1. SHAHABUDDIN, J.-The appellants Ali Muhammad, Andal, Qaim and Hazur Bux, were convicted along with five others by the Sessions Judge of Larkana of offences punishable under sec--tions 147, 148, and sections 323, 325 and 302/149, P. P. C. And while the appellants Ali Muhammad, Andal and accused illahi Bakhsha were sentenced to death for murder, the other accused per--sons including the appellants Qaim and Hazur Bux were awarded the lesser sentence of transportation for life. All the accused persons were sentenced to various terms of imprisonment for other offences. On appeal the Chief Court of Sind acquitted all the accused, except the four appellants.
2. The appeal was dismissed as far as appellants Hazur Bux, Qaim and Ali Muhammad were concerned and the death sentence imposed on Ali Muhammad was confirmed. In respect of appellant Andal the sentence was reduced from death to transportation for life. This is an appeal by special leave from the judgment of the Chief Court.
3. The case for the prosecution was as follows. In- respect of certain, land .In Deh Mithodero in Taluka Larkana a.'dispute had arisen between the prosecution witness Bakhir and accused Ali Nawaz who was acquitted by the Chief Court. They applied to Government for the land and at first it was granted to Ali Nawaz, but on appeal filed by witness Bakhir the Revenue Officer granted the land in dispute to Bakhir by his order dated 30th July 1953. The purchase money was paid and Ijazaatnama dated the 5th December 1953 was obtained by Bakhir for taking possession of the land; but there was resistance from accused Ali Nawaz and ultimately Bakhir got possession on the 26th May 1954, with the Police aid. The Police constable who was deputed to aid the handing over of possession, found the party of the appellants armed with lathis and hatchets. Apprehending a breach of peace this witness snatched away the weapons from them and made a report with regarding to the incident to his superiors. Ultimately action was taken under section 107, Cr.
4. Procedure Code against Ali Nawaz and his party accused Qaim then filed- a Counter Complaint against Bakhir and his men. When this case came up for hearing on the 6th August 1954 at Larkana and the prosecu--tion party had gone there in that connection information was brought to them by P. W. 5 Amin that the partisans of accused Ali Nawaz had entered the land in dispute, and by show of force plucked the jawar in a portion of the field and transplanted paddy thereon. Next morning witnesses Bakhir, Gohram and Ghulam Mustafa as well as deceased Ali- Nawaz went to the land in order to verify if the information they had received was correct. While they were there, the nine accused armed with guns, hatchets and lathis came and at the instigation of accused Ali Nawaz and accused Khair Muhammad, the other accused persons including the four appellants attacked Ali Nawaz deceased and witness Bakhir and Ghulam Mustafa with hetchets and lathis.
5. Deceased Ali Nawaz sustained nine incised wounds, four of which resulted in the cutting of the brain substance. Everyone of those injuries was by itself sufficient to cause death. Ali Nawaz died on the spot while witness Ghulam Mustafa who sustained seven injuries and witness Bakhir who had five injuries became unconscious. Witness Gohram rushed to the Police Station a distance of seven miles and lodged the First Information at about 8-15 a. m., the occurrence having taken place at sunrise. This witness did not sustain any injury but went to the Police Station soon after the deceased and his party were attacked and injured. But by the time he went there appellant Andal had gone to the same Police Station and lodged a report to the effect that when he was passing along the road he saw the appellants Hazur Bux and Qaim coming along the same way, that witness Bakhir, Ghulam Mustafa, Gohram, deceased Ali Nawaz and four others of their party came.
6. From the land in dispute and witness Bakbir incited his companions not to let the above- mentioned appellants go, that these two appellants were thereupon attacked with hatchets and while Hazur Bux's arm was fractured Qaim received injuries on the had and other part of the body and that on his (Andal---s) cries three persons who were named came and intervened to separate the parties and in doing so deceased Ali Nawaz, Bakhir and Ghulam Mustafa received injuries.
7. The version of the prosecution was supported by witness Gohram and the two injured witnesses Bakhir and Ghulam Mustafa. No evidence was adduced on behalf of the defence but appellant Andal in his statement at the trial relied on the report which he had made while Ali Muhammad denied his presence at the occurrence and stated that evidence was given against him because he was a brother of accused Ali Nawaz. The version of appellants Qaim and Hazur Bux was to the effect that while they were returning from their work witness Bakhar and eight others attacked them, that the deceased grappled with Hazur Bux and the deceased's companions gave Hazur Bux hatchet blows and fractured his arm and that in the fight their assailants received injuries.
8. The Sessions Judge accepted the evidence of the eye-witnesses observing that they had inculpated all the nine accused persons assigning specific and definite parts to each accused. The learned Judges of the Chief Court agreed with the Sessions Judge that the accused's party were the aggressors but they took the view that as Ghulam Mustafa and Bakhir were not examined by the Police till the 11th of August their' evidence assigning specific parts to the various accused could not safely be acted upon. Witness Gohram the First Information had assigned a specific part only to Ali Muhammad both in the F. I. R. And his evidence. He no doubt stated that Ali Nawaz and Khair Muhammad instigated the others but this was regarded as an usual embellish--ment in such cases. The learned Judges therefore held that corroboration was necessary in respect of all the accused except Ali Muhammad and as support to the evidence against the accused was available only in respect of appellants Andal, Hazur Bux and Qaim they acquitted the other accused. They were sure of Andal's participation as on his own showing he was there and as for the other two appellants their injuries showed that they participated in the occurrence. As for the number of persons present on the appellant's side in the occurrence the view of the learned Judges was that it was likely that there were as many as eight.
9. It was contended on behalf of the appellants that the fact that the prosecution did not adduce evidence in this case with regard to the injuries sustained by Qaim and Hazur Bux caused them prejudice as the Courts did not have full description of their injuries and thus could not have considered the plea of private defence adequately. But it was conceded that the injuries were not more serious than those mentioned in the First Infor--mation given by appellant Andal. The fact that these two appellants had injuries would have been of significance if they were not the aggressors. But there is a finding of the Courts below that they were the aggressors and that finding is based not only on the evidence of the eye-witnesses but also on other evidence regarding the previous incidents between the parties such as the evidence of P. W. 7 that even on the day on which witness Bakhir was taking possession these accused persons and their party came to the land in dispute heavily armed and the constable had to snatch away those arms in order to prevent trouble.
10. It was then argued that the evidence of witnesses and inter--ested and the learned Judges considered that corroboration was necessary but there was no corroboration as far as Ali Muhammad was concerned. But it is clear from their judgment that the learned Judges required corroboration only in respect of accused other than Ali Muhammad because reliance could not safely be placed on the evidence of the injured witnesses. Regarding the specific parts assigned to the accused as those witnesses were not examined till 11th August while witness Gohram assigned specific act only to appellant Ali Muhammad. It was contended that there was nothing to prevent the eye-witnesses from falsely implicating Ali Muhammad as the person who opened the attack, but it was pointed out by the learned Advocate-General that it was Ali Nawaz who opposed witness Bakhir regarding the grant of land and if Gohram had not seen the person who opened the attack he would have assigned that part to Ali Nawaz and not to Ali Muhammad. It was not said that there was any particular enmity between the witness and appellant Ali Muhammad besides the ill- feeling between the parties over the land.
11. Lastly the argument was to the effect that the common object of the assembly was only to cause grievous hurt and not death, as two of the persons were admittedly armed with guns and yet did use them, that Qaim and Hazur Bux did not strike the deceased and the evidence that Andal did so was not accepted by the learned Judges while Ali Muhammad inflicted only a simple injury. But the unlawful assembly was heavily armed and the injuries on the deceased clearly indicate that hatchets were used in the attack on him. In the circumstances every member of the unlawful assembly must have at least known that death was likely to be caused in the prosecution of the common object even if the common object was not to cause death but to cause only grievous hurt. The fact that Ali Muhammad inflicted only a simple injury on the deceased and no further part is giving to him though four fatal injuries were caused to the deceased does not therefore make a difference as far as the applicability of section 149 is concerned, though it may be advanced as a point for consideration on the question of sentence. But it is not the practice of this Court to interfere with the sentence unless it is illegal or grossly improper. The proper course is for the first appellant Ali Muhammad to approach the Provincial Government for the commutation of the sentence.
12. We, therefore, dismiss the appeal.