CH. IJAZ AHMED, J.--- The brief facts out of which the present appeal arises are as follows as mentioned in para.2 of the impugned judgment:-- "Facts of the case are that a case F.I.R. No,191 of 1986 (Exh.P.D.) dated 30-7-1986 was registered under sections 302/ 307/34, P.P.C. At Police Station Saddar Kehror Pacca upon the statement of one Muhammad Akram to the effect that on 29-7-1986 the main electric wire supplying energy to the house of the complainant and one Razzaq, his neighbourer, was burnt. On the day of occurrence at about 4-00 p.m. Abdul Razzaq got his connection restored but the connection of the complainant was disconnected. On this issue, a dispute between Muhammad Mukhtar (deceased) brother of the complainant and Abdul Razzaq had arisen. At their altercation, Bilal son of Badar Din aged 15/16 years had also attracted at the spot. In the meanwhile, brick-batting between both the parties started and a brick bat also hit on the head of Muhammad Bilal. Muhammad Bilal was taken to his house by his relative Liaqat son of Gul Din. At about 6-45 p.m. Mukhtar (deceased) along with Muhammad Akram (complainant) and Muhammad Sharif P.W. Was standing in the street in front of the door of his house. In the meanwhile, Muhammad Asghar, Muhammad Yousaf appellants while armed with Chhuris, whereas Muhammad Ghauri appellant while empty-handed came at the place of occurrence. Muhammad Asghar appellant raised a Lalkara that they would teach a lesson for hitting a piece of brick on the head of Muhammad Bilal. Muhammad Asghar appellant inflicted a Chhuri blow which landed in the right side of the abdomen of Muhammad Mukhtar (deceased), whereafter Muhammad Yousaf appellant also inflicted a Chhuri blow on the left buttock of Muhammad Mukhtar (deceased). Muhammad Ghauri appellant held Muhammad Mukhtar (deceased) in a Japha. On hearing alarm Muhammad Usman, P.W.4, and Muhammad Saleem (P.W.6) younger brother of the complainant were also attracted at the spot and witnessed the occurrence. It was further alleged that Muhammad Saleem tried to intervene but Muhammad Ghauri appellant twisted his left arm. Mukhtar (deceased) after receiving these injuries fell down whereafter all the appellants fled away from the scene of crime towards their houses. The complainant and Muhammad Sharif took Mukhtar to the hospital in an injured condition where he was medically examined. The motive behind this murder as alleged in the F.I.R. And the complaint, Exh.P.F. Was that the appellants in furtherance of their common intention had killed Mukhtar (deceased) on account of a brick-bat injury on the head of Muhammad Bilal.
This case was investigated by different Police Officers and finally it was opined that Muhammad Asghar and Muhammad Yousaf were innocent and the actual culprit was Muhammad Ghauri appellant thus, Muhammad Yousaf and Muhammad Asghar were placed in Column No,2 and the challan was submitted. The complainant being not satisfied with the investigation filed a private complaint, Exh.P.F. During the trial, complainant party produced eight witnesses in support of their stand."
Respondents Nos.2 and 3 were convicted and sentenced in a complaint case along with co- accused Muhammad Asghar by Additional Sessions Judge, Lodhran vide its judgment dated 14-6- 1994 as under:-- Name of accused Under section Sentence Muhammad Yousaf, - respondent No,2.
Muhammad Ghauri, respondent No,3 Muhammad Asghar302/34, P.P.C. Life imprisonment with a fine of Rs,50,000 each and in case of default of payment of fine they shall further undergo R.I. For two years each.
Compensation under section 544-A, Cr.P.C. Of Rs,50,000 to legal heirs of Muhammad Mukhtar, deceased. In case of default they have to undergo imprisonment for six months each.
Respondents Nos.2 and 3 along with Muhammad Asghar being aggrieved filed Criminal Appeal No,115 of 1994 in the Lahore High Court, Multan Bench whereas appellant/complainant filed criminal revision under section 439 read with section 435, Cr.P.C. For enhancement of sentence against respondents Nos.2 and 3 and convict Muhammad Asghar in the Lahore High Court Multan Bench. It is pertinent to mention here that during the pendency of the appeal of the respondents along with their co accused Muhammad Asghar an application was filed by appellant and Muhammad Asghar for effecting compromise with the legal heirs of the deceased which was allowed by the learned High Court vide its order dated 20-8-1996. Consequently their co-accused Muhammad Asghar was acquitted from the charge. Learned High Court accepted the appeal of the respondent No,3 Muhammad Ghauri and he was acquitted from the charge whereas conviction of Muhammad Yousaf, respondent under section 302/34, P.P.C. Was set aside and he was convicted under section 324, P.P.C. And awarded sentence to imprisonment for a period already undergone by him but his conviction for compensation to the legal heirs of Muhammad Mukhtar deceased was upheld vide impugned judgment dated 12-10-2000. Appellant being aggrieved filed Criminal Petition No,476/L of 2000 before this Court in which leave was granted on 18-4-2001 in the following term:-- "We have gone through the judgment impugned with the help of learned counsel for the petitioner and found that the only ground on which section 34, P.P.C. Was not applied was that it might have been a case of sudden flare up.
We grant leave to appeal to consider that in the presence of positive evidence, can a judgment be given on conjectures."
2. Learned counsel of the appellant submits that F.I.R. Was lodged at Police Station Saddar Kehror Pacca on 30-7-1986 at 8-45. p.m. Whereas the occurrence took place on the said date at 6-45 p.m. Local Police could not investigate the matter fairly and justly and in fact investigated the matter under the influence of Parliamentary Secretary Muhammad Siddiq Kanju, MNA. The investigation was transferred from one Investigating Officer to another seven times under the influence of the local politician. Consequently appellant was constrained to file a complaint against the accused persons in the Court of Sessions Judge, Multan under section 302/34, P.P.C. On 31-8-1987. Appellant has produced 8 witnesses and 23 police officials were also appeared as Court-witnesses who had investigated the matter or dealt with the case in question. Learned trial Court after proper appreciation of evidence had convicted the accused persons vide its judgment dated 14-6-1994 whereas learned High Court erred in law to convict the respondent No,2 under section 324, P.P.C. Instead of section 302/34, P.P.C. Inspite of the fact that incident had taken place in two parts. The dispute arose between the parties on the day of occurrence at the spur of moment on account of disconnection of electricity connection of the complainant and restoration of the electric connection of one Razzaq as mentioned above. Respondents along with their co- accused went away and thereafter they had come back after two and half hours with their respective weapons and committed the offence in question. Therefore, learned High Court had erred in law to convict respondent No,2 under section 324 instead of section 302/34, P.P.C. Merely on the ground that incident took place all of a sudden.
3. Learned counsel of the respondents has supported the impugned judgment. He further submits that appellant had failed to prove on record that local police had investigated the matter under the influence of local MNA. He further urges that learned High Court had rightly come to the conclusion that incident took place on the spur of moment, therefore, section 34, P.P.C. Was not attracted, hence, the respondent No,2 was rightly convicted qua his individual act under section 324, P.P.C.
4. We have considered the submissions made by learned counsel for the parties and have also perused the record. It is admitted fact that respondent No,2 along with his co-convict came at the spot along with their weapons. Muhammad Asghar inflicted fatal injury to Mukhtar deceased whereas Muhammad Yousif also inflicted injury on the buttock of deceased Mukhtar. It is also admitted fact that deceased had died on account of the aforesaid injuries. It is also admitted fact that Muhammad. Asghar principal accused was acquitted by the learned High Court as mentioned above in view of compromise arrived at between the legal heirs of the deceased and Muhammad Asghar meaning thereby he had accepted his guilt whereas respondent No,3 was acquitted by the learned High Court as he did-not inflict any injury to the deceased as he was empty-handed and the role was attributed to him was that he held Mukhtar deceased in a "Jappha". Therefore, he was acquitted by the learned High Court by giving him benefit of doubt. It is a settled law that there are different parameters and principles to reappraise the evidence qua conviction awarded by the Courts below to the convict and acquittal of the convict by the learned High Court or acquittal by the trial Court as law laid down by this Court in Ghulam Sakindar's case PLD 1985 SC 11. Keeping in view the principle laid down in the aforesaid case appeal to the extent of respondent namely Muhammad Ghauri is dismissed. It is settled law that section 34, P.P.C. Is applicable to share and knowledge as well as intention. See Inayat's case PLD 1961 Lah.
195. It is a settled law that the ingredients of section 34, P.P.C. Embodies his participation in some action with the common intention of committing a crime, once such participation is established, section 34 is at once attracted. See Shahadat khan's case. PLD 1969 SC 158, J.M. Desai's case AIR 1960 SC 889, Banwarilal's case AIR 1956 All. 341, Majeed's case 1971 SCM R 693, Imam Bakhsh's case PLD 1983 SC 35. It is an admitted fact that accused party had come at the spot along with their respective weapons. The respondent No,2 and principal accused Muhammad Asghar had inflicted injuries to the deceased with their respective weapons, therefore, section 34 is attracted in the case in hand in all respects. See Amir's case 1987 SCM R 270 and Mahbub Shah's case AIR 1945 PC 118. The learned High Court erred in law to decide the case on wrong premises without adverting to the ingredients of section 34, P.P.C. And the facts of the case in hand and the law laid down by this Court in various pronouncements. See Hayat's case PLD 1957 SC (Pak.).
207. It IE is a settled law that in order to determine the intention of a person qua the commission of offence, it is very rare phenomenon that one can expect to find positive affirmative evidence, generally speaking, the F intention is to be gathered from the conduct of the person and the attending circumstances. See Bahar's case PLD 1954 FC 77. The evidence on record in the case in hand clearly depicts that all the accused came fully prepared and that common intention to take the revenge from the deceased. Therefore, they were held vicariously liable for the murder of Mukhtar deceased. See Seraj Mia's case 1969 SCM R 490, Muhammad Arshad's case PLD 1996 SC 122, Muhammad Siddiqui's case 1993 SCM R 2114 and Khushi Muhammad's case 1969 SCM R 599.
5. In the interest of justice and fair play, we have also re-examined the evidence with the assistance of the learned counsel for the parties. It is an admitted fact that incident took place on 30-7-1986 and the F.I.R. Was lodged on the same day promptly. The investigating agency has not investigated the matter fairly and justly under the influence of the local MNA as mentioned above and the appellant was constrained to file a complaint against the respondents 2 and 3 along with their co-accused before the Sessions Judge concerned on 31-8-1987. It is an admitted fact that incident took place initially all of sudden on account of minor dispute of electric connection and thereafter deceased was inflicted injuries by the respondent No,2 and his acquitted co-accused Muhammad Asghar with their weapons of offence (Chhuris). The other attending circumstances of the case in hand, we are of the view that High Court was erred in law to convict the respondent No,2 under section 324, P.P.C. In fact ingredients of unamended section 304, Part-II P.P.C. Are attracted in all force in the case in hand in view of overall assessment of the evidence on record.
Therefore, respondent No,2 is convicted and sentenced under section 304 Part-II of P.P.C. And sentenced to seven yearsR.I. Without compensation as the respondent No,2 had already paid the compensation to the legal heirs of deceased as awarded by the trial Court and upheld by the learned High Court in the impugned judgment.
6. In view of what has been discussed above, appeal is allowed in terms of the short order, which is to the following effect:-- "Arguments heard. For detailed reasons to be given later, the appeal is accepted, the impugned judgment, dated 12-10-2000 of the Lahore High Court is set aside and respondent No,2 Muhammad Yousaf is hereby held guilty of offence under section 304(2)/34 (old) P.P.C. And sentenced to rigorous imprisonment for a period of seven years. He was present in Court but slipped away before announcement of order.
Learned Sessions Judge, Lodhran is directed to cause the arrest of Muhammad Yousaf convict by coercive means and to send him to jail for serving out the sentence and also submit the report of compliance to the Registrar of this Court."