Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Munir Farooqi Title: KAZIM HUSSAIN SHAH And 4 Others vs The STATE Case No.: Criminal Appeal No. 138 and Criminal Revision No. 172 of 1969 Date of Judgment:1971-08-31 Reported As: 1972 P Cr. L J 1012 Result: Appeal dismissed

JUDGMENT

JUDGMENT Muhammad Munir Farukee, J.--Kazim Husain Shah, his utrine brother Sakindar Shah, their brother- in-law Muhammad Husain Shah and their nephews Yousaf Shah and Sabir Shah appellants were convicted under sections 148-302/149 of the Pakistan Penal Code on 24th January 1969 by Mr. Mahmud Khan, the then Additional Sessions Judge, Sargodha, who sentenced each of them to rigorous imprisonment for one year under the first count and transportation for life under the second for having committed the murder of Muhammad Husain Shah deceased in prosecution of the common object of an unlawful assembly formed by them while armed with hatchet and dangs on the morning of 25th June 1967 in Shahpur City on account of land dispute. They have filed this appeal under section 410 of the Cr. P. C. to question the correctness of this order while Syed Zakir Husain Shah, private complainant, has preferred a petition under section 439, Cr. P. C. praying for enhancement of their sentences and both these matters, i.e., Criminal Appeal No. 138 of 1969 and Criminal Revision No. 172 of 1969 are being disposed of by this judgment. 2. The prosecution case in brief is that Mst. Mustoran, a first cousin of Kazim Husain Shah appellant was married to Muhammad Husain Shah deceased. On the demise of her father Mehdi Shah one square of land fell to the share of Mst. Hayat Bibi, her mother, who gifted it away in her name (Mst. Mustoran). Kazim Hussain Shah appellant claimed this land as reversioner of his uncle Mehdi Shah, so he filed a civil suit to challenge this gift which was dismissed and the appeal filed by him before the then District Judge, Sargodha also met the same fate. Muhammad Husain Shah deceased as also his sister's son Zakir Husain Shah (P. W. 6) had been appointed Mukhtar-e-Am for the management of the land in dispute vide Exh. P. V. by aforesaid Mst. Hayat Bibi and her daughter Mst. Mustoran and as such they had been persuing this litigation on their behalf. This estranged the

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relations between the two parties. In order to victimise Zakar Husain Shah for the role played by him in this affair Kazim Husain Shah appellant and his utrine brother Sikandar Shah appellant accompanied by one Muhammad Hayat attempted on his life by firing gunshots, but he escaped unhurt and as a result of their prosecution, the two appellants and their companion Muhammad Hayat were convicted under section 307/34, P. P. C. and sentenced to rigorous imprisonment for two years each. The two appellants had filed an appeal against their conviction which was still pending before the learned Sessions Judge when the present occurrence took place. 3. It was alleged that on the eventful day at about sunrise Muhammad Husain Shah deceased was proceeding to his well Chah Kotanga and as he passed by a grove of date-palms the five appellants who were hiding therein ambushed him. Kazim Husain Shah was armed with a hatchet while the other four appellants carried dangs. Kazim Husain Shah opened the attack with a hatchet blow which Muhammad Husain Shah warded off by his right hand. Sikandar Shah planted a dang blow on his right leg near the knee which felled him to the ground followed by some other blows by the remaining appellants as well. After his fall, all the appellants except Kazim Husain Shah gave further blows on the various parts of his body with their respective dangs. The alarm so raised attracted Muhammad Anwar (P. W. 8), Ghulam Muhammad (P. W. 9) and one Muhammad Tufail (given up P. W.) who witnessed the occurrence and tried to intervene but Kazim Husain Shah appellant is said to have threatened them to the same fate if they came near. The five appellants then left Muhammad Husain Shah deceased at the spot and slipped away towards the town with their respective weapons. After their escape, the aforesaid persons attended to Muhammad Husain Shah deceased and finding him in a serious condition sent a message to his nephew Zakir Husain Shah (P. W. 6) through a passer-by Mamoon Arain. On receipt of this information about the occurrence Zakir Husain Shah P. W. immediately came to the spot and on enquiry Muhammad Husain Shah told him the detail of his woe in the presence of the aforesaid eye-witnesses of the occurrence. A cot was arranged and with the assistance of some other persons, who in the meanwhile had arrived at the spot, Muhammad Husain Shah was removed to the hospital in Shahpur Sadar, while the aforesaid witnesses remained at the spot. On arrival of the injured person in the hospital, Dr. Mohd. Sadiq (P. W. 1), incharge of the hospital, sent an intimation to the police station about. it vide Exh. P. C. but no police officer came to the hospital in response to this communication. After obtaining the medico-legal certificate Exh. P. A. Zakir Husain Shah P. W. went to Police Station Shahpur Sadar and lodged his report Exh. P. E. at 10 a.m. on the same day on the basis of which a case under section 307, P. P. C. was registered against the five appellants by Moharrir Head Constable Abid Husain Shah (t*. W. 7), who sent a copy of the formal first information report to Muhammad Shah, Sub-Inspector (P. W. 10) in village Aqil Shah, where he was investigating another case under section 364, P. P. C. On receipt of this report at l2 noon on that day the Sub- Inspector immediately came to the hospital and enquired from the doctor vide Exh. P. R., if Muhammad Husain Shah was in a fit condition to make a statement. The report of the doctor was in the negative as endorsed at Exh. P. R/I. He then proceeded to the spot where he recorded statements of Muhammad Anwar (P. W. 8), Ghulam Muhammad (P. W. 9) and Muhammad Tufail (given up P. W). He also secured blood- stained earth from the place of occurrence and sealed it into a parcel vide Exh. P. G. Muhammad Husain Shah succumbed to his injuries in the hospital at 3-30 p.m. on the same day and the doctor Incharge of the hospital intimated the Sub-Inspector about it vide Exh. P. D. On receipt of this information the Sub-Inspector came back to the hospital and after the necessary inquest vide Exh. P. O. he despatched the dead body to the mortuary with his application Exh. P. Q. (injury statement). Foot Constable Muhammad Khan (P. W. 2) brought back from the mortuary the last wearing apparel of the deceased (P. 1 to P. 3) and produced them before the Sub-Inspector, who

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took them into his possession vide Exh. P. F. All the five appellants were arrested on 7th June 1967. The Sub-Inspector got prepared site plan Exh. P. K. and its duplicate Exh. P. K./l from Mirza Khan Patwari and puttibg his notes in red ink on the same signed it in token of its correctness. The blood- stained earth, recovered from the spot, was found to be stained with human blood, according to the report of the Chemical Examiner Exh. P. S. and that of the Serologist Exh. P. T. 4. On 25th June 1967, at 7 p.m. Dr. Muhammad Sadiq (P. W. 1) examined Muhammad Husain Shah, in his life time and found the following injuries on his person vide Exh. P. A.:-- (1) A contused wound on the inner side df lower lip. All the tipper and lower incisor teeth were shaky. (2) Three contusions on the back of Thorax each 6* x 1". (3) A contused wound |"xquot;x on the back of right forearm. The ulnar bone had been fractured. (4) An abrasion If* x f" on the back of right forearm. (5) An incised wound lf'x f"x in the web space between right thumb and right index finger. (6) The cletranon process of the left ulna fractured. (7) Three contused wounds, each of f* x * x f* on the back of left forearm. The ulnar bone had been fractured. (8) Multiple contusions on the back of left forearm. (9) A contused wound of f' radius on the right shin which was bleeding profusely. The tibia bone had been crushed to pieces. (10) An abrasion f* x f" on the left shin. (11) A contused wound f* x f * x f* on the left shin. . (l2) A contusion 4" x 3' on the lateral side of left ankle-joint. The fibula was fractured. (13) A contusion 6*xf* on the front of left thigh. (14) Multiple contusion on the left thigh, knee-joint and upper half of the left leg. Injury No. 9 was kept under observation. Injuries Nos. 1, 3, 6, 7 and l2 were grievous and the rest were simple. On the same day, the same doctor held autopsy on the dead body of Muhammad Husain Shah vide Exh. P. B. and found the same injuries, as detailed above. Stomach contained three fluid ounces of liquid only. Small intestines were empty but large intestines contained faecal matter. Bladder contained two fluid ounces of urine. In his opinion the death had occurred due to haemorrhage and shock as a result of injury No. 9 which alone was sufficient to cause the death in the ordinary course of nature, being grievous and dangerous, Nos. 1, 3, 6, 7 and l2 were grievous and rest were simple. Injury No. 5 was inflicted with a sharp weapon and the rest with blunt weapon. All the injuries were anti-mortem. The duration between injuries and death was l2 hours and the post-mortem was conducted immediately after death. 5. The evidence of this doctor recorded by the committing Magistrate on lst December 1967 was transferred to the Sessions file to prove the cause of his death, which has not been disputed before us. 6. The five appellants pleading not guilty to the charge denied all the above allegations made against them and stated that they had been falsely implicated in this case on account of enmity, but led no evidence in defence. 7. The prosecution in its turn had relied on the testimony of Zakir Husain Sliah (P.W.6) who deposed about the oral dying declaration of Muhammad Husain Shah deceased made to * him at the spot supported by Muhammad Anwar (P. W. 8) and Ghulain Muhammad (P. W. 9) who had witnessed the occurrence and had supplied the ocular account about it. 8. Their evidence has been assailed before us on two-fold grounds. On factual aspect of the case it was urged that in view of the long-standing enmity and litigation between the parties and number of the persons involved the alleged oral dying declaration as a rule of prudence called for a close scrutiny and material corroboration from some independent source and not from the testimony of

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chance witnesses like that of Anwar and Ghulam Muhammad P. Ws. who did not belong to the vicinity of the crime; and that the medical evidence indicated that he might not be in a fit condition to make any such statement at all. On legal aspect of the case it was contended that if their participation in this assault on Muhammad Husain Shah deceased be considered to be proved, their, offence could not go beyond that under sections 148-325/149, P. P. C. 9. As regards the dying declaration we are aware of the existence of unhappy relations between the parties as an after- math of the prolonged litigation about the land in dispute which was further embittered by a criminal case later instituted by Zakir Husain Shah P. W. against Kazim Husain Shah and Sikandar Shah appellants resulting in their conviction under section 307/34, P. P. C. The resultant estrangement in their relations had certainly impaired the sanctity of the alleged dying declaration as both its maker and the person who had transmitted it to the police in the report lodged about this occurrence were interested in putting the other side to utmost grief by implicating as many of them as possible with a view to satisfy their sense of revenge, so this declaratioh required close scrutiny like the statement of any other interested witnesses as laid down by their Lordships of the Supreme Court in Tawaib Khan's case (1). 10. On going through the record with due care and caution we find that the deposition of Zakir Husain Shah P. W. unfolding (1) PLD 1970 SC 13 the narration of the occurrence supplied to him by Muhammad Husain Shah deceased himself had been quite strongly corroborated in each minor details by Muhammad Anwar and Ghulain Muhammad P, Ws. who had no motive of their own to falsely involve any of the five appellants in this case. Of these two independent and disinterested witnesses at least Muhammad Anwar P. W., being the resident of a nearby Railway Colony could certainly be regarded as a natural witness for all intents and purposes. They had been subjected to lengthy cross- examination but nothing could be pointed out from the record to show that they were in any manner connected with the complainant party. The consistency in their statements about the manner of this assault on the deceased the weapons used and the seat of injuries suffered by the victim of this out of way ambush at quite an odd hour of the day lent a ring of truth to their testimony. There was nothing in the medical evidence either which could dislodge us from this conclusion as Muhammad Husain deceased had received no injury on the head or any other vital organ which could have immediately rendered him unconscious. Anyhow the medical witness was not put a single question about it so there was no force in this contention that he could not have made any statement when contacted by Zakir Husain Shah P. W. immediately after this occurrence, especially when Muhammad Anwar P. W. had confirmed it at the trial that Zakir Husain Shah P. W. on arrival at the spot had enquired from Muhammad Husain Shah deceased about his misfortune and was told all about it in his presence. We have found no reason to discard his testimony, so we have to accept this part of the statement as well. There was thus no shadow of doubt about the participation of the five appellants in this attack on the deceased and the learned trial Judge had rightly acted on the version of the occurrence incorporated in the first information report lodged with all possible promptitude in the circumstances of this case by Zakir Hussain Shah P. W. [19] caused in this manner as observed by their Lordships of the Supreme Court in Noor Ahmad v. The State (1). l2. We are then left with the last contention of the learned counsel for the appellants that their offence, if established, could not go beyond that under sections 14S-325/149, P. P. C. which calls for analysis of the injuries suffered by Muhammad Husain Shah deceased. There were 14 injuries in all, five being grievous and the rest simple in nature. Six of these injuries were on his hand and the arms, one on the mouth and one on the chest while the remaining six

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were on the legs. Injury No. 1 was declared grievous as all the upper and lower incisor teeth were found shaky by the doctor, who at the same time had observed that these teeth were carious on account of a disease which had made the teeth shaky and there was no mark of injury outside the lips and that the injury may be the result of a fall on the ground. The same was true about injury No. 6 as the doctor had frankly conceded that there was no outward mark of this wound as well, nor there was any swelling over it and it could also be caused by a fall on some hard substance. This admission of the doctor had eliminated two of the five grievous injuries. Of all these injuries, only No. 9 on the right shin was declared sufficient to cause death in the ordinary course of nature due to the haemorrhage and shock resulting therefrom which the doctor conceded had taken place as broken pieces of bone underneath had injured the blood vessels. This analysis of the medical evidence would disclose body had been spared by his weapon, the hatchet, carried by had not at all been put to any effective use as the solitary incised wound found on the person of the deceased was 14'x "x * in the web space between right thumb and right index finger of the hand, and was simple in nature. All this negated any intention to cause the death. It was unfortunate that the ends of the broken pieces of the bone under injury No. 9 had punctured the blood vessels resulting in haemorrhage and shock which in all probability the appellants had never' contemplated when they caused this injury to the shin, and the concession made by the doctor that any ordinary fracture of a shin may not prove fatal would negate the inference that the appellants knew or had reason to believe that such an injury was likely to cause the death of their victim. The appellants could, however, be held responsible for causing grievous injuries to the deceased in prosecution of the common object of their unlawful assembly. In taking this view of the matter we are fortified with the observations made in Fateh Beg v. The State (2) wherein the deceased had received multiple injuries categorised by the doctor under 14 heads including patches of contusions on the right and left side of his chest varying from 5' x 5* and 3' x 3* with six lower ribs on the right side and four on the left side fractured piercing the lungs and resulting in his (2) PLD 1952 Lah. 275 death oo account of shock and haemorrhage, and Rehman, J., (as he then was) observed as under:-- "They actually did cause grievous hurt inasmuch as the ribs of the old man were broken. Unfortunately the ends of the broken ribs entered the lungs of the deceased and killed him but that was in all probability, a result which the appellants never contemplated.'' The same view was taken in Yarn and another v. The Crown (1) wherein the death of the deceased had likewise resulted from shock and haemorrhage from multiple injuries inflicted by sotas including fracture of five ribs. In Ahmad Khan's case (2) the vital parts of the body of the victim were likewise spared and in spite of the fact that the injuries were double the number of injuries in the present case including six grievous injuries, three with sharp-edged weapon on the legs and three with blunt weapons on the left hand and the arm with external haemorrhage and shock leading to the death, their Lordships came to the conclusion that it was not one of those cases which would attract the definition of murder and altered the conviction of the accused to that under section 326/34, P. P. C. only. 13. Learned State counsel had referred us to Falafc Sher and others v. The State (3), but it was a case of continued merciless beating with lathis resulting in his death at * the spot on account of shock and haemorrhage. Most of the multiple injuries suffered by the victim were sheets of bruises varying from 22' x 11', 10'x4", 12'x5J', 12'x 11', 13'x9'. On internal examination it was found that the soft parts beneath the injuries on both the sides were heavily bruised and blood was present beneath the skin. The pleura, the larynx, trachea, the lungs, the pericardium, the heart, the peritoneum, the mouth, the pharynx. Oesophagus, the diaphragm, stomach, pancreas, liver, spleen, kidneys and the

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small and large intestines were all congested apparently because of injury No. 1 which was a sheet on bruises 22'x 11" covering the back of chest and the left side of the abdomen. This analysis of the injuries would disclose that all the vital internal organs had been damaged while in the present case there was no injury on any vital part of the entire body and was thus quite distinguishable from the above-referred case. 14. A reference was also made to Fateh Khan and others v. The State (4), wherein 52 injuries including 13 incised and 4 punctured wounds were caused in the merciless beating given to the victim with spears, hatchets and sotas, Muhammad Siddique v. The State (5) wherein the fatal blow was caused with a Churri of 9' blade on the victim's thigh resulting in cutting away a large vessel and eventual death, Dalmir and others v. The State (6) (2) PLD 1961 Lah. 543 (4) PLD 1963 SC 89 (6) 1970 SCMR 840 wherein the victim was linched to death by a number of blows with a gandasa, which is also a sharp-edged weapon. In all these above-quoted three cases sharp-edged or pointed weapons were effectively used in causing injuries to some vital organs of the victim while in the present case Almost all the injuries were caused with blunt weapon scrupulously avoiding the vital parts of the body so none of these cases would apply to the present case. 15. Asa result of this discussion we dismiss this appeal and altering their conviction to that under sections 148-325/149, P. P. C. sentence each of the five appellants to rigorous imprisonment for seven years with a fine of Rs. 500.00 (Rs. Five hundred) each under section 325/149, P. P. C. The amount of fine, if recovered, shall be paid to the heirs of the deceased as a . compensation under section 544-A of the Cr. Procedure Code,[20] and in case of default in payment of fine each shall undergo further rigorous imprisonment for six months. Their sentence of rigorous imprisonment for one year under section 148, P. P. C. is maintained which shall run concurrently with the sentence under the main offence. Reduction warrants to issue. The revision filed by the complainant for enhancement of sentence would also fail and is accordingly dismissed. . Sentence altered.

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