1969 P Cr (PLP)

Nazir Ahmad Khan, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Appellants. Malik Muhammad Nadir, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State. Dates of hearing : 31st March and 1st April 1969. SAJJAD AHMAD, J.‑Nur Dad, his two sons, Akhtar Hussain and Muhammad Safdar, and his nephews Sabir Din and Anwar Din (real brothers inter se), were found guilty of offences under sections 148, 307/149, 302/149 and 353/149, P. P. C. by the learned Sessions Judge, Jhelum, who sentenced Nur Dad to death and the rest to transportation for life each on the murder charge, and all of them to various terms of imprisonment on the other charges. The sentences of imprisonment were made to run concurrently. On appeal and reference the High Court upheld their con victions and sentences and confirmed the sentence of death passed on Nur Dad. All of them moved a petition to this Court for leave to appeal which was disposed of by an order, dated the 11th of January 1967. Leave was refused to Nur Dad but allowed in respect of the others to consider whether they had been rightly convicted under section 302/149, P. P. C. for the murder of Mansur Hussain Shah. The occurrence took place between 9‑00 and 10‑00 a.m. on the 25th of July 1965. P. W. Abdur Rehman, a bailiff of the civil Court at Chakwal had brought a warrant for executing a Court decree that was obtained by Mansur Hussain Shah, deceased, and his other brothers including Shabbir Hussain Shah, P. W. in Suit No. 256 of 1964 from the Court of the Civil Judge, Chakwal, which they had instituted against the aforesaid Nur Dad and Akhtar Hussain for the demolition of a wall and a door which they had put up on a common thoroughfare making it a part of their courtyard and thus blocking the plaintiff's passage to their house through that thoroughfare. The record shows that it was a consent decree which was awarded to the deceased and his brothers on payment of Rs. 150 as compensation to the defendants namely, Nur Dad and Akhtar Hussain. Apart from the civil litigation over this pathway, there had been a criminal case against Akhtar Hussain, appellant and his relations Hussain Bakash and Shah Nazir under section 325, P. P. C. in November 1961, for having assaulted and grievously injured Shabbir Hussain Shah P. W. This had ended in their conviction by the trial Court, which was set aside on appeal except as regards Shah Nazir. According to the prosecution case when P. W., Abdur Rehman, arrived and informed Nur Dad about his mission, all the accused persons came out of their house armed with lathis and pushed him back and told him that they were not prepared to surrender possession of the passage, unless they were killed or they kill somebody. Manzur Hussain Shah, deceased, intervened to say that the accused should not disobey the orders of the Court. On this Nur Dad gave him a stick blow on the head which proved fatal. Shabbir Hussain Shah, P. W., stepped for ward to rescue his brother but all the five accused started giving him blows with lathis. The post‑mortem examination of Manzur Hussain Shah revealed that he had suffered one injury only which was a contusion on the top of his head and which fractured his skull bone into several pieces. Shabbir Hussain Shah, P. W., on examination was found to have received 11 injuries caused by a blunt weapon which were all contusion and contused wound on different parts of his body including one contused wound on his head 2 " x " x bone deep on the left fronto parieto region. It is not necessary to dwell on the facts of this case which have been accepted by the Courts below on reliable evidence produced in the case. The limited question on which leave was granted by this Court pertains to the legal and constructive liability of the appellants for the murder of Mansur Hussain Shah as members of an unlawful assembly which was constituted by them along with Nur Dad who was directly responsible for causing this murder by giving a single fatal blow to Manzur Hussain Shah with his lathi. The common object of the unlaw ful assembly as alleged by the prosecution admittedly was the prevention of the demolition of the wall and the door for which the bailiff had come to the village armed with Court's warrant in that behalf. As members of an unlawful assembly each one of them would be liable for any act committed by any one of them or which they knew was likely to be committed in prosecution of their common object. When they came out of their house armed with lathis their object clearly was to resist the execution of the warrant and to use force if necessary. They knew that the lathis which they were carrying were to be used in case the prosecution party persisted in demolishing the wall and putting out the door, and they must share responsibility for each others acts to that extent. However, the degree to which this responsibility can be extended, is a matter of deduction from the circumstances of each case. In this case while it could easily be anticipated by all of them that the use of the lathi by any one of them might cause grievous hurt, it cannot be said that all of them could have known that Mansur Hussain Shah, deceased, may be killed as a likely result of the violence, which could or was intended to be employed. According to the evidence it was Nur Dad alone who had, on the sudden intervention of Mansur Hussain Shah struck him a fatal blow and none of the others had joined him in any manner in beating Mansur Hussain Shah. In our view, therefore, the appellants can rationally and reasonably be burdened only with the knowledge that resort to violence by any one of them would result in grievous injuries to persons of the opposite‑party who may engage themselves in the demolition of the wall and the door in spite of their objection and effort not to allow the bailiff to execute his mission. The murder of Mansur Hussain Shah caused by Nur Dad was thus beyond the appellants' anticipation or knowledge and they cannot share its responsibility with that of Nur Dad. The appellants cannot, however, escape their liability under section 325/149, P. P. C. as they could not have failed to realize the likelihood of grievous hurt being caused to the other side including Mansur Hussain Shah by the use of weapons which they were carrying. In this view of the matter we would alter the conviction from section 302/149, P. P. C. to section 325/149, P. P. C. and reduce the sentences of transportation for life to five years' R. I. on the count of the murder of Mansur Hussain Shah. Similarly, we think that in view of injuries suffered by P. W. Shabbir Hussain Shah out of which only one was on the head, it cannot be said that the accused had the intention or possessed the knowledge to kill him to bring their action within the mischief of section 307/149, P. P. C. His head injury was found to be grievous on Ex‑Ray, but the rest of his injuries were not on any vital part of the body. These injuries do not indicate that the accused had attempted on his life to kill him. At the maximum all of them, notwithstanding who caused the grievous hurt, are responsible for that result, we would, therefore, alter the appellants' convic tion on this count also from section 307/149, P. P. C. to section 325/149, P. P. C. and reduce their sentences to five years' R. I. from 7 years' R. I. as awarded by the learned trial Judge and confirmed by the High Court. In the result we accept the appeal to the extent as indicated above. The convictions and sentences of the appellants under sections 148, 353/149 are maintained. The sentences now imposed on them under section 325/149, P. P. C. (on two counts) for the death of Mansur Hussain Shah, deceased, and for injuries to Shabbir Hussain Shah, P. W., and also the sentences awarded to them under sections 148/149 and 353, P. P. C. shall run concurrently. Appeal partly accepted.