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(a) Penal Code (XLV of 1860)-

- S. 302/34 read with S. 100-Murder trial-Private defence, right of-Accused, on charge of murder, raising plea of self-defence and alleging to have used force when attacked by complainant party, walking on foot, while they (accused) rode on horse backs-Defence version, held, improbable--Accused, held further, could avoid conflict with complainant party in case of apprehension of any attack and escape confrontation if desired by riding away fast and leaving assailants behind.

(b) Penal Code (XLV of 1860)

-.- S. 57 --Life imprisonment Not same as transportation for life- Life imprisonment means imprisonment for 25 years-Transportation for life means 20 years' R. I.

Muhammad Hussain and others v. The State P L D 1968 Lah. 1 rel.

Ijaz Hussain Batalvi with Jari Ullah Khan for Appellants.

A. R. Shabab Mufti for the State.

Dates of hearing : 30th and 31st October 1974.

JUDGMENT

Muhammad Ashraf aged 25, Muhammad Aslam aged 48, Bashir Ahmad aged 27 and Nisar Ahmad aged 33 have been convicted under section 304/34, P. P. C. and sentenced to imprisonment for life with a fine of Rs. 3000, each. In case of default in payment of fine they would undergo two years R.. I. each. They were also convicted under section 307/34, P. P. C. for murderous assault on Rehmat Ali and sentenced to one year R. 1. each and to pay a fine of Rs. 1,000 each and to undergo additional 9 months' R. L in case of default. They were also convicted under section 307/34, P. P. C. for murderous assault on Muhammad Siddiq and sentenced to one year R. 1. and to pay a fine of Rs. 1,000 each and to undergo additional 9 months' R. I. in case of default. They were further convicted under section 323/34, P. P. C. and sentenced to pay a fine of Rs. 150 each or to undergo one month's R. I.

2. The occurrence took place on 26th September 1967, in the area of Chak No. 158/R. B. at 4-00 p.m. which is five miles away from Police Station Chak Jhumra. The occurrence was reported by Muhammad Siddiq P. W. 8 and was recorded by Akhtar Saeed P. W. 14, S. I. Police at 6-00 p.m. the same day. Ghulam Rasul died due to this occurrence on the way to police station while Muhammad Siddiq P. W. 8, Rehmat Ali P. W. 11 and Muhammad Siddiq son of Sardar Muhammad P. W. 12 were injured. The occurrence was stated to have been witnessed by Asghar Ali son of Ismail and Sardar Muhammad P. W. 13.

3. According to the F. I. R. Muhammad Siddiq complainant along. with his father Rehmat Ali, Muhammad Siddiq and Ghulam Rasul sons of Sardar went to Lyallpur by train to appear in a case in the Court of Ch. Muhammad Amin, Magistrate, as witnesses against the accused appellants and Altaf in a case under section 435, P. P. C. The accused did not appear in the Court when the case was called and, therefore, they could not be examined. After the case, the complainant alongwith his companions boarded a train at about noon. The four accused-appellants alongwith Altaf also boarded the same train and all of them got down at the railway station Saian Wala. The complainant and his companions started walking towards their village. At about 4-00 p.m. when the .complainant party had gone a little ahead of Chak No. 158 they heard caution by the accused. Nisar and Aslam appellants were armed with hatchets while Bashir, Altaf and Ashraf were armed with longs. They were all on horses and when they reached near the complainant party they got down and attacked them. Nisar gave a hatchet blow at the head of Rehmat Ali father of the complainant. Aslam gave a hatchet blow on the head of Ghulam Rasul deceased. At the same time Asghar, Akbar and Nazir sons of Rehmat Ali, Hayat Muhammad son of Suba Khan also carne out of the cotton fields and they also joined them. Akbar was armed with a hatchet, Nazir with a ballam and the others with dangs. Akbar gave a hatchet blow at the right arm of the complainant. The second Bang blow was given to the complainant by Bashir and the third by Altaf on the left arm and right shoulder, respectively. Nazir then injured Ghulam Rasul with his ballam at the left arm and then all the accused started injuring the complainant and his companion. Muhammad Siddiq ran away to the east side in injured condition. Ghulam Rasul and Rehmat Ali fell down at the spot while the complainant ran away crying to a distance from the place of occurrence. The occurrence was witnessed by Asghar Ali son of Ismail, Sardar son of Nawab who were following the complainant party. The assailants then made good their escape. Meanwhile many people from all around gathered and took away Chulam Rasul and Rehmat Ali on cots to police station. Ghulam Rasul died on the way while Rehmat Ali was in serious condition and ,ent to Khurarianwala Hospital. The motive as stated in the F.I.R. was that is April 1967, the four appellants and Altaf accused had set on fire the Raya crop of the complainant's father Rehmat Ali on which a case was registered against them. It was because of this case that the appellants and their companions had attacked the complainant and his companions.

4. After recording the F. 1. R. Exh. P/A, S. I. Akhtar Saeed P. W. 14 found the dead body of Ghulam Rasul outside the police station. He prepared the injury statement Exh. P. Q. and inquest report Exh. P. Q./1 and sent the dead body for post-mortem examination. He then went to the spot for the investigation. On 27th September 1967, Muhammad Siddiq son of Sardar was brought to him and he prepared his injury statement Exh. P. R. and sent him to the hospital for medical examination. He took into possession blood-stained earth from the spot on 17th September 1967. in the presence of Sanaullah and Muhammad Ashraf P. Ws. and made it into a sealed parcel vide memo. P. B. He also got prepared a site plan Exhs. P. D. and P. D./1 from Mukhtar Ali Patwari P. W. He arrested the accused on 6th October 1967. Nisar and Aslam were in injured condition. He prepared their injury statements Exh. P. U. and P. Y., respectively and sent them to the hospital for medical examination.

5. Ghulam Rasul deceased received in all 23 injuries; 12 of which were contused wounds, 6 abrasions and 5 incised wounds. Injury Nos. 11, 19, 22 and 23 had been caused by a sharp pointed weapon while injury No. 12 had been caused by a sharp-edged weapon. All other injuries were caused with blunt weapon. Injuries Nos. 4 and 14 were fatal individually as well as collectively in the ordinary course of nature to cause death whereas injuries Nos. 12, 20 and 21 were grievous in nature. The rest of the injuries were all simple. There was a fracture of the left temporal bone under injury No. 4. The membranes and brain had refused blood on it. There was fracture of 8th and 9th ribs on the left side under injury No. 14. There was rupture of the left pleurae of the left side under injury No. 14 and the pleural cavity was full of blood on the left side. There was rupture of left lung under injury No. 14 in lower part. The heart was empty. There was injury of peritoneum under injury No. 14 and the parietoneal cavity was full of blood. There was rupture of the spleen over an area of ljE' x 1 ' under injury No. 14. The stomach contained about 6 ounces of mixed semi-digested food. The bladder was full of urine. The large intestine contained faecal matter. Rest of the organs were healthy. According to Dr. Munawwar Din P. W. 1 the death was caused due to severe haemorrhage, shock and compression of the brain caused by the above-mentioned injuries.

Muhammad Siddiq son of Sardar Muhammad was examined by Dr. Ghulam Rasul. 11 injuries were found on his person. Injury No. 3 was grievous in nature while all others were simple in nature and were caused by blunt weapon. Rehmat Ali son of Ladhe Khan was also examined by Dr. Ghulam Rasul on 26th September 1967, and was found to have 14 injuries. He was in semi-conscious and under shock condition at the time of examination. Injuries Nos. 2 and 10 were grievous in nature while the rest were found simple in nature cawed by blunt weapon. Muhammad Siddiq son of Rehmat Ali, examined on 27th September 1967, had three injuries, all simple in .nature and caused by blunt weapons. Nisar Ahmad appellant also was examined by Dr. Ghulam Rasul on 10th October 1967. He found no fresh injury but a healed wound scar 2 long on the back of head on the left side 4 from the left ear was found. A black mark 1 x 1/3 on the right side of the forehead was also found. The doctor could not give any opinion about the age of the scar mark. He also examined Muhammad Aslam appellant who had a curved recently healed wound 21" long on the left side of the back of the head about 4" from the left ear. Another recently healed wound sear 1 long on the left side of the top of head 31" from the left ear was also found. The doctor could not give the age of the scar.

6. The prosecution examined Muhammad Siddiq P. W. 8, Rehmat Ali P. W. 11, Muhammad Siddiq P. W. 12 and Sardar Muhammad P. W. 13 as eye-witnesses. All the accused were committed to stand trial before the Sessions Court on 30th November 1968. The trial started on the 25th September 1969, but it was later transferred to the Additional Sessions Judge. He concluded the trial on the 23rd December 1969, and acquitted Altaf and Hayat Muhammad accused, but convicted all the others. An appeal to the High Court succeeded. The conviction and sentence was set aside and the case was sent back for fresh trial on the ground that the evidence could not he recorded partly by Sessions Judge and partly by the Additional Sessions Judge. My learned brother Aslam Riaz Hussain, J. made the following observations in his judgment:

"In other words some of them have been in jail for more than 5 years. Had the learned trial judge not committed the illegality which has vitiated the trial, the appellants may have already served out either or more of their sentence, keeping in view the remission which they are entitled under the rule. Moreover, there may have been a likelihood of their having been benefited by the amnesty declared on the assumption of office by the present President of Pakistan. These factors would be worth keeping in mind in case they are again found to be guilty by learned Sessions Judge, who holds the fresh trial."

7. Consequently the case was again tried by the Additional Sessions Judge, Lyallpur. All the accused including the appellants pleaded not guilty to the charge. The prosecution in all examined 14 witnesses including the four eye-witnesses. In their statements under section 342, Cr. P. C. the accused appellants and Altaf admitted to have gone to Lyallpur on 26th September 1967, to appear in the case under section 435, P. P. C. against them. Bashir, Altaf and Ashraf accused stated that after the case was over they went away to Malkhanwala village to enquire about the health of the ailing sister of Ashraf. Nisar and Aslam accused-appellants admitted that they came back to their village by 11-30 a.m. train but said that they had riot seen the P. Ws. or Ghulam Rasul at Lyallpur or on their way back. Muhammad Aslam appellant while explaining the injuries found on his person at the time of arrest, stated that on the day of the occurrence he, Nisar appellant and a guest of theirs' named Aslam were returning to their chak on horses. When they reached near the place of occurrence they were attacked by Ghulam Rasul deceased and the above-named three P. Ws. The deceased was armed with a hatchet and the others with longs, whereas Aslam appellant and Nisar had chains used for shackling the horses. The guest was stated to have a dang fitted with a sue and that in their right of self-defence they caused injuries to the deceased and the three injured P. Ws. in that occurrence. The injuries on his person were also caused then. He also produced in defence copies of certain documents to prove enmity. He also produced medico-legal report prepared by Dr. Muhammad Nawaz D. W. relating to his injuries and that of Nisar. Nisar appellant also endorsed the same version in his tenant.

8. The P. Ws. repeated the story as given in the F. I. R. The defence produced Dr. Muhammad Nawaz as defence witness who deposed having examined Muhammad Aslam accused on 30th September 1967, and found 7 simple injuries on hiss person. Injury No. 2 was caused with sharp-edged weapon and the rest with blunt weapons about 4-5 days earlier. The same day he also examined Nisar Ahmad accused, and found 8 injuries of simple nature on his person. Injuries Nos. 1 and 2 had been caused with sharp-edged weapon while injuries 3 to 8 with blunt weapon. They were also said to have been caused 4-5 days earlier.

The learned Additional Sessions Judge came to the conclusion that the parties had long-standing and deep-rooted enmity. He also held that the prosecution had succeeded in proving beyond reasonable doubt that Ashraf, Aslam, Bashir Ahmad and Nisar Ahmad accused in the furtherance of their common intention murdered Ghulam Rasul and made murderous assault on Siddiq son of Sardar and Rehmat P. Ws. and voluntarily caused simple injuries with blunt weapon to Muhammad Siddiq son of Rehmat Ali. He further held that the prosecution had failed to prove beyond reasonable doubt the commission of offence under section 148, P. P. C. against all the accused and the participation of Asghar, Akbar and Nazir accused in the occurrence. The three accused, Asghar, Akbar and Nazir were thus acquitted by giving them the benefit of doubt.

9. The learned counsel for the appellants attacked the conviction on the ground that admittedly the parties had a long-standing enmity and that it has been found that the prosecution had brought a false case against the five accused persons who have since been acquitted. According to him if the prosecution case was correct there would have been no acquittal at all. Having found the three witnesses telling lies about a part of the case and also being inimical to the present appellants, the learned Additional Sessions Judge was called upon to look for a reasonable corroboration from other evidence. The test of number of injuries applied by the learned Additional Sessions Judge as a corroboration was assailed as not sound so as to involve the appellants in the case on the ground that it was the actual participation of the present appellants which was to be corroborated. The presumption that three persons could not have caused all these injuries to four persons could in no case involve the other two appellants unless there was an independent corroborative evidence proving their actual participation. He further contended that in their statements under section 342, Cr. P. C. and the suggestions made during the cross- examination, the defence admitted Nisar and Aslam appellants alongwith a guest having used shackles, with which their horses had been tied at the railway station, causing injuries to the complainant party in self defence when they were attacked by the complainant party. It was also argued that the manner in which the injuries are said to have been caused shows that there was no intention to kill as the accused are said to have used the blunt side of the hatchets.

The prosecution and the defence version do not vary to a great extent. The complainant party and the accused party did go to Lyallpur on 26th September 1967, to appear in a case registered against the accused party under section 435, P. P. C. The four appellants and Altaf accused admittedly were present in Court. The accused reached late and their bail was cancelled though subsequently restored on their appearance. According to the prosecution the appellants and Altaf boarded the same train as the complainant party to go back to their homes. However, according to the defence Version only Nisar and Aslam boarded the 11-30 a.m. train. It is also clear that both the parties got down at the same railway station. The version of the prosecution about the place of occurrence and the occurrence itself is not at variance and is admitted by Aslam and Nisar appellants in their statements under section 342, Cr. P. C. The occurrence, therefore, stands fully proved and the participation of Nisar and Aslam accused, therein is also established.

10. The question that remains to be ascertained is as to whether only the two accused named above or others as well participated in the occurrence. The other three accused also admittedly belong to chak No. 159/RB and having gone to Lyallpur alongwith Nisar and Aslam they had to return to their homes. Their denial to return the same day along with their two companions is not supported by any defence evidence. The presumption would be that they did return alongwith the co-accused. The defence version that only 3 persons caused all the injuries is belied by the nature of the injuries on the person of Ghulam Rasul and the P. Ws. Ghulam Rasul had in all 23 injuries out of which 4 were by sharp-edged pointed weapon and the same could be ascribed to sue which is alleged to be with the guest Aslam. Injury No. 12, however, is by a sharp-edged weapon. This was 1 x bone deep with partial cut of the bone underneath, and cannot be ascribed to any weapon mentioned by the defence. This proves that there was either another person or persons having a sharp-edged weapon. The nature of contusions and abrasions is also of such a description that it would not be caused by shackles D/1 and D/2 which being a chain type flexible thing would cover more area and cause irregular wounds. The prosecution version, however, appears to be correct as the assailants had different types of weapons which could cause all sort of injuries as found on the persons of the deceased and the injured P. Ws. It also appears correct that there were more than three persons to cause all those injuries. A suggestion put to Muhammad Siddiq P. W. 8 that the complainant party had left main path to attack the accused on the kacha road also supports the prosecution version that all the appellants were there. I agree with the learned Additional Sessions Judge that 23 injuries on the person of Ghulam Rasul, 11 injuries on the person of Muhammad Siddiq, 14 injuries on the person of Rehmat Ali and 3 injuries on the person of Muhammad Siddiq son of Rehmat Ali could not be caused by the three persons who received minor injuries. The number of persons is certainly more. The prosecution evidence is quite consistent but is coming from persons who are admittedly interested to involve the appellants in the occurrence and get them punished. The prosecution named Asghar Ali son of Ismail another eye-witness but he was not examined. It was a broad-day occurrence near the Abadl of Chak No. 158/R.B. and some natural witnesses of that Abadi must have seen the occurrence but none was produced. It is, therefore, quite certain that though independent evidence could be available yet the prosecution failed to produce the same. The appellants other than Nisar and Aslam would thus get benefit of the doubt arising from this omission on the part of the prosecution.

11. The next point is whether Nisar and Aslam appellants acted in their right of self-defence when attacked by the complainant party. The defence version on the face of it seems to be improbable and unbelievable that they while on the horse backs would be attacked by the pedestrians. For one thing the accused could avoid the conflict with the complainant party it they apprehended any such attack and secondly they could even escape if they never wanted to have a confrontation. Thirdly the pedestrians would never dare attack those who were riding horses and if at all they were attacked they would never find the necessity of defending them by shackles as they could ride away fast leaving the alleged assailants behind. The prosecution version therefore, seems to be correct that they had been attacked by the accused party.

12. The point that arises for determination is that what is the nature of the offence There is a motive for the appellants for this occurrence. It is at the instance of Sardar Muhammad that a case under section 435, P. P. C. had been registered against them and that on that very day their bail had been cancelled for reaching the Court late. However, this motive does not seem to be strong enough to persuade the appellants to kill Ghulam Rasul. The only grudge that could be borne by the appellants against the complainant party can be that they were appearing as witnesses against them in the burning of Raya crop case. The offence in question it. not very serious and the maximum punishment for the same is 7 years R. I. and fine. It is therefore, highly improbable that the appellants would go to the extent of intentionally killing Ghulam Rasul and cause injuries to others in the broad-day light. The question of attacking with common intention to kill would thus not arise. The accused, according to them, had their horses shackled at the railway station. It is, therefore, certain that the arms used by them had also been placed by them somewhere there. All this seems to be because of premeditation or a design. In any case the common intention to cause injuries is certainly there. As they could avoid this incident if they wanted to either by adopting a different route or by not following the complainant party when they had changed their route, they had the common intention to cause injuries. The contention of the defence that the action was taken just to chastize the complainant party does not seem to be correct as they were carrying lethal weapons like hatchets and should have known that their use from either side on the vital parts of the body is likely to cause death. Aslam appellant gave a hatchet blow on the head of Ghulam Rasul and must have done so with the knowledge that it was likely to cause death. According to the doctor this injury was sufficient in the ordinary course of nature to have caused death. Nisar also gave a hatchet blow on the head of Rehmat. The offence is, therefore, covered by fourth clause of section 300, P. P. C. So far as the rest of the injuries are concerned they are not attributable to anyone specifically.

13. Coming now to the question of sentence I am of the view that the sentence of life imprisonment awarded to the appellants was unlawful. At the time when the offence was committed, the sentence of life imprison ment had not been provided for the offence in question. This sentence has been provided under the Law Reforms Ordinance, 1972, and, therefore, could not have been applied retrospectively. It is also in conflict with Article 12 of the Constitution 1972 which reads as under:-

"12. Protection against retrospective punishment.-(1) No law shall authorize the punishment of a person-

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of kind different from, the penalty prescribed by law for that offence at the time the offences was committed.

(2) Nothing in clause (i) or in Article 270 shall apply to any law, making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."

It may be stated here that according to section 57 of the P. P. C. life imprisonment means an imprisonment for 25 years. On the other hand the transportation for life means 20 years' R. I. The import of these two sentences was considered by a Full Bench of this Court in Muhammad Hussain and others v. The State P L D 1968 Lah. 1 and it was held as follows:-

"The entire position may be summed up by saying that although transportation for life means a sentence for the remaining span of the natural life of the convict, yet it has been accepted as being of twenty years duration in view of the provisions contained in section 57 of the Pakistan Penal Code. This period has not been curtail ed by the rules framed by the Provincial Government under section 59 of the Prisons Act, 1894, and the period of fourteen years' rigorous imprisonment mentioned in those rules in connection with the sentence of transportation for life is intended to serve merely as a basis for the working of the remission system formulated by the Provincial Government under the relevant provisions of the Prisons Act. Therefore, under sub-rule (2) of rule 22 the rolls of all life convicts who have completed as aggregate period of fourteen years including remissions of all kinds, worked out on the basis of fourteen years, have to be forwarded to the Provincial Government for appropriate action under section 401 of the Criminal Procedure Code. In those cases, however, where the Provincial Government does not wish to release a life convict after he has completed an aggregate period of fourteen years' rigorous imprisonment, it shall be assumed that the prisoner has to undergo an aggregate imprisonment of twenty years, and in that eventuality all the remissions earned by him, whether ordinary or special, will have to be calculated on the basis that he was undergoing a total sentence of twenty years, and not fourteen years. In coming to this conclusion we have placed reliance on the definition of the term 'sentence' as given in clause (d) of rule 2 of the 1965 Rules, namely, that it means a sentence as finally fixed on appeal, revision or otherwise. In other words, it will be open to the Government either to apply the fourteen years rule for all purposes and to release a prisoner accordingly; or to apply the twenty years rule, but it will in no case be permissible to detain him in custody for an aggregate period exceeding twenty years as that would amount to virtual enhancement of punishment with retrospective effect as observed by the Full Bench in Farid Khan's case already mentioned."

I, therefore, set aside the sentences, awarded by the learned trial Court. Aslam and Nisar appellants are found guilty under section 302/34, P. P. C. and I sentence each one of them to transportation for life and to pay a fine of Rs. 3,000 each or in case of default in payment of fine they shall undergo additional two years' R. I. each. The fine if realised stall be paid to the legal heirs of Ghulam Rasul deceased. The two appellants are also held guilty under section 307/34, P. P. C. for making murderous assault on Rehmat Ali, P. W. and are sentenced to undergo one year's R. I. each and to pay fine of Rs. 1,000 each or in default of payment of fine to undergo nine month's R. I. each. If the fine is realised it shall be given to Rethmat Alt P. W. The two appellants are also held guilty under section 307/34, P. P. C. for making murderous assault on Muhammad Siddique son of Sardar P. W. and are sentenced to undergo one year's R 1. each and to pay a fine of Rs. 1,000 each or in case of default of payment of fine nine . month' R. 1. each. If the fine is realised it shall be paid to Muhammad Siddaque son of Sardar P. W. The two appellants are also held guilty under section 323/34, P. P. C. and sentenced to pay a tine of Rq. 150 each or in default of payment to undergo one month's R.1. each. if the fine is realised, it shall be paid to Muhammad Siddique son of Rehmat P. W. the sentences awarded under section 307/ 4, P. P. C. on two counts shall run concurrently with the sentence awarded under section 302/34, P. P. C. but the sentence awarded in default of payment of fine shall run consecutively. The other two appellants Muhammad Ashraf and Bashir Ahmad ate acquitted and they shall be released forthwith unless they are wanted in any other case. Fine if any recovered from them under the previous order shall be refunded.

S. A. H. Orders accordingly.

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