1. ' By this common judgment I intend to dispose of both these Criminal Appeal No,119/98 and Criminal Jail Appeal No,124/98 as they arise out of same judgment.
2. ' The appellants through these criminal appeals have assailed the judgment, dated 2-11-1998 passed by learned 1st Additional Sessions Judge, Khairpur in Sessions Case No,d03/1990 Re: State v.
3. Muhib Ali and others in an offence under sections 302, 323, 147, 114 and 149, P.P.C. Arising out of F.I.R.
4. No,96/1990 Police Station, Mirwah, whereby the appellants were sentenced to undergo imprisonment for life and pay fine of Rs,25,000 each under section 302 read with section 149, P.P.C.
5. In default of payment of fine they had to undergo additional R.I. For 2 years. The appellants were awarded R.I. For 3 years each under section 323 read with section 149, P.P.C. They were also awarded 12 months' R.I. Under section 148, P.P.C. The fine if recovered was ordered to be paid to the legal heirs of deceased as compensation.
6. ' The brief facts giving rise to this appeal are that on 27-6-1990 at 22-00 hours one Misri lodged first information report with Police Station Mirwah, stating therein that he has five sons. Out of whom, his two sons namely Murad and Kamal were residing separately whereas remaining three sons used to reside with him. Their house was sorrounded by a thorney hedge, which had entrance on west.
7. On the night of incident at about 7 p.m. Murad was shifting the door of house towards east. The complainant restrained him from doing so. Upon which, there was exchange of harsh words between them. His son Murad, Muhib son of Murad, Zulifquar son of Murad, Ilyas, Izhar, Mushtque, Shareef and Maqbool alias Lalu armed with Lathis came there and started hurling abuses to the complainant. They caused Lathi blows on his head. He raised cries which attracted his son Akhaque Ahmed, nephew Darvesh and his grandson Gulbahar. They intervened to rescue him.
8. They also received injuries at the hands of accused. It is stated that Hamid Rind came there and got the scuffle finished. The complainant narrated these facts to their Nekmard Bahawal Khan, who advised him to lodge first information report.
9. ' The police after recording F.I.R. Conducted usual investigation and sent up the accused to stand trial.
10. ' The charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.
11. ' The prosecution in its support examined Mashir Sher Muhammad Exh.14, P.W. Mushtaque Exh.15, P.W. Bahawaldin Exh.27, P.W. Gul Bahar Exh.28, P.W. Darvesh Exh.30, Dr. Qurban Ali Exh.32, H.C. Abdul Aziz Exh.37 and Investigation Officer, A.S.-I. Ghulam Nabi Exh.41. Thereafter the prosecution closed its side.
12. ' The statements of appellants under section 342, Cr.P.C. Were recorded wherein they denied all the allegations levelled by prosecution. Appellants Muhib, Murad and Izhar stated that appellant Murad is son of complainant from another wife while Akhlaque was his son from different wife. Appellant Murad was the father of appellant Muhib and Zulifquar. He used to demand his share of land from complainant. The complainant did not accede to that demand and was annoyed with him. They further stated in their statements that in fact the fight took place between complainant and eyewitnesses over a petty matter of water pumping and subsequently the dispute was settled between them and they decided to implicate Murad and his sons. .Appellant Mushtaque has raised plea of alibi and stated that he was on his duty at Shikarpur. He produced the photostat copy of certificate and Muster Roll vide Exhs.50 and 51.
13. ' The learned trial Court after examining the witnesses came to the conclusion that the prosecution has been able to bring home the guilt against the appellants and convicted them for a term stated above. The said judgment is challenged in this appeal.
14. ' It is contended by the learned counsel for the appellants that the ocular evidence is untrustworthy and is in conflict with medical evidence. The complainant and witnesses have implicated all the eight appellants for six injuries sustained by deceased Akhlaque injured Gul Bahar, Darvesh and complainant Misri. It is argued that section 149, P.P.C. Was not attracted in the case as it was a sudden flare-up between the father, son and grandsons over the fixation of the entrance of hedge.
15. The fatal injury to deceased has not been attributed to any one of them. It is submitted that the case of prosecution, even if admitted into the six injuries if attributed, each one of them, then in that event also six persons can be held responsible for causing the said injuries but at least two appellants were not responsible to any overt-act. The said two appellants cannot be identified amongst the eight. In sudden flare-up, when there is no premeditation and preconcert on their part, the common object cannot be attributed to them and cannot be established that it was an unlawful assembly constituted as per the requirement of sections 149 and 148, P.P.C. The injured have contradicted each other on material aspects of the incident. It is submitted that all the witnesses are related inter se. The village consists about 250 houses, but no independent witness has been examined by the prosecution even P.W. Hamid, who is said to have separated the parties has not been examined in Court. The defence has examined D.W. Hazoor Bux and Ghulam Farooque but their evidence has not been properly evaluated and assessed by the trial Court. The plea of alibi raised by appellant Mushtaque has not been properly assessed and appreciated.
16. ' Mr. Faizullah Korai for remaining appellants has also adopted the arguments of Mr. Habibullah Shaikh.
17. ' Mr. Sher Muhammad Shar learned A.A.-G. Has not supported the impugned judgment and has stated that it was sudden flare-up between the son, grandsons and father. No specific part has been assigned to any of the appellants. The injuries on the persons of P.W. Were superficial and eight appellants have been sentenced to suffer R.I. For imprisonment for life for six injuries only.
18. ' The perusal of record shows that the incident had occurred at the spur of moment over the shifting of entrance of either house or Otak. The F.I.R. Indicates that the fight took place over the shifting of the entrance of the house but the deposition of P.W. Darvesh, who is also witness injured has deposed that accused persons closed the entrance of Otak of complainant by removing the hedge and they were restrained by complainant. The ocular evidence consists of injured witness, complainant Misri, P.W. Gul Bahar and P.W. Darvesh. The complainant Misri had expired during the pendency of trial, therefore, he could not be examined in the Court. P.Ws. Gul Bahar and Darvesh were examined. P.W. Gul Bahar has stated in the trial Court that all the eight accused were armed with lathis and they were giving blows to deceased Akhlaque. He and Darvesh were sitting in the house of Darvesh and went out on hearing cries. Both of them tried to intervene and sustained injuries. He has further stated that the accused were closing the entrance of the house of complainant and when the complainant restrained then from doing so, they caused injuries. He has stated that he remained in hospital as indoor patient for three days.
19. ' The abovementioned version does not get support from the evidence of injured witness Darvesh and Medical Officer. The version of P.W. Gul Bahar is also in conflict with the contents of F.I.R. The F.I.R. Shows that Murad was opening door on eastern side of the house but the complainant restrained him from opening another door as the door was already fixed on western side. The medical certificate produced on record as Exh.36 shows that he was not admitted in hospital. Gul Bahar attended the hospital as O.P.D. Patient on 27-6-1990 and had sustained a lacerated wound of 6 cm x 2 i.Rn x skull deep. The injury was declared to be simple in nature. The evidence of P.W.
20. Darvesh is at Exh.31. He has stated that he and Gul Bahar were sitting in his house and on hearing commotion they came out and saw that all the accused present in Court were giving Lathi blows to Akhlaque and Misri. This fact does not get support from the medical evidence. He has deposed in Court that he and Gul Bahar went to hospital on the next day. This fact adversely reflects upon his testimony. He has stated that the accused closed the entrance of Otak of complainant by removing the hedge. This is not the case of prosecution of either in the F.I.R. Or in the deposition.
21. Admittedly the parties are closely related to each other. The incident has occurred due to the harsh words exchanged by the parties. The complainant party tried to implicate as many male members of accused party as possible and roped about eight persons for six injuries only. Applicability of section 149 is also a serious question to be resolved herein such a situation when the fight took place all of sudden at the spur of moment when exchange of harsh words took place. The perusal of impugned judgment shows that the motive has been proved by the prosecution. There is no motive either disclosed in the F.I.R. Or in the depositions. The Roznamcha allegedly recorded at the instance of appellant Izhar has not been produced by the ascriber nor is known to him in the Court.
22. This Roznamcha entry has not been put to appellants while he was examined under section 342, Cr.P.C. Admittedly the fatal injury has not been attributed to any one of the appellants. Even the remaining injuries are not attributed to any of the appellant, so that responsibility could be fixed upon some of them. There are only two injured eyewitnesses Darvesh and Gul Bahar. They have contradicted each other. No doubt they are injured witnesses but the way in which they have deposed in Court, there is no guarantee that what they have stated in the Court, is truth and nothing else. They both have deposed that all the eight accused were causing injuries to deceased Akhlaque and Misri. This fact is not borne out from the record. The deceased only sustained two injuries including one bruise. Misri sustained one lacerated wound. The appellant Mushtaque produced a certificate regarding his presence at his office at Shikarpur but it is disbelieved on the ground that it is copy and the officer who issued it was not examined in Court. The plea of alibi is not to be proved affirmatively by the accused but it is sufficient if a reasonable doubt is created to the extent that the deposed fact may have truth in it.
23. 'The incident was not premeditated. It occurred at spur of moment when harsh words took place between the parties. The fact of formation of unlawful assembly is to be established by the prosecution before the sentence is awarded to each of its member. The fact is to be positively proved that each one of them participated or assembled, for being member of unlawful assembly in prosecution of his common object, in order to achieve the object of that assembly. But, in this case, admittedly, the total injuries were six, for which eight persons are awarded life imprisonment.
24. Section 149 is only in aid of substantive offences subject to fulfilment of required conditions, such as there should be an unlawful assembly in prosecution of the common object of that assembly.
25. The section is to be used when the conditions enumerated in section 149, P.P.C. Are proved affirmatively and beyond any shadow of doubt. Firstly each member of the assembly can only be punished, when his presence is established. Secondly, his knowledge of common object which is to be achieved by that assembly and then some sort of active participation of accused in the commission of offence is to be proved, apart from his formal o presence. In the peculiar facts and circumstances of the present case, no overt-act or active participation is attributed to any of the particular accused. Even the principal accused, who caused fatal blow to deceased is not known.
26. Except one fatal blow, all the other five injuries are superficial and simple in nature. Eight accused as discussed above have been made responsible by adding section 149. In such situation it would not be safe to maintain the sentence of imprisonment for life to all the eight appellants. The sentence for imprisonment for life awarded on the basis of such evidence could not be sustained.
27. As such, these appeals were allowed and the sentence awarded to the appellants by the trial Court was set aside by a short order, dated 9-4-2001. These are the detailed reasons for the same.