1968 P Cr (PLP)

M. A. Bajwa, Advocate Supreme court instructed by Ijaz Ali, Attorney for Respondents. Date of hearing: 26th February 1968. FAZAL-E‑AKBAR, J.‑‑This order relates to Criminal Petitions for Special Leave to Appeals Nos. 81 and 84 of 1967, which arise out of the same judgment of the High Court of West Pakistan at Lahore. Eight persons, namely, Nawab Khan, Nawaz Khan, Nawaz Khan, Haitam Khan, Sahib Khan, Hayat Khan (petitioners in Petition No. 81), Mian Khan and Mehr Khan (respondents in Petition No. 84) were tried for the offences of rioting, murder and attempted murder by the Additional Sessions Judge, Jhelum. They were all convicted under sections 302/149 (on two counts), 307/149 and 148, P. P. C. Nawab Khan, Haitam Khan and Hayat Khan were sentenced to death and the rest to transportation for life for the murder of Aurangzeb. Nawab Khan, Sahib Khan, Nawaz Khan and Mian. Khan were sentenced to death and the rest to transportation for life for the murder of Ilyas. They were also sentenced to various terms of imprisonment in respect of the charges under sections 307/149 and 148, P. P. C. On appeal and reference, the High Court affirmed the convictions and sentences of the six petitioners in Petition No. 81 and acquitted Mian Khan and Mehr Khan. Petition No. 81 is directed against their convictions and sentences, whereas Petition No. 84 has been filed by one, Sawal Khan, challenging acquittal of Mian Khan and Mehr Khan. The prosecution case briefly was that at about Katchi Rotiwela on 20th of July 1965, while Aurangzeb and Ilyas were levelling their field in the area of Dhok Nagri Kakhli Sethi in the district of Jhelum, the accused party came there armed with various weapons such as spears and lathis and then Mehr Khan raised a lalkara exhorting his companions to kill them Aurangzeb and Ilyas ran for life but they were overtaken about 30 paces from their field. Nawab Khan then speared Aurangzeb in the abdomen, Haitam Khan speared him on the right flank and he fell down on the ground. Hayat Khan then gave him a stick blow and he died on the spot. Illyas was given spear blow by Nawaz Khan and Sahib Khan and when he fell down he was speared by Nawaz Khan. Mian Khan also inflicted a lathi blow on hits. He succumbed to his injuries shortly there-after. Sawal Khan Muhammad Riaz, Nazar Hussain and Ahmad Khan who were working in a nearby field which attempting to rescue Aurangzeb and Ilyas inflicted some injuries on the assailants by means of goading sticks and they also received injuries in return. Sawal Khan then lodged first information report on that very day at 4.30 p.m. at Police Post Buchbal Kalan which is at a distance of 17 miles from the scene of offence Eventually, these 8 persons were committed to the Court of Sessions to stand their trial for double murder, attempted murder and rioting: The complainant party ‑had received the following injuries. Aurangzeb deceased had two stab wounds and a contusion; Ilyas deceased had three stab wounds and a contusion; Sawal Khan (P. W.) had three incised wounds and two contused 'wounds; Ahmad Khan (P. W.) had two incised wounds, one stab wound, two contusion and one contused wound; Muhammad Riaz (P. W.) had two contused wounds and a swelling on his right hand; Nazar Hussain (P. W.) had two contusions and one contused wound. The doctor who examined the accused on 22‑7‑65 found the following injuries on their persons. Hayat Khan had three contusions, one abrasion and one contused wound; Sahib Khan had one contusion; Nawab Khan had two contusions; Haitam Khan had four contused wounds four abrasions and one contusion Nawaz Khan had four contused wounds, two abrasions and one contusion; Nawaz Khan had three abrasions. The defence of the accused party was that the complainant party wanted to take forcible possession of their, fields bearing Khasra Nos. 7316 and 7319 and apprehending the danger, Nawaz Khan along with Hayat Khan and Nawab Khan prepared themselves to repel the attack of the complainant party while attempting to take possession of said fields assaulted Nawaz Khan, Hayat Khan and Nawab Khan in field No. 7316 and they caused injuries to the complainant party in exercise of their right of private defence of person and property. Further, according to the defence, Nawaz Khan, Haitam Khan, Mehr Khan, Sahib Khan and Mian Khan were not present at the time of occurrence and that they had been falsely implicated in the case out of enmity Direct evidence was furnished by Sawal Khan, Ahmad Khan, Muhammad Riaz and Nazar Hussain, who had received injuries at the time of occurrence, and by Amir Ali, a passerby who happened to be there at that time. The Sessions Judge relying on their evidence convicted and sentenced all the accused persons. On appeal and reference the High Court was satisfied on the evidence that the charges had been established beyond reasonable doubt against Nawab Khan, Nawaz Khan, Nawaz Khan, Haitam Khan, Sahib Khan and Hayat Khan and therefore confirmed their convictions and sentences. The learned Judges, however, gave benefit of doubt to Mian Khan and Mehr Khan because they had no injuries on their persons and acquitted. The learned counsel for the petitioners in Petition No. 81; with a view to discredit the prosecution witnesses, has drawn our attention to certain discrepancies and exaggerations in their evidence. It will suffice to say that the discrepancies being of a minor nature, the High Court rightly refused to attach much importance to them. Furthermore, we think, they rightly did not give much importance to the slight improvements in their story at the time of the trial. We are also not impressed by the argument that there was misreading of evidence by the Courts, below. The learned counsel has contended that the learned Judges of the High Court have taken incorrect view of the complaint, Exh. P. D./1 which was made by the accused Nawab Khan. According to him, the said complaint related to wrongful removal of crops from the land but the High Court thought that it related to possession of land. The learned Judges of the High Court while dealing with this Exh. P.D./1 in the judgment observed as follows: "The complainant party being already in possession as evidenced by the entry in the revenue record and the‑ conduct of the accused party in filing complaints against them for criminal trespass, there was no question of their taking forcible possession. On the other hand, it was the appellants who were doing their utmost to have possession restored to them as evidenced by the copy of the complaint Exh. P. D./1 made by Nawab Khan appellant. The appellants had no business to resort to the use of arms even if they considered the complainants to have entered possession under a collusive entry made by the Patwari." Thus, the misreading to which the learned counsel has referred is really of not much importance, because there is not much difference between the question of possession and cutting of the crop and storing it in the khalwara of the land in question. There is also no substance in the contention that on evidence the High Court was not justified in coming to the conclusion that the occurrence took place in Field No. 7315. In view of the fact that the dead body lay on the said field and blood was also found there, the High Court was justified in accepting the complainants' version. We may further point out that no physical circumstance were adduced in support of the story that the occurrence took place in some other places, We may also point out that even no suggestion was made to the prosecution witnesses that the occurrence had taken place somewhere else. It was then contended that the prosecution story had been disbelieved as regards Mian Khan and Mehr 'Khan the sami should not have been accepted against the other accused. It seem, that as a measure of abundant caution the Court gave Mian Khan and Mehr Khan benefit of doubt because they bad no injuries of their persons. Hence, it cannot be said that the Court found the story of the prosecution witnesses to be false so far as they war concerned. It was lastly contended that this was really as case of free fight and hence each accused should have been convicted only for his individual acts. The nature and number of injuries sustained by the complainant party clearly indicate that the accused party were the aggressors and that the attack was carried out with great determination and without regard to the consequences. Furthermore, the disproportion between the injuries received by the accused and also the nature of injuries show that the complainant party was taken by surprise. It is clear that the complainant party inflicted some minor injuries with goading sticks on the accused while defending themselves and is enough to negative the plea of free fight. Thus, the contentions advanced by the learned counsel have no substance in them. In our opinion, the High Court has rightly maintained the convictions and sentences of the petitioners in Petition No.

81. The counsel in Petition No. 84 was found absent. It will, however, suffice to say that the High Court has given cogent reasons for acquitting Mian Khan and Mehr Khan, who are respondents in this petition. In any event, it cannot be said that their acquittal was manifestly wrong or against the weight of evidence. For the reasons stated above, we dismiss both the petitions. Leave refused.