SULTAN Versus STATE
Fazal Hussain (55), Noor Din (60), Abdul Ghafoor (30), Sultan (50), Ahmad Din (65) and Manzoor Ahmad (25) were tried by the learned Sessions Judge, Sialkot, under sections 148 and 460 as well as 302, 307 read with section 149 of the Pakistan Penal Code. Fazal Hussain, Abdul Ghafoor and Noor Din accused were acquitted, while Sultan, Ahmad Din and Manzoor Ahmad were convicted under sections 460, 325 and on three counts under section 323 read with section 34 of the Pakistan Penal Code and were sentenced to three years' rigorous imprisonment, seven years rigorous imprisonment and six months rigorous imprisonment (on each count) respectively. The sentences were directed to run concurrently. The convicts have appealed while Abdul Ghani (P. W. 12) has filed a revision petition praying for the conviction of all the six accused on the original charges and in the alternative for the enhancement of sentence passed under section 460 of the Pakistan Penal Code.
2. Fazal Hussain accused is the father of Abdul Ghafoor and Manzoor Ahmad accused. Noor Din, Sultan and Ahmad Din accused are brothers and their sister is the wife of Fazal Hussain accused. From the complainant side, Muhammad Ramzan (P. W. 9) Bashir Ahmad (P. W. 10), Abdul Ghani (P. W. 12) are the sons of Allah Ditta brother of Din Muhammad and Mst. Begum Bibi (P.W. 11) is their sister. The parties settled to adjoining houses in village Panwar. District Sialkot, at the time of Independence. The house of Din Muhammad deceased is situated to the north of the house of Fazal Hussain accused and these are divided by a kacha wall. There was a. galla (an opening in the wall in the north eastern corner and a corresponding galls in the south eastern corner of Din Muhammad's house so that men and cattle coming from the lane on the north of Din Muhammad's house could go to the house of Fazal Hussain accused crossing the courtyard of Din Muhammad's house.
3. About one and a half year before the present occurrence, Din Muhammad deceased and his relatives began to object to the use of their courtyard as a passage. On 26 th November 1969, Fazal Hussain accused filed a civil suit to restrain lain Muhammad deceased, Muhammad Ramzan. Bashir Ahmad and Abdul Ghani P. s. and others from interfering with their right of passage. Fazal Hussain accused also applied for a temporary injunction in this connection, which was issued on 29th January 1970, till 16 th February 1970 for maintaining the status quo. As there was a holiday on the last mentioned date, fresh notices were Issued to the parties for 14th April 1970, when status quo was directed to be maintained. On 24th April 1970, the plaintiff applied for taking action against the defendants for fixing a door in contravention of the above order. This application was pending when the occurrence took place.
4. On the evening 'of 19th February 1971, Fazal Hussain, Abdul Ghafoor, Manzoor Ahmad accused tried to pass their cattle through the disputed door. Din Muhammad objected and bolted the door from inside. This was resented by the accused, who went away threatening him with dire consequences. The same night, the appellants came along with Noor Din, Abdul Ghafoor and Fazal Hussain acquitted accused at about 2.00 a,m. Din Muhammad deceased, Muhammad Ramzan. Bashir Ahmad, Abdul Ghani and Mst. Begum Bibi P. Ws. Mst. Haziran Bibi wife of Bashir Ahmad and Mst. Rashidan Begum, woke up and went towards the disputed door. The accused broke it and entered the courtyard. Noor Din accused was armed with a pistol, Abdul Ghafoor accused had a churri, and the remaining four accused carried dangs. Fazal Hussain accused gave a dang blow on the head of Din Muhammad. Sultan accused also gave a dang blow on his head. Din Muhammad fell down. After this, Sultan, Manzoor Ahmad and Ahmad Din accused gave him more dang blows. When Mst. Begum Bibi P. W. tried to intervene, Abdul Ghafoor accused gave churri blow on her left hand. She was also given dang blows by Ahmad Din. Sultan accused gave a dang blow to Muhammad Ramzan P. W., who fell down, after which Fazal Hussain, Manzoor Ahmad and Ahmad Din gave dang blows to him. Noor Din went on shouting that if any one came near, he would be killed. The accused then left the spot. While leaving they threatened that if any one went to the police station for report, he would be killed. The occurrence was also witnessed by Abdul Ghani. Mst. Nazir Bibi and Mst. Rashidan Bibi, who had gone on the roof of their house and raised an alarm. It was also witnessed by Muhammad Hussain, Ghulam Nabi and Ismail, who were attracted by the alarm.
5. No one reported the occurrence to the police. Din Muhammad and Muhammad Ramzan, who were seriously injured, were taken to the District Headquarters Hospital, Sialkot, Bashir Ahmad and Mst. Begum Bibi P. Ws., who were also injured, went with them. They were examined by Doctor Mehtab Akhtar (P. W. 1), except Mst. Begum Bibi, who was examined by Lady Doctor Khadija Abdullah (P. W. 2). Their injuries are as follows :‑
Injuries of Din Muhammad:
(1) Lacerated wound 1 ' x ' bone deep on the anterior of right side of skull 1 from middle line.
(2) Lacerated wound 1 ' x bone deep on right side of skull ' from injury No. 1.
(3) Contusion 1 'x 1' on top of right shoulder.
(4) Contusion 4' x 1' on left scapular region.
(5) Swelling 2 x 1' on back of right waist.
(6) Abrasion 'x ' on back of left fore‑arm lower part.
(7) Abrasion 1/3 'x ' on front of left knee.
Injuries Nos. 1, 2 and 5 were kept under observation. X‑ray of skull was advised. Rest were simple. All the injuries were caused with blunt weapon within a duration of six to twelve hours.
Injuries of Muhammad Ramzan P. W.
(1) Lacerated wound 'x 'x scalp deep on left side of about middle of skull 3 ' from top of left ear.
(2) Abrasion 1' x 1/8' with swelling 1 x 1' on back of right index finger.
(3) Abrasion 1' x ' with swelling 4' x 3' on outer side of right elbow.
(4) Two abrasion ' x 1/8' each on front of upper part of left leg.
(5) Contusion 4'x 1' on back of upper part of left thigh.
(6) Contusion 3 ' x 3/3' on outer side of upper part of left chest.
(7) Contusion 3 ' x ' on outer side of middle of right chest.
(8) Contusion 4' x ' on the lumbo dorsal spine.
(9) Swelling 2 ' x ' on right side of neck.
Injuries Nos. 1 to 3 were kept under observation, rest of the injuries were simple. All the injuries were caused with blunt weapon within a duration of six to twelve hours.
Injuries of Bashir Ahmad P. W. :
(1) Abrasion 1/3' x ' with swelling 3' x 2' on inner side of right elbow.
(2) Contusion 6' x ' on back of upper part of left chest.
Injury No. 1 was kept under observation for which X‑ray of right elbow was advised. Injury No. 2 was simple. Both the injuries were caused with blunt weapon within a duration of six to twelve hours.
Injuries of Mst. Begum P. W.
(1) A contused swelling 1' x ' on the left side of chin.
(2) An abrasion ' x ' in the middle of injury No. 1.
(3) An incised wound x 1/8' x skin deep on the palmer surface of left hand just below the root of left thumb.
(4) An abrasion ' x 1/8' x skin deep on the back of left fore‑arm two inches above the left wrist.
All the injuries were simple. Injury No. 3 was caused with a sharp. edged weapon while the rest were caused with blunt weapon. Their duration was within twelve hours.
6. At 1‑20 p.m., on 20 th February 1971, Muhammad Ayub Sub Inspector, Chaprar (P. W. 17), received a telephonic message from the civil Hospital informing him about the admission of Din Muhammad. He went there and recorded the statement of Din Muhammad Exh. P. R. on the same day at 2‑10 p.m. This statement was sent to Chapprar Police Station, where it was received by Javed Aftab A. S. I. (P. W. 16) at 7‑30 p.m. He prepared the formal first information report Exh. P. R./1 and registered the case. Next day, i e. on 21st February 1971, he went to the scene of the occurrence and started the investigation. He arrested Manzoor Ahmad accused on 23rd February 1971, and recovered dang Exh. P. 8 from him on 24 th February 1971. Muhammad Ayub Sub‑Inspector took over the investigation on 2nd March 171. On receipt of ruqqa Exh. P. O. about the death of Din Muhammad, he went to the hospital on 2nd March 1971, and sent the dead body to the mortuary for post‑mortem examination. He then went to the spot on 3rd March 1971, where Abdul Ghani P. W. pro duced lantern Exh. P. 13 and Kharak (door plank) Exh P. 14 before him. He arrested the remaining five accused the same day. Noor Din accused produced his licensed pistol Exh. P. 9, and Abdul Ghafoor accused produced churri Exh. P. 10 before him. Sultan accused produced dang Exh. P. 11 and Ahmad Din accused produced dang Exh. P. 12 before him. The Sub. Inspector also took into possession post‑card Exh. P. 15, which was handed over to Muhammad Din (D. W. 4). This post‑card relates to the alibi of Fazal Hussain accused.
7. Doctor Mehtab, Medical Officer, District Heed‑quarters, Hospital, Sialkot (P. W. 1) held the autopsy on the dead body of Din Muhammad and noticed the following injuries:‑
(1) An almost healed wound 1 ' long on anterior part of right side of skull 1 frown middle line.
(2) An almost healed wound ' long on right side of skull ' outer to injury No. 1.
(3) An almost healed abrasion " x ' on back of lower part of fore‑arm.
(4) An almost healed abrasion 1/3 'x " on front of left knee.
On internal examination, tie found that there was depressed fracture of right frontal bone under injury No. 1. On the inner surface of the depressed fracture, a blood clot was present. The membrane was congested and the brain showed petechial haemorrhage. Both lung, the liver, spleen and kidneys were congested. Stomach was healthy and contained 2 ozs. of fluid. In the opinion of the doctor, death was due to shock and haemorrhage resulting from the fracture of skull and injury to the brain caused by injury No. 1. The injury was sufficient to cause death in the ordinary course of nature. Rest of the injuries were simple. All the injuries were caused with a blunt weapon. Death was accelerated by tetanus.
8. All the accused denied guilt and ascribed the case to enmity. Fazal Hussain accused stated that he was in Chak No. 18 of Okara Tehsil in District Sahiwal, in connection with Dasveen (tenth day ceremony) of the death of Haji Roshan Din. Noor Din accused stated that he vas in Malangpur village on the day of the occurrence. Abdul Ghafoor ace use a pleaded that he was not present at the spot. He produced certified copy Exh. D. 1. of the statement of Ismail P. W. against him it criminal case. Sultan, Ahmad Din and Manzoor accused stated that the trouble arose because the wooden door, which was fixed by Din Muhammad decease) and his relatives on the night of the occurrence in defiance of the order of the Civil Court, fell down as their cattle rubbed against it. The party A Din Muhammad began to beat the cattle with clangs and this led tea a riot in which several persons took part. Each accused added that he could not say whether he hit the deceased or any prosecution witness hit him.
Akbar Shah (D. W. 1), Ghulam Rasool (D. W. 2), Muhammad Amir, (D. W. 3) and Munshi Muhammad Din (D. W. 4) were produced to prove the alibi of Fazal Hussain accused. Azhar Hussain, Ahmad, Civil Judge, Sialkot, (D. W. 5) deposed about the civil case between the parties. Mr. Nazir Ahmad Bajwa, Advocate (D. W. 6) deposed that he inspected the spot as a local Commissioner on 4th September 197(1, and prepared plan Exh. D. 10.
9. The trial Court has referred to an order of the civil Court allowing the defendants (Din Muhammad etc.) to fix a door in the galla subject to keeping it open from 4 a.m. to 10 p.m. Azhar Hussain, Ahmad of the civil Court deposed that the order was passed on 31st July 1970. but the evidence showed that his order was passed on 31st July 1970, i.e. more than six months after the occurrence. The correct position is that it was fixed near about 27th April 1970. Vide application of Fazal Hussain as plaintiff (copy Exh. P. Z.). In this application, be complained that Din Muhammad, Allah Ditta, Muhammad Bashir and Abdul Ghani defendants had com pletely blocked their passage by fixing a door in the galla in violation of the order of the Court to maintain the status quo and action should, therefore, be taken against them for doing so. The reply of the defendants was that the door was fixed on 18th February 1970, i.e. nearly two months before the grant of a temporary injunction on 14th April I 70. The plaint of Fazal 1‑lusrain shows that no door had been fixed by the time the plaint was filed. If a door had been fixed long before 27th April 197(), he would have brought the application for taking contempt proceedings at that time. Instead of exercising his right to remove the door as soon as it was fixed, he chose to approach the civil Court for redress. As no speedy relief was granted, his relatives seemed so have got restive and decided to break open the door on the night of the occurrence. The defence of Sultan, Abroad Din and Manzoor accused that the door was fixed on 19th February 1971, when it was pulled down by their cattle is highly improbable acid is against what Fazal Hussain himself had stated in his application filed in the civil Court.
10. Din Muhammad and Ramzan were seriously injured while none received even a scratch from the side of the accused. But no one went to report the occurrence to the police, although the police station was only two miles from the village and although Ghulam Nabi who is a lambardar was also said to have witnessed the occurrence. The complainant‑party did not even make any report to the police at Sialkot, when the injured persons were taken there. The police came to know about the matter only when they were informed about the arrival of the injured persons in the hospital. They obviously avoided the police because they had fixed the door in violation of the order of civil Court. .
11. The prosecution case is based on the evidence of two sets of witnesses.
The first set includes Din Muhammad (deceased), Mst. Bhagan wife of Allah Ditta and a brother of Din Muhammad, as well as Ramzan, Abdul Ghani arid Muhammad Bashir P. Ws. sons of Allah Ditta. Except first. Bhagan, they are all defendants in the civil suit also. Their presence at the spot would be natural and probable except that of Abdul Ghani. This witness is employed as a Dispatcher in the Post Office at Sialkot, which is twelve miles from his village. He has rented a house in Sialkot, and not, therefore, likely to return home every evening as alleged. The fact that he is the only person in this set of witnesses, who was not injured also indicated that he was not present at the spot.
12. The second set includes Ismail, Muhammad Hussain and Ghulam Nabi, who claim to have come from their houses on hearing the noise and seen the occurrence. But they all seemed to be connected with the com plainant‑party. Ismail and his brother Dhonda (a witness of recoveries) are co‑defendants with Din Muhammad etc. in the civil suit. Although he was served as a defendant in the suit before be appeared as prosecution witness in the Committing Magistrate's Court, he tried to conceal this fact by pleading lapse of memory. He and Muhammad Hussain were prosecuted together in a criminal case but in spite of admitting this fact before the Committing Magistrate, he tried to deny it at the trial. It is true that this criminal case was filed after the present occurrence but it is valuable as evidence of their association. In his turn, Muhammad Hussain is connected with Ghulam Nabi, whose daughter is married to his son. In spite of admitting this relationship in the Court of the Committing Magistrate, Muhammad Hussain tried to deny it at the trial, Ghulam Nabi, the last witness of this batch, was inimical because he gave evidence against Noor Din accused in a cattle theft case and also appeared as a witness against hire in a mutation case in which the mutation in favour of Noor Din was cancelled. All these three witnesses went with the injured to Sialkot and returned together to the village in the same conveyance.
13. The occurrence took place in the abadi of the village, but no disinterested witness has come forward to support the prosecution. A jat named Muhammad Sharif was reluctantly conceded by the eye‑witnesses to have come to the spot, but although he was cited as, a prosecution witness, he was given up at the trial.
14. This is not all. The version of the occurrence given by the P. Ws. is not satisfactory in all respects. Noor Din accused is said to have brought pistol but he did not fire a single shot. It is alleged that he simply threatened the by standards with it, by shouting that they would be shot, if they intervened. If he had cone with a pistol and had threatened to use it in case of obstruction, Din Muhammad, his brother's wife and his nephews would not have had the courage to go near the door. As he was known to possess a licensed pistol, he could easily be accused for having carried it, He pleaded that he was in Malangpur village on the night of the occurrence and he produced Nawab Din, Bakht Ali, Siddique and others before v. Ayub Sub‑Inspector, who supported his plea. The part ascribed to Abdul Ghafoor accused is also suspicious. He is said to have brought a churri, but he did not use it throughout the occur rence except in inflicting a simple injury on the hand of Mst. Bhagan. No blood was found on the churri, recovered from him. Dr. Mehtab admitted that this injury could be caused by a friendly hand. Be that as it may. I am not prepared to hold that Abdul Ghafoor had brought and used it. This accused also denied his presence during the occurrence though he did not claim to have gone out of the village.
15. The case against Fazal Hussain is still more doubtful. He is the Headmaster of a school in Najwal. If he was inclined to take the law in his own hand, he would not have allowed the door to be fixed instead of going to the civil Court for redress. It appears that his relatives went to break the door and he was involved because he had filed the civil suit against the complainant‑party. He has produced reliable oral and documentary evidence to show that on the night of the occurrence, he was in Chak No. 18 of Okara Tehsil, District Sahiwal, in connection with the Dasween of his relative, fie has been supported by four witnesses. Muhammad Rafiq D. W., a son of Roshan Din (deceased) deposed that Fazal Hussain had attended the Dasween ceremony of his father on 19 th February 1971. He also identified post‑card Exh. D. 15 which was sent by his brother Muhammad Bashir to Muhammad Din D. W. to inform him about the matter. He is the husband of Mst. Bakht Bibi, a niece of the deceased. Muhammad Bashir was summoned to prove the writing of the postcard, but as he had left for Karachi, Muhammad Rafiq was produced in his place. Muhammad Din informed Fazal Hussain about the matter on 14th February 1971. The latter then sent application Exh. D. 5 to his school for leave from 18th to 20th February 1971. This application was received by Ali Ahmad Shah D. W, a teacher of his school at Najwal and the leave was sanctioned by Ghulam D. W., the Headmaster, Government Middle School Kanpur (who also controlled the School at Najwal) by order Exh. D. 511.
16. There is so doubt teat Din Muhammad, Ramzan. Muhammad Bashir and even Mst. Bhagan, were injured in a fight which took place near the door in dispute. The injured prosecution witnesses must have seen the occurrence and Identified the accused who were familiar with them. Even Ismail, Muhammad Hussain and Ghulam Nabi could have seen the assailants in the light of the lantern which was burning in the verandas although they were not likely to have seen the occurrence from start to finish. The learned trial Court disbelieved the presence of a lantern because the police did not take it into possession promptly. This delay did not, however, matter because the lantern was mentioned in the first information report. The therefore, be rejected altogether. Of course, against Fazil Hussain, Noor Din and Abdul Ghafoor reason, why it should not be trusted against Sultan, Ahmad Din and Manzoor accused, who did not deny their presence at the spot and whose version of the occurrence is ridiculous. I, therefore, agree with the trial Court that they took part in the attack. As Sultan gave only one blow on the head of Din Muhammad he cannot be made respon sible for both the blows and it cannot, therefore be held that the blow which fractured the skull was given by him. The acquittal of Fazal Hussain also could not make him liable for both the blows. Further there is also the admission of Dr. Mehtab that the possibility of the survival of Din Muhammad could not have been excluded if tetnous had not supervened. I, therefore, consider that the conviction has been rightly recorded under sections 325/34, P. P. C. The convictions under section 460 and 323/34, P. P. C. are also proper and are maintained.
There is no ground for interfering with the sentences passed under section 460. P.P.C. and 324/34. P. P. C. But the sentences awarded under section 325/34, P. P. C. need reconsideration. It cannot be ignored that the complainant‑party had deprived them of a passage which they had used for a long time. When the complainant‑party tried to obstruct them Fazal Hussain approached the civil Court for redresses. Even when they subsequently fixed the door and blocked the passage he resorted to the civil Court for help. It was when the accused party did not succeed in obtaining a speedy relief from there they took the law in their own hands out of frustration After taking these facts into consideration I reduced the sentence of Sultan to five years' Q. I, under section 325/34, P. P. C The sentences of Manzoor and Ahmad Din are reduced to three years' R. I. each on this count. All the sentences will run concurrently. The appeal is accepted to his extent only. The revision petition is devoid of force and therefore dismissed.
Order accordingly.