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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Criminal Appeal No. 489 and Murder Reference No. 183 of 1984, decided on 16th February, 1987.
‑‑Ss. 148, 302, 307 & 452/149‑‑Ocular evidence, appreciation of- Occurrence within Mills of complainant party‑‑Motive proved‑ Witnesses having no motive to 'make false statements against accused‑ Two eye‑witnesses injured in occurrence‑‑Third residing within Mills premises and fourth having come for loading steel Patri in tractor trolley, found parked there‑‑F.I.R. promptly lodged‑‑All accused named in F.I.R.‑‑Witnesses making consistent statements‑‑Presence of witnesses at spot at time of occurrence could not be doubted being natural witnesses.
‑‑Ss. 148, 302, 307 & 452/149‑‑Common object‑‑Unlawful assembly‑ Motive‑‑Incident taking place between deceased and two of accused‑ Remaining five accused not present at that time‑‑Four accused not even related to other three brothers and having no motive against complainant party‑‑No evidence of any pre‑concert between accused‑‑ Deceased receiving only one fire‑arm injury at the hand of one accused‑ Remaining accused causing no injury to deceased‑‑Injuries on two witnesses by blunt weapon and simple‑‑Complainant party empty handed yet no more harm caused to them‑‑Common object of unlawful assembly, was not to commit murder and during course of occurrence, one accused developed intention to commit murder of deceased, not known to other accused‑‑All accused, held, would be liable for their individual acts and convicted accordingly circumstances‑‑Accused acquitted from charge under S. 148, P.P.C. and convicted for offences individually committed by them.
M.B. Zaman for Appellants.
Dil Muhammad Tarar for the State.
Afzal Siddiqi and Aftab Farrukh for the Complainant.
Dates of hearing: 16th and 17th February, 1987.
‑‑Briefly stated the facts of this case are given below:‑‑
The father of Muhammad Hafeez complainant set up Steel Rolling Mills at Bhaini Road, Mughalpura, Lahore. He alongwith his sons lived in the premises of the said Mills. In October 1982, he had gone to perform Haj and the Mills was being run by Muhammad Hafeez complainant and his brothers Muhammad Shafiq and Muhammad Mahmood. Across the road, in front of their Mills, there was steel Mills belonging to Mahmood Ahmad, Maqsood alias Mullan and Amin accused. On 6‑10‑1982, the trolley of Mahmood Ahmad etc. accused hit the gate of the Mills of the complainant. This resulted in quarrel during which Muhammad Shafiq deceased abused Mahmood Ahmad etc. who left the spot saying that they would take revenge of this insult.
On 7‑10‑1982, it was Thursday. The complainant Muhammad Hafeez closed the Mills at 1‑30 p.m. whereafter the labourers went away. Muhammad Ismail P.W. was loading steel Patri on a trolley. Muhammad Hafeez complainant, Muhammad Shafiq deceased, Muhammad Mahmood, Khair Din and Ghulam Hussain were present nearby. At about 4‑00 p.m., there was a knock at the door of the Mills. Muhammad Hafeez complainant, on hearing the sound of engine of car, opened the gate and found Suzuki Van LHC‑7955 parked in front of the gate. All of a sudden, Mahmood Ahmad armed with pistol, Maqsood alias Mullan armed with pistol, Amin armed with Danda, Arshad Butt armed with hockey stick, Talish armed with Danda, Bashir Qaisar armed with hockey suck and Tariq armed with Danda came out of the said Van and entered the premises of the complainant's Mills. Maqsood accused challenged. Mahmood Ahmad fired on the chest of Muhammad Shafiq who fell down. Maqsood fired at Muhammad Hafeez complainant who was not hit as he took shelter behind stairs. The remaining five accused gave blows with their respective weapons to Muhammad Mahmood and Ghulam Hussain P.Ws. who both fell down. Muhammad Hafeez, Khair Din and Ismail entreated the accused who left the spot with their respective weapons leaving the Suzuki Van at the spot. Muhammad Shafiq died a short while thereafter as a result of the injures.
Muhammad Hafeez complainant P.W. 6 leaving the dead body of Muhammad Shafiq at the spot and also leaving Muhammad Mahmood and Ghulam Hussain P.Ws. there in the care of Khair Din and Muhammad Ismail P.Ws., went to Police Station Baghbanpura, about 3‑1/2 kilometres from the place of occurrence and lodged the report Exh. P.C. at 4‑30 p.m. on the same day which was recorded by S.I. Abbas Khan P.W. 12.
2. The dead body of Muhammad Shafiq aged about 21 years was sent for post‑mortem examination which was conducted at 11‑30 a.m. on 8‑10 -1982 by P.W. 8 Dr. Abdul Hameed. On external examination, the Medical Officer noted "an oval lacerated wound measuring 1.5 c.m. x 1 c.m. on the mid front of lower part of chest. The edges of the wound were contused, abrased and inverted. The wound was like a hole on the mid line of chest over xiphisternum, 8 c.m. below and medial to right nipple and 7 c.m. above umbilicus. The wound was directed upward and downward". There were corresponding cuts on the shirt and Bunian of the deceased. On dissection, it was found that chest wall and cartilaginous xiphisternum and pericardium were perforated by this injury. The bullet pierced through the pericardial and entered into right side of heart. The interior and posterior walls of right atrium were perforated. There was about 200 CC blood in the pericardial cavity. The bullet after passing through heart, injured the sternum and right pleura. It then entered the medial and lower part of the lower lobe of right lung. The bullet entered the lung tissues and then injured the liver after piercing through the diaphragm. The bullet was found lodged in liver tissues. It was removed and sealed. There was extensive haemorrhage in the chest and pericardial cavity.
The Medical Officer also noted two abrasions on the front of right knee and back of right elbow.
In the opinion of the Medical Officer, injury No.1 had been caused by fire‑arm while two abrasions noted as injuries 2 and 3 were by blunt means as by falling on the ground. Injury No. 1 was sufficient in ordinary course of nature to cause death. The death was due to extensive haemorrhage on account of injuries to vital organs of the body. The probable time between injuries and death was few minutes and post mortem was conducted in about 18 to 24 hours of death.
On 8‑10‑1982, at 10‑30 a.m., the same Medical Officer examined Muhammad Mahmood P.W. 9 and found five blunt weapon simple injuries of various dimensions on his hand, back of left chest and back of left thigh.
On the same day, at about the same time, the same Medical Officer examined Ghulam Hussain P.W. 7 and noted six simple blunt weapon injuries of various dimensions on right shoulder, right forearm, right thigh and back of left chest.
3. The Investigating Officer S.I. Abbas Khan P.W. 12 during inspection of spot on 7‑10‑1982, collected blood‑stained earth from the place of occurrence vide memo. Exh. P.G. He also took in possession pair of shoe P.5/1‑2 belonging to Shafiq deceased vide memo. Exh. P.H. in presence of Muhammad Ismail P.W. 10 and Khair Din P.W. not examined.
The Suzuki Van belonging to one Abdul Majid was taken in possession vide memo. Exh. P.I.
4. Mahmood Ahmad accused was arrested on 16‑10‑1982. Maqsood Ahmad and Muhammad Amin were arrested on 12‑10‑1982. Tariq Javaid accused was arrested on 18‑10‑1982. The date of arrest of the remaining three accused was not given during the trial.
On 11‑10‑1982, Bashir Qaisar accused while in police custody led to the recovery of hockey stick P. 6 which was taken in possession vide memo. Exh. P.J. by S.I. Abbas Khan P.W. 12 in presence of Muhammad Ismail P.W. 10 and Khair Din P.W., not examined. On the same day, Muhammad Arshad accused while in police custody led to the recovery of hockey stick P.7 vide memo. Exh. P.K. in presence of same witnesses.
On 20‑10‑1982, Mahmood Ahmad accused while in police custody led to the recovery of revolver P. 8 alongwith crime empty P.9 and two live bullets P.10/1‑2 from a brick‑kiln which were taken in possession vide memo. Exh. P.L. by S.I. Abbas Khan in presence of Muhammad Inayat P.W. 11 and Jamil P.W., not examined. On the same day, Maqsood Ahmad accused led to the recovery of revolver P. 11, alongwith crime empty P.12 and a live bullet P.13 from brick‑kiln vide memo. Exh. P.M. in presence of same witnesses. On the same day, Muhammad Amin accused while in police custody led to the recovery of Danda P.14 from the brick‑kiln vide memo. Exh. P.N. in presence of same witnesses.
On 11‑10‑1982, Muhammad Talish accused while in police custody led to the recovery of Danda P. 15 which was taken in possession by S.I. Abbas Khan P.W. 12 vide memo. Exh. P.S. in presence of Muhammad Latif and Muhammad Rafiq, both not examined.
On 22‑10‑1982, while in police custody, Tariq Javaid accused led to the recovery of Danda P. 16 vide memo. Exh. P.T. which was taken in possession by S.I. Abbas Khan in presence of Munir Ahmad and Meraj Din, both not examined.
The revolvers P. 8 and P. 11 were sent to the Fire‑arms Expert who vide report Exh. P.V. opined that crime empty P.9 had been fired from revolver P.8. In his opinion, crime empty P. 12 had not been fired from revolver P. 11. The led bullet taken out from the body of the deceased was also sent to the Fire‑arms Expert who expressed inability to give an opinion whether it had been fired from any of the two revolvers because the identifiable data had intermingled due to external marks.
The hockey sticks and the Dandas recovered from accused were not stained with blood.
The accused were challaned after completion of investigation.
5. In support of its case, prosecution examined 12 witnesses in all. Muhammad Hafeez P.W. 6, Ghulam Hussain P.W. 7. Muhammad Mahmood P.W. 9 and Muhammad Ismail P.W. 10 were examined as eye witnesses of the occurrence. Khair Din P.W., named in F.I.R., was given up as unnecessary. The incriminating recoveries were witnessed by Muhammad Ismail P.W. 10 and Muhammad Inayat P.W. 11. The medical evidence was furnished .by Dr. Abdul Hamid P.W. 8 as given in detail above. The case was investigated by S.I. Abbas Khan P.W. 12. The evidence of rest of the witnesses was of formal nature.
The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They denied recoveries of crime weapons at their instance. They did not produce any evidence in defence excepting the medico‑legal certificates of Mahmood Ahmad and Ghulam Hussain P.Ws. as Exh. D.B. and Exh. D.C. respectively. These were exhibited as Exh. P.E. and Exh. P.F. as well. Copy of application Exh. D.H. was also tendered in evidence. The copy of challan Exh. D.J. filed in this case by the police was also produced in evidence.
The learned Additional Sessions Judge, Lahore placed reliance on the prosecution evidence and convicted the appellants vide impugned judgment, dated 4‑10‑1984. All the seven accused‑appellants were sentenced to one year R.I. and fine of Rs.500 or in default one month's R.I. each under section 148/149, P.P.C. They were sentenced to two years' R.I. and fine of Rs.1,000 or in default three months' R.I. each under section 452/149, P.P.C. They were sentenced to seven years' R.I. and fine of Rs.1,000 or in default three months R.I. on three counts under section 307/149, P.P.C. Mahmood Ahmad appellant was sentenced to death and fine of Rs.2,000 or in default two years' R.I. under section 302/149, P.P.C. while the remaining six appellants were sentenced to imprisonment for life and fine of Rs.2,000 or in default two years R.I. under section 302/149, P.P.C. All the sentences of imprisonment were ordered to run concurrently. It was directed that the entire fine, if realised, shall be paid as compensation to the heirs of Muhammad Shafiq deceased. Hence this appeal.
Mahmood Ahmad accused, having been sentenced to death, the proceedings are also before us for confirmation of his sentence.
Muhammad Hafeez complainant filed Criminal Revision No. 611 of 1984 for enhancement of sentence of the accused. It was not admitted and only ordered to be heard alongwith the connected appeal. This judgment will dispose of all these matters together.
6. We have carefully gone through the evidence on record and have also heard the learned counsel appearing for the parties at length.
The learned counsel for the appellants while reading the prosecution evidence pointed out firstly, that the conduct of the Investigating Officer in not preparing all the recovery memos. Himself makes the prosecution case doubtful; secondly, that both the parties were neighbours; thirdly, that there must have been some incident between the parties on the day of occurrence which is not stated by the witnesses and that even if the prosecution evidence is accepted, then also the common object of the unlawful assembly appears to be only to remonstrate the complainant party and not to commit the murder. On merits, it was contended that all the P.Ws. were interrelated/interconnected; that there was only one fire at the deceased and all the injuries on the persons of two eye‑witnesses were of simple nature having been caused by blunt weapon; that there was no serious motive with the accused to murder Muhammad Shafiq and as such, it could not be said that the prosecution has proved its case against the appellants. The learned counsel submitted that the eye witnesses were not reliable. In alternate, it was argued that prosecution has failed to prove the common object of murder in the instant case which means that even if the prosecution case is accepted as a whole, then also each accused would be liable for his individual act. The learned counsel for the State and complainant controverted the contentions on behalf of the appellants.
7. Mahmood Ahmad 26, Maqsood Ahmad 23 and Muhammad Amin 21 accused are real brothers. Bashir Qaisar 32, Muhammad Arshad 25, Muhammad Talish 22 and Tariq Javaid 27 accused are not related to the other accused. It is stated that these four accused were friends of the other three accused.
Muhammad Shafiq deceased, Muhammad Hafeez P.W. 6, Muhammad Mahmood P.W. 9 are brothers inter se. Ghulam Hussain P.W. 7 is married to a sister of Shafiq deceased. Muhammad Ismail P.W.10 is a trolley driver in employment of Muhammad Hafeez complainant. He is not related to the deceased. All the eye‑witnesses had no enmity with the accused to falsely implicate them in this case. The only dispute between the parties seems to be business rivalry which could not give a motive to the complainant party to falsely implicate the accused in the instant case.
The learned counsel for the appellants disputed the place of occurrence. it was contended by him that the occurrence did not take place inside the Mills of the complainant but it took place outside the Mills on the road. This argument is without any substance. The' Investigating Officer during inspection of the spot on 7‑10‑1982, collected blood‑stained earth from inside the Mills premises of the complainant. The shoe P.5/1‑2 belonging to the deceased were also taken in possession from the said place. These recoveries fully establish the place of occurrence inside the Mills. Muhammad Ismail P.W.10 witnessed these recoveries. He though an employee of the complainant, had no enmity with the accused to become a false witness against them. We are satisfied that the occurrence took place inside the Mills.
The motive was stated to be that a day earlier, the trolley of the accused had hit the gate of Mills of the complainant. This resulted in quarrel between the parties during which Muhammad Shafiq deceased abused Mahmood Ahmad accused and his companions. The evidence on motive has been furnished by Muhammad Hafeez P.W.6, Ghulam Hussain P.W.7 and Muhammad Ismail P.W.10. In our view, the motive stands proved from the evidence of these three witnesses, who as stated above, had no motive to make false statements against the accused.
Muhammad Hafeez P.W.6, Ghulam Hussain P.W.7, Muhammad Mahmood P.W.9 and Muhammad Ismail P.W.10 were examined as eye witnesses during the trial. Ghulam Hussain P.W.7 and Muhammad Mahmood P.W.9 were injured during the occurrence. Their presence at the time of occurrence can, therefore, not be disputed. Muhammad Hafeez P.W. resided in the house within the Mills premises. He was, therefore, also a natural witness. Muhammad Ismail P.W.10 had come to load steel Patri in the tractor trolley which was indicated in the site plan. It was found parked inside the Mills by the Investigating Officer during inspection of spot of occurrence. He was also a natural witness. All these witnesses though interconnected had no motive to falsely implicate the accused in this case. The occurrence took place at 4‑00 p.m. The F.I.R. was lodged within half an hour of the occurrence at the police station, about 3‑1/2 kilometres from the spot. All the accused were named in the F.I.R. The eye‑witnesses made consistent statement to support the prosecution case. We do not find any circumstance to exclude their evidence from consideration against the accused.
However, we do find some force in the contention on behalf of the appellants that even if the prosecution case is accepted, then also it cannot be said that the common object of the unlawful assembly was to commit murder of Muhammad Shafiq and as such, each accused was liable for his individual act. It will be observed that at the time of earlier incident which took place at about evening time on 6‑10‑1982, only Mahmood and Maqsood accused had quarrelled with Shafiq deceased. The remaining five accused were not present at that time, secondly four accused namely Bashir Qaisar, Arshad, Talish and Tariq Javaid were not related to their three co‑accused. They had no motive against the complainant party though they joined as friends. There is no evidence that all the accused came to the spot after taking a decision to murder Muhammad Shafiq deceased; thirdly, the deceased Muhammad Shafiq received only one injury on his person which has been attributed to Mahmood Ahmad accused. The remaining accused did not inflict any injury on the person of deceased after he fell on the ground. According to the medical evidence, the time between the injuries and death was a few minutes; fourthly the injuries on the two eye‑witnesses were by blunt weapon and of simple nature. If the accused had come to the spot with intention to commit murder, more serious injuries must have been inflicted by them during occurrence; and fifthly the complainant party was empty handed. The accused could have caused more damage to the persons of the witnesses and the deceased but that was not done which also indicates that their object of trespass in the Mills of the complainant was not to commit murder. The deceased received only one injury on his person. In view of these circumstances, we are of the view that the common object of the unlawful assembly was not to commit the murder of Muhammad Shafiq and that Mahmood Ahmad during the occurrence developed intention to murder Muhammad Shafiq which fact was not known to his co‑accused. As such, all the accused will be liable for their individual acts during this occurrence.
8. In view of the above discussion, the conviction and sentence of all the accused under section 148, P.P.C. is set aside and they are acquitted of this charge.
Mahmood Ahmad appellant fired at Muhammad Shafiq and committed his intentional murder. His conviction and sentence under section 302, P.P.C. is maintained. The sentence of death of Mahmood Ahmad accused IS CONFIRMED. Mahmood Ahmad committed trespass in the Mills of Muhammad Hafeez complainant. He is sentenced to 1‑1/2 years' R.I. and fine of Rs.1,000 or in default three months' R.I. under section 452, P.P.C. He is acquitted from the charge under section 307/149, P.P.C.
Maqsood Ahmad accused trespassed in the Mills of Muhammad Hafeez complainant. He is sentenced to 1‑1/2 years' R.I. and fine of Rs.1,000 or in default three months' R.I. under section 452, P.P.C. He fired from his pistol at Muhammad Hafeez complainant with intention to commit his murder. Muhammad Hafeez saved himself by taking shelter behind stairs. Maqsood Ahmad accused is sentenced to five years' R.I. and fine of Rs.1,000 or in default three months' R.I. under section 307, P.P.C. His sentences of imprisonment will run concurrently. He will be allowed benefit of section 382‑B, Cr.P.C. He is on bail. He will surrender to the authorities concerned to undergo imprisonment awarded to him by this judgment. He is acquitted from the charge under section 302/149, P.P.C.
Muhammad Amin, Bashir Qaisar, Muhammad Arshad, Muhammad Talish and Tariq Javaid accused are acquitted from the charge under section 302/149, P.P.C. They trespassed in the Mills of Muhammad Hafeez complainant and caused simple injuries to Ghulam Hussain and Muhammad Muhamood P.Ws. They are accordingly convicted under sections 452 and 323, P.P.C. These appellants were sentenced by learned Additional Sessions Judge, Lahore on 4‑10‑1984. They are in prison since then serving imprisonment under the impugned judgment. Accordingly, these five appellants are sentenced to imprisonment already undergone by them and fine of Rs.1,000 or in default three months' R.I. under section 452, P.P.C. They are also sentenced to imprisonment already undergone by them plus fine of Rs.1,000 or in default three months' R.I. under section 323, P.P.C.
The entire amount of fine, if recovered, will be paid as compensation to heirs of Muhammad Shafiq deceased.
This appeal is dismissed subject to above modifications.
9. In view of the above decision in appeal, the connected criminal revision is dismissed in limine.
S.A./M‑107/L Sentences altered.
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