' MUHAMMAD EJAZ SWATI, J.---Through Criminal Appeal No, 311 of 2009, the appellants have challenged the validity of the judgment dated 4th September, 2009 (hereinafter the "impugned judgment") passed by the learned Additional Sessions Judge, Killa Abdullah at Chaman (hereinafter the "trial Court") whereby appellants have been convicted under section 302(b), P.P.C.
And sentenced to suffer imprisonment for life with fine of Rs,50,000 each as compensation to be paid to the legal heirs of deceased Noor Muhammad and in default whereof to further suffer R.I for six months. The appellants were further convicted under section 337-F(i) (ii), P.P.C. And sentenced to pay Daman of Rs,10,000 each to each injured namely Haji Bahadur, Haji Lal Muhammad, Muhammad Ayub and Abdul Jabbar son of Haji Lalai.
' Whereas, the complainant Abdul Samad has filed the Criminal Revision Petition No, 11 of 2012 for enhancement of the sentence awarded to the appellants.
' Since both the matters arising out of the same judgment, therefore, are being disposed of by means of this common judgment.
2. The facts of the case arising out of the instant appeal are that on the report of Abdul Samad (complainant) an FIR No, 180 of 2008 dated 3rd September 2008 registered with Police Station Sadder, Chaman District Killa Abdullah under sections 302, 337-H(2), 337-AD, 147, 148 and 109, P.P.C., wherein the complainant alleged that on the said date he along with his brother namely Noor Muhammad and Noor Ali were going home from Bazar and when at about 7:50 p.m. Reached near the houses situated at Killi Jelani, the appellants stopped their way by parking a Datsun. When they asked the reason, they attacked upon them by starting firing with weapons. It is further alleged that in the meanwhile Haji Lalai, Bahadur, Ayub and Abdul Jabbar son of Lalai reached there.
' The accused persons also assaulted them. It was pointed out that the absconding accused Muhammad Hanif inflicted dagger blow upon Noor Muhammad, whereas the appellant Abdul Qadir caused injuries to Bahadur and Haji Lalai, whilst Abdul Jabbar son of Abdullah caused injuries to Abdul Jabbar son of Haji Lalai. The appellant Abdul Hadi caused injuries to Muhammad Noor and Muhammad Ayub, whereas, the other four persons were making firing. The victim Noor Muhammad succumbed to the injuries at the hospital.
3. At the trial, the prosecution examined P.W.1 Abdul Samad complainant, P-2 Abdul Pukkar, P.W.3 Muhammad Ayub, P.W.4 Noor Ali, P.W.5 Abdul Jabbar (injured), P.W.6 Shafqat Ullah, P.W.7 Haji Lal Muhammad, P.W.8 Bahadur (injured), P.W.9 Dr. Zia-ud-Din, P.W.10 Muhammad Ramzan ASI, P.W.11 Gul Muhammad ASI and P.W.12 Muhammad Abdullah.
4. When examined under section 342, Cr.P.C. The appellants denied the allegations of the prosecution. Both of them got recorded their statements under section 340 (2) Cr.P.C. And produced a copy of FIR No, 181 of 2008, site plan and charge as Ex . D/1-A , Ex. D/l-B and Exh. D/1-C .
5 The trial Court vide impugned judgment convicted and sentenced the appellants as mentioned hereinabove.
6. The learned counsel for the appellants contended that the complainant party were aggressors, as they came to the house of the appellants and made an attack, whereby the appellants had also received injuries; that no specific injury has been attributed to the appellants upon deceased Noor Muhammad and in absence of any common object, conviction and sentence of the appellants under section 302(b), P.P.C. Is unwarranted; that the prosecution witnesses only alleged causing injuries by the appellant Abdul Qadir to the injured Bahadur and in this respect too, the statements of the prosecution witnesses suffer from inter se contradictions and improvements; that no specific role has been attributed to the appellants; that no motive has been established, therefore, the question of common object and vicarious liability in the case was not existed, but the trial Court without adhering to the above aspect of the case passed the impugned judgment; that the prosecution through evidence has failed to establish the common object or vicarious liability, therefore, the findings of the trial Court suffer from misreading and non-reading of evidence.
' The learned Additional Prosecutor General assisted by the learned counsel for the complainant in rebuttal contended that the complainant along with his brother Noor Muhammad and Noor Ali were going towards their home, when the appellants along with the absconding co-accused blocked their way by parking a Datsun and thereafter they committed the offence, which not only shows their common object, but they by virtue of vicarious liability were also held responsible, which had been established through evidence; that all the accused persons including the appellants knew about the common object and consequence thereof they committed the offence, therefore, each member of the unlawful assembly is responsible for the offence irrespective of their roles; that the prosecution through evidence has established the charge against the appellants beyond any reasonable doubt; that there were no mitigating circumstances, therefore, besides affirming the impugned judgment, the sentence of the appellants is liable to be enhanced and the Criminal Revision Petition No, 11 of 2012 may be accepted.
7. We have heard the learned counsel for the parties and have gone through the record of the case. The case of the prosecution hinges upon the statements of complainant, injured witnesses namely Bahadur, Abdul Jabbar son of Haji Lalai, Muhammad Noor and Muhammad Ayub. Though the prosecution witnesses alleged firing on the part of the accused persons, but no empties were recovered from the spot. P.W.1 Abdul Samad in his testimony deposed about the incident and narrated the facts mentioned in his Fard-e-Bayan, on the basis whereof the FIR was registered. He added that the appellant Abdul Qadir planned the incident, which resulted in death of deceased Noor Muhammad, but this fact has not been substantiated. He further deposed that the absconding accused Muhammad Hanif caused injuries to Noor Muhammad by means of dagger, whereas the appellant Abdul Qadir inflicted knife blow to the injured Bahadur and the appellant Abdul Hadi inflicted knife below to Muhammad Noor and Muhammad Ayub. PW-2 Abdul Pukkar narrated the same facts and stated that the appellants Abdul Qadir and Abdul Hadi caused injuries to Bahadur and Muhammad Ayub respectively. According to him, he and Abdul Khaliq relieved the injured and complainant from the appellants. P.W.3 Muhammad Ayub (injured) besides narrating the facts of the incident also attributed causing of injuries by the appellants to the injured Bahadur and Muhammad Ayub respectively. P.W.4 Noor Ali also reiterated the same facts and specifically attributed causing of injuries to the injured Bahadur by the appellant Abdul Qadir and Muhammad Ayub by the appellant Abdul Hadi. P.W.5 Abdul Jabbar (injured) in the same line stated that the appellant Abdul Qadir caused injuries to Bahadur while the absconding co- accused caused injuries to Muhammad Noor and the appellant Abdul Hadi caused injuries to Muhammad Ayub. P.W.6 Shafqat Ullah produced a dagger and stated that it was snatched from the absconding accused Muhammad Hanif, which was taken into possession vide recovery memo Ex.P/6- A. P.W.7 Haji Lal Muhammad stated that he also went to the place of incident. P.W.8 Bahadur (injured) has also received injuries and stated that the appellant Abdul Qadir caused injuries to him on his left thigh by means of knife. P.W.9 Dr. Zia-ur-Rehman produced death certificate of deceased Noor Muhammad Ex.P/9- A and MLCs of the injured Haji Bahadur, Haji Lal Muhammad, Muhammad Ayub and Abdul Jabbar son of Haji Lalai. P.W.10 Muhammad Ramzan ASI produced the bloodstained clothes of deceased Noor Muhammad through the recovery memo Ex.P/10-A and the bloodstained clothes of injured Muhammad Ayub and Lalai Ex.P/10-B, P.W.11 Gul Muhammad and P.W.12 Muhammad Abdullah stated about the investigation of the case.
8. The aforesaid evidence of the prosecution indicates that on 3rd September, 2008, the complainant Abdul Samad along with his brother Noor Muhammad and Noor Ali reached near the houses at Killi Jelani, where according to them, the appellants along with the absconding accused had blocked their way by means of a Datsun. Had it been so, then the appellants along with the absconding accused would have beaten these three persons including the complainant.
Admittedly, the complainant Abdul Samad (P.W.1) had not received any injury during this episode.
It also appears that P.Ws. Bahadur, Abdul Jabbar son of Haji Lalai and Haji Lalai, Muhammad Ayub and Muhammad Noor jointly came to the place of the incident. All the prosecution witnesses including the injured admitted that the incident had taken place at Killi Jelani and the appellants are also residents of the said Killi. P.W.7 Haji Lal Muhammad during the course of cross-examination admitted that they came to the place of incident in vehicles. The site plan Exh.P/12-A also indicates that at point "C" the houses of the appellants are situated in Killi Jelani. The prosecution through the aforesaid witnesses has failed to establish the common object and vicarious liability on the part of the appellants to commit the B offence. Though, P.W.1 Abdul Samad in his Fard-e-Bayan set up a motive that the incident had taken place due to previous enmity but during evidence no such motive has been established, therefore, in absence of any motive, the circumstances of the case clearly shows that the complainant party went to the place of the incident. The prosecution story that the complainant along with injured and his brother were going to their home and they were held at a bridge near Killi Jelani, after some altercation with the appellants, meanwhile Haji Lalai, Bahadur, Abdul Jabbar son of Haji Lalai and Muhammad Ayub also reached at the spot. The altercation lasted for some time and in the incident sharp edge injuries had been received by the prosecution witnesses and as per FIR Ex.D/1 registered on the report of appellant Abdul Qadir in respect of same incident, further shows that the complainant party came to the house of the appellants, where the incident had taken place. In these circumstances of the case, there being no element to constitute common object and vicarious liability on the part of the appellants. For construction of unlawful assembly, it must be established that the unlawful assembly is common object. The doctrine of vicarious liability as envisaged under section 149, P.P.C. Requires that one should be member of unlawful assembly, that in prosecution of common object of that assembly offence should have been committed by the member of unlawful Assembly and that be of such nature that the member of that assembly, knew the Offence likely to be committed in prosecution of common object. The witnesses of the prosecution failed to establish that the appellants being members of unlawful assembly shared the common object of assembly and some accused in furtherance of common object of unlawful assembly committed the offence. In the instant case, it shows that there was no premeditation, no preparation and there was no planning. The fact that the appellant Abdul Qadir inflicted wound on the left thigh and the appellant Abdul Hadi caused injuries to Muhammad Ayub on his left hand near wrist joint, which according to MLC Ex.P/9-B and Ex.P/9-D, were simple in nature and the mere fact that both the appellants were holding knives, could not be sufficient to attribute common object when the appearance of the complainant party at the scene of occurrence, according to the prosecution, was by chance, therefore, in absence of common object, the every accused will be responsible individually for his own act. In the case of Muhammad Altaf and 5 others v. The State 2002 SCM R 189, the Hon'ble Supreme Court of Pakistan while interpreting section 149,P.P.C. In a similar circumstance held as under:- "The word "knew" occurring in the second part of section 149, P.P.C. Requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this background it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grandfather, their son and their grandson would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149, P.P.C. Cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack."
9. In view of the above and considering the evidence on record, section 149, P.P.C. Cannot be made applicable, therefore, the appellants would be liable to be convicted for the act committed by them during the incident. The appellant Abdul Qadir was attributed of causing injuries to Bahadur, whereas the appellant Abdul Hadi was attributed of causing injuries to Muhammad Ayub, therefore, they are liable to be convicted under section 337-F (ii), P.P.C. And in the circumstances of the case, the conviction of the appellants under section 302(b), P.P.C. Is unwarranted and contrary to the evidence on record, therefore, the impugned judgment to that extent is not sustainable.
10. The counsel for the complainant contended that the prosecution beyond any reasonable doubt has proved the case against the appellants and in absence of any mitigating circumstance, their sentence is liable to be enhanced, is not tenable, as no such evidence came on record either to hold responsibility upon the appellants for the offence under section 302(b), P.P.C. Even no case of section 302(b), P.P.C. Is made out against the appellants due to the reason as discussed hereinabove.
' In view of the above, the Criminal Appeal No, 311 of 2009, is partly allowed and the conviction and sentence of the appellants under section 302(b), P.P.C. And conviction and sentence of the appellants in respect of section 337-F(i), P.P.C. To the extent of causing injuries to Haji Lal Muhammad and Abdul Jabbar are set aside and they are acquitted of the charge respectively.
They be released forthwith if not required in any other case, however, the conviction and sentence of the appellants under section 337-F(ii), P.P.C. To the extent of causing injuries to Bahadur and Muhammad Ayub are maintained with benefit of Section 382-B, Cr.P.C. With the result, the Criminal Revision Petition No, 11 of 2012, is dismissed.