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Petitioner: MUHAMMAD INAYAT AND Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Aslam Mian Title: MUHAMMAD INAYAT AND Others vs THE STATE Case No.: Criminal Appeal No. 906 of 1979 Date of Judgment:1982-11-07 Reported As: 1983 P Cr. L J 108 Result: Appeal partly accepted
JUDGMENT
JUDGMENT Muhammad Inayat son of Bahadur Khan (40), Muhammad Nazeer, (27), and his brother Mahboob Hussain (25) sons of Ghulam Haider, Muhammad Khan (30), Fazal Hussain (50) sons of Ghulam Hussain and Ghulam Asghar sons of Ghulam Hasan (25), all caste Kahute Quresh, residents of Mohra Kor Chasham, P.S. Chakwal, were tried by the learned Sessions Judge Jhelum under section 148/302/307/149, P. P. C. For forming an unlawful assembly and in the prosecution of the common object thereof, committing the murder of Khalid Rehman and making a murderous assault on Allah Ditta (P.W. 9) and Maqbool Hussain (P. W. 10) and causing injuries thereby. Vide his judgment dated 19th August, 1979, the learned trial Judge, convicted and sentenced them as follows:- Under section 302/149, P.P.C. To life imprisonment each and a fine of Rs. 500 each or in default thereof, further R. I. For six months; under section 325/149, P.P.C. To five years, RA each and a fine of Rs. 200 each or in default further two months' R.I. Each; under section 323/149, P.P.C. To six months' R. I. Each; under section 148, P.P.C. To one year's R. I each. All the sentences were ordered to run concurrently. Out of the fine if recovered, Rs. 2,000 was ordered to be paid to the heirs of the deceased and Rs. 200 each to both the injured persons. 2. The convicts have preferred the present appeal against their conviction and sentences. The complainant has filed a revision petition (Cr. Rev. No. 791/79) for the enhancement of the sentence awarded to the appellant to that of capital sentence. This judgment will dispose of both these matters. 3. The occurrence allegedly took place on 25th January, 1979 at degarwala in the area of villae Mohra Kor Chasham, six miles away from the Police Station Chakwal. The matter was reported to the police. Muhammad Anwar A.S.I. Recorded the statement (Exh. P. J. I) of Allah Ditta injured (P.W.
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9) in the hospital at 8.30 p.m., on the basis of which formal F.I R. Exh. P.J. Was recorded by Maqbool Ahmad A.S.I. At the Police Station. 4. According to the F.I.R. On the fateful d ay the complainant along--with Khalid Rehman deceased, his maternal nephew and Maqbool Hussain, a deceased's cousin had gone to the fields in village Chhach in order to get draw sarsoon fodder for the cattle. While on their way back to home, they were confronted by the appellants, out of whom Fazal Hussain appellant was armed with a hatchet whereas the rest were having sotas, who came upon raising lalkaras. Mahboob Hussain then raised a lalkara that he had come to take revenge of the beating given to him. Simultaneously he gave a sota blow to the deceased which hit him on his right elbow joint. The deceased fell on the ground. The second laths blow was given by Muhammad Inayat appellant hitting the deceased on the front left side of his chest. Muhammad Nazir then gave a blow with his laths on the back of the deceased. Mahboob Hussain appellant again gave a sota blow hitting the deceased on his buttocks. Muhammad Khan and Ghulam Asghar appellants then caused injuries to Maqbool Hussain P.W. On the forehead, left arm and back. Fazal Hussain, in his turn, gave a kulhari blow to Allah Ditta complainant (P. W. 9) hitting him on the left shoulder, which felled him on the ground. Fazal Hussain repeated the blow which hit the complainant on the back side of his right shoulder. While the complainant was lying prone, all the remaining appellants belaboured him with their respective sotas causing him injuries on the head, arm and back. On hearing the alarm raised by the injured, Muhammad Bashir (P. W. 13) and Muhammad Khan (given up) reached the spot and witnessed the occurrence. They besought the accused and got the injured freed from their clutches. The injured were being taken to the hospital when Khalid Rehman succumbed to his injuries on the way. 5. The motive as alleged in the F.I.R. Was that 1.J years prior to the occurrence, the complainant, Khalid Rehman deceased and Maqbool Hussain P.W. Had injured Mahboob Hussain appellant and thereafter both the parties were bound down under section 107/151, Cr.P.C. 6. Apart from recording the statement of Allah Ditta P. W. Muhammad Anwar A.S.I. Also investigated the case. He prepared injury statement Exh. P.T. And inquest report Exh. P.U. In respect with the dead body of the deceased and thereafter, sent it to the mortuary for post-mortem examination. He recorded the statements of Allah Ditta and Maqbool Hussain injured P.Ws. And got them medically examined. He visited the spot in the next morning and collected the blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. K. He also got prepared a site plan Exh. P,L. And its duplicate Exh. P.L. 1 as to the place of occurrence from Abdul Hakim Patwari (P .W. 12). He arrested all the accused except Muhammad Inayat on 27th January, 1979. Fazal Hussain appellant while in police custody led to the recovery of blood--stained hatchet P-10, which was taken into custody vide memo. Exh. P. S. Similarly the remaining accused got recovered lathis P. 5 to P. 9 and the same were taken into possession vide memos. Exhs. P. M., P.N., P.O. P.Q. And P.R. Respectively. The blood-stained hatchet recovered on 30th January, 1979 was sent to the Chemical Examiner late by two months and one day. After completion of the investigation the challan was submitted in the Court concerned. 7. Dr. Asghar Hamid Qureshi (P.W. 1) performed autopsy on the dead body of Khalid Rehman on 26th January, 1979 at 8-30 a.m. And found the following injuries :- (1) Six reddish contusion marks in the area 10" x 8" largest 6" x 7/8" and smallest 2" x 7/8" on the back of right chest over lower part crossing the spine reaching the left side of the back. (2) Two reddish contusion marks in area 4" x 3" largest 3' x 7/8" and smallest 2J" x 7/8" on the back and outer side of lower part of right chest. (3) Reddish contusion mark 5" x 7/8` on the right buttock. (4) Lacerated wound 3/8" x 1/4" x bone deep with abraded margins on the back and outer side of right elbow.
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(5) Reddish contusion mark 6" x 7/8" on the front of left chest, starting above at level a little above and 21" inner to left nipple reaching below the mid-line, with swelling 6" x 3''. It was oblique. (6) A swelling 2" x 1/1/2" on left side of the top of scalp, behind the vertex. (7) A swelling 4" x 13" on right temporal Area behind and above the ear. Blood was present under the scalp beneath injuries Nos. 6 and 7. There was fracture of the posterior craneal fossa on the right side under--neath injury No. 7. The brain and membranes were congested under injuries Nos. 6 and 7. Blood was present under all the injuries on the chest inside the chest wall. The pleura was congested under injury No. 5. Right lung had a large contusion mark over its inner and lower aspect under injury No. 5. Right chamber of the heart contained blood, left was empty. There were minute bleeding spots inside the heart muscle on the left side. The stomach was healthy and contained 11 ounces of semi--solid and semi-digested food. The small intestines were healthy and contained chyme the large intestines were healthy and contained stools. The bladder was healthy and was half full with urine. In his opinion the death occurred due to the injury to the brain and bleeding into craneal cavity and injury to the left lung and heart muscle due to injuries Nos. 7 and 5, respectively Injuries Nos. 7 and 5 were collectively fatal and injury No. 7 was individually fatal and they were sufficient to cause death in the ordinary course of nature. Injuries 'Nos. 1, 2, 3. 4 and 6 were declared as simple. The probable time that elapsed between injuries and death was about 2/3 hours and that between death and post-mortem examination, 12 to 16 hours. 8. This doctor similarly, on 25th January, 1979 at 7-30 p.m. Examin--ed Allah Ditta P. W. And found 11 injuries on his person, out of which five were lacerated, two incised wounds, three swelling and one contusion, on different parts of his body. Injuries Nos. 5 and 9 on the back of right shoulder and inner aspect of right hand and little finger respectively were grievous caused by a sharp-edged weapon and a blunt weapon, respectively, rest of the injuries were simple in nature. Probable duration of injuries was expressed as within six hours. On the same day at 7.45 p.m. Dr. Asghar Hamid Qureshi, examined Maqbool Hussain injured. He found six injuries on his person out of which one was a lacerated wound, three contusions, one swelling and one abrasion. Injuries Nos. 1, 2 and 5 on right side of forehead, back of left elbow and the back of right scapular area were kept under observation which were later declared as simple, whereas rest were also simple, having been caused by a blunt weapon. Probable duration of injures was ex. Pressed as within six hours. 9. In support of its case, the prosecution at the trial relied upon the following pieces of evidence :- (i) the ocular evidence given by the injured witnesses Allah Ditta P.W. 9 and Maqbool Hussain P. W. 10 and Muhammad Bashir P.W. 13; (ii) the evidence as to motive ; (iii) the incriminating recoveries; witnessed by P.W. IS Painda Khan, P.W. 14 Ghulam Rasul and P.W. 15 Muhammad Anwar A.S.I. ; (iv) the medical evidence. 10. Muhammad Nazeer appellant, when examined under section 342, Cr. P. C. Admitted that he and his co-accused Mehboob Hussain were real brothers that both of them were the sister's sons of their co-accused Muhammad Khan and Fazal Hussain and that Ghulam Asghar their co-accused was a real nephew of Muhammad Khan and Fazal Hussain being the son of their brother Ghulam Hussain. He, however, did not admit that Muhammad Inayat their co-accused was their Dada Potra. According to him Inayat accused was distantly related to them. All his co-accused joined him in this assertion. All of them except Muhammad Inayat admitted the existence of some ill-will between the parties inasmuch as the appellants party had given a beating to Ghulam Hussain, an uncle of Khalid Rehman deceased on account o3 some dispute over the trespassing of cattle and they were bound down under security proceedings for one year. All the appellants denied the allegations as to the motive, the forming of an unlawful assembly and in prosecution of the
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common object of that unlawful assembly commission of the murder of Khalid Rehman deceased and the incriminating recoveries at their instance. They, however, maintained' that they had been falsely implicated on account of enmity. Muhammad Inayat appellant, however, tendered in evidence an attested copy of criminal register No. 16, Sr. No. 452 (Exh. D.D.), another copy of the said register (Exh. D.E.) and a photostat copy of judgment dated 5th July, 1979 passed by the Assistant Com--missioner/Collector Jhelum (Exh. D.F.). 11. The learned trial Judge believed the evidence as to motive to some extent and disbelieved the recoveries. He, however, accepted the ocular account as to the occurrence and sought corroboration from the medical evidence. 12. At the trial it is worth noting that the ocular account of evidence contained certain additions as compared to the narration in the F. I. R. Therefore, it is necessary to delineate upon it as to the manner of attack and infliction of injuries thereby. Allah Ditta P. W. 9 deposed:- ---All the six accused raised lalkara. It was then Mehboob Hussain who all alone exhorted Khalid that he had come to avenge his beating. Mehboob Hussain then gave a Soti blow on the elbow of the right arm of Khalid Rehman. He fell down. It was then Master Inayat accused who gave him a Soti blow at his chest. Muhammad Nazeer accused then gave him a Soti blow on his back. After getting blow at the hands of Inayat accused the deceased had turned over. Mehboob Hussain accused then gave him a soti blow on his buttocks. Muhammad Nazeer accused gave him two Soti blows one after the other. Ghulam Asghar and Muhammad Khan accused then gave Soti blows to Maqbool Hussain P. W. Fazal Hussain accused gave two hatchet blows on my right shoul--der. All the rest five accused gave me soti blows on different parts of my body------------. I stated in my report that after Mehboob Hussain had given a stick blow on the bottocks of the deceased, Muhammad Nazeer accused gave two stick blows on his head. (Confronted. Not so recorded). Apart from these injuries Khalid Rehman deceased was given further beating by all the six accused ... ... ... ... ...--- Maqbool Hussain P.W. 10 deposed: - Immediately on their arrival Mehboob Hussain accused exhorted Khalid Rehman that they had come to avenge the beating he had had at the hands of Khalid Rehman and Allah Ditto... ... ... Had Muhammad Nazeer then gave him (Khalid Rehman) a blow on his back and another near the left ear. The third blow given by him hit him at the back of his neck. Muhammad Khan and Ghulam Asghar advanced towards and gave me beating ... ... ... ... .... Muhammad Khan gave me a Lathi blow on my forehead while Ghulam Asghar dealt a blow with the Soti he had on my left upper arm, I fell down. It was then that Fazal Hussain gave a hatchet blow to Allah Ditta on his right shoulder. In fact Allah Ditta had reached some time later, because he was following us. All the accused, therefore, left me and Khalid Rehman and attended him. Then all of them belaboured him. In cross- examination he stated :- "I saw Muhammad Nazeer giving only two blows on the head. I did not see him giving any further blow to the deceased. I stated before the police that Muhammad Nazeer gave three successive blows to the deceased without allowing any one else to intervene or inflict any blow-------------- ----..--- As the presence of Muhammad Bashir P.W. 13 is not going to be believed, therefore, reference to his deposition is omitted.) 13. The learned counsel for the appellants has contended that there is neither any allegation nor evidence of conspiracy or that it was a concerted plan. There was no common object. There is no such evidence that there existed any bloodfeud between the parties. There was no ambush the parties met on a path when the deceased, P. Ws. 9 and 10 were coming from the other side. The encounter was sudden. There was no challenge to kill. The lalkara attributed indicated that only beating was intended as of revenge for beating, in view of which section 149, P. P. C. Does not apply.
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The measure of liability will be on individual basis. Three appellants did not touch upon when the deceased was attacked. Maqbool Hussain P. W. Was attacked by two appellants. Allah Ditta the com--plainant was injured last when all the appellants were alleged to have joined together. As to the deceased no one was attributed head injury in the F. I. R. It was attributed to Nazeer in evidence by way of an improvement. The injury in the F. I. R. Alleged to have been inflicted by Nazeer on the back of the deceased was simple in nature. The injuries on the elbow and buttocks attributed to Mahboob Hussain appellant were simple. The injury on the left side of chest of the deceased attributed to Master Inayat appellant described as grievous was out of misdescription. The fatal injury was the head injury only which was .The real cause of death. Then the learned counsel has addressed as to the nature of injuries qua the participants vis-a-vis. Allah Ditta and Maqbool Hussain P. Ws. Pointing out that more persons had been introduced as assailants taking as advan- -tage of the injuries. The learned counsel has further submitted that the incident took place at 1 p. m. Is not ruled out, the medical evidence throws light there upon that the incident could have taken place about 1 p. m: to 2 p.m . 14. As to the presence of Muhammad Bashir .... . F. W. 13, it has been maintained that in the inquest report P. W. 13 has not been men--tioned in column No. 4 and also P. W. 12 Abdul Hakeem Patwari has deposed that this witness and Muhammad Khan (not produced) owned no land near the place of occurrence. The learned counsel has submitted that the recoveries were rightly rejected. The blood-stained hatchet was sent to the Chemical Examiner two months after. Lastly the learned counsel has referred to Exh. D. C., D. D., D. E., D. F. In order to show the litiga--tion between the two parties. The learned counsel as to the applicability of section 149 has relied upon Babar Ali v. The State (1). 15. The learned counsel for the State in reply to the contentions of the learned counsel for the appellants has submitted that in so far as the evidence is concerned; there is ocular evidence, the evidence of recove--ries, the medical evidence and the evidence as to motive and if there is any delay in the lodging of the F. I. R. That stands explained that Khalid Rehman deceased after having received injuries was struggling for life and others were badly injured. All were taken on costs to the hospital. The first object was to provide them with the medical aid and facilities, therefore, if the time intervened that way till the statement of the com--plainant was recorded in the hospital, then that cannot be regarded as an inordinate delay: The ocular account of evidence in verbatim is corrobo--rated by the medical evidence. The number of injuries does commensurate with the number of the accused., The hatchet recovered at the instance of Fazal Hussain was positively blood-stained and in so far as the blunt (1)PLD 1968 SC 372. Weapons are concerned, it is not necessary always for such weapons to be soiled with blood. The testimony of the recovery witness Ghulam Rasul (P. W. 14) alongwith that of the Investigating Officer was sufficient to prove the recoveries. The presence of two P. Ws. i.e. Allah Ditta (P. W. 9) and Maqbul Hassain (P. W. 10) stood established since both were injured during the occurrence. All the accused persons had appeared on the scene coming together from the village. They had formed themselves into an unlawful assembly and had come in prosecution of the common object and in fact produced the intended result with all the deliberations consistent with the common object. The strategy was evolved to go for the deceased first who was comparatively a young man. The common object was not to give only the beating but to kill. The full weight of a case is not to be judged by an F. 1. R. Any omission in the F. I. R. Cannot be regarded as fatal since the get up of a case depends upon the evidence adduced at the trial stage. It is not contemplated in law that an F. I. R. Should embrace each and every detail of an offence. Bashir Ahmad P.W. Was very much present at the spot and witnessed the entire occurrence as an independent person. In view of the facts and circumstances of the case the judgment of the trial Court is not liable to be set aside.
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16. The learned counsel for the petitioner in the revision petition for enhancement of the sentence has argued that it was a premeditated attack launched by the appellants fully armed. The facts of the case fully prove that the occurrence took place at some distance from the village, so the appellants came down with a premeditated purpose in prosecution of the common object of the unlawful assembly formed by them. The motive stood fully proved on the record. The statements of the witnesses received sufficient corroboration from the medical evidence. There was no mitigating circumstance for withholding the capital sentence. In view of the facts and circumstances of the case the sentence of the appellants is liable to be enhanced to that of the sentence of death. 17. From the contentions raised by the learned counsel for the appellants it is obvious that the learned counsel has not denied the inciden as having taken place nor has denied the presence of the injured P. W except the presence of Bashir Ahmad nor has maintained with any out--standing reason that any of the appellants was falsely implicated except hi reference to Exh. D. C., Exhs. D. D., D. E and D. F. Tendered by Inayat appellant showing criminal as well as civil litigation between the parties. 18. As to the main case the prosecution has established through it ocular account confined to the injured P. Ws. The motive, the opening of the attack and the causing of injuries to the deceased except the attribution of head injury with certainty to Nazeer appellant, to Maqbool Hussain ands Allah Ditta the complainant which account of injuries stands corroborated by the medical evidence, the injures being commensurate with the number of assailants. To this extent the submissions of the learned counsel for the State have their due weight. As to the time of the incident that whether it took place at 1 p. m. Or near about the invocation of the medical evidence has no much bearing because it tends to be an opinion without any firm foundation. The learned Trial Court has rightly rejected the recovery of incriminating articles at the instance of the appellants, for the reasons assigned in para. No. 21 of its judgment. 19. As to the plea taken by the appellants that they had been involved in the case falsely due to enmity there is no material on the file so as to show that it is a case of false implication in respect with any of the appellants. The documents tendered in defence by Inayat appellant show some criminal and civil litigation between the parties. Such a state of affairs existing can be construed both the ways since in this case the injured P. Ws. Evidence as to the participation of the appellants is being believed with the exception of an item in the evidence, therefore, the suggestion of false implication of any of the appellants is being ruled out. 20. As to the evidence the ocular aspect is confined to Allah Ditta) P. W. 9, Maqbool Hussain F. W. 10 and Bashir Ahmad P. W. 13. In s 'o far as the presence of P. W. 9 and P. W. 10 is concerned, that cannot be doubted since they were injured during the occurrence. As to the presence of Bashir Ahmad P. W. 13, it is open to doubt. Bashir Ahmad P. W. Deposed that he and Muhammad Khan (not produced) had gone to their fields situated in the area known as Chhah for bringing fodder and when after collecting the fodder he had started towards the village he witnessed the occurrence.. P. W. 12 Abdul Hakim Patwari deposed that so far as he could check up from the revenue record before him be did not find Bashir Ahmad P.W. And Muhammad Khan in possession of any land in village Bhalla either as owners or tenants. In view of the statement of Abdul Hakim Patwari there was no occasion for Bashir Ahmad P. W. To be present at the place of occurrence. His presence at the spot being doubtful, therefore, his evidence is discarded. 21. As to the contention of the learned counsel for the appellants that there was no concerted plan or no common object on the part of the appellants; that the parties simply met on a path and that it was a sudden encounter, no weight can be attached for the simple reason that it is in evidence that the appellants duly armed appeared at the place of occur--rence raising lalkaras. The forming of an unlawful assembly and the common object of that assembly as communicated
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through the lalkaras raised by Mahboob Hussain and the role played by the appellants collec-- tively as well as individually in prosecution of the common object, can be safely inferred from the evidence. Now as to what was the exact object of the assembly whether it was to kill somebody or was to effect beating in order to take revenge of the beating given to Mahboob Hussain appellant by the deceased and the complainant. The manner in which the attack was opened and accomplished taken alongwith the indication as expressed by Mabboob Hussain appellant and also considering one aspect that there was no any blood-fued between the parties, if there was any grievance with the appellants then that was to the extent that Mahboob Hussain appellant had been given beating by the deceased and Allah Ditta complainant, the object of the unlawful assembly can be fixed as confined to beating only before the implications as to the application of section 149, P. P. C. Is considered, it wilt be advantageous to refer to the case Babar Ali v. State relied upon by the learned counsel for the appellants. The learned Supreme Court while interpreting section 149, P. P. C. And as to the principle deducible therefrom observed at page 380, of the same decision. . ---In our view, on a plain reading of section 149, P. P. C. It would appear that it is in two parts and that an accused who is found to be a member of an unlawful assembly can be convicted of a lesser offence…
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