Summary: Acquittal--- The judgment discussed the appeal filed by Muhammad Shaban alias Shabani against his conviction and sentence under Section 302(b) PPC and Section 394 PPC. The court has allowed the appeal, setting aside the conviction and sentence under Section 302(b) PPC based on a compromise between the appellant and the legal heirs of the deceased. However, the court proceeded to decide the appeal on merits regarding the conviction and sentence under Section 394 PPC, a non-compoundable offense. The judgment highlights various deficiencies in the prosecution's case, including delayed police papers, lack of proper identification of the accused, unreliable ocular account, and inadmissible evidence of extra-judicial confession. As a result, the court concluded that the prosecution failed to prove its case against the appellant beyond a reasonable doubt. Consequently, the court allowed the appeal, acquitted Muhammad Shaban alias Shabani of the charge under Section 394 PPC, and discharged his surety.

Summary: The complainant, reported that while he and his friend were stuck in traffic at Sir Shah Suleman Bridge, a person with a pistol appeared and snatched his friend's mobile phone. The complainant filed an FIR against the accused under section 394 P.P.C. During the hearing of the bail application, arguments were presented by both sides. The applicant's counsel contended that the accused was innocent and falsely implicated by the complainant due to a minor altercation between their vehicles. The counsel alleged that the complainant had a motive to frame the accused, who was wrongly charged based on fabricated evidence. The Deputy Prosecutor General opposed the bail application, stating that the accused was caught red-handed with the weapon, and the complainant had identified him as the perpetrator. The prosecution argued that sufficient incriminating evidence connected the accused to the crime, including witness statements and a positive Forensic Science Laboratory (FSL) report for the recovered pistol. After considering the arguments and the available evidence, the judge denied the bail application, stating that the accused had failed to establish a case for bail at that stage. The judge directed the trial court to record evidence from material witnesses within two months. The accused was given the option to file a fresh bail application before the trial court based on new grounds, if necessary.

Summary: Acquittal granted----The appellants during the identification proceedings had informed the conducting Magistrates that they had earlier been shown to the witnesses. The objection was recorded but the Magistrates surprisingly did not attend to it, which constituted a serious lapse on their part. The prosecution witnesses who identified the accused persons before the Trial Court had a number of opportunities to see the accused persons before their statements were recorded. Neither the Forensic Science Laboratory nor any of the policemen, who had retrieved the bullet and its casing and had kept them in custody and then delivered them to the Laboratory, mentioned the marks affixed on the seals affixed on the parcels in which the said items were delivered to and received by the Laboratory----The appellants were Javed Khan alias Bacha and Raees Khan, and they were appealing against their conviction for the murder of Haji Muhammad Hazir. The judgment was delivered by Mr. Justice Qazi Faez Isa. The Rawalpindi Bench of the Lahore High Court had upheld the conviction of the appellants, with Raees Khan being sentenced to death and Javed Khan to imprisonment for life. However, their conviction under section 392 of the Pakistan Penal Code (?PPC?) was replaced with section 394 PPC read with section 34 PPC, and they were each sentenced to 10 years of rigorous imprisonment with a fine of fifty thousand rupees. The prosecution's case revolved around the murder of Haji Muhammad Hazir, which was reported by his son Nasir Mehmood in FIR No.513/2000. The appellants were accused of attempting to rob Haji Muhammad Hazir's general store and subsequently murdering him when he resisted. However, critical witnesses mentioned in the FIR were not produced by the prosecution during the trial. The identification parades conducted for the appellants were criticized by the defense for various irregularities, including prior exposure of the witnesses to the appellants. Additionally, concerns were raised about the forensic report regarding the matching of the bullet casing with the pistol recovered in another case. Ultimately, the Supreme Court acquitted both appellants of all charges based on the lack of credible evidence and the procedural irregularities observed during the trial.

Summary: S.394,324,336,337-D PPC,13 AOOverwhelming evidence,day light occurrence(Appeal dismissed) --- The appellant, Zarif Khan, challenged the judgment of the Additional Sessions Judge, Hangu, where he was convicted and sentenced for various offenses, including Sections 394 and 397 of the Pakistan Penal Code, Section 324, Section 336, Section 337-D, and Section 13 of the Arms Ordinance, 1965. --- The court analyzed the jurisdictional issue raised by the appellant, specifically whether the appeal should be filed before the Federal Shariat Court. The court referred to a precedent, "Attaullah Versus Abdur Razaq and another," and concluded that since the appellant had been convicted under the general law (Pakistan Penal Code) and not under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the appeal was properly filed before the Peshawar High Court.The judgment ultimately upheld the conviction and sentences, except for Section 13 of the Arms Ordinance, where the appellant was acquitted. The document concludes with the dismissal of the appeal and the maintenance of the conviction and sentences, with a focus on legal analysis related to jurisdiction and criminal charges.

Summary: (a) Evidence Act (I of 1872)- -.S.9-Identification parade-Role of accused at time of commission of offence not described by witness-Inherent defect-Evidence of witness identifying accused in such identification parade lost its efficacy and not relied upon. Khadim Hussain v. The State 1985 S C M R 721 rel. (b) Penal Code (XLV of 1860)- -S.394/34-Reappraisal of evidence by Supreme Court-Conviction under S.394/34, P.P.C. by Special Court for Speedy Trial, challenged-Prosecution relying on testimony of complainant, evidence of tracker, identification of accused-appellants by complainant, and recovery of crime weapon and stolen articles-Analysis of evidence by Supreme Court indicating material discrepancy in statement of complainant-Identification parade and evidence of tracker found unreliable-No independent evidence of recoveries which was found improbable-Conduct of investigating agency showing that lot of padding had been done in the case against accused-appellant-Possibility of fabricating evidence against two accused discernible from admission of investigating officer-Prosecution having failed to establish its case beyond reasonable doubt, appeals accepted allowing benefit of doubt to accused.

Summary: (a) Criminal Procedure Code (V of 1898)- S. 309-Opinion of assessors to be taken on all charges-Conviction and sentence on charge in respect of which opinion of assessors not taken-Illegal Person jointly charged under Ss. 302 & 394, P. P. C. Opinion of assessors in respect of charge under S. 394 not taken-Conviction and sentence under S. 302 also not legal. The language of section 309 of the Criminal Procedure Code, 1898, [as inserted by section 82 of the Criminal Procedure Code Amendment Act (XVIII of 1923)] is so clear that there can be no doubt that the Court has to take the opinion of each assessor on all the charges on which the accused has been tried. The provisions of the section are imperative. The accused was charged under sections 302 and 394 of the Penal Code and the assessors' opinion was obtained on the charge under section 302 but their opinion was not obtained in respect of the charge under section 394 of the Penal Code. It was held that the conviction and sentence of the accused under section 394, Penal Code were illegal. It was further held that all the acts which constituted the subject-matter of the two charges i.e. murder and robbery, not only constituted one transaction but took place in such quick succession and were so connected with each other that the truth or falsity of one was bound to react on the other and it could not be said that the failure to obtain the opinion of assessors in respect of the charge under section 394 Penal Code has not prejudiced the accused and had not rendered the conviction and sentence of accused under section 302 also illegal. A fresh trial was ordered. Khanu v. The State P L D 1958 Lah. 330 and Prem Nath v. The State of Delhi P L D 1956 S C (Ind.) 197 rel. Dates of hearing: 13th, 17th and 18th November 1959.

Summary: (a) Evidence Act (I of 1872)- -S. 30-Confession affecting co-accused but affecting the maker only impliedly-Inadmissible against co-accused. One of four robbers, arrested on the spot, named before his captors, two of his companions as having taken part in the robbery. Held, the statement that he had so named his companions was inadmissible under section 30, Evidence Act inasmuch as the person naming them, only impliedly "tarred himself with the same brush with which he had tarred the others". (b) Evidence Act (I of 1872)- -S. 106-Recovery of incriminating articles at instance of accused-Burden on accused to prove how he came by the knowledge of the place of concealment of such articles. When it is established that an accused person has given information about an incriminating article it is for him to explain how he came by the knowledge of the place where that article was. (c) Identification-Evidence as to-Not safe to rely on. The evidence of identification is not safe to rely on. (d) Evidence Act (I of 1872)- -S. 114, illus (a)-Possession of stolen property a few days after robbery-Accused convictea under S. 411 P. P. C, and not for robbery. (e) Pakistan Penal Code (XLV of 1860)- -S. 460-Murder committed after termination of offence of house-breaking Section inapplicable. The offence of murder having been committed after the offence of house-breaking terminated will not attract the provisions of section 460 P. P. C. The robbers, finding that the residents of the village intended to capture them, scaled the wall of the house in which they had committed robbery and jumped outside into the lane, carrying with them some clothes belonging to the owner of the house. When outside the house the robbers were surrounded by tire villagers in large numbers, at which one of the robbers who carried a firearm fired at the villagers, four of whom received injuries and one of those four died. Held, that section 460 P. P. C., was inapplicable. (f) Pakistan Penal Code (XLV of 1860), - S. 397-Does not create an offence but fixes a minimum punishment in certain cases of robbery or dacoity. Section 397 P. P. C. does not create an offence or prescribe its punishment but fixes the minimum punishment in certain cases of robbery and dacoity. The section is a kind of a proviso to sections 392, 394 and 395 P. P. C. (g) Pakistan Penal Code (XLV) of 1860), - Ss. 34 and 149 Distinction-Offence known to be likely to follow-Section 34 not necessarily applicable. Section 34 has application only if the act for which offenders other than the one who did it are sought to be made liable was done in furtherance of the common intention of the participants in the crime and not otherwise. The section has some resemblance to section 149 of the, Pakistan Penal Code as like that section it makes an offender vicariously liable for the acts of his companions but there the similarity between the two sections ends. Section 149 P. P. C. is applicable not only when an offence is committed in fur therance of the common object of the unlawful assembly but also if the offence committed was known to be a likely result of the object which the members of the unlawful assembly set out to achieve. If the act for which offenders other than its perpertrator are sought to be made liable was inevitable, Courts will draw the inference that the common intention of all the participants in the crime was to do that act unless it is proved by cogent evidence that it was not. Again, if all the offenders have acted in a manner which shows unmistakably that their common intention was to do what one or some of them achieved, section 34 of the Pakistan Penal Code will have clear application. One difference between sections 34 and 149 of the Pakistan Penal Code is that while the latter section may have application even if the offence committed by one or some of the offenders was such which though not the common object of the unlawful assembly should have been known to be a likely result of what the unlawful assembly set out to achieve; the former will be applicable only if the act that was done was the one which the offenders had formed the common intention to do. From the fact that murder and attempted murders were likely results in this case the application of section 34 P. P. C., did not necessarily follow. As the question as to what the common intention of a set of offenders was is one of fact in each case, decisions given in other cases can have no more than persuasive value. A companion of a robber might have an approbation and admiration for him if he had killed one of the villagers who were out to capture them, but that will not take the place of intention necessary for the application of section 34. Raja v. The Crown P L R 1954 Lah. 93: P L D 1954 Lah. 201 Sher Muhammad and another v. Emperor A I R 1927 Lah. 765, Barendra Kumar Ghosh v. Emperor A I R 1925 P C 1, Indar Singh Gurmukh Singh v. Emperor A I R 1933 Lah. 819, Bahar v. The Crown P L D 1954 F C 77 and Sana Ullah and others v. The Crown P L D 1954 Lah. 382 mentioned. Per C. M. Sharif, J. (contra). - When persons set out to commit robbery and one of them commits a murder with a lethal weapon, which he carries to the knowledge of others, I would, in the absence of evidence which proves to the contrary, be inclined to hold that the murder resulted because of a preconcerted plan between the robbers in spite of the fact that section 34 of the Pakistan Penal Code is more limited in its scope than section 149 of the Pakistan Penal Code. (h) Criminal Procedure Code (V of 1898), -Ss. 225 and 237-Charge and conviction under Ss. 302/34, 307/34 and 397 P. P. C-Conviction changed to one under S. 394 P. P. C. in appeal. The appellants were charged under section 397 and sections 302/34 and 307/34 P. P. C. and convicted. In appeal before the High Court, the appellants were found not guilty of offences under sections 307/34 and 302/34 P. P. C. They were found guilty of an offence under section 394 P. P. C. and sentenced. The omission to frame the proper charge under-section 394 P. P. C. was not considered an insurmountable obstacle in this case. As the third and the fourth heads of the charge dealt with the offence under sections 302/34 and 307/34 P. P. C., respectively, it could hardly be doubted that the accused persons knew that they were being tried for robbery during the course of which hurt had been caused and, by reason of sections 225 and 237 of the Code of Criminal Procedure, the appellants could even in appeal be convicted under section 394 of the Pakistan Penal Code. Mushtaq Hussain for the Advocate-General for Respondent.

Summary: Bail denied --- (a) Criminal Procedure Code (V of 1898) ----S. 497----Post-arrest bail—Principles governing—Tentative assessment—Held, that at bail stage, a deeper appreciation of evidence is not permissible; only a tentative assessment is made to determine a prima facie case—Positive identification of the Petitioner by the injured Complainant in a lawful identification parade, corroborated by medical and ballistic evidence, constitutes sufficient material connecting the Petitioner with the offence—No mala fide or ulterior motive established—Bail declined. (b) Penal Code (XLV of 1860) ----Ss. 394, 411 & 337-F(ii)----Robbery with firearm injury—Evidentiary considerations—Petitioner not named in FIR—Effect—Held, that mere non-nomination in the FIR is not conclusive when subsequent identification and recovery corroborate prosecution case—Injured Complainant’s ocular account carries strong evidentiary value; identification parade conducted in accordance with law—Minor variations between witnesses’ statements immaterial at bail stage—Medical evidence consistent with firearm injury inflicted by accused. (c) Penal Code (XLV of 1860), S. 394 read with Criminal Procedure Code (V of 1898), S. 497----Prohibitory clause—Applicability—Offence under S. 394 PPC punishable up to life imprisonment—Involves armed robbery, firearm injury, and threat to public safety—Falls squarely within prohibitory clause of S. 497 Cr.P.C.—Gravity of offence disentitles accused to concession of bail. (d) Evidence—Recovery of unmarked currency—Admissibility and corroborative value—Held, that recovery of Rs. 20,000/- produced through Petitioner’s father shortly after occurrence and linked through voluntary statement, though unmarked, retains evidentiary significance when supported by circumstantial consistency and chain of custody. (e) Defence plea—Simultaneous arrest in another case—Distance and time proximity—Held, that mere proximity of two incidents within 25 minutes and 14.7 km distance does not exclude possibility of Petitioner’s involvement in both, particularly absent verified arrest timing—Such factual controversies are to be determined at trial, not at bail stage. Disposition: Bail Petition dismissed; offences fall within prohibitory clause; sufficient material connects Petitioner to the occurrence; observations made are tentative and shall not prejudice the trial.

Summary: (a) Penal Code (XLV of 1860)---- ----Ss. 392/34, 394/34 & 324/34---Robbery at gunpoint---Conviction and sentence---Complainant and prosecution witnesses were counting money when armed accused arrived and forcibly took cash and identity cards---Upon resistance, accused fired shots at the complainant party but missed---Accused were overpowered by the complainant and witnesses, and weapons were recovered from them at the scene---Police arrived and took the accused into custody---Trial Court convicted the accused under Ss. 392/34, 394/34, and 324/34, P.P.C., sentencing them to life imprisonment, fines, and additional rigorous imprisonment terms. (b) Evidence---Medical evidence---Admissibility---Failure to produce medical officer ----Injuries on the complainant and witnesses were supported by medico-legal reports; however, the prosecution failed to produce the medical officer who conducted the examination---Instead, a junior clerk testified to prove the reports---Held, that prosecution should have demonstrated that the doctor was unavailable and taken necessary legal steps for summoning him before relying on secondary evidence---Failure to do so rendered the medical evidence inadmissible, leading to the setting aside of convictions under Ss. 394/34 and 324/34, P.P.C. (c) Surrender of Illicit Arms Ordinance (XX of 1991)---- ----S. 7(1)(c)---Possession of illegal weapons---Failure to establish charge---Prosecution did not present any evidence proving that the recovered weapons were possessed without a valid license---No specific question was put to the accused under S. 342, Cr.P.C. regarding unlawful possession---Held, that in the absence of such evidence, conviction under S. 7(1)(c) of the Ordinance could not be sustained---Accused acquitted of this charge. (d) Criminal trial---- ----Plea of false implication---Defense claimed that the incident arose from a monetary dispute over the purchase of foreign currency and that they were falsely implicated---Trial Court rejected this version, noting that no evidence was presented to substantiate the claim that the complainant owed the accused money for dollars---Absence of any receipt or proof of payment contradicted the defense claim---Held, that defense version lacked credibility and was rightly discarded. (e) Oaths Act (X of 1873)---- ----Ss. 7 & 13---Recording of evidence without formal oath---Irregularity curable---Contention that trial was vitiated as witnesses were not administered oath per prescribed legal form---Held, that such an omission was a curable irregularity under S. 13 of the Oaths Act and did not affect the validity of the trial---Reference made to Zeb-ul-Haram v. State (PLD 1991 FSC 1). (f) Sentencing---- ----Modification of sentence---Conviction under Ss. 394/34 and 324/34, P.P.C., and S. 7(1)(c) of the Illicit Arms Ordinance set aside due to lack of legally admissible evidence---Conviction under S. 392/34, P.P.C. maintained as prosecution successfully proved that the accused committed robbery at gunpoint---Sentence modified to seven (7) years rigorous imprisonment and a fine of Rs. 20,000 each, with two years’ additional imprisonment in case of default---Accused granted benefit of S. 382-B, Cr.P.C. ----Disposition: Appeal partly allowed. Conviction under S. 392/34, P.P.C. upheld with modified sentence; other convictions set aside. Cited Cases: Zeb-ul-Haram v. State (PLD 1991 FSC 1).

Summary: ----Background: The appellant was convicted by the Additional Sessions Judge for the murder of two women during the course of a robbery. The charges included murder under Section 302(b) of the Pakistan Penal Code (PPC), robbery under Section 394 of the PPC, and possession of illegal arms under Section 15 of the Arms Act. The appellant challenged these convictions, leading to the present appeals and a suo moto revision by the court regarding the adequacy of the sentence. ----Issues: 1- Whether the trial was conducted fairly, given that the appellant was unrepresented by counsel at the time of framing the charges. 2- Whether the charges against the appellant were properly framed, particularly concerning the appellant's alleged involvement in robbery and murder. 3- Whether the conviction under Section 412 of the PPC was appropriate, given the circumstances of the case. 4- Whether the trial court's sentence of life imprisonment instead of the death penalty was justified. ----Holding/Reasoning/Outcome: The court set aside the trial court’s judgments and remanded the case for a new trial (denovo trial) from the stage of framing charges, with a directive to follow the mandatory provisions of law. The appellant was not represented by a counsel when the charges were framed, which is a critical stage in a trial involving capital punishment. This lack of legal representation and the absence of proper explanation of the charges in a language understood by the appellant (who is a Pakhtun) prejudiced the appellant’s ability to defend himself. The charges were found to be vague and lacking in essential details, which caused prejudice to both the prosecution and the defense. Specifically, the charges did not adequately address the recovery of weapons used in the crime or the confession made by the appellant. The conviction under Section 412 of the PPC was improper as the appellant, who was directly involved in the robbery and murder, could not simultaneously be convicted as a receiver of stolen property. The sentence of life imprisonment was based on flawed reasoning by the trial court, which failed to properly apply the law concerning the severity of the crime. The judgments of the trial court were set aside, and the case was remanded for a new trial. The court directed that the trial be conducted within three months, ensuring compliance with the law and the constitutional guarantee of a fair trial. ----Citations/Precedents: Khalid Aziz vs. The State (PLD 2003 Peshawar 94) - Addressing the importance of legal representation during the trial, especially at the stage of framing charges. 2020 YLR 159 Naubahar alias Baharu Vs. The State - Emphasizing the necessity of providing counsel to the accused to ensure a fair trial. Haq Nawaz v. State (2000 SCMR 785) - Establishing that the trial commences with the framing of charges and the necessity of the accused understanding these charges. Abdul Ghafoor v. The State (2011 SCMR 23) - Highlighting the court’s obligation to appoint a defense counsel if the accused is unable to do so.