' MUHAMMAD MUNIR KHAN, J.-This appeal by leave of the Court arises from the facts that Liaquat appellant along with five others was tried under sections 302, 307, 148 and 149, P.P.C. For committing the murder of Sardar Khan and murderous assault on Mst. Resham Jan, All Zaman, All Aksar and Muhammad Maskeen P.Ws., by Additional Sessions Judge, Rawalpindi, who vide judgment dated 2- 11-1991 acquitted Muhammad Ayub, but convicted and sentenced others as follows:--
(I) Muhammad Ashiq
(i) under section 302. P.P,.C. for the murder of Sardar Khan to death, and a fine of Rs,20,000 or in default one year R.I.
(ii) under section 307.
' Seven years' R.I. And a fine of Rs,10,000 or in default one year R.I.
' He was also directed to pay compensation to the tune of Rs,5,000 to the legal heirs of the deceased and to the injured P.Ws. Namely, All Zaman, and All Aksar, or in default thereof to suffer R.I. For three months.
(iii) under section 148. P.P.C, ' Three months' R.I.
(iv) under section 149. P.P.C.
' Three months' R.I. And a fine of Rs,1,000 or in default one month R.I.
(II) Liaquat appellant. Haider Zaman. Muhammad Banaras and Nazakat Under section 307. P.P.C, ' Five years' R.I. Each and a fine of Rs,10,000 each, or in default three months' R.I. Each. They were directed to pay compensation of Rs,5,000 each to the legal heirs of the deceased and to injured P.Ws. All Zaman and All Aksar, or in default to suffer R.I. For two months each.
(ii) Under section 148. P.P.C.
' Three months' R.I. Each.
(iii)Under section 149. P.P.C, ' Two years' R.I. Each and a fine of Rs,500 each, or in default one month R.I. Each.
' All the sentences were directed to run concurrently. The accused were also given the benefit of provisions of section 382-B, Cr.P.C.
' Feeling aggrieved thereby, convicts filed appeal in the Lahore High Court, Rawalpindi Bench, Rawalpindi. During the pendency of appeal, the parties arrived at compromise, as a result whereof, an application was filed on behalf of the appellant and his co-accused, for permission to compound the offences with the legal heirs of the deceased and the injured P.Ws. At the time of hearing of appeal, the legal heirs of the deceased, and the injured P.Ws. Appeared before the High Court and owned the compromise with the appellant and his co-accused. Accepting the compromise between the parties, the High Court acquitted Muhammad Ashiq of the charges under sections 302 and 307, P.P.C., and Liaquat and others of the charge under section 307, P.P.C.
Learned counsel appearing for the convicts including Liaquat appellant did not challenge the conviction of the appellant under sections 148 and 149, P.P.C. On the ground that they had already undergone the sentences awarded to them under these sections. In this view of the matter, the conviction of the appellant under sections 148 and 149, P.P.C. Was maintained by the High Court.
2. We have heard the learned counsel for the appellant and the counsel .Appearing for the State.
We feel inclined to allow this appeal on the grounds that section 149, P.P.C. Is only an enabling provision and not a substantive offence. No sentence has been provided in this section, so the conviction and sentence of the appellant and his co-accused under this section awarded by the trial Court was misconceived. As for offence under section 148, P.P.C., we find that the trial Court has convicted five accused for their individual act during the occurrence. Muhammad Ashiq alone has been convicted under section 302, P.P.C. Other accused have been convicted under section 307, P.P.C. And not under section 307 read with section 149, P.P.C. Although offence under section 148, P.P.C. Is an independent offence, yet we feel that having declined to convict the five accused for their vicarious liability for the murder of the deceased and murderous assault on P.Ws., the trial Court was not legally justified in convicting the accused under section 148, P.P.C. The relevant provisions of P.P.C. May be reproduced advantageously:- "146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object or such assembly, every member of such assembly is guilty of the offence of rioting.
147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly wapon,--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
A plain reading of these provisions will show that an accused cannot be convicted under section 148, P.P.C. Unless he is found to be a member of unlawful assembly using force or violence in prosecution of the common object of such assembly. An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to commit crimes mentioned under section 141,. P.P.C. The conviction of only one of the five accused under section 302, P.P.C., and conviction of the remaining four accused under section 307, P.P.C., without the aid of section 149, P.P.C. Would show that neither there was any unlawful assembly nor the appellant was member of such assembly.
3. For all these reasons, the appeal is accepted and Liaquat appellant is acquitted of the charges under sections 148 and 149, P.P.C. Who having served the sentence of imprisonment stands already released from the jail.