Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ATHAR KHAN AND 2 Other VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Saleem Mazhar Title: ATHAR KHAN AND 2 Other vs THE STATE Case No.: Criminal Appeal No. 711 of 1964 Date of Judgment:1971-03-25 Reported As: PLD 1972 Lahore 19 Result: Appeals partly accepted
JUDGMENT
JUDGMENT MUHAMMAD AFZAL CHEEMA, J.-Ghulam Hussain, his son Ahmad Khan and his nephew Athar Khan appellants in Criminal Appeal No. 711 of 1964 were tried separately from Abdur Razzaq (Appellant in Criminal Appeal No. 153 of 1970) on account of the latter's abscondence, for intentionally causing the death of Hussain Bakhsh of their village, for making a murderous assault on his son Ali Muhammad P. W.3, for causing grievous hurt to his other son Muhammad Shafi P. W. 5 with sharp- edged weapons and for causing simple hurt with blunt weapons to his brother Noor Bakhsh P. W. 6 on January 13, 1964 in Chak No. 111/ 15-L of Police Station Mian Channu, District Multan. 2. The three appellants in Criminal Appeal No. 711 of 1964 were convicted by Mr. Ali Muhammad Akhund, Additional Sessions Judge, Multan, vide his judgment dated the 10th of October 1964, with an award of transportation for life each under section 302/34, P. P. C. Seven years' R. I. Each under section 307/34, P. P. C. Five years' R. 1. Each under section 326/34, P. P. C. And six months' R. I. Each under section 323/34, P. P. C. With a direction for the concurrent running of the sentences. 3. Abdur Razzaq appellant in Criminal Appeal No. 153 of 1970, who was mentioned as a co-accused of his father Ghulam Hussain and other appellants in Criminal Appeal No. 711 of 1964, having absconded was arrested subsequently on the 20th of May 1965. He was tried by Mr. Saeed Ahmad, Additional Sessions Judge, Multan who vide his judgment dated the 26th of November 1969, awarded him a sentence of transportation for life under section 302/34, P. P. C. And seven years' R. I. Under section 307/34, P. P. C. The sentence being concurrent. 4. Ali Muhammad complainant, one of the injured P. Ws. And son of Hussain Bakhsh deceased, who lodged the F. I. R. In the case, filed Criminal Revision No. 1160 of 1964 with a two--fold prayer for enhancement of sentence and award of sentence of fine under section 544-A, Cr. P. C. To the
---
## Page 2
appellants in Criminal Appeal No. 711 of 1964. It was admitted on the second point only. This judgment will dispose of the two appeals, as well as Criminal Revision No. 1160 of 1964. 5. The facts of the prosecution case briefly are that Hussain Bakhsh deceased, father of Ali Muhammad and Muhammad Shafi P. Ws. And brother of Nur Bakhsh P. W., all the three of whom were injured during the fight, was allotted land in square No. 76 of Chak No. 111/15-L and had taken up his residence in Killa No. 21 at some distance from the village towards the East, as shown in the site plan Exh. P. Y. The appellants who held allotments of land in the same vicinity including that of square No. 87 in the south of the land of the deceased in square No. 76, also resided on their land at a distance of three or four killas from the house of the deceased. Although there is nothing to suggest that the relations between the parties were strained yet the grievance of the complainant party was that while passing in front of their house members of the accused party would often deliberately cough. It may be observed in this context that deliberate coughing within ear-shot of an adversary is taken to be a sort of insult or challenge in some parts of our rural society of which more serious and aggravated form is to bleat like a he-goat. Being annoyed at the so-called mischievous coughing of the appellants' party, Hussain Bakhsh deceased and his son Muhammad Shaft P. W. Complained to Munshi Khan P. W. 9 and Gul Muhammad Lambardar. Munshi Khan, P. W. In turn communicated the protest to Ghulam Hussain appellant who promised that h: would tell his sons to desist from such gestures. On the evening prior to the day of occurrence Athar Khan appellant again coughed in front of the house of the complainant whereupon Ali Muhammad P. W. 3 remonstrated with him. An altercation ensured resulting in exchange of abuses and Athar Khan left with a threat, saying that he would deal with them. 6. On the following morning, i. e., 13th January 1964, shortly after sunrise Muhammad Shafi P. W. 5 went to ease himself in kills No. 1 of square No. 87 adjoining their house where he was attacked by the appellants. He ran towards his house and on hearing the alarm his father Hussain Bakhsh deceased, his brother Ali Muhammad and uncle Nur Bakhsh, who were all sitting in their baithak came out. Within their sight, Athar gave injuries to Shafi with the wrong side of the hatchet. Razzaq alias Raza stabbed him in the flank whereupon he fell down. Athar again gave him a blow with the wrong side of the hatchet followed by Ahmed who gave him a stick blow. They all ran to rescue Shafi, Hussain Bakhsh deceased being ahead of them. Razzaq gave a knife blow to Hussain Bakhsh who died on the spot. Ahmad gave a lathi blow to Nur Bakhsh. Ali Muhammad who had picked up a stick gave injuries to Ahmad and Atbar appellants in self-defence, but he was also given knife blows by Razzaq and his father Ghulam Hussain appellants and felled down. Athar appellant dealt him blows with the wrong side of the hatchet followed by Ahmad who gave him stick blow. Fazal Khan and Abdul Ghani P. W. 8 who happened to be at the grinding machine (Kharas) of Tufail in front of the place of occurrence about 28 karams away, reached the spot and saw the occurrence. Ali Muhammad and Shafi were removed to the hospital Mian Channu where Doctor Muhammad Sadiq sent ruqqa Exh. P. J. To the Station House officer, Mian Channu at 12-45 p. m. On the 13th of January 1964. On receipt of ruqqa Ahmad Bakhsh A. S. 1. P. W. 16 repaired to the hospital, and after having ascertained from the doctor about the fitness of Ali Muhammad to make a statement, recorded his statement Exh. P. A. Which forms the basis of the registration of the case. He also took into possession the medico-legal report of Ali Muhammad Exh. P. L. Muhammad Shaft, however, was not in a position to make a statement. The A. S. 1. Secured the blood-stained clothes of Muhammad Shafi vide memo. Exh. P. L. And those of Ali Muhammad vide memo. Exh. P. C. He then proceeded to the scene of occurrence, six miles away froth the police station, reached there at 4- 30 p. m., found Hussain Bakhsh lying dead and Nur Bakhsh P. W. 6 in an injured state near the dead body of Hussain Bakhsh. He prepared the inquest report Exh. P. A. A. And injury statement Exh. P. B. B. Of the dead body which was despatched through Ata Muhammad Foot Constable to the mortuary at Khanewal. He prepared the injury statement of Nur Bakhsh, recorded his statement and sent him
---
## Page 3
for medical examina--tion. He secured blood-stained earth from four different places vide Memos. P. D., P. E , P. F. And P. G. Serially indicated in the site plan Exh. P. Y. As 1 to 4. He recorded the statements of Fazal Khan P. W. 7 and Abdul Ghani P. W. 8 and on the arrival of Bashir Ahmad Sub- Inspector at 7-30 p. m. Handed over the investigation to him. Bashir Ahmad Sub-Inspector took into possession blood-stained clothes of the deceased vide Memo. Exh. P. H. Which were produced before him by Ata Muhammad Foot Constable on his return from the mortuary. On the 13th of January 1964, he arrested the accused who were produced before him by Khair Din. He got removed vest Exh. P. 12, chadar Exh. P. - 13 and shirt Exh. 14 from the person of Ahmad Raza vide Memo. Exh. P. Q., shirt Exh. P. 15 and chadar Exh. P. 16 from the person of Athar Khan vide Memo. Exh. P. R. And blood-stained shirt Exh. P. 17 from the person of Ghulam Hussain vide Memo. Exh. P. S. Ahmad Khan appellant produced blood-stained stick Exh. P. 9 which was secured vide Memo. Exh. P. T. Athar Khan appellant led to the recovery of blood-stained hatchet Exh. P. 1 from the thatched cattle-shed of his house which was taken into possession vide M0tno. Exh P. U. Ghul4m Hussain appellant led to the recovery of blood-stained knife from the cluster of bananas which was secured vide Memo. Exh. P. V. The Sub-Inspector also got prepared the site plan Exh. P. Y. By Ghulam Mustafa Patwari P W. 11. After the arrest of the accused he got them medically examined. 7. Doctor Muhammad Sadiq P. W. 1 examined Muhammad Shafi and Ali Muhammad P. Ws. Between 12 and 1 p.m. Vide his madico-legal report Exh. P. K. He found the following injuries on the person of Muhammad Shafi:- (1) An incised wound on the lower part of right side of the chest 3" x 1" cartilaginous part of the rib was cut from which a piece of fat was coming out. (2) An incised wound on the left hand back 1" x 1/4" x 1/4". (3) A incised wound on the palmer surface of the left hand 1" x 1 /4' x 1 /4". (4) One contused wound on the head 2 2/4 " x 1/2' x bone deep just to the right of centre. (5) One contused wound on the head centre 3' x 1/2" x bone deep at the bottom few hair were forcibly pushed in the crack of the bone. (6) One contusion on the back upper part transverse 5" x 1/2'. (7) One contusion on the back centre 6" x 1/2". (8) One contusion on the top of the left shoulder. Injuries Nos. 4 and 5 were kept under observation. Injury No. 1 was dangerous to life while the rest were simple. Injuries Nos. 1, 2 and 3 were caused by sharp-edged weapon and the rest by blunt weapon. Vide medico-legal report Ex. P. L. He found the following injuries on the person of Ali Muhammad: -- (1) An incised wound on the left side of the abdomen, 1" x 1/4' x 2" deep. (2) One contusion on the right shoulder blade 5' x 2 -- ". (3) An incised wound on the left forearm front 2 --x 1/10" x 1/10". (4) One contusion on the back upper part left side 5" x 1/2'. (5) One contusion on the back lower part centre 5` x 1/2'. Injury No. 1 was grievous while the rest were simple. Injury No. 1 was caused by sharp-edged weapon while the rest by blunt weapon. Vide medico-legal report Exh. P. M. He found one contusion on the head of Nur Bakhsh P. W. Measuring 2" x 1/2" with a bleeding part at the centre and a swelling on the left temporal region, 3" x 3". Vide medico-legal report Exh. P. N. He found one contusion on the right forearm of Athar appellant, ----- " x ----- and one contused wound on the right side of his head 2' x 1/4" x bone deep, with edges lacerated at places and sharpened at places. Vide medico-legal report Exh. P. C. He found the following injuries on the person of Ahmad Raza appellant:-
---
## Page 4
(1) One contused wound on the head left side 3/4" x 1 /4" x 1 /4'. (2) One contused wound on the centre of the head 1/2' x 1/2' x superficial. (3) One contusion on the left fore arm back 5" x 1 /6". (4) Swelling on the tip of left middle finger 1/2' x 1/2'. (5) An abrasion on the left ankle-joint 1" x 1/8" x superficial. The injuries were simple, caused by blunt weapon and were of 24 hours duration. 8. Post-mortem examination of the dead body of Hussain Bakhsh deceased was conducted by Dr. Muhammad Ikram Qureshi P. W. 2 on the 14th of January 1963. He found it to be the body of a male aged 60/62 years with the following injury on it:- An incised wound 3 -- x 1 -- " x opening into the abdominal cavity over the left-side of abdomen just below the costal margin. On internal examination he found that the small intestines and aorta were cut. Fluid blood was present in the abdominal cavity and intestines were floating in it. Death, in the opinion of the doctor, had occurred due to shock, haemorrhage and cutting of abdominal aorta due to injury No. 1, which was sufficient to cause death in the ordinary course of nature. 9. At the trial, the prosecution case rested on the testimony of the three P. Ws. Namely Ali Muhammad, Muhammad Shafi and Nur Bakhsh as also that of Fazal Khan P. W. 7 and Abdul Ghani P. W. 8, who were considered to be disinterested and independent witnesses of the occurrence and of course there were the recoveries of blood-stained clothes of the appellants and the weapons of offence which vide Chemical Examiner's report Exh. P. F. Were all found to be stained with blood, whose origin could not be traced in respect of the hatchet' and stick due to disintegration, while it was found to be human blood in case of the other recoveries vide Serologist's report Exh. P. H. H. 10. Fazal Khan P. W. 7 had gone to grind his wheat at the grinding machine of Mistri Tufail about 25 karams from the place of occurrence while Abdul Ghani had gone there for getting his plough mended. All the prosecution witnesses appeared twice at the trials, before Mr. Ali Muhammad Akund in the first instance, who tried Ghulam Hussain, Ahmad Khan and Athar Khan, ad subsequently before Mr. Muhammad Saeed, who tried Abdul Razzaq, fully supported the prosecution version making consistent statements on both the occasions. 11. During inquiry the position taken up by Athar Khan appellant was more less one of denial simpliciter. HQ admitted that blood-stained shirt Exh. P. 15 and chadar Exh. P. 16 were got removed by the police on 15th January 1964, but denied the recovery of hatchet Exh. P. 10. Explaining the injuries on his person, he stated that at the relevant time he was ploughing hills No. 1 of square No. 87 adjacent to the house of the complainant-party when Ahmad Khan appellant brought a huqqa for him, and while he was smoking ---huqqa--- he was attacked by Muhammad Shafi, Ali Muhammad, Afzal, Barkat Ali, Nur Bakhsh and Hussain Bakhsh deceased who felt aggrieved because he had not allowed them to pass through his land. In self-defence, he gave blows to Ali Muhammad and Muhammad Shafi with a parani, Shafi P. W. Gave him a hatchet blow on the head which rendered him unconscious. At the trial, he added nothing to the above explanation. Ahmad Khan appellant admitted that his blood-stained clothes Exhs. P. 12 and 14, were got removed by the police on 16-10-1964, denied the production of stick Exh. P. 9 and explaining the injuries on his person stated that he was attacked by the complainant-party along with Athar. He added that he was a lame person and could not walk without the help of a stick which was also carried away by the complainant-party during the attack. Ghulam Hussain admitted the removal from his person of his blood-stained shirt Exh P. 17. On 15th January 1964, denied the recovery of blood-stained knife Exh. P. 11 and stated that the complainant-party had a dispute with his nephew Athar Khan as they insisted on passing through his land which he would not permit and in order to put undue pressure on him they had made a false case against him. He added that there were no bloodstains on his shirt arid further that the P. Ws. Were opposed to them on account of political rivalry in the B. D.
---
## Page 5
Elections. Abdur Razzaq, who was tried subsequently, also denied the allegations and attri--buted his false implication to Sub-Inspector Niazi. He took the plea that he was not known as Muhammad Razzaq but his name was Muhammad Raza. He produced his identi--fication card Exh. P. D. H. Pertaining to his military service. They produced no evidence in defence. 12. At both the trials, the prosecution case rested on the testimony of the same set of witnesses, I e. The three injured P. Ws. Namely Ali Muhammad P. W. 3/12, Muhammad Shafi P. W. 5/13, and Nur Bakhsh P. W. 6/14 besides Fazal Khan P. W. 7/15 and Abdul Ghani P. W. 8/16. They fully supported the version as originally set out in the F. I. R. And notwithstanding the lapse of considerable time between the occurrence and the two trials held separately, no material discrepancy could be pointed out. In the case of Abdur Razzaq appellant in Criminal Appeal No. 153 of 1970, proceedings under section 87/88, Cr. P. C. Had to be resorted to, to procure his arrest and he was declared a proclaimed offender, as deposed by Bashir Ahmad Sub-Inspector P. W. 17. 13. On behalf of the appellants, it was contended before us firstly, that there was no bad blood between the parties and as such it was a case of a sudden and unpremeditated free fight between the parties, secondly that in the circumstances of the case, the intention to cause death could not be reasonably spelt out and as such conviction under section 302, P. P. C. Was wholly unwarranted. Thirdly that, at any rate, reasonable grounds did not exist to justify the invocation of section 34, p. P. C. And as such the appellant to whom the fatal injury was attributed should alone have been held responsible for causing the death of Hussain Bakhsh. Lastly, that the identity of Abdur Razzaq, appellant to whom the fatal knife injury of Hussain Bakhsh deceased was attributed was not established beyond doubt. 14. To start with, we have no hesitation in saying that the two parties had no previous background of bad-blood of a serious nature. There had never been any previous fight or litigation between them except the usual type of grudge that neighbouring land-owners would bear one against the other on account of damage to crops or passage through a field etc. In the instant case, what appears to have created a mis--understanding between the parties was the coughing and hawking of the appellants party as they would pass in front of the haveli of the complainant-party. We have already referred to its peculiar significance in our rural society when at times even an innocent and natural coughing would be liable to be misunderstood as a deliberate and mischievous hawking amount--ing to sort of challenge. However, in the instant case, on the previous evening Ali Muhammad complainant took exception to the coughing of Athar Khan appellant while the latter was passing in front of his house. This led to an altercation between the two who exchanged abuses when Athar Khan left with a threat to deal with them. We have every reason to believe that on the following morning when Muhammad Shafi was urinating at point No. 5 of killa No. l of square No. 87 shown in the site plan Exh. P. I. Which, according to the statement of Ghulam Mustafa Patwari P. W. 11, belonged to Ghulam Rasul and Athar Khan appellant, the appellants feeling aggrieved by the previous incident attacked Muhammad Shafi presumably feeling justified in retaliating when the complain--ant party took exception to their passage in front of their haveli. Obviously in this background alone, one would be rattier disinclined to spell out the motivation of murder on the part of the assailants. Apparently, all of them went fully armed. Ghulam Hussain and Razzaq, with knives, Athar with a hatchet and Ahmad Khan with a dang and chased Muhammad Shafi right up to a few karams from' the door of his baithak for which there was no warrant. The object obviously was to translate into action the threat held out by Athar Khan appellant to Ali Muhammad complainant on the previous evening. No doubt, as clearly indicated by the statements of the three injured P. Ws., supported by the testimony of two other eye- witnesses, namely, Fazal Khan P. W. 7/15, an altogether disinterested witness, and Abdul Ghani P. W. 8/16, who happened to be present at a short distance from the place of occurrence, further corroborated by the medical evidence, it were the appellants who had taken the initiative having
---
## Page 6
come fully prepared to deal with or teach a lesson to the members of the complainant-party. In fact the version given by the P. Ws. Is so consistent convincing and natural that there is hardly anything to cast doubt on its veracity much less to lend support to the position taken up by the appellants in defence, in their statements under section 342, Cr. P. C., namely that they had fought in self-defence. We have, therefore, no hesitation in coming to the conclusion that the appellants were the aggressors. Section 34, P. P. C. Reads as follows:- "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 15. Having come to the conclusion that the parties had no background of serious enmity and except for the previous evening's altercation between Ali Muhammad (P. W.) and Athar Khan, appellant, over the hawking of the latter in front of the former's house, the community of intention on the part of the assailant to commit murder notwithstanding the possession and use of knife by two of them would be difficult to spell out particularly when from the part consistently attributed to Athar Khan, appellant, it is abundantly clear that he took meticulous care not to use the sharp side of the hatchet. In the background of the case found to be established, Athar Khan not only left with a threat on the previous evening but it was translated into action when on the following evening Muhammad Shad was assaulted by the appellant, who had come fully armed in a pre-planned manner. Thus the difficult ques--tion that arises for consideration in the case i3 as to what was the precise extent of the community of intention between the appellants who did not only stop short at attacking Muhammad Shah, while he was urinating in their field but also chased him almost up to the door of his baithak when the fight took place. The question is a rather complicated one and cannot be easily and readily answered. 16. While considering the question of the applicability or otherwise of section 34, P. P. C. In the given circumstances of the case before them, their Lordships of the Supreme Court made certain observations in Mst. Hamida Bano v. Ashiq Hussain etc. (PLD1963SC109) which may be helpful for the determination of the point in issue. It was observed by Cornelius, C. J. That "a joint action by a number of persons was not necessarily an action performed with a common object. It may be performed on the spur of the moment as a reaction to some incident, and such a case would fall more correctly within the rule of con--structive liability laid down in section 34, P. P. C. Which is based on "common intention", a condition of mind which is more directly and proximately connected with the action then is the formation of a common object. The Judicial Committee of the Privy Council have held in the case of Mahboob Shah v. The King-Emperor (72 1 A 148) that proof of pre-concert is necessary In order to bring a criminal act performed by several persons within the submit of section 34, but in a later case Mamand v. The King-Emperor (AIR 1946 P C 45) it was clarified that the existence of such pre-concert could be established even by proof of acts performed by individuals after the completion of the main crime. Even regarding the case in the light of the requisite of pre---concert, there seems no doubt whatsoever that such a consensus can be achieved among the participants in the crime immedi--ately before its execution, e.g. Where the crime is excited by some action on the part of the person against whom it is committed. This is the aspect in which we would prefer to regard this case. On the evidence, it is established that Ashiq Hussain raised the preliminary shout, Inayat Shah caught the reins of the horse and then nine persons including Ashiq Hussain, Jiwan and Akbar Zaman joined in giving blows to the Thanedar who, being mounted on a horse, presented a clear target. An intention to kill can be directly inferred from the nature of the injuries caused, which led to his immediate death". 17. The scope and implication of section 34, P. P. C. Were also considered in case Metho v. State (PLD 1963 Kar. 1). It was held by their Lordships of the Division Bench that a bare reading of section 34 of the Penal Code, 1860, made it clear that it was the furtherance of the common intention and not
---
## Page 7
the common intention of all the persons that made each of them liable. Where, therefore, the common intention of M and A was to commit robbery but in the course of committing that criminal act, murder was committed by M, it was held that although the common intention of both M and A was to commit robbery the murder committed by M was in furtherance of common intention of committing robbery and, therefore, A along with M was equally liable for the murder committed by M. 18. In Nazir and others v. Emperor (49 Cr. L J 271) an Allahabad case learned Judges of the D. B. Made some important observations which have a direct bearing on the case before us. In that case, the common intention of the accused was to abduct a woman and beat her husband with tabal and lathi so as to disable him from successfully obstructing the intended abduction, and the beating resulted in the death of the husband. After discussing consider--able case-law and particularly the conflict of the views on the point it was held that the use of tabal and lathis as weapons of attack should impute the knowledge of the likelihood of the causing of injuries which may be…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.