NASIM HASAN SHAH, J.-This is a petition for leave to appeal against the judgment of the Lahore High Court dated 19-1-1976, whereby Muhammad Bashir (respondent No. 2) was acquitted by giving him the benefit of doubt, and the sentences of death passed against Muhammad Mushtaq (respondent No. 1) was commuted to imprisonment for life.
2. The facts, briefly stated, are as follows--
3. Hasan Din P. W. (petitioner herein and father of the deceased) resided with his wife Mst. Khairan and his deceased son at a tube-well In village Qanoongo, Nankana Sahib. Muhammad Bashir (respondent No. 2) also resided sit the same tube-well. Muhammad Mushtaq (respondent No. 1) a close relative of Muhammad Bashir, had come to live with the latter few days before the occurrence. On the day of occurrence at about noon time the deceased having just finished cutting fodder, took off his shirt to take a bath while his parents were sitting in a nearby baithik. Just at that time, Mushtaq respondent came out of the baithik of Muhammad Bashir respondent and called the deceased, but as the latter started walking towards him Mushtaq re-entered the said baithik. Shortly afterwards, he returned with a gun, followed by Muhammad Bashir respondent.
Muhammad Bashir raised a lalkara exhorting Mushtaq to fire at the deceased, whereupon Mushtaq respondent fired a shot which hit the deceased on his chest. The deceased fell down and was carried to the Hospital, but he succumbed icy the injury on reaching there.
4. The motive for the crime was that Bashir respondent suspected the deceased of having stolen his cotton for which he reprimanded the petitioner and also threatened him with dire consequences unless the deceased desisted from stealing.
5. The prosecution examined fourteen witnesses in this case, including Hasan Din (petitioner herein) and his wife Mst. Khairan, who were the eye-witnesses of the occurrence.
6. The Investigating Officer recovered gun Exh. P. 2 at the instance of Muhammad Bashir respondent. However, according to the report of the fire-arms Expert, it could not be said when it was fired fact.
7. The learned Sessions Judge, Sheikhupura, convicted both Muhammad Mushtaq anti Muhammad Bashir respondents under section 302/34, P. P. C. And sentenced Muhammad Mushtaq to death and Muhammad Bashir to imprisonment for life. On appeal and reference, the High Court hold that the fatal shot at the deceased was fired by Muhammad Mushtaq respondent, resulting in his death, and his conviction was found to be proper. However, considering that the immediate cause of the occurrence remained shrouded in mystery, it was held that the lesser penalty would be sufficient to meet the ends of justice. His death sentence was accordingly commuted to imprisonment for life. Muhammad Bashir respondent was found not to have taken any part in the occurrence, although present al the spot. Hence his conviction and sentence were found to be unjustified and he was given the benefit of doubt and acquitted.
8. Before us, it was argued that the acquittal of Bashir respondent was not justified because the motive for the crime was fully established from the circumstance that about three days before the occurrence the said respondent dent bad reprimanded the petitioner for the theft of cotton by his son and bad also threatened the petitioner with dire consequences. The High Court observed that the altercation took place three days prior to the occurrence and during the intervening period there was no evidence on the record showing any fresh suspicion on tie part of Bashir respondent of stealing any cotton by the deceased. Therefore, it has not likely that Muhammad Bashir respondent bad continued to nurse a grievance on account of each a trivial matter for three days, about which he bad already reprimanded the complainant aide, and to instigate Muhammad Mushtaq respondent to murder the deceased in the presence of the letter's parents. The learned counsel for the petitioner submitted that it was only on the instigation of Muhammad t3ashir that Mushtaq had fired a shot at the deceased sad that he is the main culprit. Therefore, section 34, P. P.
C. Was rightly applied by the learned trial Court in convicting Muhammad Bashir respondent under section 302, P. P. C. In this context, the learned counsel has drawn our attention to the observation of the High Court to the effect that it was reasonably probable that Muhammad Bashir was present at the spot at the time of occurrence. However, they went on to add that it was difficult to believe that Muhammad Mushtaq fired the shot only are instigation of Muhammad Bashir and the; otherwise hr might not have done as. They also observed that the mere presence of Muhammad Bashir or: the spot would not be sufficient to form the basis of his conviction for the murder of the deceased. Thus, the leaned counsel contended that the aforesaid observations of the High Court are contradictory, in that if Bashir's presence on the spot was probable, then the application of section 34, P. P. C. Was attracted.
9. In our view the learned counsel has mi conceived the correct application of section 34, P. P. C.
The mere presence of a person on the spot does not necessarily attract section 34, P. P. C. This section is not to be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstance to show common Intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given tie benefit of doubt.
10. So far as Muhammad Mushtaq respondent is concerned, the learned counsel submitted that he fired at the deceased after premeditation, i.e. He had conspired with Muhammad Bashir respondent to murder the deceased. In our view this submission is not supported by any evidence to that effect on the record. No motive directly connecting him with the murder has teen proved.
Furthermore, no recovery was effected from Muhammad Mushtaq respondent. Gun Exh. P. 2, alleged to have been used by him, was recovered at the instance of Muhammad Bashir respondent. The High Court hay observed that this recovery is of no avail because now crime empty was recorded from the spot anal that the Ballistic Expert could not express any opinion as to when the last shot had been fired from the gun recovered. In view of the for-going reasons and in the absence of any enmity between Muhammad Mushtaq respondent and the complainant, we are inclines; to think that the incident took place on the spur of moment and, therefore, no fault can be found with the decision of the High Court to award the lesser penalty of imprisonment for life.
11. The petition is dismissed.