2022 P Cr (PLP)

OMAR SIAL, J.

Complainant Shahid Ahmed Shaikh on 6-12-2019 reported at the Daharki Police Station in the Ghotki District of Sindh the commission of a murder. He narrated that about a year ago he had married Fatima Shaikh, who was previously married to Abdul Hameed Shaikh. Fatima's second marriage had angered Hameed who often use to show his displeasure to Shahid. Earlier that day, while Shahid was in the company of his son-in-law Pervaiz Ahmed Samejo and brother Allah Bux, 3 persons who were identified as Abdul Hameed Shaikh (Fatima's ex-husband), Meer Ahmed Shaikh and Nadeem Shaikh (both the latter Shaikhs are the appellants in these proceedings), came there armed with pistols. Hameed fired at the complainant Shahid, which shot hit his shoulder. Meer Ahmed and Nadeem resorted to aerial firing and left the premises. First Information Report No. 269 of 2019 was registered under sections 324, 337-H(2) and 34, P.P.C. Meer Ahmed Shaikh was also known as Muneer Ahmed; however, he is referred to as Meer Ahmed in this judgment.

2. Both appellants pleaded not guilty to the charge framed against them and claimed trial. In order to prove its case, the prosecution examined 5 witnesses. PW-1 Shahid Ahmed was the complainant and the injured in the case. PW-2s Allah Bux was an eye-witness to the occurrence. PW-3 Zahid Hussain was a witness to the inspection of injury sustained by Shahid; the arrest of Meer Ahmed Shaikh; the inspection of the place of incident and the recovery made from there as well as the seizure of the clothes of the injured. PW-4 Dr. Kailash Kumar Govindani was the doctor who examined the injured and issued the medical certificate thereafter. PW-5 ASI, Manzoor Ahmed Mirani was the Investigating Officer of the case. In respective section 342, Cr.P.C. statements, the appellants pleaded their innocence and claimed that they had been falsely accused as they are the nephews of Abdul Hameed Shaikh.

3. The learned Additional Sessions Judge, Daharki on 20-5-2021 announced his judgment. Both appellants were sentenced to 5 years in prison for committing an offence under section 34, P.P.C. as well as pay a fine of Rs. 25,000 each or suffer a further period of 3 months in prison. They were also sentenced to pay Rs. 50,000 as daman to the injured Shahid Ahmed Shaikh. It is this judgment that has been impugned in these proceedings.

4. I have heard the learned counsel for the appellants as well as the learned DPG. The complainant was given several opportunities to appear and assist the learned DPG but on one pretext or the other he sought adjournments. Details of the indulgence given to the complainant are documented in a previous order. My observations and findings are as follows.

5. It is an admitted position that it was a only Abdul Hameed Shaikh, who had an axe to grind with the complainant Shahid Shaikh on account of his ex-wife having married Shahid. It is also an admitted position that it was Abdul Hameed who fired upon Shahid and that the role of the 2 appellants was restricted to having allegedly accompanying Hameed and resorting to aerial firing while leaving the premises. No other role has been attributed to them in the entire episode. The main accused Abdul Hameed Shaikh apparently is still at large so I have restricted my observations to the role of the 2 appellants only as any observation made herein may unintentionally impact the case against Hameed as and when he is brought to account for the allegation against him.

6. In order to hold the 2 appellants to be vicariously responsible for the act of Hameed, it was necessary to show that the 2 appellants shared a common intention with Hameed. In Mohammad Akbar v. The State (PLD 1991 SC 923), it was held that "it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some circumstance manifesting a common intention. Generally, common intention inter alia, precedes by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the spur of moment or during the commission of offence as pointed out hereinabove. Conversely common intention may undergo change during the commission of offence."

7. In Mohammad Yaqoob, Sub-Inspector v The State (PLD 2001 SC 378) the Hon'ble Supreme Court observed "It was held a few decades earlier by this Court which still holds the fields that it is well established that a common intention presupposes prior concert. It requires a pre- arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary-is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

8. In Shoukat Ali v. The State (PLD 2007 SC 93) it was held that "After having gone through almost entire law qua the provisions as contained in section 34, in our considered view the following are the prerequisites of the section 34 before it could be made applicable:-- (a) It must be proved that criminal act was done by various persons. (b) The completion of criminal act must be in furtherance of common intention as they all intended to do so. (c) There must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof. (d) Existence of strong circumstances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention. (e) The real and substantial distinction in between common intention' and 'similar intention' be kept in view."

9. In the present case apart from an assertion that the 2 appellants had accompanied Hameed to the place of occurrence there was no evidence produced at trial to show that the 3 accused had same with a pre-arranged plan to murder or injure Shahid. They too were armed and there was nothing stopping them from also shooting at Shahid, but they did not. Though they might have shared Hameed's dislike for Shahid, i was not proved or any evidence shown which would even prima facie show that the appellants shared a common intention with him.

10. The presence and the allegation levelled against the appellants of aerial firing while leaving the premises with the intent to scare the witnesses also is doubtful in view of the fact that the evidence reveals that the police found only one empty from the place of incident. The Investigation Officers admission at trial that the parcel in which even that one empty cartridge was sealed was not signed by the witnesses to the recovery also casts a doubtful shadow on the allegation. No recovery was effected from the 2 appellants after their arrest though they were also said to be armed with pistols when they accompanied Hameed.

11. In view of the fact that the role of the appellants was restricted to accompanying the main accused but that common intention was not proved at trial and that only one empty was found (which in itself is doubtful) at the place of occurrence even though it was asserted that the 2 appellants resorted to aerial firing, cast doubts on the veracity of the prosecution case. Benefit of the doubt should gave one to the accused.

12. For the above reasons the instant appeal is allowed, the conviction and sentence awarded to the appellants under the impugned- judgment dated 20.05.2021 passed by the learned Additional Sessions Judge, Daharaka in S.C. No.124 of 2020, arising out of Crime No. 269/-2019 Police Station, Daharki, is set aside and the appellants are acquitted of the charge. The appellants are in Jail and they may be released forthwith if not required in any other custody case. MWA/M-135/Sindh Appeal allowed.