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Criminal Appeal No. 182 of 1967, decided on 23rd January 1968.
Ss. 304, Part II, 313 & 325 read with Ss. 34 & 149‑Fight between two parties resulting in death of one and injuries to many ‑other persons‑Trial Court examining individual liability of each accused and' convicting them accordingly‑-Individual liability of accused not established by evidence on record but appearing doubtful‑Accused acquitted on benefit of doubt.
M. H. Junejo for Appellants.
S. Murtaza Hussain for the State.
Date of hearing: 22nd January 1968.
All the eight appellants had been tried along with Ali Hassan and Muhammad Yousuf. Ali Hassan and Muhammad Yousuf have been acquitted. Out of the present appellants Kamal and Mevo were convicted under section 304 (2), P. P. C. and sentenced to suffer‑ rigorous imprisonment for seven years each. The appellant Shaman has bean convicted under section 325, P. P. C. and sentenced to suffer rigorous imprisonment for two years. The rest of the five appellants have been convicted under section 323, P. P. C. and sentenced to suffer rigorous imprison ment for twelve months each. They have filed this appeal.
2. The facts of the prosecution case briefly are that an 7th December 1965, there was a fight between Piral and Ali Hassan on the turn of water on account of which four appellants, namely, Ali Hassan, Hidayatullah, Shaman and Muhammad Yousuf had given injuries to Piral. As Khanan and others were going to lodge a report at Ratodero Police Station they were attacked by the present appellants and the acquitted accused. In the fight that ensued between the patties all the prosecution witnesses, namely, Khanan, Jan Muhammad, Piral, Sher Muhammad, Arbab, Sadar, Bahadur and Shaman received injuries. Jaro, who was along with them, had also received injuries but he succumbed to them. On the side of the appellants, Kamal, Khanan and Lakhmir received injuries. Khanan P. W. 2 then lodged his first information report Exh. 7, at 5‑30 p.m, the incident having occurred at noon time, at Ratodero Police Station, which was at a distance of three miles from the scene of offence. Kamal also filed a counter first information report Exh. 26, at 5‑45 p.m. at the same police station. The police after the usual investigation sent up the accused in both the cases. The accused in the counter case which started on the first information report of Kamal were acquitted whereas the appellants in this case have been convicted.
3. The appellant Kamal when questioned stated that he had been attacked on account of the incident that had occurred between Piral and Ali Hassan and others. Appellant Khanan admitted that he came on cries and received injuries. Mevo stated that he came there after the incident. Lakhmir also stated that he came on cries and sustained injuries. The rest of the appellants denied their presence at the place of the incident. They have examined no witness in defence.
4. The question whether Jaro, Khanan; Jan Muhammad, Piral, Sher Muhammad, Arbab, Sadar, Bahadur and Shaman sustained injuries and the question whether Jaro succumbed to them are not disputed. The evidence of Dr. Abdul Qayyum, Exh. 27, also establishes that all the nine persons had sustained injuries and that the. death of Jaro was on account of injuries sustained by him.
The only question in these circumstances that remains to be decided in this appeal is whether the appellants are guilty of the offences for which they have been convicted. In order to dispose of this appeal it must be stated at the outset that the learned Sessions Judge, Larkana, who tried the appellants and decided their case, came to the conclusion that they had not formed an unlawful assembly and caused injuries to the witnesses and deceased Jaro in furtherance of their common object. The reason he gave for reaching this conclusion was that they had not come in a body to perpetrate the crimes for which they had been charged. According to the evidence on record and the conclusions reached by the learned Sessions Judge they came one by one on cries and participated in the quarrel. Section 149 or 34, P. P. C. by virtue of what has been said by the learned Sessions Judge could not be invoked on the facts of this case.
The learned Judge on this conclusion of the evidence on record then proceeded to examine the individual liability of each of the accused and convicted the appellants for the offences mentioned above. The learned counsel for the appellants has pointed to me that the case of individual liability was not set out in the first information report. There is nothing indicated in the first information report as to who caused injuries to Jaro or to several other injured persons. Khanan had alone talked of himself and one or two persons. But even in regard to Khanan himself had stated that appellant Mevo had also caused him injuries. Mevo, on evidence, has been shown to have been armed with a hatchet whereas Khanan had only one injury with a blunt weapon. Mevo is also said to have caused an injury to Jaro but he had only one incised injury which according to the evidence must have been caused by appellant Kamal. All other witnesses have also remained silent with regard to who gave injuries to Jaro. Their evidence with regard to who caused injuries to whom is also contradictory and is also not borne out by their, statements. Even otherwise the evidence of the witnesses discloses that out of the 10 accused, four were armed with hatchets and six were armed with lathis and the evidence has disclosed that all the ten persons had caused injuries to the eight witnesses and deceased Jaro. The evidence of Dr. Abdul Qayyum shows that there was only one incised injury on the person of Jaro deceased. Another injury on the person of Jaro and all other injuries appearing on the persons of other witnesses are shown by the doctor to have been caused by blunt weapons. Under these circumstances, it is not possible to accept that the accused who were armed with hatchets went on using them but did not give injuries to any of the witnesses with sharp side of the hatchets except for one injury to Jaro. All the prosecution witnesses who have been examined were also shown as accused in the counter case. They have also denied their liability with regard to the injuries caused to appellants Kamal, Khanan, Lakhmir and acquitted accused Ali Hassan. Under these circum stances the case of individual liability of the appellants cannot by any means be construed to have established by evidence brought on record. On this view of the matter, I consider the evidence against the appellants in respect of their individual liability to bcl doubtful and hence giving them the benefit of doubt I accept their appeal and acquit them. The appellants Kamal and Mevo are in jail, They shall be set at liberty if not required in any other case. The rest of the appellants are on bail. Their bail bonds stand cancelled and the sureties discharged.
Appeal accepted.
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