1968 P Cr (PLP)

Azhar Ali Siddiqui far Appellants. M. Shah (absent) for Opponents. Mrs. Salima Nasiruddin for A. A: G. for the State. Date of hearing: 26th July 1965. Parties are closely related to each other and their huts are in Rangiwara quarter in the city of Karachi. It appears that the applicant Mohsanali Khan had placed a frame of door on the adjoining but belonging to Nasir Ali who had protested and asked applicant Mohsin Ali Khan to remove the same. Later in the day, quarrel had taken place between the ladies of these two parties. When Nasir Ali returned back to his but in the evening he sent for applicant Mohsin Ali Khan to enquire from him about the quarrel between the ladies. Mohsin Ali came there along with other applicants. They assaulted Nasirali and. When Muhammad Hasan, Umrao and Mohsin son of Dilmir came to rescue him they too were assaulted by these applicants. Aziz is said to have used a knife and the remaining applicants used lathis. This incident took place at 8-30 p.m. on 7-2-61. Report was lodged with police. Usual inquiries followed as a result of which six persons, namely, Mohsinali Khan, Muhammad Ilyas, Abdul Aziz, Nizamuddin, Jumo Khan and Muhammad Yousuf were sent up to stand their trial in the Court of Mr. Syed Zaigham Hussain Moosavi A. C. M. (XVIII) Karachi. All these persons had pleaded not guilty. Their case was that Nasir Ali accompanied by others had entered the hut of Mohsin Ali and assaulted them. Police was approached but they had refused to record his first report. Thereafter he had filed a complaint, which has been dismissed and the Revision Application No. 215/63 is in respect of it. Applicant Yousuf had raised the plea of alibi. Some witnesses were examined by them in defence but the trial Court had accepted the prosecution case, relied upon its evidence and convicted Mohsin Ali Khan, Muhammad Ilyas, Abdul Aziz, Nizamuddin and Jumo Khan and they were sentenced to various periods of imprisonments. Yousuf was given benefit of doubt and was acquitted by the same Court. On appeal the Additional Sessions Judge (Mr. Mehdiali Siddiki) found that the case against Jumo was not free from doubt as no specific part was assigned to him. He was accordingly acquitted. Conviction of the remaining four applicants Abdul Aziz, Mohsin Ali Khan, Ilyas and Nizamuddin under sections 324, 323/34, P. P. C. has been maintained, The present application is filed in revision against this order.

2. Criminal Revision Application No. 215/63 is in respect of the dismissal of the complaint filed by Mohsinali Khan against Nasirali Khan and others. The first appellate Court has dismissed the revision application filed against this order.

3. It is evident from the facts stated above that some incident had taken place on the evening of 7-2-61. There are two versions about it. Prosecution i.e. Nasirali Khan had alleged that a frame of a door had been placed against his hut by, applicant Mohsinali Khan who had refused to listen to his protest. Thereafter ladies of these two parties had quarrelled and when he called for Mohsinali Khan in the evening about the cause of this quarrel, he came there along with others and they assaulted him. Muhammad Hasan, Mohsin son of Dilmir, Umraoali (father of Nasirali Khan) had come for his rescue but they too were assaulted by these six persons. On the other hand the case of the applicants is that a few days prior to this incident Muhammad Hasan had criminally assaulted the wife of Umrao. There was a quarrel between them and Mohsinali Khan had intervened. Thereafter the matter was referred to Panchait and had blamed Mohsinali Khan for this false assault story. In order to take revenge Nasirali Khan had assaulted Mohsinali Khan and others. According to them this incident of assault had taken place inside the hut of Mohsinali Khan. I find that both the Courts below, on the basis of the evidence adduced before the trial Court came to the conclusion, and rightly and for very sound reasons, that this story is false. The learned Magistrate had inspect ed the site and had found that it was impossible for any fight to take place inside the hut of Mohsinali Khan. No evidence has been adduced to show that this matter or any other matter was referred to the Panchayat. Amongst the applicants Abdul Aziz and Ilyas only had received injuries. The learned Magistrate while dismis sing the complaint has referred to the discrepancies. The revision application filed against this order has been dismissed. On the other hand Nasir has proved the cause of quarrel as stated by him, i.e. the frame of the door was placed against the hut of Mohsinali Khan and he had protested and secondly that there was quarrel between the ladies of the parties on that day. Nasir, Muhammad Hassan, Umrao Ali and Mohsin are the eye-witnesses and they had received injuries. Medical evidence supports their version. Other eye-witnesses to the incident are Ainul Hassan, Abdul Rashid, Muhammad Sulaiman and Rashid Ahmad. They have further corroborated the prosecution case. Both the Courts below have accepted this ocular evidence, which is corroborated by medical evidence and I find no reason to disagree with these two grounds. Knife was snatched from Abdul Aziz and it was produced before the police. The trial Court gave benefit of doubt to Yousuf and acquitted him. The first appellate Court found that no specific part was assigned to Juma and hence he too had been acquitted. No appeal has been filed against his acquittal. As there is no unlawful assembly because at present the applicants are four in number the question of common object or unlawful assembly does not arise. In view of this position the first Additional Sessions Judge applied section 34, P. P. C. and has convicted these four applicants. It was urged on behalf of them that application under section 34 is illegal. Several authorities were quoted in support of this view. It has been held in a case reported in Mathurala Adi Reddy v. The State of Hyderabad (A I R 1956 S C 177) that a mere direction from one person to another and the carrying out of that direction by the other may be only instigation of the latter's act and may not be a case of a joint act falling under section

34. But where two persons with their followers, all of them armed, move about together for a set purpose and one gives instructions to the other and keeps himself on the spot in readiness to see it carried out and the other carries it out, it is hardly possible to say that the act is not one which was done in the furtherance of the common intention of both". In this particular case prosecution case was that Mohsinali accompanied by others had gone to Nasirali when he was called to explain the cause of quarrel between the ladies. Next case relied upon by the applicants is reported in Bishwanath aced others v. Emperor (A I R 1946 All. 153) where it was held "It was necessary for the prosecution to prove common intention within the meaning of this section implies a pre-arranged plan and to convict an accused of an offence applying this section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan." Case reported in Lal Chand and others v. Emperor (A I R 1931 Lah. 52) refer: to sudden quarrel and it was held that under these circumstances section 34, P. P. C. would not apply A I R 1947 Sind 41 also refers to criminal act done in concert pursuant to pre-arranged plan. Inference of common intention within the meaning of the term section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. Last case relied upon by the applicants is reported in Nazar Hussain and others v. The-Crown (P L D 1951 Lah. 222). It also refers to an attach on the deceased by something which was unexpectedly happened immediately before it was launched and under the, circumstances question of section 34 does not arise. The order dated 15-2-63 passed by the Additional Sessions Judge, Karachi clearly recites that Mohsinali accompanied by others and armed with lathes and a knife had gone to Nasirali who had called hits to inquire about the cause of quarrel between the ladies of the parties earlier on that day. All these circumstances raise a presumption of pre-concerted plan. For all these reasons I find no ground to interfere and accordingly dismiss both these applications. Applications dismissed.