1. MUHAMMAD AFZAL ZULLAH, J.-- This appeal through leave of the Court is directed against judgment of the Peshawar High Court dated 30-3-1983; whereby in a case of murder while dismissing a Criminal Appeal, the following conviction and sentences were maintained: "Muqaddar, Mir Rehman and Aslam to two years' R.I. Each under section 148/149, P.P.C., and to two years' R.I. Each with a ~fine of Rs.1,000 (One thousand) each or in default of payment of fine, to suffer further six months' R.I. Under section 449/149, P. P. C. They are further convicted and sentenced to imprisonment for life with a fine of Rs, 1,000 (One thousand) each or in case of default of payment of fine, to suffer further six months' R.I. Under section 302/149, P.P.C. All the sentences are to run concurrently."
2. Leave to appeal was granted to examine the question of vicarious liability of the appellants and their conviction by application of section 149 P.P.C. In so far as the offence of murder is concerned.
3. It is not necessary to give all the details of the facts in this case. It would, however, suffice to mention that the three appellants, namely, Muqaddar, Aslam and Mir Rehman, together with the two absconders, namely, Gul Muhammad and Rahman, when all of them were armed with fire- arms--Rehman with pistol and others with Topaks, formed an unlawful assembly with the object of taking forcible possession of a house from Shah Jehan deceased. They then not only trespassed into the house but one of them, namely, Rehman absconder also shot at Shah Jehan deceased, who had not even shown any physical opposition to the trespass. Shah Jehan (deceased) later on died in the hospital after making a report, which was treated as dying declaration.
4. The role attributed to the appellants was that of trespass when they were armed with Topaks-- deadly weapons. Mst. Iqbal Jana P.W. The mother of the deceased who appeared as an eye- witness, however, attributed two further acts to the appellants during the occurrence: One that they caught hold of the deceased when the absconding accused--Rahman, fired at the deceased; and that, the appellants had also given her beating with butt ends of their guns.
5. After hearing the learned counsel, it is no more in dispute that Mst. Iqbal Jana gave an exaggerated version of the prosecution case. She neither bore any injuries vis-a-vis the alleged beating to her by the appellants with butt ends of the guns nor she was supported by her son in his dying declaration regarding this part of the occurrence attributed to the appellants. He also did not support her allegation that the appellant had caught hold of him when the Rehman absconder fired at him. It is clear from the evidence that in reality the only role played by the appellants was that they having armed themselves with Topaks accompanied the absconders to the house of the deceased with the common object of committing trespass with show of force demonstrated through deadly weapons. There is no dispute that the appellants committed offence of rioting when they were armed with deadly weapons and thus were guilty under section 148, P.P.C. But for the disputed application of section 149, P.P.C. Vis-a-vis the offence of murder, this rioting will be with reference to the offence of trespass in the house of the deceased which was by show of criminal force. The moot question, however, arises whether leaving aside the offence committed by the absconders, can it be safely held that the appellants are vicariously liable for the offence of murder by application of section 149, P.P.C. Or they are guilty only of trespass under section 452, P.P.C.
6. Section 149, P.P.C. Reads as follows:-- "149. Ever member of unlawful assembly guilty of offence committed in prosecution o common object.--offence is committed by any member o' an unlawful assembly in prosecution the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
7. It is obvious from the language used in this section that it consists of two parts: one, when an offence (of murder in this case) is committed by any member of an unlawful assembly (in this case allegedly by Rehman absconder only) in prosecution of the common object of that assembly then every person who is a member of the' assembly (like the present appellants) is guilty of that offence (alleged' murder) even if he has no` committed the same; and two, even if the offence (murder in this c; se) is not committed in the prosecution of the common object but the nature of the offence is such that the' members of the assembly must have known that such in offence (murder) was likely to be committed in the prosecution of the object of the, assembly, which in this case was trespass. Even thin the person who has himself not committed that offence (murder) would be liable for it.
8. It is an admitted position that the common object of the unlawful assembly in this case was not the murder of Shah Jehan. It is now an undisputed fact that only Rehman absconder allegedly fired the shot at the deceased and that none of the appellants had done any physical harm to the deceased nor did they do any other overt act except to accompany Rehman absconder to the house of the deceased armed with deadly weapons so as to effect the trespass through show of force. Their case, if at all, could fall under the second part of section 149 and not under the First Part.
9. There is considerable case-law on the second part of the provision. No hard and fast rule can be laid with regard to the exact nature of cases which would fall thereunder. But from precedent law it can safely be stated that when the Legislature intentionally avoided the use of the phrase, "had reason to believe" in favour of the selected expression "knew to be likely to be committed", it wanted to emphasise a greater amount of cognition and more positive perception on the part of the accused than mere supposition. It would, therefore, not be possible to assume that whenever there is only a possibility one way or the other that the accused should have assumed the likelihood of a certain event then the second part of section 149, P.P.C. Would apply to him. But he must be shown to have known through cogent facts and reasoning that the offence charged was likely to be committed. It is in this sense that the Legislature also avoided the use of the expression might have "known".
10. Having determined the correct scope of the word "knew", it is necessary also to make an observation about one trend of decisions, mostly in murder cases under the second part of section 149, P.P.C., is that wherever, the accused are armed with deadly weapons, the presumption is automatically raised that they must be known that such weapons would certainly be used if an occasion arises to murder the adversary; therefore, all the members of the assembly must have known that the offence of murder was likely to be committed. Firstly, to give such a supposition, the position of law is against the language employed in the section. Had it been so, it would have been provided in the section itself at least in the form of an illustration. Secondly, the none-use of such a weapon for purpose of causing the death of an adversary when opportunity is available would negative such an intention and even prior knowledge. Thirdly, it will be wrong to presume only one possibility and not to visualise other possibilities. For example, one being that while determining the object of the assembly before hand the members thereof might have also consciously decided that the weapons would be used only for show of force or some other minor offence and that no serious offence would be committed nor the weapons would be used in that connection. In such a situation, the knowledge that the weapons were likely to be used for commission of offence of murder would be negative by a positive intention not to use them for such an offence. Fourthly, the other attending circumstances and conduct of a particular member of the assembly might show that although others may have had such knowledge, a particular individual member had no such knowledge. These considerations are not exhaustive of all the relevant factors which should be kept in mind when determining the liability of an accused person under the second part of section 149, P.P C.
11. As for the treatment of each individual case it is reiterated that the question of knowledge is one of fact which should be decided only after full application of mind to all the relevant attending circumstances.
12. As illustration only the following very few cases are referred; they incidentally are all found in one volume of Supreme Court Monthly Review: Akhtar Hussain v. The State 1969 SCMR 278; Lal Din v. The Crown 1969 SCMR 401; and Mir Dad alias Amir Dad v. The Crown 1969 SCMR 419.
13. Coming to the present case, it is obvious from the evidence that the accused party believed that it was unreasonable on the part of Shah Jehan not to vacate the house in question, voluntarily. The act/offence which was the object of the unlawful assembly was clearly only to commit house trespass. The appellants did not use their weapons except by means of show of force. They had enough opportunity to use them. We have already held that the allegation of Mst. Iqbal Jana with regard to her having been beaten by them, is not correct. It would have been a different question if it would have been established that she was caused simple hurt; namely, whether in that case the offence would have been under section 323, F.P.C. Or graver offence by application of section 149, P.P.C. Rehman absconder fired the shot at the deceased. The appellants could also have fired at the deceased. They did not do so. This negatives their intention in so far as the question of causing of physical harm to the inmates of the house is concerned. That being so, a very strong presumption would arise in their favour that if they had no intention to cause any physical hurt to the inmates of the house then it was most unlikely that they would have known that a murder would be committed. In such a situation, it would not be impermissible to raise a presumption otherwise; that it was against the intention, object and knowledge (vis-a-vis likelihood) of the members of the assembly that one of them, namely, Rehman absconder, allegedly decided all of a sudden to fire at the deceased.
14. "For the reasons to be recorded separately, this appeal is partly allowed in the following terms: "Conviction of the appellants is altered from sections 148, 302 and 449, P.P.C. Read with section 149, P.P.C. To section 148, P.P.C. And 452, P.P.C. Read with section 149, P.P.C. And sentenced to rigorous imprisonment already undergone which is stated to be more than 3 years and a fine of Rs.20,000 each in default of payment of which further 1 -- years' R.I. Each. Entire amount of fine when recovered to be paid as compensation to the heirs of the deceased.
15. "Mr. Abdur Rehman Khan, Advocate, has, after consulting his clients, made a statement that amount of fine/ compensation shall be deposited with the Registrar of the High Court within one month and that he will inform the Court accordingly."