(a) Penal Code (RLV of 1860)--
---Ss. 302 & 363/34--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Art. 10--Murder of deceased and abduction of a minor girl--Murder committed before occurrence of abduction had started--Vicarious liability--Accused and his two absconding co-accused proceeding towards Dera of deceased--Deceased and his brother meeting them in way by chance--Absconding accused firing at deceased--Accused neither raising lalkara nor inflicting any injury to deceased or complainant--Only 'absconding accused having motive against deceased--All accused thereafter proceeding - era of deceased and abducting minor daughter of deceased--Common intention of all accused primarily appearing to abduct minor girl--All accused, held, would have been vicariously liable for murder if it was comma- d during process of abduction but murder having been committed before occurrence of abduction had started, accused could not be burdened with common intention to commit murder and consequently acquitted of the charge.
(b) Penal Code (XLV of 1860)--
---S. 302/363/34--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Art. 10--Abduction--Vicarious liability--Accused taking active part in abduction of minor girl--Accused physically dragging her out of her house and then accompanying his absconding co-accused with abductee from place to place--Identification of accused by witnesses not doubtful--Accused knowing it to be likely that abductee would be subjected to illicit intercourse--Accused, held, should have been charged under Art. 11 of Offence of Zina (Enforcement of Hudood) Ordinance but not being so charged could not be convicted thereunder--Conviction and sentence under S.363, PPC was maintained in circumstances.
Malik Manzoor Ahmad for Appellant.
C.M. Bodla for the State.
Dates of hearing: 11th and 12th March, 1986.
GHULAM MURTAZA VS THE STATE
1988 P Cr. L J 128
[Lahore]
Before Khizar Hayat, J
GHULAM MURTAZA--Appellant
versus
THE STATE--Respondent.
Criminal Appeal No. 70 of 1984/BWP, heard on 12/03/1986.
JUDGMENT
Ghulam Murtaza son of Hakim, caste Awan Baloxa, resident of Chak No.63/P, Tehsil Khanpur, District Rahimyar Khan, has been tried for the offence under section 302/363 read with section 34, PPC and Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by Additional Sessions Judge-II, Rahimyar Khan, who convicted and sentenced him to imprisonment for life and a fine of Rs.2,000 or in default to undergo one year's R.I. under section 302/34, PPC and to four years' R.I. and a fine of Rs.1,000 or in default to undergo 6 months' R.I. under section 363/34, PPC, vide judgment dated 19-6-1984. All the sentences were ordered to run concurrently. It was further directed that half of the fine, if realised, shall be paid to the heirs of Shah Nawaz, deceased, as compensation. Feeling aggrieved, the convict has filed the instant appeal.
2. The occurrence took place at about 11 p.m. on 16-8-1980 near Quba Lal Pir in the area of Chak No.63/P District Rahimyar Khan, at a distance of 7 miles from Police Station Kot Samaba. The incident was reported at the said police station by Muhammad Ramzan at 2.30 a.m. on 17-8-1980, vide FIR Ex.PC recorded by S.I. Muhammad Ahmad (PW 12).
3. Prosecution case as disclosed at the trial was that on the day of occurrence Shah Nawaz (deceased) and his brother Muhammad Ramzan, complainant (PW 4), after irrigating the land were returning towards their Dera at about 11 p.m. and Muhammad Ramzan was going ahead carrying a lamp. When they reached near the Dera, Rahim armed with pistol, Allah Bakhsh Niazi alias Atta Muhammad armed with gun (both absconders) and Ghulam Murtaza (appellant) armed with a stick confronted them. Rahim and Allah Bakhsh Niazi fired one shot each at Shah Nawaz hitting on his both thigh as a result of which he fell down. The appellant and his complainants then proceeded to Shah Nawaz's Dera. Hearing the reports of gunfires Haq Nawaz brother of Shah Nawaz arrived at the spot and found Shah Nawaz lying injured. A little later they heard another report of gunfire from the side of their Dera. Muhammad Ramzan and Haq Nawaz P.Ws. reached there. Ranjha (PW14) father-in-law of Shah Nawaz, Mst. Jannat, wife of Shah Nawaz and Mst. Zohra, mother of Shah Nawaz, told them that Ghulam Murtaza, Rahim and Allah Bakhsh Niazi had forcibly taken away Mst. Sughra daughter of Shah Nawaz and in that process Ranjha was given a blow with the butt-side of his gun by Allah Bakhsh Niazi and Rahim had fired with his pistol in the air. They had identified the assailants in the light of lantern which was burning in the house. Shah Nawaz injured told his family members that he was fired at and injured by Rahim and Allah Bakhsh Niazi. Haq Nawaz PW then removed Shah Nawaz injured in a trolley of Arshad (PW5) to Rahimyar Khan hospital while Muhammad Ramzan (complainant) with Ranjha PW went to Police Station Kot Samaba and lodged FIR. Ex.PC with S.I. Muhammad Ahmad (P12), the same night. Motive behind the occurrence was stated to be that Rahim (absconding accused) was suspected as murderer of one Ahmad. Shah Nawaz (deceased) attempted to get him arrested in that case. This annoyed Rahim who in order to take the revenge attacked and fatally injured Shah Nawaz and also abducted his daughter Mst. Sughra with the help of appellant and Allah Bakhsh Niazi (absconder).
4. After registering the case, the S.I. got Ranjha PW medically examined. Learning about death of Shah Nawaz he went to Rahimyar Khan hospital. He prepared injury-statement Ex.PL/1 and inquest-report Ex.PL/2 of the deceased and got the dead body post-mortemed. During the spot inspection he picked up one empty cartridge lying near the place where Shah Nawaz had fallen after receiving gun-shot injuries. He collected blood-stained earth also from there. He then went to the house from where Mst. Sughra PW was abducted and picked up an empty cartridge lying there as well. He also seized two lanterns which were allegedly burning at the time of occurrence. On 27-8-1980 he sent both the crime empties to the office of Forensic Science Laboratory for safe custody. On 28-8-1980 1st. Sughra (abductee) having been released by the accused appeared before the Investigating Officer. She was got medically examined by Lady Dr. Mrs. Abida Ghani (PW1) on 2-9-1980, who prepared her vaginal swabs which were found to be stained with semen vide Chemical Examiner Report (PQ). On 1-9-1980 she pointed out different places where the accused had taken her. She also pointed out the place of Mushtaq Punjabi who produced Gun No.33836 which was seized under memo Ex.PK. He was challaned by Kot Samaba police in two cases, namely one under section 13 of the West Pakistan Arms Ordinance for keeping unlicensed arm and the other under section 212, PPC for harbouring offenders.
5. On 15-9-1980 the appellant was arrested. Rahim and Allah Bakhsh Niazi had absconded and they were got declared as proclaimed offenders. The appellant alone was then challaned to Court and tried by Additional Sessions Judge, Rahimyar Khan.
6. Dr. Bashir Ahmad. (P.W. 2) examined Ranjha (P.W. 11) on 17-8-19800 and noted one injury measuring 17 c.m. x 2 c.m. on the right side of his back. The injury was caused with blunt weapon and .vas simple in nature. Its duration was given as 4 to 5 hours,
7. Shah Nawaz (deceased) as stated earlier was brought to hospital in injured condition. He was in shock and bleeding profusely from both the thighs and was gasping for respiration. He died at 4.50 a.m., the same day. Dr. A.H. Cheema (P.W. 8) conducted post-mortem examination and noted following injuries on the dead body:
(1) Eight gunshot wounds on the back of left thigh. All the entry and exit wounds were present.
(2) Six gunshot wounds on the back of right thigh. No bullet was recovered.
(3) Fracture of right femur bone caused by bullet.
(4) There was profused bleeding from bullet wound and lot of blood clots were present in muscle and under skin. There was no blackening of entry wounds.
In the opinion of the doctor, the death had occurred due to injuries Nos. 1, 2 and 3 collectively which caused haemorrhage and shock which were the result of firing. Probable time between injuries and death was about 4 hours and between death and post-mortem about five hours.
8. At the trial prosecution examined 13 witnesses in support of its case. There are two parts of occurrence. The first part of it took place in the fields when the deceased Shah Nawaz was returning to his Dera in the company of his brother Muhammad Ramzan, complainant (P.W.4) after irrigating his land and was fired at by Rahim and Allah Bakhsh Niazi (both absconding accused) and the second part of the occurrence took place little later in the house of Shah Nawaz from where the appellant and the two absconding accused had forcibly abducted Mst. Sughran (P.W. 9) daughter of the deceased and also injured Ranjha P.W.
9. First part of incidents narrated by Muhammad Ramzan (P.W. 4) and the second part by P.Ws. Ranjha, Mst. Zohran and Mst. Sughran. Narrating first part of occurrence, Muhammad Ramzan complainant (P.W.4) stated that on the relevant day Shah Nawaz (deceased) called him to give help in watering his fields. At 11 p.m. they were returning towards the Dera of Shah Nawaz after irrigating the fields and he, was carrying a lantern. When they were still away from the Dera of Shah Nawaz they were confronted by Rahim armed with pistol, Allah Bakhsh Niazi armed with gun (both absconding) and Ghulam Murtaza (appellant) armed with a stick. Rahim and Allah Bakhsh (absconders) fired one shot each at Shah Nawaz hitting him on his thighs. The accused then proceeded towards the Dera of Shah Nawaz. The then P.Ws heard reports of gun-fire and alarm emanating from the Dera and they went there. Ranjha, Mst. Jannat and Mst. Zohran P.Ws told them about forcible abduction of Mst. Sughran by the accused. He (witness) stated that he did not see Mst. Sughran being abducted. Mst. Sughran returned home after 12 days through Zamindars of District Rajanpur. He stated that motive behind the occurrence was that. Rahim accused was absconder in the murder case of Yar Muhammad and Shah Nawaz (deceased) tried for his arrest in that case. Further stated that Ghulam Murtaza (appellant) is first cousin of Rahim (absconder) was on visiting terms with them.
10. Muhammad Arshad (P.W. 5) stated that when he was returning to his Dera on a tractor at evening time before the occurrence he had seen Rahim (absconder) Ghulam Nlurtaza (appellant) and one tall man with long moustaches present near the place of occurrence. Hearing reports of gunfires he went to the Dera of Shah Nawaz on his tractor-trolley and saw Haq Nawaz, Muhammad Ramzan, Ranjha, Mst. Jannat and Mst. Zohran P.Ws. present near Shah Nawaz who was lying injured whom he transported to hospital.
11. Haq Nawaz (P.W. 6) did not see both parts of occurrence as he reached at both places afterwards. He, however, admitted that night of occurrence was dark.
12. Mst. Sughran (P.W. 9) daughter of Shah Nawaz (deceased) the abductee in the case narrated second part of occurrence. She stated that on the night of occurrence her father Shah Nawaz had gone to irrigate his land in the company of Muhammad Ramzan P.W. At mid-night they heard reports of gun fire. Her uncle Haq Nawaz who had come to their house for getting medicine went out of the Dera. After he left three persons entered the house whom she identified in the light of lantern as Ghulam Murtaza (appellant) Rahim anll Niazi (absconder). The appellant was armed with a stick, Rahim with a pistol and Allah Bakhsh Niazi with a gun. Rahim caught hold of her by her arm. Her mother Zohra and grandfather Ranjha tried to save her. Allah Bakhsh Niazi (absconder) gave a blow with butt-side of the gun to Ranjha. Rahim fired with pistol in the air. Rahim, Allah Bakhsh Niazi (absconders) and Ghulam Murtaza (appellant) then physically dragged her out of the Dera and carried her to the Dera of Qadra Arain who slapped her. Later on they took her to Khan Bela and then to the house of Mushtaq Punjabi where they took food and then started towards Jalalpur to the house of Alam Shah. Rahim (absconder) committed rape with her in the crops. She was kept in the house of Alam Shah for two days. There she learnt from Ahmad Yar Arain and Ibrahim brother of Rahim (absconder) that her father Shah Nawaz had died. She was then taken on foot to Janpur and from there she was made to sit in a bus for Leiah. Ghulam Murtaza appellant then got down from the bus in the way and she was further taken by Rahim and Allah Bakhsh Niazi (absconder) to Leiah. There they took her to the house of sister of Allah Bakhsh Niazi where she was kept for 3/4 days and during this period she was continuously raped by Rahim. Then she was brought to Rojhan in the house of one Baluch. She wept before that Baluch and told him that Rahim, Allah Bakhsh Niazi and Ghulam Murtaza had killed her father where upon the Baluch sent his son alongwith Rahim and Allah Bakhsh Niazi who left her in the house of her father. She also stated that during the journey the appellant had been constantly intimidating her. She also stated that the night of occurrence was dark but lantern was burning in the house. Mst. Jannat (P.W.10) and Ranjha (P.W. 11) also made similar statements. They also stated that after abduction of Mst. Sughra they went near Shah Nawaz injured who told them that Rahim and Niazi had shot at him. Ranjha P.W. also stated that Rahim had illicit relations with Mst. Vlaqsudan his own sister-in-law. The appellant was real cousin of said Rahim and used to visit their village prior to the occurrence. He also stated that Mst. Sughran came back 11/12 days after the occurrence and was produced before the Investigating Officer, the next day. The appellant denied the allegation, produced no witness in defence.
13. The learned trial Court on consideration of material on record acquitted the appellant from the charge under section 10 of Offence of Zina (Enforcement of Hudood) OrdinAnce 1979, for Mst. Sughra did not level allegation of rape against him and the commission of rape by Rahim with her was his individual act. As for the charge under section 363, P.P.C., the learned trial Court held that Mst. Sughra P.W. was 10/11 years old, therefore, charge under section 363, P.P.C. was successfully brought home to the appellant, and therefore, sentenced him under this charge to four years' R.I. as indicated above. As far the charge under section 302/34, P.P.C. the trial Court observed that although the appellant had caused no injury to the deceased yet he being associated of main accused from beginning to the end and had not only gone to the spot duly armed but also took active part in the abduction of Mst. Sughra as deposed by Mst. Sughra (P.W. 9) and Mst. Jannat (P.W. 10) hence, he was liable under section 302/34, P.P.C. as well and thus sentenced him to life imprisonment. Through this appeal the convict has challenged his convictions and sentences.
14. It is argued on behalf of the appellant that he has been involved in this case falsely because he is first cousin of Rahim, the principal accused in this case, that the appellant did not do any overt act when the deceased was fired at by Rahim and Niazi, therefore, his conviction under section 302/34, P.P.C. was unjustified and that conviction for offence of kidnapping is also wrong because there is absolutely no evidence on record to show that Mst. Sughra was a minor at the time of occurrence. To the contrary, learned counsel appearing on behalf of the State has supported the impugned order of conviction.
15. I have carefully considered the contentions of learned counsel for the appellant as well as for the State and also perused the record.
16. Admittedly, Rahim (absconding accused) and Ghulam Murtaza (appellant) are first cousins. This is in evidence that Rahim was wanted as accused in the murder case of Allah Yar and the deceased had tried to get him arrested in that case, so Rahim had a motive against the deceased. According to prosecution appellant and his two absconding eo-accused were going towards the house of Shah Nawaz deceased when Shah Nawaz (deceased) and his brother Muhammad Ramzan P.W. met them in the way by chance. Rahim and Allah Bakhsh Niazi (absconding accused) who at that time were going ahead of appellant, fired at the deceased. The appellant neither raised any Lalkara nor inflicted any blow to the deceased or his brother Ramzan P.W. From there they went towards the Dera of Shah Nawaz and forcibly abducted Mst. Sughra and caused injury to Ranjha P.W. when he resisted. These facts show that common intention of the appellant and his absconding co-accused who were armed with gun and pistol was primarily to abduct Mst. Sughra and, if in the process of abduction somebody had been killed, then the appellant would have been vicariously liable for the offence of murder also but here Shah Nawaz has been murdered in the way before the occurrence of abduction had started. Therefore, I find that the appellant did not have common intention with his absconding co-accused for murdering Shah Nawaz. In the circumstances, the appellant cannot be fixed with common intention to murder Shah Nawaz, and consequently I would acquit him from this charge.
17. As far the offence under section 363, P.P.C., there is overwhelming evidence that Sughra P.W. was minor and that the appellant not only present at the spot but also took active part in abducting Mst, Sughra. He dragged her out of her house and accompanied the abductee to different places with the other co-accused, so there is no doubt about his identification by P.Ws either. He should have been charged under Article 11 of Offence of Zina (Enforcement of Hudood) Ordinance 1979 for he had participated in the abduction of Mst. Sughra knowing it to be likely that she would be forced to illicit intercourse, but unfortunately he was not so charged and, therefore, I cannot convict him for the same. The omission speaks volumes about careless handling of this case by the Public Prosecutor. In the result conviction and sentence under section 363, P.P.C. recorded by the learned trial Court being quite justified is hereby maintained. The appellant shall, however, be given benefit of the provision of section 382-B, Cr.P.C. The appeal is disposed of in the terms indicated above.
S.A./G-83/L???????????????????????????????????????????????????????????????????????????? Appeal partly accepted.
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