P L D 1958 (W (PLP)

Khalid Ishaque for Respondents (in both appeals). Date of hearing: 11th February 1958. QADEERUDDIN AHMED, J.‑-- This order will dispose of Criminal Appeal No. 50 of 1956 and Criminal Appeals No. 67‑71 of 1956. Five persons, namely, Saindad, Arbab, Allahdino, Gul Muhammad and Nawab, who were convicted in Sessions Case No. 163 of. 1955; by the Additional Sessions Judge Shikarpur, have preferred the appeal No. 50 of 1956, and five persons convicted in Sessions Case No. 188 of 1955 by the same Additional Sessions Judge, have preferred an appeal from Jail, which was numbered as appeals No. 67‑71 of 1956. Later on, grounds of appeal were submitted by Mr. Tufail Ali Abdur Rahman, Advocate, on their behalf. The two cases arise out of a fight which took place on the 1st of April 1954, in an open `maidan' in front of village Warial in deh Janoo, inhabited by people of Lishari caste, at a distance of about 2 miles from Shikarpur. The participants in the fight were residents of the village. The open plot of land is within the boundary of the village, near the houses of Saindad, Soomar and others. There is a hedge which forms a fence in between these houses and the open plot of land. There is a small piece of land in this plot with regard to which there was a dispute. Nobody from amongst those who raised the dispute, claimed its ownership. Some members of one group were using it as a `dera'. The other group claimed that it belonged to one Puhoon Chonar, who was away in Khairpur at the time of the fight but had asked Saindad to keep a watch over it. Moreover they objected to its use as `dera' because they thought that it was causing, or would cause inconvenience to them due to its proximity to their houses. All of them, who took part in the fight, easily fall into two groups‑one consisting of the relations of Saindad and the other of the relations of Suhrab and Sobho. The fight took place at about 2 o'clock in the afternoon. Saindad is said to have found that Suhrab and Sobho were making ready the disputed piece of land for piling their seeds on it and objected to this with a view to stop them from Lsing it as their `dera'. There was soon a quarrel and then a fight, in which one man, namely Muhammad Bux son of Saindad was killed and several men of both groups were injured, some of them seriously. Both the parties vied with each other in going to the police station, went there and lodged reports. The first report was lodged at 4 p.m. by Sobhdhar or Sobho son of Ghulam Ali at the New Faujdari Police station, Shikarpur. The second report was lodged by Saindad son of Nabi Bux, half an hour later at 4‑30 p.m. Each informant made his report with a view to make out that the opposite party was the aggressor and that the members of his own group had arrived at the scene in sympathy with their relations, who were attacked, and had raised cries to ward off the attack. Sobho's report was that he, his brother Suhrab and his cousin Juggan were standing near the `dera' when members of the opposite groups viz., Saindad, Gulu, Soomar, Muhammad Bux, Nawab, Allahdino, Sujawal and Arbab attacked them with hatchets and `lorhs' and lathis. On the basis of this report the accused persons were tried in Sessions Case No. 163 of 1955, under sections 326, 324, 323, 147 & 148 read with section 149, P. P. C. Saindad's report was that Suhrab, Jaggan, Kadir Bux, Haji, Sataroo and Ghulam Ali had brought two cart‑loads of seeds to the disputed piece of land. He objected to this, which led to hot words. The noise attracted his relations who came to protect him, and they along with himself, were attacked with hatchets, by the members of Suhrab's group. Suhrab and the members of his group were tried in Sessions Case No. 118 of 1955 under sections 302, 326, 324 and 14$ read with section 149, P. P. C. They were tried under section 302, P. P. C. because Muhammad Bux who belonged to the opposite group died of the injuries received by him. In Case No. 163, five men were convicted. Four namely, Saindad, Arbab Gul Muhammad and Nawab were convicted under section 326' read with section 149, P. P. C. and were sentenced to four years' rigorous imprisonment each. Allahdino was found to be a boy of 14‑16 years of age and therefore he was sentenced to three months' simple imprisonment. Soomar and Sujawal were acquitted on the finding that they had not participated in the fight. In Case No. 118 of 1955 also five men were convicted and two were acquitted. Those who were acquitted were Ghulam Ali and Sattaroo. Four out of these five men, namely, Haji, Suhrab, Kadirbux and Jaggan were sentenced to four years' and two years' rigorous imprisonment under sections 326 and 324, P. P. C. respectively read with section 149, P. P. C. The sentences were to run concurrently. The fifth man, namely Suhrab was similarly convicted but he was awarded higher punishment of seven years' rigorous imprisonment under section 326 read with section 149, P. P. C. These six appeals which relate to the same set of facts were fixed to be heard as connected appeals. So was a revision application. The revision application was preferred from the judgment in the Criminal Case No. 118 o" 19?5 with a prayer that the men convicted in it should be convicted and sentenced under section 302 read with section 149, P. P. C., or in the alternative, their sentences should be enhanced. At the time of the hearing, the revision application was withdrawn and was dismissed separately. Appeal No. 50 of 1956 was argued by Mr Muhammad Hayat Junejo, Advocate, and the appeals arising from Case No. 118 of 1955 were argued by Mr. Tufail Ali Abdur Rahman. The trend of the arguments of both the learned counsel was that nobody from either group had any legal right to use the disputed piece of land and nobody of either group had any right to impose his views regarding its use upon the other. They laid emphasis on the discrepancies in the statements of witnesses regarding the blows alleged to have been dealt by each of the convicted persons. Both counsel contended that no group can be said to be the aggressor if the prosecution stories in the two cases are to be believed. Strangely enough, the pattern of both first information reports happens to be the same. In both of them the informant has stated what the members of the opposite party did in the beginning of the fight and has then slipped into a generalization, i.e., "the fight then ensued". In the words of Mr. Tufail Ali, this, in reality, amounts to saying that after the beginning was made, all of them fought. The evidence has proved that the land did not belong to any group and; therefore, nobody had the right of ownership in it. It is, therefore, contended that it is not possible to come to the conclusion with any certainty as to who was the aggressor, and this being a riot case it is necessary to determine this question because on its determination depends the decision of the extent to which the right of self‑defence could be exercised. It is contended that if this question cannot be determined, nor can it be said with certainty as to what part was played by each accused, then nobody's conviction can be upheld ; particularly because the witnesses in one case are the accused in the other case and are interested in saving themselves and implicating the members of the other group. Both counsel have relied on Janu, Khair Muhammad and others v. Crown (I L R 1942 Kar. 148) and Kassim Haji Khan and another v. Crown (I L R 1942 Kar. (sic)). Emphasis is laid on the following observations in Janu Khair Muhammad and others v. Crown, at page 165 "We think that in the circumstances the appellants in both these appeals are entitled to the benefit of the doubt. The result no doubt is entirely unsatisfactory. Serious offences have been committed ; Atta Muhammad has beer killed; Haji and Karimbux have sustained very serious injuries and all these offences must go unpunished. But for this miscarriage of justice the parties have to thank themselves. When they have of set purpose placed before the Court false versions of what took place wholly inconsistent with the circumstances and when they have supported those false versions with false evidence they have no reason to complain if the persons res?ponsible for the commission of these offences go unpunished and that so far justice has not been done." The observations in their favour in Kassim v. Crown are as follows : "We fully appreciate the difficulties with which a Court is confronted in cases of this nature, where different and con?flicting versions are given in regard to one and the same incident, and the whole or the greater part of the evidence is biased, and there is an entire absence of disinterested evidence. The learned Judge who faces such a position feels that offences have been committed which call for conviction and punishment, and it is not uncommon for him to adopt a rule of thumb and think it safe to convict those upon whom injuries are found. But we think there can be no rule of thumb in such cases. Each case must be judged upon its own peculiar facts and the cardinal principles of criminal justice must be borne in mind : the prosecution must prove its case; and there is no burden of proof on the accused." These are well known judgments and have been cited in scores of cases in Sind and Karachi. Many cases have resulted in acquittal on their basis. It is, however, often forgotten that) exaggerated or inaccurate evidence is different from "false versions . . . wholly inconsistent with the circumstances" Similarly it is forgotten that just as it is not a rule of thumb that injuries should result in conviction, it is also not a rule of thumb that the evidence of those witnesses who are the accused persons in another case should be disbelieved. Mr. Khalid Ishaq who appeared for the State, however, agreed with the contentions of the learned counsel of the appellants and expressed his inability to support the convictions. We have tried to carefully appreciate the facts of the cases before us. It is true that some of the weaknesses which are usually found in cases .of this nature are present in these cases. The witnesses can be said to be interested.. Each party has given a story which is more or less confined to the offences which the members of the opposite group committed. More?over, discrepancies can be found between the number of blows caused to each accused and the injuries found on the bodies of the victims. The versions of the parties are, however, not wholly inconsistent with the circumstances. If we look at the outline of the facts we find that the fight admittedly took place on account of a dispute regarding the use of a piece of land as `dera'‑ In this fight the members of the two groups were admittedly involved. The difference in the stories of the two groups is only in regard to the manner in which the fight began. If the manner in which the fight began is separated from the fight and we look at the account of the fight, we find that according to the witnesses of the prosecution the accused in both cases dealt blows and inflicted injuries. This is consistent with the injuries found on the bodies of the members of the two groups. On the contrary, the accused have denied to have fought or to have inflicted injuries at all. This defence is inconsistent with the circumstances. If this defence is believed then about seven members of one group gave blows and inflicted injuries on about an equal number of persons of the opposite group who took the blows and stood peacefully, simply shouting for help in order to scare away the attackers. This cannot be true, because there are injuries on the members of both the groups. Let us note that there are statements of the injured persons against each of the accused person regarding the blows dealt and injuries inflicted by him. These statements are not accurate. But this only means that the evidence is to be weighed and evaluated. We think that in a case in which about 14 persons fight at a time it is not rational to expect that precise state?ments should be made by the participants regarding every blow which was struck. In these circumstances, if an injured person says that three men dealt four blows to him but only two injuries are found on his body, then it does not follow that the three accused are innocent. A part of his statement may be true, and the exaggeration may be ascribable to honest mis?apprehension of damnable falsehood. The general pattern of a case and the main component parts of the pattern are often a good guide in this respect. Moreover, the responsibility of the accused is created in such circumstances at least under section 149, P. P. C., subject, of course to the right of self?-defence, if any, and to whatever benefit of doubt which may be given to them. The object of one group was to use the disputed piece of land as the `dera' and of the other to stop them from doing so. Mr. Tufail Ali has argued that his clients were in possession of the land and therefore they could resist dispossession and could act in self‑defence. His clients have denied that they inflicted injuries, yet their contention before us can be that if it is held that they inflicted injuries, then in the circumstances of this case they should be taken to have done so in self‑defence. But they have to establish the requisite circumstances. They have been convicted in Criminal Case No. 118 of 1955 in which they have led no evidence and there is nothing to show that anything was done or attempted to be done endangering their safety so as to give them the right of private defence. The evidence of the prosecution in the case is all against them. There was admittedly a verbal protest against the use of the land, but a mere protest does not give the right to inflict injuries in self-?defence. Moreover as pointed out by the learned Additional) Sessions Judge, there was no urgency regarding the use of the land, and there was time to have recourse to the protection of the public authorities. All members of the unlawful assembly e are in the same class and equally responsible for the acts of the assembly. In this connection, we may mention that Suhrab has been sentenced to seven years' rigorous imprisonment, while the others have been sentenced to four years' rigorous imprisonment. We reduce his sentence to four years' rigorous imprisonment under section 326 read with section 149, P. P. C. and to two years' rigorous imprisonment under section 324 read with section 149, P. P. C. which sentences will run concurrently. As to the benefit of doubt, we entertain some doubt regarding the presence of Arbab accused in the fight. The learned Additional Sessions Judge has held in Criminal Case No. 163 of 1955 that his presence at the scene is admitted. This is partly correct, because the accused has stated before the Sessions Court that "I was standing far away and raising cries. He has not admitted that he was present at the actual scene of the fight. He has no injury on his person. We give him the benefit of doubt and acquit him. Allahdino has been held by the Sessions Court to be a boy of 14‑16 years of age. He is, therefore, a child according to the definition of `child' as given in section 3 of the Bombay Children Act, 1924. Under the proviso to section 32 he could not be committed to prison without a certificate that he was of so unruly or of so depraved a character that he was not fit to be sent to a certified school, and that none of the other methods in which the case may legally be dealt with was suitable. He is on bail. We direct the Additional Sessions Judge to order him under the bail bond to appear before him and to admonish him against following the evil example of his elder relations. Subject to this admonition we discharge him, and subject to the same condition, discharge him of the obliga?tions of his bail bond. Except to the extent stated above, the appeals are dismissed. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.