' YAHYA AFRIDI, J.---Through this single judgment, this Court proposes to dispose of the Criminal Appeal No-153-B of 2013 and the connected Criminal Revision No-44-B of 2013, as they both arise from the same judgment. The particulars of the same are as follows:--
(i) Cr.A.No,153-B of 2013.
(Ihsanullah and another v. Muhammad Hussain and others).
' Ihsanullah and Asim Raza, who were, amongst two others, nominated as accused in case FIR No,175 ("FIR") dated 6-10-2012, registered at Police Station, Terri Karak, District Karak, under sections 302/324/34 of Pakistan Penal Code, 1860 ("P.P.C.") and charged by learned Additional Sessions Judge, Banda Daud Shah, District Karak and after facing trial were found guilty, and were convicted and sentenced vide judgment dated 16-8-2013, as under:-- "Both the accused are sentenced under section 337-A (ii) P.P.C. For payment of Arsh to complainant Muhammad Hussain at the rate of 5% of the currently notified amount of Diyat .With .3 years imprisonment, 2 years imprisonment under section 337-F(ii), P.P.C. For causing hurt to Mst. Fazeelat Bibi.- Similarly both of them are also sentenced under section 324, P.P.C.
For 05 years imprisonment and also to pay fine of Rs,20,000 each for attempting at the lives of complainant Muhammad Hussain and Fazeelat Bibi. In default of payment of fine they shall further undergo 03 months imprisonment. Likewise holding them vicariously liable for having common intention in the murder of deceased Anwar Badshah, both of them are sentenced to 10 years imprisonment under sections 302/ 34 P.P.C. And both the accused are also to pay compensation of Rs,30,000 to the legal heirs of deceased Anwar Badshah under section 544(A)
Cr.P.C. It shall be recoverable as arrear of land revenue. In default of payment/ recovery of compensation, both the accused/convicts shall further undergo 03 months imprisonment. All the sentences shall run concurrently. Both the accused are extended the benefit under section 382-B, Cr.P.C."
' Ihsanullah (appellant No,1) and Asim Raza (appellant No,2) filed the instant Cr.A.No,153-B of 2013, challenging the impugned judgment and prayed for their acquittal.
(ii) Cr.R.No,44-B of 2013.
(Muhammad Hussain Khan v Ihsanullah, Asim Raza and State).
' Muhammad Hussain Khan, son of the deceased Anwar Badshah (complainant) has filed the present Criminal Revision petition for enhancement of the sentence awarded to the appellants according to law.
2. On the application of Ihsanullah (appellant No, 1), this Court vide order 6-2-2014, after complying with the necessary legal requirements, acquitted him, on the basis of a compromise he had entered with the legal heirs of Anwar Badshah (deceased) and the injured siblings of the complainant party.
3. Accordingly, now, this Court is left with the appeal of Asim Raza (appellant No,2) against his conviction and the Criminal Revision filed by Muhammad Hussain Khan (complainant) for enhancement of the sentence awarded to Asim Raza by the Trial Court.
4. Brief and essential facts of the case, according to the FIR, lodged by injured complainant Muhammad Hussain, in Casualty Ward of Civil Hospital, Terri, are that on 16-10-2012, his father Anwar Badshah was going to the fields to answer the call of nature, and when he reached the Graveyard, situated in Terri Algada, he found Ghaniullah son of Nasrullah, Niazmin Badshah son of Zar Badshah, Asim Raza son of Niazmin Badshah, (convict-appellant No,2), and Ihsanullah son of Nasrullah (acquitted-appellant No,1), were present there duly armed and they prevented his father (deceased Anwar Badshah), from using the said path, on which his father came back to the house and informed his family members about the incident; that he along with his father (deceased), sisters namely; Mst. Zafran Bibi (injured), and Mst. Fazeelat Bibi (injured), came out from their house and proceeded towards the said path, in order to protest the matter to the aforesaid persons; that when they reached the place of occurrence, they found Ghaniullah son of Nasrullah, Niazmin Badshah son of Zarbadshah, duly armed with firearm, while Asim Raza son of Niazmin Badshah, Ihsanullah son of Nasrullah were having sticks and they all started beating the complainant party; that Mst. Fazeelat Bibi received injuries on different parts of her body; that Niazmin Badshah son of Zarbadshah started firing at Anwar Badshah (deceased), who received injuries and died on the spot; that Ghaniullah also fired at Mst. Zafran Bibi, who also received firearm injuries. The occurrence is stated to have taken place at 08.30 hours and the report of the crime was recorded in the shape of murasila (Exh: PA) at 09.10 hours, which was incorporated into FIR (Exh.PA/1) at 09.35 hours, on the same day.
5. After completing the investigation, challan was put in Court against the four nominated accused including the two appellants. The appellants were formally charged, but on denying the same, pleaded their innocence and demanded trial, which thus followed. While, Niazmin Badshah and Ghaniullah have evaded lawful process and thus have been declared absconders.
6. To prove its case, the prosecution produced as many as ten witnesses; ' Dr. Ghazni Gul (PW.1), who deposed that on 16-10-2012 at 09.45 a.m., he conducted autopsy on the dead body of deceased Anwar Badshah. He also examined injured Mst. Zafran Bibi, Mst. Fazeelat and Muhammad Hussain, prepared the post mortem report Exh. PM, medicolegal reports Exh. PM/1, Exh. PM/2,Exh.PM/3, respectively, and referred them to KDA, Hospital, Kohat, for further treatment.
' What is important to note is that Anwar Badshah (deceased), Mst. Zafran Bibi (injured) and Mst.
Fazeelat Bibi (injured). Have all been stated to have firearm injuries.
' It is only Muhammad Hussain, the complainant, who has a simple injury stated to have been caused by 'blunt weapon', which has been described in terms that:-- "Similarly, I had also examined Muhammad Hussain son of Anwar Badshah injured on the same day. The following injuries were found on his person: ' Blunt trauma right side of the head, about 3 to 4cm linear wound, and 4 to Smm deep. Bone was intact. Stitching done in aseptic condition.
' Treatment given.
' Nature of injury: simple.
' Ukind of weapon: Blunt trama.
' The medico-legal report in this respect is Exh.PM/2. It is correct and bears my signature correctly."
' Tariq Usman (PW-2) on receiving information about the incident reached emergency room of the Civil Hospital, Terri, and recorded the report of Muhammad Hussain, injured complainant, in the shape of Murasila (Exh.PA), prepared injury sheet, inquest report of deceased Anwar Badshah, injury sheets of injured Mst. Zafran Bibi, Mst. Fazeelat Bibi, and Muhammad Hussain (Exh.P.W.2/1 to Exh.P.W.2/4), respectively, and inquest report (Exh.P.W.2/5) of the deceased and handed over to the Medical Officer for examination.
' Farhad Islam, Constable (PW-3) deposed that he handed over the Injury Sheet and Inquest Report of deceased to the Medical Officer for post mortem examination.
' Shahab-ud-Din (PW-4) identified the dead body of deceased before the police as well as Medical Officer.
' Muhammad Suleman Muharrir (P.W.5) incorporated the contents of murasila into FIR Exh.PA/1.
' Akhtar Hussain (P.W.6) deposed that in his presence, the Investigating Officer, recovered blood stained earth (Exh.P-1) from the place of deceased and bloodstained earth (Exh.P-2) from the place of injured Mst. Zafran Bibi and took into possession vide recovery memo (Exh.PC). He further deposed that in his presence the Investigating officer also recovered four empties of 7.62 bore (Exh.P-3) from the place of accused Niazmin Badshah, two shells of .12 bore (Exh.P-4) and three empties of 7.62 bore (Exh.P-5) from nearby the place of accused Ghaniullah and were sealed into separate parcels Nos.3 to 5 respectively. He further deposed that from the place of accused Ihsanullah one stick (sotty) (Exh.P-6), from the place of accused Asim Raza, a big stick (Kotak)
(Exh.P-7), were recovered and taken into possession vide recovery memo (Exh.PC/1), the Investigating Officer also took into possession bloodstained garments of deceased Anwar Badshah (Exh.P-8) along with post mortem report and Injury Sheets of the injured vide recovery memo (Exh.
PC/2).
' Muhammad Hussain complainant (PW-7), reiterated the same story, which he has mentioned in the report.
' Mst. Zafran Bibi (PW-8) and Mst. Fazeelat Bibi (PW-9), in their examination also supported the stance of the complainant (PW-7).
' Rast Ali Khan S.I. (PW-10) conducted investigation in the case and narrated the steps taken by him in investigating the Crime.
7. After the close of prosecution evidence, the appellants recorded their statements under section 342 of Criminal Procedure Code, 1898, ("Cr.P.C."), denying their involvement in the commission of the offence, for which they are charged. However, they neither wished to be examined as a witness on Oath in rebuttal to the charges against them, within the contemplation of section 340(2), Cr.P.C, nor produced any defence evidence.
8. Learned counsel for the appellant Asim Raza contended that the prosecution has miserably failed to prove its case beyond any shadow of doubt; that the learned trial Court, while not extending the benefit of doubt, has acted against the law and all canons of justice; that the statements of PWs are not consistent and full of material contradictions; that the order of the learned trial Court is the result of 'non-reading' and 'mis-reading' of evidence, available on record; that the medical evidence is also not supporting the prosecution version; and that the prosecution has also failed to prove the 'common intention' of the accused party to commit the offence for which the appellant has been charged and convicted.
9. The learned Additional Advocate General, controverted the submissions of learned counsel for the appellant and contended that the trial Court has with dynamic approach appreciated the entire evidence produced by the prosecution and has rightly convicted the appellant; that the trial Court has 'sifted the grain from chaff and relied upon the testimony of the prosecution; that the medical evidence fully supported the prosecution case; that no defence evidence is available on the record to believe that the appellant is innocent and is not involved in the present case.
10. Learned counsel for the complainant in the instant Criminal Appeal No, 153-B of 2013 and the Criminal Revision No,44-B of 2013, contended that the judgment of the learned trial Court erred by not awarding the sentence according to law; that the learned trial Court after believing the prosecution evidence found the accused-respondents guilty of committing 'Qatl-e-Amd' awarded lesser sentence of imprisonment without any cogent reason; and thus, there is nothing on the record to suggest any mitigating circumstances or the defence plea having been taken and accepted, so as to justify a lesser sentence; and that the present appellant had the intention of causing the fatal injury to the deceased and harm to the complainant party, as is reflected in the earlier incident recorded in Mad No,25 dated 14-10-2012.
11. Valuable arguments of the learned counsel for the parties have been heard and noted, while the record of the case thoroughly perused.
12. What we have before us is that the prosecution has been able to prove, through direct ocular evidence of three injured witnesses, the presence of the present appellant at the place of occurrence. Despite lengthy cross-examination, the defence was not able to shatter the presence of the present appellant at the place of occurrence. It is also noted that all three witnesses, the complainant and the two injured ladies, were known to the appellant and so there was no possibility of mistaken identity of the appellant Asim Raza. Moreover, the time of occurrence and the dwelling place of the complainant party being in close proximity to the place of occurrence makes them as 'natural witnesses' and further their testimony has a ring of truth attached therewith.
13. Now, when the presence of the present appellant is established at the place and time of crime, and his role is restricted to beating the complainant and his sister with the stick, this Court would have to' determine from the evidence produced by the prosecution, as to whether the appellant had a common intention with the absconding co-accused, namely, Ghaniullah and Niazmin Badshah, of doing to death and injuring his daughter as a result of firearm attributed to other co- accused, so as to saddle him with the charge and conviction of commission of the offences committed by other co-accused.
14. It would be appropriate to first review the term common intention, as provided under section 34 of P.P.C., which reads:-- "34. Acts done by several persons in furtherance of common intention. When a criminal act is done by 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."
15. The bare reading of the aforementioned provision introduces the concept of vicarious or joint Criminal liability under our Penal System and for saddling a person with the responsibility for an act of another, which entails two essential ingredients:
(i) Common intention of more than one person to commit a criminal act,
(ii) A criminal act is committed in furtherance of the said common intention.
This concept of vicarious or joint criminal responsibility of a person for the acts done by others, has been a matter of great legal discourse. One of the leading judgment, wherein the said issue has been explained in great detail in Pandurang's case (PLD 1956 Supreme Court (India) 176), wherein the Indian Supreme Court elaborated that:-- " People do not ordinarily act in unison like a Greek chorus and, quite apart front dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy mentally, to differentiate. Unless therefore a witness particularizes when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to deduce any prior arrangement to murder from these facts."
"Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a prearranged 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 coinmon intention of them all Mahbub Shah v. King-Emperor ((1945). L.R. 72 I A 148, 153, 154). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved. In his case Barendra Kumar Ghosh v. King-Emperor ((1924) L R 52 I A 40, 49) and Mahbub Shah v. KingEmpror (supra). As their Lordships say in the latter case, "the partition which divides their bonds is often very thin nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice."
"The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example, when one man calls on by standers to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But prearrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose."
' The principle laid down in the aforementioned case, has been consistently followed by the Superior Courts of our jurisdiction, and in particular Muhammad Yaqoob's case (PLD 2001 Supreme Court 378), the Apex Court went to the extent 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 intentionally 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 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 prearranged plan..........
"It is also well-entrenched legal position that "the section is intended to meet a case in which it may be difficult to distinguish between the acts all individual members of a party who act in furtherance of common intention of all or to prove exactly what part was played by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, section 34 is at once attracted."
' And recently in Sh. Muhammad Abid's case (2011 SCM R 1148), the principle has been further developed in terms that:- "Once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. The question what injuries were inflicted by a particular accused in cases to which section 34, P. P.C. Applies is immaterial, the principle underlying the section being that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone."
16. Keeping in view the established principle of joint or vicarious Criminal responsibility of one for the acts of others, as it has developed with time and eloquently explained in the aforementioned judgments, it would be safe to reiterate its salient features, as under:--
(i) Common intention presupposes prior concert. It requires a prearranged plan. There must have been a prior meeting of minds.
(ii) The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly.
(iii) It is neither a punitive section nor does it enact a rule of evidence.
(iv) A mere presence at the spot would not be 'ipso facto' be sufficient to hold a person vicariously liable for the action of another.
(v) Sufficient evidence, direct or indirect, ocular or circumstantial, should be available to prove the factum of common intention.
(vi) It is immaterial as to what part or role was played by a person in the entire commission of the offence to be saddled with vicarious liability of another, all those who stand together, must fall together.
17. Now, to the evidence produced by the prosecution in the present case, it is clear that Anwar Badshah (deceased), when he first confronted the accused party, was alone, while the accused party was duly armed and more in number, yet he remained unharmed. Had the accused party, the common intention to commit Qatl-eAmd, or to cause any bodily harm to the deceased, they could have done so at that particular time, especially when they were armed and there was no one to witness the said crime. The very fact, that Anwar Badshah (deceased) went back home unhurt, reflects that the accused party did not have the common intention to commit the heinous crime of murdering Anwar Badshah or causing or even threatening him of body harm with their weapons or sticks. It is only, when the complainant party arrives at the place of occurrence, that the confrontation leads to use of firearms and the blow of sticks, which resulted in doing to death of Anwar Badshah, injuring Mst. Zafran Bibi, Mst. Fazeelat Bibi, with firearm injuries, and Muhammad Hussain (complainant) with the wound from a blunt weapon. What is also important to note is that the prosecution has neither led any evidence to even suggest a "concert of minds" of the accused party to commit the offence of murder or bodily harm during the interim period Anwar Badshah left the place of occurrence and when he returned back with his family member nor do the circumstances suggest the same. Even during the confrontation of the two parties, there is no evidence, direct or indirect, to establish a sudden meeting of minds or a common plan of the accused party to commit the offence, for which the appellant was charged and convicted.
18. In these circumstances, it would not be safe dispensation of Criminal Justice to impose upon the present appellant the vicarious responsibility of the actions of other co-accused in absence of a common intention to commit murder or to cause injuries resulting in the offences envisaged under sections 302 and 324 of P.P.C.
19. What the prosecution has proved by producing direct ocular,evidence of the injured witnesses duly supported by the medical evidence and the recovery of the stick or "kotak" from the place attributed to the present appellant, that the appellant was present at the place of occurrence and that he participated in using his stick in beating the complainant party. His actions are now to be examined severally and not jointly.
20. The Trial Court has charged and convicted the present appellant for the following four offences:
(1) Under section 337-A(ii), P.P.C. For payment of Arsh to complainant Muhammad Hussain at the rate of 5% of the currently notified amount of Diyat with 03 years imprisonment,
(ii) Under section 337-F(ii) of P.P.C. For causing hurt to. Mst. Fazeelat Bibi,
(iii) Under section 324 of P.P.C. For attempt at the lives of complainant Muhammad Hussain and Mst. Fazeelat Bibi.
(iv) Under section 302/34 of P.P.C. For having common intention in the murder of deceased Anwar Badshah.
21. Now, when we examine the prosecution evidence, it is noted that deceased Anwar Badshah and Mst. Zafran Bibi and Mst. Fazeelat Bibi sustained firearm injuries, while the appellant was attributed the role of hitting with a stick, being his weapon. Thus, the evidence produced by the prosecution is not sufficient to convict the appellant Asim Raza for the commission of the offence, which was caused due to firearm and thus resulted in committing the offence of causing hurt to Mst. Fazeelat Bibi under section 337-F(ii) of P.P.C. Or attempting at the life of Muhammad Hussain Khan and Mst.
Fazeelat Bibi under section 324 of P.P.C. Or having the common intention with the other absconding accused and the acquitted appellant for the murder of deceased Anwar Badshah.
22. This leaves us with the conviction awarded to Asim Raza under section 337-A (ii) of P.P.C. For the payment of Arsh to the complainant at the rate of 5% notified amount of Diyat with three years imprisonment. In this regard, the prosecution has been able to prove with direct ocular evidence of natural witnesses, the factum of Asim Raza being present at the place of occurrence and hisaction of using "kotak" in beating Muhammad Hussain, the complainant. The recovery of the "kotak" from the place of occurrence and the nature of the wound inflicted on the injured Muhammad Hussain Khan, proves the prosecution version. No doubt, the witnesses have attributed the beating to all the accused party but when we review the weapon used by the absconding accused and the acquitted appellant, it is but natural to conclude that the injury caused to Muhammad Hussain was by the appellant. It would be pertinent to note that the acquitted appellant was carrying a stick, while the appellant has been attributed a "kotak" being a more blunt weapon than a mere stick, and thus corresponds to the injury caused to the complainant Muhammad Hussain.
23. Before parting with this judgment, it would be appropriate to address the contention of the worthy counsel for the complainant that the intention of the appellant Asim Raza to commit the heinous crime is duly reflected in the incident mentioned in 'Mad' No,25 dated 14-10-2012. When the learned counsel was confronted to show whether the prosecution had produced the same or referred to the said 'Mad' in the entire evidence his answer was in the negative. More importantly, the present appellant Asim Raza was never confronted with the said 'Mad' during his examination under section 342 of Cr.P.C. In such a situation, it would not be safe for this Court, and that too at this stage to consider the said 'Mad', mad the incident reported therein.
24. Accordingly, for the reasons stated hereinabove, the instant Criminal Appeal is partially allowed and the judgment of the Trial Court dated 16-8-2013 is modified to the extent that while maintaining the conviction and sentence of appellant for the offence under section 337-A, (ii) P.P.C.
For payment of Arsh to complainant Muhammad Hussain at the rate of 5% of the notified amount of Diyat with 03 years imprisonment, and in case of failure to pay the said amount, he is to undergo three months simple imprisonment and as for all other charges, he is acquitted.
' Benefit under section 382-B, Cr.P.C. Already extended to the Appellant by the trial Court is kept intact.
' As far as the Criminal Revision is concerned, the evidence produced by the prosecution, as discussed hereinabove, does not warrant enhancement of the sentence. Hence, the same is dismissed.