' MIAN BURHANUDDIN KHAN, J.-This appeal is directed against the judgment and order of the Sind High Court dated 31-5-1982 passed in Criminal Appeal No, 11 of 1982.
2. Appellant Rasul Bux, alongwith 9 others, was tried under sections 302, 325, 323 read with sections 149 and 147/148, P. P. C. By the learned Additional Sessions Judge, Dadu for causing the death of Chhato and injuries to Andal, Ahmad, Jummo, Rasool Bux, Gul Hasan, Wali Muhammad, etc. All the accused were found guilty by the learned trial Judge under sections 302 and 149, P. P. C. And vide his judgment dated 4-1-1982, all were sentenced to transportation for life and a fine of Rs, 2,000 each, in default of payment of fine, to suffer R. I. For one year each. Under section 325/149, P. P. C. All the accused were sentenced to two years' R. I. Each and fine of Rs, 200 in default, to further R. I. For two months ; and they were also convicted and sentenced under section 323/149, P. P. C. To pay a fine of Rs, 200 each or in defanit to suffer for two months each. The sentences were ordered to run concurrent] . Half of the amount of fine if recovered, was ordered to be paid to the persons who had suffered injuries and half of the amount of fine under main count under section 302, P. P. C.
Was ordered o be paid to the he -of the deceased as compensation under section 544-A, Cr. P. C.
3. On appeal against their conviction and sentence the learned High Court Judges, vide the impugned judgment acquitted all the accused except appellant Rasul Bux and Arab (who did not appeal against his conviction and sentence). The learned High Court maintained the conviction of the appellant under section 302 but turned his sentence of Transportation for life into Imprisonment for Life. His conviction and sentence under section 148, P. P. C was also upheld he was acquitted of the rest of the charges. Conviction and sentence of Arab co-accused was altered from under section 302 to section 325.
4. Leave was gradated by this Court vide its order dated 15-9-198 to consider whether on the facts of the case, the evidence which has been disbelieved by the learned Hight Court Judges against the 8 other accused, could be relied upon to sustain the conviction of the appellant under section 302, P. P. C ; that the occurrence had taken place in April, 1971 and the learned Additional Sessions Judge had sentenced the appellant to "transportation for life" whether the High Court could substitute by "life imprisonment" ; the learned Judges having held that section 149, P. P. C. Was not applicable, yet they sustained the conviction of the appellant under section 148, P. P. C.
5. According, the prosecution on the fateful day i,e, 4-4-1971 at about 11 a.m. Muhammad Usman complainant, alongwith Qasim P. W. Went to the hotel of Chhuto Chano for a cup of tea where his relatives. Chhato son of Faiz Muhammad deceased and Andal, Jummo, Muhammad Hasan and Muhammad Machhi also came there. They were followed by Rasul Bux, appellant and other co- accused including Arab, convict (who did not appeal against his conviction and sentence) who were armed with hatchets and dandas and attacked the deceased. The appellant Rasul Bux gave danda blows on the head of the deceased which the others inflicted blows to the witnesses.
Thereafter, the assailants ran away from the spot. They were chased by Muhammad Usman complainant and when they reached near the wheat crop of Umar Memon some of the accused were confronted by the people working in the field. In an attempt to apprehend the assailants, these people working in the field, were also given blows with dandas and hatchets by the accused, and then they made good their escape. The injured were removed to the hospital.
6. The motive, as stated by complainant Muhammad Usman is that the accused Adloo and Gul Panhwar used to loiter about near the village well where the families of the complainant used to go for fetching water and the accused teased them. On the complaint of the women-folk the accused were abused by Jummo and Hasan and were warned not to visit the well again. On this count, the accused formed an ulawful assembly, armed themselves with hatchets and dandas and attacked the complainant resulting in the death of Chhuto deceased and injuries to some persons, as stated earlier. The deceased succumbed to his injuries in the hospital.
7. Dr. Ghulam Qadar Leghari performed the post-mortem examination on the dead body and the deceased and found a lecerated wound 1" x 1/4" x scalp deep on left frontal perietal region of scalp ; another lacerated wound 1" x x scalp deep on the right frontal region of the scalp, and a contusion 1" x 1-4 on the right parietal region of the scalp. The injuries were caused by some hard and blunt substance. In the opinion of the doctor, death of the deceased occurred due to shock and compression of brain due to haematome as a result of these injuries. The deceased expired the same day i,e, on 4-4-1971 at 6-30 p.m.. Without regaining consciousness.
8. Dr. Muhammad Saleh medically examined the injured witnesses namely Ahmad, Jumo, Rajlb, Muhammad Siddiq, Wali Muhammad, Rasul Bux, son of Morio, Muhammad Hasan, son of Wali, Muhammad Hasan, son of Soomar, Gul Hasan and Andal and found various types of wounds on their persons caused by blunt weapons.
9. Learned counsel for the appellant contended that the prosecution evidence against the acquitted accused had disbelieved in its entirety, therefore, the conviction of the appellant cannot be sustained on the same evidence and the principle of indivisibility of evidence would be very much attracted to present case ; that the prosecution has failed to connect the appellant with assault, causing the death of the deceased particularly when a number of other accused were charged for having attacked the complainant party armed' with dandas and hatchets ; that particularly no hatchct wound has been found on any one of the witnesses, and, therefore, the witnesses have belied themselves ; and lastly that the conviction of the petitioner under section 148, P. P. C. Is not sustainable in the eye of law because the co-accused have been acquitted of all the indirect charges under section 149, P. P. C. i. e. Forming an unlawful assembly, armed with deadly weapons and unless section 149, P.' P. C. Is attracted to a case, conviction under section 148 P. P. C. Cannot be recorded.
10.. We have examined the prosecution -evidence and find that the appellant has been charged for causing injuries to the deceased.
In the F. I. R. The complainant has charged that the appellant Rasul Bux gave danda blows to Chhato Machhi while remaining accused dealt hatchet and danda blows to Jummo and Muhammad Hasan etc. However, in his statement at the trial this eye-witness (Muhammad Usman complainant) has charged the appellant for giving danda blow to the deceased and the other accused as well for doing the same. Muhammad Usman complainant was examined as P. W. 1 wherein he stated : "The accused Rasulo son of Saleh caused danda below to the deceased Chhato. The accused Arab gave danda also to the P. W. Andal. The other accused also gave hatchet blows and danda blows to other P. Ws. Myself and Qasim challenged the accused persons not to murder the man. The accused caused blows to the P. Ws. Andal. Jummo and Hasan and also to deceased Chhato ' Moreover, in the evidence we find that the commplainant Muhammad Usman has stated that Adlu and Gul Panhwar passed near his village by the side of the well wherefrom the women-folk were fetching water, and both of them had cut jokes with them ; that a complaint was made the womenfolk to the male members of the complainant family, and on the next day at sun-set Adlu and Gul Panhwar, while going back to the village, abused by Jummo and Hasan etc. And were asked as to why they had cut jokes with their females. From this narration of the facts regarding the motive Rasul Bux appellant does not appear to be directly involved in that incident.
11. However, the question that remains for determination is that whether the appellant is guilty of culpable homicide amounting to murder or his case would fall under section 304, Part II. In the circumstances of the, case it appears that it was a fight during which the accused party B gave beatings to the deceased and his companions but the fight was sudden and without premeditation or anyone having taken any undue advantage. Thus, we find that the case of the appellant would fall under section 304, Part-II, P. P. C. Particularly when the weapon of offence ; its dimension and weight has not been brought on the record so as to presume that the accused had the intention that death would result from the injury caused by the use of that weapon. It is evident that besides Rasulo, other accused were also charged for giving danda blows to the deceased we would, therefore, held that the offence committed by the appellant falls under section 304, Part-II, P.
P.C. And, accordingly, we alter his conviction and sentence to seven years' R. I. Plus fine of rupees two thousand, or in default, to undergo one year R. I. Fine, if recovered, shall be paid as compensation to the heirs of the deceased. The appellant will also be entitled to the benefit of section 382-B, Cr. P. C.
12. We may observe here that the offence in this case was committed on 4-4-1971 when imprisonment for life was not substituted for transportation for life in sections 302 and 304, P. P. C.
Therefore, we are of the C view that the learned. High Court Judges were not justified to alter his conviction from the . One for transportation for life to imprisonment for life.
13. Contention raised regarding the conviction of the appellant under section, 148, P. P. C. While the other accused have been acquitted also needs consideration in this case. In our opinion there can be no conviction under section 148, P. P. C. Without the participation of five or more persons in the commission of the offence. Unlawful assembly is defined in section 141, P. P. C. As follows:- "An assembly of five or more persons is designated as 'unlawful assembly' if the common object of the persons composing that assembly is : ' First......................
' Second.........
' Third to commit any mischief or criminal trespass or other offence............ I)
"Rioting" is defined in section 146, P. P. C. As under whenever force or violence is used by an unlawful assembly, or by .Any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
' In order, therefore, to hold an accused guilty of the offence of 'rioting' it is imperative that he must be, in the circumstances of the case, a member of an unlawful assembly within the meaning of section 141, P. P. C. Otherwise his conviction under section 148, P. P. C. Would not be sustainable. It has been held by this Court in Rahmat and 2 others v. The State (1): "Two of five accused acquitted by High Court on appeal-Conviction of remaining accused under section 148 not sustainable-Placing constructive liability under section 149 also rendered incorrect."
It was held : "Since there was no allegation by the prosecution that any persons other than Karam Din and Khair Din were also involved in the attack, the acquittal of these two persons by the High Court rendered the charge of an unlawful assembly untenable, and the conviction under section 148, P. P. C. Would appear to be bad. Consequently, it would also become technically incorrect to place the constructive liability for the offences of murder and attempt to murder under section 149, P. P. C."
' In our view, there can be no conviction under section 148/149, P. P. C. The question of constructive liability under section 149, P. P. C. Does not asise for conviction under section 148, P. P. C. Because the very definition of the offence of "rioting" under section 14o, P. P. C. Involves constructive liablility.
In view of this, we hold that. The appellant cannot be convicted under section 148, P. P. C. Unless there are five or more accused to have participated in the commission of offence. Therefore, conviction and sentence of the appellant under section 148, P. P. C. Is set aside. This appeal stands allowed as mentioned above. {{FOOT NOTE}}
(1) 1969 P Cr. L J 1067 {{FOOT NOTE}}