1988 PLP 601 (SCMR)

ALI HUSSAIN QAZILBASH, J.--Criminal Appeal No.186 of 1987 filed by Ali Nawaz alias Aliya and Criminal Appeal No.187 of 1987 filed by Nusrat, his two sons, namely, Bashir Ahmad and Muhammad Ramzan, his nephew Irshad and his brother-in-law Muhammad Rafiq are being disposed of by this judgment as they arise from the same order of the learned Judge, Punjab Special Court for Speedy Trial No.V, Multan, dated 10-11-1987. All the six appellants, namely, Nusrat, Bashir Ahmad, Muhammad Ramzan, Irshad alias Shada, Muhammad Rafiq and Ali Nawaz, were convicted under section 148, P.P. C. for committing rioting and sentenced to two years' R.I. each. All the appellants were convicted under section 365, P.P.C. read with section 149, P.P. C. on two counts for abducting Shamsher Ali P.W. and Mushtaq Ahmad P.W. and each sentenced to five years' R.I. and a fine of Rs.2,000 on each count or in default in payment thereof to six months' further R.I. They were, however, acquitted of the charge under section 307, P.P.C. read with section 149, P.P.C. All the appellants were further convicted under section 326, P.P.C. read with section 149, P.P. C. for voluntarily causing grievous injuries in prosecution of the common object of an unlawful assembly. Of them, Ali Nawaz, Nusrat, Muhammad Rafiq and Muhammad Ramzan were sentenced to imprisonment for life and a fine of Rs.5,000 each or in default to one year's further R.I. whereas the other two appellants, namely, Muhammad Bashir and Irshad, were sentenced to ten years' R.I. and a fine of Rs.5,000 each or in default in payment thereof to one year's further R.I. each. All the appellants were also convicted under section 323, P . P . C . read with section 149, P . P . C . for causing simple injuries to Mushtaq Ahmad P.W. They were, however, sentenced to six months' R.I. each. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was allowed to all of them. It was further ordered that since Shamsher Ali has lost his both eyes and has become blind, all the appellants were ordered to pay Rs.25,000 each to Shamsher Ali P.W. as compensation under section 544-A, Cr.P.C. or in default to six months' R.I each.

2. The F.I.R. in this case was lodged at Police Station Kabirwala, District Khanewal, by Mushtaq Ahmad (PW.4), resident of Pir Mahal, District Toba Tek Singh, on the 21st of August, 1985 at 10-30 in the morning. The incident was reported to have taken place at about 9 a.m. It was alleged by Mushtaq Ahmad P.W. that he had come to his borther-in-law Shamsher Ali at his Chak Karariwala in Mauza Bahadurwala, Police Station Kabirwala, 3/4 days prior to the occurrence. Qaswer P.W., who is the nephew of Shamsher Ali, fell ill, therefore, on the fateful day at 8-20 a.m. he (the complainant) Shamsher Ali and Qaswer P.Ws. rode the motor-cycle of Shamsher Ali from Chak Karariwala for going to Kundanpur in order to fetch medicine for Qaswer P.W. from the doctor. They were going on a katcha path and when they reached near the Bhaini of Nusrat appellant, all the appellants, namely, Ali Nawaz alias Aliya, Muhammad Rafiq, Muhammad Ramzan, Bashir Ahmad, lrshad and Nusrat, came there. Nusrat, Ali Nawaz, Muhammad Ramzan and Muhammad Rafiq were armed with Sotas while Bashir Ahmad was having a .12 bore gun and Irshad .12 bore pistol. All the appellants came on katcha path and blocked the same, as a result of which Shamsher Ali had to stop his motor-cycle. No sooner did he do so, all the appellants gave a push to the motor-cycle, with the result that all the three of them, namely, Mushtaq Ahmad, Shamsher Ali and Qaswer P.Ws., fell from the motor-cycle in the cotton field which was having water. The appellants grappled with the complainant and Shamsher Ali and in the meantime Qaswer P.W., a boy of 7/8 years, managed to run away from the fields. Nusrat appellant exhorted his companions to tie the hands of the complainant and Shamsher Ali P.W. at their backs and be taken to his Dera. This was accordingly done with Safas, and both of them were forcibly abducted to the room of the Dera of Nusrat appellant. Thereafter, inside the room Muhammad Ramzan appellant gave a Sota blow on the left arm of Musthaq Ahmad complainant while Muhammad Rafiq appellant gave a Sota blow on his right knee, as a result of which he fell on the ground. In the meantime Ali Nawaz with the help of Muhammad Ramzan, Muhammad Rafiq and Nusrat felled Shamsher Ali on the ground, Ali Nawaz sat on the chest of Shamsher Ali P. W. and inflicted injuries on his both eyes with a brick. While the occurrence was taking place, Bashir Ahmad and Irshad were standing outside the room in the courtyard of the Haveli and resorted to firing with their respective weapons. Thereafter, all the accused ran away from the place of occurrence with their respective weapons. The motive given in the F. I. R. was that Muhammad Shafi, borther of Ali Nawaz appellant, had been murdered 9/10 years prior to the occurrence, for which Shamsher Ali P.W. was charged but acquitted. Besides this, Shamsher Ali P.W. and Nusrat appellant are locked in litigation which is pending.

3. The above report was recorded by Shamim Hussain (PW.7) who was then posted as A.S.I. Police Station Kabirwala. At the relevant time he was present in Mauza Shergarh on Gasht and on receiving information of the occurrence at about 11-15 a.m. he went to the spot. On reaching the Dera of Nusrat appellant at Chah Jalwala when he entered the room of the Dera of Nusrat, he saw Shamsher Ali alias Shamman P.W. lying injured on the ground having injuries on his both eyes and profusely bleeding. The injured was lying in semi-conscious condition. The investigating officer also saw Mushtaq Ahmad P.W. standing inside the room and his hands having been tied on his back and was having some injuries on his person.

4. The above report was recorded on the statement of Mushtaq Ahmad which is Ex.P.B. The same was then sent to the Police Station Kabirwala where a formal F.I.R. was drawn. The witness in hand then prepared the injury statements of Mushtaq Ahmad and Shamsher Ali P. Ws. and sent them to the Tehsil Headquarter Hospital Kabirwala for treatment. He picked up blood-stained earth from inside the room where Shamsher Ali was lying injured vide memo. Ex.P. C. and the blood-stained piece of brick which was also lying at the spot vide memo. Ex.P.E. A piece of chappal belonging to Shamsher Ali P.W. was also recovered from inside the room and taken into possession vide memo. Ex. P. D. Six crime empties P.4/1-6 from the courtyard of the Haveli of Nusrat appellant were also taken into possession vide memo. Ex.P.C. Similarly, on the same day, motor-cycle P.3 belonging to Shamsher Ali was also taken into possession vide memo. Ex.P.F. This witness then prepared the rough sketch of the place of occurrence and also recorded the statements of Muhammad Nawaz Chandia, Muhammad Ashraf and Qaswer P.W. on the same day under section 161, Cr.P.C.

5. Shamim Hussain (PW.7) then reached the hospital at 2-30/3 p.m. and found both the injured P.Ws. Statement of Shamsher Ali, who by then had regained consciousness, was recorded under section 161, Cr.P.C. He also took into possession vide memo. Ex.P.H., Chaddar P.7, Kurta P.6 and Safa P.5 belonging to Shamsher Ali P.W., all of them were stained with blood and mud. Vide memo. Ex.P.J. he took into possession Kurta P.8, Chaddar P.9 and Bunyan P.10 of Mushtaq Ahmad P.W. They were also stained with blood and mud. He arrested Nusrat, Bashir Ahmad, Muhammad Ramzan, Irshad and Muhammad Rafiq appellants from the Dera of Ghulam Qasim Sial on 23-8-1985. Ali Nawaz was arrested from his house on 25-8-1985 situate in Mauza Bahadurwala. The other incriminating articles were recovered from the possession of the appellants at their instance through various memos. in the presence of witnesses. Since Bashir Ahmad appellant could not produce licence for the gun recovered from his possession he was also challaned under the Arms Act. After the completion of the investigation, the appellants were put to trial.

6. In the Court of the Special Judge, the prosecution in support of its case produced as many as eight witnesses including Dr. Allah Nawaz (PW.1) and Dr. Ashraf Ali (PW.8). Dr. Allah Nawaz deposed that on 21-8-1985 at 3-25 p. m. he examined Mushtaq Ahmad P. W. and found the following injuries on his person: "(1) An ,abrasion 2 cm x 2 cm on right knee joint (2) Swelling 7 cm x 3 cm on lower one-third of left forearm medially." Muhammad Ahmad complained of pain on the right side of his chest. Both the injuries were simple in nature caused by blunt weapon within 4 to 6 hours. Dr. Ashraf Ali (PW.8) deposed at the trial that during the days of the occurrence he was posted as Additional Registrar, Nishtar Medical College, Multan, and admitted Shamsher Ali in the said hospital on 22-8-1985 and discharged him on 26-9-1985. He stated that when Shamsher Ali was brought to the hospital, his both eye-balls had been damaged. He found the following injuries: "(1) A wound about 3 cm in length above the route of the left eye-lid. (2) A wound about 3 cm in length just below the route of the lower lid. (3) Vertically curved wound about 23 cm at the lateral canthus of the left eye. (4) A vertical wound on the side of the nose about 1 cm in length on the inner canthus (between the nose and the left eye). Both the eye-balls were completely damaged and unrepairable. He did not exclude the possibility of injuries on the left eye with blunt weapon having some edge. Injury No.3 of Shamsher Ali was declared as grievous.

7. The appellants in their statements under section 342, Cr.P.C. denied the occurrence. Nusrat, Muhammad Rafiq, Muhammad Ramzan, Irshad and Bashir Ahmad have admitted their inter se relationship but did not admit that Ali Nawaz was the friend of Nusrat appellant. They also admitted the litigation going on between Shamsher Ali P.W. and Nusrat appellant under section 452/506, P.P.C. They, however, expressed their ignorance about the murder of Muhammad Shafi, brother of Ali Nawaz co-accused. Ali Nawaz admitted that his mother had been murdered, for which the father of Shamsher Ali P.W. was convicted and sentenced to five years' R.I. He also admitted the murder of his brother Muhammad Shafi by Shamsher Ali who was, however, acquitted. All the accused stated that they had been falsely implicated and they also denied the recoveries of incriminating articles at their instance. Ali Nawaz also took up a plea that the eye-balls of Shamsher Ali P.W. had been gouged by the near relations of Mst. Sakina, his wife, as he had abducted her before his marriage. The trial culminated in the conviction order as already given in the earlier part of this judgment.

8. We have heard the learned counsel for the parties. The learned trial Court in convicting the appellants has mainly relied upon the evidence of Mushtaq Ahmad (PW.4) and Shamsher Ali (PW.5). Both these witnesses were injured and were found inside the room of the Dera of Nusrat appellant. Support to a certain extent was also sought from the statements of Qaswer and Ashraf P.Ws. and also from the medical evidence. The recoveries, however, have not been relied upon.

9. On our examining the prosecution evidence, we find that Mushtaq Ahmad and Shamsher Ali P.Ws. have received beating in this case, as a result of which the former received some simple injuries on his person, whereas the latter lost both of his eyes. Admittedly acute enmity existed between Shamsher Ali P.W. and Ali Nawaz appellant and relations between Shamsher Ali and Nusrat appellant were also strained. It is not the case of the prosecution that the accused in prosecution of their common object had waylaid the complainant party. It seems that it was a sudden encounter when Shamsher Ali, Mushtaq Ahmad and Qaswer P.Ws. on their way to village Kundanpur came face to face with the appellants near the Dera of Nusrat appellant. The first beating which the complainant party received at the hands of the appellants in the cotton crop field was not that serious. It was the subsequent events which took a serious turn when the accused party allegedly tied the hands of Shamsher Ali and Mushtaq Ahmad P.Ws. at their back and led them to the Dera of Nusrat appellant where both the P.Ws. were subjected to further beating. According to the prosecution evidence the distance between the place where the first encounter took place and the Dera of Nusrat appellant is only one acre. The distance between these two points being so short, it cannot reasonably be said that the accused party abducted the complainant party. The charge of abduction is thus not established and all the appellants are acquitted of the delict under section 365/149, P.P.C.

10. Another charge against Ali Nawaz, Nusrat, Muhammad Rafiq and Muhammad Ramzan appellants is that the last three facilitated the act of Ali Nawaz appellant who (Ali Nawaz) was able to gouge both) the eyes of Shamsher Ali P.W. True that the act of gouging the eyes is a very brutal and inhuman act, but it is to be seen whether in the present case it was the act of one person or the others too, as alleged by the prosecution, had participated or in any way facilitated in this gruesome offence. At the trial Shamsher Ali (PW.5) deposed that Ali Nawaz, Nusrat, Muhammad Ramzan and Muhammad Rafiq threw him on the ground and while Ali Nawaz sat on his chest, Nusrat held him by 'his hair, Muhammad Ramzan and Muhammad Rafiq held him by his legs. Ali Nawaz then picked up a piece of brick which was lying inside the kotha and inflicted injuries on his eyes, as a result of which he has lost his eye sight completely. On the other hand, Mushtaq Ahmad (PW.4) who is absolutely an independent witness, in the F.I.R. and at the trial did not attribute the holding of the hair of Shamsher Ali by Nusrat or the act of catching of legs of Shamsher Ali by Muhammad Ramzan and Muhammad Rafiq appellants, though he has supported Shamsher Ali P.W. on other points, such as the throwing of Shamsher Ali on the ground by all these four appellants, sitting of Ali Nawaz on the chest of Shamsher Ali P.W. and infliction of injuries on his eyes. There is, thus, a marked difference between the above two statements qua the role attributed to Nusrat, Muhammad Ramzan and Muhammad Rafiq appellants. Both these witnesses have in fact contradicted each other on a very vital point and this has made all the difference. May be, Nusrat, Muhammad Ramzan and Muhammad Rafiq appellants have only assisted Ali Nawaz in throwing Shamsher Ali P.W. on the ground. There is no evidence that Nusrat, Muhammad Ramzan and Muhammad Rafiq appellants knew that Ali Nawaz would give severe beating to Shamsher Ali. They may not be aware at all that Ali Nawaz would resort to inflicting grievous injuries to Shamsher Ali and that too on his eyes because Ali Nawaz appellant was not at all armed with any deadly weapon. Even Shamsher Ali P.W. himself may not be knowing that he was going to be deprived of his two eyes, otherwise he would have tried desperately to avoid the injuries. Ali Nawaz inflicted injuries on Shamsher Ali P.W. with the piece of brick which to the misfortune of Shamsher Ali P. W. was already lying there and which might have not even been taken notice of by Nusrat, Muhammad Ramzan and Muhammad Rafiq appellants. According to the prosecution it was only Ali Nawaz appellant who had blood-feud with Shamsher Ali P.7., whereas Nusrat appellant had a minor dispute with Shamsher Ali P.W, therefore, Nusrat and his sons would have not gone to the extent of beating him so severely. Though the occurrence took place inside the Dera of Nusrat appellant but there is no evidence worth the name that Nusrat and his two sons, namely, Bashir Ahmad and Muhammad Ramzan, had committed the offence in prosecution of their common object with Ali Nawaz. Further, there is not an iota of evidence that Irshad and Muhammad Rafiq, in any way, had participated or assisted Ali Nawaz in inflicting injuries on the eyes of Shamsher Ali P.W. In my humble view, in all probability, the infliction of injuries on the eyes of Shamsher Ali P.W., as a result of which he was deprived of his eye sight, was the act of Ali Nawaz appellant alone. Admittedly he has committed the offence with a piece of brick which was already lying in the room. He was not at all armed with any dangerous weapon, therefore, his conviction under section 326, P.P.C. is not warranted. Shamsher Ali P.W. , undoubtedly, has received grievous injuries at the hands of Ali Nawaz, his case is, therefore, covered by the provisions of section 325, P.P.C. We thus alter his conviction one from under section 326, P.P.C. to section 325, P.P.C. and sentence him to seven years' R.I. Since he has deprived Shamsher Ali of his eye sight permanently, he is also sentenced to pay a fine of Rs.25,000 or in default to two years' R.I. The fine on realization shall be paid to Shamsher Ali P.W. as compensation under section 544-A, Cr.P.C. The conviction and sentence of the rest of the appellants is hereby set aside.

11. As for the injuries on 6lushtaq Ahmad P. W. , he received simple! injuries in the room of the Dera of Nusrat appellant, where he was' taken by Nusrat, Ali Nawaz, Muhammad Rafiq and Muhammad Ramzan appellants who were armed with Sotas and it was Muhammad Ramzan' and Muhammad Rafiq appellants who had inflicted Sota blows to Mushtaq Ahmad P.W. in furtherance of the common intention with the two other appellants, i.e. , Nusrat and Ali Nawaz. The charge under section 323/34, P.P.C. has been established against the above four) appellants, therefore, their conviction and sentence under section 323/34, P.P.C. is maintained. As no overt act is attributed to Irshad and Bashir Ahmad appellants, they are acquitted of the charge under section 323, P.P.C. The sentence under section 323/34, P.P.C. of Ali Nawaz shall run concurrently with the one awarded to him under section 325, P.P.C. 'The offence under section 148, P.P.C. has not been made out, therefore, all the appellants are acquitted of the charge of rioting.

12. The appeals are partly allowed. S.Q./A-165/S Appeals partly accepted.