguments, at the very outset, took the plea that nevertheless the case was registered under sections 302, 460, 148, 149, P.P.C., however, keeping in view the facts of the case provisions of section 396, P.P.C., are made out, which aspect of the case escaped notice of the learned trial court, therefore, the conviction is not maintainable in its present form. While discussing other aspects of the case, learned counsel urged that in the crime report only generalized role was ascribed to all the appellants and their other co-appellant, however, while appearing in the witness box, the prosecution witnesses improved their stance as recorded in their statements recorded under section 161, Cr.P.C. Learned counsel further argued that identity of the accused could not be established as neither the source of light qua lighting lantern seems to be plausible at odd hours of night nor the same was taken into possession by the Investigating Officer. It was next contended that in the scaled site plan no specific place stands mentioned at what point the accused had snatched amount/articles from the complainant and his brother. Learned counsel went on arguing that neither the Investigating Officer had collected any crime empty at the time of spot inspection nor there is any recovery memo in this regard, therefore, the report of Forensic Science Laboratory (Exh.PY) does not lend any support to the case of the prosecution. It was also argued that only fire shot made by Nasir Ali appellant inflicted solitary injury on the person of deceased, therefore, the learned trial court was not justified in recording capital punishment against all the appellants. Learned counsel finally submitted that the legal heirs of the deceased have entered into compromise with the appellants, as well as, convict against payment of qisas amount/compensation regarding which they have sworn their affidavits, as well as, made statements before the learned Sessions Judge, Okara, therefore, it is not a case of capital punishment at all, hence learned counsel prayed for reduction in sentence.

11. As against above, learned DDPP vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that although the occurrence had taken place at odd hours of night, however, the parties being well known to each other previously and in the light of lantern the prosecution witnesses had duly recognized the assailants. Learned DDPP further submitted that not only the prosecution witnesses at the time of making their statements had duly involved the appellants in the occurrence by giving minute details of mode/manner of occurrence rather the medical evidence is in exactitude with the prosecution version. It was next argued by learned DDPP that not only the articles snatched by the appellants at the time of occurrence were recovered rather the appellants/convict had also got recovered the crime weapons and during the course of investigation they were found guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. Moreover, all the appellants have previous criminal history of involvement in such like cases. It was finally argued that the prosecution proved its case against the appellants through leading straightforward, cogent and confidence inspiring evidence; therefore, the learned trial court was rightly justified in recording conviction/sentence against them.

12. We have heard arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellants, as well as, learned DDPP.

13. As far as the preliminary objection raised by learned counsel for the appellants that the learned trial court has erred in law while recording conviction under two separate heads viz. 302(b), P.P.C., and 460, P.P.C., whereas facts of the case attract the provisions of section 396, P.P.C., therefore, the case should be remanded back, suffice to say that provisions of sections 376/537, Cr.P.C. fully empower this Court to cure any illegality or irregularity while exercising powers even at appellate stage. Relevant portion of section 376, Cr.P.C. reads as under:-

376. Power of High court to confirm sentences or annul conviction. In any case submitted under section 374, the High Court (a) ........ (b) may annul the conviction and convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge; or (c) ........ (Underlining by us) Similar view was taken by Supreme Court of India reported judgment in Jumman and others case [PLD 1957 Supreme Court (India) 381]; wherein it was clearly held that the appellate forum is equally competent to cure any illegality at the time of disposal of the appeal/reference.

14. Now the question before this Court is that from the facts and circumstances available on record whether the prosecution has been able to establish its case against the appellants. In the instant case the prosecution version qua occular account was advanced by Muhammad Ifraheem complainant who appeared as PW-1 and Muhammad Mansha, who appeared as PW-2. Both the prosecution witnesses are supporting the prosecution case to the extent that the appellants mentioned in the crime report while armed with their respective weapons after trespassing into the house committed robbery and then Nasir Ali appellant had made a fire shot with his rifle hitting real brother of the complainant Muhammad Ashraf, which landed at his nose underneath the left eye and the same resulted into his death. While appearing in the witness box the witnesses of the occular account involved all the accused/appellants named in the crime report as the real culprits of the occurrence. The pen-picture of the occurrence qua mode and manner of occurrence is straightforward and inspires confidence due to the reason that both of them being inmates of the house are most natural witnesses of the occurrence. They remained consistent qua made, as well as, manner of occurrence, the role played by the appellants thereby giving its minute details. Despite lengthy cross-examination the defence failed to create any crack, which could be termed as material contradiction and considered fatal to the prosecution version as a whole. Therefore, having scrutinized the prosecution version of the occular account, we have arrived at the conclusion that the prosecution has established its case on occular account beyond shadow of reasonable doubt.

15. As far as the contention raised by learned counsel for the appellants that the only overt act, which had taken away the life of brother of the complainant was ascribed to Nasir Ali appellant, who had inflicted fatal short hence provisions of section 396, P.P.C., are not fully attracted in the instant case is concerned, to evaluate the contention of learned counsel for the appellants it seems advantageous to reproduce the provisions of section 396, P.P.C., which read as under:- "

396. Dacoity with murder. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which [shall not be less than four years nor more than] ten years, and shall also be liable to fine." From the bare perusal of the provisions of section 396, P.P.C., reproduced above, it is manifest that the legislature has introduced word "conjointly" in the said provision. To understand the intent and connotation of the word 'conjointly' provisions of section 391, P.P.C., are also of much significance as these are the only two provisions contained in Pakistan Penal Code where word 'conjointly' has been used, which reflects intent of the legislature while legislating the aforesaid provision. Plain meaning of word 'conjoint' in West's Legal Thesaurus/Dictionary has been fined as:- "Joined together; involving more than one in combination (conjoint robbery). United, combined, allied, coupled, associated, common, attached, connected, consolidated, coordinate, affiliated, cohesive, concerted, paired, federated, merged, linked." Similarly, in the Excellent Legal Words and Phrases, word 'conjointly' has been described in the following terms:- Word "conjointly" used in section 391, P.P.C., means jointly, in union or together. In the OXFORD Advanced Learner's Dictionary (8th Edition) under word 'conjoint' it has been averred as under:- "combining all or both the people or things involved." Similarly in Ninth Edition of BLACK'S LAW DICTIONARY, word conjoint has been described in the following terms:- "A person connected with another in a joint interest, obligation, or undertaking such as a cotenant or spouse. In Stroud's Judicial Dictionary of Word and Phrases word conjointly' has been defined as: "By a Canadian will there was a devise to A for life, remainder to B, C and D "conjointly and in equal shares, to be enjoyed by them during their natural life, and after their decease to their children". From the above abstracts of word 'conjointly' taken from different renowned dictionaries, one thing has become crystal clear that while defining word 'conjointly' it has been made clear that the role is contagious to each other. It is so interlinked and connected that the same cannot be separated from each other so in the description of the said word, no distinction would be made between any one of them and the quantum of contribution to each would not have any importance rather every participant of the crime would be liable for the act of the other to bring the case within the provisions of section 396, P.P.C.

16. It seems to be deviation from general principle wherein all cases of criminal nature majority of the judgments delivered and principles enunciated by the superior courts had focused upon the role played by an individual and the participation in the crime to evaluate but it is an exception to general principle where the role becomes immaterial and every one who becomes part of the unlawful assembly to commit such like crime is liable for the whole offence from the initiation of the crime till its materialization and no one can claim that he has less magnitude of participation as compared to others. This principle was taken up by the superior courts in so many cases time and again and the same was answered in the same spirit as mentioned above. In a celebrated judgment by the Indian Jurisdiction in the case of Shivappa and others v. Hyderabad State (AIR 1955 HYD. 147), provisions of section 396, P.P.C., were interpreted in the following terms:- Section 396 is enacted to declare the liability of other persons as co-extensive with that of the actual murderer, and, for this purpose, all that is required to be proved is that they should have been "conjointly committing" the dacoity and any death caused by a dacoit in the course of the dacoity would be murder, and attributed to all of them. The death need not be proved against anyone of the dacoits in particular, so long as death is the result of cumulative effect of the violence used by the gang. The accused are not allowed to plead that they do not know that the death will be the result of the violence used. Individual acts of violence do not require consideration for holding all the accused liable. They would fall for consideration only for fixing the appropriate sentence in respect of each of the accused. As far as the joint liability of the accused is concerned, the only things to prove are (1) that there was a dacoity, (2) which was the joint act of the persons concerned and (3) that the murder was committed in the course of the dacoity in question." Underlined for emphasis. Moreover, in another case of the Indian jurisdiction reported as Akeila Sheikh and another v. The State (AIR 1953 Assam 46), it was held that:- "Under S. 396, Penal Code, it is not required that the murder should be committed by a certain individual or by one amongst the dacoity to the knowledge of the rest of persons involved in the dacoity. Mere commission of murder in the course of dacoity is enough to invoke the provisions of S. 396, Penal Code, against all the persons who were conjointly committing the dacoity." In the Pakistani jurisdiction Hon ble Sindh High Court in a case reported as Geedo and others v. The State (1986 PCr.LJ 2192) it was held that:- "

S. 396/148

Dacoity with murder

Liability of participants

No discrimination would be made between any one of them and quantum of retribution to each would not depend on part played by each but every one of participants, held, would be liable for punishment provided under S. 396 Penal Code. Similar view was held in the case of Abdul Qayyum and others v. The State (PLD 2004 Karachi 232) and subsequently affirmed by august Supreme Court of Pakistan in the case of Ghulam Abbas and others v. The State (PLD 2006 Supreme Court 145).

16. As far as occular version of the case on the touchstone of the principles laid down and enunciated by the superior courts from time-to-time when taken into account with the statement of Dr. Sarfraz Ahmed Khan, Senior Medical Officer (PW-4) who had affirmed the locale/seat of injury on the person of deceased, not only it has fully substantiated the prosecution version furnished by the prosecution witnesses of the occular account viz. Muhammad Ifraheem complainant (PW-1) and Muhammad Mansha (PW -2) rather it strengthens the prosecution case. Moreover, recovery of crime weapons and reports of Forensic Science Laboratory, Chemical Examiner and Serologist further support the prosecution case. Hence, all these facts when taken in totality, it is manifest that the prosecution has ably established its case against the appellants beyond shadow of reasonable doubt.

17. Now question before this Court is whether from the facts and circumstances available on record the sentence already inflicted by the learned trial court is sufficient to meet the ends of justice. In order to resolve this proposition we have observed certain small cracks/dents in the prosecution case, which cannot be lost sight of easily. Admittedly at one stage compromise was effected between the parties but the same could not end into a logical conclusion. Moreover, there is only injury on the person of the deceased and the source of light mentioned in the crime report was not taken into possession, as well as, the recoveries effected by the Investigating Officer are of petty nature. When all these facts and circumstances are juxtaposed with the sentence inflicted by the learned trial court, it seems to be a bit harsh. Resultantly this Court is of the view that sentence of imprisonment for life would suffice for the safe administration of criminal justice to meet the ends of justice, which too is alternative sentence provided under the statute.

18. In sequel to what has been discussed above, Criminal Appeal No.1538 of 2011 filed by Haleem, Nasir Ali and Muhammad Saleem son of Ali Muhammad, appellants, is DISMISSED. However, the appellants are convicted under section 396, P.P.C., and sentenced to undergo imprisonment for life each with direction to pay Rs.1,00,000/- each and in case of default in payment thereof, they shall undergo S.I. for six months each. Benefit of section 382-B, Cr.P.C., is also extended in favour of the appellants.

19. Now the question arises what would be the fate of Muhammad Saleem son of Bakhsha/convict, who slipped away at the time of pronouncement of judgment and is still fugitive from law and the reference in this regard forwarded by the learned trial court is pending before this Court. We may observe here that while exercising suo motu revisonal jurisdiction in terms of section 435/439, Cr.P.C. this Court is empowered to examine the record and thereafter pass an appropriate order. This Court has examined the reference submitted by the learned trial court and also evaluated the whole record with the assistance of learned counsel for the parties. Admittedly the case of Muhammad Saleem son of Bakhsha/convict is on equal footing with that of his co-convicts as all of them are duly named in the crime report with specific role and while appearing in the witness box the prosecution witnesses had fully involved him as one of the assailants of the occurrence. Not only during the course of investigation after making disclosure Muhammad Saleem son of Bakhsha had got recovered crime weapon rather he was also found guilty during the course of investigation. Hence, it can safely be held that the prosecution had also succeeded in bringing home guilt of Muhammad Saleem son of Bakhsha convict. In view of facts and circumstances floating on the record referred to above coupled with the reasons given in the preceding paragraphs regarding conviction of other co- convicts, this Court is of the considered view that the prosecution had ably proved its case against Muhammad Saleem son of Bakhsha convict, who had not preferred appeal against his conviction and sentence recorded by the learned trial court and deeming it a fit case to exercise suo motu revisional jurisdiction while following the dictates of law laid down in the cases of Muhammad Ashiq Faqir v. The State (PLD 1970 Supreme Court 177), Muhammad Aslam and 5 others v. The State (1972 SCMR 194), Amin Ali and another v. The State (2011 SCMR 323), Muhammad Kassim v. Abdul Hamid Khan and others (PLD 1966 [W.P.] Karachi 331), Gauhra v. The State (1968 PCr.LJ 1118) and The State v. Muhammad Saleem and another (1985 PCr.LJ 960), we have been persuaded to convict him under section 396, P.P.C., and sentence to undergo imprisonment for life with direction to pay Rs.1,00,000/- as fine and in case of default in payment thereof, he shall undergo S.I. for six months. Benefit of section 382-B, Cr.P.C., however, is extended in favour of Muhammad Saleem son of Bakhsha, convict.

20. As far as perpetual warrants of arrest issued against Muhammad Saleem son of Bakhsha/convict by the learned trial court while announcing the impugned judgment are concerned, for the foregoing reasons, the same are directed to be modified accordingly. Office is directed to convey the order of this Court to the SHO of concerned Police Station through District Police Officer, Okara, in this regard.

21. Murder Reference No.343 of 2011 forwarded by the learned trial court in terms of section 374, Cr.P.C. for confirmation of death sentence inflicted upon Haleem, Nasir Ali, Muhammad Saleem son of Ali Muhammad and Muhammad Saleem son of Bakhsha/convicts is answered in NEGATIVE. Death sentence is NOT CONFIRMED. HBT/H-17/L Sentence reduced.