1984 PLP 823 (SCMR)

SHAFIUR RAHMAN, J.‑Leave to appeal was granted to the two convicts, Ahmad Ali convicted under section 302, P. P. C. and sentenced to death and Hakim Ali convicted under section 304, Part I and sentenced to life imprisonment went, to examine whether it was not a fit case where the conviction of the former should have also been under section 304, Part 1 and on that happening whether the latter was not entitled to a reduced sentence. One Nazir Hussain Shah had been granted Government land Plot No. 48 in Chak No. 84/ML, Police Station, Karor, Tehsil Leiah, District Muzaffargarh on installments. Abdul Jabbar (P. W. 7) was a tenant of that land and at one st5ge was also the special attorney of Nasir Hussain Shah. By a fresh power‑of‑attorney executed on 3‑7‑1973 Nasir Hussain Shah substituted Abdul Jabbar (P. W. 7) by another attorney Shah Muhammad accused. It appears that the grantee had disputed with Abdul Jabbar over the payment of Batai and it was claimed that Mohabbat Ali accused had purchased the grantee's rights in the land. This had led to the legal proceedings. In the first place Abdul Jabbar had instituted a declaratory suit that he was a prior purchaser of the same land which had been sold to Mohabbat Ali by Nasir Hussain Shah but that suit was dismissed. He had then filed a pre‑emp tion suit against the sale. In the meantime an application had been filed by Shah Muhammad his attorney against Abdul Jabbar claiming Batai from him and another application was filed by Abdul Jabbar on 2‑7‑1975 that there was a dispute amongst the land‑owners, that is, Nazir Hussain Shah as well as Mohabbat Ali were claiming landlord's shares from him and he wanted that it should be obtained from him through the revenue agencies and only the rightful owner‑landlord be given a share. On both the applications revenue authorities had passed the order directing that the produce should be held in Superdari. On the application of Shah Muhammad the Superdari to a number of persons including Mohabbat Ali was ordered while on the application of Abdul Jabbar, the Qanoongo, circle was ordered to take charge of the produce and to make the distribution of the shares. It was in this background that the occurrence took place on 25th of July, 1975. According to Abdul Jabbar (P. W. 7) on the 25th of July, 1975, at about Degarwela he saw a group of 15‑16 persons going towards his threshing floor where the work of cleaning and separating the wheat from the chaff was taking place and "Ghundis" were being made out. He had at once started for the Police Station Karor at a distance of about 12 miles, reached there at 6 p. m. and lodged a report which was recorded in the Roznamcha. Among the 16 persons seen by him the two appellants also figured. He got a report recorded in the Roznamcha according to which he made a complaint of the fact that these persons were going to the threshing floor in order to remove the produce from there forcibly. In fact the report which was recorded only mentions that these were the Persons who were troubling him about the produce and that he apprehended danger to his life at their hands and wanted that preventive action should be taken. At the same time that is at Degarwela Khushi Muhammad (P. W. 2) was on his way to his field which was adjacent to the threshing floor where the produce was being attended to. He saw that the ten accused, other than the two appellants and their companions namely Hakim Ali son of Shehab Din and Muhammad Ali, were present with camels, bags and arms like gun and soti and they had come to forcibly put the wheat in the bags, to place them on the camel and to take them away. Muhammad Yusuf deceased and Ahmad Ali deceased who were attending to the wheat along with Yasin (P‑ W. 4) and Ibrahim (P. W. 5) asked them to desist from doing so and on the dispute taking place within minutes the appellants along with their two com panions appeared on the scene. Ahmad Din hail 4 spear in his band while his other companions had sobs. The appellant Hakim first gave a lathi blow on the head of Yusuf and then Hakim son of Snehab Din gave him a lathi blow on his back and after he had fallen Muhammad Ali gave a lathi blow on his face. Ahmad Din who had a spear in his hand gave the first blow to Ahmad Alt on his hack and then a second blow and while he was trying to pull out the spear its handle got separated from the blade. Ameer gave a soti blow to Yasin (P. W. 4) on the back. Thereafter the other group of accused persons removed the wheat. Ahmad Ali died at the spot. Yusuf died on way when he was being removed from the spot and his dead body was brought back. After the accused persons had disappeared from the scene Khushi Muhammad went and lodged the first information report about the occurrence which was recorded a t the police station at 7 p. m. In the absence of a Senior Police Officer at the police station the first information report was recorded by Muhammad Ameen (A. S. C. P. W. 10). Shah Alam Khan Niazi (P. W. 11) S. H. O. of another police station was deputed to take up the investigation of this case as there was no regular S. H. O. posted at Police Station Karor at that time. He was able to reach the spot on the 26th of July, 1975, and attended to the dead bodies and after preparing the injury statement and the inquest report sent the dead bodies for their autopsy. He made the usual recoveries of the blood‑stained earth and on arrest recovered sotis from some of the accused and also the bags of wheat which had been removed from the threshing floor. The dead body of Muhammad Yusuf had the following injuries‑ "(1) A contused wound 2.1/2" X 1/2" X bone deep on the top of head, left side, obliquely 5' above the left ear, haematoma of scalp, fracture of both parietal bones extending to the base of skull was present extensive haemorrhage into the brain and skull cavity present. Bleeding from nose present. (2) A contusion 1' x 1" on the right side of forehead just above the inner end of right eye‑brow. (3) A contusion mark 5' x 2" on the back of outer side of right chest, obliquely in the middle part." Ahmed Ali's dead body had the following injuries‑ "(1) A stab wound 2" x 1" abdomen deep of right side of abdomen, lower part inguinal region. Small intestines were protruding out. Small intestines cut. Faeces and blood present in the abdomen corresponding of Kurta, Bunyan and Chadar are cut and blood stained. (2) A stab wound 2' x 1/2" x abdomen deep on the outer and lower part of left chest muscle. 9th rib was cut and fractured. Diaphragm was cut splenic vessels were cut. The blood was full under the diaphragm left side of abdomen. Wound was oblique downwardly into abdomen. (3) An abrasion 1' X 1/2" and contusion 2" x 1" on the front of right shoulder outer clavicular region corresponding part of Kurta and Bunyan were cut and blood‑stained against Injury No. 2 also." Dr. Riaz Hussain Khan had examined Muhammad Yasin (P. W. 4) on the next day and found the following injury on his person

(1) A contusion 2‑1/2" X 3/4" on the upper part of posterior surface right chest 1‑1/2' lateral to vertebra) column," Hakim Ali son of Noor Muhammad the appellant had the following injuries on his person‑ (1) A lacerated wound 1‑1/4' x 1/4" skin deep on left side of head 4" above the root of left ear. (2) An abrasion 1/2" X 1/2' on posterior surface of left side of chest 1" lateral to medial angle of left scapula. (3) An abrasion 1‑1/4' X 1/4' on posterior surface of left shoulder. (4) An abrasion 1‑3/4" X 1/8" on left side of back 1/2" lateral to vertebral column." Hakim Ali son of Shahab Din had the following injuries on his person‑ "(1) An abrasion 1/2" X 1/4' on posterior surface of right chest opposite the inferior angle of right scapula. (2) An abrasion 3" X 1 /4" on right side of back 3' lateral to vertribral column." Hakim Ali the appellant admitted his relationship with three of his associates but denied their relationship with the other accused tried along with them. He denied having joined others with a view to remove the produce from threshing floor by use of force and he also denied having taken part in the occurrence. However, he explained the case against him as also the injuries on his person by stating that‑ "I was working in a field at a distance of about two Acres from the place of occurrence when I heard alarm and commotion at the scene of offence and I went there and was injured." He explained the case against him on account of enmity with his brother Muhammad Ali whom Abdul Jabbar (P. W. 7) suspected of maintaining illicit relationship with his wife. Ahmed Din appellant made the same statement about his relationship with the others and stated that he had been falsely implicated in the case on account of enmity with Muhammad Ali. The learned Sessions Judge who tried the fourteen accused held that the presence and participation of five of them was not made out and giving benefit of doubt acquitted them. All others were found guilty of having formed an unlawful assembly the common object of which was to forcibly remove the wheat from the threshing floor for which all of them were held guilty under section 382/149, P. P. C. and convicted accordingly and sentenced to 1 year's R.

1. They were also found for that reason guilty of the offence under section 148, P. P. C. and were convicted and sentenced to 6 months' R. I. As regards the appellants, they alone were held guilty for the more serious offences on the finding that there was a sudden fight in which Ahmed Din by repeated use of spear caused the death of Ahmed Ali acting cruelly and had taken undue advantage and, therefore, forfeited the benefit of Exception IV to section 300, P. P. C. He was therefore found guilty of the offence under section 302, P. P. C. and convicted and sentenced to death. The other appellant was found to have not acted cruelly or taken undue advantage because he gave a single blow on the head which proved fatal and he was accordingly held guilty under section 304, Part I, P. P. C. and sentenced to imprisonment for life and both the appellants were ordered to pay a fine of Rs. 500, or in default to suffer six months' R. I. They were also directed to pay Rs. 500 as compensation or in default to suffer six months' R. I. They were also directed to pay Rs. 500 as compensation to the heirs of the respective deceased. On the same reasoning the accused Hakim Ali son of Shahab Din and Muhammad Ali both belonging to the group of four of the appellants were convicted under section 323, P. P. C. and were sentenced to R. I for one month. The High Court maintained the conviction and sentence as awarded by the trial Court but made the observations that the learned Sessions Judge had very leniently punished him under section 304, Part 1, P. P. C. and "in our view all the accused were liable to be punished under section 302, P. P. C. read with section 149, P. P. C. as all of them were the members of an unlawful assembly who in prosecution of their common object launched an attack on the complainant party resulting in the death of two persons." While granting leave to appeal to the appellants what was particularly noted was an admission made by Khushi Muhammad (and also by Muhammad Ibrahim (P. W. 5) that Ahmed Din had used the spear only when a derogatory remark was hurled at him by Muhammad Yasin (P. W. 4) or Ahmed Ali or by both of them with regard to an earlier event, and after the appellant Hakim Ali had been injured. The peculiar feature of the case is that the learned trial Judge in recording the findings and arriving at the guilt of the other accused manifestly came to contradictory conclusions. This is obvious in two respects. Firstly the two appellants along with the other accused who were all convicted under sec tion 382/149, P. P. C. were found to be having the common object of forcibly removing the produce from the threshing floor notwithstanding that it at that time stood attached and nobody could interfere with the custody of the Commissioners. The trial Court also came to the conclusion that there was a sudden fight. It is inconsistent conclusion because if the accused were manifestly the aggressors, violaters of law, had the common object of commit ting dacoity or theft, any resistence met could not be explained or dealt with as an act of self‑defence or as a case of sudden fight. It would be, on the other hand, an act of self‑defence on the part of persons resisting the achieve ment of the common object of such an unlawful assembly. The second contradictory finding will appear if I quote what the learned trial Court concluded about the circumstances in which the occurrence took place‑ "It appears plausible that the complainant party had the intention of removing the wheat crop from the spot or the accused bad such apprehension and they went to the spot to check the complainant party from doing some objectionable thing and then there was exchange of abuses and the occurrence took place. It is in the F. I. R. that first the ten accused had come to the spot and then they were followed by accused Hakim Ali, Muhammad Ali sons of Noor Ahmad, Hakim Ali son of Shahab Din and Ahmad Din son of Abdul Rehman. It is also in evidence that these four accused have got lands near the place of occurrence and the possibility of these accused having been attracted to the spot on the alarm also cannot be ruled out as suggested in the cross‑examination of the witnesses. The common object of the accused party was, therefore to protect their right in the crop as accused Muhabbat Ali bad no other land and it is with this object that the accused went to spot. At the spot the parties exchanged hot words as is admitted by complainant Khushi Muhammad P. W. 3 and then the occurrence took place." The trial Court recorded elsewhere that‑ "The object of the accused was to remove the wheat from the spot. The disputed wheat was admittedly under the supervision of Superdars and no party had right to remove the wheat crop and the accused also came to the spot with the object to removing the wheat through the Boras in which the wheat was removed were not secured by the police. The stolen wheat was found from the houses of accused Muhabbat, Shah Muhammad and Muhammad Hussain." After recording this the Court recorded :‑ "After the sudden quarrel the assembly became unlawful and criminal force was used and thus the accused Ahmad Din Hakim Ali son of Noor Ahmed, Hakim Ali son of Shahab Din, Muhammad Ali, Amir Ali, Shah Muhammad, Muhabbat, Noor Nabi and Muhammad Hussain are guilty of rioting under section 148, P. P. C. and are sentenced to R. I. for six months each. The High Court did not specifically attend to the plea of the appellants taken in the trial Court and found plausible by the trial Judge that they were not the companions of the other accused, had not come along with them but were attracted to the scene when the dispute over the removal of the produce took place and before that time they were in their fields quite close to the spot and had rushed from there. The High Court came to the conclusion that all the accused including the appellants had the object of removing the produce forcibly and in achieving that unlawful object while they were armed with deadly weapons two deaths were caused and all of them were criminally responsible. It was the procedural constraint which prevented the High Court from interfering with the acquittals otherwise the findings had been recorded in very positive terms‑ The question which requires examination and which was attended to by the trial Court and considered plausible was whether the appellants did share the common object of the other accused of forcibly removing the produce from there. It has been admitted by all the witnesses produced at the, trial and even by the Courts that they had no dispute with the complainant or the deceased over the share of the produce. Actually there were two sets of accused one set comprised 10 persons of whom five were acquitted and the other five were held to be directly involved, to be having motive, and to have come with preparation and with weapons for removing the produce. The second set of accused comprised two appellants and their close relatives Muhammad Ali and Hakim Ali son of Shahab Din. They had no motive. They did not come with any preparation and they did not take part in the removal of the wheat from the threshing floor. It is also their case that they joined when the dispute over the removal of the produce started between the first group of accused and the witnesses present at the threshing floor and when they arrived at the scene they were involved in the altercation or fight or attack on Yusuf and Ahmad Ali. If this part of the case of the appellants and their two associates is considered plausible, consistent and tenable then certainly they will not be guilty of the offence under section 382/ 1 49, P. P. C. or 148 and on that score they could plead that their involvement was per chance unmotivated, without preparation, at the spur of the moment and that they did not share any intention not even of causing death. There are on record the statements of two witnesses Khushi Muhammad and Muhammad Ibrahim (P. W. 5) as to what happened immediately before the 1:0al injuries were given to the two deceased by the appellants, and how the second set of apparently unconnected accused came there. About their vicinage Khushi Muhammad stated as follows‑ "The accused Muhammad Ali, Hakim Ali son of Noor Ahmed and Hakim Ali son of Shahab Din and Ahmad Din reside at a distance of 2 or 2‑1/2 squares from the place of occurrence. It is correct that the lands of these accused are at a distance of 3 or 4 Killas from the place where occurrence took place." About their appearance on the scene he stated as follows‑ "The accused Hakim Ali son of Noor Ahmad, Muhammad Ali, Hakim Ali son of Shahab Din and Ahmad Din came two to four minutes after the arrival of other ten accused. When all the fourteen accused gathered at the spot at that time I was at a distance of 14/15 Karams from the place of occurrence. The correct position that first ten accused came and then the other four accused." About their previous relationship he stated as follows‑ "The accused Hakim son of Noor Ahmad, Hakim Ali son of Shahab Din and Amir Ali had no previous dispute with P. W. Abdul Jabbar or deceased Ahmad Ali or deceased. However deceased Ahmad Ali and accused Ahmad Din bad dispute with each other. The deceased Ahmad Ali is real brother of P. W. Yasin. About 1 or 1‑1/2 months before the occurrence the accused Ahmad Din was taking the wife of P. W. Yasin to the house of her parents when be was detected in the way and the matter went to the village Panchayat wherein as punishment the face of accused Ahmad Din was blackened. The Panchayat was called at the instance of deceased Ahmad Ali as he was elder brother of P. W. Yasin. After the Faisla in Panchayat, on dispute between deceased Ahmed Ali and accused Ahmed Din bad taken place." About the actual attack and injury he stated as follows‑ "When accused Ahmad Din came to the spot P. W. Yasin had said who come those face was blackened kale mounh wala. I heard this talk when I was at a distance of 15/20 karams from the place of occurrence. When these words were uttered by deceased Ahmad Ali at that time the injured Yusuf had not suffered any injury. The injured P. W. Yasin retreated back on uttering these words and in the meanwhile the deceased Ahmed Ali came forward and gave a Karchi blow to accused Hakim son of Noor Ahmad and then the deceased was given injuries with spear by accused Ahmed Din." Muhammad Ibrahim (P. W. 5) stated as follows‑ "The accused started filling the bags after the occurrence because when the accused went to the spot and tried to fill the bags there was exchange of hot words and then occurrence took place. The deceased Ahmad Ali had given a Lalkara to accused Ahmad Din that Oh man with black face you have come. I do not know whether accused Ahmad Din give and reply to this Lalkara. The deceased Ahmad Ali had not given this Lalkara and it has been wrongly written above this Lalkara was given to accused Ahmad Din by P. W. Yasin, stayed there at the spot after giving me this Lalkara. The deceased Ahmad Ali was at that time near deceased Yusuf and P. W. Yasin was standing at a distance of 8/9 steps from deceased Abmad Ali. The accused Hakim Ali son of Noor Ahmad had fallen on the ground on suffering a blow of Karchi on his head." The version given by material prosecution witnesses like Khushi Muhammad (P. W. 2), Yasin (P. W. 4), Muhammad Ibrahim (P. W. 5) and Abdul Jabbar (P. W. 7) itself establishes that the set of four accused, comprising the two appellants and Amir Ali and Hakim son of Shabab Din formed a group distinct from the rest. They were not related to others. They were not involved in their dispute over land or its produce. They had not come along with the others to the spot. The strong likelihood of their being attracted to the spot from their neighboring fields after four or five minutes of the arrival of the first group and after a dispute had arisen over the removal of the produce existed. On their arrival at the spot they themselves did not take the initiative. It was Ahmed Ali deceased or Muhammad Yasin (P. W. 4) most probably the latter, who uttered the highly derogatory and provocative though true remarks "Oh come whose face was blackened kale mouh wala". This was not the end. The second act was that of Ahmed Ali deceased who gave a Karchchi blow to Hakim appellant causing "a lacerated wound 1‑1/4" x 1/4 skin deep on left side of head 4" above the root of the left ear". It was then that Yusuf was given stick blows resulting in his death and Ahmad Ali gave Barchi blow to Ahmed Ali. While the other set of accused busied themselves in accomplishing their object, via. of removing the produce from there for which they made two trips. This set of four accused played no part in removal of the produce. The law with regard to unlawful assemblies is that no one is a member of an unlawful assembly unless he is aware of the facts that render the assembly an unlawful one and intentionally joins or continues in it. Further, in order to find the common object of an unlawful assembly at the beginning it is not proper merely to take all the offences committed and to infer that all these were from the beginning parts of its common object. The inference normally has to be based on more evidence than the mere acts themselves. Applying these principles to the facts of this case, it is clear that the appellants were not the members of that unlawful assembly which had the common object of forcibly removing the produce from there. Their arrival at the spot was on the alarm raised and both gave fatal blows when one of them (Hakim Ali) had been injured and the other (Ahmed Ali) had been insulted. Hakim Ali appellant, as his injuries show, was involved in a fight and had himself received one lacerated and three superficial abrasions. He gave only one soti blow on the head so his act was rightly treated to be one under section 304, Part

1. As regards Ahmed Din he gave two fatal blows with a spear when a highly derogatory remark was hurled at him and his companion was given a Karchchi blow. His act would not be covered by Exception I to 300, P. P. C. nor would be in defence of his companion, because Ahmed Ali was, from all accounts, retreating thereafter. Nevertheless as he was not a member of the unlawful assembly, had neither a motive, nor planned the attack, and was provoked by the derogatory remark, on conviction under section 302, P. P. C. the sentence of death is not called for. On such reduction of his sentence suitable adjustment in the sentence of Hakim Ali is also called for. The result is that the appeal of Ahmed Din against conviction under section 302, P. p. C. is dismissed but the sentence awarded to him is altered to one of life imprisonment and a fine of rupees ten thousand and in default rigorous imprisonment for two years. In addition be shall pay rupees ten thousand as compensation under section 544‑A, Cr. P. C. to the heirs of deceased Ahmed Ali or in default suffer six months' R. I. The amount of fine, if recovered, shall also be payable as compensation to the heirs of the same deceased. The appeal of Hakim Ali against conviction under section 304, Part I, P. P. C. is dismissed. The sentence is altered from one of life imprisonment to rigorous imprisonment for ten years with a fine of rupees five thousand or in default one year's R. I. Another sum of rupees five thousand shall be payable by him as compensation to heirs of deceased Yousaf under sec tion 544‑A failing which he shall suffer R. I. for six months. The amount of fine, if recovered, shall also be paid as compensation to the heirs of deceased Yousaf. The conviction and sentence of the two appellants under sections 148 and 382/ 149, P. P. C. in the circumstances to set aside. S. Q. Sentence reduced.