MUHAMMAD FAZIL Versus STATE

MUHAMMAD MUNIR KHAN, J.‑‑‑ This petition arises from the facts that in the occurrence which took place on 14‑5‑1990 at 1‑30 p.m. is village Langrial, five kilometres from Police Station Kukrali, District Gujrat, Muhammad Fazil petitioner, his brother Muhammad Iqbal and three unknown persons forcibly took away Mst. Munaza Kausar aged 15 years with intent that she might be forced to sexual intercourse, and committed the murder of Kaley Khan the grandfather of the abductee, in the presence of Mst. Muzammal Jan P.W. 8 mother of the abductee, Ghulam Sarwar P.W. 9 and Fazal Hussain (not produced). According to the prosecution case, Muhammad Fazil petitioner had demanded the hand of Mst. Munaza Kausar for his brother Zulfiqar. Kaley Khan deceased was not inclined to this proposal. When Muhammad Iqbal co- accused came to their house, the deceased showed his unwillingness to the demand made by the petitioner and asked him not to come to their house. On the fateful day, Mst. Muzammal Jan P.W. 8 accompanied by her daughter Mst. Munaza Kausar and Kaley Khan deceased aged 70 years was returning to her house from Government Girls High School, Langrial where they had gone for the admission of Mst. Munaza Kausar. On the way, GhulamSarwar P.W. 8 and Fazal Hussain (not produced) joined them. In the meantime, Muhammad Fazil petitioner alongwith Muhammad Iqbal carrying gun in his hands and three unknown persons appeared on the scene. Muhammad Iqbal accused asked the petitioner to catch hold of Mst. Munaza kausar and take her away, whereupon the petitioner caught hold of her by the arms and wanted to take her away when Kaley Khan intervened and was fired at by Muhammad Iqbal absconder accused who fell down. The three accused threatening the persons present there with dire consequences and forcibly took away Mst. Munaza Kausar with them. Kaley Khan died on the spot. Muhammad Fazil petitioner was arrested on 6‑6‑1990. Muhammad Iqbal absconded and is still at large. Mst. Munaza Kausar has not been recovered so far.

2. . The petitioner was tried by the Additional Sessions Judge Gujrat, who, on 28‑3‑1991 convicted him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to imprisonment for life, ten stripes and a fine of Rs.10,000 or in default 6 months' simple imprisonment. He‑ was sentenced to one year R.I. and a fine of Rs.500 or in default one month's S.I. under section 148, P.P.C. He was further convicted under section 302/149, P.P.C and sentenced to imprisonment for life and a fine of Rs.25,000 or in default 6 months' S.I. The appeal filed by him against his convictions and sentences has been dismissed by the Federal Shariat Court on 12‑12‑1991. Hence this petition.

3. Learned counsel for the petitioner has argued that the petitioner is innocent. He has falsely been involved in the case on account of his relations with Muhammad Iqbal absconder accused and that since he was empty‑handed and had not caused any injury to the deceased, his conviction under section 302/149, P.P.C was not justified.

4. We do not agree with the learned counsel for the petitioner. The parties are related to each other. The two eye‑witnesses Mst. Muzammal Jan P.W.8 arid Ghulam Sarwar P.W.9 had no enmity to involve the petitioner falsely in the case. In the promptly lodged F.I.R. the name of the petitioner and the part played by him during the occurrence have been mentioned. We have been impressed by the straightforward manner in which the eye‑witnesses have made their statements. Although they could say that the petitioner and the three unknown accused were armed with lethal weapons yet they had not stated so. They could also name the other relatives of Muhammad Iqbal but they have not named any one and have stated that the three persons who were accompanying Muhammad Iqbal were not known to them. Their evidence has been believed by the two Courts below. Mst. Munaza Kausar has not been recovered so far. Muhammad Iqbal is still at large. We. do not see any infirmity in the statements of the eye‑witnesses, and also do not find any cogent reason for involving the petitioner falsely.

5. Adverting to the question of attraction of the provisions of section 149. P.P.C., relevant provisions of law/P.P.C may be reproduced advantageously:‑‑

"141. Unlawful assembly .‑‑An assembly of five or more persons is designated an `unlawful assembly,' if the common object of the persons composing that assembly is ‑‑

First : ‑xxxxxx

Second .‑‑xxxxxxxxxx

Third .‑‑to commit mischief or criminal trespass, or other offence; or

Fourth .‑‑xxaxxxx

Fifth.‑‑by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation .‑‑An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. ‑‑If an offence is committed by an), member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in Prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

We find that section 149, P.P.C creates a distinct head of criminal liability commonly known as constructive liability and a charge under section 149, P.P.C puts a person on notice only of the fact that the offence was committed by a member of the unlawful assembly in prosecution of common object or such as was known to be likely to be committed, and the unlawful assembly is constituted as soon as five or more persons assemble to commit any offence; and an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly if the common object is to commit a crime. Since the facts of the two cases seldom co‑exist, so there can be no hard and fast rule to cover each case and each case has to be decided on its own facts. In the instant case, five persons had come together apparently to commit an offence of the abduction of Mst. Munaza Kausar and had taken part in the occurrence. So, there was an unlawful assembly within the meaning of section 141, P.P.C. One of them was carrying gun in his hands which could be visible to other members of the assembly. Gun is a weapon which could not have been concealed or remained unknown to the co‑accused. In the cases forcible abduction of a woman,‑ each member of the assembly could foresee resistance by her relatives and as such each accused knew that some persons might be killed in the adventure. In this view of the matter, in the peculiar circumstances of the case that five persons had gone to forcibly take away a girl of 14/15 years and one of them was armed with a gun, the petitioner can safely be fixed with the knowledge that some persons might be killed in the course of abduction. So, the second part of section 149, P.P.C is fully attracted to this case and the petitioner will be guilty of the murder in spite of the fact that he has not caused any injury to the deceased.

6. For what has been stated above, there being no merit, leave to appeal C is refused and the petition is dismissed.

N.H.Q./M‑3053/S Leave refused.