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Petitioner: MAMMORA AND 6 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa, Mazhar-ul-Haq Title: MAMMORA AND 6 OTHERS vs THE STATE Case No.: Criminal Appeal No, 58 of 1976 Date of Judgment:1979-04-07 Reported As: 1980 P Cr. L J 463 Result: Order accordingly
JUDGMENT
JUDGMENT ' RUSTAM S. SIDHWA, J.-Mamma, Mamoora, Talib, Manak, Muhammad Amin, Muhammad Ismail, Nawaz and Aslam were sent up for trial under sections 302/307/149 and 148, P. P. C. For the murder of Said Ahmad deceased and attempt on the life of Dosa and Sharif P. Ws. Before Mr. M. Saleem Akhtar, Additional Sessions Judge, Jhang. The said learned Additional Sessions Judge, Jhang, by his judgment dated 18th December, 1975 acquitted Manak, but convicted and sentenced the other accused as follows :- (a) Mamoora, Nawaz and Aslam under section 302/141, P. P. C. To transportation for life and a fine Rs, 1,000 each, in default of payment of which to suffer further one year's rigorous imprisonment ; (b) Mamma under section 326, P. P. C. To four years' rigorous imprisonment and a fine of Rs, 1,000 in default of payment of which to suffer further one year's rigorous imprisonment ; (c) Amin under section 324, P. P. C. To three years' rigorous imprisonment and a fine of Rs, 1,000 in default of payment of which to undergo further nine months' rigorous imprisonment ; (d) Talib under section 324, P. P. C. To two years' rigorous imprisonment and a fine of Rs, 500 in default of payment of which to undergo further six months' rigorous imprisonment ; (e) Muhammad Ismail under section 323, P. P. C. To one year's rigorous imprisonment and a fine of Rs, 500, in default of payment of which to undergo further three months' rigorous imprisonment ; (f) Mamoora under section 323, P. P. C. On two counts to one year's rigorous imprisonment and a fine of Rs, 1,000, in default of payment to which to suffer further three months' rigorous imprisonment on each count ; (g) Nawaz under section 323, P.P.C. On three counts to one year's rigorous imprisonment and a fine of Rs, 1,000, in default of payment of which, to suffer further three months' rigorous imprisonment on
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each count ; (h) Aslam under section 323, P. P. C. To one year's rigorous imprisonment and a fine of Rs, 1,000, in default of payment of which to suffer further three months' rigorous imprisonment. ' The convicted accused have preferred an appeal against their conviction. Dost Muhammad has filed a revision (Cr. R. 290-76) for the enhancement of the sentences of Nawaz, Mamoora and Aslam, the conviction of Muhammad Amin accused under section 302, P. P. C. And the enhancement of the sentence of Mamma accused under section 326, P. P. C. Which revision is also before us for hearing. This judgment will, therefore, dispose of both the appeal and the revision. 2. The brief facts of the case, as disclosed at the trial, are that on 19th October, 1972 Syed Fayyaz Hussain, Zilladar, P. W. 5 came to Chak No, 140 and there pronounced that the new warabandi, which had been sanctioned earlier in March, 1972 would be enforced on 23rd October, 1972 at 6-00 p. m. The said pronouncement was made in the presence of persons what were residents of the said Chak and who benefited from Moga No, 32550/R. According to this new warabandi, persons whose turn of water, which was previously fixed in the day time, fell at night and vice versa. On 23rd October 1972 at about 6-00 a. m. Dosa P. W. 7 with Said Ahmad deceased reached Moga No, 32550/R to take their turn of water. They found Amin and Ismail, armed with guns, Manak, armed with hatchet, Talib and Mamma, armed with kassis, and Aslam, Nawaz and Mamoora, armed with dangs, present there irrigating their land from the said Moga. Dosa P. W. 7 inquired from the accused party as to why they were illegally irrigating their land, as it was their turn of water and the turn of the accused fell thereafter, and that Burkha son of Piyara had his turn before even theirs (complainant's turn). Dosa P. W. 7 and Said Ahmad deceased pressed for their turn of water, but the accused party declined. The complainant party tried to make the accused understand the position, but the accused picked up a row, started abusing Said Ahmad deceased and launched an attack. On the complainant's alarm, Sharif P. W. 10 and Rehmat P. W. 8 came up, followed soon after by Hayat P. W. 11, Noora and Allih Ditta, from their adjacent fields. At about the same time, Amin accused fired at Said Ahmad deceased with his gun, hitting him on his right foot, on which Said Ahmad deceased fell down. When Dosa P. W. 7, Sharif P. W. 10, and Rehmat P. W. 8 tried to intervene, Talib accused gave a kassi blow to Said Ahmad deceased on his left cheek ; and Aslam, Mamoora and Nawaz accused started giving dang blows to the deceased. The dang blows by Nawaz accused hit Said Ahmad deceased on his right head and right ear, and that by Aslam and Mamoora accused hit the deceased on the left side of his head. During the melee, Mamma, Muhammad Ismail and Nawaz accused gave blows to Dosa P. W. 7 with their kassi, butt end of the gun and laths respectively. Sharif P. W. 10 and Rehmat P. W. 8 received a number of successive dang blows at the hands of Aslam, Mamoora and Nawaz, whereupon Rehmat fell on the ground. With great difficulty, Hayat P. W. 11 and Noora rescued the injured from the accused party. The accused thereafter ran away. Said Ahmad deceased, who was seriously injured, was carried on a cot to the village. His condition having deteriorated, he was removed to Civil Hospital, Chiniot, where he and the other injured P. Ws. Were medically examined. Dr. Muhammad Iqbal P. W. 9 sent ruqqa Exh. P. U. To Police Station Chiniot, reporting the unconscious condition of Said Ahmad deceased at the hospital. Fida Hussain Shah A. S. 1. P. W. 13 immediately reached the hospital. Since Said Ahmad deceased was not in a fit condition to make a statement, the state- ment Exh. P. A. Of Dosa P. W. 7 was recorded by him at 9.30 a. m., which was sent to the police station, on the basis of which formal F. I. R. Exh. P. A/1 was recorded at Police Station Chariot by Ghulam Muhammad, Moharrir Head Constable P. W. 2 at 9.45 a. m. Whilst in the hospital, the Investigating Officer received report of the death of Said Ahmad deceased, whereupon, after preparing the necessary papers, he sent ;be dead body for post-mortem examination.
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3. Dr. Muhammad Iqbal P. W. 9 on 23rd October, 1972 at 8 a. m. Medically examined Dosa P. W. 7 and found the following injuries on his person :- (1) A contused wound 11' x 1/4" scalp deep on middle of head 5" in above root of nose. Longitudinal in direction, (2) A contused wound 1" x 1/4" bone deep on left head 2/" above left eye brow. (3)ultiple abrasions on all over back of chest of various sizes and shapes. (4)A contused wound 3/4' x 1/3" x skin deep on top of left shoulder joint. (5)A contusion x 1" on back of left forearm middle part oblique in direction. (6)An incised wound 3" x 1/3" x muscle deep on left thigh front upper end of wound starting 2" above left knee joint and extending down cutting the patellar bone, corresponding cut was present on Dhoti. (7) An incised wound 3/4" x 1/10' x muscle deep on back of left index finger first digit. X-ray was advised for injury Nos. 1 and 2. ' The doctor opined that injury No, 6 was grievous and injuries Nos. 3, 4, 5 and 7 were simple. Injuries Nos. 6 and 7 were caused by sharp weapon and rest by blunt weapons. Exh. P. R. Is the correct carbon copy of his medico-legal report, which is in his hand and signed by him. Exh. P. R/1-2 are X- rays of the head of Dosa P. W. 7 with reference to injury Nos. 1 and 2, which are simple. 4. On the same day, at 8-20 a. m., Dr, Muhammad Iqbal P. W. 9 medically examined Retimat and found the following injuries on his person :- (1) A contused wound 2" x 1/3" x scalp deep on the back of head 4" from left ear. (2) A contused wound V-shaped each limb 2" x 1/2" scalp deep on back of head back part 3" from right ear. (3) A contused wound I x 1/6" x scalp deep on right head outer part 2" above right eye-brow. (4) A contused wound 1" x 1/6" x scalp deep on middle of left head 3i" above left ear. (5) A contused wound 1/2" x 1/8" x scalp deep on top of head. (6) A contused wound 1/2' x 1/6" x skin deep on outer part of left eye-brow. (7)A swelling 3" x 2" on and around nose with abrasion at middle of its bridge 1/2" x 1/2", bleeding from nose was present. (8)An abrasion 1/2" x 1/10" on left part of upper lip oblique. (9) Multiple abrasion on left side and back of neck. (10)A contusion with abrasion on back of left shoulder joint. ' X-ray was advised for injuries Nos. 1 to 5 and 7. Patient was kept under observation and was semi- conscious. The doctor opined that injuries Nos. 6, 8, 9 and 10 were simple. All the injuries were caused by blunt weapon and were within six hours duration. Exh. P. Q. Is the correct carbon copy of his medico-legal report which is in his hand and signed by him. Exh. P. Q/1-2 are X-rays for injuries Nos. 1 to 5 and 7 showing no bony lesion so these injuries were simple. 5. On the same day, at 9-00 a. m. Dr. Muhammad Iqbal P. W. 9 medically examined Sharif P. W. 10 and found the following injuries on his person :- (1) A contused wound 1/2" x 1/4" x scalp deep on left head back 4" above and behind left ear. (2) A contusion 5" x 1" on back of left chest middle part near mid-line. ' The doctor opined that the injuries were caused by blunt weapon and were simple in nature, and duration of injuries was within six hours. Exh. P.M. Is correct carbon copy of his medico-legal report, which is in his hand and signed by him. 6. On 23rd October, 1972 at 10-00 p. Rn. Dr. Muhammad Iqbal P. W. 9 conducted the post-mortem examination on the dead body of Said Ahmad (whom he had earlier examined at 8.30 a. m. On the same day when Said Ahmad was brought in a deeply unconscious and precarious condition) and on autopsy found the following injuries on his dead body t- (1) Five contused wounds on left side of head and top :
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(a) 1 i" x 1/4" x bone deep. (b) 2i" x 1/4" x bone deep. (c) 3" x 1/4" x bone deep. (d) x 1/4" x bone deep. '(e) 2i" x 1/4' x bone deep, ' There was massive swelling over this area. The lower wound was 2-i" above the left ear, the upper one near the middle line. (2) A contused wound 1" x 1/2" x bone deep on right forehead 2" above the right eye brow with swelling 2" x 1'. (3) A contused wound 1" x 1/4" through and through on upper part of right ear with swelling 4" x on adjoining part of head. (4)An incised wound 4" x 1/10" x skin deep on left side of face near mouth angle. (5)Whole right ankle joint an area of above of leg and below of foot was swollen 10" x 6" with multiple lacerated wounds of various size shape and depth. ' Due to gun shot on inner side of foot and leg, 11 pellets were removed from the injury. ' Blood was present in scalp layers, between scalp and skull. Skull showed multiple fractures of parietal (side bones) of left side and line of fracture extended to right side behind the right ear, base of skull of middle cranial focca were fractured on both sides. Blood was present between skull and injuries and meanings (brain layers). A big clot of blood was present over right side between brain layers, under injury No, 3. Blood was present in brain matter on both sides. The doctor opined that injury No, 5 was by gunshot and injury No, 4 was caused by sharp weapon while the rest were caused by blunt weapon. The death in his opinion was due to shock, pressure on brain and bleeding. Injury No, 1 as described and injury No, 3 were sufficient to cause death individually, in the ordinary course of nature. All the injuries were ante-mortem and time between injuries and death was between 6 and 10 hours and between death and post-mortem was 2 hours and 40 minutes. Pah. P. L. Is the correct carbon copy of his post-mortem report which is in his hand and signed by him. Exh. P. L/1 is the pictorial representation of injuries. Exh. P. L/2 is the X-ray of injury No, 5 on the person of Said Ahmad deceased. ' On the same day at 10.45 a. m. Dr. Muhammad Iqbal P. W. 9 medically examined Muhammad Nawaz accused and found the following injuries on his person :- (1) Multiple pellet shot wounds each 1/10' x 1/10" x 1/4" x skin deep on front side of right thigh on the area 8" x 6" just above right knee pellet shot wounds 1/10" x 1/10" x muscle deep on front of left thigh, 4" and 8" above knee joint respectively. Corresponding holes were present on Dhoti. A contusion 3" x 1" on front of right forearm, lateral part oblique, middle. (4) A swelling 2k" x on left wrist joint inner aspect with 3 minor abrasions. ' X-ray showed multiple metallic shadows on right and left side. Thigh, No bony lesion was present, All injuries were simple. Injuries Nos. 1 & 2 were of fire-arms, and injuries Nos. 3 & 4 were by blunt weapon. Duration of injuries was within 6 hours, Ex1). D./C. Is the correct copy of the M. L. Examination. Cn the same day at 10-55 a. m. Dr. Muhammad Iqbal P. W. 9 medically examined Mamma accused and found the following injuries on his person :- (1) A contused wound 1. x 1/4' x scalp deep on left head 3k" above left ear. (2)' A contusion 3i" x 3/4" on back of left chest middle. ' Injury No, 2 was declared simple. X-ray was advised for injury No, 1, which wasnot got done. All the injuries were caused by blunt weapon. Duration of injuries was within 6 hours. Exh. D/D is the correct copy of the M. 0. Report. ' On the same day at 11-05 a. m. Dr. Muhammad Iqbal P. W. 9 medically examined Manak accused and found the following injuries on his person :-
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(1) A swelling 2' x 1 i" on back of left hand, thumb side distal half. (2) A contusion 2" x 1" on top of left shoulder joint. ' Injury No, 2 was simple. X-ray was advised for injury No, 1 which was not got done. Injuries were caused by blunt weapon and duration was within 6 hours. Exh. D/ E is the correct copy of the M. 0. Report. 7. On 27th October, 1972 Mamma, Mamoora, Manak, Talib, Muhammad Amin and Muhammad Ismail accused were arrested by the Investigating Officer. 8. On 30th October, 1972, Nawaz and Aslam accused were also arrested by the aforesaid Investigating Officer. 9. On 3rd November, 1972, Amin accused led to the recovery of his licensed gun P. 1 from his house, which was taken into possession, vide memo Exh. P B. Aslam accused led to the recovery of his bloodstained lathi P. 2 from his house which was taken into possession, vide memo Exh. P C. Nawaz accused led to the recovery of a lathi P. 3 from his residental kotha, which was taken into possession, vide memo. Exh. P. D. Talib accused led to the recovery of a blood-stained kassi P. 4 from his sugar-cane field which was taken into possession, vide memo Exh. P. 13. Manak accused led to the recovery of a hatchet P. 5 from his maize crop which was taken into possession vide memo. Exh. P F. Mamma accused led to the recovery of a blood-stained kassi P. 6 from his sugar-cane crop which was taken into possession, vide memo, Exh. P G. All these recoveries were witnessed by Muhammad Hayat, P. W. 11, and Fida Hussain Shah, A. S. I., P. W. 13. 10. On 4th November, 1972, Fayyaz Hussain Shah (Zilladar) P, W. 5 produced documents P T & P T/1 to P T/4, relating to Warabandi before the Investigating Officer. I1. After completing the necessary investigation and getting the iite-plans prepared, all the eight accused were sent up for trial, 12. At the trial, all the accused denied the accusation imputed to them. They all submitted the same defence Aslam accused in his examination under section 342, Cr. P. C,, which statement the other accused also adopted, stated as follows :- "Warabandi on the outlet No, 32550/R had been amended in March, 1972, on 23rd March, 1972. The time had been kept the same but those who irrigated their fields during the day were to irrigate during the night according to the amended warabandi. The change was from night to day and vice versa. An appeal was preferred against this order which was finally decided on 28th June, 1972 by the Divisional Canal Officer who maintained the order of the Sub-Divisional Canal Officer to execute that order. Zilladar Fayyaz Hussain visited Chak No, 140 to announce the amended warabandi. He collected the entire villagers on 19th October, 1972 and announced that the new warabandi would be put into effect from 22nd October, 1972 viz. From the night of Monday as the night precedes the day, The night of Monday starts as soon as the sunsets on Sunday. Whenever there is change in the warabandi surplus water has to be distributed amongst the shareholders by mutual consent. The Zilladar announced that surplus water to be distributed according to the mutual arrangements amongst various shareholders of Maga No, 32550/R. The surplus water was to be distributed amongst the tail end share-holders. They agreed with Mamma, Mamoora, Ismail, Muhammad Ahmad sons of Murad and others that the surplus water according to their share be utilized by Mamma, Mamoora, Ismail, Noora, Taja and others and they would get the surplus share of water al ,ng with their turn when the warabandi was put into effect accordingly they had to get their share on following Sunday. It was mutually agreed that Mamma, Mamoora, Ismail and others should start watering their fields from 6.00 p. m. On 22nd October, 1972 accordingly. Salehon and Jalla sons of Taja, Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Bahab, Nawaz son of Jallah, Amin son of Haqqa and Ismail son of Muhammad, started their turn at 6.00 p. m. On 22nd October, 1972 and continued their turn of water throughout the night between 22/23rd
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October, 1972, when they were attacked by Muhammad Hayat, Dosa, Rehman and Said Ahmad deceased along with Sharif at 5 or 5. 30 a. m. Muhammad Hayat P W opened fire on Nawaz son of Jalla which also accidently hit Said Ahmad deceased and in the fight both the parties received injuries. The possession of water remained with Mamma and Mamoora accused. Thus the amended warabandi which was put into effect at 6.00 p. m. On 22nd October, 1972 was admitted by Muhammad Hayat P W, who made the application Bich. D M before the D. C. O., Lyallpur on 9th February, 1972 and admitted therein that the amended warabandi had been put into effect from the evening of 22nd October, 1972 at 6.00 p. m. And this state of affairs continued for about nine months from 6-00 p. m. From 22nd October, 1972 to June, 1973," 13. The learned trial Court, after an examination of all thr oral and documentary evidence adduced before it, came to the conclusion that the new warabandi was not in force on 23rd October, 1972 at 6-00 a. m. And neither the complainant party nor the accused party had their turn of water at 6-00 a. m. On 23rd October, 1972. The learned trial Judge held that both the parties admitted the presence of each other and otherwise there was no prior enmity between the two groups and, therefore, as none of the parties was entitled to any turn of water at 6-00 a. m. On the fateful day and that both the groups, duly armed, had attacked each other, it was a case of free fight and that each accused was liable for his individual act, except Manak, who was given the benefit of doubt and acquitted. The learned trial Judge did not rely upon the recoveries, but relied upon the medical evidence as corroborating the injuries inflicted by the various accused on the deceased and the injured witnesses. The learned trial Judge, accordingly, convicted and sentenced the accused as stated in para No, 1 above. 14, We have heard the arguments of the learned counsel for the appellants, the respondents, the State and the private complainant. One important fact which stands out prominently is that the occurrence is not denied by the appellants and there is no previous enmity between the parties. According to the statements of the appellants recorded under section 342, Cr. P. C., the amended warabandt was to start on the midnight of 22/23rd October, 1972, but in view of some arrangement arrived at by Mamma, Mamoora and Ismail, appellants, and Muhammad and Ahmad sons of Murad and others, on the one side, with the tail end share-holders, on the other, the surplus water was to be utilized by Mamma, Mamoora and Ismail, appellants, with Noora, Taja and others, and, therefore, they started watering their fields from 6.00 p. m. On 22nd October, 1972. Accordingly, it was submitted that Salehon and Jalla sons of Taja, Mamoora, Mamma and Masoora sons of Noora, Manak and Talib sons of Wahab, Nawab son of Jalla, Amin son of Haqqa and Ismail son of Muhammad, started taking their turn at,6-00 p. m. On 22nd October 1972 and continued their turn of water throughout the night between 22/23rd October, 1972, when they were attacked by the complainant party at 5-00 or 5-30 a. m. And in pursuance of their right of private defence of person and property, they caused injuries to the complainant party. This story was totally disbelieved by the learned trial Judge, who held that the story, as given by the complainant, namely, that the amended warabandi had to start at 6-00 p. In. On 23rd October, 1972 was correct and that the appellants had at 6.00 a. m. Engaged themselves with the complainant party in a free fight. The arm-Hants have pressed the same case it appeal as pleaded by them in time statements under section 342, Cr. P. C. Once again. Both the or )sing contentions therefore, require examination. 15. In fairness to the appellants. It will be proper to evaluate first the case pleaded by them. Muhammad Abdullab Patwari PW 4 and Fayyaz Hussain Zilladar PW 5 have both testified that in March, 1972, the penal warabandi relating to Moga No, 32550/R was amended, that an appeal against the same was decided in June, 1972, that an application Exh. DG was made by Salehon, father of Muhammad Aslam accused, sometime in October, 1972 to the Zilladar requesting that the amended warabandi be implemented, that pursuant to the said application both of them
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proceeded to Chak No, 140, where all the persons, who benefited from the Moga, were summoned, that Fayyaz Hussain Zilladar P.W. 5 then openly announced to all the share-holders then present that the amended warabandi would be enforced from 23rd October, 1972 at 6.00 p. m. And that the statement Exh. DN of those share-holders of the Moga, who were then present when the proclamation was made, was recorded by the Zilladar in token of their acceptance to the amended warabandi. The amended warabandi Exh. PT/2-4 clearly shows in column No, 25 thereof that the turn of the first share-holder of the water was to start from Monday 6-00 p. m. From the evidence of the said Patwari and Zilladar and the amended warabandi Exh. PT/2-4, it is clear that the new warabandi had to be implemented on 23rd October, 1972 at 6-00 p. m. Though Exh. DN does not give the time of implementation, but the statements of the Patwari and the Zilladar are clear that it was to be enforced at 6-00 p. m. On 23rd October, 1972 and the time and day also stands corroborated by Exh. PT/ 2-4. Apart from this factor, even assuming that the amended warabandi was to be enforced on 23rd October, 1972 at 12-00 mid-night but that some of the appellants with some others came to some arrangement with the tail end share-holders with regard to the distribution of the surplus water and that in accordance with that arrangement, the said surplus water was to be utilized by Mamma, Mamoora and Ismail, appellants, with Noora, Taja and others and they started watering their fields from 6-00 p. m. On 22nd October 1972, the said contention neither finds support from any evidence of any tail end shareholders nor any documents on the record. Neither the Patwari nor the Zilladar were cross-examined as to who were the tail end share-holders whose turns to take water were ordinarily due from 6-00 p. m. On 22nd October, 1972 to 0-01 a. m. On 23rd October 1972, because unless their names were disclosed and it was proved that they had given up their turns, the question of the tail end share-holders conceding their turns to Mamma, Mamoora etc. Would not arise. The fact that the Patwari and the Zilladar were never cross-examined as to who these persons were and none of the tail end shareholders came to support the defence version, clearly shows that their contention is not founded on truth, According to Exh. P1/2-4, the under-noted persons had their turns of water from 6-00 p. m. On 22nd October 1972 to 6-00 p. m. On 23rd October 1972 according to the old warabandi S. No, Name From To Wali Muhammad sit) Mansha 5-43 p. m. 6-43 p. m. Mst. Mantey Widow of Umra 6-43 p. m. 8-25 p. m. Muhammad Ali s/o Phumman 8-25 p. m. 10-03 p. m. Wali Muhammad s/o Mansha 10-03 p. m. 10-47 p. m. Noor Muhammad s/o Raja 10-47 p. m. 12-40 a. m. (Complainant party) Zakir and others 12-40 a. m. 4-50 a. In.…
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