Waheed Khan vs Naseebullah Ss — 2025 MLD 42 QUETTA-HIGH-COURT-BALOCHISTAN

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Waheed Khan VS Naseebullah Ss. 324 & 34---attempt to commit qatl-i-amd, common intention---appreciation of evidence---Vicarious liability---Common intention to commit murder not established---accused was charged for making murderous assault by making firing upon the brother of complainant due to which he sustained firearm injuries---Record showed that two accused were charged for causing injuries to the injured, one with effective fire shots, whereas the other with the role of facilitation---admittedly, the accused was the real brother of absconding co-accused---according to the version of the prosecution, the accused had entered the shop and called the injured to come out, and outside the shop, the absconding accused was standing armed with a pistol and made fire upon the injured---Moot question was that whether entry of the accused into the shop in the company of his co-accused in the mode and manner as reflected from the evidence was sufficient to establish that he was sharing his intention with the co-accused for attempting to commit murder of injured---No evidence was on record was to suggest any previous bitterness of serious nature between the parties prior to the occurrence; therefore, in view of their close relationship with each other, mere joint entry of the accused in the shop could not be viewed with suspicion that there was pre-concert or pre-arrangement between them for the commission of the offence---No evidence was on record to prove that any pre-consultation or pre-planning had taken place between both the accused before the occurrence, nor the said elements could be inferred from the surrounding facts of the case---admitted fact that the accused did not have any pistol at the time of the occurrence---accused being empty handed at the relevant time suggested that neither any pre-planning had taken place between both the accused before the occurrence nor did the accused have the knowledge that his brother/absconding co-accused was in possession of a weapon nor did he anticipate any quarrel with the complainant side culminating in an attempt to commit murder of the injured---If the accused had any intention of fighting with the complainant, or had he apprehended the same, or if he had the knowledge that his brother was carrying a pistol with him while going to the shop, he would have also carried some weapon with him at least for his self defence---In such circumstances, the prosecution could not collect any positive evidence that could help form an opinion that the accused had shared common intention with the absconding co-accused---Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy, and confidence-inspiring evidence---appeal against conviction was accordingly allowed.

Waheed Khan vs Naseebullah Ss — 2025 MLD 42 QUETTA-HIGH-COURT-BALOCHISTAN

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