' AMIR HANI MUSLIM, J.---,Through this appeal the appellants have impugned the judgment of IVth Additional Sessions Judge, Hyderabad, by which she had convicted all the appellants under section 302, P.P.C. Read with section 34, P.P.C. And sentenced them to suffer R.I. For life and to pay fine of Rs,10,000 each to the L.Rs, of the deceased and in case of default to suffer further R.I. For 3 months while extending the benefit of section 382-B, Cr.P.C. To the appellant Fakir Muhammad as the other appellants were on bail.
2. Brief facts of the prosecution case as unfolded in the F.I.R. Are that the complainant Ahmed Leghari lodged F.I.R. On 21-5-1995 at about 6-30 p.m. Stating therein that he was working at his fields on the above date and time. He was told that Allah Bachayo Leghari as got the land near his village. The fields of Allah Bachayo were cultivated by his relatives Khair Muhammad Hussain and Imran Bux Leghari. Before the incident Allah Bachayo Leghari, however, had brought some other Harries by caste Khashkheli from another village who were settled near their village. There is hand- pump near the village's mosque from where the ladies of village used to take water. On 21-5-1995 at about 6-30 p.m. He heard the cries from nearby mosque and ran towards the village mosque.
Mumtaz Leghari and Usman Leghari also reached there. They saw that accused/appellant Fakir Muhammad was holding an axe. Gul Muhammad, Ghulam Rasool, Karim Bux and Noor Ahmed were having Lathies in their hands and they were causing injuries to Hussain, Muhammad Juman, Muhammad Khair, Muhammad Imam Bux Leghari. Complainant and others made Hakals to stop them whereupon all the accused/appellants went away abusing the complainant party. Hussain succumbed to the injuries. The accused/appellants had assaulted on the reason that appellant Noor Ahmed was taken bath at the hand-pump and he was prevented by the deceased Hussain and injured. Such F.I.R. Was lodged at Police Station Tando Muhammad Khan.
3. Pursuant to the registration of the F.I.R. The appellants were arrested and after usual investigation case was challaned before the trial Court.
4. The appellants pleaded not guilty and claimed trial.
5. At the trial the prosecution has examined complainant Ahmed as Exh.14. P.Ws. Muhammad Juman as Exh.16, Imam Bux as Exh.18, Khair Muhammad as Exh.28, Court-witness Abdul Khaliq as Exh.31, Obedullah as Exh.32, Muhammad Umer as Exh.37, Abdul Razzak as Exh.46, Dr. Anwar Hussain as Exh.49 and Dr. Fida Hussain as Exh.51. The learned D.D.A. For the State thereafter closed the side of the prosecution vide Exh.57.
6. The appellants have denied the entire story of the prosecution claiming innocence in their statements recorded under section 342, Cr.P.C. They have neither examined themselves on oath nor led any defence evidence.
7. The trial Court framed following points for determination:-
(1) Whether the deceased Hussain died an unnatural death due to injuries sustained by him"
(2) Whether the accused in furtherance of their common intention armed with hatchet and Lathies did an act i.e. After abusing complainant Ahmed, P.Ws. Muhammad Juman, Muhammad, Khair Muhammad, Imam Bux and Hussain attacked on them with hatchet and Lathies with such intention and under such circumstances that if by that act accused had caused Qatl of them, they would have been guilty of their Qatl-i-Amd and intentionally, knowingly committed Qatl-i-Amd of Hussain and caused injuries to above P.Ws. Except deceased Hussain, at the date, time and place as claimed by the prosecution.
8. After conclusion of the trial and hearing the arguments of the both sides the trial Court passed the impugned judgment dated 9-2-2004 convicting the accused/appellants as mentioned hereinabove.
9. It has been contended by the learned counsel for the appellants that impugned judgment is bad in law and the learned trial Judge convicted the accused/appellants in absence of evidence.
According to him here was material contradiction in the depositions of the prosecution witnesses, therefore, the witnesses should not have been believed by the learned trial Court. He further submitted that the deceased Hussain died on account of hatchet injuries and at least four of the appellants did not cause hatchet injury, therefore, they could not have been convicted under section 302, P.P.C. The learned State Counsel has supported the impugned judgment against the appellant Fakir Muhammad but he has not been able to connect the other appellants with the commission of alleged offence under section 302, P.P.C. On the basis of the material produced by the prosecution before the trial Court.
10. I have heard the learned counsel and have perused the record. P.W. Ahmed had deposed that when he reached place of incident he saw injured Hussain,Juman, Muhammad and Khair Muhammad lying on the ground and he was told that Fakir Muhammad, Noor Ahmed and Karim Bux inflicted injuries to them. He further, stated that appellant Fakir Muhammad has caused hatchet injuries to Hussain on his head. In his cross-examination P.W.1 Ahmed has denied that he has seen any of the appellant causing injuries to any injured. Therefore, his evidence could not be made basis to convict the appellants as it was not confidence inspiring. He in his deposition has not stated that he himself has seen the appellants causing injuries to the injured or the deceased.
11. P.W.2, Muhammad Juman, who was also an eye-witness of the incident, has deposed that the appellant Fakir Muhammad gave hatchet blow on the head of the deceased Hussain who fell down whereupon the appellant gave another blow to the deceased. P.W. Muhammad Juman also deposed that.Appellant Gul Muhammad gave him Lathi blow on his head, he fell down, became unconscious and regained his senses in the hospital. He in his deposition has further stated that Mumtaz, .Usman and Ahmed had also come there and they witnessed the incident. In any event, this prosecution witness did not allege that except appellant Fakir Muhammad any of the appellant caused Lathi blows to deceased Hussain.
12. P.W. Imam Bux in his deposition has stated before the Court that he has witnessed the incident and stated that after altercation with the deceased. Hussain appellants Fakir Muhammad and Karim Bux went to their house and Fakir Muhammad brought hatchet while appellants - Karim Bux, Rasool Bux and Noor Muhammad were armed with Lathis. Appellant Fakir Muhammad caused hatchet blow on the face of deceased Hussain who fell down. And thereafter appellant Fakir Muhammad gave another hatchet blow to the deceased. He further deposed that appellant Karim Bux had given Lathi blow on his head whereas appellant Ghulam Rasool gave Lathi blow to P.W.
Khair Muhammad. He also deposed that appellant Noor Ahmed had given Lathi blow to P.W.3 Juman. In cross-examination it has been stated by P.W. Imam Bux that after receiving injury he became unconscious and regain his senses on the following day.
13. P.W. Khair Muhammad in his evidence has stated that he was present at the time of incident and say appellants Noor Ahmed and Karim Bux abusing deceased Hussain and thereafter appellants Noor Ahmed and Karim Bux called Fakir Muhammad, Gulo and Ghulam Rasool and told them that Hussain is not allowing them to take bath. Appellant Fakir came there with hatchet while other appellants were armed with Lathies. Appellant Fakir Muhammad gave hatchet blow to the deceased Hussain on his head, who fell down and thereafter he inflicted second blow on the back of deceased. P.W. Khair Muhammad in his deposition has further stated that appellant Ghulam Rasool gave him Lathi blow and he went unconscious and did not know what happened thereafter.
It was further deposed by him that Imam Bux and Juman had also received injuries and were removed to the hospital by Ahmed.
14. Usman in his deposition has stated that he heard cries, rushed fronf his house and saw that Imam Bux, Khair Muhammad, Juman and Muhammad were present there along with deceased Hussain. He saw appellant Fakir Muhammad armed with hatchet while Karim Bux, Muhammad, Rasool Bux and Noor Ahmed were having Lathies in their hands. Fakir Muhammad caused hatchet blow to Hussain on his face and also gave another blow whereas the remaining appellants gave Lathi blows to Imam Bux, Khair Muhammad, Muhammad and Juman who also fell down and thereafter the injured were removed to the hospital.
15. The statements of these prosecution witnesses were also recorded under section 164, Cr.P.C. The other evidence is not material for the purpose of deciding this appeal. From the aforesaid evidence of the prosecution witnesses it is crystal clear that appellant Fakir Muhammad had caused hatchet injury on the head/face of the deceased. This fact is also substantiated by the medical evidence of Dr. Anwar Hussain, who conducted post-mortem and was examined as prosecution witness. In his evidence the doctor has stated that the deceased Hussain had received two injuries on his person which were ante-mortem and were caused with sharp weapon. According to Dr. Anwar Hussain the injury No,2 caused by sharp weapon was sufficient to cause death. In regard to injury received by other injured persons, namely Muhammad, Muhammad Juman, Khair Muhammad and Imam Bux, the injuries were declared Shajjah-i-Khafifah, which is punishable under section 337(a)(i), P.P.C. And the maximum punishment for causing such injury is two yeaRs,
16. The deceased Hussain has received two injuries with sharp weapon at the hands of appellant Fakir Muhammad and injury No,2 was declared to be sufficient to cause death. In other words, appellants Nos.2 to 5 did not cause any injury to the deceased except hatchet injuries on the head which were inflicted by the appellant No,1, Fakir Muhammad. This piece of evidence has completely been overlooked by the learned trial Court while awarding the punishments to the appellants Nos.2 to 5, namely, Gul Muhammad, Ghulam Rasool, Noor Ahmed and Karim Bux. The injuries received by the injured person at the hands of the appellants Nos.2 to 5 were substantiated by the medical evidence for which maximum punishment provided is two years only. Therefore, appellants Nos.2 to 5 cannot be convicted under section 302, P.P.C. For the murder of deceased Hussain as they did not cause any injury to the deceased. It has been proved beyond doubt that appellant No,1 Fakir Muhammad has caused head injuries to the deceased, one of which was declared to be sufficient to cause death and he has been rightly convicted under section-302, P.P.C. To undergo life imprisonment and pay fine.
17. For the aforesaid reasons, while dismissing the appeal of appellant Fakir Muhammad, I acquit the appellants Nos.2 to 5, namely, Gul Muhammad, Ghulam Rasool, Noor Ahmed and Karim Bux from the charge of section 302, P.P.C. And convict them under section 337(a)(i), P.P.C. To suffer R.I.
For two years with fine of Rs,10,000 each to be paid to the injured and in default of payment of fine to suffer R.I. For three months more.
' These are the reasons of my short order, dated 10-11-2004.