Soofi Abdul Mazid And Ors. vs State
1988 Latest Caselaw 386 Del

JUDGMENT

Charanjit Talwar, J.

(1) These two appeals arise out of a common judgment.

(2) Criminal Appeal No. 117 of 1985 has been filed by the following. appellants : 1. Soofi Abdul Mazid. 2. Mohd. Rafiq. 3. Mohd. Moin Feroz Siddiqui. 4. Khursheed Hassan. 5. Zamil Ahmed. 6. Anwar Ahmed. 7. Afroz Hassan. 8. Nabi Ahmed.

(3) Criminal Appeal No. 145 of 1985 has been filed by Shahid Hassan, who was a co-accused with the above-named. Along with the above nine accused, one Feroz Hassan was also tried for offences punishable under Sections 147 and 302 read with Section 149 of the Indian Penal Code. All of them have been convicted for these offences.

(4) The appellants were also charged for the commission of an offence punishable under Section 307 read with Section 149 of the Indian Penal Code. However, they have been acquitted of that charge.

(5) Further, three of them, namely Feroz Hassan, Nabi Ahmed and Anwar Ahmed, who were alleged to be armed with deadly weapons at the time of the assault, have been found guilty for an offence under Section 148 of the Indian Penal Code, while all of them have been found guilty under Section 147 of the Indian Penal Code.

(6) It appears that all the accused were on bail during trial. After the impugned judgment was announced, accused Feroz Hassan and Shahid Hassan absconded. The order of conviction which was also announced on the same day, i.e., April 30, 1985 after lunch interval, shows that the attendance of these two accused was directed to be secured through non-bailable warrants. Shahid Hassan was subsequently arrested and sent to jail to undergo life imprisonment. Feroz Hassan is still absconding. We may note that Feroz Hassan was the accused who is stated to have stabbed Hafiz Ameeruddin. resulting in his death. The incident occurred at 5.15 A.M. on 16th April, 1982 near a mosque in the main Gali of Mohalla Vijay, Maujpur, Seelampur. Delhi.

(7) The prosecution case was that the accused and some other persons we bent upon taking forcible possession of the mosque and its properties known as 'Jama Masjid' situated in the said mohalla. It has been brought on record that an evening prior to the date of occurrence, a complaint was lodged by the Management Committee of the said mosque with the S.H.O., Police station, Seelampur, Delhi, in which the evil design of some of these accused was spelled out and a request was made that as all the residents of the locality were apprehending danger to their lives and properties, proper steps be taken by the police authorities against the named culprits. This complaint was signed by 11 persons. We may note that the deceased was not a signatory to this complaint which has been exhibited as Public Witness . 1/B. It reads as under: "TO 15th April, 1982 The S.HO. P.S. Seelampur, Shabdara, Delhi. Subject : Hooliganism at Jama Masjid situated in Vijay Mohalla Mauzpur. Sir, It is respectfully submitted that Mohd. Mueen Siddiqui, a resident of Chauhan Banjer along with Firoz Husain, Rafiq, Khursheed Hasan Chaiwala, and Sufi Abdul Majid deals in the sale and purchase of properties and commission basis at Mauzpur. All these people with the help of local and outside scoundrels hurl abuses and pass remarks on the gentlemen who come to offer prayers in the mosque, situated at Vijay Mohalla in Mauzpur and try to make them run away from the mosque, so that they may take possession over the property including shops under construction of the mosque by creating terror and chaos. They are armed with knives, daggers, pistols, hockey sticks and lathi etc. They stand on the sides of the mosque particularly in the hour of prayers and hurl abuses on the residents of locailty. Because of this lot of panic and terror is prevailing in the area of Mauzpur and here is apprehension of breach of peace of the whole area. It has become difficult for peace loving people to live in the locality. The names of the some of "the goondas are criminals" by occupation are as under :- 1. Shahid, 2. AfrozHusain, 3. Anwar, 4. Jamil Kabuterbaz and 5. Chooni. Besides them some other persons are also involved whose names are not known but could be identified if confronted with. All these persons are in the profession of occupying the properties of weak innocent people by beating and harassing them and to disturb the peace and tranquilly of the area. They have already occupied some other properties by such means. There is apprehension of breach of peace if no proper action is taken against these persons. The residents of locality apprehend danger to their life and property. Yours faithfully, "On behalf of Management Committee Jama Masjid Vijay Mohalla, Maujpur, Delhi." The first Set of accused named therein is : Mohd. Moin Feroz Siddiqui - Appellant No. 2 in Cr. A. 117/85 Feroz Hassan - Absconded after conviction Rafiq - Appellant No. 3 Khursheed Hassan Chaiwala - Appellant No. 4 Soofi Abdul Mazid - Appellant No. 1 These accused, according to the complaint, had sought the help of the goondas and criminals, who were also named. Those are : 1. Shahid-Appellant in Cr. A. 145/85. 2. Afroz Hassan-Appellant No. 7 in Cr. A. 117/85. 3. Anwar-Appellant No. 6. 4. Jamil Kabuterbaz-Appellant No. 5 ; and 5. Chooni.

(8) In the report under Section 173 of the Criminal Procedure Code apart from the 10 accused, who were tried and convicted, one Shibu had also been named as a member of the unlawful assembly. He, however, was declared as a proclaimed offender.

(9) The statement which is the basis of the first information report was made by Shakeel Ahmed, Public Witness . 1. It was recorded by A.S.I. Balbir Singh, who had reached the place of occurrence after the above said complaint (Ex. Public Witness . 1/B) had been marked to him. He was directed to investigate into the allegation of apprehension of breach of peace in the locality. From the endorsement made by him underneath the statement of Shakeel Ahmed, it seems that when the police reached the spot, the stabbing incident had already taken place. The first informant reiterated the allegation that the accused were preventing the people of the locality from offering Namaz (the daily prayers) in the mosque so as to take possession of the shops which were being built in its premises. Shakeel Ahmed in the report has also referred to the said complaint made on behalf of the Managing Committee during he night 15th 16th April, 1982. About the incident, he stated that a little before the occurrence, he and some others of the locality, whom he also named, were going to the mosque for offering prayers when all of a sudden six accused, who were known to him and were also known to each other, came in the main road near the gali outside the mosque and caught hold of his brother-in-law Hafiz Ameeruddin from near the gate of the mosque. Those six persons were : 1. Mohd. Moin Feroz Siddiqui, son of Mohd. Abdul Ahmed Siddiqui. 2. Feroz Hassan, son of Azir Hassan. 3. Shahid Hassan, s/o Khurshid Hassan. 4. Khursheed Hassan, s/o Zamir Hassan. 5. Soofi Abdul Mazid, s/o Abdul Karim ; and 6. Mohd. Rafiq, s/o Basir Ahmed.

(10) He further stated that Mohd. Moin Feroz Siddiqui exhorted his companions to kill Hafiz Ameeruddin. Thereupon those six persons dragged him and then physically lifted him and took him to a vacant plot in the gali which was at some distance from the mosque where Feroz Hassan gave three or four knife blows to Hafiz Ameeruddin as a result of which he died at the spot. It was the case of the prosecution that when his brother-in-law was being dragged, the companion of the first informant tried to prevent the accused but the other set of accused, namely Shibbu (proclaimed offender), Nabi Ahmed, Anwar Ahmed and Jamil Kabuterbaz and Afroz Hassan started grappling and beating the rescuers and, therefore, Ameeruddin could not be saved from them. The first informant further stated that out of the second set of accused, Afroz Hassan in the meanwhile, entered the house of Ameeruddin and gave a knife blow to Abdul Hamid, the father of the deceased. Two other accused, viz., Jamil Kabuterbaz and Anwar Ahmed inflicted injuries with sharp edged objects on Nizamuddin and Faik Ali, two of the rescuers respectively. Nabi Ahmed gave danda blows to Jamshed and Shibbu (proclaimed offender) gave beatings to the first informant. Thereafter all the 11 accused managed to escape. Hafiz Ameeruddin was found to be dead at the place of occurrence. His body was put on a cot and brought near the main road.

(11) This report was dispatched to the police station at 6.30 a.m. on April 16, 1982 by A.S.I. Balbir Singh, on the basis of which a formal F.I.R. No. 117 (Ex. Public Witness . 17/A) was recorded at 6.45 a.m.

(12) The learned trial court in conclusion has found that : "IT has been established beyond any shadow of doubt that these 10 accused along with one Shibbu had formed an unlawful assembly, the common object of which was to murder Ameeruddin and in prosecution of the common object of that assembly, they used force and violence towards the prosecution witnesses by grappling with them and even to the deceased Ameeruddin and committed the murder of Ameeruddin and thus all these accused committed an offence punishable under Section 147 and 302 read with Section 149 of the Indian Penal Code."

(13) The charge against the 10 accused under Section 452/307 read with Section 149 of the Indian Penal Code was not found to have been proved as no evidence was led by the prosecution regarding the allegation that the accused Afroz Hassan had given any stabbing injury to Abdul Hamid (father of Ameeruddin). However, all the accused were convicted under Section 147 of the Indian Penal Code and three of them, viz., Feroz Hassan, Nabi Ahmed and Anwar Ahmed were convicted under Section 148 of the Indian Penal Code.

(14) The first question which arises for our consideration in these appeals is whether apart from the act of Feroz, Hasan, who actually stabbed to death Hafiz Ameeruddin, the offence of the other nine accused falls within the purview of murder punishable under Section 302, Indian Penal Code read with Section 149 of the Indian Penal Code.

(15) The finding of the learned trial Judge that there was unlawful assembly is to be upheld but what is to be re-assessed is the common object of that unlawful assembly. If the common object of that unlawful assembly was to murder Hafiz Ameeruddin, then the offence of murder committed by Feroz Hassan can be said to be an act of the other 9 accused done in prosecution of the common object of that unlawful assembly. The vicarious liability of the other 9 accused would also extend if it is found that as members of the unlawful assembly they knew that the said offence was likely to be committed in prosecution of that object. Before we deal with this question, we may note that it is on record that about 200 persons had collected near the said mosque on the morning of 16th April, 1982 at about 5.15 a.m. To investigate into the complaint (Ex. Public Witness . 1/B),whichwas submitted by the Management of the mosque, the police party did arrive at the spot at about that time.

 (16) Public Witness . 3, Mohd. Shahid, in cross-examination admitted that :    "WHEN the police arrived at the spot there was a large crowd of about 200 persons ; none of them were taken to the police station by the police in my presence ; there was no noise at night ; there was a noise when I went to the place of occurrence ; when I reached there I saw 200 persons there ; I did not hear the noise when I was at my house ; there was no noise at night ; the noise started at about 5 a.m.   

 (17) The other eye witnesses to the occurrence also admitted that lot of people had collected at the spot before morning prayer. Thus it can be safely held that in the morning of 16th April, 1988 at about 5.15 a.m. the assembly consisted of about 200 persons. All of them did not constitute unlawful assembly. It appears, most of them were curious on lookers.   

 (18) The prosecution evidence, however, has established that apart from the eleven accused, there were many others who were members of unlawful assembly.   

(19) As noticed earlier, the management of the mosque was apprehending that the accused named in the said complaint were going to commit breach of peace. Atleast 28 others had assembled Along with them to prosecute that object. According to Public Witness . 2 Mahfooz Ahmed, on that day, 28 persons were arrested under Section 107/151 of the Criminal Procedure Code in connection with the dispute of the mosque. Inspector Daryao Singh, P.W. 21 has also admitted this fact but he said that they were arrested in the evening by A.S.I. Haraswarup. A.S.I. Haraswarup was, however, not cited as a witness in the present case.

(20) The facts established do prove that there was an unlawful assembly as defined in Section 141 of the Indian Penal Code of atleast about 40 persons. But it does appear that the common object of that unlawful assembly was not to commit the murder of Hafiz Ameeruddin. The common object has been brought out vividly on the record through two prosecution witnesses. Public Witness . 1 Shakeel Ahmed has clearly stated that the object of the accused was to take control not only of the mosque but of the shops which were attached to the mosque. He in his examination-in-chief said that: "THE mosque where we were to go to offer prayers was under construction and we had made a provision for the construction of four shops attached to this mosque and had laid the foundation for the same. The accused wanted to take control and possession of the mosque and the shops attached to the mosque. Whenever we went to offer prayers, the accused namely, Mohd, Moin Feroz Siddiqui, Feroz Hassan, Khursheed Chaiwala, Soofi Abdul Mazid, Mohd, Rafiq used to abuse and threaten us and also prevented us from offering prayers. There was a management committee for the control of this mosque and I was Secretary of the same. On 15-4-82 at about 4.30 p.m. the accused had misbehaved with Hafiz Ameeruddin and he had made a complaint to the President of the Management Committee. The name of the President is Abdul Sattar. We held a meeting on the same day at 9.30 p.m. We decided in the meeting that a complaint be given to the police that we apprehended danger to our lives from these persons. We drafted an application and gave it to Abdul Sattar after signing the same so that he may give it to the police."

(21) Public Witness . 2 Mahfooj Ahmed while deposing about the motive of the commission of the crime, stated that : "THE motive for the commission of this crime was that the accused wanted to take possession of the mosque Along with four shops to be constructed and attached to the mosque. I am a member of the Management Committee. Complaint Ex. Public Witness . 1/B bears my signatures, at mark 'B'. This complaint was to be given to the police by Abdul Sattar to whom it was handed over in a meeting held on 15-4-82."

(22) Public Witness . 1 and P, 2 are the signatories to the complaint (Ex. Public Witness . 1/B). They prove the common object. However, the further question is whether in the facts and circumstances established, it can be said that the other members of that assembly, including the ten accused (apart from Feroz Hassan) knew before hand that Feroz Hassan would be committing that offence in prosecution of the established common object which was to forcibly occupy the properties of the mosque.

(23) Now about the status of HafizAmeeruddin. As we have noted above, he was not a signatory io the complaint (Ex. Public Witness . 1/B). No prosecution witness has stated that he was a member of the Managing Committee of the Jama Masjid Mosque, He was on that day going into the mosque in the company of Public Witness . 1 Shakeel Ahemd and others to offer prayers. One prosecution witness has stated that some times he used to act as an Imam of that mosque. The prosecution case is not that he was the Imam of that Masjid, or that there was any threat given by any of the accused to his life prior to the incident although one of the accused had misbehaved with him on 14th April, 1982.

(24) It is stated that at the time when Feroz Hassan was giving stabbing injuries to Hafiz Ameeruddin, his brother Afroz Hassan entered the house of Abdul Hamid. father of the deceased and gave him a knife blow. This act of Afroz Hassan cannot be said to be even remotely connected with the object of the unlawful assembly even if for the sake of arguments it is to be taken that the unlawful assembly was for the object of murdering Hafiz Ameeruddin. Afroz Hassan is the son of Azir Hassan. He has given his address as resident of 1439/1, Zafarabad, Shahdara, Delhi in his statement under Section 313 of the Criminal Procedure Code. Feroz Hassan has also in his statement under Section 313 of the Criminal Procedure Code stated that he is the son of Azir Hassan and is resident of the said house. The fact that these two accused are brothers is to be accepted. In any case, the prosecution did not lead any evidence to show that they were not sons of Azir Hassan.

(25) All the prosecution witnesses say that Afroz Hassan had entered the house of Abdul Hamid when his son Hafiz Ameeruddin was being taken to the vacant plot. The case is not that after the stabbing incident of Ameeruddin, Afroz Hassan entered the house to stab Ameeruddin's father, but that both these incidents were simultaneous. The prosecution could not prove the offence of attempt to murder on the part of Afroz Hassan and consequently the offence of Section 307 read with Section 149 of the Indian Penal Code on the part or all the other accused has not been made out. The reason being that Abdul Hamid could not be produced. It is stated that he informed the witnesses that he was injured by Afroz Hassan. However, the case as laid before the court was that the common object of the unlawful assembly was not only to murder Hafiz Ameeruddin but was also to injure Abdul Hamid. The evidence, however, shows that these were two distinct acts committed at almost the same time at two different places away from the vicinity of the mosque.

(26) Further, it is not the case of any of the witnesses that when Ferox Hassan accosted them in the morning, he was seen with any weapon in his hand although the witnesses are unanimous that he stabbed Hafiz Ameeruddin on exhortation of Mohd. Moin Feroz Siddiqui, another accused. Hafiz Ameeruddin was dragged to a vacant plot by four accused. It seems to us that although Mohd. Moin Feroz Siddiqui had misbehaved with Ameeruddin a day earlier probably about the management of the mosque, the two stabbing incidents by Feroz Hassan and Afroz Hassan, who are brothers, cannot be held to be on his exhortation. The trespass of Afroz Hassan into the house of Abdul Hamid and thereafter allegedly stabbing him and the act of stabbing Ameeruddin by Feroz Hassan, absconder, cannot be held to be in prosecution of the common object of the unlawful assembly or at the exhortation of Mohd. Moin Feroz Siddiqui.

(27) There is another aspect of the case. From the facts established, it appears that one of the accused, namely, Nabi Ahmed who was arrested by the police from the spot a little after the occurrence, was found to have lacerated injuries on his person. We disagree with the finding of the learned trial court that those injuries were not caused to him while he was trying to escape. It is apparent that there was some sort of scuffle also between the supporters of the Managing Committee of the mosque and the members of the unlawful assembly, who were trying to occupy the properties of the mosque.

(28) The prosecution evidence has established that it was Feroz Hassan who murdered Hafiz Ameeruddin but in the facts and circumstances of the case it has to be held that the offence was not committed by him in prosecution of the common object of the unlawful assembly. It was his individual act. The over act of his brother Afroz Hassan, as laid before the court, was also un-connected with the common object of the unlawful assembly. These two brothers, it appears were settling their personal score. Feroz Hassan is not before us. He has absconded. The finding (quoted above) that the other accused as members of the unlawful assembly, shared the common object to murder Hafiz Ameeruddin, is not sustainable. Therefore, the present appellants are acquitted of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. The sentence of life imprisonment as also the sentence of payment of fine awarded to them for this offence, are thus set aside.

(29) We, however, agree with the findings that there was an unlawful assembly, as alleged, of which these appellants were members. The object of this assembly was to commit mischief or trespass and to obtain possession of the mosque and the shops attached thereto. The punishment awarded to each of the appellants to undergo rigorous imprisonment for two years turn that offence is upheld. Further, we uphold the finding of the trial court that Feroz Hassan, Nabi Ahmed and Anwar Ahemd were armed with deadly weapons. The conviction of appellants Nabi Ahmed and Anwar Ahmed under section 148 of the Indian Penal Code and sentence for two years imposed on them for that offence is upheld. The sentence, however, shall run concurrently, as directed by the trial court.

(30) The result is that the appeals are allowed to the extent indicated above.