P L D 1962 Supreme Court 450 (PLP)

CORNELIUS, C. J.‑--In this appeal by special leave there are three appellants, namely Muhammad, Falak Sher and Gulla. These three persons along with two others, namely Rustam and Gama had been convicted by the Sessions Judge, Mianwali, out of, 13 persons who had been placed on trial on charges under sections 148; 302/149/307/149 and 342/149, P. P. C. The case for the prosecution is a simple one, and as against the counter version of the defence, was fully supported by the evidence of two disinterested witnesses, namely, Muhammad Bakhsh, P. W. 20, and Sona, P. W.

21. The case was that certain land in village Hetu belonging to Gul Sher and others, was cultivated by Muhammad Yar, P. W. 16, and his family. Between Gul Sher and Muhammad Yar on one side and the accused persons on the other, there was a dispute not regarding this land, but regarding another piece of land at about 200 karams distance, over which there had been proceedings between the parties under section 145, Criminal Procedure Code. The field concerned in the present case is some two miles from the houses of the complainant party, but only five or six hundred karams from the houses of the accused party. It is about 100 karams from the boundary divid ing village Hetu to which the complainants belong from village Tinda Thal where the accused persons reside. In this field, the complainants had sown gram which was ripe for harvesting, when on the 28th March, 1960, Muhammad Yar and his companions, coming on a round to see the crop, found Muhammad Bakhsh, P. W. 20, and Sona, P. W. 21, engaged in cutting the gram. These two men are mere labourers from a village Dajal, some 30 miles away, who had been engaged to work as harvesters by the accused party. They had been asked to cut the crop in this field by Muhammad and Falak Sher accused both of whom were known to Muhammad Bakhsh, P. W. 20, but only Muhammad was known to Sona who is aged about 19 years. Muhammad Yar and his companions, namely his brothers Muhammad Nawaz and Shah Nawaz, his sister's son Sarfraz and the deceased Ata Muhammad who was a cousin of his, got hold of the two men Muhammad Bakhsh and Sona who were not previously known to them and intended to take them to the police station, but they had only gone a distance of about 25 karams, when they heard a challenge and the report of a gunshot. Looking back, they saw the thirteen accused persons of whom Sarwar had a gun, Muhammad and one other, who were mounted on horses had spears, and the remaining ten had dangs. Sarwar did not fire again, but Muhammad and Falak Sher stopped the party and Alam Sher gave a dang blow to Ata Muhammad on the head after which Muhammad accused speared him in the abdomen, and he fell down. After that a confused beating was given to members of the complainant party. Rustam gave a dang blow to Shah Nawaz and Falak Sher hit Shah Nawaz with his barcha. Sarfraz was hit by Gulla with a dang. Muhammad Nawaz was hit by Gama. Rustam arid Gama also gave dang blows to Muhammad Yar. Further blows were given by members of the accused party, and it is admitted that Sarfraz and Shah Nawaz who also had dangs used them in self defence. Muhammad Yar, P. W. 16, left the spot and immediately proceeded to Police Station Maibal, while the others scattered, except Shah Nawaz who was dragged away by the accused to their own house from where he was later released by the police. In the meantime, Muhammad accused had already gone to the police station on horse back reaching there before Muhammad Yar, the distance being about 4 miles. 'Both these men were sent to Kallur Kot Hospital for Medical' Examination and shortly afterwards Ata Muhammad was brought to that hospital by his Matives. Shah Nawaz was rescued from the house of Muhammad accused in Tinda Thal by Abdul Ghafoor, A. S. 1. of police. The defence case which was the subject of a separate pro secution was that Muhammad Yar and 15 of his companions attacked Muhammad and Gulla accused while they were supervis ing the harvesting of their crop and their was a fight in the course of which both parties were injured and that Shah Nawaz was caught and carried away because he had been carrying a gun which had however got jammed and the gun was taken along with him to Muhammad's house. A. S.

1. Abdul Ghafoor made it clear that no gun was produced before him at Muhammad's house when he recovered Shah Nawaz from there. There were injuries on two of the accused. Muhammad had a single cont usion 6" in length on his back across the shoulder. Gulla had some 17 injuries, of which the most serious were a lacerated wound on the top of the held, and some 7 bruises of considerable length, probably the result of lathi blows. According to the story of the prosecution, Muhammad was on a horse and there fore the fact of his not receiving more than one injury is explained. Gulla was clearly subjected to a heavy attack, and this was possible in the course of a confused fight in which there were more than 5 persons on each side. It may well be that while their companions were receiving severe treatment from the accused persons, two or more of the complainant party were concentrating their attention on Gulla. The injuries on the side of the complainants were as follows. Ata Muhammad had a deep stab wound on the abdomen which led to his death on the following day, viz., the 29th March 1960. He had in addition four superficial incised wounds. Muhammad Yar had two contused wounds on the head and a lathi mark on his right forearm. Muhammad Nawaz had a contusion on the left shoulder and he also received a contusion on his left hand causing a fracture. Shah Nawaz had three superficial incised wounds on his neck and five lathi marks, one being on the head, as well as a couple of abrasions: Sarfraz had two contusions on the right arm and a contusion on the right hand. The prosecution story is strongly supported, as to the first part of the assault, by the account of the occurrence furnished by the two labourers. They were left in the field by Muhammad and Falak Sher and asked to harvest the gram crop and while they were so engaged Muhammad Yar, Muhammad Nawaz, Shah Nawaz, Sarfraz and Ata Muhammad turned up, caught them and took them towards the police station. At a distance of about 25 karams, they heard the challenge and the gunshot and saw 13 or 14 persons residents of Chah Tindanwala of whom Muhammad and one other were on horses and Muhammad and Falak Sher had spears while one had a gun and the others dangs. These witnesses were quite clear that after stopping the complainant party, it was Muhammad accused who speared Ata Muhammad. When the cry went up that Ata Muhammad had been killed, these two men ran away from the spot, and the detail of the further conflict was furnished by the four complain ant witnesses. This evidence was accepted by the trial Court, in the absence of any defence evidence to support the case put forward by Muhammad accused. The Sessions Judge could "see no reason not to accept the testimony of Muhammad Yar, P. W. 16, Shah Nawaz, P. W. 17, Muhammad Nawaz, P. W. 18, and Sarfraz, P. W. 19, that they were made the victims of aggression", and added that these persons had been corroborated in this respect by Muhammad Bakhsh, P. W. 20 and Sona, P. W.

21. The Sessions Judge found support for this view in the comparison of the injuries caused and received on the two sides, and from the injuries on Muhammad and Gulia. accused, he concluded that the complainants were armed on15, with dangs. The story of the accused that Shah Nawaz had a gun was disbelieved by him for lack of proof. The Sessions Judge then went on to consider "whether all the 13 accused were involved in this occurrence" and found room for caution in the circumstance that "practically all the adult male relatives" of Muhammad accused had been implicated, and further that when mentioning specific blows to themselves, the complainant witnesses had named only Muhammad, Alam Sher, Falak Sher, Rustam, Gama and Gulla out of the 13 accused persons. About the rest nothing more was said than that generally they had used their weapons upon their fallen opponents. The Sessions Judge then went on to consider specifically the case regarding Alam Sher and made two points, namely, that although all the complainant witnesses said that Alam Sher struck the first blow, namely a lathi blow on the head of Ata Muhammad, there was no injury on Ata Muhammad's head to bear out this statement, and secondly, that even in his dying declaration, Ata Muhammad had only mentioned two assailants, namely Muhammad and Falak Sher. On this basis, the Sessions Judge thought it was "not at all safe to declare Alam Sher, accused as amongst the assailants". His conclusion as to the persons among the accused who could be safely held to be rightly involved may be repro duced in his own words: "This would leave behind only Muhammad Falak Sher, Rustam, Gama and Gulla, accused, as the persons who have been definitely named by Muhammad Yar, Shah Nawaz, Muhammad Nawaz, and Sarfraz P. Ws., as the assailants who had taken active part in the fight and had caused specific injuries to them because Alam Sher, accused, named by them as having played a similar role has been excluded above. Keeping in view the fact that Muhammad Yar, Shah Nawaz, Muhammad Nawaz and Sarfraz, P. Ws., were likely to rope in as many relatives of Muhammad, accused, and have actually implicated practically all the adult male relatives of their real enemy Muhammad, accused, I would take a clue from their readiness to specifically name only Muhammad, Falak Sher, Rustam, Gama, Gulla and Alam Sher, accused as the assailants who had actively caused injuries to them and would prefer to err in favour of the innocence of the rest of the accused by giving them the benefit of doubt. The result is that only Muhammad, Falak Sher, Rustam, Gama and Gulla, accused, have been definitely established to be the assailants along with a total number of 13 or 14 persons as stated by Muhammad Bakhsh and Sona, P. Ws. who were involved in this occurrence. They definitely formed themselves into an unlawful assembly armed with blunt weapons and even sharp‑edged and sharp‑edged pointed weapons whereby the injuries were caused by them to the complainant party. All five of them were thus guilty of the offence under section 148, P. P. C." The problem which the Sessions Judge resolved for himself in this passage is a familiar one namely, that of coping with the very lively possibility, where the background of the incident is factional hostility, and a large number are named as culprits, that a number of these persons have been falsely named. That is an expression of hostility by the injured party which is found in almost every case where the crime is the manifestation of the same hostility from the other side. The rule which the Sessions Judge followed is one which has been established in the course of perhaps a hundred years during which the Courts have dealt with cases of this kind under the provisions of the Criminal Procedure Code. It is a rule whose merits lies in the probability of its placing the identification of a particular" assailant beyond the pale of reasonable doubt. But, after correctly invoking, and as the record shows correctly applying this rule, the Sessions Judge fell into error in determining the criminality of the five persons whom he felt he could convict beyond reasonable doubt. This is how he argued the mater. He thought that Muhammad accused had "all possible hostility" towards the complainants, and it was he who had designed that the harvestors Muhammad Bakhsh and Sona should cut and remove Muhammad Yar's gram crop. But, the Sessions Judge went on :‑ "the remaining‑ four of the said accused have not been established to have exhibited the same hostility towards them (i. e., complainants) previously." Ignoring the plain fact that they were all members of one family, he concluded for this reason that it would not be said :‑ "that this unlawful assembly had from the very start the common object of committing murder of Ata Muhammad deceased and of making a murderous assault on Muhammad Yar, Shah Nawaz, Muhammad Nawaz and Sarfraz P. Ws. and of illegal confinement of Shah Nawaz, P. W." He preferred to think that their common. object was merely to free the two harvesters and to give their captors a chastisement. The case, of course, was that Muhammad and Falak Sher accused had barchas namely, large spears, which are definitely lethal weapons, while Rustam, Gama and Gulla had dangs and the Sessions Judge went on to say that the mere fact of two of these five persons having barchas :‑ "would not show that the remaining three accused had also the intention or knowledge which would make the subsequent wielding of the barchas and the consequent death of any of the victims due to the barchas blows as the common object of the unlawful assembly though all these five accused are to be deemed to have the knowledge of the common object that grievous sharp‑edged weapon injuries would be caused by the barchas." Accordingly, as to the three men who had clangs, he thought he could only find them guilty under section 326/149, P. P. C. and he convicted them accordingly. He held Muhammad accused to be exclusively guilty of the murder of Ata Muhammad and convicted him under section 302, P. P. C. He held that Falak Sher had caused a wound with his spear to' Shah Nawaz P. W. and convicted him `of an offence under section 307, P. P. C. For the offence of unlawful `confining Shah Nawaz he convicted all the five accused persons under section 342/149. In diff6r6ntiat ing between the constructive liability of the several accused persons, the Sessions Judge differed from the opinion expressed by the assessors who were clearly of the view that all the accused persons were guilty as members of an unlawful assembly of offences under sections 302, 307 and 342, P. P. C. The case came up in appeal before the High Court against a death sentence to Muhammad, a sentence of 7 years rigorous imprisonment to Falak Sher and sentences of 4 years' rigorous imprisonment to Rustam, Gama and Gulla as well as sentences of two years' under each of sections 148 and 342/149, P. P. C. to each of the convicts, We cannot refrain from pointing out that the view taken by the Sessions Judge upon which he saved Rustam, Falak Sher, Gama and Gulla from constructive liability for the most serious offences is entirely unsustainable. On the view he took, it was on account of previous hostility that the accused persons deliberately set two strangers to cut the gram crop of their enemy Muhammad Yar, knowing in all probability that Muhammad Yar and his men would do something about it. Then when the complainants did come and quite rightly caught the harvesters and were taking them to justice, the accused persons in a body armed with weapons of extremely lethal type namely, a gun, two barchas, and a great number of lathis, came out in a body to carry out a purpose which in the circumstances cannot possibly be confined to the mere releasing of the two harvesters. Two came mounted on horses, probably to make sure that none of their intended victims should escape by mere fleetness of foot. It was clearly a deliberate act of trapping the complainant party to their disadvantage and carrying out a felonious purpose at the highest level. The evidence plainly shows that the whole body of the accused acted jointly and with a common purpose, and the fact that not all of them were called upon to give blows or use force in any form is clearly to be attributed to the circumstance that they were able to make short work of their opponents through ...preponderance of arms and numbers. If any further indication were needed of a commonness of purpose and inten tion in respect of every thing done by this group of criminals, it is provided by the fact that, not content with spearing Ata Muhammad through the stomach so that his survival became a visibly remote possibility, they caught hold of Shah Nawaz and dragged him to their house and kept him there in unlawfull confinement. There was no bona fide excuse whatsoever for this behaviour, and consequently it can only be explained by, and is in itself fully sufficient for establishing, that every person whose presence in the group is proved beyond reasonable doubt, was fixed with an intention to participate in every act, howsoever dangerous or criminal that was performed by any one of them. The argument of the Sessions Judge that the intention to commit murder was not formed at the very start is not sufficient to avoid that conclusion for, once it is accepted that a trap had been laid for Yar Muhammad and his party in order that the accused party should carry violence to them from a position of complete advantage, then, the possession of two spears is by itself sufficient to establish that every member of the group knew that a murder was likely to be committed to prosecution of this felonious object. By the terms of section 149, that circumstance is amply sufficient to bring each member o` the group within constructive liability for the murder actually committed. Therefore, it seems to us that on principles which have been settled over a long period of years, by successive judgments delivered in the High Court at Lahore, the view taken by the Sessions Judge, which enabled him to minimise the offence of four of the five accused persons whom he had found to have taken part in the occurrence was wholly insup portable. However, in the High Court there was no motion tirade on behalf of the State to have this error corrected. and the fact that the error is not noticed in the judgment delivered by the Division Bench may be explained on this ground. But there the area of retribution for this foul crime was still further restricted. The learned Judges after accepting the evidence to show that the appellant Muhammad was responsible for the death of Ata Muhammad that the appellant Falak Sher wounded Shah Nawaz with his spear and that Gulla appellant being injured, his participation in the occurrence could not be doubted. went on to observe as follows :‑ "But so far as accused Gama and Rustam are concerned, it seems, it would not be safe to rely on their i.e., of the witnesses evidence as they were not said to have caused any specific injury to any one of Muhammad Yar's party and had not themselves received any injury at the hands of their opponents". It is to be pointed out, and we do so with respect, that the state ment in this passage that there was no evidence to show that Gama and Rustam had caused any specific injury to the members of the complainants party is entirely incorrect. In the passage which we have reproduced from the judgment of the Sessions Judge it is clearly stated, as a conclusion, that each of the five persons whom the Sessions Judge had picked out for conviction was said to have caused specific injuries to the complainants. A glance at the printed record would have shown, if' it was not possible to rely on the statement in the judgment, that what the Sessions Judge said was perfectly correct. Muhammad Yar named Rustam and Gama as his assailants, and he had three blunt weapon injuries. Muhammad Nawaz said that Gama bad hit him, and he had two blunt weapon injuries, Sarfraz said Gama had hit him and he had three blunt weapon injuries. Therefore, it appears that in further minimising the consequences of this grave crime to the assailants by acquitting Rustam and Gama, the learned .fudges have proceeded on a basis which is not a basis of fact. However, even in this Court, there is no motion on behalf of the State for rectifying these errors either by the High Court or by the Sessions Judge, and we only point then: out, as we con sider that it is a matter of great regret that settled principles. of constructive liability based on long and consistent interpretation of the provisions contained in the written penal law of the country, should have been so lightly ignored, and again, that there should have been two acquittals by the High Court which were devoid of any justification to fact, The processes' of justice lose a. material part of their force and effect it they are found by those most directly concerned to be operated without regard to principle and in disregard of proved facts. In the view we take, the three appellants have been rightly held, on the evidence, to have participated in the incident out of which this case arises, and in the absence of any motion by the State to interfere with the acquittals awarded, we must content ourselves with dismissing this appeal. A.H. Appeals dismissed.