' SAAD SAOOD JAN, J.-The appellant Muhammad Younas, aged 26 years has been convicted by the Additional Sessions Judge at Lyallpur for offences under section 302 and 307 read with section 34, of the Pakistan Penal Code for causing the death of Muhammad Zaman deceased and making a murderous assault upon Muhammad Wan (P. W. 15). For the offence under section 302, P. P. C. He has been sentenced to death and for the offence under section 307 he has been directed to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs, 1,000 or in default to undergo further rigorus imprisonment for a period of one year. The sentence of imprisonment is to take effect only if the sentence of death is not confirmed. He has filed this appeal against his conviction and sentence and the learned Additional Sessions Judge has also made a reference to this Court for confirmation of the death sentence. This judgment will dispose of both the appeal and the reference.
2. Alongwith the appellant his two brothers, namely Muhammad Aslam and Abdul Wahid, were also alleged to have taken part in the occurrence. Abdul Wahid absconded soon after the occurrence and as such was not available to stand his trial. Muhammad Aslam was acquitted by the learned Additional Sessions Judge.
3. It was alleged by the prosecution that the appellant and his brother Abdul Wahid would often loiter near the house of Muhammad Irfan (P. V. 15) who had grown-up female relatives living with him. Muhammad Irfan (P. W. 15) remonstrated on many occasions with the appellant and his brother but without any effect. A day prior to the occurrence at about deganela when the appellant and his brother Abdul Wahid were, as usual, standing near the house of Muhammad Irfan (P. W. 15), there was a quarrel during the course of which the appellant and his brother Abdul Wahid on the one side and Muhammad Irfan (P. W. 15) and the deceased, both cousins, on the other side exchanged abuses with each other. Ghulam Muhammad (P. W. 12) and one Jan Muhammad intervened and stopped the quarrel. However, before leaving the appellant and his brother threatened that they word take revenge for the abuses hurled at them.
4. On 12-7-70 at about 10 a.m. Muhammad Irfan (P. W. 15) left his house for his shop. When he reached near the wooden bridge on the watercourse separating Mohallah Gurunanakpura from Mohallah Harcharonpura No, 2 the appellant and his brothers came there. The appellant had a shotgun, Abdul Wahid was armed with a rifle and Muhammad Asiam was carrying a pistol. They raised a lalkara that Muhammad Irfan (P. W. 15) should not be allowed to get away alive as h.; had abused them on the preceding day. Immediately thereafter the appellant fired a number of shots at Muhammad Wan (P. W. 15) who was hit in the leg and back. The deceased was attracted to the spot by the report of gun fire. Abdul Wahid fired two or three times at the deceased with his rifle.
The deceased was hit in the stomach. After that the appellant and his companions ran away shooting indiscriminately with their weapons. The occurrence was witnessed by Ghulam Muhammad (P. W. 12), Abdul Rahim (P. W. 13) and Shamas-ud-Din (P. W. 14) as well.
5. Immediately after the occurrence Ghulam Muhammad (P. W. 12) went to Police Post, Jhang Bazar which was at a distance of 2/3 furlongs from the spot. At the Police Post Ghulam Muhammad (P. W.
12) made a statement at 11-45 a.m. Before Muhammad Akram, Sub-Inspector (P. W. 18). On the basis of this statement a case was registered on the same day at 12 noon at Police Station, Factory Area.
6. Both the deceased and Muhammad Irfan (P. W. 15) survived the shooting and were removed to the District Headquarters Hospital at Lyallpur. The deceased succumbed to his injuries four days later on 16-7-1974.
7. The case was investigated by Muhammad Akram Sub-Inspector (P. W. 18). He collected three empty cartridges of .12 bore, four empty rifle cartridges and a live revolver cartridge from the scene of occurrence. He also saw pellet marks on the surrounding walls. He arrested the appellant on 15- 8-74.
8. The post-mortem examination of the deceased was performed by Doctor Imtiaz Ahmad Gil. The deceased had the following two injuries on his body :-
(1) a fire-arm wound of entrance, r x r on the right side of abdomen, close to the umbilicus ; and
(2) a fire-arm wound of exit, 1/3' x 1/3" on the left buttock.
' On dissection the doctor found the peritoneum covered with pus and the abdomen full of clotted blood. There were injuries also on the small intestines. The doctor was of the view that the death had resulted from shock, peritonitis and haemorrhage.
9. Muhammad Irian (P. W. 15) was examined by Doctor Imtiaz Ahmad Gil on the very day of the occurrence. He had a large number of fire-arm wounds on the left shoulder, left fore-arm, right ankle, right leg, left leg and left hip.
10. The appellant pleaded not guilty to the charge against him. He denied that he was responsible in any manner for causing the death of the deceased or making a murderous assault upon Muhammad Irfan (P. W. 15). He alleged that he had been falsely implicated on account of past enmity. He also averred that the deceased was his friend and that he had appeared as a witness in a criminal case in support of the deceased only a few months prior to the occurrence.
11. The case of the prosecution rests entirely upon the testimony of Ghulam Muhammad (P. W. 12), Abdul Rahim (P. W. 13), Shamas-ud-Din (P. W. 14) and Muhammad Irfan (P. W. 15). The learned Additional Sessions Judge was of the view that Ghulam Muhammad (P. W. 12) was not a reliable witness and accordingly be excluded his statement from consideration. The learned counsel appearing for the State has also not relied upon the testimony of his witnesses. Thus, we are left with the evidence of Abdul Rehire (P. W. 13), Shamas-ud-Din (P. W. 14) and Muhammad Irfan (P. W.
15). The presence of Muhammad Wan (P. W. 15) on the scene of occurrence at the relevant time admits of no doubt. Both Shamas-ud-Din (P. W. 14) and Abdul Rahim (P. W. 13) live in the vicinity and as such they were not unnatural witnesses. It is no doubt true that Shamas-ud-Din (P. W. 14) is a close relation and Abdul Rahim (P. W. 13) is a member of the brotherhood of the deceased but these connections would not necessarily make them inimical witnesses. There was no noteworthy background of enmity between the parties. Shamas-ud-Din (P. W. 14) has made certain improvements in his statement at the trial which affect his credibility to some degree, but the same cannot be said of Abdul Rahim (P. W. 13) who has throughout given more or less a consistent account of the occurrence.
12. The occurrence took place in broad day-light. All the eye-witnesses are unanimous on the point that it was the appellant who fired at Muhammad Irfan (P. W. 15). It was he, too, who fired the first shot. The eyewitnesses could not, therefore, be mistaken about his identity. Muhammad Irfan (P. W.
15) had no motive to make a false statement with regard to the person who had actually fired at him. In the circumstances his conviction under section 307, P. P. C. For making a murderous assault on Muhammad Irfan (P. W. 15) is well-founded. The sentence awarded to him for this offence does not appear to be excessive.
13. As regards the murder of the deceased all the eye-witnesses have deposed that it was Abdul Wahid alone who had fired at the deceased. The post-mortem report shows that the deceased was hit by only one shot. It will thus appear that the liability of the appellant for the murder of the deceased is of a vicarious nature. The point for consideration, therefore, is whether there is enough evidence on the record to justify the extension of the provisions of section 34 of the Pakistan Penal Code to the appellant so as to make him also answerable for the murder of the deceased. Before I take up the evidence having a bearing on the point, it will be of advantage to reproduce the views of the Judicial Committee of the Privy Council on the construction of section 34 of the Pakistan Penal Code. In Mehboob Shah v. King-Emperor (1) their Lordships observed "Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all ; if this is shown, then liability for the crime may be imposed on any one of the person in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that the common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in correct pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible to procure direct evidence to prove the intention of an individual ; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
' It will appear from the above dicta that before a person can be held liable for the criminal act of another under section 34 it must be shown that he had shared the intention in the furtherance of which that criminal act was committed. The burden of showing the common criminal offence, is always on the prosecution. It is true that, as pointed out by their Lordships of the Privy Council, it is difficult, if not impossible, to procure direct evidence in this regard and in most cases the common intention has to be inferred from the act or conduct of the person sought to be made vicariously liable or other circumstance of the case ; nevertheless the proposition admits of {{FOOT NOTE}}
(1) 12 I A 14$ {{FOOT NOTE}} ' no doubt that the act, conduct or the other relevant circumstances upon which reliance is placed by the prosecution should be of a nature that no other inference except that of sharing of common intention should be possible. It requires no elaboration to say that when from the act, conduct or other circumstances two inferences arc permissible, the one favouring the person accused ought to be adopted. After all when a person is to be punished for the act of another the nexus between him and the act must be clearly established.
14. The motive for the occurrence is stated to be the quarrel which took place a day prior to the occurrence between the appellant and Abdul Wahid on the one hand and Muhammad Irfan (P. W.
15) and the deceased on the other. Ghulam Muhammad (P. W. 12) and Jan Muhammad were stated to have intervened and stopped the quarrel. Jan Muhammad was not examined by the prosecution and Ghulam Muhammad (P. W. 12) and Jan Muhammad were stated to have intervened and stopped the quarrel. Jan Muhammad was not examined by the prosecution and Ghulam Muhammad (P. W. 12) has been found to be an unreliable witness. It is not therefore, possible to accept the word of Ghulam Muhammad (P. W. 12) on its face value with regard to what happened on the day preceding the occurrence or in respect of the identity of the persons who took part in that quarrel. So far as Muhammad Irfan's participation in the quarrel is concerned it stands amply established by the words of lalkara raised by appellant and his brother just before shooting as described by Shamas-udDin (P. W. 14) and Abdul Rahim (P. W. 13). But there is no such evidence with regard to the deceased. We cannot in this context accept the deposition of Muhammad Irfan (P. W. 15) without reservation for being the first target of the shooting, would have the natural tendency to implicate all the assailants as fully as he possibly. Thus there is no satisfactory evidence that the deceased had also taken part in the quarrel which would furnish a motive to the appellant to harm him also.
15. Taking the occurrence itself I think it can be split in two parts. The first part relates to the attack on Muhammad Wan (P. W. 15). According to the eye-witness account the appellant and his brothers met Muhammad Irfan (P. W. 15) near the bridge. On seeing Muhammad Irfan (P. W, 15) the appellant and his brothers raised a lalkara that they were going to take revenge for the abuses hurled at them on the preceding day. Immediately thereafter the appellant opened fire at Muhammad Irfar (P. W. 15) hitting him twice. The fact that the appellant and his companions armed themselves with deadly weapons and immediately on seeing Muhammad Irfan (P. W. 15) raised a lalkara and started shooting without receiving any immediate provocation, is indicative of a preconcert plan of murdering Muhammad Irfan (P. W. 15) and, as such, had Abdul Wahid been available at the trial the provision of section 34 would have fully applied so as to make him also liable for the offence under section 307 of the Pakistan Penal Code. This concludes the first part.
16. Now I take up the second part. The deceased on hearing th report of gun-fire was attracted 'to the spot. No lalkara was raised by the appellant and his brothers on this occasion. Shamas-ud-Din did make a statement to the contrary but then he was not supported by the other eye witnesses ; besides, this was not the position he adopted either before the police or the committing Magistrate.
The only person who fired at the deceased was Abdul Wahid. On being struck the deceased fell down. Even though the appellant still had plenty of ammunition with him, yet he did not fire at the deceased. The assertion of the eye-witnesses that Muhammad Islam had also fired at the deceased has not been accepted by the learned additional Sessions Judge and he has been acquitted. The State has not tared to file any appeal against his acquittal and the complainant party too as not filed any revision. It is, therefore, clear that both the State and the complainant party have accepted this finding of the trial Court. Abdul Rahim (P. W. 13) admitted in his cross- examination that the appellant and ais brothers estopped the firing as soon as Muhammad Irfan (P. W. 15) and the deceased fell down. It was the case of the prosecution itself that Muhammad Irfan (P. W. 15) had already been hit a number of times before the deceased arrived at the spot.
Despite the assertion of Muhammad Irfan (P. W. 15) to the contrary, he must be lying on the ground when the deceased was attracted to the scene of crime. In the circumstances the possibility cannot be precluded that the act of firing at the deceased was the independent act of Abdul Wahid for which the appellant cannot be held responsible. Abdul Rahim (P. W. 13) did allege that the appellant and his brother indulged in indiscriminate firing but, as would appear from his statement that this happened before the deceased arrived at the spot. In any event it is not the prosecution case that any one was hurt by this indiscriminate firing.
17. For the reasons stated above. I am of the opinion that there is not enough evidence on the record on the basis of which the appellant can be held guilty for the murder of the deceased. I would, therefore, set aside his conviction and sentence on the charge of the murder of the deceased and acquit him of the same.
18. The result is that the conviction and sentence of the appellant for the murderous assault on Muhammad Irfan (P. W. 15) are maintained while the same with regard to the murder of the deceased are set aside. The appeal and the reference are disposed of accordingly.
' ABDUL GHAFOOR KHAN LODHI, J-I agree with my learned brother Mr. Justice Saad Saood Jan that so far as Muhammad Younas appellant is concerned the rule of vicarious liability enunciated by section 34, P. P. C. Is not applicable. The rule is not absolute and applied according to the circumstances of each case. The circumstances of the present case are such that the appellant cannot be made liable for the act done by Abdul Wahid absconder. This is true that in the incident which took place a day earlier than the fateful day, the deceased was also present and ex facie it may appear that for this reason the appellant is also liable for the act of Abdul Wahid absconder as a result of which the death of Muhammad Zaman occurred. But that will be possible if there is some material on the record to show that the appellant and his two brothers had common intention to attack the deceased also. According to the prosecution case the appellant and his two brothers would often stand near the house of Muhammad Irfan (P. W. 15) and not near the house of the deceased. It was Muhammad Man who on many occasions requested the appellant and his brothers not to loiter near his house which was inhabited by females, therefore, obviously the appellant and his brothers were aggrieved against Muhammad Irfan only and not against the deceased. In such cases evidence of the conspiracy or the concert between the assailants cannot be made available and all the circumstances of the case are to be kept in view for coming to a conclusion whether the rule of vicarious liability is applicable or not. The evidence on the record does not show that the appellant and his companions expected that Muhammad Irfan would in all probabilities be accompanied by the deceased. The thing which has led me to believe that the appellant was not expecting that Muhammad Irfan would be accompanied by the deceased is that the houses of Muhammad Irfan and the deceased are not situated close to each other.
According to the prosecution case, Muhammad Irfan P. W. Was coining from his shop and proceeding to his house situated in street No, 2, Gurunanakpura. There is no evidence that Muhammad Irfan and the deceased were running the shop jointly or that Muhammad Irfan while going to his house from his shop daily used to take the deceased also with him. From the site plan it is apparent that Gurunankpura is situated towards the North of Rajbah Sirwala at a distance of about more than 100 feet whereas the house of the deceased is situated In a lane named Harcharnpura No, 2 situated at a distance of about 175 feet from the said Rajbah towards the South-west. There is no evidence that the deceased was expected to cross the stream alongwith or separately from Muhammad Irfan P. W. At the time the appellant and his two brothers were present armed with guns. It appears that the appellant and his companions knew that Muhammad Irfan would cross this stream, therefore, they were waiting for him armed with guns.
So, actually this much can be said that they has common intention to attack Muhammad Irfan P.
W. And there is no material to say that they had common intention at the relevant time to attack the deceased also. According to the prosecution case the deceased came out of this house being attracted by the gun reports. The appellant and his brothers could develop common intention to attack him at the spur of the moment after the deceased had appeared at the scene of occurrence, but there is no consistent evidence in this respect. No doubt laikara was attributed to the appellant by Shamas-ud-Din P. W. But, as remarked by my learned brother, the said witness had not spoken of such a lalkara either before the police or before the Committing Magistrate. So he made improvement at the trial and for this reason this part of his statement is not believable.
2. The site plan appears to have been Incorrectly prepared. If Muhammad Irfan had not survived the incorrect site plan would have very much weakened the case of the prosecution. Since Muhammad Irfan was admittedly injured at the time of the occurrence, his presence cannot be denied. According to his statement and the evidence of other eye-witnesses he had yet to cross the wooden bridge when he was attacked. So, the place where he was attacked is wrongly shown at point No, 2 and should have been somewhere near the point No 7.
3. I, therefore, concur with my learned brother that the appellant is liable only to the extent of the act done by him and not vicariously liable for the act done by Abdul Wahid absconder.