Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Criminal Appeal No. 402 and Murder Reference No. 116 of 1983, heard on 21st April, 1987.
‑‑‑Ss. 302 &326‑‑Offence, alteration of‑‑Deceased died as a result of two incised wounds each caused by both the accused which only collectively found responsible for the death of deceased but not fatal individually Accused, held, could not be liable for murder of deceased but only for causing him grievous injuries Conviction under S. 302, P.P.C. altered to under S.326, P.P.C. in circumstances.
‑‑‑S. 307‑‑Evidence, appreciation of‑‑Injured prosecution witnesses allegedly receiving injuries at the hands of their assailants, not produced at trial‑‑In absence of direct evidence, accused, held, was entitled to be acquitted‑‑Conviction and sentence set aside in circumstance.
M.B. Zaman and Ijaz Hussain Batalvi for Appellants.
Sh. Naseer‑ud‑Din for the State.
Roshan Ali Sindhu for the Complainant.
Date of hearing: 21st April, 1987.
‑‑Seven accused namely, Ramzan son of Khushi Muhammad (56), Muhammad Asghar son of Ramzan (15), Muhammad Ashraf son of Ghulam Muhammad (16), Abdul Jabbar son of Muhammad Sharif (25), Faqir Muhammad son of Muhammad Boota (19), Muhammad Ismail son of Khewa (17) and Muhammad Ramzan son of Muhammad Yasin, since dead, (he died before the commencement of trial), were involved in offences punishable under sections 302/307/148/149 and 452, P.P.C. arising out of F.I.R. No. 176, dated 11‑11‑1980 registered at Police Station Mamun Kanjan, District Faisalabad. The learned trial Judge vide judgment, dated 21‑6‑1983, found that the accused were liable for individual acts and consequently vide aforesaid judgment he convicted Ramzan son of Khushi Muhammad and Faqir Muhammad son of Muhammad Boota, under section 302/34, P.P.C. for causing the death of Muhammad Ashraf deceased and sentenced them to death and a fine of Rs.5,000 each or in default one year's R.I. Additionally they were convicted under section 451, P.P.C. and sentenced to one year's R.I., each and a fine of Rs.500 each or in default three months' R.I. It was also directed that they shall pay compensation amounting to Rs.3,000 each to' the heirs of Muhammad Ashraf deceased, failing which they shall suffer three months' R.I. each.
Vide the same judgment Muhammad Asghar was convicted under section 307, P.P.C. and sentenced to three years' R.I. and a fine of Rs.1,000 or in default three months' R.I. He was also convicted under section 324, P.P.C. and sentenced to one year's R.I. He was further convicted under section 452, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 or in default three months' R.I.
Abdul Jabbar was convicted under section 307, P.P.C. and sentenced to one year's R.I. and a fine of Rs.1,000 or in default three months' R.I. He was also convicted under section 324, P.P.C. and sentenced to one year's R.I. He was further convicted under section 452, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 or in default three months' R.I.
Muhammad Ismail was convicted under section 325, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 or in default three months' R.I. He was also convicted under section 452, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 or in default three months' R.I..
Muhammad Ashraf has been convicted under section 448, P.P.C. and has been sentenced to pay a fine of Rs.1,000 or in default three months' R.I.
2. Out of the aforementioned convicts, Ramzan and Faqir Muhammad have challenged their convictions and sentences through Criminal Appeal No. 402 of 1983. Muhammad Asghar, Abdul Jabbar and Muhammad Ismail have challenged their convictions and sentences through Criminal Appeal No. 386 of 1983. Muhammad Asghar has not come up in appeal. The matter also stands referred to us under section 374, Cr.P.C. seeking confirmation of death sentence awarded to Ramzan and Faqir Muhammad.
3. Ali Ahmad complainant has also filed Criminal Revision No. 617 of 1983, seeking enhancement of compensation ordered to be paid by Ramzan and Faqir Muhammad for the enhancement of sentences awarded to other convicts.
All these matters shall be disposed of by this judgment.
4. The occurrence in this case took place on 11‑11‑1980 at 7‑00 a.m. in the village Abadi of Chak No. 203/G.B. in the compound of the house of Ali Ahmad complainant P.W.8 at a distance of about nine miles from Police Station Mamun Kanjan, District Faisalabad.
5. This occurrence was reported to the police by Ali Ahmed P.W.8 aforesaid through statement Exh.P.H. which he made before Nasrullah Khan S.I./S.H.O P.W. 15 at about 10‑00 a.m. the same day at the bus‑stand of Chak No. 509/G.B. Formal F.I.R. was recorded by Muhammad Iqbal M.H.C. (not produced) the same day at the police station at 10‑20 a.m.
6. Regarding motive it has been alleged that 12/13 days prior to the present occurrence Muhammad Asghar appellant gave beatings to and insulted Mst. Amanat Bibi wife of Muhammad Boota, brother‑in‑law of Ali Ahmad P.W.8. As a measure of retaliation, 3/4 days prior to the occurrence Muhammad Ashraf deceased insulted Mst. Fatima wife of Muhammad Ramzan appellant and gave beatings to her. Hence the present occurrence.
7. Regarding the details of the main occurrence, it has been stated that at the fateful time Ali Ahmad P.W.8 was present in the compound of his residential house alongwith his wife Mst. Zainab Bibi (not produced), sons Muhammad Ashraf deceased, Maqbool Ahmad P.W.10, Muhammad Asghar P.W.14, daughter‑in‑law Mst. Shamim Akhtar (not produced) and Muhammad Munir son of Muhammad Boota (not produced). Suddenly Ramzan appellant armed with spear, Muhammad Asghar appellant armed with spear, Abdul Jabbar appellant armed with spear, Faqir Muhammad armed with spear, Ismail appellant armed with Lathi, Muhammad Ashraf armed with Lathi and Ramzan (since dead) armed with Lathi entered the compound through the outer door raising Lalkaras that no one would be allowed to go alive as they had come to avenge the insult of Mst. Fatima. Ramzan opened the attack and caused Barchhi blow in the left flank of Muhammad Ashraf deceased. Second blow to said Muhammad Ashraf deceased was caused by Faqir Muhammad in the right flank. After receiving these injuries he ran out for his life and fell down in the house of Muhammad Ali where he fainted. Muhammad Asghar caused Barchhi blow to Maqbool Ahmad in the chest on front side towards left. He too fell down and became unconscious. Abdul Jabbar caused Barchhi blow to Mst. Zainab Bibi hitting her at the rib towards the left side. She too became unconscious. Muhammad Ismail caused injuries with Lathi on the head of Muhammad Asghar who while falling down was dealt another blow by Muhammad Ashraf on his lips. Muhammad Asghar then caused a Barchhi blow for the second time to Ali Ahmad complainant on his left shoulder. Abdul Jabbar caused Barchhi blow to Muhammad Munir on his right hand. Mst. Shamim Akhtar stepped forward to intervene but she was dealt with a Dang blow by Ramzan since dead. On the alarm raised by Ali Ahmad and other injured persons, many people of the locality came there and thereafter, the assailants left the scene of occurrence while raising Lalkaras.
8. P.W.9 Dr. Syed Javed Hussain Zaidi, medically examined Maqbool Ahmad P.W.10 on 11‑ 11‑1980 at 11‑45 a.m. and found a stab wound 3‑ 1/4" x 2" penetrating into the corresponding left plaural cavity obliquely in front of left chest and also another stab wound 3/4" x 1/2", penetrating into the left chest on the dorsal surface. Both these injuries were grievous and dangerous for life. They were obviously caused with sharp‑edged pointed weapon.
On the same day he examined Muhammad Munir (not produced) and noticed one incised wound on the palm surface of right middle finger and an incised wound on the terminal phalanx of right ring finger. All these injuries were simple caused by sharp‑edged weapon.
Muhammad Ashraf deceased was also medically examined while he was still alive by the same doctor on the same day at 11‑00 a.m. The following injuries were noticed on his person:‑
(1) A stab wound, 1‑1/2" x 1/2" depth not probed, on the left lumber region obliquely. It was bleeding severely. There was corresponding perforation in the shirt.
(2) A stab wound 1‑1/4" x 1/2" depth not probed on the left chest laterally and posteriorly at a distance of 7" from the inferior angle of right scapula.
(3) Surgical emphysema was present. Patient was in his hypovalaemc. Pulse was imperceptible. Patient seemed to lose apparently more than two pints of blood. Condition of the patient was serious.
Injuries Nos. 1 and 2 were kept under observation. These injuries were inflicted within 12 hours, and these were caused by sharp‑pointed weapon. Exh.P.L. is the correct carbon copy of medico‑legal report. The doctor framed an operative final report after operation of the patient, i.e. as follows:‑
"Patient developed distension of abdomen. Abdomen was opened by upper right paramedian incision. The whole of the peritoneum cavity was full of fresh and clotted blood. About one thousand CC of blood was present in the peritoneum cavity. Right lobe of the liver was cut due to injury No. 2. The ruptured liver was packed. Abdomen was closed in layers."
On the basis of the above operative findings, injury No. 2 was declared as grievous and dangerous for life. Exh. P.L./1 is the correct carbon copy of the opinion which is in the hand of the doctor and signed by him.
On the same day Mst. Zainab Bibi (not produced) was also medically examined. It was noticed that she had a stab wound below the left nipple in front of left chest. This injury was declared as grievous.
On 11‑11‑1980 Muhammad Asghar was also medically examined. In his case a lacerated wound on the right parietal surface of skull, swelling on the frontal region of scalp, an abrasion on the dorsal surface of left forearm and a lacerated wound on the inner surface of right upper lip were noticed. These injuries were kept under observation and after X‑Ray report injury No. 1 was declared as grievous by the doctor.
Mst. Shamim Akhtar (not produced) was also medically examined on 11‑11‑1980 by Dr. Syed Javed Hussain Zaidi. In her case a swelling over the right ankle joint was noticed. She also complained of pain in chest. The injury was declared as simple having been caused with blunt weapon.
Ali Ahmad complainant P.W.8 was also medically examined on 11‑11‑1980. In his case an incised wound on the deltoid muscle of left upper arm was noticed. This injury was simple caused with sharp‑edged weapon.
9. It is noteworthy that Muhammad Ashraf who was removed to the hospital in injured condition after the occurrence on 11‑11‑1980 died in the hospital on 19‑11‑1980. On the same day autopsy was performed on his dead body by Dr. Bashir Hussain Kahlon at 3‑30 p.m. He noticed the same two stab wounds. one on the left lumber region and the other on the right lateral chest at its lower part, as were noticed by Dr. Syed Javed Hussain Zaidi P.W.9 at the time of his medical examination when he was still alive. It has been opined by Dr. Bashir Hussain that in case of Muhammad Ashraf deceased, the death had occurred due to shock and haemorrhage as a result of injuries Nos. 1 and 2 and that these injuries were sufficient to cause death collectively, in the ordinary course of nature. According to him all the injuries were caused with sharp‑edged pointed weapon. The time between the injuries and death was within nine days and between death and post‑mortem examination 14/15 hours Exh.P.D. is the correct carbon copy of the post‑mortem report while Exh.P.D./1 is the diagram indicating the location of the injuries.
10. Dr. Ghulam Rasul P.W.2 medically examined Asghar Ali appellant on 11‑11‑1980 at 11‑00 a.m. and noticed a lacerated wound 3 c.m. x 1 c.m. bone deep, upon vault of scalp to the left side of middle line.
On the same day this doctor also medically examined Muhammad Ashraf accused and noticed the following injuries on his person:‑
(1) An incised wound, 5 c.m. x 1 c.m. bone deep, upon back of scalp in middle line of head.
(2) A contusion mark, 7 c.m. x 2 c.m. upon the outer side and back of right upper arm.
(3) An incised wound, 1 c.m. x 1/2 c.m. bone deep, upon front of right lower leg.
It is noteworthy that some of the injuries in case of Muhammad Asghar and Muhammad Ashraf were kept under observation but ultimately their results were not obtained.
11. All the accused except Muhammad Ismail, were arrested on 28‑11‑1980 by Nasrullah Khan S.I. P.W.15. The same officer subsequently arrested Muhammad Ismail also on 5‑12‑1980.
On 12‑12‑1980. Ramzan appellant while in custody led to the recovery of blood‑stained spear P.10 from his house vide memo. Exh.P.Y., which has been attested by Abdul Hamid P.W.13, Jan Muhammad (not produced) and Nasrullah Khan P.W.15.
On the same day Faqir Muhammad appellant led to the recovery of blood stained spear P.11 from his house vide memo. Exh.P.Z. in the presence of the same witnesses.
Similarly Abdul Jabbar appellant on the same day got recovered from his house blood‑stained spear P.13 vide memo. Exh.P.BB. in the presence of the aforementioned witnesses.
Muhammad Ashraf led to the recovery of Sota P.15 (not blood stained) vide memo. Exh.P.DD. in the presence of the same witnesses.
Muhammad Asghar appellant led to the recovery of blood‑stained spear P.12 vide memo. Exh.P.AA. in the presence of the same witnesses.
As per police records four spears were said to have been sent to the Chemical Examiner by the Muharrir Head Constable but it transpires from the contents of report Exh.P.JJ. of the Chemical Examiner that only two spears belonging to Ramzan and Faqir Muhammad were received in that office. It has been reported by the Serologist vide report Exh.P.JJ./1 that the aforementioned two spears allegedly recovered from Ramzan and Faqir Muhammad were stained with human blood.
12. At the trial Ali Ahmad P.W.8. Maqbool Ahmad P.W.10 and Muhammad Asghar P.W.14 testified as eye‑witnesses to furnish the ocular account of the prosecution version. Although they are father and brothers of the deceased Muhammad Ashraf, but all these three P.Ws. are injured and are admittedly residents of the same house in which the occurrence took place. These P.Ws. have fully supported the prosecution case.
13. The appellants pleaded not guilty. It has been stated by Muhammad Asghar appellant that on the day of occurrence, Ashraf deceased and his brother Maqbool P.W. in order to avenge the insult of Mst. Amanat Bibi caught hold of Mst. Fatima, mother of Muhammad Asghar, in front of the door of Haveli of Muhammad Ali and they tried to strip her naked and attempted to drag her into the courtyard of Muhammad Ali. This appellant alongwith Ashraf co‑accused and Ramzan co‑accused (since dead) ran to save Mst. Fatima. Ashraf and Maqbool gave injuries to Asghar and Ashraf. They raised alarm, whereby sympathisers of both the parties were attracted. Asghar and Ashraf received injuries in that melee. The deceased was also injured in the above manner without being known as to at whose hand the injuries were received by him. Asghar has stated that the other co‑accused were not present.
No evidence, however, has been led in defence.
14. The learned counsel for the State while supporting the judgment under appeal urged that the appellants acted with highhandedness. After having armed themselves with lethal weapons, they trespassed into the residential house of Ali Ahmad complainant where they caused the death of one of his sons and inflicted simple as well as grievous injuries with sharp‑edged and blunt weapons to other inmates of the house.
15. It has, however, been urged on behalf of the appellants that in the present case the prosecution has failed to establish as to where and when the occurrence was reported to the police. In the statement Exh.P.H. itself it has been disclosed that this statement was made by Ali Ahmad complainant before Nasrullah Khan S.I. at bus‑stand of Chak No. 509/G.B. but while appearing as P.W.8 Ali Ahmad stated in examination‑in‑chief that his statement was recorded at the hospital. In cross‑examination he disclosed that his statement was recorded and thumb‑impression obtained by the Sub‑Inspector on the spot. It has also been maintained on behalf of the appellants that in the F.I.R. it has been alleged regarding motive that 12/13 days prior to the present occurrence Mst. Amanat Bibi wife of Muhammad Boota, brother‑in‑law of Ali Ahmad, was insulted and given beatings by the accused party and thereafter to avenge that insult Mst. Fatima wife of Ramzan and mother of Faqir Muhammad appellant was insulted and man‑handled four days prior to the occurrence by the deceased. This version has been contradicted by Ali Ahmad complainant himself while testifying as P.W.8. In his statement at the trial he disclosed that 13/14 days prior to the occurrence Mst. Amanat Bibi wife of his brother‑in‑law was insulted by Muhammad Asghar, Abdul Jabbar and Faqir Muhammad, but the matter was brought to the Punchayat and was ultimately settled. He further disclosed that a few days after that Muhammad Ashraf deceased was coming from his land when Mst. Fatima and some other ladies ironically said to him that they were incapable of doing anything as they had already failed in the past. At this Muhammad Ashraf turned them apart when they tried to catch hold of him. It has also been argued that Muhammad Asghar and Muhammad Ashraf accused also received injuries caused with blunt as well as sharp‑edged weapons. They were medically examined for their injuries on 11‑11‑ 1980 at 11‑00 a.m. but their injuries were suppressed in the F.I.R.
It has finally been argued on behalf of the appellants that if viewed in the perspective that it cannot be ascertained as to when the occurrence was reported to the police, the motive as alleged in the First Information Report was not proved, injuries on the persons of the accused were suppressed, then the defence version that in fact on the day of occurrence Mst. Fatima was caught hold of by the complainant party in front of the house of Muhammad Ali, they tried to strip her naked on which Muhammad Ashraf and Ramzan accused ran to save Mst. Fatima, Asgha; also followed them and they were caused injuries by Ashraf deceased and Maqbool Ahmad P.W.10 appears to be more probable. 1t has thus been pleaded that if versions of both the parties are placed in juxtaposition then the defence version would appear to be more reasonable and probable.
16. We have anxiously and minutely considered the arguments advanced on behalf of the appellants with reference to the material available on the record, but unfortunately we are not inclined to agree to the suggestion that injuries were received by the deceased and members of the complainant party during the melee at the hands of unknown assailants. It is not denied that the occurrence took place inside the residential house of Ali Ahmad complainant in his compound. The appellants after having armed themselves variously with spears and Lathis etc. trespassed into the compound of the house of Ali Ahmad. Inside that house they caused injuries to the deceased and other injured P.Ws. The deceased, of course, after receiving the two injuries with spears at the hands of Ramzan and Faqir Muhammad ran for his life to the Haveli of Muhammad Ali, where he fell down. Blood‑stained earth has been collected from the compound of Ali Ahmad complainant where the deceased received injuries at the hands of Ramzan and Faqir Muhammad. Similarly, blood‑stained earth has been collected from the same compound in respect of injuries received by other P.Ws. Had the occurrence not taken place inside the compound of the house of Ali Ahmad, then the version put forward by the appellants would have been worth consideration. As a matter of fact, this is a case in which the appellants after arming themselves with deadly weapons committed rioting and in furtherance of their common object caused injuries to the deceased and other P.Ws. The learned trial Judge, however, has held that this is a case of individual liability in case of each accused. His finding has not been challenged by way of appeal by the State or through a private revision. This being a pretty old occurrence, we also do not deem it expedient to issue suo motu notice calling upon ‑the appellants as to why they should not be held liable for vicarious liability. We have, however, noticed that it has been expressly opined by the doctor who performed they autopsy on the dead body of Ashraf deceased that he died as a result of two incised wounds which were collectively sufficient to cause death. He has thus found that each injury individually was not sufficient to cause death. In such an eventuality the question of application of section 34, P.P.C. does not arise and as the learned trial Judge has held the assailants liable for their individual acts, Ramzan and Faqir Muhammad cannot be held liable for the murder of Ashraf deceased. They caused grievous injuries with spears which collectively were liable for his death. We, therefore, alter their conviction from section 302/34, P.P.C. to section 326, P.P.C. in each case.
17. We have also noticed that Abdul Jabbar appellant is alleged to have caused an injury with spear in the left rib of Mst. Zainab Bibi and another injury with spear on the right hand of Muhammad Munir. Both Mst. Zainab Bibi and Muhammad Munir have not been. produced at the trial and thus there is no direct evidence on the record that Abdul Jabbar caused injuries with spear to Mst. Zainab Bibi and Muhammad Munir. He is, therefore, entitled to be acquitted.
18. In the light of the above conclusions, we partly allow the set aside the convictions and sentences of Abdul Jabbar appellant and acquit him of the charges. The conviction of Ramzan and Faqir Muhammad under section 302/34, P.P.C. is altered into one, under section 326, P.P.C. They are sentenced to ten years' R.I. each and a fine of Rs.5,000 each or in default one year's R.I. They are further directed to pay Rs.3,000 each as compensation to the legal heirs of the deceased failing the defaulters shall suffer three months' S.1. The conviction and sentence awarded to Ramzan and Faqir Muhammad appellants under section 452, P.P.C. are maintained. Their substantive sentences shall run concurrently. The appeal to the extent of Muhammad Asghar appellant is dismissed in toto. His convictions and sentences under section 307/324/452, P.P.C. are maintained. The convictions of Muhammad Ismail under sections 325/452,P.P.C. are maintained. However, the sentences awarded to him are reduced to one already undergone. Criminal Revision No. 617 of 1983 is dismissed in limine. The sentence of death awarded to Ramzan and Faqir Muhammad is not confirmed.
S.G.D./M‑175/L Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer