P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.--‑Five persons, namely, Sher Muhammad, Bashir, Rafiq, Hasan Din and Muhammad Din, residents of Dauke, have been convicted by Malik Muhammad Aslam Khan, Additional Sessions Judge, Lahore camp Kasur, under section 302, P. P. C., read with section 149, P. P. C., for the murder of Saif‑ul‑Maluk and sentenced to death each. The first‑named three have been further convicted under section 148, P. P. C., and the remaining two under section 147, P. P. C., and awarded three years' R. I. and two years' R. I. each, respectively. They have preferred a joint appeal. Their death sentences have also been laid before us for confirmation on the reference side.

2. Of the five appellants, Sher Muhammad and Muhammad Din are uterine brothers. Rafiq appellant is the son of their maternal uncle. Bashir and Hasan Din appellants are not related to them, but they are their party‑men.

3. According to the prosecution Sher Muhammad appellant had leased out his land to Saif‑ul‑Maluk deceased and his father Abdul Haq on a cash rent some two years prior to the occurrence Similarly the deceased and his father had given on lease their land to Sher Muhammad, Bashir and Rafiq, appellants, on a cash rent of Rs. 850. . Shortly before the occurrence the deceased and his father returned the land to Sher Muhammad and demanded back their own land which they had given on lease to one Karim Bakhsh on a cash rent of Rs. 1,

150. Sher Muhammad, Bashir and Rafiq refused to give up the land. A dispute arose between them and as a result thereof a Panchayat consisting of the elders of the village was convened to settle the matter. Sher Muhammad, Bashir and Rafiq insisted that the land should not be taken back from them and if in any case the deceased and his father did not agree, then they should return their lease money and cultivate the land themselves. The Panchayat, however, gave the decision that if the deceased and his father paid back the lease money to Sher Muhammad and his partners, the land should be returned. The decision was not implemented when the present occurrence took place.

4. On the morning of 4th April 1957, Saif‑ul‑Maluk deceased was proceeding from his house to his field with his bullocks. when he was encountered by the five appellants just outside the village. Sher Muhammad, Bashir and Rafiq were armed with dangs, while Hasan Din and Muhammad Din were unarmed. The deceased was seized and thrown on the ground. Hasan Din and Muhammad Din held him fast to the ground with his face downward, while Sher Muhammad, Bashir and Rafiq turn by turn thrust their dangs into the anus of the deceased. Thereafter they dragged him to a watercourse at a short distance from the scene of occurrence and gave him further beating. Nazir Ahmad (P. W. 12) and Muhammad Ramzan (P. W. 13) who happened to be present there tried to intervene and rescue the deceased, but they were threatened by the appellants and kept back Leaving the deceased on the spot, the appellants retreated. Shortly afterwards, Jan Muhammad (P. W. 141 and Muhammad Din (P. W. 15) also arrived from the village. The deceased related the story to them.

5. After the occurrence the villagers removed the deceased to Police Station Pattoki, where his dying declaration was recorded by Muhammad Yusaf, Head Constable, Police. He was then carried to Chunian Hospital, where he was examined by a doctor. On the same day his dying declaration was also recorded by a Magistrate. Since his condition was precarious the doctor advised the companions of the deceased to carry him to Mayo Hospital, Lahore. The deceased was being brought to the hospital when he succumbed to his injuries on the way. He was brought back to Chunian Hospital, where the same doctor performed post‑mortem examination on his body on the following morning.

6. When the investigating officer arrived in the village of the parties and made a search for the appellants, they were found missing. They were also absent on the following day. It was on the 6th of April when one Sharif Husain Lambardar produced the appellants before the investigating officer.

7. At the trial, all the appellants denied the prosecution allegations and expressed ignorance of the incident. They attributed the charge to enmity and party‑feelings.

8. The learned counsel for the appellants has contended that in view of the discrepancies in the statements of the two eyewitnesses, Nazir Ahmad and Muhammad Ramzan, their evidence should not be believed. According to him these two persons were false witnesses and they never saw the incident. We have carefully examined the discrepancies pointed out by the learned counsel, but we find that these discrepancies are so minor and immaterial, that no importance can be attached to them. Such minor discrepancies are inevitable in the statements of perfectly truthful witnesses. The occurrence took place at the outskirts of the village and the presence of Nazir Ahmad and Muhammad Ramzan there is not improbable. They were present when Jan Muhammad and Muhammad Din arrived there from the village. Their presense was mentioned in the dying declaration made in the police station and also in the other one recorded by the Magistrate the same day. Nazir Ahmad has no enmity whatsoever with any of the appellants. As regards Muhammad Ramzan, he is not connected in any manner with the deceased or his family. It is urged by the learned counsel for the appellants that once this witness had lodged a complaint with police under section 324, P. P. C., against Din Muhammad, a brother of Hasan Din appellant. This report is not legally proved. But even if it is assumed that there had been any such case between the witness and Din Muhammad, there is no reason why he should implicate falsely Sher Muhammad, Bashir, Rafiq and Muhammad Din. If he wanted to charge any person falsely, he would have mentioned the name of Din Muhammad as one of the assailants and would not have incriminated his brother, Hasan Din appellant. On careful examination of their evidence we are satisfied that Nazir Ahmad and Muhammad Ramzan saw the incident.

9. Apart from the ocular evidence of Nazir Ahmad and Muhammad Ramzan, we have the dying declarations of the deceased in which all the appellants have been consistently charged. The occurrence took place in broad‑daylight at about 7 a.m. in the morning and the appellants after catching hold of the deceased and throwing him on the ground started inserting their dangs into his anus and then gave him beating. He could not have made a mistake about the identity of his assailants. The learned counsel has suggested no reason why the dying declarations of the deceased should not‑be believed, particularly when he charged the appellants immediately after the occurrence before Jan Muhammad and Muhammad Din, who are disinterested witnesses.

10. As for the motive of the murder, Abdur Rahman (P. W. 7) and Sadiq Ali Lambardar (P. W. 8) have related the story how the Panchayat of which they were the members was convened for the purpose of settling the dispute about the land between the parties. The learned counsel for the appellants was unable to point out any reason for rejecting their evidence.

11. Next it was urged that the offence committed by the appellants would fall under section 304, Part II, P. P. C., because, according to the appellants' counsel, the motive was not strong enough to reasonably actuate the appellants to murder the deceased. His argument was that the intention of the appellants was to cause injury to the deceased and not to kill him. It is common knowledge that some time people commit murders for very petty motives. In the present case, however, the motive was quite strong to prompt the appellants to take the life of the deceased who had given the land in the possession of the appel lants to another person on lease and was insisting that the possession should be relinquished by them without having returned the lease money. The learned counsel for the appellants, in support of his contention that the appellants would be guilty only under section 304, Part II, P. P. C., relied on The Crown v. Muhammad Shafi and others (P L D 1954 Lah. 395). The facts of that case are different from those of the present one. In that case in the course of their judgment their Lordships observed :‑ "The extent of the injuries which this thrusting of the lathi caused has already been detailed and the question to consider is if the case falls under section 302 of the Pakistan Penal Code or some other section. The assailants did not intend to cause the death of the victim because if that had been the intention he would have been killed in the ordinary manner by his skull or some other vital part being subjected to violence. It was contended by the learned counsel for the respondents that the respondents, even if proved guilty of having thrust the lathi into the rectum of the deceased, could not be convicted of any offence more serious than one of causing hurt, but this conten tion I cannot accept. As mentioned already, the peritoneum of the deceased had been injured and that injury led to peritonitis which ultimately resulted in death. If a person thrusts the lathi so far in the anus of another as to cause injury to the peritoneum, he can be safely presumed to have at least the knowledge that he was likely to cause the death of the victim." It will be noted that it has been nowhere held that if a man killed another person by thrusting a dang into his anus, he cannot be said to have had the intention to kill him. It is also important to point out here that in that case the deceased had sustained about eight injuries such as contused wound, scratch marks and bruises, only one of which was a scratch mark 1 " x " on the anal sphincter, resulting in injury to the peritoneum. In the present case we find that the thrusts of the dangs had caused injuries to several internal organs. According to the doctor, who examined him, the deceased had six injuries caused with blunt weapons. He was bleeding from the anal opening. There were two horizontal tears " x " each, one on the anterior and the other on the post aspect of the anal canal about 1 " from the external opening. Abdomen was distended, rigid and tender. The post mortem examination revealed that the anal canal and rectum were engorged and swollen. Rectum was torn anteriorly at a distance of four inches from the anal opening. Urinary bladder was badly lacerated and torn. About 8 to 10 ounces of urin mixed with blood and faecal matter was present lying free in the pelvic cavity. Rectum was more than half full of stools. The peritoneal fold behind the ceacum was also torn and surroundings to a distance of about one inch around were ecchymosed. The mesenteric fold along the first part of the jejunum was also torn. Death was due to shock and peritonitis resulting from the tears of the rectum, urinary bladder and other peritoneal folds. According to the doctor the injury was caused by a forcible thrust of a blunt elongated object into the anal canal upwards and was individually sufficient to cause death in the ordinary course of nature. He was further of the opinion that there were at least three thrusts of an elongated blunt object up through the anal canal. The question whether the act of an accused person would constitute an offence of murder under section 302, P. P. C., or an offence of culpable homicide not amounting to murder under section 304, Part 11, P. P. C., is one which will be determined on the facts of each particular case. When five persons seize their victim, throw him flat on the ground with his face downward and held fast, and three of them forcibly thrust dangs into his anus one by one, resulting in extensive damage to a number of internal organs, the injuries being sufficient in the ordinary course of nature to cause death, it would be reasonable to hold, that the act was done with the intention of causing such bodily injuries which were sufficient to cause his death in the ordinary course of nature or at least with the knowledge that their act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death, as contemplated by clauses third and fourth of section 300, P. P. C. We have no doubt in our mind that in the present case the appellants had such an intention or at least the knowledge as required by section 300, P. P. C. We, therefore, hold that the offence committed by the appellants amounts to murder. We have given our anxious thought to the question of sentence and after taking into consideration the facts and circumstances of the case we feel that transportation for life would be an appropriate punishment because in our opinion the offence falls within the second part of section 149, P. P. C., read with section 302, P. P. C. We, therefore, do not confirm the death sentences and alter them to transportation for life in the case of each of the appellants. With this modification the appeal is dismissed. The sentences will run concurrently. PER SHABIR AHMAD, J.--‑The leading judgment in "The Crown v. Muhammad Shafi and others (P L D 1954 Lah. 395)", the case relied upon by the learn ed counsel for the appellants with a view to having it held that the offence committed by the appellants fell under section 304, Part 11 and not under section 302 of the Pakistan Penal Code, was written by me, and as it appears that it is being believed by some people that it was laid down in that case that if a person is killed by thrusting a hard substance in the anus the offence committed is not more serious than one punishable under section 304 Part 11 of the Pakistan Penal Code, I will add a few words to the judgment recorded by my learned brother with which I agree. It is well settled that a decision is an authority only for the proposition ill lays down and is applicable only to the facts with which it deals. In the case relied upon by the learned counsel for the appellants it has been clearly held that the facts proved established that the accused‑persons in that case had no intention to kill the man into whose anus one of them had thrust a stick, but could not be held not to have had the knowledge that the victim was likely to die as a result of what he was subjected to. That case cannot be taken to have laid down that the offence of a person who causes the death of another by thrusting a stick in the anus can in no circumstances be more serious than that made punishable by section 304, Part II of the Pakistan Penal Code. As laid down in Haider v. The Crown (P L D 1950 Lah. 247) intention and knowledge of the person doing an act is a question of fact and it is obvious that if a Court in a case dealt with by it holds that one of them was established, the finding being on a pure question of fact is not of much assistance when the question falls for determination in another case, unless the facts of the two cases are identical, which is almost impossible. K. B. A. Appeal dismissed, sentence modified.