BABAR SHAH Alias IRSHAD MAHMUD ARSHAD HUSSAIN SHAH AND 2 Others vs THE STATE TILE STATE
These petitions arise out of the same incident where the petitioners were convicted and sentenced to various terms of rigorous imprisonment under sections 148 and 326/149 of the Pakistan Penal Code, and one of the petitioners under section 13 of the Arms Ordinance, 1965. The core legal questions involved the sustainability of convictions for grievous hurt without attributing a specific individual blow, constructive liability under section 149, and the plea of right of self-defence. The Supreme Court held that the convictions were well-founded given the eyewitness and medical evidence, the constructive liability under section 326/149 justified the conviction despite lack of specific attribution for the grievous injury, and the plea of self-defence was rightly rejected. The petitions were accordingly dismissed, affirming the principles of constructive criminal liability and evaluation of self-defence pleas.
- Whether conviction for grievous hurt is sustainable when constructive liability under section 326/149 of the Pakistan Penal Code is applied?
- Can a plea of right of self-defence be raised for the first time before the High Court when it was not taken before the trial Court?
- Whether the recovery of a weapon and eyewitness testimony sufficiently sustain a conviction under the Arms Ordinance?
- Section 148, Pakistan Penal Code
- Section 326/149, Pakistan Penal Code
- Section 13, Arms Ordinance 1965
ORDER
1. SALAHUUDIN AHMED, J.-Both these petitions have been heard together as they arise out of the same incident, and they are now disposed of under one order.
2. In Petition No. 84-R of 1975, the three petitioners have been convicted and sentenced to various terms of rigorous imprisonment under sections 148 and 326/149 of the Pakistan Penal Code.
3. In Petition No. 83-R of 1975 one of the said petitioner viz. Babar Shah has been convicted and sentenced to six months' rigorous imprisonment under section 13 of the Arms Ordinance, 1965. His sentence as well as his sentences under sections 148 and 326/149 of the Pakistan Penal Code were directed to run concurrently.
4. The incident took place in an open place in broad daylight and it has been well proved by four eye- witnesses two of whom were injured In the incident itself. The motive for the offences of rioting and grievous hurt has also been proved the medical evidence disclosed that P. W. Rafaqat Shah had received several grievous and serious injuries, and that he had been confined to the hospital for more than 20 days.
5. In these circumstances there is no substance in the contention that there was no grievous injury on the said witness.
6. Similarly, there is no force in the contention that in the absence of anything to show who was responsible for the grievous injury the convictior of the petitioners for the grievous injury was illegal.
7. This contention fails to take note of the fact that the petitioners have been constructively held guilty under section 326/149 of the Pakistan Penal Code.
8. The plea of right of self-defence was considered by the High Court and it was rightly rejected. The plea was not taken before the trial Court. The nature of the injuries sustained by co-accused Yaqoob Shah did not support the plea. There was no counter-case.
9. It has been proved that petitioner Babar Shah was armed with a danger and he injured P. W.
10. Rafaqat with the dagger. It was proved that the dagger was recovered from him. He has, therefore, been rightly convicted and sentenced under the Arms Ordinance.
11. Both the petitions are accordingly dismissed.