P L D 1976 Supreme Court 303 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑Khair Muhammad alias Khairoo appellant was tried by the Sessions Judge, Hazara, along with 10 other co -accused on charges under sections 148, 302/149, P. P. Q: for having committed the murders of Zakri and Badar Din in furtherance of the common object of the unlawful assembly. they were all convicted except Jana accused who was acquitted as his presence was held doubtful. For the murder of Zakri, deceased, Khair Muhammad alias Khairoo appellant was sentenced to death while Niaz, Razaq, Gulab, Allah Ditta, Dost Muhammad, Khani Zaman, Jafar and Jumma were sentenced to transportation for life each under section 302/149, P. P. C. For the murder of Badar Din deceased, Jumma accused was sentenced to death while Khairoo appellant, Niaz, Razaq, Gulab, Allah Ditta, Dost Muhammad, Dali, Khani Zaman and Jafar to transportation for life each under section 302/149, P. P. C. In addition to this all the convicts were sentenced to two years' R. I. each under section 148, P. P. C. and further six months' R. 1. each under section 323/149, P. P. C. Sentences of imprisonment were directed to run concurrently, of course to be operative in the case of Khairoo and Jumma only if their death sentences were not confirmed by the High Court. In appeal, however, the learned Judges of the Peshawar High Court came to the conclusion that the ingredients of the formation of unlawful assembly, rioting and community of unlawful object were not established so as to justify conviction under section 148, P. P. C. and the invocation of the principle of vicarious liability under section 149, P. P. C. Each convict was, therefore, held to be responsible for his individual act, besides certain other modifications in the judgment with which we are not concerned. The only relevant part, however, is that Khair Muhammad appellant was acquitted of the murder of Badar Din while the sentence of death awarded to him for the murder of Zakri was commuted to that of life imprisonment.

2. Leave was granted to consider as to whether the part ascribed to Khair Muhammad appellant of giving the fatal injury to Zakri deceased who was otherwise, found to have been surrounded and assaulted by three other accused besides the appellant, stood fully established by evidence on the record justifying his conviction particularly when no specific injury was attributed to him in the F. I. R. and the specification of his role was a subsequent improve ment by Mubarik (P. W. 10).

3. Since there is no appeal against the acquittal of the other co- accused, the limited scope of the controversy before us as brought out in the leave granting order has rendered the case quite simple. According to the version disclosed in the F. I. R. lodged by Arbi (P. W. 7), Mubarik alias Makha (P. W. 10) was suspected by Gulab one of the acquitted accused, of having set fire to the latter's haystack. A Jirga was convened to settle the matter which decided that if Gulab stated on oath in the mosque that Makha was responsible for the alleged arson, the latter shall be held responsible and the loss would be made good by Zakri who volunteered to do so. For the implementation of the decision the parties proceeded towards the mosque when Gulab suddenly staged a volte‑face and exhorted his companions to attack the members of the jirga whereupon Khair Muhammad appellant, Niaz, Razaq and Jafar all armed with sticks and hatchets attacked Zakri while Khani, Dittta, Dosa and Jumma attacked Badar Din deceased and Makha P. W. with sticks and stones.

4. Post‑mortem examination revealed the following injuries on the body of Zakri:‑ "(1) A lacerated wound over the left side of the scalp over the occipital area about 2' above and posterior to the left auricle (ear). It was about 1 x 1', bone deep, in size, (2) A lacerated wound over the right side of the scalp about 3" above the lateral angle of the right eye, being in size about 1 x 1" x skin deep. (3) Right eye was black. (4) A contused wound about 1" x x 1/8" over the middle of the bridge of the nose in oblique fashion. (5) A lacerated wound over the left side of neck about 2" above the middle of the left clavicle being 2 " x " and skin deep in size." , It would thus appear that injuries Nos. 1, 2 and 5 were lacerated wounds of which 1 and 2 were on the head while No. 5 was on the neck of Zakri deceased, all having been caused by blunt weapon.

5. In support of its case, the prosecution produced two eye‑witnesses, namely, Arbi (P. W. 7), the first informant and Mubarik alias Makha (P. W. 10) who were brother of Badar Din deceased. I have already referred to the relevant portion of the F. I. R. lodged by Arbi (P. W.) wherein he had not particularized the weapons wielded by the accused or the individual injuries caused by each including the appellant. At the trial, however, he specified the rote of the appellant, attributing to him the blow on the neck of Zakri with blunt side of the hatchet. He stated in the examination‑in‑chief as follows:‑ "On this Khairoo accused opened the attack and gave a hatchet blow with its blunt side on the left of the neck of Zakri deceased, followed by Niaz accused who gave six blows in all with a stick on both arms of the deceased, while Razaq and Jafar accused hurled stones on the chest of Zakri deceased which hit him in that region. As a consequence of these bloAs, Zakri decessed died on the spot." This position was reiterated by Arbi in cross‑examination in the following words:‑ "Khair Muhammad accused did not hit Zakri deceased on his head with hatchet. Khairoo gave hatchet blow from its reverse end on the left side of the neck of Zakri deceased. The right arm of Zakri deceased was fractured by Niaz accused, when he gave blows with a stick on his arms."

6. As would be apparent, this part of Arbi's statement besides being an improvement on the F. I. R. materially conflicts with the medical evidence reproduced earlier inasmuch as the total number of injuries allegedly received by Zakri far exceeds the number of injuries established by medical evidence, and no injury whatever was found to have been sustained by him on the arms not to speak of the fracture of the right arm as positively alleged. The second eye‑witness Mubarik (P. W. 10) also did not particularize the weapons or the injuries in his police statement. At the g trial, however, he observed as follows: "Khairoo accused initiated the attack and gave hatchet blows with its blunt side, on the head of Zakri deceased, followed by Niaz accused who gave stick blows on his back, head and arms, neck apart while Razaq and Jafar accused pelted stones, which hit Zakri deceased on the front part of his body " This was a clear improvement on his police statement Exh. DA, with which he was duly confronted during cross‑examination. He in‑vain chose to insist on the patent falsehood that he had specified in his police statement the seats of injuries and the weapons individually used by they accused. It appears that accepting the solitary statement of Mubarik (P. W 10) at the trial which as stated earlier, marked an improvement on his police statement and was also materially at variance with that of his brother Arbi (P. W. 7), the High Court held the appellant responsible for the fatal head injury of Zakri deceased and on that account burdened him with the exclusive responsibility for the murder of Zakri.

7. Having carefully examined the relevant evidence reproduced above in extenso, we find that there is no satisfactory proof of the appellant having given the fatal head injury to the deceased with the reverse end of the hatchet. As stated earlier, neither Arbi (P. W. 7) in the F. I. R nor Mubarik in his police statement particularized the weapons wielded or the injuries caused by the accused individually. Both in his examination‑in‑chief as also in cross‑examination, Arbi (P. W.) had categori cally stated that the appellant had given an injury on the neck of the deceased which corresponds to injury No. 5 not ascribed to any other accused. Since only one blow was consistently attributed to the appellant, in view of this positive assertion, there could be no question of his having given a second blow on the head of the deceased and yet the learned Judges of the High Court have chosen to base the finding on the statement of Mubarik at the trial, which is of patently doubtful credibility and conspicuously fails to satisfy the judicial conscience. In the circumstances, there was no firm basis or justification in law for the learned Judges of the High Court to burden the appellant with the responsibility of causing the fatal blow on the head of Zakrr deceased. At the most he would be responsible for causing hurt to the deceased on the neck punishable under section 323, P. P.C. with maximum sentence of one year. He has already undergone four year which is far in excess of the maximum that could be awarded to him. It is, therefore, directed that he may be released from jail forthwith, if not required in any other case. The appeal is partly accepted to this extent.

8. It appears to us and we say so with respect that but for the mistaken by the learned Judges of the High Court on the non‑application of section 34, P. P. C. the loss of two innocent lives would not have gone; unpunished. It is in evidence that while the parties were proceeding towards the mosque for the settlement of the dispute, on the oath of Gulab, the latter suddenly changed his mind and exhorted his companions to attack the members of the jirga. The exhortation was faithfully carried out by them resulting in the unfortunate death of Zakri and Badar Din deceased. It is not inconceivable that where several persons belonging to a single party are already present at the spot, they might suddenly develop common) intention or even common object at the spur of the moment and commit the illegal act in prosecution or furtherance thereof. In fact quite realistically such an eventuality has been clearly envisaged in the "Explanation" to section 141, P. P. C. which says that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. Reliance could also be placed in this regard on this Court's judgment in Mst. Hamida Bano v. Ashiq Hussain and others (PLD1963SC109). We are inclined to think that the circumstances of this case strongly suggest the sudden development of the community of intention between the accused if not community of an object so as to justify the application of section 34 P. P. C against the two sets of accused‑persons who separately attacked Zakari and Badar Din deceased. Since, however, as stated earlier, there is no appeal against acquittal before us, there is hardly any occasion or us to go further into this aspect of the matter. S. A. H. Order accordingly.