' JUSTICE AJMAL MIAN (CHAIRMAN).---By this common judgment, we intend to dispose of the above two appeals. Criminal Appeal No.10 of 1991 has been filed by 12 convicts against the, judgment, dated 3-10-1991 passed by the learned Special Court for Speedy Trials No.II, Lahore, in Case No.190 of 1990, tried for offences under sections 148, 302/149 on two counts, 324/149, 449/149 and 436/149, P.P.C., whereas Criminal Appeal No.16 of 1991 has been filed by the State against the acquittal of eight accused mentioned therein by the above judgment.
2. The facts giving rise to the above appeals have been succinctly stated by the learned Judge, Special Court as follows:-- "Eleven years ago, Sher Muhammad son of Hakam All alongwith others was challaned for the murder of Muhammad Iqbal son of Sardar Muhammad complainant. Sher Muhammad and others were acquitted. On 26-5-1990, said Sher Muhammad was murdered within the jurisdiction of Police Station Wandat Colony, Lahore. Rehmat Ali (brother of abovementioned Muhammad Iqbal deceased and son of Sardar Muhammad complainant) and two others were challaned. On account of fear and enmity, Sardar Muhammad alongwith his family members shifted from Chak No.17, two months before the occurrence. A theft took place in the house of Sardar Muhammad in Chak No.17. Sardar Muhammad learnt about this theft on 29-7-1990. He took alongwith his grandson Nasarullah P.W. And reached his house situated in Chak No.17 on the morning of 31-7- 1990. Two wives of Rehmat Ali namely Rashida Bibi and Safiya Bibi accompanied by Muhammad Iqbal son of Sahib Din deceased (brother of Safiya Bibi), Nasim Bibi came to the house of Sardar Muhammad complainant. All of them were sitting in the courtyard and preparing the list of stolen articles. In the meantime Muhammad Iqbal son of Wali Muhammad deceased and Muhammad Mansha P.W. Who were relatives of Sardar Muhammad complainant, came there. They also sat in the courtyard. Shortly thereafter, Liaqat accused armed with rifle, Rehmat armed with gun, Abdul Razaq absconder armed with carbine and Zulfiqar accused armed with gun came on the roof of neighbour. Rehmat accused fired gunshot which hit Sardar Muhammad complainant on the nose.
Sardar Muhammad fell down on. The receipt of fire shot. Liaqat accused fired shot but it did not hit Sardar Muhammad and it hit the cot. Sardar Muhammad complainant and his two daughters-in- law Mst. Safiya, Mst. Rashida and grandson Nasarullah entered the kitchen. Sardar Muhammad complainant picked up his licensed gun. The ladies shouted that Sardar Muhammad had been killed. The abovementioned four accused left the spot. After their departure, Sardar Muhammad, Nasarullah, Nasim Bibi, Muhammad Iqbal son of Sahib Din deceased and Muhammad Iqbal son of Wali Muhammad entered the Pucca Kotha while Mst. Safiya Bibi, Mst. Rashida and Muhammad Mansha P.W. Took shelter against the looms. After some time, 22 accused came there armed with rifles, guns, carbines. They fired shots. Sardar Muhammad P.W. Returned the fire in self-defence.
The accused went on the roof of Kotha of Sardar Muhammad P.W. Hadis and Ali Muhammad shouted that the house of Sardar Muhammad P.W. Be set on fire. Din Muhammad Bhutto and Fazal Din accused went on to the roof. They had Kassis with them. They started dismantling the roof.
Hadis and Wali Muhammad shouted that kerosine oil be brought whereupon Muhammad Sadiq son of Imam Din, Ishaq son of Jamal and Bashir Ahmad brought tins of kerosine oil and they poured on the roof of Kotha of Sardar Muhammad and set the house on fire. Muhammad Iqbal son of Sahib Din and Muhammad Iqbal son of Wali Muhammad came out of the room. Hadis Muhammad fired gunshot which hit Muhammad Iqbal son of Sahib Din on the right eye. Ali Muhammad fired gunshot which hit Muhammad Iqbal son of Sahib Din on the right ear.
Muhammad Ramzan alias Kaka fired gun shot which hit on the back side of the head of Muhammad Iqbal son of Sahib Din. Muhammad Sadiq son of Muhammad Din accused fired rifle shot which hit Muhammad Iqbal son of Sahib Din on the abdomen. On receiving the fire shots, Muhammad Iqbal son of Sahib Din fell down and died. Liaqat accused fired rifle shot which hit Muhammad Iqbal son of Wali Muhammad on the right wrist who tried to run towards lane in order to save his life. Arif absconder fired rifle shot which hit Muhammad Iqbal son of Wali Muhammad on the chest who fell down and died at the spot. The accused went away after committing two murders. The occurrence was witnessed by Sardar Muhammad, Safiya, Rashida, Nasim Bibi, Nasarullah and Muhammad Mansha. Police arrived at the spot on coming to know of the occurrence. Sardar Muhammad P.W. Made statement Exh. P.G. On 1-8-1990 at about 6-00 p.m. On the basis of this statement formal F.I.R. Exh. P.G/1 was recorded at 7-00 p.m. At P.S. Chhanga Manga which was at a distance of ten miles."
3. The case was investigated first by P.W.17 Muhammad Rashid up to 26-9-1990. After that, the investigation was handed over to P.W.18 Dr. Muhammad Shafiq, A.S.P. Out of 22 accused, 16 accused were arrested by the former on 16-8-1990, while the remaining accused except two absconders Arif and Abdul Razzaq, were arrested on subsequent dates. A number of recoveries were made from some of the accused. The Investigating Officer also seized thirty .12 bore empties from the place of Wardat besides taking into possession burnt articles like quilt, pillows, cots, three Holy Qur'ans and blood-stained clothes of the deceased. He also collected the blood-stained earth from the place of Wardat.
4. P.W. Dr. Muhammad Arif Mahmood, carried out the post-mortem on the dead bodies of the two deceased on 2-8-1990 at about 9-00 a.m. He found the following injuries on the person of deceased Muhammad Iqbal son of Wall Muhammad:--
(i) one wound of entry in front of the chest;
(ii) one wound of entry on the back of right forearm;
(iii) an injury on the ulnar side right wrist which was wound of exit.
' Above injuries Nos. (ii) and (iii) communicated with each other. He opined that the death of the above deceased was due to shock and haemorrhage due to injury No.(i). He further opined that injuries were ante-mortem and were caused by a fire-arm. He also opined that injury No.(i) was sufficient to cause death in the ordinary course of nature.
5. While carrying out autopsy on the dead body of deceased Muhammad Iqbal son of Sahib Din, above P.W. Dr. Muhammad Arif Mahmood noticed the following injuries:- "(1) Lacerated wound circular 3/4 c.m. Diameter margin inverted. Bone deep on the left cheek area lacerated. Wound is directed to backward and upward.
(2) Lacerated wound 1-1/2 c.m. x 1 cm x bone deep. Margin everted on the right perietal region of the head. Injuries Nos. 1 and 2 communicate with each other. So injury No.1 entry wound No.2 exit wound. There is laceration of the brain and right occipital bone base of skull fractured into pieces.
(3) Lacerated wound 4 c.m. Diameter. Margin inverted on the left side of the abdomen with 5 (five) lacerated wounds 3/4 c.m. Diameter. Margin inverted abdominal cavity deep around the big wound 4 c.m. Of umbilicus.
(4) 7 (seven) circular lacerated wounds size 1 c.m. x 3/4 c.m. Each. Margin everted on the back of the left flank abdominal cavity. Injuries Nos.3-4 communicate with each other. So Injury No.3 entry wound and No.4 exit wound perforating the large intestine. Small intestine is directed to backward to the left.
(5) Two lacerated wounds. Margin inverted 2 c.m. x 1 c.m. Each abdominal cavity deep on the right side of the abdomen. Wound is directed to backward 10 c.m. Right of misline at the right illiac region. Corresponding holes present on the shirt."
' He opined that death was due to shock and haemorrhage on account of injuries Nos. 1 to 5. He also opined that injuries were ante-mortem and they were sufficient to cause death in the ordinary course of nature. The aforesaid P.W. Dr. Muhammad Arif Mahmood, also examined injured P.W.
Sardar Muhammad (the complainant) and found the following injuries on his person:---
(i) A lacerated wound on the left upper part of eye-lid;
(ii) A lacerated wound on the upper 1/3rd of nose;
(iii) A lacerated wound below the above injury No.(ii);
(iv) Burn injury in area 10 c.m. x 6 c.m. On the top of vertex.
' He found above nosal wound fractured. He also discovered metallic foreign body in the above injuries, which were caused by fire-arms. He opined that injuries Nos. (ii) and (iii) were grievous.
6. P.W.18 Dr. Muhammad Shafiq, A.S.P., after completing investigation, submitted challan on 5-6- 1991 in the Court of Additional Sessions Judge, Chunian, against 20 accused persons. Out of the above 20, six accused's names were mentioned in Column 2. Two of the above accused remained absconders. It seems that while the above case was under investigation, P.W.11 Sardar Muhammad (the complainant) also filed a private complaint on or about 5-12-1990 in the Court of Assistant Commissioner, Chunian, against the above accused persons with the addition that he also implicated P.W.17 Muhammad Rashid, S.H.O., as an accused person. According to the learned counsel for the accused, the learned Additional Sessions Judge after recording preliminary evidence, issued process on the above complaint. The above challan case was fixed before the learned Additional Sessions Judge on 8-9-1991, but it seems that the Federal Government through its notification dated 26-8-1991 in exercise of power conferred on it under subsection (2) of section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), hereinafter referred to as the Ordinance, ordered the transfer of the cases mentioned in the Table of the above notification for trial to the Special Courts specified in the third column of the said Table, which included the challan case in question. The learned Additional Sessions Judge, while transferring the above challan case to the Special Court in question, also forwarded the private complaint case of P.W.11 Sardar Muhammad. However, the learned Special Judge proceeded with the challan case only as he was of the view that the private complaint case was not transferred to him by the notification.
7. The prosecution examined three out of six eye-witnesses named in the F.I.R., namely, P.W.11 Sardar Muhammad, P.W.13 Nasarullah, grandson of Sardar Muhammad P.W.11, and Mst. Nasim Bibi, P.W.14 daughter of P.W.11 Sardar Muhammad, whereas the other three eye-witnesses were given up by the prosecution through a statement dated 29-9-1991 filed by the learned Assistant Advocate General on the ground that they were won over. The above statement reads as follows:-- "As per application of complainant duly endorsed by the learned counsel for the complainant I give up Mst. Rashida Bibi, Mst. Safiya Bibi, Muhammad Mansha and Muhammad Ismail as having been won over. Nemat Ali, Muhammad Rafique Yasin Constable No.125, Sikandar Hayat Constable No.593, and Ilyas Constable No.454 as unnecessary and tender in evidence the reports of Chemical Examiner as Exh. PBB and Exh. PCC and that of Serologist Exh. PDD and Exh. PEE. I close the case of prosecution."
8. It may be observed that above Mst. Rashida Bibi and Mst. Safiya Bibi were the wives of Sardar Muhammad's son, Rehmat Ali, Muhammad Mansha was also closely related to Sardar Muhammad, P.W.11. The prosecution also examined a number of other witnesses including the above two Investigating Officers, P.W.17 Muhammad Rashid and P.W.18 Dr. Muhammad Shafiq, A.S.P. Besides examining P.W.1 Dr. Muhammad Arif Mahmood. A number of documents including site plan, Mashirnamas, post-mortem reports, and medico-legal report of Sardar Muhammad, were also produced. After hearing the learned counsel for the parties, the learned Special Judge concluded that the eye-witnesses were interested and their testimony could not be accepted without independent corroboration. After examining the case of each of the accused, he found that there was no corroborative piece of evidence against the eight accused persons who are respondents in the acquittal appeal, but concluded that there were corroborative pieces of evidence against the remaining 12 accused persons, which included motive and the act of abscondence on the part of the above 16 accused persons for about 16 days. He, therefore, convicted the above 12 accused persons for the various offences and awarded various sentences as follows:-
(i) Under section 148 P.P.C., two years' R.I. To each of the accused;
(ii) Under section 302 read with section 149, P.P.C. For the murder of Muhammad Iqbal son of Sahib Din, each of the accused to undergo life imprisonment;
(iii) Under section 302 read with section 149, P.P.C. For the murder of Muhammad Iqbal son of Wall Muhammad, each of the accused to undergo life imprisonment;
(iv) Under section 449 read with section 149, P.P.C., each of the accused to undergo R.I. For ten years and a fine of Rs,20,000 each or in default in payment of fine, to undergo further R.I. For one year;
(v) Under section 436, P.P.C. Read with section 149, P.P.C., each of the accused is to undergo R.I. For ten years and a fine of Rs,20,000 each or in default of payment of fine, to undergo further R.I. For one year; and
(vi) Under clause (iii) of subsection (3) of section 337 read with clause (iii) of section 337-A, P.P.C.
And section 149, P.P.C., each accused was held to be liable to Arsh, which was to be 10 per cent of Diyat and also to undergo for a term of five years' R.I. As Tazir.
9. The twelve convicted accused have filed the above appeal (Criminal Appeal No.10 of 1991) against their convictions and sentences, whereas the State has filed the above acquittal appeal (Criminal Appeal No.16 of 1991) against the eight acquitted accused as stated hereinabove.
10. The acquitted accused have filed written preliminary objection to the maintainability of the above acquittal appeal. Mr. Abdul Aziz Qureshi, learned counsel for the accused, in support of the above preliminary objection to the acquittal appeal as well as in support of the appeal against the convictions and sentences, has urged the following legal points:-
(i) That the Federal Government, while issuing aforesaid notification dated 26-8-1991, had not applied its mind to the factum, whether the present case was a fit case for transfer;
(ii) That even otherwise, the present case did not fall within the category of a case involving an offence of gruesome, brutal and sensational in character or shocking to public morality, which was a condition precedent to pressing into service of subsection (2) of section 5 of the Ordinance;
(iii) That subsection (5) of section 13 of the Ordinance providing an appeal, is ultra vires the provision of Sub-Article (5) of Article 212-B of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution, incorporated by the Constitution (Twelfth Amendment)
Act, 1991;
(iv) That, in any case, the provision of subsection (5) of section 13 of the Ordinance could not have been made applicable retrospectively to the cases which were pending in the competent Courts, as the accused had acquired vested right in their remedies available prior to the enforcement of the Ordinance;
(v) That the provision of subsection (5) of section 13 of the Ordinance providing thirty days for an acquittal appeal as compared to seven days for an appeal by an accused under subsection (4) of above section 13, is discriminatory and, therefore, for an acquittal appeal, seven days are to be treated as the period of limitation and as the present acquittal appeal was filed after the expiry of seven days, the same was time-barred; and
(vi) That even otherwise, the above acquittal appeal has been incompetently filed by the Deputy Attorney-General in place of Attorney-General or Advocate-General or upon the direction of the Government as provided under subsection (5) of section 13 of the Ordinance.
' On the other hand, Miss Yasmin Saigol, learned counsel appearing for the State, has urged as under:---
(i) That the Federal Government has applied its mind to the facts of the present case before ordering of the transfer of the same to the Court of the Special Judge; .
(ii) That in the present case, not only two persons were murdered and one injured having two grievous injuries, a part of the house was also burnt and, therefore, it was a fit case for transfer to the Court of Special Judge;
(iii) That subsection (5) of section 13 of the Ordinance is not ultra vires the provision of Sub-Article
(5) of Article 212-B of the Constitution. In any case, this Court cannot go into the question of vires while acting under the provisions of the Ordinance;
(iv) That subsection (5) of section 13 of the Ordinance is very clear on the question that the pending cases could have also been transferred and there is no question of applying the provisions of the Ordinance retrospectively;
(v) That the period of thirty days for filing of an acquittal appeal by the State is not discriminatory and this Court cannot read the above period as seven days in place of thirty days; and
(vi) That the appeal has been competently filed by the Deputy Attorney-General.
11. The above first and second submissions of Mr. Abdul Aziz Qureshi, learned counsel for the accused persons, are interlinked and, therefore, can be conveniently dealt with together. In support of the above submissions, he has invited our attention to Sub-Article (1) of Article 212-B of the Constitution, Clause (c) of section 2, and subsections (1) and (2) of section 5 of the Ordinance,, besides placing reliance upon a reported judgment of the Supreme Court in the case of Muhammad Yaqub v. Government of Balochistan and another PLD 1989 SC 13 and an unreported judgment of the Supreme Appellate Court dated 21-10-1991 rendered in Criminal Appeals Nos.6 and 7 of 1991 (Ashiq Hussain and another v. The State).
' In order to appreciate the above submissions, it may be pertinent to reproduce hereinbelow the above provisions of the Constitution and of the Ordinance, which read as follows:--- "Article 212-B(1) of the Constitution:-- Establishment of Special Courts for trial of heinous offences.--(1) In order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to them by the Federal Governnient, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary Clause (c) of section 2 of the Ordinance:- "'offence' means an offence specified in the schedule, or an offence punishable under any law for the time being in force, which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase in its incidence needs to be tried most speedily;"
Subsections (1) and (2) of section 5 of the Ordinance:-- "5. Jurisdiction of Special Courts.- --(1) If the Government is of the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such case shall be tried by a Special Court.
(2) If the Government is of the opinion that a case pending before any Court should in the public interest be tried and decided speedily, it may, by order in writing, transfer the same for trial to a Special Court."
' A perusal of the above Sub-Article (1) of Article 212-B of the Constitution indicates that in order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to Special Court by the Federal Government, or an authority or person authorised by it in view of their being gruesome, brutal or sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary.
' It may further be noticed that clause (c) of section 2 of the Ordinance defines "offence as means
(i) an offence specified in the Schedule, or (ii) an offence punishable under any law for the time being in force, which in the opinion of the Government, is gruesome, brutal and sensational in character or shocking to public morality, or (iii) has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof, or (iv) which because of increase in its incidence, needs to be tried most speedily.
' It may also be pointed out that under subsection (1) of section 5 of the Ordinance, if the Government forms the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such a case shall be tried by a Special Court, whereas under abovequoted subsection (2) of section 5, the Government has been empowered if it is of the opinion that a case pending before any Court should in public interest be tried and decided speedily, it may by order in writing, transfer the same for trial to a Special Court.
It may be highlighted that subsection (1) of section 5 of- the Ordinance refers to the stage when a case in respect of an offence has been registered, and its challan has not been submitted to a competent Court whereas subsection (2) thereof deals with the pending cases before any Court.
12. In support of his first submission, Mi. Abdul Aziz Qureshi has pointed out that though a private complaint was also pending before the Additional Sessions Judge, Chunian, but the Federal Government has not taken notice of it and, therefore, it is apparent that it had not applied its mind fully to the facts of the case. The above submission seems to be based on surmises and conjectures. The factum that the Federal Government has not transferred the private complaint alongwith the challan case, would not manifest that it had not applied its mind to the question, whether it would be in public interest or not that the case be tried and decided by a Special Court.
As regards the fact of non-transfer of the private complaint, the learned Special Judge has rightly pointed out .The provision of section 403, Cr.P.C., which prohibits trial of a person for an offence for which he has been previously acquitted or convicted by a competent Court.
' It was also urged by Mr. Qureshi that factually there was no material before the Federal Government which could furnish foundation for pressing into service of subsection (2) of section 5 of the Ordinance. In this regard, we may observe that subsection (2) of section 5 of the Ordinance does not envisage a trial within a trial for the purpose of determining the question, whether transfer of a case to a Special Court would be in the public interest. The Federal Government is to examine whatever material is placed before it subjectively for forming an opinion on the above question. In the present case, nothing has been brought on record to indicate that the formation of the opinion by the Federal Government was without any material before it. We may further observe that this Court cannot go into the question, whether the material placed before the Federal Government was sufficient or insufficient for the formation of the above opinion. Once a notification is issued by the Federal Government, it is to be presumed that the opinion was formed by the Federal Government on the basis of some material before it, unless otherwise proved by the person making a contrary averment.
13. This leads us to the second question, whether the case in question was covered by the provisions of the Ordinance. In support of the above submission, Mr. Qureshi has referred to the reported judgment of the Supreme Court in the case of Muhammad Yaqub v. Government of Balochistan and another (supra) and the unreported judgment of the Supreme Appellate Court in the case of Ashiq Hussain and another v. The State (supra). In the first case, the facts were that the petitioner was tried by the Additional Sessions Judge, Quetta, for certain offences. The trial had commenced on 24-12-1987 and two witnesses were examined by the prosecution. Upon the miscellaneous application of the mother of the deceased, the learned Chief Justice of the High Court of Balochistan directed the trial Court to hear the case from day to day, pursuant whereof the case proceeded from day to day before the Additional Sessions Judge. At this juncture, Additional Chief Secretary (Home). Ordered the transfer of the case under subsection (2) of section 5 of the Special Courts for Speedy Trials Act, 1987, to the Special Court. The above order of the Additional Chief Secrctary was challenged through a Writ Petition in the High Court of Balochistan, which was dismissed, against which a petition for leave to appeal was filed in the Supreme Court, which was converted into an appeal and which was allowed. In that context, the following observations were made:--- "In the context of this definition, an offence cannot be an offence specified in the Schedule unless it conforms to the guidelines mentioned above. It is the commission of this offence which the Special Court can take cognizance of under section 7 of the Act in pursuance of a report under section 173 of the Code of Criminal Procedure. There is, therefore, a duty cast on the Special Court before it takes cognizance to satisfy itself that the guidelines exist to give to it the jurisdiction to try the case.
Reading, therefore, the definition of the word "offence" in section 2(c). And section 5 of the Act together a conclusion is obvious that unless the "offence" satisfies the guidelines enumerated in the definition, the power to transfer the case cannot arise in the public interest which is an expression of wide import and means "general social welfare or regard for social good and predicating interest of the general public in matters where a regard for the social good is of the first moment." (See Law Lexicon, 2nd Edition, 1986, Vol. 3, pp. 1956-1957). The opinion, therefore, should be relatable to the guidelines which are elemental in the concept of "public interest" and this should appear from the order itself.
' We find from the order that while transferring the case from the Court of a comptent jurisdiction, there is no consideration of the guidelines which renders the order, on the face of it, illegal.
Needless to say that as there is deprivation of jurisdiction of the competent Court, the power is to be exercised with care and caution within the parameters laid down in the Act."
' The above authority was followed by the Supreme Appellate Court, Lahore-II, in the above unreported judgment. k was held that as the Federal Government had issued notification under subsection (1) of section 5 of the Ordinance in respect of a case which was already pending in the Court of an Additional Sessions Judge instead of issuing a notification under subsection (2) of section 5, it was evident that the Government was not at all aware of the factum that the case was pending in the Court of Additional Sessions Judge, Faisalabad, and because of that reference was made to the F.I.R. Only. It was also held that the basic requirement that the transfer order should be in public interest, was not attended to. In view of the above finding, the following conclusion was recorded:-- "23. On examination of the statute, we find that the requirements of section 5(2) of the Ordinance are mandatory and not directory. If there is no application of mind as to the fulfilment of the conditions for assumption of the jurisdiction, the whole trial will vitiate."
14. The above two cases are distinguishable from the present case, inasmuch as in the above first authority, the trial of a murder case was being proceeded day to day in compliance with the direction of the Chief Justice of the Balochistan High Court and a number of witnesses were already examined. Secondly, the order of the transfer from the Court of the Additional Sessions Judge to the Special Court was challenged through a Constitutional Petition before the High Court, which matter eventually came up for hearing before the Supreme Court through a petition for leave to appeal. In the above second authority, the notification was .Issued under subsection (1) of section 5 of the Ordinance on the assumption that no case was pending in a competent Court of law.
15. In the case in hand, the notification has been issued under subsection (2) of section 5 of the Ordinance. There is nothing on record to indicate that the Federal Government formed its opinion without having any material before it. The question, whether the transfer was in public interest or not, was a matter which was to be decided by the Federal Government. In the absence of any material to conclude that the formation of opinion was whimsical or arbitrary, it is to be presumed that the power under subsection (2) of section 5 of the Ordinance has been properly exercised.
16. As regards the question, whether the alleged offence committed falls within the ambit of clause
(c) of section 2 of the Ordinance read with Sub-Article (2) of Article 212-B of the Constitution, it may be observed that the alleged offence involved not only commission of two murders but also burning of a portion of the complainant's house and, therefore, the Federal Government could form the opinion that the offence was of the nature referred to in above clause (c) of section 2 of the Ordinance and Sub-Article (1) of Article 212-B of the Constitution. It is not necessary that the Federal Government should mention in the notification the factum that the offence is gruesome, brutal and sensational in character or shocking to public morality etc. We may also point out that under clause (c) the definition of "offence is of very wide import, which includes the offences categorized in sub-paras. (i) to (iv) hereinabove in para.
11. It is not necessary for us to examine the question, whether the above definition is ultra vires the provision of Sub-Article (1) of Article 212-B of the Constitution as this Court, while exercising the appellate jurisdiction under section 13 of the Ordinance, cannot question the vires of the provisions of the Ordinance. This point has been dealt with hereinbelow in detail. It will suffice to observe that the impugned notification cannot be said to be beyond the purview of clause (c) of section 2 read with subsection (2) of section 5 of the Ordinance.
17. Adverting to the above third submission of Mr. Abdul Aziz Qureshi, learned counsel for the accused persons, that subsection (5) of section 13 of the Ordinance providing an acquittal appeal is ultra vires the provision of Sub-Article (5) of Article 212-B of the Constitution, it may be stated that in furtherance of his above submission, he has relied upon Sub-Article (5) of .Article 212-B of the Constitution, which reads as follows:--- "(5) The law referred to in clause (1) shall make provision for the constitution of as many Supreme Appellate Courts as the Federal Government may consider necessary and for an appeal against the sentence or final order of a Special Court being preferred to a Supreme Appellate Court which shall consist of--
(a) a chairman, being a Judge of the Supreme Court to be nominated by the Federal Government after consultation with the Chief Justice of Pakistan; and
(b) two Judges of the High Courts to be nominated by the Federal Government after consultation with the Chief Justice of the High Court concerned."
18. On the basis of above Sub-Article (5) of Article 212-B of the Constitution, it was contended by him that under the Ordinance, an appeal could have been provided against a sentence or a final order of a Special Court and not against an acquittal judgment as it has not been provided in the above-quoted Sub-Article (5) of Article 212-B of the Constitution which empowers the making of a provision for an appeal in the law which was to be enacted. The above contention seems to be untenable as the words "final order of a Special Court" will include an acquittal judgment as well.
The use of the word "sentence" preceding the words "or final order of a Special Court" does not imply that the law-makers intended not to provide an appeal against an acquittal judgment. The word "conviction" is generally used in contrast to the word "acquittal" and not the word "sentence" and, therefore, the omission to employ the words "conviction and acquittal" in above Sub-Article
(5) of Article 212-B of the Constitution is of no consequence. If we were to accept the above contention of Mr. Abdul Aziz Qureshi, it would lead to an illogical conclusion that a provision for providing for an appeal in the relevant law could have been made against a sentence and not against a conviction, which could not be the intention of the law-makers. In any case, we are not competent to hold that subsection (5) of section 13 of the Ordinance is ultra vires the provision of Sub-Article (5) of Article 212-B of the Constitution. In this connection, reference may be made to the judgment of the Supreme Court in the case of Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Hague PLD 1963 SC 486, in which inter alia it has been held that neither the Chief Election Commissioner nor the Speaker could have jurisdiction to question the constitutionality of the impugned order issued by the >then President in exercise of Article 224 of the erstwhile Constitution of Pakistan, 1962. Reference may also be made to the case of The State v.
Zia-ur-Rahman and others PLD 1973 SC 49, in which Hamoodur Rahman, J., while dilating upon the question of jurisdiction of the Supreme Court, has made the, following observations:- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdiction from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim, and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court."
' The ratio of the above authorities of the Supreme Court 'seems to be that an incumbent of a public office acting under certain provision of a statute cannot go into the vires of the same nor the Superior Courts which are the creature of the Constitution and derive their power and jurisdiction under it, claim to be above the Constitution or to have the right to strike down any provision of the original Constitution.
19. In the present case, we are acting as the Supreme Appellate Court by virtue of section 13 of the Ordinance. In other words, we are the creature of the above provision of the Ordinance and, therefore, it is not open to us while exercising the power and jurisdiction under the above provision of the Ordinance to hold any of its provision is ultra vires to Sub-Article (1) of Article 212-B of the Constitution and/or any other provision of the Constitution and/or any other law.
20. Reverting to the above fourth submission of Mr. Abdul Aziz Qureshi that, in any case, the provision of subsection (5) of section 13 of the Ordinance could not have been made applicable retrospectively to the cases which were pending in the competent Courts as the accused had acquired vested right in their remedies available prior to the enforcement of the Ordinance, it may be stated that it is a well-settled proposition of law that alterations in the form of procedure through Legislation are always retrospective unless there is some good reason to hold otherwise.
The procedure includes the form for initiating the legal proceedings. Nobody has vested right in the procedure, but if a new Legislation affects a vested right of any person in the absence of an express provision, it cannot be made applicable retrospectively. The judgment of the Supreme Court relied upon by Mr. Abdul Aziz Qureshi given in the case of Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 does not in fact support the legal proposition advanced by him as in the above case, it was held that the change of the forum by the West Pakistan Family Courts Act did not violate any vested right.In this regard, it may be pertinent to reproduce the following observation of Hamoodur Rahman, J. Made in the above case:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
' In the present case, subsection (2) of section 5 of the Ordinance expressly confers power on the Federal Government to transfer the pending cases and, therefore, the Legislature has expressly provided that the above provision was to apply to the pending cases as well. However, it was urged by Mr. Qureshi that the words "cases pending before any Court" should be construed as to include only those cases which may become pending after the promulgation of the Ordinance. We are unable to subscribe to the above restricted interpretation which will be contrary to the spirit and language of the above provision of the Ordinance. We may again point out that subsection (1) relates to the stage of a case when only an offence has been registered, whereas subsection (2) of section 5 covers the pending cases. The words "cases pending before any Court" used in above subsection (2) of section 5 of the Ordinance cover cases which were pending on the date of enforcement of the Ordinance or which may become pending thereafter.
21. As regards the above fifth submission of Mr. Abdul Aziz Qureshi, learned counsel for the accused persons, that the provision of subsection (5) of section 13 of the Ordinance providing thirty days for an acquittal appeal as compared to seven days provided for an appeal by an accused under subsection (4) of above section 13 is discriminatory and, therefore, for an acquittal appeal, seven days are to be treated as the'period of limitation and as the present acquittal appeal was filed after the expiry of seven days, the same was time-barred, it may again be observed that this Court cannot hold that subsection (5) of section 13 of the Ordinance providing a period of thirty days for filing an acquittal appeal is discriminatory or violative of any fundamental right. Even otherwise, the factum that for an appeal against conviction and sentence, a period of seven days has been provided and for an acquittal appeal, thirty days has been provided, cannot be construed as discriminatory or violative of any of the fundamental rights. An accused person generally files an appeal against the conviction and sentence irrespective of the merits of the case in the hope that he may get some relief from the appellate forum. Whereas, an acquittal apneal is not generally filed by the State as a matter of course, but an acquittal judgment alongwith the relevant record is to be examined by the competent authority for deciding the question, whether an acquittal appeal is to be filed or not, which exercise takes some time. It is, therefore; evident that there is a rationale behind providing for a longer limitation period for an acquittal appeal to be filed by the State as compared to an appeal by a convict against his conviction and sentence. This will be covered by reasonable classification. We may point out that this is not a new phenomenon as even under the First Schedule to the Limitation Act, 1908, under Article 149, a period of sixty years has been provided for any suit by or on behalf of the Central Government or any Provincial Government from the date when the period of limitation begins to run, whereas for a private persons generally a period of three years or six years or twelve years for filing of a suit has been provided according to the subject-matter of the suit. It is not open to us to read period of seven days in subsection (5) of section 13 of the Ordinance in place of thirty days and, therefore, the above acquittal appeal was filed within the limitation period.
22. This leads us to the last legal submission made by Mr. Abdul Aziz Qureshi, namely, that even otherwise the above acquittal appeal has been incompetently filed by the Deputy Attorney- General in place of Attorney-General or Advocate-General or upon the direction of the Government as provided under subsection (5) of section 13 of the Ordinance. It may be mentioned that he has invited our attention to subsection (5) of section 13 of the Ordinance, which reas as follows:--
(5) The Attorney-General or Advocate-General may, or on being directed by the Government, shall present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within thirty days of such order.............................
' On the basis of the abovequoted subsection (5), it was urged by Mr. Qureshi that the present acquittal appeal has been incompetently filed as the same was filed by the Deputy Attorney- General and not by the Attorney-General or Advocate-General or at the direction of the Government as contemplated by above subsection (5). In support of his above submission, he has relied upon the judgment in the case of Qadir Bakhsh v. Crown (PLD 1955 FC 79), in which the erstwhile Federal Court of Pakistan upheld the contention of a convict that an acquittal appeal filed by the Advocate-General of Sindh purporting to be filed under the instructions from the Legal Department was not competent as he was not the Public Prosecutor within the meaning of sections 492 and 417, Cr.P.C.
23. Whereas Miss Yasmin Saigol, learned counsel for the State, has relied upon Rule 3 of Order XXIX of the Pakistan Supreme Court Rules, 1980, which provides that "for the purposes of this Order, expression "Attorney-General of Pakistan" includes the Deputy Attorney-General, and also on the factum that under Article 199 of the Constitution, notices are issued by the Superior Courts in Constitution Petitions to the Deputy Attorneys-General instead of Attorney-General. The Pakistan Supreme Court Rules, 1980, are not applicable to a Supreme Appellate Court as it is not a part of the Supreme Court but is the creature of the Ordinance and is composed of a Judge of the Supreme Court and two Judges of the High Court and, therefore, pressing into service Rule 3 of Order XXIX of the Supreme Court Rules, 1980, is not warranted by law. Similarly, the practice of issuing of notice under Article 199 of the Constitution to the Deputy Attorney-General by the High Court cannot provide a basis for holding that a Deputy Attorney-General can file an appeal ,under subsection (5) of section 13 of the Ordinance.
24. The above contention of Mr. Abdul Aziz Qureshi would have prevailed if we would not have ourselves discovered the fact that the Central Law Officers (Amendment) Act, 1985 (Act XVII of 1985) incorporated section 4-A in the Central Law Officers Ordinance, 1970 (VII of 1970) providing as follows:-- "4-A. Central Law Officers to be deemed to be public prosecutors, etc. --Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law."
' A plain reading of the above newly-added section indicates that it provides that notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceeding including appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including the Special Court constituted under any law.
The above provision read with subsection (5) of section 13 of the Ordinance makes it clear that the present acquittal appeal has been competently filed
25. Having dealt with the legal points raised by the learned counsel for the accused persons, we may now revert to the merits of the case. It may be pertinent to first dilate upon the merits of the acquittal appeal. In this regard, it may be advantageous to observe that the learned Special Judge has recorded acquittal of the eight respondents/accused persons inter alia for the following reasons:--
(i) that six of the respondents/accused persons were the witnesses or the close relations of the witnesses in the murder case of Sher Muhammad in which one of the complainant's son Rehmat Ali is an accused person;
(ii) that during the investigation, the Investigating Agency also formed the view that the above six respondents were innocent persons and, therefore, their names were shown in Column 2 of the Challan;
(iii) that the alleged fire-arm injuries inflicted on the two deceased by four of the above respondents were found to be in conflict with the medical evidence;
(iv) that in the F.I.R. It was alleged by the complainant Sardar Mohammad and by the other two eye-witnesses in their police statements that Muhammad Sadiq son of Muhammad Din had rifle, which he fired upon Iqbal son of Sahib Din at the abdomen, but when from the medical evidence it transpired that the deceased had pellets injuries on the abdomen, the complainant and the other two eye-witnesses improved upon their version before the Special Court by stating that Muhammad Sadiq had fired from gun;
(v) that the seventh respondent Ishaq son of Sardar Khan belonged to Meo caste and not to Arain caste and, therefore, he had no enmity with the complainant or the deceased. He did not figure anywhere in the earlier occurrences and no specific part was attributed to him; and
(vi) that Muhammad Sadiq son of Imam Din (respondent No. 8) was a distant relation of the second set of accused and that he used to run a Hotel in Lahore and, therefore, he could not have any motive.
26. The above reasons found favour with the learned Special Judge cannot be said to be perverse or contrary to the evidence on record. It is possible that this Court might have taken a different view on the basis of the evidence on record in respect of the above accused persons, but this fact would not be sufficient to interfere with an acquittal judgment. In this regard, reference may be made to the case of Farid v. Aslam and 4 others (PLD 1977 SC 4) and the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11). In the former case, Supreme Court after referring to its earlier judgments, held that mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below unless the grounds upon which the High Court has acted, are not supportable on the record or the decision on the question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence or where there has been a departure from the due procedure in the reception of evidence or otherwise which is calculated to interfere with the due or safe dispensation of justice.
27. The above view was reiterated in the above second case after referring to a number of other judgments on the above subject and it was held that the Supreme Court would not interfere with an acquittal merely because on reappraisal of evidence, it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possibly, but if the conclusion is such which no reasonable person would conceivably reach, the Supreme Court would interfere. In the present case keeping in view the admitted deep-rooted enmity and the factum that the alleged eye-witnesses attempted to improve upon their previous versions, it would not be safe to interfere with the acquittal judgment. We would, therefore, dismiss the above acquittal appeal.
28. As regards the appeal filed by the twelve accused persons against their convictions and sentences, it may be observed that according to the findings recorded by the learned Special Judge, the evidence of the eye-witnesses cannot be relied upon without independent corroboration as they are interested witnesses.
' The learned Special Judge discarded recoveries for cogent reason but sought corroboration by motive and the alleged act of abscondence on the part of the above accused persons. In this behalf, it may be observed that the motive is a double-edged weapon which could be one of the reasons for false implication as well as has been held by the Supreme Court in the case of Allah Bakhsh and another v. The State (PLD 1978 SC 171). In the present case if the accused persons would have been one or two or their number would have been compatible with the number of injuries received by the deceased and the injured eye-witness, the motive might have provided some support to the prosecution case but since as many as 22 persons were implicated, in our view, the motive simpliciter is not sufficient to furnish the required corroboration to the tainted evidence of the interested witnesses.
29. It seems that the learned Special Judge has relied upon the alleged act of abscondence on the part of the appellants/accused persons in Criminal Appeal No. 10 of 1991 on the basis of the statement of P.W.17 Muhammad Rashid, the Investigating Officer, to the effect that he was unable to find them up to 16-8-1990. However, we find that the above accused persons were not put any question about their alleged abscondene by the Court while examining them under section 342, Cr .P.C. And, therefore, the above alleged abscondence cannot be used as a corroborative piece of evidence. In this regard, reference may be made to the judgment of the Supreme Court in the case of Alam Khan and others v. The State (1984 SCM R 90).
30. We called upon Miss Yasmin Spigot, learned counsel for the. State, and Mr. Arif Iqbal Bhatti, learned counsel for the complainant, to point out corroborative pieces of evidence against the above appellants. According to them, there is corroborative piece of evidence against appellant Not Liaqat Ali, appellant No.2 Rehmat Ali, and appellant No3 Zulfiqar in the form that they half an hour earlier visited the place of Wardat alongwith absconding co-accused Abdul Razzaq and two of them, namely, Liaqat and Rehmat fired upon the complainant. They also submitted that there is also corroborative piece of evidence against appellant No 9 Ishaq son of Jamil, appellant No.10 Bashir as they brought a tin of kerosine oil and sprinkled the same on one of the rooms and put the same on fire, whereas appellant No. 11 Fazal Din alongwith two acquitted accused Din Muhammad and Bhutto uprooted the roof of the room which was put to fire.
31. On the other hand, Mr. Abdul Aziz Qureshi hasinvited our attention to a number of infirmities in the evidence of the prosecution. He pointed out that P.W.11 Sardar Muhammad (the complainant) disowned the F.I.R. In his private complaint filed by him before the Additional Sessions Judge and that even before the learned Special Judge, his statement was that he signed the F.I.R. Without being read over. His further submission was that there was no document on record to indicate that factually any portion of the roof of the room which was put on fire was dismantled. He has also highlighted the factum that the three alleged eye-witnesses P.W. 11 Sardar Muhammad, Nasarullah, and Mst. Nasim Bibi, could not have seen the act of putting one of the rooms on fire as the room which was put on fire was situated adjacent to the room in which the above alleged eye-witnesses were present. He has further submitted that there is nothing on record except the statement of the alleged eyewitnesses that a portion of the roof of the room which was put on fire was dismantled and a hole was made in it. He has also invited our attention to the improvements made by the above alleged eye-witnesses and to the factum that P.Ws. Nasarullah and Mst. Nasim Bibi appeared to be chance witnesses.
32. It is true that P.W. Sardar Muhammad had disowned the F.I.R. In his private complaint and in fact implicated P.W.17 Muhammad Rashid as one of the accused as he was not satisfied with the manner of investigation. However, we have read both the above documents, namely, F.I.R. And the private complaint and find that the basic facts remain the same, namely, that four accused persons Liaqat, Rehmat, Abdul Razzaq and Zulfiqar first came to the place of Wardat. Rehmat fired upon the complainant causing injuries referred to hereinabove, whereas Liaqat also fired a shot upon the complainant, which missed him and hit a cot lying there. After the above accused got the impression that the complainant had died, they left the place of Wardat but returned after some time after discovering the fact that the complainant was still alive. The factum that one of the rooms was put on fire is also mentioned in both the complaints. However, we are inclined to agree with his submission that the above three eye-witnesses could not have witnessed from the room in which they were present at points Nos. 7, 8 and 9 as the said room was adjacent to the room which was put on fire and the same was put on fire from the roof by making a hole in the roof as per statements of the eye-witnesses.
33. We are unable to agree with Mr. Qureshi that P.W. Nasarullah was a chance witness. It has come on record that the complainant Sardar Muhammad's three sons were in jail at the relevant time and, therefore, it was natural for him to have brought his grandson with him while visiting his house in Chak No. 17 after discovering the factum of theft having been committed in his house a.Few days earlier. Similarly the presence of his daughter, Mst. Nasim Bibi, whose husband's house was about 16 miles from the place of incident, was not unnatural. Though the witnesses have made certain improvements but there seems to be no inconsistency on the basic facts. Even if we were to hold that it was not possible for the complainant, P.W. Sardar Muhammad to witness the incident after having received injury on his nose resulting into nosal fracture and injury near his eye-lid, the testimony of the other two eyewitnesses Nasarullah and Mst. Nasim Bibi remain on the record.
Though they were cross-examined at length but the defence was unable to bring on record material contradictions on the above basic facts. The mere fact that P.W. Nasarullah was of tender age of 15 years itself is not sufficient to discard his evidence. However, we may observe that there is likelihood that the number of accused persons has been inflated on account of deep-rooted enmity as has been held by the learned Special Judge.
34. It may be observed that simpliciter relationship inter se between the witnesses and the deceased is not a ground for disbelieving their testimony if otherwise their testimony is reliable and confidence inspiring. In this regard, reference may be made to the case of Muhammad Hussain v.
The State (1969 SCM R 64) and the case of Muhammad Afzal v. The State (1984 SCM R 308). It may also be observed that if part of the evidence of a witness is disbelieved by the Court, though the witness may not an interested witness, rule of prudence demands that his testimony should not be made the sole basis for conviction, but there should be corroboratilon by some other reliable piece of evidence or circumstance. In this regard, reerence may be made to the case of Muhammad Afsar v. The Crown (PLD 1954 FC 170), the case of Bhalu and others v. The Crown (PLD 1955 FC 432), and the case of Muhammad Latif and another v. Muhammad Hussain and 9 others (PLO 1970 SC 406). It may further be observed that where a witness is an interested witness because he has a motive to falsely implicate the accused on account of enmity, his evidence also requires corroboration by some independent corroborative piece of evidence or circumstance. In this regard, reference may be made to the case of Nazir and others v. The State (PLD 1962 SC 269) and the case of Roshan and 4 others v. The State (PLD 1977 SC 557).
In the present case, the witnesses are not only interested witnesses as they had enmity with the accused party but they also made certain improvements, which part of the evidence has been disbelieved by the learned Special Judge and by us as well. In this view of the matter, the testimony of the eye-witnesses in the present case, cannot.Be the sole basis for maintaining the convictions.
35. We have given our serious thoughts to the question, against which of the appellants the convictions and sentences can be maintained. Since we have held that the eye-witnesses could not have identified the accused persons, who had caused or had put the aforesaid room on fire, and as some of them have already been acquitted by the Special Court and the acquittal has been maintained by us, their convictions .Cannot be maintained in the absence of reliable corroborative evidence. However, he case of Liaqat, Rehmat, Zulfiqar and the absconding accused Abdul Razzak, stands on different footings. They committed first incident about half an hour earlier and were instrumental in bringing other accused persons, numbering more than five persons, after discovering that Sardar Muhammad was not killed in their earlier attempt and forming an unlawful assembly with the common object to kill Sardar Muhammad, within the mischief of section 149, P.P.C. The statement of the eye-witnesses that appellant No. 1 Liaqat had caused fire-arm injury on the right wrist of deceased Iqbal son of Sahib Din, stands corroborated by the medical evidence.
Similarly, the testimony of the eye-witnesses on the factum -that appellant No. 2 Rehmat had caused fire-arm injury on the nose of the complainant, P.W. Sardar Muhammad, stands corroborated by the medical evidence. So there are reliable corroborative pieces of evidence against the above two appellants, but there is no corroborative piece of evidence against above appellant No. 3 Zulfiqar and against appellants Nos. 4 to 12, and, therefore, their convictions and sentences cannot be sustained. They are entitled to the benefit of doubt and hence appeal in respect of them is allowed, and their convictions and sentences are set aside, they will be released forthwith unless they are required in some other case or cases. Appeal in respect of appellants Nos.1 and 2 Liaqat Ali and Rehmat Ali is dismissed and their convictions and sentences are maintained. Since we have held that factually an unlawful assembly within the mischief of section 149, P.P.C. Was formed, of which the above two appellants were members, they remained liable under section 149, P.P.C..The factum that the other members of the unlawful assembly have been acquitted for want of reliable corroborative piece of evidence does not absolve the above two appellants from their liability under above section. However, their sentences shall run concurrently and they shall be entitled to the benefit of, section 382-B, Cr.P.C.