1988 PLP 579 (SCMR)

S.A.NUSRAT, J.--This appeal, by leave of this Court, is from the judgment of the Lahore High Court dated 15-7-1986 whereby the appeal of the appellants was dismissed and the sentences awarded to them by the trial Court were maintained. 2. The appellants were tried by the Additional Sessions Judge, Jhelum, for offences under sections 148, 452/307/302/149, P.P.C_ for committing riot, trespass into the Haveli of Muhammad Sadiq (deceased) and for having caused murderous assault on Sher Baz, Ahmad Khan, Mir Baz, Ghulam Haider, Fazal Hussain and Mst.Karam Nur, and the murder of Muhammad Sadiq deceased in the prosecution of the common object of the unlawful assembly formed by them. All the appellants were found guilty, convicted and sentenced to three years' R.I. under section 148, P . P . C . , five years' R.I. under section 452/149, P.P.C. and a fine of Rs.500 each or in default, further R.I. for one month, under section 307/ 149, P . P . C . , ten years' R.I. and a fine of Rs.1,000 each or in default, further R.I. for' two months (on six counts) and under section 302/149, P.P.C., imprisonment for life and a fine of Rs.2,000 or in default, further R.I. for four months. Appellant Dilawar Khan was also convicted under section 323, P.P.C. for having caused simple injuries with a blunt weapon on the person of Arshad Mahmood and sentenced to three months' R.I. Similarly, Resham Khan appellant was also convicted under section 323, P.P.C. for causing simple injuries with a blunt weapon on the person of Mst.Amir Begum and sentenced to suffer three months' R.I. Khalid Mahmood Akhtar, Tariq Mahmood Akhtar and Taj Mahmood Akhtar appellants were also convicted under section 323, P.P.C. and sentenced to two months' R.I. each. Alhthe sentences were ordered to run concurrently. The appellants were directed to pay Rs.2,000 each to the heirs of the deceased as compensation under section 544-A, Cr.P.C., or in default, suffer further R.I. for three years. 3. The appellants challenged the judgment of the trial Court in appeal before the Lahore High Court while the complainant preferred criminal revision seeking enhancement of sentence, which were dismissed as per impugned judgment. 4. The prosecution case, in brief, is that on 6-5-1982 at 7-15 a.m., the complainant party had gathered in the Haveli of Muhammad Sadiq (deceased) for proceeding together for harvesting .the wheat crop when all the appellants variously armed reached the Haveli, after raising lalkara trespassed into the same, launched attack and caused injuries to seven persons from the complainant side. Mst. Amir Begum, Mst.Karam Nur and Arshad Mahmood were attracted to the scene of occurrence. They tried to rescue the complainant party, but were also assaulted by Resham Khan, Dilawar Khan, Khalid Mahmood Akhtar, Tariq Mahmood Akhtar and Taj Mahmood Akhtar appellants. Muhammad Sadiq was removed to the hospital in an injured condition where he died at 7-45 p.m. 5. Dr. Asghar Hamid Qureshi conducted medico-legal examination of all the injured persons including Muhammad Sadiq and after his death also performed autopsy on his dead body. In the opinion of the doctor, who observed four injuries on the person of the deceased, blood had gathered under the scalp underneath injuries Nos.1 and 2. The right parietal bone was depressed and fractured in area 3" x 1-3/4" on the right side just behind the vertax underneath injury No.1. The frontal bone was fractured underneath injury No.4. Right anterial cranical fossa was also fractured. According to the doctor, the death occurred due to depressed fracture of the vault of the scalp and collection of blood and bleeding inside right cerebral hemisphere due to injuries Nos.1 and 2, which were individually as well as collectively fatal. 6. On the complainant side, Sher Baz, P.W.14 received five injuries including one grievous injury. Arshad Mahmood received two injuries. Ahmad Khan received four injuries. Mir Baz received seven injuries, one of which was declared as grievous. Ghulam Haider sustained seven injuries including three grievous injuries. Ghulam Hussain received one injury. Fazal Hussain, P.W.13 received four injuries, one of which was declared grievous. Mst.Rehm Nur received five injuries, one of which was declared grievous. Mst. Amir Begum received one injury while Mst.Karam Nur received four injuries. 7. It may be relevant to mention here the specific role of each of the appellants. Nawab Khan alias Nabi had inflicted hatchet blow on the right hand of Sher Baz, which was declared as grievous. He had also inflicted a hatchet blow from its wrong side on the head of the deceased Muhammad Sadiq, which was subsequently found to be fatal. He had also injured Ghulam Haider on the upper side of the left eye. Fazal Dad had caused a hatchet blow from its wrong side to Sher Baz hitting him on his left arm. He also gave a similar blow on the head of Ahmad Khan. He inflicted a third blow on the right arm of Mir Baz, P.W.11. Taj Mahmood Akhtar inflicted a Soti blow on the left hand of Sher Baz and another similar blow to Mst. Rehm Nur. Tariq Mahmood Akhtar caused one Soti blow each to Fazal Hussain, P.W.13 and Mst.Rehm Nur while Khalid Mahmood Akhtar gave a Soti blow to Mst.Karam Nur. Ata Hussain caused hatchet blows from its wrong side, one each to Ghulam Hussain, P.W. on the back of his head, Mir Baz, P.W.11 on his right hand and Ghulam Haider on his head. 8. The appellants also sustained injuries during the occurrence. Nawab Khan alias Nabi had received two injuries caused with blunt weapon. Taj Mahmood Akhtar had received two injuries, one with a blunt weapon and the other with a sharp-edged weapon. Fazal Dad had received eight blunt weapon injuries. Tariq Mahmood Akhtar received two injuries one with a blunt weapon and the other with a sharp-edged weapon. Khalid Mahmood Akhtar received three blunt weapon injuries. Ata Hussain sustained three injuries, one with a sharp-edged weapon while the other two with a blunt weapon. 9. The prosecution relied upon the ocular testimony furnished by Karam Elahi (complainant) P.W.10, Mir Baz, Fazal Hussain and Sher Baz, injured P.Ws. 11, 13 and 14 respectively. The rest of the injured witnesses were not produced. The motive for the occurrence was also relied as a piece of evidence through these witnesses. It is alleged that Nawab Khan had left his cattle to graze in the wheat field of Ghulam Haider. The latter prevented Nawab Khan from doing so which led to exchange of hot words and abuses between them. As a result of this altercation, the appellants are said to have formed themselves into an unlawful assembly and assaulted the complainant party in the prosecution of the common object in the Haveli of Muhammad Sadiq deceased. The prosecution witnesses are admittedly related inter se. So are the appellants. 10. We heard the learned counsel for the appellants and the learned Assistant Advocate-General for the State and have examined the impugned judgment of the learned High Court as also that of the trial Court and the evidence recorded in the case. It was contended by the learned counsel for the appellants that the Courts below had erred in holding that all the accused persons had admitted the occurrence. According to the learned counsel, only the injured persons had admitted the factum of occurrence and had given their own version of the same. It was further urged that no distinction between the case of non-injured accused and that of the injured accused was made by the Courts below, with the result that the rest of the appellants were convicted on the basis of evidence as against the injured accused and their case was not separately dealt with. It was further contended that the impression created by the eye-witnesses on the trial Court was that they were deposing a tutored version of the prosecution case. In this view of the matter, according to the learned counsel, the testimony of the prosecution witnesses should have been examined with more care as there was possibility to rope in as many persons as possible from the opposite side. The honesty of the investigating agency was also criticised. It was lastly contended that the prosecution had failed to prove any pre-concert or common object and the injured accused had succeeded in raising reasonable doubt that they acted in self-defence. 11. The record shows that the statements of all the appellants under section 342, Cr.P.C., were recorded on one and the same date, namely 15-10-1984 by the trial Court. The main statement was given by Nawab Khan, which is as under:- "In fact, it was the complainant party which aggressed and for that reason they are deposing against me. The fact of the matter is that Fazal Dad, Ata Hussain, Taj Mahmood Akhtar, Tariq Mahmood Akhtar and Khalid Mahmood Akhtar were present in the Haveli belonging to me, getting ready to go out for harvesting when the complainant party launched an attack and got injuries at hands of the said accused who 'acted in their self-defence. Mst.Rehm Noor, Mst.Amir Begum and Mst.Karam Noor came during the occurrence and got hurt in the melee. The motive as given by the prosecution is wholly false. There was an estrangement between the complainant party and the accused over abduction of daughter of Sikandar Khan P. W. which took place about a year prior to the occurrence. Mushtaq brother of Riaz accused, himself and their father Imam Muhammad alongwith their mother Mst.Sahab Noor and Resham Khan were challaned for that abduction, which resulted in the conviction of Muhammad Mushtaq. On account of this abduction, Ghulam Haider P.W. did not allow the cattle of mine to take water from the pond. Haji Jaffar P.W. remonstrated Ghulam Haider not to do so. On account of this grievance, the complainant party trespassed into the Haveli belonging to me and attacked the injured accused, who acted in their self-defence resulting in the death of Muhammad Sadiq and injuries to the above-mentioned injured persons excluding Mst. Rehm Noor, Mst. emir Begum and Mst. Karam Noor, who got hurt during the occurrence. The police promised to register a cross-case, but then acted one-ided. Banaras Khan, a relative of the accused lodged a complaint about the occurrence in the Court of Ilaqa Magistrate at Chakwal, which is still pending." The above reply was given by Nawab Khan in response to a question of the Court as to why the witnesses had deposed against him. The same question was asked from all the other appellants and all of them had given the following reply: "My answer is as stated by Nawab Khan, co-accused." 12. Nawab Khan, in his above statement, had admitted his own participation in the occurrence alongwith Fazal Dad, Ata Hussain, Taj Mahmood Akhtar, Tariq Mahmood Akhtar and Khalid Mahmood Akhtar only, all of whom were injured in the incident and the names of the other appellants as having participated in the occurrence were not mentioned. By mere adoption of the statement of Nawab Khan by the other appellants save those, who were specifically named, it could not be held that all accused persons had admitted the occurrence, as rightly pointed out by the learned counsel for the appellants. The finding of the learned High Court that the occurrence was admitted! by all the appellants is thus not borne out from the record. The plea with regard to self-defence was thus set up by the injured appellants alone and when examined in juxtaposition with the prosecution story was rightly rejected by the two Courts. As regards the place of occurrence, admittedly the blood-stained earth was collected from the Haveli of Muhammad Sadiq deceased, which left no room for doubt that the occurrence had taken place in the house of the deceased. Further no evidence was led on behalf of defence to, show that the occurrence had taken place elsewhere as alleged by them. Besides, the womenfolk on the complainant side had also received injuries, which fact also goes to show that the injured appellants had formed themselves into an unlawful assembly and trespassed into the Haveli of Muhammad Sadiq deceased. As respects the statements of the eye-witnesses the learned trial Court had formed the following, opinion: - "Here, I must mention that all the alleged eye-witnesses of the occurrence had given a photographic narration of injuries caused by each accused. This was not possible. None of the P.Ws., who was himself under an attack, could have been so, unconcerned with the attack on himself to see as to who was' causing injuries to whom at that time. I am absolutely convinced,, that narration of sequence of giving of injuries as has come on record through statements of eye-witnesses was result of tutoring. It, however, does not affect the prosecution case because the injuries were suffered by the persons of the complainant party in the occurrence and it is nobody's case that these were suffered elsewhere. In view of the above observations of the learned trial Court, some strong corroboration was needed to bring home the guilt to they non-injured appellants, which in our view, is wanting in the case. In this view of the matter, the possibility on the part of the prosecution to rope in as many persons as possible from the opposite side, as; contended by the learned counsel for the appellants, is not without force. The above contention was ruled out by the learned High Court's merely on the ground that the complainant side had received 44 injuries out of which 12 were grievous while the appellant side had received 20 injuries out of which 6 were grievous and thus the, number of injuries was sufficient to throw light on the number of participants. This alone cannot be regarded as a corroborative, circumstance against the non-injured appellants. 13. In the circumstances, a strong case of benefit of doubt is made out in favour of non-injured appellants namely Resham Khan, Muhammad Aslam, Muhammad Riaz, Allah Dad, Ghulam Muhammad, Ahmad Khan and Muhammad Dilawar and accordingly while partly accepting the appeal, the impugned judgment of the learned High Court is set aside qua the said appellants, who are acquitted and shall be released forthwith unless required in some other case. The appeal to the extent of Nawab Khan, Fazal Dad, Ata Hussain, Tai Mahmood Akhtar, Tariq Mahmood Akhtar and Khalid Mahmood Akhtar has no merit and is dismissed accordingly. M.I./N-50/S Appeal partly accepted.