(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 302 & 149‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Nine accused convicted by trial Court under S. 302/149, P.P.C.‑‑High Court in appeal while believing participation of all accused maintained conviction of one under S. 302, P.P.C. but altered convictions of others from S. 302, P.P.C. to S. 326/149, P.P.C.‑‑Leave to appeal granted to consider question that since High Court believed participation of all accused in incident High Court erred in not applying provision of S. 149, P.P.C. especially when all accused were armed and some of them were carrying formidable weapons.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑S. 302‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Conviction of nine accused by trial Court under S. 302, PP.C.‑‑High Court in appeal maintaining conviction of one but altering sentences of rest of accused from S. 302 to S. 326/149, P.P.C.‑‑Leave to appeal granted to complainant against acquittal of rest of accused of charge under S. 302, P.P.C. and convict under S. 302, P.P.C. as well accepting his jail petition.
Sh. Naveed Shahryar, Advocate Supreme Court and S. Abid Nawaz, Advocate‑on‑Record for Petitioner (in Criminal Petition for Special Leave to Appeal No.329 of 1985).
Nemo for Respondents.
Date of hearing: 18th May, 1987.
ORDER
ASLAM RIAZ HUSSAIN, J.‑‑ This order will dispose of (i) Cr1.PSLA No. 329/85, filed by Karam Din for the enhancement of sentences of the respondents; and (ii) Jail Petition No.61‑R/85 filed by Bahawal Bakhsh against his conviction and sentence, as both the petitions are directed against the same judgment of the High Court dated 15‑4‑1985.
2. Bahawal Bakhsh (petitioner in J.P. No.61‑R/85) and nine others namely:
(1)Lai Khan,
(2)Fazal Dad,
(3) Muhammad Sadiq,
(4)Riyasat,
(5) Muhammad Ibrahim,
(6) Muhammad Hussain,
(7) Muhammad Iqbal,
(8) Muhammad Liaqat; and
(9) Ghulam Abbas,
were accused of the murder of Ismail (deceased) and making murderous assault on:‑
(1) Karam Din, PW 6.
(2) Muhammad Fazal, PW 7.
(3) Fazal Hussain. PW 8.
(4) Shah Alam, PW 10.
(5) Muhammad Aslam.
3. Motive for the offence is stated to be that about a month before the occurrence the cattle of Muhammad Aslam, P.W., had trespassed into the field of Fazal Dad respondent whereupon Ibrahim respondent and Mushtaq beat Muhammad Aslam PW. In retaliation Karam Din (PW6) and Muhammad Aslam had beaten Fazal Dad, respondent, five or six days before the present occurrence.
4. The prosecution case, briefly stated, is that on the eventful day Karam Din complainant‑petitioner PW.6, alongwith Muhammad Ismail (deceased) Fazal Hussain PW.8, Shah Alam, P.W.9, Muhammad Aslam P.W. were sitting in his (complainant's) house and were talking to each other when Respondents 1 to 10 variously armed, appeared in the courtyard of the house. Lai Khan, Bahawal Bakhsh and Riyasat, respondents, were armed with hatchets. Muhammad Sadiq respondent was armed with a gun and the remaining respondents were carrying sotas, Muhammad Sadiq raised a lalkara to the effect that Karam Din complainant and others should not be spared, and fired a shot at Karam Din petitioner hitting him on his face and chest, Bahawal Bakhsh respondent, gave a hatchet blow on the head of Shah Alam P.W. Lai Khan respondent inflicted a hatchet blow on the head of Muhammad Aslam PW. Riyasat respondent gave a hatchet blow on the back of the chest of Fazal Hussain P.W. Bahawal Bakhsh respondent inflicted hatchet blow on the head of Fazal Hussain. He also gave a hatchet blow from its blunt side on the head of Ismail deceased who fell down. Fazal Dad then gave a 'Hujh' with his stick on the left side of the head of Ismail, deceased. When Muhammad Fazal PW came to the spot he was given a stick blow on his head by Muhammad Hussain respondent. Liaqat respondent also gave a stick blow on his shoulder. Muhammad Iqbal, Ahmad and Ibrahim respondents injured them with their sticks. The accused‑respondents then left the place of occurrence taking away the weapons of offence with them. Ismail was removed to the hospital where he succumbed to the injuries.
The case was originally registered under section 307/149/148 P.P.C. and on the death of Muhammad Ismail section 302 PPC was also added.
During the investigation the following recoveries were made from the accused:‑
(1) Muhammad SadiqGun (P.1)
(2)RiayasatHatchet (P.7)
(3)Lai KhanHatchet (P.8)
(4)Fazal DadHatchet (P.9)
(5)BahawalHatchet (p.10)
(6)Ghulam AbbasSota (P.2)
(7)LiaqatSota (P.3)
(8)Muhammad HussainSota (P.4)
(9)Muhammad IbrahimSota (P.5)
(10)Muhammad IqbalSota (P.6)
Hatchets recovered from Lai Khan, Bahawal Bakhsh, Fazal Dad and Muhammad Iqbal were found to be stained with human blood, whereas the weapons recovered from Riyasat, Mohammad Ibrahim, Mohammad Hussain, Liaqat and Ghulam Abbas, were not found to be stained with blood.
The P.Ws. and one Muhammad Aslam (who was not produced at the trial) had also sustained the following injuries during the incident:‑
(1) Karam Din (PW.6) received a firearm injury on the forehead and one eye was lost.
(2) Muhammad Fazal (PW.7) received three injuries with blunt weapon.
(3) Fazal Hussain (PW.8) received three injuries, two of which were incised and one with blunt weapon.
(4) Shah Alam (PW.10) received two injuries one of which was with sharp‑edged weapon.
Injury on Karam Din (PW6) shows that firearm was used during the incident.
5.At the trial the prosecution relied on the ocular testimony of (i) Karam Din (PW 6); (ii) Muhammad Fazal (PW 7); (iii) Fazal Hussain (PW 8); and (iv) Shah Alam (PW 10), all of whom had received injuries during the incident. It also relied on the recoveries mentioned above; evidence of motive and the medical evidence.
6. The learned trial Court believed the prosecution version and convicted all the accused‑respondents under sections 302/149, 307/149 and 148, P.P.C. It sentenced them as follows:‑
Under section 302/149 PPC each of them was sentenced to imprisonment for life and a fine of Rs.5,000 each.
Under section 307/149, PPC each of them was sentenced to 10 years' R.I. and a fine of Rs.1,000.
Under section 148 PPC each of them was sentenced to 6 months' R.I.
7. The accused filed an appeal before the High Court which, vide its impugned judgment dated 15‑4‑1985, maintained conviction and sentence of Bahawal Bakhsh under section 302, PPC.
As for the remaining nine accused‑respondents the High Court altered their conviction from 302/149 PPC to one under section 326/149 PPC and reduced sentence of each of them to 10 years R.I. and imposed fine of Rs.5,000 each. They were also convicted under section 324/149 PPC for which they were sentenced to 2 years' R.I. each. Conviction and sentence under section 148 PPC of all the convicts was maintained.
8. Karam Din complainant who was himself injured during the incident and had appeared as P.W., has filed Cr1.P.No.329/85 for leave to appeal against the acquittal of all the accused persons (except Bahawal Bakhsh) of the charges under section 302/149 PPC and also against their acquittal of the charge under section 307 PPC and seeks restoration of their conviction and sentence, as ordered by the trial Court, and also for the enhancement of the sentences accordingly.
9. We have heard the learned counsel for the complainant petitioner. He has taken us through paragraphs 11 and 12 of the impugned judgment. He pointed out that in view of the firearm injuries on PW 6 Karam Din it is evident that a firearm had actually been used in the incident and that the High Court has believed the participation of all the accused‑respondents in the incident. He submitted further that a reading of paragraph 12 of the impugned judgment alongwith findings given by the High Court in paragraph 11, shows that the High Court has erred in not applying the provisions of section 149, PPC while considering the question of conviction of accused under section 302 PPC.
He urged that section 149 PPC envisages that the members of an unlawful assembly are vicariously liable, not only for carrying out the illegal object of the said assembly, but each of them is also liable for an act which they knew was likely to be committed while carrying out the said illegal object.
He also urged that the situation would be different if, for instance, all the members of an unlawful assembly are empty handed but during the fray one of them suddenly whips out a knife and stabs some member of the opposite party to death. In such a case it could not be said that the other members of the unlawful assembly could visualise this result.
But in the present case the situation is different. One of the, members of the unlawful assembly was openly carrying a gun (which' as shown by the medical evidence was actually used during the incident while five of them were carrying hatchets and the remaining were carrying sotas. Even if the common object of the unlawful assembly, as envisaged by the High Court, was to give a beating to the complainant party, the very fact that all members of the unlawful assembly can be safely assumed to have known that their companions were carrying formidable weapons, is enough to show that they must have known that death was likely to be caused while inflicting injuries to the members of the complainant party by these weapons. As death was actually caused as a result of injuries received by Ismail (deceased) during the incident, therefore, it is not only that person who had caused injuries to Ismail (deceased) who was guilty of an offence under section 302 PPC, but also all the respondents who formed the members of the said unlawful assembly and accompanied him to complete the unlawful mission.
10. After carefully going through paragraphs 11 and 12 of the impugned judgment in the light of the aforementioned contentions we feel that the matter needs further consideration.
Leave is, therefore, granted to consider whether the High Court has not misinterpreted the provisions of sections 149 PPC and has not erred in acquitting the accused‑respondents (Excepting Bahawal Bakhsh) of the charges under sections302/149 PPC and 307/149 PPC.
11. Since leave has been granted in this case, leave is also granted to the petitioner in the connected Jail petition No.61‑R/85 filed by Bahawal Bakhsh, subject to the objection with regard to limitation.
K.B.A./K‑29/SLeave granted.
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