ZOOR ZAMEEN Versus State
AFTAB AHMED GORAR, J .---This Criminal Appeal is directed against the judgment dated 25.02.2019, passed by learned VIIIth Additional District and Sessions Judge, Karachi-Central in Sessions Case No.1775 of 2017, whereby appellants have been convicted under section 265-H(ii), Cr.P.C. for the offence 302, P.P.C. and sentenced to suffer life imprisonment and further convicted for seven years for the offence 324, P.P.C. and imposed fine of Rs.5,00,000/- each to the legal heirs of Arshad Khan and Rs.100.000/- each to Mst. Shabina as compensation under section 544-A, Cr.P.C. However benefit of section 382-B, Cr.P.C. was extended to the appellants. The appellants have prayed for setting aside of the said judgment, conviction and for their acquittal from the charge of the case, on the facts grounds mentioned in the appeal.
2. Prosecution story in nutshell is that complainant Abrar son of Noor Badshah lodged FIR stating that on 22.07.2017 when he was at his village he was informed by one of his relative namely Tahir Khan that Arshad Khan has been murdered by some one in his house and his wife Mst. Shabina is also injured. On receiving this information, he reached Karachi from Peshawar by Air; his sister in law Mst. Shabina was under treatment in Jinnah Hospital, thereafter he shifted her to Civil Hospital for treatment of her jaws. His Sister in law disclosed that today in morning at about 05:30 hours her father Zoor Zameen Gul, her brother Muhammad Yousuf and her cousin Muhammad Ishaque fully armed with weapons came at her house and thereafter accused Muhammad Ishaque firstly fired and killed Muhammad Arshad Khan by firearm injury and then critically injured her. The case was registered against the accused persons and present appellants were arrested while accused Ishaque absconded. On completion of usual investigation, the appellants were charge sheeted. At trial, charge was framed by the court to which the accused pleaded not guilty and claimed trial.
3. To support its case, prosecution examined PW-1 the complainant Abrar at Exh:9 who produced statement under section 154 Cr.P.C.; PW-2 Mst. Shabina at Exh: 11, PW-3 Fareed at Exh: 12 who produced memo inspection of dead body at Exh:13 and report under section 174, Cr.P.C. at Exh.14; PW-4 PC Akbar Shah at Exh.15, PW-5 SIP Shamin Ahmed at Exh.16 who produced memo of site inspection at Exh. 17, Site plan at Exh.18. photographs at Exh.19, letter to FSK at Exh.20, letter to Chemical Examiner at Exh.21. letter to MLO at Exh.22, letter to DPO Malakand at Exh. 23, letter to SP Investigation at Exh.24, Chemical Examiner report at Exh.25 and FSL Report at Exh.26; PW-6 MLO Muhammad Khalid at Exh. 27 who produced post mortem report at Exh.28, death certificate at Exh. 29 and police letter at Exh. 30, PW-7 Dr. Noor-un-Nisa at Exh. 31 who produced police letter at Exh.32, MLC at Exh.33 and call up notice at Exh. 34: PW-8 ASI Amanullah at Exh. 35, who produced FIR at Exh.36.
4. On conclusion of prosecution evidence, side of prosecution was closed vide Exh.
37. The statements of the accused were recorded under section 342, Cr.P.C. and it appears that neither they examined themselves on oath under section 340(2), Cr.P.C. nor led any evidence in their defense.
5. It is argued by learned counsel for the appellants that the appellants have falsely been implicated in this case; that the impugned judgment has been passed against the very spirit of law and basic requirement of the natural justice and is the result of misreading and mis-appreciation of the evidence. He contended that star witness Mst. Shabina in her deposition did not assign any role to the present appellants and medical evidence also does not connect the appellants with the commission of crime. He further contended that FIR has been lodged with the delay of 17 hours without any explanation. Learned counsel next submitted that the prosecution case is resting entirely on circumstantial evidence then each piece of evidence collected must provide all links making out one straight chain. To support his contentions learned counsel relied upon the case of Nabi Bakhsh v. Abdul Hakeem and another (2019 YLR 240), Taj Bahadur alias Taji and another v. The State (1997 MLD 1072), Khurram Shahbaz v. The State (2017 MLD 2017), Sajjad alias Sajju and others v. The State (2018 PCr.LJ 1064), Hajan and another v. The State (2014 PCr.LJ 1123) and the case of Shah Bali and another v. The State (2016 PCr.LJ 549).
6. Learned counsel for the complainant supported the impugned judgment and contended that the prosecution has proved the charge against accused persons. He further contended that the evidence of star witness Mst. Shabina is unshattered and corroborated by medical evidence. He submitted that deceased was murdered due to contracting love marriage therefore motive is also proved. He further contended that the appellants are fully involved in the case as they had shared common intention and planned to murder the deceased. To support his contentions, he has relied upon the cases of Shoukat Ali v. The State (PLD 2007 Supreme Court 93), Ali Imran v. The State (PLD 2006 Supreme Court 87) and the case of Muhammad Mansha v. The State (2001 SCMR 199). Learned DPG Sindh while adopting the arguments of learned counsel for the complainant submitted that the trial court after thorough examining the record, has rightly convicted the appellants. She further submitted that the evidence of injured star witness Mst. Shabina coupled with the medical evidence is sufficient to bring guilt home to the appellants and that the Trial Court has rightly recorded the conviction of the appellants which deserves no interference.
7. I have given due consideration to the record and arguments of learned counsel for the parties.
8. Perusal of the impugned judgment shows that trial court after thoroughly examining the record and the evidence passed the judgment by convicting the appellants as mentioned above. It is an admitted fact that deceased Arshad and Mst. Shabina contracted love marriage and defence had failed to discard the impression of enmity during evidence. The trial court in the impugned judgment has observed that the appellants are residents of KPK and their arrival at Karachi along with co-accused Ishaque at Karachi duly armed with weapon shows their motive to kill the deceased. Mst. Shabina has categorically deposed that despite armed with weapon both the appellants they did not play any overt act and both shots were given by her cousin, the absconding accused Ishaque. If Mst. Shabina intended to falsely involve the appellants in this crime, she would have definitely assigned specific roll which was not done by her and she deposed truly, though the appellants are her real father and brother. In her examination in chief she has stated that both the appellants are real culprits and they be punished for the offence.
9. It may not be out of place to mention here that the object of section 34, P.P.C., which was incorporated along with section 302, P.P.C. in the present case, was to meet a case in which it might be difficult to distinguish between acts of individual members of party or to prove exactly what part was taken by each of them in the occurrence. The reason both the appellants were deemed guilty in such case was, that presence of accomplices gave encouragement, support and protection to person actually committing the act. The appellants in the present case had nourished grudge against deceased and these were appellants who emerged at the scene along with co-accused Ishaque duly armed with deadly weapons which depicted common intention and prior concert of mind and being facilitator and abettor they remained present at the place of occurrence. As regards the submission of learned counsel for the appellants that the appellants had no intension to kill the deceased it may be noted that section 34, P.P.C. was not a punitive section and it did not enact a rule of evidence but enacted a common law principle of substantive law. Section 34, P.P.C. embodied common sense principle that if two or more persons intentionally did a thing jointly, it was just the same as if each of them had done it individually. Common intention implied acting in concert in pursuance of pre-arranged plan which was to be proved either from conduct or from circumstances or from incriminating facts. Words "in furtherance of common intention of all" had introduced as an essential part of section 34, P.P.C. the element of common intention prescribing conditions under which each person might be criminally liable when there were several actors. Common intention was an intention to commit crime actually committed and each accused person could be convicted of that crime, only if he had participated in that common intention. The presence of appellants at the place of incident with absconding accused Ishaque with weapons shows their intention that they were in consonance with him and their complete silence at the time of incident shows their acquiescence, therefore, the argument of learned counsel for the appellants that the appellants had no common intention of killing the deceased has no weight.
10. Admittedly, the complainant is not eye-witness of the incident and he has lodged the FIR on basis of statement of Mst. Shabina who being injured person of the incident is only eye-witness. She was subjected to cross-examination but nothing beneficial to accused could be elicited from her and few minor contradictions having no substantial bearing on merits of case could be ignored safely. The prosecution witnesses had no enmity to get accused/appellants involved in heinous offence like murder and instigation as no grudge had been alleged against them. It may not be out of place to mention here that in assessing the value of evidence of eye-witnesses, it was necessary to examine whether in facts and circumstances of the case their presence at the scene was to make it possible for them to witness occurrence and whether there was anything inherently improbable or unreliable in their evidence. Prosecution witnesses in the present case were not interested witnesses and their version had been rightly believed by the trial court.
11. In the present case, the incident, place of occurrence and presence of the injured prosecution witness remained unchallenged. The appellants' claim that they have no intention to kill or injure the deceased and Mst. Shabina is an admission that they were present at the scene of occurrence but the mode of commission of offence was controverted. The injured prosecution witness had given a detailed account of the incident by attributing the entire responsibility to the accused in respect of fire-armed injuries sustained by her and her deceased husband. Evidence of Mst. Shabina was duly supported by medical evidence, positive report of Forensic Science Laboratory Report of Serologist, recovery of empty cartridges from the place of occurrence and her evidence was rightly considered by the Trial Court in the given circumstances.
12. Suffice is to say that learned counsel for the applicant by making lengthy submissions and placing reliance on case laws, which are of no help in view of facts and circumstances of the case, only intended reversal of impugned judgment which being based on sound and cogent reasons does not warrant any interference by this Court, therefore, after hearing the learned counsel for the parties, by a short order dated 21.04.2020, the appeal in hand was dismissed and above are the reasons for the said short order.
SA/Z-21/Sindh Appeal dismisse