2012 P Cr. L J 63


Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi,JJ

IRFAN SAEED and others—Appellants


THE STATE and others—Respondents

Criminal Appeals Nos. 305 and 376 of 2010, decidedon 27th September, 2011.

(a) Penal Code (XLVof 1860)—

—-Ss. 302(b) & 148—Qatl-e-amd—Appreciation of evidence—Report of the occurrence having been lodged by the complainant within 30 minutes ofthe occurrence, there was hardly any time for deliberation orconsultation—Statements of the complainant and other eye-witness wereconsistent on material points—Said eye-witnesses were further corroborated bythe medical evidence, motive and the abscondence of accused—Despite lengthycross-examination consisting of 24 pages, no dent or contradiction, whatsoeverwas created in the statements of the said eye-witnesses and their veracitycould not be shaken—Accused went into hiding to avoid lawful arrest andremained absconder for about seven months, which was also a strongcorroborative piece of evidence—Prosecution had fully established the guiltof accused, who was singly charged for firing at the deceased—Substitutionwas a rare phenomenon and it was not possible that the close relatives of thedeceased would let the actual culprit scot-free and substitute an innocentperson for the commission of the offence involving capitalpunishment—Conviction and sentence awarded to accused by the Trial Courtunder S.302(b), P.P.C., were maintained and appeal to his extent wasdismissed—Community of intention and object having been disbelieved,conviction and sentence of accused under S.148, P.P.C. was set aside.

(b) Penal Code (XLVof 1860)—

—-Ss. 302(b), 148,149—Qatl-e-amd—Appreciation of evidence—Motive—Sentence—Motive wasalways hidden deep in the mind of accused and was a guess on the part of thewitnesses which was not an essential ingredient of the offence—Weakness orpresence of motive, or failure to prove the same, would hardly make anydifference in awarding sentence.

(c) Penal Code (XLVof 1860)—

—-Ss. 302(b), 148& 149—Qatl-e-amd—Appreciation of evidence—Commonintention—Scope—No evidence was on record to show pre-planning,pre-meditation, consultation and instigation against co-accused—Co-accusedwere only shown present at the spot and no overt act was attributed tothem—Inference of common intention would only be reached, if it was deduciblefrom the facts and circumstances of the case—All co-accused, deceased alongwith the eye-witnesses arrived at the scene of occurrence per chance similarlythe accused also came there suddenly without knowing that deceased had comethere—Co-accused in circumstances, had not shared common intention with mainaccused who was charged for firing at the deceased—Convictions and sentencesawarded to co-accused were set aside and they were acquitted of the chargeslevelled against them and were released, in circumstances.

(d) Penal Code (XLVof 1860)—

—-Ss. 302(b), 148& 149—Qatl-e-amd—Appreciation of evidence—Common intention—Toestablish common intention, it was necessary to have direct proof ofpre-planning, premeditation, consultation and instigation, which leads to theinference, or the incriminating facts must be incompatible with the innocenceof accused and incapable of any other explanation—Common intention wouldimply acting in pre-concert in pursuance of pre-arranged plan, which was to beproved, either from conduct or from circumstances or from incriminating facts.

Khawaja Muhammad Khan Gara and MianMuhibullah Kaka Khel for Petitioners.

Ishtiaq Ibrahim and Ikramullah Khan,A.A.-G. for the State.

Date of hearing: 27th September, 2011.


FAZAL-I-HAQ ABBASI, J.—We propose to dispose of Criminal Appeal No.305of 2010 filed by Irfan Saeed and Faisal Saeed sons of Muhammad Saeed Khan,Bashir Ahmad Khan son of Bahramand resident of Mingora District Swat, andCriminal Appeal No.376 of 2010 filed by Muambar Khan son of Anat Khan residentof Manglor District Swat, as both the appeals arise from the judgment dated25-3-2010 passed by the learned ASJ/Izafi Zilla Qazi-IV Swat, whereby theappellants were convicted and sentenced as follows:–

(i) Undersection 302-B, P.P.C. to imprisonment for life each.

(ii) Undersection 148, P.P.C. to one year’s R.I. each.

(iii) Rs.50,000each as compensation under section 544-A, Cr.P.C. payable to the legal heirs ofthe deceased or in default to undergo six months’ SI each. Benefit of section382-B, Cr.P.C. was extended to the appellants. All the sentences were directedto run concurrently.

2. Brief facts of the case given in the F.I.R.are that Nasir Khan (P.W.1) lodged a report on 14-10-2006 at 15.30 hours, whichwas recorded by Abdul Aziz Khan SI (P.W.3). The complainant stated that on theday of occurrence he along with Muhammad Khan, Purdil Khan sons of Bahader Khanresidents of Charbagh came to Mingora in the Motor Car owned by Muhammad Khan.After finishing the private work when they reached in Green Chowk, due to carton the way, he parked the vehicle on a side. Muhammad Khan was sitting on thefront seat while Purdil Khan on the rare seat. It was 15.00 hours, in themeantime from a nearby street Irfan, Faisal sons of Saeed Khan, Muambarresident of Manglor and Bashir resident of Mingora, along with another unknownperson, who could be identified by him, appeared and came near the Motor Car.Irfan Saeed, who was armed with a pistol fired upon Muhammad Khan, with whichhe was hit on head and died. He chased the accused, but they decamped. The deadbody of Muhammad Khan was taken by Purdil Khan to the Hospital. Motive for theoccurrence was stated to be the dispute over woman. He stated that his shirtwas also stained with the blood of the deceased. The occurrence was stated tobe witnessed by Purdil Khan besides him. The report was recorded in the shapeof Murasila Exh.P.A/1, which was signed by him and the same was sent through Barkat Ali FC No. 705 to PS and case vide F.I.R. Exh. P.A. bearing No. 2156 dated 14-10-2006 under sections 302/148/149, P.P.C. was registeredat Police Station Mingora District Swat.

3. Investigation was carried out by SulemanShah ASI (P.W.6) and after completion of investigation challan was submitted inthe Court.

4. Learned trial Court after compliance of thelegal formalities, framing of the charge, recording the statements of P.Ws.,statements of accused and hearing the arguments of the parties vide judgment dated 25-3-2010 convicted and sentenced the appellants asstated above.

5. The prosecution in order to prove its caseproduced as many as nine witnesses. Nasir Khan complainant appeared as P.W.1and he supported the version given in the F.I.R. Purdil Khan eye-witness wasexamined as P.W.2, who also supported the prosecution case. Lengthycross-examination consisting of 24 pages was conducted on these two eye -witnesses,but nothing material could be brought out nor any dent could be created intheir evidence.

6. Abdul Aziz SI (P.W.3) drafted the MurasilaExh.P.A./1 on the report of Nasir Khan (P.W.1).

7. Dr.Samiullah Khan (P.W.4) conductedpostmortem on the dead body of Muhammad Khan deceased on 14-10-2011 at 5-00p.m. and found the following:–

(i) Entrywound left ear near the left lobule about 4 x 4 c.m.

(ii) Exitwound right ear near the anti helix of the ear about 1/2″ in size. Bulletpierced the skull base of the brain damaged. Cause of death was stated due tothe damage to the base of the brain and haemorrhage.

Timebetween injury and death was less than four hours and between death andpostmortem examination less than six hours.

8. Nawab Khan SI (P.W.5) is the witness ofrecovery memo Exh.P.W.5/1 vide which blood through cotton was secured frominside the Motor Car, Purse containing Cash amount of Rs.3,460, threephotographs of the deceased, one Cheque Book, Telephone Diary, 10different Keys along with the Key Chain, two Mobile phone sets, .30 bore pistol alongwith Bandolier containing 2 Magazines, each containing 12 Cartridges along with License No. 857-DC/S dated21-5-1995 in the name of the deceased, black and white photographs along withMotor Car of the deceased were taken into possession through Memo Exh.P.W.5/1by the I.O.

9. Suleman Shah ASI (P.W.6) is theInvestigating Officer, who prepared the site plan Exh.P.B. at the pointation ofeye-witnesses, secured blood and different articles belonging to the deceasedand Motor Car through Memo Exh.P.W.5/1. He also secured blood through cottonExh.P.I from the front seat of the Motor Car through memo Ex.P.W.6/1, took intopossession blood-stained shirt Exh.P 3 belonging to Nasir complainant andthrough recovery memo Exh.P.W.6/6, took into possession shirt and shalwar bothblood-stained Exh.P.2 belonging to the deceased. All the recoveries wereeffected in presence of the marginal witnesses to the recovery memos. He sentthe blood-stained articles to Serologist through application Exh.P.W.6/8. Herecorded the statements of the witnesses. He also applied for warrants under section 204, Cr.P.C. against the accused, the warrants areExh.P.W.6/10 to Exh.P.W.6/13 and were handed over to the DFC for execution.Through application Exh.P.W.6/14 he applied for proclamation notices undersection 87, Cr.P.C. which were issued and are Exh.P.W.6/15 to Exh.P.W.6/18.Faisal, Bashir Ahmad and Muambar accused were granted ad interim pre-arrestbail by the Court, which was re-called on 23-11-2006, as such they werearrested by Suleman Shah ASI (P.W.6). Through application Exh.P.V.6/26 heapplied for physical remand of the accused on 23-11-2006 which was granted andon expiry of the remand on 27-11-2006 the accused were produced before theCourt, who were sent to Judicial lock up.

10. Suhrab Khan (P.W.7) is the witness of recoverymemos Ex.P.W.6/1, 6/5 and 6/6 referred to hereinbefore.

11. Rozi Gul (P.W.8) is the witness to thepointation of the place of occurrence made by Faisal accused.

12. Bahram Khan SI (P.W.9) arrested the accused Irfan on 13-5-2007 and obtained two days policecustody from the court and on 15-5-2007 produced the accused before the Court,who was sent to Judicial lock up.

13. After recording evidence of the above referredP.Ws. the learned court recorded the statements of the accused, who did not optto be examined on Oath under section 340(2), Cr.P.C. or produce any defenceevidence.

14. After hearing the arguments of the parties thelearned trial Court convicted and sentenced the appellants as referred toabove.

15. Mr. Khawaja Muhammad Khan Gara, Advocateappearing on behalf of Irfan Saeed, Faisal Saeed and Bashir Ahmad Khanappellants argued that it is highly improbable that the complainant who wassitting on the driving seat situated in close proximity of the deceased did notreceive even a scratch, therefore, the bullet made exit from injury ofdeceased. He further contended that the story of chasing of the accused by thecomplainant is highly improbable, because none would dare to chase a personholding a pistol in his hand. It was further contended that the car in questiondid not belong to the complainant and it was belonging to the deceased,therefore, the complainant is a chance witness, who has given the story ofchasing the accused, in order to cover delay in the F.I.R. Learned counsel also argued that the report was made at the spot and not in the Police Station and thesame also casts doubt on the prosecution story. It was also argued that the motivealleged in the F.I.R. was not proved He argued that the prosecution story ishighly improbable, not convincing and is, therefore, liable to be rejected.

Learned counsel further argued thatFaisal Saeed, Bashir Ahmad and Muamber Khan convict-appellants have not beenattributed any role either of exhortation or any overt act qua the deceased orthe witnesses, therefore, they deserve acquittal.

16. Mian Muhibullah Kakakhel, learned counsel forMuamber appellant argued that there is no evidence of pre-planning and no overt act has beenattributed to his client. As such he also deserves acquittal.

18. On the other hand Mr. Ishtiaq Ibrahim,Advocate for the complainant and Mr. Ikramullah Khan the learned AAG appearingfor the State argued that the appellants are charged in a promptly lodgedF.I.R. and that the eye-witnesses’ account is corroborated by the medicalevidence, recoveries from the spot, motive and abscondence of Irfan Saeedaccused. They further argued that all the convict-appellants are equally liablefor the commission of murder of Muhammad Khan deceased and they are liable tobe convicted and sentenced and submitted that their appeals be dismissed.

19. Arguments heard and evidence was minutely gonethrough.

20. Perusal of the record shows that the report ofthe occurrence was lodged by Nasir Khan (P.W.1) within 30 minutes of theoccurrence. There was hardly any time for deliberations or consultations.Statement of Nasir Khan (P.W.1) and Purdi Khan (P.W.2) are consistent onmaterial points. These eye-witnesses are further corroborated by the medicalevidence, motive and the abscondence of Irfan Saeed convict-appellant. Despitelengthy cross-examination consisting of 24 pages, meant for manipulation oferror and bringing contradictions in the statements of P.Ws. no dent orcontraction whatsoever was created in the statements of the said eye-witnessesand their veracity could not be shaken. The medical evidence given by P.W.4also corroborates the testimony of P.Ws.l and 2. P.W.1 denied the suggestionthat there was no dispute over the woman, while Purdil (P.W.2) who happened tobe the brother of the deceased stated in his cross-examination that sister ofIrfan and Faisal married with the deceased on which they were annoyed. Even otherwisemotive is always hidden deep in the mind of the accused and is a guess on thepart of the witnesses, which is not an essential ingredient of the offence.Weakness or presence of motive or failure to prove the same would hardly make any difference in awarding sentence.

21. Irfan Saeed appellant went into hiding toavoid lawful arrest and remained absconder for about seven months, which isalso a strong corrotorative piece of evidence. The prosecution fullyestablished the guilt of Irfan Saeed appellant, who is singally charged forfiring at the deceased. Substitution is a rare phenomena. It is not possiblethat the close relative of the deceased would let the actual culprit scot-freeand substitute an innocent person for the commission of an offence involvingcapital punishment.

22. As far as the case of Faisal Saeed and BashirAhmad appellants in Criminal Appeal No. 305 of 2010 and Maumbar appellant inCriminal Appeal No.376 of 2010 are concerned, there is no evidence ofpre-planning, premeditation, consultation and instigation against them. Theywere only shown present at the spot. No overt act was attributed to them.Inference of common intention would only be reached if it is deducible from thefacts and circumstances of the case. It is necessary to have a direct proof ofpre planning, premeditation, consultation and instigation, which must lead tothe inference or the incriminating facts must be incompatible with theinnocence of the accused and incapable of any other explanation. Common intentionimplies acting in pre-concert in pursuance of pre-arranged plan, which is to beproved either from conduct or from circumstances or from incriminating facts.

23. In the present case all the accused, deceasedalong with the eye-witnesses arrived at the scene of occurrence per chance andsimilarly the accused also came there suddenly without knowing that deceasedhad come there, therefore, in the facts and circumstances of the case it isdifficult to hold that Faisal Saeed, Bashir Ahmad and Muamber Khan sharedcommon intention with Irfan Saeed, the main accused charged for firing at thedeceased. In this view of the matter conviction and sentences of Irfan Saeedunder section 302(b), P.P.C. are maintained and the Criminal Appeal No.305 of2010 to his extent is dismissed. However, as we have disbelieved the communityof intention and object, therefore, we set aside his conviction and sentenceunder section 148, P.P.C. Moreover the amount of compensation shall berecoverable as arrears of land revenue provided under section 544-A(2), Cr.P.C.We partially allow Criminal Appeal No.305 of 2010 to the extent of Faisal Saeedand Bashir Ahmad, we also allow Criminal Appeal No.376 of 2010 filed by MuambarKhan and set aside the convictions and sentences awarded to them throughjudgment dated 25-3-2010 by the learned ASJ/Izafi Zilla Qazi-IV Swat and acquitthem of the charges levelled against them. They shall be released forthwith ifnot required in any other case.

H.B.T./338/P Orderaccordingly.