AGHA ALI HYDER, J.-----The appellants were convicted by the learned Sessions Judge, Sanghar, for offences under section 302./34, P. P. C. And sentenced to suffer imprisonment for life. Four other co-accused were given the benefit of doubt and acquitted.
2. The prosecution story, in brief, is that the appellant had enticed away the wife of Ibrahim since acquitted, a number of times, and, on the last occasion, had kept her with himself at Dubai for about a year. Even after the return, she had filed a case against her husband at Karachi. This had annoyed Ibrahim and the other members of the family. Dosso is actually the son of Ibrahim Abdullah had visited his village on 28-7-1971. The next day, that is, on 29-7-1971, near about the mid-day, Abdullah and some other people were sitting at the hotel of Baloucho Bagrani at their village, when the appellants, with four others variously armed, had turned up. Abdullah was killed at the spot, and, when the people sitting with Abdullab tried to intervene, injuries came to be sustained by P. Ws. Ghazi Khan and Shahab Khan. After some time, Misri, the maternal uncle of Abdullah, had proceeded to Police Station, Shahdadpur, where the First Information Report came to be lodged at 2-45 p. m. A. S. I. Muhammad Khan, after recording the First Information Report, proceeded to the `Wardat' which was situated in village Bachal Bagrani, and found the dead body of Abdullah lying in a pool of blood. He secured the blood-stained earth, and sealed it. Later, he prepared the 'Mashirnama' of the `wardat' and the inquest report and the dead body was sent for the post-mortem examination. Enquiries were made from Ghazi and Shahib Khan, and they were referred to the Medical Officer, Shabdadpur, for treatment. Dosso came to be arrested the same day from his house. His clothes were blood--stained, and there were also injuries on his person. The clothes came to be secured. He had later taken the Police Party, and had produced a hatchet.
Umar also was found to be wearing blood-stained clothes, and there were injuries on his person.
He had also produced a blood-stained hatchet. The A. S. I. Prepared `Mashirnama' for the same, and sent the present appellants to the Medical Officer, for treatment. S. H. O. Ali Anwar, on getting the information about the incident, proceeded to the 'wardat', and verified the investigation, which had been carried out till that time. The other accused came to be arrested, but that is not material for the purpose of the case. The blood-stained articles were sent to the Chemical Examiner, and, after due investigation, the case carne to be challaned in Court. It might be mentioned that there was a counter Report of the incident also, which was lodged by one Muhammad.
3. The appellant Umar in his statement at the Court of Enquiry attributed his injuries to Shahib Khan, Ghazi Khan and Abdullah, when they are alleged to have attacked Dost Muhammad and Gul Hassan.
He also admitted that there was a counter case against Ghazi and others. The rest of the allegations came to be denied. At the trial, however, he denied the other allegations, and added that he had abducted Mst. Sayani, a cousin of Abdullah, a year before the incident, and that he was also a witness in the counter case. That accounted for his being involved in the case. Dosso also, at the Court of Enquiry, admitted the injuries, saying that the same had been given to him by Shahab Khan and others. The other allegations came to be .Denied by him, Inter alia, he had the following to say :-- "On the day of incident I along with Gul Hassan was going to Iron-smith for getting our plough blades repaired. When we reached near the hotel, accused in the counter case came out from the hotel and surrounded us on the road in front of the hotel. I was given hatchet injuries by deceased Abdullah, Sahib Khan and Ghazi. Deceased might have received blows in exercise of our right of private defence."
4. According to Dr. Abdul Haq, Abdullah had the following injuries on his person :- (1)Incised wound 6" x --" transverse over the upper lefts occipital cutting skin aponoeurosis and skull vault with brain matter protruding out.
(2)Lacerated wound 4" x 1/4" over right occipit tearing skin and muscle above.
(3)Lacerated wound 1--" x --" over the left root of shoulder tearing skin and muscle.
(4)Echymosis 4" x 4" over the right triceps region.
(5)Lacerated wound --" x --" over the right lobule of the ear opposite to tragus.
The internal examination revealed that the scalp and skull wall were cut, so was the brain. The cause of death, according to him, was shock and haemorrhage caused by injury No. I, which was sufficient, in the ordinary course of nature, to cause death.
5. Ghazi Khan had three lacerated wounds, the 4th being echymosis. The injuries Nos. 1 and 2 were described by Dr. Abdul Haq to be grivous in nature.
6. Shahab Khan had two lacerated wounds. There was a swelling in the forearm and echymosis oar the shoulder and the thigh.
7.Umar had the following injuries :- (1)Incised wound 1-- " x 1/6" x skin deep over central occipit.
(2)Swelling 2" x 2" over the root of left thumb dorsally.
(3)Abrasion 3-- " x 1/6" over 10th rib on left lateral side.
(4)Echymosis 3" x 2" over left shoulder.
According; to the Medical Officer, the injuries were simple.
8.The injuries of Dosso were as follows :- (1)Incised wound 3" x --" x skin deep over left hand dorsally.
(2)Lacerated wound 1" x -- " oblique over right occipital upper region.
(3)Echymosis 4" x 2" oblique` over central vertebra column in. Between the scapulae.
(4)Swelling 2" x 2" over left scapular region.
These also were simple in nature,
9. The eye-witness account has been furnished by as many as five witnesses, namely, Misri, Haji Sahib, Sanwan, Miro and Ghazi Khan. Except Sanwan, the other witness were closely related to Abdullah. However, even Sanwan, who lived in a different village, was friendly with the complainant's party. All the same, the fact remains, that Haji Sahib was the maternal uncle of the appellant, Umar. The other wit--nesses, apart from Sanwan, a co-villagers of the appellants. Out of these, Haji Sahib and Ghazi Khan have also received injuries, and that is not denied. True that there are some discrepancies in the version of the witnesses in regard to whether Balouche's employee was at the hotel, and whether Hussain Khaskheli, who used to supply the milk was there, or, not there. They are also at variance as to injuries to Abdullah, Haji Sahib and Ghazi Khan. There is no gainsaying the fact, that there were some other people at the hotel, who had witnessed the incident, and they have not been examined. The position, however, remains that they had mentioned the presence of the appellants as of the other co-accused, since acquitted, and ascribed their roles. They have also furnished the motive referred to earlier. The appellants admit their presence and also their injuries. Dosso also stated at the trial that the injuries of Haji Sahib, Ghazi Khan and Abdullah might have been received in the exercise of the right of private defence by the appellant's party. That is wide of the mark. Abdullah is stated to have repeatedly enticed away Mst. Khairi. He was, for some time, at Dubai, and after return from there, was living in village Matali. He is stated to have come to this village just a day before the incident and was staying with his maternal uncle Abdullah. The only motive alleged for the attack on the appellant's party was that Umar had enticed away a woman by the name of Mst. Sayani. That appears to be a mere padd--ing. On the other hand, issues have not been joined in regard to the enticement of Mst.
Khairi. This dishonour to the family wag rankling in the minds of the appellants, and once Abdullah came to their village, they decided to settle their accounts. That is why Abdullah was the main target, and was done to death on the spot. Haji Sahib and Ghazi Khan also received the injuries, when they came to the rescue of Haji Abdullah. Further, the prosecution witnesses have properly explained the injuries on the present appellants. It was just to repel the attack and save their lives.
Patently, the appellant's party was the aggressor, and it was they who had the motive for the attack. That the appellants were suitably prepared to carry on the attack is also proved by the production of hatchets on their parts, which has been deposed to by Balloo Khan, the Mashir. Balloo Khan did try to introduce some con--fusion, but there appears to be no reason to distrust the evidence of A. S. I. Muhammad Khan. The case against the appellants has been established beyond any reasonable doubt, though I am of the opinion that they should have been convicted for offences under section 302/149, and not under section 301/34, P. P. C. As was done by the trial Court. The four co-accused have been given the benefit of doubt, and it is not the finding of the trial Court that the crime had been committed only by the present appellants. I will, therefore, alter their convictions from section 302/34, to section 302/149, P.P.C. At the time of the incident, the lesser punishment for murder was transportation for life, and there--fore the learned Sessions Judges was also in error to have given imprison--ment for life. It will, therefore, sentence the appellants to transportation for life. The appeal is dismissed with this modification.
10. Though there was a charge under section 148, P. P.C. And also for offences under sections 325 and 323, P. P. C., yet neither there was finding on that account nor any sentence awarded. The punishment would have beer. Only concurrent, but there should have been a proper sentence, looking to the nature of the injuries sustained by Haji Sahib and Ghazi Khan. However, as there is no appeal preferred, nothing can be done about it.