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Criminal Appeal No. 19 of 1968, decided on 19th June 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th June 1967, in Murder Reference No. 119 of 1966/Criminal Appeal No. 489 of 1966).
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‑Criminal Appeal on Special Leave granted by Supreme Court‑Leave granted to consider question of nature of offence and quantum of sentence only Appellant, in circumstance, not allowed to enter into merits of case‑Constitution of Pakistan (1962), Art. 58 (3).
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-- S. 302‑Self‑defence Accused themselves not taking plea specifically and on contrary asserting that they had been falsely involved‑Self‑defence, in circumstance, can only be allowed on basis of clear evidence available on record showing that it was reasonably possible for‑ accused to have acted in self‑defence.
S. 302‑Sentence‑D killing M finding him taking away his goats for impounding them Passion, in circumstance, held, may fly at unexpected angles‑Act of accused though not one of culpable homicide yet circumstance to be taken into consideration in imposing sentence‑Death sentence altered to one of transportation for life.
Mahmud Ali Qasuri, Senior Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Appellants.
Major Waheed-ud‑Din, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.
Dates of hearing : 18th and 19th June 1968.
‑The appellants in this case moved a petition for special leave to appeal from the judgment and order of a Division Bench of the High Court of West Pakistan, by which their convictions under section 302 read with section 149 and section 307 read with section 149 of the Pakistan Penal Code were affirmed and the sentences imposed thereunder by the Sessions Judge were maintained.
By order, dated the 25th October 1967, a Bench of this Court declined to grant leave on the merits of the case. Leave to appeal was, however, granted to consider :‑
"(i) the nature of the offence or: offences committed by the petitioners, and
(ii) whether the death sentence of Dinu, accused, as confirmed by the High Court, was justified in the circumstances of the case."
Seven persons were tried for the murder of Ghulam Muhammad and for causing injuries to the prosecution witnesses, Muhammad Ashraf, Muhammad Hussain, Qadir Din, Muhammad Akram and Abdul Ghafoor. Two of the accused, viz., Hakam and Sarwar; were acquitted by the Additional Sessions Judge, and one, namely, Siddique, by the High Court on appeal and reference. All the four appellants before us stand convicted under section 302/ 149 of the Pakistan Penal Code. Among them the appellant, Dinu, has been sentenced to death and a fine of Rs. 500 and the others, namely, Feroze, Yusuf and Ali Muhammad alias Mahand, to transportation for life. They have also been convicted under section 307/ 149 of the Pakistan Penal Code and sentenced to rigorous imprisonment for a period of three years and a fine of Rs. 200 each. They have also been convicted under section 148 of the Penal Code and sentenced to rigorous imprisonment for six months each. Their sentences are to run concurrently.
The prosecution case briefly was as follows:--
At noon on 12‑7‑65 when Muhammad Hussain along with Ghulam Muhammad, Muhammad Ashraf and Abdul Ghafoor was passing by his land in Killa No. 15 of square No. 20, he noticed that the goats of Ali Muhammad alias Mahand and Faqir Hussain had strayed into his land and were damaging his Chari and cotton crops. Mahand and Faqir Hussain on seeing them ran away. They then rounded up 25/30 goats and drove them towards the village in order to put them in the cattle pound. When they reached Killa No. 3 in square No. 28, Mahand and Muhammad Yusuf arrived there armed with sticks, abused them and said they would not allow them to take their goats to cattle pound. As they tried to take back their goats by force they were roughly handled and they ran away after exchanging some blows. When Muhammad Hussain and his companions reached Killa No. 12 of square No. 28, the accused persons came armed with fire arms, a spear, a hatchet and sticks. Mahand raised a Lalkara and then Hakam fired a shot injuring Muhammad Ashraf on the right thigh. Dinu and Siddique fired pistols at Ghulam Muhammad which hit him on the left side of the chest. Feroze then gave him a blow with the wrong side of a hatchet. Mahand fired a shot at Abdul Ghafoor hitting him on the right arm and shoulder. Qadir Din and Muhammad Akram, who came on hearing the alarm and tried to intervene, were also assaulted by the accused party. The assailants then collected their goats and left the place. Ghulam Muhammad succumbed to his injuries on the spot. The others then took his dead body to Thikriwala Police Station and his son, Ashraf, lodged the first information report.
Sarwar and Ali Muhammad were arrested on 13‑7‑1965, and the rest of the culprits, excepting Hakam, on 20‑7‑1965. Hakam was arrested later.
The doctor, who held the post‑mortem examination on the dead body of Ghulam Muhammad, found multiple pellet wounds on the left side of the chest, three contused wounds and an abrasion on his person.
The doctor, who examined the injured members of the complainant party, found a number of gunshot wounds on Abdul Ghafoor and Muhammad Akram. The latter had also an incised wound. Qadir Din had two contusions, Ashraf two abrasions and Muhammad Hussain a contusion.
Among the accused party Sarwar had two contusions and Ali Muhammad alias Mahand had a number of contusions, out of which some were caused by gunshots.
Eventually, seven accused were committed to the Court of Session. Ali Muhammad's version of the incident may be stated in his own words : ‑
"I and Sarwar accused took out our goats for grazing. Qadir Din, Akram, Abdul Ghafoor, Muhammad Hussain, Ghulam Muhammad and Akhtar headed by Iqbal Chairman armed with various weapons, including firearms, appeared on the scene and asked us, when we were in an uncultivated area of the village, as to why we were damaging their crops. Saying this they attacked us despite my refusal that I now and never damaged the crops they opened fire at us. Several people were present there and with a view to save my life, I snatched a pistol from one of them and fired in reply towards my assailants and running in the meantime towards the village. I got successive shots on my legs and fell down. Iqbal Chairman is inimically disposed towards me. I worked against him and his cousin Rafiq in the last B. D. elections and voted against them. The other co‑accused were not present there. It is through the good offices of 1qbal Chairman that I have been challaned in this case."
The other accused pleaded false implication out of enmity.
The direct evidence was furnished by the injured persons viz." Muhammad Ashraf, Muhammad Akram, Abdul Ghafoor, Qadir Din and Muhammad Hussain, and two others, namely, Khushi Muhammad and Muhammad Akhtar, who were chance witnesses.
The Additional Sessions. Judge, who tried the case, doubted participation of Akram and Sarwar in the attack on the complainant party, and hence gave them the benefit of doubt. He, however, relying on the evidence of the eye‑witnesses, convicted and sentenced the remaining five accused, as stated above.
On appeal and reference, the High Court gave benefit of doubt to Siddique, but maintained the convictions and sentences of others.
Mr. Mahmud Ali, the learned counsel for the appellants, attempted to argue that the convictions of the appellants were based on evidence, which was not reliable. As already stated, leave was granted on two points, namely, as to the nature of the offence committed by the appellants and as to whether death sentence of. Dinu was justified in the facts and circumstances of the case. Hence we did not allow the learned counsel to enter into the merits of the case.
The learned counsel then urged that the plea of self‑defence has not received the attention that it deserved. He attempted to argue that the incidents in Killa Nos. 3 and 12 really constituted one transaction and that Feroze and Yusuf seeing the com plainant party attacking Mahand and Sarwar, participated in the fight in order to save them. A similar suggestion was made to Muhammad Akram but he denied the same. It may be mentioned here that the appellants, Feroze and Yusuf, in their statements merely stated that they were not present at the time of the, occurrence and had been implicated in this case out of enmity. Now when the accused themselves do not specifically plead self‑defence, that plea can only be allowed on the basis of clear evidence available on the record which would go at least to the extent of showing that it was reasonably possible that the accused acted in self‑defence. In our opinion, on the evidence on record this plea of self‑defence is not available. The prosecution witnesses have fully proved participation of these two appellants, Yusuf and Feroze, in the attack on the complainant party which resulted in killing Ghulam Muhammad. It has also been proved that they attempted to kill Akram and Ghafoor. We, therefore, see no ground for interference with their convic tions and sentences.
The learned counsel has been candid enough to say that it would be difficult for him to justify the conduct and action of the appellant, Ali Muhammad alias Mahand. Hence his appeal must also be dismissed.
The learned counsel has, however, submitted that in view of the facts and circumstances of the case Dinu should not have been awarded death sentence.
Now the question is whether after taking account of entire circumstances in which the act of violence was committed by the appellant, Dinu, it can be said that his criminality is of a kind which should not be visited with extreme penalty.
It is a common experience that a villager would try his best, to take away his cattle or goats from the person who is taking them to a pound. In such a case after a hot quarrel, passion may fly out at unexpected angles. It is evident that when :the complainant party refused to release the goats both the parties were fully aroused. and then in the heat of passion the appellant, Dinu, reacted by a single act of extreme violence, namely, by firing a shot at Ghulam Muhammad, deceased. Though his act was not of a nature sufficient to convert the offence to one of culpable homicide not amounting to murder, yet the circum stances under which he fired the single fatal shot may be taken into account for imposition of lesser penalty.
We shall, therefore, allow the appeal of Dinu of the extent of altering his sentence for death to one of transportation for life.
This appeal is dismissed so far as the other concerned.
Appeal partly accepted.
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