2014 P Cr (PLP)

FAROOQ ALI CHANNA, J.

Appellants abovenamed have filed separate Criminal Appeals against the common judgment dated 4th December, 2009 passed by learned IVth Additional Sessions Judge, Karachi South at Judicial Courts Complex, Jail Road, Karachi in Sessions Case No. 803 of 2005 culminated F.I.R. No.187/2005, Police Station Baloch Colony convicting and sentencing the appellant Fareedon under section 394, P.P.C. for 10 years, under section 397, P.P.C. for 7 years, under section 452, P.P.C. for 3 years and under section 302, P.P.C. for imprisonment for life. Appellant Aamir Naveed being abettor was convicted under section 114, P.P.C. and was awarded same sentence as that of appellant Fareedon. The appellants were extended benefit under section 382-B, Cr.P.C.

2. It would be appropriate to mention that the Criminal Jail Appeal No.559 of 2010 filed by appellant Fareedon was hopelessly time-barred, the trial Court has passed the impugned judgment on 4-12-2009 whereas the appellant has filed the Criminal Jail Appeal on 11-11-2010 with delay of 11 months. Besides the appeal being time-barred, per prosecution the complainant Muhammad Yaqoob has lodged F.I.R. that on 26-9-2005 he with his family was available in his flat situated on the first floor when at about 11-15 a.m. a person entered the flat and on gun-point asked the complainant to hand over whatever they have, on which the women folk raised cries which attracted Fateh Alam. The culprit due to cries, left the flat and while going down through staircase saw Fateh Alam who was coming up, the culprit fired at him which hit his chest, meanwhile people of locality came there, the complainant Muhammad Yaqoob, P.Ws. Noor Alam, Shahzad and other locality people apprehended the culprit and beaten him. The apprehended culprit disclosed his name to be Fareedon, he also disclosed that he and one Naveed had come in Taxi No. PL-9762, Naveed was sitting in taxi and sent him towards the flat saying that he (Naveed) was known to them. P.W. Noor Alam also informed the complainant that he had seen a person alighted from taxi and ran away. In the meanwhile police mobile came there, the complainant narrated the incident and handed over the apprehended culprit to police, and removed Fateh Alam to hospital but he succumbed to his injuries in the way.

3. The complainant in his evidence before the trial Court has narrated the incident in detail and identified both the appellants to be the same accused. The complainant was cross-examined but the defence Counsel failed to extract anything favourable to appellant Fareedon. There is no improvement or exaggeration in the evidence of complainant Muhammad Yaqoob, his evidence is also corroborated by other witnesses Noor Alam and Shahzad, they both have fortified themselves to the extent of apprehending the appellant Fareedon at spot while he was trying to run away after causing fire shot to deceased Fateh Alam, During cross-examination they both have admitted that they had not seen the appellant Fareedon causing the fire shot to deceased. This shows that both the witnesses have deposed what actually they had seen. Both the witnesses were cross-examined at length however nothing has come on record to create even a slight doubt in prosecution case. The Investigating Officer in his evidence before the trial Court has deposed in detail whatever evidence he had collected during investigation. The appellant has not alleged enmity against any prosecution witness compelling them to give false evidence against him complainant's version that appellant Fareedon was beaten by people of locality such version was supported by medical evidence of Dr. Muhammad Shafi Patoli who examined the injuries on the person of appellant. Dr. Muhammad Shafi Patoli in his evidence has deposed that on 26-9-2005 ASIP Waryam Khan brought accused Fareedon for examination, treatment and Certificate. He examined the injured and found following injuries on his person:-- (1) Abrasion size 1 cm x 1 cm over nose. (2) Bruise 6 cm x 4 cm over right side of shoulder (3) Bruise 8 cm x 6 cm over left side of shoulder. (4) Lacerated would 1 cm x 3 cm over right occipital region bone was not exposed. Learned Defence Counsel did not cross-examine the Medical Officer nor suggested) that how the appellant sustained the said injuries. Learned Counsel for the appellant during arguments has submitted that there are contradictions in the evidence of prosecution witnesses which makes the prosecution case doubtful, however he was unable to point out any contradiction. The learned Counsel also failed to point out any reason of false implication of appellant by the prosecution witnesses as such the prosecution has succeeded to prove the charge against the appellant without any shadow of reasonable doubt. The judgment against the appellant is based upon unimpeachable evidence with cogent reasons, hence does not require interference of this Court.

4. Per prosecution the case against appellant Aamir alias Naveed is that he abetted accused/appellant Fareedon in commission of the above offence and had accompanied him to place of occurrence but remained in taxi outside the flat of complainant and as soon as he heard fire shot report, he ran away. Per prosecution the complainant has not implicated the appellant Amir alias Naveed in this case, the appellant was joined as an accused on the statement of co-accused/appellant Fareedon, who soon after being apprehended made statement before the people of locality and police disclosing the name of Amir alias Naveed to be his associate and abettor, instigating him to enter the house of complainant for committing robbery, on knowing this fact the police recorded the statement of taxi driver Khurshed who informed the police and also deposed before the trial Court that on 26-9-2005 two persons came to him and hired his taxi for going to Civil Hospital. While going towards hospital said persons took him to Street No.18, Sector H, Manzoor Colony saying that they had to take a file from the house. When they reached in Gali No.18 one person proceeded towards the house whereas the other one sat in the taxi. After sometime they heard fire shot report on which person sitting in taxi alighted and ran away. He also saw one person in injured condition coming down from the flat, he took injured to hospital, however the said injured expired on the way. The taxi driver has further deposed that he also identified the person apprehended by the people of locality be the companion of escaped person who hired taxi. P.W. Khursheed also identified and picked up appellant Amir alias Naveed in identification parade held before Judicial Magistrate. The witness during cross-examination has denied that the appellant Amir alias Naveed was shown to him at P.S before the identification parade was held, he has also denied that he was detained at P.S. for three days and was compelled to give evidence against the appellant Amir alias Naveed however he has admitted that he resides in Gali No.20 of same vicinity. P.W. Khursheed corroborates the statement/discovery made by co-accused/ appellant Fareedon. P.W. Noor Alam has also corroborated the contents of F.I.R. and has deposed before the trial Court that when he came out of his house, he saw accused/appellant Fareedon running towards street and appellant Naveed who was sitting in taxi, alighted from taxi and ran away. P.W. Muneef has also supported the prosecution and has deposed before the trial Court that Faqir Muhammad brought his son Amir alias Naveed and requested him to produce his son before police as his son was involved in the murder of Fateh Alam. This piece of evidence of P.W. Muneef was not rebutted during cross-examination. Learned defence Counsel has argued that the identification test of appellant Amir alias Naveed was held after 14 days of incident, such identification has no sanctity in the eye of law as during said period, showing possibility to show the appellant to witness cannot be overruled. P.W. Khursheed, the Investigating Officer and Judicial Magistrate in their evidence have explained the delay in holding the identification parade and have deposed that after the arrest of appellant the Investigating Officer made request to the learned Judicial Magistrate, who fixed the date for identification parade on 6-10-2005 however on that date he was on leave therefore the date was re-fixed for 10-10-2006. Learned Counsel for the appellant has failed to point out any illegality/ or irregularity in the procedure adopted by the Judicial Magistrate for conducting the identification parade except the delay which was properly explained as such the prosecution has succeeded to prove that appellant Aamir alias Naveed being associate of co-accused/appellant Fareedon was available outside the flat of complainant. However, with view of above facts and circumstances to determine the act of appellant Amir alias Naveed whether comes within the meaning of abetment, I will refer to section 111, P.P.C. which reads as under:-- Section

111. Liability of abettor when one act abetted and different act done:

When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it. Proviso:

Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which constituted the abetment.

5. From the above provision it is clear that if a person instigates another to perpetrate a particular crime and the other person in pursuance of such instigation, not only perpetrates that crime, but in the course of doing so, commits another crime in furtherance of it, the former is criminally responsible as an abettor in respect of such last mentioned crime, if the person, at the time of the instigation, knows that in the ordinary course of things probably another crime has to be committed in order to carry out the original crime. In the instant case per prosecution appellant Amir alias Naveed abetted Fareedon who was armed with pistol, for committing the offence of robbery, in ordinary course is deemed to be aware of probable consequence of crime abetted, this theory finds support from the conduct/act of appellant who soon after hearing the fire shot report, escaped from the scene without waiting to know that what has happened. The identical point had been examined by the Judicial Committee of the Privy Council in the famous case of Brendra Kumar Ghosh referred in a case reported as (Ghullam Qadir v. The State) PLD 1960 Supreme Court (Pak) 254 (nature of incident is different) and had held that:-- "Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things', they also serve who only stand and wait."

6. For the above reasons and the provisions of law referred to hereinabove the trial Court was justified in convicting the appellant Amir alias Naveed and awarding the same sentence as that of appellant Fareedon, in terms of section 114, P.P.C., as such the impugned judgment does not require to be interfered by this Court. Both the appeals are dismissed accordingly. However all the sentences shall run concurrently. AG/A-55/K Appeal dismissed.