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-- S. 307-Eye-witnesses supporting prosecution case, their evidence was trustworthy and not shaken in cross-examination-Presence of prosecution witnesses admitted by accused---Defence version remaining uncorroborated and not supported by eye-witnesses ---Injuries on accused immediately after incident fully explained by prosecution-First Information Report lodged without loss of time in which names of accused as well as eye-witnesses also given-Ocular testimony corroborated by medical evidence - Prosecution proving its case by sufficient evidence - Conviction maintained in circum stances.

(b) Penal Code (XLV of 1860)-

-- S, 307 - Co-accused -Principle of falsus in uno falsus in omnibus held, was not of universal application-Each case to be considered on its own merits.-[Maxim].

P L D 1970 Kar. 261 rel.

(c) Penal Code (XLV of 1860)-

-- S. 307-Recovery-Hatchet not sent to Chemical Examiner and no explanation for same given by prosecution-Evidence of recovery, held, could not be considered against accused.-[Recovery].

(d) Penal Code (XLV of 1860)-

-- S. 307-Sentence -Accused having no motive to commit murder of victim of attack-Fight taking place suddenly over trivial matter at spur of moment-Case, held, was that of leniency in sentence-- Sentence of imprisonment reduced.-(Sentence].

(e) Penal Code (XLV of 1860)-

-- S. 307 - Criminal Procedure Code (V of 1898), S. 544-A-Con viction - Sentence of fine-Accused in case of conviction, held, liable to pay fine in addition to sentence of imprisonment as well as 'compensation as provided under S. 544-A, Criminal Procedure Code.

Muhammad Ali Shaikh for Appellant.

Abdul Waheed Siddique for the State.

Date of hearing :15th November, 1986.

JUDGMENT

Appellant Ghulam Muhammad alias 'Gulloo alongwith co-accused Ali Bux was tried for the offence punishable under section 307, P. P. C. and has been convicted by Session Judge, Thatta by judgment, dated 22^nd December, 1981 and sentenced him to suffer R. I. for 7 years and pay a fine of Rs. 2,000 or in default to suffer R. I. for one year. In case the fine is recovered the same be paid to injured Muhammad Ramzan as compensation under section 544-A, Cr. P. C. Co-accused Ali Bux was acquited. Being aggrieved with conviction the appellant has filed this appeal under section 410, Cf. P. C.

2. Briefly stated, the case of prosecution as narrated by complainant Bughro in his F. I. R. lodged on 21-5-1981 at Police Station Thatta is that he is Muqqadum at Khatian Canal and is employee of Engineering Department, whereas appellant Ghulam Muhammad and co-accused Ali Bux were Beldars. On 21-5-1981, his son Muhammad Ramzan and Shahdad went for fishing at Chillia Branch. Accused used filthy language and prevented Muhammad Ramzan and Shahdad from fishing. They exchanged harsh words. In the meanwhile Ahmad Ali Jakhro, came with, bullocks. Thereafter, Ali Bux instigated on which Ghulam Muhammad caused hatchet blow to Muhammad Ramzan on his head who fell down. Complainant and Ahmed Ali chased the culprits but they ran away. While running away Ghulam Muhammad fell down and then started running. Bhugro went and lodged report. After usual investigation the case was challaned against both the accused.

3. Prosecution in support of the case examined Bhugro, complainant Exh. 9 who produced his F. I. R. Exh. 10, eye-witnesses, Muhammad Ramzan injured Exh. 11, Shahdad Exh. 12, Ahmed Ali Exh. 13, Mashir Ali flux Exh. 14. He produced Mashirnama of Wardat as Exh. 15, Memo. of injury of Muhammad Ram zan as Exh. 16, securing blood-stained clothes of injured Exh. 17. Dr. Hamid Ali, M. O. Civil Hospital, Thatta Exh. 18, who produced Medical Certificate of injured Muhammad Ramzan Exh. 19 and Medical Certificate of appellant, Ghulam Muhammad as Exh. 20. Lakhano Exh. 21, is Mashir. He produced Masbirnamas of arrest of accused and securing of hatchets, and injuries of appellant Ghulam Muhammad as Exh. 22 and A. S. I. Abdul Ghani, Exh. 24 is Investigating Officer.

4. Appellant, in his statement under section 342, Cr. P. C. Exh. 28, stated that he was taking cattle of Jakhras from K. B. Feeder to cattle pond when Shahdad and Ramzan tried to rescue the cattle. He states that Ramzan grappled with him when Shahdad gave hatchet blow but it hit Ramzan thereafter Shahdad gave him Lathi blow. He has stated that Ahmed Ali also caused him injuries. Darogha Yar Muhammad came there and took him to office. Then he took him to Police Station alongwith office letter but Police instead of recording his F. I. R. arrested him. He has admitted injuries on his person but denied the securing of blood-stained hatchet from him.

He examined Yar Muhammad, Darogha Exh. 32, Muhammad Alam Exh. 33 and Muhammad Yousuf Exh. 35 in his defence.

5. In the present case evidence consists of four eye-witnesses, securing of blood-stained hatchet from appellant, medical evidence and motive.

Mr. Muhammad Ali Shaikh, Advocate for appellant contended that on same evidence the co-accused Ali Bux has been acquitted the witnesses are interested. It is argued that appellant went to file a case but it was not registered, therefore, direct complaint was filed. He pleaded right of self-defence and submitted that appellant also sustained injuries for which prosecution has no explanation. Finally he argued that fight was a sudden and provisions of section 307, P. P. C. do not attack to this case.

Mr. Abdul Waheed Siddique, appearing for the State, supported the conviction and submitted that prosecution has proved the case.

6. Complainant Bhugro, is eye-witness. He was Maqadum in Irrigation Department. He supported his F. I. R. and stated that his son Ramzan and Shahdad had gone for fishing at Ghulam Branch. He saw both accused with hatchets. They were demanding fish from Ramzan and Shahdad to which Ramzan refused, therefore, Ali Bux instigated Ghulam Muhammad who gave hatchet blow to Ramzan with sharp side on his head. He has stated that incident was witnessed by one Ahmed Ali. He went and lodged report at Police Station Thatta and produced F. I. R. as Exh. 10. P. W. 2 Ramzan injured, stated that on the day of incident he alongwith Shahdad was fishing at Ghulam Branch in the beat of Ali Bux when appellant and Ali Bux came and demanded fish from him which he refused and told that he would give fish to contractor on which Gullo (appellant) give him hatchet blow on his head and forehead by sharp side of hatchet, and at that time his father Bhugro and Ali Muhammad came and saw the incident. He has stated that on receiving injuries he fell down and went unconscious and regained senses in Jinnah Hospital where he remained for 22 days. Eye-witnesses Shahdad Exh. 12 corroborated the story as given by injured Ramzan and stated that Ali Bux and Gulloo came duly armed with hatchets- and demanded fish which they refused there upon Ali Bux instigated and Gulloo gave two hatchet blows to Ramzan on his bead, Ahmed Ali and Bhugro saw the incident and same running. They challenged accused who started running but they were followed by Ahmed Ali and Bhugro. On the way Ghulam Muhammad fell down in ditch but again ran away. Bhugro went and lodged report.

Ahmed Ali Exh. 13 has stated that on day of incident he was going alongwith his bullocks to his land. When he was 50/100 paces away from Wardat, he heard Ali Bux saying Gulloo not to spare. He rushed there and saw that Gulloo gave two hatchet blows to Ramzan who fell down and became unconscious. He saw fishing apparatus lying there. Complainant who was in his beat on seeing this incident also came running. He has stated that both accused present in Court are same.

Ali Bux Jakhro Exh. 14, acted as Mashir. He stated that Wardat was shown by complainant Bhugro where Ramzan was lying unconscious having injuries. Implements for fishing were found there. Police also secured one hotchet of accused and blood-stained earth from Wardat and such memo was prepared which he produced as Exh. 15. Police prepared Mashirnanta of injuries of Ramzan which he produced as Exh. 16. He also acted Mashir of securing blood-stained clothes of Ramzan injured and produced Mashirnama Exh. 17.

Mr. Hamid Ali Exh. 18 in his evidence stated that on 21-5-1981 injured Muhammad Ramzan was referred for Examination and Certificate. He found one incised wound 18 c. m. x 3 c. m. anterio posterior extending from right eye-brow upward to posterior aspect of parietal region cutting fronto-parietal bone manings and cereberum.

He has stated that brain-matter was oozing out in its lower frontal portion with echmoses of right eye and swelling. The injury appeared to have been caused by sharp-cutting weapon like hatchet. Duration of injury is given 4 to 6 hours and nature of injury as grievous. He produced certificate as Exh. 19. He was shown hatchet alleged to have been secured from appellant. He has stated that injury referred above could not be caused by single blow. He examined appellant Ghulam Muhammad and found following injuries.

(1) Lacerated wound 1.5 c. m. x o. c. m. x skin deep on left temproal region 3 c.m. away from left eye.

(2) Contusion 4 c. m. x 4 c. m. near left elbow on inner side.

Both the injuries were simple and appeared to have been caused by hard substance or fall. Age of injuries is given 4 to 6 hours. In cross-examina tion, he has stated that injury on Ramzan could be result of two blows and he has explained the reasons for his opinion.

7. Lakhano Exh. 21 is Mashir. He stated that accused Ghulam Muhammad was produced by one Haji Shaikh alongwith two hatchets of accused before A. S. I. Ghani at Chato-Chand. The hatchet of accused Gulloo was stained with blood. He saw one injury on accused Gulloo but bad not seen blood on his clothes. Both the hatchets were sealed and accused were arrested. He produced memo as Exh. 22. He also produced memo. of injuries of accused Ghulam Muhammad as Exh. 23.

A. S. I. Abdul Ghani Exh. 24 is Investigating Officer. He recorded F. I. R. Exh. 10 of this case and proceeded to Wardat. He secured blood stained earth and other articles and prepared Mashirnamas. He referred injured to hospital. He recorded statements of witnesses and arrested the accused and secured blood-stained hatchet from appellant. After investiga tion he handed over papers to S. H. O. who challaned the case.

8. D. W. 1 Yar Muhammad Exh. 32 is Darogha in Irrigation Department. He has stated that on 21-5-1981 he was going to his beat from K. B. Feeder when he reached 19-R.D., he saw appellant Ghulam Muhammad bleeding, who informed him that there was some fight with Jakhras on taking cattle to cattle pond. He brought Ghulam Muhammad x and reported the matter to Assistant Engineer who gave him a letter to Police. He brought appellant at Police Station and handed over letter to S. H. O. which was acknowledged. He brought the receipt and handed over the Assistant Engineer. He has stated that Ghulam Muhammad was Balder while Alloo was also working in the Department. He has stated that he had no knowledge with regard to any previous altercation between accused and others D. W. Muhammad Alam Exh. 33, was S. D. O. He has stated that appellant was not brought to him but Yar Muhammad Darogha informed that one Balder received injuries in the fight with Jakhras. He has stated that he had no knowledge about fight but as per statement of Balder that fight was with regard to taking away cattle of Jakhras to cattle pond. He wrote a letter to Police. A copy Exh. 34, has been produced. D. W. 3 Muhammad Yusuf was Dhak Munshi. He has stated that on 4.12-1978 six buffaloes and one calf were brought at the cattle pond by Alloo and appellant was with him. Muhammad Ali son of Belech Jakhro, got the cattle released on the same day.

9. Injured Ramzan P. W. Shahdad, P. W. Ali Ahmed and complainant Bhugro are eye-witnesses. They have supported the case. They have state that appellant Ghulam Muhammad caused injury to Ramzan. Their evidence has not been shaken in cross-examination. The previous enmity between the parties has not been proved. It is a daylight incident. The presence of injured Ramzan, P. W. Shahdad and Ahmed Ali has been admitted by appellant in his statement under section 342, Cr. P. C. Exh. 28. He has stated that Ramzan grappled with him on which Shahdad gave hi hatchet blow but it hit Ramzan. This version is not corroborated by an other circumstances. He has taken the plea that Ahmed Ali gave hi Lathi blows. On the other hand complainant in his F. I. R. clearly stated that while chasing, the appellant fell down and again ran away and also P. W. Shahdad in evidence stated that appellant while running away fell down in a ditch. The medical evidence show that injuries an appellant A could be by fall as well as by blunt weapon. The prosecution, therefore, fully explained the injuries on appellant immediately after the incident. The evidence of all the four eye-witnesses is trustworthy. The F. I. R was lodged without any loss of time in which names of accused as well as eye-witnesses were given. The ocular testimoney is fully corroborated by medical evidence. The injury on Ramzan is grievous and according to doctor it was apparently, dangerous to life as well because brain matter was oozing out from this wound. The explanation about possibility of two injuries in this circumstances of wound was sought for the doctor. He has stated that this injury could be caused by two blows which has also been supported by the eye-witnesses Mr. Muhammad Ali Shaikh argued that appellant had right of self-defence as he was taking away cattle to cattle pond. This version has nor been supported by any witnesses. The defence witnesses Yar Muhammad and Muhammad Alam only stated that appellant informed them that there was fight over cattle. Yar Muhammad is stated to have come at Wardat immediately and took appellant Ghulam Muhammad to Police Station with a letter but he did not see any cattle or any person from complainant party at the Wardat. A. S. 1. Abdul Ghani states that on the same day in that evening he got letter from Irrigation Department through peon that Ramzan and other prevented appellant from performing their duties, therefore, such case be registered. He had no proof for that allegation so he had not taken any action. It was stated by the learned counsel that direct complaint was filed but appellant has not produced any document or evidence in this respect. The story advanced by the appellant that Shahdad wanted to cause hatchet injury to him but it hit Ramzan is not believable when injury is 18 c. m. x 3 c. m. The appellant has not directly taken plea of self-defence as he has not admitted to have caused injuries to Ramzan. From the evidence it is clear that complainant and accused are employees of Irrigation Department. The evidence of other defence, witnesses Muhammad Yousuf, Dhak Munshi is not on incident. He has not produced any record showing that cattle of complainant was brought at the cattle-pond. The fishing implements were secured from Wardat which supported the case of prosecution.

The contention of learned counsel that Ali Bux eo-accused has been acquitted, therefore, appellant is entitled to get benefit cannot be accepted as case of Ali Bux is distinguishable. There is no allegation against him for causing injury to Ramzan. He has been given benefit of doubt. The C principle of Jalsus it one Jaisus in omnibus in principle is not of universal application. Each case to be considered on own merits. On this I refer to a case reported in P L D 1970 Kar. 261.

With regard to the recovery of hatchet. It is suffice to say that hatche was not sent to Chemical Examiner and there is no explanation fro p prosecution. The report is not on the record, therefore, this piece o evidence cannot be considered against the appellant. Moreover recovery is also doubtful as iNlashir Ali Bux has stated that police secured one hatchet from Wardat belonging to accused. He is Mashir of Wardat. Wheras Mashir of recovery Lakhan's evidence is that Haji Shaikh produced accused alongwith hatchet and Haji Shaikh has not been examined.

Upshot of the above discussion is that prosecution has proved case and there is sufficient evidence to maintain the conviction under section 307, P. P. C. I, therefore, dismiss the appeal. Lastly with regard to sentence. I am inclined to consider the aspect of the case that there was no motive for appellant to commit murder of Ramzan. The fight was sudden over demand of fish at the spur of movement, therefore, case is made out for leniency. I, therefore, modify the sentence from seven years to four year F but maintain the fine. Appellant is on bail. He shall be remanded to custody to serve out the remaining sentence. Appellant is also allowed benefit of section 382-B, Cr. P. C. The jail authorities are directed to verify and compute his period of detention as under-trial prisoner towards sub stantive sentence.

Before parting with this judgment it is observed that under section 307, p. P. C., accused in case of conviction is liable to pay fine also which is mandatory. In addition tinder section 544-A, Cr. P. C. accused shall pa, compensation to such person unless for the reasons to be recorded ink writing is otherwise directed. In the judgment learned Sessions Judge, has ordered payment of fine only which has been ordered to be paid as compensation. The legal position is that upon conviction accused has to pay fine under section 307, P. P. C. in addition to sentence of imprisonment as well as compensation as provided under section 544-A, Cr. P. C. Both the sections are independent. This may be noted for forfuture.

M. Y. H./5078/K Appeal dismissed.