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Petitioner: CROWN VS Respondent: SAIF ULLAH
P
P. L. D. 1950 Lahore 524
Before Muhammad Munir, C. J., Muhammad Sharif and
S. A. Rahman, JJ.
CROWN‑Appellant
versus
SAIF ULLAH and others‑Accused‑Respondents
Criminal appeal No. 779 of 1949, decided on 13th July 1950, from the order of Sessions Judge, Lyallpur, dated 21st June, 1949, acquitting the accused. respondents.
Muhammad Munir, C. J. and Muhammad Sharif, J. having differed, the case was referred to S. A. Rahman, J. for decision under section, 26 of the Letters Patent.
(a) Murder‑Motive‑
True or substantial one, whether neces sary.
The state of mind of the accused is more to be looked to in judging of the motive for a crime. It is not necessary that the motive must be a true and substantial one. The real question is what was animating the accused in a particular act committed by them.
There is nothing extraordinary if in addition to a motive alleged by the complainants, there was some other matter which might have actuated the accused in making the attack.
(b) Penal Code (XLV of 1860),
Ss. 302, 326‑Some accused armed with sears‑Common object: to kidnap woman married to one accused, or, to punish complainant‑One of complainant's men killed in attack‑Whether knowledge that death would .be likely result of attack could be attributed to accused.
Per Muhammad Munir, C. J., (S. A. Rahman, J. concur ring): If the object of the respondents was to kidnap, and they came armed with spears, and other lethal weapons with a view to accomplish that object, knowledge that murder was likely to be committed must be attributed to the respondents, because when several persons set out on a kidnapping expedition after arming themselves with several spears, in this case definitely .three but in all probability more, they do know that the spears are intended to be used and that the indiscriminate use of such weapons does more often than not lead to murder.
As a general rule, if a body of men armed with weapons like spears go out to commit and offence in ‑the commission of which spears are intended to be used, whether the crime be robbery or abduction or the taking of forcible possession of land and water, it must be presumed that every one of such persons know that killing would be the likely result of the use of such weapons.
A. I. R. 1942 Lah. 89; A. I. R. 1941 Lah. 117, ref.
Per S. A. Rahman, J. "Knowledge" like "intention" is a subjective fact and it is obvious that such a fact cannot be proved by direct evidence. The knowledge imputable to an accused person can only be gathered from the nature of the weapons carried, the nature of the injuries caused and all the surrounding circumstances of the case including the object aimed at by the accused.
When the accused persons started, armed with deadly weapons like spears, knowing that they would be used in case of resistance by the rival party, they should be credited with the knowledge that death might be a likely result.
It could not, however, be categorically asserted that in every case, involving abduction of a female, a murder might be presumed to be within the contemplation of the unlawful assembly setting out to take possession of the person of the female. The true test would be provided by the nature of the weapons carried, the nature of the injuries caused, the object to be achieved and any other special circumstances that may be brought out in a case.
A. I. R 1926 Lah. 4; A. I. R. 1941 Oudh 517; 1. L. R. 20 Lah. 77; I. L. R. 21 Lah. 554; A. I. R. 1946 Lah. 222; A. I. R. 1923 Lah. 4.3; A. I. R. 1935 Oudh 52, ref.
(Per Muhammad Sharif, J.):‑Where the accused constitut ed an unlawful assembly and their common object was either to extract information about the whereabouts of a woman, who was said to have entered into a marriage con tract with one of the accused, or to take her away if she was found there, or to punish the complainant's party and some of the accused carried spears, it could be legitimately presum ed that if their demand was not met with, they might use their weapons, the likely result of which would be grievous injuries with a sharp‑edged weapon. The death of a person as a result of an injury with a sharp‑edged weapon was not beyond the bounds of possibility. It was, however, rather remote, and the more likely result was the infliction of grievous injuries with a sharp‑edged weapon. In other words, an offence under section 326, Penal Code, was much more likely than one under section 302, Penal Code.
A. I. R. 1947 Lah. 188; P. L. D. 1949 Lah. 453. ref.
S. A. Mahmud, Assistant Advocate‑General, for Appellant.
Mahbub Ilahi and A. R. Maxi, for Respondents.
JUDGMENT
MOHAMMAD SHARIF, J,‑For causing the death of one Usman and injuries to his other three brothers on the forenoon of 26th January 1949, in the abadi of Chak No. 586‑G. B , nine persons were placed on trial. By order dated 21st June 1949, the learned Sessions Judge, Lyallpur, acquitted all of them. The Crown has now come up in appeal against the order of acquittal.
One Fateh Muhammad mason had taken up his residence in the village for about two years. For the past few months he had shifted to ihata of Najib Ullah, etc., respondents. It is alleged that Fateh Muhammad gave his younger daughter Mst. Amiran in marriage to Saif Ullah. Suddenly Fateh Muhammad with his daughter, and family disappeared and went to live in Chak No. 657/8 where Yar Muhammad, one of the injured persons, used to live and work. Saif Ullah and his brothers suspected that the sudden migration of Fateh Muhammad from the village was due to the instigation of Yar Muhammad and his brothers. This produced resentment in the minds of Saif Ullah and his relations against Yar Muhammad and his brothers. On the evening preceding the murder, Yar Muhamrnad came to Chak No. 586‑G. B. In the morning at about 10 A.M. Yar M1ham mad and his brothers Usman, Ghulam Muhammad and Suleman were sitting in their courtyard. Suddenly the nine respondents, armed with spears and sticks, trespassed into the courtyard. They demanded that either 141st. Amiran should be produced or some other girl be given in her place, or they would kill them Yar Muhammad and his brothers protested that they had nothing to do with Fateh Muhammad. This, however, failed to satisfy then. An attack was made in the course of which Usman was killed on the spot and his three other brothers seriously wounded. On hearing the hues and cries, Hayat son of Murad, Ahmad son of Dad, caste Mussalli, and Anwar Khan son of Sikandar Khan, Pathan, reached. They witnessed the occurrence. On their arrival the accused made good their escape.
Suleman was carried to the police station ten miles away in an injured condition. He lodged the first information report at 4‑30 P.m. The cause and the manner of the attack were clearly mentioned, as also the injuries caused by one or other of the accused. It was further mentioned that the complainants had also caused injuries to Faiz, Azim and Hayat in self‑defence.
The Sub‑Inspector of Police reached the village the same day. He arrested Dost Muhammad and Faiz Muhammad on the 27th January 1949. Faiz Muhammad had injuries on his person. On 31st January 1949, a spear, was recovered at the instance of Faiz Muhammad. ,
The Post‑mortem examination was made on 28th January 1949 at 4‑30 P.m. Usman deceased was 38 years old. He had one incised wound above the level of the umbilicus, another on the left side of the penetrating into it, another incised wound below the umbilicus and two more incised wounds, one in the middle of the right groin and the other penetrating the abdomen and communicating with injury No. 1. In addition, there was a contusion mark on front of the right shoulder.
Death was due to shock and haemorrhage as the result of abdominal injuries caused by sharp‑edged sharp‑pointed weapon. The injuries could be the result of six separate blows. They were more likely caused with a spear and not with a hatchet.
Suleman, aged 40‑45, had five injuries in all. Two were stab wound, one on the right scapula and the other over the left lower ramus of mandible bone which was fractured. The lower incisor teeth had become loose and were pulled down. There was a contused wound on the left wrist ulnar side, a punc tured wound on the left flank and a bruise mark on the left scapula. Injuries Nos. 1 and 2 were grievous and the rest were simple.
Ghulam Muhammad, aged 26, had a contused wound near the left parietal protuberance and a stab entrance wound penetrat ing the chest at the front part of the chest. Injury No. 2 was grie vous and dangerous to life. It was caused with a sharp‑pointed weapon like a spear.
Yar Muhammad, aged 32, had a contused wound skin deep on the top of the head and three stab wounds one on the outer aspect of upper part of left thigh, one on the upper part of the left shin outer aspect with corresponding exit wound and one above the left knuckle. Injury No. 1 was caused with a blunt weapon and the rest with a sharp‑pointed weapon.
The following accused were found to have marks of in. juries:‑
Faiz Muhammad was examined on 27th January 1949 at 5.30 P.M. He had:
(1) A lacerated wound with irregular dimensions over the first phalange of the left hand mid finger palmer side.
(2) A contusion over the right shoulder, 4" X 3 ". Both the injuries were simple and caused within 15 to 18 hours.
Muhammad Azim was examined on 26th January 1949 at 12 noon. He had:
(1) A contused lacerated wound 4" X " X " over the left side of the head, direction before backwards. Blood was oozing out of the wound.
(2) A contused lacerated wound 3" X " X " over the left side of the head, direction before backward. Fresh blood oozing out of the wound.
(3) A contused wound " X 1/3" X 1/3" over the dorsum of right hand. Fresh blood oozing out of the wound.
The injuries were simple, caused with blunt weapon, within 24 hours.
Hayat Ullah accused was examined on the same day and at the same time. He had a contused lacerated wound 3" X " X " over the left side of the head, horizontal in direction, 4" above left ear. Fresh blood oozing out of the wound. The injury was simple, caused with a blunt weapon within 24 hours.
Umar Khan accused was also examined on the same day and at the same time as the other two mentioned above. He had a contused lacerated wound 2" X " X ", over the left side of head, 4" above the left ear, blood oozing out of the wound; and a super ficial contused wound " x 1/16" skin deep, just above the left eyeball. The injuries were simple caused with blunt weapon, within 24 hours.
Saif Ullah accused was examined on 27th January 1949 at 8‑30 A.M. He had:
(1) An abrasion mark over the right side of the face below the right eye, irregular surface covered with‑dried blood clots.
(2) An old injury over the left foot at the phalangeal joint of great too.
Injuries were simple, caused with a blunt weapon. Injury No. 1 was of about 24 hours duration and injury No. 2 was about a week old.
The accused denied the charge. Saif Ullah stated that he was married to 161st. Amiran, daughter of Fateh Muhammad. He took no part in the fight and was falsely implicated by Yar Muhammad. As to his own injury, he said that he was hurt by a fall in the usual course of his agricultural work.
Muhammad Khan denied his presence at or participation in the fight.
Jahan Khan said that he` pads falsely implicated by Ullah lambardar as the latter's sister had gone away with his brother Najib Ullah and was living with him as his wife. His other brother Mir Abdullah had enticed away the wife of Anwar P. W. and married her.
Umar Khan accused, Ata Ullah lambardar for his prose cution. As to his injuries, it was said that while chop ping the branches of a kikar tree for making a hedge, some branches struck his head one day‑ before the alleged occur rence.
Faiz Muhammad said that he and his brother had beaten Ahmad Khan cousin of Ata Ullah lambardar and for that reason he was falsely involved. Further, he, as a member of the pancha yat, was a party to the passing of a decree in a theft case against, Yar Muhammad. As to his injuries, he said that he fell from his cart and was hurt.
Muhammad Azim also put the blame for his prosecution upon Ata Ullah lambardar. It was further claimed that his family relations with Saif Ullah, etc., were not good. As to his injuries, it was said that he and his brother Hayat fought with each other one day before the occurrence and received the injuries.
Hayat Ullah said that he was also falsely involved by Ata Ullah and Yar Muhammad. He received injuries in the course of a fight with his brother Muhammad Azim one day before the occurrence.
Dost Muhammad said he knew nothing and was not present in the village.
Najib Ullah stated that he had developed illicit connection with the wife of Ata Ullah lambardar. She was divorced and he married her. He was also once got bound down under section 107, Criminal Procedure Code, along with Saif Ullah, etc. He was not in the village on the day of the alleged fight.
The learned Sessions judge was not satisfied that there existed a motive on the part of the accused to beat Suleman and his brothers. The main reasons which influenced the learned Ses sions judge in this conclusion were that there was no connection proved between Fateh Muhammad and the complainants, that Yar Muhammad denied that he was living in Chak No. 657/8, and that about a fortnight before the occurrence the complainants categorically denied that they had anything to do with the mig ration of Fateh Muhammad, and Najib Ullah, on hearing this, kept quiet. Fateh Muhammad is a mason and the complainants are carpenters. Both belong to the artisan class and as such they may be closely connected with each other. The accused are Pathans and apparently have nothing to do with the car penters or the masons. It is, however, admitted by Saif Ullah that Mst. Amiran, daughter of Fateh Muhammad, had been married to him. The marriage between a Pathan and a daughter of a masqn had taken place. On the disappearance of Mst. Amiran and her father Fateh Muhammad, the Pathans, who may be proprietors in the village, could not apparently take this lying down. Yar Muhammad was living in the neighbouring village. Rightly or wrongly, it was suspected by Saif Ullah that since Mst. Amiran and her father had moved to Chak No, 657/8, Yar Muhammad, who was said to be a No. 10 badmash, could not be wholly unconnected with the move. It would not make much difference whether Yar Muhammad worked only in Chak No. 6578 or lived there as well. The fact remained that Yar Muhammad had a very close association with Chak No. 657/8 and the migration of Fateh Muhammad to that place produced feelings of enmity or annoyance against Yar Muhammad. The state of mind of the accused is more to be looked to in judging of the motive for a crime. It, is not necessary that the motive must be a true and substantial one. The real question is what was animating the accused in a particular act committed by them. The other fact that Najib Ullah kept quiet after hearing the protestations of innocence from the complainants, did not mean that Najib Ullah felt satisfied with the explanations. The com plainants, to the best of their own light, were referring to certain circumstances which they thought were responsible for the attack upon them on the morning in question. There is nothing extra ordinary if in addition to a motive alleged by the complainants there was some other matter which might have actuated the accused in making the attack. It cannot be denied that but for what happened on that day and for the suspicion about the con duct of Yar Muhammad and his brothers in the matter of the migration of Fateh Muhammad and his daughter, no other cause of quarrel or dissension existed between the two parties. It would not, therefore, be correct to say that the existence of the motive alleged was wholly disproved.
The evidence of Anwar (P. W. 16) and Hayat (P. W. 17), the other witnesses produced by the prosecution, was pot con sidered credible. Anwar stated that he was going towards his land and was passing through the bazar to get his toka from Dullah blacksmith who lived close to the house of the complain ants. On hearing the noise he reached the spot and witnessed the fight. He out of fear did not interfere, nor did the other witness Hayat. His house was situated in another direction and in order to go to his land, it was not necessary to pass by the house of the complainants. The story of toka was also not found convincing. According to Anwar, he got his toka imme diately after the fight from Dullah Lohar and went home. The opposite was deposed to by Hayat who said that Anwar had a toka in his hand and he did not go so the blacksmith's shop after the fight.
Anwar like the 'accused is a Pathan. He had his own grievance, against some of the accused. He had to divorce his wife, Mst. Jannat and she later married Mir Abdullab, a brother of Faiz Muhammad accused. This Mir Abdullah was later mur dered.
The presence of Anwar (P. W. 16) at the spot is not free from doubt. The learned Sessions judge had reasons to dis believe him and he could not be wrong in doing‑so.
Hayat (P. W. 17) is a labourer and lived at a distance of about 12 karams from the house of the complainants. He was attracted by the noise and on reaching the scene, he saw all the nine accused armed with different weapons. He also stated the part played by one or the other accused, He revealed that he reached the spot before the fight had actually commenced. He did not enter into the house as he was empty handed. He or Anwar P. W. did not actively interfere and simply called upon the parties not to fight. He denied that he had ever been a tenant of Ata Ullah lambardar.
A look at the plan would show that his house is not far off and lies almost opposite to that of the complainants. One door opens out towards the complainants' side and the door of another kotha on the back is towards the bazar on the east. Hayat P. W. was in a position to reach the house of the complainants immediately after hearing the noise. A street separates the house of the complainants and that of the witness. Whether a person stood in this street at one or the other end, he was in a position to see what was happening inside the courtyard of the complainants.
His other relation Ahmad, who went to the spot, was not produced by the prosecution and the Public Prosecutor at the end of the trial, stated that he gave up Ahmad as having been won over. There is no material on the record to suggest that Ahmad had gone over to the other side. Ahmad may not have been pro duced to guard against any discrepancy arising between his evi dence and that of his nephew Hayat. In any case, the statement of the Public Prosecutor would show that Ahmad was not likely to support the story given by Hayat. Under these circumstances, it would not be safe to place such reliance upon the testimony of Hayat.
Both these witnesses appear to be directly or indirectly con nected with Ata Ullah lambardar. Ata Ullah lambardar him self was not examined in the case. He, however, went with the injured persons to the police station. As a matter of fact, he had reached the police station a little ahead of the injured persons. Ata Ullah lambardar had to part company with his wife presumably as she was carrying on with Najib Ullab ac cused. It is admitted that she is now the wife of Najib Ullah accused. This personal reason may have instigated Ata Ullah to take an active part in the whole case, and it is not surprising if out of enmity, he prevailed upon the com plainants to name some of the persons with whom. he had his scores to settle.
The learned Sessions judge was on strong ground in dis carding the evidence of Anwar and Hayat P. Ws. In his long judgment, however, he has not given any reason why the evidence of the injured persons should be wholly kept out of consideration. No reference was made to this important piece of evidence. It is beyond dispute that one brother was killed and three seriously injured on the morning of 26th of January of 1949. It was broad daylight, and there could be no question of mistake as to the identity of the assailants. It is another matter that some persons, for one reason or another, might have been added to the persons who actually took part in the assault, but it cannot be believed that the victims of the attack could not recognize who had caused them injuries.
The statement of the injured persons are quite clear, straight forward and impressive. In the very first information report, Suleman had clearly specified the five accused who were armed with spears and the four who carried sticks. Muhammad Khan was credited with the first injury on the chin, the second on the left flank and the third on the right shoulder. Hayat Ullah gave a blow with a stick on the back. Usman was said to have been killed by Najib Ullah and Saif Ullah with spear thrusts in the abdomen. Yar Muhammad received a spear blow in the abdomen at the hands of Azim. The injury on his head was given by Jahan Khan and on the back by Umar Khan. Faiz Muhammad accused gave a spear blow in the abdomen of Ghulam Muhammad and Dost Muhammad followed with a blow on the head. The same account is given by each one of the three brothers at the trial, and there must be some strong reasons for discarding the direct evidence of the victims of the attack.
As a matter of caution; it would not be proper to act on the uncorroborated testimony of the complainants. It may, however, be acted upon to the extent to which it is supported by other circumstances, e.g., injuries upon some of the accused. It has been shown above that five accused carried marks of in juries on their persons, and if these injuries could be connected with the occurrence, their presence at the fight would be established by unimpeachable evidence. It may be added, that the place of the fight is not in dispute and the attack was made upon the complainants in their own house.
Faiz Muhammad accused is married to the sister of Saif Ullah accused, whose other brothers are Muhammad Khan, Jahan Khan, Umar Khan and Najib U11ah accused. Faiz Muhammad bad two injuries, said to have been received within 15 to 18 hours of the examination on 27th of January 1949, at 5‑30 P.M. According to this calculation the injuries could have been received late in the evening of 26th of January 1949 and for this reason the learned Sessions judge was of the opinion that the injuries of Faiz Muhammad "cannot be traced to the time of the alleged assault".
The medical opinion could not be very exact. The duration could only be given approximately. No one pursued the matter or Dr. Khurshid Hussain (P. W 3) might have admitted that the period could be extended to 24 hours or a little more. It is, however, significant that the injuries to Faiz Muhammad in the course of the fight were unequivocally referred to in the first informa tion report which was taken down at 4‑30 P.M. on 26th of January 1949. According to the medical opinion given above, the injuries upon Faiz Muhammad had not yet been inflicted. Could Suleman foresee that by the time the police entered upon investigation, Faiz Muhammad shall have received injuries from some unknown quarter and his own version would receive direct support from the presence of the injuries? I cannot believe that the injuries upon Faiz Muhammad had not been given at the time when Suleman left for the police station to make the report. Faiz Muhammad bad received injuries in the fight, and there was no evidence produced by any of the accused to show that Faiz Muhammad received his injuries at some other place and at some other time. The participation of Faiz Muhammad, therefore, can not be doubted.
Azim accused was examined on 26th of January 1949 .at 12‑0 noon, i.e., within two hours of the alleged fight. The doctor simply noted that the injuries were simple and caused with a blunt weapon within 24 hours. In the case of fresh injuries, the period is usually given "within 24 hours". It would cover, any thing from one hour to 24 hours and does not necessarily mean that it was nearer the twenty‑fourth hour than any other hour. The learned Sessions judge's main criticism was that the injuries should have been described as "absolutely fresh". They were really "absolutely fresh', as "fresh blood oozing out of the wounds" was clearly mentioned in the medical certificate. The same remarks would apply to the case of Hayat Ullah accused. In his case to "fresh blood" was oozing out of the wound.
The statement of Yar Muhammad (P. W. 15) that he alone injured Azim and Faiz Muhammad accused and that none of his brothers "hit any of the other accused, was too literally con strued by the trial Judge. He could be sure about the persons whom he had struck, but in the melee and the confusion of the fight, he could not be. positive as ,to the exact…
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