' MUHAMMAD NAWAZ ABBASI, J.---The appellants namely Ghulam Shabbir son of Dost Muhammad, Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-e-Din and Mushtaq Ahmad son of Ahmad Khan, all resident of village Jhamat, District Attock alongwith 17 others were tried for the charge under sections 148, 302/324/337-A(ii)/149, P.P.C. Read with section 9 and sections 6, 7 and 38 of Anti-Terrorism Act, 1997 by the Special Court constituted under Anti- Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital Territory for the allegation of commiting Qatl-e-Amd of Siddique Umar and causing injuries to Muhammad Khan, Ghulain Hussain, Nusrat Ali, Ghulam Raza through terrorism due to religious differences and sectarian hatred. The learned trial Judge having found the appellants guilty of the charge convicted them vide judgment dated 23-9-2000 and sentenced them as under:--
1. UNDER SECTIONS 302/149, P.P.C.
(a) Ghulam Shabbir son of Dost Muhammad and Abid Hussain imprisonment for life with a fine of Rs,20,000 each payable to the legal heirs of deceased Siddique Umar under section 544-A, Cr . P. C .
(b) Ghulam Raza, Ghulam Shabbir son of Ghulam Yousaf and ' Mushtaq Ahmad rigorous imprisonment for 10 years with fine of Rs,10,000 each payable to the legal heirs of Siddique Umar deceased under section 544-A, Cr.P.C.
2. UNDER SECTION 324/149, P.P.C.
(a) Ghulam Raza for murderous assault upon Ghulam Hussain, rigorous imprisonment for seven years with a fine of Rs,20,000 and in default of the payment of fine, to undergo rigorous imprisonment for six months.
(b) Ghulam Shabbir son of Ghulam Yousaf for causing injuries to Ghulam Hussaia, rigorous imprisonment for two years under sectioi. 337-A(i), P.P.C.
(c) Mushtaq Ahmad for causing injuries to Muhammad Khan rigorous imprisonment for two years under section 337-A(i), P.P.C.
(d) Ghulam Shabbir son of Dost Muhammad rigorous imprisonment for two years under sections 337A (i)/149, P.P.C.
3. UNDER SECTION 9 OF ANTITERRORISM ACT, 1997.
' All appellants have been sentenced to rigorous imprisonment for four years with fine of Rs,10,000 each and in default of payment of fine to undergo rigorous imprisonment for two months each.
UNDER SECTION 148, P.P.C.
(e) All appellants were awarded sentence of rigorous imprisonment for three years with fine of Rs,1,000 each and in default of payment of fine to undergo rigorous imprisonment for one month each.
' The appellants were allowed benefit of section 382-B, Cr.P.C.
2. The co-convicts of' the appellants namely Sher Afghan, Muhammad Iqbal and Abid Hussain have not filed any appeal. We have been informed that Sher Afghan and Muhammad Iqbal have since been died and Abid Hussain was fugitive from Law.
3. The appellants have challenged their conviction and sentence through this combined Criminal Appeal No,386-T of 2000, whereas the learned trial Judge has sent the record of the case to this Court under section 25 of Anti-Terrorism Act, 1997 for the purpose of disposal of appeal of the appellants.
4. The precised facts in the background as contained in statement Exh.P.C. Of Ghulam Hussain, on the basis of which, formal F .1. R. Exh.P.C/1 was registered at 6-45 p.m. On 13-6-1993 at Police Station Jhand, District Attock are as under:-- "That on 13-6-1993 at 3-30 p.m. The complainant alongwith his sons namely Siddique Umar and Usman Haider was proceeding towards his house and when they reached near Imamkot, suddenly Mumtaz Hussain son of Muhammad Nawaz, Sher Afghan son of Afzal Khan, Muhammad lqbal son of Ghulam Hussain armed with Khanjar, Ghulam Shabbir son of Dost Muhammad, Abid Hussain son of Amir Alam Khan empty-handed, Ghulam Yousaf son of Ghulam Hussain armed with .7 MM Rifle, Muhammad Amin son of Rab Nawaz, Ghulam Raza son of Ghulam Mohi-ud-Din armed with hatchet, Khurshid Ahmad son of Dost Muhammad armed with .12 bore gun, Ghulam Shabbir son of Ghulam Yousaf armed with Klashnikov, Haji Muhammad Nawaz son of Ghulam Mohi-ud-Din, Mushtaq Ahmad son of Ahmad Khan, Zaffar Iqbal son of Mehdi Khan, Zameer-ul-Hassan son of Ghulam Yousaf, Muhammad Aslam son of Allah Yar, Arshad Mehmood son of Nawab Khan with stones in their hands, Mumraiz Khan son of Gul Khan armed with pistol, Sajjad Hussain son of Khan Baig armed with .12 bore gun, Gull Abbas son of Gull Khan armed with .7 MM Rifle, Muhammad Riaz son of Ahmad Khan armed with Lathi, Nawab Khan son of Mehdi Khan, Ghulam Haider son of Muhammad Afzal Khan and Allah Yar son of Mohi-ud-Din having stones in their hands confronted them. Ghulam Yousaf son of Ghulam Hussain, Muhammad Amin son of Rab Nawaz raised Lalkara to kill them, whereupon Hamid Abbas son of Dost Muhammad, Ghulam Shabbir son of Muhammad Yousaf, Muhammad Amin son of Rab Nawaz, Mamraiz Khan son of Gull Khan, Sajjad Hussain son of Khan Baig and Gull Abbas son of Gull Khan all carrying fire-arms started indiscriminate firing.
Ghulam Shabbir son of Dost Muhammad, Abid Hussain son of Amir Alam Khan caught hold of Siddique Umar, whereas Mumtaz Hussain son of Muhammad Nawaz, Sher Afghan son of Afzal Khan, Muhammad Iqbal son of Ghulam Hussain inflicted Khanjar blows on his back, as a result of which, Siddique Umar fell down on the ground and succumbed to the injuries. Ghulam Raza son of Ghulam Mohi-ud-Din inflicted hatchet blow on the head of the complainant, whereas Ghulam Shabbir son of Ghulam Yousaf inflicted blows on the arms of the complainant with Butt of the Rifles and Haji Muhammad Nawaz son of Ghulam Mohi-ud-Din threw stones at the complainant. On the hue and cry of the complainant Muhammad Khan son of Rajmeer Khan, Ghulam Raza son of Ghulam Muhammad, Shahabud-Din son of Ghulam Raza and Ghulam Safdar son of Akbar Khan, co-villagers when reached at the spot, Mushtaq Ahmad son of Ahmad Khan and Zarib accused caused injury to Muhammad Khan with a stone. Zaffar Iqbal son of Mehdi inflicted him blows with Butt of his gun. Nusrat Ali was caused injuries with stones by Zameer-ul-Hassan son of Muhammad Aslam, Ghulam Raza son of Ghulam Muhammad was caused injuries by Arshad Mahmood son of Nawab Khan and Ahmad Khan son of Sultan with stones. The accused, while firing in air decamped from the place of occurrence."
5. The motive behind the occurrence was that Siddique Umar was President of Anjuman Sip-e- Sahaba, Jhamat and there was religious differences between Siddique Umar and the accused, who belonged to Shia Sect and for the said reason, the accused took the life of deceased and caused injuries to the complainant and their companions. Abdul Qayyum, S.I. Having received the information reached at the place of occurrence and recorded statement Exh.P.0 of Ghulam Hussain at the spot, which was sent to police station for the registration of case. The Sub-Inspector having prepared injury statement Exh.P.D and inquest report Exh.P.E despatched, the dead body through Mamraiz Khan, Constable for post-mortem examination. Sub-Inspector also prepared injury statement Exh.P.F of Muhammad Khan son of Rajmeer, Exh.P.G of Ghulam Raza son of Ghulam Muhammad and Exh.P.L1 of Ghulam Hussain. The Sub-Inspector then prepared injury statement Exh.P.I of Nusrat Ali and sent the injured to the hospital for medical examination. Dr.Cap. Dost Muhammad, Medical Superintendent, Tehsil Headquarter Hospital, Talagang (P.W.8) medically examined injured on 13-8-1993 and prepared their medico-legal reports. Muhammad Khan was found to have sustained the following injuries:--
(1) A lacerated wound on above upper lip of left side, 2 c.m. x 1/2 c.m. x going through and through towards inner side in the moustaches.
(2) An irregular lacerated wound on lower lip left side 3 c.m. x 1/2 c.m. x 1 c.Rn. Deep.
(3) In the lower jaw, one tooth (canine) is present while all other teeth were missing. Lower gumb was swollen and bleeding from sockets was present. Three teeth in the upper jaw present, while other teeth were missing. Gum was swollen and bleeding.
(4) Swelling ' on left thigh laterally 3 c.m. x 2 c.m. The detail of the injury of Ghulam Raza son of Ghulam Muhammad was as under:--
(1) A swelling on left thigh 10 c.m. x 10 c.m.
' The medical examination of Ghulam Hussain son of Muhammad Hussain reveals the following injuries:--
(1) A lacerated wound on back side of head, mid-line 3 c.m. x 1/2 c.m. x bone deep.
(2) A contusion with swelling on left fore-arm and upper arm including elbow-joint, 15 c.m. x 13 c.m.
(3) A swelling on left back chest, upper and middle part, 6 c.m. x 5 cm.
' Nusrat Ali son of Muhammad Riaz sustained the following injury:--
(1) Swelling 7 c.m. x 5 c.m.
' On 14-8-1993 at 8-00 a.m. The same Doctor conducted post-mortem examination of the deceased Siddique Ummar and found following injuries 'on his dead body:--
(1) An incised wound on left back chest, lower part, 3 c.m. x 1 1/2 c.m., 5 c.m. Lateral to vertiberal column.
(2) An incised wound on left back chest, 4 c.m. x 1/2 c.m.; below inferior angle of scapula, 6 c.m.
Posterior to left posterior axillary line.
(3) An incised wound on left axilla, on posterior axillary line 3 c.m. x 3 c.m.
7. On 15-8-1993 the same Doctor medically examined Muhammad Aslam and Muhammad Nawaz accused and found following injuries on their person:-- ' MUHAMMAD ASLAM
(1) An abrasion on left side of head, back region, 1-1/2 c.m. x .3 c.m. (abrasion was in healing process)
(2) An abrasion on right back chest, lower part, 3 c.m. x 3 c.m. (abrasion was in healing process)
' MUHAMMAD NAWAZ
(1) An Abrasion on left fore-head 1 c.m. x 1/2 ,c.m., 5 c.m. Above left eyebrow.
' Muhammad Yousaf, Inspector (P.W.13), on the basis of complaint Exh.P.0 recorded formal F.I.R.
Exh.C.1 and while reaching at the place of occurrence; collected blood-stained earth from the spot vide memo. Exh.P.Q, which was attested by Muhammad Afzal and Haji Fateh Muhammad. The Inspector took- into possession the last-worn clothes of the deceased produced before him by Mamraiz Khan, Constable and arrested the accused. During the investigation, on the disclosure of the accused, he effected the recoveries of weapons of offence from them. Ghulam Raza got recovered hatchet Exh.P.6 from his residential house. The Inspector found Ghulam Shabbir son of Dost Muhammad, Abid Hussain, Ghulam Yousaf, Muhammad Iqbal and Hamid Abbas innocent. The Investigating Officer having completed the formal investigation submitted the challan.
9. Muhammad Constable (P.W.1) remained associated with the investigation and performed the duties of delivering the parcels in Malkhana. Nishat Hussain, Patwari (P.W.2) on the direction of Investigating Officer and on the pointation of the P.Ws. Prepared the site plans Exh.P.A and Exh.P.A/1 of the place of occurrence. Mamraiz Khan (P.W.3) escorted the dead body of Siddique Umar to Tehsil Headquarter Hospital, Pindi Gheb for post-mortem examination. Abdul Qayyum (P.W.4) recorded the statement Exh.P.0 of Ghulam Hussain complainant at the spot at 6-45 p.m. On the date of occurrence. Muhammad Miskeen, Constable (P.W.5) and Zia Ullah complainant P.W.2 delivered sealed parcels in the Office of Chemical Examiner at Lahore. Ghulam Hussain (P.W.6), Muhammad Khan (P.W.7) and Shahab-udDin (P.W.10) are the eye-witnesses of the occurrence.
Muhammad Afzal (P.W.9) has witnessed the recovery of blood-stained earth from the place of occurrence. Ghulam Hussain, the complainant of the case (P.W.6) while repeating the story as narrated in his statement Exh.P.0 with description of the accused and detail of weapon being carried by them, stated that Ghulam Yousaf and Muhammad Amin, raised Lalkara to teach a lesson to the complainant and deceased for Leadership and kill them, whereupon their co- accused started indiscriminate firing ill the air. Ghulam Hussain and Abid Hussain caught hold of Siddique Umar deceased, whereas Mumtaz Hussain son of Muhammad Nawaz, Sher Afghan son of Afzal Khan, Muhammad Iqbal son of Ghulam Hussain caused blows to the deceased with daggers on his buttock and as a' result of injuries sustained by Siddique Umar, he died at the spot. The witness has further stated that Ghulam Raza gave a hatchet blow on his head, whereas Ghulam Shabbir son of Ghulam Yousaf caused blow on his arm with butt of his gun and Haji Muhammad Nawaz caused a blow to, him with a stone. On hearing his hue and cry and firing reports, Muhammad Khan son of Rajmeer Khan, Ghulam Raza son of Ghulam Muhammad, Shahab-ud-Din son of Ghulam Raza and Ghulam Safdar son of Akbar Khan reached at the spot and Mushtaq Ahmad son of Ahmad Khan Zarib accused caused a blow with stone to Muhammad Khan and Zaffar Iqbal son of Mehdi Khan caused a bLow with butt of his gun to said Muhammad Khan.
Zameer-ulHassan son of Muhammad Aslam caused blow to Nusrat Ali with stone, whereas Muhammad Aslam, Arshad Mehmood and Ahrnad Khan caused blows to Ghulam Raza with stones. The witness has stated that Siddique Umar was President of Anjuman Sipa-e-Sahaba, Jhamat and used' to have debates with the accused party on religious issues, as a result of which, they having developed grudge against the deceased were revengeful and on the fateful day, while armed with deadly weapons launched attack on the deceased, in which, the complainant and witnesses, also suffered injuries. The remaining two eye-witnesses namely Muhammad Khan and Shahab-ud-Din have fully corroborated the statement of Ghulam Hussain in each material. The eye-witnesses account remained consisted except some improvements in the statement of Shahab-ud- Din (P.W.10). The accused in their statement under section 342, Cr.P.C. Without denying the occurrence, pleaded their innocence taking the plea that the complainant party while committing aggression attacked upon them, when they were present inside the Imamkot and in consequence thereto, the fateful occurrence had taken place, in which, Siddique Umar lost his life and P.Ws. As well as the accused sustained injuries. The defence plea of the accused is contained in the statement of Haji Muhammad Nawaz son of Ghulam Muhammad under section 342, Cr.P.C.
In an answer to a question that "why this case against you and why the P.Ws. Have deposed against you" as 'under:- "Ghulam Hussain complainant announced on the loudspeaker in the mosque that Shias are Kaffirs and that he had extended Shias from the mosque and on that day he will extern them out from the village. Someone from Imamkot in response announced that anyone calling Shias to be Kaffirs is himself a Kaffir and that the complainant may come. Upon this Ghulam Hussain along with his son Saddique Umar came to Imamkot. I and Muhammad Siddique dissuaded them from entering the Imamkot, upon which, they started beating me and Muhammad Aslam. On seeing this Mumtaz accused armed with knife reached there and in order to save me and Muhammad Aslam accused caused injuries to Siddique Umar. It is, thereafter that Muhammad Khan, Nusrat Ali and Ghulam Raza from the complainant side arrived there and started pelting stones. From our side Ghulam Haider and Ahmad Khan in response pelted stones upon them."
' The appellants were charged by learned trial Judge as under:-- ' FIRSTLY: That on 13-8-1998 in the area of village Jhamat at about 3-30 p.m, you all (except Chulam Shabbir and Abid who were empty-handed) armed with deadly weapons formed an unlawful assembly and the common object of the unlawful assembly was to commit Qatl-eAmd of Siddique Umar and to attempt to commit Qat17e-Amd of Ghulam Hussain and Muhammad Khan and to inflict injuries to Nusrat Ali and Ghulam Raza, to stir sectarian hatred and to struck terror and thereby you committed an offence of rioting punishable under section 148, P.P.C. Which is within the cognizance of this Court.
' SECONDLY : That on the same date, time and place and in the circumstances narrated above and in the prosecution of your common object you being belonging to Shia Sect committed Qatl-e- Amd of Siddique Umar deceased, who was President of Anjuman Sipah-e-Sahaba village Jhamat and thereby you committed an offence punishable under Sections 302/149, P .P .0 . Which is within the cognizance of this Court.
' THIRDLY: That on the same date time and place and in prosecution of your corhmon object you injured Muhammad Khan P.W. With such intention or knowledge and under such circumstance that if he by your that act had died you would have been guilty of Qatl-e-Amd and thereby you committed an offence punishable under sections324/149, P.P.C., which is within the cognizance of this Court.
' FOURTHLY: That on the same date, time and place and in the circumstances narrated above and in prosecution of your common object you injured Ghulam Hussain P.W. With such intention or knowledge and under such circumstances that if he by your that act had died you would have been guilty of his Qatl-e-Amd and thereby . You committed an offence punishable under sections 324/149, P.P.C. Which is within the cognizance of this Court.
' FIFTHLY: That on the same date, time and place and in the circumstances narrated above, you in furtherance of your common object injured Nusrat Ali P.W. And thereby you committed an offence punishable under sections 337-A(ii)/149, P.P.C., which is within the cognizance of this Court.
' SIXTHLY: That on the same date, time and place and in the circumstances narrated above and in prosecution of your common object you injured Ghuulam Raza P.W. And thereby you committed an offence punishable under sections 337-F(ii)/149, P.P.0 which is within the cognizance of this Court.
' SEVENTHLY: That on the same date, time and place and in the circumstances narrated above and in prosecution of your common object, you being Shia committed the Qatl-e-Amd of Siddique Umar, President of Anjuman-e-Sipah Sahaba, village Jhamat and committed other offences mentioned above and your behaviour was also to stir sectarian hatred and thereby you stired up sectarian hatred or having regard to all circumstances, sectarian hatred was likely to be stired up and thereby you committed an offence punishable under section 9 of Anti-Terrorism Act, 1997 read with section 149, P.P.C., which is within the cognizance of this Court.
' EIGHTHLY: That on the same date, time and place and in the circumstances narrated above and in furtherance of your common object you struck terror displaced and waived fire-arms, adversely affected the harmony among the different sections of people and thereby you committed an offence punishable under sections 6 and 7 read with section 38, Anti-Terrorism Act, 1997 read with section 149, P.P.C. Which is within the cognizance of this Court.
10. The learned counsel for the appellant having criticised the prosecution evidence submitted that the version of the accused of acting in exercise of their self-defence was more plausible and appealable to mind in the given fact. The learned counsel in support of his arguments has raised the following contentions:--
(a) That the injuries on the person of deceased with sharp-edged weapon on his back within the close proximity would indicate that the same were result of some weapon which would be supported by the fact that Mumtaz Hussain (since died) during the investigation has taken the plea that the deceased suffered injuries at his hand.
(b) That the occurrence took place at 3-30 p.m. Whereas the statement Exh . P. C of Ghulam Hussain complainant was recorded at the spot at 6-45 p.m. And there was no reason that why the report was not lodged at the Police Station, which was at a distance of 25 kilometres from the place of occurrence and why till the arrival of the Police at the spot, the injured were not taken to the hospital for treatment. The learned counsel has drawn inference that since the complainant party was aggressor and being guilty conscious made no attempt either to lodge the report or get the injured medically examined.
(c) That Sub-Inspector on reaching at the spot having conducted the preliminary investigation recorded the statement of Ghulam Hussain P.W. And, therefore, the possibility of consultation and deliberation would not be ruled out.
(d) That the injuries sustained by the deceased and witnesses in the occurrence were distributed in a manner that maximum member of opponent party/group could involve.
(e) That as per story of F.I.R. Each accused caused more than one injury to the deceased but in the medical evidence only three injuries were found to have been sustained by the deceased on his back.
(f) That as per prosecution case, the co-accused of the appellants while carrying fire-arms made firing but neither any empty was recovered from the spot nor any member of either party was injured.
(g) That the occurrence admittedly took place near Imamkot, whereas the complainant and deceased being resident of a place at a reasonable distance from Imamkot were not supposed to go to that side in normal circumstances and their unusual presence near Imamkot would, be suggestive of the fact that the complainant party was aggressor.
(h) That the accused being camped in Imamkot would not be deemed to have formed an unlawful assembly and while present in Imamkot a place of their worship, they would have no common object to commit the crime and consequently neither section 148 nor section 149, P.P.C. Would be attracted and, applicable in the given situation.
' The learned counsel submitted that while putting the prosecution case in juxta position to the defence version, it would maximum be a case of individual liability and not that of the vicarious liability of all the appellants. The learned counsel has submitted that the case of . Ghulam Shabbir son of Dost Muhammad an old person of 70 years of age, who was empty-handed and had not played any active role except simple presence at the spot and was also declared innocent during the investigation was distinguished to that of the remaining three appellants. The learned counsel next submitted that Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-ud- Din and Mushtaq Ahmad son of Ahmad Khan were attributed the role of causing simple injuries and being responsible to the extent of committing an offence under section 337-A(i), P.P.C., for which, they were convicted and sentenced, would be entitled to the; acquittal from the remaining charges. The learned counsel having placed reliance on The State v. Bahadur and another (1987 PCr.LJ 1689), Hassan me The State (1969 SCM R 454) and Sher Khan v The State (1991 SCM R 241) concluded his argument.
' The learned counsel for the complainant has argued that undoubtedly the occurrence took place near Imamkot but there was no evidence that the complainant party was aggressor, rather the aggression of the accused , party is proved through direct evidence of the eye-witnesses. He added that the injuries sustained by the accused namely Muhammad Aslam would not suggest the aggression of the complainant party, rather in peculiar circumstances, the sustaining of injuries by member of the accused party in the occurrence was possible and non-mentioning of such injuries in the F.I.R. Or in the statements of eye-witnesses for want of notice would neither reflect upon the truthfulness of the ocular account nor is fatal to the prosecution case. The learned counsel has contended that it is evident from the facts and circumstances of the case that the accused having formed an unlawful assembly in furtherance of their common object attacked upon their opponents and committed Qatl-e- Amd of Siddique Umar and caused injuries to .The eye-witnesses. The learned counsel submitted that the accused having filed a private complaint introduced counter-version of self-defence and on dismissal of same by the learned trial Judge the accused preferred C.P.L.A. No,4 of 1996 before this Court, which was also dismissed vide Judgment dated 19-3-1998 and thus the defence version stood excluded from consideration. The learned Assistant Advocate-General assisted . By Raja Muhammad Ayub Kiani, the learned State Counsel has argued that the complainant party was empty-handed and that perusal of statement Exh.P.0 of Ghulam Hussain and the statements of eye-witnesses would show that co-accused of the appellants made indiscriminate firing in the air with the purpose to create terror in the area and the remaining accused including the appellants attacked at the P.Ws. And the deceased and caused them injuries. The learned Assistant Advocate-General while concluding submitted that the accused party with the motive to suppress the Shia Sect in the village committed the sectarian murder.
12. We have heard the learned counsel for the parties at length and perused the record in detail with, their assistance. The material facts relating to the taking place of the occurrence at 3-30 p.m near Imamkot in village Jhamat and' participation of the-accused and complainant party in the occurrence, are not denied. It is also admitted that the parties belong to different religious sects namely Shia and Sunni and they while carrying the religious differences were opponent to each other. It is common ground between the parties that Siddique Umar was President of Anjuman Sipah-eSahaba, Jhamat and used to enter into discussion on religious issues with the members of Shia Sects and on more than one occasion entered into altercation with the accused on such issues. The motive set up by the prosecution in the occurrence was that of religious hatred of the accused belonging to Shia Sect against Siddique Umar, who was President of Anjuman Sipah-e- Sahaba. The accused in their statement under section 342, Cr.P.C. Have stated that on the, fateful day, the deceaseu on loudspeaker from Masjid called Shias as Kaffirs and someone from Shia Sect in exchange replied in the same manner. As a result of which, the complainant party attacked at the Imamkot. Thus, undoubtedly the occurrence being result of 'sectarian hatred would constitute an act of terrorism, which is defined in section 6 of Anti-Terorism Act, 1997 and consequently it being a scheduled offence would be triable by Special Court established under Anti-Terrorism Act, 1997. The appellant without denying the occurrence pleaded that the complainant party being armed with Lathis, attacked on them and as a result thereof, they in exercise of right of self- defence caused injuries to the members of the complainant party. In the light of admission of accused, the only question for determination would be whether the appellants having formed an unlawful assembly attacked on the deceased and P.Ws. Or they were the victims of the aggression of the complainant party. There is no denial to the fact that the occurrence took place near Imamkot but there is nothing on record to suggest that either the complainant party was armed with any weapon nor, any member of the said party entered into the Imamkot. The mere happening of the occurrence outside the Imamkot would not be an evidence of aggression of complainant party, rather the evidence is that the complainant with his sons while passing through Imamkot was attacked by the accused party. As per defence version the accused were present inside the Imamkot for prayer, when the occurrence took place but it is not understandable that for what purpose, the accused party was keeping dagger and firearms in Imamkot. The defence version is not supported by any evidence direct or circumstantial in rebuttal to the prosecution evidence to establish that the complainant and the deceased were not victim of the aggression at the hand of the appellants and their companions. The evidence is that the eye-witnesses and the companions of the complainant reached at the spot on hearing hue and cry of complainant and on intervention, they were also caused injuries by the accused party. This is not deniable that the deceased while proceeding through the Imamkot in the company of the complainant was attacked by the accused and the appellants being present in Imamkot participated in the attack and thus would be deemed to have formed an unlawful assembly, in furtherance of their common object and the contention of the learned counsel that the accused party, while being camped in Imamkot would not be deemed to have formed an unlawful assembly as in the Imamkot they would have no common object to commit the crime was without force. The accused party while present in Imamkot decided to do away with the deceased and with their common object, they while coming out of Imamkot having formed an unlawful assembly committed the crime and consequently every member of an unlawful assembly, notwithstanding the nature of role .Played by him, would equally be responsible fc- the act of his co-accused. In the present case there is ample evidence on record to show that the appellants being member of unlawful assembly committed riots, which ended in the murder of Umar Siddique, therefore, the appellants being members of unlawful assembly would equally be responsible for the murder. The injuries sustained by the accused namely Muhammad Aslam and Muhammad Nawaz would not ipso facto be an evidence either aggression of the complainant party or free fight between the parties. It is understandable that in the given circumstances, there was every possibility of sustaining injuries by the aggressors. Therefore, for mere reason of sustaining injuries by the two accused, it is difficult to hold that the accused were victim of the aggression of complainant party. The defence version itself suggested ,the exchange of slogans of calling each other Kaffir and at a result of which, the parties clashed. The perusal of evidence would show that the accused party being fed up from the activities of deceased as their religious opponent decided to do away with him to establish their supremacy in the village. From the detailed analysis of evidence, we are convinced that the accused while camped in Imamkot having formed unlawful assembly committed aggression upon the deceased with the object to done the deceased to death. The accused while armed with deadly weapons, by showing force and violence in furtherance of their common object committed murder of Siddique Umar and caused injuries to the witnesses, therefore, the appellants would be vicariously responsible for the murder and guilty of charge under section 302, P.P.C. By virtue of section 149, P.P.C. Notwithstanding that what role was played by an individual accused and that who was responsible for causing the fatal injuries to the deceased. We are, therefore, of the view that no exception can be taken to the finding of guilt of the appellants except qua Ghulam Shabbir son of Dost Muhammad, arrived at by learned trial Judge. Ghulam .Shabbir son of Dost Muhammad an old person of seventy years was admittedly empty-handed and played no active role in the occurrence. He was also declared innocent by the Investigating Officer during the investigation and we having of the considered view that mere presence of said appellant at the spot without an overt act would not be enough to establish that he was also member of unlawful assembly. We, therefore, acquit him of all the charges and direct his immediate release, .If not required in any other criminal case.
' The conviction and sentence of remaining appellants namely Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-ud-Din and Mushtaq Ahmad son of Ahmad Khan awarded to them by the trial Court under section 302(b), P.P.C. Is maintained. The learned trial Judge, while convicting the accused under section 302(b), P.P.C. Awarded sentence of life imprisonment to Ghulam Shabbir son of Dost Muhammad, whereas for the same charge Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-ud-Din and Mushtaq Ahmad son of Ahmad Khan under sections 302/149, P.P.C. For committing intentional murder of Siddique Umar awarded them sentence of 10 years' rigorous imprisonment. The contention of learned counsel for the complainant that the sentence of 10 years' rigorous imprisonment under section 302(b), P.P.C.
Was not legal is correct. We, therefore, while giving notice to the appellants through their learned counsel modify the sentence accordingly and direct that the above-named appellants will also serve sentence of life imprisonment. The sentence of fine under section 302, P.P.C. Being not impossible, the same is converted into compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and similarly the fine awarded under section 377-A(i), P.P.C. Shall be treated as compensation under section 544-A, Cr.P.C. To be paid to the injured.
' The sentence of appellants under section 337-A(i), P.P.C. Awarded to them by the trial Court for causing of simple injuries to the witnesses is also maintained. However, in view of the fact that the appellants were convicte under section 302(b), P.P.C. As well as 337-A(i), P.P.C. For causing simple injuries to the witnesses, therefore, their conviction and sentence under sections 324, P.P.C. And 149, P.P.C. Was not justified. We, therefore, acquit all the appellants for the charge under sections 324, P.P.C. And 149, P.P.C. It is admitted by the prosecution as well as defence that the cause of occurrence was religious differences and sectarian hatred, therefore, the conviction and sentence awarded to the appellants under section 9 of Anti-Terrorism Act, 1997 is also maintainable and is accordingly maintained.
' We having perused the order in C.P.L.A. 'No,4 of 1996 for the purpose of this appeal and find that the private complaint filed by, the accused party was dismissed by the learned trial Judge and further the petition for leave to appeal to challenge the said Order was also dismissed by this Court.
' With the above modification in conviction and sentence, we dismiss . This appeal to the extent of Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-ud-Din and Mushtaq Ahmad son of Ahmad Khan and the same- qua Ghulam Shabbir son of Dost Muhammad is allowed.