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Criminal Appeal No. 351 of 1971, decided on 18th September 1972.
S. 149-Common object-Both parties making preparation for pitched battle and free fight taking place-Provisions of S. 149, held, not applicable- Each assailant to be punished for his individual act.
Mohammad and others v. Emperor A I R 1947 Lah. 106 ; Syed Ali Bepari v. Nibaran Mollah P L D 1962 S C 502 and Hakim Ali and 4 others v. The State and another 1971 S C M R 432 rel.
, Ss. 307 & 324-Accused allegedly armed with deadly weapons-Injuries caused to complainant party simple in nature-Conviction under S. 307, held, not proper- Altered to one under S. 324.
, S. 307/149-Accused alleged to be present at fight-Prosecution, however, neither assigning any specific part to him nor showing that he injured anyone-Conviction set aside.
Ch. Mohd. Sardar Khan for Appellant.
Rustam Sidhwa for A.-G. for the State.
Dates of hearing : 10th and 11th August 1972.
The six appellants were prosecuted along, with five other persons on charges falling under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. One of them, namely, Tofail Husain, was murdered during the commitment proceedings, and the remaining ten were committed to stand their trial before the learned Additional Sessions Judge at Gujrat. He acquitted four persons, namely Nur Dad, Bashir Ahmad, Ghulam Muhammad and Sultan, and convicted the present six appellants on all the charges brought against them. For the offence falling under section 148, P. P. C. he sentenced each of the appellants to undergo rigorous imprisonment for three years under section 302/ 149, P. P. C. he awarded transportation for life and a fine of Rs. 500, or six months further rigorous imprisonment for default in each one; and under section 307/149, P. P. C. he sentenced each of the appellants to undergo rigorous imprisonment for seven years and to pay the fine of Rs. 200, or in default to suffer further rigorous imprisonment for two months All the sentences were ordered to run concurrently.
2. The appellants are related inter se. Nazar Hussain and Said Hussain are brothers, whereas Khadim Hussain, Qurban Hussain and Imdad Hussain are sons of Nazar Husain. The 6th appellant Qamar Hussain is the son of Said Hussain.
3. Similarly the witnesses Ashraf (P. W. 6), Muhammad Ghulzar (P. W. 7), Muhammad Akram (P. W. 8), and Ghias (P. W. 9), are brothers of the deceased Muhammad Iqbal. Ghulam Muhammad (P. W. 10) is related to them by marriage, his wife being a cousin of the deceased. Only Nur Ahmad Lambardar (P. W. 11) seems to be not related to either of the parties.
4. The occurrence is said to have taken place at 7 a. m. on the 6th of December 1964 in the area of village Jand Sharif, situate at a distance of six miles from Police Station Kharian. The matter was reported at the police station at 10-45 a. m. by Muhammad Ashraf (P. W. 6), and the first information report was recorded by Sub-Inspector Zafar Ali (P. W. 12).
5. On the same day at 1-50 p. m. a cross-case was registered at the police station at the instance of the appellant Nazar Hussain. The first information report was recorded by the same police officer. On the basis of that first information report the witnesses Ashraf, Gulzar, Akram and Ghias were prosecuted, along with two other persons, named Sharif and Ghulam Haider, on charges falling under sections 148 and 307/149 of the Code. They were convicted and have filed a separate appeal (Criminal Appeal No. 400 of 1971).
6. It is common ground that there is long-standing enmity between the parties arising primarily out of Basic Democracy Elections in which Muhammad lqbal deceased and the acquitted accused Nur Dad were rival candidates. Nur Dad won the election with the support of the appellants. It was also admitted by the complainant party that Nur Dad was prosecuted for abduct ing Mst. Khurshid, wife of Ghulam Muhammad (P. W. 10). As already stated, this lady is a cousin of the deceased and his brothers Ashraf and Gulzar etc. There has also been civil litigation between the acquitted accused Sultan and Muhammad Akram (P. W. 8) as a result of which a pre-emption suit was decreed in favour of Sultan. Subsequent to the present incident Tufail Husain accused was murdered, and in that connection Ashraf (P. W. 6) and his brother Gulzar (P. W. 7) are facing prosecution.
7. The immediate cause for the present occurrence is stated to be the fact that three or four days previously Ghias (P. W. 9) had given a slap on the face of the appellant Khadim Husain, whereupon his father Nazar Husain had openly uttered the threat that henceforth only one patty, namely, either the Syeds or the Gujjars, shall reside in the village. It is needless to mention that the appellants are Syeds whereas the complainant party are Gujjars.
8. The prosecution alleges that on the morning in question Muhammad Ashraf (P. W. 6) had started from his house on a bicycle on his way to Kharian Cantonment where he is employed. On coming out of his house he saw the six appellants, the four acquitted accused and Tufail Hussain (since murdered) preset near the village pond. Nur Dad, Bashir Ahmad, Tufail Husain and Qurban Hussain were armed with guns whereas the remaining seven persons were carrying hatchets and lathis. On seeing Muhammad Ashraf, Nur Dad fired in the air and shouters a lalkara challenging Muhammad Ashraf and his brothers to come out. Confronted with this situation, Muhammad Ashraf ran in to the house of his brother lqbal deceased. The remaining three brothers, namely Ghias; Akram and Gulzar also reached there, and from there they managed to go to the house of Muhammad Ashraf for the purpose of discussing and planning their own course of action. It is said that the deceased Muhammad lqbal suggested to .his brothers that he would go out to ask the appellants and their companions to refrain from attacking them. Accordingly, Muhammad Iqbal came out of his house and proceeded towards the appellants when Nut Dad fired at him. Iqbal was wounded and fell down, whereupon his brothers rushed out of the house. Gulzar (P. W. 7) fell upon the deceased so as to protect him, but the appellant Nazar Husain and the acquitted accused Sultan gave him hatchet blows, and the appellant Imdad Husain gave him lathis blows. The appellant Qamar Husain gave laths blows to Muhammad Ashraf (P. W. 6), and the acquitted accused Ghulam Muhammad did the same to Muhammad Akram (P. W. 8).
9. The incident attracted Ghulam Muhammad (P. W. 10) and Nut Ahmad Lambardar (P. W. 11) and several other villagers, but no one dared to intervene as the accused persons threatened them with their weapons. As Muhammad Iqbal had been critically injured, he was brought to his house where he breathed his last.
10. The autopsy of the dead body ;of the deceased Muhammad Iqbal was conducted by Dr. Rauf Beg Mirza (P. W. 1). He found that the deceased had sustained five pellet shot wounds on the back of the chest. There were corresponding wounds of exit on the front of the chest in respect of three of these injuries. There was a sixth pellet shot wound on the left forearm inner side below the elbow joint producing a wound of exit on the middle front. Death was due to shock and haemorrhage caused by the five injuries on the chest which were dangerous in nature and caused by gunshots., The sixth injury on the forearm was declared to be simple.
11. The same doctor examined the injured witnesses Ashraf, Gulzar and Akram. Ashraf was found to have sustained a contused wound " x ", in the web between the left thumb and index-finger, the injury being simple in nature and caused by a blunt weapon.
12. Gulzar was found to have nine injuries on his person, out of which one was ail incised wound on the front of the left wrist, and the rest were in the nature of abrasions, contusions and swellings on the chest, the elbow and the upper forearms.
13. The third witness Akram had sustained an abrasion mark in the web between the thumb and the right index-finger, the injury being simple in nature and having been caused by a blunt weapon.
14. On the side of the appellants, it was found that Said Husain had sustained five pellet shot injuries, out of which three were on the fingers, one was on the left side of the face below the left eye and the 5th on the left temple. All the injuries were said to be simple in nature. Three other person's belonging to the party of the appellants had also sustained injuries, although they were not prosecuted. They are Shabbir Husain son of the appellant Said Husain, Fida Husain son of the appellant Nazar Husain and one Fazal Ali. Shabbir Husain had sustained a pellet shot mark on the back of the left arm, whereas Fida Husain had haemorrhage on the inner part of the left eye-ball, leading to loss of vision. There were also healed pellet shot marks at the outer angle of the left eye and on the dorsum of the right hand in line with the right finger. Finally, there was a septic wound in between the right thumb and the index-finger.
15. Fazal Ali appears to be the worst sufferer on the side of the appellants, as he sustained as many as twelve pellet shot injuries on different parts of the body, including a grievous injury caused by thirty-eight pellets on the dorsum of the right hand and fingers.
16. The appellants and their co-accused persons pleaded not guilty at the trial and asserted that they had been falsely implicated due to enmity. They did not produce any defence evidence, but the appellant Said Husain gave an alternative version of the incident. He stated that the deceased Muhammad Iqbal, his brothers Akram, Ghias, Ashraf and Gulzar, as well as Muhammad Sharif and Ghulam Haider, attacked him, his son Shabbir Hussain and his nephew Fida Husain. Thereupon Tufail Husain fired at the assailants in self-defence. Fazil Ali tries to intervene and he was also injured by the prosecution witnesses He asserted that in order to save themselves from punishment in the cross-case under section 307. P. P. C. the complainant party had brought this case against the appellants and their companions.
17. The learned trial Judge has expressed the view that this was a case of an open and free fight, in which both parties had made preparations to attack the other. He has pointed of that the prosecution has failed to explain the injuries sustained by the appellant Said Husain, his son Shabbir Husain, his nephew Fida Husain and an outsider, named Fazal Ali. He has further held that the evidence being of interested witnesses, there is an active possibility of the involvement of innocent person Considering all these circumstances he has given the benefit doubt to four persons, namely Nur Dad, Bashir Ahmad, Ghulam Muhammad and Sultan, and convicted only the six appellants. Finally, he appears to have accepted the assertion made by the appellant Said Husain that the fatal shot was fired at Muhammad Iqbal deceased by Tufail Husain who was murdered during the commitment proceedings. Nevertheless he has held all the appellants guilty of murder by the application of section 149 of the Pakistan Penal Code.
18. The learned counsel appearing on both sides have not contested the finding of the trial Court to the effect that this was indeed a case of a free and open fight, for which both parties had made preparations by arming themselves with deadly weapons. It is submitted that in such a case there is neither any question of the accrual of a right of self defance to either party, nor can section 149, P. P. C. be applied, with the result that each of the assailants had to be punished for his individual acts. In support of these submissions reliance is placed on Mohammad and others v. Emperor (A I R 1947 Lah. 106), Syed Ali Bepari v. Nibaran Mollah (P L D 1962 9 C 502) and Hakaya Ali and 4 others v. The State and another (1971 S C M R 432).
19. It is also contended by the learned counsel for the appellants that in any case the prosecution witnesses 'being interested and partisan, and their evidence having been practically rejected by the learned trial Judge, it would not at all be safe to maintain the conviction of the appellants in the absence of satisfactory corroboration. In this connection the learned counsel has pointedly brought to my attention the fact that in the first version of the incident put forward in the first information report the deceased was stated to have been shot at from the front, but at the trial this position was changed so as to conform with the medical evidence which showed that the wounds of entry were on the back and wounds of exit were on the front of the chest. Finally, it is submitted that even Ghulam Muhammad (P. W. 10) supports the defence version and there is no reason why the benefit of this man's evidence should not be given to the appellants.
20. There is substance in the submission made on behalf of the appellants that in a free fight of the kind which occurred in this case, namely, when both parties made preparations for a pitched battle, the provisions of section 149, P. P. C. are not to apply. The latest pronouncement of their Lordships of the Supreme Court on this point is to be found in the case of Hakim All and 4 others, already referred to, in which the view earlier adopted in the case of Syed Ali Bepari was followed. Such being the case, it is necessary to examine the part played by each of the appellant in causing injuries to the complainant party. The conviction recorded under section 148, P. P. C. and the sentences awarded in that connection will automatically stand quashed.
21. I shall first take up the question of the murder of the deceased Muhammad Iqbal. As already stated, the prosecution has alleged that the deceased was fired at by the acquitted accused Nur Dad. The State has not filed any appeal against this acquittal, nor has the complainant party presented a revision petition in this behalf. Further, the finding of the learned trial Judge, however, is that the deceased was fired at by Tufail Husain, who himself was murdered during the commitment proceedings in this case. This finding is based on the position taken up by the defence during the trial. In either case the position which emerges is that the responsibility for the murder of Muhammad Iqbal deceased cannot be placed upon the appellants before me, as none of them is alleged to have fired at the deceased. Nur Dad bas been acquitted and Tufail Husain has been murdered. As a result, the conviction recorded against the appellants under section 302 read with section 149 of the Code and the sentences awarded in this behalf are set aside and they are acquitted of this charge.
22. I now take up the question of causing injuries to the prosecution witnesses. In this connection the first thing to be noticed is that although the appellants were said to be armed with deadly weapons like guns, hatchets and lathis, yet the injuries caused by them to the brothers of the deceased were all of a simple nature, and accordingly it is not possible to convict them for attempted murder under section 307 of the Pakistan Penal Code;
23. It is true that the ocular evidence consists of partisan witnesses, but there are confirmatory circumstances to be found in the presence of injuries on a large number of prosecution witnesses as well as on the person of the appellant Said Husain. The injuries sustained by members of the appellants' party, who are neither accused nor witnesses in this cage, also show that large number of persons participated in the incident from both sides. If indeed the appellants did not take part in he fight, then there is no explanation why their names were substituted and those of the other members of their party, who sustained injuries, were omitted. This circumstance goes to show that only those persons were named who indeed took a leading part in the fight.
24. I find that the part assigned to the appellant Nazar Hussain is that he caused hatchet injuries to Gulzar (P. W. 7). The medical evidence, already mentioned, shows that Gulzar had one incised wound on the front of the left wrist joint, and rest of the injuries sustained by him were abrasions, contusions anti swellings. The medical evidence therefore lends corroboration to the allegation that Nazar Husain caused an injury to Gulzar by a sharp-edged weapon. As the injury was of a simple nature, Nazar Husain would be guilty under section 324 of the Pakistan Penal Code. I would accordingly convict him under this section and sentence him to imprisonment already undergone. His conviction and sentence under section 307/149, P. P. C. are set aside.
25. The part assigned to appellant Said Husain is not clearly specified by the witnesses, but he was injured during the fight. None of the prosecution witnesses has stated that they were assaulted by Said Husain. There is no allegation that this appellant caused any injury to the deceased. According to his own assertion, he was attacked by the complainant party and injured. In the absence of any evidence regarding the individual part played by Said Husain he has, to be acquitted altogether, even though he sustained injuries during the fight. His conviction and sentence under section 307/149, P. P. C. are set aside.
26. I next take up the case of appellant Khadim Husain. Although the prosecution has alleged that Khadim Husain was present at the fight, but no specific part has been assigned him. The story narrated by the prosecution witnesses doe not show that he injured any of them or the deceased. Such being 'the case his conviction and sentence under section 307/149 P. P. C, is set aside and he is acquitted altogether.
27. The case of the appellant, Qurban Hussain, is similar to that of the appellant, Khadim Hussain, discussed in the preceding paragraph. The prosecution does not assign any specific part to him, except that he was present during the fight. As the appellants have to be punished for their individual acts, it is clear that the conviction recorded against Qurban Hussain on, various counts has to be set aside and he has to be acquitted altogether.
28. As regards the appellant, Imdad Hussain the allegation is that he gave laths blows to Gulzar (P. W. 7) when he had fallen upon the deceased Iqbal so as to protect him. It has already been stated that Gulzar was found to have sustained nine injuries on his person, one of which was an incised wound, whereas the rest were in the nature of abrasions, contusions and swellings on the chest, the elbow and the upper fore-arms. All the injuries being of a simple nature, Imdad Hussain would be liable for an offence falling under section 323 of the Pakistan Penal Code. The sentence already undergone by him would appear to be adequate in this behalf.
29. Lastly, there is the case of the appellant Qamar Hussain who is alleged to have given- lathi blows to Muhammad Ashraf (P. W. 6). The medical evidence above that Muhammad Ashraf had sustained a contused wound in the web between the left thumb and index finger. The injury was simple in nature and had been caused by a blunt weapon. In these circumstances Qamar Hussain would be liable only under section 323 of the Pakistan Penal Code. In this case also the sentence already undergone would meet the ends of justice.
30. For the foregoing reasons, the appeal is accepted to the following extent:---
(a) The convictions and the sentences recorded against the six appellants under sections 148, 302/149 and 307/149 of the Pakistan Penal Code are set aside and all of them are acquitted of these charges
(b) The appellant. Nazar Hussain, is, however, convicted only under section 324 of the Pakistan Penal Code for causing a hatchet injury to Gulzar (P. W. 7) and sentenced to imprisonment already undergone:
(c) The appellant, Imdad Hussain, is convicted under section 323 of the Pakistan Penal Code for causing simple injuries, to Gulzar Hussain (P. W. 7) and sentenced to imprison ment already undergone ; and
(d) The appellant, Qamar Hussain, is also convicted under section 323 of the Pakistan Penal Code for causing simple injuries to Muhammad Ashraf (P. W. 6) and sentenced to imprisonment already undergone.
31. All the appellants shall accordingly be set at liberty provided they are not required to be detained in any other connection.
Appeal partly accepted.
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