1. ' MRS. YASMEEN ABBASEY, J.--Being aggrieved and dissatisfied with the judgment, dated 22-4-2004 whereby appellants were convicted for life imprisonment with a fine of Rs,50,000 each payable to legal heirs of the deceased Muhammad Aziz and in default of payment of fine to suffer six months S.I. This appeal has been preferred.
2. ' Prosecution case is that on 28-7-1999 it was reported by complainant Jamiluddin on 27-7-1999 at about 11-00 p.m. a dispute had taken place in between his friend Anwer Ali and Pervez, Noshad and Danish on filling of water, the above three persons had beaten Anwar Ali, he received injuries. Shah Alma, brother in law of Anwar Ali, friend of complainant's brother Muhammad Aziz came to his house and informed that Anwar Ali has been beaten by Jaseem alias Pervez, Danish and Noshad, sons of Ilyas by stoning. Complainant and Muhammad Aziz went to the house of Ilyas along with Shah Alam to pacify the matter. According to complainant, when he enquired from Jaseem as to why he had beaten Anwar Ali, they all became annoyed, Jaseem brought a Churry from his house, calling his brother to caught hold Muhammad Aziz and he inflicted Churry blows on lower part of abdomen of Muhammad Aziz with the help of his brothers Noshad and Danish. In the meanwhile accused party's another companion viz. Khurran son of Rizwan Javaid caught hold the complainant and Jaseem made second attack on the complainant with intent to kill him but all of a sudden Khurram came in front of the complainant and he stabbed on his right thigh.
3. Complainant brought his injured brother to hospital but in the way he died. Report was got lodged on 28-7-1999. All the three accused persons Jaseem alias Pervez. Noshad and Danish were arrested and after investigation were challaned in Court.
4. ' Prosecution examined eight witnesses in all viz. Complainant Jamiluddin Siddique, Anwar Ali, Shah Alam, Tufail Ahmed, Wakeel Ahmed, Judicial Magistrate Sarwat Sultana, Dr. Abdul Shakoor and investigating officer Muhammad Alam, after assessing the evidence produced by prosecution all the three accused persons were convicted.
5. ' The main thrust of the arguments of learned counsel for the appellants was that although the incident had taken place on 27-7-1999 but the act of these appellants was in the self defence as it was complainant party, who came at the house of appellants with intention to cause harm to them. Thus they had no alternate but to defend themselves. Advancing his arguments, learned counsel has admitted that appellant Jaseem caused injury to deceased Muhammad Aziz but according to him that all was in self defence because he too received injuries on his finger while defending himself, therefore, he is entitled for reduction of sentence. So far as the other two appellants, Noshad and Danish are concerned, no direct evidence is on record against them.
6. ' Scrutinizing the facts, evidence of prosecution witnesses has to be examined. According to complainant Jamiluddin, when he along with Shah Alam and Muhammad Aziz went to the house of accused persons just to know the cause of dispute, they instead of having a peaceful talk abused, and Jaseem directing his brothers to caught hold Muhammad Aziz, went inside his house and came out with a Churry, asked his brothers not to leave Muhammad Aziz and hit him with Churry on the right side of his stomach. Second attempt was made on the complainant but due to intervention of some people that hit to appellants companion Khurram on thigh.
7. ' Statement of complainant has been supported by P.W. Anwar Ali with whom the first round of fight had taken place on filling of water. According to him, all the three appellants attacked on him and had beaten him with plastic water pipe. Jaseem had also thrown stones which hit his forehead. On his return to house, his sister M law Mst. Aisha brought him to a clinic for medical treatment but the doctor refused to give medical treatment being a police case and while they were returning to home Shah Alam, Jamiluddin and Muhammad Aziz met him, knowing the event happened, they went to the house of appellants to talk with their father but before any talk could take place Jaseem brought a knife/Churry from his house and stabbed it in the stomach of Muhammad Aziz.
8. Statement of complainant that second attack was made on complainant but accidentally it hit to Khurram has been supported by P.W. Anwar Ali.
9. ' Third witness Shah Alam, who was also in company of the complainant, supported their statements. From the cross-examination of these three prosecution witnesses it appears that defence has tried to shatter the statement but except with minor contradictions as to the lodging of the F.I.R. Of the first incident happened on 27-9-1999 and presence of Mst. Aisha, sister in law of Anwar Ali to provide medical treatment to Anwar Ali, main charge against the appellants particularly Jaseem causing injury to Muhammad Aziz and an attempt to injure Jamiluddin has not been specifically denied. Unrebutted evidence of all the three eye-witnesses of incident has been corroborated with the post mortem report produced by Dr. Abdul Shakoor. As per his opinion, inquiry caused to the deceased was stab wound 3 c.m. x 1.5 cavit deep over right inguinal region of abdomen.
10. ' Although 164, Cr.P.C. Statements of Shah Alam and Anwar All have been produced through Judicial Magistrate Sarwat Sultana but both these 164, Cr.P.C. Statements have no evidentiary value as it was admitted by Judicial Magistrate that after recording their statements in chief, an adjournment application was moved by the appellants to give time to engage their counsel ' Recovery of crime weapon and its identification through prosecution witnesses has also not been disputed' by the defence. Thus in view of unrebutted evidence mere on the statement of P.W. Anwar Ali, who has deposed that he could not see the knife at the time of incident due to darkness, statement of recovery of witness P.W. Wakeel Ahmad, who was an independent witness having no previous intimacy relationship with the complainant party is to be accepted.
11. ' In view of the evidence produced by prosecution with sufficient admission on the party of appellants prove the guilt against appellant Jaseem. Separating the case of appellants Noshad and Danish, it is contended by learned counsel that although they have been named as persons who caught hold the deceased Muhammad Aziz at the instigation of main culprit Jaseen, who had inflicted Churry blow to deceased Muhammad Aziz but still no specific name of the person, who caught hold Muhammad Aziz is on record, except the statement that Jaseem called his brothers to caught hold Aziz, which is a weak evidence to implicate and convict them. From the evidence it is not clear that whether they provided any assistance to main culprit Jaseem or the incident as happened was a pre-planned incident as section 34, P.P.C. Speaks about the criminal act done by several persons in furtherance of common intention:--- ' "Section 221, Cr.P.C. And 34, P.P.C. Are reproduced as under:- Section 221, Cr.P.C.
221. charge to state offence.-(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) Specific name of offence: sufficient description.-If the law which creates the offence give it any specific name, the offence may be described in the charge by that name only.
(3) How stated where offence has no specific' name.-If the law which creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) What implied in charge.-The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) Language of charge.-The charge shall be written either in English or in the language of the Court.
(7) Previous conviction when to be set out.-If the accused having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence and it is ' ' intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed. "
12. Section 34, P.P.C.
13. "34, Acts done by several persons in furtherance of common intention.-When a criminal act is several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."
14. ' The object of section 221, Cr.P.C. Is to inform the accused before beginning of trial precisely and concisely as possible, but with all material particulars of the matter in which he is charged, so as to afford him an opportunity to defend himself, subclauses 2 and 3 of section 221, Cr.P.C. Further requires that each offence charged against accused should be described separately. So, that he can proceed his case accordingly.
15. ' Section 34, P.P.C. Is also a form of notice to accused that joint liability of a crime is sought to be invoked and he is amenable to it.
16. ' The contention set forth by learned counsel for appellants is that being a defective charge no liability of common intention can be imposed. It is true that certain lacunas are appearing in the charge as framed but they are not so material that they will affect on the commencement of trial.
17. The intention behind framing of charge is to make accused aware about the allegation levelled against them and it appears to have been done with the admitted signature of appellants on the plea attached to charge.
18. ' Advancing his argument as to common intention and imposing joint liability on all the appellants to the common offence, it is contended that it was sudden fight as both parties supposed themselves to be right, thus presuming the arrival of complainant party to their home appellant Jaseem thought it to be n attempt of attack on him, which enraged him, but no specific role of other two appellants Noshad and Danish is appearing except their presence, which was but natural to be in their home.
19. ' In the case of Muhammad Yaqoob, Sub-Inspector v. The State PLD 2001 SC 378 it is observed that:- ' "In so far as section 34, P.P.C. Is concerned, it deals with the acts done by several persons in furtherance of common intention. It is neither a punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons inentionally commit an offence jointly which . Amounts to as if each of . Them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at the spot would not be ipso facto sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and B the offence was committed with common intention Which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the pre-arranged plan. It was held a few decades earlier by this Court which still holds the fields that "it is well established that a common intention pre-supposes prior concert.
20. 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 on any other reasonable hypothesis". (1995) SCR 1083 and (1995) Cr.LJ 572".
21. ' Discussing the criminal behaviour in the prospective effect of section 34, P.P.C., it is observed in AIR 1945 P.C. 118 that:- ' "To invoke the aid of section 34 successfully, 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 m^y be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their lordship that common intention within the meaning of the section implies a pre-arranged 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. As has been often observed, 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."
22. ' In the light of the principles as expressed, record shows that except statement of complainant that appellant Jaseem while going to his home for brining Churry had directed his brothers to caught hold deceased Muhammad Aziz, no direct evidence against them is on record to suggest that they played an active role in commission of offence or the incident happened was pre-arranged plan.
23. To say that out of these two, one facilitates main culprit to cause injury to deceased the burden was on prosecution to prove that amongst Noshad and Danish, who caught hold deceased. In absence of any definite and direct evidence benefit of doubt goes to both these appellants Noshad and Dansih. They are acquitted from the charge.
24. ' So far as the case of appellant Jaseem is concerned, learned counsel for appellants frankly conceded to be done by him, but it was retaliation to the complainant's party conduct as appellant Jaseem also received injury on his finger. These arguments advanced by learned counsel do not appeal to reason because if complainant's party would had gone to appellant's house with intent to fight and take revenge of beating of P.W. Anwar Ali, then they would had been armed with weapons. It is also very difficult to believe that in a free fight as pleaded, appellants had not received any injury except damage to finger.
25. ' In viejy of above discussion, I am of the view that prosecution has fully proved the charge against appellant Jaseem. However considering the case of appellant Jaseem and that incident happened in the state of sudden anger with no pre-plafined intention, sentence of life imprisonment is reduced to 10 years R.I.
26. ' Appellants Danish and Noshad be released forthwith if not required in any other custody case.