1. G. SAFDAR SHAH, J.--The six respondents herein (and seven others) were tried by the Additional Sessions Judge, Sheikhupura, under sections 302/149, 307/149, 302/109, and 148, P. P. C. For the double murder of Noor Muhammad and Sabir A.I and for causing injuries to the P. Ws. At the conclusion of the trial, the learned Additional Sessions Judge found the respondents guilty on all counts and accordingly sentenced Mahand Bakhsh, Ramzan and Shafi to death ; Nawab, Rehmat and Abdur Rashid to trans--portation for life and acquitted the other accused. Against the judgment of the learned Additional Sessions Judge, respondents herein filed appeals in the High Court, to which murder reference was also made by the learned Judge, whereas complainant Sadiq A.I filed Criminal Revision No. 154 of 1972 praying therein for the enhancement of the sentence of transportation for life awarded to Nawab, Rehmat and Rashid to death. By the impugned judgment, the appeals of the respondents and the said criminal revision application both were dismissed. But the learned Judges did not confirm the death sentences awarded to Mahand Bakhsh, Ramzan and Shafi by the learned trial Judge and the same was reduced to imprisonment for life "in view of the conflict between the oral and the medical testimony, it is difficult to attribute specifically any of the injuries to a particular appellant. Mahand Bakhsh appellant is stated to have fired twice, but five empties are linked with his gun. Rehmat son of Khuda Bakhsh is said to have fired one rifle shot but none of the injuries has been established to have been caused by that shot.
2. We are, therefore, of the view that the distinction of fatal and non-fatal injuries as drawn by the learned trial Court in awarding the sentence will not be a safe or proper criterion. This is a case where the fatal shots cannot be attributed to any of the appellants and they are all deserving of similar treatment. Since three of them have been awarded the sentence of imprisonment for life, it will be discriminating against the other three if their sentences of death are not reduced to one of imprison--ment of life".
3. Leave to appeal was granted to complainant Sadiq A.I by this Court, vide order dated November 11, 1975, to examine the propriety of the impugned judgment of the High Court reducing the death sentence awarded to Mahand Bakhsh, Ramzan and Shafi to that of life imprisonment, and it was directed that they shall not be released from jail until the disposal of the appeal.
4. The main contention on the basis of which the said leave was granted to Sadiq A.I was his grievance that once the High Court was satisfied that the respondents herein, in view of the unlawful assembly of which they were found guilty, had committed double murder, it was immaterial as to which one of them was actually responsible for causing fatal injuries to the deceased, and consequently all of them should have been awarded the death penalty. In other words it is the true scope and connotation of section 149, P. P. C. Which needs consideration in this case, and the same reads as under :- "149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly know to be likely to be committed in prosecution of that object, every person, who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
5. The plain language of this section would show that it deals with the liability of every member of an unlawful assembly if in -the prosecution of the common object of that assembly an offence is committed or such as the members of the assembly know to be likely to be committed in prosecution of the object. If these ingredients are proved then every member of the said assembly would be guilty of the said offence regardless of whatever role they had played in that connection.
6. The matter of sentence; however, has not been dealt with in the said section, nor indeed it would seem to fall within the scope of the unambiguous language in which the section is worded. The question of sentence has been dealt with in sections 3021 and 303, P. P. C. Which respectively say that whoever commits murder, shall be punished with death or imprisonment for life and that if being under sentence of imprisonment for life commits murder shall be punished with death. It would be seen that the Legislature, in the case of an accused who while serving the sentence of imprisonment for life commits murder has left no discretion with the Court. But in all other cases of murder, the Courts have given discretion to award to an accused the sentence of death or the sentence of imprisonment for life. It is true that the discretion in question has to be exercised according to the well-settled principles, but this much is clear that under section 302, P. P. C., the Legislature has in its wisdom left it to the discretion of the Courts to award to an accused found guilty of murder the sentence of death or the sentence for imprisonment for life.
7. It would thus be seen that the discretion of the Courts in a case covered by section 149, P. P. C.
8. Cannot be questioned, in view of the plain language of section 302, P. P. C. It should, therefore, be plain that the objection taken to the jurisdiction of the High Court that it had no discretion in the' matter under section 149, P. P. C. To reduce the sentence of death awarded to Mahand Bakhsh, Ramzan and Shafi to that of imprisonment for life is) misconceived.
9. The next question is if the High Court can be said to have exercised the said discretion arbitrarily or unseasonably. In this respect the reasoning of the High Court has been reproduced somewhere earlier. The main reasons which seem to have weighed with the High Court were that in view of the conflict between the oral and the medical testimony, it would be difficult to attribute specifically any of the injuries to a particular appellant. Mahand Bakhsh appellant is said to have fired twice, but five empties were linked with his gun. Rehmat son of Khuda Bakhsh is said to have fired one rifle shot but none of the injuries is said to have been caused by that shot. Therefore, the High Court concluded that this was a case where fatal shots cannot be attributed to any of the appellants and so they should all be, treated similarly.
10. Sheikh Riaz Ahmad, the learned Assistant Advocate-General has not questioned this finding of the High Court. In order to satisfy ourselves, we have gone through the evidence of the P. Ws. And the medical evidence and the same would seem to support the finding of the High Court. The further discrepancy of material nature which we have discovered from the evidence of the P. Ws. Is that all of them have, with slight variation, asserted that the respondents had fired at them from a distance of more than ten karams. But the medical evidence contradicts them. According to the medical evidence each one of the fire-arm injuries suffered by the two deceased and injured P. Ws.
11. Bore the marks of charring for which no satisfactory explanation has been furnished by the prosecution. In these circumstance, therefore, it cannot be said that the High Court has reduced the sentence of death awarded to Mahand Bakhsh, Ramzan and Shafi to that of imprisonment for life in a fanciful manner or in a manner which can be said to be arbitrary or unreasonable. This appeal, therefore, fails and is dismissed. In this view the respondents shall be released forthwith if they have already undergone their sentences in this case, and are not required in some other case.