' SHAKEEL AHMED I3ALOCII. J. --This criminal appeal has been presented against the judgment dated 26th March. 2013, passed by the. Special Judge, Anti-Terrorism Court Khuzdar. The appellants were convicted and sentenced under section 302/34, P.P.C. Read with section 7 of Anti Terrorism Act, 1997 to suffer life imprisonment with fine of Rs.1,00,000 as compensation to be paid to the legal heirs of the deceased Adho Mall, with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that on 4-9-2011, the complainant Jaisa Mal lodged an F.I.R.
No.229/2011, with Police station City Hub, alleging therein that he is a resident of Lasi Road Hub and running business at Hub Market along with his brother and nephew. On the aforesaid day he along with his brother namely Adhoo Mal early in the morning after offering prayer in Mandar, came to their shop at about 8:00 a.m., his brother was opening the shutter of the shop, while he was purchasing vegetables, meanwhile he heard fire and found his brother in a pool of blood, while saw two motorcycle riders, who had earlier demanded Rs.5,00,000 from his brother Adhoo Mal and also threatened him for dire consequences, if he failed to pay the demanded amount. It is further alleged that the said two persons namely Ghulam Qadir and Muhammad Akbar came there at shop and committed the murder of his brother Adho Mal by making firing through T.T Pistol.
Ghulam Qadir was holding the pistol, while Akbar Magsi was driving the motorcycle.
3. After completion of the investigation, the Challan was submitted before the trial Court. The charge was framed and read over to the appellants, to which they denied the allegation and claimed trial. The prosecution in support of its case, produced six witnesses, and also exhibited relevant documents. After close of the prosecution side, the appellants were examined under section 342. Cr.P.C.. Wherein they denied the allegation levelled against them. The appellants opted to record their statements under section 340(2), Cr.P.C., and produced two witnesses in their defence. On conclusion of the trial, the appellants were convicted and sentenced as mentioned hereinabove, hence this appeal.
4. The learned counsel for the appellants submitted that the trial Court has not properly appreciated the evidence and material available on the record. He stated that there is contradiction in the statements of the witnesses which has created doubt in -the prosecution story.
But the trial Court has not extended the benefit of the same to the appellants, which is an illegality and irregularity.
5. The learned special Prosecutor opposed the contention of the appellants and stated that the occurrence was witnessed by the P.W.1, who remained firm upon his deposition. She further argued that the prosecution was able to prove guilt against the appellants and the trial Court after proper appraisal of the evidence and material available on record has passed a just and well-reasoned judgment.
6. I have heard the learned counsel for the parties and have perused the record. P.W.1 Jaisa Mall (complainant) appeared before the trial Court and produced report as Exh.P/1-A and narrated the same story as mentioned in the report. The doctor appeared as P.W.2 and exhibited death certificate as Exh.P/2-A. The doctor explained the injuries and also confirmed that the death was caused due to the fire-arm injury. P.W.3 is the recovery witness, in whose presence the Investigating Officer collected blood-stained clothes of the deceased through recovery memo Exh.P/3-A and sealed into Parcel No.2, Art-3-A. P.W.4 is also the recovery witness, in Whose presence the Investigating Officer collected two empty cartridges of T.T pistol from the place of occurrence through recovery memo Exh.13/4-A and sealed into parcel No.1 as Art-4-A. He produced sample of seal. Art-4-B, two empty cartridges Art-P-C, recovery memo of dead body Exh.4-B, memo Exh.P4-,C, pointation memo Exh.P-4/D, recovery memo of clothes of appellant Ali Magsi Exh.P/4-E, Parcel No.3 as Art-4-D, sample of seal Art,4/E, shalwar and Qameez Art-4/F, recovery memo of motorcycle Exh.-P/4-E, motorcycle as Art-4-G, clothes brown colour from co-accused Muhammad Ali as Art-4-G,-Parcel No.5 as Art-4-H, sample of seal Art-4-J, shalwar Qameez brown color as Art- 4-K, recovery memo of mobile phone Ex-P/4-J, parcel No.4 as Art-4/L, sample of seal as Art-4-M, and mobile phone Nokia as Art-4-N. P.W.5 is the witness of disclosure made by the appellant Ghulam Qadir, he produced the disclosure memo as Exh.P/5-A. The Investigating Officer of the case appeared as P.W.5. He explained the manner in which he conducted the investigation. He exhibited the F.I.R. As Exh.P/6-A, map of the place of occurrence Exh.P/6-B, the inquest report Exh.P/6-C, application for receiving dead body, without postmortem Exh.P/6-D, receipt for handing over the dead body as Exh.P/6-E, recovery memo of search of the co-accused as Exh.P/6-F, disclosure memo of co-accused Ali Akbar Exh.P/4-C, incomplete Challan Exh.P/6-H, FsL, report Exh.P/6-J, and incomplete Challan Exh.P/6-K.
7. It is an admitted fact that the ,F.I.R. Was promptly lodged without any delay, and the complainant, while appearing as P.W.1, fully corroborates the report Exh.P/1-A and identified the appellants.
Similarly the P.W.2, the Medical Officer fully supports the statement of the complainant and confirms the fact that the deceased received fire arm injuries, due to which he died. The P.W.3 and P.W.4 further 'confirm the prosecution story while exhibiting the blood-stained clothes of deceased as Exh.P/3-A, two empty cartridges of T.T pistol Exh.P/4-A and disclosure memo Exh.P/4-C. The motorcycle which is alleged to have been used in the commission of the offence was also recovered and produced before the trial Court through recovery memo Exh. P/4-F. The disclosures separately made by the appellants during investigation have disclosed new facts and the connivance of the co-accused in the occurrence on the basis whereof the same are admissible and are relevant pieces of evidence but the trial Court has badly erred in law in discarding the same under Article 40 of the Qanun-eshahadat Order, 1984. Article 40 of the Qanun-e-shahadat Order, 1984 reads as follows:-- "40. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved".
' In the case of Zakir Khan v. The state, 1995 sCMR 1793, the Hon'ble supreme Court of Pakistan has laid down as follows-- "According to Article 38, "no confession made to a police officer shall be proved as against a person accused of any offence". Article 39 carries the rule further, .But for confession made in the immediate presence of a Magistrate, by rendering a confession inadmissible if made by the accused whilst he is in custody of a police officer. Article 40 of Qanun-e-shahadat which next follows the said Article Povides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It means that a confessional statement made to a police officer or in presence of a police officer would be inadmissible in evidence unless it leads to discovery of a fact. In fact Article 40 operates as proviso to the preceding Articles. However; in order to make any such information admissible, what is required to be established by the prosecution is that any Article or such other evidence discovered during the investigation of a case in consequence of information supplied by the accused connects him with the crime. The information supplied by one accused in this case led to another accused which in consequence of the information supplied by the latter, led to the discovery of incriminating evidence against him, connecting each of them with the crime. There being no doubt about the admissibility of such evidence under Article 40 of Qanun-e-shahadat, the Court was only left to consider sufficiency of such evidence against each of the appellants to connect him with the crime. Such evidence, as pointed out earlier, was therefore, admissible under Article 40 of the Qanune- shahadat."
8. The disclosure of the appellant All Akbar reads as follows:- {{URDU TEXT }}
9. The disclosure of the appellant Ali Akbar is also corroborated in material aspects with the disclosure of the appellant Ghulam Qadir. The 'relevant portion whereof is as follows:- {{URDU TEXT}}
10. The complainant/P.W.1 has not seen the appellants while making firing upon the deceased, but soon after hearing the fire shots, when he reached at the place of occurrence from the adjacent .Street, he saw the appellant Ghulam Qadir having a T.T. Pistol in his hand and the appellant Ali Akbar Magsi driving the motorcycle. The disclosures made by the appellants clarify the true account of the occurrence. According to the contents of the disclosure memos of the appellants, the absconding accused Muhammad Ali son of Khameesa and the appellant Ali Akbar went near the deceased and the appellant Ghulam Qadir remained near the motorcycle with pistol in his hand, the appellant Ali Akbar Magsi and the absconding accused Muhammad Ali son of Khameesa demanded Bhatta from the deceased, the absconding accused Muhammad Ali showed him pistol and on refusal by the deceased to pay Bhatta, the absconding accused Muhammad Ali son of Khameesa fired upon the deceased at the instance of appellant Ali Akbar, so that other Hindus should learn lesson, whereafter, Ali Akbar and Ghulam Qadir fled on motorcycle and the absconding accused Muhammad Ali ran on foot via Lorri Para. ' From the above, it emerges that the fatal shots were fired upon the deceased by the absconding accused Muhammad Ali son of Khameesa, but it has been established on record that the appellants have shared the common intention with the absconding accused in causing murder of the deceased on his refusal to pay Bhatta {{UEDU TEXT}} section 34, P.P.C. Reads as follows:--
(34) Act done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
' The evidence available on record proves that the criminal act of the murder of the deceased was done in concert pursuant to the prearranged plan and the intention of the appellants can be inferred from their acts and conduct. There is nothing on record that the appellants disassociated themselves during the commission of the offence. It has been established on record that the appellants had the common intention to commit the murder of the deceased and in such circumstances, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together must fall together.
' On the basis of evidence available on record, the appellants are saddled with vicarious liability for sharing common intention with the absconding accused in committing murder of the deceased.
11. On reappraisal of the evidence available on record, it is concluded that the prosecution has proved the charge against the appellants beyond any shadow of doubt and the appellants having shared the common intention with the absconding accused are vicariously liable for committing the murder of the deceased.
12. For the above reasons, the appeal is dismissed.