Gul Baran V. Umer Khan and another,
Bench: Muhammad Ejaz Swati
📝 AI Summary — Plain-Language Overview
This case involved a murder appeal from Balochistan. Sher Zaman was killed in a shooting near Cinema Galli, Zhob, in 2009. The main shooter, Ali Shah, was convicted by the trial court. However, another person present at the scene, Umer Khan, was acquitted by the trial court, and the complainant's father appealed this acquittal to the High Court.
The complainant argued that Umer Khan, along with the others present, shared a common intention to commit the murder under Section 34 of the Pakistan Penal Code, which allows people acting together with a shared criminal purpose to be held equally liable, even if only one person physically committed the act.
The High Court disagreed. It found that the eyewitnesses only showed Umer Khan standing nearby when Ali Shah opened fire - there was no evidence he did anything (no overt act), had any motive, or helped the shooter in any way. The court emphasized that mere presence at a crime scene, especially when the encounter itself appeared to be a chance meeting rather than something planned, is not enough to prove common intention. Citing earlier Supreme Court rulings, the judges stressed that criminal liability under common intention requires actual participation or a role in planning, not just being nearby.
The appeal was dismissed, and Umer Khan's acquittal was upheld. This case reinforces an important principle: simply being present when a crime occurs does not automatically make someone criminally responsible for it.
یہ مقدمہ بلوچستان سے قتل کے ایک مقدمے میں اپیل سے متعلق ہے۔ شیر زمان کو 2009 میں ژوب کے سینما گلی کے قریب فائرنگ کے ایک واقعے میں قتل کر دیا گیا تھا۔ اصل فائرنگ کرنے والے ملزم علی شاہ کو ٹرائل کورٹ نے سزا سنائی۔ تاہم موقع پر موجود ایک اور شخص، عمر خان، کو ٹرائل کورٹ نے بری کر دیا تھا، اور مدعی کے والد نے اس بریت کے خلاف ہائی کورٹ میں اپیل دائر کی۔
مدعی کا موقف تھا کہ عمر خان نے دیگر حاضرین کے ساتھ مل کر قتل کے ارتکاب کی مشترکہ نیت رکھی تھی، جو پاکستان پینل کوڈ کی دفعہ 34 کے تحت قابلِ سزا ہے۔ یہ دفعہ اس اصول پر مبنی ہے کہ اگر چند افراد مشترکہ مجرمانہ ارادے کے تحت مل کر کام کریں تو وہ سب برابر کے ذمہ دار قرار پاتے ہیں، چاہے عملی طور پر صرف ایک ہی شخص نے جرم کا ارتکاب کیا ہو۔
ہائی کورٹ نے اس موقف سے اتفاق نہیں کیا۔ عدالت نے پایا کہ عینی شاہدین کی گواہی سے صرف اتنا ثابت ہوتا ہے کہ
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2016 P Cr. L J 1454
[Balochistan]
Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ
GUL BARAN ---Appellant
Versus
UMER KHAN and another ---Respondents
Criminal Acquittal Appeal No.297 of 2015, decided on 31st May, 2016.
Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2- A)---Qatl -i-amd---Appeal against acquittal ---Appreciation of evidence ---Benefit of doubt ---Act done in furtherance of common intention---Ocular account of the eye -witness h ad not indicated any overt act on part of accused, and his mere presence along with the other accused [since convicted] had been shown-- -Accused had been neither involved in any motive part of the prosecution story, nor found facilitating the main accused [since convicted] in any manner ---In absence of motive against the accused, his presence with the main accused [since convicted], without any overt act, could neither attract his participation in furtherance of common intention, nor was there any other circumstantial evidence to connect him to the crime ---Attending circumstances of the prosecution case had nowhere indicated any intent of the accused--- In absence of premediation, planning or preparation, the very fact that the accused was present along with the main accused [since convicted] in the Bazar was not sufficient to attribute common intention to him, when the appearance of the complainant party at the scene was a matter of chance ---Benefit of doubt, in absence of common intention, had rightly been e xtended to the accused ---No misreading and non-reading of evidence or any perversity was found in the impugned judgment of acquittal to warrant interference---Appeal against acquittal was dismissed accordingly.
Sher Khan v. The State 1991 SCMR 241 and H assan v. The State 1969 SCMR 454 rel.
Zahoor Ahmed Baloch for Appellant.
Date of hearing: 4th April, 2016.
ORDER
MUHAMMAD EJAZ SWATI, J. ---The complainant Mirza Khan lodged an FIR No.215 of 2009 with the Police Station Sadder District, Loralai dated 10th December, 2009 under section 302/34, P.P.C., wherein it was alleged that on the fateful day, his sons Rehmatullah, Sher Zaman, Gul Baran and nephew Muhammad Anwar and Azeem Khan went to bazar and when they reached near Cinema Galli, Zhob, the a ccused persons namely Ali Shah, Shah Baz Khan including the private respondent, who were already present there, attacked upon his sons. It was further averred that co- accused Ali Shah (convict) took out Pistol and started firing upon Sher Zaman, as a resul t of firing, two fire shots hit on his person and he died at the spot. The accused persons escaped from the place of incident.
2. The Sessions Judge, Loralai (hereinafter "the trial Court") vide judgment dated 19th September, 2015 (hereinafter "the impug ned judgment") acquitted the private respondent of the charge, while the main accused Ali Shah son of Arsalla Khan was convicted and sentenced as mentioned in the impugned judgment.
3. Learned counsel for the appellant contended that the private responde nt along with co- accused in furtherance of their common intention, committed the murder of deceased Sher Zaman; that the eye -witnesses PW -1 Rehmatullah, PW -2 Muhammad Anwar and PW -3 Azeem Khan supported the case of prosecution, which has further been corroborated by the medical evidence; that the trial Court misread the evidence and also misinterpreted the section 34, P.P.C.; that the findings rendered by the trial Court are perverse and arbitrary, as such the same are liable to be set aside and the private respondent be convicted in accordance with law.
4. We have heard the learned counsel for the appellant and perused the record. Though the eye-witnesses PW -1, PW -2 and PW -3 deposed that they along with deceased Sher Zaman were proceeding towards Zhob roa d and when reached near Cinema Galli, Zhob, saw that the accused persons, namely, Ali Shah, Umer Khan and Shah Baz Khan were standing there, out of them, accused Ali Shah started firing which resulted the death of Sher Zaman. The ocular account furnished b y the aforesaid witnesses of the prosecution, nowhere indicate any overt act on the part of private respondent, namely, Umar Khan and mere his presence along with the main accused had been shown. The arguments of the learned counsel for the appellant regar ding misconstruction of section 34, P.P.C. by the trial Court and involvement of the private respondent in the present case in furtherance of common intention is concerned. The whole attending circumstances of the prosecution case nowhere indicate any inte nt of the private respondent. He is neither involved in any motive part of the prosecution story nor had been found facilitating the main accused in any manner. In absence of premeditation, planning or preparation, the very fact that the private respondent was present along with main accused in Bazar could not be sufficient to attribute a common intention to him, when the appearance of the complainant party at the scene was by chance, therefore, in absence of common intention benefit of doubt was rightly ex tended to the present accused. Reference in this respect is to be made to the case titled Sher Khan v. The State 1991 SCMR 241, wherein the Supreme Court observed as under:
"This would show that there was no pre -meditation, there was no preparation and t here was no planning. The very fact that they were armed---Ghulam Muhammad, with a gun, Sher Khan with a Spear and Muhammad Khan with a Sota, could not he sufficient to attribute a common intention to them when the appearance of the complainant party at th e scene was by chance and also the altercation over the diversion of the water which could not he anticipated, nor was it planned."
In the case titled Hassan v. The State, 1969 SCMR 454, it has been held that the mere presence of the accused would not be sufficient to attract the provision of the section 34, P.P.C., but there must be proof of some overt act on the part of each accused in furtherance of common intention. In the present case in absence of any motive against the private respondent, his mere presence with the main accused without any overt act can neither attract his participation in furtherance of common intention, nor there is any other circumstantial evidence to connect him in the crime, therefore, no misreading and non -reading of evidence or any perversity has been found in the impugned judgment to warrant interference by this Court. In view of the above, the Criminal Acquittal Appeal No.297 of 2015 is dismissed in limine.
SL/40/Bal. Appeal dismissed.