' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals have been directed against the judgment passed by District Court of Criminal Jurisdiction, Bhimber dated 27-9-2004, whereby Muhammad Yaqoob, Manzoor Ahmad sons of Bakrat Ali, Muhammad Khan son of Naik Alam, Muhammad Yousuf son of Allah Rakha, Muhammad Yousuf son of Sultan Alam and Munir. Ahmad son of Rehm Dad were convicted under sections 5, I.P.L., 147, 148, 149, A.P.C. While Ahmad Khan son of Fateh Ali, Muhammad Sharif son of Alam Din, Muhammad Razzak son of Sarfraz Pehlwan son of Rehm Dad, Muhammad Ishaque son of Shah Muhammad. Ahmad Khan son of Fateh Ali, Iqbal son of Barkat Ali, Muhammad Sadique son of Baz Khan, Qurban son of Said Alam, Sardar Khan son of Naik Alam, Faiz Alam son of Allah Dad, and Bashir Ahmad alias Shadia son of Rehm Dad were acquitted of the charge.
2. Brief facts leading to the background of the appeals are that a case under sections 5/15, I.P.L., 307/34, 427, 447, 147, 148/149, A.P.C. Was registered against the convict appellants, acquitted respondents and two others at Police Station, Bhimber on the complaint of Fazal Ellahi. It was reported that one year prior to the occurrence the complainant constructed a retaining wall at the border of his field. Ahmad Khan raised an objection as his land was situated opposite of the land of complainant. On 17-3-1989, at 8-00 a.m. The complainant was working in his field. He heard the noise of removing stones and fires. Upon this he came at the place and saw that Faiz Alam son of Allah Dad, Muhammad Ishaque son of Shah Muhammad, Ahmad Khan son of Fateh Ali, Muhammad Sadiqe son of Baz Khan, Qurban son of Said Alam, Sardar Khan son of Naik Alam, Iqbal son of Barkat Ali, Pehlwan son of Rehmdad, Muhammad Sharif son of Alam Din, Bashir alias Shadia son of Rehmadad, Akram son of Rehmadad and Razzak son of Sarfraz were removing stones from the wall while Muhammad Yaqoob, Manzoor Ahmad son of Barkat Ali, Munir Ahmad son of Rehmdad, Muhammad Khan son of Naik Alam, Abdur Rehman son of Naik Alam, Nazar Ahmad son of Pola Khan, Muhammad Yousuf son of Allah Rakha and Muhammad Yousuf son of Sultan Alam armed with guns were present there. The complainant tried to stop them from demolishing the wall, upon which Muhammad Yaqoob raised Lalkara and threatened him to kill. He was scared. In the meantime his son Nasrullah, Shabir Ahmad son of Muhammad Sharif, Noor Begum wife of Gulzar Hussain, Talib Hussain son of Rehmat Khan and Muhammad Hussain son of Muhammad Sharif came there. Muhammad Yaqoob fired with .12 bore gun which hit Nasrullah at his chest who fell down. The other accused persons also started firing. The fire made by Abdur Rehman hit Shabir Ahmad. The other accused persons started pelting stones and caused injuries to the complainant, Noor Begum and Talib Hussain. Nasrullah succumbed to the injury and the accused persons ran away from the place of occurrence after committing the offence.
3. The above mentioned report was handed over to S.H.O. Police Station Bhimber who came at the spot after receiving information about the incident. He prepared inquest report and injury sheets pertaining to the injured persons. The report along with a note written by S.H.O. At its back was sent to police station for registration of the case. On the same day, blood-stained clay, crime-empties and stones etc. Were seized from the place of occurrence.
4. During investigation, accused namely Nazar Ahmad son of Pola Khan was not found in the locality, however, Allah Ditta son of Amir Ali was apprehended and was extended benefit of section 169, Cr.P.C. On account of insufficient evidence while Abdur Rehman and Akram who absconded after 'committing the offence were proceeded under section 512, Cr.P.C. The challan under sections 5/15, I.P.L., 307, 427, 447, 147, 148, 149, A.P.C. Was submitted before District Court of Criminal Jurisdiction, Bhimber. Faiz Alam son of Allah Dad died before pronouncement of impugned judgment. The trial Court convicted Muhammad Yaqoob appellant and sentenced him to life imprisonment while Manzoor Ahmad, Muhammad Khan, Muhammad Yousuf son of Allah Rakha, Muhammad Yousuf son of Sultan Alam and Munir Ahmad son of Rehmdad were also convicted and awarded 10 years' R.I. Each under section 149, A.P.C. One year's R.I. With Rs,10,000 fine under section 147, A.P.C. And 2 years' R.I. With Rs,20,000 fine under section 148, A.P.C. Through the impugned judgment. Munir Ahmad did not appear before the trial Court at time of announcement of judgment. The Appeals Nos.29 of 2004 and 30 of 2004 have been filed by the convicts against the order of their conviction while Appeal No,24 of 2004 has been filed by the complainant to enhance the sentence awarded to the convict-appellants and also to convict the acquitted respondents under law.
4. Since all the appeals arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.
5. Learned counsel for the appellants argued that the foundation of the case was doubtful as the F.I.R. Was lodged after preliminary investigation. The prosecution witnesses were inter se related and interested. They have a grudge against the accused party on account of prevailing enmity on the construction of disputed wall and the deposition was not safe to be relied upon. As per prosecution case the accused persons were present at the place of occurrence. On hearing the sound of fires and removing stones the complainant came there but he was not assaulted upon.
The origin of fight was shrouded in mystery. According to the learned counsel the occurrence was not premeditated and it did not take place as alleged by the prosecution. True facts were suppressed by the eye-witnesses and it cannot be ruled out that some unpleasantness took place between the parties which resulted into a sudden fight. He further argued that site plan negates the claim of the eye-witnesses about their presence at the place of occurrence. The recovery of incriminating articles was also highly doubtful. 17 empties were recovered from the place of occurrence while only three were sent to Forensic Science Expert. The recovery of weapons of offence at instance of the convict appellants was highly doubtful and it was not supported by an independent corroborative material. The learned counsel further contended that the statements of prosecution witnesses were full of contradictions and in light of the prevailing enmity between the parties those were not worth-consideration particularly in absence of any support from independent source. He submitted that while convicting the appellants the trial Court failed to appreciate that the eye account given by the inimical and interested witnesses was not confidence-inspiring and there was no legal justification to convict them, therefore, by accepting the appeal they may be acquitted of the charges and appeal filed by the complainant may also be dismissed.
6. On the other hand, it was argued that S.H.O. Police Station Bhimber came at the place of occurrence after receiving information about the incident. The dead body was lying on the spot.
There he recorded the statement of complainant. The inquest report and injury sheet pertaining to injured persons were prepared at the spot. The report along with the note of S.H.O. Was sent to Police Station Bhimber along with his note for registration of the case. The names of the accused persons, eye-witnesses and details of occurrence were given in it. On the same day blood-stained clay and crime-empties were seized from the place of occurrence. In view of the aforesaid it cannot be said that F.I.R. Was fabricated and concocted. He further argued that occurrence took place during broad-daylight. Identification of the convict-appellants and acquitted respondents was not in doubt. It was admitted by the defence that the complainant constructed a retaining wall at the border of his field and the accused came there to demolish it. It was also proved that Muhammad Yaqoob convict-appellant fired at the deceased with .12 bore gun while the other convicts caused injuries at the person of the prosecution witnesses with fire-arm weapons and stones. The trend of cross-examination indicates that the ocular version was admitted by the defence and even otherwise it was confidence-inspiring. The use of .12 bore gun for killing the deceased was corroborated by post-mortem report and medico-legal reports pertaining to the injured persons and ocular version was further supported by site plan, recovery of weapons of offence at instance of the convict-appellants and crime-empties seized from the place of occurrence. Learned counsel contended that the parties were closely related to each other. The accused persons nourished a grudge against the complainant due to construction of retaining wall and it was established that they assembled and came at the place of occurrence to demolish it. When the complainant, his son Nasrullah and others came there they opened attack. He emphasized that all of them formed an unlawful assembly and they were guilty of the offence of murder as it was committed in prosecution of common object. Learned counsel further submitted that prosecution proved its case against the convict-appellants and acquitted respondents beyond any doubt. The trial Court while convicting Muhammad Yaqoob and others failed to appreciate that required standard of evidence for awarding sentence of "Qisas" was available on record and there was no lawful justification to award lesser punishment of life imprisonment to Muhammad Yaqoob. The other convicts were also awarded lesser penalty, therefore, the sentences may be enhanced and the acquitted respondent being members of unlawful assembly may also be convicted under law.
7. The learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. According to the deposition of complainant one year prior to the occurrence he constructed a retaining wall at the boundary of his field. Upon this Ahmad Khan raised an objection as his field situated opposite of the said land and a water drain was existing between the fields. The issue was resolved by a family gathering. On 17-3-1999 while the complainant was working in his field near his house, he heard the sound of 2 fires and removing stones from the,side where he constructed wall.
He came at the place and saw Razzak, Iqbal, Faiz Alam, Muhammad Ishaque, Ahmad Khan, Ikram, Sadique, Qurban, Pehlwan, Bashir alias Shadia and Muhammad Sharif who were removing stones of the wall. Yaqoob, Manzoor, Nazar Ahmad, Yousuf son of Allah Rakha, Rehman, Muhammad Khan, Munir and Muhammad Yousuf son of Sultan Alam armed with rifles were also present there. The complainant stopped them from demolishing the wall. Upon this Yaqoob raised Lalkara and threatened him to kill. He was scared. On hearing the sound of Lalkara, Nasrulla, Talib Hussain, Muhammad Hussain, Shabir Ahmad and Noor Begum were attracted to the spot. Upon which Yaqoob accused fired at Nasrullah. The fire hit him at his chest, below the right rib and at the back of his right hand. He fell down. In the meantime Rehman accused fired at Shabir while Munir accused fired at the complainant which hit him at his right arm. The accused persons made reckless firing and pelted stones. Talib Hussain and Noor Begum were also injured. Nasrullah succumbed to the injuries.
10. It may be stated here that Muhammad Sharif who was nominated as eye-witness in the F.I.R.
Was given up by the prosecution during trial, however, he was produced as defence witness.
According to him on the day of occurrence he was present in his house. On hue and cry he came at the place of occurrence and saw that the parties were fighting with each other. The convict- appellant who was not armed was standing near him while the others were at a distance. He further deposed that he did not know that who fired at the deceased. Talib Hussain and Fazal Ellahi were standing there. He along with them rushed towards the deceased. During cross-examination he admitted that he came at the place after the occurrence and also admitted that he was closely related to the accused persons and they asked him to depose as defence witness. His statement indicates that motive, place and time of occurrence were not disputed and presence of complainant and P.W. Talib Hussain was also confirmed while claim of the prosecution that the deceased died of fire-arm injury was also supported by him. Thus, the deposition was of no help to the defence.
11. The complainant's version was supported by P.W.2 Shabir, P.W.3 Muhammad Hussain, P.W.4 Talib Hussain and P.W.6 Noor Begum. It may be stated here that the parties were closely related to each other. Construction of retaining wall was the only dispute between them. No evidence to show enmity between eye-witnesses and the accused persons was brought on record. A perusal of their deposition shows that despite lengthy cross-examination they stood on the touch stone of the test and the defence failed to obtain anything positive out of their statements and the witnesses successfully proved the above mentioned facts.
12. It may be stated here that S.H.O. Police Station Bhimber came at the place after receiving information about the occurrence. Dead body was lying at the spot. He recorded the statement of complainant. Inquest report and injury sheets pertaining to the injured persons were prepared by him and statement of the complainant along with his note was sent to the police station for registration of case. On the same day blood-stained clay and 17 crime-empties were seized from the place of occurrence. During investigation the weapons of offence were recovered at the instance of the convict appellants. In light of the material it appears that the motive, time and place of occurrence were established. The allegation of causing fire-arm injuries at the person of the deceased was confirmed by the post-mortem report Exh.P.R. While the allegation of causing fire-arm and stones injuries at the person of prosecution witnesses were also corroborated by medical reports Exh.P.S., Exh.P.T., Exh.P.U. And Exh.P.V. The trend of the cross-examination also indicates that the above mentioned facts were not disputed, thus, it implies that the occurrence took place in the manner alleged by the prosecution. In this view of the matter, the question regarding quantum of sentence to the extend of convict appellants and order of acquittal recorded in favour of accused-respondents Nos.7 to 15 and 17 in Appeal No,24 of 2004 needs consideration.
13. According to the prosecution case they assembled to demolish the retaining wall and in prosecution of the common object of that assembly the offence was committed, therefore, they were guilty of the offence of murder within the meaning of section 149, A.P.C. It may be mentioned here that this section does not create a new offence but deals with the vicarious liability of the members of unlawful assembly for acts done in furtherance of common object and for such offences as its members knew to likely to be committed in prosecution of its common object. Thus, it implies that every member of an unlawful assembly is responsible for the act committed by any other member of that assembly in pursuance of the object. While convicting a person under the said section it has to be seen whether he was a member of unlawful assembly and the offence was committed in prosecution of the common object. Necessary ingredients of common object are prior meeting of minds of the accused to form a pre-arranged plan and some evidence to prove that the accused were in concert and in pursuance of pre-arranged plan, the criminal act was committed.
14. It is evident from the record that an enmity was prevailing between Fazal Ellahi and Ahmad Khan due to the wall which was constructed in the Government land. When the complainant came at the place of occurrence he saw two groups of accused persons. Faiz Alam, Muhammad Ishaque, Ahmad Khan, Muhammad Sadique, Qurban, Sardar. Khan, Iqbal, Pehlwan, Muhammad Sharif, Bashir, Akram, Razzak were alleged for removing stones to demolish disputed wall while Muhammad Yaqoob, Manzoor .Ahmad, Munir Ahmad, Muhammad Khan, Abdur Rehman, Muhammad Yousuf son of Allah Rakha and Muhammad Yousuf son of Sultan Alam armed with lethal weapons were present in the field of Ahmad Khan. It is important to note that any evidence regarding conspiracy, pre-planning or to indicate a prior meeting of minds between the convict appellants and acquitted respondents was not brought on record. No incriminating material to connect the acquitted respondents with the offence of murder was made available. Moreover, their names were not given in site plan Exh.P.R. And the acquitted respondents were not attributed any overt act towards the deceased and the prosecution witnesses. Therefore, any connection between the convict appellants and the acquitted respondents regarding the offence cannot be inferred from the facts and surrounding circumstances, thus, I am of the view that the order passed by the trial Court to their extent being correct needs no interference.
15. A careful consideration of the record shows that the eye accountic to the extent of convict- appellants was confidence-inspiring. It was proved that Muhammad Yaqoob, Manzoor Ahmad, Munir Ahmad, Muhammad Khan, Muhammad Yousuf son of Allah Rakha and Muhammad Yousuf son of Sultan Alam armed with lethal weapons were present in the field of Ahmad Khan. As the deceased came at the place, he was assaulted upon by Muhammad Yaqoob while the others inflicted fire-arm and stones injuries to the prosecution witnesses. Thus, they being members of an unlawful assembly were vicariously liable for commission of the offence and the trial Court did not commit any error while convicting them, therefore, the sentences awarded to Manzoor Ahmad, Munir Ahmad, Muhammad Khan, Muhammad Yousuf son of Allah Rakha and Muhammad Yousuf son of Sultan Alam are maintained in the circumstances, however, reasons given by the trial Court while awarding lesser penalty of life imprisonment to Muhammad Yaqoob convict-appellant have no substance as it was proved that at the time of occurrence he raised Lalkara and cause fire-arm injuries at the person of the deceased in presence of six eye-witnesses. Weapon of offence was recovered at his instance and its use for commission of the offence was corroborated by post- mortem report. No mitigation suggesting lesser punishment to the convict was available on record and a strong case warranting conviction under section 5, I.P.L. Was established against him.
16. The upshot of the above discussion is that the appeals filed by the convict-appellants are hereby dismissed while the appeal filed by the complainant is partly accepted and life imprisonment awarded to Muhammad Yaqoob convict-appellant is enhanced and he is sentenced to "Qisas" as provided under section 5 of Islamic Penal Laws Act.