Hayat Versus State
Rozi Khan Barrech, C.J .--- The captioned appeal is directed against the judgment dated 27.03.2025 ("impugned judgment") passed by learned Sessions Judged Panjgur ("trial court") in Case No. 03/2024 emanating from FIR No. 199/2023 dated 27.12.2023 at PS City Panjgur for the offences under sections 302, 337-ADF and 34 P.P.C., whereby the appellant Hayat, son of Murad was convicted and sentenced in the following terms:
"19... .the, accused Hayat son of Murad is convicted and sentenced under section 316 P.P.C. to suffer 10 years R.I and to pay amount of Rs.8103955/- as Diyat for the financial year 2024-2025 to the legal heirs of deceased person, however, he shall remain in custody till the payment of Diyat amount. The benefit of section 382-B Cr.P.C is extended in favour of accused person "
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/5-B) recorded on the written report (Ex.P/5-A) of the complainant, namely Muhammad Afzal (then injured/deceased), son of Murad, is that on 26.12.2023 he (complainant) when arrived home at 6:40 pm his brother Hayat along with Mukhtar and Noora started beating him due to children's quarreling and advanced life threats to him. Hence, the crime report. Needless to mention here that subsequently the complainant/then injured Muhammad Afzal was shifted to Karachi for treatment, but he succumbed on the way to Karachi, hence Section 302 was inserted in the FIR.
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 six 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 did he produce any witness/evidence in his defense.
Upon conclusion of the trial and after hearing the arguments of learned counsel for the parties, the trial court convicted and sentenced the appellant as mentioned above in the opening paragraph, in consequence whereof this criminal appeal was filed.
4. We 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 appellant under sections 302 and 324, P.P.C. and as to whether the appellant and the absconding co-accused Noora played the same role. It is the version of the prosecution that the present appellant, along with absconding co-accused Noora, attacked upon the deceased Afzal and the absconding accused Noora, armed with a stick hit the deceased on his head, who received injury. According to the complainant/ deceased Muhammad Afzal's initial report, the appellant and absconding accused Noora attacked upon him, and no specific role is attributed to each accused. However, when the eye-witnesses Amir Umer (PW-1) and Mandost (PW-2) appeared before the court, they stated in their statements that the absconding accused Noora hit the deceased with sticks on the head, who received injuries. As per the medical certificate produced by Dr. Nasrullah (PW-3), i.e. (Ex.P/3-C) the cause of death of the deceased is head injuries. In the inquest report (Ex.P/6-A) prepared by the investigating officer (PW-6) mentioned the cause of death as head injuries with sticks. It is worthwhile to mention here that the appellant is the brother of the deceased, and the absconding co-accused is the nephew of the deceased, and they were living in the same house. A quarrel took place between the appellant, the absconding accused and the deceased over a petty matter, and the said incident took place suddenly. According to the prosecution's case, there is no previous motive between the appellant and the deceased. We are confronted with a situation where three accused are charged for the murder of the deceased Muhammad Afzal, one with an effective role, i.e. Noora, the absconding accused, who allegedly hit the deceased with sticks on his head who received injuries and later on succumbed to the injuries after one day. There is no evidence on record that the appellant was armed with any deadly weapon and no injuries, was caused by the appellant to the deceased. 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.
6. 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 unite 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 an 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 murder of the deceased was an organized commission of the crime by the accused/appellant. The trial court has also not clarified in light of the evidence that whether the accused had come to the house of the complainant/ deceased after a pre-concert between him and the absconding co-accused or they had formed their common intention for committing murder of the deceased Muhammad Afzal 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 the surrounding circumstances of the case. Since the co-accused of the appellant is still absconding, therefore, we would confine ourselves 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 deceased and father of the absconding accused. According to the version of the prosecution, the absconding co-accused Noora armed with sticks, hit the deceased on his head, who later on succumbed to his injuries. There is no evidence on record that the accused/appellant caused any injuries to the deceased or that he was armed with any deadly weapon. There is also no evidence on record to suggest any previous bitterness of a serious nature between the parties prior to the occurrence; therefore, in view of their close relationship with each other, mere living in the same house cannot be viewed with suspicion that there was pre-concert or pre-arrangement between the appellant and the absconding co-accused 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 two accused before the occurrence, nor the said element can be inferred from the surrounding facts of the case.
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 Hayat, son of Murad, had shared a common intention with the absconding co-accused Noora. We have no doubt that the prosecution could not succeed in connecting the appellant Hayat, son of Murad, with the 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, we are 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. (T) 14 of 2025 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 27.03.2025 passed by learned Sessions Judge Panjgur in Case No. 03/2024 emanating from FIR No. 199/2023 dated 27.12.2023 at PS City Panjgur, the appellant Hayat, son of Murad is acquitted of the charge. The appellant is ordered to be released forthwith if not required in any other case.
JK/139/Bal. Appeal allowed.