ABDUL QADEER CHAUDHRY, J: --This appeal by leave of the Court is directed against the judgment of the High Court dated 11-1-1983, to consider "whether the acquittal of the respondents under sections 302, 366, 376, 452 and 325, P.P.C. Was not correct."
2. The facts briefly stated are that on the night intervening 6th and 7th September, 1978, Mst.
Ghulam Zohra, the first informant, was sleeping in the courtyard of her house alongwith her mother-in-law Mst. Nura and sisters-in-law Mst. Aziz, Mst. Kaniz and Mst. Manzooran. Her husband Muhammad Anwwar (deceased) came from Behk at about 11-00 p.m. And asked his wife Mst.
Ghulam Zohra to put a separate cot in the compound. Mst. Ghulam Zohra went out with the lantern in her hand to bolt the door of the house. At that time, Zahoora, Afzal, Feroze and Arif armed with different weapons entered into the house and attacked Muhammad Anwar with their respective weapons. The mother and the sisters of the deceased tried to rescue the deceased but the above- named accused also injured them and they all suffered simple as well as grievous injuries. The accused persons then dragged Mst. Aziz, Mst. Kaniz and Mst. Manzooran to their adjacent house and raped them. Mst. Zohra tried to rescue her sister-in-law whereupon Feroze accused gave her a dang blow hitting on the head. She fell down on the ground. At the same time, there was a noise and alarm heard by the inmates of the house from the cattle-shed where the father and three brothers of the deceased were sleeping. When the complainant regained her senses she found her husband at the verge of death. She then went to the cattle-shed where she found Noor Muhammad, her father-in-law and his sons Zafar, Munawwar and Maqbul lying unconscious and seriously injured there. Meanwhile, her sisters-in---law had also returned as they had been released by the accused persons after tearing off their clothes and committing rape on them. The accused persons had also cut their pony-tales. The injured regained their consciousness after three days of the occurrence and stated that they were attacked by Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar Mochi and Ahmad Noon accused persons. The trial Court convicted Zahoor, Feroze, Afzal, Muhammad Arif under section 302/452/366/376, P. P.C. And sentenced them to various terms of imprisonment and fine. Muhammad Shakoor, Muhammad Nawaz, Muhammad Anwar, Muhammad Ayub, Ahmad Yar and Ahmad Noon were convicted under section 307/149, P.P.C. And sentenced to various terms of imprisonment and fine.
3. The motive for the said incident was that there was illicit relation between Muhammad Anwar, deceased and Mst. Khurshid Begum, the sister of Zahoor, Afzal, Feroze and Shakoor accused persons. This illicit relationship between Muhammad Anwar and Mst. Khurshid Begum made Mst.
Khurshid Begum pregnant and the child-birth had to be prevented by an abortion. The accused persons on account of the aforesaid reason committed the offence.
4. The learned counsel for the appellant submitted that both the sets of accused had committed the murder of deceased Anwar in furtherance of their common intention. Their object was the same and in achieving this object, some of the accused went to the cattle-shed and caused injuries to Nur Ahmad and his sons whereas the other accused committed the murder of deceased Anwar and raped his sisters and injured the other inmates of the house.
5. The learned counsel submitted that the motive has been admitted. The cattle-shed was near the house and all the accused had come with a definite purpose of killing Muhammad Anwar deceased who was accused of having illicit relation with the sister of Zahur and others. As such, the finding of the two Courts is against the principle of law. They were all vicariously liable for the offences under section 302/376, P.P.C. Etc. The learned counsel has referred to the following observation of the High Court in support of his contention:---- "We cannot accept the submission because the offences in this case were committed in the course of the same transaction at one and the same time, though at different places. The motive for the attack in this case was common to all accused. Moreover the behak of the deceased is only at a distance of one and a half Bigha from his house."
6. This observation by the High Court has been made in dealing with the contention that there should have been a separate trial of the accused responsible for the two incidents. This contention was not accepted by the High Court but the High Court concurred with the finding of the trial Court that the two sets of the accused are differently liable for the commission of the offences they had committed. It was observed by the High Court that "It would thus follow that the attack was opened by the two sets of the accused at both places simultaneously". The learned trial Judge in Para. 51 of the judgment has observed that "there is nothing on the file which may connect the aforesaid accused persons with the commission of the murder of Muhammad Anwar (deceased) though these are some significant circumstances which may lead us to the conclusion that the murder of the deceased in his house and the "behek incident" were the outcome of a deliberately planned conspiracy. However, in the absence of any evidence on the file to prove, the community of intention between the accused persons who participated in these different occurrences; one taking place in the house of the deceased and the other in the `Behek' there is no legal justification to warrant the conviction of Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar Mochi and Ahmad Noon under section 302, P.P.C. Etc." This observation of the learned Sessions Judge is supported by the evidence on record. There is no evidence of conspiracy between the two sets of accused when they launched attack at two different places. It is possible that initially they might have concerted jointly to take the life of the deceased Muhammad Anwar as is clear from the evidence of the complainant that Muhammad Anwar came from the cattle-shed at 11-00 P.M. The respondents who had launched attack at Nur Ahmad and others in the cattle-shed had not come to the house and participated in the murder of the deceased. The respondents did not commit any overt act, as regards the incident in the house of the deceased is concerned. The learned counsel for the appellants referred to Rahman Samail v. Emperor AIR 1939 Lahore 245 wherein it has been observed as follows:----- "The fact that several persons armed with lethal weapons gather together with the common object of assaulting a person clearly indicates that their common object was to cause grievous hurt with, the weapons and that death was the likely result of the beating they intended to administer. In such a case death is a likely consequence for which all are responsible and as causing of death in such circumstances would amount to murder all are guilty by virtue of'.
7. The above citation is inapt as in the cited case the incident had occurred at one place but in the present case, two separate incidents had occurred at two separate places.
8. Another aspect of the case is that against the acquittal of the respondents under sections 302 and 376, P.P.C. Etc., the State had not filed any appeal on the said charges. A criminal revision was filed by Mst. Ghulam Zohra, the complainant, which was dismissed. The High Court in its revisional jurisdiction could not record finding of conviction in a case of acquittal as the same has to beremanded to the trial Court for re-trial.
9. We do not consider that the facts of the present case warrant such procedure. No illegality has been committed by the two Court. There is no force in this appeal. The same is dismissed. The bail bonds of the respondents stand discharged.