' SADAQAT ALI KHAN, J.---The instant Criminal Appeal No,. 810 of 2013 has been filed by Hakmin Zafar and Imran Arshad present appellants against the judgment dated 05.06.2013 passed by Special Judge Anti-Terrorism Court, Sargodha according to which present appellants Hakmin Zafar and Imran Arshad were convicted and sentenced as under:- "under section 148, P.P.C. And sentenced to three years R.I each.
' Under section 302 read with section 149, P.P.C. And sentenced to life imprisonment as Tazir each by vicariously liable for the Qatl-e-Amd of Qayyum Khan deceased along with compensation Rs,1,00,000/- each payable to the legal heirs of the deceased and in default thereof further undergo six months S.I each.
' Under section 324/149, P.P.C. And sentenced to ten years R.I each being vicariously liable for attempting to commit the Qatl-e-Amd of PWs namely Abdul Raheem, Munir Ahmad, Ghulam Mohammad along with fine Rs,50,000/- each and in default thereof further undergo six months S.I.
Each.
' Under section 7 (a) ATA 1997 read with section 149, P.P.C. And sentenced to life imprisonment each being vicariously liable for the Qatl-e-Amd of Qayyum Khan along with fine Rs, 1,00,000/- each and in default thereof further undergo six months S.I each.
' Under section 7 (e) of ATA 1997 read with section 149, P.P.C. And sentenced to ten years R.I each being vicariously liable for attempting to commit the Qatl-eAmd of PWs Abdul Raheem, Munir Ahmad, Ghulam Mohammad and Zafar along with fine Rs,50,000/- each and in default thereof further undergo six months S.I."
' The sentences awarded to the appellants were ordered to be run concurrently with benefit of section 382-B, Cr.P.C. By the learned Special Judge, Anti-Terrorism Court, Sargodha in case FIR No, 220 dated 20.7.2012 under sections 302, 324, 148/149, P.P.C. And 7 of ATA 1997 Police Station, Laksian District Sargodha.
2. The facts of the case have been stated by Jumma Khan/complainant PW-10 in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts:- - "I am resident of Doda Moar. I along with my brothers Qayyum Khan, Abdul Raheem was standing at Doda Moar to go to offer prayer at about 1.30-pm. When we were crossing Sargodha Lahore Road, a car Honda city bearing No,331-LE Model 2010 came from Sargodha side. At the same time, Munir Ahmad, Ghulam Muhammad both residents of Doda and Zafar lqbal were also standing at the side of same road. As soon as I along with my aforesaid two brothers was crossing the road and was proceeding towards the mosque the above mentioned car stopped near us from which five persons came out namely Hassan Sahi armed with Kalashnikov, Hafiz Abu Bakkar equipped with pistol, Sajid Rehman, Imran Arshad are present before the court whereas remaining accused are proclaimed offenders. Hassan Sahi raised lalkara that they belonged to a notorious family and how we dare to cross their car. My brother Qayyum Khan replied that they should go to their way on which abused were exchanged between us and accused persons. At the same time, Hassan Sahi fired through Kalashnikov which hit my brother Qayyum Khan on his left chest. Thereafter, Hassan Sahi and Hafiz Abu Bakkar started firing with their respective weapons which landed on the persons of Abdul Raheem, Munir Ahmad, Ghulam Muhammad and Zafar. My brother Qayyum Khan died at the spot due to the injuries. Hassan Sahi and Hafiz Abu Bakkar fired which hit on the shops at the spot. The accused of accused persons created terrorism. The people of the surrounding area ran away due to fear. Accused persons fled away from the spot while riding on their car towards Sargodha. The occurrence was witnessed by Abdul Raheem, Munir Ahmad, Ghulam Muhammad and Zafar injured along with Ameer and I myself. Police reached the spot. I got recorded my statement Exh. PA before police who read over to me and I signed the same in token of its correctness"
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.0 was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 06.12.2012 against present appellants/convicts under sections 148, 149, 324, 337-F(iii), 337-D, P.P.C. And under sections 7 (a) and 7 (c) of ATA 1997 to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Ghulam Hussain PW-1, Mohammad Hafeez PW-2, Sher Baz Khan PW-3, Mohammad Nawaz H.0 PW-4, Manzoor 'Ahmad, Constable PW-5, Dr. Noor Mohammad PW-6, Mohammad Mumtaz constable PW-7, Mohammad Zafar ASI PW-8, Dr. Abdu Bakkar PW-9, Jumma Khan PW-10, Munir Ahmad PW-11, Zafar Iqbal PW-12, Ghulam Mohammad PW-13, Abdul Raheem PW-14, Khuda Bakhsh Inspector PW-15, Sohail Zafar PW-16 whereas PWs namely Mohammad Afzal constable, Lal Khan, Ameer Hussain, Razaullah Khan Inspector and Muddassar Hanif Inspector were given up by the prosecution being unnecessary and after tendering in evidence complaint Ex.PA, FIR Ex.PA/lscaled site plan Ex.PB, postmortem report Ex.PD, injury statement Ex. PE, inquest report Ex.PF, recovery memo of blood stained earth Ex.PG, recovery memo of empty cartridges 88 in number Ex.PH, injury statements Ex.PP Ex.PV, report of Serologist Ex.PX, closed the evidence.
6. Medical evidence was furnished by Dr. Noor Muhammad PW-6 who stated that on 20.7.2012, he conducted postmortem examination on the dead body of Qayyum Khan deceased and observed as under:- "EXTERNAL EXAMINATION.
A dead body of young man aged about 30 years, weighing about 75 kg, length 5 feet 8 inches, lying supine on a table, rigor mortis not present, post-mortem staining not present, no putrefaction, eyes were closed, natural orifices were normal no congestion and petechial hemorrhage. Deceased was wearing greenish colour shalwar and Kameez stained with blood and black colour (printed) handkerchief.
Injuries.
I. A firearm wound of entry 3/4 x 3/4 cm on the left side of front of chest, 6-cm below left nipple with blackening margins.
2. A firearm wound of entry 1 x 3/4 cm oval in shape going deep on the left inguinal region, margins were inverted and black.
3 A firearm wound of entry 3/4 x 3/4 cm circular in shape, margins were inverted going deep on the anteromedial surface of right thigh, margins were blackening.
4. A firearm wound of exit 2 x 1-1/2 cm irregular in shape (margins were everted), on the back of left side of lower part of chest about 3-cm away from midline.
5 A firearm wound of exit 2-1/2 x 1-1/2 cm irregular in shape, margins were everted on the left buttock (upper part).
6. A firearm wound of exit 2-1/2 cm x 2 cm with margins everted, irregular in shape on the right buttock (lower part)
' An abrasion 2-1/2 x 1 cm on the palmer surface of right hand near wrist joint.
Cranium and spinal cord. All the organs were healthy. Thorax.
' On examination of walls, sternum, cartilages and ribs, 5th RIB was fractured whereas other ribs were healthy, pleurae was damaged, left lung was damaged, blood vessels of left lung were damaged and other organs were healthy.
' Abdomen ' Stomach and its contents were damaged and contained 300-m1 undigested food, peritoneum and diaphragm was also damaged whereas, other organs were healthy.
Upper and lower limbs.
' Upper limbs were healthy while fracture of right femur bone was found on lower limb.
Opinion.
' In my opinion, all the injuries were ante-mortem and caused by firearm weapon. Death was occurred due to injury No,1 leading damage to left lung, pulmonary blood vessels and stomach, causing haemorrhage shock, cardio pulmonary arrest, which was sufficient to cause death in ordinary course of nature. Injuries Nos.2 and 3 also contributed in death process. Probable time that elapsed between injury and death was within 30 minutes whereas between death and post- mortem examination was 5 hours"
PW:9 Dr. Abu Bakar Medical Officer medically examined Abdul Raheem injured and observed following injuries on his person:- 1(a) An entry wound 0.5 x 0.5 cm square, in epigastric region (upper abdomen), margins were inverted.
1(b). A wound of exit 1 x 0.5 cm square on left side of middle of back.
2(a) A wound of entry 1 x 0.5 cm square on outer aspect of right upper thigh.
2(b) A wound of exit 4 x 1 cm square on right buttock.
' All the above injuries were kept under observation till X-Ray and surgeon opinion but the victim did not produce the X-Ray or surgical opinion. After passage of two months I declared the injuries as follows:- ' Injuries Nos.1(a) and 1(b) to be Jurh. Jaifah by firearm until proven otherwise.
' Injury Nos.2(a) and 2 (b) to be Jurh Ghayr Jaifah Mutalahimah by firearm until proven otherwise.
' Ex. PO is correct carbon copy of medico legal report which is in my hand and bears my signatures. My opinion is Exh.PO/1. Exh.PP is injury statement which also bears my stamp and signature.
He stated that on the same day and time he also medically examined Zafar lqbal son of Mohammad Khan and found following injuries on his person:- 1(a) A wound of entry 0.5 x 0.2 cm square on lateral side of middle of right thigh, margins were inverted, blackening was present. Corresponding hole was in shalwar.
1(b) A wound of exit 6 x 2.5 cm square, irregular margins on posterior and inner aspect of upper right thigh, margins were irregular and lacerated.
2(a) A wound of entry 0.3 x 0.3 cm square on front and outer aspect of right thigh, just above knee joint. Corresponding hole was present in shalwar.
2(b) A wound of exit, profusely bleeding on front and inner aspect of right thigh, close to the knee joint.
3(a) A wound of entry 1 x 0.5 cm square on front and lateral aspect of middle left thigh.
3(b) A wound of exit 4 x 3cm square on posterior and aspect of left thigh.
4(a) A wound of entry 4 x 2.5 cm square on inner side of left thigh, just above knee.
4(b) A wound of exit 3 x 2 cm square on back and outer aspect of left thigh, close to the knee joint.
5(a) A wound of entry on front and outer part of upper left leg, measuring 0.5 x 0.5 cm square.
5(b) A wound of exit on left leg on its back and outer part, measuring 1 x 0.5 cm square.
' All the aforementioned injuries were kept under observation for X-Ray report and surgical opinion. The opinions were not produced before me and after the passage of two months I declared the injuries as follows:- ' All the injuries were declared as Jurh Ghayr Jaifah Mutalahimah by firearm until proven otherwise. Exh.PQ is correct carbon copy of medico legal report which is in my hand and bears my signatures. Exh.PQ/I is my opinion. Exh.PR is injury statement which also bears my stamp and signatures.
He further stated that on the same day, he medically examined Munir Ahmad and found following injuries on his person:- 1(a) A firearm wound of entry on upper part of front of right leg, margins were inverted and blackened.
1(b) A firearm wound of exit satellate shape on back of right leg.
' Injuries were kept under observation for X-Ray and surgeon opinion which were not produced by the victim, so I declared the aforementioned two injuries after two months to be Jurh Ghayr Jaifah Mutalahimah by firearm until proven otherwise. Exh.PS is correct carbon copy of medico legal report which is in my hand and bears my signatures. Exh.PS/1 is my opinion. Exh.PT is injury statement which also bears my stamp and signatures.
On the same day, he medically examined Ghulam Mohammad and found following injuries on his person:- ' A firearm wound of entry on Dorsum of right hand 2 x 1.5 cm square inverted margins, blackening was present.
' The above said injury was also kept under observation till X-Ray and surgical opinion. Exh.PU is correct carbon copy of medico legal report which is in my hand and bears my signatures. Exh.PV is injury statement which also bears my stamp and signatures"
7. On the other hand, statements of present appellants were recorded under section 342, Cr.P.C.
Who refuted the allegations so leveled against them but have not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce the defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Hakmin Zafar replied as under:-- "Neither I was present at the place of occurrence nor I participated in the same. However, complainant and PWs have falsely implicated me in this case on the asking of police"
' Likewise, appellant Imran Arshad in reply to question why this case against you and why the PWs deposed against you? Replied as under:- "Neither I was present at the place of occurrence nor I participated in the occurrence. However complainant and PWs have implicated me in this case falsely on the asking of police "
8. After conclusion of the trial, learned trial court convicted the present appellants Hakmin Zafar and Imran Arshad with above stated sentences. Hence this appeal.
9. Learned counsel for the appellants contended that:--
(i) the judgment of the trial court dated 05.06.2013 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial court wrongly convicted present appellants in surmises and conjectures;
(iv) and lastly submitted for the acceptance of the appeal of the present appellants;
10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in the FIR Ex.PA/1 recorded on the statement of Jumma Khan complainant PW-10 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. Admittedly, no injury is attributed to the present appellants Hakmin Zafar and Imran Arshad on the person of Qayyum Khan deceased. Likewise, no injury is attributed to present two appellants on the persons of Munir Ahmad PW:11, Zafar Iqbal PW:12, Ghulam Muhammad PW:13 and Abdul Rahim PW:14 (injured persons).
14. Juma Khan PW:10 stated in cross-examination as under:- "According to my case Hakmin Zafar and Imran Arshad were empty handed and they did not cause any injury to any person"
15. Likewise, Abdul Rahim injured PW.14 stated in cross-examination as under:- "According to my case, both Imran and Hakmin Zafar accused were empty handed and they did not cause injuries to any person"
16. We also perused the FIR Exh.PA/I according to which, present two appellants were shown empty handed at the place of occurrence at the time of occurrence. During investigation, nothing was recovered from the possession of the present appellants.
17. No motive is attributed to present appellants rather, no motive of occurrence has been introduced by the prosecution.
Further, the instant occurrence took place at the spur of the moment. Relevant para of the FIR is hereby re-produced:- {{URDU TEXT}}
18. No overt act is attributed to present appellants. No one from the appellants was driving the car bearing registration No .331/LE Model 2010 Honda City Car mentioned in the FIR.
19. We are of the view that to attract the provisions of 34, P.P.C., there must be some proof of overt act on the part of each accused done in furtherance of the common intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co- accused, who commits the offence, may not be sufficient to connect former with vicarious liability.
Principle of vicarious liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manifesting a common intention which is missing in the present case. The word intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external act and for this purpose it is very necessary to examine the act itself of the accused. There must be material to show some overt act done in furtherance of common intention which is missing in the present case. Reliance is placed on case titled "Hassan v. The State" (1969 SCM R 454) in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under:- "This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P. W.3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted".
20. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal Appeal No,810 of 2010 filed by present appellant Hakmin Zafar and Imran Arshad is accepted and convictions and sentences awarded by the learned trial court through judgment dated 05.06.2013 against them is set-aside and the appellants are ordered to be acquitted of the charge in case FIR No, 220 dated 20.7.2012 under sections 302, 324, 148/149, P.P.C. And 7 of ATA 1997 Police Station, Laksian District Sargodha.
They are directed to be released forthwith if not required in any other case.
21. Before parting with this judgment, it is observed that Hassan Imtiaz, Abubakar and Sajjid-ur- Rehman are (P.Os.), their case shall be decided on its own merits without being influenced from this judgment whenever they were arrested.