1969 PLP 798 (SCMR)

SHAHABUDDIN, J.‑The appellants Roshan Akhtar, Muhammad Yar and Sultan Maqsud who had been tried along with five others by the Additional Sessions Judge, Shahpur at Sargodha, for the offences of rioting, attempted murder and murder were convicted of those offences and sentenced, Roshan Akhtar to death and the other two appellants to transportation for life for the offence of murder. One of the other accused Abdul Rauf was also convicted for the same offences and sentenced to death. Sentences of imprisonment for the other offences were passed on these convicted accused. On appeal the learned Judges of the High Court of Lahore held that there was no unlawful assembly and hence no rioting. They acquitted Abdul Rauf and altering the conviction of Roshan Akhtar into one under section 302 confirmed the sentence of death imposed on him. As for the other two appellants their convictions under section 307/149 were altered into convictions under section 307, lf. P. C. and the sentences of six years' rigorous imprisonment imposed on them were maintained. Their convictions for the offences of murder and rioting were set aside. This is an appeal by special leave from the judgment of the High Court. The case for the prosecution was as follows. There were two parties in the village of occurrence. Khuda Dad and Fazal Karim who were killed in the occurrence and P. Ws. Muhammad Sharif, Allah Dad, Muhammad Yar Marath (Gujjars) belonged to one party while appellants Roshan Akhtar and Sultan Maqsud and the acquitted accused Abdul Rauf who are Ghakkars and appellant Muhammad Yar an Arain were anembers of the other. Deceased Khuda Dad was suspected of illicit intimacy with the wife of Roshan Akhtar, while against Muhammad Sharif P. W. there was suspicion that be was responsible for the abduction of an Arain woman. Some of the Gujjars including P. W. 5 were said to have given a beating to a relative of two of the accused about a year and a half prior to the occurrence. At about digarwela on 22nd May 1954 while Muhammad Sharif P. W. and his brother Fazal Karim deceased were cutting fodder in their shaftol field and Allah Dad and Khuda Dad deceased were sitting near them, accused Ghulam Abbas, Abdul Aziz, ;Gazanfar Mahmood armed with dangs and appellant Sultan Maqsud armed with a kulhari came there and challenging the witnesses and the deceased beat Fazal Karim and Khuda Dad while appellant Maqsud chased Sharif and aimed a blow at him with a kulhari, but Sharif ran away along with Fazal Karim and Khuda Dad towards the village. Hardly had they gone 10 Karams when appellant Roshan Akhtar and acquitted accused Abdul Rauf armed with guns, appellant Muhammad Yar carrying a sword and two other accused who were acquitted by the Additional Sessions Judge, Gullu and Falak Sher, came from the opposite direction. In the meantime three of the witnesses Muhammad Yar (P. W. 6), Muhammad Hayat (P. W. 7) and Nek Muhammad (P. W. 9) arrived at the spot but before they could intervene appellant Roshan Akhtar and the acquitted accused Abdul Rauf fired at Khuda Dad and Fazal Karim who died on the spot, as a result of the gunshot injuries they received. Appellant Muhammad Yar cut with the sword Fazal Karim as he was falling down while another accused who was acquitted hit Khuda Dad. Appellant Muhammad Yar attacked Muhammad Sharif also with a sword while Sultan Maqsud attacked witness Muhammad Yar with a kulhari. The latter retaliated by causing injuries to the assailants. Thereafter Roshan Akhtar and Abdul Rauf shouted to their companions to remove the dead bodies but Muhammad Sharif who had in the meantime brought the gun of deceased Khuda Dad fired at appellants Sultan Maqsud and Muhammad Yar as a result of which those appellants sustained gunshot injuries and went away without removing the dead bodies. Among the accused only Sultan Maqsud and Muhammad Yar sustained injuries. The other had no injuries and they denied participation in the occurrence, while the version of the two injured accused was to the following effect. At the time the incident took place they were returning to the village with a maund of Ice but when they came near the havelf of Fazal Dad they were. attacked by witnesses Muhammad Sharif, Muhammad Yar, Allah Dad and the two deceased persons as well as three others. Witness Muhammad Sharif and deceased Khuda Dad were armed with guns while the others had dangs. These two appellants, while they were thus attacked ran towards a gali when deceased Khuda Dad fired at Sultan Maqsud hitting him on the right leg and Muhammad Sharif fired at Muhammad Yar who also sustained injuries and both of them fell on the ground. The rest of the assailants then began beating them with dangs. In the meantime one Muhabbati, a non‑Muslim, who came from the above said gali fired at the deceased Khuda Dad and Fazal Karim with a gun killing both of them on the spot. He also fired some more shots but these accused did not know who were? hit as a result of those shots. The version for the prosecution was deposed to by P. W. 3 Allah Dad, P. W. 5 Muhammad Sharif and P. W. 6 Muhammad Yar Marath, P. W. 7 Muhammad Hayat who was regarded as. disinterested witness but could not identify the accused satisfactorily and P. W. 9 Nek Muhammad. The Additional Sessions Judge accepted this version generally and with regard to the sequence of events but in respect of some of the accused whom he had acquitted, he considered that the presence of three of them was doubtful and the evidence adduced in support of the alibi set up by another accused was in his opinion acceptable. As far as the occurrence was concerned he took the view that it was a continuous transaction and the accused who participated: in it had come in accordance with a pre‑arranged plan and therefore constituted an unlawful assembly. He did not believe?the defence version. The learned Judges of the High Court who agreed with the trial Judge that the defence version could not be accepted came to the conclusion that all the injuries. caused by sharp‑edged and blunt weapons found on the two, deceased persons Khuda Dad and Fazal Karim, the injured. witnesses Muhammad Yar and Muhammad Sharif and on: appellants Sultan Maqsud and Muhammad Yar were inflicted at the occurrence in the shaftal field. It was in pursuance of this, conclusion that they rejected the case of the prosecution that there was unlawful assembly and consequently altered the ?convictions of the appellants as indicated above. It was contended for the appellants before us that this was a new case as it was neither the version of the prosecution nor that of the defence, and that in this reconstruction of the case the learned Judges failed to consider the following two, circumstances which according to the learned Advocate support the version of the appellants (1) All the gun‑shot injuries were tound hd right side of Khuda Dad extending from below the right ear on to the right. arm and the right side of the chest and this indicated that he?at the time of sustaining the injuries was keeping his right arm in the same position in which one would keep while holding a. gun to fire; and (2) P. W. 15, the A. S. I. when he inspected the field of occurrence found a gunny bag containing ice and not any cut crop and this supports the defence and not the prosecution case. The reason given by the learned Judges for not accepting the version of the prosecution in respect of the injuries caused with sharp‑edged and blunt weapons found on the injured witnesses and appellants Sultan Maqsud and Muhammad Yar was that it did not stand to reason that after Khuda Dad and Fazal Karim had been killed witness Muhammad Yar could have succeeded in pausing injuries with dang to appellants Sultan Maqsud and Muhammad Yar and that witnesses Muhammad Yar and Muhammad Sharif would have dared to come near the dead bodies and received sword and kulhari blows as alleged by them at the hands of appellants Muhammad Yar and Sultan Maqsud. But we do not see any inherent improbability in this part of the prosecution version. The fact that two of their men had been killed need not necessarily have deterred these witnesses from going near the dead bodies, or beating up the assailants. Whether a person in such circumstances is courageous enough to beat with a dang assailants who are armed with a sword and kulhari depends on the excitement of the moment, the courage of the individual person concerned and the effect on the assailants themselves of their party having killed two men. In this view reconstruction of the case does not appear to us necessary at all. Even if we proceed on the same basis as the learned Judges we see no force in the contention advanced before us. The theory that the position of the fire‑arm injuries on the deceased indicates that he was holding a gun in his hand at the time he was shot seems to us far fetched. It does not appear that it was advanced during the arguments before the High Court. However the injury found on the left thenar eminence of Khuda Dad negatives the theory for if the deceased was holding a gun at the time he was shot his left hand must have been supporting the gun in which case the left thenar eminence could not have been exposed. We are, therefore, not surprised at this aspect ‑of the matter not having been considered by the learned Judges. As regards the second circumstance, the argument was that the fact that there was no cut crop in the field when the A. S. I. inspected it negatives the version of the prosecution that Fazal Karim and Muhammad Sharif were busy cutting the crop and Allah Dad and Khuda Dad were sitting near them, while the fact that ice was recovered from that field indicates that Muhammad Yar was at the time bringing a maund of ice for sale and had not gone to the scene to attack the other party. But P. W. 15 the A. S. I. who was the first officer to go to the scene deposed that the crop appeared to have been cut from the field. The fact that the cut crop was not found in the field when the A. S. I. inspected it does not necessarily falsify the version of the prosecution for as explained by the learned Advocate‑General, it might have been removed for the cattle soon after the occurrence. As regards the discovery of the gunny bag containing about a maund of ice, that is not a material circumstance in view of the fact that the appellant Muhammad Yar was admittedly armed with a sword and it is hardly likely that this appellant would have been so armed if he was returning with ice for sale in pursuit of his ordinary avocations. It was then argued that even on the findings of the learned Judges, appellant Muhammad Yar and Sultan Maqsud would be guilty only under section 324 and not under section 307, P. P. C. as the injuries inflicted by them on witnesses Muhammad Yar and Muhammad Sharif were not serious. But the weapon used by these appellants in the attack considered with the evidence regarding the motive make it clear that they would have been guilty of murder, had these witnesses sustained fatal injuries. We, therefore, see no ground for interference by this Court. The appeal is dismissed. Appeal dismissed. ???????????