P L D 1954 Federal Court 282 (PLP)

AKRAM, J.--‑Appellant Sher Muhammad and eight others were put upon their trial before the Additional Sessions Judge of Nawabshah, for rioting with deadly weapon and for causing the death of one Naban Lakho, and his two sons, Waris and Rasoolo on 7th July 1951, in the course of a quarrel over some agricultural lands and the produce thereof in village D2h Sitardino, between the complainant Kaim and his mean on the one side and the appellant and his party on the other. The complainant Karim claimed a 1/4th share in Survey Plots Nos. 140/A & 140/B and certain other plots on the basis of two documents Exhs. 5 and 6 executed in July 1947, by certain Hindus who migrated to India, while Sher Muhammad and some others claimed the same as the lessees under Exhs. 23 and 24‑allotment orders relating to the said evacuee properties dated 1951. The learned Sessions Judge sentenced the appellant to death under section 302, Penal Code for the murder of Naban Lakho, he also sentenced him to transportation for life and to three years' rigorous imprisonment along with the rest of the accused under sections 302/149 and 148 respectively for the murder of Naban Lakho, Waris and Rasoolo and for rioting. Upon appeal two of the accused, namely, Kodu and Jumo were acquitted, but the appeal of the remaining appellants was dismissed and the sentence of death of appellant Sher Muhammad was confirmed under section 374 of the Cr. P. C. Sher Muhammad then obtained our leave and preferred the present appeal. It is not necessary to give details of the cases of the others as there is no appeal by them to this Court. Briefly stated, the prosecution case was that the appellant Sher Muhammad and some of the accused were the major share‑holders in the lands in dispute, that they resented that Kaim (complainant) should obtain th share in the said lands by Exhs. 5 and 6 ; that the accused‑party thereupon on the strength of Exhs. 23 and 24 claimed for themselves the said share and planned to take away by force the crop of rape‑seed grown by Kaim on Survey Plots Nos. 140‑A and 140/B and stored in his dera ; that accordingly on 7th July 1951, while Kaim was engaged in winnowing the crop, the appellant with his party men came on camels armed with guns, pistols, hatchets and lathies etc. for the purpose of taking away the crop ; that realizing the gravity of the situation, Kaim ran to the house of Naban Lakho, about a mile away and brought him and his two sons. Waris and Rasoolo with a view to pacify the appellant and his party and prevent them from taking away the crop aforesaid ; that on Naban and his sons trying to intervene, the appellant and his party opened fire in the course of which three persons on the side of the complainant, namely, Naban Lakho, Warm and. Rasoolo were killed. The defence of the appellant as mainly a plea of alibi. His case was that he was at another village Kandiaro at the relevant time and came to know of the occurrence while he was coming back home, through Haji, Bahadur and Moulidino ; that the complainant‑party was the aggressor having opened the attack by killing Kalandar Bakhsh and injuring three others of the accused‑party ; that the land in dispute was all along in possession of the appellant and party even from before 1947. Counsel for the appellant contended that the Courts below had failed to appreciate weigh and value the evidence in the case properly, especially as regards the question of possession of the disputed‑plot; that the documentary evidence supported the possession of the accused‑party ; that the murder of Kalander Bakhsh and the injuries on the person of some of the accused clearly indicated that the complainant party was the aggressor ; that in any event some explanation ought to have been given showing how the murder and the injuries aforesaid had been caused ; that the appellant was not indentified at the identification parade held under the police supervision, and was, therefore, entitled to the benefit of the doubt ; that separate sentences of death under section 302 and of transportation for life under section 302/ 149 for the same offence of murder of Naban Lakho were illegal and not sustainable in law. It is apparent that the objections aforesaid relate mainly to .the appreciation and evaluation of evidence. The docu mentary evidence of possession relied upon by the appellant appears to be far from satisfactory. In fact documents hardly serve as a deciding factor in determining the question of actual possession in case of dispute. The order of allotment Exhs. 23 and 24, the entries in Field Book Exhs. 26 and 27 and the assessment receipts Exh. 64 have been considered in connection with the claim of the appellant and his party. The Courts have examined the evidence closely and carefully and have given a concurrent finding that the disputed land was in possession of the complainant, who had raised thereon the crop of rape‑seed, and the appellant was one of the party who had attacked the complainant Kaim and his companions and caused the three deaths already mentioned. The observation made by the Chief Court of Sind is as follows :‑ "Having come to the conclusion that it was complainant Kaim's own produce which was stored in this dera, it follows immediately that it was the appellants who organised a raid on that day on complainant Kaim to remove his produce by force and get rid of him for ever. The appellants could therefore by no stretch of imagination, have any right of self‑defence, they would clearly be the aggressors themselves ..Sher Muhammad raised the plea of alibi. His theory was that he had gone on that day to Kandiaro town to get some articles of grocery from the grocer and earings from the goldsmith, He has examined these two persons in support of his defence theory. All this evidence is clearly false and we are not prepared to place any reliance upon it." It is clear from the above that both parties had a sort of pitched battle between them in which either side received some fatal injuries. The accused had come from a distance of 8/9 miles on four or five camels, were fully armed with weapons and were determined to take away by force what they considered to be their due. In a case of this nature, where people seek to enforce their claims by resorting to fire‑arms and lethal weapons, I do not think it is of much consequence whether they ultimately succeed or fail in showing that they had a legal right or title to what they claimed. However, on the finding quoted above, it is apparent that the appellant did not have even a semblance of legal right to justify his conduct. I see no reason to differ with the findings of the Court below. The objection with reference to want of indentification of the appellant before the police 'is entirely without any basis. The appellant was well‑known and was mentioned by name in the F. I. R. No question of any doubt as to his indentity so as to require a test indentification ever arose in the case. The different sentences awarded to the appellant for the murder of Naban seem to have been due to inadvertence. The sentence of transportation for life under section 302/149, so far as the appellant was concerned, should have been only with reference to the murder of Waris and Rasoolo and not of Naban Lakho, Waris and Rasoolo. The error, however, has not caused any prejudice to the appellant, since there can be no objection to his sentence of trans portation for life for the offence of murdering Wards and in addition to the sentence of death for the murder of Naban. It is true, however, that one man Kalander Bakhsh of the accused‑party was killed and three others were injured but that relates to the question of sentence. As the prerogative of mercy is vested in the Government, the appellant, if so advised, may try his chance there ; it is not the function of this Court to interfere in such matters. In my opinion there is no substance in the appeal and I would, therefore, dismiss it. CORNELIUS, J.--‑I would, in this appeal modify the convictions recorded against the appellant Sher Muhammad to the following extent. I would set aside his conviction under section 302/149 P. P. C. and the sentence of transportation for life thereunder, on the consideration that the possibility that the causing of death in prosecution of the common object of the alleged unlawful assembly was not known to be likely to be committed, is not excluded, The "common object" appears from the charges, which are reproduced below :‑ "That you along with deceased Kalandar Bakhsh and others were members of an unlawful assembly and did in prosecution of the common object of such assembly viz. to enforce by means of criminal force your alleged right to the produce raised by the complaint and to take away the same forcibly commit the offence of rioting with deadly weapons and thereby committed an offence punishable under section 148 P. P. C. And that in prosecution of the said common object of such assembly one of your members Sher Muhammad intentionally caused the murder of Naboo by gun shot, Jumo intentionally caused murder of Rasoolo by pistol shot, deceased Kalandar Bakhsh intentionally caused murder of Waris by pistol shot and you are thereby under section 149 P. P. C. guilty of committing the offence punishable under section 302 read with section 149 P. P. C. and I hereby direct that you be tried by me on the said charges". Sher Muhammad is the only one of seven convicted persons in the case who has appealed. His convictions are for rioting under section 148 P. P. C., for the murder of Naban (Naboo) by shooting, under section 302 P. P. C., and under section 302/149 P. P. C. on the ground appearing in the second charge reproduced above. The last‑mentioned two convictions are challenged on the ground of being expressly for the same offence, and the wording of the second charge provides apparent support for this view. It is probable, how ever, that the second charge was intended to extend to all the nine accused persons, constructive liability for the individual acts of murder ascribed to the three accused persons specifically named in the charge, and in that view, the charge should be read as making Sher Muhammad liable for the acts of murder committed by Jumo and Kalandar Bakhsh. His personal liability for the specific act of murder ascribed to him has been separately enforced under section 302 P. P. C. I entertain no doubt regarding the participation of Sher Muhammad in the incident out of which this case arises. His alibi has been rejected by the Courts below, and as it rested on the vague statements of two tradesmen with whom he has regular dealings, it deserved no better fate. The record makes it clear that the dispute, which led to the killing by gunfire of three persons on the side of the com plainant and one Kalandar Bakhsh on the side of the accused, besides incised injuries (two grievous) to three of the nine accused persons in the case, related to the landlord's share of the produce of two fields in village Satardino Mangrio, bearing the survey numbers 140A and 140B. The defence contention that Haji accused, who produced an allotment order dated 9th June 1951, in his favour, was in possession and had raised the disputed crop is supported by little or no evidence apart from the order itself. As the crop had been cut and was in process of winnowing when the incident occurred on the 7th July 1951, the impression is clearly gained that this allotment order has no relation to the actual facts, and that it was produced to support a claim. Haji is a close relation of Sher Muhammad and the deceased Kalandar Bakhsh, who are influential Rinds of the locality. The land was owned, up to the partition of 1947, by the Rinds in co‑sharership with certain Hindus, who, before leaving for India, transferred a two‑anna share to Kaim, who had been cultivating these lands before, by registered deed. Kaim was able to produce also an agreement by the Hindus to sell a further two‑anna share to him, and on the strength of these two documents, he claimed a four‑anna share, in the landlord's rights. He was actually cultivating the land, but his rights as the cultivator or hari, are to be treated as distinct from the claim in respect of the landlord's rights. It appears that the Rinds were the original proprietors of all these lands, and they approached the authorities for a lease of the Hindus' shares in their favour, on this ground as well as because they had throughout been in possession of the land, though cultivation was through tenants. No orders were passed on their application, and as to Kaim, his position was seriously prejudiced by the legislation affecting evacuee property, so that he was obliged to approach the Custodian of Evacuee Property to confirm the transfers in his favour. No orders had been made on his application at the time when the incident took place. The situation being one of some complexity, the parties referred it to two arbitrators, named Allahando (P. W. 8) and Haji Osman (D. W. 8) for solution. Their statements regarding the decision they gave are unfortunately not consistent, but enough appears to justify the belief that Haji Osman's statement is the more correct of the two. His appearance as a defence witness is no indication of partiality ; it was a mere accident that he was too ill to attend when he was summoned as a prosecution witness, and therefore had to be examined at the defence stage. I prefer to believe his statement that Kaim's share was settled at two annas, not four annas ; that the possession of the land was continued in favour of the Rinds, though Kaim was the cultivator of a part of the land ; that on taking accounts Kaim was found to be owing about Rs. 300 to the Rinds ; and that it was agreed that this debt should be recovered by appropriation of his two‑anna share in the landlord's share of the produce. Allahando says a four‑anna share was conceded to Kaim, but he also says that Kaim paid up the debt of Rs. 300, and that there was a partition of the land presumably for putting Kaim in separate possession of land in proportion to his share in the ptoprietary rights. On the two latter points, Kaim does not support Allahando, and as no indication of any partition for convenience of possession appears on the record, and there is no receipt for the payment of Rs. 300, it becomes necessary, in my opinion, to accept Haji Osman's statement. Haji Osman supported certain prosecution witnesses in saying that Kaim was the hari (actual cultivator) of the survey numbers here in question. The conclusion which I would draw is that the Rinds had a good claim to the entire share of the landlords in the clop raised on these survey numbers by Kaim. But, in the first instance, the cultivator is in possession of the cut crop, and it is only by agreement between him and the landlords or other persons entitled that a share can be separated, which such other persons may remove. The separation and removal is to be with the consent of the cultivator, and any attempt to effect this otherwise, e.g., by the use of force, is on infringement of the cultivator's property rights. Where the party making the attempt comes in overwhelming strength, as in this case, and provided with means of transport as well (in this case, camels) there would evidently be no time to have recourse to the public authorities for aid, and as robbery would be involved, the right of private defence would extend to the causing of death. The direct evidence of the occurrence comes from Kaim, the complainant, a Mari by caste, and three Lakhos, namely Ghulam Muhammad and his two sons, Tindoo and Daud. The latter are closely related to the three persons killled on the prosecution side, viz., Naban, brother of Ghulam Muhammad, and Naban's sons, Rasoolo and Waris. Kaim's story is that the Rinds came in full force, and when they appeared determined to remove the rape seed he had culti vated, he ran and fetched Naban and his sons for support, who, like himself, were unarmed. Naban employed entreaties, placing the Holy Koran.before the others to aid his appeal, but their hearts were unmoved, and first Sher Muhammad fired at Naban, then Jumo fired at Rasoolo, and lastly Kalandar Bakhsh fired at Waris, all of whom dropped dead. Sher Muhammad also fired a shot at Kaim, who escaped by falling on the ground. No blow with a hand‑weapon by any of the accused party is mentioned in the, initial report by Kaim, or in the evidence given by him and his three eye‑witnesses. Similarly, neither in the initial report, nor in the prosecution evidence, is any explanation given (a) for the death of Kalander Bakhsh caused by a bullet fired from close range passing through his abdomen or (b) for the presence of incised wounds on the person of Haji, Mouledino and Bahadur accused, of which two were grievous injuries. Naban's corpse showed the marks of three separate shots fired with shot‑gun cartridges from close range. In addition, he had a contused wound and six contusions, all apparently the result of lathi blows. Rasoolo died of gun shot wounds in the chest and abdomen, also fired from close quarters, and he too had a contused wound, on his forehead, the result of a lathi blow. Waris received a fatal charge of pellets in his chest, obviously from a shot fired at close range, but he also had a contused wound on the head, three contusions and five abrasions, which were mostly the result of lathi blows. These injuries speak for themselves and show clearly that the resort to fire‑arms was preceded by a brisk engagement with hand‑weapons, of which the prosecution witnesses make no mention. Three of the accused persons, viz., those who have injuries, while admitting, their presence, alleged that they were attacked by Kaim anal his sons who had the two sets of Lakhos with them, the weapons used being guns, pistols and hatchets. They offer no explanation for the lathi injuries of the Lakho deceased, who, they say, were shot by Kalander Bzkhsh with the same weapons with which Kaim shot K3lander Bakhsh, and which the latter snatched away from Kaim. The falsity of the latter statement is apparent. The three Lakhos were killed by discharges of shot‑gun pellets, while Kalander Bakhsh's fatal wound was clearly caused by a bullet. The version of Haji, Mouledino and Bahadur accused was generally supported by Dost Ali and Yar Muhammad as well as, indirectly, by Muhammad accused. The admission that these persons were engaged in "winnowing" the rape seed when they were attacked is significant. For in fact they were engaged in removing the grain, and did remove a quantity, estimated by non‑partisan witnesses as two or three maunds out of a total crop of six or eight maunds. This would probably be within the landlord's share, but to take it by force amounted to robbery, and justified resort to force by Kaim and his supporters in defence. The prosecution story and the above admission of the defence combine to. indicate that when Kaim and his friends returned to the dera, they did so armed, and levied, an attack, which led to the fight with hatchets and lathis, and ,while the parties were still standing face to face, the shots were fired. The preponderance of gun power was clearly on the side of the accused, but it is not possible to say who fired first. It may well have been Kaim, and such a conclusion may perhaps be drawn from the prosecution having evaded the duty of placing the full and true facts before the Court, by offering no explanation for Kalander Bakhsh's death or for the injuries to three others on the side of the accused persons. But the liability of any person on .the accused side in respect of any crime appearing against him‑would, be the same from whichever side the first shot may have been fired. It remains to be, seen whether the convictions recorded by the Courts below conform to this appreciation of the course which the incident took. Neither the trial Judge nor the Chief Court has made any attempt to read the evidence in the case as a whole, in order to ascertain what actually took place. They were content to conclude that the accused persons were the aggressors, and the complainant had the right of private defence. But from this it did not necessarily follow that all the accused persons were con structively liable under section 302 P. P. C. by virtue merely of being members of an unlawful assembly whose "common object", as precisely stated in the first charge, was concerned primarily with removal of the landlord's share of a certain cut crop, weighing no more than three maunds. The point arises in relation to Sher Muhammad's conviction on the second charge, but the conclusion must necessarily have a bearing on the correctness of the convictions of six other accused persons who have not appealed. In order to determine whether the members of the Rind party knew that in, carrying out this "common object", the causing of death was likely, the principal facts to be borne in mind are‑ firstly, that the Rinds came in force, to the number of 15 or 16, carrying as the results show, a number of guns and probably several lathis ; secondly, that all they came to remove was some 3 maunds of rape‑seed ; thirdly, that the opponent Kaim lived with his family in an isolated dera, his nearest neighbours being his brother Kodoo and his cousin Jumo, both of whom were on such terms of enmity with him that (a) they were included in the list of accused persons by Kaim and (b) they were acquitted by the Chief Court on the ground that the case against them was doubtful, although the evidence against them was exactly the same as against the other seven accused persons ; and fourthly, that the nearest habitation after those of Kodoo and Jumo, was that of the Lakhos who got involved in the affair, and that was nine furlongs away. These circumstances suffice to sustain the conclusion that the "aggressors" probably believed that the disparity of strength in their favour was so great that no resistance would be offered, and therefore resort to force would be unnecessary. The prosecution itself admits that these persons gained access to the property without the least use of force. What happened subsequently, with the arrival of the armed Lakhos in the company, of Kaim, may well, in the circumstances, have been outside the contemplation of the "unlawful assembly" as a whole. The sudden access of strength on Kaim's side, and, as it seems, the immediate resort to force in resisting the removal of the crop, gave rise to a new set of circumstances, and the possibility cannot be excluded that this situation was met on the spur of the moment by those immediately affected, i.e., those whose personal safety was endangered, not as a matter of joint or pre‑planned manoeuvre, but as a series of individual efforts. That is indeed indicated by the selection of single acts by the prosecution to fasten on particular accused persons, while ignoring altogether the general aspect of the incident, e.g., the clash of hand‑weapons followed by the use of fire‑arms. On this basis, I am clearly of the opinion that the con viction of Sher Muhammad under section 302/149 P. P. C. and the sentence of transportation for life thereunder cannot stand, and I would therefore set it aside. On the same reasoning, the correctness of the convictions of Haji, Mouledino, Bahadur, Dost Ali, Yar Muhammad and Muhammad, under sections 302/149 P. P. C. is open to serious doubt. None of these persons is alleged by 'the eye witnesses to have even been in possession of a weapon. As they have not appealed, the dispensation of justice in their case must be left to the Provincial Government, which is amply equipped with power for the purpose. The conviction of these six persons under section 148 P. P. C. is also open to question. Since it is not alleged that they were carrying any weapons, their offence was properly that of simple rioting, punishable under section 147 P. P. C. for which the maximum punishment is two years rigorous imprisonment. Sher Muhammad's conviction under section 148 P. P. C. is of course correct, for he is shown to have carried a fire‑arm. As for Sher Muhammad's conviction for shooting Naban dead, that has been based by the Chief Court on the evidence of the prosecution witnesses. Reference was made to the differential treatment of Jumo accused against whom the same eye‑witnesses had consistently deposed that he fired at and killed Rasoolo. The reasons given by the Chief Court for acquitting Jumo are (a) that there is longstanding enmity between him and Kaim, (b) that he gave offence to Kaim by keeping the dead body of Kalander Bakhsh in his house and (c) that he had no interest in the land or its produce. On these grounds, it was thought that "the ocular testimony in (his) case without further corroboration is not such on which we can place our implicit reliance". Of the four eye‑witnesses who deposed that Jumo shot Rasoolo, three, namely the Lakhos, were quite disinterested. There is, of course, a long‑standing dispute between Sher Muhammad and Kaim, but it is equally clear that the Lakhos, whom the Chief Court regarded as genuine eye‑witnesses, had no special reason for wishing to implicate Sher Muhammad falsely. In his case, therefore, this Court should be content to accept the finding recorded on the evidence by the Court immediately below. The result is that his conviction under section 302 P. P. C. must be affirmed. This Court does not ordinarily concern itself with legal sentence awarded in cases coming before it in appeal. I would therefore not interfere with the sentence, but I think it is permissible to observe that' had the Courts below formed a true appreciation of the course of this incident, they might well have given serious consideration to the question whether in the circumstances, the lesser penalty would not have been the more appropriate. In this respect also, the case may be left to be dealt with by the Provincial Govern ment in its discretion. MUHAMMAD SHARIF, J.‑‑I agree with my brother Akram, J. In accordance with the view of .the majority, the appeal is dismissed. . A. H Appeal dismissed.