1. SALAHUDDIN AHMED, J.-Criminal Appeal No. 45 of 1974 is by convict Dosa while Criminal Appeal No. 46 of 1974 is by complainant Shahadat Khan against for other convicts and the State. These two appeals are by special leave of this Court and they arise out of the same impugned order of the Lahore High Court. The appeals are heard together and they are now disposed of under one order.
2. Dosa along with for other persons, namely, Sultan, Muhammad Hayat, Muhammad Mukhtar and Shera was tried by the learned Additional Sessions Judge, Sargodha, under sections 302/149, 3'07/149 and 148 of the Pakistan Penal Code for the. Murder of one Sarang and murderous assault upon his father SaeeD (P. W. 7) and for rioting. The learned Additional Sessions Judge convicted Dosa only under section 302 of the Code and sentenced him thereunder to death. Sultan and Muhammad Hayat were convicted under section 323 of the Code only for causing simple injuries to Sarang deceased and were each sentenced to rigorous imprisonment for six months. Mukhtar and Shera were convicted under section 325 of the Code only for causing grievous injuries to P. W.
3. SaeeD, and were each sentenced to two years' rigorous imprisonment thereunder. All the accused were, however, acquitted of the charge of rioting under section 148 of the Penal Code because the learned Additional Sessions Judge was of the view that there was no common object or intention on the part of the accused other than Dosa to commit the murder of Sarang deceased nor had they any motive to cause the death of the deceased. The convicts other than Dosa were, accordingly, acquitted of the charges under sections 302/149 and 307/149 of the Code.
4. Dosa preferred an appeal before the High Court from the order of conviction and sentence and a reference under section 374 of the Code of Criminal Procedure was also made to the Court. The other for convicts did not prefer any appeal before the High Court. There was also no appeal by the State from the order of acquittal of charges under sections 148, 302/149 and 307/149 of the Peral Code. Complainant Shahadat, however, filed a criminal revision for retrial of the convicts other than Dosa, on a charge under section 302 read with section 149 of the Penal Code. A Division Bench of the Lahore High Court accepted the reference under section 374 of the Code of Criminal Procedure and dismissed Dosa's appeal and maintained his conviction under section 302 and confirmed the sentence of death passed on him. The High Court was of the view that the convicts other than Dosa did not cause any injury to Sarang deceased at the time when he was assaulted and killed by Dosa, and the Court, accordingly, dismissed the revision and maintained the convictions and sentences of these for convicts.
5. Dosa and complainant Shahadat Khan each filed a separate petition for leave to appeal before this Court and leave was granted against the convicts other than Dosa on the ground that the trial Court as well as the High Court had committed gross errors of law in not applying the provisions of sec--tion 149 of the Code to the said convicts. Leave was also granted to Dosa in order to avoid any possible conflict of finding.
6. The incident took place on the 9th of August, 1968, at 10-30 p.m. While SaeeD (P. W. 7) was proceeding to his dera along with his son Sarang deceased. According to the prosecution story the complainant and the deceased were attacked by the aforesaid five convicts near a Sem Nala.
7. Dosa was armed with a hatchet, Sultan with a hockey stick and the other three with a lathi each.
8. The assailants emerged from the Sem Nala, and Dosa hit Sarang on the head with the hatchet and when the latter fell down the former gave two more hatchet blows on the head of Sarang. Convicts Sultan and Muhammad Hayat struck the deceased with a hockey stick and a lathi respectively. As P. W. SaeeD tried to intervene, he was hit with a lathi on his head by convict Mukhtar. P. W. SaeeD fell down and convict Shera gave him several lathi blows.' Besides P. W. SaeeD the incident was witnessed by Shera (P. W. 8) and Muhammad Malak (P. W. 9). The first information report was lodged by Shahadat (P. W. 6) brother of P. W. SaeeD, on the following morning at 10 a.m. Sarang and P. W. SaeeD were taken to the hospital at about 3/4 a.m. On the 10th of August, 1968, and they were attended to by Dr. Abdul Shakoor who gave a certificate of the injuries at 9 a.m. On the same day. Thereafter the first information report was lodged. Sarang died in the hospital on the 11th of August 1968. At 9-30 a.m. The evidence has disclosed that he was not in a position to make any statement. The accused surrendered themselves before the police on the 12th of August. 1968 with their respective weapons. Dosa produced a blood-stained kutharl (hatchet)-Exh. P. J., Sultan produced a hockey stick wile the rest of the accused produced a lathi each. It may, however be mentioned here that none of these recoveries was relied on by either Court.
9. The medical evidence revealed three incised wounds with a sharp-edged weapon on left side of head of Sarang deceased of the following sizes 2"x -- "x -- " and bone deep ; 1 -- " x --" and bone deep ; and 1 -- " x -- " and bone deep behind left ear 1 -- " and2 -- "away respectively.
10. Besides these injuries there was a contusion wound 1 -- " x -- " on the upper part of right occipital region of head bone deep and several contusions and abrasions on other parts of the body, all caused by some blunt substance.
11. It may be at once stated here that the three incised wounds found upon the body of the deceased full, supported the prosecution case that Dosa had struck the deceased with a hatchet three times.
12. P. W. SaeeD was found by the doctor to have suffered 9/10 injuries consisting of contused wounds and abrasions, all caused by some blunt substance. These injuries also supported the ocular evidence that P. W. SaeeD was struck with lathis by convicts Mukhtar and Shera. Although P. W.
13. SaeeD is father of Sarang deceased, the fact that he was injured showed that he was present at the occurrence. That P. W. SaeeD was so injured finds mention in the first information report.
14. Two other eye-witnesses, namely, P. W. Shera, son of Mitha, and P. W. Muhammad Malak appear to be independent and disinterested witnesses who had no reason to falsely implicate the convicts. P.
15. W. Shera denied that he had given a false statement because of enmity with the accused and of the former's connection with the complainant party.
16. All the eye-witnesses had been relied upon by the trial Court and the High Court, and no reasonable ground has been suggested to show that the Courts below were wrong in relying on or appraising their evidence.
17. So far as motive is concerned, it has been established that Sarang deceased and Dosa had rivalry over the hand of a girl called Mst. Bakhan and that 4/5 days before the incident in question Sarang had beaten Dosa in the chowk of the village on account of the rivalry.
18. Mr. Massod Akhtar, learned Advocate-on-Record appearing on behalf of Dosa, has contended that the incised injuries found on the body of Saran could not be caused by a hatchet. The doctor was not cross-examined on this point at all. Both the Courts apparently relied on the categorical statements of the eye-witneeses that Dosa gave three hatchet blows to Sarang deceased. The medical evidence, inter alia, showed that there were fractures on left parietal and left temporal bone and left parietal frontal suture of skull opened up. These damages are consistent with the ocular evidence that a hatchet caused the damages.
19. It has been contended on behalf of the convicts that P. Ws. Shera and Malak were chance witnesses. The evidence disclosed that P. W. Shera lived only 3/4th mile away from the place of occurrence. It was not categorically put to him that he was not present at the occurrence. His presence has been proved by P. W. SaeeD as well as P. W. Muhammad Malik. Both the witnesses gave good reasons for their presence at the place of occurrence. There is, therefore, no substance in this contention.
20. Mr. Masood has addressed us on the question of sentence of death imposed on Dosa and in support of his contention he has stated that he was a college student at the time of occurrence and that his mother is deaf and dumb and his father is blind. Dosa is 23/24 years old. The mere fact that he was a college student was no ground for imposing a lesser sentence to him, and the High Court was quite right in confirming his death sentence. In any event this is a matter for which the Government should be approached and asked for clemency, if so advised.
21. The evidence also fully supported the conviction and sentence of the other for convicts.
22. So much on the merit of the case. Now we proceed to consider the ground upon which leave was granted by this Court. It may be stated forthwith that all the convicts were acquitted of the charge of rioting under section 148 of the Penal Code, and inasmuch as there was no appeal by the State from such acquittal, there was no question of any application of the c provisions of section 149 of the Penal Code to the convicts.
23. The foundation for the application of these provisions was a finding that the convicts were members of an unlawful assembly. In the absence of any such finding the provisions of section 149 of the Code were not attracted, and the High Court, therefore, could not possibly have held the convicts constructively guilty under section 149 of the Code. Even if the High Court had allowed Shahadat's revision petition it could only have ordered retrial of the said convicts under sections 148, 302/149 and 307/149 of the Penal Code. The case of Muhammad and others v. State (1) cited in support of Criminal Appeal No. 46 of 1974 has no application to the facts of the present case for the obvious reason that the accused there had been, inter alia, convicted under section 148 of the Penal Code. Besides, the facts and circumstances of the case under report were different and they showed that all the 13 accused involved in the case bad attacked the com--plainant party having been inspired by a common object. The invaders had a gun, two spears and two of them had come on horse back. The rest of them had dangs. The trial Court had found five of them to be the actual assailants, and among others, they had been found to be members of an unlawful assembly and, accordingly, convicted them under section 148 of the Code. They were all members of the same family and had previous hostility. They were also convicted under section 342 read with section 149 of the Code. The assessors were of the opinion that all the accused persons were guilty under sections 302, 307/342 read with section 149 of the Code. In spite of all these, however, the trial Court had found that the unlawful assembly did not have from the very start the common object of committing murder and of making a murderous assault on three prosecution witnesses and of illegal confinement of one prosecution witness. In the peculiar facts and circumstances of the case Chief Justice Cornelius (as he then was) was of the view that there was a common object on the part of the five accused persons when they attacked the deceased with lethal weapons and injured several others of his men. But for reasons similar to those in the present case the acquittals were not interfered with because the State had neither approached the High Court against the acquittals not had moved the In the instant case, however, there is one difference. The complainant approached this Court and obtained leave to appeal. The question now before us is whether we should at this stage and at this distance of time direct retrial of these for convicts under sections 148, 302/149 and 307/149 of the Penal Code if we are satisfied that there has indeed been a miscarriage of justice, and such a retrial is required for the ends of justice. We, however, do not entertain any such opinion and, therefore, do not think that we should direct re-trial of these convicts on the aforesaid charges. It appears that the learned Judges of the High Court have agreed with the finding of the trial court that the convicts did not form an unlawful assembly. This does not seem to be altogether an unreasonable view, and, therefore, calls for no interference.
24. We, accordingly, dismiss both the appeals. We are told that convicts Sultan, Muhammad Hayat, Muhammad Mukhtar and Shera have already served out their sentences of imprisonment. We, accordingly, direct that they should be released forthwith if not released already, and if they are not required in connection with any other matter.