MUHAMMAD EJAZ SWATI, J.---The complainant Mirza Khan lodged an FIR No,215 of 2009 with the Police Station Sadder District, Loralai dated 10th December, 2009 under section 302/34, P.P.C., wherein it was alleged that on the fateful day, his sons Rehmatullah, Sher Zaman, Gul Baran and nephew Muhammad Anwar and Azeem Khan went to bazar and when they reached near Cinema Galli, Zhob, the accused persons namely Ali Shah, Shah Baz Khan including the private respondent, who were already present there, attacked upon his sons. It was further averred that co-accused Ali Shah (convict) took out Pistol and started firing upon Sher Zaman, as a result of firing, two fire shots hit on his person and he died at the spot. The accused persons escaped from the place of incident.
2. The Sessions Judge, Loralai (hereinafter "the trial Court") vide judgment dated 19th September, 2015 (hereinafter "the impugned judgment") acquitted the private respondent of the charge, while the main accused Ali Shah son of Arsalla Khan was convicted and sentenced as mentioned in the impugned judgment.
3. Learned counsel for the appellant contended that the private respondent along with co-accused in furtherance of their common intention, committed the murder of deceased Sher Zaman; that the eyewitnesses PW-1 Rehmatullah, PW-2 Muhammad Anwar and PW-3 Azeem Khan supported the case of prosecution, which has further been corroborated by the medical evidence; that the trial Court misread the evidence and also misinterpreted the section 34, P.P.C.; that the findings rendered by the trial Court are perverse and arbitrary, as such the same are liable to be set aside and the private respondent be convicted in accordance with law.
4. We have heard the learned counsel for the appellant and perused the record. Though the eye- witnesses PW-1, PW-2 and PW-3 deposed that they along with deceased Sher Zaman were proceeding towards Zhob road and when reached near Cinema Galli, Zhob, saw that the accused persons, namely, Ali Shah, Umer Khan and Shah Baz Khan were standing there, out of them, accused Ali Shah started firing which resulted the death of Sher Zaman. The ocular account furnished by the aforesaid witnesses of the prosecution, nowhere indicate any overt act on the part of private respondent, namely, Umar Khan and mere his presence along with the main accused had been shown. The arguments of the learned counsel for the appellant regarding misconstruction of section 34, P.P.C. By the trial Court and involvement of the private respondent in the present case in furtherance of common intention is concerned. The whole attending circumstances of the prosecution case nowhere indicate any intent of the private respondent. He is neither involved in any motive part of the prosecution story nor had been found facilitating the main accused in any manner. In absence of premeditation, planning or preparation, the very fact that the private respondent was present along with main accused in Bazar could not be sufficient to attribute a common intention to him, when the appearance of the complainant party at the scene was by chance, therefore, in absence of common intention benefit of doubt was rightly extended to the present accused. Reference in this respect is to be made to the case titled Sher Khan v. The State 1991 SCM R 241, wherein the Supreme Court observed as under: "This would show that there was no pre-meditation, there was no preparation and there was no planning. The very fact that they were armed---Ghulam Muhammad, with a gun, Sher Khan with a Spear and Muhammad Khan with a Sota, could not he sufficient to attribute a common intention to them when the appearance of the complainant party at the scene was by chance and also the altercation over the diversion of the water which could not he anticipated, nor was it planned. "
In the case titled Hassan v. The State, 1969 SCM R 454, it has been held that the mere presence of the accused would not be sufficient to attract the provision of the section 34, P.P.C., but there must be proof of some overt act on the part of each accused in furtherance of common intention. In the present case in absence of any motive against the private respondent, his mere presence with the main accused without any overt act can neither attract his participation in furtherance of common intention, nor there is any other circumstantial evidence to connect him in the crime, therefore, no misreading and non-reading of evidence or any perversity has been found in the impugned judgment to warrant interference by this Court.
In view of the above, the CriMinal Acquittal Appeal No,297 of 2015 is dismissed in limine.