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Criminal Appeal No. 864 of 1965, decided on 15th December 1967.
S. 148‑Unlawful assembly‑Rioting‑Both parties sticking to different versions relating to same occurrence‑Attendant circumstances, closely scrutinised, would go a long way to establish veracity of one version and belie the other.
Ss. 148 & 149‑Unlawful assembly ‑ Rioting = Common object‑Inference from relevant circumstances of case irresistable that accused party had come fully armed with common object of dealing with complainant party, and knowing that they were likely to be faced with armed resistance if they persisted in prosecution of common object‑Section 149 applicable in circumstances.
Jonab Ali and others v. The State P L D 1961 Dacca 420 distinguished.
, S. 148‑Rioting‑"Deadly weapons"‑Accused using sticks in fight‑"Sticks", whether deadly weapons‑Doubtful‑Accused given benefit of doubt and convictions set aside.
The State v. Amiruddin and others P L D 1964 Kar. 231 fol.
S. 423(I) (b) Sentence ‑ Mitigation ‑ Convictions under Ss. 148 & 325/149, P. P. C.‑No active part in fight consistently attributed to two accused, one aged 70 years and the other 17/18 years‑Sentences of accused reduced to periods of imprisonment, already undergone by them.
Malik Muhammad Sharif and Raja Muhammad Anwar for Appellants.
Malik Abdul Hamid for A.‑G. for the State.
This Criminal Appeal by seven persons related inter se is directed against the order of the learned Additional Sessions Judge, Multan, dated 20th November 1965, whereby appellants Nos. 1 to 6 were awarded a sentence of one year R. I each under section 148, P. P. C. five years' R. I. each plus a fine of Rs. 200 or further six months' R. I. in default of payment thereof under section 325/149, P. P. C. for causing grievous injuries to Ahmad Ali deceased in prosecution of the common object of their unlawful assembly, three years' R. I. each plus a fine of Rs. 100 or further three months' R. I. In default of payment thereof under section 325/149, P. P. C. for causing grievous injuries to Karamat Ali P. W. and six months' R. I. each under section 323/149, P. P. C. for causing injuries to Bashir, Shareef, Ali and Ali Nawaz P. Ws. In view of his old age Azmat Khan appellant No. 7 who was also convicted on all the four counts was awarded a sentence of six months' R. I., two years' R. I. plus a fine of Rs. 200 or three months' S. I. in default of payment thereof, one year's S. I. plus a fine of Rs. 100 or one month's S. I. in default of payment thereof and three month's S. I. respectively. The sentence had, however, been ordered to run concurrently.
2. The brief facts giving rise to the case are that two cross -cases were registered under sections 148, 307/149, P. P. C. at Mian Channu Police Station on 28th April 1965, in regard to two different versions of the same occurrence in which members of both the parties were injured. The one against the appellants was registered at the instance of Karamat Ali (P. W. 9) at 4‑10 p.m. while the other was registered at the instance of Abdul Ghafur appellant No. I at 4‑50 p.m. against Karamat Ali and others P. Ws. in the. instance case. The two reports are in agree ment to soma extent regarding the origin of the fight, and having run parallel to extent give divergent views of the actual manner of the fight each claiming the right of self‑defence against the other dubbing it as the aggressor. Ali Nawaz (P. W. 10)'Azmat Khan appellant No. 7 and some others had jointly owned 22/23 acres of land mauza Abrim, Police Station Kot Chota in Dera Ghazi Khan district. Abdul Ghafoor appellant No. 1 admittedly leased out this land to Suleman (P. W. 8) for one year for a, sum of Rs. 250 though mentioned Rs. 190 in the relevant receipt Exh. P. Q. allegedly obtained by him from Abdul Ghafoor in token of full and final settlement. A day earlier on 27th April 1965, Suleman P. W. visited Ali Nawaz in Chak No. 98/15‑A to which the parties belong and stayed with him for the night. On the following' morning at about 7/8 a.m. Suleman P. W. was sitting with Karamat Ali complainant (P. W. 9) and Ali Nawaz (P. W. 10) in their common baithak along with Muhammad Shareef (P. W. 13), Muhammad Bashir (P. W. 14) and Ahmad Ali deceased. They were enjoying a smoke when Azmat Khan appellant No. 7 came there and demanded the lease money from Suleman who replied that he had already paid the same to Abdul Ghafoor and had also obtained a receipt from him. At this Azmat Khan left and re‑appeared after a short while along with Abdul Ghafoor appellant No. 1. Suleman reiterated the same position in the presence of Abdul Ghafoor who denied the receipt of the amount. At this Azmat Khan abused Suleman and called him a dishonest person (be‑iman) to which Ali Nawaz took exception saying that Suleman was their guest and it amounted to their insult. This led to an altercation but Azmat Khan and Abdul Ghafoor left only to re‑appear armed with dangs along with the remaining five appellants namely, Akhtar and Ramzan sons of Azmat Khan, Sadiq and Shafi sons of Qadir Khan and Khurshed their first cousin and a brother of Abdul Ghafoor. The wife of Azmat Khan and the mother of Akhtar and Ramzan appellants is the father's sister of Abdul Ghafoor and Khurshid appellants. They challenged Suleman who ran inside the baithak and chained the same from inside. It appears that the P. Ws. had by this time come out of their baithak. Ahmad Ali deceased came forward and tried to dissuade the appellants from attacking Suleman, but Abdul Ghafoor and Ramzan responded with blows with their respective sticks hitting him on the head, which felled Ahmed Ali deceased. His brother Karamat Ali complainant who tried to rescue him was hit by Akhtar and Abdul Ghafoor respectively on the right ribs and the head. Ramzan hit him on his left arm. While trying to intervene Ali Nawaz P. W: also received blows at the hands of Akhtar and Khurshid appellants respectively on his head and left hand. Muhammad Shareef was hit by Sadiq and Abdul Ghafoor appellants on the head and the right elbow. This attracted Bashir brother of Karamat Ali complainant and Ahmed Ali deceased who was engaged by Ramzan giving him a blow on the head. Seeing them persist in their attack Muhammad Shareef brought the licensed gun of Ali Nawaz and fired with it. Sub sequently Ali Nawaz also fired two shots with it taking from Shareef. As a result of the shots fired by Muhammad Shareef and Ali Nawaz, Khurshid appellant, one Asghar Ali Shah, a non resident of the village and Mst. Sairan who was not produced, were injured and received pellet wounds. It was admitted by Karamat Ali in his report that Abdul Ghafoor and Khurshid appellant had been dealt blows in self‑defence and that if Muhammad Shareef had not fired with the gun the assailants would have killed them.
3. In the defence version as emerging at the trial the first two visits of Azmat Khan to the baithak of Karamat Ali and Ali Nawaz P. Ws. one singly and the other along with Abdul Ghafoor, were admitted. It was admitted that Azmat Khan after having confronted Suleman with Abdul Ghafoor called him be‑iman which was resented by Karamat Ali, Ali Nawaz, Bashir and Muhammad Shareef P. Ws. on the ground that Suleman was their guest and that Karamat Ali put a safa around the neck of Azmat Khan and he and Ali Nawaz started slapping him on the face while Ahmad Ali gave a dang's blow on the head of Abdul Ghafoor. The latter's alarm attracted the other five appellants who came armed with dangs and while trying to rescue Azmat Khan and Abdul Ghafoor gave blows to the deceased and the P. Ws. in exercise of the right of private defence. Asghar Ali Shah was produced as the solitary witness in defence who supported the aforesaid version.
4. On receipt of injuries Ahmad Ali deceased became un conscious and was removed to the hospital at Mian Channu where he was examined by Dr. Muhammad Hafeez, Medical Officer, who found a bone deep lacerated wound on the right side of his head above the right ear with a depressed fracture of the underline of the right parietal bone and a swelling in an area 5" x 3", a swelling on the left side of head 2' x 2" a swelling on the back of the right hand 4" X 3", and a bruise on the right side of back below scapula 4" X 2". The upper lip and the face were paralysed and the condition was dangerous. A few days later Ahmed Ali was removed to Nishtar Hospital, Multan where he died on 6th May 1965. Post‑mortem examination was performed on the following day at 4 p.m. by Dr. Imtiaz Ahmed, Medical Officer, Civil Hospital, Multan, who found the following injuries:
(1) Two healed scars 3/4" x 3/4" each close to each other on the right side of head with contused area, 4" x 1 .
(2) A contused area, 3 x 1", on the back of left ear and left side of neck.
(3) A scabbed wound, 1/2" x 1/3 , on the palmer aspect root of right thumb.
(4) Right periorbital region was contused around the right eye.
On internal examination a depressed fracture 5" x 4" was found under injury No. 1 involving temporal parietal and frontal bones of the right side. A linear fracture 6" was found on the left side of the head and the sixth rib was also fractured on the right side. Death in the opinion of the doctor was due to shock and exterdural and interacrantial haemorrhage. Injury No. 1 was found sufficient in the ordinary course of nature to cause death.
Karamat Ali (P. W. 9), Ali Nawaz (P. W. 10), Muhammad Shareef (P. W. 13) and Muhammad Basher (P. W. 14) who were also injured during the fight were all examined by Dr. Muhammad Hafeez (P. W 16). Karamat Ali sustained nine injuries all caused with a blunt weapon and mostly bruises and abrasions with two lacerated wounds on the back and right side of the head. Two of these injuries causing fracture of the right clavicle bone and dislocation of the acromi‑clavicular joint were found to be grievous, the rest being simple. Ali Nawaz sustained five simple injuries with a blunt weapon with three swellings on the left shoulder, left wrist joint and behind the left ear, one abrasion on the back of the left lower arm and one bruise on the back of the left shoulder. Muhammad Bashir sustained three simple injuries a lacerated wound on the left side of the forehead, a swelling on the outer side of the left shoulder, and an abrasion on the left ankle. Muhammad Shareef had nine injuries on his person all simple caused by blunt weapon, which were mostly abrasions with one lacerated wound and two swellings. From amongst the appellants Abdul Ghafoor and Khurshid were also examined by the same doctor, Khurshid appellant was found to have sustained one lacerated wound on the left side of the head, 19 gun shot pellet wounds on the left side of head and face, 3 gun shot pellet wounds on the left side of the base of the neck, a gun shot pellet wound on the left side of the front of chest, a swollen abrasion on the back of left hand, and a bruise on the back of left shoulder. Abdul Ghafoor appellant had two simple lacerated wounds on the top and left of the head, caused by blunt weapon. D. W. 1 Asghar Ali Shah and Mst. Sairan were also examined. The former sustained a gun shot pellet size wound on the right side of the serotum and 32 pellet size wounds on the front of the left thigh.
5. The two causes were partly investigated by Muhammad Amir Khan, S. I. (P. W. 7) who sent up both the parties to stand their trial. On the death of Ahmad Ali the charge against the appellants altered from 307/149, P. P. C. to 302/1.49, P. P. C. The learned Additional Sessions Judge to whom bath the parties were committed for trial acquitted the complainant party by a simultaneous judgment of even date, and convicted the appellants vide the impugned judgment giving rise to the present appeal.
6. It was the prosecution's own case before the learned trial Judge that the appellants wanted to attack Suleman who had shot himself up in the baithak and it was only on the intervention of the deceased and the P. Ws. that the latter were attacked. While discarding the defence version in the instant case, the learned trial Judge was mainly influenced by the glaring discrepancy to the nature and number of injuries received by the two parties. Except the pellet wounds sustained by D. W. 1 and one Mst. Sairan, the other injured appellants namely, Abdul Ghafoor and Khurshid sustained simple injuries. It could also be clearly spelt out from the statements of the appellants that the gun was used later, which was also in consonance with the prosecution version. Consequently, it was held that the appellants having formed themselves into an unlawful assembly armed with deadly weapons with the common object of assaulting the complainant party, made a concerted attack on the latter. Since it was the prosecu tion's own case that the assailants wanted to attack Suleman with no intention to, kill, they were all convicted for offences under sections 248,.325/149 and 323/149, P. P. C. The defence version supported by the solitary statement of Asghar Ali Shah D. W. was not believed.
7. The learned counsel for the appellant raised the following contentions before me: ‑‑
(i) That the intention to cause injuries in furtherance of the common object did not stand established against the appellants and as such at best it would be a case of a. sudden fight not justifying convictions under sections 148 and 149, P. P. C. which were bad in law.
(ii) That the possibility of the false implication of at least Azmat and Shafi to whom no specific part had been ascribed in the fight cannot be overruled.
8. The main question that falls for determination," however, is whether it was a case of a sudden fight developing out of an altercation between appellants Nos. 1 and 7 and members of the complainant party which attracted appellants Nos. 2 to 6 who rushed to the spot in order to save their two relations or whether appellants Nos. 1 and 7 having first left had then re‑appeared in full force along with others armed with sticks with a view to settle account with Suleman and others. In case like this where both parties stick to different versions relating to the same occurrence, the other attendant circumstances when closely scrutinised would go a long way to establish the veracity of one version and belie the other. In the first instance the stand o Abdul Ghafoor appellant No. 1 denying the receipt of the total amount of Rs. 190 as the lease money, though wrongly mentioned as Rs. 250 in the F. I. R., is falsified by receipt Exh. P. Q. produced by Suleman P. W. One cannot avoid an impression that the receipt was executed by Abdul Ghafoor in full and final satisfaction of the entire claim of the lease money amounting to Rs. 190 and as such appellants Nos. I and 7 do not appear to be justified in pressing their claim for further payment and accusing Suleman P. W. of dishonesty. Be that as it may, even otherwise it does not stand to reason that if the complainant party who definitely outnumbered Abdul Ghafoor and Azmat appellants had chosen not to stop short at merely lodging a verbal protest at the insult of their guest and had thought fit to come to blows, Abdul Ghafoor would only have received two simple lacerated wounds. After all the other appellants could not have reached the spot by the touch of a magic wand as it were, but should have taken sometime to lay their hands on their sticks and reach the spot on hearing a sudden alarm. There is lot of force in the observations made by the learned trial Judge that in such event the complainant party who were admittedly present at the baithak of Karamat Ali P. W. near their residential houses with a licensed gun readily available if intending to be aggressive, should have been able to kill some one of the appellants. The manner in which the licensed gun of Ali Nawaz P. W. appears to have been used, lends considerable support to the complainant party's plea of self‑defence. Again the glaring disparity in the nature and number of injuries suffered by the two parties gives a clear indication that appellants Nos. 1 and 7 being outnumbered and feeling helpless to press their claim against Suleman, had left the spot only with a view to return in full force and launch an attack. Since, however, it were Ahmad Ali deceased, his brothers Karamat All and Bashir and nephews Shareef and Ali Nawaz who had stood in the way of Abdul Ghafoor and Azmat appellants, they would naturally feel aggrieved against them furnishing a strong motive for an attack and yet none of the P. Ws. stated that the appellants wanted to attack them or the deceased in the first instance notwithstanding the loss of the precious life. They consistently deposed that the appellants challenged Suleman who shut himself in the baithak. From their own showing therefore, the intention to murder on the part of the appellants stood clearly disproved. This credit the accused in a most serious offence. A perusal of the site plan further lends support to the view taken by the learned trial Judge. The recovery of pellets found from the outer wall near the door of the house of the complainant party also shows that the first shot was fired from inside the house when the appellants were very much near. There is, however, the evidence of Asghar Ali Shah (D. W. 1) having the semblance of independence and giving full support to the defence plea, which needs some reference. A suggestion was made to this witness in cross‑examination that the sister of Sadiq appellant was married to one Habibi who is the first cousin of Ghulam Rasul the father‑in‑law of Hassan Ali, a cousin of the witness. The suggestion of relationship besides being denied appears to be rather remote to be of. any consequ ence. However, the fact that lie omitted to make any reference before the Committing Court to Ali Nawaz and Karamat Ali P. Ws. putting a safa around the neck of Azmat appellant and slapping him, is significant enough to show that he was inclined to tow the line of the appellants by making an improvement in his statement at the trial in this regard. The statement of this injured witness does not appear to be in accord with the pro babilities of the circumstances and as such was rightly discarded by the learned trial Judge. Another relevant consideration to be kept in view in this context is the non‑production of Mst. Sairan who received several pellet wounds and as such would have been in a position to state the truth. The omission on the part of the appellants to whom she was also related, would also give rise to a presumption against them. This, however, should not be interpreted to mean that the onus had completely shifted from the prosecution to prove its case to the appellants to prove their defence.
9. In view of this discussion, the argument raised by the learned counsel challenging the application of section 149, P. P. C. loses all its force. Keeping in view all the relevant circumstances the inference seems to be irresistible that the appellants had come fully armed with the common object of dealing with Suleman and as such in view of what had transpired earlier they were in not manner of doubt that they were likely to be faced with armed resistance at the hands of the hosts of Suleman in case they persisted in the prosecution of their common object Jonab Ali and others v. The State (P L D 1961 Dacca 420) the authority relied upon by the learned counsel is not, therefore, of any avail, to him. The next authority relied on by the counsel namely, The State v. Amiruddin and others (P L D 1964 Kar. 231) of course lends support to his contention that in a case where only blunt weapons like sticks are used, the application of section 148, P. P. C. would not be free from doubt, inasmuch as they cannot be considered deadly weapons. However, a conclusive finding on this point would not be necessary, inasmuch as even if the conviction under this section is set aside it would not make much difference if convictions on the remaining counts are maintained and the matter would thus be purely one of academic interest. Nevertheless in view of the above authority I set aside the conviction under section 148, P. P. C. giving the appellant benefit of doubt, on the point whether the sticks used were deadly weapons.
10. While agreeing with the assessment of evidence by the learned Additional Sessions Judge and the conclusions reached by him as also maintaining the convictions recorded by him except the one under section 148, P. P. C., I am inclined to reduce the sentences of Azmat Khan and Muhammad Shafi appellants to those already undergone by them. Although Azmat Khan appears to have set the ball rolling and laid the foundation for this unfortu nate occurrence resulting in the death of one person and injuries to several others, yet in view of the fact that he is a 70 years old man to whom no active part in the fight itself has been consis tently attributed by the P. Ws. except Karamat Ali and Muhammad Shareef, I am not inclined to send him back to jail after the lapse of two years. As regards Muhammad Shafi appellant no specific part has been ascribed to him in the elaborate F. I. R. lodged by Karamat Ali P. W. although his name was mentioned therein. Even at the trial no part has been ascribed to him in so far as the grievous injuries received by the deceased or Karamat Ali P. W. are concerned. Besides he is a youngster of 17 or 18 years of age. As such the sentences already undergone by Azmat and Muhammad Shafi appellants would be good enough to meet the ends of justice in the instant case. This sentence of fine is also set aside. Muhammad Shafi should be accordingly released from jail if not required in any other case. Except this reduction in sentence, the appeal stands dismissed. The bail bonds of Azmat Khan are discharged.
Appeal partly accepted.
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