' The present criminal appeal had been filed against the judgment, dated 12-3-1991, whereby Pir Akhtar Hussain Bodla, Additional Sessions Judge, Lahore, convicted and sentenced the appellants named hereunder as follows:---
(i) Muhammad Saeed son of Taj Din,
(ii) Muhammad Hussain son of Ibrahim, Ghulam Rasul son of Allah Ditta,
(iv) Muhammad Sadiq son of Wazir Ali, and
(v) Muhammad Asghar son of Muhammad Nazir.
' All convicted under the provisions of section 302 read with section 149, P.P.C. on three counts and sentenced to imprisonment for life and a fine of Rs,5,000 on each count, for three counts, for murdering the three deceased namely:
(i) Hafeez Ullah alias Bashir Munna,
(ii) Muhammad Ashraf alias Bhora, and Boota Masih, or in default of payment of fine each was ordered to suffer further R.I. for one year on each count.
' All the appellants were further sentenced to R.I. for two years each under section 148, P.P.C. The appellants were also directed to pay Rs,10,000 each as compensation to the legal heirs of the deceased persons or to suffer further R.I. for six months in default thereof.
2. It was further directed by the impugned judgment that if realized, the amount of fine shall be paid to the legal heirs of the three deceased persons in equal share. The sentences passed against the appellants were to run concurrently.
' The appellant, Muhammad Sadiq, named above, had since died on 19-3-1991 during the pendency of the present criminal appeal, whereas co-accused of the appellants, namely:Muhammad Arshad had died during the trial and vide order, dated 14-5- 1990 it was held by the learned trial Court that the proceedings to his extent stand abated.
' Two of the co-accused, namely, Muhammad Ashraf and Muhammad Munir, named in the complaint as accused persons, had died before the framing of the charge.
3. All the appellants had been convicted and sentenced, as stated above, in pursuance to the private complainant (Exh.PA) instituted by Habib Ullah Khan (D.W.1) before the District Magistrate on 16-12-1972 against the five appellants and their three co-accused, since dead, named above. It was alleged therein that on 1-12-1972 at about 1-00 p.m. while the deceased Hafeez Ullah alias Bashir Munna, son of the complainant along with the deceased Muhammad Ashraf alias Bhora and the deceased Boota Masih had gone to Fateh Garh Bazar for the purpose of shave and shopping, and that on seeing them Muhammad Ashraf (since dead), Muhammad Hussain, Ghulam Rasul, Muhammad Munir (since dead), Muhammad Arshad (since dead), Muhammad Saeed, Muhammad Sadiq (the dead appellant) and Muhammad Asghar etc. had convened an unlawful assembly while armed with deadly weapons in order to commit rioting and to intentionally kill the said three deceased persons; whereupon the said three deceased persons had run away towards the fields and the brick-kiln to save their lives, and that they were empty- handed. It was further stated in Exh.PA that Muhammad Ashraf since dead, Muhammad Hussain, Muhammad Munir since dead, Muhammad Arshad were armed with pistols while others were armed with Dangs and Sotas, and that the assailants had encircled the three deceased persons and inflicted innumerable injuries to them with their respective weapons and as a result of firing by the accused persons armed with pistols, Ghulam Rasul (accused-appellant) was injured being hit by a shot. The complaint further contended that all the abovementioned accused persons had intentionally committed the murders of three deceased persons, named above. It was further alleged therein that the occurrence had been witnessed by Siraj Din (P.W.4), Serjon Masih and Sadiq Masih (not produced), Mst. Inayat Bibi (P.W.2), widow of the deceased Boota Masih and other passers-by but they could not intervene due to fear of the accused persons.
4. The motive of the occurrence was stated to be the exchange of hot words and abuses between the parties as the accused who were bad characters and influential persons had tried to restrain the deceased persons from coming into their area a few days before the occurrence, and it was as a result thereof that the accused persons had formed an unlawful assembly and intentionally murdered the deceased persons in the prosecution of the said unlawful object. The complainant had submitted the post-mortem examination of the three deceased alongwith the complaint, i.e. Exh.PA, in respect of Muhammad Ashraf alias Bhora deceased, Exh.PB, Exh.PC, in respect of Hafeez Ullah alias Bashir Munna deceased and Exh.PD in respect of Boota Masih deceased, respectively.
5. The District Magistrate entrusted the complaint to Mr. Inayat Ullah Ansari, M.I.C., Lahore, for the purpose of inquiry. The Magistrate recorded the evidence of the complainant and six witnesses including Medical Officer, who had conducted post-mortem examination of the three deceased persons. Thereafter, the record was forwarded by the Magistrate to the District and Sessions Judge, Lahore and the case was entrusted to Mr. Jaikab Izak, the then Additional Sessions Judge, Lahore, who had gone through the evidence of the witnesses produced by the complainant and had observed that a prima facie case under sections 148 and 302, P.P.C. read with section 149, P.P.C. was made out against all the five accused persons mentioned above and their three deceased companions. He, therefore, summoned all the accused persons through non-bailable warrants vide order, dated 11-2-1977. Thereafter, the accused persons appeared before the Court and out of the eight accused persons two accused persons named Muhammad Ashraf and Muhammad Munir had died before the framing of the charge. Out of the remaining six accused persons namely Muhammad Hussain, Ghulam Rasool, Muhammad Arshad died (during the trial as stated above), Muhammad Saeed, Muhammad Sadiq and Muhammad Asghar were formally charge-sheeted by Mr. Nusrat Hussain Qureshi, the then Additional Sessions Judge, Lahore under sections 148 and 302 read with section 149, P.P.C. on three counts, on 21-1-1982. All the accused persons had pleaded not guilty to the charge and claimed their trial. During the pendency of trial Muhammad Arshad accused also died, resultantly proceedings against him had abated due to his death, as stated above. However, other five accused persons mentioned above faced the trial of this complaint case. As they had pleaded not guilty to the charge, therefore, the complainant was directed to produce his evidence against the accused.
6. To support his case, the complainant himself has appeared as P.W.1 and produced Mst. Inayat Bibi (P.W.2), Muhammad Ashraf (P.W.3), Siraj Din (P.W.4) and Dr. Shabbir Ali (P.W.5) and closed his evidence.
7. After the close of the evidence of the complainant, the accused persons' statements under section 342, Cr.P.C. were recorded. They denied the evidence of the complainant against them and pleaded their innocence contending that they had been falsely implicated in this case due to enmity. The accused persons, however, made statements on oath to disprove the allegations against them and also produced five D.Ws. in their defence.
8. P.W.5, Dr. Shabbir Ali had conducted the post-mortem examination of the deceased persons and had observed the following injuries on their dead bodies on 2-12-1972, vide Exhs.PB, PC and PD respectively:---
(1) Muhammad Ashraf son of Jalal Din (t 2-25 p.m.):
(1) Contused wounds 3-1/2 x 3/4 inch bone deep, 2 x 1/2 bone deep, 1 1/2 x 1/2 bone deep on the left side of the head.
(2) Contused wound 2 x 3/4 inch into scalp deep on the right side of the head.
(3) Contused wound 1-1/4 x 1/2 inch into scalp deep on the right eye brow.
(4) Contused wound 1/2 x 1/3 x scalp deep left side of the forehead.
(5) Abrasions in area 6 x 3 inch on the forehead.
(6) Abrasion 1 x 1/2 inch on the right cheek bone.
(7) Abrasion 1 x 1 inch on the front mid right pinna.
(8) Swelling 4 x 1/2 inch around the left eye.
(9) Contused wound 2-1/2 x 1 inch bone deep on the left chin.
(10)Multiple abrasions into an area 4 x 3 inch front and sides of neck.
(11)Contusion 12" x 5" front mid chest.
(12)Multiple abrasions and contusions on the back of right forearm and hand with swelling.
(13)Multiple contusions all over the back of chest.
(14)Multiple abrasions on the buttocks extending to the back of thighs till mid.
(15)Multiple contused wounds in area 5" x 3" front mid right leg.
(16)Multiple contused wound 3 x 1-1/2" area front mid left leg.
(17)Right side of the penis abraded.
' On opening the cranium the left temporal bone and the parietal bones were fractured (depressed). There was also fracture of right temporal bone. Base of the skull was fractured. Brain on the left side was extensively lacerated. Massive sub ara-chnoid, haemorrhage was found.
' On opening the chest sternum in the mid was found fractured. Mediastinum was bruised. Thyroid cartilage was found fractured on the right side. There was effusion of blood in the neck tissues was seen. Both the lungs were pale. Pericardium and heart was found bruised anteriorly and it was empty.
' On opening the abdomen, the stomach contained 6 oz. of semidigested liquid food. The small intestine contained chyme and the large one faeces. The bladder was full of urine.
' In his opinion, all the injuries were ante-mortem caused by some blunt object. Injuries Nos. 1, 2, 10 and 11 were individually sufficient to cause death in ordinary course of nature. Cause of death was injury No,1, injury to brain thyroid cartilage and mediastinum, haemorrhage and shock. The probable time that elapsed between the injuries and the death was immediate and between the death and post-mortem about a day.
Boota Masih son of Kehr Masih (at 12-30 p.m):
(1) Contused wound 2 x 3/4", 1-1/2 x 1/2" , 2 x 1". All scalp deep on the left side of head.
(2) Swelling with abrasions 3 x 2" the right side of head.
(3) Pinna of the left ear was torn at multiple places.
(4) Abraded swelling 6-1/2 x 3" on the left face.
(5) Contused wound 3/4 x 1/2" muscle deep on the right cheek bone.
(6) Abrasions in area 3-1/2 x 2" top of right shoulder.
(7) Contused Wounds 1/2 x 1/3 muslce deep. 1/2 x 1/4" skin deep back of left forearm. Left hand swollen.
(8) Abrasions in area 5 x 4" outer upper and left thigh.
(9) Contused wound 3/4 x 1/2" bone deep. Front mid left leg.
(10) Contused wound 1 x 1/3" muscle deep outer lower and left leg.
(11) Multiple abrasions and contusions on the whole of back waist and sacral regions.
(12) Contusions 3" x 2" front mid chest.
' On opening the skull there was fracture of left temporal and parietal bones. Extending to the occipital left middle cranial fossa was fractured. There was massive haemorrhage in the base of skull was full of blood. On opening the thorax the sternum was found factured in the mid and the mediastinum was bruised. Third and fourth ribs were fractured. Both the lungs were pale. Heart was anteriorly bruised and it was empty. In the abdomen the stomach contained eight oz of semi- digested rice food. The small intestine contained chyme and the large one faeces. The bladder was full of urine and the external genital organ was circumcised.
' In his opinion all the injuries were ante-mortem caused by blunt object. Injuries Nos.1 and 12 were individually sufficient to cause death in ordinary course of nature. The death was caused due to injury to skull, mediastinum, haemorrhage and shock. The probable time that elapsed between injuries and death was immediate and between death and post mortem was about a day. Exh.PC was the certified copy of the post-mortem report which was attested and signed by him.
Hafeez Ullah alias Bashir Munna (at 1-30 p.m):
(i) Contused wound 1-1/2 x 1/2 bone deep. Front mid-head..
(ii) Contused wound 3/4 x 13/4 x 3" scalp deep on the left head.
(iii) Abraded swelling 2-1/2 x 2" right side of head.
(iv) Pinna of the left ear torn at multiple places.
(v) Contused wound 1-1/2" x 1/3 inch scalp deep on the right eye brow.
(vi) Contused wound 1" x 1/4" skin deep on the left cheek.
(vii) Abrasion 1-1/2" x 3/4" mid forehead.
(viii)Multiple abrasion on the whole of the face.
(ix) Labule of the right ear torn.
(x) Multiple contusions in area 13" x 4" outer right arm.
(xi) Back of the chest had contusion all over.
(xii) Contusion all over the buttocks.
(xiii)Compound fracture of the left leg with multiple contused wounds.
(xiv) Compound fracture on the right leg with multiple contused wounds.
(xv) Abrasion 2" x 1" front lower and left arm.
' There was fracture of both the temporal bones. Whole of the base of the skull was fractured.
Massive sub-arachnoid haemorrhage. Brain on both sides lacerated. On opening the thorax second right rib was found fractured anteriorly. Both the lungs were pale and the heart was empty.
' On opening the abdomen, stomach found to contain 8 oz. of semi-digested food. The small intestine contained chyme and the large one had faeces. The bladder was empty.
' In his opinion all the injuries were ante-mortem and caused by some blunt object. injury No,2 and injury No,3 were sufficient to cause death in the ordinary course of nature. Cause of death was injury to brain, shock and haemorrhage. The probable time that elapsed between injury and death immediate and between death and post-mortem about a day. Exh.PD was the certified copy of the post-mortem report attested by him.
9. P.W.1, Habib Ullah, complainant had deposed to the effect that Hafeez Ullah deceased was his son and the other two deceased persons were known to him; and that on 1-12-1972 while working as T.X.R. Railway, Sargodha, at about 5-30 p.m. he was telephonically informed of the murder of his son, Hafeez Ullah. Further, stated that he had received the dead body of his son from Mayo Hospital and thereafter gone to the Village Fateh Garh near the brick-kiln where many persons met him including Siraj Din (P.W.4); Mst. Inayat Bibi (P.W.2), Mst. Hanifa Bibi, Muhammad Tufail and Muhammad Ashraf (P.W.3) and others who told him on the fateful day i.e. 1-12-1972 at 12-30 p.m. the deceased persons had gone to a Barber shop at Fateh Garh Bazar, where Muhammad Munir, Muhammad Saeed, Muhammad Asghar, Muhammad Hussain, Muhammad Arshad, Ghulam Rasul alias Sain and Muhammad Ashraf accused persons were already present and they all had attacked the three deceased, whereupon they had run towards the fields to save their lives. They had no weapon with them, whereas the accused persons, armed with sticks, Dangs and pistols, chased them and encircled them near the brick-kiln and murdered all the three deceased persons with Dangs, Sotas and pistols and also injured their own companion, Ghulam Rasul alias Sain, as a result of fire by their pistols. Further deposed that P.W. Chiragh Din (not produced), Siraj Din (P.W.4), Inayat Bibi (P.W.2), Hameeda Bibi (not produced) and Muhammad Ashraf (P.W.3) had seen the occurrence, and that he had gone to Moghalpura Police, who did not pay any heed to him nor did any superior police officer listen to him. Further deposed that accused persons had threatened to kill and involve him in false cases, and that the police had colluded with the accused persons. He had further deposed that he had obtained the copies of post-mortem reports but due to disturbances in the country and the strike of the lawyers had waited till 15-12-1972 to file his complaint, Exh.PA, which was signed by him. Further testified that few days prior to the occurrence there was an altercation of abuses between the accused and deceased persons, as the accused persons had asked the deceased not to visit their place.
' During his cross-examination, he stated that he was not an eye-witness nor could he name the persons who told him about the occurrence nor could he name the Barber shop visited by the deceased. He was confronted to the effect that he had not named the persons in the complaint who had told him about the occurrence or that he had named Muhammad Ashraf (P.W.3) or Chiragh Din and Hameeda Bibi as witnesses in his complaint, Exh.PA. He denied that his deceased son was involved in any criminal case or that it was in his knowledge that Muhammad Ashraf deceased was a bad character or Boota Masih was a previous convict and involved in many cases. He had acknowledged that he had appeared before the Crimes Branch and had also produced Naranjan Masih, Sadiq Masih, Siraj Din (P.W.4) and Inayat Bibi (P.W.2) during the inquiry conducted by the Crimes Branch.
10. P.W.2, Inayat Bibi is the widow of Boota Masih deceased. Her testimony was to the effect that the other two deceased were friends of her late husband, and that on the fateful day, as her five children felt hungry, she had sent her husband to fetch some edibles but as he reached the Chowk of Fateh Garh, the other two deceased had met him there. Further deposed that she saw Muhammad Ashraf and Muhammad Hussain grappling with the deceased while being armed with Dandas and that all the three deceased had run towards the fields of Fateh Garh, crying for help being chased by the accused Muhammad Hussain and Muhammad Ashraf and that when they reached near the brick-kiln of Munir and Saeed accused, all the accused persons had encircled the deceased persons. Munir, Saeed, Sadiq, Ghulam Rasul, Arshad and Asghar accused had come from the side of brick-kiln, and that Munir and Saeed were carrying pistols and others were carrying Dandas and that all the accused persons gave beating to the deceased and caused them injuries. The persons carrying the pistols gave the deceased butt blows. Munir and Saeed opened fire which hit Ghulam Rasul accused, and that no one had tried to help despite her having raised alarm, and that all the three deceased were beaten to death at the spot. Further deposed that she herself, Siraj Din (P.W.4), Hameeda Bibi and Chiragh Din (not produced), Muhammad Ashraf (P.W.3) and two other persons (not produced) had seen the occurrence, and that they had tried to intervene but were threatened by the accused and kept away for fear of their lives, and that she had gone to Moghalpura Police Station but the police did not attend to her complaint. She had further deposed that few days before the occurrence the deceased had exchanged hot words and abuses with Muhammad Ashraf and Muhammad Hussain accused who had forbidden the deceased persons from coming to bazar or otherwise they would be killed, and that she narrated the occurrence to Habib Ullah complainant and showed him the site of occurrence.
' She i.e. P.W.2, Inayat Bibi was cross-examined at length. She was confronted with her statement before the Crimes Branch vide Exh.D-4. She repelled the suggestion that the contents of the said Exh.D.4 contained her version of the occurrence, and further stated that she had thumb-marked a blank paper at the behest of the police. She further refuted the suggestion that she had run there after the police had arrived. In her cross-examination it was elicited that besides herself, Siraj Din (P.W.4), Naranjan Masih, Sadiq Masih (not produced) had seen the occurrence and that Sadiq Masih was still alive. She had also named accused Muhammad Ashraf, Muhammad Hussain., Munir and Arshad being armed with pistols and that accused Ghulam Rasul was struck by one of the bullets fired by these persons, except Arshad.
11. Muhammad Ashraf (P.W.3) had appeared at the trial as another witness of the occurrence. He had stated that on 1-12-1972 at noon time while he was present in the bazar of Fateh Garh, the deceased persons had come out of a Barber shop, and that they were abused by accused Muhammad Ashraf and Muhammad Hussain, whereupon all the deceased persons ran away while imploring to be saved; and that when they were near the brick-kiln of Munir and Saeed accused, Asghar, Arshad, Sadiq, Munir and Saeed reached there, and that Ghulam Rasul accused had also reached there from his tubewell and was hit on the leg as a result of pistols' shot fired by Munir and Saeed. He had further deposed that the accused persons had given blows of buts of pistols, Dandas and bricks, thus killing all the three deceased persons on the spot; and had named Hameeda Bibi (not produced) Inayat Bibi (P.W.2), Siraj Din (P.W.4) and Chiragh Din (not produced) as the person who had also seen the occurrence, and that he could not intervene as the accused persons threatened him with their fire-arms. He had supported the motive as set up by stating that some days piior to the occurrence, the three deceased had quarrelled with the accused, Muhammad Hussain and Muhammad Arshad, and that the accused had stated that they would finish the deceased if they ever came again.
12. During his cross-examination, he had stated that he had not reported the incident to the police nor any of the eye-witnesses named by him had gone to the police station to lodge the report, or that he had ever appeared before the police as an eye-witness of the occurrence in question, or had given any statement anywhere about this occurrence earlier to his statement at the trial. He had denied the suggestion that all the accused persons were present near the Barber shop and reiterated that it was only accused Muhammad Ashraf and Muhammad Hussain who were present there and had acknowledged having met the complainant, Habib Ullah (P.W.1) in the bazar of Fateh Garh two or three days after the occurrence and had informed shim that he might cite him as a witness of the case but in the same breath stated that he had not told Habib Ullah that he was a witness of the occurrence. In this respect, he had further revealed that he was not asked to appeare before the Crimes Branch for inquiry and that it was only about four years ago that he was askal to appear as a witness before the learned Additional Sessions Judge, Lahore, and that the complainant (P.W.1) had told that his name was given in the complaint filed by him. He had further conceded that his uncle, Muhammad Hussain had been a tenant of Siraj Din, P.W.4, and had repelled the suggestion that he was appearing as a witness at the behest of Siraj Din (P.W.4) and other enemies of the accused persons. He had also repelled the suggestion that he had been proceeded against vide report No,36, registered in the daily diary of P.S. Moghalpura, on 11-2-1981, under sections 107/150 and 145, Cr.P.C. or that he was not present at the place of occurrence and had made a false statement.
' 12-A. P.W.4, Siraj Din had also appeared before the trial Court as an eye-witness of the occurrence.
He stated that his lands are adjacent to Saeed accused and that he knew all the accused but failed to name accused Sadiq who was called Baba. His testimony was to the effect that on 1-12- 1972 at about noon time when he was present on his lands, he saw three deceased persons come running from the side of Fateh Garh and shouting to be saved, whereas accused Muhammad Hussain and Muhammad Arshad were raising shouts of catch catch; and that when the three deceased persons reached near his lands and near the brick-kiln of Saeed accused, he saw Munir, Saeed, Arshad, Asghar and Baba (Sadiq) accused coming from the brick-kiln, and that Saeed and Munir were armed with pistols, whereas the others were armed with Dandas, and that all the accused persons encircled the three deceased persons. Saud and Munir had started firing and as a result of bullet hit Ghulhm Rasul Sain accused; and that all had started giving blows with the Sotas, Dangs and buts of the pistols to the three deceased and had repeated their blows still they were murdered at the spot. He had named Inayat Bibi (P.W.2), Muhammad Ashraf (P.W.3), Hameeda Bibi and Chiragh Din (not produced) as the other eye-witnesses and had further stated that the deceased were empty-handed and that he was threatened by the accused while trying to save the deceased persons.
' This witness had first denied that there was any enmity or criminal cases between him and the accused or that any litigation existed or had taken place between him and the accused persons.
He had specifically denied that a case under section 307, P.P.C. or a theft case was registered against him. But during this cross-examination he conceded that an F.I.R., Exh.P.4/X-1 was recorded against him under section 307/148/149, P.P.C. and section 19 of Act, 1978, and had further stated that a case under section 379, P.P.C. was registered against him on 1-2-1983 on the complaint of Muhammad Munir and had further stated that, after having denied at first, he and others on one side and accused and others on the other side were proceeded against under section 107/150, P.P.C. by Moghalpura Police. He was further forced to concede that a case under section 148/307/149, P.P.C. was registered against him and others at the instance of Muhammad Munir accused. This witness had further conceded that there was civil litigation between him and Saeed accused after having denied the same at first. On being confronted, in view of what he was forced to concede, as stated above, this witness had remained mum to a question whether or not the earlier part of his statement was true or false. This prosecution witness had been subjected to lengthy cross-examination and had been totally discredited as a witness by being confronted time and again, whereby material contradictions in his statement were highlighted. Therefore, it shall be pertinent to observe here that this prosecution witness's testimony deserves to be discarded in its entirety.
13. After the close of the evidence of the complainant, comprising of the testimony of P.W.1 to P.W.5 as stated above, the statements of the accused were recorded under section 342, Cr.P.C. All the accused had denied all the questions put to them but had stated that the F.I.R. registered immediately after the occurrence i.e. 736 of 1972 dated 1st December, 1972 (mark 'A') contained the facts. All the accused had' rejected the statements of the P.Ws. having been recorded only on SA. and not on Oath as required under the law and on the ground that the competency of the witnesses as required by law had not been determined. All had, however, stated that a case registered against them was due to enmity and ill-will and had stated that they shall produce evidence in defence and shall give evidence on Oath, and disprove all the charges, and the allegations made against them. The accused Ghulam Rasul had further stated that the injury suffered by him was caused in the manner as stated in the F.I.R. No,736 of 1972, as stated above.
14. All the accused had recorded their statements on Oath under the provisions of section 340(2), Cr.P.C. and all had stated as follows:- "I have got the Holy Qur'an with me: I state on Oath that the allegations levelled against me by the complainant in the complaint are absolutely false. I am innocent."
15. All the accused persons during their cross-examinations denied the charge and the allegations put to them. Their statements, virtually, are the same as recorded by them under the provisions of section 342, Cr.P.C. except that of the co-accused, Muhammad Hussain.
' Muhammad Hussain co-accused while acknowledging that he had got a case registered on 1-12- 1972 under section 307, P.P.C. and under section 13 of the Arms Ordinance, 1965, at P.S. Moghalpura, Lahore denied that it was read over to him or that he was made to understand the same or that only then he had signed it in Urdu in token of its correctness. He further denied being present at the Barber shop at noon time on 1-7-1972 and having seen the three deceased persons in the bazar. He further denied having chased the three deceased persons alongwith Muhammad Ashraf towards the fields, outside Fateh Garh. He further denied that in the fields his co-accused, namely, Ghulam Rasul alias Sain, Muhammad Saeed, Arshad, Asghar, Sadiq and other persons had encircled the three deceased persons and had further volunteered that it was only Ghulam Rasul alias Sain accused who was present in the fields and fired at by the deceased persons who were being chased by hundreds of persons. It was observed during his testimony that he had further volunteered that he was innocent by stating that he had got "Punj Sura" and swore on the same but on examination it turned out that it was not a "Punj Sura" but a "Darood Mahi" and had further stated that he could not recite "Darood Mahi", whereupon, at this stage he brought out the Holy Qur'an and state's that he was innocent.
16. In their defence, the accused had produced five witnesses i.e. D1 to D5, whereas Zafar Ullah, Police Inspector had appeared as C.W.1.
17. D.W.1, Muhammad Aslam Khan, Petition-Writer, District Courts, Lahore, had brought the register pertaining to petition-writing for the year 1989. He had testified that Exh.D-2 was the affidavit of Mst.
Inayat Bibi (P.W.2) written by him on the dictation of the said Mst. Inayat Bibi, and that she had thumb-marked in his presence. He had further identified her thumb-impressions, Exh.D-2/1 and Exh.D-2/2; and had further deposed that he had written it on 10-5-1989 and had duly entered it in his register at Serial No,286 on the said date, and that he had obtained the thumb-impressions of Mst. Inayat Bibi on his register in the relevant column which was Exh.D.W.1/A, in token of its correctness after having read over and explained the same to her.
' However, during his cross-examination conceded that he had not mentioned either in the affidavit, Exh. D-2 or in the relevant register of petition-writing that the said affidavit had been read over and explained to her, and that thereafter she had marked the same in token of its correctness, and had further conceded that she had not been identified by anybody before him but that she had produced a photostat copy of her National Identity Card, Exh.D-1.
18. D.W.2, Yasin Ali Mirza, Advocate was Oath Commissioner, District Courts, Lahore, and testified to the effect that Mst. Inayat Bibi had produced her affidavit, Exh.D.2 before him and had affixed her thumb-impressions on the same i.e. Exh.D.2/3, and that the affidavit was read over and explained to Mst. Inayat Bibi before she did that. He had identified Exh.D.2/4 as his initials and Exh.D.2/5 as his signatures on the said affidavit. During his cross-examination, conceded that he had not entered the factum of attestation of affidavit in any register maintained by him for that purpose. He had further conceded that serial number of the register was not entered on the affidavit, Exh.D.2, and had further conceded that he had not entered the number of the National Identity Card of Mst.
Inayat Bibi in his register of attestation but had denied having attested the affidavit mechanically at the instance of Saeed accused.
' D.W.3 Muhammad Aman Ullah's testimony was to the effect that he was posted as Sub-Inspector of Police in Crimes Branch in 1973 and on 8-2-1973 being -entrusted with the inquiry of the present complaint, had recorded the statements of the witnesses of the complainant, Habib Ullah Khan and had further stated that he had recorded the statement of P.W. Mst. Inayat Bibi, Exh. D.4 and without any addition or omission he had submitted his report on 13-3-1973. During his examination, he had volunteered the information that the inquiry in question was entrusted to him by the D.S.P., Crimes Branch. He had further repelled the suggestion that he had obtained thumb-impression of P.W. Mst. Inayat Bibi on blank paper and prepared a fake statement in collusion with the accused persons. Whereas D.W.4 Muhammad Aslam, A.S.I. had produced the original F.I.R. No, 736 dated 1- 12-1972 registered at Police Station Moghalpura, under section 307, P.P.C. read with section 13 of the Arms Ordinance, 1965, lodged by Muhammad Hussain (appellant). A copy of the said F.I.R. was exhibited as D.4/A. The trial Court had noted that in column No,5 of the original F.I.R. there was report to the effect that the case had been left untraced on 26-12-1972. The last witness produced on behalf of the defence was D.W.5, Ch. Muhammad Siddique who had deposed to the effect that he was posted as S.H.O., Police Station Moghalpura, Lahore, in the year 1972 and had partly investigated the case registered vide F.I.R. No,736 of 1972 of the said Police Station, lodged by Muhammad Hussain (appellant) and that D.W.4 Abdul Ghafoor, A.S.I. had conducted the investigation prior to the same being conducted by him and that as all the three accused had been killed so the case was left untraced. He had further deposed that he had been informed by the Moharrir, Head Constable of Police Station Moghalpura, that the record of the said case had been destroyed.
' During his cross-examination, the said D.W.5 confirmed that the three persons who were accused in the said F.I.R. No,736 were the same persons who were murdered in the said case i.e. Boota Masih, Muhammad Ashraf alias Gora and Bashir alias Munna, the deceased (sic) sent case; and had further confirmed that Ghulam Rasul appellant was the injured P.W. of the said case, and that the said F.I.R. No,736/72 was lodged by Muhammad Hussain accused. Further confirmed that the accused persons present before the Court were the assailants of the abovementioned three deceased persons among others and had murdered the said three persons after having encircled them alongwith other assailants. Further, confirmed that the three deceased persons had been done to death by brick-bats and Sotas, and that their post-mortem examinations were got conducted, but had not prepared the inquest report of the deceased persons. He had repelled the suggestion that the complainant, Habib Ullah had come to the police station in order to lodge the report against the accused persons present or that he had been threatened and refused to register the case or that P.W. Mst. Inayat Bibi had also appeared before him in order to lodge a report about the occurrence. He had further repelled the suggestion that he colluded with the accused persons present before the Court and spoiled the case of the three deceased persons who were intentionally murdered by the said accused persons. Further volunteered that the deceased persons were history sheeters and had further stated that he did not remember if the accused persons present before the Court had been awarded by the Police Department for having murdered the three deceased persons.
19. The learned counsel for the appellants and the learned counsel for the complainant/revision petitioner and the State were heard at length and the record of the case gone through very minutely and exhaustively with their assistance.
20. The learned counsel for the appellants had laid emphasis on the following shortcomings, inadequacies and discrepancies of the prosecution evidence to assail the legality of the impugned judgment:---
(a) That the complaint in question had been lodged after a considerable delay, and that the explanation tendered in respect thereof was unsatisfactory and not established in accordance with law,
(b) that the testimony of P.W.3, Muhammad Ashraf and P.W.4, Siraj Din cannot be relied upon, as the enmity between the said two prosecution witnesses and the accused party stood established beyond doubt; and that in the case of Siraj Din (P.W.4), his cross-examination at the trial had established beyond doubt that he was not a truthful witness; whereas in the case of P.W.3, Muhammad Ashraf, it was pointed out that he was neither named in the complaint as P.W. nor had he come forward to support the prosecution in the instant case for many years, and that even in his, case it stands established through his cross-examination that there were many criminal cases pending between him and the accused. In respect of the testimony of Mst. Inayat Bibi (P.W.2), it was urged that her presence at the time and place of occurrence was not natural, and that in any case she was not credible witness as she had changed her statement many times, and, in this respect, it was further pointed out that during the inquiry conducted by the Crimes Branch she had disowned the story of the prosecution;
(c) that there were inherent contradictions among the three eye witnesses' testimony i.e. P.W.2, P.W.3 and P.W.4' testimony in respect of the allegations as to how the appellants were armed;
(d) that the complainant, P.W.1, not being an eye-witness, his testimony further suffered from different versions at different stages having been made by him in respect of the receipt of the information of the occurrence in question, which raises serious doubts about the complainant's version of the occurrence, and that, therefore, the possibility of false involvement cannot be ruled out, aside from the complaint in question having been filed after inordinate delay and the unproven explanation for the same;
(e) that as there was no charge framed under the provisions of section 307, P.P.C. against the appellants, other than the injured Ghulam Rasul, for having caused fire-arm injury to the said appellant co-accused, and as no question to that effect was put to the appellant Saeed under the provisions of section 342, Cr.P.C., therefore, the only conclusion that can be drawn under the said circumstances is that the prosecution had itself given up its own version as to how the appellant Ghulam Rasul had been injured and the benefit of the same should have gone to the accused;
(f) that as Naranjan Masih and Sadiq Masih, father and brother respectively of P.W.2, Mst. Inayat Bibi, had not been produced at the trial in spite of their having been mentioned as P.Ws. in the complaint, therefore, the presumption under the law is that they would not have supported the complaint, and that the benefit of the same could go to the appellants, and
(g) lastly, that if the statement of the appellant was to be used against them, then as it is an established principle of law that the said statement has to be taken in its entirety, therefore, reading the exculpatory part of the said statement alongwith its inculpatory part can only result in the acquittal of the appellants.
' Although, the learned counsel for the appellants had not raised the question of the competency of the P.Ws., but as the same had been raised as an objection by the appellants themselves in their statements under section 342, Cr.P.C., therefore, alongwith the contentions stated above the said objection shall also be discussed and adjudicated upon, one by one.
21. On the other hand, the learned counsel for the complainant/revision petitioner had vehemently argued for sustaining the conviction of the appellants and had in addition thereto, argued to support the prayer in revision petition for enhancement of the sentence awarded to the appellants W capital punishment. Further, submitted that the occurrence stands admitted by the accused appellants in their statements under section 342, Cr.P.C. and section 340(2), Cr.P.C. and by the testimony of D.W.4, Muhammad Aslam, A.S.I. and D.W.5 Muhammad Siddique, Inspector. Further submitted that the presence of the appellants at the place of occurrence stands duly established, as stated above, read in conjunction with Exh.D.W.4/A. Further submitted that the ocular testimony provided by P.Ws.2, 3 and 4 had duly established the guilt of the appellants as charged. Further, submitted that the motive for the occurrence stands admitted and established thereby, whereas the medical evidence fully corroborated the prosecution version.
' The learned counsel for the State while adopting the arguments of the learned counsel for the complainant further submitted that there was no evidence to show that the deceased had met death in the process of robbery, dacoity or in the furtherance of any criminal act, and that therefore, the appellants had no legal justification to encircle the deceased and to cause injuries resulting in their death.
22. The Court has given anxious consideration to the arguments subniitted by the learned counsel for the parties and perused the entire record very minutely and exhaustively with their assistance.
23. As pointed out on behalf of the State and the complainant, the occurrence in question stands duly admitted by the appellants. According to the counter-version of the appellants themselves, the three deceased persons were killed on the fateful day at the very place and in the manner as alleged. The appellants had not only owned up the version as stated in the F.I.R. No,736/72 registered at Police Station Mughalpura, Lahore, on the statement of Muhammad Hussain appellant (Exh.D.4/A) but had also caused to be produced in their defence. D.W.5, Ch. Muhammad Siddique, Inspector, who had testified to the effect that he had partly investigated the said case and had further confirmed that the said complaint had been lodged by Muhammad Hussain appellant; and that the three deceased persons of the instant case had been encircled by the present appellant; and that, amongst others, the appellants were also assailants of the said deceased persons, resulting in their murder. Furthermore, his testimony as stated above, was duly established by the production of the said F.I.R. No,736/72 (Exh.D.4/A) through P.W.4, Muhammad Aslam, A.S.I., who had also partly investigated the said case. It needs to be further pointed out that all the appellants had duly adopted the version stated in the said F.I.R. (Exh.D.4/A) as the correct version of the mode, manner and the place where the three deceased persons had been killed, while recording their statements under the provisions of section 342, Cr.P.C. and subsequently under Oath under the provisions of subsection (2) of section 340, Cr.P.C. Therefore, the irresistible conclusion that can be derived is to the effect that the appellants were present at the spot; that they were part of the mob that had encircled the three deceased persons and launched the murderous assault on them, as a result of which they were killed. .24. Therefore, the question that remains to be determined is as to the role of the individual appellant in the occurrence that had led to the killing of the three deceased and whether or not they had acted in concert in the prosecution of a common object.
25. Herein it is further emphasised that as stated above, whereas the tstimony of P.W.4 needs to be discarded because of enmity in particular duly established during his cross-examination despite his denial at the stage of his examination-in-chief, and generally because of his demeanour and conduct before the learned trial Court, and because of inherent discrepancies in his testimony; the testimony of P.W3 Muhammad Ashraf, cannot be relied upon as he had not been named as a P.W. in the complaint and as admitted by him he was asked to appear as a witness in the instant case after a lapse of many years; and though he had claimed before the learned trial Court that the complainant, Habib Ullah (P.W.1) had met him in the Bazar of Fateh Garh two or three days after the occurrence i.e. almost two weeks before filing of the complaint in question, and had informed him that he may cite him as an eye witness of the occurrence, but in the same breath he had contradicted himself by saying that he had not told the said P.W.1, Habib Ullah, the complainant, that he was a witness of the occurrence. Therefore, his testimony, as well as that of P.W.4, Siraj Din, is hereby discarded as being totally unreliable. This leaves us only with one eye-witness of the occurrence, namely, Mst. Inayat Bibi, P.W.2, as in the case of P.W.1 Habib Ullah, the complainant, it is his own case that he was at Sargodha when he was informed of the killing of the three deceased persons including his own son namely, Hafeez Ullah alias Bashir Munna.
26. First of all it may be observed that the learned counsel for the appellants had made great efforts to impeach the entire testimony of this witness i.e. P.W.2 by reference to the alleged affidavit, Exh.D.4, by her. In this respect, however, it may be pointed out that not only the said P.W.2 denied to have ever thumb-marked the said affidavit, Exh.D.4, but had further pointed out that she had thumb-marked a blank paper at the behest of the police; and that D.W.1 had conceded during his cross-examination that neither had any one identified her before him nor that he had entered in the relevant register of petition writer that the alleged affidavit had been read over and explained to her and that thereafter she had thumb-marked the same in token of its correctness. Whereas D.W.2, Yasin Ali Mirza, Advocate/Oath Commissioner was forced to concede during his cross- examination that he had not entered in any register maintained for that purpose that he had attested the alleged affidavit, and had further conceded that neither serial number of the register was entered on the said Exh.D.4 nor the National Identity Card number of Mst. Inayat Bibi (P.W.2) was entered in the register of attestation. Therefore, the attempt of the learned counsel for the appellants to impeach the testimony of Mst. Inayat Bibi (P.W.2) on this ground is of no avail and is hereby repelled, for it has not been established for the reasons stated above, that the said affidavit, Exh. D.4 had been executed by P.W.2, Mst. Inayat Bibi. As regards the objection that the P.Ws. have been examined under solemn affirmation and not under Oath, it may be pointed out that such an irregularity is curable under section 13 of the Oaths Act, 1873.
27. Furthermore, the said P.W.2 was subjected to intensive and lengthy cross-examination but the defence failed to dislodge her testimony in respect of the presence of the appellants as a part of the mob who had encircled the three deceased persons and launched the murderous assault on them resulting in their death and her being'' a witness of the said occurrence. However, as pointed out on behalf of the appellants, there is discrepancy between her version as to how the assailants were armed and that of the other P.Ws. and as further pointed out that the individual roles attributed to the appellants in respect of the manner in which they had caused injuries to the deceased is not borne out by the medical report as to the appellant, Saeed and co-accused Munir (since dead) who are stated to have been armed with pistols and having fired at the deceased with the said pistols, as of all the innumerable injuries suffered by the deceased not even one is by fire-arm; and as a general statement to the effect that they had also made use of the butts of their respective pistols is highly unlikely if the deceased had been encircled by a big mob and was being stoned and/or hit by Sotas. Furthermore, the Court is constrained to observe that while accepting the prosecution version to the effect that the deceased persons had been encircled by many more persons in addition to the appellants, it. cannot be accepted that this eye-witness, Mst.
Inayat Bibi (P.W.2) can be in a position to state beyond doubt as to the roles played by everyone of the appellants, in causing injuries to the deceased.
28. In addition thereto, while accepting the prosecution version of the occurrence and accepting the testimony of P.W.2 Mst. Inayat Bibi to the extent stated above, and reading it in conjunction with the evidence produced on behalf of the appellants through D.W.4 and D.W.5, and in the light of the statement of the appellants under the provisions of section 342, Cr.P.C., and subsection (2) of section 340, Cr.P.C., in substance admitting their presence at the time, place, and the mode and manner of the occurrence in question, yet it cannot be said that all the appellants were a part of an assembly in prosecution of the common object of that assembly or that they knew that the offence alleged was likely to be committed in prosecution of their common object. In this respect, it may be pointed out, that it is a case of the prosecution itself that it was only appellant, Muhammad Hussain, alongwith one Muhammad Ashraf (since dead) who had challenged the deceased persons and persued them to the place of occurrence where, according to the prosecution itself the rest of the appellants had made their appearance and joined the mob that had encircled and subsequently killed the deceased persons by brick-batting etc. Therefore, the appellants cannot be burdened with the provisions of section 149, P.P.C. read with section 302, P.P.C. as it cannot be said that they were members of an unlawful assembly under the provisions of section 148, P.P.C. and that under the facts and circumstances of the case as established by the evidence on the record and stated above, the role of each of the appellants has to be duly examined to establish their guilt and to determine as to under what penal provision of law it is covered and, if so, as to what punishment is entailed for the same under the stated facts and circumstances, in accordance with law.
29. The first to be discussed in this context shall be Muhammad Hussain appellant, as he was the complainant of the F.I.R. No,736/72 (Exh.D.4/A) promptly lodged by him after the three deceased persons stated herein were killed. According to this appellant/complainant of the said F.I.R. he alongwith one Muhammad Ashraf (since dead) had confronted the three deceased persons in the Bazar of Fateh Garh and tried to arrest them as he thought them to be "proclaimed offenders" and suspected that they were there with the intention of committing theft; and that as one of the deceased, namely, Ashraf alias Gora had threatened to shoot them if they tried to stop them, therefore, as stated by him in the said F.I.R., had nevertheless chased the said three deceased persons and claimed that he was an enemy of the `badmuashes' and kept chasing the said three persons, of whom; Ashraf alias Gora was alleged to have been firing at the complainant/appellant, and on his hue and cry and on hearing the sound of the firing, Ghulam Rasool alias Sain appellant came to the spot from the direction of `bambi', whereas the appellants, Muhammad Saeed, Muhammad Asghar and Muhammad Sadiq had also come there from the direction of brick-kiln of Bashir on hearing the commotion, and had attempted to catch the said three persons by encircling them but as the accused persons (deceased persons herein) had kept firing on them, therefore, to save their lives they had resorted to stoning the said persons, but they, in spite of being injured, kept firing and as a result of which appellant Ghulam Rasool was hit in the stomach and fell down and that thereafter alongwith his companions the complainant/appellant had been able to injure and subdue the said three persons by the help of Dandas and stones. The appellant had further stated in the F.I.R. that all the said three persons were lying on the spot in an injured condition, being unconscious and that their pistols were lying near them. Thus, the said appellant Muhammad Hussain had wilfully taken the law in his own hands alongwith his companion (since dead) and had chased and ultimately encircled and caused injuries to the said three persons, alongwith other persons---including the rest of the appellants which had resulted in their death; and, as pointed out by the learned counsel for the State, it was not their case that the said unfortunate three deceased persons had been intercepted, encircled and beaten to death while being engaged in any criminal act, thus making it lawful for any citizen to take it upon himself to try and apprehend the said persons to prevent them from committing such a crime, the complainant/appellant, in particular, and the other members of such an assembly cannot be extended the benefit of law to justify the said complainant/appellant's attempt to check the normal movements of the three deceased persons and to try and apprehend them and, while making such an attempt, to chase them and to lead to a situation where the three deceased persons' freedom of movements were so restricted as to be encircled, and to ultimately lead to.their death by beating with Dandas and stoning etc. by all the said persons. Therefore, it is further observed, that while holding that all the appellants shall be responsible for their individual liability for having chased and/or encircled and/or beaten the three deceased persons to death in whatever mode or manner, it stands established; it is hereby held that the appellant, Muhammad Hussain, was duly guilty of taking the law into his own hands in the first instance alongwith his companion Muhammad Ashraf (since dead), which had subsequently led to the death of the three deceased persons as stated above, and that as such, the charge against him under the provisions of section 302, P.P.C. stands proved beyond reasonable doubt in view of his own statement under section 342, Cr.P.C. and subsection (2) of section 340, Cr.P.C. duly supported by F.I.R. No.736/72 (Ddi.D.4/A) stated above and lodged by him and the testimony of D.W.4 and D.W.5 and duly fortified by the testimony of P.W.2, Mst. Inayat Bibi as discussed above. Hence, the appellant, Muhammad Hussain is hereby held guilty of the offence as charged under section 302, P.P.C. and the sentence of imprisonment for life awarded to him on three counts, is hereby maintained. The fine and compensation imposed on him and the sentences awarded in default thereof and the direction for the payment of the same to the legal heirs of the deceased persons in equal shares, if realised, are hereby maintained with the modification that the entire amount of fine and compensation shall be thus paid. However, he is acquitted of the offence charged under section 148, P.P.C.
30. As appellant Muhammad Sadiq died on 19-3-1991 during the pendency of the present criminal appeal, therefore, to his extent the present criminal appeal stands abated to the extent of the sentence imposed on him; and it is further held, in view of the facts and circumstances of the case as detailed above and because of his death, that the fine and compensation imposed on-him are hereby set aside.
31. Appellants Muhammad Saeed and Muhammad Asghar had appeared on the scene at the time when the three deceased persons had been chased to the place of occurrence and they had come to the spot from a different direction, as opposed to the direction wherefrom the appellant Muhammad Hussain and the injured appellant Ghulam Rasool had come, therefore, as discussed above, it cannot be held that they had the common objective, alongwith other appellants or co- accused (since dead) of killing the three deceased persons; and as stated above it could not be established by the prosecution beyond reasonable doubt as to how these two appellants had caused injuries to the three deceased persons. However, as they have themselves owned up and adopted the version stated in the F.I.R. No.736/72 (Exh.D.4/A) in their statements under section 342, Cr.P.C., therefore, it is hereby held that these two appellants, namely, Muhammad Saeed and Muhammad Asghar, because of their role in encircling the deceased, are guilty of the offence under the provisions of section 304, Part II, P.P.C., as thus they have been guilty of an act that resulted in the death of the three persons. Therefore, their conviction under section 302, P.P.C. is hereby converted to one under the provisions of Part II of section 304, P.P.C., on three counts.
Resultantly, the sentences awarded to them are hereby reduced to the period already undergone by them, as they have already suffered the agony of protracted trial of almost twenty years, and they are hereby acquitted of the charge under section 148, P.P.C. However, the fine and compensation awarded against them and the sentences in default thereof are hereby maintained, along with direction, that if realised shall be paid to the legal heirs of the three deceased in equal shares with the modification that the entire amount of fine and compensation shall be thus paid.
32. The appellant Ghtilam Rasool had also appeared on the scene i.e. at the place of occurrence, where the three deceased persons were encircled and killed as stated above and was not part of the group that was chasing the said three deceased persons from Bazar, and that despite the version of the prosecution that he was injured by the pistol shots fired by the appellant Saeed and Munir (the dead co-accused), no charge under section 307, P.P.C. was framed against the said appellant, and as it has been held that the testimony of P.W.3 and P.W.4, namely, Muhammad Ashraf and Siraj Din, was not worthy of credence, and whereas the testimony of P.W.2, Mst. Inayat Bibi, has not been accepted with regard to the individual role of the appellants, and as all the said three P.Ws. have deposed that this appellant was injured while the deceased persons were being fired upon, and as such giving rise to serious doubt, as to his role as alleged, therefore, by extending the benefit of doubt thus arising, the appellant, Ghulam Rasool, is hereby acquitted of all the offences charged. Resultantly, all the sentences imposed on him by the impugned judgment are hereby set aside. He shall be released forthwith, if not required to be detained in any other case.
33. Therefore, as discussed and held above, the present criminal appeal is hereby partly allowed in accordance with the following terms:--- ' Appellant No.1, Muhammad Saeed's conviction is hereby converted to one under section 304, Part.
II, P.P.C. on three counts and his sentence thereunder is hereby reduced to the period already undergone by him. However, the fine of Rs.5,000 on each count for three counts and the compensation of Rs.10,000 or the sentences awarded in default thereof are maintained, with the modification that the amount of fine on three counts, if realised, shall also be paid to the legal heirs of the three deceased persons, in equal shares. However, he is acquitted of the offence under section 148, P.P.C. and the sentence awarded thereunder is set aside. He shall be released forthwith, if not required to be detained, in accordance with law.
' Appellant No.2, Muhammad Hussain's conviction under section 302, P.P.C. and the sentence of imprisonment for life on each count awarded thereunder, alongwith the fine and the compensation or the sentences in default thereof, are hereby maintained, with the modification that the amount of fine on three counts, if realised, shall also be paid to the legal heirs of the three deceased persons, in equal shares. However, he is acquitted of the offence under section 148, P.P.C. and the sentence awarded thereunder is set aside.
' Appellant No.3, Ghulam .Rasool, being extended the benefit of doubt, is hereby acquitted of all the offences charged and shall be released forthwith, if not required to be detained in any other case.
' Appellant No.4, Muhammad Sadiq, has died during the pendency of the appeal, therefore, because of his death, the appeal to his extent stands abated to the extent of sentences imposed on him; and as held above, the fine and compensation imposed on him are hereby set aside.
' Appellant No.5, Muhammad Asghar's conviction is hereby converted to one under section 304, Part II, P.P.C. on three counts, and his sentence thereunder is hereby reduced to the period already undergone by him, as held above. However, the fine of Rs.5,000 on each count for three counts and the compensation of Rs.10,000 or the sentences awarded in default thereof are maintained, with the modification that the amount of fine on three counts, if realised, shall also be paid to the legal heirs of the three deceased persons, in equal shares. However, he is acquitted of the offence under section 148, P.P.C. and the sentence awarded thereunder is set aside. He shall be released forthwith, if not required to be detained, in accordance with law.
34. For the reasons stated above, the connected Criminal Revision No.184 of 1991 is hereby dismissed.