Murtaza vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.527-P/2014

Date of hearing: 08.12.2014

Appellant (s) : 1. Murtaz and 2- Abdul Qadir alias Qadiar Shah by Mr. Bakht Nawaz Khan, Advocate.

Respondent(s) : The State by Mian Arshad Jan, AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Impugned herein is the judgment dated 30.08.2014, passed by learned Additional Sessions Judge-II, Takht Bhai, whereby appellants Murtaz and Abdul Qadir alias Qadir Shah, have been convicted under sections 324/34 PPC and sentenced to undergo 02 years R.I. and to pay a fine of Rs.10,000/- each to LRs of deceased within the meaning of section 544-A Cr.P.C. or in default thereof to undergo 03 months S.I. Benefit of section 382-B Cr.P.C. has been extended to appellants.

2.On 27.01.2010 at 1550 hours, Ali Akbar

complainant (PW.6), in company of dead body of his nephew Khalid Khan deceased while reporting to local police in casualty *M.Siraj Afridi P.S. D

hospital Mardan, alleged that on the eventful day at about 1500 hours, he alongwith his deceased nephew, his brother Sarwar Khan, Roz Amin and many others, was doing “Zamidara” work; that there was exchange of hot words inter- se the deceased and the appellants-convicts as well as absconding co-accused Wakil on construction or non- construction of a bridge and in the meantime, accused named above duly armed with firearms opened fire at the deceased and as a result of firing of absconding co-accused Wakil, his Khalid Khan deceased was hit. He was shifted to hospital but succumbed to the injuries. No motive except exchange of hot words, has been alleged by complainant. In addition to complainant, the occurrence is stated to have been witnessed by PWs Sarwar Khan and Roz Amin. On the report of complainant FIR No.48 dated 27.01.2010 was registered against the accused under sections 302/34 PPC at Police Station Takht Bhai Mardan.

3.On arrest of the accused-appellants, challan was submitted against them before the learned Trial Court, where they were formally charge sheeted to which they pleaded not *M.Siraj Afridi P.S. D

guilty and claimed trial. To prove their guilt, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statements of the appellants were recorded under section 342 Cr.P.C. wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellants as mentioned above, hence, this appeal.

4.I have heard the arguments and perused the record carefully, particularly the impugned judgment of the learned Trial Court.

5.Before dilating upon the merits of the case, I deem it appropriate to reproduce the concluding Paragraph of the impugned judgment of the learned Trial Court, which is quite disturbing, keeping in view the accusation leveled, the role of the appellants, evidence on file and conviction and sentence awarded by the learned Trial Court.

“The outcome of above analysis is that,

the prosecution has proved its case

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against both the accused facing trial beyond reasonable doubt to the extent that both the accused facing trial made firing at the deceased with common intention to murder him. This court is of the view that the prosecution has proved that on 27.01.2010 at 15.00 hours, accused Murtaza and Qadir Shah with absconding co-accused Wakil in furtherance of common intention made firing at the deceased Khalid, near bank of water channel situated in Saeed Abad within local limits of Police Station Takht Bhai, with intention to murder him. (the underline are mine and for emphasis). Resultantly, with fire shots of absconding co-accused Wakil, Khalid sustained injury and later on died, while firing of both the co- accused facing trial proved in-effective.

Therefore, accused facing trial Murtaz and Qadir Shah are held guilty for *M.Siraj Afridi P.S. D

commission of offence under section 324 read with section 34 PPC and are convicted and sentenced by keeping in view the mitigating circumstances and provisions of section 237 Cr.P.C. for two years rigorous imprisonment with fine of Rs.10,000/- each in terms of section 544-A Cr.P.C. for attempting to commit Qatl-e-Amd of deceased Khalid.

The fine, if realized, be paid to legal heirs of the deceased and in case of default the accused convict to undergo further three months simple

imprisonment. Benefit of section 382-B Cr.P.C. is also extended to the accused.

Accused are on bail. Their bail is recalled and bail bonds are cancelled.

They be taken into custody and be sent to Judicial Lockup Mardan.....”.

6.A look over the contents of First Information report reveals the appellants alongwith their absconding co-accused *M.Siraj Afridi P.S. D

Wakil, are charged for firing at the deceased Khalid Khan, but the role of fatal shot on the person of the deceased, has specifically been assigned to absconding co-accused Wakil.

There is no allegation against the appellants or the absconding co-accused that they also attempted at the lives of complainant and PWs that’s why section 324 PPC had not been inserted in the FIR. The appellants charged for ineffective firing at the deceased were either to be acquitted or if the learned Trial Court at the most reached the conclusion on the basis of evidence about their common intention with absconding co-accused, whose fire shot proved fatal, then they should have been convicted and sentenced under section 302/34 PPC and not under section 324/34 PPC, but strangely, the learned Trial Court despite holding that the appellants in furtherance of their common intention with absconding co-accused committed the murder of deceased, convicted and sentenced them under section 324/34 PPC, which speaks about un-attentiveness of the judicial mind of the learned Trial Judge. To know the true essence of section 34 PPC, which says about sharing common intention of several *M.Siraj Afridi P.S. D

accused in a criminal act, I would like to reproduce the same for convenience:-

“S.34 Acts 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”.

]7. Bare reading of the section ibid, enumerate the general doctrine of joint liability of crime. It deals with a situation where several persons equipped with common intention, open or secret, by words or action, by active participation or by subjective association participate in the commission of a crime, each of them will entail liability for the offence so committed in the same manner as it has been done by him alone. S.34 PPC does not create a distinct offence but lays down principle of joint criminal liability. As stated earlier, if the learned Trial Court was of the opinion that that the offence has been committed in furtherance of common intention and the appellants have also shared their *M.Siraj Afridi P.S. D

common intention with the absconding co-accused, then the proper course was to convict and sentence the appellants under section 302/34 PPC.

7.Now coming to the merits of the case. The role assigned to the appellants is that of in-effective firing at the deceased. According to complainant there was exchange of hot words inter-se the deceased and accused which resulted in the present incident. No previous motive has been alleged by the complainant inter-se the deceased and the accused.

Had the appellants any prior intention or prior concert or pre- arranged plan, they at the very first instance of their arrival at the spot would have done away with the deceased. It is well established that common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for a criminal act of another, the act must have been done in furtherance of the common intention of them. Accordingly, there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill and each can *M.Siraj Afridi P.S. D

individually inflict a separate fatal blow, yet none would have the common intention required by section 34 PPC because of no prior meeting of minds to form a pre-arranged plan. Such is the case herein as the incident took place at the spur of moments on controversy of construction or non-construction of a bridge inter-se the accused and the deceased by exchanging hot words so question of prior meeting of mind and pre-arranged plan does not arise. Moreso, not an iota of evidence is available on file to prove the pre-requisites of Section 34 PPC i.e. common intention of the appellants with absconding co-accused.

8.The learned Trial Court by taking wrong interpretation of section 237 Cr.P.C. has also referred to the same in its judgment while convicting the appellants under section 324/34 PPC. For convenience, and to know the true spirit of section 237 Cr.P.C. the same is reproduced below:- “S.237. When a person is charged with

one offence, he can be convicted of

another offence. (1) If, in the case

mentioned in section 236, the accused is

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charged with one offence and it appears in

evidence that he committed a different

offence for which he might have been

charged under the provisions of that section, he may be convicted of the offence which he

is shown to have committed although he

was not charged with it”.

9.What I gather from the section ibid is that for instance, A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen good, he may be convicted of criminal breach of trust or of receiving stolen good (as the case may be) though he was not charged with such offence. In the instant case, if the learned Trial Court, on the basis of any such evidence, which otherwise is not available, held the appellants guilty of the offence for attempting at the lives of complainant and PWs, it could have recorded their conviction under section 324/34 PPC. But the learned Trial Court holding the appellants guilty of murder charge in light of their common intention with absconding co-accused, convicted and sentenced them under *M.Siraj Afridi P.S. D

section 324/34 PPC, which is quite contrary to the law and section 237 Cr.P.C.

10.In view of the evidence available on record, prosecution has miserably failed to bring home the guilt of appellants by proving their common intention with absconding co-accused, whose role is on different footing from that of the appellants. Resultantly, by allowing this appeal, I set-aside the conviction and sentence of the appellants recorded by the learned Trial Court and acquit them of the charge leveled against them. They are on bail, their bail bonds stand cancelled and sureties absolved from liabilities of bail bonds.

11.Additional Registrar (Judicial) of this court is directed to send copy of this judgment of learned Trial Judge, namely, Muhammad Shoaib Additional Sessions Judge, Takht Bhai, for future guidance.

Announced.

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below *M.Siraj Afridi P.S. D

are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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