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Petitioner: Abdul Aziz and 2 others VS Respondent: The State
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Abdul Aziz and 2 others vs The State Case No.:Criminal Appeals Nos. 547-J, 551-J, 546-J and Murder Reference No. 47 of
JUDGMENT
Reported As: 2023 YLR 2120 Result: Order accordingly. Judgment JUDGMENT MUHAMMAD AMJAD RAFIQ, J.---Abdul Aziz, Muhammad Ahmad and Abdul Rasheed, appellants were prosecuted on the charges under sections 302/ 324/337-F(v)/34, P.P.C. based on the information in a registered criminal case bearing FIR No.149 dated 22.03.2014, Police Station Gaddai, D.G. Khan. On conclusion of trial vide judgment dated 29.03.2018 handed down by learned Additional Sessions Judge, Dera Ghazi Khan they were convicted and sentenced as under: - (Abdul Aziz, accused/appellant) Sentenced to Death under section 302(b), P.P.C. for qatl-i-amd of deceased Nazar Hussain with compensation of Rs:200,000/- under section 544-A, Cr.P.C., in default to further undergo six months SI. Sentenced to imprisonment for life under Section 302(b), P.P.C. read with Section 34, P.P.C. for sharing common intention with Muhammad Ahmad convict for causing qatl-i-amd of Muhammad Ali deceased. Sentenced to rigorous imprisonment for ten years under section 324, P.P.C. with fine of Rs. 50, 000/-, payable to Muhammad Imran injured, in default whereof to further undergo SI for six months. Under Section 337-F(v), P.P.C. to pay Daman of Rs.50,000/- to Muhammad Imran injured and sentenced to rigorous imprisonment for five years; Sentenced to imprisonment for 10 years with fine of Rs. 50,000/-under section 324, P.P.C. for sharing common intention with Abdul Rasheed appellant for causing injury to Sajjid Hussain. In default to further undergo SI for six months. (Muhammad Ahmed, accused/ appellant)
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Sentenced to Death as Ta'zir under section 302(b), P.P.C. for qatl-i-amd of deceased Muhammad Ali; with compensation of Rs. 200,000/- under section 544-A, Cr.P.C., in default six months S.I. Sentenced to imprisonment for life under Section 302(b), P.P.C. read with Section 34, P.P.C. for sharing common intention with Abdul Aziz convict for causing qatl-i-amd of Nazar Hussain deceased; Sentenced to imprisonment for 10 years with fine of Rs. 50,000/-under section 324, P.P.C. for sharing common intention with Abdul Rasheed appellant for causing injury to Sajjid Hussain. In default to further undergo SI for six months. (Abdul Rasheed, accused/ appellant) Sentenced to imprisonment for life under Section 302(b), P.P.C. read with Section 34, P.P.C. for sharing common intention with convicts Muhammad Ahmad and Abdul Aziz convicts for causing qatl-i-amd of Nazar Hussain and Muhammad Ali deceased along with compensation of Rs.200,000/- under section 544-A, Cr.P.C and in defult to further undergo SI for six months. Sentenced to rigorous imprisonment for ten years under section 324, P.P.C. with fine of Rs.100,000/-, payable to Sajjid Hussain; He was ordered to pay Arsh which shall be 15% of Diyat under section 337-A(iv), P.P.C. to be paid to Sajjad Hussain injured along with rigorous imprisonment for 10 years. All the sentences were ordered to run concurrently; yet no finding was given about extension of benefit under section 382-B, Cr.P.C. Against above convictions and sentences the accused/appellants have preferred independent criminal appeals i.e. Crl. A. No.547-J of 2018, Crl. A. No.551-J of 2018 and Crl. A. No. 546-J of 2018 whereas, Murder Reference No.47 of 2018 has been sent by the learned trial court for confirmation of death sentence, or otherwise. All these matters are being decided through the instant judgment. 2. Three brothers burdened with pain of divorce to their sister by Nazar Hussain reacted upon his arrival to Pakistan after four years and staged a crime scene near to marriage venue of their cousin Akhtar Hussain for satiation of their vengeance; it was on 22.03.2014 at about 11.00 in the night when after the musical program Muhammad Azhar/complainant along with Nazar Hussain, Sajjid Hussain/brothers, Muhammad Ali/ father and Muhammad Imran reportedly were going back to their home when halted just outside the marriage venue by the accused/appellants while hurling lalkara for teaching lesson to Nazar Hussain. In the situation, Abdul Rasheed caught up the complainant; for his rescue, Nazar Hussain and Muhammad Ali stepped forward; Ahmad made a pistol shot which landed on right eye of Muhammad All whereas Abdul Aziz pistol fire shot hit Nazar Hussain on his chest (stands corrected on the same day as on the back); second fire of Abdul Aziz hit Imran on his left wrist. Abdul Rasheed made a tire shot which hit Sajid Hussain on his cheek. One Fiaz also inflicted injuries on the person of Muhammad All with a club. The whole Panorama alleged as stands on the crutches of common intention. 3. On receiving information about the occurrence, Kaleem Ullah Sub-Inspector (PW-8) reached DHQ Hospital D.G. Khan, recorded statement of the complainant (Ex.PC), prepared injury statements of deceased persons namely Muhammad Ali (Ex.PN) and Nazar Husssain (Ex.PO); prepared injury statements of injured persons namely Muhammad Imran Ex-PP and Sajjid Hussain (Ex.PQ). Thereafter, he reached the place of occurrence and prepared rough site plan (Ex.PR), took into possession 13 crime empties P-14/1-13 through recovery memo Ex.PI. On 04.05.2014, Abdul Aziz was arrested who was riding on the motorcycle which was taken into possession under section 550, Cr.P.C., on 23.03.2014 he moved an application (Ex.PT) to the Revenue Officer for preparation of scaled site plan. Thereafter, the investigation was entrusted to Muhammad Nawaz SI (PW-9), who on 12.10.2014 arrested accused Ahmad and Abdul Rasheed and obtained their physical remand. He interrogated both the accused while on physical remand in the presence of Muhammad Sajjid and Muhammad Asif; Muhammad Ahmad accused disclosed that he could get the pistol 30 bore
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recovered with which he committed the occurrence; he led the police party including PWs and got recovered pistol 30 bore (P-12) along with three live bullets (P-1311-3), sealed the same into parcel and took the same into possession through recovery memo (Ex.PF); Abdul Rasheed accused got recovered pistol 30 (P-10) along with two live bullets (P.11/1-2) which were made into sealed parcel and took the same into possession through recovery memo (Ex.PE). He recorded statements of PWs Muhammad Sajjid and Muhammad Imran under Section 161 Cr.P.C. Ultimately, finding all three accused as guilty, report under section 173 Cr.P.C. was sent to court. 4. The accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried. During trial, to prove the ocular account the prosecution examined Muhammad Azhar complainant (PW-4)., Sajjid Hussain (PW-5), Muhammad Akmal (PW-6) for ocular account and Kaleem Ullah SI/I.O Muhammad Nawaz SI/I.O (PW-8 and PW-9) Investigating Officers of the case; Dr. Muhammad Imran (PW-12) had conducted medical examination of Muhammad Imran and Sajjid Hussain injured and autopsy of Nazar Hussain and Muhammad Ali (deceased); the rest of the witnesses are almost formal in nature and their statements revolve around the functions which they performed during investigation. The learned ADPP closed the case for the prosecution by tendering some documents in evidence. On close of prosecution case, in the statements under section 342, Cr.P.C. appellants alleged their nomination due to enmity yet through suggestions to PWs they tried to develop the argument that murders were committed due to firing made in jubilation by the complainant party and also a fact that one Ghulam Abass informed the police through a call to Rescue service 1122 and later filed a private complaint against the complainant party in which they were summoned by the court concerned, but on revision Honourable High Court set aside such summoning order, which was finally assailed before Honourable Supreme Court but met the same fate closing the chapter introduced by said Ghulam Abass. Accused/ appellants opted not to appear in the witness box as required by section 340(2), Cr.P.C. however, produced certain documents and closed the case for the defence. 5. Learned counsel for the appellants in a low tone attempted to give a blow to prosecution case regarded it as lurking in conflict of medical evidence with respect to fire on the person of Nazar Hussain on one side and on the other he questioned the different memos, showing police proceedings, which do not carry the names of appellants against the word "Banam" telling it a blind occurrence. Whereas Prosecution case theory held by learned counsel for the complainant was porched on consistent testimony of injured PWs from the day one even with a touch of inline medical evidence and the corrigendum of complainant on the same day with respect to locale of injury on the person of Nazar Hussain deceased; with a support of situation he relied on case reported as "Saeedullah Khan v. The State" (1986 SCMR 1027). Learned Deputy Prosecutor General also stood firm beside the complainant's counsel with respect to culpability of accused/appellants acclaiming the availability of standard proof i.e. proof beyond reasonable doubt against the appellants. 6. We have heard the arguments of proponent and the opponents and with their able assistance have gone into minute scrutiny of evidence on the touchstone of standards required for reappraisal of evidence. 7. Ocular account furnished by complainant PW-4 and Muhammad Akmal PW-6 supported by two injured witnesses Sajid Hussain PW-5 and Muhammad Imran PW-11 who stated the narrative of prosecution in consistent, coherent and confidence inspiring way while mapping all-necessary details encompassing the effective roles of the appellants in confirmity with prosecution story. The identity of accused in the dark night though was not disputed yet sufficient light was available near the crime scene due to marriage function and it was admitted position that parties were ascending or descending cousins, therefore, identity remained no issue throughout even to role of the accused/ appellants. Though all the witnesses were related to the deceased and injured, yet
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they cannot be termed as interested because their presence at the event of marriage of their cousin was natural. Question raised by learned counsel for the appellants about missing names of accused in different memos was also attended; it has been observed that names of accused/ appellants are mentioned in inquest report as well as in unsealed site plan which were the primary documents prepared at the crime scene when police first visited in response to information of crime. It has been observed that even after joining the accused into process some of the documents also do not contain the name of accused against the word "Banam" which at the most could be regarded as slackness on the part of police; even otherwise Police Rules, 1934 does not specify a format of such memo for spot recoveries; therefore, it has no bearing or adverse impact on the consistent prosecution evidence which is strong enough on the ocular side. 8. Medical evidence ran from the moment when the injuries viewed during the occurrence by the PWs stood verified through prompt medicolegal examination of two injured witnesses and the postmortem of two deceased by PW-12, Dr. Muhammad Imran. Though primarily one injury on the front of chest was wrongly spoken by the complainant for reporting the crime yet thorough second statement on the same day it was told as on the back whereas two witnesses remained firm in stating the role of accused/ appellants since inception. Even otherwise in a state of panic it is not expected from a witness to state the roles of accused with such precision so as to expect a photographic narration. Reliance is on "Saeedullah Khan v. The State" (1986 SCMR 1027). Doctor declared the injuries as result of firearm weapon and description stood matched with the inter se distance between the appellants and targeted victims as reflected from the explanatory evidence in the form of site plan. The distinguished roles of appellants have taken their roots in the opinion of doctor as well when he responded during cross-examination like as under; "It is correct that dimension of injuries on the injured persons namely Muhammad Imran and Sajjid Hussain are different interse." ............................................................................................................................ "The dimensions of injuries on the persons of deceased Muhammad Ali and Nazar Hussain pertaining to entry wounds were different." Medical evidence lends support to ocular account to tile up the path to gallows for the responsible accused and concretes the prosecution case against the accused/ appellants. 9. Weapon of offence told as pistols recovered on the lead of accused/ appellants were used by the prosecution to obtain evidence of its matching with crime empties secured from the crime scene. The safe custody of such weapon and transmission chain remained intact up to Punjab Forensic Science Agency supported by the deposition of relevant PWs resulted in generation of expert report Exh. PZC showing the mechanical operating condition of pistols of all the accused/appellants and their matching with some of the crime empties out of total 13 and it has created a big support to prosecution as corroborative piece of evidence. 10. Motive plays a vital role in determination of criminal liability of the perpetrators when they are claimed to have shared common intention, however, in this case no serious effort was made to throw light with more zeal on such part of the story; mere production of divorce certificate and passport of Nazar Hussain does not absolve the prosecution to bring on the record the relevant evidence through the witnesses. Therefore, despite there being a joint venture, something went missing to complete the picture on the basis of information suspected to be withheld by the parties. However, it is proved that accused/appellant came armed at the place of occurrence for doing something wrong. Accused/appellants did not prefer to adduce defence evidence despite their early effort to distort the facts that occurrence took place due to firing in jubilation and availability of a video film of marriage ceremony containing some facts contra to prosecution case, yet no such video was produced during the trial nor investigating officer PW-8 Kaleem Ullah SI was aware of such video. The claim of the defence that occurrence took place at the spur of the
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moment, therefore, appellants cannot be expected to have shared any common intention in commission of offence and they are liable for sentence on the basis of their individual roles if the case is proved against them. In the arena of common intention different parameter are in vogue which are applied and depending upon the facts of each case, principle of vicarious liability changes its meaning to outline an appropriate sentencing regime. It has been thrashed in depth in this case to see its proper application corresponding to claim and evidence of the parties. 11. Substantive criminal law bears `Common intention syllogism' since century or so which boiled out from the factual inquiry in different criminal cases for determination of vicarious liability of accused in commission of an offence for the purpose of sentencing. Legal literature inbox of common law jurisdiction is replete with judicial precedents commenting upon the true interpretation of this principle. The principle up and down goes materialized to cover the purpose that no offence should go unchecked and no offender should go unpunished and that too with proportionate sentence. Our Judicial system also experienced such kind of situations which were responded with philosophical attentions, scholarly discourse and, lo, the verdicts celebrated for many decades have created our own data base to rely on and apply in a particular case to catch the criminal liability rest on the communion of minds. Pakistan Penal Code, 1860 (P.P.C.), the statute of general criminal law in Pakistan courageously explains the application of principle of common intention in different situations through Sections 34, 35, 36, 37 and 38 of P.P.C. relevant to indicate the true spirit. Thorough search of judicial precedents reflects that these sections have been interpreted many a time to give it pleased meanings with different angles and connotation while keeping common intention apart from similar intention which is at variance and also differs to knowledge as well. An omnibus application for joint crime liability of all the accused in a venture irrespective of their roles is the very basis of section 34 of P.P.C. whereas sections 35, 36 and 37 with a subtle change diminishes or encompasses the joint liability with different tones though within the four wall of section 34, P.P.C. whereas section 38 with a shift to the preceding sections ordains that if offenders concerned in criminal act commit different offences during an episode of crime, every person shall be liable for his sentence to the extent of his role. For reference section 38 of P.P.C. is reproduced; 38. Persons concerned in criminal act may be guilty of different offences: Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. This section has been referred in following judgment as an apt application:- "Haji Khudai Dost and another v. The State" (2005 PCr.LJ 520 FSC) "A plain reading of above provision would reveal that section 34, P.P.C would-be applicable to those cases only in which it may be difficult to distinguish between the acts of individual members of a party who acted in furtherance of common intention of all or to prove exactly what' part was played by each of them otherwise section 38, P.P. C . would come into play which provides; that "where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that "act". Since in the instant case, none of the prosecution witnesses have uttered a single word that there was preconceived plan at the part of the accused persons to commit the offence of robbery or they acted in furtherance of common intention of all, therefore, in the absence of requisite proof, in any view, section 34, P.P.C. could not have been applied to the instant case and the-appellants were liable for the acts done by them individually within the purview of section 38, P.P.C. It would be pertinent to mention here that in all those cases, in which occurrence takes place all of a sudden on account of chance and encounter between the parties, as it appears in the instant case, the application of principle of vicarious criminal liability would be out of question. This view receives support from the following reported judgments:
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(i) Khadim Hussain and 3 others v. The State 1991 PCr.LJ 2323; (ii) Sabuz Hussain Shah and others v. The State PLD 1987 Pesh. 164; (iii) Muhammad Sharif and 2 others v. The State PLD 1981 Lahore 191; (iv) Iqbal and others v. The State 1990 ALD 741(2) and (v) Misbahuddin and others v. The State 1983 PSC 72." In the precedent reported as "Bhaba Nanda Sarma and others v. The State of Assam" (AIR 1977 Supreme Court 2252), with respect to application of section 38 P.P.C.; the citation AIR 1964 SC 1263 was referred as follows; "With reference to S. 38, P.P.C., the learned Judge observed at p. 178 (of SCR) (at P. 1267 of AIR); That is to say even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation. The illustration which is given clearly brings out that point.......................... Lastly S. 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge. On the basis of above observation, while judgment speaks as follows; "Applying the principle of law under S. 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two. He can be held guilty only under S. 304, Part II as he had intentionally joined in the commission of an act with the knowledge that the assault on Shashi was likely to result in his death. The facts of this case indicate that Bhaba Nanda shared the common intention of his other two brothers for the commission of a lesser offence than murder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder. 7. For reasons stated above, the appeal of appellants Phanidhar and Bhaba Nanda is partly allowed. His conviction is altered from S. 302/34 to S. 304, Part II read with S. 34. The sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years only. The conviction of all the appellants under Ss. 323/34 is also maintained. 12. Section 38 of P.P.C. is based on the principle that common intention does not mean the similar intention and it also differs to knowledge of act of co-accused. This principle has been defined as under:- "Muhammad Akbar and 2 others v. The State" (PLD 1991 Supreme Court 923) "12. From the above-referred cases, 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 strong 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." "State of Maharashtra v. Prabhakar Pandurang Sangzgiri" (PLD 1965 SC (Ind.) 176). To have same intention independently of each other is not to have common intention. Common intention requires a pre-arranged plan. There must be a prior meeting of minds. Several persons can simultaneously attack a man and each may have the same intention, namely the intention to kill
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and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a pre-arranged plan. In a case like that each would be individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously. Gun was snatched from co-accused and fatal shot was made; co-accused not responsible because Knowledge is not same thing as intention; "Abdul Waheed and another v. The State" (1988 PCr.LJ 645). The principle further takes support of interpretation:- Section 34, P.P.C. not to be applied lightly; vicarious liability cannot be visited unless some strong circumstances exist showing common intention. Mere presence of a person on the spot does not attract the provision of section 34, P.P.C. "Hasan Din v. Muhammad Mushtaq" (1978 SCMR 49) No intention to kill on the part of the accused could be inferred from the evidence, who had disassociated himself after giving blow to the deceased. "Piran Dita v. The State" (1993 SCMR 1934) Involved in beating but not stepped forward to commit murder, "Bashir Ahmad and others v. The State" (PLD1988 SC 68) Common intention to be judged from all the circumstances of the case and not from one fact only. The co-accused had caused the fatal blow before the appellant arrived. As the appellant caused only simple injuries on non-vital parts of body, he was convicted under section 324, P.P.C. only and awarded 3 years' R.I. "Pervaiz Akhtar v. The State" (1985 SCMR 1422). 13. Common intention can be shared at the spur of the moment and in such situation, sentence must correspond to individual act; the principle gets clarification through following precedents; Common intention can be formed at the spur of…
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