1. ' SAIJAD ALI SHAH, J.-This appeal is filed against the judgment dated 9th February, 1978 of learned Sessions Judge, Tharparkar at Mirpurkhas whereby he has convicted appellant Devraj under section 302, P. P. C. And sentenced him to life imprisonment. By the same judgment the learned Sessions Judge has acquitted co-accused Sarupo as evidence against him was found to be doubtful. On 1-10-1979 after hearing the arguments of learned counsel appearing for each side, by a short order, we dismissed the appeal with modification that we altered the conviction from section 302, P. P. C. To section 325, P. P. C. And reduced the sentence from life imprisonment to R. I.
2. For 5 years with reasons to be given subsequently which follow now.
3. ' Shortly stated the prosecution case is that on the day of incident i,e, 23-5-1975 at about 2 p.m.
4. Deceased Mir Muhammad was sitting under a babul tree on the bank of Mithro canal in Deh 339, Taluka Jamesabad, while his goats were grazing. Appellant Devraj armed with a lathi and acquitted co-accused Sarupo came there and abused deceased Mir Muhammad and asked him as to why he had beaten their boys on the preceding day, upon which Mir Muhammad denied having beaten the boys and further explained that he had only made enquiries from them with regard to the missing collars of his goats. It is the case of the prosecution that after this conversation acquitted accused Sarupo instigated, whereupon appellant Devraj struck a lathi , blow on the head of Mir Muhammad who fell down injured. The incident- was also witnessed by P.
5. Ws. Punhoon, Mangho, Ghulam Muhammad and Hassan. After inflicting the lathi blow, the, assailants started to run away and chased by the witnesses, who succeeded in apprehending appellant Devraj, while acquitted accused Sarupo made good his escape. The witnesses tied the hands of appellant with a towel and made him sit at the spot. They also secured his lathi. In the meantime, Mir Muhammad succumbed to his injury. P. W. Punhoon went and informed complainant Paryo, who is maternal uncle of the deceased at "Khara" near the house of Mitho.
6. Ayub and Mitho were also sitting when P. W. Punhoon -apprised complainant Paryo of the details of the incident, as stated above. Complainant Ayub, Mitho and other persons came rushing to the scene of offence where they found Mir Muhammad lying dead with head injury and appellant Devraj present at the spot having been apprehended. Eye-witnesses Mangho and Ghulam Muhammad and Hassan were also present who confirmed the story of incident. Leaving others near the dead body, complainant Paryo went to the Police Station Jamesabad where he reached at about 5-45 p.m. And lodged the report. The distance between the police station and the place of occurence is about 16 miles.
7. ' After registering the F. I. R. Muhammad Khan A. S. I. Came to the place of occurrence which was pointed out by the complainant. He found the dead body lying there with head injury under a babul tree. He prepared mashirnama of injury and inquest report and also secured blood from the spot which he put into a sealed parcel. He prepared mashirnama of the scene of offence. He also found appellant Devraj present at the spot under apprehension, and put him under arrest. He also secured bloodstained lathi from the spot which was alleged to be the weapon of offence and belonging to Devraj and put it into a sealed pascel. He examined eyewitnessess, namely, Punhoon, Mangho and Ghulam Muhammad and Hassan. He examined other witnesses who where present at the spot. The investigating officer sent for the Doctor and had post-mortem of the deceased perform at the spot for the reason that the scene of offence was at such a place that transport could not conveniently be arranged for take away the dead body to the hospital. On the following day he arrested co-accused Sarupo from the otaq of Muhammad Kassim. On the same day he got confessional statement of appellant and Devraj recorded before the first class Magistrate Jamesabad. On 26-5-1975 he got statements under section 164, Cr. P. C. Of witnesses Punhoon, Ghulam Hussain, Ghulam Muhammad and Mangho recorded before the same Magistrate. After completing other steps of investigation the investigating officer finally submitted challan in the Court.
8. ' Before the trial Court the prosecution examined nine witnesses in support of its case. P. W. 1 Paryo is complainant who was informed about the incident by P. W. Punhoon. P. W. 2 Punhoon, P. W. 3 Mangho and P. W. 6 Ghulam Muhammad have been examined as eye-witnesses. P. W. 4 Muhammad Parial Tapedar had prepared sketch of the vardat Exh. 11-A. P. W. 5 Muhammad Khan constable had brought the Medical 'Officer to the spot for post-motem examination. P. W. 7 Muhammad Ayub mashir has attested and produced mashirnamas Exhs. 15 to 19. P. W. 8 is Muhammad Khan A. S. I. Who had has investigated the case. P. W. 9 Mr. Muhammad Aram is Mukhtiarkar and First Class Magistrate who has recorded the confession of appellant Devraj. The prosecution has also produced report of the Chemical Examiner Exh. 23 which is to the effect that lathi, earth and clothes of deceased were found to be stained with human blood.
9. ' Appellant denied the prosecution allegations in his statement under section 342, Cr. P. C.
10. Proclaiming innocence and implication due to enmity. He has not examined any witness in defence.
11. ' In this case the incident took place in broad daylight at about 2 p.m. And there are four eye- witnesses, who had seen the occurrence and caught the present appellant at the spot and detained him whereafter he was arrested by the Investigating Officer who visited the scene of offence on the same day. From the evidence of eye-witnesses P. W. 2 Punhoon is stated to be nephew, of deceased but the other two eye-witnesses, namely,. P. W. 3 Mangha and P. W. 6 Ghulam Muhammad are not related to the deceased and are said to be independent in the sense that they are not related to the complainant party, nor have they any animus against the appellant. The version of these eye-witnesses, so far the material particulars of the incident are concerned, is very much consistent and free from doubt. All- the three eye-witnesses have unanimously stated that deceased Mir Muhammad was sitting Under the babul tree, when the appellant And acquitted accused came there and, after having conversation with him, at the instigation of acquitted accused, present appellant gave a .Lathi blow on the head of Mir Muhammad who fell down injured and .At the intervention of these witnesses both the assailants attempted to run away, and after giving a chase the witnesses, succeeded in apprehending present appellant who was armed with his lathi. The appellant was detained by them at the spot. It is also the version of these witnesses that, after the incident Punhoon went and informed complainant, who along with other persons, came to the spot and was apprised of the details of the incident by them. Of course there are minor discrepancies in their evidence, which in fact did not relate to material particulars of the insident, as stated above, but pertain to other details such as who was Hari of which Zamindar. The learned trial Court has given benefit of doubt to the co-accused and acquitted him for the reason that. Apart from oral testimony of the eye-witnesses against him. There was no corroborating evidence to connect with the commission of the crime. The case of the acquitted co-accused was distinguishable from the case of the present appellant on the ground that the acquitted accused was not apprehended at the spot, and also the fact that the only allegation against him was that he instigated the present appellant but himself did not take active part in the assault. P. W. 2 Punhoon having admitted his relationship with the deceased has given a very clear version of the incident and has stated that at the relevant time he had brought cattle heads for grazing. Those cattle heads belonged to Mir Muhammad of whom he was a hart also. Deceased Mir Muhammad was also there grazing some goats. Mangho Machhi was also grazing his cattle near the place of occurrence. Ghulam Muhammad and Hassan reached the spot and stopped to chit-chat with him as they were on their way to Sajaro. The incident took place, in broad daylight . As stated above, which was seen by these eye-witneSses. Hassan is named in the F. I. R. But could not be examined as he died about 5 or 6 months prior to the according of evidence before the trial Court. P. W.
12. Punhoon also went and informed complainant and other witnesses. The version of the incident is fully supported by P. W. 3 Mangho and P. W. 6 Ghulam Muhammad who have no interest whatsoever in either party. Having failed to discover anything against P. W. Mangho, it'was suggested to him in his cross-examination before the trial Court that the was hart of Muhammad Yousuf Bhurgari, while the appellant and co-accused word Harts of Muhammad Kassim Burghari, who are brothers inter se, but having no cordial relations. It was further suggested that, since there were difference between two brother Zamindars, the appellant and acquitted co-accused were falsely implicated by Haris of Muhammad Yousuf Bhurgari. This suggested enmity fell flat for the reason that it was not pin-pointed as to what was the enmity between the two brother Zamindars ; and secondly, as to why harts of one Zamindar would implicate Harts of another Za,mindar. Thirdly, why Ghulam Muhammad, who is not a hart of Zamindar Muhammad Younus Bhagari, should support the version of the prosecution. And fourthly, the appellant in his statement under section 342 Cr. P. C. Recorded before the trial Court does not mention specifically that he was involved falsely because of enmity between two brother Zamindars. We are impressed with the testimony of P. W. 6 Ghulam Muhammad, who is a Durani by caste and also lives in a different village called Bahadur Khan. He has very candidly stated that he and Hassan both were on their way to Samaro when the incident took place. He has mentioned the presence of two other eye-witnesses, namely, Punhoon and Manghe. He has testified about the conversation which took place between two assailants on one side and the deceased on the other, which subse' quenfly culminated in exchange of abuse, subsequence of which at the instigation of one appellant the other assailant dealt a lathi blow to the deceased on his head. According to this witness, he did know the two assailants before but Ikas deposed that, after the incident, they chased the assailants and 'succeeded in apprehending the present appellant who gave his name as Devraj. He has confirmed the fact that Punhoon went and informed complainant who came to the spot alongwith Alu, Manu and others. This witness was cross-examined on the lines that, since le did not know the appellant, he should have been made to identify the appellant in identification test at the time of investigation of the case, and since no identification test was held, his evidence is of no assistance to the prosecution. This argument is not valid for the reason that the appellant was apprehended at the spot after which he came to know about the name of the appellant which he has given.
13. Since he was one of the persons who chased the assaillants, apprehended the appellant and detained him at the spot and was present till the arrival of the police-party, who arrested the appellant, and also came to know about this name and identity, it was not necessary, in the circumstances, to hold the identification test. In the circumstances, we do not find any reason whatsoever to doubt the veracity of these eye-witnesses who have been examined by the prosecution. This version in further fully supported by the complainant Paryo, who was informed by eye-witness Punhoon, who came to the site, saw the dead body and appellant Devraj apprehended and detained by the eye-witnesses, went to the Police Station and lodged the report in which all details are given, including the names of the assailants. There is also no delay in the filing of the F.
1. R. Keeping in view the fact that the incident took place at 2 p. m. Whereafter -Punhoon informed the complainant who came to the spot, verified the facts and went to police station where the report was lodged at 5-45 p. m. When the distance between the spot and the police station is about 16 miles.
14. ' The trial Court has rightly ruled out of consideration the judicial confession made by appellant Devraj on the following day of the incident which was recorded by the Magistrate. We agree with the learned trial Court that several important questions were not recorded by Mr. Muhammad Aslam Mukhtiarkar and First Class Magistrate who took down the confessional statement. It was not recorded that the Magistrate revealed his identify to the confessing accused and told him that whether be confessed or not he would not be handed over to the police. He had also not asked from the confessing accused as to why he is making his confession. He did not ascertain from the confessing accused whether the said confession was being given by him on any inducement, threat or promise. The Magistrate also did not care to find out whether there were any marks of violence on the person of the confessing accused. For these reasons, we feel satisfied that the judicial confession was rightly not considered by the trial Court.
15. ' There is very strong circumstantial evidence against present appellant. It is to the effect that he was apprehended at the spot by the eye-witnesses, who secured from him blood-stained lathi, and detained him at the spot where he was seen by complainant Paryo who came to the spot and lodged the F. I. R. The appellant remained detained at the spot by the eye-witneses till the arrival of the Police and were taken into custody. His lathi with which the blow was inflicted on Mir Muhammad was put into a sealed parcel after recovery and was sent to the Chemical Examiner who has affirmed that the same was stained with human blood. We feel satisfied with this evidence particularly when there is no enmity, between the parties, and there is no convincing reason for these witnesses to apprehend and detain the present appellant at the spot, or substitute him with the real culprit if there was any.
16. ' The occular version is supported by the medical evidence which is available on the record. The doctor who performed the post-mortem has testified that he found injuries on the dead body, and one of them was a lacerated wound 2" x r bone deep on the left side of the occipital region. The other injury was a contusion 2" x i" on the front right side of the chest. On external examination he found the occipital bone to have been fractured causing damage to the brain, and the membranes were congested and lacerated. The brain was also congested and lacerated, and there was extra dural beamatoma. Death was due to injury No, 1 which was a substance lacerated wound on the head and these injuries were caused by a hard blunt such as lathi. The doctor also observed that he found digested material in the stomach of the deceased who had taken meals about 5 to 6 hours before his death. This fact confirms the time of incident, which is stated by the prosecution to be 2 p. m. It .Was argued by the learned counsel for the appellant that, since there was only one blow caused by the appellant on the head and that too in consequence of an altercation between the deceased and the appellant intention cannot be imputed to the appellant to kill the deceased. In support of his submission the learned Advocate has relied upon the decision of a Division Bench of this Court in Muhammad Haroon Rashid and 2 others v. The State (1) In the case referred the facts were that two co-accused had caught held of deceased, while the main accused went to his house nearby and brought an iron pipe with which he struck one blow on the head of the deceased who fell down on the ground and died subsequently in the hospital. It was held that in the absence of enmity between the parties, the blow was inflicted in consequence of an altercation; hence there was common intention and the conviction was altered from section 302, P. P. C. To section 325, P. P. C. So far as the main accused was concerned, and a sentence of 5 years was substituted. The facts of the present case are somewhat indentical. In the circumstances, we alter the conviction from section 302, P. P. C. To section 325, P. P. C. And reduce the sentence from the imprisonment to R. I. For 5 years.
17. ' With his modification the appeal is dismissed.