' JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment dated 1-10- 2001 whereby the appellant was convicted under section 302/34, P.P.C. And sentenced to undergo imprisonment for life and to pay sum of Rs,30,000 as compensation to legal heirs of deceased and in case of default to further undergo imprisonment for six months. Benefit of section 382-B, Cr.P.C.
Was given to the appellant.
2. Leave to appeal was granted vide order dated 25-4-2003 which is reproduced herein below for ready reference to appreciate the legal and factual aspects of the controversy:-- "This is a petition for leave to appeal against the judgment dated 1-10-2001 of the Federal Shariat Court dismissing Criminal Appeal No,101/L of 2000 arising from the judgment dated 24-4-2000 of the learned Additional Sessions Judge, Nankana Sahib whereby the petitioner was acquitted of the charge under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 but was convicted for life, with benefit of section 382-B, Cr.P.C. And direction to pay a sum of Rs,30,000 as compensation to the legal heirs of the deceased or suffer six months' S.I. In default.
2. One Faqir Muhammad was serving at Mian Meraj Din's Agricultural Farm in village Nonarian. On 28-6-1995 he was transferred to Haseeb Waqas Agricultural Farm at laten and had relieved the petitioner who was in charge of the farm. He was done to death on 29-6-1995 at about 12-30 a.m.
The F.I.R. Was lodged at Police Station Saddar Nankana Sahib on the same day at about 4-30 a.m.
By Muhammad Rashid, brother of the deceased, wherein the petitioner, Habibullah, and Safdar Shah were nominated as the accused. It was also alleged that Safdar Shah and Habibullah had taken away a .12 bore shotgun and .222 bore rifle belonging to the farm. The motive set up in the F.I.R. Was that the deceased was taught a lesson for taking over charge of the farm from the petitioner.
3. The petitioner and his co-accused Habibullah were convicted by the learned trial Court under section 302/34, P.P.C. And while the petitioner was sentenced as stated above, Habibullah was sentenced to death, which was altered to imprisonment for life by the Federal Shariat Court. The third accused Safdar Shah was acquitted.
4. It was contended by the learned counsel for the petitioner that the petitioner had done no harm to the deceased and no overt act except the proverbial Lalkara was attributed to him in the F.I.R.
And at the trial. It was further contended that the motive was imaginary and had also not been established on record. It was also contended that the manner in which the occurrence had taken place, according to the prosecution evidence, was odd and the prosecution evidence was not only furnished by interested and related witnesses but was also self-contradictory and uncorroborated.
5. Leave is granted to consider the above contentions and to reappraise the prosecution evidence in order to ascertain weather the same has been appreciated in accordance with the principles of appraisal of evidence in criminal matters laid down by this Court."
3. Dr. Babar Awan learned Advocate Supreme Court appeared on behalf of appellant and contended strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective by the Federal Shariat Court which resulted in serious miscarriage of justice. It is contended that F.I.R. Was got lodged with delay and therefore the factum of concoction and deliberation could not be ruled out which aspect of the matter has been ignored by the learned Courts below causing serious prejudice against the appellant as benefit of the delayed F.I.R. Should have been given to the appellant . It is urged emphatically that none overt act except a proverbial Lalkara has been attributed to the appellant and hence the question of awarding of the sentence of life imprisonment does not arise specially in the absence of strong motive and besides that Safdar Ali (co-accused) whose case is identical to that of appellant has been acquitted and in view of the principle of consistency the same benefit should have been extended in favour of appellant. It is argued that the appellant has been convicted on the statements of prosecution witnesses who could not account for their presence at the spot and being chance witnesses their version should have been discarded.
4. Ch. Munir Sadiq, leaned Advocate Supreme Court entered appearance on behalf of State and controverted strenuously the contentions as agitated on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt to the hilt and more so only proverbial Lalkara was not attributed to the appellant who had facilitated and participated in an active manner in the commission of alleged offence.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case, scanned the entire evidence and perused the judgment of learned trial as well as appellate Courts. The case of prosecution hinges on the oral evidence, factum of recovery, medical evidence and motive. In order to substantiate the accusation prosecution has produced twelve prosecution witnesses whose statements were got recorded at the trial.
Statement of Dr. Iqbal Hussain Wattu P.W.5 is indicative of the fact that death was occurred due to the injuries sustained by the deceased caused by blunt weapon which resulted in unnatural death of Faqir Muhammad. Muhammad Rashid P.W.2 has supported the prosecution version and stated in an unambiguous manner the events culminated into the murder of Faqir Muhammad.
Muhammad Rashid P.W.2 has stated that Faqir Muhammad took over the charge of the farm which was held by Shoukat Ali (appellant) in the presence of Safdar Ali and Habibullah and during night at 2-30 the appellant armed with rifle, Safdar Shah armed with .222 rifle and Habibullah armed with gun .12 bore arrived and caught hold of Faqir Muhammad and Shoukat Ali (appellant) instigated to his companions that a lesson should be taught to Faqir Muhammad for taking charge of the farm pursuant to which Safdar Shah and Habibullah caught hold of Faqir Muhammad and dragged him into maize field and started beating with fists and kicks when once again Shoukat Ali (appellant) asked Habibullah to kill Faqir Muhammad by means of firing who made fire with his .12 bore gun which hit Faqir Muhammad on left temporal who succumbed to the injuries instantaneously. It is also stated by Muhammad Rashid (P.W.2) that the murder of Faqir Muhammad was committed by all the accused including appellant with common intention. He was subjected to lengthy cross- examination but nothing beneficial could be elicited in spite of various searching questions.
Muhammad Munir (P.W.3) who is also an eye-witness has supported Muhammad Rashid (P.W.2) on all material points by stating that at the time of handing over of the charge appellant was present in the farm along with co-accused namely Safdar Shah and Habibullah and during the night at 12.30 a.m. The appellant armed with rifle Habibullah armed with gun and Safdar armed with rifle took Faqir Muhammad to the field at the direction of Shoukat Ali(appellant) from whom the charge of the farm was taken by Faqir Muhammad. He made it abundant clear that Shoukat Ali raised Lalkara that a lesson be taught to Faqir Muhammad for taking the charge of the farm. He further stated that Faqir Muhammad was severely beaten with fists and kicks when Shoukat Ali (appellant) asked Habibullah to kill Faqir Muhammad and on persuasion of Shoukat Ali (appellant)
Habibllah fired with his gun due to which Faqir Muhammad sustained injuries on left temporal who succumbed to the injuries at the spot. Muhammad Munir (P.W.3) has stated in a categorical manner that the appellant Shoukat Ali, Habibullah and Safdar committed murder of Faqir Muhammad in furtherance of their common intentions. Muhammad Munir (P.W.3) was also subjected to exhaustive cross-examination but nothing advantageous could be extracted except a few minor contradictions having no substantial bearing on the merits of the case and can be ignored safely. Muhammad Munir stood firm to the test of cross-examination and his testimony was not shattered. It is worth-mentioning that the eye account furnished by Muhammad Munir (P.W.3) and Muhammad Rashid (P.W.2) being confidence-inspiring, straightforward, free from any dishonest exaggeration and worthy of credence has rightly been considered and relied upon by the learned trial and appellate Courts. We are not impressed by the argument of Dr. Babar Awan learned Advocate Supreme Court on behalf of the appellant that being chance and interested witnesses their statements should have been discarded. It is not out of place to mention here that Muhammad Rashid and Muhammad Munir had no enmity to get Shoukat Ali (appellant) involved in a heinous offence like murder and even otherwise no reasoning could be furnished by Dr. Babar Awan that why Muhammad Rashk and Muhammad Munir had implicated Shoukat Ali (appellant) for facilitation, abetment and instigation without having any grouse and grudge against Shoukat Ali which was even never alleged by them. The second limb of the argument is that being interested witness the statements of Muhammad Munir (P.W.3) and Muhammad Rashid (P.W.2) should have been discarded. "The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State 1994 SCMR 1 and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly D when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269. In Khalil Ahmed v. The State 1976 SCMR 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State 1970 SCMR 734 the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injures sustained by two P.Ws. Proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274 and Shehruddin v.
Allah Rakhia 1989 SCMR 1461 at 1465 where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to E witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown 1969 SCMR 777 it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not.
6. On the touchstone of the criterion as mentioned hereinabove the statements of Muhammad Rashid (P.W.2) and Muhammad Munir (P.W.3) have been examined. We are of the considered view that they were not interested witnesses and their version has rightly been considered and believed by the Courts below. The contention of learned Advocate Supreme Court on behalf of appellant that Muhammad Rashid (P.W.2) and Muhammad Munir (P.W.3) were chance witnesses seems to be devoid of merits as they had furnished a plausible justification for their presence at the place of occurrence and as such they cannot be labeled as chance witnesses. In this regard reference can be made to case Riasat Ali and another v. The State PLD 1991 SC 397.
7. We have also adverted to the prime contention of learned Advocate Supreme Court on behalf of appellant that no role except proverbial Lalkara could be attributed to the appellant hence the question of the sentence of life imprisonment as awarded to the appellant does not arise. The above contention seems to have been made in oblivion of the fact that section 34 was also incorporated along with section 302. We would like to discuss the import and objects of section 34, P.P.C. 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, thought 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 here 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 S.33 and also the provisions of Ss.35, 37 and 38. The term 'act' contemplates a series of 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 behavior 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 case 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 over looked, 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." Muklesure 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 inferences to be drawn from proved facts and not on any direct evidence about a preconceived scheme of which may not be available at all. Mahmood, J, in Dharma 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 S.34 enunciates, and that 'the furtherance of 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 S.1 of Act XXVII of 1870, repealed the original S.34; and in substituting another section therefore, inserted the important word is '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 jurist on the point, whom Mr. Mayne, in his Commentary on the Penal Code, quotes (Biship, S.439) where that learned author, lying 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 S.34 of the Penal Code" (in re Thipperudrappa (Vol. 55 1954 PCr.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 concert, 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."
(Poandurang v. State of Hyderabad (1955 Cr.LJ 572).
8. 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 pursuant 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: ' Hid ayatullah v. State 1976 P.Cr.LJ 1067; Athar Khan v. State PLD 1972 Lah. 19; Hasan Din v.
Muhammad Mushtaq 1978 SCMR 49; Chutta v. State 1995 P.Cr.LJ 755; Shahadat Khan v. Home Secretary PLD 1969 SC 158 and Muhammad Nawaz v. State PLD 1967 Lah.
952."
9. We have examined the case of appellant in the light of the discussion made hereinabove qua the provisions enumerated in section 34, P.P.C. It transpired from scrutiny of record that the appellant nourished grudge against deceased having a strong motive against deceased who substituted him in Haseeb Waqas Agriculture Farm and took over as in charge of the farm. It is worth-mentioning that it was appellant who emerged at the scene along with co-accused duly armed with deadly weapons which depicts. Common intentions and prior concert of mind, being a facilitator and abettor he remained present at the place of occurrence till the task i,e, murder of Faqir Muhammad was accomplished. In such view of the matter his role cannot be confined to that of proverbial Lalkara but it was more than that and he has rightly been convicted and sentenced by the learned High Court to undergo life imprisonment vide judgment impugned which being well-based does not warrant interference.
' In sequel to above mentioned discussion the appeal being meritless is dismissed.