P L D 1983 Supreme Court 35 (PLP)

M. S. H. QURESHI, J.-Appellant Imam Bakhth and his brother Ghazi were convicted under section 302 read with section 34, P. P. C. and while Ghazi was sentenced to death, the appellant was awarded the sentence of transportation for life. Their appeal before the High Court of Sind and Baluchistan having failed, they moved Criminal Jail Petition No. K-11 of 1974 for leave to appeal. Leave was refused as regards Ghazi but it was granted in the case of appellant Imam Bakhsh to further examine his guilt in view of the fact that no injury had been caused by him to the deceased and no recovery had been effected at his instance.

2. The case arose out of an occurrence which took place on 28-9-1971 at 2-30 p.m. on the inspection path of Sher Khan Minor within P. S. Paddidan, District Nawabshah. Maula Bakhsh complainant was at that time driving a scooter, on the back seat of which sat his cousin Jan Muhammad deceased. As they passed by the shop of Ali Mardan, the two accused emerged out of the sar bushes, Ghazi armed with a rifle and the appellant with a pistol. They challenged the complainant to stop and as he and the .deceased dismounted, Ghazi fired from his rifle hitting the deceased. There was another shot which according to the ocular witnesses had been fired by the appellant, though in the F.

1. R. the same is not attributed specifically to any of the accused. The accused managed to escape. The occurrence was also seen by Ilyas Ahmad and Tagio. Ilyas Ahmad fetched the jeep of Saleh Waggan P. W.. and carried the deceased in an unconsious stage to the Police Post Darya han where Maula Bakhsh lodged report at 4 p. m. The deceased later died on the way to the hospital. The two accused were arrested the next day and a rifle with a fired cartridge in its chamber was recovered at the pointing of Ghazi from his house.

3. The motive, according to the prosecution, was revenge for the murder of Soomar Khan, a maternal uncle of the accused, which had taken place some 8/10 years before the occurrence and for which Jan Muhammad deceased had been tried bat later acquitted by the Court of Session.

4. The prosecution case was supported by the three ocular witnesses, namely, Maula Bakhsh (P. W. 2), Ilyas Ahmad (P. W. 6) and Tagio (P. W. 7). They were corroborated by Muhammad Saleh Waggan (P. W. 5) who had gone to the spot with his jeep and to whom the facts had been narrated by the ocular witnesses. Sallar (P. W. 10) corroborated the complainant as regards their (the complainant and the deceased) having come to him for collecting from him Rs. 500, which the deceased had loaned to him and having left at about 2-30 p.m. Both the accused had denied the allegations. The High Court after a careful scrutiny of the evidence had come to the view that the eye witnesses had been present and that they were disinterested. In regard to the appellant,. the High Court found itself unable to distinguish his case in spite of the fact that no recovery had been made at his instance.

5. Since no injury had been caused by the appellant nor any incriminating article recovered from him, the question of his liability depends on the applicability of section 34, P. P. C. That section provides that where a criminal act is done by several persons, in furtherance of the common intention of all, then each of such persons is liable for that act in the same manner as if it were done by him alone. The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all. It does not create a distinct offence but merely enunciates a principle of joint liability for acts. done in furtherance of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention, Common intention usually consists of .s some or all of the following elements ;common motive, pre-planned I preparation and concert pursuant of such plan. Common intention, however, may develop even at the spur of the moment or during the commission of the offence. Conversely common intention can also undergo a change and disappear at the spur of the moment or in the course of the transaction. Intention is a mental condition and has often to be gathered from the facts and the surrounding circumstances of the case as direct evidence is very often not forthcoming. Where four persons waited on the roadside for their victim to wreak vengeance on him and when his rickshaw appeared on the road, they pounced upon him and one of them dragged out the deceased from the rickshaw and stabbed him with a dagger, it was held by a Division Bench of the West Pakistan High Court in Muhammad Umar v. State (1968 P Cr. L J 235) that the fact that the four accused had reached the roadside in a furious mood, waiting for the -deceased to come was a proof positive of the existence of a common intention in all four to cause death. Similarly, where two accused, A and B, entered a house to commit robbery but being thwarted in his purpose, B stabbed the owner of the house while A held away the other inmates of the house by pointing a pistol at them and sought to suppress their effort to seek assistance from outside, this Court in Abdul Jabbar v. State (P L D 1964 S C 81) held that this was sufficient indication that A associated himself .with the act of murder committed by B and shared a common intention with him so far as the killing was concerned and was as such liable under section 34, P. P. C. for the murder.

6. As this Court while refusing to grant leave in the case of Ghazi had not found anything wrong with the prosecution evidence, we have to proceed on the assumption of correctness of that evidence and to see whether on the basis of that evidence, appellant Imam Bakhsh is to be held liable by virtue of section 34, P. P. C. He being a brother of Ghazi, the motive arising from the same murder of their maternal uncle must be held to be common. A pre-concert is established by the fact that the appellant and his brother had. both got themselves equipped with a fire-arm each and had concealed themselves while waiting for the arrival of their victim. They had' emerged together and both of them had asked the complainant to stop. In this respect Moula Bux stated: " * * * all of a sudden the present accused Ghazi and Imam Bux challenged us to stop, else we were threatened to be killed by the arms that they were having with them." After describing their weapons, the witness went on to say; "We covered few paces more, and the accused threatened to shoot both of us." The other two eye-witnesses, namely, Ilyas Ahmad. and Tagio, made similar statement.

7. There is some discrepancy in regard to the fact whether the appellant had fired from his pistol and if so whether he had fired at the complainant party or in the air. 1n his evidence, Moula Bux had stated : Imam Bux also fired at us with his pistol which did not hit us." In the F.

1. R., he had simply stated "that there was a second fire" without attributing that fire to Imam Bux or anyone else. However, during the trial he was not confronted with this statement. The only confrontation was with the statement he had made before the Committing Magistrate where he had stated that Imam Bux had fired in the air, but he had explained, "I stated so in the lower Court when the learned defence counsel asked me that if it did not hit me, then the accused might have fired in the air, to this my reply was might have been so". According to the other ocular witnesses namely, Ilyas Ahmad and Tagio, the appellant had fired in the air. There is thus reason to believe that the second shot is attributable to the appellant and though the firing was ineffective, it is nevertheless indicative of his having acted in furtherance of the common intention. But even if the evidence relating to his firing were to be ignored, the other material consisting of the fact that the appellant and his brother Ghazi had armed themselves with deadly weapons, that they had been lying in wait for their victim, that they have merged together and shouted at the complainant party to stop and that after the occurrence they had fled the scene together, makes it abundantly clear that the criminal act was the result, of their common design to kill, These circumstances did justify the applicability of section 34, P. P. C. to the appellant. His conviction and sentence, therefore, call for no interference.

8. The appeal is dismissed. MUHAMMAD AFZAL ZULLAH, J.-This appeal is directed against judgment dated 18-9-1974 of the Sind High Court whereby a criminal appeal arising out of a case of murder, was dismissed and the death sentence awarded to Ghazi a younger brother and co-accused of the appellant Imam Bux was confirmed. The lesser sentence of transportation for life awarded by the trial Court to the appellant was also maintained. Leave to appeal sought by both the convicts was allowed only in so far as Imam Bux appellant is concerned. The occurrence in which Ghazi and Imam Bux accused are alleged to have killed Jan Muhammad their enemy in the furtherance of common intention, took place on 28-9-1971. According to the prosecution case. Ghazi was armed with a rifle while Imam Bux had a pistol. Jan Muhammad deceased and his cousin Maula Bux P. W. were going along an inspection road on a scooter driven by Maula Bux, when the two accused are said to have emerged from sur bushes. They shouted to deceased and Maula Bux to stop. When there was no response they shouted again telling Maula Bux and Jan Muhammad to stop otherwise they would be killed. The scooter was stopped. When Maula Bux who was driving, alighted on the one side and Jan Muhammad was getting down from the other side, Ghazi accused fired the rifle at him. Imam Bux appellant also fired a shot with his pistol which did not hit anybody. Jan Muhammad subsequently died as a result of injuries suffered by him at the hands of Ghazi accused. The occurrence, besides Maula Bux, was witnessed by two other persons, namely, Ilyas and? Tagio P. Ws. The motive asserted by Maula Bux complainant who had lodged the F.

1. R. was that 10/12 years prior to this murder, Soomar, a maternal uncle of both the accused was murdered. Jan Muhammad deceased in this case was tried for the offence of murder but was acquitted three years after the said murder. The evidence of recovery of the crime weapon, namely, rifle and a crime empty was led against Ghazi in addition to the ocular testimony of three P. Ws. already mentioned. There was, however, no recovery from Imam Bux appellant. The defence plea was of denial. It as stated by Ghazi was also, that Jan Muhammad was a notorious Pathridar and he having been involved in many murder and decoity cases, was killed by one of his enemies and that the two accused were falsely involved by some of the prosecution witnesses. The learned trial Judge relied upon the ocular testimony; the recovery of rifle from Ghazi and some other evidence showing that Maula Bux was with the deceased at the time of occurrence. Accordingly, finding of guilty was returned against Ghazi. With regard to the complicity of Imam Bux, the learned trial Judge observed as follows : "Though no incriminating weapon was secured from the accused Imam Bux but his presence with a pistol alongwith the accused Ghazi at the time of incident on the scene of occurrence cannot be doubted, He cannot take a stand that none of the injuries caused to the deceased is attributable to him and he is not liable for murder of Jan Muhammad. Had he not been sharing the intention of the accused Ghazi in committing the murder of Jan Muhammad, he would have definitely made efforts to prevent the commission of the offence. His presence at vardat and failure to make any effort for preventing the commission of the offence establish his share in the intention of the accused Ghazi for the murder of Jan Muhammad, thus the accused Imam Bux is also liable under section 34, P. P. C. for the murder of Jan Muhammad," While awarding lesser sentence to the appellant, the learned trial Judge observed that a lenient view in respect of him was possible because "no injury found on the dead body of the deceased Jan Muhammad is attributable to him and thus award of sentence for transportation for life . . . . . " The learned Division Bench of the High Court when dealing with the case of Imam Bux, observed as follows : "There is disinterested ocular evidence in the case and in the circumstances we are unable to distinguish the case of Imam Bux in spite of the fact that no recovery was made at his instance." Leave to appeal was granted on a Jail petition in order to examine the effect of absence of any injury to the deceased which might have been attributed to the appellant notwithstanding the fact that he was alleged to have been armed with a pistol and the absence of recovery at his instance. The learned Second Judge, who agreed with the proposed order of grant of' leave on the above grounds, added further ground that "there is no firm evidence of this petitioner having fired the pistol which was not recovered". It is no doubt true that two disinterested witnesses deposed against Ghazi and thus this supports the complainant's version regarding the case against that accused. Leave to appeal was refused to him because no justification was found to disbelieve the eye-witnesses regarding him. The case of Imam Bux was kept for examination on account of peculiar features exclusively relatable to him. It would not be necessary while considering his case to re-examine the question of credibility of those eye-witnesses who had been relied upon regarding Ghazi's conviction. But it would not be against any principle of criminal jurisprudence to extend benefit of doubt to n the appellant if it is otherwise available to him from the evidence without at the same time adversely affecting the credibility of eye-witnesses. Indeed, the appellant cannot take any benefit except from the evidence and the probabilities arising out of it. The case against Imam Bux has to be looked at from a general viewpoint that the motive for the crime is old enmity connected with the blood feud. A single injury was caused to the deceased which proved fatal and corroboratory evidence is available against Ghazi in the form of the weapon of offence. In this general background, it needs to be seen as to what was the allegation against Imam Bux at the stage of F. I. R. Maula Bux the author of the F. I. R. then stated as follows : "When we reached near the shop of Ali Mardan on the inspection path of Sher Khan minor at a distance of about 20-25 paces, we passed from the western side of the minor two persons Ghazi and Imam Bux Jamali suddenly emerged ; out of whom Ghazi had a rifle and Imam Bux had a pistol. We passed through them on scooter. Both of them challenged us and told us not to go. On their challenge we i.e. I and Jan Muhammad, saw behind. In the meanwhile Ghazi fired at us with his rifle which hit Jan Muhammad who raised cries and said that he has been hit by the fire of Ghazi. In the meanwhile there was a second fire. The above incident was witnessed by Ilyas . . . .." It is to be noted that the stopping of the vehicle is not mentioned. It is indicated as if Jan Muhammad was hit from his back side when the vehicle had already passed by the accused. And above all, although there is mention of second shot, there is no indication in the F. I. R. as to who fired it or whether it hit anybody. The medical evidence had in the mean -E while established that the solitary shot was fired at Jan Muhammad from front and that there was an exit wound on the back. Maula Bux when deposing at the trial seems to have kept this aspect of medical evidence in view and improved the allegation against Imam Bux as follows : "When we had covered this distance, all of a sudden the present accused Ghazi and Imam Bux came out and challenged us to stop, else we were threatened to be killed by the arms that they were having with them. Ghazi was having a rifle and Imam Bux was armed with a pistol (country made). We covered few paces more, and the accused threatened to shoot both of us. I was driving the scooter. I stopped the scooter. I got down from the scooter towards the minor side and Jan Muhammad got down towards the other side. The accused? Ghazi fired at him (Jan Muhammad). Jan Muhammad fell down on receiving the injury. This incident was witnessed by Tagio and Ilyas who were coming from the opposite direction. Imam Bux also fired at us with his pistol which did not hit us." The improvement regarding the role of Imam Bux, namely, that he had fired the second shot mentioned in the F. I. R. with a pistol was made at the trial stage otherwise upto the F. I. R. stage the benefit could go to Imam Bux appellant that the second shot mentioned in the F. I. R. might also have been fired by Ghazi. In addition to this improvement, Maula Bux P. W. made another improvement, namely, that the second shot was fired at them (and Jan Muhammad deceased). In the F. I. R. there was no mention o the fact that the second shot was fired at anybody. It (F. I. R.) indicated as if there was just a second shot without any mention that it was fired tea anybody. These improvements were further highlighted by yet another effort o Maula Bux to squeeze the noose around Imam Bux's neck. He bad mad similar improvement before the Committing Magistrate but of lesser gravity in so far as Imam Bux is concerned because he had then stated that the? second shot was fired by Imam Bux, but it was in the air. When appearing at the trial stage, the witness denied the benefit of "firing in the air" to the appellant and instead asserted intentional firing at the witness cm the deceased. Undoubtedly, Maula Bux is the star witness of the case. However, with the above state of his testimony regarding Imam Bux appellant, although it may not be possible to bold that he is totally dishonest and false witness (in so far as the complicity of Ghazi accused is concerned) it would rather require strong confirmation to convict Imam Bux appellant. Not only this, there is no circumstantial evidence against him except that he also had a motive like his brother-but this motive can also be a ground for implication of an innocent person alongwith the guilty one. The absence of second injury and recovery of pistol was obviously noted in the leave granting order in the afore discussed context. The next question would arise that the other two witnesses who have also been relied upon regarding complicity of Ghazi have not spared Imam Bux. That is true insofar as the form is concerned but while Maula Bux P. W. wanteJ the Court to believe that Imam Bux appellant had fired at Maula Bux and the deceased, the other two witnesses belied him by asserting that the shot fired by Imam Bux was not aimed at anybody rather he had fired it in the air. Ilyas P. W. stated in this behalf that "Imam Bux fired his pistol in air at the time of the incident Ghazi had fired with his rifle". It is important to note that the firing by Imam Bux as alleged by Ilyas P. W. was simultaneous when Ghazi fired his rifle. On the other hand, Tagio P. W. mentioned the firing of pistol by Imam Bux in the narrative as if it was subsequent to the firing of rifle by Ghazi. It was also stated by this witness that imam Bux had fired his pistol in the air. The afore-discussed features of the case were not present in the mind of the learned trial Judge when convicting Imam Bux. One way of understanding his remarks about him quoted earlier is that firing by him was not accepted as a fact. Indeed, the afore-analysed aspects of allegation of firing against Imam Bux were neither noticed nor discussed by the learned Courts below. It is not certain that if they would have been so noticed, the results would have been the same. In absence of second injury to the deceased ; the absence of recovery ; the improvements and contradictions in the statements by the eye-witnesses ; and, in view of the background of enmity of blood feud ; as also, on account of the conflict on the role attributed to him, the legitimate benefit of doubt can be extended to the appellant. Either he was not present or if he was present, he was not carrying any weapon and if at all he was carrying a weapon, he did not fire it. All this in other words would lead to the finding that the prosecution has not been able to establish the complicity of the appellant in the crime beyond reasonable doubt. Such a finding would not go against the credibility of the eye-witness because it is one of the main principles of criminal jurisprudence that when an accused is acquitted on extension of benefit of doubt, it does not necessarily mean that those who deposed about his complicity deliberately told lies. The necessary corollary being that although a possibility cannot be excluded that they might have told truth, an equally reasonable possibility cannot be excluded that the accused might be innocent. Necessary consequences of such jurisprudential reality would follow, namely, that the particular accused would be acquitted only on extension of benefit of doubt and the credibility of the witnesses would remain intact. Similar proposition was considered and approved by this Court in Sher Hassan v. The State (P L D 1959 S C (Pak.) 480). In the light of the above discussion, I would extend the benefit of doubt to Imam Bux. However, assuming for the sake of argument that the appellant was present with his brother, had a pistol and that he fired it in the air simultaneously when Ghazi fired his rifle at his intended victim Jan Muhammad. (This is the version given by Ilyas P. W. of which due benefit can be obtained by the accused), what will be the legal effect: The learned trial Judge answered this very question as noted earlier by a simple mode, namely, that Imam Bux being present, did not try to prevent Ghazi from committing the crime. This is very dangerous . proposition and unless corrected would lead to immeasurable injustice in many cases. In this very case, two witnesses, Ilyas and Tagio, were questioned as to why they being present, did not intervene. Their answer was : they could not intervene on account of fire-arms. If the reasoning of the learned trial Judge was to be followed, section 34 would be applicable to both these witnesses and they might be guilty of murder but that would not be so. The question needed more deeper analysis of the controversy involved in it. It is unfortunate that the question of vicarious liability was not highlighted at the hearing of the murder reference before the High Court. Leaving aside the absence of any discussion regarding the improvements made by Maula Bux in connection with the role of Imam Bux and the nature of act of firing in the air attributed to him at the trial stage, even the absence of any role except presence at the F. I. R. stage and the?????????? role of firing of pistol in the air at the trial stage, were not present in the mind of the learned Judges when considering the case of Imam Bux. The observations in the High Court judgment regarding Imam Bux's complicity rather show some amount of helplessness on account of what was described as "disinterested ocular evidence "and thus "inability to distinguish the case of Imam Bux in spite of the fact that no recovery was made at his instance". It is with respect pointed out that the distinguishing features regarding the case of Imam Bux as already analysed at least needed serious consideration before deciding the ultimate fate of the case against him. Had it been done, a reasonable possibility cannot be excluded that finding might have been rendered that he was not guilty on account of vicarious liability by application of section 34, P. P. C. It is true that common intention might be spelt out from the element which follow :- common motive, common pre-planning, preparation and consert pursuant of such planning. But these are not exhaustive of all the elements relevant in this behalf. Common intention can also develop even at the spur of the moment prior to the main offence or even during the commission of similar or lesser offence. Not only that, and this is important, conversely, common intention can also undergo change at the spur of the moment prior to the offence or even during a transaction. In other words, it is not impossible to visualise in law, that if two or more persons had common intention before the commencement of a criminal act, it can be changed either to a different intention (may be of a lessor crime) or negation of crime ; and proceeding further, the commonness regarding a certain intention might be abandoned at any stage. On the assumption that Imam Bux appellant was present with his' brother before the occurrence, had a pistol and fired it in the air, simultaneously when his brother fired his weapon at the victim, various possibilities can be visualised. Maula Bux P. W. stated that the accused had told them twice to stop otherwise they would be shot at. It means that at that stage the intention -common to both the accused was to stop the two persons belonging to the adversary party and then to deal with them in some manner. That manner was only in the mind of the accused and a reasonable possibility could not be excluded that the common intention then might be to give a beating to both or one of the adversaries or to the main one. It might also be to abduct one or both of them. It might also be the individual intention of Ghazi to kill one of the adversaries but this intention cannot be attributed to the other, i.e. Imam Bux whose subsequent L conduct showed a negative intention not to cause even any injury to any of his adversaries by firing a shot at them-he instead fired the shot in the air. thus at that stage there is no question of there being a common intention of both the accused to murder Jan Muhammad. This is not all. If there was pre-planning with the common intention of firing at Jan Muhammad with one or both the weapons, there was no need to seek the stoppage of the vehicle. The victim could be fired at when, as asserted at the F. I: R. stage the vehicle carrying him passed through the two accused. A pistol shot could be effectively fired at him. The appellant was carrying a pistol, there was nothing to prevent him to do so. Instead according to Maula Bux, warning was given twice to stop the scooter. It is also important to note that while firing at a victim is considered ash a positive act on the part of a culprit showing his intention to kill or injure the victim, the firing in the air (when there is an opportunity of firing at the victim) would ordinarily show a negative intention in so far as the injury to the victim by firing is concerned. In this context, if there are two; reasonable possibilities, another jurisprudential principle would have to be applied; namely, that that reasonable possibility be adopted which favours the accused. In this case, on the assumption that the appellant also fired but in the air, does not exclude the further possibility that it was a negative act indicating absence of any intention to cause physical harm to the deceased what to talk of a positive intention to kill him. It also negates any positive intention in common with his younger brother; who, there is high possibility, it appears, without pre-concert and without the knowledge of his elder brother (appellant), suddenly fired a solitary shot at the deceased as his own individual act. Benefit of doubt can also be extended on account of interpretation/application of the provisions relating to vicarious liability. It was a fit case to extend such benefit to the appellant. The prosecution has failed to establish beyond reasonable doubt that the appellant had an intention to commit the murder of Jan Muhammad deceased and further that such an intention was also common to him and his brother. Thus on this reasoning also the appellant being entitled to acquittal on extension of benefit of doubt, I would accept his appeal and acquit him. He shall be released forthwith, if not required to be detained in custody in any other matter. It needs to be mentioned that I have had the advantage of reading the judgment proposed by my learned brother M. S. H. Quraishi, J. but with profound respect, I regret that I have to express my inability to agree with the same. In accordance with the majority view, the appeal is dismissed. s. A. H.??????????? Appeal dismissed.