SARDAR AHMAD HALEEMI, J. This common judgment, disposes of Criminal Appeal No. (T) 42/2021, Murder Reference No. (T) 03/2021 and Criminal Appeal No. (T) 54/2021.
The Criminal Appeal No. (T) 42/2021 and Criminal Appeal No. (T) 54 of 2021 has been filed on behalf of Abdul Basit son of Faizullah and Altaf Raja son of Mazar respectively (the appellants) against the judgment dated 08.04.2021 (hereinafter the impugned Judgment") ,passed by the learned Sessions Judge Mekran at Turbat (hereinafter "the trial Court"), whereby co-accused Saifullah son of Munir Ahmed and Sameer son of Sabzal were acquitted and the appellants were convicted and sentenced in the following manners:- "The appellant Abdul Basit son of Faizullah is convicted under Sections 302(b), 34, P.P.C. as Ta'zir for committing murder of deceased Malik Naz wife of Hamid and sentenced to death with fine of Rs.
5,00,000/-(Rupees Five Lacs Only) to the legal heirs of deceased as envisaged under Section 544- A, Cr.P.C., in default whereof to further undergo for six (06) months SI.
The accused Altaf Raja son of Mazar is convicted under Sections 302(b), 34, P.P.C. as Ta'zir for committing murder of deceased Malik - Naz wife of Hamid with common intention and sentenced to imprisonment for life. The convict is directed to pay compensation of Rs. 5,00,000/- (Rupees Five Lacs Only) to the legal heirs of deceased as envisaged under Section 544-A, Cr. P. C, in default whereof to further undergo for six (06) months SI.
Both the accused Abdul Basit son of Faizullah and Altaf Raja son of Mazar are further convicted under Sections 397, 34, P.P.C. and sentenced to ten (10) years RI each with fine of Rs. 30,000/- (Rupees Thirty Thousand Only) each or in default of payment of fine, each of them shall further suffer SI for thirty (30) days.
Both the accused Abdul Basit son of Faizullah and Altaf Raja son of Mazar are further convicted under Sections 457, 34, P.P.C. and sentenced to ten (10) years RI each with fine of Rs.30,000/- (Rupees Thirty Thousand Only) each or in default of payment of fine, each of them shall further suffer SI for thirty (30) days.
All the sentences of imprisonment shall run concurrently and the benefit of section 382-B, Cr.P.C., is extended in favour of both the accused persons.
While Murder Reference No.03/ 2021 has been transmitted by the trial Court for confirmation of the death sentence of appellant Abdul Basit or otherwise as envisaged under Sections 374, Cr.P.C.
2. The prosecution story, in brief, is that on 26th May 2020 at 10:30 a.m., the complainant Jasim son of Ameer registered an FIR No.107/2020 at Police Station City Turbat under sections 302, 397, 457, 34, P.P.C. to the effect that he is resident of Dannuk Turbat and a shopkeeper by profession; in the preceding night, he and his family members were sleeping in the courtyard of his house; on noise he woke up at about 3:15 a.m, and saw some people have entered into the house one of them was equipped with Kalashnikov and the other was having Pistol, who introduced themselves as personnel of some agency having come there for searching the house; they took all of them in one room; started searching the house; in the meanwhile, complainant managed to get out of the house by scaling over the boundary wall and informed the neighbours; when he along with neighbors were coming back; they heard fire shots inside his house; when they reached near the house, they saw a person who after jumping over the wall was running towards his motorbike parked with the wall, who was caught by them with TT pistol in his hand; the accused was overpowered by the complainant with the help of neighbours namely Balach, Waris Ali and others; on query the person told his name as Altaf son of Mazar and the name of his companion who was armed with Kalashnikov as Abdul Basit son of Faizullah; he further told that they belong to secret agency. According to the complainant, after committing murder of his cousin sister Malik Naz and causing injuries to her four (04) years old baby Barmish, the accused Abdul Basit had escaped from the scene; the said incident was witnessed by eye-witnesses Abid son of Ghulam and Mandem daughter of Gamani; on checking of rooms, one laptop, one Samsung mobile phone and one Mema watch were found missing which were taken by the escaped co-accused Abdul Basit with him. After receiving information, the police reached at the spot where the accused Altaf along with his motorcycle 125cc and TT pistol were handed over to the police; the complainant further stated that if the companion of accused Altaf namely Abdul Basit was brought before him, he would identify him. Hence, this report.
3. After registration of FIR No. 107/ 2020 on the basis of Fard-e-Bayan (Ex.P/1-A), the investigation of the case was entrusted to PW-23 Noor Bakhsh IP of concerned Police Station who carried out formal investigation, who after receiving information as duty officer with other police officials of concerned police station reached at the place of incident, where people handed over the appellant Altaf Raja along with TT pistol (Ex.P/8-A) and Honda Motorbike 125 cc (Ex.P/8-B) to him; on personal search of appellant two mobile phones OPPO with Sim No.0323-2518766 (Ex.P/14-B) were recovered; after inspection of site of occurrence, a women namely Malik Naz wife of Hamid (deceased) and a baby girl namely Barmish (injured) were found lying in a pool of blood on eastern side of courtyard in injured conditions; four empties of Kalashnikov were recovered; bloodstained earth was secured; sitemap (Ex.P/23-B) was prepared. The relatives of the deceased took the death body of deceased and injured baby girl to the hospital; after shifting of appellant along with recovered things to the police station, the Investigation Officer proceeded to hospital; prepared the inquest report of deceased Malik Naz (Ex.P/23-C). Death certificate (Ex.P/3- A) was issued by Dr. Nadia Mahi (PW-3) and she also examined the injured baby girl Barmish and issued Medical Legal Certificate (Ex.P/3-B); bloodstained cloths were secured; statement of witnesses were recorded during the investigation.
4. During investigation appellant Altaf Raja made disclosure on 25.07.2020 (Ex.P/11-A). On spy information raid was conducted at the house of acquitted co-accused Saifullah (Ex. P / 23-D), wherefrom appellant Abdul Basit and Saifulah were arrested; one Kalashnikov No.1978 GL 07217 with magazine, three live bullets and one bandolier containing two magazines each, containing 30 live bullets (Ex.P/12-A) with snatched laptop, watch, and Samsung mobile (Ex.P/12-A) were recovered from the said room. On personal search of appellant Abdul Basit one wallet having its identity card, two passport size photos, two visiting cards, two ATMs card, rupees eleven hundred (Ex.P/12-C) and three mobiles Huwavi, mobile Nokia No.SP500 with Sim No.0312-1663188, mobile Nokia with Sim No.0320-8896282 (Ex.P/15-B) were recovered. On personal search of co-acquitted accused Saifullah one wallet having Irani Currency Note (Ex.P/12-C) one mobile phone OALE wit Sim No.0321- 18290283 (Ex.P/14-A) and corolla car bearing registration No.LSC-864 (Ex.P/12-D) was used by Saifullah was also recovered from the said house. On 29.05.2020 identification parade of appellant Abdul Basit (Ex.P/4-B) was conducted by PW-4 Waseem Ahmed JM Turbat, who produced identification form with his certificate (Ex.P/4-C).
5. During investigation on 03.06.2020 Abdul Basit and acquitted co-accused made separate disclosures (Ex.P/8-D) and (Ex.P/6-A) respectively. In pursuance of disclosure of Abdul Basit and Saifullah the IO arrested acquitted co-accused Sameer on 04.06.2020 and on his personal search mobile Huwavi with Sim No.0323-2233237 (Ex.P/13-A) and pistol were recovered; on 06.06.2020 the recovered mobiles of Altaf Raja, Basit, Saifullah and Sameer were sent to FSL for analysis; incomplete challan was submitted (Ex.P/23-E); after obtaining the FSL reports of bloodstained mud (Ex.P/23-G), crime weapon (Ex.P/23-F) and report of CDVR from Punjab Forensic Science Agency (PFSA), complete challan was submitted against the appellants and acquitted co-accused before the trial Court.
6. The trial Court read-over charge to the appellants and acquitted co-accused to which they did not plead guilty and claimed trial.
7. The prosecution produced 24 witnesses. After completion of prosecution evidence, the appellants including acquitted co-accused were examined under section 342, Cr. P.C, wherein they denied the allegations; the appellant did not record their statements on oath as envisaged under section 340(2) Cr.P.C, nor produced any witnesses in their defence.
8. After hearing the arguments of the parties, the trial Court convicted and sentenced the appellants, whereas co-accused Saifullah and Sameer were acquitted vide impugned judgment.
Hence, these appeals and murder reference.
9. Learned counsel for the appellants in Criminal Appeals Nos. (T) 42 and 54 of 2021 contended that the death sentence awarded to the appellant Abdul Basit is unwarranted, as the evidence produced by the prosecution is based on misreading and misappreciation of evidence, which has not been considered by the trial Court while passing the impugned judgment; that there are contradictions in the statements of the prosecution witnesses, which were ignored by the trial Court.
10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant supported the impugned judgment and contended that the appellants are involved in a murder of lady and causing injuries of a baby girl; that the trial Court while passing the impugned judgment has appreciated all material aspects of the matter convicted and sentenced them, which findings are based on proper appreciation of evidence and cannot be disturbed; that the crime weapon and empties recovered on the disclosure of the appellants coupled with its matching report leave no room for doubt that the appellants were not involved in the instant case, as such they are not entitled for any leniency; that all the prosecution witnesses are trustworthy, reliable and confidence inspiring, which corroborated each other on material points, as such the impugned judgment is liable to be maintained.
11. We have heard the learned counsel for the parties and minutely perused the record with their able assistance.
12. Perusal of statement of PW-1 complainant reveals that he with his relatives including PW-2 Abid, PW-3 Ghulam, Mst. Mandem, deceased Malik Naz, injured baby girl Barmish were sleeping at the place of occurrence (Ex.P/23-B); in the mid night at 3:15, the appellants entered in his house equipped with pistol and Kalashnikov for committing robbery, introduced themselves as personnel of some agency and came for search of house. The appellants took all the people in one room and started searching of the house, in the meanwhile, PW-1 complainant managed to get himself out of the house by scaling over the boundary wall and informed his neighbours i.e. PW-5 Waris and others. PW-1 complainant along with PW-5 and other neighbours coming to the place of occurrence, heard firing shots inside of the house, when they reached near the house, they saw a man, who after jumping on the wall was running towards the motorbike parked with the wall, who was caught hold along with pistol in his hand by the complainant with the help of neighbours; on inquiry, the man told his name as. Altaf son of Mazar (appellant) and disclosed the name of his companion as Abdul Basit (appellant), who was equipped with Kalashnikov. PW-1 complainant has seen the appellants equipped with firearm weapons entered in his house.
13. PW-2 Abid is the star eye-witness of the occurrence, who saw both the appellants equipped with firearm weapons, who attributed specific role of firing to the appellant Abdul Basit upon Mst. Malik Naz and injured baby Bartnish. PW-2 in his statement before the Court deposed that he along with other family members were sleeping in his house; in the preceding night at about 3:15 a.m, he saw the appellants equipped with pistol and Kalashnikov were present in the courtyard of the house for Committing robbery, introduced themselves as personnel of some agency took all the members of the house in one room and started searching of the house; in the meanwhile, PW-1 succeeded to escape from the house for the purpose of informing the neighbours. The women and children started shouting upon the appellants, who extended threats. On resistance by Mst. Malik Naz and Mst. Mandem, the appellant Abdul Basit started firing, due to which bullets hit Mst. Malik Naz and her daughter Barmish; Mst. Malik Naz fell down; the appellants fled away from the place of occurrence. On hearing shouts from outside the house, PW-2 came out and saw that the appellant Altaf Raja armed with pistol was empowered by PW-1, PW-5 and other people of the area. He stated that Mst. Malik Naz succumbed to injuries at the spot and baby girl sustained serious injuries. Both PW1 and PW-2 have identified the appellant Abdul Basit during identification parade conducted by PW-4 Waseem Ahmed Judicial Magistrate, Turbat.
14. PW-1 and PW-2 though related to each other are natural witnesses and have no enmity for false implication of appellants in the instant case. The statements of PW-1 and PW-2 further corroborates in material aspect with PW-5, who deposed that he and his relatives were, sleeping in the house; at about 3:00 a.m. (night). PW-1 came to their house and told them that thieves have entered into his house; he along with other relatives were going towards the place of occurrence, they heard fire shots inside the house, when they reached near the house, they saw a man, who after jumping over the wall was running towards his motorbike parked with the wall; they caught hold the appellant Altaf Raja with pistol in his hands with the help of PW-1 and other people; they entered in the house of PW-1 complainant and saw the deceased and baby girl in a pool of blood.
The statements of PW-5 has also not been shaken in the cross-examination.
15. Careful perusal of record reveals that the prosecution witnesses remained consistent throughout and there is no material contradiction and dishonest improvement to discard their testimony.
No enmity, or malice has been shown to believe that the appellants have falsely been implicated.
16. In pursuance of disclosure of appellant Altaf Raja, the PW-23 I.O. conducted raid on the house of acquitted co-accused Saifullah, wherefrom he recovered the crime weapon i.e. Kalashnikov from the possession of appellant Abdul Basit and sealed the crime weapon Kalashnikov which was supported with the positive report of the firearm expert (Ex.P/22-B) wherein it has been clearly mentioned that the five empties of bullets have been fired from the Kalashnikov (Ex.P/12-A).
17. The appellant Altaf Raja has shared the common intention with appellant Abdul Basit. Though the appellant Altaf Raja has not taken part in firing upon deceased or injured baby girl, but the killing has been made during the course of robbery in furtherance of the common intention of the appellant Altaf Raja, hence the appellant Altaf Raja has rightly been held vicariously liable for the murder of deceased by the trial Court and his conviction under section 302(b), P.P.C. is not open to any exception. In this regard, reliance is placed in the case of Muhammad Arshad v. State PLD 1996 SC 122.
"Section 34, P.P.C. which embodies the rule of vicarious liability contemplates an act done in furtherance of common, intention of all. The essence of liability envisaged under this section lies in the existence of a common intention and to attract the application of this provision, it has. to be shown that the criminal act complained of was done by one of the accused in furtherance of common, intention of all. Now the intention is a state of mind which is not susceptible of direct proof and can only be inferred from the attendant circumstances of the crime. A prior the existence of common intention which usually consists of motive, pre-content and pre- arrangement cannot always be proved by direct evidence. In some cases, direct evidence such as confessions or testimony of approver may be available to prove the common intention but in most of the cases, it has to be gathered from the facts disclosed in evidence and surrounding circumstances of the case".
18. The ocular evidence corroborated in all material aspects is trustworthy and reliable and the prosecution has successfully proved its case against the appellants, who with common intention entered into the house of complainant, committed robbery and effectively fired at the deceased by causing fatal injury resulting into the death of Mst. Malik Nazi and firearm injury to the baby girl Barmish. There are no extenuating circumstances to award lesser sentence to the appellant Abdul Basit. We find no misreading or misappreciation of evidence of the trial Court.
For the above reasons, Criminal Appeals Nos. (T) 42 and 54 of 2021 are dismissed. Consequently, the Murder Reference No.03 of 2021 is answered in AFFIRMATIVE.