MUHAMMAD MUNIR KHAN, J. --This Criminal Appeal No. 171 of 1987, connected Murder Reference No. 74 of 1987 arise from the judgment of learned Additional Sessions Judge Toba Tek Singh, whereby he on 2-3-1987, while acquitting Noor, Ahmad, Muhammad Nawaz son of Makhan, Muhammad, Abdul Qadir and Yousaf accused, convicted Shahmand alias Shama, Muhammad Nawaz son of Ghulam Hussain, Naseer, Ramzan, Sarang, Ameer and Ashiq appellants under sections 148, 302 and 302/149, P.P.C. And sentenced them as under:
(1) Under section 148,All the appellants to two P.P.C. For the crime ofyears' R.I. Each rioting armed with deadly weapons.
(2) Under section 302 To death.
P.P.C.
(i) Shahmand appellant for the murder of Bashir deceased.
(ii) Muhammad Nawaz To death. alias Muhammad son of Ghulam for the murder of Gahna.
(i.e) Naseer, Ranizan and To death each.
Sarang appellants for the murder of Sarfraz deceased
(3) Undersection To imprisonment for life 302/149, P.P.C. Ameer on three counts with the and Ashiq appellants direction that the for the murder of sentences would run Bashir, Gahna and concurrently All the Sarfraz. Seven appellants were given benefit of provisions of section 382-B, Cr.P.C
2. In this case, 13 accused were sent up for trial under various sections of Pakistan Penal Code. All of them were charged under section 148, P.P.C. For rioting armed with deadly weapons and under section 302/149, P.P.C. For tipple murder of Bashir, Gahna and Sarfraz in furtherance of their common object. Amir appellant was charged under section 382, P.P.C. For snatching licensed gun of Gahna deceased. Ashiq appellant was charged under section 382, P.P.C. For snatching licensed gun of Bashir deceased. They were acquitted on the ground that snatching of gun in the circumstances of the case does not constitute offence under section 382, P.P.C. The six acquitted accused were charged under section 201/149, P.P.C. For causing the evidence to disappear by concealing the dead bodies of the deceased at different places but they were acquitted of this charge. They were also acquitted of the charge under section 302/149, P.P.C. On the ground that no specific part in the murder of the three deceased was attributed to them and that there was also a possibility 'of exaggeration of the true number of the culprits. It may be noted here that the State has not filed appeal against their acquittal. However, the complainant has filed Criminal Revision No. 375 of 1987 against their acquittal and for the enhancement of sentence of the two appellants namely Amir and Ashiq from imprisonment for life to death. We propose to dispose of the appeal, murder reference and the connected criminal revision through single judgment. .
3. Since after hearing the learned counsel for the parties, we feel inclined to set aside the conviction and sentence of the appellants and remand the case for retrial from a particular point in proceedings of the case, on the ground that judgment of the trial Court suffers from serious infirmity, therefore, we need not set out the acts in detail and enter in detailed discussion or enter upon the merits of the case. We find that the impugned judgment is confusing, ambiguous, incomplete, not lucid and is also violative of the provisions of section 367, Cr.P.C., in that after having come to the conclusion that the appellants were members of unlawful assembly and the tipple murder was committed in furtherance of the prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of common object, the trial Court does not appear to have addressed itself to the question of the conviction and sentence of Shahmand for the murders of Gahna and Sarfraz deceased; to the question of the conviction and sentence of Muhammad Anwar appellant for the murder of Bashir and Sarfraz and to the question of conviction and sentence of Naseer, Ranizan and Sarang appellants for the murder of Bashir and Gahna. Instead they have been sentenced for their individual act. It is worth noting that Amir and Ashiq appellants, who had not caused the death of the three deceased have been convicted and sentenced under section 302 read with section 149, P.P.C. On three counts for their vicarious liability for the act of their co---accused namely Shahmand, Muhammad Nawaz, Naseer, Ramzan and Sarang. Relevant para. Of the judgment of the trial Court may be reproduced advantageously: Para. No.22: `The accused formed unlawful assembly armed with deadly weapons in prosecution of the common object of that assembly being member of such assembly knowing fully all that in prosecution of their object the murder of Gahna, Bashir and Sarfraz has to take place. The accused Naseer, Ranizan and Sarang are held guilty under section 302, P.P.C. Of committing murder of Sarfraz. Shahmand accused is held guilty under section 302, P.P.C. Of committing murder of Bashir deceased, while Muhammad Nawaz alias Muhammad accused son of Ghulam is held guilty under section 302, P.P.C. For committing the murder of Gahna deceased. Ashiq and Ameer accused are also held guilty for the said murder of Sarfraz. Bashir and Gahna under section 302, P.P.C. Read with section 149, P.P.C. All the accused Naseer, Ramzan, Sarang, Shahmand, Nawaz, Ashiq and Ameer are also held guilty of the charge of rioting armed with deadly weapon under section 148, P.P.C. The commission of offence under section 382, P.P.C. By Ashiq and Ameer accused is not established because their only intention apparently was to deprive Ranizan and Gahna deceased of their arms, and nothing more for accomplishment of their common object. The offence under section 201, P.P.C. Also is not proved because the dead bodies were only dragged by the accused and they were not hidden so as to believe that the accused did so with the intention to screen of themselves from the legal punishment. I do not agree with the defence version that the accused had a coerced mind as their brother Bashir was murdered by the deceased because the accused side did implicate Naseer son of Ameer, etc. Who were responsible for the murder of their brother Bashir in Exh. P.EE. These are brutal murders and the accused deserved no leniency in the present case.
Para. No.23. I, therefore, proceed to convict Shahmand accused under section 302, P.P.C. For the murder of Bashir deceased and proceed to sentence him with punishment of death. He shall be hanged by neck till he is dead. Muhammad Nawaz alias Muhammad son of Ghulam accused is sentenced with punishment of death for committing the murder of Gahna under section 302, P.P.C.
He shall be hanged by neck till he is dead. Naseer accused is held guilty for committing murder of Sarfaraz and is sentenced to death. He shall be hanged by neck till he is dead. Ramzan accused is sentenced with punishment of death under section 302, P.P.C. For committing the murder of Sarfraz.
He shall be hanged by neck till he is dead. Sarang accused is sentenced to death under section 302, P.P.C. For committing the murder of Sarfraz. He shall be hanged by neck till he is dead. Ashiq accused is sentenced to imprisonment for life under section 302, P.P.C. For the murder of Gahna and Sarfaraz on three counts. Ameer accused is sentenced to imprisonment for life for the murder of Sarfraz, Bashir and Gahna on three counts. All the accused, namely Naseer, Ramzan, Sarang, Shahmand, Muhammad Nawaz alias Muhammad, Ashiq and Ameer are punished to suffer two years' R.I. Each under section 148, P.P.C The sentences of punishment of Ashiq and Ameer accused shall be spent by them concurrently. All the accused shall have benefit of section 382/13, Cr.P.C."
It is thus very much obvious that despite conviction of the appellants under section 148, P.P.C. And its clear finding in Para. No. 22 of the judgment that the accused formed unlawful assembly armed with deadly weapons in prosecution of the common object of that assembly, being members of such assembly knowing fully that in prosecution of their object the murder of Gahna, Bashir and Sarfaraz has to take place, the trial Court has not convicted and sentenced appellants Shahmand, Muhammad Nawaz, Naseer, Muhammad Ramzan and Sarang under section 302/149, P.P.C. On three counts. Furthermore, the fine is mandatory under section 302, P.P.C. But no fine has been imposed in this case. The trial Court has also not ordered the appellants to pay to the legal heirs of the deceased any compensation under section 544-A, Cr.P.C. Strangely enough benefit of the provisions of section 382-B, Cr.P.C. Has also been given to the five appellants sentenced to death. It is really sad and unfortunate that after having -found the five appellants members of unlawful assembly in prosecution 'of the object whereof the three persons were done to death by the members of that assembly, the trial Court has miserably failed to determine what sentence be awarded to them for each murder. It is well-settled that where more accused are tried for more than one murder, the trial Court is obliged to determine the criminal liability of each accused qua each deceased and on finding any particular accused to be member of the unlawful assembly in prosecution of the common object whereof more than one persons are killed, it has to determine the legal sentence to be passed on each accused for each murder. For all these reasons, the judgment of the trial Court as a whole cannot be approved. So there is no option but to set aside the judgment of the trial Court to the extent of the appellants.
4. As for the acquittal of the six accused, we find that the reasons given by the trial Court are quite satisfactory. They had not played any specific part in the murder of the three deceased. On the face of the allegations, no case-under section 201/149, P.P.C. Was made out against them. In this view of the matter no exception can be taken to their acquittal.
5. ` The further questions arises a to whether or not the appellate Court can order re-trial of some of the accused while maintaining the acquittal/conviction of others. The learned counsel for the complainant was of the view that partial remand/retrial of case was not legally permissible. The relevant section of the Cr. PC may be reproduced advantageously- "Section 423.--- (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:
(a) in an appeal from an order of acquittal, reverse such order And-direct that further inquiry be made, or that the accused be retried or sent for trial to the Court of Session or the High Court, as the case may be, or find him guilty and pass sentence on-him according to law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused; or order him to be retried by a Court of competent jurisdiction subordinate to such.- Appellate. Court or sent for trial, or (2) alter the finding maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter the nature of the sentence, but subject to the provisions of section 106; subsection (3), not
(c) in an appeal from any other order, `alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper."
Bare reading of the provisions of law reproduced above will show that in an appeal from conviction, the appellate Court may order the accused to be retried by a Court of competent jurisdiction subordinate to it. The word "him" used in clause (b) of subsection (1) of section 423, Cr.P.C. Is of great significance, which will show that it is not the case, which is to be remanded but it is the accused who is to be retried by a Court of competent jurisdiction. Furthermore, the word "retrial" used in this section does not necessarily mean trial de novo. So we are convinced that an appellate Court can make an order for retrial of a, particular accused from a particular stage in proceedings of the case and is not obliged to make an order for retrial of the case as a whole or for the retrial of the co-accused who in its opinion have rightly been acquitted. It follows that in an appeal where ground for retrial appears only in respect of some of the accused, the case cannot and should,, not be ordered to be retried in respect of all. Reliance may be placed on case reported as Muhammad Shafi and 4 others v The State 1974SCMR289.
6. Pursuant to the above discussion, the convictions and sentences of the appellants are set aside.
Since the learned trial Judge has by now been' transferred, so the appellants will be tried by the learned Sessions Judge, Toba Tek Singh, who will decide it afresh on the existing evidence after hearing the arguments of the parties on merits of the case. The retrial of appellants will proceed from the stage of final arguments to its conclusion in the judgment of conviction or acquittal, as the case may be, without being least influenced by the impugned judgment of the trial Court and this judgment as well. He will write judgment in conformity with the provisions of section 367, Cr.P.C, In the meantime, the appellants shall remain in jail as under-trial prisoners. The learned Sessions Judge shall decide the case within two months of the receipt of this judgment, under intimation to the D.R. (Judicial) of this Court. The connected criminal revision is dismissed in limine.
Sentence of death is not confirmed.