RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Jail Appeal No,49 of 2001 and Confirmation Case No,2 of 2001, as they arise out of a common judgment.
2. The present appeal is directed against the judgment dated 28-4-2000, passed by the learned IIIrd Additional Sessions Judge, Larkana, in Sessions Case No,166 of 2001 (State v. Khan Muhammad and others). Under the impugned judgment the learned Judge convicted the appellant Noor Ahmed, under Section 302, P.P.0 and sentenced him to death and fine of Rs,50,000. In case of recovery of fine half of the amount was directed to be paid to the legal heirs of the deceased. The appellants Khan Muhammad and Bago alias Yar Muhammad were convicted under section 302 read with section 34, P.P.0 and sentenced each of them to suffer imprisonment for life and fine of Rs,50,000, with benefit of section 382-B, Cr.P.C.
3. Brief facts of the prosecution case, as disclosed in the F.I.R, lodged by complainant Muhammad Soomar on 4-2-1991 at 7.00 p.m., are that on 4-2-1991 at 5.15 p.m., after offering Asr prayers in a mosque of his village he was going to his house. When he reached near the shop of Parwano, he heard a firearm report. Thereafter, he saw the appellants Noor Ahmed and Bago alias Yar Muhammad, armed with guns and appellant Khan Muhammad, armed with hatchet coming from opposite side of the street and crossed him in a haste. When he reached at the shop of Parwano, he found his son Fakhruddin lying injured with firearm injuries. P.Ws Parwano and Azizullah were present there. On enquiry, both the P.Ws disclosed to him that appellants Noor Ahmed and Bago alias Yar Muhammad, armed with guns and appellants Khan Muhammad, armed with hatchet came at the shop. The appellants Noor Ahmed fired from his gun at the deceased Fakhruddin, who was also sitting there. After receiving the injuries, the deceased fell down on the ground. The appellant Bago alias Yar Muhammad. Made aerial firing and thereafter the appellants ran-away.
On the cries and gunshot reports, several villagers came there. The deceased was taken to the Civil Hospital for medical treatment where he died. Then the complainant went to police station and lodged the report. The complainant disclosed motive in the F.I.R that his elder son Irshad Ali was married with the daughter of Saleh about six months back from the date of incident. The appellants, who were his relatives, were annoyed and since then, they were not on speaking terms.
4. The police started the investigation. They went to the place of incident from where they secured blood stained earth and five pellets under a Mashiranama. The police arrested the appellants. After completing the usual investigation, the appellants were challaned in the Court.
5. On 27-1-1993, a charge under section 302/34, P.P.0 was framed against the appellants but they pleaded not guilty.
6.In support of the case, the prosecution examined eleven witnesses. P.W.1 was complainant Muhammad Soomar. He gave the same details of the incident as disclosed by him in the F.I.R which facts are mentioned above. He further added that the P.Ws Parwano and Azizullah informed him that the appellant Khan Muhammad instigated the other appellants to kill the deceased and thereafter the incident took place. P.W.2 Parwano and P.W.3 Azizullah are eyewitnesses. They gave the same details of the incident and supported the prosecution case except that P.W.2 Parwano did not speak about the instigation of the appellant Khan Muhammad. They also deposed that they informed the incident to the complainant. P.W.4 PC Nadir Hussain was a corps bearer. P.W.5 Zamir Hussain was Mashir of inspection of the dead body, inquest report and place of incident from where according to him; the police secured blood-stained earth and one empty cartridge. His further examination-in chief was reserved for want of original Mashirnama but subsequently the prosecution did not examine him. As such his evidence has lost its importance. P.W.6 Dr. Muhammad Yaqoob was Medical Officer. His evidence reveals that on 4-2-1991, he received the dead body of the deceased and found the following three injuries on his person.
(a) One lacerated punctured wound 3 cm x 3 cm at right anterior chest 4 cm below right nipple (wound of entry)
(b) Four lacerated punctured wound 1 cm x 1 cm at the right anterior chest surrounded by injury No,1 (wound of entry).
(c) Six lacerated punctured wound 1 cm x 1 cm at right back laterally scattered area of 7 cm x 5 cm (wound of exit).
7. The Medical Officer opined that the deceased died instantaneously after receiving the injuries and the time between death and post-mortem was four hours and 45 minutes. The injuries were the result of one firearm shot P.W.7 Muhammad Siddique was process server. He deposed that SIP Abrar Hassan the Investigation Officer had expired. P.W.8 Muhammad Anwar was Tapedar. He prepared the sketch of the place of incident. According to the Sketch, which was prepared on the pointing out the place of incident by P.Ws Parwano and Azizullah, the appellant Khan Muhammad and Bago alias Yar Muhammad, were shown to be standing in the street outside the shop, P.W.9 Inspector Sahib Shah was Investigation Officer. He submitted the interim challan before the Court.
P.W.10 Koural was co-Mashir of the inspection of dead body, inquest report, place of. Incident.
According to him, the police secured blood-stained earth and five pellets from there. He also acted as Mashir of arrest of the appellants and recovery of gun from the possession of the appellant Noor Ahmed PW-11 ASI Muhammad Ramzan was conversant with the signature of investigation officer SIP Abrar Hassan. He verified the signatures of Abrar Hassan appearing on the F.I.R and other documents. Thereafter, the prosecution closed their side.
8. The appellants in their statements recorded under section 342, Cr.P.C., denied all the allegations of the prosecution. They claimed to be innocent. They did not examine themselves on oath or lead any evidence in their defence.
9. After considering the material available on record and hearing the parties' counsel, the learned trial Judge convicted the appellants, as mentioned above, under the impugned judgment.
10. We have heard the advocate for the appellants, State counsel and perused the record of this case very carefully. At the outset the learned Advocate for the appellants has stated that the statements of the appellants recorded under section 342, Cr.P.C, do not bear the certificate of the Court as required under section 364, Cr.P.C., therefore, the case is required to be remanded to the trial Court as held in several authorities of High Courts and Federal Shariat Court. On the said proposition, he has relied upon Muhammad Kalam v. State (1999 MLD 55), (FSC). Nadir Khan v.
State (2002 MLD 1873), Mst. Azima v. State (PLD 2001 Quetta 1, Muhammad Aslam v. State (PLD 2001 Quetta 20). He has further stated that the decision of the Federal Shariat Court is binding upon this Court by virtue of Article 203-GG of the Constitution of Islamic Republic of Pakistan, 1973.
11. On merits of the case, the learned advocate for the appellants has not challenged the finding of the trial Court about the involvement of appellant Noor Ahmed but requested for his reduction in sentence. With regard to the other two appellants, he has stated that the allegation against the appellant Khan Muhammad is that of Lalkara but the evidence of the two eyewitnesses on the said point is contradictory to each other; that the allegation against the appellant Bago alias Yar Muhammad is of making aerial firing but no empty cartridge was secured from the place of incident, therefore, his involvement has not been proved. He has further stated that mere presence of the appellants at the place of incident is not enough to convict them on the ground of common intention as it has not been proved that they shared common intention with the appellant Noor Ahmed for the commission of this crime. On the proposition of merely issuing Lalkara he has relied upon Muhammad Ashraf v. Faiz Ali (PLD 1975 SC 556), Mohammad Shafi v. State (1974 SCMR 263), Muhammad Shafi v. State (1970PCr.LJ 868).
12. On the other hand, learned State counsel has stated that the non-availability of certificate on the statements of the appellants under section 342, Cr.P.C, is not an illegality but it is an irregularity, which can be cured under section 537, Cr.P.C. He has relied upon on an unreported judgment of the Hon'ble Supreme Court of Pakistan in a case of State v. Ajab, Criminal Petition No,86-K of 2001, decided on 13-11-2001. On the factual aspect of the case, he has stated that the case against the appellant Noor Ahmed has been fully supported by two eye witnesses namely, P. Ws Parwano and Azizullah; that their evidence has been supported by the complainant, therefore, the case against the appellant Noor Ahmed has been proved, as such normal sentence of death is not required to be reduced. With regard to appellant Khan Muhammad and Bago alias Yar Muhammad, he has stated that the evidence of both the eye witnesses are contradictory on the point of Lalkara made by Khan Muhammad and no empty was secured from the place of incident to prove that the appellant Bago alias Yar Muhammad had made aerial firing, therefore, their case is distinguishable from the case of appellant Noor Ahmed. He has further stated that from the facts and circumstances of the case, the common intention between the appellants have not been proved, therefore, the case of the appellants Khan Muhammad and Bago alias Yar Muhammad is doubtful.
He has not supported the impugned judgment against the said appellants.
13. We have given due consideration to the arguments of the learned counsel for the appellants, State counsel and perused the evidence with the assistance of learned advocate for the appellants.
14. As regards the legal objection raised by the advocate for the appellants about the non- availability of certificate on the statements of the appellants recorded under section 342, Cr.P.C.
The required certificate is appended under subsection (2) of section 364, Cr.P.C, which reads as under:-- "(2). When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge or such Court, and such Magistrate or Judge shall certify under his own hand that the examination was. Taken in his presence and hearing and that the record contains a full and true account of the statement made by accused."
13. We have examined the said statements and found that the statements bear the signatures of the appellants and the Court. However, the required certificates are missing on the said statements. It is pertinent to point out that the appellants have not alleged that their statements were not recorded in the presence and hearing of the Court, or that the Court did not put questions to them, or that they did not give any replies to the said questions to the Court, or that the Court did not record the said replies at all or recorded them improperly, or that they did not put their signatures on their statements, or that the Court did not sign the same or that the record does not contain the full and true of their statements. In the absence of the above mentioned objections coupled with the signatures of the appellants and the Judge appearing on the said statements are by itself proof that the same were recorded in the presence and hearing of the Court and the record contains the full and true account of the statements of the appellants. Had any of the above mentioned objections been taken or raised then the said objections could have been considered and resolved but in the absence of such objections merely non-availability of the certificate which may be due to inadvertence, ignorance, mistake or any other bona fide reasons, does not amount to an illegality but it is merely an irregularity, which can be cured under section 537, Cr.P.C. Merely non-availability of certificate in the circumstances of the case neither mislead nor prejudiced the appellants nor occasioned a failure of justice.
16. In view of above discussion it is clear that some of the requirements of the above provision of law such as signatures of the appellants and the Court were complied with directly and the remaining were deemed to have been complied with indirectly.
17. Learned advocate for the appellants has relied upon the above mentioned five authorities on the proposition that if the trial Court did not append the required certificate on the statements recorded under section 342, Cr.P.C, then it had vitiated the trial and, therefore, the cases were remanded to the trial Court. Out of them, one is the decision of Federal Shariat Court, in the case of Muhammad Kalam (supra), whereas another is the decision of Division Bench of this Court, delivered in the case of Nadir Khan (supra). The learned advocate for the appellants has stated that by virtue of Article 203-GG of the Constitution, 1973, the decision of the Federal Shariat Court is binding upon this Court. There are now two opinions about the Article 203-GG of the Constitution, 1973. It is pointed out that the same question was examined by a Full Bench of Federal Shariat Court in a case of Shah Nawaz v. State reported in PLD 1986 FSC 242. Before the Full Bench, similar objection was raised and some authorities were relied upon in support of the said proposition but the arguments were repelled. At pages 245 and 246 it has been observed as under:-- "4. It was vehemently contended that absence of the certificate obligatory under section 364, Cr.P.0 vitiated the trial. The decision cited do support the plea of the counsel but with due deference we find that the attention of the learned Judges who decided those cases was not drawn to the provisions of section 533 of Cr.P.C. It is being reproduced for appreciating the controversy in its true prospective. `533. (1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.
(2) The provisions of this section apply to Courts of Appeal, Reference and Revision.'
' A bare reading of this section 'makes it abundantly clear that the defect in recording statement of the accused is curable if it had not injured the accused, as to his defence on the merits. The matter is not res Integra, under section 537, Cr.P.C, any omission, error, or irregularity in the proceedings during trial would not render the sentence or finding passed by a competent Court to be reversed or altered if it has not occasioned a failure of justice. The learned counsel for the appellants has not been able to show that absence of certificate on the statement of the accused has prejudiced him in defence or occasioned a failure of justice.
5. It will not be out of place to mention here that in both the cases there are certificates appended to the statements of the accused but these are affixed by rubber stamp and not in the hand of the Presiding Officer. As the certificate would be treated to be not one as required by subsection (2) of section 364 Cr.P.0 which reads:-
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the, record contains a full and true account of the statement made by the accused.'
It is explicit that certificate has to be in the hand of trial Judge and the rubber stamp certificate does not fulfill the requirement of law. But as observed earlier the absence of certificate on the statement of the accused recorded under section 342, Cr.P.C, would be fatal only if it can be shown that by its omission the accused has been injured in his defence on merits and it has in fact occasioned a failure of justice. Mere possibility or probability of a failure of justice is not sufficient which is also not the case of the appellants. The learned counsel has not said a word in what way by absence of certificate failure of justice has occasioned. The rubber stamp certificate was affixed on the close of the statement of the accused in the presence of the accused and his counsel which is signed by the Presiding Officer but no objection was raised before the trial Court by the accused or his counsel. The explanation of section 537, Cr.P.C, lays down that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here no objection to the absence of certificate on the statement of the accused was taken at the trial stage, the same cannot be said to have occasioned a failure of justice so as to vitiate the proceedings."
18. It appears that the earlier decision of Full Bench was not quoted or brought to the notice of the Division Bench in the case of Muhammad Kalam. However, the decision of Full Bench will prevail upon the decision of Division Bench.
19. As regards the case of Nadir Khan, which was delivered by a Division Bench of this Court, it is pointed out that the same point was examined by another Division Bench of this Court in the case of Liaqat Ali v. State 2002 PCr.LJ 230 but took a contrary view. However, the point was finally raised before the Hon'ble Supreme Court of Pakistan in the case of State v. Ajab (supra), in an appeal filed by the State against the decision of another division bench of this Court on the above point in which it was held that the absence of the certificate as required under section 364, Cr.P.C, is an illegality that had vitiated the trial and remanded the case. But the Honourable Supreme Court of Pakistan set aside the said decision and observed as under::-- "We have gone through the judgment impugned. Prima facie, the reasons advanced by learned Judges to remand the case look strange, particularly, when the statement was being recorded by the learned trial Judge in his presence and putting his signature on the statement by itself constitutes its certificate. Accordingly, we convert this petition into appeal and allow the same."
18. Reliance is also placed on a case of Hazrat Jamal v. State reported in PLD 1958 SC 383.
19. Thus, the non-availability of certificate as required under section 364, Cr.P.C, is an irregularity, which can be, cured under section 537, Cr.P.C,. The arguments of the learned advocate for the appellants have no force at all.
20. Now we will come to the factual aspect of the case. In order to prove`the case the prosecution have relied upon ocular testimony of two witnesses, viz. P.W.2 Parwano and P.W.3 I3ago alias Yar Muhammad. They have categorically stated that the appellant Noor Ahmed fired from his gun at the deceased, which hit him. Their evidence reveals that just after the incident complainant reached the place of incident. P.Ws informed the incident to him. He also corroborated the statements of P.Ws on the above point. The evidence of eyewitnesses is further corroborated by the medical evidence, which shows that the deceased had received firearm injuries and died because of the said injuries. As such the prosecution have proved the case against the appellant Noor Ahmed.
23. As regards the cases of appellants Khan Muhammad and Bago alias Yar Muhammad, allegation against Khan Muhammad is that he had instigated the other appellants to kill the deceased. The evidence of P.W.2 Parwano is silent about the saki instigation. Whereas P.W.3 Azizullah deposed that Khan Muhammad instigated the other appellants. As such, there is conflict between the eyewitnesses on the above point. The prosecution alleged that appellant Bago alias Yar Muhammad made aerial firing. In such a situation, the empties of cartridge should have been present at the place of incident but the mashir Koural did not speak about recovery of any empty cartridge from the place of incident. According to him, only five pellets were secured from there.
None of the witnesses or even the complainant deposed that the police secured any empty cartridge from the place of incident. On the contrary, the complainant deposed that the police secured pellets and blood stained earth from the place of incident. Thus, non-availability of empty cartridge at the place of incident clearly shows that no aerial firing was made at the place of incident. As such, the allegation that appellant Bago alias Yar Muhammad made aerial firing has not been proved.
24. From the evidence of P.Ws it has only been proved that the appellants Khan Muhammad and Bago were present at the scene of incident and they were found running-away from there.
25. Now it is to be seen whether mere presence of the appellants at the scene of incident attracts the provisions of section 34, P.P.C. The Hon'ble Supreme Court of Pakistan examined the same point in a case of Hasan v. State reported in 1969 SCMR 455. It has been held that mere presence of the accused would not be sufficient to attract the provisions of section 34, P.P.C, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention.
It has also been held in Hasan Din v. Muhammad Mushtaq 1978 SCMR 49 and at page 51 in paragraph 9, it has been observed as under:-- "9. In our view the learned counsel has misconceived the correct application of section 34, P.P.C.
The mere presence of a person on the spot does not necessarily attract section 34, P.P.C. This section is not to be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstance to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt."
26. In the present case, we have observed that the prosecution have failed to prove the part of instigation or aerial firing against the appellants Khan Muhammad and Bago alias Yar Muhammad, respectively. No other overt act has been assigned to them nor there is any material on the, record to show that the said appellants shared common intention with the appellant Noor Ahmed. As such their case is distinguishable from the case of appellant Noor Ahmed. Therefore, they are entitled for benefit of doubt.
27. Above are the reasons of our short order dated 31-10-2003, by which we had disposed of the above matters in the following manner.
For the reasons to be recorded separately, the appeal is partly allowed. The convictions of and sentences awarded to the appellants Khan Muhammad and Bago alias Yar Muhammad, are set aside. The conviction of appellants Noor Ahmed, is maintained for offence under section 302(b), P.P.0 , and the death sentence is maintained. The confirmation reference is also accepted and the sentence of death is confirmed. As regards the fine, the same is modified to the extent that Rs,50,000 shall be paid by appellant Noor Ahmed as compensation to the legal heirs of deceased under section 544-A, Cr.C.P. The appellants Khan Muhammad and Bago alias Yar Muhammad may be set at liberty if not required in any other case. The appeal and confirmation reference stand disposed of in above terms."