P L D 1971 Karachi 68 (PLP)

GHULAM RASOOL K. SHAIKH, J.--‑The appellants were convicted by the learned Additional Sessions Judge for an offence under section 302/149, P. P. C. and sentenced to transportation for life for committing the murder of Abdul Sattar. The incident had taken place on 3rd October 1965 at 11 a.m. in Liari river bed behind Bismillah Hotel situated in Haji Para and the first report was lodged by Munir Khan at 12‑55 p.m. and it was recorded by Mr. Mumtaz Ahmed A. S. I. P. On 3rd October 1965, at about 11 a.m. there was a riot between Mohajirs and Bengalis near Bismillah Hotel. It is said that about 400 or 500 people armed with weapons took part in this riot which lasted for about 45 minutes. Some persons on both sides received injuries. Mazhar Hassan Constable of Pak Colony Outpost who was on patrol duty learnt about this riot and rushed to the outpost and informed Mr. Ghulam Ali S.

1. P., who after contacting the Golimar Police Station on telephone from Ghani Dyers Mills picked up Mazhar Hussain, Muhammad Yakoob and Shafi Muhammad Constables as well as Sultan Head Constable and proceeded to the scene of riot and found that Mohajirs and Bengalis were busy in fighting. The S. I. P and his party dispersed the rioters and arrested 8 men from each side. In the mean time Liaqat Beg S. H. U., Golimar Police Station with his party arrived and the persons who had been arrested were handed over to him. It was found that some Bengalis were going towards the river side and apprehending further trouble Mr. Ghulam Ali and his men followed those persons. Abdul Sattar was coming from the other side and those Bengalis who were 8 in number and were armed with blunt weapons pounced upon Abdul Sattar and inflicted injuries. Abdul Sattar on receiving the blows fell down. Those Bengalis tried to escape but they were pursued by Mr. Ghul sm Ali and his men and were captured. They are the present appellants and one other person by name Shariatullah who is since dead. This incident was also witnessed by Muhammad Munir, Sultan Mian, Muhammad Mumtaz, Sultan Ahmed, Shafi Muhammad and Yasin Khan. Muhammad Munir was sitting in his house when he heard the commotion and came out and witnessed the incident. Sultan Mian and Yasin were accompanying the deceased to Bismillah Hotel to take tea and they were about 10 or 15 paces ahead of the deceased at the time when the deceased was attacked. Muhammad Mumtaz was going to Bismillah Hotel to meet his brother when on the way this incident was witnessed by him. The blunt weapons were recovered from the possession of the appellants Amir Hassan, Nazaruzzaman and Faiz Ahmed as well as from Shariatullah. The appellants and the culprit were sent to the police station while the injured was removed to the hospital. Muhammad Munir lodged the first report. On the same day Abdul Sattar injured died in the hospital at 1‑30 p.m. Post‑mortem examination was performed on the following day. After usual investigation the appellants and Shariat Ullah were challaned. During the pendency of the committal proceedings Shariat Ullah died. The present appellants were committed to the Court of Sessions to stand their trial. The case of the appellants was of bare denial. They denied that they participated in this crime or were captured at the spot, but their plea was that they had been arrested by the police from their respective houses. They did not examine any witness in defence. The prosecution case was based mainly on the ocular testimony of four public men, namely, Munir, Sultan Mian, Muhammad Mumtaz and Yasin Khan, and the policemen namely, Mazhar Hussain Constable, Muhammad Yakoob Constable, Shafi Muhammad Constable, Sultan Ahmed Head -Constable and Ghulam Ali S. I. P. coupled with the fact that the appellants were caught at the spot and blunt weapons were secured from three of them, namely, Amir Hassan, Nazaruzzaman and Faiz Ahmed. The learned Additional Sessions Judge, on the assessment of the evidence expressed his reluctance for placing reliance upon the evidence of the four public men on the ground that they were interested in the sense that they were Mohajirs and the deceased was also a Mohajir and the original fight had taken place between Mohajirs and Bengalis and all the present appellants were Bengalis. In this connection the learned Additional Sessions Judge observed that although these persons would be natural witnesses because the fight was between the Mohajirs and Bengalis but at the same time there was a risk in accepting their evidence because naturally their sympathy would be on the side of Mohajirs, as a Mohajir who was killed. The reasons given by the witnesses for their presence at the scene of offence also did not find favour with him. With regard to the evidence of Sultan and Yasin he stated that their evidence appeared to be in natural as when there was rioting between Mohajirs and Bengalis they could not think of going to take tea with the deceased at Bismillah Hotel near which the rioting was taking place. It was further observed that although they claimed to be accompanying the deceased yet the deceased was 10 or 15 paces behind them. It was also unthinkable that the Bengalis would spare them if they had been with the deceased. With regard to the evidence of Mumtaz it was observed by him that it was equally unnatural as he could not be expected to proceed to Bismillah Hotel to meet his brother at a time when there was a fight between two sections of people, and further there was omission in his police statement with regard to his proceeding to Bismillah Hotel to meet his brother. Similarly the learned Additional Sessions Judge brushed aside the evidence of Munir Khan on the ground that it was equally unworthy of credit and could not be believed. So he finally observed that it did not appeal to common sense that someone from the parties would be at that time thinking to take tea in Bismillah Hotel and someone to have thought to meet his brother in that hotel. So their evidence was false. The learned Additional Sessions Judge also observed that there was doubt in his mind whether the witnesses had witnessed the incident and if they had whether they had recognised the assailants and the deceased and how many of them had attacked the deceased. It was, therefore, not safe to rely upon their evidence. So far the remaining 5 police witnesses were concerned no inherent improbability was discovered in their evidence and, therefore, their evidence was accepted, specially when, it received corroboration from the arrest of the appellants at the spot and the recovery of the blunt weapons from the possession of three of the appellants. We have considered the evidence of the 9 witnesses and we are unable to share the view that the evidence of the four public witnesses could not be relied upon simply because they were Mohajirs and one of the Mohajirs was killed by the appellants who were Bengalis. They had no reason to falsely implicate the appellants. Sultan Mian of course was maternal uncle of the deceased but none of the remaining three persons were related to him. Sultan Mian and Yasin of course were following the deceased but that does not necessarily mean that all the three were not proceeding to Bismillah Hotel to take tea. Their evidence was also rejected on the ground that because of the previous incident which had taken place near Bismillah Hotel these persons could not be thinking of going to the Hotel. We do not find any inherent improbability in their going to the hotel. There is nothing in their evidence to show that they were earlier aware of the fight which took place between Mohajirs and the Bengalis. They were still at a distance of about 200 yards from the hotel when the attack was made upon Abdul Sattar. Even Abdul Sattar was admittedly on the spot where he was killed and where the witnesses also claimed to be. So if Abdul Sattar was proceeding to Bismillah Hotel no doubt can be entertained with regard to the other two persons. Similarly the evidence of Mumtaz was also not unnatural. So far Munir Khan is concerned his evidence could not be discarded. He was in his own house and not proceeding to Bismillah Hotel when he heard the commotion and/on coming out of the house he witnessed the incident. His presence was confirmed by Mazhar Hussain Police Constable. He was the person who had accompanied the police to the police station after the appellants were arrested and lodged the first report. It is also in the evidence of the police witnesses that several Mohajirs were standing at a short distance and had witnessed the incident. The observation of the learned Additional Sessions Judge that these witnesses could not be sure of the identity of the appellants has not impressed us at all. The appellants were captured at the spot and the witnesses had actually seen the incident as well as their arrest by the police. So the question of doubt regarding the indentity of the appellants did not arise. So far the police witnesses were concerned their evidence was accepted by the learned Additional Sessions Judge and we see no ground to disagree with him. The learned counsel for the appellants did not succeed in bringing out any circumstance to induce us to hold a different view. The police having come to know that a rioting was in progress these witnesses who were available at the police outpost immediately rushed to the spot where the original fight had taken place. They found the Mohajirs and Bengalis measuring strength and 8 persons from each group were arrested and they were sent to the police station. They further found that some Bengalis were running to the river side and apprehending further trouble they followed them when they found that they had poun:ed upon Abdul Sattar and belaboured him with the weapons which they had carried. All the appellants were arrested at the spot when they attempted to escape on seeing the arrival of these witnesses. This story told by the witnesses is natural and consistent with the circumstances of the case. The learned counsel for the appellants having failed to discern any interestedness in the evidence of these police witnesses, proceeded to assume certain possibilities. He urged that there was a general allegation of the blows having been given by the appellants, there was a possibility that the appellants were captured at random without any discrimination and the appellants were running due to the fear of the police. While agreeing that a kind of omnibus evidence has to be closely scrutinized to eliminate all chances of false or mistaken implica tion and mere assembly of the resident of a village cannot be condemned ipso facto as being members of an unlawful assembly but we are unable to bring ourselves to agree that any such possibility can be traced in the present case. The hinting at bare possibility unsupported by any evidence or circumstance, has no more value than a mere conjecture or surmise which calls for no serious consideration. The police witnesses had no hostility against the Bengalis nor they had any fancy for the Mohajirs. They had appeared at the scene to operate against the miscreants irrespective of the group to which they belonged, This is sufficiently reflected by the manner in which they acted at the main theatre of the outbreak of the armed conflict between the two groups. There was a large crowd collected but only a small number of persons actually engaged in the fight was arrested; 7 or 8 persons from each side. This circumstance, in our view, is enough to hit at the theory of possibility advanced by the learned counsel. Examining the possibility further, it would be found that the police witnesses stated in unmistakable terms that the appellants were the persons who had attacked the deceased and, therefore, they were captured. There was no other culprit besides the appellants and the person who is since dead. The appellants tried to escape not because there was simple terror in their mind without having taken part in this crime, but they tried to escape on seeing the police as they had assaulted the deceased and were guilty of the offence. It was further argued by the learned counsel for the ppellants that at least the appellants who had no weapon could not be associated with this assault. this argument is equally devoid of force. All the appellants had pounced upon the deceased and it is no wonder that although some of them had no weapon yet they may have surrounded the deceased in order to facilitate the attack on him by the persons who were armed with weapons. They were members of the unlawful assembly and when anything is done in prosecution of the common object of the assembly all are equally guilty whether they actually assaulted or stood by to render any assistance that may be needed. It cannot b said that in a situation which had arisen preceding the assault on the deceased they did not anticipate any resistence or trouble from the opposite group and they were unaware of the motive for attack on the deceased by the persons armed with weapons. They cannot be treated to be mere spectators nor they could be on their heels for a reason other than their own complicity in the assault. So from the circum stances it can be safely presumed that they had all joined to assault any Mohajir who may come in their way or happen to meet them. There is no doubt that the deceased was killed as a result of the injuries sustained by him. This received confirmation from the medical evidence. In this case two doctors were examined, one is Dr. Nuzhat Ara Aziz who had first examined the deceased when he was still alive and was produced in the hospital, while the other doctor is Major A. Hassan who had performed the post‑mortem examination. Dr. Nuzhat Ara Aziz found the following injuries: "(1) Two lacerated wounds on the top of skull 2" x " x skin deep each. (2) Lacerated wound on the right side of skull 4" x " x skin deep. (3) Lacerated wound on the back of skull 2 " x " x skin deep. (4) Abraided contusion on forearm 2" x 2". (5) Abrasion on right knee joint 1" x 1". According to the medical officer the injuries were caused by blunt weapon and the injured died at 1‑30 p.m. The cause of the death given by her is acute shock due to laceration of brain. She excluded the possibility of the injuries having been caused by the accident. Dr. A. Hassan held the post‑mortem examination on 4‑10‑65 at 9‑30 a.m. He found the injuries on the head stitched. According to his opinion the injuries were ante‑mortem and were caused by hard and blunt object. On internal examination the skull was deeply ecchymosed specially at the back. There was a 6" long fissured fracture and suture separation of the pariatal bones going into the fora‑men magnum. This fracture was located under injuries 1, 2 and

3. There was extensive sub‑dural and ab‑arechnoidal haemorrhage on whole top and the sides of the brain. The injuries on the head were individually sufficient in the ordinary course of nature to cause death which was due to shock as a result of the injuries. This brings us to the question as to what was the object of the unlawful assembly to determine the constructive liability of the appellants as the individual liability is uncertain. There were three injuries caused by blunt weapons on head and these were individually fatal but there were four persons who were armed with the weapons and one of them is dead. Although Mazhar Hussain witness attributed one head injury to Abdul Sattar appellant but he had made no such claim in the committal proceedings and, therefore, it is not possible to act upon this solitary and belated statement. Having regard to the uncertainty, the guilt of the appellants has to be founded on the constructive liability arising out of the common object of the assembly to be discovered from the surrounding circumstances. It was urged by the learned counsel for the appellants that notwithstanding the result produced by the assault on the victim, it could not be held on the basis of the evidence on record that the common object of the assembly was to commit murder or any such knowledge could be imputed but it was no more than causing the grievous hurt. He quoted certain authorities which would be dealt with in the end. On the other hand it was pointed out by the learned State counsel that the assault was preceded by a shout to kill and this was a strong circum stance illustrating the object of the assembly and additionally the result which was intended was accomplished. The learned Sessions Judge considered this question and found on the basis of the nature of injuries resulting in death within half an hour that the appellants had common object to kill the deceased. In our view this approach of the case by the learned Sessions Judge is clearly inadequate. The nature of the injuries without considering the surrounding circumstances is not enough, although this is a material factor to be taken into account and the Court cannot allow itself to remain unmindful of it. No reference to the shouting was made in the judgment for the obvious reason that this imputation appeared in the evidence of the private witnesses and their presence was considered doubtful. Section 149, P. P. C. deals with the constructive liability of the members of an unlawful assembly for the offence having been committed by one or more of the members of the assembly. For the purpose of that liability this section may be divided into two parts (a) the offence must be committed in prosecu tion of the common object of the assembly, or (b) the offence must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Manifestly the liability of every member extends not only to the acts contemplated by all but also to those offences which are likely to be committed in achieving the common object. It, therefore, follows that this section does not make the members liable' for every offence that may be committed by any one or more of them while the assembly is operating and carrying into effect the object of the assembly, unless the act falls within either of its two parts. Considering the effect of the section it must first be decided as to what is the common object of the assembly and after having reached a conclusion on that question, the next question which would follow is what was the liability of the mem bers of the assembly depending upon the intention or knowledge as regards the offence which may have been committed. These are questions of fact which are to be decided on consideration of the surrounding circumstances. Scanning the facts and circumstances of the present case in the light of the above principle, we feel hesitant to hold that either common object of the assembly was to kill the victim or the appellants knew that the murder was likely to be committed. In this behalf the main incident must be kept in view. It was a general outbreak of armed conflict between two factions of the people. The cause of this conflict is a mystery so far as the record of the present case goes. There is no indication available on record as to what was the origin of the unruly mob violence cut short by the timely action taken by the police. As we may understand, it‑seemed to be a sudden flare up in which both parties used blunt weapons whatever were available and possibly some carried no weapon. It is also to be presumed that some persons from each parties sustained injuries although the record is silent except pointing to a general statement that the parties were armed with sticks and clubs and were engaged in a fight. In the absence of any evidence, we are constrained to presume that the injuries inflicted by either party did not result in any death otherwise something should have appeared in evidence to establish the object of the assembly constituted mainly by the appellants who at the second stage assaulted the deceased as this act, although isolated in appearance, was in continuation of what had happened before. The tension had already mounted high and it culminated in the assault on the deceased who happened to pass that way while the appellants were retreating on the arrival of the police on the original spot. The assault on the deceased cannot be divorced from the main incident so far as the common object of the assembly is concerned. So the object of the appellants could not be different from the principal body of which they were originally members. The result may be unfortunate but its effect upon the liability of the appellants must be considered with reference to the common object of the assembly. True, intention can be presumed from the act itself but having regard to the circumstances, this may be attributable to the person or persons who actually caused the injuries and not to all the appellants. T hat position being uncertain, it cannot remain without effect upon the inference to be drawn regarding the intention or the knowledge. They had not met by any previous design to kill the deceased. However, the learned State counsel wished us to draw the inference from the slogans which preceded the assault. It was said that the appellants on seeing the deceased, shouted to kill him. In the first place it is not known what words were actually uttered in the language which was adopted in order to demonstrate their intention as in common parley, the same words, oftenly, convey two different senses; just as the word "maro" in Urdu means "beat" and may also mean "kill". Consequently it is unsafe to allow such slogans to be availed of to serve to provide the clue to the required intention. They are to be treated as ordinary slogans as are generally raised in such cases without any special significance attached to them unless the circumstances positively warrant a contrary con clusion. Apart from this, the slogans are attributed to the appellants generally and that also by the private witnesses. None of the police witnesses deposed about any such slogan. So they receive no corroboration. It is true that the first set of witnesses were nearer to the deceased but such slogans are not uttered in a low tone. The police witnesses, could not be beyond the audible distance. In the absence of positive support we are not inclined to consider it a circumstance in aid as canvassed by the learned State counsel. Thus, with this survey, there can be no escape from the conclusion that it was not the common object of the assembly to kill the deceased nor the appellants could be said to be equipped with the knowledge that the victim was likely to be killed but the common object was to cause grievous hurt or at the best the appellants knew that with the use of the weapons which were carried by four of them, the assault was likely to result in grievous hurt. Now we propose to advert to the judicial precedents. The learned counsel for the appellants referred to several authorities but it would be suffice to say that the principle followed by us in tracing the common object of the assembly and assessing the liability of the appellants on the basis of that objector knowledge, is confirmed by those authorities. However, it would be of interest to refer to the leading authority of the Federal Court of Pakistan in the case of Fazal Illahi and others (P L D 1953 F C 35). In that case on account of certain pre‑existing enmity, seven accused persons collected on the roof of a house. One had a spear, two hatchets, and rest had lathis. When they saw the three victims who were returning from a visit to a neighbouring village, all the accused persons jumped down from the roof and launched the attack, which resulted in the death of one and serious injuries to the other two. In the Sessions Court one was acquitted while the remaining accused were convicted for the offence under sections 148, 302 and 325 read with section 149, P. P. C. In the High Court the conviction of two under section 302/149, P. P. C. was altered to section 302/34, P. P. C. on the ground that they entertained common intention in having subjected the deceased to a prolonged attack and having mercilessly thrashed him while he lay on the ground and the conviction of others was altered from section 302, P. P. C. to section 325 read with section

149. Their Lordships of the Federal Court did not agree that the conviction of the two under section 302/34, P. P. C. was sustainable and, therefore, it was altered to section 325 read with section 149, P. P. C. It was observed that the common object of the assembly was found to be only the giving of beating to certain persons and the highest offence which the members of such assembly knew to be likely to be committed was grievous hurt and in the absence of evidence of any special intention or knowledge, apart from the general object or knowledge attributable to all members of assembly, two of the members of such assembly could not be convicted of murder under section 302, P. P. C. read with section 34, P. P. C. It was added that unless there be intention or knowledge of one of the kinds specified in section 299, P P C. no conviction for culpable homicide could be had. Reverting to the present case, in view of the conclusion which we have reached, we alter the conviction of the appellants from section 302 read with section 149, P. P. C. to section 325 read with section 149, P. P. C. and sentence them to undergo R. I. for seven years. With these modifications, the appeal is dismissed. S. Q. Order accordingly.