1. SAJJAD ALI SHAH, J.-Appellant Mushtaq Ahmad son of Atta Mohammad has filed this appeal against the judgment dated 1st February 1977, of the learned Sessions Judge, Tharparkar at Mirpurkhas, whereby he has been convicted for offence under section 302, P.P.C. And sentenced to 'life-imprisonment and for offence under section 24 of Cattle Trespass Act sentenced to R. I. For one year. Both these sentences are to run concurrently.
2. Brief prosecution story is that on 7th October, 1975, which was Eid day. P. Ws. Ghulam Qadir, Sharif, Shaukat Ali and Allah Rakhio came to the house of deceased in Deh Serhi, Taluka Diplo, to offer him Eid greetings. Deceased Mohammad Sharif welcomed his guests, made them sit in his house and himself went out to take a round of his cultivation, which was adjacent to his house. 1n fact deceased lived on his agricul--tural land and the hamlet consisted of 3 or 4 houses. It was about 3-30 p. m. After a short while commotion was heard on which P. Ws. Ghulam Qadir, Sharif, Shaukat Ali and Allah Rakhio went out and saw deceased Mohammad Sharif and appellant Mushtaq Ahmed having an altercation. It was found by the witnesses that the three buffaloes belong--ing to the appellant had trespassed into the Juwar cultivation of deceased, who wanted to take the cattle to the cattle pound, which was objected to by the appellant. When the deceased refused to allow the appellant to take away his buffaloes, the appellant, after abusing the deceased, inflicted a hatchet blow with sharp side on the neck of the deceased. Mohammad Sharif fell down injured and became unconscious. In the meantime appellant took away his buffaloes and went towards his house along with his hatchet. The witnesses went near and found Mohammad Sharif in injured condition and was bleeding. He was also unconscious. The witnesses took him on a cot and removed him to Nau Kot, which was three miles away from the place of incident, for the purpose of catching a train to take him to hospital at Mirpur Khas. The witnesses, on reaching Nau Kot, missed the train and since no other mode of transport was available, they stayed for the night in Nau Kot and utilized the services of a private medical practitioner to stop the bleeding from the injury of Mohammad Sharif. Next morning the witnesses, with the exception of Ghulam Qadir, boarded the train and removed injured Mohammad Sharif to. Civil Hospital Mirpur Khas and in the meantime complainant Ghulam Qadir left for Kaloi Police Out--post which was at a distance of about 25 to 30 miles from Nau Kot. He took a bus, which he could get at 2 p. m. And reached Kaloi Police Out-post.
3. P. W. 6 Ghulam Sabir Head constable incharge of the police post after registering the F. I. R. At 5-30 p. m. On 8th October 1975, proceeded to the vardat on a mare and reached there at 9 p. m. After covering the distance of 18 miles. Next day he inspected the vardat which was in Juwar cultivation and secured blood. He also found the crop having been trampled and there were dungs of the animals. He prepared such mashirnama. He made inquiry about the appellant but came to know that he had absconded. In the meantime injured Mohammad Sharif was admitted in Civil Hospital Mirpur Khas where he was given medical attention but he succumbed to his injury on 8th October 1975, at 6 p. m. After performance of post-mortem examination the dead body was handed over to the witnesses who brought it back to the vardat. P. W. 6, Ghulam Sabir examined P. Ws. Shaukat Ali and Sharif at the vardat. Since report was registered at Police Out-post, a copy was sent to the Police Station, Diplo. S. H. O. Ahmed Khan of that police station came to the vardat and took over the investigation from Ghulam Sabir. He examined Allah Rakhio and Ghulam Mustafa. He also examined doctor Pribhulal, private medical practitioner of Nau Kot. On 12th October 1975, he arrested the appellant from otak of Mir Allah Bachayo. Appellant while in custody led to the recovery of his blood-stained hatchet from under the bedding in the room of his house. The hatchet was put into sealed parcel. Incriminating articles were sent to the Chemical Examiner and 164, Cr. P. C. Statements of witnesses were recorded. After completion of the investigation challan was presented in the Court.
4. Prosecution has examined 9 witnesses in support of its case. P.W. 2 Ghulam Qadir complainant, P.
5. W. 3 Sharif and P. W. 4 Shaukat Ali have been examined as eye-witnesses of the occurrence. P. W. 5 Aban is mashir, who has attested various mashirnamas including recovery of blood-stained hatchet from the appellant. P. W. 6 Ghulam Sabir Head constable and P. W. 7 Ahmed Khan S. H. O.
6. Have investigated the case. P. W. 8 Tasaduq Hussain Shah, A. S. I. Of Town Police Station, Mirpur Khan, was informed about the death of deceased Mohammad Sharif at Civil Hospital Mirpur Khas and he went there and prepared mashirnama of dead body and inquest report. P. W. 1 is Doctor Sultan Mahmood of Civil Hospital Mirpur Khas who had examined injured Mohammad Sharif in the hospital and subsequently after his death performed post-mortem examination. P. W. 9 is Ranomal Tapedar, who prepared sketch of vardat.
7. Before the trial Court the appellant in his statement under sec--tion 342, Cr. P. C. Has denied allegations made against him by the prose--cution. He has further stated that he owns land jointly with his father adjacent. To the land of complainant and the witnesses and they want to forcibly grab his land and in order to achieve that object they have falsely implicated him in this case so that he should be compelled to part with his and. The appellant wanted to produce one witness, namely Allah Rakhio in his defence but subsequently he changed his mind and did not examine him.
8. We have beard the learned counsel appearing for each side and in the light of their arguments and submissions we have very carefully examined the record. Prosecution evidence hinges upon ocular testimony of 3 witnesses, circumstantial evidence of recovery of blood-stained hatchet from the appellant and evidence of motive. The three eye--witnesses although related inter se and related to the deceased are still found to be reliable and their presence at the spot at the time of incident is well accounted for. 1n fact there were four eye-witnesses and one of them, namely Allah Rakhio who is not related to the complainant party has not been examined and has been given up for the reason that his evidence is similar to that of other eye-witnesses. P. W. 2 Ghulam Qadir complainant is brother-in-law of deceased. Wives of P. W. 3, Sharif and deceased Mohammad Sharif are sisters. P. W. 4 Shaukat Ali is nephew of deceased and son of sister of complainant. The complainant and other eye-witnesses reside in a small village about 2 or 3 blocks away from the place of incident. Since it was Eid day these eye-witnesses came to the house of deceased Mohammad Sharif to greet him. There is nothing in the cross-examination of these eye-witnesses to suggest that they had not come to the house of the deceased on the day of incident. Moreover deceased lived on his agricultural land and the incident took place in the crop of the deceased, which was very near to the house of the deceased. These eye-witnesses were attracted to the spot on the commo--tion. Sketch of vardat Exh. 27 on the record and evidence of Ranomal Tapedar P.
9. W. 9 show that the incident took place at a distance of 36 feet from the house of the deceased. The evidence of all these three eye--witnesses is very much consistent and free from any material contradic--tion or discrepancies so far the facts of the occurrence are concerned All these witnesses also saw deceased removing three buffaloes belonging to the appellant and there was an altercation on that account. Deceased wanted to take these cattle to the cattle pound and the appellant wanted to have them retrieved. In the result the appellant- gave one hatchet blow, which struck deceased and he fell down injured and the appellant took away his buffaloes. So far these simple facts are concerned all the three eye-witnesses are unanimous and names of P. W. 3 Sharif and Shaukat Ali are mentioned in F. I. R., which is lodged by complainant Ghulam Qadir.
10. Furthermore, these eye-witnesses took injured Mohammad Sharif, who became unconscious, on the cot to Nau Kot from where complainant went to the police post where report was lodged while other eye-witnesses went by train to Civil Hospital where injured was admitted but subsequently died. It is explained on the record that there was difficulty so far the problem of transport was concerned and proper explanation, which is plausible, is given for the belated registration of F.
1. R.
11. Report is lodged at Police Outpost Kaloi on 8th October 1975, at 5-30 p. m. But it is explained by the complainant in F. I. R. As well as in his evidence before the trial Court and also in their evidence by the other two eye-witnesses that after the incident injured Mohammad Sharif was carried on the cot to Nau Kot at a distance of 3 miles from vardat. The complainant party was supposed to take a train from Nau Kot which they missed, hence they bad injured Mohammad Sharif attended by private medical practitioner at Nau Kot and stayed there over-night. In the morning complainant sent the injured and other witnesses to Mirpur Khas by train and he himself travelled by bus from Nau Kot to Kaloi which is at a distance of 25 30 miles from Nau Kot. He got the bus at 2 p. m. And reached at police post where his report was registered at about 5-30 p. m. In the circumstances stated above the explanation is convincing and it cannot be said that F. I. R. Was lodged after undue delay.
12. Appellant was arrested on 12th October 1975, from the otak of Mir Allah' Bachayo by P. W. 7 Ahmed Khan S. H. O. The appellant while in custody led to the recovery of blood-stained hatchet from under the bedding in the room of his house. P. W. 5 Aban mashir has testified about this recovery.
13. He has stated that the hatchet was kept hidden under the bedding and the hatchet was stained with blood and the same was put into a sealed parcel in his presence. He has also stated that it was a one room house and he did not see any other person present at that time. This mashir is independent, and is not related to the complainant party. He is a respectable person owning 32 acres of land. No sugges--tions have been made to the witness in the cross-examination before the trial Court that he had falsely implicated the appellant. There is absolutely no reason to disbelieve this witness.
14. There is no dispute about the fact that injured Mohammad Sharif died in consequence of injury, which was inflicted on him with hatchet. P. W. 1 Doctor Sultan has deposed before the trial Court that on 8th October 1975 injured Mohammad Sharif was brought to the hospital at 4 p. m. The injured was in unconscious condition and his pulse was very feeble. He gave him immediate treatment but injured expired at 6 p. m. The doctor has further stated that injured bad one injury on his neck on the back side which was bleeding. The injury is described by the doctor as under :- Incised wound 4-- x 2 x 3-- over the back of left side of neck, cutting the muscle and first- cervical vertebra, some portion of spinal cord was also cut.
15. The doctor was of the opinion that this injury was grievous which was caused by sharp cutting weapon such as hatchet and the death was due to shock and haemorrhage in consequence of this injury. He has also given the time between death and injury to be 27 hours. The doctor has not said anything in his deposition or medical notes about the treatment of private medical practitioner. P. W. 7 Ahmed Khan S. H. O. Has stated in his deposition before the trial Court that he had examined doctor Pirbhulal the private medical practitioner but he has not been examined by the prosecution. From the circumstances it appears that probably the private medical practitioner did not interfere because it was a medico-legal case.
16. Motive is also established as deposed by the complainant and two eye-witnesses. In fact we find that there was no other enmity between the parties hence the cross-examination was not made before the trial Court from that angle and the statements of the eye-witnesses appear to be not seriously challenged before the trial Court by the defence. The defence plea that the complainant party wanted to grab the land of the appellant and in order to bring pressure on hits to give up that land in their favour, have involved the appellant falsely in this case, does not appear to be substantiated. No such suggestion was made to the complainant and other witnesses in their cross-examination before the trial Court. This plea appears to be an after thought. On the contrary it appears that material prosecution witnesses have absolutely no animus or ill will against the appellant and have no reason whatsoever to falsely implicate him in this case.
17. Mr. Khalid M. Ishaque, the learned counsel for the appellant, has submitted that in the instant case it is alleged that the appellant has in--flicted only one hatchet blow to the deceased and after that he ran away which is indicative of the fact that the appellant did not have intention to kill the deceased. Had he such intention then the appellant would have given more hatchet blows till his victim was dead and there was nothing to prevent him as the eye-witnesses were unarmed and could not interfere. It was further contended that this hatchet blow was also given in consequence of an altercation between the appellant and the deceased on account of quarrel in respect of the buffaloes and there was no premeditation. The submission of the learned counsel gets full support from the record also as it is the consistent assertion of all the three eye-witnesses, including the complainant, that appellant had in--flicted only one hatchet blow and there was an altercation between the appellant and the deceased over the buffaloes which the deceased wanted to take to the cattle pound and the appellant asked him not to do so and wanted to retrieve them. The medical evidence also is supportive of this tact that there was only one injury on the neck of the deceased. The doctor has deposed that deceased had died at 6 p. m. On 8-10-75, which is after about 27 hours. Be that as it may but there is one thing more, which is also established on the record. Buffaloes of the appellant had trespassed into the agricultural land of the deceased and had damaged his Juwar crop. The incident took place in the Juwar crop of the de--ceased and this fact is also testified by all the three eye-witnesses that the buffaloes of the appellant had damaged the crop of the deceased and the deceased was taking them to the cattle pound. P. W. 6 Ghulam Sabir Head Constable who inspected the vardat has deposed before the trial Court that Juwar cultivation of the deceased appeared to have been damaged by the cattle and there were buffaloes-dungs at the vardat. The anxiety of the deceased was also apparent that even on Eid day he left his guests in his house and went to take a round of his cultivation most probably for the reason that the crop was in the process of being ripe. The factum of damage to the crop and the presence of dungs of cattle in the field of the deceased is prominently mentioned in the mashirnama of vardat Exh. 15 on the record. Mashir Aban has also supported this fact in his evidence before the trial Court. In these circumstances it can be said that tree deceased was within his rights to take the buffaloes of the appellant to the cattle-pound and the appellant had no legal right to retrieve them from the possession of the deceased.
18. After careful consideration of all the facts and circumstances of this case as stated above we are of the view that in this case the offence attracted would be section 326, P. P. C. And not section 302, P. P. C.
19. The learned counsel for the appellant has further invited our atten--tion to the fact that the deceased was aged about 40 years at the time of incident and was of average built as mentioned in post mortem report Exh. 9 while on the other hand the appellant was a mere young boy of 16 or 17 years of age at the time of incident. He has referred us to medical certificate of age on the record as Exh. 3 which shows that appellant was examined by Civil Surgeon Civil Hospital Mirpur Khas and was found to be 18 years old on 21-8-76 after radiological examina--tion. The incident took place on 7-10-75 and it is evident that on the day of incident the appellant was about 17 or 18 years old.
20. We, therefore, after careful consideration of all the attending circum--stances of this case alter conviction from 302, P. P. C. To 326 P. P. C. And substitute a sentence of R. I. For 7 years and a fine of Rs. 1,000 or in I default R. I. For one year more. We also maintain conviction of .4 appellant under - section 24 of Cattle Trespass Act and reduce the sentence from one year to R. I. To six months, as section 24 of the said Act pro--vides for a maximum imprisonment for period not exceeding six months. Both sentences are to run concurrently.
21. With this modification appeal is dismissed, Order accordingly