' This appeal is directed against the judgment, dated 13-6-2003 passed by the learned Additional Sessions Judge, Gujranwala, whereby, having tried the appellants in the case registered vide F.I.R.
No.253, dated 15-12-2002 under sections 302, 324/34, P.P.C., Police Station, Dhulley, Gujranwala, they were convicted for the murder of Zahid Javed alias Goga under section 302(b)/34, P.P.C. And sentenced to imprisonment for life each with a further direction to pay a compensation Rs.50,000 jointly to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo RI for six months' each. Benefit of section 382-B, Cr.P.C. Was extended to them.
2. The prosecution story, as unfolded through F.I.R. (Exh. PF/1) registered on the statement of the Zubair Ahmad complainant (P.W.7), briefly stated is that on the fateful day at 12-40 p.m., he along with Raheel Ahmad, Muhammad Iqbal and Muhammad Ijaz Butt alias Jugg, were sitting in the office of his brother "Zahid Javed alias Goga deceased when Muhammad Akram acquitted accused came to that office and after saying something to Zahid Javed alias Goga deceased, he left the office, that five minutes thereafter, Mst. Zohra Bibi appellant came along with Muhammad Ashfaq alias Mithu in the said office and called him out of the office who took him to the street; that in the meantime, Zahid Javed alias Goga deceased and Imtiaz alias Billa accused (Proclaimed Offender) started talking with each other; that the said Imtiaz alias Billa accused asked him that why he was got arrested by the police at the instance of the deceased whereupon he assured his innocence; that the said Imtiaz alias Billa accused (Proclaimed Offender) insisted on his point of view and while having said that he was in the search of the deceased for the last many days, pulled out a pistol from his Dab and fired five successive shots at Zahid deceased coupled with an ineffective shot at Muhammad Ijaz Butt alias Jujj P.W. When he tried to intervene and that thereafter the accused decamped from the spot and that the injured succumbed to the injuries while was taken to the hospital.
3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 11 witnesses including the doctor and the Investigating Officer.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed involvement to false implication and claimed trial.
5. Learned counsel for the appellants, in support of this appeal submitted that the appellants have falsely been involved in this case; that on the same set of evidence co-accused Muhammad Akram has already been acquitted by the learned trial Court; that the main co-accused Imtiaz alias Billa accused (Proclaimed Offender), who had fired five shots on the person of Zahid deceased, is still at large; that neither any overt act is attributed to Muhammad Ashfaq alias Mithu appellant nor to appellant Mst. Zohra Bibi and she has been roped in, being wife of acquitted- accused Muhammad Akram and mother of Muhammad Ashfaq alias Mithu appellant; that no recovery has been effected from them; that P.W.7 Zubair Ahmad and P.W.8 Muhammad Ijaz alias Jujj are not residents of the vicinity and have been planted in the case; that acquitted co-accused Muhammad Akram and appellants had not come with the main co-accused Imtiaz alias Billa accused (Proclaimed Offender); that the net has been widened to involve maximum number of family members; that the impugned judgment is not sustainable in law and the same is liable to be set aside by this Court resulting in acquittal of the appellant.
6. Learned counsel for the State, while defending the impugned judgment of conviction contents that it is a case of common intention; that sufficient evidence has come on record to connect the present appellants with the commission of the offence; that the prosecution witnesses have fully supported the case; that it is a well-reasoned judgment not warranting any interference by this Court and that the appeal is liable to be dismissed.
7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
8. In all there are four accused persons in this case. Muhammad Akram acquitted-accused is husband of appellant Mst. ZOhra Bibi and father of appellant Muhammad Ashfaq alias Mithu and Imtiaz alias Billa accused, who is still at large and is a Proclaimed Offender. The allegation against them are that on the fateful day and time, complainant along with Raheel Ahmad, Muhammad Iqbal and Muhammad Ijaz Butt alias Jujj, were sitting in the office of his brother Zahid Javed alias Goga deceased when Muhammad Akram acquitted accused came to that office and after saying something to Zahid Javed alias Goga deceased, he left the office, five minutes thereafter. Mst.
Zohra Bibi appellant came along with Muhammad Ashfaq alias Mihtu in the said office and called the deceased out of the office who took him to the nearby street, in the meantime, Zahid Javed alias Goga deceased and Imtiaz alias Billa accused (Proclaimed Offender) started talking with each other; that the said Imtiaz alias Billa said to him that why he was being got arrested by the police at the instance of the deceased, spite of his having divorced his wife to which the deceased replied that he was got arrested by his in-laws but the said Imtiaz alias Billa accused (Proclaimed Offender) insisted on his point of view and while having said that he was in the search of the deceased for the last many days, pulled out a pistol from his Dab and fired five successive shots at Zahid deceased coupled with an ineffective shot at Muhammad Ijaz Butt alias Jujj P.W. When he tried to intervene. The narration of above facts would show that the motive, if any, was between the deceased and Imtiaz Ahmad alias Billa (Proclaimed Offender) and not the appellants. Though both the eyewitnesses, namely, P.W.7 and P.W.8 who are closely related inter se with the deceased, made statements against the appellants but the fact remains that no overt act is attributed to them except that they has asked the deceased to come out from the office. They were not armed with any weapon, they never quarrelled with the deceased at that time, they never knew that Imtiaz Ahmad alias Billa (Proclaimed Offender) has a pistol in his Dab. So how can they be termed and called that they had also privy to the intention of their co-accused Imtiaz Ahmad alias Billa (Proclaimed Offender). If they had any intention of the kind, they must have come armed with some weapon to the spot. There is absolutely no evidence to suggest that the allegation offence has been committed in furtherance of common intention or pursuant to prior concert of mind or prearranged plan. If there is a lacuna in the evidence, the accused is entitled to have the benefit of the same. The burden is on the prosecution to prove that the accused is guilty, had if the evidence is not sufficient to bring the guilt home to the accused, there is no other option of course but to acquit the accused. This is in line with the law laid down by the Apex Court of the country reported in Muhammad Yaqoob, Sub-Inspector v. The State (PLD 2001 Supreme Court 378), wherein, at page 383 of the judgment, observed as under:-- "...It was held a few decades earlier by this Court which still holds the field that 'it is well-established that a common intention pre supposes prior concert. It requires a . Pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act Must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis' [(1995) SCR 1083, (1955) Cri.LJ 572)]".
9. There is yet another aspect of the case which goes in favour of the appellants. Unfortunately, Imtaiz Ahmad alias Billa is still at large being a proclaimed offender. The occurrence had taken place in 2002, appellants have already undergone an agony of trial and appeal in the two years and the said Imtiaz Ahmad alias Billa (Proclaimed Offender) has still not been arrested. Possibility of their false implication, being the real brother, real mother and father of the main accused i.e. Imtiaz Ahmad alias Billa (Proclaimed Offender), cannot be ruled out. All the injuries are attributed to the said Imtiaz on the person of the deceased. Even the shot fired at Ijaz P.W. Is also attributed to him. The involvement of large number of family members of the main accused in the criminal cases is not a rare phenomenon in our society.
10. Even otherwise mere presence of the appellants at the place of occurrence does not necessarily attract the provision of section 34, P.P.C., neither it should be C applied lightly nor vicarious liability can be visited unless here is some strong circumstances to show common intention.
' This is in line with the ratio laid down by the August Supreme Court of Pakistan in' the case of Hasan Din v. Muhammad Mushtaq and 2 others (NLR 178 SC Criminal 636), wherein at page 638, it was held as under:-- "In our view the learned counsel has misconceived the correct application of section 34, P.P.C. The mere presence of a person on the spot does not necessarily attract section 34, P.P.C. This section is not be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstances to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt."
11. Having adjudged the case from every angle, after having sifted grain from the chaff and having scrutinized the record, this Court is of the considered view that the prosecution has failed to prove its case against the present appellants beyond a shadow of doubt. Resultantly, this appeal is allowed, the impugned judgment, dated 13-6-2003 passed by the learned Additional Sessions Judge, Gujranwala is set aside and the appellants are acquitted from the case. Appellant Mst.
Zohra Bibi is already on bail, so, she shall be discharged of her bail/surety bonds while appellant Muhammad Ashfaq alias Mithu shall be released from jail forthwith, if not required to be detained in any other case.