' JAVED IQBAL, J.---This criminal appeal has been preferred on behalf of Abdul Khaliq assailing the judgment, dated 29-5-2003 whereby the appeal preferred on behalf of appellant has been dismissed.
2. "Briefly, facts of the case as narrated in F.I.R. No,244 Exh.P.H., dated 11-5-1995 under sections 302, 324, 148, 149, P.P.C. Police Station Sargodha Road, Faisalabad got recorded by Navid Ahmed complainant P.W.7 are that he was permanent resident of Chak No,264/RB Police Station Dijkot but during the day of occurrence he along with other brothers and sisters was residing temporarily with his maternal-uncle Muhammad Hussain in Chak No,7/JB Kohala. His father Muhammad Tufail and brother Muhammad Saeed were under arrest as accused in case F.I.R. No,46 of 1995 under sections 302, 148, 149, P.P.C. Registered at Police Station Dijkot and were lodged in District Jail Faisalabad. On the day of occurrence Nasir Mahmood deceased along with his "Mamuzad"
Muhammad Hussain were going to Faisalabad on Motorbike No,FDP-264 Honda being driven by the deceased Nasir Mahmood, for supply of food to his father and brother. At about 9 a.m. When they were short behind from Lasani Bridge they found a white coloured car parked on the road running to Lasani Town while accused Gul Merasi, Khalid, Iftikhar, Shahzad and Israr armed with .222 rifle were standing near that car. When Nasir Mahmood deceased and Muhammad Hussain crossed the Lasani Bridge accused Gul Merasi took the driving seat of the car immediately while above named accused also boarded the car and moved towards Faisalabad fastly. Nasir Mahmood while driving the motorbike reached near the gate of Crescent Flour Mills where the accused party halted them, Nasir Mehmood turned the motorbike towards Crescent Flour Mills. The accused alighted from the car and Iftikhar fired at Nasir Mahmood hitting on his right side of his chest. Shahzad fired at Muhammad Hussain hitting on his right hip joint. Both of them fell down from the motorcycle. The accused boarded the car and fled away while firing. Nasir Mahmood succumbed to the injuries at the spot. Muhammad Hussain was removed to the hospital in injured condition. The motive for the occurrence was blood feud enmity between the parties". The appellant was arrested and after completion of investigation he was sent up for trial and on conclusion whereof he was convicted under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs,50,000 to be paid to the legal heirs of the deceased as compensation pursuant to the provisions as contained in section 544-A, Cr.P.C. And in case of default to further undergo six months' S.I. Appellant was also convicted under section 324/34, P.P.C. And sentenced to five years'
R.I. And fine of Rs,5,000 and in case of default to further suffer six months' R.I. He was further convicted under section 337-D, P.P.C. And directed to pay "Arsh" (1/3 of the Diyat) amounting to Rs,67,641 and in case of default of payment of the said amount he shall be kept in jail till its realization with benefit of section 382-B, Cr.P.C. Being aggrieved criminal appeal was preferred which has been rejected vide judgment impugned, hence this appeal.
3. Syed Rafaqat Hussain Shah, learned Advocate Supreme Court entered appearance on behalf of the appellant and contended that the evidence which has come on record has not been appreciated in its true perspective and the conviction has been awarded merely on the basis of extraneous considerations having no nexus whatsoever with the evidence which has come on record. It is next contended that the fatal injury has not been attributed to the appellant and moreso the motive alleged was against the co-accused. It is also contended that neither any active role was played by the appellant nor any facilitation was extended hence the question of any conviction does not arise.
4. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court represented the State and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the case to the hilt by producing cogent and concrete evidence.
It is next contended that appellant has facilitated the commission of alleged offence and therefore, it hardly matters as to whether any injury was attributed to the appellant or otherwise. It is also contended that being driver of the vehicle wherein the proclaimed offenders were boarded was being driven by the appellant which is indicative of his support and abetment in commission of the alleged offence.
5. We have carefully examined the rival contentions as agitated on behalf of the parties in the light of relevant provisions of law and scanned the entire evidence by keeping the defence version in juxtaposition. We have also perused the judgment impugned carefully. After having an in-depth scrutiny of the entire evidence, we are of the view that prosecution has failed to substantiate the guilt by producing any cogent and concrete evidence. The most significant feature of the case is that no role of firing has been attributed to the appellant but on the contrary it has been mentioned in the ,F.I.R. In a categoric manner that Iftikhar fired at Nasir which resulted into his death and Shahzad fired at Muhammad Hussain who succumbed to the injuries. It is worth- mentioning that the main culprits Shahzad and Iftikhar were declared as proclaimed offenders to whom the main role was attributed. How the appellant can be held vicariously responsible for the commission of alleged offences in the absence of any incriminating material is the sole question, which could not be answered by the learned Advocate Supreme Court on behalf of State. It is to be noted that Khalid and Israr have been acquitted who had accompanied Iftikhar and Shahzad to whom the role of firing had been attributed. We are not persuaded to agree with the learned Advocate Supreme Court that in view of the provisions as contained in section 34 the appellant has rightly been held vicariously liable for the commission of alleged offence for the simple reason that provisions enumerated in section 34 cannot be made applicable in this case. It is well-settled by now that the main object for the enactment of section 34 is "to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support, and protection to the person actually committing the act. The nature of the offence committed by an accused depends upon the act done by him and the effect produced by it, and the sole object of this section is to lay down what act will be deemed to be done by the conspirators. This section is not a punitive section and does not enact a rule of evidence but enacts a common law principle of substantive law" 1935 Cr.LJ 1393, 1953 All.
214. "This section embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. If two or more persons combine in injuring another in such a manner that each person engaged in causing the injury must know that the result of such injury may be the death of the injured person, it is no answer on the part of anyone of them to allege and perhaps prove that his individual act did not cause death, and that by his individual act he cannot be held to have intended death. Everyone must be taken to have intended the probable and natural results of the combination of acts in which he joined. All are guilty of the principal offence, not of abetment. But a party not cognizant of the intention of his companion to commit murder, is not liable, though in his company, to do an unlawful act". In re: Basappa Vol. 51 Cr.LJ 1950. "Common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. The leading feature of this section is the element of participation in action, It embodies a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention". Sitaram v. State Vol.59 1958 Cr.LJ 1380 Pandurang, Tukia and Bhillia v. The State of Hyderabad 1955 SCR 1083. It may not be out of place to mention her that "the section contemplates the case where more persons than one share in the doing of the act and it is necessary to bear in mind the definition of 'act' given in section 33 and also the provisions of sections 35, 37 and 38. The term `act' contemplates a series of acts done by several persons, some perhaps by one of those persons and some by another, but all in pursuance of a common intention. A 'criminal' act means that unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence". NGA Tun Baw and another v. Emperor 1907 UBR (P.C.) Crl.LJ 205. 'The words in furtherance of the common intention of all' have introduced, as an essential part of the section the element of a common intention prescribing the condition under which each might be criminally liable when there are several actors. 'Common intention' is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. The common intention contemplated by this section is anterior in time to the commission of the crime, and does not refer to the time when the act is committed. The Privy Council has held that it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on anyone of the persons in the same manner as if the act were done by him alone. `Common intention' within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. Same or similar intention must not be confused with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of justice. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. Common intention does not mean similar intention of several persons. To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them. The common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention". Muklesur Rahman and another v. The King Vol.51 1950 Cr.LJ 945. "The question whether there was such an intention or not will have to depend in many cases on inference to be drawn from proved facts and not on any direct evidence about a preconceived scheme or plan which may not be available at all. Mahmood, J., in Dharam Rai's case said "This section was the subject of consideration impliedly in the case of Queen v. Gorachand Gopee at p.456, Sir Barnes Peacock clearly laid down the rule of law that mere presence of persons at the scene of an offence is not ipso facto, sufficient to render them liable to any rule such as section 34 enunciates, and that 'the furtherance of a common design' was an essential condition before such a rule applied to the case of an individual person. It was probably in consequence of this expression of view from such a high authority that the Legislature by section 1 of Act, XXVII of 1870, repealed the original section 34; and in substituting another section, therefore, inserted the important words 'in furtherance of the common intention of all', as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if it were committed by him alone. This change in'the law is very significant, and it indicates to my mind that the original section having been found to be somewhat imperfectly worded, these additional words were introduced to draw a clear distinction that unpremeditated acts done by a particular individual, and which go beyond the object and intention of the original offence, should not implicate persons who take no part in that particular act. We have the opinion of an American jurists on the point, whom Mr. Mayne, in his Commentary on the Penal Code, quotes (Biship, section 439) where the learned author, laying down the rule, goes on to say:--- 'But if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong'. This seems to me to be the right interpretation of the words 'in furtherance of the common intention of all' as they occur in section 34 of the Penal Code" In re: Thipperudrappa Vol. 55 1954 Cr.LJ 481. "The Supreme Court has held 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 concern, or proof of circumstances which necessarily lead to that inference or 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 on any other reasonable hypotheses". Pandurang v. State of Hyderabad 1955 Cr.LJ 572.
6. After having gone through almost entire law qua the provisions as contained in section 34, in our considered view the following are the prerequisites of the section 34 before it could be made applicable:--
(a) It must be proved that criminal act was done by various persons.
(b) The completion of criminal act must be in furtherance of common intention as they all intended to do so.
(c) There must be a pre-arranged plan and criminal act should have been done in concert pursuance whereof.
(d) Existence of strong circumstances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention.
(e) The real and substantial distinction in between 'common intention' and 'similar intention' be 'kept in view.
' Hidayatullah v. State 1976 PCr.LJ 1067; Athar Khan v. State PLD 1972 Lah. 19; Hasan Din v.
Muhammad Mushtaq 1978 SCMR 49; Chutta v. State 1995 PCr.LJ 755; Shahadat Khan v. Home Secretary PLD 1969 SC 158 and Muhammad Nawaz v. State PLD 1967 Lah.
952."
7. We have examined the case of appellant on the touchstone of criterion as discussed hereinabove and in the light of evidence which has come on record. No evidence worth the name could be led showing that there was a prior concert of mind or planning qua commission of alleged offence. The proclaimed offenders Iftikhar and Shahzad fired upon Nasir Mahmood and Muhammad Hussain which resulted into death of Nasir Mahmood and injured Muhammad Hussain who later on succumbed to the injuries. The prosecution has failed to prove that the appellant had any knowledge about the incident what to say about the prior concert of mind and planning. Being driver of the car the appellant cannot be held vicariously liable for the commission of alleged offence in the absence of any specific role attributed to him qua facilitation or abetment. The learned High Court has relied upon the motive without having taken into consideration that Iftikhar P.O. Had nourished grudge and enmity against the complainant party as his brother Akbar was killed and in retaliation whereof he had burnt the house of complainant party. The appellant had no concern whatsoever with the said dispute. The factum of absconsion has also been taken into consideration by the learned High Court which alone is not sufficient to award conviction under section 302, P.P.C. As it is just a corroboratory piece of evidence. We, have also observed that evidence which has come on record has not been appreciated according to the settled norms of, justice and well-entrenched principles laid down by this Court qua the safe administration of justice which resulted in serious miscarriage of justice. It is a fit case where benefit of doubt must be given to the appellant.
8. In sequel to above mentioned discussion we are convinced that prosecution has failed to substantiate the accusation by producing worthy of credence and confidence-inspiring evidence against the appellant. The appeal is accordingly accepted. The judgment impugned is set aside and the appellant shall be released forthwith if not required in any other case. These are the reasons for our short order, dated 3-5-2006.