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Criminal Appeals Nos. 49 and 50 of 1980, decided on 23rd May, 1984.
(Against the judgment and order, dated 13‑4‑1976 of the Lahore High Court, Lahore. in Criminal Appeal No. 973/75, Murder Reference No. 8/1976).
‑‑ Art. 185 (3)‑Penal Code (XLV of 1860), S. 302/149‑Murder Leave to appeal granted to examine whether judgment of High Court correctly applied principle of law accepted for safe dispensation of justice and whether provisions of S. 149, Penal Code had been correctly interpreted and applied.
‑‑ S. 302/149‑Murder‑Unlawful assembly‑Trial Court and High Court coming to conclusion that object of unlawful assembly was to forcibly get possession of land from which one of its members had been ousted‑Deadly weapons like guns, hatchets and at his brought by some persons actually used in accomplishing common object‑Held, accused could squarely be saddled with requisite knowledge, as members of an unlawful assembly, with such weapons in their bands that murder was likely to be committed in prosecution of object of unlawful assembly and their conviction by trial Court under Ss. 302/149 & 307/149/148 was proper‑High Court in circumstances, could not have individualized their role detached from context, ignoring purpose and object of group‑Conviction maintained.
---S. 302/149 ‑ Murder‑Unlawful assembly‑Sentence‑Large crowd forming unlawful assembly‑Held, individual fatal shot to accused with reasonable certainty and that it would not be reason able to hold him for same and distinguish him from other four members of unlawful assembly‑Sentence of death substituted by that of life imprisonment.‑[Sentence].
Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record (absent) for Appellant (in Cr. A. 49 of 1980).
Maj. Wahiduddin Virk, Senior Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record (absent) for Appellant (in Cr. A. 50 of 1980).
Ijaz Hussain Batalvi, Senior Advocate Supreme Court and M. A. Zafar, Advocate Supreme Court for Respondents Nos. 1 to 3.
Ch. Ghulam Ahmad, Advocate Supreme Court for the State.
Date of hearing : 23rd May, 1984.
‑Leave to appeal was granted in two separate petitions, one by the convicts and the other by the father of the de ceased, to examine whether the judgment of the Lahore High Court, date 13‑4‑1976 correctly applied the principle of law accepted for safe dispensation of justice and whether the provisions of section 149, P. P. C. have been correctly interpreted and applied to the established facts of the case.
Col. (Retd.) Mukhtar Hussain Shah was owner of land in Kot Mubarik in Dera Khokharan, Tehsil Hafizabad, District Gujranwala. He owned also a rice mill in the same locality. He had a tenant Muhammad Saeed from whom he got about 12 or 13 Acres of land vacated about two years before the occurrence. In tine early 1972 when the Peoples Party came into power some of its office‑holders agitated for restoration of possession to the ousted tenants of agricultural land. There was active compaign for accomplishing it. On the 8th of May, 1972 Raja Fazal Dad P. W. 7 the Manager of Col. Retd.) Mukhtar Hussain Shah received an information that about 100 to 150 persons were gathering in order to forcibly restore the possession to Muhammad Saeed on the land. A report was recorded on his information transmitted to the Police Station, Ha6zabad on telephone. He also informed on telephone Col. Mukhtar about it Qutab Shah and his sons, namely, Saif Ali, P. W'. 8, Khurshid Hassan Shah P. W. 10 and Gulzar Shah P. W. 11 were the tenants of the land vacated by Muhammad Saeed and his fami ly. At about 2 p. m. when these witnesses alongwith Raja Fazal Dad were resting under the shade of a tree, a mob of 200 to 250 persons approached them. Muhammad Saeed was armed with a gun; his brother Sharif and another Sharif son of Raja had also guns with them. Nawab and Murad were armed with hatchet. All the others were all armed with lathis. On approaching the land, Saeed Ahmad fired at Asghar Ali son of Gulzar Shah P. W. 11 injuring him. Sharif his brother and Sharif son of Raja also started firing indiscriminately caus ing injuries to Saif Ali P. W. 8, Khushi Muhammad P. W. 9, Khurshid Hasan P. W. 10 and Gulzar Shah P. W. 11. Murad and Nawab were armed with hatchets and they also gave blows to the witnesses Gulzar, Khurshid, Saif Ali and Khushi Muhammad Asghar Ali alone died of the injuries at the spot. The complainant party also put up slight resistance and caused some injuries to the persons in the group. Raja Fazal Dad started for the police station to lodge the report but he met on way Fazal Karim A. S.‑I. P. W. 20 and lodged the report of occurrence with him at 2‑30 p. m. A case was registered formally at the police station at 3‑30 p. m. the same day. In the First Infor mation Report Raja Fazal Dad mentioned that the group comprised 200 to 250 persons and he was able to name 44 persons in all. 33 per sons so named in the F. I. R. were prosecuted and the learned Public Prosecutor at the trial gave up prosecution against 16 others (listed in para. 11 of the judgment of the Court). These 16 were acquitted on the Additional Public Prosecutors' having not pressed the prosecution case against them.
The autopsy of Asghar Ali aged 17 or 18 years showed that he had received three gunshot injuries on his head and face which bad prov ed fatal. Saif Ali P. W. 8 had six gunshot entry wounds, two ab rasions, one incised wound and one contusion on his person. Khushi Muhammad P. W. 9 had 52 gunshot entry wounds on his person, two faint contusions, one abraded contusion and one abrasion on his person, Khurshid Shah P. W. 10 had one incised wound, one gunshot wound and one abrasion on his person. Gulzar Shah P. W. 11 the father of the deceased and an appellant before us had on his person 66 gunshot entry wounds, one incised wound and one abraded contusion, from the spot were recovered 5 empties one of which matched with the gun of Manzoor the acquitted accused. The gun recovered from Muhammad Saeed did not match with any of the empties recovered from the spot. On the side of the accused, Suleman who was acquitted had three incised wounds on his person all simple, Riasat Ali another acquitted, accused had a lacerated wound and a scratch on his person which too were simple.
The plea of the accused was that the case against them was false one. They had not participated in any unlawful assembly or sought the restoration of the possession of Muhammad Saee on the land from which he was ousted. They denied having attacked. They denied the recovery.
The learned trial Judge came to the conclusion and: recorded the finding that there was indeed an unlawful assembly formed by the ten persons and the object of the unlawful assembly was to recover by force the possession of the land from which Muhammad Saeed had been ousted and for that purpose they had armed themselves with deadly weapons. These ten were found guilty of the offence under section 148, P. P. C. and convicted and sentenced. As regards five out of them, namely, Muhammad Saeed, his brother Sharif and their father Murad alongwith Sharif son of Raja and Nawab it was held that they were members of such an unlawful assembly in prosecution of the common intention and object of which they attacked Asghar Ali and injured other P. Ws. The trial Court held that :‑
"From the role played by them it is evident that they had no other intentions; but to cause intentional death of Asghar Ali deceased, Khurshid, Gulzar, Saif Ali and Khushi P. Ws."
He found these five guilty under 1 sections 302/149 and 307/149, P. P. C, and on conviction under section 302/149, P. P. C., the three who were armed with fire‑arms were sentenced to death and a fine of Rs. 3,000 each or to suffer three years' R. I. The other two had hatchets were sentenced to life imprisonment and a fine of Rs. 3,000. For the conviction under section 337/149, P. P. C. all the five were sentenced to 7 years' R. I. each on four counts and a fine of Rs. 2,000 each on four counts. In default of fine, they were to undergo R. I. for two years on each count. For conviction under section 148, P.P.C. they were sentenced to 2 years' R. I.
Five others, namely, Noor Muhammad, Mumtaz, Muhammad Ashraf Mathela and Ghulam Haider were held guilty under section 148, P.P.C and were sentenced to six months' R. I.
Seven others named in para. 20 of the judgment were found guilty of any offence and were acquitted as their identity, presence and participation was not established.
The matter came up before the High Court on appeal filed the convicts and the murder reference in respect of those sentenced to death. The learned Judges of the High Court held that there was indeed‑an un lawful assembly formed for the purpose of forcible recovery or pos session of the land from which Muhammad Saeed had been ousted, but with regard to the individual criminal liability of those forming such an unlawful assembly the following conclusions were recorded
"The genesis of the prosecution version leads only to one conclusion that 250 peoples formed themselves into an unlawful assembly with a common object of taking forcible possession of Col. Mukhtar Hussain's land in general and in particular to help Saeed appellant and his father Murad to secure their tenancy from which they were earlier ejected. Therefore, there was no common object between the members of the unlawful assembly to kill one particular in dividual Asghar Ali or to make a murderous assault on the P. Ws. then all of them would be responsible for this act of murder as well as that of murderous assault. Considering that out of 250 only 43 were mentioned and rest could not be identified, then all the 43 would share the same responsibility which the law provided under section 149, P. P. C. We are of the considered opinion that during the course of unlawful assembly, Saeed appellant had acted on his own and at the spur of moment intended to tire upon the deceased for the reasons best known to himself, which resulted into the death of the deceased. The other four launched murderous assault on the injured P. Ws., and therefore, they, would be held responsible for the offence under section 307/34, P. P. C:"
The result of these findings was that the appeal of Muhammad Saeed against his conviction and sentence under section 302, P. P. C. and 148, P. P. C. was dismissed. His conviction and sentence, under section 307/149 (four counts) was set aside. As regards, the other four con victs their conviction and sentence, under section 302/149, P. P. C. was set aside but their conviction on four counts was altered to 307/34, P. P. C. and surprisingly the sentence was enhanced to 10 years' R. I. with a fine of Rs. 2,000 or in default two years' R. I. each on four counts. Their conviction under section 148, p. P. C. was maintained and also the sentence.
The learned counsel for the appellants contended before us that there was positive indication on the record that the F. I. R, had been recorded after consultation and deliberation and it was not a document containing a prompt and truthful version of the occurrence which had taken place. In support of it, he referred to the admission of Raja Fazal Dad that for obtaining the names of those forming the attacking crowd .he had sought the assistance of Khushi Muhammad P. W. 9 and Imtiaz Ahmad as he did not know all the persons named by him in F. I. R. himself. Further, it has been contended that on account of its incompleteness and lack of details, the inquest report also gives the impression that it was prepared when the F. I. R. had not been recorded. It is said that the witnesses were interested and inimical and there was no positive corroboration to sustain their statements. On the contrary, according to the learned counsel the very fact that out of the persons charged, the final challan was submitted omitting a few and at the trial the learned Additional Public Prosecutor gave up the prosecution of a few more would show that the version by these wit nesses was not truthful. Similarly, the acquittal of Manzoor whose gun matched with the empty recovered from the spot or of Suleman and Riasat who were injured in the occurrence would also show that the version given by the eye‑witnesses was not acceptable. The gun of Muhammad Saeed was also recovered but it did not match with any of the empties recovered from the spot. All these factors taken together, according to the learned counsel for the convicted appellants, would leave a visible gap in the prosecution case which could not be filled up on any reasonable hypothesis. In any case, it has been contended that it would have not been possible in such a crowd to assign the indivi dual role to the convicts particularly to Muhammad Saeed.
The learned counsel for the complainant has relied wholly on the provisions of section 149, P. P. C. for asserting that once it was established that the accused formed an unlawful assembly and armed themselves with deadly weapons like guns, hatchets and lathis and the object of that unlawful assembly was to obtain forcibly possession of the land under the tenancy of Qutal Shah and his family, the acts done by the individual members thereof would make others equally responsible in law and the logical result of the finding recorded by the two Courts themselves could not be avoided.
On an examination of the two judgments we find that the trial Court as well as the learned Judges of the High Court came to the conclusion that there was indeed an unlawful assembly. It is also their finding that the object of this unlawful assembly was to forcibly get the possession of the land from which Muhammad Saeed had been ousted. It was also the finding that for achieving the common object of unlawful assembly some of the persons had assembled with deadly weapons like guns, hatchets and lathis and that these weapons were actually used in accomplishing the common object. The learned trial Court, how ever, held that the unlawful assembly had two objects. One group of five convicts had the common object of committing murder and mur derous assault in the prosecution of common object of obtaining forcible possession of the land while the other set of five accused and the rest of the crowd had the common object of obtaining forcible possession of the land without causing the murder or the murderous assault on any one. It is on this account that though both the groups have been held guilty under section 148, P. P. C. but differently punished and for a different common object. The learned Judges in the High Court have not created any such distinction in the two groups but have held that Muhammad Saeed alone had the intention of causing the death of Asghar Ali, fired at him and in fact caused the death of Asghar Ali. It was not in the prosecution of the common object of the unlawful assembly. Similarly, his four other companions who were found to have fired and injured or given hatchet blows to the other witnesses were found not have done so in prosecution of the common object but with the common intention and for that rea son their conviction was recorded under section 307/34, P. P. C. on four counts. Nevertheless, all the accused were found to be having the common object of forcibly recovering possession of land from which Muhammad Saeed was ousted. It was for this reason that their convic tion was recorded under section 148, P. P. C. Five out of a crowd of 200 to 250 had for prosecuting this common object armed themselves with guns and hatchets. They had used them. Keeping in view the large number of persons involved and the political overtones of the campaign. coupled with the accepted principles for safe administration of criminal justice a benefit of count could reasonably be extended to those other so as not to place their common object as high as murder or an attempt to commit murder. As far as five of them who were armed with guns and hatchets the same could not be said. They formed a compact group of their own. The use of violence was implicit in their object. They indulged in it recklessly. They can squarely by saddled with the requisite knowledge, as members of an unlawful assembly, with such weapons in their hands, that murder was likely to be‑committed in prosecution of that object of unlawful assembly. The conviction of respondents Saeed Sharif son of Murad and Sharif son of Raja (in Criminal Appeal No. 50 of 1980) was, as, recorded by the trial Court under sections 302/149, 307/149 (four counts) and 148, P. P. C. quite proper. The High Court could not have individualized their role, detached it from the context: ignoring altogether the purpose and object of the group. We accept the appeal filed by Gulzar (Criminal Appeal No. 50 of 1980) and set aside the acquittal of two Sharifs of offences under section 302/149, P. P. C. and of Muhammad Saeed under section 307/149, P. P. C. (four counts). The result will be that Muhammad Saeed alongwith two Sharifs will stand convicted under sections 302/149 and 307/ 149, P. P. C. (four counts) as ordered by the trial Court. In addition, their conviction under section 148, P. P. C. will stand.
As regards the sentence, in such a large crowd the individual fatal shot could not be assigned to Muhammad Saeed with reasonable cer tainty. It would, therefore, be not reasonable to hold him responsible for it and distinguish him from other four members of the unlawful assembly. Hence we accept his appeal (Criminal Appeal No. 42 of 1980) to the extent of setting aside death sentence awarded to him and sub stitute it with life imprisonment. In other respects, the sentences awarded, the sentence of fines, of imprisonment in default and the order of compensation passed by the trial Court shall remain intact. Both the appeals stand disposed of in these terms.
S. Q. Order accordingly.
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