1968 P Cr (PLP)

Out of 29 appellants in this case the first six have been convicted under section 148 of the Pakistan Penal Code and sentenced to rigorous imprisonment for one year each and the rest have been convicted under section 147 of the Code and sentenced to rigorous imprisonment for six months each by the Additional Sessions Judge, Khulna by his judgment and order dated the 28th December 1965. This appeal is directed against the said order of conviction and sentence. 42 accused including the appellants were, placed under trial in the Court of the learned Additional Sessions Judge on the following allegations: On 11th Falgoon, 1369 B. S. corresponding to 24th February 1963 at 9-30 or 10 a. m. complainant Abdul Jabbar Gazi and deceased Abdur Rab and Ebadul were discussing about construction of a village road with others in the parlour of the complainant's new house. The accused persons and others, 50/60 men in; all being armed with various deadly weapons came towards the Kutchery and accused Sahabaz ordered to take off the heads of those persons who were engaged in the discussion. The inmates of the Kutchery-ghar entered inside the compound wall and closed the door thereof. The accused began to pelt brick bats and earthen clods inside the compound wall where upon the complainant and his men entered the north-Bhiti hut of the complainant to save themselves. Accused Sahabaz, Gopal, Noor Alt and Supada alias Shibapada scaled over the compound wall and went into the inner yard. They began to strike roof and fencing of the north-Bhiti but with Ballam, Sorki and such other weapons. They demanded that the complainant and his men should come out of the hut they did not respond. At this Sahabaz ordered to set fire to the hut and accused Gopal and Supada set fire to the roof of the verandah. When the hut was on flames Abdur Rab being followed by Ebadul came out of the southern door of the but to the inner yard Sahabaz struck him with a dao on his shoulder and he fell down on the ground, Accused Thanda, Ali Sardar and Supada struck Abdur Rab with ballam and accused Gopal, Noor Alt, Aminuddin and Ziad Moll:j struck Ebadul with ballam. Accused Sabed Ali gave him lath blows on the bead and Ebadul also fell down there. When P. W, Jaban Molla carne out of the but to the rescue of Ebadul he was assaulted by Ramjan, Gopal and Norman. The complainant escaped through the eastern door by scaling over the compound wall. P. W. Enamul Huq, son of the complainant ran to Kalika-pur Outpost and gave information about the occurrence. On the way he .met Dafadar Jafar and asked hurt to give information to the Thana. The Officer-in-charge Kazi Ahsanullah went to the spot with a constable and recorded first information report on plain paper on the statement of Abdul Jabbar Gazi. He took up the investigation. Post-mortem examination was held on the dead bodies of Abdur Rab and Ebadul. The Investigating officer eventually submitted charge-sheet against 42 accused persons under sections 149/436/302/324 of the Pakistan Penal Code. The defence contended that the house in question was in possession of accused Supada and the complainant and his men went there to dispossess him and burnt the house of Supada. Ebadul and Abdur Rab who were inside the hut when it was set on fire received burnt injuries and died as a result of such injuries. Prosecution examined as many as 23 witnesses in support of their case. On appraisal of the evidence on record the learned Additional Sessions Judge held that appellants 1 to 6 committed rioting with deadly weapons while the rest of the appellants also committed rioting. Hence the conviction and sentences. He acquitted the accused charged with offences under sections 302/34 and 436 of the Pakistan Penal Code. The only point for consideration in this appeal, therefore, is whether the appellants were members of the unlawful assembly and committed rioting with deadly weapons in prosecution of their common object of assaulting the complainant and his men. The evidence of P. Ws. 1, 2, 3, 5, 9, 10, 11, 12 and 13, in sub stance is that the appellants along with others numbering 50 to 60 persons came to the Kutchery of complainant Abdul Jabbar Gazi being armed with various dangerous weapons, such as dhal, ballam, dao, sorki and 1athf.I and assaulted the deceased Abdur Rab and Ebadul as also others of the complainant party. The fact that there was an occurrence there is not denied. The prosecution and the defence have given different versions of the occurrence inasmuch as according to the prosecution the com plainant was in possession of the homestead and he was discussing the question of construction of a village road with the two deceased persons and others in his Kutchery when the appellants and others attacked them and caused the injuries which proved fatal in the case of Abdur Rab and Ebadul, while the defence version is that Supada was in possession of the homestead and the complainant party were the aggressors and they attacked Supada and his men and committed rioting. It is to be determin ed as to whether the prosecution story is true and whether the conviction of the appellants under sections 148 and 147 of the Penal Code are maintainable. It is an undisputed fact that Plot No. 412 of Mouza Kashimari formerly belonged to Supada. According to the prosecution Supada gave settlement ' of this land to Adhar who in his turn sold it to the complainant by a Kabala dated 24th January 1961. The registered pataa by which lease was granted by Supada to Adhar is Exh. A. The com plainant claims that after purchase of this plot he constructed a new house with compound wall built of mud and that he paid rent to the Government under Dakhilas, which are Exh. 2 series. According to the defence Supada has all along been living in this land. The claim of the complainant as regards acquisition of title to the disputed plot is borne out by the Kabala Exh. 1 and the Patta Exh. A. Payment of rent of the holding in question by the complainant is proved by the Dakhilas Exh, 22, series. Some of these Dakhilas show that rent was paid by complainant Abdul Jabbar himself and some other of these Dakhilas show that rent was paid through him. In the latter series or Dakhilas the name Shibapeda Mondal appears in the tenant's column. Be that as it may the fact remains that these Dakhilas go to show that rent was paid by the complainant for the holding covering the disputed plot of land. It may be mentioned here that Exh. A is not the original Patta but a certified copy of it. It contains an endorsement to the effect that the original Patta was destroyed under the rules on 30th September 1965. This fact is not of much importance having regard to the fact that Supada granted a lease of the land in favour of Adhar and the Patta legally took effect from the date of its execution after it was registered. The construction of the new house by the complainant has been proved by a large number of witnesses and there is no evidence to the contrary inasmuch as there is nothing but a mere contention of the defence that Supada continued to be in possession of this land and huts. On a scrutiny of the evidence on record I feel satisfied that the house on Plot No. 412 was in possession of the complainant and on the date of occurrence the accused party went there variously armed to take forcible possession of the same by assaulting complainant and his men. Mr. Abdul Huq, learned Advocate for appellants has canvassed a point of law. His contention is that material part of evidence in this case has been disbelieved by the Court and the conviction on acceptance of unimportant part of the evidence has been unjustified. In support of this contention reference has been made to the case of Ram Chand and ethers v. The State (A I R 1952 H P 57). In that case the prosecution story was that accused had committed a dacoity and, in the commission of the same had inflicted injuries on the complainant who had resisted the crime. The Court disbelieved the prosecution story as false with regard to dacoity, gave credence to another part of the prosecution story and convicted the accused under section 325 of the Penal Code. It was held in such circumstances that the commission of the dacoity being an important part of the entire narrative could not be said to be merely a fringe or embroidery to the main story. On the contrary, it was the main part of the deposition of the witnesses and it was wholly untrue. This, therefore, had the effect of pulling a stone out of the arch and therefore, of the whole fabric of their testimony falling to the ground. The conviction of the accused on the testimony of such witnesses, was, therefore, wholly unjustified. Another authority cited is the case of Awadh Singh and others v. The State (A I R 1954 Pat. 483) wherein the learned Single Judge held that though it cannot be laid down, as a law of general application, that in no case, a Judge can accept a part of the prosecution story when he dis believed its other part, as a rule of prudence, it will not be safe to rely on the evidence of witnesses on one part of the prosecu tion story when it has been disbelieved as to its material part. With due deference to the views expressed by the learned Single Judges in the above two cases I think that when one part of the prosecution story is disbelieved, there is no bar in law to the acceptance by the Court of another part of that story and to base a conviction thereon. The evidence of witnesses should always be placed on the anvil and subjected to close scrutiny before it is accepted by the Court either wholly or partially. In doing so, the Court may reject the evidence of the witnesses with regard to particular part of the prosecution story but can accept their evidence on another part of it. Which the Court is always entitled to do. It may also be pointed out here that this case the prosecution case as a whole is that the appellants had others committed rioting after forming an unlawful assembly in prosecution of their common Object of assaulting the complainant party and the evidence of witnesses on this point has been accepted lay the trial Court. But the trial Court has not accepted the evidence with regard to the specific allegation against certain persons to the effect that they caused hurts to deceased Abdur Rah and Ebadul, which caused their death, and with regard to the persons who set fire to the hut. The Court below rejected the, evidence against the alleged perpetrators of the offences under sections 302/34 and 436 of the Penal Code. After a careful scrutiny as I read the evidence and consider the observa tions matte by the trial Court on this point, it appears tea me that those persons tare entitled only to the benefit of doubt. Inasmuch as he found the evidence of the witnesses with regard to causing of injuries ore the two deceased persons inconsistent with medical evidence. The next important question is whether all the appellant participated in the rioting. With regard to this there is over whelming evidence against each of them. The evidence against each individual appellant has been dealt with by the trial Court, for instance it has been mentioned that accused Sahabaz was recognised by P. Ws. 1, 2, 3, 4, 5, 9, 10, 11, 12, 13; 19 and against Shahadat there is the evidence or P. Ws. 1, 3, 4, 9, l0 and 12 and so tin. It transpired in the evidence that Sahabaz was armed with a dao. It will be useless to repeat the discussion of the evidence against individual appellants contained in the judgment of the trial Court. I am satisfied from the evidence on record that appellants Sahabaz Sardar, Gopal, Sardar, Mandar Sardar, Noor Ah Sardar, Ramzan Sardar and Noorman Gain were armed with deadly weapons while there is no satisfactory evidence as to the weapons with which the rest of the appellants were armed. Thus the conviction of appellant 1 to 6 under section 148 and 7 to 29 tinder section 147 of the Penal Code to thoroughly justified. Coming to the question of sentence, there is no gainsaying the fact that this rioting that was committed by the appellants was also responsible for two in murders besides causing injuries on several person; as would appear from the evidence of P.W.18 Dr. Elahi Bux. There is no evidence to indicate that any one of the accused party sustained any serious injury in occurrence. The sentence of rigorous imprisonment fair one year passed on appellants. Nos. 1 to 6 is confirmed. The sentence passed on other 23 appellants under section 147 of the Code appears to me to be somewhat severe, because none of them was responsible for causing any serious injury tea any gone. They only joined in the rioting. Their sentence is reduced to a fine of Rs. 75,00 each, or in default to rigorous as imprisonment for two months each. Subject to the modification of sentence of appellants Nos. 7 to 29 the appeal is dismissed. Appellants Nos. 1 to 6 must surrender to their bail bonds and serve out the remainder of the sentence imposed upon them and appellants. Nos. 7 to 29 must pay down the line now imposed upon them. Appeal dismissed. Sentence modified.