JUSTICE CH. EJAZ YOUSAF (MEMBER)--- This petition for leave to appeal is directed against the judgment, dated 25-1-2006 passed by a Division Bench of the Federal Shariat Court, whereby appeal filed by the appellant against his conviction and sentence under section 396,P.P.C.
Recorded by Sessions Judge/Zilla Qazi, Kohistan Dassu, was dismissed.
2. Briefly stated, the prosecution case as gathered from the available record is that a case under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was registered as Police Station Doobair, District Kohistan vide F.I.R. Exh.P.A. On 5-12-2001 as per Murasila/report of P.W.8 Faqir Hussain A,S.-I, It was alleged in the report that the complainant was on Gasht duty and as he reached Bazar Jamal he learnt that a dead body of a person was lying on Kalooz Banda/Sundar Nala, He, therefore, immediately rushed to the spot and find a dead body lying on the road side. Gul Naseeb petitioner and one Anwar were present near the dead body. On the query made, Gui Naseeb disclosed that deceased Haji Abdul Tawab had a factory of plastic footwear in Batgram. He loaded shoes in the Datsun Pick-up and went to Challas on 4-12-2001. On 5-12-2001, while they were on their way back home, about 7:00 p.m., three persons, who were present on the road, cautioned the vehicle to stop. No sooner the vehicle was halted, then one of the aforementioned three persons pulled Haji Abdul Tawab out of the vehicle and carried out his body search. His waistcoat, containing some money in it, was forcibly snatched. On Haji Abdul Tawab's disclosure that he had identified the said culprit, one of the culprits fired at Haji Abdul Tawab who as a result died instantly. Since it was alleged by the complainant that the story put forth by the petitioner appeared to be suspect, therefore, he was joined in the investigation, in course whereof he confessed his guilt, and therefore, was produced before Illaqa Qazi who recorded his confessional statement, whereas the remaining accused persons, remained at large and could not be apprehended.
3. Charge was accordingly framed to which the petitioner pleaded not guilty and claimed trial. The prosecution, in order to prove the charge and substantiate the allegations levelled against the petitioner, produced nine witnesses in all. P.W.1 Ali Asghar is the witness of recovery memo.
Exh.P.W.1/1, whereby blood-stained clothes of the deceased containing bullet mark, were taken into possession by the police. P.W.2 Khawaj Muhammad had escorted the dead body to the hospital Batgram for post-mortem examination P.W.3 Anwar is a witness of the occurrence. He had accompanied the deceased from Batgram to Challas and was also with him on the return journey.
P.W.4 Shah Jehan was an employ of the hotel at Kalooz Banda where, deceased along with aforementioned two eye-witnesses had stopped on their way back home. P.W.5 Muhammad Tariq, A.S.-I. Had registered the F.I.R. On the basis of the report. P.W.6 Muhammad Javed, at the trial had deposed that in his presence Investigating Officer had taken into possession the vehicle No,PRJ- 2818 belonging to the deceased along with duplicate copy of a permit, a note book and other documents along with a sum of Rs,13,000. P.W.7 Dr. Shah Alam had on 6-12-2001 conducted post- mortem examination on the dead body of the deceased. P.W.8 Faqir Hussain, A.S.-I., had sent the report i.e, (Exh.P.A./1) to the police station on the basis whereof F.I.R. Was subsequently, registered.
P.W.9 Mr. Muhammad Ibrahim, Illaqa Qazi, had recorded confessional statement of the petitioner.
On conclusion of the prosecution evidence the petitioner was examined under section 342, Cr.P.C.
In his above statement the petitioner denied the charge and pleaded innocence. He, however, failed to lead any evidence in his defence or to appear as his own witness under section 340(2), Cr.P.C. After hearing learned counsel for the parties, learned trial Judge convicted the petitioner and sentenced him to the punishment as under:-- Under section 396, P. P. C .Imprisonment for life with a fine of Rs,50,000 and in default to further undergo two years' R.I.
Benefit of section 382-B, Cr.P.C.
Was also afforded to the petitioner.
' Being aggrieved the petitioner filed appeal before the Federal Shariat Court, which was dismissed vide the impugned judgment, hence, this petition.
4. We have heard Mr. Niaz Ahmad Rathore, Advocate Supreme Court for the petitioner and Mr. Mehmood Ahmad Sheikh, Advocate Supreme Court on behalf of Advocate-General, N.-W.F.P. And have also gone through the available record with their assistance.
5. Mr. Niaz Ahmad Rathore, learned counsel appearing for the petitioner has urged that the petitioner was involved in the crime merely on suspension as the evidence was deficient to warrant conviction; that since the confessional statement was inculpatory, therefore, conviction could not have been recorded on the basis thereof; that if at all, the confessional statement and the prosecution evidence was to be believed, even then the sentence inflicted on the petitioner was on the higher side because he was not sharing common intention with other accused person to kill the deceased. Neither he had abetted the offence of murder nor had he any knowledge that the deceased would be killed. He added that as per confession of the petitioner, it was absconding accused Doraj who fired at the deceased and the petitioner's role was limited to simply stopping the vehicle at the signal made by the absconding accused persons, for the purpose of robbery.
6. Mr. Mehmood Ahmad Sheikh, learned Advocate Supreme Court, on the other hand while controverting the contentions raised by the learned counsel for the petitioner has submitted that since guilt of the petitioner was fully brought home at the trial, through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. He, however, candidly conceded that he would have no objection if, keeping in view the role attributed to the petitioner in the crime, the sentence of imprisonment inflicted on him is reduced.
7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties. As regards the first contention raised by the learned counsel for the petitioner that since the evidence was deficient, therefore, the petitioner could not have been convicted for the offence, it may be pointed out here that the prosecution case is primarily based on the confessional statement of the petitioner recorded by P.W.9 Illaqa Qazi Mr. Muhammad Ibrahim on 6-12-2001, who has at the trial testified the same to be voluntary and truthful. The confessional statement in question finds corroboration from the statement of P.W.3 Muhammad Anwar and P.W.4 Shah Jehan, the evidence of recoveries and the medical evidence. The petitioner in the said confessional statement had admitted inter alia, that he was on friendly terms with the absconding co-accused Doraj. On 4-12-2001 the deceased asked him to take him to Challas for selling goods there. They went to a Petrol Pump in the Datsun. In the meanwhile Doraj met him and inquired about his destination. Doraj was a professional dacoit. He conspired with him to stop the vehicle on the next day on their return journey so that the deceased could be robbed of the cash. On the next day they reached near Kalooz Banda Hotel at about 7-00 p.m. When they, after taking meal in the hotel, started journey, Doraj and his companions signaled them to stop at some distance. He i.e, the petitioner, halted the vehicle, whereupon Haji Abdul Tawab was pulled out of the vehicle by Doraj. Deceased was deprived of his waistcoat containing money and since the deceased stated that he had recognized the culprits, Doraj fired at him with his pistol thereby killing him at the spot.
It would be pertinent to mention here that confessional statement of the petitioner A fully corroborated on all material points by the testimony of P.W.3 Muhammad Anwar, who had at the trial, given eye-witness account of the occurrence. Corroboration to both i.e, the confessional statement as well as to the testimony of P.W.3 is also available from the statement of P.W.4 Shah Jehan who, at the trial, had categorically stated that the deceased along with P.W.3 and the petitioner, on his way back home had stopped in the hotel where, he was employed and that subsequently, when he on coming to know that the deceased was killed by the dacoits, had reached at the place of occurrence then found that the petitioner was missing though he came back after some time Statements of both P.Ws.3 and 4 coupled with evidence of recoveries and the medical evidence lead to this irresistible conclusion that the confessional statement made by the petitioner contained true account of the occurrence and therefore, was rightly believed by both the Courts below, the contention, therefore, has no force.
8. As to the contention of the learned counsel for the petitioner that since the confessional statement was inculpatory, therefore, it could not have been taken as an incriminatory piece of evidence against the petitioner, we find that so far as conspiracy and involvement of the petitioner qua the offence of dacoity is concerned, the contention on its face appears to be devoid of force because the petitioner himself has in the confessional statement, in clear terms, admitted that he fell in league and conspired with the absconding accused persons to rob the deceased. Though a minor role i.e, stopping the vehicle in pursuance of the conspiracy was attributed to him yet, the petitioner being in active connivance with the absconding accused persons in the offence of dacoity, in our opinion, was vicariously liable for the offence.
9. Adverting to the next contention raised by the learned counsel for the petitioner that since the petitioner was not sharing common intention with the other accused persons to kill the deceased, therefore, the sentence inflicted on him does not commensurate with gravity of the offence, it may be pointed out here that though in the instant case, the petitioner was not specifically charged under section 34, P.P.C. For sharing common intention with other accused persons to commit the offence of dacoity yet, since he has been convicted under section 396, P.P.C. For the offence of dacoity in course whereof murder took place, which offence requires participation of at least five persons in view of section 391, P.P.C., therefore, it implies that in petitioner's case the principle contained in section 34, P.P.C. Was pressed into service. It may be noted here that principle of joint liability laid down by section 34, P.P.C. Is dependent on existence of common intention energizing the accused to commit a criminal act in furtherance of such intention but an accused not aware of the intention of his companions to commit murder though sharing intention to commit another offence in their company, cannot be saddled with the liability of murder. Further, any intention within the meaning of section 34, P.P.C. Hints at a prearranged plan and therefore, application thereof requires proof to the effect that criminal act was done pursuant to the pre-arranged plan.
In the circumstances of the instant case, we find that so far as the offence of dacoity is concerned, though liability of the petitioner was joint with other accused persons, because it was committed pursuant to a prearranged plan yet, he, in our view, was not liable for the offence of murder because as per evidence on record, neither it was included in the original plan nor was the petitioner aware of the intention of Doraj who fired at the deceased and killed him.
10. In a number of cases where the accused had no intention to commit murder though part of conspiracy to commit some other offence or where fatal shot was not attributed to the particular accused, he was either exonerated from the charge or sentence inflicted on him was reduced.
Reference in this regard may usefully be made to the case of Ghulam Qadir v. The State PLD 1960 SC (Pak.) 254, in which original plan was only to abduct a girl. One of the accused Muqarrab Shah stood outside the house, others went in, pulling girl outside in courtyard and killed her. The plea taken by accused Muqarrab Shah, in his confession, was that though he had agreed to join for the purpose of helping principal accused to take the girl away yet, he was not party to the intention which formed in the mind of Ghulam Qadir at the spot to do away with the girl by killing her and in support of this he said that immediately first blow was struck he himself ran away. It was laid down that though accused standing outside was responsible for the completed offence of abduction, yet he was not liable for the offence of murder. In the case of Hassan v. The State 1969 SCM R 454, accused persons were charged under sections 148, 302/149 and 307/149, P.P.C. On conclusion of the trial one of the appellant's son was convicted under section 302, P.P.C. And sentenced to death for his individual act. However, the appellant along with another son was convicted under section 326 read with section 34 of the Pakistan Penal Code. On appeal to the Supreme Court it was held that in order to support a conviction under that section mere presence of the accused at the place of occurrence was not sufficient, and there must have been proof of some overt act done in furtherance of the common intention on the part of each accused and since the appellant went to the place of occurrence empty-handed and there was no evidence that he had assaulted anybody, therefore, he was not liable for the offence. Conviction and sentence recorded against him in the circumstances was, set aside. In the case of Pervaiz Akhtar v. The State 1985 SCM R 1422, wherein appellant Pervaiz Akhtar had reached at the place of occurrence when principal accused Mehmood had already inflicted knife blows to deceased persons, namely, Safdar and Faiz Alam.
The trial Court while assessing the role of the appellant in the crime held that Faiz Alam had died as a result of injury sustained by him at the hands of accused Mehmood while the appellant had only caused three such injuries on the non-vital parts of the body which were simple in nature. On the question of his vicarious liability the trial Court held that though he had shared common intention on the spur of moment yet, this conclusion could hardly be drawn upon the assumption of his role in the crime. The High Court also came to the same conclusion that it was Mehmood, who was responsible for the death of two deceased persons but failed to distinguish the case of the appellant on the ground of his sharing the common intention. It was held by the Supreme Court that the appellant was only guilty of the lesser offence under section 324, P.P.C.Because arrival of the appellant later at the place of occurrence along with other two accused who were empty- handed and his causing simple injuries at the spur of the moment after inflicting fatal blows upon the deceased intentionally, show that he did not share common intention to kill the deceased.
Conviction of the appellant was, therefore, altered from section 302, P.P.C. Read with section 34, P.P.C. To section 324, P.P.C. And he was sentenced to undergo three years' R.I. Along with the sentence of fine. In the case of Piran Ditta v. The State 1993 SCM R 1934, appellant Piran Ditta had allegedly inflicted a Sota blow to Khan Muhammad on his head as a result of which he fell to the ground and thereafter the appellant disassociated himself. The appellant Piran Ditta along with other co-accused was convicted under section 302, P.P.C. And sentenced to imprisonment for life.
On appeal to the Supreme Court it was though held that appellant could have, safely, been burdened that violent blow on the head was likely to cause death of the deceased yet, since fatal blow was not inflicted by him, therefore, his case fell within the ambit of section 304, Part-II of. The P.P.C. Accordingly his conviction was altered from section 302, P.P.C. To that of section 304, Part-II of the P.P.C. And his sentence was reduced to ten years' R.I. From imprisonment for life. In the case of Kuppan and others v. State of Tamil Nadu AIR 2000 SC 3510(1), father, mother and their son were involved in causing grievous hurt on head of injured. Father, found to have caused head injury, was convicted under section 326, I.P.C. Infliction of 1-1/2 years sentence on the son under section 324, P.P.C. However, was found excessive as the grievous hurt inflicted on the head of the injured was attributed to the father only. In the case of Javed Ayoub and others v. Muhammad Farid 2005 PCr.LJ 1294, which has a close resemblance to the instant case, accused namely Sadaqat Hussain was charged along with other under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979). Since in the course of dacoity murder was also committed, therefore, principal offenders, namely, Muhammad Taslim and Muhammad Farid were sentenced to life imprisonment each, however, Sadaqat Hussain, was sentenced to undergo only ten years' R.I.
Because, as per his confessional statement, he had joined the other accused persons for the purpose of dacoity only and had no intention to kill the deceased.
11. Though under section 111, P.P.C. When an act is abated 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 yet, in view of the proviso tagged to the main provision, the condition precedent for application of section 111, P.P.C. Is that the act done should be the probable consequence of the abatement and committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Here, it would be advantageous to reproduce the relevant provision which reads as follows:-- "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: ' Provison, 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.": ' Since, in the instant case the evidence is deficient to attract any of the necessary ingredients detailed in the above proviso, therefore, the contention raised by the learned counsel for the petitioner appears to have force in it.
12. Upshot of the above discussion is that the learned counsel for the petitioner has made out a case for reduction in the sentence of imprisonment of the petitioner. Leave to appeal, therefore, is granted, the petition is converted into appeal and the same is partially allowed. Consequently, while maintaining conviction of the appellant under section 396, P.P.C., the sentence of imprisonment inflicted on him, thereunder, is reduced from life imprisonment to that of 10 years' R.I.
The sentence of fine or the term of imprisonment in default thereof shall however, remain the same as ordered by the learned trial Judge. Benefit of section 382-B, Cr.P.C. Shall also remain intact.