1. MUHAMMMAD HALEEM, C.J.--Leave to appeal was granted to consider the offence committed by the appellant and the quantum of sentence awarded to him.
2. The appellant was tried alongwith Mahmud, his cousin, whose petition for leave to appeal was dismissed, Allah Ditta and Faiz Muhammad. Mahmud is the son of Allah Ditta while Faiz Muhammad is his brother. They were tried for committing the murders of Faiz Alam and his son Safdar at 5.30 p.m. On 21st of October, 1976, in the village known as Dhoke New Lalyan about five miles from Police Station Civil Lines, Rawalpindi. Deceased Safdar owned a provision shop. It is the prosecution case that at the stated the Mahmud entered the shop to make purchases, but Safdar rebuffed him saying that he should first clear his dues upon which Mahmud retorted that he would pay back. He again came there a little while after armed with a knife and straightaway inflicted a knife injuries on Safdar upon which he fell down. Faiz Alam attempted to intervene but he was also given a stab-wounds by Safdar. At this juncture Pervaiz, armed with a knife alongwith Allah Ditta and Faiz Muhammad, who were empty-handed, came there and those who were empty handed gave a "lalkara" not to spare their lives upon which Pervaiz inflicted knife injuries on Faiz Alam.
3. Mahmud again caused a knife injury on Faiz Alam and on their hue and cry Muhammad Zeman and lqbal Hussain came to the spot and witnessed the incident. Mahmud and the others thereupon decamped from there. Both of them were later taken to the hospital for treatment, but Safdar succumbed to his injury while Faiz Alam survived for eight more days. His statement was recorded by Munawar Hussain (P.W.11), Sub-Inspector, at District Headquarters Hospital, Rawalpindi at 7-00 p.m. On 21st of September, 1976, which was later transcribed in the 154, Cr.P.C. Book. Upon his demise this statement was led in evidence as his dying declaration.
4. On 24th of September, 1976, Mahmud and Pervaiz were arrested and at their behest blood-stained knives were secured. Deceased Sefdar had one stab-wound while Faiz Alam had five such injuries on his person.
5. The trial Court accepted the recoveries made at the behest of the appellant and so also as against Mahmud, the dying declaration of deceased Faiz Alam and the ocular testimony of Muhammad Zaman (P.W.7), and, accordingly, recorded conviction under section 302, P.P.C. Read with section 34, P.P.C. The appellant was convicted to suffer imprisonment for life and to pay a fine of Rs.5,000 or in default to undergo rigorous imprisonment for to years while Mahmud was sentenced to death and also to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for to years. The trial Court while acquitting Allah Ditta and Faiz Muhammad held that they were empty-- -handed and for that reason no injury was attributed to them, but only a proverbial "lalkara" which did not establish that they had participated in the commission of the offence.
6. On appeal and reference, the High Court dismissed the appeal and confirmed the capital punishment of Mahmud. It needs to be mentioned here that Pervaiz Akhtar had also an injury which lent support to his participation in the transaction, but the prosecution had not explained as to how he suffered it. However, what is of significance is that not only in the dying declaration, but also in the testimony of Muhammad Zaman (P.W.7) which has been believed, he is said to have come after the infliction of injury on Safdar and also one such injury on the chest of Faiz Alam which proved to be fatal. The arrival of the appellant later alongwith the other to accused, who were empty-handed, and his causing simple injuries on the spur of the moment after the infliction,' of fatal blows on the to deceased, evidently shows that he did not share the common intention to kill either Safdar or Faiz Alam. Common intention had to be judged from all the facts and circumstances of the case and not only by reference to one circumstance namely, that of causing simple injuries. The fact that the trial Court had acquitted Allah Ditta and Faiz Muhammad eminently shows that it did not accept their presence in the context of sharing the common intention. Non-participation by itself will not negative this liability if it is in furtherance of the common intention shared by all the participants. Therefore, the causing of the simple injuries was an individual at of the appellant and has to be assessed on that plane.
7. The trial Court while assessing the role of the appellant in the crime held that Faiz Alam had died "as a result of injury sustained by him at the hands of accused Mahmud" while the appellant had only caused three such injuries "on the non-vital parts of the body" which were simple in nature. But on the question of his vicarious liability, the trial Court held that he had shared the common intention on the spur of the moment, but this conclusion could hardly be drawn upon the assumption of his role in the crime. The High Court also came to the same conclusion that it was Mahmud who was responsible for the deaths of the to deceased but failed to distinguish the case of the appellant on the ground of his sharing the common intention.
8. Accordingly, we are of the view that the appellant is only guilty of the lesser offence under section 324, P.P.C. His conviction is, accordingly, altered from section 302, P.P.C. Read with section 34, P.P.C.
9. To section 324, P.P.C. And he is sentenced under this section to suffer three years' rigorous imprisonment and to pay a fine of Rs.5,000 or in default to undergo rigorous imprisonment for six months.
10. With this modification, the appeal is dismissed. The fine, if recovered, shall be paid as compensation to the heirs of deceased Faiz Alam.