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Criminal Appeal No. 527 of 1959, decided on 1st August, 1960.

between two sects‑Evidence of witnesses belonging to either sect whether cannot be accepted unless corroborated in material particulars.

Whether or not a witness should be believed is a question of fact which the law of evidence leaves to the tribunal dealing with a case to decide and though it may generally be true that in a case of dispute between two sects, the mere word of a member of one of the sects should not be considered sufficient evidence against a member or members of the other sect yet the weight that can be attached to the statement of a witness must depend on the circumstances of each case and no decision given in any other case can be used as a binding precedent: The proposition that in cases of crimes alleged to have been committed in a dispute between Sunnis and Shias no member of either of the sects could be relied upon as a truthful witness unless his evidence is corroborated cannot be held to be true. The mere circums tance that all the prosecution witnesses deposing against the accused belonged to a sect other than that of the accused cannot by itself be sufficient for holding them as witnesses on whom no reliance could be placed.

Criminal Appeal No. 279 of 1959 considered.

, S. 302‑One blow with knife aimed at neck causing death of deceased‑Accused may be presumed to have had no other intention but to kill.

' Where a person so aims a blow at another with a knife at a vital part of the human body (e. g., neck) then that person could be presumed to have had no intention but to take life and if the case is not taken out of the purview of section 300 of the Penal Code, 1860 for some other reason the offence established against the accused would be one of murder under section 302 of the Code.

Right of‑Brick‑bat thrown at Tazia procession by someone from congregation of Sunnis gathered in a mosque‑Right of private defence whether and when accrues against every member of such congregation‑Penal Code (XLV of 1860), Ss. 96, 97 & 100.

A tazia procession was passing near a mosque where a Sunni maulvi was delivering a sermon to congregation of about seven thousand people, one thousand of whom were sitting in the compound of the mosque and the rest in the com pound of a nearby school. Some one sitting in the compound of the school threw a brick‑bat at the procession. This led to an attack on the Sunnis by the Shias, some of whom entered the compound of the mosque and there caused injuries to some of the Sunnis one of whom later succumbed to a blow given with a knife by the accused. The accused was tried for murder. It was conten ded on behalf of the accused that as a brick‑bat had been thrown at the Tazia procession, a right of private defence of person and property had accrued to the accused.

Held that the right of private defence did not accrue to accused against all Sunnis present in the mosque and in the compound of the school unless it were established that all the seven thousand Sunnis were an unlawful assembly whose common object was to throw a brick‑bat at the tazia procession and it was in furtherance of that common object that the brick‑bat was thrown by one of the members of the unlawful assembly. There was, complete absence of evidence to this effect and, therefore, no right of private defence of person or property could be invoked by the accused.

S. 300, Exception 1‑One member of a large congregation of Sunnis doing act causing grave and sudden provocation to members of Shia sect‑All members of Sunni congregation not responsible for causing such provocation.

M. Z. Kitchlew for Appellants.

Maulvi Mushtaq Hussain A. A. G., for Respondent.

Date of hearing : 1st August, 1960.

An incident which occurred between Sunnis and Shias in a mosque at Ahmadpur East in the District of Bahawalpur on the 8th of August, 1957 correspon ding to the tenth of Muharram Hijri 1877, cost Ghulam Muhammad, a Sunni, his life and resulted in injuries to three other Sunnis, namely, Muhammad Hanif, Muhammad Yar and Allah Dawaya, as well as some minor injuries to some Shias. The incident took place at about 4‑15 p.m. and soon after an order under section 144 of the Criminal Procedure Code was passed, banning meeting of more than five persons, so that no further untoward incident may occur. At the time of the incident, a tazia procession was passing near the mosque and as is usual on such occasions some members of the police force and a Magistrate accompanied it, so that immediate steps could be taken to curb any mischief that may be apprehended. It appears that at the time that the tazia procession reached the mosque a Sunni Maulvi was delivering a sermon in the mosque. The congregation was about seven thousand people, one thousand of whom were sitting in the compound of the mosque and the rest in the compound of a near‑by school. It appears that someone sitting in the compound of the school threw a brick‑bat at the procession. This led to an attack on the Sunnis by the Shias, some of whom entered the compound of the mosque and there caused injuries to some of the Sunnis.

2. Taj Muhammad Khan who was addressing the congre gation in the mosque made a written report at the Police Station at Ahmadpur East which is at a distance of about a furlong from the scene of the occurrence at about 11 p.m. that day. In this report he hinted that Sikandar Hayat, Deputy Superintendent of Police, who was in charge of the police force accompanying the taz'ia, had indirectly helped the Shias in causing injuries to the Sunnis because instead of taking action against the Shias, he had asked the foot constables to make a lathi charge on the congregation in the mosque. Taj Muhammad Khan further made it clear in his report that Wajid Ali Shah had caused an injury to Ghulam Muhammad which resulted in fatality.

3. After investigation a dozen persons, all Shias, were sent up for trial under sections 302/149, 324/149, 326/19, 147 and 148 of the Pakistan Penal Code. The trial was held by the Sessions Judge, Rahimyarkhan, who, by his order dated the 5th of May 1959, while acquitting three of the twelve accused persons, convicting the other nine of different, offences. Wajid Ali Shah was sentenced to transportation for life under section 302 of the Pakistan Penal Code and to various terms of imprisonment for some other offences, all the sentences being directed to run concurrently, while Qadir Bakhsh, Nathu, Ghulam Qadir, Nabi Shah, Faiz Muhammad, Ghulam Nabi, Ghulam Muhammad and Allah Dawaya, though acquitted of the offence of murder, were sentenced to various concurrent terms of imprisonment for some other offences. The nine convicted persons have presented a joint appeal against their convictions.

4. At the trial the prosecution produced Muhammad Hanif (P. W. 8), Muhammad Yar, (P. W. 9), Allah Dawaya (P. W. 10), Muhammad Hayat (P. W. 11), Abdul Khaliq (P. W. 12) and Taj Muhammad Khan (P. W. 14) as the eye‑witnesses of the occurrence. Muhammad Hanif (P. W. 8), Muhammad Yar (P. W. 9) and Allah Dawaya (P. W. 10) did not say who the author of the injury, which killed Ghulam Muhammad, was, but mainly deposed about the injuries received by themselves. The other three witnesses, namely, Muhammad Hayat (P. W. 11), Abdul Khaliq (P. W. 12) and Taj Muhammad Khan (P. W. 14), however, said that Wajid Ali Shah had caused an injury with a dagger on the neck of Ghulam Muhammad deceased which resulted in death. There is no other evidence to connect the appellants with the crime, and the question to determine is whether‑ the evidence on which the prosecution relies is sufficient to bring home the guilt to all or any of the appellants.

5. As it was a case of a dispute between Sunnis and Shies, the learned counsel for the appellants urged that the evidence should be scrutinised carefully and cited the decision of a Division Beach of this Court consisting of Abdul Aziz Khan and Ortcheson, JJ. in Criminal Appeal No. 279 of 1959 in support of his contention that the evidence of the witnesses in such cases should not be accepted unless it was corroborated in material particulars. If the learned Judges on whose decision the learned counsel for the appellants placed so much reliance intended to lay down as a proposition of law that in cases of crimes alleged to have been committed in a dispute between Sunnis and Shias, no member of either of the sects could be relied upon as a truthful witness, I would with all respect differ from that proposition. Whether or not a witness should be be lieved is a question of fact which the law of evidence leaves to the tribunal dealing with a case to decide, and though it may generally be true that in cases of this type the mere word of a member of one of the sects should not be considered sufficient evidence against a member or members of the other sect, yet, as I have already said, the weight that can be attached to the statement of a witness must depend on the circumstances of each case and no decision given in any other case can be used as a binding precedent.

6. I will first of all take up the case of Wajid All Shah appellant. It is true that all the three witnesses who depose that it was at the hands of Wajid Ali Shah that Ghulam Muhammad deceased received the injury that killed him are Sunnis, but that circumstances by itself cannot be sufficient for holding them as witnesses on whom no reliance could be placed. The cir cumstances of the present case are that Wajid Ali Shah is not an important member of the Shia sect and it is but natural to infer that if the witnesses had intended to falsely implicate a member of the Shia sect, they would have named an important person. It is in evidence that Said Ali Shah, one of the three acquitted accused, was an important member of the Shia sect as he had been agitating in favour of the rights of Shias for a long time and yet one finds that the three eye witnesses who name Wajid Ali Shah appellant as the person whose blow killed Ghulam Muhammad did not ascribed to Said Ali Shah a part of any importance. Then there is the fact that none of the three witnesses is shown to have any personal bias against Wajid Ali Shah and it is, therefore, clear that their depositions cannot be brushed aside for the mere reason that they happen to be members of the Sunni sect, one member of which sect received a fatal injury in the incident under consideration. I have, therefore, no hesitation in holding that the prosecution had succeeded in establishing beyond all reasonable doubt that it was as a result of the blow with a danger or a big knife given by Wajid Ali Shah appellant that Ghulam Muhammad received an injury that killed him on the spot.

7. I will now take up the case of the other eight appellants. With regard to them the evidence consists of the depositions of Muhammad Hanif (P. W. 8) Muhammad Yar (P. W. 9) and Allah Dawaya (P. W. 10). The learned trial Judge did not accept the evidence of these three witnesses in its entirety even with regard to the injuries received by them. It appears to me, therefore, that it was not safe to base the conviction of these eight appellants on the evidence of Muhammad Hanif (P. W. 8), Muhammad Yar (P. W. 9), and Allah Dawaya (P. W. 10). I would, therefore give the benefit of the doubt to Qadir Bakhsh, Nathu, Ghulam Qadir, Nabi Shah, Faiz Muhammad, Ghulam Nabi, Ghulam Muhammad and Allah Dawaya appellants and direct their immediate release.

8. This brings me to the question what offence or offences are established against Wajid Ali Shah appellant. The doctor who performed the post‑mortem examination on the dead body of Ghula‑m Muhammad found thereon an incised wound going from above downward and inward, 2'X 5/8", X I‑1/8", on the left side of the neck, 3" above the inner end of the neck clavi cle, 2 " from the middle line the doctor said that his exami nation disclosed that the neck vein on the left side and the left sub-clavicular veins were cut. In the opinion of the doctor this injury was fatal in the ordinary course 'of nature and there can be no manner of doubt that it was so. Learned counsel for the appellants urged that in no case could the offence of Wajid Ali Shah appellant amount to one of murder. He pointed out that only one blow was given and though the result was fatal, the provision of the Pakistan Penal Code that was attracted was not section 302 but either section 304 or section 326 because the Court should not presume that the assailant intended to cause the death of the deceased. I cannot accept this contention because the blow was so aimed that the neck which is known by everyone to be a very vital part of the human body should receive a dangerous injury. A person who causes an injury of this type could have had no intention but to take human life and I am satisfied that if the case is not taken out of the purview of section 300 of the Pakistan Penal Code for some other reason, the offence established against Wajid Ali Shah would be one of murder.

9. The next argument which the learned counsel for the appellants advanced in his attempt to show that the case proved against Wajid Ali Shah was not one of murder may now be taken up. He contended that as a brick‑bat had been thrown at the procession following the ta'zia a right of private defence of person and property accrued and the death of Ghulam Muhammad could at worst be said to have been caused by Wajid Ali Shah appellant having exceeded the right of private defence. This argument overlooks two important circumstances, one being that nobody has said that anyone in the mosque which was separated by a wall from the compound of the school had thrown the brick‑bat at the procession and the other being that no one alleged that the brick‑bat was hurled by, Ghulam Muhammad deceased. Assuming that a brick‑bat was thrown at the ta'zia procession, I do not see how any right of private defence accrued against all Sunnis present in the congregation in the mosque and in the compound of the school adjoining it unless it were established that all the seven thousand Sunnis were an unlawful assembly whose common object was to throw a brick‑bat at the ta'zia procession and it was in furtherance of that common object that the brick‑bat was thrown by one of the members of that unlawful assembly. Of evidence to this effect there is a complete absence and if Wajid Alt Shah appellant had chosen to draw that inference, he was acting at his own risk. I would hold, therefore, that no right of private defence of person or property could be invoked by Wajid Ali, Shah appellant.

10. It was next urged by the learned counsel for the appellants that at any rate Wajid Ali Shah acted under grave and sudden provocation and therefore, his act of causing a dangerous and fatal injury to Ghulam Muhammad deceased would not attract the provisions of the Pakistan Penal Code relating to mur der. That there was provocation to the Shia procession going with the ta'zia can hardly be doubted but that does not conclude the matter. If a person intentionally kills another the "offence committed will be one of murder unless it is established that one of the general exceptions is applicable and of these exceptions one is concerned for the purposes of the argument of the learned counsel for the appellant with the one relating to grave and sudden provocation. If it were established that the seven thousand members of the Sunni congregation wanted a brick‑bat to be thrown at the ta'zia procession the mere fact that it was not the hand of Ghulam Muhammad that threw the brick‑bat would have made the provisions which made intentional killing of a human being merely culpable homicide not amounting to murder if the deceased had given grave and sudden provocation to the person who killed him applicable to the case of Wajid Ali Shah appel lant but of evidence pointing in that direction there is a com plete absence. I do not see on what reasonable ground it should be held in the absence of evidence mentioned above, that if a member of a congregation consisting of thousands of Sunnis does an act which causes grave and sudden provocation tow members of the Shia sect all members of the Sunni sect present at the congregation could be held to be responsible for causing grave and sudden provocation to the Shia sect. Even in case of the present type the law takes individual responsibility into consideration and does not make all members of a sect respon sible for acts of one of its members. If the law did not concern itself with individual responsibility in cases of this type, it would be acting precisely as uneducated and highly biased members of sects act in such circumstances. As Ghulam Muhammad deceased did not give any grave and sudden pro vocation to him, I am clear in my mind that Wajid Ali Shah was fully liable for his act of intentionally causing the death of Ghulam Muhammad. There is nothing to make the pro visions of section 302 of the Pakistan Penal Code inapplicable to the offence committed by Wajid Ali Shah appellant by killing Ghulam Muhammad and I would, therefore, uphold the con viction of Wajid Ali Shah under section 302 of the Pakistan Penal Code. By reason of the fact that there was some provo cation which may have made him loss his temper: Wajid Ali Shah appellant was awarded by the learned trial Judge the minimum sentence prescribed by law for an offence of murder and as nothing more can be done for him as far as the offence of murder is concerned, the sentence for that offence cannot but be upheld.

11. I will now take up Wajid Ali Shah's appeal with regard to the other sentences imposed on him. That more than five members of the Shia sect entered the mosque with the, object of causing injuries to members of the Sunni sect is clearly estab lished by the evidence on the record and as some of the weapons carried were very dangerous in character, Wajid Ali Shah appel lant could not but have known that the unlawful assembly of which he was a member would cause simple and grievous injuries with sharp‑edged weapons. I would, therefore, uphold the conviction of Wajid Ali Shah for the other offences also and would dismiss his appeal in its entirety.

12. The result, therefore, is that while the appeal of Wajid Ali Shah is dismissed in its entirety that of the other eight appel lants being accepted in its entirety, these eight are directed to be set at liberty forthwith.

I agree.

K. B. A Appeal dismissed

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