MUHAMMAD HUSSAIN SHAH Versus THE STATE

1. MUHAMMAD YAQUB ALI, C. J .-This appeal under Article 185 (2) (a) of the Constitution has been filed by Muhammad Hussain Shah, Taj Shah and Barkat Ali Shah against their conviction and sentences under sections 302/34, P. P. C. and 324/34, P. P. C. awarded in the first instance by a Division Bench of the High Court at Lahore.

2. Originally, sit persons, the appellants herein and Sultan Shah, Ashiq Shah and Naje Shah were placed on trial before the Additional Sessions s

3. Judge, Sahiwal, on charges under sections 148, 342 and 324 read with section 149, P. P. C., for rioting and causing in pr3secution of the common object of the assembly, the murder of Razaq Ali Shah and inflicting injuries on Pir Badshah, Said Ali Shah, Anwar Shah and Lal Shah, P. Ws.

4. The trial Judge acquitted all the six accused on the finding that the prosecution had fasted to prove its case beyond a reasonable doubt.

5. On a State appeal against the accused, other than Ashiq Shah, a Division Bench of the High Court set aside the acquittal of Muhammad Hussain Shah, Barkat Ali Saab and Taj Shah and convicted them under section 302 read with section 34, P. P. C. and sentenced each to life imprisonment. A separate sentence of 2 years' R. 1. to run concurrently with the main sentence, was awarded under section 324 read with section 34, P. P. C. The appeal against Naje Shah and Sultan Shah was dismissed and their acquittal maintained.

6. The incident, resulting in the convictions mentioned above, took place on 13- r-1965 at about 9 a.m. In the area of village Shabpur, P. S. Hujra. District, Sahiwal Pir Badshah and his son Lal Shah, P. We., were present at their well known as Nawan Khuh. At about 8 or 9 a.m. Muhammad Sharif, P. W., came there and complained to Pir Badahah that he had been given a besting by Naje Shah, accused. lie stated that he had approached Ashiq Shah and complained to him to stop the frequent theft of mangoes by Naje Shah, whereupon Naje Shah beat him up. Muhammad Sharif was, therefore, no longer prepared to keep the garden and wanted his money back. Pa Badshah managed to dissuade Muhammad Sharif from this step and promised that he would accompany him to tae garden and settle the matter with Ashiq Shah. Pir Badshah and Muhammad Sharif then proceeded to the mango garden where they found Ashiq Shah sitting on a cot. Pir Hadshah sat down next to him and remonstrated with him about the behaviour of his son. Sore minutes later Muhammad Hussain Shah, Barkat Ali Shah and Taj Shah, Sultan Shah anal Naje Shah, accused, came there. Taj Shah and Barkat Shah were armed with hatchets while Muhammad Hussain Shah, Sultan Shah and Naje Shah, carried longs. In the meantime Lal Shah and Simi Marian P.Ws., bad also turned up at the garden. Ashiq Shah and Suktan Shah gave out lalkaras. Muhammad Hussain Shah struck Pir Badshah on the right shoulder and Barkat Ali Shah inflicted a hatchet blow on his right leg. Ht that stage Muhammad Sharif, P. W., frightened by the course of events ran away. Lal Shah, P. W., too ran to the nearby fields where his uncles Razzaq Ali Shah and Said Ali Shah were busy uprooting rice seedlings and informed them about the assault on Pir Badshah in the garden. These three then hurried to the mango garden. On the way, they were met by the six accused in the Charri field which adjoins the garden. They gave out a lalkara that they would not be allowed to escape. Naje Shag and Taj Shah inflicted blows on Said Ali Shah with their respective weapons. Razzaq Ali Shah deceased, entreated with the accused to stop, whereupon Muhammad Hussain Shah gave him a ding blow on his head and he fell down. Barkat Ali Shah then struck Razaq Ali Shah on the head with the blunt side of the hatchet. Sultan Shah struck Razaq Ali Shah a ding blow which landed on his nose. Lal Shah, P. W., grappled with Naje Shah and managed to snatch the sang from him. In the meantime Anwar Ali Shah, P. W., armed with a stick had reached the spot. Lal Shah and Anwar Shah, P. Ws., managed to inflict injuries on Muhammad Hussain hhab, Taj Shah and barkat Ali Shah in self defence. Lal Shah and Anwar Shah then ran off to the village to informs their uncle Akbar Shah about the attack. By the time La! Shah and Akbar Shah returned to the Chard field, the accused had fled. Akbar Shah remained at the spot while Lal Shah, P. W., went to Police Station Hujra to report the incident.

7. The accused and the complainant party are related inter se. Ashiq Shah, Muhammad Hussain Shah, Sultan Shah and Harkat Ali Shah and Taj Shah, are real brothers. Naje Shah is the son of Ashiq Shah. The deceased and the P. We. are similarly connected. Pir Badahah, Said Ali Shah and the deceased are real brothers. Lal Shah and Anwar Shah P. Ws., are the son of Pir Badshah. The relationship between the two parties !s based on marriage. Pir Hadshah, Said Ali Shah an-1 the deceased are marled to three sisters of Ashiq Shah and his brothers and a sister of Pir Badsbah is married to Muhammad Hussain Shah. Both parties are resident of village Shahpur in District Sahiwal.

8. The motive for the dastardly attack was a dispute over land belonging to Inam Shah, P. W. He owned about 72 acres of land, of this about 45 acres were being cultivated by Ashiq Shah and his brothers and the remaining 27 acres was under the cultivation of Pir Badshah and his brothers. Inam Shah was only a child when his father died and the land passed on to him. According to him the accused had refused to give him his due share of the produce from the land which was under their cultivation. A few months before the occurrence he had asked the accused that they should either give him his share of the produce or else quit the land.

9. In the F. I. R., lodged at 1 a.m. on the same day, the details of the incident narrated above were mentioned by Lal Shah. Investigation was at first undertaken by Rajah Ali, Head Constable. He prepared the injury statement, the inquest report of Razaq Ali Shah deceased and despatched the dead body to the mortuary for post-mortem examination. Later on A. S. I. Latif Shah, P. W., arrived at the scene at 3 p.m. and took over the investigation. He collected blood-stained earth from tile garden where pir Badshah bad been injured and from the Chard field where Razaq Ali Shah was killed and Said Ali Shah was injured, and sealed it in three separate parcels.

10. Barkat Ali Shah was arrested by A. S. I. Latif Shah on the 14th July. Blood-stained shirt (P/6), blood-stained Chaddar (P/7) and blood-stained vest (P/8) were recovered from his person. He also produced a blood-stained hatchet which was taken into possession.

11. On 16th July S. I. Muhammad Anwar took over the investigation of the case from the A. S. I. He arrested Sultan Shah on the 17th July and recovered a blood-stained shirt and Chaddar from his person, Naje Shah, Muhammad Hussain Shah and Taj Shah were arrested on the 20th July, Sultan Shah, Naje Shah and Taj Shah while in custody led to the recovery of blood-stained stick (P/14), blood-stained Dang (P/15) and blood-stained hatchet (P/16) respectively.

12. The post-mortem examination on the dead body of Razaq Ali Shah revealed four contused wounds around the head and face and one abrasion on the left band. Death was due to compression of the brain caused by the head injuries. All the injuries were caused by a blunt weapon.

13. The medical examination of the injured P. W., disclosed the following injuries ?

1. Lal Shah P. W. 13--

(1) A contused wound ?? x ? ? scalp deep on the right side of top of head.

(2) A swelling 1? ? x 2? on the left temple.

14. Both the injuries were simple in nature and were caused by a blunt weapon within the duration of 6 to 12 hours.

2. Said All Shah P. W. 15-

(1) An incised wound 2? ? x ? ? x ? ?' on the right side of top of head. It was accompanied by swelling 2? ? x 1'.

(2) There was swelling 1? ? x 1' on the left aide of top of head.

(3) A bruise 3? ? x ? ? on the right shoulder.

(4) A bruise 4? ? x 1? on the right fore-arm.

(5) A bruise 3? x 1' on the left leg lower part.

(6) A bruise 3? ? x 1' on the left leg upper part.

(7) A bruise 3 ? ? on the left side of trunk.

(8) Complainer of pain in the left thumb and shoulder.

15. All the injuries were simple in nature. Injury No. 1 was caused by a sharp-edged weapon and the rest with a blunt weapon within the duration of 6 to 12 hours.

16. Pir Badshah P. W. 14-

(1) An incised wound 2? ? x ? ? scalp deep on the left side on fore part of head.

(2) Incised wound 2? ? ?X ? ? on the front of right leg, middle part.

(3) Incised wound ? ? x ? ? x ? ? on the right skin lower part

(4) A bruise 1? ? x 1? on the right outer malleus. Ankle-joint was much swollen and painful.

(5) A bruise 3'x 2' on the inner side of right knee-joint.

(6) A bruise 1? ? x 1? on the inner side of right thigh lower part.

(7) A bruise 3? x ? ? on the right leg.

(8) A bruise 3-3/4? x 1? on the outer side of left knee joint.

(9) A bruise 3? x 1? on the left buttock lower part.

(10) ? A bruise 5? ? x 1? on the left buttock upper part.

(11) ? A bruise 3? X 1? ? on the front of right shoulder.

(12) ? A bruise 7? ? x 1? on the left side of trunk.

(13) ? A bruise 2? ? m I' on the outer side of left wrist-joint.

(14) ? He complained of pain in the right forearm.

4. Anwar Ali Shah P. W. 16-

(1) A bruise 1? x 1? on the nape.

(2) An abrasion ?? x ?? on the dorsum of right foot at the base of right little finger.

(3) A bruise 1? ?x 1? ? on the right upper arm.

17. All the injuries wore simple caused by a bloat weapon with the duration of 12 to 36 boors.

18. The medical examination of the injured accused revealed the following injuries on their person ;

1. Barkat AK Shah-

(1) Contused wound 1? ?x 1/6' scalp deep on the right side of the fore part of head.

(2) An abrasion 1" x 1" on the right shoulder.

(3) An abrasion 1? ? x 2' on the right scapula upper part.

(4) An abrasion ? ? x ? ? ? on the outer side of left knee-joint.

19. All the injuries were simple and caused by a blunt weapon within the duration of about 24 to 48 hours.

2. Sultan Shah-

20. There was some swelling of thenar eminence of the left hand. The injury was simple caused with blunt weapon within the duration of 5 to 7 days.

3. Taj Hussain Shah

(1) An abrasion 2? x 1? on the right upper arm.

(2) A bruise 2? ? x 1? ? on the right upper arm 1' medial to injury No. 1.

(3) An abrasion 2? x ? ?' on the back middle part.

(4) A bruise 2' x 1' on the left side of the back lower part.

(5) A contused wound 2? x ? ? scalp deep on the right side of top of head.

21. All the injuries were simple and were caused with blunt weapon within the duration of 7 to 10 days.

5. Muhammad Hussain Shah-

(1) A contused wound 2' x 1/6? almost healed on the left side of top of bead.

22. The injury was simple caused by a blunt weapon within the duration of about 15 days.

23. In their statements under section 342, Cr. P. C. and before the trial Court, the accused acknowledged their relationship inter se and with the complainant party. They further acknowledged that they cultivated about 45 acres of land as tenants of Inam Shah but mentioned that they gave Inam Shah his full share of the produce from the land. They denied that Inam Shah had complained that he was not given full share or that he had threatened to take the lands away from them with the assistance of Pir Badshah and his brothers. They also admitted that Inam Shah had sold the fruit of the mango garden to Muhammad Sharif P. W. for one year. Ashiq Shah and Sultan Shah denied having had anything to do with the occurrence which resulted in the death of Razaq Ali Shah and injuries to Pir Badahah, Anwar Shah, Lal Shah and Said Ali Shah. P. Ws.

24. Muhammad Hussain Shah, Taj Shah, Barkat Ali Shab, appellants and Naje Shah, acquited accused, admitted the occurrence. They pleaded the At on that morning of the occurrence the she-donkey of Muhammad Sharif, P. W., damaged the crops of Naje Shah at which he was given a beating by Naje Shah. Thereupon Muhammad Sharif went to Pit Badihah to complain about the beating. Shortly after that Pir Badshah, Razaq Alt Shah, deceased, Said Ali Shah, Lal Shah and Anwar Shah came to their. Chard field armed with sticks and hatchets in order to punish We Shah. Najo Shah managed to run away and the complainant party attacked the three appellants, who were thus compelled to defend themselves, and in the process inflicted some injuries on the assailants. Taj Shah admitted to having wielded a hatchet and the recovery of hatchet (P/16). No evidence was led is defence.

25. ??????????? The trial Judge held that the prosecution had failed to prove its case for the reasons that the ocular evidence was interested and could not be relied upon without independent corroboration; that the motive was not proved and that the recoveries could not be treated as corroboration because four of the accused were injured and they had put up a counter version of the occurrence. He also rejected the defence version but held that since the prosecution had failed to prove its case independently, the accused were entitled to acquittal.

26. The learned Judges of the Division Bench after a careful analysis of the judgment of the Court below formed the view that the trial Judge had made an erroneous approach to the facts of the case. Since both sides had admitted the occurrence, the learned Judges were of the opinion that the essential aspect of the case which fell for consideration was whether the prosecution had proved its case and whether the accused had made out a case of acting in exercise of their private right of self-defence.

27. In the opinion of the learned Judges the injuries suffered by the eye. witnesses proved their presence on the spot ; the occurrence having taken place in broad day light there vas no possibility of mistaken identification of their assailants ; and since the P. Ws. were closely related to the accused. they had no motive to falsely implicate the accused. On the basis of these facts the learned Judges came to the conclusion that the ocular evidence was reliable. The learned Judges also formed the view that on account of the close relationship between the parties and the surrounding circumstances no corroboration of their evidence was required. In any case the motive proved was sufficient to corroborate the ocular evidence. They also held that the recovery of the hatchet (P/16) admitted by Taj Shah, was an independent piece of corroboration. On these grounds, the learned Judges concluded ;

28. "Although all the five accused respondents can be convicted on the basis of the above-mentioned prosecution evidence yet as an abundant caution we have decided to convict only those who admittedly received injuries during the occurrence. Accordingly, we convict Muhammad Hussain Shah. Taj Shah alias Bille Shah, and Barkat Ali Shah, accused respondents . . . . . . . . : '

29. We have beard the learned counsel for the appellants at great length and, with his assistance re-examined the evidence on record.

30. We agree with the learned Judges in the High Court that appreciation of the evidence in the case should proceed in the light of the admitted facts.

31. It was admitted by the defence that Naje Shah beat, for whatever reason, Muhammad Sharif, P. W. 17, and that this incident triggered off the sequence of events which culminated in the death of Razaq Ali Shah in Charri field and injuries to Pir Badshah, Said Ali Shah, Anwar Shah and LAI Shah, P. Ws. Muhammad Shari?, P. W. deposed to the altercation with Naje Shah and the going of Pir Badshah to the mango garden to intercede on his behalf and the subsequent attack on Ptr Badahah. No question was put to him in cross-examination to imply that he harboured any sustained enmity towards the accused to falsely implicate them for the murder of Razzaql Ali Shah. Apart from the fact that Muhammad Sharif had bought the fruits of the mango garden through Pir Badshah, P. W., there is no evidence to suggest that Muhammad Sharif had any deeper connection with Pir Badshah or they shared a community of interests sufficient to prompt Muhammad Sharif to depose falsely against the accused on a murder charge. Nor is it possible to accept on the basis of a mere indirect business transaction that Pir Badshah and the other members of his family would take up cudgels on his behalf and launch, as maintained by the defence, an armed attack on their own wives' brothers simply on account of the beating given to him by Naje Shah. The account given by Muhammad Sharif is further corroborated by the recovery of blood-stained earth from the place where Pir Badshah was injured. A similar account of the occurrence at the mango garden was given by the informant Lal Shah, P. W. 1n the light o these facts the incident in the mango garden cannot be seriously questioned and it affords considerable weight to the ocular evidence furnished by Muhammad Sharif.

32. The subsequent fatal encounter in the Charri field is admitted by the appellants. Keeping in mind the close relationship that exists between the eye-witnesses and the appellants the trial Judges view that . . . . . all the eyewitnesses produced by the prosecution are interested against the accused and their oral statements cannot be accepted without independent corroboration" is not warranted by the facts of the case.

33. Ashiq Shah admitted before the trial Court that he had cultivated about 45 acres of land belonging to Inam Shah, P. W. The crucial point in this connection is his admission that this land had previously been allotted to them. Pir Badshah had stated this land was cultivated by the accused since after independence. There was thus continued possession cat' the land by them either as owners or as tenants. It is reasonable to assume, in the light of the previous allotment, that the accused had not reconciled to becoming mere tenants on this land. This accounted for their not giving to Inam Shah his due share of the produce. Ashiq Shah and his brothers are the maternal uncles of Inam Shah and there is no material evidence of any motive on his part to falsely allege that he was being denied his due share as a result of which he planned to dispossess them, and give the land to Pir Badshah and his brothers. The prospect of losing this land was the motive to attack the deceased and his partisans and by itself this circumstance provides sufficient corroboration of the ocular testimony furnished by the injured P. Ws.

34. Another aspect of the case which was not accorded due significance is the comparative number of injuries sustained by the two parties in the occurrence. While the injured P. Ws., and the deceased suffered about 49 injuries, the accused have only 11 injuries which were simple in nature. The trial Judge discounted the argument advanced by the State counsel that the relatively meagre number of injuries suffered by the accused indicated that they were the aggressors. It was observed, "Number of injuries is not the true criterion to hold, which party was the aggressor. Some person may be more agile and active than the other. Some may be quick in causing injuries than the others." Reliance for this view was placed on the case reported as Inayatullah and another v. The State P L D 1966 Lah.

8. The facts of the two cases are clearly distinguishable. In Inayatullah's case, the fight bad taken place between two persons on either side. The learned Judge who decided this case, on an examination of the sequence of events which led to the fight, formed the view that on these facts it would be wrong to hold that the accused were the aggressors merely on the basis of the number of injuries suffered by the complainant party. In the instant case there are 4 injured P. Ws. and one deceased person on one side and three injured accused on the other, The place where the two incidents took place, the nature of arms used by the accused and injuries caused by them left no doubt that the accused and not the complainant party were the aggressors. The relative numb :r of injuries suffered by the parties! bears out the ocular evidence, that Pir Badshah was first attacked in the mango garden and thereafter the other 3 P. Ws. and the deceased who had hurried to his rescue, were, in turn, attacked by the 5 of the accused in the nearby Charri field.

35. Ashiq Shah and Sultan Shah have denied any involvement in the occurrence. They denied their presence at the spot and alleged that they were falsely implicated due to their relationship with the appellants. Sultan Shah, when asked to explain the injury on his person stated that he had received it in the Kabbadi Match. The appellants stated that there was only one incident in their Charri field, where they were attacked by the complainant party and were compelled to retaliate in self-defence.

36. Both Courts below have rejected the plea of self-defence raised by the' accused and rightly so for, in the facts of the case there was no occasion for the deceased and his companions to attack Naje Shah. In fact if such an attack was mounted, Naje Shah would have come in for a much severer beating. In that case, neither he nor Taj Shah could have succeeded in belaboring the deceased and the injured P. Ws.

37. As to the recovery of the weapons from the accused, Taj Shah admitted that hatchet (P/16) belonged to him. It was stained with human blood. The recovery of other weapons, which included blood-stained dangs, was denied though Barkat Ali Shah, appellant, admitted having caused one stick blow to Lal Shah and the other to Said Ali Shah P. Ws. On examination of the evidence pertaining to these recoveries more particularly in view of some of the admitted facts, we are inclined to rely on the recoveries though, as held by the High Court, the direct evidence produced by the prosecution wasp by itself, sufficient to maintain the appellant's conviction by the High Court: lastly it was contended by the learned counsel fox the appellants that the imposition of life imprisonment by the High Court was illegal since the punishment provided in section 302, P. P. C. for the offence of murder at the time when the occurrence took place was transportation for life. The penalty for murder, at the time of occurrence, was transportation for life, as submitted by the learned counsel, send the learned Judges have not given any reason for imposing the higher penalty of imprisonment for life. Therefore, we can only presume that the sentences passed had reference to the amendment of section 302, P. P. C. by the Law Reforms Ordinance, 1972, by which the words "transportation for life" in section 302 were substituted by the words "imprisonment for life". Learned counsel challenged the construction, thus placed, upon the amendment of the section and relied on Article 12 of the Constitution. It is not necessary to examine the effect of Article 12 because statutes which affect rights and penalties are presumed to be prospective. Maxwell observed

38. " . ... It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this. would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are "fairly evenly balanced that interpretation should be chosen which involves the least alteration of the existing law."

39. We agree with this passage and we may point out here that in Noor Elahi v. Ch. Zafarul Haque and others P L D 1976 S C 557 the penalty imposed by this Court for a murder committed prior to the promulgation of the Law Reforms Ordinance was transportation for life. The same view has been taken in several other unreported judgments of this Court, including Ghulam Muhammad v. Sultan and others (Criminal Appeal No. 25 of 1975). Accordingly we alter the sentences passed against the appellants for murder to transportation for life but in the circumstances of the case we direct that the sentences against the appellants under sections 302/34 and 324/34, P. P. C. shall run consecutively and not concurrently as directed by the learned Judges.

40. With this modification in the sentences, we dismiss the appeal.

41. DORAB PATEL, J.-I agree.

42. QAISER KHAN, J.-I agree.

43. S. A. H. ?????????????????????????????????????????????????????????? Appeal dismissed. Sentence modifide.