2025 M L D 42
[Balochistan]
Before Rozi Khan Barrech, J
WAHEED KHAN ---Appellant
Versus
NASEEBULLAH and another ---Respondents
Criminal Appeal No. 05 of 2024, decided on 12th September, 2024.
(a) Penal Code (XLV of 1860) ---
----Ss. 324 & 34--- Attempt to commit qatl -i-amd, common intention ---Appreciation of
evidence--- Vicarious liability ---Common intention to commit murder not established ---
Accused was charged for making murderous assault by making firing upon the brother of
complainant due to which he sustained firearm injuries ---Record showed that two accused
were charged for causing injuries to the injured, one with effective fire shots, whereas the other with the role of facilitation ---Admittedly, the accused was the real brother of
absconding co- accused ---According to the version of the prosecution, the accused had
entered the shop and called the injured to come out, and outside the shop, the absconding accused was standing armed with a pistol and made fire upon the injured--- Moot question
was that whether entry of the accused into the shop in the company of his co -accused in the
mode and manner as reflected from the evidence was sufficient to establish that he was sharing his intention with the co -accused for attempting to commit murder of injured---No
evidence was on record was to suggest any previous bitterness of serious nature between the parties prior to the occurrence; therefore, in view of their close relationship with each other, mere joint entry of the accused in the shop could not be viewed with suspicion that there was pre- concert or pre -arrangement between them for the commission of the offence-
--No evidence was on record to prove that any pre -consultation or pre -planning had taken
place between both the accused before the occurrence, nor the said elements could be inferred from the surrounding facts of the case ---Admitted fact that the accused did not
have any pistol at the time of the occurrence ---Accused being empty handed at the relevant
time suggested that neither any pre -planning had taken place between both the accused
before the occurrence nor did the accused have the knowledge that his brother/absconding co-accused was in possession of a weapon nor did he anticipate any quarrel with the
complainant side culminating in an attempt to commit murder of the injured ---If the
accused had any intention of fighting with the complainant, or had he apprehended the same, or if he had the knowledge that his brother was carrying a pistol with him while going to the shop, he would have also carried some weapon with him at least for his self defence---In such circumstances, the prosecution could not collect any positive evidence that could help form an opinion that the accused had shared common intention with the absconding co- accused ---Circumstances established that the prosecution had failed to
establish the culpability of the accused in the present case through reliable, trustworthy, and confidence -inspiring evidence ---Appeal against conviction was accordingly allowed.
(b) Penal Code (XLV of 1860)---
----S. 34 ---Vicarious liability ---Applicability ---Section 34, P.P.C., lays down the principle of
constructive liability whereby if several persons unite with a common purpose to do any criminal offence, all those who assist in completing their object would be equally guilty---Foundation for constructive liability is the common intention in meeting the accused to do the criminal act and doing such act in furtherance of common intention to commit the offence---In order to constitute an offence under S.34, P.P .C., it is not required that a person
should necessarily perform any act by his own hand; rather, the common intention pre -
supposes prior concert and requires a pre -arranged plan ---If several persons have the common
intention of doing a particular criminal act and if, in furtherance of their common intention, all of them join together and aide or abett each other in the commission of an act, then one out of them cannot actually with his own hand do the act, but if he helps by his presence or
by some other act in the commission of an act, he would be held to have himself done that
act within the meaning of S.34, P.P.C.---White convicting an accused for sharing common intention, extra ordinary circumstances, and confidence -inspiring evidence, is needed.
(c) Penal Code (XLV of 1860)---
----Ss. 324 & 34---Attempt to commit qatl- i-amd, common intention ---Appreciation of
evidence--- Defective investigation ---Accused was charged for making murderous assault by
making firing upon the brother of complainant due to which he sustained firearm injuries ---
While reporting the matter,it was mentioned by the complainant that the accused and absconding co- accused arrived at the place of occurrence on a motorcycle, but neither the
registration number nor model was disclosed ---Investigating Officer could not collect any
documentary evidence which could tell that it was in the ownership of the accused, and in such eventuality, no doubt the prosecution could not succeed in connecting the accused with commission of the offence, that too, under S.34, P.P.C.--- Circumstances established that the
prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy, and confidence -inspiring evidence ---Appeal against conviction was
accordingly allowed.
Abdul Musawir Tareen for Appellant.
Abdul Baqi Jan for the Complainant.
Fazal -ur-Rehman, State Counsel for the State.
Date of hearing: 5th September, 2024.
JUDGMENT
ROZI KHAN BARRECH, J .---The captioned appeal is directed against the
judgment dated 09.03.2024 ("impugned judgment") passed by learned Sessions Judge Harnai ("trial court") in Sessions Case No. 23/2023 emanating from Crime No. 56/2023 dated 01.09.2023 at Police Station Saddar Harnai for the offences under sections 324 and 34 P.P.C., whereby the appellant Waheed Khan, son of Wali Muhammad was convicted and sentenced in the following terms:
"15……..the, accused Waheed Kkhan son of Wali Muhammad is convicted under section 324/34 P.P.C. and sentenced to five years rigorous imprisonment and shall
also pay fine of Rs.50,000/ - to the State, in case of default shall undergo two months
in simple imprisonment. The convict Waheed Khan is also liable to the punishment for the hurt caused to Asadullah son of Muhammad Qasim which are punishable under sections 337(D), P.P.C. and 337F(v), P.P.C. The convict Waheed Khan punishable under section 337(D), P.P.C. shall pay Arsh to the injured Asadullah son of which shall be 1/3 of Diyat (Rs.6757902 for Financial year 2024) i.e. Rs.2252634/ -
. The convict Waheed Khan punishable under section 337F(v) shall pay Rs.100,000/ -
as Daman to injured Asadullah. In case of payment of Arsh and Daman under sections 337(D), P.P.C. and 337F(v), P.P.C. as above mentioned, the convict shall remain in jail till full payment of the said amount to the injured Asadullah. The benefit of section 382(b), Cr.P.C is extended in the favour of convict…."
Aggrieved from the impugned judgment, the appellant has assailed his conviction and
sentence through the titled appeal.
2. The prosecution story, as disclosed in the FIR (Ex.P/7A) recorded on the written
report (Ex.P/ -1A) of the complainant, namely Naseebullah, son of Muhammad Qasim, is that
on 01.09.2023 he (complainant) and his brother Asadullah (PW -5) were present at Bhawal
Khan, retail shop situated at New Mohallah Jalal Abad Harnai. In the meanwhile, accused persons, namely Ahmed Khan (absconding) and Waheed Khan (appellant) came there on Superstar 70 motorcycle, and accused Waheed Khan asked his brother to come out of the
shop. When his brother Asadullah came out of the shop, in the meanwhile accused Ahmed Khan, armed with a pistol opened fire upon his brother Asadullah due to which one bullet hit the abdomen of his brother while one bullet hit the right hand of his brother. Hence, the
crime report.
3. After completion of the usual investigation, the investigation officer prepared and
submitted the challan before the trial court. A formal charge was framed against the
appellant, to which he did not plead guilty and claimed trial. The prosecution in order to prove its case against the appellant, examined seven witnesses. When examined under section 342, Cr.P.C, the appellant negated the allegations levelled against him by the prosecution. The appellant did not record his statements on oath as envisaged under section 340(2), Cr.P.C nor produced any witness/evidence in his defense.
On conclusion of the trial and after hearing arguments of learned counsel for the
parties, the trial court convicted and sentenced the appellant as mentioned above in the opening para, in consequence whereof this criminal appeal was filed.
4. I have heard the learned counsel for the parties and perused the available record with
their able assistance.
5. The moot question for determination before this Court is to see as to whether the
learned trial court was justified to convict the appellants under section 324, P.P.C. and as to whether the appellant and absconding co- accused Ahmed Khan played the same role. It
is the version of the prosecution that the present appellant, along with absconding co -
accused Ahmed Khan, entered into the shop of Bhawal Khan situated at New Mohallah Jalal Abad Harnai, whereby the accused/appellant Waheed Khan called the complainant's
brother Asadullah to come out from the shop, where the absconding accused Ahmed Khan
was present who fired at Asadullah with his pistol which subsequently caused injuries to
Asadullah. Admittedly, the complainant, in his initial report as well as in his statement
before the court, has ascribed the role of firing upon the injured Asadullah to co- accused
Ahmed Khan. The other eye -witnesses i.e., Sikandar Baloch (PW- 2), Amanullah (PW -3),
and Asadullah (injured/PW -5), also recorded their statements on the same line.
6. I am confronted with a situation where two accused are charged for causing injuries to
the injured Asadullah (PW -5), one with effective fire shots, whereas the other with the role
of facilitation. In order to know the conditions for holding an accused constructively liable for an offence under section 34, P.P.C and the basic ingredients thereof, the provision is reproduced below for ready perusal.
34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
So far as the applicability of section 34 of P.P.C. is concerned, it lays down the
principle of constructive liability whereby if several persons united with a common purpose to do any criminal offence, all those who assist in completing their object would be equally guilty. The foundation for constructive liability is the common intention in meeting the accused to do the criminal act and doing such act in furtherance of common intention to commit the offence. In order to constitute an offence under section 34, P.P.C., it is not required that a person should necessarily perform any act by his own hand; rather, the common intention presupposes prior concert and requires a prearranged plan. If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them joined together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand do the act, but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. The intent and purpose of the legislature behind while convicting an accused, that too for sharing common intention, extra -ordinary circumstances, and confidence inspiring evidence, is needed.
7. The trial court, while convicting the accused/appellant, made no discussion that on
what grounds the attempt to commit Qatl -i-Amd of the injured Asadullah was an organized
commission of the crime by the accused/appellant. The learned trial Court has also not clarified in light of evidence that whether the accused had come to the shop of Bhawal Khan after a pre- concert between them or they had formed their common intention for the
attempt to commit a murder of injured Asadullah at the spur of the moment. Criminal
intention of an accused or pre -concert or prearrangement of several accused cannot be
proved through direct evidence in each case; however, the same can be inferred from the facts disclosed in evidence and surrounding circumstances of the case. Since the co -
accused of the appellant is still absconding, therefore, I would confine myself only to the
liability of the appellant under his common intention with his co -accused as alleged by the
prosecution, and in this regard, only the relevant evidence needs to be thrashed out.
8. Admittedly, the appellant is the real brother of the absconding co- accused.
According to the version of the prosecution, the accused/appellant had entered the shop and
called the injured Asadullah to come out, and outside the shop, the absconding accused,
Ahmed Khan, was standing armed with a pistol and made fire upon the injured Asadullah (PW -5). Coming to the shop of Bhawal Khan, both the accused cannot be denied in the
light of direct and circumstantial evidence, however, the moot question is that whether entry of the appellant into the shop in the company of his co -accused in the mode and
manner as reflected from the evidence is sufficient to establish that he was sharing his intention with the co- accused for attempt to commit a murder of injured Asadullah. There
is no evidence on record to suggest any previous bitterness of serious nature between the
parties prior to the occurrence; therefore, in view of their close relationship with each
other, mere joint entry of the accused in the shop of Bhawal Khan cannot be viewed with
suspicion that there was pre -concert or pre- arrangement between them for the commission
of the offence. There is no evidence on record to prove that any pre -consultation or pre -
planning had taken place between both the accused before the occurrence, nor the said
elements can be inferred from the surrounding facts of the case. It is an admitted fact that the appellant did not have any pistol at the time of the occurrence. The fact that the
appellant was empty handed at the relevant time suggests that neither any pre -planning had
taken place between both the accused before the occurrence nor did the appellant have the knowledge that his brother/absconding co -accused was in possession of a weapon nor did
he anticipate any quarrel with the complainant side culminating in an attempt to commit a murder of the injured Asadullah. It is a common observation in this society that close relatives carry weapons with them when they apprehend that a fight will likely take place with the other side. Had the appellant any intention of fighting with the complainant or, had he apprehended the same, or had he the knowledge that his brother was carrying a pistol with him while going to the shop of Bhawal Khan, he would have also carried some weapon with him at least for his self defence.
9. In view of the above, the prosecution could not collect any positive evidence that
could help in form an opinion that the convict/appellant Waheed Khan had shared common intention with the absconding co- accused. While reporting the matter, it was mentioned by
the complainant that the accused/appellant and absconding co- accused arrived at the place of
occurrence on a motorcycle, but neither the registration number nor model was disclosed. The Investigating Officer could not collect any documentary evidence which could tell that it was the ownership of the appellant, and in such eventuality, I lurk no doubt in my mind that the prosecution could not succeed in connecting the appellant Waheed Khan with a commission of the offence, that too, under section 34, P.P.C.
10. All the above -narrated facts and circumstances, when evaluated on judicial parlance,
reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy, and confidence -inspiring evidence.
11. From the facts and circumstances narrated above, I am persuaded to hold that the
conviction passed by the trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per the dictates of the law, the benefit of the doubt is to be extended in favour of the accused. Resultantly, Criminal Appeal No. 05 of 2024 filed by the appellant is allowed, and after setting aside the conviction and sentence recorded by the trial court in terms of the judgment dated 09th March 2024 passed by learned Sessions Judge, Harnai in Sessions Case No. 23/2023, the appellant Waheed Khan, son of Wali Muhammad is acquitted of the charge in FIR No. 56/2023 Police Station Saddar Harnai under sections 324 and 34, P.P.C. The appellant Waheed Khan, son of Wali Muhammad, is on bail. His bail bonds shall stand discharged after a lapse of the appeal period.
JK/94/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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