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Criminal Appeal No. 70 of 1966/Miscellaneous Application No. M‑90 of 1966, decided on 11th August 1967.

S. 302 read with Ss. 149 & 148‑Witnesses themselves accused in a counter case in same occurrence making no attempt to account for injuries suffered by accused‑‑Deposition of such witnesses, held, not worthy to be relied upon.

Ss. 302, 323 & 321 read with Ss. 148 & 149‑Witness deposing in lower Courts that 15 persons on accused's side participated in fight and that he could identify only three of them without specifying any of accused as author of injuries on deceased and others and saying nothing about origin of fight between parties‑Apportioning liability of any of accused difficult in circumstances of case‑Evidence, held, of no consequence to prosecution.

M. H. Junejo for Appellants.

Murtaza Hassan for A. A.‑G. for the State.

Date of hearing : 17th July 1967.

‑‑Karim Bux, Hayat, Gobram, Abdul Rehman, Bhagio and Habib, along with Bhaduro alias Bahadur and Duro alias Dur Muhammad co‑accused, residents of village Risaldar, Taluka Thul, District Jacobabad, were tried by Mr. Muhammad Yusuf C. Khawaja, Additional Sessions Judge, Jacobabad, for offences under sections 302, 324 and 323 read with section 149, P. P. C., and section 145, P. P. C. Bahadur and Dur Muhammad were acquitted of all the charges. Karim Bux, Hayat, Gohram, Abdul Rahman, Bhagio and Habib were convicted under sections 316/141) and 147, P. P. C. and were sentenced to seven years' R.I. each under section 326/149, P. P. C. and one year's R. I. each under section 147. P. P. C. Both the sentences were ordered to run concurrently. The convicts have appealed.

2. The prosecution case is briefly set out in the first informa tion report which was made by one of the witnesses for the prosecution, namely, Moula Buy P. W. who happened to be the cousin of the deceased Bachal. The incident took place ors 25th July 1964 at about tripahri time (4 or 4-30 p.m.) in the area of village Risaldar. The first information report was lodged at Police Station Outpost Mirpur, District Jacobabad, on 46th July 1964, at 1‑30, a.m. The distance from the scene of occurrence Deh Chana near village Risaldar to Police Station is three: miles. The first report seta out the case that has been given in Court by the prosecution witnesses and it would be convenient to refer to the first information report in extenso; ‑‑

"I and my cousins Bacho and Azizullah sons of Achar Burim reside at village Risaldar and do 'Rahaki' (cultivate the land) gal' Wadero Jan Muhammad Khan Panhwar, Accused Duro, Hayat Bahadur, Gohram, Karim Bux and Rehman also reside in the same village. Previously, Duro and his men used to cultivate the land of Wadero Jan Muhammad Khan Panhwar. But about three years back, Wadero Jan Muhammad Khan termi nated their tenancy and gave us the land for cultivation. There upon, Duro and his men had become annoyed with us and threatened us with dire consequences if we cultivated the said land. We had informed of this to Wadero Jan Muhammad Khan, who asserted that he was the owner and not Duro party and that we should not worry abort anything. But for all that, Duro and his men used to extend threats to us from time to time. Yesterday to the evening I was picking paddy seedling from the squares of my land and Bacho and Azizullah both sons of Achar Buriras were picking seedlings from their squares when at 'Tipahri' time there appeared Duro son of Karim Bux, Hayat son of Dttro, Bahadur son of Duro, Karim Bux son of Duro, Gohram and Rehman both sons of Idan and Habib arid Bhagio both sons of Daru Buriras, all of whom were armed with hatchets. Bacho protested to them that their cattle had caused damage to the crop and that they should control them. On this, Duro abused him and asked him to be then alert as we had cultivated the land for long. So saying Duro asked his companions to attack him and not to spare. Thereupon, Hayat, Karim Bux and Rehman rushed and gave hatchet blows to Bacho. Bhagio and Duro gave hatchet blows to Azizullah. Bacho and Azizullah raised cries. I went running towards that side, whereupon Duro shouted at his mesa to attack me as well. On this, Gohram, Bahadur and Habib came and gave hatchet blows to me. We all raised cries. Upon the cries, ray brothers Lal Bux and Bagh came cunning. On seeing them, the accused felled us with blows, and ran away towards the village. Then Lai Faux, Bagh and Jurio carried us home. We saw that Azizullah had hatchet injuries art his and arm back. Bacho had hatchet injuries on his arm and neck. I have received hatchet injuries on my arm and neck. Then Bagh went to inform Wadero Jan Muhammad Khan Panhwar at his village. He brought Wadero Abdul Fateh whom we apprised of the above incident. Thereafter we carried all three in bullock‑carts and were coming to Mirpur Outpost to lodge complaint, when Bacho expired outside neat the village. Lal Bux, Jurio and Azizullah carried him back home. I have come along with Abdul Fateh Khan Panhwar to lodge complaint. On account of dispute over the cultivation of land, the above‑mentioned accused attacked us and inflicted hatchet injuries on us as a result of which Bacho was murdered."

This report was recorded by Rehmat Ullah Head Constable of Mirpur Outpost who forwarded the same to Thul Police Station. A formal first information report Exh. 47 was recorded by Abdul Wahab A. S. I. (P. W. 7). Rehmat Ullah Head Constable found injuries on the persons of Moula Bux complainant. He prepared his injury statement and despatched him to the Medical Officer Thai for medical examination.

Shah Muhammad A. S. I. (P. W. 11) proceeded to the place of incident which was at a distance of half a furlong from the village of the parties. He found that there were pools of blood. He secured blood‑stained earth from the place of occurrence sod sealed it into a parcel vide Mashirnama Exh. 26. He found the dead body of Bacho in his house. He prepared the inquest report Exh. 27 and despatched the dead body to the mortuary for post‑mortem examination. He also prepared the formal first information report Exh. 9 in the counter case filed by Hayat accused which was recorded by Abdul Wahab A. S. I. (P. W. 12) at the place of incident.

4. Abdul Wahab A. S. I. arrested Hayat, Karimbux, Gohram, Abdul Rehman, Bhagio and Habib on 26th July 1964 at 5 p.m. He took into possession shirt of Habib and sealed it into a parcel vide Mashirnama Exh. 37. Shirt and loin‑cloth were also removed from the person of Karim Bakhsh and sealed them into a parcel ride Mashirnama Exh. 41. He also removed shirts from the persons of Abdul Rehman and Gohram and sealed them into separate parcels vide Mashirnamas Exhs. 36 and 40, respectively. Abdul Rehman appellant led the police to the house of his uncle Lal Bux and produced blood‑stained hatchet. The same was taken into possession and sealed into a parcel vide Mashirnama Exh. 35. Habib and Gohram appellants also led to the recovery of lathis. The same were taken into possession and sealed into separate parcels vide Mashirnamas Exhs. 39 and 39, respectively. Bhagio, Hayat, Abdul Rehman, Gohram and Habib had injuries an their persons. The A. S. I. prepared their injury statements and sent them to the Medical Officer, Thul for their medical examination.

4. The post‑mortem examination of the deceased revealed two injuries. There were two incised wounds. One of the injuries was on the neck. The nature and the exact position of the injuries were as follows :‑‑

(1) An incised wound, 2 x 1 , cutting muscles and main vessels, on the right side of the neck and cutting first rib and the sternal and of clavicle bone.

(2) An incised wound, 2 ' x 1", muscle deep, in the middle of left arm.

Injuries, according to the doctor, were caused by a sharp‑cutting weapon like a hatchet. Injury No. I was individually sufficient to cause death in the ordinary course of nature. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of injuries to the main vessels of the neck.

6. Moula Bux P. W. cousin of the deceased was also sent for medical examination. It appears front the report of the doctor that he had four incised wounds and one contusion. All the injuries on his persons were simple in nature. Azizullah P. W. had two incised wounds and one abraded contusion on his person. These injuries were also simple in nature.

7. Hayat, Bhagio and Gohram appellants were also examined by the Medical Officer and they bore the following simple injuries on their persons :‑‑‑

(i) Hayat.‑Lacerated wound, 4' x ', scalp deep, on the right parietal region.

(ii) Bhagio.‑One lacerated wound, 1" x 1", fracture of the left ulna bone in the middle.

(iii) Gohram.‑One lacerated wound 1 x 1/6", scalp deep, on the right parietal region.

8. Direct evidence regarding the commission of crime is furnished by Moula Bux (P. W. 3), Azizullah (P. W. 4), Lal Bux (P, W. 5) and Pahilwan (P. W. 6) in their statements. Jan Muhammad (P. W. 7) deposed as to motive. Abdul Fateh (P. W. 11), Qaisar Khan (P. W. 9), Rehmatullah (P. W. 10), Shah Muhammad (P. W. 11) and Abdul Wahab (P. W. 12) testified to shay the recoveries. The evidence of other witnesses is of a formal nature.

9. The defence of Hayat appellant was a bare denial. No evidence was called in defence. He denied baying lodged the counter first information report against the opposite‑party and that he had suffered the injury in this incident. He further stated that he had received the injury in the fight which had taken place between them and others shortly before the incident. Ire made the following statement from the dock :‑

"P. W. Jan Muhammad had been fired gun shots shortly before a the incident and on account of his suspicion against us I have been falsely implicated. Further, the girl over whom P. W. Pahilwan bad Nikah had been married to our relation and therefore he also got us falsely implicated in this case."

Gohram stated that he suffered these injuries two days before the incident in a separate fight between them and Buriras and that he had been implicated in this case on account of enmity of Pahilwan and Jan Muhammad Khan P. Ws. Bhagio similarly denied having received injuries in this fight. According to him he had suffered the injuries one day prior to the incident. He stated that he was implicated on account of enmity with Pahilwan and Jan Muhammad Khan. The remaining appellants also pleaded denial and staled that they had been implicated on account of enmity.

10. Moola Bux P. W. who was examined on the side of the prosecution lead told the story which had already been outlined and to very much the same effect is the evidence of Azizullah. Lal Bux and Pahilwan P. Ws. It was urged that Azizullah P. W. is the brother of the deceased while Moula Bux and Lal Bux are his cousins and they were also accused in a counter case. Therefore, their evidence is not worthy of credence. I agree with the learned counsel for the appellants that the evidence of these witnesses was of an unsatisfactory character. It was proved that three of the appellants, namely, Hayat, Bhagio and Gohram had suffered injuries on their persons. It is apparent from the medical evidence and their counter version Exh. P. 10 which form part of this file that three of the appellants were severely hurt during this incident. Despite this the prosecution witnesses will not admit any knowledge of the manner in which these injuries came to be inflicted upon these accused. To conclude I would say that these are the statements of the persons who were themselves accused in a counter case in this very affray or fight and also they have not made any attempt to account for the injuries suffered by the accused. Their deposition in this case is not worthy to be relied upon.

11. On the file there is also the evidence of Pahilwan P. W. who admitted that there was a fight between the parties in which Bacho deceased, Moula Bux and Azizullah P. Ws. were injured on the complainant side while Hayat, Bhagio and Gohram suffered injuries on the accused side. On a careful examination of the statement of this witness it transpires that he deposed in the lower Courts that these were 15 persons on the accused side who participated in the fight and that out of them he could identify only Karim Bux, Hayat and Gohram and at that time Hayat was armed with a hatchet. It did not specify any of the b accused as the author of the injuries on the deceased or the injured witnesses nor did he speak of the origin of the fight between the parties. In the circumstances, it is very difficult from his evidence to apportion the liability of any of the accused. To conclude I would say that the evidence of Pahilwan P. W. is of no consequence to the prosecution.

12. It has often been seen that in such cross cases it is usual to find each party representing itself as being innocent of respon sibility for the clash and even denying all responsibility for causing injuries. An emphasis has always been laid by the Supreme Court, therefore, to find out the true nature of the incident, bearing in mind all the surrounding circumstances of a particular case. In the instant case, it is difficult to apportion the liability of each participant. As there is no evidence on the file to establish as to who caused injuries and to whom, the appellants cannot be held guilty of any offence.

13. As a result of this analysis of evidence, I accept the appeal, set aside the convictions and sentences of the appellants and acquit them and direct their release from the forthwith.

Appeal accepted.

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