' ABDUL RASOOL MEMON, J.---Appellant namely Saidal and Bakhat Ali have preferred this Criminal Jail Appeal through Superintendent Central Prison Sukkur against judgment dated 14-5-2009, whereby they were convicted under sections 302, 147, 149, P.P.C. And awarded sentence to suffer R.I.
For twenty five (25) years; under section 324, P.P.C. R.I. For five (5) years and to pay fine of Rs.5,000 each, in default thereof S.I. For five months more and under section 452, P.P.C. R.I. For two (2) years and to pay fine of Rs.2,000 (two thousand) each and in default of payment of fine S.I. For two (2) months more. All sentences were ordered to be run concurrently.
2. Complainant Sijawal registered FIR on 7-9-1997 at 06:00 a.m. At Police Station Pano Akil alleging therein that on the day of report, he, his brother Ali Murad, mother Mst. Sahiban along with other family members were sleeping in their house when at 0100 hours (night) accused Nazeer, Wazir and Saidal armed with guns while Balchat Ali and Anwar with lathis committed house trespass and declared Ali Murad (brother of complainant) as Karo, then accused Nazir and Wazir made straight firing upon Ali Murad which hit him on face resultantly, he died on the spot. Convict Saidal also made arid firing to harass the complainant party. Convict Bakhat and absconding accused Anwar caused lathi blows to complainant and his mother Mst. Sahiba. On firing, P.Ws. Nizamuddin and,Muhammad Parial reached at place of incident, on seeing them the accused ran away. After completion of investigation case was challaned against accused, except Nazir and Anwar, all other accused shown in custody.
3. After framing of charge accused Wazir also absconded away. Case was proceeded against the convicts/appellants Saidal and Bakhat.
4. At trial prosecution examined complainant Sijawal, Dr. Muhammad Hassan and prosecution witnesses namely, Nizamuddin, Muhammad Parial, Tapedar Wazir Ahmed, Mashir Ghulam Akbar and then closed side. The statements of convicts/appellants under section 342, Cr.P.C. Were recorded, wherein they denied the allegations of prosecution and pleaded their innocence. They however neither examined themselves on oath as required under section 340, Cr.P.C. Nor led any evidence in defence.
5. On conclusion of trial the convicts/appellants were convicted and awarded sentence as mentioned above having found equally responsible for causing death of deceased Ali Murad by co-accused Nazir and Wazir.
6. Learned counsel for the convicts/appellants has argued that the evidence so far as brought on record is of interested witnesses; that there is unexplained delay in lodging the F.I.R; that no material is brought on record to prima facie connect the present appellants in joining the hands of co-accused; that the act attributed to each accused should be considered separately; that from the place of incident only (2) empty cartridges were recovered which have been attributed to co- accused Wazir and Nazir, that accused Bakhat Ali is alleged only to have caused lathi blows to complainant Sijawal and Mst. Sahiba. Per learned counsel, Mst. Sahiba has not been examined to support the version of complainant. Complainant has deposed that fatal injuries were caused by co-accused Wazir and Nazir, thus they are not equally responsible for the act of principal accused and for causing injuries to P.W. Sijawal and Mst. Sahiba, convict/appellant have separately been convicted under section 324, Cr.P.C. And punishment have been awarded to accused Bakhat Ali for 5 years.
7. Mr. Abdul Rehman Kolachi, APG for the State, has argued that the prosecution witnesses have fully corroborated the version of complainant on the point of sharing common intention by present convicts/appellants with co-accused Nazir and Wazir who caused Qatle-iAmd of deceased Ali Murad. He has further contended that prosecution has also proved the charge against accused Bakhat Ali for causing lathi blows to complainant and his mother Mst. Sahiba, through ocular as well as medical evidence, therefore, convict Bakhat Ali is not entitled to any further concession as learned trial court has already taken lenient view while awarding sentence to him.
8. The learned counsel for the complainant Mr. Rehmatullah Mangnejo has supported the version of the appellant's counsel that they have not participated in commission of Qatl-i-Amd of deceased Ali Murad. However he supported the judgment of trial court to the extent sentence awarded to convict/appellant Bakhat Ali.
9. I have given careful consideration to the arguments advanced at bar and have gone through the case papers. It is an admitted fact on record that the fatal injuries caused to deceased are attributed to co-accused Wazir and Nazir. Convict/appellant Saidal is simply alleged to have been present on spot with gun and made ariel firing. To ascertain the role assigned to accused Saidal, learned counsel has drawn my attention to the evidence of I.O. Namely, Razi Khan (P.W-7 at Ex.11), who inspected the place of vardat. He in his cross examination has admitted to have recovered only two empties from the place of incident as is mentioned in mashirnama of place of vardat, which are said to have been fired by co-accused Nazir and Wazir thus non-recovery of empty cartridges allegedly fired by convict/appellant Saidal clearly shows that no ariel firing was made as is alleged in the case, as such, the involvement of convict/appellant Saidal has become doubtful. Now the question arises that if mere presence of the convict/appellant Saidal at the time of incident makes him liable for punishment under Section 34, P.P.C. Hon'ble Supreme Court of Pakistan in case of Hasan v. State reported in 1969 SCMR 455 has held that mere presence of the accused would not be sufficient to attract the provisions of section 34, P.P.C, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention.
On this point further reference is made to the case of Hasan Din v. Muhammad Mushtaq (1978 SCM R 49) paragraph 9 of the judgment of said case is reproduced hereunder:-- "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 to be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstance to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt."
10. In the circumstances discussed above, I am of the opinion that no overt act has been assigned to appellant Saidal nor there is any sort of evidence to have implicated him in sharing common intention with absconder accused Nazir and Wazir, therefore, convict/appellant Saidal is entitled to the benefit of doubt.
11. Reverting to the case of convict Bakhat Ali as per FIR he caused lathi injuries to complainant Sijawal and his mother Mst. Sahiba. Complainant has fully implicated convict Bakhat Ali, his evidence has not been shattered, Medical evidence is also coincide with his version. Dr. Muhammad Hassan has produced medical certificates of complainant and Mst. Sahiba which shows that the injuries received by both injured were caused with hard blunt substance, there was fracture of Ist and Ilnd metacarpal bone and proximal phalanx bone of right hand of Mst. Sahiba so also simple injuries on her person. While injured Sijawal also sustained grievous/simple injuries apart from fracture of ulnabone at its upper 1/3rd of the right forearm.
12. However nowhere in the evidence either complainant Sijawal or any of the witnesses has deposed that if convict Bakhat Ali had facilitated the absconder accused Nazir and Wazir while causing the death of B deceased Ali Murad thus convict/appellant Bakhat Ali is responsible only for the act attributed to him. In the case of Taj Muhammad v. The State PLD 1963 (W.P.) Kar. 118 it has been observed that intention is a state of mind which is not ordinarily ascertainable. Intention is to be gathered or inferred only from external acts and therefore for this purpose it is very necessary to examine the act itself of the accused.
13. For the reasons discussed above, I am of the view that prosecution has failed to make out the case of sharing common intention by convict Bakhat Ali with absconder accused (Wazir and Nazir) for causing death of Ali Murad. Consequently, conviction and sentence awarded to him under section 302, P.P.C. Read with section 34, P.P.C. Is hereby set aside. So far rest of the convictions awarded to him, the trial court has rightly concluded that case against convict Bakhat Ali is proved for the offence falling under sections 324 and 452 P.P.C. Thus he has been convicted by the trial court under sections 324 and 452, P.P.C., and thus conviction and sentence awarded to him does not require any interference by this Court.
14. In view of above, this appeal was disposed of vide my short order dated 14-4-2014 in the following terms:- "It is ordered that the prosecution has failed to prove the case against appellant Saidal son of Arzi Jatoi for commission of an offence under sections 302, 324, 147, 148 and 149, P.P.C., therefore, his appeal is allowed and the conviction awarded to him vide judgment dated 14-5-2009 for the aforesaid offence is not sustainable and is set aside, let he may be acquitted. The charge against appellant Bakhat Ali for committing murder of Ali Murad has also not been proved, therefore sentence awarded to Bakhat Ali for committing murder of Ali Murad vide judgment dated 14-5- 2009 for an offence under sections 302, 147, and 149, C.P. C. Is set aside and his appeal to this extent is accepted, he is acquitted from the charge of offence under sections 302, 147 and 149, P.P.C. However, the prosecution has proved the case against the appellant (Bakhat Ali) for causing injuries to complainant Sijawal and Mst. Sahiban, therefore the conviction awarded to the appellant Bakhat Ali, R.I. For 5 years under section 324, P. P. C. And to pay fine of Rs.5000 in case of default 5 months more and under section 452 R.I. For two years and fine of Rs.2000 and in default S.I. For 2 months more is maintained. All these sentences to run concurrently and benefit of section 382-B, Cr.P.C. Is allowed, therefore the appeal of appellant Bakhat Ali for his conviction for the offences under sections 324, 452, P.P.C. Is maintained and his appeal is partly allowed and partly dismissed."
' These are the reasons of short order dated 14-4-2014.