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.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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