P L D 1985 Lahore 584 (PLP)

Mian Aftab Farrukh, Amjad Ahad Sheikh and Afzal 1llahi Chauhan for Appellants. Ch. Imtiaz for the State. Date of hearing : 15th April, 1985. This Criminal Appeal arises from the judgment of learned Sessions Judge, Gujrat, whereby he on 12-1-1981 convicted Lal Khan and 9 others under section 148. under section 302/149, P. P. C. for causing the death of Ismail and under section 307/149, P. P. C. for murderous assault on Karam Din, Muhammad Fazal, Fazal Hussain, Shah Alam and Muhammad Aslam P. Ws. and sentenced them as under : (f) Under section 148, P. P. C. to six months' R. 1. each. (ii) Under section 302/149, P. P. C. to imprisonment for life and a fine of Rs. 5,000 in default thereof three years' R. I. each. They were directed to pay Rs. 5,000 each as compensation ;o the legal heirs of the deceased, in default thereof six months' R. I. ; (iii) Under section 307/149, P. P. C. to ten years' R. I. each and fine of Rs. 1,000 in default thereof one year's R. 1. each. They were directed to pay Rs. 1,000 each as compensation to the five injured witnesses in equal share, in default thereof three months' R. I. The sentences shall run concurrently.

2. The occurrence took place on 25-8-1979 at Peshiwela in the courtyard of the house of Karam Din complainant P. W. 6 situated in village Dinga, Police Station Dinga. The distance between the place of occurrence and the Police Station is six miles. F. I. R. Exh. P. A. was lodged at the Police Station by Karam Din P. W. 6 on the same day at 6-15 p.m. which was recorded by Abdur Razzaq S. H. O., P. W. 12.

3. The motive set up by the prosecution was that about a month before the occurrence, the cattle of Muhammad Aslam P. W. (not produced) had trespassed into fields of Fazal Dad appellant, whereupon Ibrahim appellant and Mushtaq, beat Muhammad Aslam P. W. In retaliation Karam Din P. W. 6 and Muhammad Aslam P. W. (not produced) gave beating to Fazal Dad appellant 5/6 days before the present occurrence, hence this murder.

4. As far the main occurrence, it has been stated that on the eventful time, Karam Din complainant alongwith Muhammad Ismail deceased, Fazal Hussain P. W. 8, Shah Alam P. W. 9 and Aslam P. W. (not produced) were sitting in his (complainant's) house and were talking to each other. The appellants variously armed appeared in the courtyard of the house. Lai Khan, Bahawal Bakhsh and Riyasat appellants were armed with hatchets, Muhammad Sadiq appellant was having a gun with him and the others were carrying Sotas. Muhammad Sadiq raised Lalkara to the effect that Karam Dad complainant and others be not spared. Muhammad Sadiq appellant fired shot on Karam Dad P. W. hitting him on face and chest. Bahawal appellant gave hatchet below on the head of Shah Alam P. W. Lal appellant inflicted hatchet blow on the head of Aslam P. W. Riyasat appellant gave hatchet blow on the back of the chest of Fazal Hussain P. W. Bahawal appellant inflicted hatchet blow on the head of Fazal Hussain. He also gave hatchet blow from the blunt side on the head of Ismail deceased who fell down. Fazal Dad then gave `hug' with his stick on the left side of the head of Ismail, when Muhammad Fazal P. W. came to the spot, he was given stick blow on his head by Muhammad Hussain appellant. Liaquat appellant also gave a stick blow on his shoulder. Muhammad Iqbal, Abbas and lbrahim appellants injured the witnesses with their sticks. The occurrence was atso seen by Ghulam Rasool P. W. The appellants then left the place of occurrence taking away the weapons with them. Ismail was removed to the hospital where he sccumbed to the injuries. The case was originally registered under section 307/149/ 148, P. P. C. On the death of Ismail section 302, P. P: C was added. Dr. Rashid Ahmad P. W. 5 conducted post-mortem examination on the dead body of Ismail on 27-8-1979. He found the following injuries : (I) Swelling 4" x 3- on right side of head. (2) Lacerated wound 1 j;" x f' x scalp deep on the top of head. (3) Swelling 4" x 2" on left side of hand. (4) Swelling on the top of head continuous within injury No.

2. On dissection he found fracture of the frontal bone under injuries Nos. 2 and

3. The skull wound on the right side was also found fractured under injury No.

1. The right temporal parietal suture was separated and there was fracture. There was present clotted blood in the skull. The brain matter was depressed at the corresponding side. In his opinion the death was due to shock and haemorrnage as a result of injuries which collectively had led to shock and haemorrhage. The time between the injury and the death was 32 to 36 hours. The duration between the death and the post-mortem was 14 to 15 hours.

5. The Doctor had also examined Ismail when he was alive on 25-8-1979. At that time he had found the injuries which he subsequently found at the time of post-mortem examination. The Doctor had also examined the injured witnesses. He found three simple injuries caused with blunt weapon on Muhammad Fazal P. W. He found one incised wound and one lacerated wound, both simple in nature, on the person of Muhammad Aslant P. W. Out of the two injuries, one was caused by sharp-edged weapon and the other by blunt weapon. He found three simple injuries on the person of Fazal Hussain P. W. Out of which two injuries were caused by sharp-edged weapon and the third with bunt weapon. He found two simple injuries on the person of Snah Alam P. W., one caused by sharp-edged weapon and the other by blunt weapon. He found punctured wounds on the cheek and forehead of Karam Din P. W. which were caused by blunt weapon and were simple in nature.

6. The appellants except Ghulam Abbas were arrested on 28-8-1979 by Abdur Razzaq S. H. O., P. W.

12. Ghulam Abbas was arrested on 8-9-1979. On 1-9-1979 Riyasat, Lai, Fazal Din and Bahawal Bakhsh appellants led to the recovery of blood-stained hatchets P. 7, P. 8, Sota P. 9 and hatchet P. 10 which were taken into possession vide memoranda Exh. P. X., P. Y., P. 7_. and P. A. A. respectively attested by Qadir Dad P. W. 11 and Fazal Dad (not produced). The memoranda were prepared by Abdur Razzaq S. H. O., P. W.

12. The Serologist report Exh. P. C. C. is in the positive. Sadiq appellant got recovered gun P. 9 from his house on 1-9-1979 which was taken into posses3ion vide memo. Exh. P. Q. Liaqat Muhammad Hussain, Ibrahim and lqbal appellants got recovered Sotas P. 3 to P. 6 respectively. The Sotas were not stained with blood. On 8-9-1979 Ghulam Abbas appellant led to the recovery of Sota which was taken into possession vide memo. P. R. The witnesses of all the aforesaid recoveries are the same.

7. To prove its case, prosecution examined 12 witnesses. Karam Din P. W. 6, Muhammad Fazal P. W. 7, Fazal Hussain P. W. 8 and Shah Alam P. W. 10 have given the ocular account of the occurrence. They have supported the prosecution case on all material points. They claim to have seen the appellants variously armed causing the death of Ismail and injuries to the prosecution witnesses. Qadir Dad P. W. 11 has supported the recovery of weapons from the appellant. Abdur Razzaq S. H. O., P. W. 12 had effected recoveries from the appellant. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr. P. C. the appellants denied all incriminating circumstances. They raised plea of false implication on account of infirmity. In defence no witness was produced.

9. The learned counsel for the appellants contends that prosecution has failed to prove its case beyond reasonable doubt inasmuch as the witnesses are related and inimical as well ; that there is no independent corroboration of the ocular evidence qua each appellants. In the alternative the learned counsel argued that the offence committed by the appellants is not a murder and at the worst falls within the ambit of section 304-11, P. P. C. in that Bahawal appellant, had not used the sharp edged side of the hatchet. On the other hand the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant has also requested for enhancement of the sentence of the appellant.

10. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellants. I find that it is a case of prompt F. I. R. and daylight occurrence. The occurrence toots place at Peshiwela and the F. I. R. was lodged at 6-15 p.m. on the same day. The distance between the place of occurrence and Police Station is six miles. There is nothing on the record to show that the F. 1. it. was not prepared at the time and pace as it indicates. In the F.

1. R. the names of the witnesses, the names of the appellants, the weapons carried by them and the manner of the occurrence are detailed. This valuable piece of evidence can be used to corroborate the statement of the complainant. The eye-witnesses namely Karam Din P. W.

6. Muhammad Fazal P. W. 7, Fazal Hussain P. W. 8 and Shah Alam. P. W. 10 have involved the appellants in the occurrence. They are the injured witnesses. By the fact of injuries on their persons, their presence on the spot at the time of occurrence is very much established. They fully anew the appellants before the occurrence and as such there was no difficulty in the identification of the assailants. 1 do not see any inherent infirmity in their statements. The number of the injuries and the number of the accused named by them do commensurate. 1'he recoveries of the blood-stained weapons also corroborate the prosecution version. The learned counsel has failed to point out material contradictions, major discrepancies and dishonest improvement in the statements of the eyewitnesses. The appellants have failed to rebut prosecution case and it evidence. For all these reasons, I am convinced that the deceased and injured prosecution witnesses received injuries at the hands of the appellants.

11. This brings me to the alternative plea raised by the counsel for the appellants i.e. the nature of the offences committed by each of the appellants. In order to determine the intention of a person it is seldom that one can expect to find positive affirmative evidence and as such the intention has to be gathered from the conduct of the accused causing fatal blows and the attending circumstances. I find that although Bahawal appellant had used the blunt side of the hatchet for causing the head injury of the deceased yet he can safely be burdened with intention of causing his death inasmuch as he used the blunt side of the hatchet with sufficient force on the victim's head causing fractures of frontal, temporal parietal and skull bones. The location of the injury selected, the force applied, the kind of weapon and the damage done by the blow to the deceased indicate that Bahawal appellant bad no intention other than that of causing the death and in any case he can be saddled with intention of causing such bodily injury as he fully knew to be most likely to cause the death and as such there is no doubt in my mind that the death caused by Bahawal amounts to murder punishable under section 302, P: P. C.. ` Since nine co-accused have also been convicted under section 302/ 149, P. P. C. for the act of Bahawal co-accused I have given anxious consideration to the question of common object of the assembly. It is well-known that before an accused can be saddled with constructive liability and convicted under section 149, P. P. C. for the act done by another accused, it must be satisfactorily proved that the person so convicted had common object of doing that particular act. No hard and fast rule can be laid down for the application of section 149, P. P. C. and each case has to be determined on its own facts. From the peculiar circumstances of the case it appeal that the common object of the assembly was to teach lesson to Karam Din P. W. 6 and Muhammad Aslam P. W. who had beaten Fazal Da~ appellant 5/6 days before the occurrence ; that there was no serious enmity between the parties ; that they did not cause the death of Karam Din and Muhammad Aslam against whom they had the direct motive ; the appellants other than Bahawal did not cause any injury to the deceased. While giving injury on the head of the deceased with full force Bahawal had transgressed the object of the assembly and that none of the member of the assembly was carrying any fire-arm. In the circumstances it can safely be held that each member of the assembly fully knew that grievous injury was likely to be caused to the complainant party during the assault.

12. The upshot of the above discussion is that there are satisfactorily basis to uphold the conviction of Bahawal appellant under section 302, P. P. C. for the murder of Ismail and while giving the other co-accused namely Lal Khan, Fazal Dad, Muhammad Sadiq, Riyasat, Muhamma Ibrahim, Muhammad Hussain, Muhammad lqbal, Muhammad Liaqua and Ghulam Abbas' the benefit of doubt on the question of their constructive liability, their convictions under section 302/149, P. P. C. are se aside. Instead they are convicted under section 326/149, P. P. C. and sentenced to ten years' R. I. and a fine of Rs. 5,000 in default thereof two years' R. I. each. They shall also pay Rs. 2,000 each as compensation to the legal heirs of the deceased, in default thereof six months' S. I. Since the injuries found on the person of Karam Din, Muhammad Fazal; Fazal Hussain, Saah Alam and Muhammad Alam P. Ws. were neither grievous nor dangerous to life, therefore the convictions and sentences of all the appellants under section 307/149, P. P. C. are set aside. Instead they are convicted under seciion 324/1.49, P. P. C. and sentenced to two years' R.

1. The conviction and sentence under section 148, P. P. C. of all the appellants is maintained. The sentences shall run concurrently. The appellants Liaquat, Riyasat, Ibrahim, Muhammad 'Iqbal, Ghulam Abbas, Muhammad Hussain and Lal are on bail. They shall surrender immediately before the learned Sessions Judge, Gujrat who shall take them into custody and send them to jail for serving out the remaining sentence. 1n case these appellants do not appear within seven days of the receipt of this judgment, the learned Sessions Judge shall issue warrants for their arrest and detention. M. Y. H.????????? Appeal dismissed.