' All Nawaz Budhani, J.--This judgment will dispose of Criminal Appeal No, 285/1978, Criminal Acquittal Appeal No, 131/1979 and the Criminal Revision No, 2/1979. The three appellants Muhammad Shafi son of Fatehdin, Shah Muhammad son of Rehmatullah and Muhammad Yousuf son of Noor Muhammad with 15 others, were tried by the learned Additional Sessions Judge Sanghar who by his judgment recorded on 31st October, 1978 convicted and sentenced appellants Muhammad Shafi and Shah Muhammad under section 304(1), P.P.C. And sentenced them to R.I. For three years and fine of Rs, 1,000 each and in default to suffer R.I. For six months more. Appellant Yousuf is sentenced to R.I. For one year under sections 323, P.P.C. And 324, P.P.C. Appellants Muhammad Shafi and Shah Muhammad were further convicted and sentenced under section 325, P.P.C. To R.I. For one year. The sentences were to run concurrently. By our short order, dated 22nd June, 1982 we had allowed the criminal appeal and dismissed the criminal revision arld the acquittal ,appeal. Following are the reasons for the said order.
2. Prosecution case is based on the F.I.R. Registered at Mangli Police Station, District Sanghar on 3rd June, 1976 at 9-00 p.m. Following is the translation of the F.1. R.
"I alongwith my brothers Ejaz Ali, Nazeer Ahmad and Fazal, lqbal Shah were going from our house to bus-stand for taking tea. It was about 8-15 p.m. There was light in both of our 'Chaks'. When we were in front of the house of !Shag Arain, Chak No, 10 at the road, all of a sudden, 18 persons named Muhammad Aslam, Muhammad Sarwar, Shah Muhammad, Muhammad !Shag, Muhammad Akhtar, Rehmat Ali, Muhammad Aslam son of Karam Illahi, Muhammad Yousif, Muhammad Ashraf, Rehmat Ali, Nawazish Ali, Javed Akhtar, Qadir, Barkat Ali, Muhammad Ali, Shera, Mukhtar, Muhammad Shall all by caste Arain, emerged out from the 'Bethak' of Ishaq. Out of them, Muhammad Aslam son of Muhammad Shafi and Muhammad Akhtar son of Muhammad Shafi were armed with hatchets and the rest with Lathis. Immediately on their arrival, they gave us abuses and told us that we were supporting sons of Shafi (late). They told us to be careful.
Immediately on their arrival, they attacked us. We have received hatchet and Lathi injuries on our heads and and other parts of the body. The teeth of Ejaz have broken. We raised cries upon which people from 'Adda' came running. Whereupon, accused persons left us and ran away to their houses. I after leaving them there, have come here to lodge report. I lodged complaint that the above accused having conspired themselves have given us blows. Justice be done."
3. The S.H.O. Ghulam Hussain recorded this F.I.R. At 9-00 p.m. It may be noted that on the same date at 9-30 p.m. a counter-F.I.R. Is registered at the same police station by A.S.I. Muhammad Kasim. It would be advantageous that the F.I.R. In the counter-case may be reproduced as under:- "Today in the evening after taking the evening meals, we were sitting on cots, in front of our 'Baithak', close to the road where the Panchayat of our Baradari was held. In the same (Panchayat)
18-19 persons were present. At about 8-30 p.m. Party of lqbal Shah came from Chak No, 10 to bus- stand. They came and stood on the road in front of us. Namely lqbal Hussain Shah, Fazil, Ejaz, Nazeer, Sardar, all Gujar by caste and Rana Saeed Ghulam Hyder Ali, Muhammad Khan Parhyar, Moazzam, Zafar, both sons of Nadim Ali, Manzoor son of Asghar, Muhammad Akram son of Muhammad Shafi, Muhammad Malik son of Muhammad Shafi in all 14 accused, having Lathis in their hands and Sardar Gujar who was having a hatchet, immediately on their arrival attacked us.
In the result whereof, our two persons namely Muhammad Yousif and Shah Muhammad have sustained the injuries. The accused have caused us injuries having collided with each other. They used to support Muhammad Akram, Muhammad Malik and others with whom Barkat and Rehmat have got dispute on account of lease and 'harap' of the land. I lodged complaint."
4. S.H.O. Ghulam Hussain took up the investigation and saw the Vardat in the case of first F.I.R.
Injured lqbal Shah was removed to Civil Hospital from where he was referred to L.M.C. Hospital at Hyderabad. The S.H.O. Examined witnesses Muhammad Fazil, Ejaz, Nazeer Ahmad, Hyder Shah, Malik Sher Muhammad, Master Ghulamali, Muhammad Akhtar, Muhammad Malik and Muhammad Akram. He arrested 8 accused persons namely Ishaq, Sarwar, Rehmatali son of Hussainali Muhammad Aslam son of Karam Illahi, Muhammad Ashraf, Rehmatali son of Murad, Muradali, Nawazishali son of Muhammad Ali and Javed Akhtar. Lqbal Shah died in the hospital on 6th June, 1976. Further, necessary investigation was also conducted in the counter case and both the cases were challaned in the relevant Court.
5. The accused denied the allegations made by the prosecution against them and they state that they are innocent. The injuries on the person of accused Yousif, Shah Muhammad and Shafi Muhammad were explained by the accused to have been inflicted by comPlainant's party but there is no specification of the persons who caused them the injuries.
6. The arguments of the learned counsel for three appellants are briefly that the evidence on record does not implicate the present appellants so far the causing of infliction of the injuries is concerned either on the deceased lqbal Shah or on the other injured persons of the complainant party. The basic documents in this case are the two F.I.Rs, namely F.I.R. In the instant case and the F.I.R. In the counter case. In both of these F.I.Rs, there is no specification as to who caused injuries and on whom. Both the F.I.Rs, are of the same character and quality wherein no particular accused is attributed with specific role for having caused injuries on any person. It appears on the face of it that there was a fight on the spur of moment and several persons were injured on both the sides.
The evidence was recorded three years after the incident wherein the witnesses have attributed the role to certain accused persons. The trial Court however, has disbelieved the evidence of the prosecution witnesses in respect of causing injuries by the particular accused person to the particular injured persons. According to the trial Court it was free fight and that there was no common object of the accused persons to have formed an unlawful assembly and hence there would be no extension of section 149, P.P.C. For vicarious liability of the accused persons. The learned Additional Sessions Judge by strange logic and a piece of strange reasoning has found the present three appellants to be guilty. The learned counsel of the appellants has pointed out and criticised the method of reasoning of the learned trial Court. We are tempted to quote the paragraph of the judgment of trial Court in which this reasoning is employed.
"Although. I have looked with disapproval, the ocular evidence and recovery of the crime weapon/clothes, but I cannot overlook the fact that a Free Fight has taken place between the parties, in which following casualties took place:-- PERSONS INJURED FROM PERSONS INJURED FROM COMPLAINANT PARTY. ACCUSED PARTY.
1. Complainant Sardar. Accused Yousuf
2. P.W. Nazeer. Accused Shah Muhammad.
3. P.W. Fazil Accused Shafi (as per certificate in counter case) Sharif (He is not accused)
P.W. Ejjaz.
5. Lqbal Shah (who died)
6. Saeed Muhammad (not examined as P.W.)
"The above picture, at least proves, beyond doubt that accused Yousuf, Shah Muhammad and Shafi in addition to one Shareef (who is not accused) participated in the fight and, therefore, they cannot claim ignorance or innocence. Moreover names of these accused also appear in both F.I.Rs, It appears to me that both the sides have exaggerated the story and have also inflated number of accused for obvious reasons, that as many persons, of other Group, be enroped as possible. I have, therefore, reached the conclusion that prosecution Pas failed to establish participation of all the accused excepting the three viz. Yousif, Shah Muhammad and Shafi. I have also reached the conclusion that these three accused who are injured, participated in the free fight without any premeditation or preplanning. They even caused injuries to complainant side by exercising the right of self-defence as the complainant side attacked on their house and, therefore, as they could rightly apprehend the danger even to their lives. The point No,3 is answered accordingly. However, the accused exceeded right of self-defence, looking to the number of injuries, on the person of lqbal Shah."
7. We are painfully amazed at the advancement of the arguments and the reasoning of the learned trial Court. The cardinal principle in proving a case is that it is for prosecution to prove the case by a reliable testimony against the accused and bring home the guilt. It is to be proved that the appellants Yousif, Shah Muhammad and Shafi Muhammad inflicted injuries with their weapons on the injured persons. In absence of this piece of evidence there would be no proof against the appellants for committing the offence. The reasoning advanced is that these appellants had sustained injuries and, therefore, they participated in the fight and hence they cannot claim ignorance or innocence. This is indeed very strange. There are many other possibilities in which these appellants may have been injured while they might not have participated in the. Fight altogether. The learned trial Court has conceded that inflated number of accused persons were involved. If the trial Court concedes to this position, it could not reach the conclusion that the prosecution has proved case against the appellants. It is also observed that the appellants inflicted injuries on account of self-defence. If self-defence is conceded then me right of self- defence cannot be taken away from the appellants.
8. The mere fact that the appellants are injured is no proof against them and the factum of injuries on them does not constitute a proof that they are guilty for causing injuries to the complainant party. Reading the evidence of the eye-witnesses we find that appellant Yousif is not involved by any of the eye-witnesses to have caused injuries to any person. The evidence of eye-witnesses is looked upon by the trial Court as doubtful on the ground that the witnesses have exaggerated the action of the accused persons and also that the witnesses have given inflated number of the accused. We concede that the specification of the injuries later on during the course of trial may be a subsequent development and improvement of the prosecution case because the F.I.R. Does not so specify, however, the finding that the appellants are guilty under section 304(1) or for that matter under section 325 or 323, P.P.C. Is a finding which is not based on legal proof or proper appraisal of the evidence on record.
9. It is to be pointed out that the trial Court has held the incident to be the result of a free fight and hence the vicarious or constructive liability could not be imposed on appellants as such. Section 149, P.P.C. Is not applied by the trial Court. Even it is not held by the trial Court that the three appellants had the common intention to cause injuries either to lqbal Shah or on any other injured person. No such finding is available in the judgment. However, since the evidence on record is not free from doubt and is exaggerated, we at this stage would not deal on the common object or common intention and we would only confine overselves to observe that section 304(1) could only be made use of, in the case when the vicarious, liability is established by the trial Court. Conviction and sentence against the appellants even otherwise fall and hence we find it not necessary to deal upon the subject of vicarious liability. Therefore, we would not agree with the finding of the learned trial A Court and hereby set aside the sentence and conviction as against these three appellants.
10. Next we advert to the criminal Acquittal Appeal No, 131/1979 ip which the State has become appellant in respect of only six respondents out of 18, praying that these respondents considering the evidence, are guilty for the offences charged and that the evidence is not properly appreciated by the learned trial Court.. We have gone through the relevant portions of the evidence on record. It is to be understood that the evidence is recorded couple of years after the F.I.R. Was registered in the year 1976. The basic document which could be relied upon and which cannot be ignored does not specify the role played by these six respondents. Nowhere in the F.I.R. It is mentioned that any one of these respondents inflicted injuries on those who were injured. There is a general statement in the F.I.R. With regard to the fight and the use of Lathis and hatchets. It has been found by the learned trial Court also that the number of accused was exaggerated and so also the evidence B recorded suffers from the defect of exaggeration and, therefore, it can not be wholly relied upon.
There is a doubt on the whole shown by the trial Court and we also feel that the evidence is not so strong as could be safely relied upon.
11. The principles which justify the interference by the superior Courts with orders of acquittal have been laid down by our own Supreme Court and are to be found enunciated in the case of Fateh Muhammad v. Bago and another PLD 1960 SC 286 and Serajuddin v. Kala PLD 1964 (W.P.) Kar 356 wherein it is observed as follows:-- "These principles are that unless it can be demonstrated with certainty that none of the grounds on which the trial Court has purported to acquit is at all supportable, the superior Court will be reluctant to interfere even though upon the evidence on record and the facts and the circumstances of the case, this Court might well have come to a different conclusion if it was trying the case."
12. In view of the law quoted above we are unable to accept the acquittal appeal as such. The acquittal appeal is accordingly dismissed.
13. However, we would refer to the law of constructive liability. An explanation to section 141, P.P.C.
States that an assembly may become unlawful at some stage after the time of assembly. The trial Court has held that there was a free fight and there was no common object of the unlawful assembly. It may be true but the assessment of the trial Court should have been deeper enough to find where any circumstance interfered during the collection of the assembly which influenced them all in one direction, namely that of using criminal force, or committing mischief or of resisting the execution of law or legal process. If that be not the case, the learned trial Court ought to have considered the vicarious liability of the second nature namely sharing of intention or common intention which possibly might have been between the members of the assembly which had collected. A joint action by a number of persons is not necessarily an action performed with common object. It may be performed on the spur of moment as a reaction to some incident, and such a case would fall more correctly within the rule of constructive liability laid down in section 34.
P.P.C. Which is based on "common intention". In this connection a reference may be made to PLD 1963 SC 109 at 125. These observations on vicarious liability are made for the guidance of the trial Courts dealing with the criminal cases.
14. In the revision petition the prayer is made that the acquitted accused be convicted after calling for the record and examining the evidence. We hate done this in the preceding paragraphs and we are of the considered opinion that it would be a futile exercise to convict the accused or remand the case to the lower Court for retrial. We have even acquitted those accused who were convicted by the trial Court on the grounds that no evidence was available against them to pinpoint their guilt. Hence we reject the revision application also.
' The result is that the criminal appeal filed by the appellants is allowed and the criminal acquittal appeal and the revision are dismissed. The accused/appellants if in custody be released forthwith if not required in any other case.