Find a Lawyer

Criminal Miscellaneous No. 64/Q and Criminal Revision 193 of 1986, decided on 27th April, 1986.

---S. 107--Abetment--Allegedly two persons conspiring to do away with deceased while sitting in company of main culprits, one of them asking accused to kill deceased immediately on his entering village while other one, a Police Officer, undertaking to look after police side--Prima facie such persons appearing to have instigated main accused to commit murder--Trial Court directed to summon such person to face trial in main case.--[ Abetment].

Kh. Sultan Ahmad for Petitioner.

Sardar Khurshid for Respondents.

Ajaz Husaain Batalvi for the Complainant.

This judgment will dispose of quashment petition (Criminal Miscellaneous 64-Q of 1986) filed by Ch. Hamid Ullah, petitioner, and the revision petition (Criminal Revision 193 of 1986) filed by Sarwat Nasim, petitioner.

2. The brief facts relevant for the determination of both these petitions are as follows. On 30-11-1984 an F.I.R. was registered by Sarwat Nasim against twelve persons with regard to the murder of his father Ch. Sultan Ahmad committed the same day. Rashid Mahmood, Bashir Ahmad, Nasir Ahmad, Maulay Hassan, Imtiaz Rasool, Muhammad Ikhlaq, Massan Khan, Tanweer, Sabir and Safdar Ali were named as actual accused committing the murder, whereas Ch. Hamid Ullah, Deputy Director Food, and Talat Mahmood, Superintendent of Police, Lahore, were mentioned as persons responsible for the conspiracy leading up to the murder. The police found seven of the accused named as participants and both the accused named in relation to the conspiracy as innocent. Talat Mahmood, Superintendent of Police, was never arrested. Thus, when the challan was submitted by the police, the names of eight accused including that of Hamid Ullah was placed in column No.2 and the names of three were placed in column No.3. On 2-1-1985, the Sessions Judge summoned Hamid Ullah and the other seven accused, whose names were placed in column No.2 to face their trial. Since the name of Talat Mahmood, Superintendent of Police, had neither been placed in column No.2 or 3, no order was passed summoning him to face trial. On 2-1-1986, Sarwat Nasim, complainant, filed a private complaint against all the accused, which was sent up to a Magistrate for investigation under section 202(2), Cr.P.C. The Magistrate recorded the evidence of Sarwat Nasim, Ijaz Ahmad and Muhammad Hanif and one Wazir Ahmad, Superintendent (Estb.) as Court witness, and finally submitted his report holding that the version of the complainant and his witnesses regarding the alleged conspiracy of Talat Mahmood, Superintendent of Police, in the occurrence did not stand proved and that the story of the complainant was an afterthought and based on concoction. Agreeing with the report, the learned Sessions Judge, Sargodha, dismissed the private complaint of Sarwat Nasim, complainant, for summoning Talat Mahmood, Superintendent of Police, as an accused on 13-3-1986. Ch. Hamid Ullah, Deputy Director Food, being aggrieved by the earlier order of the learned Sessions Judge, dated 2-1-1985 summoning him to face trial has filed the quashment petition (Criminal Miscellaneous 64-Q of 1986) for quashment of the said order to the extent that it summons him to face trial. Sarwat Nasim, complainant, being aggrieved by the order of the learned Sessions Judge, dated 10-3-1986 refusing to summon Talat Mahmood, Superintendent of Police as an accused to face trial, has filed the revision petition (Criminal Revision 193 of 1986) for the setting aside of the said order. Both the quashment petition and the revision petition are now before me for disposal.

3. I have heard the arguments of the learned counsel for Ch. Hamid Ullah, petitioner, Sarwat Nasim, complainant, and have perused the record.

4. Since arguments have been heard in both the petitions, I would admit criminal revision (Criminal Revision 193 of 1986) so that the present judgment may dispose of both the petitions.

5. In the F.I.R. registered at the instance of Sarwat Nasim, complainant, it was mentioned that after the murder of his father, Muhammad Ijaz and Muhammad Hanif P.Ws. had told him that a few days earlier Hamid Ullah, Deputy Director Food, and Talat Mahmood, Superintendent of Police, Lahore were in the Chak at the former's Baithak, where Rashid, Massan, Maulay Hassan and Imtiaz Rasool were present and they heard these two persons state that on whichever date Sultan Ahmad entered their village, they should not allow him to go alive and that they would control the situation and that due to this conspiracy the accused had murdered his father as a result of the conspiracy of these two persons. In their police statements recorded under section 161, Cr.P.C., Ijaz Ahmad and Muhammad Hanif P.Ws. both stated that 7/8 days before the occurrence, the former had to receive some money from Siddique Musalli, when both of them went to his house at 8-00/9-00 p.m., where there were told that Siddique Musalli had gone to the Dera of Hamid Ullah where they accordingly proceeded entered the said Dera and found Siddique Musalli present. Ijaz Ahmad P.W. then demanded the money from Siddique Musalli, who promised to return the same within two/three days. At that time two cars were standing in the Dera. In one of the Kothas in the Dera, Ch. Hamid Ullah, Talat Mahmood, Imtiaz, Maulay Hassan Rashid Mahmud and Massan were sitting and chatting. They also greeted Ch. Hamid Ullah and went and sat down there. In their presence, Ch. Hamid Ullah was telling the others that Sultan Ahmad should be finished, whereupon Ch. Talat Mahmood stated that he would control the police matters and that they should immediately kill Sultan Ahmad. During the investigation proceedings before the Magistrate, both the said persons repeated the same story, but with a little difference, namely, that they heard Ch. Hamid Ullah telling the others that Ch. Sultan Ahmad should be murdered as he constantly interfered in all their work, whereas Talat Mahmood stated that he and the police would deal with the matter.

6. In the first instance, the challan which has been sent up is one under section 302/307/148/109, P.P.C. Prima facie the evidence does show that Ch. Hamid Ullah instigated his companions to murder Sultan Ahmad, deceased, and Talat Mahmood, Superintendent of Police, reported that he would look after the police side. Prima facie both the persons, therefore, appear to have instigated Rashid Mahmud, Massan, Maulay Hassan and Imtiaz Rasool, accused, to murder Sultan Ahmad, deceased. Under section 107, P.P.C. a person abets the doing of a thing who instigates any person to do that thing. The case of Lt.-Col. Hassan Akhtar 1986 P Cr. L J 599 cited by the learned counsel for Ch. Hamid Ullah is distinguishable in that case there was no evidence against Lt.-Col. Hassan Akhtar that he had instigated any of the accused to murder the deceased. What he had only done was to draw reference to the fact how immoral they had been by not having taken revenge for their father Lt.-Col. Hassan Akhtar's case relates to the applicability or otherwise of section 120-B, P.P.C. The present case is one in which section 109, P.P.C. has been added.

7. The upshot of the above discussion is that the order of the learned Sessions Judge, Sargodha, dated 2-I1-1985, summoning Ch. Hamid Ullah, accused /petitioner, is legal and correct, whereas that of 14-3-1986 refusing to summon Talat Mahmood, Superintendent of Police, is illegal and deserves to be set aside.

8. For the foregoing reasons, there being no merit in the quashment petition (Criminal Miscellaneous 64-Q of 1986) the same is dismissed. The revision petition (Criminal Revision 193 of 1986) is accepted and, the order of the learned Sessions Judge, Sargodha, dated 10-3-1986, is set aside. Talat Mahmood, Superintendent of Police, shall now be summoned as an accused to face trial in the main case.

S. G. D. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.