' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,265 of 2005 (Habib Ahmad and others v. The State); Criminal Appeal No,202 of 2005 (Iftikhar Ahmad and others v. The State); Criminal Appeal No,262 of 2005 (Rana Muhammad Saleem Akhtar v. Muhammad Javaid and others) and Criminal Miscellaneous No,632-M/08 (Rana Saleem Akhtar v. Anees Ahmad and others), as they arise out of the same judgment dated 13-1-2005 passed by the learned Additional Sessions Judge, Faisalabad, whereby, appellants were convicted and sentenced as under:-- "(i) Under Section 302(b) 149 PPC: All the four appellants, namely, Habib Ahmad, Anees Ahmad, Shahzad @ Chinda and Iftikhar Ahmad were sentenced to imprisonment for life each with a further direction to pay a compensation of Rs,1,00,000 as provided under section 544-A Cr.P.C. To the legal heirs of the deceased in default whereof to further undergo six months SI each;
(ii) Under Section 148 PPC: All the four appellants, namely, Habib Ahmad, Anees Ahmad, Shahzad @ Chinda and Iftikhar Ahmad, were sentenced to two years' RI each;
(iii) Under Sections 324/149 PPC: Three appellants, namely, Habib Ahmad, Shahzad @ Chinda and Iftikhar Ahmad were sentenced to ten years' RI each with a further direction to pay Rs,50,000 to Rana Muhammad Saleem Akhtar complainant/P.W.11, Shahid Saleem/P.W.12, Tahir Saleem/P.W.13 and Iftikhar Ahmad/P.W.14 as a compensation in default whereof to further undergo three months'
S.I. Each;
(iv) Under Sections 337-F(iii)/149 PPC: Three appellants, namely, Habib Ahmad, Shahzad @ Chinda and Iftikhar were sentenced to three years RI each with a further direction to pay Rs,10,000 each to Rana Muhammad Saleem Akhtar complainant/PW11, Shahid Saleem/PW12, Tahir Saleem/PW13 and Iftikhar Ahmad/PW14 as Daman.
Benefit of section 382-B Cr.P.C. Was extended to all the appellants. Muhammad Javaid accused was, however, given benefit of doubt and acquitted from the case while Attique accused was declared as a Proclaimed Offender and perpetual warrants of arrest were issued against him.
2. Brief facts of the case, as given by Rana Muhammad Saleem Akhtar complainant(PW11) in the FIR(Exh.PB/1) are that he was a resident of Chak No,75/B and was a practising lawyer of Faisalabad District Courts. It was stated in the FIR that on 2-12-2003 at about 8.00/8.30 p.m., when he was present in his house, he received an information that Habib, Attique, Anees, Iftikhar @ Nanha, Javaid and Chhinda, while armed with firearms, came and asked to Muhammad Sharif (PW15), a real elder brother of the complainant, that the agricultural land be transferred in the name of Attique, otherwise he will be killed. It was further stated in the FIR by the complainant that he, on the receipt of the said information, started to go towards the house of his brother while his son Tariq Saleem deceased followed him. According to the complainant when they reached near the house of Iftikhar @ Nanha and Javaid, bulb was lit outside their house, Habib alongwith aforesaid accused persons raised a Lalkara by coming out of the house of the said Iftikhar that Rana Muhammad Saleem Akhtar complainant (PW11) be not allowed to escape and made a fire with his .12 bore gun which landed at both knees of the complainant. As per FIR, Tariq Saleem ran backward when Attique, who was armed with .12 bore repeater, made two fires which landed at the back of chest left side and arm of Tariq Saleem who fell down. It was averred in the FIR that the complainant moved ahead and then Chinda, who was armed with a carbine, made fires which landed at the Dola of his left arm and, in the meanwhile, after hearing the voice of firing, Shahid Saleem and Tahir Saleem PWs, both sons of the complainant, reached at the spot when Chinda made a fire with a carbine which landed at the right thigh and right arm of Shahid Saleem. It was further averred in the FIR that thereafter Iftikhar @ Nanha made a fire with .12 bore gun which landed at the left thigh and Dola of left arm of Shahid Iftikhar and the second fire made by him landed at the left arm and back of belly of left side of Shahid Saleem while Anees, who was armed with a carbine, made a fire, which landed at the front of chest of left side of Tahir Saleem. The complainant further stated in the FIR that when Iftikhar PW and Akmal(given up PW) stepped forward to refrain the accused from making firing, Javaid accused made a fire with .12 bore gun which hit at the right shin of Iftikhar while Anees again fired which landed at the left shin of Akmal.
As per complainant, then his wife Mst.Akhtar Saleem (given up PW), after hearing voice of firing, reached at the spot upon whom Habib made a fire with .12 bore gun which landed at her belly and in consequence of the said firing a large number of inhabitants of the village gathered at the spot while the occurrence in question was witnessed by Akmal and Iftikhar. It was alleged in the FIR that the complainant and others were going to Allied Hospital for the treatment of the injured persons when complainant's son Tariq Saleem succumbed to the said injuries. The motive as stated in the FIR was that Attique (PO) developed illicit relations with Mst. Kausar, a daughter of Sharif PW15, who (Muhammad Sharif), in order to save his honour, performed her Nikah with the said Attique who made demand transfer of Sharif's land in his name but the said Sharif was not ready to do so and the complainant also forbade his said brother from alienating any property in the name of Attique
(PO) who bore a grudge in his mind and caused the above said loss to the complainant party.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 16 PWs during the trial while statement of Abdullah Khalid SP (Investigation) Faisalabad was recorded as DWI. The appellants/accused were examined under section 342 Cr.P.C. They opted not to depose on Oath as required under section 340(2) Cr.P.C. Therefore, the learned trial Court convicted and sentenced the appellants as detailed above.
5. Barrister Salman Safdar, Advocate for appellants, namely, Habib Ahmad and Anees Ahmad (in CrI.A.No,265 of 2005) contends that the learned trial Court has failed to sift grain from the chaff, so, has fell in error in convicting the appellants under section 302/149 PPC as it was the duty of the prosecution to prove its case against the appellants beyond a reasonable doubt; that the FIR, which was drafted by an Advocate, was recorded with an inordinate and unexplained delay; that even the postmortem examination was delayed, as the same was conducted on the next morning at about 11.30 a.m.; that it is humanly not possible to describe the exact places where the bullets hit; that the prosecution did not approach the Court with clean hands; that the criminal scene was deliberately and intentionally disturbed to destroy the evidence of aggression; that false implication of the appellants and widening net by the complainant to involve maximum members of the family cannot be ruled out; that there was no occasion for the complainant party to be present at Sharif's house; that the prosecution evidence is silent qua the source of information imparted to the complainant; that Attique (PO) and other accused were present in the house of Sharif; that the FIR by itself is indicative of the fact that the complainant party had the grievance to launch attack; that the complainant party was the aggressor one as they were annoyed, unhappy and launched the murderous assault.
6. As far as ocular account is concerned, learned counsel contends that the prosecution witnesses are interested and related having a motive to falsely implicate the appellants in the case in hand; that the motive is always a doubled edged weapon; that the complainant had a greedy eye at the property of Sharif and that the prosecution was bound to prove the motive part of the prosecution case to the extent of the appellants but failed. Learned counsel has explained that Shahid Saleem PW12 though claims to be an injured eye-witness but he is an interested and inimical witness towards the appellants, his statement under section 161 Cr.P.C. Was on record, he was confronted with it who made dishonest improvements coupled with the fact that mere presence of injuries on his person does not mean that he was a truthful witness. He has further submitted that Tahir Saleem PW13, who is another alleged injured eyewitness, was inimical towards the appellants and gave a tutored statement. So far as Muhammad Sharif PW15 is concerned, learned counsel argued that he is neither injured nor his name has been cited in the FIR as an eye-witness; that the said Muhammad Sharif's first statement, even as per prosecution, was recorded on 8-1-2004 (Exh.DD) which is different from the statement, which he made before the Court.
7. Learned counsel for the said appellants has further contended that the injuries are with scattered pellets which shows that none of those injuries were caused from the close range as the same were the result of stray pallets which means that the injured persons were not the target as mentioned in the FIR and that as no crime empty was recovered from the spot, therefore, recovery of weapons is of no avail to the prosecution.
8. Learned counsel has added that although opinion of the Investigating Officer is not binding on the Courts but the same can be taken into consideration as to who was the aggressor one as the said Investigating Officer has opined that the complainant party was the aggressor one and the occurrence did not take place as stated by the complainant side. Further added that if both the versions i,e, the prosecution version and the version taken by the defence, are considered in juxtaposition then the version put forth by the appellants is believable.
9. So far as motive is concerned, learned counsel has submitted that the motive set up by the prosecution qua illicit relations of Attique PO with a daughter of Sharif is of no avail to the prosecution to the extent of the appellants because after marriage of the said Attique it becomes meaningless and that even otherwise, for the sake of arguments, Attique was the expected sole beneficiary of the property in question.
10. Learned counsel, while advancing his arguments, also contends that it was a night time occurrence, presence of light at the spot was dishonestly shown as it does not find mention in the FIR which shows that it was a dishonest improvement coupled with the fact that even venue of the scene was changed by the Investigating Officer at the instructions of the complainant.
11. Learned counsel for the said appellants, while concluding his submissions, has contended that as no specific injury is attributed to appellants Habib Ahmad and Anees Ahmad, as there are no marks of bullets in the site plan, as both the appellants do not reside at the place of occurrence and as they were not present at the spot, therefore, they are entitled to acquittal.
12. Mr.Ali Hussain Mohsin, Advocate for appellants, namely, Shahzad @ Chinda and Iftikhar Ahmad (in CrI.A.No,202 of 2005) contends that so far these appellants are concerned, there are serious contradictions in the statements of the Prosecution Witnesses; that in the examination-in-chief, Rana Muhammad Saleem Akhtar, complainant (PW11) stated that the police reached the Allied Hospital where he drafted written application and signed the same but in the cross-examination he has stated that Exh.PB was written on his dictation by Rana Aftab, Advocate; that the complainant did not state in his application about his presence in the Allied Hospital which factors go to prove that there are two FIRs in this case; that a net has been widened to involve maximum number of persons of one family and that as the false implication of the appellants cannot be ruled out, therefore, they are entitled to acquittal.
13. Learned counsel further contends that from the circumstances narrated by the PWs, it is a case of sudden fight and not a case of common object; that it is a cardinal principle of criminal dispensation of justice that every individual is responsible for his own act and cannot be held responsible for the acts of others.
14. Learned counsel added that accused Javaid, who was attributed specific role and was found innocent during the course of investigation, was acquitted from the charge by the learned trial court which shows that he was falsely implicated in the case, therefore, the appellants are also entitled to acquittal as every doubt is to be resolved in favour of the accused.
15. Conversely, the learned Deputy Prosecutor General for the State, assisted by the learned counsel for the complainant, contends that it is a case of promptly lodged FIR in as much as the occurrence took place at about 8:30 p.m. On 2-12-2003 while the matter was reported to the police at about 10:15 p.m. On the same night though the distance between the place of occurrence and the hospital was about 22 kilometers; that there being five injured persons and one deceased, the first priority of the victim party was to save the lives of the injured and not to run to the police station; that the FIR having been lodged with promptitude, there was no question of due deliberation and consultation; that the motive as alleged in the FIR was reiterated by PW11 and PW14 in their statements under section 161 Cr.P.C. Before the police as also before the learned trial Court; that the ocular account in this case is corroborated by the medical evidence and even not a single question was put to the doctor that the injuries received by the injured PWs were self- inflicted or the result of fabrication; that four injured witnesses have appeared before the learned trial Court and, being star witnesses of the occurrence, their testimony cannot be brushed aside; that both the parties were known to each other, so, there was no question of mistaken identity; that contention of the learned counsel for the appellants that the complainant party was the aggressor one, has no force because if this was the position then the complainant party should have not gone empty handed; that the common object of the appellants is also established; that the appellants are named in the FIR with specific role; that the natural eye-witness account was furnished by the prosecution and despite cross-examination, the defence could not shake their credibility; that the prosecution has proved its case beyond any shadow of doubt against the appellants and that the convictions and sentences awarded to the appellants by the learned trial Court be maintained.
16. So far as Criminal Appeal No,262 of 05 filed by the complainant against the acquittal of Muhammad Javaid is concerned, Mr. Munir Ahmad Bhatti, Advocate submits that he was acquitted by the learned trial Court merely on the basis of opinion of the Investigating Officer which, according to him, is illegal; that no DW was produced by Muhammad Javed in support of his plea; that the respondent Javaid was named in the FIR with specific role of causing injuries on the person of PW14 who appeared before the learned trial Court and categorically stated that he was fired at by Javaid respondent.
17. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
18. The prosecution case is that on the fateful day and time, the appellants, alongwith Javaid acquitted co-accused and Attique PO, while armed with firearms, attacked the complainant party and killed complainant's son, Tariq Saleem while caused firearm injuries to six persons, namely, Rana Muhammad Saleem Akhtar (PW11), Shahid Saleem (PW12), Tahir Saleem (PW13), Iftikhar Ahmad (PW14), Mst. Akhtar Saleem (given up) and Akmal (given up), whereas, though all the appellants in their statements recorded under section 342 Cr.P.C. Have simply denied the allegations. But, the suggestions were put on their behalf by their learned counsel to the complainant and other injured-PWs that they were injured by the 'firing of Attique (PO) who fired in self defence. It has also been suggested to the Prosecution Witnesses, namely, Shahid Saleem (PW12), Tahir Saleem (PW13) and Muhammad Sharif (PW14) that deceased Tariq Saleem died because of the firing of his brother Kaka as fire hit him accidentally.
19. While considering the case of the prosecution, admittedly, one person, namely, Tariq Saleem, lost his life and six persons, namely, Rana Muhammad Saleem Akhtar (PW11), Shahid Saleem (PW 12), Tahir Saleem (PW13), Iftikhar Ahmad (PW14), Mst. Akhtar Saleem (given up) and Akmal (given up) received injuries, amongst whom, four appeared before the learned trial Court and fully supported the prosecution case coupled with the fact that the ocular account in this case is corroborated by the medical evidence furnished by Dr. Mukhtar Ahmad (PW7) regarding injuries on the persons of four injured PWs, namely, Rana Muhammad Saleem Akhtar (PW11), Shahid Saleem (PW12), Tahir Saleem (PW13) and Iftikhar Ahmad (PW14) while by Dr. Altaf Pervez Qasim (PW8) regarding injuries on the person of deceased Tariq Saleem, who conducted his postmortem examination. More so, presence of the injured persons at the spot and the place of incident has not been disputed although the accused side has a different version qua the instant incident.
20. Apart from above, we have noted that the FIR in the instant case was promptly lodged as the statement of the complainant was recorded at 10:15 p.m. in the hospital which was at the distance of about 22 kilometers from the police station whereas the occurrence took place at about 8:30 p.m., therefore, it cannot be said that there was any inordinate or unexplained delay in lodging the FIR coupled with the fact that even delay, if any, in lodging the FIR, in such like situations, has no material effects on the merits of the case if the same is otherwise proved through the confidence inspiring ocular account.
21. Now we would like to discuss the version of the appellants to see whether the appellants succeeded to substantiate the said version or not. In the cross-examination, suggestions were put to the complainant as well as the injured eye-witnesses that it was Attique (PO) who caused injuries to the injured. A suggestion was also put to Shahid Saleem (PW12), Tahir Saleem (PW13) and Iftikhar Ahmad (PW14) that the deceased Tariq Saleem died because of the firing of his own brother, namely, Kaka as his fire hit the deceased accidentally. But none of the appellant took this plea/version in his statement recorded under section 342 Cr.P.C. And the defence has relied upon the statement of Abdullah Khalid, SP Investigation (DWI), who opined that it was the complainant party who was the aggressor one but, surprisingly, the defence has not produced any witness to substantiate this version coupled with the fact that even otherwise opinion of police is inadmissible in evidence, so, statement of the said D.W. Is of no avail to the appellants. More so, none from the appellants' side, received any injury during the course of the instant occurrence.
22. Therefore, if both the versions i,e, the prosecution version and the version suggested by the defence, are taken into juxtaposition then the prosecution case appears to be more plausible and convincing.
23. Now, the question remains whether the provisions of sections 148 and 149 P.P.C. Are applicable in this case or every accused is responsible for the act/offence committed by him. For convenience, sections 148 and 149 PPC are reproduced below:-- "148 "Rioting armed with deadly weapon.---Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
"149 Every member of unlawful assembly guilty of offence committed in prosecution of common object.--- 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 knew 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".
24. The provisions of section 148 P.P.C. Can be invoked if the accused is guilty of rioting, as defined under section 146 P.P.C., which defines rioting as use of force or violence by an unlawful assembly or any member thereof in prosecution of the common object of such assembly (unlawful assembly). The unlawful assembly is defined in section 141 P.P.C. Which reads as under:-- "141. Unlawful assembly.--- An assembly of five or more persons is designated an 'unlawful assembly' if the common object of the persons composing that assembly is:-- ' First. To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or Second. To resist the execution of any law, or of any legal process; or Third. To commit any mischief or criminal trespass, or other offence; or Fourth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly".
25. Therefore, most important ingredients of an offence under section 148 P.P.C. Are:--
(a) that the accused shall be a member of an unlawful assembly as defined under section 141 P.P.C.;
(b) that the accused shall be armed with a deadly weapon or anything which, if used as a weapon of offence, is likely to cause death;
(c) that the members of an unlawful assembly must have a common object;
(d) that the accused is found guilty of rioting.
' So, if all or any of the above mentioned ingredients are missing, one cannot be convicted under section 148 P.P.C.
26. For invoking the provisions of section 149 P.P.C., the prosecution must prove, not from conjectures and speculations, but through tangible and sufficient evidence that the offence was committed in prosecution of the common object of the unlawful assembly. In this respect, reliance is placed on a judgment of the Honorable Supreme Court of Pakistan reported as Muhammad Altaf and 5 others vs. The State 2002 SCM R 189.
27. Now, in this context, it is to be seen whether in the instant case, sections 148 and 149 P.P.C. Are applicable. In this regard, the statement of Muhammad Sharif (PW15) is very relevant. In his statement before the Court, he has almost supported the case of the prosecution as set out in the FIR (Exh.PB/1). But he was duly confronted with his statement recorded by the police during the course of investigation (Exh.D.D). The said statement is different from the statement which he made before the court. In this statement (Exh.DD) he has stated that on the day of occurrence, he was called by Habib, Arshad and Iftikhar in the house of Arshad and asked to transfer his land in favour of Attique (P.0) but he did not agree. On having come to know about the said factum, his brother Rana Muhammad Saleem Akhtar (PW11) and nephew Tahir Saleem (deceased) also came there. The other sons of Saleem Akhtar, namely, Tariq Saleem, Shahid Saleem, Kamran Saleem and Imran Saleem alongwith Iftikhar Ahmad and Akmal also arrived there, where, hot words were exchanged with Attique (P.0) and a quarrel took place and Attique etc. Resorted to firing which resulted into the death of Tariq Saleem and injuries to the others.
28. It is pertinent to mention here that Muhammad Sharif, in his statement before the court, has also stated (in the examination-in-chief) that his younger brother Rana Saleem (PW11) was annoyed with him for the marriage of his daughter with Attique (P.0) and had no visiting terms with his family. In this situation, it is not probable that the complainant would try to go to the house of his brother Muhammad Sharif, as stated by him and other PWs.
29. The statement of Muhammad Sharif before the police (Exh.D.D), the motive set-out by the prosecution, the nature of injuries sustained by the injured and other circumstances of the case suggest that it was a fight which sparked suddenly and as such the provisions of sections 148 and 149 P.P.C. Are not attracted and each of the appellants is responsible for his individual act.
30. Since none of the appellants has caused any injury to the F deceased, therefore, the conviction and sentence of all the four appellants, namely, Habib Ahmad, Anees Ahmad, Shahzad @ Chinda and Iftikhar Ahmad, recorded under section 302(b)1149 P.P.C., for the murder of Tariq Saleem, is set- aside and they are acquitted from the said charge. Their conviction and sentence recorded under section 148 P.P.C. Is also set aside and they are also acquitted from the said charge.
31. However, the conviction and sentence of the three appellants, namely, Habib Ahmad, Shahzad @ Chinda and Iftikhar Ahmad under section 324 P.P.C. And for the injuries caused by them to the respective injured persons are maintained. Taking into consideration the agony of the appellants to face the trial and then pendency of appeals coupled with their incarceration for the last about six years and the nature of injuries caused by them, their sentence under section 324 P.P.C., already served, is treated to be sufficient to meet the ends of justice but the amount of compensation and imprisonment in its default is maintained. However, the sentence awarded to the said appellants under section 337-F(iii) P.P.C. For the injuries caused by them to the respective injured PWs and G the amount of Daman is also maintained. All the sentences, however, shall run concurrently.
Criminal Appeal No,265 of 2005 (Habib Ahmad etc. v. The State) and Criminal Appeal No,202 of 2005 (Iftikhar Ahmad etc. v. The State) are partly allowed and disposed of in terms noted above.
32. So far as Criminal Appeal No,262 of 2005 (Rana Muhammad Saleem Akhtar vs. Muhammad Javaid and others) is concerned, we have noted that the learned trial Court has rightly acquitted him from the case as he was found not to be present at the spot and the prosecution failed to prove its case against him during the trial beyond any shadow of doubt, so, we do not find any reason to interfere with the said finding of acquittal rendered in favour of Javaid respondent, therefore, appeal filed against his acquittal is dismissed having no merit.
33. So far as Crl.Misc.No,632-M of 2008 (Rana Saleem Akhtar v. Anees Ahmad and others) is concerned, it is barred by time for a period of more than three years for which delay no sufficient explanation/reason has been offered by the learned counsel for the petitioner. It is the settled law that in such like cases delay of each and every day has to be explained, therefore, this petition is dismissed on this score. Before parting with the judgment, we are inclined to observe that the observations made in this judgment shall not affect case of Attique (P.0), during his trial.