PLJ 2010 Cr.C. (
Present: Kazim Ali Malik and Muhammad Ahsan Bhoon, JJ.
MUHAMMAD MALIK alias MALOO--Appellants
versus
STATE--Respondent
Crl. Appeal No. 355/J of 2003 & M.R. No. 509 of 2003,
heard on 9.4.2009.
----Ss. 302(b), 380 & 342--Conviction and sentence--Challenge to--Benefit of doubt--Appeal against--Combined examination of testimonies of two eye-witnesses and sealed site-plan prepared by draftsman on their pointing out would show that first of all witnesses confronted accused--At that time deceased was sitting inside a room at a distance of 55 feet from PWs--Motive for crime was blood feud enmity between parties--Available record does not show nor it could be explained during course of arguments as to what prevented accused persons from assaulting P.Ws who confronted them first and against whom they had a motive--Had two eye-witnesses confronted accused persons in alleged manner, they would have been assaulted first--Deceased received blunt and sharp edged weapon injuries, it was difficult rather impossible for assailant armed with an axe to go near deceased armed with .222 rifle--Had appellant entered cattle Dera and room of deceased in alleged manner while holding an axe, deceased would have easily shot him dead before he could open attack--It is not acceptable that appellant armed with axe succeeded to deliver 15 blows to armed deceased in presence of three eye-witnesses--Had three eye-witnesses witnessed occurrence in alleged manner, they would have interfered successfully--Matter was reported to police on following day of day occurrence took place and only explanation for inordinate delay in lodging FIR is not acceptable--PWs. were inimical towards appellant--Blood feud enmity had already locked parties in criminal litigation--Deceased and PWs were accused of motive murder case--Without corroboration from an independent source it was not safe to believe inimical witnesses--Contention that after his apprehension appellant pointed out spot of murder and also got recovered licensed riffle of deceased is misconceived--It is already dismissed that at relevant time deceased was armed with a rifle--Pointing out of place of murder is neither relevant nor admissible in evidence as nothing incriminating had been recovered in consequence of alleged pointing out--Testimonies of inimical witnesses remained uncorroborated--Prosecution failed to prove charge against appellant beyond any shadow of doubt conviction and sentence of appellant was set aside and he was acquitted of charge by giving him benefit of doubt--Appeal accepted.
[P. 225, 226, 227] A, B, C, E, F, G, H, I, J, K & L
----Ss. 141/148 & 149--Unlawful assembly--Application of--A combined examination of S. 141/148 and 149 would show that only five or more members of an unlawful assembly can be convicted u/S. 148 PPC, who are actually armed with deadly weapons and none else--Mere presence of co-accused at spot without having any arm and without active participation in occurrence do not provide a basis to charge them u/S. 148 PPC--When accused are charged u/S. 148 PPC, it is imperative for trial Court to consider evidence as to acts of accused for which charge u/S. 148 PPC is to be framed--Offence of rioting punishable u/S. 148 is distinct and separate offence--There is no scope for reading S. 148 and S. 149 together because former deals with direct liability while later deals with constructive and vicarious liability--An accused not armed with weapon at relevant time cannot be convicted u/S. 148 PPC r/w S. 149 of same Code--Charge cannot be framed u/S. 149 PPC and it is always read with other penal provisions of law--Section 148 PPC is a substantive offence whereas S. 149 is not an independent, distinct and substantive offence--Section 148 PPC shows that offence of rioting itself involves constructive liability and, therefore, no question would arise to frame charge u/S. 148 r/w. S. 149 of Code. [Pp. 228 & 229] M, N, O & P
----Ss. 380, 149 & 404--Theft in dwelling house--Accused took away licensed riffle of deceased after killing him--Charge of--Trial Court charge sheeted for having stolen away rifle of deceased from spot--Trial Court wrongly charged accused u/S. 380/149 PPC because alleged removal of rifle comes within ambit of S. 404 PPC which reads dishonest, misappropriation of property possessed by deceased person at time of his death--Removal of rifle of deceased after causing his death does not amount to robbery or theft because theft or robbery deal with taking away moveable property out of a person whereas dead body is not a person. [P. 229] Q & R
Mr. Talah Rashid Malik, Advocate for Appellant.
Ch. Abdul Razzaq Kamboh, DPG for State.
Date of hearing: 9.4.2009.
Judgment
Kazim Ali Malik, J.--Muhammad Malik alias Maloo, Maratab
Hussain, Shaukat Ali and Allah Din, accused persons were challaned to the Court
of Session,
U/Section 302(b) P.P.C.: Sentenced to death. He was also directed to pay Rs. 1,00,000/- to the legal heirs of the deceased as compensation.
U/Section 380 P.P.C.: Three years R.I. and a fine of Rs. 5000/- or in default of payment thereof to further undergo one month R.I.
U/Section 342 P.P.C.: 3 months imprisonment.
The State and the complainant did not challenge acquittal
of the three accused persons and in this way the impugned judgment to their
extent attained finality. Muhammad Malik, convict assailed his conviction and
sentence through Crl. Appeal No. 355-J of 2003. The Court of Session,
2. The alleged occurrence took place at 10.30 p.m. on the night between 9/10.12.1999 inside the cattle shed of Muhammad Saleem, complainant located within the area of village Dhayan Wala Awan, 8 kilometers away from Police Station Manawan and was reported to the police on the following day at 7.55 a.m. Muhammad Rafiq (25), a brother of Muhammad Saleem, complainant suffered death in this happening. Besides Muhammad Saleem, complainant, P.W.5, Muhammad Bashir, P.W. 4 claimed to have witnessed the incident. Amir Saeed, A.S.I., P.W. 7 and Abdul Ghafoor, Sub Inspector, P.W. 10 investigated the case.
3. Prosecution case set up in the F.I.R., Ex.PF, in brief, is that on the fateful night at 10.30 p.m. Muhammad Rafiq, deceased was smoking hubble-bubble (Hooka) inside a room of his cattle Dera while Muhammad Saleem, complainant, P.W. 5, Muhammad Bashir P.W. 4 and Muhammad Hanif (given up P.W.) were tethering their cattle. In the meantime Muhammad Malik (appellant) armed with an axe, Allah Din, Maratab Hussain having pistols, Shaukat Ali (acquitted accused persons) and Liaqat Ali (proclaimed offender) empty handed entered the Dera by scaling eastern boundary wall. Muhammad Malik and Allah Din, accused persons threw challenge that Muhammad Rafiq (deceased) would be given the taste for the murder of Muhammad Amin. Thereafter, Allah Din, accused held Muhammad Rafiq in his arms while Muhammad Malik, accused gave repeated axe blows striking him on his head and neck. Muhammad Rafiq fell down and breathed his last. Maratab Hussain, Shaukat Ali and Liaqat Ali, accused persons kept on standing outside the room while raising `LALKARA'. After killing Muhammad Rafiq, the accused persons confined Muhammad Saleem, Muhammad Bashir and Muhammad Hanif, PWs. in a room of their Dera and then fled while extending threats. On the following day in the morning at sun rise time Abdus Sattar, P.W. 6 reached the Dera and unbolted door of the room. The P.Ws. came out of the room and found that after killing Muhammad Rafiq, the accused persons took away his licensed rifle.
Motive for the occurrence as disclosed by the complainant was that in the year 1997, Muhammad Amin, a brother of Allah Din, accused was murdered and case F.I.R. No. 185 of 1997 was registered with Police Station Manawan against Muhammad Saleem, complainant, his four brothers including the deceased, their father Abdul Rehman and another. During the days of occurrence, the deceased, the complainant and their father were on bail in the motive murder case.
4. On 10.12.1999 Dr. Mazhar Mustafa, P.W. 9 conducted post mortem examination on the dead body of 25 years old Muhammad Rafiq and found the following injuries:--
(i) 11 cm x 5 cm abraded bruise over the front of the neck 5 cm from the supra sternal notch.
(ii) 3 x 2 cm abraded bruise 4 cm above supra sternal notch.
(iii) 5 x 3 cm abraded bruise on the front of lower part of the neck on the left side and 11 cm above the left nipple.
(iv) 2 x 1 cm abraded bruise on the left side of the neck 7 cm from the top of the left shoulder.
(v) 4 x 2 cm abraded bruised on the right side of neck 3 cm from the mid line.
(vi) A lacerated wound 3 x 1 cm on the right side of forehead 2 cm from the midline and 3 cm above the right eye brow.
(vii) A lacerated wound 3 x 1 cm on the right side of the forehead 3 cm from the midline and 2 cm from the right eye brow.
(viii) 2 x 1 cm lacerated wound present on the right side of the forehead 3 cm from the midline present above the right eye brow.
(ix) A lacerated wound 2 x 1 cm on the right side of the forehead 6 cm from the midline above the right eye-brow.
(x) 9 x 2 cm bone deep wound with clean cut edges present on the left side of the head 4 cm from the midline and orienated antero posteriorly 7 cm above the left ear.
(xi) A wound with clean cut edges 4 x 2 cm in size. It was bone deep on the left side of the head, orienated and antero posteriorly, 6 cm from the left ear and 7 cm from the midline.
(xii) 4 cm x 2 cm wound with clean cut edges bone deep 6 cm from the left ear and 8 cm from the midline.
(xiii) There are multiple defence wounds on the right hand including terminal (sic) ring and little finger each measuring 2x1 cm.
(xiv) An abrasion measuring 4x2 cm just above the right wrist. There are two wounds (abrasion) each measuring 2 cm x 1 cm on the palmer aspect of the left thumb.
(xv) A bruised 3 x 2 cm front left chest 6 cm from midline in mid-claviculur line.
On dissection of injury on the neck, soft tissues and the muscles were found crushed and bruised. Thyroid cartilage of larynx had been fractured and crushed. Muscles on left side of the neck were severely crushed. The injuries on the forehead fractured the frontal bone, which displaced the brain matter.
In the opinion of the doctor all the above said injuries were ante mortem. Injuries No. 6 to 9 and 14 to 15 were the result of blunt weapon whereas Injuries No. 10, 11 and 12 had been caused by heavy sharp edged weapon. Injuries No. 6 to 12 fractured the skull and damaged the brain matter leading to coma and death. These injuries were sufficient to cause death in the ordinary course of nature. Probable time, which elapsed between injuries and death was within « hour and between death and autopsy was 12 to 24 houRs. Under his report Ex.PG, the post mortem examiner certified that Muhammad Rafiq suffered death by violence.
5. On 10.12.1999
in the morning Abdul Ghafoor, Sub Inspector, PW. 10 recorded statement of
Muhammad Saleem, complainant, Ex.PF on the basis of which formal F.I.R. Ex.PF/1
had been drawn up. Thereafter, the investigator reached the spot and prepared
rough site-plan, Ex.PH. He also prepared inquest report Ex.P.J, injury
statement
On 16.2.2000 Muhammad Malik, appellant was arrested. On 23.2.2000 he led to the recovery of licensed rifle (P.5) of the deceased, which was taken into possession under memo Ex. PM. The investigator examined the witnesses, deposited the case property with the Moharrer and got declared Liaqat Ali, accused as proclaimed offender while the other four accused were challaned to Court after usual investigation.
6. At the inception of trial, Muhammad Malik, appellant and three acquitted accused were charged under Section 148/149 P.P.C. for having formed an unlawful assembly, which resulted in violence; under Section 460 read with 149 P.P.C. for having committed lurking house trespass by night and under Section 302 read with 149 P.P.C. for having caused the murder of Muhammad Rafiq; under Section 342 read with 149 P.P.C. for having confined the P.Ws. in a room and under Section 380/149 P.P.C. for having stolen away licensed rifle of the deceased after committing his murder. The accused denied the charge and claimed trial.
7. The prosecution examined 13 witnesses in all out of whom, Muhammad Bashir, P.W. 4 and Muhammad Saleem, P.W. 5 furnished ocular account of the incident. They also deposed about the motive.
8. When examined under Section 342 Cr.P.C., Muhammad Malik, appellant dismissed each piece of prosecution evidence put to him. In an answer to a question as to why this case against him, he says:
"Muhammad Amin brother of accused Allah Din was murdered in which the complainant and his brother was nominated accused. The deceased had number of enemies with several qabza group of the locality. It was admitted by the I.O. in his investigation. The said deceased was done to death by unknown person. The complainant took the revenge to establish pressure on compromise in the case of Muhammad Amin, deceased, therefore, he nominated me and Allah Din accused during the proceeding of compromise was near to establish but cannot be completed because the case of Muhammad Amin deceased was decided earlier in which the accused/complainant of this case was acquitted. "
9. Learned counsel for the appellant vehemently argued that it was a blind murder and the P.Ws. falsely involved the appellant due to blood feud enmity and that the learned trial Court should not have believed uncorroborated testimonies of inimical witnesses. On the other hand, learned law officer supported the impugned convictions and sentences, on the ground that the occurrence took place at the cattle Dera of the deceased and, therefore, close relations of the deceased were the most natural witnesses of the incident.
10. We have heard learned counsel for the parties and have perused the record very carefully and minutely.
11. It is the prosecution case that the accused persons entered the cattle Dera of the deceased by scaling its six feet high boundary wall. A combined examination of testimonies of the two eye-witnesses and the scaled site-plan Ex.PB prepared by the draftsman on their pointing out would show that first of all the witnesses confronted the accused. At that time the deceased was sitting inside a room at a distance of 55 feet from the P.Ws. The motive for the crime was blood feud enmity between the parties as Muhammad Amin, a brother of Allah Din, accused had been killed in the year 1997 and Muhammad Saleem, P.W.5, Muhammad Bashir, P.W 4, the deceased Rafiq and their father Abdul Rehman, besides others were challaned to Court. The available record does not show nor the learned Law Officer could explain during the course of arguments as to what prevented the accused persons from assaulting Muhammad Bashir and Muhammad Saleem, P.Ws. who confronted them first and against whom they had a motive. There is no explanation from the prosecution side as to what prompted and persuaded the accused to rush inside the room of the deceased located 55 feet away from the point of their entry in the Dera instead of opening attack on Muhammad Saleem and Muhammad Bashir, P.Ws. who had allegedly committed the motive crime. Had the two eye-witnesses confronted the accused persons in the alleged manner, they would have been assaulted first. We are not ready to believe and accept that the accused chose to ignore the killers of Muhammad Amin; namely, Muhammad Saleem and Muhammad Bashir (P.Ws.) who were present before them empty handed, defenceless and at their mercy. Secondly, it is the prosecution case that 25 years old well built Muhammad Rafiq, deceased was armed with his licensed rifle at relevant time. After entering the cattle Dera the accused raised `LALKARA' that they would avenge the murder of Muhammad Amin. We have already observed that the three P.Ws. confronted the assailants first. It is very difficult for this Court to believe that the deceased chose to keep on sitting inside the room with his rifle despite sensing arrival of his enemies at a distance of 55 feet from him. Had the accused entered the cattle Dera of the deceased in the alleged manner, the armed young deceased would have successfully resisted the attack, particularly when he had not gone asleep at relevant time. The P.Ws. stated expressly that the deceased was smoking Hooka and rifle was with him. Thirdly, the deceased received blunt and sharp edged weapon injuries. It was difficult rather impossible for the assailant armed with an axe to go near the deceased armed with 222 rifle. Had the appellant entered the cattle Dera and room of the deceased in the alleged manner while holding an axe, the deceased would have easily shot him dead before he could open attack. It is opposed to common sense that the accused armed with axe conveniently delivered 15 blows to the armed deceased. Fourthly, the seat, the nature and dimension of the injuries already discussed in the preceding paragraph provide a basis to infer that at relevant time, the deceased was defenceless and at the mercy of the assailant. We are not ready to accept that the appellant armed with axe succeeded to deliver 15 blows to armed deceased in presence of three eye-witnesses. Had the three eye-witnesses witnessed the occurrence in the alleged manner, they would have interfered successfully.
12. The alleged occurrence took place on the night between 9/10.12.1999 at 10.30 p.m. in which Muhammad Rafiq suffered death in presence of three eye-witnesses including his two real brotheRs. The matter was reported to the police on the following day in the morning at 7.55 a.m. The only explanation for inordinate delay in lodging the F.I.R. was that the accused confined the three P.Ws. in a room adjacent to the room in which the deceased had been murdered. Abdus Sattar, P.W. 6 claimed that he unbolted door of the room on the following day of the occurrence at sun rise time. This explanation appears to be ridiculous. Muhammad Bashir, P.W. 4 was aged about 23 years whereas Muhammad Saleem, PW. 5 was 39 years old at the time of occurrence. They both alongwith their uncle Muhammad Hanif had allegedly been confined in a room of cattle Dera. Had the young P.Ws. pushed or pulled door of the room, they would have conveniently set themselves at liberty. How can we believe that the three P.Ws. remained inside the room for the whole night despite knowing that their younger brother Muhammad Rafiq had been killed in the adjacent room. Had the P.Ws. been confined in a strong room, it would have been impossible for them to lodge the F.I.R. immediately after the occurrence. This is a question of common knowledge that very cheap quality doors are affixed at the cattle deras of ZamindaRs. The explanation for the delay in lodging the F.I.R. is, therefore, not acceptable.
13. The P.Ws. are/were inimical towards the appellant. Blood feud enmity had already locked the parties in criminal litigation. The deceased and the P.Ws. were accused of the motive murder case. We do agree with learned counsel for the appellant that without corroboration from an independent source it was not safe to believe the inimical witnesses. The learned Law Officer attempted to argue that after his apprehension, Muhammad Malik, appellant pointed out the spot of murder and also got recovered licensed rifle of the deceased, which corroborated ocular account furnished by the inimical eye-witnesses. The contention is misconceived. Had the appellant taken away rifle of the deceased after killing him on the fateful night, he would not have preserved it. The occurrence took place on the night between 9 10.12.1999. The appellant allegedly got recovered the rifle of the deceased on 23.2.2000 from a room of tube well owned by one Miraj Din. For two reasons, we do not feel inclined to attach any importance to the contention. Firstly, the appellant had ample opportunity to dispose of the licensed rifle of the deceased in between 10.12.1999 to 23.2.2000. He was not supposed to preserve it till its recovery by the police. Secondly, the place from where the rifle had been seized was not owned or possessed by the appellant. Miraj Din from whose owned and possessed room the rifle had allegedly been seized, had not been associated with the investigation. It would not be out of place to mention here that we have already dismissed the prosecution case that at relevant time the deceased was armed with a rifle with an observation that it was impossible for the assailant having an axe to deliver 15 blows to 22 years old deceased armed with 222 rifle. Pointing out of the place of murder is neither relevant nor admissible in evidence as nothing incriminating had been recovered in consequence of the alleged pointing out.
14. For what has been stated above, we are in agreement with learned counsel for the appellant that the testimonies of inimical witnesses remained uncorroborated. We, therefore, feel no difficulty in concluding that the prosecution failed to prove the charge against Muhammad Malik, appellant beyond any shadow of doubt. This is an absolute principle of law that benefit of doubt, however slight, is right of the accused. We, therefore, accept Crl. Appeal No. 355-J of 2003, set aside the conviction and sentence imposed on Muhammad Malik, appellant by the learned trial Court and acquit him of the charge by giving him the benefit of doubt. He be set at liberty, if not required to be detained in any other case.
15. Murder Reference No. 509 of 2003 is answered in the negative.
16. Death sentence recorded against the appellant is not confirmed.
17 & 18. Before parting with this judgment, we must say for the future guidance of the learned trial Court that the charge-sheet had not been properly drawn up. The learned trial Court charge sheeted the accused persons for the offence of rioting under Section 148 read with 149 P.P.C. A combined examination of Sections 141/148 and 149 would show that only five or more members of an unlawful assembly can be convicted under Section 148 P.P.C., who are actually armed with deadly weapons and none else. In the case in hand the prosecution case was that Shaukat Ali and Liaqat Ali, accused persons were empty handed. The only allegation against these accused persons was that they remained present at the spot at relevant time without raising a finger against the deceased or the P.Ws. In the circumstances, their mere presence at the spot without any weapon of offence should not have been treated as an overt act on their part. Members of unlawful assembly are liable under Section 148 P.P.C. only when they are armed with deadly weapon. Had all the challaned accused persons being members of unlawful assembly used force resulting in violence in prosecution of the common object, they would have been liable to stand trial under Section 148 P.P.C. It was Muhammad Malik, appellant alone, who allegedly assaulted the deceased and killed him. Hence, it can be safely said that mere presence of the co-accused at the spot without having any arm and without active participation in the occurrence did not provide a basis to charge them under Section 148 P.P.C. Here we must add that when the accused are charged under Section 148 P.P.C. it is imperative for the trial Court to consider the evidence as to acts of the accused for which charge under Section 148 P.P.C. is to be framed.
19. The offence of rioting punishable under Section 148 is distinct and separate offence. There is no scope for reading Section 148 and Section 149 together because the former deals with direct liability while the later deals with constructive and vicarious liability. For instance, an accused not armed with weapon at relevant time cannot be convicted under Section 148 P.P.C. read with Section 149 of the same Code. In this view of the matter, the charge cannot be framed under Section 149 P.P.C. and it is always read with other penal provisions of law. At the cost of repetition, it is note worthy that Section 148 P.P.C. is a substantive offence whereas Section 149 is not an independent, distinct and substantive offence. A bare reading of Section 148 P.P.C. would show that offence of rioting itself involves constructive liability and, therefore, no question would arise to frame the charge under Section 148 read with 149 of the Code.
20. Allegedly the accused took away licensed rifle of Muhammad Rafiq, deceased after killing him. The learned trial Court charge sheeted the accused under Section 380 read with 149 P.P.C. for having stolen away the rifle of the deceased from the spot. The learned trial Court wrongly charged the accused under Section 380/149 P.P.C. because alleged removal of the rifle comes within the ambit of Section 404 P.P.C., which reads:
"404. Dishonest, misappropriation of property possessed by deceased person at the time of his death. Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person's legally entitled to such possess, shall be punished with imprisonment of either description for a term, which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven yeaRs. "
21. A perusal of the above quoted provision of law would show that removal of rifle of the deceased after causing his death does not amount to robbery or theft because theft or robbery deal with taking away moveable property out of possession of a person whereas dead body is not a person. Hence, there was no legal basis to charge the accused under Section 380/149 P.P.C.
22. A copy of this
judgment may be sent to the learned Addl. Sessions Judge through the learned
Sessions Judge,
(Sh.A.S.) Appeal accepted.