1986 PLP 2888 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑These two Criminal Appeals Nos.191 of 1979, by Nazeer Ahmad alias Kudda (32), 172 of 1979, by Mukhtar Ahmad (40), Muhammad Iqbal (32), Muhammad Yakub (30), and Gulzar Ahmad (23) and Murder Reference No.63 of 1979, arises from the judgment of learned Additional Sessions Judge, Vehari, whereby he on 27‑1‑1979, convicted them under section 302/149, P.P.C. for causing the death of Muhammad Saleem and under section 304, P.P.C for causing the death of Muhammad‑Siddique their companion and under section 307/149, P.P.C. for murderous assault on Nazeer Ahmad P.W.3, Ali Muhammad P.W. 6 and Muhammad Yousaf P.W. (not produced) and under section 148, P.P.C. and sentenced them as under:‑ (i) Under section 148 P.P.C. to one year R.I. each. (ii) Under section 302/149, P.P.C. Nazeer Ahmad alias Kudda to death and a fine of Rs.3.000 or in default thereof three years' R.I. The other appellants were sentenced to imprisonment for life and a fine of Rs.2,000 each in default thereof one year R.I. (iii) Under section 304, P.P.C. to 10 years' R.I. and a fine of Rs.1,000 or in default thereof six months' R.I. each.. (iv) Under section 307/149, P.P.C. to 10 years' R.I. and a fine of Rs.1,000 or in default thereof one year R.I. each. It was directed that fine of Rs.4,000 when recovered be paid to the legal heirs of Muhammad Saleem as compensation under section 544‑A, Cr.P. C. It was also directed the sentences shall run concurrently.

2. The occurrence took place on 11‑3‑1976 at 10/11 p.m, in a garden adjacent to village 321 E.B. at a' distance of seven miles from Police Station Sahoka. The F.I.R. Exh.P.B. is statement of Haji Muhammad Iqbal P.W.2 recorded at Diwan Sahib Shrine on 12‑3‑1976 at 7 a.m. by Malik Qadir Bakhsh, A.S.I. P.W.12, Formal F.I.R. P B/1 was drawn up at 7‑30 a.m. by Alamgir Head Constable P.W.7.

3. Mukhtar Ahmad and Gulzar Ahmad appellants are real brothers. They are the tenants of Muhammad Siddiq Bhatti accused /deceased. Muhammad Iqbal appellant is the sister's son of Muhammad Siddique deceased. Nazeer Ahmad alias Kudda and Yaqoob appellants are friends of Iqbal appellant.

4. The background of the occurrence as stated by the prosecution was that Haji Muhammad Iqbal complainant, Muhammad Saleem deceased, Ali Muhammad P.W.6, Nazir Ahmad P.W.3 and two others had taken garden Bhattianwala on lease from Muhammad Siddique deceased /accused for a sum of Rs.1,28,

000. The fruit of the garden had been lastly despatched on the day of occurrence. The complainant, deceased and other lessesee of the garden were sitting at Dera in the garden. At about evening time on the day of occurrence, Siddique and Bola tenants of Muhammad Siddique deceased/ accused stole away a tin containing Ghee of the complainant party. On enquiry, Siddique and Bola first showed their ignorance but when insisted they returned the tin of Ghee. On this Ali Muhammad P.W.3 and Muhammad Rafiq P.W. (not produced) gave slaps to Siddique and Bola. While leaving they threatened the complainant party with dire consequences and went to Muhammad Siddique deceased and informed him of the incident, hence this occurrence.

5. As for the main occurrence, it has been stated that at the eventful time Haji Muhammad Iqbal complainant, Muhammad Saleem deceased, Nazir Ahmad P.W.3, Ali Muhammad P.W.6, Maqsood, Muhammad Shafiq, Muhammad Rafiq and Muhammad Yousaf P.Ws. (not produced) were present in front of Dera in the garden when Muhammad Siddique deceased /accused, Muhammad Yaqoob and Gulzar appellants armed with Dangs, Mukhtar Ahmad appellant armed with Takwa, Muhammad Iqbal and Nazeer Ahmad alias Kudda armed with guns arrived there. Muhammad Siddique raised Lalkara that none of the complainant party should escape alive. Mukhtar Ahmad inflicted injuries with his Takwa to deceased, one with its sharp side and rest with blunt side. Yaqoob, Gulzar, Mukhtar and Muhammad Siddique deceased/ accused injured Ali Muhammad, Nazir Ahmad and Muhammad Yaqoob P. Ws. with their respective weapons. Muhammad Iqbal appellant aimed his gun towards the complainant party declaring that in case anyone of them tried to run he would be shot dead. Muhammad Saleem deceased ran towards the rear of the Dera whereupon Muhammad Iqbal appellant exorted Nazeer Ahmad alias Kudda to fire at the deceased. On this Nazeer Ahmad fired shot hitting Muhammad Saleem who fell down at some distance. The witnesses then came towards the front of the Dera. Meanwhile Nazeer Ahmad alias Kudda reloaded his gun. Muhammad lqbal appellant instigated him to fire at the complainant, Haji Muhammad Iqbal. At this juncture incidently Muhammad Siddique Bhatti the companion of the appellant reached in front of Haji Muhammad Iqbal and the shot fired by Nazeer Ahmad alias Kudda hit him. On receiving the fire shot Muhammad Siddique Bhatti deceased; accused shouted that he was the companion of Nazeer Ahmad. The appellants then lifted him from the spot. Muhammad Saleem succumbed to the injuries on the spot. Haji Muhammad Iqbal left for the Police Station to lodge the report in the morning. He has explained that he did not go to the Police Station to report the occurrence due to the fear of the appellants.

6. On 14‑3‑1976 at 8 p. m. Dr Muhammad Aslam P. W.4, medically examined Ali Muhammad. He found five single injuries on his person. Out of which one injury was caused by sharp‑edged weapon and the rest with blunt weapons. On the same day at 8‑OS p.m. he examined Nazeer Ahmad P.W. and found four simple injuries on his person. On the same day at 8‑15 p.m. he examined Muhammad Yousaf and found one simple blunt injury on his person.

7. On 12‑3‑1976, Dr. Akhtar Hussain Jafari, conducted post‑mortem examination on the dead body of Muhammad Saleem. He found the following injuries on his person: (1) A contused wound 67 c.m.x bone deep on the head in the middle 10 c.m. from the right ear. (2) Incised 4 c. m. x 1 c. m. bone deep on the left side of the head, 7 c.m. from the left ear. (3) A contusion 5 c. m. x 4 c. m. on the left temple of the head. (4) A lacerated wound 2.5 c.m. x 2 c.m. on the right side of the back of the chest 2 c. m. medial to the post axillary angle. (5) An abrasion 3 c. m . x 1 c. m . on the right side of the back just above the buttock and 9 c. m. from the mid line. (6) Crushed wound 1.5 c. m . x 1 c. m . by 0.25 c. m . on the tragus of the left ear, with a liner tear skin deep 1 c. m. long on the pinna of the left ear. (7) Abrasion 2 c. m . x 1 c. m . on the front of the right knee. (8) An abrasion 1.5 c. m . x 1 c. m . on the front and outer side of left knee. In his opinion the death occurred as a result of shock and haemorrhage caused by injury No.4, which had damaged the vital organs like lungs, heart and stomach. This fire‑arm injury was sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple. Injury No.2 was caused by sharp‑edged weapon. Injuries 1, 3, 5 to 8 with blunt weapon. The probable time between injury and death was within one hour. On 13‑3‑1976, the same doctor conducted post‑mortem examination on the dead body of Muhammad Siddique Bhatti deceased/ accused. He found the following injuries: (1) A lacerated wound 6.5 c. m. x 2.5 c. m. on the left side of the back 2 c.m. from the mid line and between the two scapulae. The wound was obliquely deep. There was no charring around the wound. (2) A contusion 2 c. m. x 1.5 c. m. on the medial surface of left fore arm 6 c.m. above the wrist joint. In his opinion the death occurred due to shock and haemorrhage due to injury No.1 which had lacerated the spinal cord in the thoracic region at the 8th D‑Segment. Injury No.2, was simple and caused by blunt weapon. Injury No.1 was a fire‑arm injury and was sufficient to cause death in the ordinary course of nature.

8. On 12‑3‑1976, Malik Qadir Bakhsh A.S.I. P.W.12 removed two crime empties P 12/ 1‑2 from the place of occurrence which were taken into possession vide memo P.E. attested by Nazeer Ahmad P.W.3 and Muhammad Shafiq (not produced).

9. On 1 4‑1976, all the appellants were arrested by Muhammad Hanif Lodhi S.H.O. P.W.5. On 9‑4‑1976, Nazeer Ahmad, Mukhtar Ahmad, Gulzar Ahmad, Muhammad Yaqoob and Muhammad Iqbal led to the recoveries of gun P.26, blood‑stained Takwa P.27, Soti P.28, Dang P.29 and GUN P.25 respectively from their houses which were taken into possession vide Memoranda P.A.A., P.B.B., P.C.C., P.D.D. and P.Z. respectively. The memoranda were attested by Ch. Ghulam Nabi and Manzoor Ahmad P.Ws. (both not produced). Qadir Bakhsh A.S.I. P. W.12 effected the recoveries and prepared the recovery memoranda. On 27‑3‑1976, licence P.24 in the name of Muhammad Siddique deceased/ accused was produced before Qadir Bakhsh P.W.12 by Wali Muhammad a relative of Muhammad Siddique which was taken into possession vide memo. P:Y. attested by Nazeer Ahmad son of Jamal Din and Wali Muhammad (both not produced). Forensic Science Laboratory Report P.E.E. reveals that the two crime empties recovered from the spot were fired from gun P.26 of Muhammad Siddique Bhatti deceased /accused which was recovered from Muhammad Nazir alias Kudda appellant. Serologist report Exh.P.H.H. shows that Takwa P.27 recovered from Mukhtar Ahmad appellant was stained with human blood.

10. To prove its case, prosecution examined 12 witnesses. Haji Muhammad Iqbal P.W.2, Nazeer Ahmad P.W. 3 and Ali Muhammad P.W.6 have given the ocular account of the occurrence. They claim to have seen the appellants and Muhammad Siddiq Bhatti deceased /accused variously armed launching murderous assault on Muhammad Saleem deceased and the P. Ws. and thereby causing not, only death of Muhammad Saleem and injuries to the P.Ws. but also incidently the death of their companion Muhammad Siddiq Bhatti. Haji Muhammad Iqbal P.W.2 and Nazeer Ahmad P.W.3 have also deposed about the motive of the appellants to kill the deceased and injure the P.Ws. Dr. Muhammad Aslam P.W.4 has proved the medico‑legal reports of the injuries of Ali Muhammad, Nazeer Ahmad and Muhammad Yousaf P.Ws. Dr. Akhtar Hussain Jafari P.W.8 has proved the post‑mortem examination reports of Muhammad Saleem and Muhammad Siddique deceased/ accused. Malik Qadir Bakhsh A.S.I P.W.12 has supported the recoveries of weapons of offence from the appellants. The rest of the evidence is of formal nature.

11. When examined under section 342, Cr.P.C. the appellants denied all the incriminating, circumstances. They have given a different version of the occurrence. Muhammad Iqbal appellant in reply to the question, "why this case against you?" stated:‑ "I am innocent, and have been falsely implicated in this case. Muhammad Siddique (since dead) was my maternal‑uncle. He was unmarried and thus had no heirs. He had a licensed gun which he used to carry on his shoulder as of habit throughout. On the fateful night Siddique went to enquire from Haji Iqbal and Saleem deceased about the beating of his servants, Bagh Ali was with him at the time. On reaching the garden some altercation took place between Siddique (since dead) and Bagh Ali on the one hand and 'Haji Muhammad Iqbal P.W. and Saleem deceased on the other hand. A hue and cry was raised at which myself, Mukhtar, Gulzar and Nazeer Kudda rushed to that side and within our view Muhammad Iqbal P.W. fired a .12‑bore pistol hitting Siddique upon which he fell down. In return Siddique (since dead) who was armed as always with his licenced gun, fired at Saleem deceased who also fell down. We tried to intervene and with difficulty were able to carry away Siddique injured from the spot. Saleem apart from the gunshot had some injuries on his person at that time. Nobody from amongst us gave any injury to any body at the spot. Muhammad Siddiq Bhatti had expired later on way to Civil Hospital. Vehari and after his death F.I.R. Exh.P.N. was recorded by Malik Qadir Bakhsh A.S.I. at Burewala. The complainant party being very rich and influential managed to get me, and my co‑accused by cooking up a false and fabricated case so that I may not be able to pursue the murder case of my maternal‑uncle. They managed to get case F.I.R. No.44/76 cancelled. We are being made a scape‑goat for the misdeeds of Haji Muhammad Iqbal P.W." The rest of the appellants other than Muhammad Yaqoob adopted the version of occurrence stated by Muhammad Iqbal appellant. Muhammad Yaqoob denied his presence on the spot. He stated that since he had refused to blame false witness against co‑accused although Rs.1,000 were offered to him, , therefore, the complainant has falsely involved him. In defence, Nazeer Ahmad appellant tendered documents Exh. D.1. to D.4 i.e. copies of F.I.R., 174/74, F.I.R. 324/77, copy of list of witnesses, copy of statement of Noor Ahmad recorded under section 164, Cr.P.C. No witness was produced in defence.

12. The learned trial Court, while believing motive, ocular evidence, recoveries and disbelieving the counter‑version given by Muhammad Iqbal appellant has convicted and sentenced the appellants as stated above.

13. The learned counsel for the appellants contended that prosecution has failed to prove its case beyond reasonable doubt, in that, the F.I.R. is not a genuine document; that there is an inordinate delay in lodging the F.I. R. that prosecution has not been able to prove the alleged motive; that the eye‑witnesses are not reliable as their statements were recorded after three days of the occurrence'; that the injuries found on the person of the injured witness are self‑suffered; that the recoveries from the appellants are fake; that the forensic laboratory report is of no consequence; that no blood was removed from the place where Muhammad Siddiq Bhatti deceased /accused was injured and that the occurrence had taken place in the manner as stated by Muhammad Iqbal appellant. Conversely the learned counsel for the State hag supported the judgment of the trial Court. He maintained that the delay in the F. I. R. has reasonably been explained; that the eye‑witnesses are quite independent and reliable and that the occurrence took place in the manner as alleged by the prosecution and not in the manner as stated by the appellants.

14. We have attended to the arguments advanced by the learned counsel for the parties with care. From the foregoing resume of the facts, it is very much obvious that there are two versions of the occurrence. The time of occurrence, the place of occurrence, presence A of Muhammad Saleem deceased, Muhammad Iqbal P.W.2, Muhammad Siddiq accused /deceased, Muhammad Iqbal, Mukhtar Ahmad, Gulzar Ahmad. Nazeer Ahmad alias Kudda appellants are the admitted as well as proved facts of case. The prosecution .version is that the appellants and Muhammad Siddique accused‑deceased came variously armed. Mukhtar Ahmad and Nazeer Ahmad alias Kudda caused injuries with Takwa and fire‑arm to the deceased and the appellants other than Nazeer caused injuries to Ali Ahmad, Nazeer Ahmad and Muhammad Yaqoob P.Ws. On the other hand, defence has not explained the injuries of P.Ws. The: defence case is that Muhammad Siddique who in return fired at Muhammad Saleem resulting in his death. It is thus very much obvious that defence) version does not explain the injuries of P.Ws. and seven more injuries found on the deceased. Keeping in mind the guiding principles laid down for the appreciation of evidence in rival cases, we propose to discuss the prosecution case first in order to come to an independent finding on the truth or falsity of the prosecution case and the credibility of the prosecution witnesses more particularly of the alleged eye‑witnesses. In case, the ocular testimony is believed or is not discarded we will then examine the two rival cases placing in juxta position and will review the entire evidence and circumstances at the close before arriving at a conclusion regarding the truth or falsity of the defence version and will esteem its total effect in relation to two questions: (i) Is the plea of the appellants other than Muhammad Yaqoob satisfactorily established by the evidence and circumstances appearing in the case? (ii) If the answer be in the negative, is there yet a reasonable possibility that their plea might be true, so as to cast a reasonable doubt upon the prosecution case. "

15. We start with the F.I.R. The occurrence took place at 10/l1l p.m. on 11‑3‑1976. The F. I. R. was recorded on the following day at 7 a.m. i.e. after 8/9 hours of the occurrence. The learned counsel for the appellants was of the view that this is inordinate delay which makes the entire case of the prosecution doubtful. We do not feel persuaded to agree with him. We find that the delay has reasonably been explained in the F.I.R. and in evidence at trial stage. Undisputedly, the complainant party was stranger to the area where the occurrence took place. The complainant has consistently explained in the F. I. R. and in evidence before Court that he did not go to the police station during the night out of the fear of the accused /appellants and because they were strangers to that area. In the circumstances of the case, we do not see any reason to disbelieve this explanation which seems to us quite reasonable. We believe that F.I.R. P.B. is a genuine document wherein the names of the appellants, the weapons carried by them, the part played by them in the occurrence, the manner in which the occurrence took place and names of eye‑witnesses are mentioned. So, this document can safely be used to corroborate the statements of its maker i.e. Muhammad Iqbal P.W.2.

16. Adverting to the most crucial piece of evidence i.e. the ocular testimony we do not see any reason to doubt that the three eye‑witnesses namely, Muhammad Iqbal P.W.2, Nazeer Ahmad P.W.3 and Ali Ahmad P.W.6, in fact, saw the occurrence and were in a position to identify the culprits, in that, being lessee of the fruit of the garden where the occurrence took place their presence at the time of occurrence was very much natural. By the facts of injuries on the person of Nazeer Ahmad P.W.3 and Ali Ahmad P.W.6, their presence on the spot at the time of occurrence is also very much established. The appellants were previously known to them and as such, there was no difficulty in the identification of the assailants. The complainant has explained the death of Muhammad Siddique, the companion of the appellants, in the F.I.R. The eye‑witnesses have also explained his death in their statement before the Court. The statements made by the eye‑witnesses are in consonance with the probabilities and materially fit in with the rest of the evidence. Except for minor and immaterial discrepancies/I contradictions, here and there, the learned counsel has not been able to point out any material contradiction /discrepancy or dishonest improvement in the statements of the eye‑witnesses. We do not see any legal infirmity in their statements. The eye‑witnesses have successfully) faced the test of cross‑examination. The greatest engine invented for the discovery of truth could not impeach their veracity and shake their credibility. The number and nature of the injuries found on the deceased and the three eye‑witnesses namely, Nazir Ahmad P.W.3, Ali Ahmad P.W.6 and Muhammad Yousaf (not produced), commensurate with the number of the appellants. In view of the motive stated by Muhammad Iqbal P.W.2 and Nazir Ahmad P.W.3 whom we are not prepared to disbelieve, the appellants were expected to join in the attack on the deceased and P.Ws. On our independent assessment, we find the three eye‑witnesses are absolutely dependable and can be relied upon without further corroboration.

17. Since we have not discarded the ocular testimony, therefore, we proceed to resolve the two questions already` formulated by us. As for the question at No.(i), we find that the appellants have not been able to establish satisfactorily their version of the occurrence by any direct or indirect evidence and the same is also not spelt out from the prosecution evidence or attending circumstances. It appears from the statement of Muhammad Iqbal appellant that one Bagh Ali had accompanied Muhammad Siddique deceased to the place of occurrence and was present throughout the occurrence, yet the appellants did not care to produce him to establish their plea. The first question is, therefore, answered in negative.

18. Coming to the question at No.(ii), we find that there is no reasonable possibility of the plea raised by the appellants being true. The defence version is that at the fateful time Muhammad Siddique deceased‑accused alongwith Bagh Ali had gone to the place of occurrence to enquire from Haji Muhammad Iqbal and Muhammad Saleem since deceased about the beating of his servant and that some altercation took place between Muhammad Siddique since dead, and Bagh Ali on one hand and Haji Muhammad Iqbal and Muhammad Saleem deceased on the other hand. Muhammad Iqbal P.W. fired a pistol shot hitting Muhammad Siddique upon which he fell down and in return Muhammad Siddique who was armed with his licensed gun fired at Muhammad Saleem who also fell down. It was further stated that nobody from Muhammad Siddiq's side had given any injury to anybody on the spot. This version seems to be totally false inasmuch as the shot fired by Muhammad Iqbal P.W. at Muhammad Siddique deceased‑could have rendered the latter incapable f firing any shot in return. There were 8 injuries on the person of Muhammad Saleem deceased caused by fire‑arm, sharp‑edged and blunt weapons and ten injuries on the ‑person of the P.Ws. out of which one was caused by sharp‑edged weapon and the rest with blunt weapon. The nature and number of the injuries found on the person of the deceased and the P.Ws. falsifies the defence version that one shot was fired at the deceased by Muhammad Siddique deceased /accused ,and no other injury was caused to the deceased or to anyone else. It appears from the state of circumstances that since Muhammad Siddique co‑accused is not in this world, therefore, murder of Muhammad Saleem deceased has conveniently been assigned to him. Even otherwise the defence version that Muhammad Iqbal P.W. fired shot from his gun at Muhammad Siddiq deceased accused who in return instead of firing at Muhammad Iqbal, fired from his gun at Muhammad Saleem and killed him, appears to be highly ridiculous. In these circumstances. the question of any reaction on the prosecution case or casting a reasonable doubt on prosecution, does not arise. So, question at No.(ii), is answered accordingly. For all these reasons we are convinced that the occurrence took place in the manner as stated by the eye‑witnesses produced by the prosecution and that there is no reasonable possibility of counter -version of the occurrence given by Muhammad Iqbal appellant, being true.

19. Although we have believed the eye‑witnesses yet in the peculiar circumstances of this case and as a matter of abundant caution, we feel inclined to give benefit of doubt to Muhammad Iqbal on the question of his vicarious liability. He was allegedly armed with a gun yet he did not cause any injury to anyone. Although at trial stage it has been stated that he had raised Lalkara at the time of occurrence, instigating Nazeer Ahmad alias Kudda to kill Muhammad Saleem deceased and fire at the complainant but it was not stated so in the F.I.R. and the statements of the eye‑witnesses recorded under section 161, Cr.P.C. We feel that it would be highly unsafe to maintain his convictions and sentences.

20. Now we proceed to consider the extent to which the appellants other than Muhammad Iqbal were responsible for what occurred at the fateful time. According to the prosecution the appellants variously armed had come to the place of occurrence where Muhammad Saleem deceased and his companions P. Ws. were sitting. On the Lalkara raised by Muhammad Siddique accused (since dead), Mukhtar Ahmad inflicted simple injuries on the deceased with his Takwa. Yaqoob, Gulzar and Mukhtar then caused simple injuries to Ali Muhammad, Nazeer Ahmad and Muhammad Yaqoob P. Ws. with their respective weapons. At this juncture Muhammad Saleem deceased ran towards the rear of the Dera. Nazeer Ahmad alias Kudda followed him at some distance and fired fatal shot hitting Muhammad Saleem resulting in his death. It may be noted that the rest of the appellants had not followed Muhammad Saleem deceased. They remained where they were. It is worth notice that Yaqoob Gulzar and Mukhtiar had not instigated in any manner their cc‑accused namely, Nazeer Ahmad alias Kudda to fire at Muhammad Saleem or to kill him. It is thus very much obvious that the killing of Muhammad Saleem deceased by Nazeer Ahmad alias Kudda was his individual act. He by, firing fatal shot and thereby causing the death of Muhammad Saleem is' guilty of murder beyond reasonable doubt. The facts however, do not' attract the application of section 149, P.P.C. to Muhammad Yaqoob, Gulzar Ahmad and Mukhtiar appellants. It is well‑settled that existence of common object is a question of fact and is to be determined in circumstances of each case and section 149, P.P.C. cannot be construed to mean that for every act done by a member of an unlawful assembly, all other members of that assembly would be equally liable with him. If for instance, one member of such an assembly commits an offence which is not in prosecution of the common object of that assembly; or an offence which the members of that assembly could not have known, was likely to be committed, or an offence which was not in any way, connected with the prosecution of the common object of that assembly, then section 149, P. P. C.. will have no application. From the natural flow of the circumstances of this case it seems to us that the common object of the assembly was merely to give beating to Muhammad Saleem and others and to teach them lesson for having given slaps to Siddique and Bholu, the servant of Muhammad Siddiq Bhatti accused deceased in the motive incident. Mukhtar Ahmad who opened the attack caused simple injuries with his Takwa to the, deceased. Although Nazeer Ahmad alias Kudda was very much present there yet he did not fire at the deceased at that place. Gulzar, Mukhtiar and Yaqoob caused simple injuries to the injured P.Ws. at the first place of attack on the deceased. When the deceased after receiving the injuries at the hand of Mukhtiar ran towards the rear of the Dera, these appellants neither pursued him nor did they ask Nazeer Ahmad alias Kudda to follow him or fire at him. We feel that in the peculiar circumstances of this case, it would be quite in accordance with the safe administration, of justice that benefit of doubt is given to Mukhtiar, Gulzar and Muhammad Yaqoob on the question of the application of section 149, P.P.C. and that they are punished for their individual acts.

21. For what has been said above, while giving him the benefit of doubt, Muhammad Iqbal appellant is acquitted of the charges. He shall be released forthwith if not required to be detained in any other case. The conviction and sentence of the rest of the appellants under section 148, P.P.C. is set aside. They are acquitted of this charge. The conviction of Nazeer Ahmad alias Kudda under section 302, P.P.C. for the murder of Muhammad Saleem is maintained. Since Nazeer Ahmad alias Kudda had not injured the P.Ws. therefore. his conviction under section 307/149 P.P.C. is set aside and he is acquitted of this charge. The convictions of Gulzar, Mukhtiar and Muhammad Yaqoob under sections 302/149 and 307/149, P.P.C. are set aside and instead they are convicted under section 324, P.P.C. The conviction and sentence of Nazeer Ahmad alias Kudda under section

304. P.P.C. for the murder of Muhammad Siddique his co‑accused is maintained.

22. This brings us to the question of sentence. We have found Nazeer Ahmad alias Kudda guilty of the murder of Muhammad Saleem deceased. We do not see any extenuating circumstances in his favour for lesser penalty. The sentence of death awarded to him by the trial Court is confirmed. The sentence awarded to him under section 304, P.P.C. for the causing death of Muhammad Siddique co‑accused is also maintained. The fine awarded to him under sections 302 and 304, P.P.C. or imprisonment in default thereof are maintained. It is directed that the fine imposed on him, if recovered, be paid to the legal heirs of Muhammad Saleem deceased as compensation under section 544‑A, Cr.P.C. Since Mukhtiar Ahmad, Gulzar and Muhammad Yaqoob have remained in jail for considerable time as under‑trial prisoners and convicts as well, therefore, the sentence of imprisonment already undergone by them would meet the case. They are already on bail. They stand discharged of bail bonds. S. A. Death sentence confirmed.