1977 PLP 7 (SCMR)

SALAHUDDIN AHMED, J.‑This appeal, by special leave, is from the order of the then High Court of West Pakistan at Lahore maintaining the con victions and sentences of Ghulam Jilani and Sher Muhammad on charges under sections 447, 323, 324 and 302 read with section 34 of the Pakistan Penal Code instead of section 149 of the Code, and of Sardar Khan under sections 447, 323 and 324 of the Code read with section 34 instead of section 149 of the Code. Their convictions and sentences under section 148 of the Code were, however, set aside. Four other convicts, viz., Ghaus Muhammad, Khizar Hayat, Ismail and Nazar Muhammad were acquitted by the High Court of all charges. Earlier the learned Additional Sessions Judge, Sargodha, had convicted seven accused persons on charges under sections 148, 447, 324/149, 323/149 and 302/149 of the Code. Although the appellant had asked for leave against five accused persons, viz., Khizar Hayat, Ghaus Muhammad, Ismail, Nazar Muhammad and Sardar Khan, leave to appeal was granted against respondent No. 1 Khizar Hayat only and the present appeal is, therefore, confined to him alone. According to the prosecution story the occurrence which took place on the 23rd of March 1966, at about digarwela was over the removal of pages on a land jointly owned by the deceased and co‑accused Ghulam Jilani and his three brothers, namely, Sher Muhammad, Ghaus Muhammad and Khizar Hayat. The land was, however, in the exclusive possession of the deceased only. On the day of occurrence Ghulam Jilani and his three brothers including Khizar Hayat came to the disputed spot and pulled out the pages. Ghulam Jilani, Sardar Muhammad and Ghaus Muhammad were armed with hatchets while Khizar Hayat was armed with a stick. When Fateh Muhammad deceased protested against this act of the accused persons, Ghulam Jilani warned Fateh Muhammad that he should not interfere otherwise he would be killed. Simultaneously Ghulam Jilani gave a hatchet blow with the blunt side on the head of the deceased. In the meantime co‑accused Sardar, Nazar Muhammad and Ismail also came to the spot armed with dangs. Sardar Khan shouted that Fateh Muhammad should be killed. Upon this Ghulam Muhammad and Sher Muhammad struck the deceased with the blunt side of the hatchet and as Fateh Muhammad was staggering Sardar Khan gave another blow to the deceased and he fell down. P. Ws. Riaz Hussain, a nephew of the deceased, Chanan, a brother of the wife of the deceased, and Ghulam Akbar, son of P. W. Chanan, tried to intervene, and they were assaulted and injured by some of the accused persons. All the accused persons except Khizar Hayat and Sher Muhammad denied the allegations against them and said that they had been involved on account of enmity. Kbizar Hayat and Sher Muhammad stated that they were attacked by P. Ws. Riaz Hussain and Ghulam Akbar when the said two accused were coming to their house with their cattle and that as a result of this assault accused Shera was injured. The two co‑accused further said that Fateh Muhammad deceased had brought his gun and fired a shot which missed them and that in order to save themselves the two co‑accused inflicted injuries to Fateh Muhammad deceased. As we have noticed already, the petition for special leave to appeal so far as Sardar Khan, Ghaus Muhammad, Ismail and Nazar Muhammad are concerned, has been dismissed and the present appeal is against Khizar Hayat alone. This mans that the prosecution story as a whole has been accepted by this Court. To begin with it may be stated that in the first information report lodged by the deceased himself which has since been used as his dying statement, assigning no particular overt act to Khizar Hayat except the fact that he along with his brothers came to the disputed spot and jointly engaged in removing the pages. No mention is made in the first information report of the fact that he either joined in the lalkara raised by Sardara accused that Fateh Muhammad should be killed, or took any part in the assault either upon the deceased or any of the witnesses that subsequently came to intervene. Khizar Hayat has been, however, implicated by all the three eye witnesses, namely, P. Ws. Riaz Hussain, Ghulam Akbar and Chanan all of whom were injured at the occurrence. Before we proceed to deal with the evidence of these witnesses it is desirable to mention the various injuries suffered by the deceased and the witnesses. Fateh Muhammad deceased had the following four injuries on the head :‑ ' (1) A lacerated wound 3 " X " scalp deep at the vertex entero‑posterior in direction 5 " above the left ear. (2) A lacerated wound 1" X 1/6 " scalp deep entero‑posterior in direction 2" right to injury No. 1. (3) There was swelling and blackening of the right upper part of right upper arm 5"X4 1/2 ". There was an abrasion 1 1/3"X " in the center of swelling opposite right outer surface of deltoid muscle. There was also fracture of the upper and of the right humerus. The upper part of the right sipper arm was swollen. (4) There was an abrasion 1/3" X 1/3" X along the lower part of the left side of vertebral column. P. W. Riaz Hussain had the following two lacerated injuries and three abrasions;

(1) A lacerated wound l " X 1/3" bone deep at the frontal bone above the hair line oblique in direction. (2) A lacerated wound 1 " X 1/3 X bone deep at the left parietal bone oblique in direction and was 4" above left ear. (3) An abrasion " X 1/6 " at the back of the right forearm. (4) An abrasion 1/8" X 1/8' the outer surface of the left index finger. (5) An abrasion 1 '' X " at the back of the left forearm in the middle. P. W. Ghulam Akbar had the following injuries on his person :‑-- (1) An abrasion 1/3"X 1/3" at middle of the right mandible at under surface. (2) A contusion mark 5 " x 1/3 at the outer surface of the left chest. (3) A contusion roar 3 "x 1/3 " f half inch posterior to injury No. 2. (4) There was tenderness and swelling in an area of 1" at the dorsum of left foot. P. W. Chanan Khan was found to have the following injuries :‑

(1) An incised wound 2 "X 1/3 X 1/3" at the outer surface of the right forearm 1/2" above right wrist joint. (2) Complaint of pain in the left buttock. P. W. Riaz Hussain had stated in his statement as under :‑-- "Ghausa and Shera accused persons who were armed with hatchets started injuring Fateh Khan deceased. Ghaus accused inflicted an the deceased with the blunt side of hatchet accused inflicted an injury on the shoulder of the deceased also with the blunt side of the hatchet. Chanan P. W. was also attacked. Ghulam Jilani accused inflicted an injury with his hatchet on Chanan P. W. with its sharp side. Fateh Khan deceased was still staggering when Sardara accused gave an injury to him with his stick. I was also attacked. Sardara accused inflicted an injury with his stick on me which landed on my head. Nazra accused inflicted an injury with his stick on Akbar P. W. Then Khizar Hayat accused who was armed with a stick, and Sardara, Ismail and Nazra accused persons attacked with their sticks and injured me, Akbar and Chanan P. Ws. P. W. Ghulam Akbar, son of p. W. Chanan, stated in his evidence as follows;-- "Ghulam Jilani accused inflicted aii injury on the right hand of my father with the sharp side of his hatchet. Then Sardar Khan accused gave a blow on the back of Fateh Khan deceased when the latter was staggering with his soti. When Riaz P. W. advanced to help the deceased and my father he was given a blow by Sardara accused with soti. Nazra accused launched an attack on me and inflicted an injury on my right cheek with his soti. Then Sardara, Ismail, Nazra and Khizar Hayat accused persons injured my father Chanan P. W. and Riaz P. W. They also injured me." P. W. Chanan stated in his evidence as under :‑ "Shera and Ghaus then inflicted an injury each on the deceased similarly by the blunt sides of their hatchets. I, Riaz and Akbar tried to intervene but we were also injured by the accused persons. Sardara accused inflicted an injury on the back of the deceased with his soti. I received an injury on my right hand by Ghulam Jilani accused with the sharp side of the hatchet. Riaz P. W. was injured by Sardara accused and Akbar P. W. by Nazar accused. Sardar, Ismail, Nazra and Khizar Hayat again injured me, Riaz and Akbar." A noticeable feature in the evidence of all the eye‑witnesses is that although in respect of some others they had described in details and assigned a specific injury to a particular accused, in the case of accused Khizar Hayat he was lumped together with three other accused persons, and it was said that they jointly assaulted and injured the three witnesses. Another noticeable feature is that P. W. Chanan had only two injuries one of which was an incised wound had been definitely assigned by him to Ghulam Jilani. The other one, namely, complaint of pain in the left buttock was evidently assigned to several other co‑accused including Khizar Hayat Obviously, this one injury, if it was an injury, at all, could not have been caused by all the four accused persons and, therefore, this could not be regarded as a corroboration of the fact that Khizar Hayat had injured P. W Chanan. Yet another noticeable feature in the case is that neither in the first information report nor in the evidence of any one of the eye‑witnesses it has been stated that Khizar Hayat attacked the deceased. In this state of evidence it cannot be said that Khizar Hayat's admission in course of his statement under section 342 of the Code of Criminal Procedure that he and Sher Muhammad had attacked and injured the deceased serves as a corroboration, for the simple reason that so far as the prosecution evidence on this point is concerned there is nothing to corroborate. The prosecution never alleged that Khizar Hayat had assaulted or injured the deceased. The mere fact that the four brothers including Khizar Hayat went to the disputed plot armed with hatchets and a stick (stick was in the hand of Khizar Hayat) did not show that they went there after having first formed the common intention to kill the deceased. The evidence shows that when they went there they did not forthwith attack the deceased but engaged themselves in removing the pages and when the deceased protested he was asked not to intervene. Suddenly and simultaneously, however, Ghulam Jilani assaulted the deceased. Khizar Hayat did not do anything to facilitate this assault. The likelihood that the intention on the part of Ghulam Jilani and some of the accused person to kill the deceased might have been conceived subsequently on the spot could not be ruled out. If that be so, it is only they who committed any overt act or did anything in pursuance of the inten tion to kill the deceased who could be fastened with the common intention to kill. Such in act is singularly absent in the case of Khizar Hayat. He only came armed with a stick which is an article of common use with the villagers. His joint attack on some of the witnesses came in after the deceased had already been given the fatal blow, and this assault, therefore, cannot regarded as indicating an intention on the part of Khizar Hayat to kill the deceased. In these circumstances we think that Khizar Hayat was entitled to the benefit of doubt in so far as the offence under section 302 of the Pakistan Penal Code is concerned and the High Court evidently gave the benefit this doubt to him. We are unable to find any fault with the High Court in this respect. As regards the allegation that he had injured the prosecution witnesses, so far as P. W. Chanan is concerned as we have noticed already, there is hardly any corroboration of the fact that he had injured Chanan. As regards the other two eye‑witnesses, namely, P. Ws. Riaz and Akbar, there is no doubt the consistent evidence that he was amongst the several accused persons that had attacked and injured them, and the number of injuries suffered by the witnesses do rot appear to exceed the number of assailants. Their evidence, therefore, might have been regarded as corroboration so far as involvement of Khizar Hayat in the matter of causing injuries to some of the prosecution witnesses were concerned. It may, however, be mentioned that so far as P. Ws. Akbar and Chanan are concerned their evidence that they had been injured by Khizar Hayat are in doubt. P. W. Akbar in his cross examination said that he had received four blows,' and that the first and second blows were given by Nazar, the third by Ismail and the fourth by Sardar. P. W. Akbar did not say anything about Khizar Hayat in this respect. We have examined the statement of P. W. Akbar recorded under section 161 of the Code of Criminal Procedure, and it is found that he had attributed no part to Khizar Hayat in respect of causing injury to the witness. Similarly, it appears from the statement of P. Ws. Chanan recorded under section 161 of the Code of Criminal Procedure that he did not implicate Khizar Hayat for assaulting him Thus, there remains the evidence of P. W. Riaz alone implicating Khizar Hayat in the matter of assaulting him. The evidence of P.W. Riaz alongwith the evidence of the other witnesses proved the fact that Khizar Hayat was one of the persons who had come on the disputed land alongwith his brothers, and that he was one of the persons who had injured P. W. Riaz. This receives support from the medical evidence as well. We, therefore. think that the prosecution has succeeded in proving beyond any reasonable doubt that Khizar Hayat committed the offences of trespassing and causing simple injury to P. W. Riaz. We, accordingly, allow the appeal partly against him and convict him charges under sections 447 and 323 read with section 34 of the Pakistan Penal Code and sentence him thereunder to three months' rigorous imprison ment, and six months' rigorous imprisonment, respectively. It appears however, that he has been in jail since the beginning of 1970. He has evident ly served out the sentences of imprisonment now imposed on him. We, therefore, direct that he be set at liberty forthwith if not wanted in connection with any other matter. Appeal partly allowed.