ABDUL HAMEED BALOCH, J.---- This Criminal Acquittal Appeal is directed against the judgment dated 26.11.2019 ("impugned judgment ") passed by the Model Criminal Court Sibi ("trial Court "), whereby the private respondents/accused were acquitted of the charge in case FIR No. 07/2018, lodged with Levies Station Talli, under Sections 302, 324, 337-H(2), 147, 148, 148, P .P.C.
2. Brief facts of the prosecution case are that on 10.05.2018 the complainant namely Allah Bakhsh lodged the referred FIR, alleging therein that on the stated date he and his brothers were cons truction the boundary wall of his house when his uncles namely Muhamma d Siddique and Malik Abdul Latif were also present there. At about (9..00 am, accused Mian Khan, Hamid Khan and Izzat being equipped with T.T pistol, Jan Muhammad being equipped with Axe, Muhammad Ramzan, Gahwar Khan and Dost Muhammad being equipp ed with Kalashnikov came there and from distance of about 15/20 paces they called them; Whereupon, his brothers namely Muhammad Ibrahim and Khuda Bakhsh went towards them. As soon as they reached near to them, the accused Mian Khan, Hamid Khan and Izzat Khan started firing upon his brother with TT pistols, meanwhile rest of the co-accused made aerial firing upon them, however accused Jan Muhammad also attacked upon his brothers with Axe. As a result of occurrence, the brothers of complainant namely Muhammad Ibrahim and Khuda Bakhsh sustained serious injuries.
Later on, the accused also made good their escape from the place of occurrence.
3. After submission of challan and full dressed trial the trial court vide impugned judgment acquitted the respondent of the charge. Hence this appeal.
4. We have heard the learned counsel for the appellant and have perused the record. The PW-7 (Tehsildar) registered the FIR Ex-P/7-A on the Fard-e-Bayan Ex-P/1-A and proceeded to the place of occurrence, prepared visual site plan Ex-P/7-B, secured four empties of TT pistol through recovery memo Ex-P/3-C, blood stained earth as Ex-P/3-B, blood stained cloth as Ex-P/3-D and Ex-P/3-E, MLC of deceased ExP/5-A and Ex-P/5-B. The case of prosecution revolves on the statement of ocular account i.e. PW-1, PW-2 and PW-4. PW-1 in his Fard-e-Bayan Ex- P/1-A stated that the accused arms with SMG and TT pistole came and called his brother Ibrahim and Khuda Bakhsh. The accused Miyan Khan and Hamid Khan fired on them by TT pistol, while their companions made aerial firing. PW-1 during cross-examination stated that he went alone to Thana; that the application for registration of FIR was got written through petition writer; that he proceeded to Quetta at 10:30 or 11:00 am. Whereas PW-2 Muhammad Sadiq stated that his statement was recorded at the spot; that the Tehsildar recorded his statement after two/three days. PW-4 (recovery witness) stated that the Tehsildar reached at the spot at 3 O'clock and remained at the spot about 2-1/2 hours. The names of eye-witnesses are not mentioned in Ex-P/1-A nor the PW-2 has shown the presence of the PW-4 at the spot at the rele a.n time. Under such circumstances inference can be drawn that the statement of alleged ocular account is not worthy of credence. The alleged eye-witness has not accompanied the complainant either to levies station or to he spital. If the witnesse s were present at the spot then the complainant should mention the names of witnesses in Ex-P/1-A. The circumstances suggest that the alleged ocular witnesses were foisted in order to strengthen the prosecution case. Where the names of ocular witnesses are not mentioned in the FIR, their statement need scrutiny . Reliance is placed on the case of Bagan Khan v. State 2012 YLR 510 .
5. It appears from the record that the PW-4 has not shown the presence of accused /respondent, whereas the PW-2 stated that the firing was made by absconding accused. The respondents were present at 15/20 pace away . Even the PW-1 (Complainant) in Exh.P/1-A assigned the role of firing to absconding accused, whereas private respondents were shown present at the spot and they were assigned the role of aerial firing by SMG and no empty shell of SMG was recovered from the place of occurrence. The witnesses have not attributed any coercive role to the accused/respondents in commission of offence. Mere presence of the private respondents with the co-accused at the place of occurrence would not be sufficient to visit the former with vicarious liability . Reference may be made to the case title Abdul Khaliq v . State 2006 SCMR 1886 .
5. We have carefully examined the rival contentions as agitated on behalf of the parties in the light of relevant provisions of law and scanned the entire evidence by keeping the defence version in juxtaposition. We have also perused the judgment impugned carefully . After having an in-depth scrutiny of the entire evidence, we are of the view that prosecution has failed to substantiate the guilt by producing any cogent and concrete evidence. The most significant feature of the case is that no role of firing has been attributed to the appellant but on the contrary it has been mentioned in the FIR in a categoric manner that Iftikhar fired at Nasir which resulted into his death and Shahzad fired at Muhammad Hussain who succumbed to the injuries. It is worth-mentioning that the main culprits Shahzad and Iftikhar were declared as proclaimed offenders to whom the main role was attributed. How the appellant can be held vicariously responsible for the commission of alleged offences in the absence of any incriminating material is the sole question, which could not be answered by the learned Advocate Supreme Court on behalf of State. It is to be noted that Khalid and Israr have been acquitted who had accompanied Iftikhar and Shahzad to whom the role of firing had been attributed. We are not persuaded to agree with the learned Advocate Supreme Court that in view of the provisions as contained in section 34 the appellant has rightly been held vicariously liable for the commission of alleged offence for the simple reason that provisions enumerated in section 34 cannot be made applicable in this case. It is well-settled by now that the main object for the enactment of section 34 is "to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support, and protection to the person actually committing the act. The nature of the offence committed by an accused depends upon the act done by him and the effect produced by it, and the sole object of this section is to lay down what act will be deemed to be done by the conspirators. This section is not a punitive section and does not enact a rule of evidence but enacts a common law principle of substantive law" 1935 Cr.LJ 1393, 1953 All. 214. "This section embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually . If two or more persons combine in injuring another in such a manner that each person engaged in causing the injury must know that the result of such injury may be the death of the injured person, it is no answer on the part of anyone of them to allege and perhaps prove that his individual act did not cause death, and that by his individual act he cannot be held to have intended death. Everyone must be taken to have intended the probable and natural results of the combination of acts in which he joined. All are guilty of the principal offence, not of abetment. But a party not cognizant of the intention of his companion to commit murder , is not liable, though in his company , to do an unlawful act".
6. Furthermore, one co-accused Dost Muhammad was arrested, who faced the trial and got acquittal. The role of private respondents is similar with the co-accused Dost Muhammad, who were acquitted on the same set of evidence. As far as the medical evidence is concerned, which is confirmatory in nature, only confirm unnatural death, weapon used in the commission, of fence, kind of weapon, cannot implicate the accused with the crime.
7. The standard of appreciation of evidence in appeal against the acquittal is quite different. The order of acquittal of accused by court of competent jurisdiction carries doubt presumption of innocence. Reliance is placed on the case of Muhammad Shafee alias Kuddo v . State 2019 SCMR 1045 .
8. The appellant has failed to point out any illegality and irregularity in the judgmen t impugned. The trial Court has properly appreciated the statements of prosecution witnesses and has come to just conclusion. The findings of acquittal are not perverse and ridiculous. The trial court has passed a well-reasoned judgment which warrants no interference by this court.
Thus, in view of above, the criminal acquittal appeal is dismissed in limine .