1. SHAHABUDDIN, J.-Appellants Rahman, Manzur and Inayat were tried along with five others by the Sessions Judge, Gujranwala, on the charge that they formed themselves into an unlawful assembly with the common object of murdering one Inayat and causing injuries to four others.
2. The Sessions Judge convicted appellant Rahman under section 302, P. P. C. For the offence of murder and sentenced him to death. He convicted him also of the offence of causing hurt punishable under sections 323/ 149, 325/ 149 and 326/ 149, P. P. C., as well as rioting under section 148, P. P. C. And sentenced him to various terms of imprisonment. The other accused including appellants Manzur and Inayat were convicted and sentenced to various terms of imprisonment under section 148, and sections 326, 325, all read with section 149. On appeal the learned Judges of the High Court came to the conclusion that there was no unlawful assembly, that the deceased was killed and the witnesses were injured in a sudden fight. They, therefore, confirmed the conviction of appellant Rahman under section 302, P. P. C. Maintaining the sentence of death, and set aside the other convictions and sentences imposed on him. Of the rest of the accused they convicted appellant Manzur under section 326, and maintaining the sentence of seven years imposed on him under section 326/149, set aside the rest of the convictions and sentences. As far as Inayat appellant was concerned, they con--victed him of an offence under section 325, P. P. C.
3. And maintain--ing the sentence of five years' rigorous imprisonment which had been awarded to him under section 325/149, P. P. C. Set aside his other convictions and sentences. The convictions of other five accused were altered into those under section 323, Min, P. P. C. And their sentences for this offence were reduced to the periods of imprisonment already undergone. Their other convic-- tions and sentences were set aside. This is an appeal by special leave from the judgment of the High Court.
4. The case for the prosecution was that at about digarwela on the 24th September 1957, when Muhammad Khan (P. W. 12), Muhammad Yusaf (P. W. 13), Sher Muhammad (P. W. 15), Nur Muhammad (P. W, 16) and one Muhammad Sharif who was injured 'in the occurrence, but was not examined, Sardar Khan (P. W. 17) and one Muhammad Hussain not examined were returning from the village mosque and had passed the dhari of appellant Rahman, the eight accused came out of that dhari, Rahman armed with a spear, Manzur and Inayat with hatchets and the others with dangs. The above witnesses and their com--panions thereupon quickened their pace; but the accused overtook and surrounded them. Rahman appellant asked P. W. 12 why he and Inayat had quarrelled with him in the morning about the damage to crops. At that stage Inayat deceased came from his dhari and there was an exchange of abuse between Rahman and Inayat, when Rahman struck Inayat with the spear on the chest. Inayat fell down and on Rahman pulling out his spear, the mehal head fell on the ground but the stick remained in Rahman's hand whereupon witness Shera snatched it and dealt a blow to Muhammad Khan one of the accused, who have not appealed. Thereafter Inayat and Manzur appellants hit Shera with hatchets and all the accused started giving blows to the injured witnesses. Then Mst. Mehran, an aunt of P. W. 12 arrived on the scene and raised an alarm whereupon the accused ran away taking their weapons including the mehal head of the spear which had fallen down on the ground. Inayat died within a few moments of receiving the injuries. Yusaf and Sher Muhammad Lambardar went to the police station and made the report. This in brief is the evidence of Muhammad Khan (P. W. 12) about the occurrence and the versions of the other eye-witnesses are substantially to the same effect.
5. The defence of all the accused except Muhammad Khan accused was false implication. And a plea of alibi. Muhammad Khan, however, gave a different version of the occurrence in which Inayat was killed and the injured P. Ws. Sustained injuries, but it is necessary to refer to it as he himself is not before us, and the learned counsel for the appellants stated that he did not rely on that version.
6. No evidence was adduced for the defence.
7. The Sessions Judge came to the conclusion that there could be no doubt that P. Ws. 12, 15 and 16 who had sustained injuries were present at the occurrence and there was no reason for them to falsely implicate the accused and that the discrepancies pointed out in their, statements by the defence at the trial were not material. P. W. 17 Sardar Khan who has not sustained injuries also gave evidence in support of the prosecution. His evidence also was believed and it was held that the eight accused formed an unlawful assembly with the common object of at least causing grievous injuries with deadly weapons which they carried with them at the time of the attack.
8. As for Rahman accused it was held that he was guilty of murder for which the other accused were not found constructively liable under section 149. The learned Judges of the High Court did not disbelieve the eye-witnesses but they held that their evidence should be carefully scrutinised. They then went on to observe :- "We are not prepared to believe that the appellants were lying in ambush and made a pre- planned attack on the members of the complainants' party. It is an admitted, fact that the appellants did not open the attack till Inayat deceased, reached the spot from his dhari. If the appellants had been lying in ambush they would have immediately opened the attack on the members of the complainants' party when they reached near their dhari. It appears that an altercation took place between Rahman appellant and Muhammad Khan P. W. Over the earlier incident. It also appears that in the course of this altercation, Inayat deceased too reached the spot. The fact that there is an injury on Muhammad Khan appellant's body supports the view that the parties exchanged blows in the course of this altercation. In the circumstances it has to be held that it was a sudden affair and as such every appellant would, be responsible for his own acts."
9. After coming to this conclusion and setting aside the convictions with regard to rioting and the constructive liability under section 149, P. P. C. They found that Manzur appellant who was armed with a hatchet caused a grievous injury to Muhammad Sharif and Inayat appellant caused grievous injury to' Sher Muhammad.
10. Leave to appeal was granted in this case in view of the con--tention that there was no evidence that Manzur accused caused an injury to Muhammad Sharif with a hatchet or that the injury caused to Sher Muhammad by Inayat accused was grievous. Leave was given also to appellant Rahman because the entire evidence had to be examined with regard to the above contention. On examining the evidence we find that Muhammad Sharif had only one incised grievous injury, which must have been inflicted with a sharp weapon, but no witness stated that Manzur appellant caused that injury. The evidence on the other hand is to the effect that both Manzur and Inayat appellants hit Shera with hatchets, but none of the injuries on Shera was grievous. The only other grievous injuries inflicted on the complainants' party were the fracture of left ulna and the right little finger of witness Muhammad Khan which according to the doctor were caused by a blunt weapon, but the evidence of the said witness is that Rahman hit him with a stick and that other accused hit him also, while the other eye-witnesses said that Muhammad Khan was beaten by all the accused.
11. It is, therefore, clear that-the evidence was misread by the learned Judges and had their conclusion that there was no unlawful assembly and so each accused would be responsible only for his individual act been correct, then appellants Manzur and Inayat would have to be convicted only of an offence under section 323, as the individual specific act of each of these accused was beating witness Shera who had only simple injuries. But the conclusion that there was no unlawful assembly was also not in accordance with the evidence. The reason given for holding that there was no unlawful assembly was that if the accused were lying in wait to launch a pre-planned attack they would have opened the attack immediately and not waited till the deceased reached the spot from his dhari, and there was an exchange of abuse between him and Rahman. But it cannot be said that the evidence discloses any appreciable interval of time between the accused surrounding the complainants' party and Rahman taking the offensive. Mr. Nazir Ahmad Khan for the appellants contended that there was no reason to think that the accused had assembled with the common object of using violence, that had Inayat not come there, nothing would have happened and, therefore, the learned Judges of the High Court were right in saying that there was no unlawful assembly. But if the witnesses are believed and the learned Judges did not say that they disbelieved any portion of their evidence, it is clear that all the accused had gathered in Rahman's house armed with spear, hatchets and dangs. This circumstance does not appear to have been considered by the learned Judges: The accused having armed themselves and gathered in the' dhari of Rahman the principal accused, considered with their having overtaken and surrounded the complainants' party clearly shows that their common object was to use violence. It may be, as observed by the Sessions Judge, that all the accused did not intend to kill and Rahman alone had that intention, but consider--ing what happened after deceased Inayat was attacked, there can be no doubt that all the accused had the common object of causing grievous hurt with dangerous weapons or at least knew that such hurt was likely to be caused with dangerous weapons in the prosecution of the common object even if that is taken to have been only to cause simple hurt. We are unable to accept the argument of the learned counsel that the common object was only to terrorize the deceased and injured witnesses. It cannot be said that Inayat's coming on the scene amounted to either provocation or giving a right of private defence to the accused. Great stress was laid on the fact that even according to the prosecution, after Rahman stabbed the deceased Inayat, the other accused acted only when accused Muhammad Khan was hit by witness Shera, but the interval of time here also could not have been appreciable and the action of Shera in hitting one of the accused after Rahman inflicted the fatal injury cannot be regarded as a circumstance provoking or causing any apprehension of danger to the accused.
12. If the prosecution witnesses are believed and we have no reason to disbelieve them, it is very clear that the accused came with the definite object of taking vengeance with regard to the earlier quarrel that had taken place between Rahman on the one hand and deceased Inayat and witness Muhammad Khan on the other in connection with Rahman's cattle having strayed into the field of that witness and the deceased. The Sessions Judge was therefore right in convicting Manzur and Inayat appellants of offences under sections 326/ 149 and 325/ 149 besides the offences under sections 148 and 323, P. P. C.
13. Since, in the High Court, the convictions of no less than eight accused persons were maintained, showing their participation in the incident, we consider that, on the view we have taken of the evidence, the convictions of Manzur under section 326, and of Inayat under section 325, are sustainable, on the basis of con--structive liability, as provided by section 149, P. P. C. But since proof is lacking that Manzur actually caused grievous hurt with a sharp weapon, or that Inayat actually caused `grievous hurt with a blunt weapon, no basis appears on which their liability as respects punishment can be distinguished. We accordingly maintain the convictions of Manzur and Inayat, reading the section in each case with section 149, P. P. C. But reduce the sentence of Manzur to five years' rigorous imprisonment.
14. As regards appellant Rahman the evidence has clearly made out a case of murder and the Courts below have convicted him of that offence. We see no reason to interfere with that conviction or the sentence imposed on him. We therefore dismiss the appeal with the modifications indicated above regarding appellants Manzur and Inayat.