G. M. SHAH, J.---The appellants were tried by the learned Additional Sessions Judge, Dadu in respect of offences under section 302/34, P. P. C. And 307/34, P. P. C. For committing the murder of Karim Bux and making a murderous assault on P. W. Mir Mohammad. The learned Judge by the judgment dated 4th May 1977, convicted the appellants for the said offences and sentenced appellants Hakoo under section 302/ 34, P. P. C. To death whereas appellant Suleman and Hashim were sentenced to imprisonment for life and also to pay a fine of Rs. 1,000 each or in default to undergo R. I. For six months. All the three appel--lants were also convicted and sentenced under section 307 read with section 34, P. P. C. To undergo R. I. For five years and a fine of Rs. 500 or in default R. I. For three months. The appellants have assailed their conviction and have filed the appeal. There is also the reference against the death sentences before us. This judgment will dispose of both, the appeal, as well as, the reference.
2. Briefly, the case of the prosecution is that the complainant, Shamsuddin, owned about 15 "jurebs" of land on Chuttal Wah in Deh Pateji, which was being, cultivated by him and his maternal uncle, Karim Bux deceased, and his maternal cousin, Mir Muhammad. On the same watercourse was also the land of Ahmad Khan Kandhro, which was cultivated by the appellants. There was strained relationship between the parties over the cattle trespass in the fields, over which they had often exchanged harsh words. The complainant had intended to report the matter to Rais Abdul Hamid Khan Jatoi, but when he visited his Village, he could not meet him. The appellants had therefore threatened that if the deceased Karim Bux and witness Mir Mohamamd ever met them, they would kill them.
3. P. W. Mir Mohammad was employed as a Munshi in a Milk Dairy of Bilawal, in Village Sindhi Butra, where he used to go on duty every morning and returned to his village in the evening.
4. About two days before the occurrence, when witness Mir Mohammad was going on duty, on a common road, in front of their Village, the appellants came out armed with hatchets. While abusing, they chased him in order to kill him, but he ran back towards the village to save his life. He narrated the incident to his father Karim Bux deceased.
5. On 17th May, 1974, the complainant Shamsuddin, accom--panied by deceased Karim Bux and his son, witness Mir Mohammad, had left the Village to report the matter again to Rais Abdul Hamid Khan. They had reached `Katcha' road from Thariri Mohabat to Beta and had come to a place two paces away from Jatoi Wah. The complainant went to urinate, while deceased Karim Bux and Mir Mohammad proceeded on the road. When they reached at Jatoi Wah, all the three appellants, all of a sudden, emerged from the dry canal. Appellants Hakoo and Suleman were armed with hatchets, while Hashim had a lathi in his hand. They abused the deceased Karim Bux and Mir Mohammad. Appellant Hakoo attacked and inflicted sharp sided hatchet blow on the head on the deceased Karim Bux, causing an incised wound, resulting in deep fracture of occipital bone, from which the brain matter had come out. Karim Bux cried and fell down. Thereafter appellant Hashim gave number of lathi blows to him. Appellants Suleman and Hashim then attacked witness Mir Mohammad with hatchet and lathi and caused him as many as 20 injuries, on his head and other parts of the body, out of which five were incised wounds. On seeing the occurrence, the com-- plainant raised cries, which attracted witness Qamaruddin, who also came running and saw the incident. Many other persons from village Ahmad Khan Kandhro also reached there. 1n the meantime, the appel--lants took the injured Karim Bux and witness Mir Muhammad and removed them to the old dera of Ahmad Khan Kandhro and kept them on the `Palal' "Sar" grass. When people from the surrounding villages reached there, on cries of the witness, and commotion was created, the accused persons left the injured and went away. As a result of the injuries, deceased Karim Bux was found dead. The complainant leaving the injured Mir Muhammad and the dead body of Karim Bux, in the care of witness Qamaruddin, went to inform their Nekmard Haji Dhani Bux about the incident, who advised him to lodge the report.
6. The complainant accordingly reached the Police Station, Thariri Mohabat, at 7-30 a.m. And lodged the report with A.S.I. Police Mohammad Hafiz Shah, who after recording it, accompanied him to the vardat, which was a 'dera' of pady crop, in the land of Ahmad Khan Kandhro, where the dead body of Karim Bux was lying. It was inspected by the Police and was despatched to the Medical Officer for post-mortem examination. The Police had also visited the "katcha" road leading from Thariri Mohabat to village Pateji, where the actual incident had taken place. There were struggling marks and stains of blood visible at various places. There was also a trail of blood drops, starting from the place of incident leading upto the dera of paddy crop, where Karim Bux's body was subsequently found lying. Mashirnama Exh. 16 was prepared. Statements of witnesses Dhani Bux and Qamaruddin, who were present at the spot, were recorded. The injured Mir Mohammad was conscious. His statement was also recorded by the Police, before he was referred to the Medical Officer for treatment and certificate. On the same day, appellants Hakoo and Suleman were arrested between 5 and 6 p.m. From their village. They were found wearing blood-stained shirts, which were secured from their persons, and were sealed under the Mashirnama Exh.
17. The appellants were injured. Their injuries were noted in the Mashirnamas Exhs. 18 and 19 and they were referred to the Medical Officer, Mehar, for examination, treatment and certificate. Further investigation was taken up on 18th May, 1974 by the S.H.O. Abbas Ali of Thariri Mohabat. Appellant Hakoo, who was already in custody, voluntarily led the Police and the Mashirs to the old dera of Ahmad Khan Kandhro and produced blood-stained hatchet, concealed in the heap of `Palal' (Exh.
24). On the same day, appellant Suleman also led the Police party and the Mashirs to the same old paddy dera of Ahmad Khan Kandhro, where `Palal' was stored and pro--duced a blood-stained hatchet from under the 'Palal', on the north of the dera (Exh. 25). This place was just near the place from where appellant Hakoo had produced the hatchet. Appellant Hashim was arrested on the same day from the garden of Hyder Bux Jatoi. He had also taken out a lathi from the 'Palal' and produced it before the Police (Exh. 23). Apparently, no blood was noticed on the lathi. The blood- stained articles were despatched to the Chemical examiner of the Government, whose report showed that the shirts, ac well as the hatchets and the lathi, were all stained with human blood (Exh. 35). After completing the investigation the appellants were challaned in the Court.
7. The autopsy on the dead body of Karim Bux was conducted by Medical Officer, Mehar, Dr. Ghulam Mustafa on 17th May, 1974 and following external injuries ware found on the dead body :-
(1) Incised wound 4" x 1--- bone deep fracture of occipital bone from which the brain matter was coming out. The wound was situated on the occipital region.
(2) Contusion 7" x ----- on the left back on lower thoracic region.
(3) Contusion 3" x ----- adjacent to injury No. 2.
(4) Contusion on 4" x ----- on the back of left upper arm.
(5)Contusion 3--- x ----- on the lateral side of left upper arm.
As a result of the internal examination, the Doctor was of the opinion hat the death was caused due to injury No. 1 as mentioned above, which was caused by a sharp-cutting weapon like a hatchet.
Rest of the injuries were caused by hard and blunt substance like a lathi. All the injuries were anti- mortem. The death was instantaneous.
8. The same doctor had also examined injured Mir Mohammad, as well as appellants Hakoo alias Hakim and Suleman for treatment and certificate. He found the following injuries on their persons :- Mir Mohammad son of Karim Bux (1)Incised wound 1/3--- x ----- x muscle deep on back of the left forearm upper 1/3rd. .
(2)Incised wound 1" x ----- x scalp deep on the right perietal region.
(3)Linear incised wound ----- x ----- x skin deep on back of little finger.
(4)Liner incised wound ----- x ----- x skin deep on back of right ring finger.
(5)Liner incised wound ----- x ----- x skin deep on back of right hand.
(6)Contusion 3" x 1" on the lateral side of left upper arm.
(7) Contusion 3----- x 1--- above injury No. 6.
(8)Contusion 2----- x 1" on back of left shoulder region.
(9)Contusion 1" x 1/3--- x 1----- on back above injury No. 8.
(10)Contusion 4" x 3" on upper back, (11)Contusion 6" x ----- on the right back thoracic region.
(12)Contusion 6" x ----- on the left back thoracic region.
(13)Contusion 4" x 1" on the left lateral back thoracie region.
(14) Contusion wound 1" x ----- x scalp deep on vertax.
(15)Contusion 2----- x ----- on the right lateral shoulder region.
(16)Contused wound 1----- x ----- x scalp deep on left occipital region.
(17)Contusion 4--- x 1--- on the left lateral thigh.
(18)Contusion 4" x 1--- on the left lateral leg.
(1 9) Contusion 4" x 1" on the right thigh anteriorily.
(20)Contusion 3" x 1" below injury No. 19.
All the injuries were simple and injuries Nos. 1, 2, 3, 4 and 5 appeared to have been caused by sharp-cutting weapons like hatchet and the rest by hard and blunt substance like lathi. Injuries were about 4 hours old at the time of examination i.e., 11-45 a.m. He was indoor patient and was discharged after three weeks.
Suleman son of Misri (accused): (1)Contused wound 1" x ----- x skin deep on the right forearm.
(2)Contused wound 1----- x ----- x scalp deep on the right occipital region.
(3)Contusion 7" x ----- on the back thoracic region.
(4)Contusion 3" x 1----- on the right lumber region.
(5)Contusion 4" x --" on the back lumber region.
All the injuries were simple in nature and appeared to have been caused by hard and blunt substance like lathi. The injuries were about 16 hours old at the time of examination i.e., 11-30 p.m.
Accused Hakim son of Misri : (1)Contused wound 1" x ----- x skin deep on the back of right thumb.
(2)Contused wound 1----- x ----- x skin deep on the lower 1/3rd of left forearm anteriorly.
(3)Contusion 3" x ----- on the back of right shoulder region.
(4)Contused wound 1----- x ----- x skin deep on right anterior upper arm.
All the injuries were simple in nature and appeared to have been caused by hard and blunt substance like lathi. Injuries were about 16 hours old at the time of examination, i.e. 11-30 p .m.
9. The defence of the appellants was one of denial. All the appellants had stated that the witnesses were deposing against them due to enmity. Appellant Hakoo in his statement in the trial Court had stated that he and his brother Suleman and their father Misri used to cultivate evacuee lands in the Deh Pateju. One Ayub Jhatial got these lands from the Government and asked them to give Zamindari share to him, which they had refused. He had asked them to leave the lands. On their refusal, he had filed a case against his father. He had produced copies of the judgment and decree (Exhs. 43 and 44). It was further contended that sub--sequently, Ayub had threatened to involve them in false cases. Ayub was stated to be the cousin of deceased Karim Bux. As regards the injuries, Hakoo, as well as Suleman; had explained that they were caused by the Police. Appellant Hakim in his statement further stated that his uncle, Ghulam Hyder, had tracked footprints of Mashir Ghulam Nabi and had identified them in a theft case. Ghulam Nabi was stated to be closely related to the complainant's party. Therefore, they were falsely impli--cated. They had, however, led no defence.
10. The prosecution case against the appellants mainly rest on the ocular evidence of eye- witnesses Shamsuddin, first informer (P. W. 1), Mir Muhammad inured (P. W. 7) and Qamaruddin (P.
W. 7). The eye--witness accounts is further corroborated by Dhani Bux (P. W. 5), who is the Neckniark of Jhatial community, to which caste the eye-witnesses belonged. The complainant Shamsuddin, after the occurrence, had gone to hire and had narrated to him the entire incident, who in turn advised him to report the matter to the Police.
11. It is admitted that deceased Karim Bux was the father of injured Mir Mohammad and complainant Shamsuddin is the nephew of the deceased, whereas P. W. Qamaruddin is Jatial by caste and is not related to any one of them. He knows them all, and resides in the same village. The appellants are also previously known to him. He has supported the version of the complainant. He was returning from his `lusan' cultivation in the morning, then he saw the deceased and his son Mir Mohammad coming and they were attacked by the appellants when they reached near the Jatoi Wah. He is completely disinterested person and is an independent witness. From his lengthy cross- examination, nothing has been brought out to discredit his testimony, but barring minor and unimportant contradictions, as to his visit to Village Pateji, whicb was only 100 paces away from his land and distance of Village Ahmad Khan Kandhro, which was also 100 paces away from the vardat.
12. Out of the other two eye-witnesses, P. W. Mir Mohammad was injured. His presence at the vardat can hardly be disputed. He had as many as 20 injuries on his person, out of which two were incised wounds, one being on the back of the left arm and the second on the head, which was scalp deep on the right parietal region. The third was the linear incised wound on the back of the little finger, which appeared to have been caused by a sharp cutting weapon like a hatchet. These injuries could not be self inflicted. He had many contusions on his head, left shoulder, upper back, leg and other parts of the body, Injuries on him are also supported by the medical evidence.
13. The learned counsel, Mr. Mohammad Hayat Junejo, appearing on behalf of the appellants has argued that the vardat, where the occurrence had taken place was not the one as stated by the eyewit--nesses. It was suggested that the place of vardat was the old dera of Ahmad Khan Kandhro and the occurrence was a result of a free fight, which had taken place, where the body of the deceased was found lying. This contention is not supported by the evidence on record. The prose--cution case is that the deceased Karim Bux and injured Mir Mohammed were attacked near Jatoi Wah on the Kaicha Road at about 7-30 a.m. When the appellants had come out of the Jatoi Wah which was dry at that time. The statement of the Mashir Haji Mehrab, who had admitted the contents of the Mashirnama (Exh. 16) of the vardat, show that there were struggling marks and blood was also found at different places, which was secured by the Police Since both the injured were removed from this place to the dera of Ahmad Khan, where old `Palal' was stored, there was a trail of blood from this place upto the Dera at a call's distance, where the dead body of deceased and injured Mir Mohammad were found lying. The vardat, where the deceased was inflicted injuries, was near the Jatoi Wah and not the pace where the dead body of the deceased and the injured were lying.
14. The deceased was caused five (5) injuries. The first injury was the incised wound on the occipital region, which had fractured the bone, from which the brain matter had come out. It was caused .By a weapon like a hatchet and was sufficient to cause death. The remaining injuries were caused by a lathi and were on the left back on lower thoracic region and back of left arm, suggesting that the deceased had tried first to run and save himself. There is no doubt left in our mind that the deceased was injured at the first place near the Jatoi Wah.
15. The learned counsel, Mr. Junejo, next argued that for the sake of argument, if it is conceded that the occurrence did take place as is alleged, then it was a free fight which took place in the land of the appellants, who had the right of private defence. This argument has no force. As discussed above, the attack on the deceased and his son Mir Mohammad did not take place on the Old Dera of Ahmad Khan Kandharo. They were injured on the common road near the Jatoi Wah which land did not belong to any of the appellants. The deceased and the injured Mir Mohammad were removed to the Dera in order to develop the theory of right of private defence but the circumstance weigh strongly against it. We have no evidence to persuade us to accept this argument.
16. Mr. Junejo further contended that it was a sudden fight resulting in as many as 20 injuries to P.
W. Mir Mohammad, as well as to appellants Hakoo and his brother Suleman, which show that the appellants were the aggrieved party, who were attacked in a planned manner on the following day, by the deceased and his son Mir Mohammad. Therefore the appellants had no intention to kill.
We are not impressed with this argument.
17. The motive for committing the murder of Karim Bux and causing injuries to Mir Muhammad, had been, in details, stated by the complainant and Mir Muhammad, who was injured. Both the parties, the complainant and the appellants, cultivated their lands, for which they were drawing water from the same watercourse. The relations between the parties were not cordial. They had disputes over the same watercourse. This dispute was aggravated by the cattle of the appellants trespassing and damaging the cultivation of the party of the complainant. There had been, many a time, exchanges of hot words between the parties. The complainant's party tried to complain to Rais Abdul Hamid Khan Jatoi, but could not meet him. There was another incident which created more rift between the parties. P. W. Mir Muhammad was working as a Munshi in the Milk Dairy in village Sindhi Butra. He used to go on duty in the morning and returned home in the evening. One day, before the occurrence, he was going on duty in the morning. The village of Ahmad Khan Kandhro is on the way, at a calls distance and is on the same road. When he reached near Jatoi Wah, he was chased by the appellants armed with hatchets. On the following day, the complainant Shamsuddin, deceased Karim Bux and his son Mir Muhammad proceeded to report the matter to Rais Abdul Hamid Khan Jatoi, when on the way, they were attacked. No material has been brought on the record, through the cross-examination of any of the witnesses, in support of the plea, that it was the party of the complainant, who had pre-planned the attack on the appellants, showing that they were the aggrieved party. The evidence shows that the appellants had made preparation and were waiting for the deceased, his son and the complainant. They had made a determined attack on them. Appellants Hakoo and his brother Suleman were armed with hatchets. Hashim had a lathi.
Hakoo gave a hatchet blow to the deceased on the head and he fell down. Hashim caused him lathi injuries. Suleman caused hatchet injuries to P. W. Mir Muhammad and Hashim gave him lathi blows. In presence of such evidence, it is not possible to accept the contention of Mr. Junejo that the appellants were the aggrieved party.
18. The argument of sudden fight and that the appellants had acted in exercise of right of private defence, is based on the injuries on the appellants Hakoo and Suleman. Hakoo had four skin deep contusions. Similarly, Suleman had five contusions. Injuries on both the brothers were simple in nature and appeared to have been caused by a lathi. It was not the case of the appellants, in the committal Court, nor at the trial, that they had any encounter with the party of the deceased and had received the injuries in the fight. There is no cross-examination of the witnesses on this point.
On the contrary, the case of the appellants was that they were maltreated by the Police and the injuries were caused due to the Police beating. No conclusion, under these circumstances, in support of this contention, can be reached on mere conjectures and surmises,
19. The case of Syed Ali Bepari reported in PLD 1962 SC 502 was referred to by Mr. Junejo and an attempt was made to apply the principle laid down in that case in respect of "free fight", when both the parties had received injuries. In such a situation, parties do not come out with full and true story about the facts. In Bepari's case, there was sufficient and satisfactory evidence that there was a dispute between the parties, over the plot of land, which adjoined the land f Bepari, who had claimed the plot. The side of the accused, also laid claim over the same plot. Both the parties had gone to enforce their right in the disputed land and for that purpose, they had armed themselves in full expectation of an armed conflict to have a trial of strength. The facts of the instant case are altogether different and the principle laid down in Bepari's case cannot be stretched to apply to the present case.
20. It was next argued that the case of appellant Hashim was distinguishable from the other two, inasmuch as he was not injured. No blood-stained clothes were recovered from him and the weapon, he was alleged to have been armed with, was a lathi, on which the Police had found no blood. This contention also has no force. Appellant Hashim was the only ore who was armed with a lathi. Except injury No. 1 all other four injuries, on deceased Karim Bux were caused by means of a lathi. P. W. Mir Muhammad had about 15 (fifteen) lathi injuries in addition to 5 incised wounds. The lathi produced by Hashim was examined by the Chemical Examiner to the Government of Sind, who had certified that the lathi was stained with human blood, which opinion is more authentic than the naked eye observation of the S. H. O. Police.
21. The injuries on the person of appellants Hakoo and Suleman as well as the recovery of blood- stained clothes from their person were not taken as incriminating pieces of evidence against them by the learned trial Judge due to the injuries on their person. There was no grouping of the blood, matching with that of the deceased. The learned trial judge found these pieces of circumstantial evidence as not enough to connect the appellants with the commission of the crime.
22. The two hatchets and the lathi were produced by the appellants before the Police, which were secured in presence of the Mashirs. They were hidden in the `Palal (Sar grass), which place, no one else knew. The hatchets were concealed in the `Palal and were produced by the appellants. The recovery of the blood-stained weapons supports the eye-witness account that they were used in the commission of the crime.
23. We have been taken through the entire evidence by the learned counsel Mr. Junejo. On its appraisal, we see no reason to disagree with the conclusions reached by the learned trial Judge.
We do not find any material on the record to discredit the testimony of the eye--witnesses. As discussed above, we consider the evidence of injured Mir Muhammad alone sufficient for sustaining the conviction of the appellants. The case of appellant Hashim also falls in the same category as that of the other two appellants. His participation in the crime is continuous, of sharing common intention, with Hakoo and Suleman. Ordinarily, common intention presupposes prior concert; but it may well develop at the spur of the moment, either immediately before the actual attack or during commission of the offence, depending g upon the circumstances of each case. As has bees often observed, it is difficult, if not impossible to procure direct evidence. In most cases, it has to be inferred from the acts and conduct or other relevant circumstances of the case.
24. In the circumstances, the guilt of all three appellants has been fully established and they were rightly convicted. There is no justification in altering the sentence. We therefore confirm the sentence of death passed against appellant Hakoo, who had caused the fatal injury to deceased Karim Bux and maintained the sentence of imprison--ment for life awarded to appellants Sideman and Hashim. The appeal is accordingly dismissed.