MOHAMMED ISHAQ versus S. KAZAM PASHA & ANR.

Citation: [2009] 7 S.C.R. 1098 · Decided: 06-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

(2009]7 S.C.R. 1098 
A 
MOHAMMED ISHAQ 
1 
V. 
S. KAZAM PASHA & ANR. 
Criminal Appeal No. 937 of 2009 
B 
MAY 06, 2009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
Penal Code, 1860: ss. 148, 452, 392 - Accused persons 
allegedly broke open the doors of house of the appellant and 
,. 
removed household articles and beat resident of the house -
~ 
c Trial Court convicted A-1 under ss. 148, 452, 392 and acquitted 
others - High Court set aside conviction order passed by trial 
court however convicted A-1 under ss. 147 and 451- On appeal, 
held: Testimonies of prosecution witnesses established that 
appellant was in possession of the said house on the date of 
D offence and all his belongings were forcibly taken away in the 
lorry at the instance of A-1 - Mob of 60-70 person with a 
common object of using criminal force and to remove the 
house-hold belongings of appellant entered his house -
Gathering of mob was an unlawful assembly, which was armed 
E with deadly weapons - Same would fall u/ss.141 and 148 -
Also established that A-1 along with others committed robbery 
~ • 
- Same would fall u/s.392 - It was further proved that A-1 
committed house trespass by putting appellant and other 
inmates of the house in fear to hurt and thus, committed offence 
J-. 
F u/s. 452 - Accordingly, he is liable to conviction ulss. 148, 392 
and 452. 
Sentence/Sentencing: Commutation of sentence -
Sentence commuted by the Government on the basis of 
reports of Commissioner of police, Collector and Probationary 
G Officer - Challenged - Held: Accused was fugitive to Jaw for 
four months - He showed utter disregard to rule of law by 
~ 
evading his arrest - Executive clemency may not be extended 
; 
to a law disobeying citizen who did not surrender before trial 
H 
1098 
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 
1099 
f 
cowt as mandated by law- This vital aspect was completely A 
ignored by the Government who without application of mind 
accepted the reports submitted by different functionaries in 
·" 
undue haste and finished the entire exercise within a week 
from the date of request of commutation - Vague and bald 
statements with regard to actual disease or ailment not B 
sufficient to justify order of commutation, without ascertaining 
genuineness - Power conferred upon appropriate government 
under s. 433 must be exercised in accordance with rules - Code 
"'\ 
of Criminal Procedure, 1973 ::-- s.433 - Administrative law -
-f -
Judicial review - Exercise of power by Governor - Judicial c 
review of - Scope. 
Prosecution case was that PW-1 (appellant) was the 
resident of a Sartakhas property. Two sisters of PW-1 along 
with their daughters were residing together in the said 
house. Father-in-law of A-1 established an Arabic college D 
by the side of house of PW-1. A-1 was working as librarian 
• in the said college. A-2 to A-5 were employees of the said 
college whereas A-6 and A-7 were friends of A-1. 
A-1 to A-7 wanted PW-1 to vacate the house occupied E 
by him and tried to evict him forcibly but locality of the 
\ 
people intervened and made their efforts futile. On the day 
of incident, A-1 to A-7 broke open the doors of the house 
of PW-1. When PWs 7, 9, 10 and 13 prevented A-1 and 
Jill( 
others from removing the household articles, they were 
beaten up by the accused persons. They loaded the F 
articles and emptied the house. PW-1 came to know that 
his articles were hidden in a house. He filed a petition 
under section 94 Cr.P.C. for issuance of search warrant. 
On search, the household articles belonging to appellant 
party were seized and the MM released articles pending G 
~ disposal of the case. The trial court found A-1 guilty for 
offence under Sections 148, 452 and 392 IPC. However A-
2 to A-7 were acquitted. 
Aggrieved A-1 filed appeal before the High Court H 
1100 
SUPREME COURT REPORTS 
[2009) 7 S.C.R. 
A contending that since A-2 to A-7 were acquitted, it was 
not proper to convict him on the same set of evidence. 
The High Court partly allowed the appeal filed by A-1 and 
set aside his conviction for the offences under Sections 
148, 392 and 452 IPC and acquitted him of the same. 
B However, High Court convicted A-1 for the offences under 
Sections 147 and 451 IPC. 
Aggrieved by the said decision of the High Court, 
PW-1 though not a party before the High Court, preferred 
the present SLP as the State chose not to file an appeal 
C against the judgment of the High Court. PW-1 also filed 
writ petition under Art

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