P L D 1954 Lahore 395 (PLP)

SHABIR AHMAD, J.‑By this appeal under section 417 of the Code of Criminal Procedure presented by the Advocate -General, the Provincial Government seeks the reversal of the order of acquittal passed by Mr. M. A. Latif, Sessions Judge, Lyallpur, in favour of Muhammad Shafi, Chand, Umar Din, Alam, Ali Muhammad and Faiz, of offences under sections 302/149 and 148 of the Pakistan Penal Code. The respondents were tried for having, on the 9th of May 1952, shortly after noon, caused injuries to Jahangir which resulted in his death. The prosecution case was that the respondents waylaid the victim near Dhingruwala Bridge when he, accompanied by his brother, Siddiq and his first cousin Muhammad Iqbal, was on his‑ way from Cloak No. 46‑J. B., where he resided, to Chak No. 1, where he was going to enquire after the health of a relative of his. According to this case, after causing him some injuries, the respondents took the victim to the dhari of Ghulam, the father of Chand respondent, and there thrust a dangori in his anus. The death of Jahangir occurred on the 13th of May, 1952 at about noon in the Civil Hospital, Lyallpur, due to peritonitis which set in. Jahangir was rescued from the clutches of the respon dents by his father Nawab, and as they were related to him, three of the respondents, namely; Muhammad Shafi, Chand and Ali Muhammad, assisted Nawab in taking Jahangir to his house on a charpoy. About two hours after he reached his house, the condition of Jahangir got serious, at which he was taken in a tanga to the Police Station Sadar, Lyallpur, where he made the first information report at 9 a. m. In this report he named all the six respondents as the culprits, adding that the incident near the bridge was witnessed by Sadiq and Muhammad Iqbal and that his father had rescued him by reaching the dhari of Ghulami, situated in Chak No. 46 -J. B. Jahangir had been examined by Dr. S. R. H. Rizvi, Medical Officer, Civil Hospital, Lyallpur, when he was taken to the hospital after making the report and was found, on examination, to have the following eight injuries on his person:‑ (1) A contused wound, " x ", scalp deep, on the occipital region of the, head. (2) A scratch mark, 2" x ", on the right shoulder. (3) A scratch mark, 1" x ", on the lower lid of the left eye. (4) A bruise, 4" x 1", on the left scapular region of the back. (5) A bruise 4" x 1", on the right side of the chest, back part, directed horizontally: (6) A bruise, 4" x 1", on the left side of the chest. (7) A scratch mark, 1 " x ", on the anal sphincter. (8) A scratch mark, 1" x ", on the tongue. When the dead body of Jahangir was subjected to post-mortem examination by Dr. Hakim Din, Medical Superinten dent, Civil Hospital, Lyalipur, on the 13th of May 1952 at about 4‑45 p.m., the doctor found the eight injuries which had been noted by Dr. S. R. H. Rizvi. Dr. Hakim Din stated that the peritoneum showed evidence of peritonitis and contained flakes of fibrin and pas. The small intestines were noted together as the result of peritonitis. The rectum was pierced 2" above the anal margin by a lacerated wound 1 " long which led into the peritonial cavity. In the opinion of the doctor death was due to peritonitis as a result of the penetrating injury of the rectum caused by a blunt weapon. At the trial the prosecution produced Siddiq (P. W. 11) and Muhammad Iqbal (P. W. 12) as eyewitnesses of the assault of Jahangir near Dhingruwala Bridge and Nawab (P. W. 10) about the incident at the dhari of Ghulami. Besides this evidence, reliance was placed by the prosecution on two dying declarations of Jahangir deceased, one contained in the first information report made by him and the other recorded by Mian Muhammad Shafi, Magistrate 1st Class, (P. W. 9), on the 12th of May 1952 at about noon. The Magistrate deposed that he had explained to Jahangir before recording his statement that he would probably not survive and that he should, therefore, speak the truth and in fact he had made a note to that effect on the record‑of the dying declaration. Siddiq (P. W 11) deposed that he accompanied by Jahangir deceased and Muhammad: Iqbal. (P. W. 12) was on his way to Chak No. 1 and as ‑they were nearing the Dhingruwala Bridge the six appellants, who carried sticks, suddenly got up from behind some trees and bushes. Muhammad Shat respondent challenged Jahangir deceased saying that he would not be allowed to escape and Chand respondent hit Jahangir on the head, after which Muhammad Shafi respondent hit him on the back. The deceased fell down and all the respondents gave him blows with their sticks. He and his other companion Muhammad Iqbal tried to rescue the victim but Ali Muhammad respondent shouted that they should also be caught at which both of them ran away. When running away to his house, on turning round to, see what was happening to his brother, he saw that he was being dragged by his arms by Chand and Muhammad Shafi respondents, while the others were pushing him from behind. He went and informed his father and suggested to him that they should arm themselves and go and fight with the assailants but his father did not agree to this and left for the houses of the respondents with a view to entreating them to let‑ go his, son. The state ment of Siddiq (P. W. 11) was corroborated in all material details by that of Muhammad Iqbal (P. W. 12). The only thing that was urged against these two witnesses by the learned counsel for the respondents was that they were related to the deceased, the former being his real brother and the latter his cousin. Nawab (P. W. 10) gave evidence about the deceased leaving in company of Siddiq (P. W. 11) and Muhammad Iqbal (P. W. 12) and the last named returning after a short time and informing him about the respondents having taken away the deceased. He added that he went to the dhari of Ghulami where he saw that Ali Muhammad and Muhammad Shafi were holding the legs of Jahangir, Umar Din was pressing his neck under his foot and Chand was thrusting a stick in the anus of Jahangir, while the other two res pondents were kicking and fisting him. He proceeded to say that he entreated the assailants to let his son go and his entreaties proved successful. The main criticism of this witness by the learned counsel for the respondents was that he, like P. W. 11 and P. W. 12, was related to the deceased. It is obvious that mere relationship with the victim of a crime cannot be a ground for not accepting his statement. If, however, it is proved that the relations between the victim and the accused party were strained, then his relationship with the victim may be a ground for not accepting the statement of a witness, but where there is no previous enmity, the statement of a witness cannot be ignored simply because he happened to be related to the victim. If mere relationship with the victim were to be a valid ground for not accepting his statement, almost all offences committed inside a house will have to go unpunished because ordinarily only relatives of the victims would be witnesses to such crime. It should not be forgotten that ordinarily the relatives of a victim will be desirous of seeing that the real culprits were brought to book. In the present case the relationship of the witnesses with the deceased can be of no assistance to the respondents, because the respondents themselves are related to the witnesses. Muhammad Shafi respondent is the brother of the mother of the deceased, Chand and Ali Muhammad respondents are the real nephews of Muhammad Shafi. Ali Muhammad respondent is a first cousin of Muhammad Shafi, while Umar Din and Faiz respondents are collaterals of Muhammad Shafi respondent. There is not even a suggestion on the record that the party of the complainants had any grudge against the respondents and it is, therefore, clear that the mere fact that the witnesses who depose about the occurrence are related to the deceased cannot be a ground for not treating them as entirely disinterested witnesses. In fact in view of the relationship of the respondents with the witnesses, I am inclined to the view that the statements of the witnesses against the respondents are not open to any valid criticism. The prosecution alleged that the motive for the crime was the illicit intimacy of the deceased, who was a young man of about eighteen, with Mst. Sairan, a 14 year old unmarried daughter of Hayat, brother of Muhammad Shafi respondent. This motive was not denied by the respondents and in fact all, but Chand, in their statement either before the committing Magistrate or at the trial stated that the deceased had been caught having sexual intercourse with Mst. Sairan by her relatives who had beaten him. No evidence was produced in defence. This treatment meted out to the deceased points to a sexual intrigue being the motive for the assault and the question to consider is if the prosecution version of the assault is correct or the one given by the defence. There is no defence evidence in support of the defence version and it does not receive the remotest support either from the depositions of the prosecution witnesses or the circumstances brought out in evidence. If the deceased had been injured by Hayat and his son, as was alleged by the defence, I can think of no reason why the respondents, at least some of whom are closely related to the prosecution witnesses, should have been falsely implicated. I would, therefore, reject the defence version. The learned Sessions judge gave some reasons for his not accepting the prosecution evidence, but after considering them, I find that they were mere conjectures. Reading the judgment as a whole, it is obvious that the order of acquittal is rather halting as some parts of the judgment would show that the learned Sessions Judge wanted to convict the accused. In one part of the judgment the learned trial judge has remarked that it was possible that some of the accused might have taken part in the beating, but he was not satisfied that the reason for beating the deceased was given correctly by the prosecution witnesses. I hold that the prosecution version of the incident was correct, and proceed to consider if all the respondents had taken part in the assault on the deceased. There is nothing on the record to suggest that any of the respondents had been falsely implicated and as there is no reason for not accepting the prosecution evidence against any of the respon dents, I would hold that the prosecution case had keen proved in its entirety against the respondents. This raises the question as to the offence or offences committed by the respondents. The statements of Siddiq (P. W. 11) and Muhammad Iqbal (P. W. 12) establish beyond all reasonable doubt that all the six respondents attacked the deceased near the bridge and, therefore, all of them would be responsible for the injuries received by the deceased at that place. The only serious injury received by the deceased was the one which resulted from the thrusting of the stick in his rectum and, therefore, the offence committed by reason of the assault near the bridge amounts only to causing simple injuries. This would make all the respondents guilty under section 323/149 of the Pakistan Penal Code, and convicting them of that offence, I sentence each of them to imprisonment till the rising of the Court and a fine of Rs. 100, in default of payment of which, the defaulter shall suffer rigorous imprison ment for two months. I will now address myself to the incident at the dhari of Ghulami of a part of which Nawab (P. W. 10) was produced as an eyewitness. He deposed that when he reached the dhari he saw Ali Muhammad and Shafi, accused, holding the legs of Jahangir, deceased, Umar Din pressing the neck of the deceased, Chand, accused, thrusting the stick in the anus of the deceased and the other two accused kicking and fisting the deceased. If this statement were accepted, all the six respondents will be equally liable for the results that ensued, but, in view of the fact that tile first information report did not mention that Nwab (P. W. 10) had seen a part of the incident at the dhari of Ghulami, I consider it safer to keep out of consideration the deposition of Nawab with regard to the incident at the dhari of Ghulami and to convict only those who had been implicated by the deceased. In tile first information report, it was said that Umar and Faiz laid the victim on the ground with his face downwards, Shafi, All Muhammad and Alam, respondents, caught the legs of the victim and widened them while Chand thrust the dangori into his anus. The victim raised hue and cry at which tilt assailants turned his face upwards and taking the dangori out of his anus put it in his mouth. However, in the dying declaration which the victim made before Mr. Muhammad Shafi (P. W. 9) oil the 12th of May, 1952, he said that Shafi and All Muhammad caught hold of him while Chancy respondent, thrust dang in his anus, but ascribed no part to Umar, Faiz and Alam respondents. He added that he entreated his assailants with folded hands to spare him at which Shafi pulled the lathi out of his anus and thrust it in his mouth, Though I am of the view that the omission of the names of Umar, Faiz and Alam from the subsequent dying declaration was probably due to the pain in which the deceased was, the safer course to follow will be to hold that it was not established beyond all reasonable doubt that Umar, Faiz and Alam respondents, had taken any part in the incident at the dhari of Ghulami. It is however, not open to doubt in view of the injuries found in the mouth and the anus of the deceased that his anus and mouth were subjected to the barbarous treatment mentioned above. This raises the question as to whether or not all the respondents can be held guilty for the thrusting of the lathi in the rectum of the victim by the application of section 149 of the Pakistan Penal Code. It is in evidence that all the six respondents carried dangs, and if death had resulted from injuries which are ordinarily caused with dangs, I would have had no hesitation in holding all the respondents responsible for the result. There is nothing on the record to show that the common object of the unlawful assembly, into which the six respondents had formed themselves when they attacked Jahangir at the bridge, was to subject him to the treatment to which he was subjected at the dhari of Ghulami and, therefore, Umar Faiz and Alam respondents will be vicari ously liable for the acts of their three companions only if it were held that they knew that Chand, Shafi and Ali Muhammad were likely to do to the victim what they did. The act done by Chand, Shafi and All Muhammad being of a very unusual character, it is difficult to infer that their three companions who took no part in it knew that it was likely to be committed. I would hold, therefore, that only Chand. Shafi and Ali Muhammad could be punished for the thrusting of the lathi into the anus of Jahangir, deceased, and for the result that ensued. 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 voilance. 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 contention I cannot accept. A, 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 lath so far in the anus of another as to cause injury to the peri toneum, he can be safely presumed to have at least the knowledge that he was likely to cause the death of the victim. A similar case is reported in A I R 1932 Lah. 199 in which it was held that the offence committed fell under section 304, part II, of the Penal Code. I agree with the views with regard to the nature of the offence expressed in that decision and held that Chand who was primarily responsible for the thrusting of the dang in the anus of the victim was guilty of an offence falling under Part II of section 304 of the Pakistan Penal Code. The question that arises next is if Shafi and Ali Muhammad, respondents, who were proved to have assisted Chand in the attainment of his object, can be held guilty of the offence by .the application of section 34 of the Pakistan Penal Code. At first sight it appears doubtful if section 34 of the Pakistan Penal Code can have application to an offence under section 304, Part II of the Pakistan Penal Code, because, .the former section is to apply when there is a common intention the latter section applies when there is only knowledge that death would be the result. I am of the view, however, that there is nothing to section 34 being applied to a case which falls under section 304 Part II. Section 34 is in the following terms :‑ "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him only." The act in the present case was the thrusting of the dang into the anus of the deceased and as the evidence shows that this act was done in furtherance of the common intention of Chand, Shafi and Ali Muhammad, respondents, section 34 will make all of them liable for that act. All three being liable for the act, one has to see what offence that ac constituted and the mere fact that it constituted an offence under section 304 part II of the Pakistan Penal Code cannot make section 34 of that Code inapplicable. I would, there‑ tore, convict Muhammad Shafi and. Ali Muhammad respon dents under section 304 part II read with section 34 of the Pakistan Penal Code. This leaves only the question of sentence to be dealt with. In A I R 1932 Lah. 199, a sentence of one year's rigorous imprisonment had been imposed by Mr. Sewa Ram Singh, who was then Sessions Judge, Multan, on Bhola Nath, who while holding the office of Senior Assistant Superintendent of the Central Jail at Montgomery was responsible for thrusting a wooden substance in the rectum of a prisoner, named Nura, as a result of which the victim died two days later. Bhola Nath appealed to the High Court and Government put in a petition for enhancement of sentence. The case was heard in this Court by Tek Chand, J. who declined to enhance the sentence. Though a sentence of only one year's rigorous imprisonment was considered quite sufficient in the cited case, I do not think either that that sentence was appropriate in that case or that I am bound by the views expressed on the ques tion of sentence therein. As to what is the appropriate sentence for an offence depends on the circumstances of each case. A question of sentence, unless it relates to the question of minimum or maximum sentence imposable, is not one of law and, therefore, a sentence passed by one Judge is not a binding precedent on another in a subsequent case. The victim was inhumanly treated ; but at the same time, it cannot be overlooked that the victim had indulged in illicit intimacy with his own cousin, which conduct of his was not unnaturally resented by her relatives. Considering all the circumstances, I sentence Chand, Shafi and Ali Muhammad, respondents, to five years' rigorous imprisonment under section 304 Part II read with section 34 of the Pakistan Penal Code. M. A. SOOFI, J.‑I agree, A. H. Respondents convicted.