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Jharkhand High Court · body

2016 DIGILAW 142 (JHR)

Mohammad Ali v. State of Jharkhand

2016-01-20

R.N.VERMA, R.R.PRASAD

body2016
JUDGMENT : R.N. Verma, J. In these appeals, the appellants challenged the correctness of the judgment of conviction dated 03.09.2004 and order of sentence dated 04.09.2004 passed by Sessions Judge, Palamau in Sessions Trial no. 220 of 2003 whereby and whereunder, the appellant- Mohammad Ali has been convicted under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. The other two appellants Annu Hawari and Sheru Quraishi have been convicted under Section 302/34 of I.P.C. and sentenced to undergo rigorous imprisonment for life. 2. Filtering the unnecessary details, the case of prosecution, which is based on the fardbeyan of Shamima Khatoon (PW-5) recorded by Sub-Inspector Prem Mohan at Sadar (Town) hospital, Daltonganj at 7:30 P.M., in short, is that she along with her brother Babloo Quraishi (since deceased) were sitting outside her house and at about 6:45 P.M. when Babloo tried to move towards the river side, she protested and requested him not to go to the river side as Mohammad Ali, Md. Sheru and Annan @ Anu Hawari are sitting there but by then, her brother had reached near the house of Shamim Ryne. Suddenly from river side, all the three above persons came there riding on a black motorcycle and stopped their vehicle and started abusing her brother. She rushed to the place but by then Mohammad Ali, who was having a pistol in his hand, shot fire from the said pistol causing injury in stomach of her brother. After sustaining injury, her brother fell down whereafter all the three accused persons fled away on the same motorcycle. The informant with the help of local people brought her brother to Sadar Hospital but Babloo succumbed to his injuries during treatment. The motive, as disclosed in the fardbeyan, is that there was some dispute between the deceased and the accused persons and for that accused persons had earlier threatened him of dire consequence. On the basis of the fardbeyan, Palamau (Town) Sadar P.S. Case no. 144 of 2002 was instituted on 29.05.2002 at 9:15 p.m. under Section 302/34 I.P.C. and also under Section 27 of Arms Act. 3. On completion of investigation, police submitted the charge-sheet against the three appellants. On the basis of the fardbeyan, Palamau (Town) Sadar P.S. Case no. 144 of 2002 was instituted on 29.05.2002 at 9:15 p.m. under Section 302/34 I.P.C. and also under Section 27 of Arms Act. 3. On completion of investigation, police submitted the charge-sheet against the three appellants. Accordingly, cognizance of offence was taken and the case was committed to the court of sessions where the charge against the appellant- Mohammad Ali was framed under Section 302 I.P.C. and also under Section 27 of Arms Act for committing murder of Bablu Quraishi and against two appellants Sheru Quraishi and Annan @ Annu Hawari, charge was framed under Section 302/34 of I.P.C. for committing murder of the said Babloo Quraishi in furtherance of common intention. 4. During investigation, the dead body of Babloo Quraishi was sent for post-mortem examination, which was conducted by Dr. Satish Kumar Sinha (PW-6) on 29.05.2002 at 8:15 a.m. and did find the following injuries:- (i) Wound of Entrance- 1/2" x 1/4" x deep up to abdominal cavity, in the back right to mid-line at the level of thoracic eleven vertebra, oval in shape, margin inverted blackening of skin around wound. (ii) Wound of Exit- Margin everted, ragged and torn 1”x 1/2”x abdominal cavity deep in epigastrium. (iii) Abrasion- 1” x 1” in the middle of right forearm laterally. Both the wounds of entrance and exit communicating to each other. On dissection of abdomen:- Peritoneal cavity- full of blood with splenic rupture and perforation large intestine. In the opinion of the doctor, both the injuries caused by fire arm were communicating to each other and sufficient to cause death. Death took place due to shock and hemorrhage caused by these fire arm injuries. The doctor (P.W.6) issued the postmortem examination report (Ext.-1) but as there was some mistake with regard to the date on the P.M. report, this witness was recalled and, thereafter, the witness confirmed that he conducted the autopsy on the dead body on 30.05.2002 at 8:15 a.m. and not on 29.05.2002 as wrongly mentioned in the P.M. Report. 5. At the trial, the prosecution in order to bring home the charge, examined altogether eight witnesses. Of them, PW 1-Ashya Khatoon- Bhabhi of the deceased and eye-witness of the occurrence, PW2- Shahansha @ Sonu Quraishi- Bhagina of the deceased, PW 3- Md. Eqbal- an independent witness, PW 4-Md. 5. At the trial, the prosecution in order to bring home the charge, examined altogether eight witnesses. Of them, PW 1-Ashya Khatoon- Bhabhi of the deceased and eye-witness of the occurrence, PW2- Shahansha @ Sonu Quraishi- Bhagina of the deceased, PW 3- Md. Eqbal- an independent witness, PW 4-Md. Alam Quraishi- the brother of the deceased and husband of PW-1, PW 5- Shamima Khatoon- the informant, sister of the deceased and eye-witness of the occurrence, P.W.6-Dr. Satish Kumar Sinha, who conducted autopsy on the dead body of the deceased Babloo, PW 7- Dilip Kumar Das - the first Investigating Officer and PW 8- Prem Mohan- the Second I.O. The defence in support of the plea of alibi examined two witnesses namely DW 1- Prakash Kumar Agrawal and DW 2- Kamesh Ram and also relied on certified copy of formal F.I.R. under NDPS Act against one Laddan Quraishi (Ext.-A) and written report (Ext.-B) to contradict the evidence of informant (P.W.5) that no any case was pending against her brother Laddan and also relied on Ext.-A/1 and Ext.-B/1 showing cases pending against the deceased Babloo Quraishi. 6. On consideration of the evidence on record, the learned Sessions Judge found the accused-appellants guilty and imposed sentence as indicated above. Whereafter, the three appellants separately filed their respective appeals before this Court. 7. Mr. P.C. Tripathi learned senior counsel appearing for one of the appellant Sheru Quraishi by filing a supplementary affidavit on 19.01.2016 enclosing the death certificate of the said appellant submitted that the said appellant died during pendency of the appeal on 14.06.2006 as such, the appeal with respect to the said appellant may be abated. 8. Learned counsel representing the State fairly submitted that this fact has come in the F.I.R. bearing Palamau Sadar (Town) P.S. Case no. 576 of 2012 enclosed with one B.A. No. 1983 of 2014 also wherein the said appellant Md. Sheru Quraishi has been shown to be murdered in the year 2006 itself. 9. In support of the appeal, learned senior counsel Mr. 576 of 2012 enclosed with one B.A. No. 1983 of 2014 also wherein the said appellant Md. Sheru Quraishi has been shown to be murdered in the year 2006 itself. 9. In support of the appeal, learned senior counsel Mr. Kashyap seriously contended that the court below erred in placing reliance on the evidence of P.W.5 and P.W.-1, who apart from being close relatives of the deceased, were also highly interested witnesses and as even in the first information report, the informant- P.W.5 has nowhere stated about the presence of P.W.1 near the place of occurrence and similarly the P.W.1 has also nowhere stated in her testimony that the informant was present when the occurrence took place. As such, the court below has faulted in accepting the evidence of these two principal witnesses cited by the prosecution as an eyewitnesses. Learned senior counsel has also pointed out certain discrepancies and exaggeration in the evidence of PW-5, which according to the learned senior counsel Mr. Kashyap, makes the presence of these two witnesses highly improbable at the time of incident. PW-5 and PW-1 both in their testimony have stated that on the command of one of the appellant Sheru Quraishi, Mohammad Ali another appellant shot fire with his pistol causing fire arm injury in the stomach of Bablo Quraishi-the deceased but this fact is an improvement from the fardbeyan of PW-5 and the Investigating Officer while confronted with this statement has denied in paragraph 11 that they had ever given any such statement before him. In this background, learned senior counsel contended that the court below ought to have rejected the evidence of PW-5 and PW-1. It was also seriously contended that Section 34 of I.P.C. is in no way attracted in as much as no overt act has been attributed to the two appellants Sheru Quraishi and Annu Hawari and there is nothing on the record to show that they had shared any common intention. It was also submitted that there was delay in sending the formal F.I.R. to the court concerned as the fardbeyan was given at 7:30 p.m. on 20.05.2002, formal F.I.R. was recorded on the same date at 10:30 P.M. but the same was received in the court of Chief Judicial Magistrate on 31.05.2002. Since there is no explanation regarding the delay in sending the F.I.R., it makes the whole prosecution story suspected. Since there is no explanation regarding the delay in sending the F.I.R., it makes the whole prosecution story suspected. Lastly it was suggested that the evidence of other witnesses like PWs. 2, 3 and 4 cannot be believed and no motive has been established by the prosecution. 10. As against this, learned counsel appearing on behalf of the State supported the conviction and pointed out that there was no reason or occasion for PW- 5 and PW-1 to falsely implicate the accused-appellants and the learned trial court has analyzed the evidence in microscopic manner and found the appellants guilty of the offence. The learned counsel would contend that the court below has clearly established the factum of common intention as envisaged under Section 34 of the Indian Penal Code and the specious stand that no motive has been established by the prosecution is absolutely irrelevant and deserves rejection as there is ample direct evidence to show the commission of crime by all the appellants. Learned counsel further contended that even if there was some exaggeration regarding the command given by Sheru Quraishi but as there is unimpeachable evidence of the witnesses, who arrived at the scene of the occurrence immediately after the incident, the truthfulness of the witnesses cannot be questioned. Regarding delay in sending the formal F.I.R. to the court, this cannot be fatal to the entire prosecution case as no cross-examination of the Investigating Officer has been made on this point and this issue has been critically examined by the learned court below in the judgment impugned. 11. Before we proceed to deal with the submissions canvassed by the counsels, the first and foremost thing is that there is no dispute that the death of the deceased Babloo was homicidal in nature. Similarly, there is practically no challenge to the evidence of doctor (PW-6), who conducted autopsy on the dead body of the deceased. PW 6 in his testimony has clearly asserted that the deceased had died on account of shock and haemorrhage due to splenic rupture caused by fire arm and had also found the wound of entrance and exit. In paragraph 3 of his examination-in–chief, the witness has opined that the injuries were sufficient to cause instant death. Keeping in view the injuries sustained by the deceased, it is to be seen how the prosecution has established the complicity of the accused-appellants in the crime. 12. In paragraph 3 of his examination-in–chief, the witness has opined that the injuries were sufficient to cause instant death. Keeping in view the injuries sustained by the deceased, it is to be seen how the prosecution has established the complicity of the accused-appellants in the crime. 12. PW-5- the informant, who is the sister of the deceased, has categorically stated that one of the appellant Mohammad Ali quarreled with Babloo and thereafter shot fire with his pistol causing fire arm injuries in the stomach of the deceased Babloo. It has come out in her testimony that she along with Babloo Quraishi (the deceased) and other family members were sitting outside her house whereafter Babloo started walking, in the meantime, Mohammad Ali, Sheru and Annu Hawari came on a motorcycle and started quarreling with Babloo and on command given by Sheru to kill him, Mohammad Ali shot fire from his pistol, which caused injury in the stomach of Babloo. Thereafter all the three appellants fled away on the same motorcycle. The witness has further stated that she along with other persons took Babloo to Sadar Hospital, Daltonganj where her statement was recorded by the police. The witness has further testified that Mohammad Ali used to quarrel with Babloo for petty matters and on one occasion, he had threatened him of dire consequence. While giving description of the place of occurrence, the witness has given boundary of place of occurrence showing house of Shamim Kujra/Ryne in the south which is in consonance with the statement made in her fardbeyan. The witness in paragraph-17 has further testified that the father of appellant Mohammad Ali happens to be her Mama (maternal uncle) and the house in which Mohammad Ali resides is an ancestral house in which mother of this witness has also share. The attention of this witness was drawn towards her statement of giving command by Sheru Quraishi, since no such statement was given by the witness either in the F.I.R. or in her statement recorded during investigation, so when the I.O. (PW-8) was confronted to this statement, he denied that she had given any such statement before him. Undoubtedly, this is a subsequent development or improvement during evidence in court, which cannot be accepted. 13. Undoubtedly, this is a subsequent development or improvement during evidence in court, which cannot be accepted. 13. Now, we advert to the testimony of another eye-witness of the incident PW-1, who has almost reiterated the testimony of PW- 5 by saying that she was sitting outside her house when at about 6.00 – 7.00 p.m., three boys came on a motorcycle. At that time, her Dewar Babloo was standing there but the said three persons namely Mohammad Ali, Sheru and Annu started quarreling with Babloo and on the command given by Sheru to kill him, Mohammad Ali fired from his pistol on Babloo causing injury in his stomach and thereafter all the three fled away on the same motorcycle. Her Bhagina Sonu took Babloo to hospital but Babloo died almost after an hour. The witness has denied that there was any dispute with the appellants. During cross-examination, the witness has fairly admitted that she had never made any such statement before Daroga Jee that on command given by Sheru, Mohammad Ali fired from pistol rather she has made this statement for the first time in court. Obviously, this part of the statement of this witness is an improvement or subsequent development and cannot be accepted. During cross-examination, the witness has testified that the widow of the deceased Babloo was also there but it appears that the prosecution has not examined the said Bano Khatoon, the widow of the deceased. 14. Learned senior counsel Mr. Kashyap had developed an argument that neither PW-5 in her testimony has said about the presence of PW-1 near the place of occurrence nor the PW-1 in her statement has testified about the presence of PW-5 at the time of occurrence and so the testimony of the two witnesses are not trustworthy and reliable and no conviction should be based on their testimonies, who have projected themselves as eye witnesses to the incident merely being close relatives of the deceased. 15. True, it is that PW-5 and PW-1 are relative witnesses and as such it requires close scrutiny keeping that factor in mind. The Hon’ble Supreme Court in the case Vadivelu Thevar Vs. State of Madras; AIR 1957 SC 614 while deciding nature of witnesses held that there are three category of witnesses, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. The Hon’ble Supreme Court in the case Vadivelu Thevar Vs. State of Madras; AIR 1957 SC 614 while deciding nature of witnesses held that there are three category of witnesses, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. In the case of first two categories, the Supreme Court held that those category of witnesses pose little difficulty. In the case of third category witness, corroboration would be required. The relevant portion of the said judgment is quoted hereunder in paragraph 11 and 12: “11. …..Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.” 16. Now in the light of above three categories of witnesses, let us scrutinize the evidence of PW-5 and PW-1. Apparently, PW-5 and PW-1 both are living in different houses and the informant (PW-5) and the deceased were sitting together and in course of that, the deceased Babloo started walking and moved to a distance near the house of Shamim Ryne/Kujra when the appellants came on a motorcycle and first started quarreling with Babloo. Apparently, PW-5 and PW-1 both are living in different houses and the informant (PW-5) and the deceased were sitting together and in course of that, the deceased Babloo started walking and moved to a distance near the house of Shamim Ryne/Kujra when the appellants came on a motorcycle and first started quarreling with Babloo. Thereafter, Mohammad Ali fired from his pistol causing injury in his stomach and at that time, PW-1, who was sitting outside her house, also saw the three appellants, who came on a motorcycle and stopped the motorcycle near Babloo and started quarreling and, thereafter, Mohammad Ali fired from his pistol. Apparently, besides the improvement in the testimony of the two witnesses that on command of Sheru, one of the appellant Mohammad Ali fired from his pistol, the defence even after extensive cross-examination failed to explicit anything. We have carefully given our anxious consideration to the submissions canvassed at Bar and on the improvements made by the witnesses and we find that besides the said improvement made in Court by the two witnesses, if the testimony of the two witnesses are taken in totality to assess the probative value and to consider as to whether they are credible witnesses, it appears that the two witnesses have made a candid narration of the incidence and no hair splitting criticism can be made on the score that there is some improvement or variations in the testimony of the witnesses. Such improvement would not affect the broad features of the prosecution case. Besides the above, firstly we fail to find any material variations appearing in the testimony of these two witnesses to discard their credibility. Secondly, simply because the two witnesses have not testified about the presence of each other in their evidences, in our opinion, it would not be correct proposition of law to lay down that the evidence of a witness not named either in the first information report or in the testimony cannot be looked into. Nothing substantial seems to turn out of the so-called improvement, which appear to be merely trivial, not undermining the credibility or truthfulness of the evidence spoken by witnesses. Nothing substantial seems to turn out of the so-called improvement, which appear to be merely trivial, not undermining the credibility or truthfulness of the evidence spoken by witnesses. The defence besides the said improvement could not succeed in bringing to the notice of the Court any other vital discrepancy on any material aspects of the case, which could be said to either belie or undermine the credibility of those two witnesses, who claim to have witnessed the occurrence and deposed before the Court. 17. Though the rest three witnesses PWs. 2, 3 and 4 were not of much significance but we wish to refer to them and one of them happens to be PW-2 Sahanshah @ Sonu Quraishi. This witness has testified that he was near his house at about 6.00-7.00 p.m., he saw the accused persons coming on a motorcycle near the house of Shamim Ryne and on the direction of Shereu, Mohammad Ali fired from his pistol, which caused injury in the stomach of Babloo, whereafter he along with other persons took Babloo to hospital. PW-4 Md. Alam Quraishi has testified in his evidence that he was in his house at 6:30 – 7.00 p.m. when he heard the sound of fire and came near the house of Shamim Kunjra and saw Ashya Khatoon (PW-1) and Shamima Khatoon (PW-5) weeping and there was fire arm injury in the stomach of Babloo. This witness happens to be the own brother of the deceased. The I.O. of this case PW-8 in his evidence has also given the boundary of the place of occurrence in which the house of Shamim Ryne has been shown in the west of the place of occurrence. The objective findings made by the Investigating Officer (PW-8) is in consonance with the place of occurrence as described by almost all the witnesses. 18. We may now take notice of the findings recorded by Dr. Satish Kumar Sinha (PW-6) and this witness had noticed the wound of entrance and wound of exit in the P.M. Report caused by fire arm injury and the death took place due to shock and haemorrhage caused by the said injury and also found the said injury as sufficient to cause instant death. So, the medical evidence fully corroborates the eye-witnesses account of incident leading to commission of murder of the deceased. So, the medical evidence fully corroborates the eye-witnesses account of incident leading to commission of murder of the deceased. There was practically no challenge to the evidence of doctor, who conducted autopsy on the dead body of the deceased. 19. The next limb of argument is that there has been no allegation of any overt act against the two other appellants Sheru Quraishi and Annu Hawari and their mere presence along with Mohammad Ali would not establish their complicity, we have critically examined the evidence of PW-1 and PW-5 and other witnesses and we are in agreement with the submission of the learned senior counsel Mr. Kashyap that none of the witness has stated about any overt act against the two appellants Sheru Quraishi and Annu Hawari though it has come in the evidence that all the three appellants came on a motorcycle. The condition precedent, which are requisite to be satisfied to attract Section 34 of the Penal Code, are that the act must have been done by more than one person and the said person must have shared a common intention either by omission or commission in effectuating the crime. It is not necessary that there is a separate overt act by each of the accused and the Hon’ble Supreme Court has on several occasions considered this aspect. The Constitution Bench in Mohan Singh Vs. State of Punjab; AIR 1963 SC 174 at paragraph-13 has ruled as under: “13. ….. Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.” In another case Goudappa Vs. State of Karnataka; (2013) 3 SCC 675 , the Hon’ble Supreme Court recently reiterated the principle as follows: “Section 34 of the Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It has been further stated therein that the principle inherent in Section 34 of the Penal Code is only a rule of evidence, but does not create a substantive offence and, therefore, if the act is the result of a common intention, then every person would get the criminal act shared, and the common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Posing the question how to gather the common intention, the Court opined that the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and the nature of the injury caused by one or some of them are relevant. Emphasis has also been laid on the totality of the circumstances from which the common intention can be gathered.” In the light of settled principles, we have no hesitation in holding that in the case at hand, as has been indicated earlier, the two appellants Sheru Quraishi (since deceased) and Annu Hawari were simply onlookers and their intention is clearly reflectable from the evidence that none of the two appellant was holding any weapon or had participated in commission of the crime. There is no evidence on record to fasten or even infer the common intention of the two appellants Sheru Quraishi and Annu Hawari and on these premises, we find that the findings recorded by the court below as against them having common intention and finding them guilty and imposing sentence under Section 302/34 of I.P.C. is not sustainable. 20. So far as the last ground of attack on the sustainability of the conviction that the prosecution has not been able to prove any motive, we have already analysed the evidence brought on record and there is nothing to discard the same. In the case State of U.P. Vs. Kishanpal; (2008) 16 SCC 73 while dealing with the presence of motive, the Hon’ble Supreme Court held in paragraph-39 as follows:- “39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. ” It is true that when there is direct evidence on record, the question of motive or no motive does not affect the prosecution case. In the case Balram Singh Vs. State of Punjab; (2003) 11 SCC 286 , the Hon’ble Supreme Court in paragraph-11 has clearly stated that if the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also [would] not make the prosecution case weak. 21. Having given our deepest consideration to the evidence placed on record and also contentions raised by the learned senior counsels, we do find that the trial court was absolutely justified in recording the order of conviction and sentence against the appellant Mohammad Ali. 21. Having given our deepest consideration to the evidence placed on record and also contentions raised by the learned senior counsels, we do find that the trial court was absolutely justified in recording the order of conviction and sentence against the appellant Mohammad Ali. Accordingly, Criminal Appeal (D.B.) No. 2035 of 2004 is dismissed. Since, the appellant is in custody, he shall serve out the remainder of sentence. 22. So far as the appellant Annu Hawari is concerned, he has not even been alleged to have committed any overt act in commission of the murder of the deceased and thereby question of sharing any common intention does not arise. There is not even whisper about his participation in evidence of any of the witness and thereby the trial court has committed illegality in recording the order of conviction and sentence against the appellant Annan @ Annu Hawari for the offence under Section 302/34 I.P.C. Resultantly, Criminal Appeal (D.B.) No.1624 of 2004 is, hereby, allowed. Accordingly, the judgment of conviction and order of sentence recorded against the appellant Annu Hawari for the offence under Section 302/34 I.P.C. is, hereby, set aside. The appellant is acquitted of the charge and discharged from the liabilities of his bail bonds. 23. As regard to the conviction recorded against the appellant Sheru Quarishi is concerned, since the said appellant died during pendency of this appeal and an affidavit to that effect has been filed, we find that the said appeal bearing Criminal Appeal (D.B.)No. 1510 of 2004 has abated.