BASHIR AHMED vs State Ss — 2022 SCMR 1187 SUPREME-COURT

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BASHIR AHMED VS State Ss. 299(l) & 302(b)---Qatl-i-amd---Tazir---Meaning and scope---Literal meaning of word 'tazir' is chastisement---Word 'tazir' means punishment inflicted by the Court other than 'qisas'---As the punishment of 'tazir' is not prescribed by the Holy Quran or Sunnah, therefore, it cannot be as stern and stringent as that of qisas; it includes punishment of imprisonment, forfeiture of property and fine---Discretion has been left with the court assigned with the matter to decide and inflict either of the punishments commensurating with the overt act as surfaced according to facts and circumstances of the case---Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State S. 34---Common intention---Scope---alleged criminal act should be in furtherance of common intention and not the common intention simpliciter---Mere presence of an accused with another accused who commits the crime would not constitute his common intention unless there is an evidence referring to the criminal act of that accused committed in furtherance of common intention with the other accused. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State S. 302(c)---Qatl-i-amd committed due to provocation---Meaning, scope and essentials elements of provocation stated. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 34, 148, 149 & 302(c)---Criminal Procedure Code (V of 1898), Ss. 265C, 265D, 340(2), & 342---Constitution of Pakistan, Arts, 189, 190 & 203---Qatl-i-amd---Multiple assailants---Common intention or common object---Guidelines/directions issued by the Supreme Court regarding the steps to be taken by the Trial Court in ascertaining the aspect of common intention or common object during the trial stated. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Public confidence in judicial process---Courts of law can gain the confidence by imparting fair, equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender, race, religion, colour, caste, creed, status and language etc.---Judges have to discharge such arduous task with utmost care and caution so that public confidence in judicial process is not shattered. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 34, 148, 149 & 302(b)---Qatl-i-amd --- Multiple assailants --- Common intention or common object --- Any judgment which concludes the commission of offence falling under section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 34, 148, 149, 302(b), 302(c), 324, 337-F(vi) & 337-L(2)---Criminal Procedure Code (V of 1898), Ss. 265C, 265D, 340(2), & 342 --Qatl-i-amd---Reappraisal of evidence---Multiple assailants---Common intention or common object---Trial Court failing to give finding on whether the murderous assault was committed in furtherance of common intention---Effect---Remand of case to Trial Court---In the present case, the accused was convicted under section 302(b), P.P.C. and sentenced to death by the Trial Court, which was altered into imprisonment for life by the High Court---One of the co-accused ('the convicted co-accused') was convicted under sections 337-F(vi) & 337-L(2), P.P.C. for causing injuries to two persons, whereas the three co-accused persons ('the acquitted co-accused persons') were acquitted by the Trial Court, and their acquittal was not challenged---Keeping in view the sentence inflicted to accused under section 302(b), P.P.C. and sentence inflicted to convicted co-accused under section 337-F(vi) and 337-L(2), P.P.C., question was if the Courts below ignored the aspect whether act of both accused and convicted co-accused was committed in furtherance of their common intention, especially when there was no finding to such effect; whether in absence of such finding, the conviction and sentence recorded by the courts below was justified in law; whether when accused was convicted under section 302(b), P.P.C. and convicted co-accused according to his individual role, both their sentences were in consonance with the spirit of sections 302, 324 and 34, P.P.C. (common intention) or (with five or more accused) under sections 302, 148 & 149, P.P.C. (common object)---[Per Sayyed Mazahar Ali Akbar Naqvi, J. (Majority view): Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of section 34, P.P.C. (common intention) or sections 148 and 149, P.P.C. (common object)---Said legal aspects are to be addressed with the application of the provision of section 302(b), P.P.C. depending upon the number of assailants---Courts below are bound to ascertain the aspect of common intention or common object primarily at the time framing of the charge on the basis of contents of FIR, statements under sections 161 & 164, Cr.P.C., if any, final report under section 173, Cr.P.C. and other attending documents collected by the Investigating Officer during investigation---Trial Court is equally responsible to give a definite finding qua the applicability of section 34, P.P.C. or sections 148 and 149, P.P.C. at the time of conclusion of the trial while handing down the judgment---Any judgment which concludes the commission of offence falling under section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject---Petitions for leave to appeal were converted into appeals and allowed, impugned judgments of High Court and Trial Court were set-aside and matter was remanded to the Trial Court for the limited purpose of re-writing the judgment within two months on the basis of existing judicial record in accordance with law and the guidelines given in the present judgment---[Per Mazhar Alam Khan Miankhel, J. (Minority view): Role of both the accused and convicted co-accused qua the murder and the injuries to the witnesses was quite independent---Remand of the case of accused and convicted co-accused itself would be against the norms of justice when three co-accused had been acquitted, specifically the co-accused with the similar role of firing on witnesses as attributed to the convicted co-accused---Material and evidence available before the Court showed that the provisions of section 34, P.P.C. were not attracted in the present case---In both of the episodes of the occurrence, it appeared to be the individual acts of each accused which took place at the spur of the moment---Causing of injuries to the witnesses and the murder of deceased took place in two separate and independent episodes---In the first episode of the occurrence, the accused and acquitted co-accused did not commit any criminal act with their common intention and they did not cause any injury to witnesses, who, being empty handed, were at their mercy---No overt act falling in the definition of a criminal act was even attributed to them in the FIR---Similarly, during the second episode a single fire shot had been attributed to the accused on the deceased, whereas the convicted co-accused and an acquitted co-accused fired at complainant and a witness, who miraculously escaped but such a story can hardly be believed because if they possessed the common intention to commit the murder of the witnesses, who were at their mercy and reportedly empty handed, they could have easily achieved the same---Role of firing (criminal act) during the second episode though was attributed to an acquitted co-accused and the convicted co-accused but the trial Court not only acquitted both of them of the charge under section 302(b), P.P.C. but also held that there was no evidence of common intention---Such finding of trial Court had also attained finality, hence, there was no legal or moral justification for remand of the case of one of them (i.e. the convicted co-accused) on a matter which had already been decided and attained finality---Sending back the case of the accused and convicted co-accused to the Trial Court after about ten years would be nothing short of increasing their agonies and anguish, and would also be against substantial justice]. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State S. 302(c)---Qatl-i-amd---Scope of section 302(c), P.P.C. stated. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 34, 148, 149 & 302(c)---Qatl-i-amd---Multiple assailants---Common intention or common object---Individual liability---Finding of Trial Court that the offence committed was not in furtherance of common intention or common object, but prosecution otherwise proving its case against accused persons---In such circumstances, the Court is under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to overt act ascribed to him. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 34, 148, 149 & 302(b)---Qatl-i-amd---Multiple assailants---Common intention or common object --- Duty of court to ascertain the aspect of common intention or common object at the time of framing of charge and conclusion of trial stated. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 302(a), 302(b) & 304---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl-i-amd---Scope of section 302(b), P.P.C. stated. Head NotesCase Description Citation Name: 2022 SCMR 1187 SUPREME-COURTBookmark this Case BASHIR AHMED VS State Ss. 302(a) & 304---Qatl-i-amd liable to qisas---Witness, credibility of---Tazkiya-tul-shahood---Modes to ascertain the credibility of a witness on the touchstone of tazkiya-tul-shahood explained. Head NotesCase Description

BASHIR AHMED vs State Ss — 2022 SCMR 1187 SUPREME-COURT

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