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Criminal Appeal No. 830 and Murder Reference No. 187 of 1967, decided on 11th November 1968.
S. 302/34‑Murder‑Deceased appearing on scene occurrence unexpectedly and Accused not shown to have arranged plan of murdering him‑Accused not sharing with main accused intention to kill deceased‑Conviction set aside.
Mahbub Shah v. Emperor A I R 1945 P C 118 ref.
S. 302‑Murder‑accused without justification causing fatal injuries to deceased‑‑Held, rightly convicted under S. 302.
S. 307/34‑‑Attempt to murder Complainant having built his drain and not permitting accused to build their own and discharge same into his drain‑Accused constructing a drain and complainant knocking out a few bricks of same ‑ Accused thereupon hurling a brick on complainant and latter doing likewise‑Circumstances of case, held, did not entitle accused to give complainant injuries with sharp‑edged weapon on vital parts of his body ‑Conviction and sentence maintained.
Ch. Nazir Ahmad Khan and Eitizaz Hussain for Appellants.
Dilawar Mahmood A. A.‑G. for the State.
Date of hearing : 3rd October 1968.
Akhlaq Ahmad (27), Irshad Ahmad (21) and Mushtaq Ahmad (18), sons of Muhammad Hussain, were tried by the Sessions Judge, Lyallpur, for having committed the murder of Muhammad Anwar, Barber and attempt ed murder of Muhammad Anwar Jat (P. W. 9), on 8‑8‑1966, at 5‑45 p.m. in the Area of Chak No. 225/RB, District Lyallpur. By judgment dated 25‑10‑67, passed by the learned Sessions Judge :‑
(i) They were convicted under section 302/34, P. P. C. for the murder of Muhammad Anwar, Barber, and Mushtaq Ahmad was sentenced to death, while Akhlaq Ahmad and Irshad Ahmad were sentenced to transportation for life, and a fine of Rs. 200, or in default to suffer further simple; imprisonment for six months.
(ii) They were convicted under section 307/24, P. P. C. for attempted murder of Muhammad Anwar P. W. and were sentenced to rigorous imprisonment for seven years and a fine of Rs. 200, or in default of payment of fine to suffer further imprisonment for six months.
The sentences of Akhlaq Ahmad and Irshad Ahmad were to run concurrently. The sentence of imprisonment awarded to Mushtaq Ahmad were to take effect if the sentence of death awarded to him was not confirmed by the High Court. From the said convictions and sentences, the convicts preferred Appeal No. 830 of 1967. The Sessions Judge referred the case to this Court under section 374, Cr. P. C. for confirmation of the sentence of death awarded to Mushtaq Ahmad. This judgment will dispose of both the appeal and the reference.
2. The prosecution case briefly is as follows:
About nine years before the occurrence, Muhammad Anwar Jat (hereinafter referred to as Muhammad Anwar P. W.) constructed a drain in front of his house. The accused persons wanted to con struct a drain from their house and to connect it with the drain constructed by Muhammad Anwar P. W. Muhammad Anwar P. W. however, did not agree. The matter was settled by Mian Khan, Maqbool Ahmad and Ahmad Din, father of Muhammad Anwar P. W. and it was decided that the drain be constructed in the middle of the street. The accused later on resiled from this decision and constructed a drain, discharging it into the drain already constructed by Muhammad Anwar P. W. On 8‑8‑1966, at 5‑45 p.m., Muhammad Anwar P. W. objected to the construc tion of the drain by the accused and wanted to dismantle the same. The accused, however, insisted to keep it in tact. Muhammad Anwar P. Vv. knocked out a few bricks of the drain. Akhlaq Ahmad accused hurled a brick at Muhammad Anwar P. W., hitting him on the head. Muhammad Anwar P. W. in return hurled a brick at Akhlaq Ahmad, hitting his right hand. Mushtaq Ahmad, who was armed with a dagger, assaulted Muhan mad Anwar P. W. and gave him successive blows on his chest, and right and left flank. In the meantime, Muhammad Anwar deceased, who happened to pass by tried to intervene and save Muhammad Anwar P. W. The accused, abandoning Muhammad Anwar P. W. assaulted Muhammad Anwar, Barber. Akhlaq Ahmad. and Irshad Ahmad caught hold of Muhammad Anwar Barber while Mushtaq Ahmed gave him dagger blows on his right arm an the chest. Muhammad Anwar Barber, hurried into the house of Muhammad Anwar P. W. where after some time he expired. The occurrence was witnessed by Mst. Rasul Bibi (P. W. 11), mother of Muhammad Anwar P. W., Mian Khan (P. W. 10) and Maqbul Ahmad (P. W. 8).
3. Maqbul Ahmad P. W. hurried to Police Station, Sadar Lyallpur and lodged a report at 8 p. m., the distance between the place of occurrence and the police station being five miles. S. I. Anwar Hussain Shah (P. W. 14) recorded the report (Exh. P. A.).
4. Anwar Hussain Shah proceeded to the spot. He prepar ed the injury statements of Muhammad Anwar, Barber, deceased and Muhammad Anwar P. W. and sent the dead body of the deceased to the mortuary for post‑mortem examination. He took into possession blood‑stained earth from two places, (1) from the street and (2) from the courtyard of Muhammad Anwar P. W. vide memo. Exh. P. C. He also took into possession blood‑stained clothes (P. 1 to P. 3) of Mohd. Anwar P. W. vide memo. Exh. P. B. the accused appeared before him on 9‑8‑66 at 10 a.m. and were arrested by him. The S. I. Anwar Hussain Shah got removed blood‑stained Chadar (P. 4) from the person of Akhlaq Ahmad and took it into possession vide memo. Exh. P. D. He also prepared the injury statements of the accused. On 9‑8‑1966, while in custody, Mushtaq Ahmad led the police to the recovery of the dagger concealed under a pile of bricks close to his baithak. The dagger was taken into possession vide memo. Exh. P. E., which was attested by Muhammad Amin and Ali Ahmad P. Ws.
The dagger was not blood‑stained.
5. On the 8th of August 1966, at 8‑30 p.m., Dr. Munawar ud‑Din, examined Muhammad Anwar P.W. and found the following injuries on his person :‑
(1) A contused wound on left forehead just above eye‑brow, 1 " x " x ", bone deep.
(2) An incised wound on left of abdomen lower part just above iliac crast, oblique, " x " x ", with corresponding cut on Kurta and the vest.
(3) An incised wound on left lumber region lower part oblique, 4" x 1" x 2 ", with corresponding cut on the kurta and chadar, which he was wearing at the time of the examina tion.
(4) An incised wound on left nipple, " x " x 1".
(5) An incised wound on the right abdomen lower part 1 " x " x 2 ".
Injury No. 1 had been caused by a blunt weapon and the rest of the injuries had been caused by a sharp‑edged weapon (vide ‑medico‑legal report Exh. P. M.).
On the 9th of August 1966, at 5‑15 p.m. Dr. Ahmad Ghulam Muhammad, examined Mushtaq Ahmad accused and found an abrasion, 1/4" x 1/8", on the dorsem of the left hand in his outer aspect. This injury was simple and caused by a blunt weapon.
The same day, at 5‑25 p.m., the same doctor examined Irshad Ahmad accused and found an abrasion, " x ", on the right side of the forehead. He complained of pain on the front aspect of the right thigh. Both the injuries were simple in nature and were caused by a blunt weapon.
The same day at 5‑40 p.m., the same doctor examined Akhlaq Ahmad accused and found the following injuries on his person:
(1) A lacerated wound, " x 1/8" x ", deep on the dorsem of the right arm on its outer aspect. The hand was markedly swollen.
(2) An abrasion, " x 3/8", on the left mastoid region " behind the left ear.
(3) An abrasion, 1/3" x ", on the left cheek.
(4) A contusion, " x ", back of the left shoulder joint.
All the injuries were simple, caused by a blunt weapon.
On the 9th of August 1966, at 12‑45 p.m., Dr. Ahmad Ghulam Muhammad, conducted the post‑mortem examination on the dead body of Muhammad Anwar, Barber, and found the following injuries:‑
(1) A stab wound, 1 " x 7/8" x going inside the chest situated obliquely on the left side of the chest, in his front aspect " from the middle line and " below the level of the nipple.
(2) An incised wound, 2 " x 1" x 2", deep situated obliquely of the outer aspect of the right arm, 4 " below the shoulder joint.
(3) An incised wound, 2 " x 1/8" x 2", deep situated obliquely on the outer aspect of the right arm, 1 " below injury No. 2.
(4) An incised wound, 7/8" x " x " skin deep obliquely back of the right arm 2" above the elbow joint.
(5) An incised wound, 2 " x " x ", deep on the outer aspect of the right elbow joint obliquely.
(6) An incised wound, 1 " x 5/8" x 1 " x skin deep obliquely on the inner aspect of the right arm 3 " below the exilla.
The death, in the opinion of the doctor, was due to shock and haemorrhage on account of injury to the heart due to injury No. 1, which was caused by a sharp‑edged weapon. This injury was sufficient, in the ordinary course of nature, to cause death.
6. Maqbul Ahmad (P. W. 8), Muhammad Anwar (P. W. 9), Mian Khan (P. W. 10), and Mst. Rasul Bibi (P. W. 11) supported the prosecution version. Muhammad Amin (P. W. 12) and Ali Ahmad (P. W. 13) proved the recovery of the dagger.
7. The accused persons admitted that Muhammad Anwar P. W. had constructed his drain eight or nine years ago. They, however, denied that a few days before the occurrence they had wanted to construct a drain from their house and to discharge it in the drain already constructed by Muhammad Anwar P. W. or that Maqbul Ahmad, Mian Khan and Ahmad Din had decided that the drain be constructed in the middle of the street. They contended that they had constructed their drain six or seven moths before the occurrence. They, however, admitted that Muhammad Anwar P. W. objected to the drain constructed by them and that he dismantled a part of it at the time of the occurrence.
The plea of Akhlaq Ahmad accused was as follows: -----
"When I came out of my house, I saw Anwar P. W. and Anwar deceased. They had dismantled some portion of the drain and brought out few bricks. Anwer deceased had a gun. Anwar P. W. was armed with a dang. I told Anwar P. W. as to why he bad dismantled the drain. Anwar P. W. started abusing me. I also abused him. He gave me dang blows which hit on my shoulder. He hurled a brick at me, I hurled the same brick at Anwar P. W. In the meantime, 150/175 persons collected at the spot including children, women and adult persons. There was free fight and exchange of sticks and brick. Anwar P. W. told Anwar deceased to fire shot. Anwar deceased fired shot, but it did not hit any body. He wanted to fire the second shot., But some body caught hold of him from the back side. Many supporters were present on both sides. If that person had not held Anwar deceased, he would have murdered some of my brothers."
He admitted that Chadar (P. 4) was his. He also admitted that he had no enmity with Anwar deceased.
Mushtaq Ahmad made a statement similar to the statement made by Akhlaq Ahmad accused. His plea was to the following effect:
"I was present inside my house, when Anwer P. W. dis mantled our drain. I heard a fire shot. I came out of my house. My brothers were being injured. I was given two blows. I received stick blow on my head. I received brick blow on my hand. Many persons from both the parties were present at the spot. The deceased wanted to re‑load his gun. Some body caught hold of him. If that person had not held the deceased we would have been killed."
Mushtaq Ahmad denied the recovery of the dagger (P. 5) or that it belonged to him.
Irshad Ahmed accused made a similar statement. It is remarkable that the accused did net admit that Mushtaq Ahmed caused the injuries to Muhammad Anwar P. W. or Muhammad Anwar, Barber, deceased.
8. The accused examined one witness in defence. Faiz Rasul (D. W. 1) produced an application (Exh. D. E.), alleged to have been made by one Muhammad Hussain to the D. I.‑G. Police, Sargodha Division. Muhammad Hussain was not examined to prove the application. It was alleged in the petition that Muhammad Anwar. Barber, was armed with a gun and had fired a shot and that the accused had snatched away the gun from him. It was added that the accused produced the gun before the investigating Officer, who, however, did not account for the same. It is remarkable that no independent evidence was led in proof of this version. No question had been put to the Investigating officer, Anwar Hussain Shah (P. W. 14) with respect to this aspect of the matter. Learned counsel for the appellants, at the time of arguments before us, frankly gave up this line of defence.
9. The learned Sessions Judge believed the P. Ws. and disbelieved that Muhammad Anwar, Barber, deceased was armed with a gun or had used the same. He held that the accused in furtherance of their common intention committed the murder of Muhammad Anwar, Barber and caused injuries to Muhammad Anwar P. W. Accordingly, he convicted and sentenced them, as stated above.
10. It was contended before us that Muhammad Anwar deceased was not a disinterested passerby but was very much partisan of Muhammad Anwar P. W. Reference was made to the following statements :‑‑
(1) Mst. Rasul Bibi (P. W. 11) stated as follows :‑
"Anwar deceased was our saipi. His father died and since then we brought him up Anwar deceased was like a son to me."
(2) Mian Khan (P. W. 10) stated as follows :‑
"The deceased had very cordial relations with Muhammad Anwar P. W. They had brotherly relations."
(3) Maqbul Ahmad (P. W. 8) stated as below :‑
"Anwar deceased was the Mosen of Anwar P. W. Anwar P. W. helped him financially . Anwar deceased was quite friendly with Anwar P. W."
In view of these statements, it was contended that Muhammad Anwar deceased was taking active part in the fight and was not merely interfering to rescue Muhammad Anwar P. W.
11. The evidence on record does not indicate that Muhammad Anwar deceased had any aggressive attitude. Maqbul Ahmad P. W. stated in the F. I. R. that Muhammad Anwar deceased had come to help Muhammad Anwar P. W. on his alarm. He explained that it was incorrect to suggest that Anwar P. W. had injured the accused, at the time of occurrence. Mian Khan P. W. stated that Anwar deceased did not cause any injury to any of the accused. The accused in their statements, while referring to the injuries caused by Anwar P. W. did not attribute any injury to Anwar deceased. Under the circumstances, it may be concluded that Muhammad Anwar deceased way not an aggressive supporter of Muhammad Anwar P. W. The allegation that Muhammad Anwar deceased was armed with a gun has been abandoned. The P. Ws. stated that the deceased, at the relevant time, was empty handed. Under the circumstances, the accused persons could not possibly apprehend any danger at the hands of the deceased. In any case, they were not justified in assaulting him, especially when they admitted that the deceased had no enmity with them. It appears that the deceased was mortally injured without a just cause. It is in evidence that Mushtaq Ahmad accused gave him as many as six dagger blows, including the injury No. 1, which in the ordinary course of nature, was sufficient to cause death.
12. Learned counsel for the appellants argued that the accused had no motive to kill Muhammad Anwar deceased and, in any case, Akhlaq Ahmad and Irshad Ahmad accused did not share the intention of Mushtaq Ahmad accused. In this connection, he referred to the case reported as Mahbub Shah v. Emperor (AIR1945 PC118). In that case it was observed as follows :‑
"Common intention within the meaning of section 34 implies a pre‑arranged plan. To convict the accused of an offence applying section 34, it should be proved that the criminal act was done in concert pursuant to the pre‑arranged plan."
It was argued that as the deceased appeared on the scene un expectedly, the accused could not possibly have a pre‑arranged plan of murdering him. The evidence shows that Akhlaq Ahmad and Irshad Ahmad caught hold of Muhammad Anwar deceased and Mushtaq Ahmad accuse gave him six dagger blows successively, which resulted in his death. Learned counsel for the appellants however, contended that even this holding of the deceased by Akhlaq Ahmad and Irshad Ahmad accused did not indicate that is doing so they shared the intention of Mushtaq Ahmad accused, namely , to kill Muhammad Anwar deceased. According to him, this holding of the deceased was primarily intended to prevent his holding of the deceased was the deceased from taking part in the scuffle on the side of Muhammad Anwar P. W. Lastly learned counsel for the appellants contended that is act of holding should be interrupted in a manner favorable to the accused the absence of indicia pointing to the contrary. The learned Assistant Advocate‑ General appearing for the State, pointed out that when Akhlaq Ahmad and Irshad Ahmad noticed Mushtaq Ahmad giving Muhammad Anwar deceased dagger blows on vital parts of the body, they did not dis‑associate themselves and their continued activity exhibited a community of intent and purpose. The six injuries given by Mushtaq Ahmad to Muhammad Anwar deceased were given in such a, short time that it would not be possible for Akhlaq Ahmad and Irshad Ahmad to indicate their dis‑association with Mushtaq Ahmad, even if there were so minded. In the circumstances it is reasonable to take a view favourable to these two, accused persons and hold that they did"‑not share with Mushtaq Ahmad the intention kill the deceased.
13. We have given careful consideration to the evidence and the arguments and believe that so far as Mushtaq Ahmad accused is concerned, he without justification caused fatal injuries to g Muhammad Anwar deceased and, therefore, has rightly bee convicted under section 302, P. P. C. it is urged that he is barely 18 years of age, and acted under the influence of the elder brothers. Indeed, the elder brothers never exhorted him to kill the deceased. His case does not deserve award of lesser punishment, Accordingly, we maintain the sentence of death awarded to him. The sentence of death is confirmed.
As regards Akhlaq Ahmad and Irshad Ahmad accused we believe that they did not share with Mushtaq Ahmad the intention to kill Muhammad Anwar deceased. Accordingly we set aside their conviction under section 302/34 P.P.C.
As regards the injuries caused to Muhammad Anwar P. W. the appellants have been properly convicted and sentenced. Muhammad Anwar P. W. had built his drain and did not permit the appellants to construct a drain and discharge the same into the drain constructed by him. He knocked out a few bricks out of the drain constructed by the appellants. Akhlaq Ahmad hurled brick on him. He (Muhammad Anwar) did the same. This did not entitle the appellants to give him injuries with a sharp edged weapon on vital parts of his body. Accordingly, we maintain the conviction and. sentences. Their appeal is partially accepted.
Appeal partly accepted.
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