Ghulam Mustafa Mughal, J.--The captioned appeal is directed again st the judgment of the Shariat Court passed in Criminal Appeals No.3 and 4 of 2009, on 1 1.6.2012.
2. The appeal has arisen out of the following facts:- As per record, the unfortunate incident, which claimed the life of Abdul Khaliq, deceased, took place in village Balah, on 13.10.1992 at 9:00 am and the same was reported by Fazal Hussain at Police Station City at 9:30 am. It was narrated in the report that the compl ainant is the resident of village Balah where his landed property situates.
On the western side of his property , Muhammad Yousaf, accused, purchased a piece of land. Path of his land was towards northern side. The accused, Muhammad Yousaf, Muhammad Laal, Muhammad Ilyas, Muhammad Taj and Mehmood sons of Muhammad Yousaf, and Muhammad Sadiq and Muhammad Malik, sons of Fateh Muhammad, fixed a gate on 11.10.1992 towards complainant' s land. It was further narrated that in order to resolve the controversy , a punchayat was held at it was resolved that the accused shall remove the gate but they refused to remove the same. The complainant was constructing a wall in his land, as was decided in the punchayat, when the accused persons, while arming themselves with sticks and hatchets, came at the place of occurrence and injured his sons Abdul Khaliq, Ghalib, Matloob Hussain, and Muhammad Sharif s/o Abdul Karim. The accused, Muhammad Sadiq, who was armed with a hatchet in his hand, hit a blow on the head of the complaint and his son, with which he and his son got seriously injured and fell down on the ground. Ghalib Hussain, Matloob Husain and Muhammad Sharif also got injured. After injuring the complainant and the aforesaid persons, the accused persons fled away from the scene of occurrence. On this information, a case under sections 307, 147, 148 and 149, APC, read with section 15, IPL, was registered against the accused persons at Police Station City, Mirpur vide FIR No.265/1992, on 13.10.1992. Abdul Khaliq, injured, succumbed to the injuries whereupon section 5, IPL was added. After necessary investigation, the accused were challaned before the District Court of Criminal Jurisdiction, Mirpur on 15.2.1993. Muhammad Sadiq and some other accused persons were absconded after the occurrence, hence were proceeded under section 512, Cr.P.C. The statements of the accus ed persons under section 242, Cr.P.C., were recorded on 27.6.1993. They pleaded not guilty and claimed trial. The prosecution was asked to lead evidence. The prosecution examined Fazal Hussain, complainant, Matloob Hussain, Ghalib Hussain, Muhammad Ramzan, Muhammad Siddique, Raja Muhammad Sabir , Girdawar , Muhammad Yaqoob, constable, Muhammad Ramzan, Ch. Ghulam Akbar , Inspector , Mirza Tufail Hussain, DSP (Retired), Muhammad Siddique, Inspector Police (Retired), Muhammad Shabbir , constable and Muhammad Ishtiaq, Record-Keeper , DHQ Hospital Mirpur in support of their claim. After recording the prosecution evidence, the statement under section 342, Cr.P.C., was recorded on 22.11.2002. The accused again pleaded innocence and refuted the prosecution case. At the occlusion of the proceedings, the learned trial Court heard the parties and vide judgment dated 19.2.2003, convicted the accused persons under section 15, IPL, and sentenced Muhammad Yousaf for inflicting injury on the person of Muhammad Ghalib and Sharif, accused Matloob Hussain for inflicting injury to Muhammad Taj and accused Muhammad Malik for inflicting injury on the person of Fazal Hussain, complainant, to pay Rs.10,000/- each as compensation/hakoomat-e-adal. The Court further observed that the accused Muhammad Yousaf is an aged person, hence he was sentenced to one year imprisonment, however , Muhamm ad Taj and Muhammad Malik, accused, in addition to the aforemention ed sentence, were also sentenced to 10 years' rigorous imprisonment.
They were also extended the benefit of section 382, Cr.P.C. Feeling aggrieved from the judgment dated 19.2.2003, the accused file appeal before the Shariat Court on 21.2.2003. Fazal Hussain, complainant, father , and Sakeena Bibi, widow of Abdul Khaliq, deceased, also filed cross appeal for enhancement of the sentence on 3.3.2003. The learned Shariat Court through the impugned judgment dated 11.6.2012, accepted the appeal filed on behalf of the convicts and observed that Muhammad Malik, accused, remained in jail for four years after having been convicted, whereas Muhammad Taj, accused, remained in jail for one year, therefore, the sentence undergone by them would be sufficient to meet the ends of justice, however , the sentence of compensation amounting to Rs.10,000/- each remained intact. The cross appeal filed on behalf of the complainant for enhancement of sentence stood dismissed for having no merit in it.
3. Mr. Khalid Rasheed Chaudhary , advocate, appearing on behalf of the complainant, appellants herein, vehemently argued that the judgment recorded by the District Court of Criminal Jurisdiction Mirpur , is against law, perverse, capricious and illegal because the learned trial Court, on the basis of evidence, observed that the case against the accused has been proved beyond any shadow of doubt, but even then took a lenient view while awarding punishment to the convicts. The learned advocate argued that when the Court came to the conclusion that the case was proved, then it was the duty of the trial Court to award legal sentence to the convicts, respondents herein. The learned advocate submitted that no reasons have been recorded by the trial Court for awarding lesser sentence. He submitted that even the Shariat Court has not properly appreciated the matter and substituted the sentence for artificial reasons, despite of the fact that the occurrence was proved through cogent and reliable evidence and in the cross-examination, the prosecution case couldn't be shaken despite lengthy cross- examination. The learned advocate argued that it was a pre-meditated murder because in punchayat, it was decided that the gate fixed shall be removed whereas the other party shall erect a wall. The accused in violation of the decision of punchayat appeared at the place of occurrence armed with sticks and hatchets, which were recovered from them, hence maximum imprisonment was liable to be awarded in the present case. The learned advocate referred to and relied upon the following cases:- i) Abdul Ghafoor & others vs. The State [1999 P .Cr.L.J. 1245], ii) Muhammad Arshad & 2 others vs. The State [PLD 1996 SC 122 ]. iii) Muhammad Khurshid Khan vs. Muhammad Basharat & another [2007 SCR 1], iv) Muhammad T ahir Aziz vs. The State & another [2009 SCR 71], v) Ijaz alias Billa & 3 others vs. The State [2002 SCMR 294 ].
4. Conversely , Mr. Muhammad Younas Tahir, advocate, appearing on behalf of the convict-respondents, vehemently argued that the fatal injury was not attributed to the convicts, respondents herein, and the offence was not pre-mediated, hence section 149, APC, was not applicable. The learned advocate argued that in absence of premeditation or pre-planning, each accused was liable for his individual act, therefore, the matter was rightly appreciated by the Shariat Court and the accused have been released after serving the sentence, hence the appeal has become infructuous and restoring the sentence will be against the norms of criminal justice. The learned advocate argued that the prosec ution witnesses were not only related but have a motive to implicate the convicts in the case and in such a circumstances, they cannot be convicted on the basis of such evidence. The learned advocate submitted that the reasons listed by the Shariat Court for awarding lesser punishment are very cogent and unexceptional, which do not suffer from any misreading or non-reading of the record of the case, therefore, no interference is required by this Court. In support of his submissions, the learned advocate referred to and relied upon the following cases:- i) Riffat Ali Barq vs. SHO< Police Station Muzaffarabad & 4 others [1991 P .Cr.L.J. 9], ii) Muhammad Ashraf vs. The State [1991 P .Cr.L.J. 2274], iii) The State through the Advocate-General, Sindh, Karachi vs. Farman Hussain & another [1995 PSC (Criminal)
146], iv) Ghulam Mustafa vs. The State [1995 PSC (Criminal) 708], v) Zulfiqar Ali vs. The State [1993 PSC (Criminal) 824], vi) Saghir Ahmed vs. Zulfiqar Ahmed & another [2006 SCR 228]; and
5. Raja Saadat Ali Kiani, Additional Advocate-General, has adopted the arguments advanced on behalf of the complainant and referred to and relied upon the case reported as Muhammad Tahir Aziz vs. The State & another [2009 SCR 71]. He submitted that where the case is proved, then normal punishment is liable to be awarded to an accused.
6. We have heard the learned advocates for the parties and gone through the record of the case.
7. Although it is not the function of this Court to reappraise the evidence but in the interest of justice, we have gone through the entire evidence led by the prosecution as well as the relevant record of the case. The occurrence in this case, erupted over the fixing of a gate towards the land of the complainant party upon which an objection was taken by them. A punchayat was also convened, which decided that the accused party shall remove the gate and the complainant shall erect a wall on his side. On the very next day, when the complainant party started erecting wall, then allegedly the accused parsons launched an attack upon them, as has been stated in the FIR. In the FIR the fatal injury is attributed to Muhammad Sadiq, who has been proceeded under section 512, Cr. P.C., along with Muhammad Laal and Mehmood, accused. No description of the injuries inflicted by the other accused has been narrated in the FIR, however , the responsibility of the other accused, who were being tried, has been fixed in the statements recorded by the police under section 161, Cr. P.C. by the prosecution witnesses. Ordinarily , if the witnesses are related but their statement is of worth consideration and is further corroborated by the other evidence, then the same cannot be rejected on the ground of relationship rather the same is accepted by the Courts for the purpose of recording of conviction.
8. Mr. Khaild Rasheed Chaudhary , advocate appearing on behalf of the complainant, has contended that as the accused persons have launched attack with premeditation and common intention to take the life of Abdul Khaliq, deceased, therefore, each of them was liable to the capital punishment i.e. 14 years' imprisonment. It is correct that when the offence is committed in furtherance of common intention with premeditation and pre-planning, then every accused person is vicariously liable for commission of the offence, irrespective of the fact that what role has been played by him, however , it was necessary to prove that the intention of such participant was common in order to achieve the target of the unlawful assembly . Our consideration of the entire record as well as the evidence led by the prosecution and trend of examination leads us to the irresistible conclusion that premeditation, preconcert or pre-planning to achieve the target of the unlawful assembly in this case is missing. Of course, the common intention can be developed at the spur of the moment and there are cases in which the conviction has been awarded to the accused when they have played an active role on spot, although the occurrence was not premeditated. This is, in our view, a case of free fight, hence everyone was liable for his individual act and the trial Court as well as the Shariat Court has rightly recorded their finding to this extent. As stated above that the fatal injury was attributed to Muhammad Sadiq, who has absconded along with some other accused, therefore, a perusal of the evidence produced by the prosecution against the accused, who have been tried, leads to the conclusion that the sentence awarded to them by the trial Court was proper except the sentence of imprisonment.
When it was not proved that the attack has been launched with common intention after pre-planning, then the punishment for such act in the other offences couldn't have been awarded. It is an admitted fact that during pendency of the appeal before the Shariat Court, one of the accused persons has passed away . The sentence of other accused persons has been reduced and they have been released while extending the benefit of section 382, Cr. P.C. After their release in the light of evidence produced by the prosecution, we are not inclined to disturb the findings recorded by the Shariat Court. We are fortified in our this view from the findings recorded by Mr. Justice Iftikhar Muhammad Chaudhary , hon'ble Chief Justice of Pakistan (as his lordship then was), in the case reported as Mehrban Khan vs. Ghulam Murtaza & others [2006 SCMR 1091 ], wherein it was observed as under:- "6. After hearing the parties' counsel and having gone through reported judgments referred to above, we are of the opinion that all the cases pending on the file of this Court are to be decided according to law already laid down by this Court and matters cannot be kept pending till the decision of the larger bench. Thus, as per law laid down in the above cited cases, respondent Ghulam Murtaza has already undergone sentence under section 302, P.P.C. as such appeal for enhancement of his sentence has become infructuous. Therefore, jail authorities are directed to release him from custody in the offence under section 302, P.P.C. However , he will remain in custody till the expiry of sentence under section 324, P .P.C. as per the decision of High Court, dated 27.12.2002."
Similarly in the case reported as Abdul Haq vs. Muhammad Amin alias manna & others [2004 SCMR 810], this Court has laid down as under:- "3. We have pointed out to learned couns el that in view of judgments reported in Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302, Mst. Promilla and others v. Safeer Alam anad others 2000 SCMR 1166 and Amir Khan and others v. The State and others 2002 SCMR 403 whether an accused, who had served out the substantial/legal sentence, can be awarded another sentence for the same offence and it would not be in violation of the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan." The learned counsel stated that the respondent No.1 was not awarded legal sentence by the High Court in exercise of writ jurisdiction because alternate remedy was available to him.
But in our opinion this objection of the learned counsel is only of academic nature at this state for the reasons noted above because this Court in above noted judgments has held that if an accused has served out the substantial/legal sentence for an offence, he cannot be awarded another sentence for the same offence.
Additionally it may be added that it would be unfair , unjust and would also be in violation of Article 13 of the Constitution of Islamic Republic of Pakistan read with section 403, Cr. P.C., if now accused/convicts are vexed with another sentence for the same of fence."
This view was reiterated in the cases reported as Haji Tahir Hussain vs. Saqlain & others [2008 SCMR 817] and Bahadur Ali & others vs. The State & others [2002 SCMR 93 ].
This Court has also approved the same view in the case reported as Nasrullah vs. Shamim Akhtar & 4 others [2009 SCR 470].
9. Before parting with the case, it may be stated that the judgments referred to and relied upon by both sides have distinguishable facts, therefore, need not be discussed.
In view of the above, finding no force in this appeal, the same is hereby dismissed.