' MUHAMMAD GHAZANFAR KHAN. J.--This judgment shall dispose of criminal appeal bearing Cr.A.
No,60-D/2014, preferred by the convict-appellant Qudratullah as well as Criminal Revision No,1- D/2015, filed by complainant Imam Bakhsh for enhancement of sentence, as both are the outcome of judgment dated 12.12.2014, rendered by learned Additional Sessions Judge-I, D.I. Khan, whereby the appellant has been convicted under Section 302(b), P.P.C. And sentenced to imprisonment for life and fine of Rs,2,00,000/- as compensation under Section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default thereof to suffer six months' simple imprisonment, however, benefit of Section 382-B Cr.P.C. Was extended to the appellant. The amount of fine was ordered to be recoverable as arrears of land revenue, whereas co-accused Saadullah was proceeded against under Section 512, Cr.P.C.. And was declared proclaimed offender.
2. Facts of the case, in brief are, that on 01.9.2012 at 2200 hours, complainant Imam Bakhsh (PW-5), made report to Muhammad Yousaf Khan S.H.O. (PW-9) in the emergency ward of civil hospital Chaudhwan to the effect that he had gone to village Bhuki from his abode, where he was telephonically informed about the murder of his son. On this information, he reached to his village Jandi Babar on his motorcycle and found his son Muhammad Ramzan murdered. He was told by Sawan (PW-6) that at Degar Qaza Wela, his son was sitting in a ground adjacent to village Jandi Babar where children were playing cricket; in the meanwhile, accused Qudratullah, who was driving motorcycle 125 CC of black colour, while absconding co-accused Saadullah duly armed with Kalashnikov was sitting behind him, came there and no sooner they reached on the spot, co- accused Sadullah fired at Muhammad Ramzan with Kalashnikov, who was hit on his head and succumbed to his injuries on the spot. The occurrence was stated to have been witnessed by Sawan, Kaleemullah and Subedar. Motive for the occurrence is stated to be a dispute over womenfolk. The report of PW-2 was reduced into Murasila Exh.PA/1 by Muhammad Yousaf Khan SHO (PW-9), pursuant to which Inamullah Khan ASI (PW-2) registered case vide FIR No,127 dated 01.9.2012, under Section 302/34, P.P.C. (Exh.PA) against the accused.
3. On arrest of the convict-appellant, challan against him was submitted in the trial Court. The accused was charge-sheeted to which he pleaded not guilty and claimed trial. In order to substantiate charge against the accused, prosecution examined as many as ten witnesses, where after statement of accused under Section 342, Cr.P.C. Was recorded. The accused neither opted to produce defence nor wished to be examined on oath in terms of Section 340(2) Cr.P.C. After conclusion of trial, the appellant was convicted and sentenced vide impugned judgment dated 12.12.2014, which has been assailed through the instant appeal, whereas Cr.R. No,1-D/2015 has been filed by complainant for enhancement of the sentence. Both the criminal appeal and criminal revision are being disposed of through this single judgment.
4. Learned counsel for the appellant contended that the impugned judgment is against law and facts, therefore, same is not sustainable; that the appellant was only charged for alleged sharing of common intention, whereas ingredients of same are missing in the present case, but this aspect of the case was either ignored by the trial Court or the same was not taken into consideration; that there is inordinate delay in lodging the report; that the so-called eye-witnesses were procured who are closely related to the complainant party and that too when they have made improvements in their statements, so keeping in view the dishonest improvements, their statements could not be believed and relied upon for the purpose of conviction; that the evidence of alleged eye-witness Kalimullah was withheld by the prosecution which created a serious dent in the prosecution case; that the occurrence had not taken place in the mode and manner as alleged by the complainant; that the deceased was involved in, a criminal case FIR No,75 dated 19.5.2012, under Section 381-A, P.P.C. And was having enmities in the area, therefore, element of false implication could not be ruled out; that the ocular evidence is not in harmony with the medical evidence. Learned counsel further argued that the chain of sharing common intention is missing in the present case as the alleged motorcycle was not taken into possession by the Investigating Officer, but, even then the trial Court recorded conviction of the appellant which is not tenable in the eye of law; that the occurrence allegedly took place in a playground where peoples were present at the relevant time but none of them was cited as witness; that the motive is not proved by the prosecution in accordance with law and that the ocular version is not supported by circumstantial evidence and material contradictions are apparent on the face of record, which could not simply be brushed aside by the trial Court, In support of his arguments, learned counsel relied on 2008 PCr.LJ 837 [Lahore] 'Falak Sher and another v. The State' 1994 PCr.LJ 1640, [Karachi] 'Gul Muhammad v. Said Karim and 3 others' PLD 2001 SC' 378, 'Muhammad Yaqoob, Sub-Inspector v. The State' 2001 SCMR 25, 'Allah Wadhayo and another v. The State', 2016 PCr.LJ 114 [Peshawar], Riaz Ahmad v. The State and another' 2016 MLD 76 [Peshawar], 'Said Zamin v. Shair Azaim and others' 2016 MLD 42 [Peshawar], 'Fazal Maula v. The State through Additional Advocate General Khyber Pakhtunkhwa and another' 1995 SCMR 1730, 'Riaz Masih alias Mithoo v. The State 1995 SCMR 1345, Tariq Pervez v.
The State' 1998 MLD 192, 'Arshad alias Kausar v. The State'. Learned counsel prayed for setting aside the impugned conviction and sentence.
5. As against that, the learned State counsel assisted by learned counsel for the complainant contended that the case against the appellant was proved beyond any shadow of doubt because the accused was directly charged in the FIR in a daylight occurrence and has played an active role in the commission of offence, but the trial Court by awarding lesser punishment has erred in law; that the testimony of eye-witnesses is consistent on material particulars and defence had failed to shatter their testimony with regard to presence of the convict on the spot and sharing common intention with absconding co-accused; that the entire material proved the case against the appellant, therefore, he deserved normal ' penalty of death and the learned trial Court by awarding lesser punishment has failed to exercise the jurisdiction vested in it by law.
6. We have heard the learned counsel for the appellant and the learned Additional A.G. Assisted by counsel for the complainant and have gone through the material available on the file.
7. Leaving apart the arguments advanced at the bar as any discussion thereon may prejudice the case of co-accused, suffice it to say that the appellant was charged for sharing common intention with absconding co-accused in the commission of crime, but no overt act towards commission of the offence has been attributed to him as no evidence regarding his active participation in the crime is available on the file. Insofar as theme of section 34, P.P.C. Is concerned, it deals with the acts done by several persons in furtherance of common intention. Neither it is a punitive section, nor does enact a rule of evidence but mainly relates to 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 proof that at the relevant time each one of them remained involved in the commission of the offence e.g. Mere presence at the spot ipso facto would not be sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of sharing common intention even prior to the commission of offence. It must be proved that the offence was committed in concert pursuant to the prearranged plan. 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 or 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.
8. For the foregoing reasons, we allow this appeal, set aside the impugned conviction and sentence recorded by the learned trial Court vide judgment dated 07.5.2014 and consequently, acquit the appellant of the charge leveled against him. He shall be set free forthwith from jail, if not required in any other case. While criminal revision for enhancement of sentence, bearing Cr.R. No,1-D/2015 stands dismissed for having become infructuous.
9. Above are reasons of our short order of the even date.