' This is an appeal against the judgment dated 26-2-1974 by 2nd Additional Sessions Judge, Sukkur convicting the 4 appellants under section 307, to suffer R. I. For three years, under section 326, to suffer R. I. For three years and under section 323 to suffer R. I. For one year. All the sentences were ordered to run concurrently.
' The F. I. R. In the case was lodged by P. W. 1 Hamzoo at Police Post Lakhi on 19-4-1972 at 15-45 hours under section 307/34, P. P. C. The offence was U legged to have taken place at 11 a.m. On the same day at place near the school in village Halepoto which was 6 miles from the police station. The complaint reads as under :- "I am resident of village Halepoto. Razul son of Ilyas, (2) Shahzad son of Ilyas Mekha also live in our village. They were suspecting me to be on illicit intimacy with their mother Mst. Shahzadi. But have no illicit intimacy with her. Previously also, on several occasions they had waylaid me in order to kill me, but on my being informed beforehand, they could not succeed. I had complained of this to Headman Sachal Khan Mekho. Today at about early noon, I left home with my buffaloes for leaving them in the stubble. When I reached close to the School, I found Razul son of Ilyas, (2) Shahzado son of Ilyas Piaro alias Dulo son of Hotu and Jawan son of Hotu standing there. Where Razul and Jawan were armed with hatchets and the rest with lathis Finding me coming, they challenged to murder me, saying that I was declared karo by them. Having heard this I raised cries and ran backward. Thereupon Razul gave me a hatchet blow on my head and I fell down. Upon my cries, my father Mullah Bahar and my brother Abdul Ghani came and lay over me. The accused also belabored them with hatchets and Vathis'. Meanwhile there came Abdul Malik, Abdul Hag and other people of the village who asked them not to kill the man. Then they left us and went away. My father has received hatchet injuries on his hand and my brother also has received injuries. Then, having carried my father in the bullock cart, I have come to lodge complaint. The accused in collusion with each other have inflicted hatchet and lathi injuries on me and brother with intention to commit my murder. Action may be taken."
' The F.
1. R. Was recorded by S. I. Incharge, Lakhi Police P. W. 9 in the Station Diary. He prepared the mashirnama of injuries of Mullah Bahar and Hamzo in presence of a mashir Ghulam Nabi and Abdul Hameed and recorded the statement of P. W. Mullah Bahar and referred the injured to Civil Hospital, Sukkur for treatment and certificate. The copy of the F. I. R. Was sent to Police Station Baagerjec for incorporating the same in section 154, Cr. P. C. Book. He then went to the place of vardat which was shown to him by P. W. 3 Abdul Ghani. The vardat was in village of Halepoto near a school. He prepared mashirnama of vardat in presence of P. W. 7 Menhoon and P. W. 3 Abdul Ghani.
He also prepared mashirnama of injuries of P. W. 3 Abdul Ghani in the presence of mashirs and recorded statement of Abdul Ghani, Abdul Malik, Abdul Hag and Muhammad Sachal and he referred Abdul Ghani to Civil Hospital for treatment and certificate.
' On the next day A. S. I. Nazeer Ahmed searched house of accused Shahzad and Razul in their absence and recovered one hatchet and one lathi from their house in the presence of mashirs Bagh Ali and Sachay Dino and prepared mashirnama. He also searched the hOuse of Jawan and Piaro in the presence of same menhirs. The accused were not present in their house. One hatchet and one danda were secured from the house of the accused and mashirnama was prepared. On the same day accused Shahzado was arrested. On 21-4-1972 he arrested accused Jawan. The accused Piaro and Razul were admitted to bail before arrest by the Court of Sessions Judge, Sukkur. He then handed over the papers to S. H. 0 Bagarji who submitted the challan. After committal proceedings the accused stood their trial in the Court of Additional Sessions Judge, Sukkur. The accused in their statements before Court have denied the allegations and have submitted that they have been arrested on account of enmity. Accused Razul, Piaro and Jawan had taken the pleas of alibi and stated that they were Railway employees and were present on their duties on the relevant date of 19-4-1972 upto 8 a.m. In the morning respectively at Jacobabad Railway Station, Mir Bakhar Railway Station and Rohri Railway Station. 7 hey have examined one defense witness for each one of them who has produced Railway record to prove the presence of the accused on 19-4-1972 between 12 mid-night to 8 a.m. At their respective places of duty. The relevant register showing their presence during that time has also been produced and its correctness has not been denied by Trial Court. The prosecution has examined P. W. 1 Hamzo (complainant and injured), P. W. 2 Bahar, an injured and father of the Complainant, P. W. 3 Abdul Ghani an injured and brother of the complainant, P. W. 4 Abdul Malik cousin of the complainant who had come on cries and P. W. 5 Abdul Haq a caste-fellow who had also come on cries. The injuries have been proved by the mashirnama of injuries Exh. 14 in respect of Abdul Ghani showing contusion and one swelling Injuries on Bahar are mentioned in mashirnama Exh. 21 showing two incised wounds one on head and other on index finger and injuries upon Hamzo are shown in mashirnama Exit. 22 which mentions one incised wound on head and one contusion on cheek. Dr. Khan Muhammad who was examined in the committal Court has proved these injuries and stated that injuries upon Abdul Ghani were caused by blunt weapon like lathi and were simple in nature, while injuries upon Bahar were incised, caused by hatchet and one of them was grievous. One injury upon Hamzo was by hatchet and one by a lathi. Both the injuries were simple. The motive for the crime advanced by the prosecution is that Hamzo complainant was having illicit relationship with the mother of appellant Shahzado and Razul. The recovery of hatchet and lathi has been proved by mashirnama Exhs. 13 and 17, but since the recoveries were made in the absence of the accused and there were no blood stains on the dandas and hatchets found, therefore, they have not been relied upon by the Additional Sessions Judge and in my opinion they have been correctly discarded. The P. W. Hamzo substantially reiterated the contents of his F. I. R. And stated that he was taking the buffaloes towards the Jungle at about 11 a.m. And when he reached near the primary school he found accused Razul and Jawan armed with hatchets and accused Piaro and Shahzado armed with soties. They told him that he was Karo with the mother of Razul and Shahzado, and therefore, they would kill him. He raised cries. Razul inflicted a hatchet blow on his head, Shahzado inflicted lathi on his left temporal region and he fell down. His father Mullah Bahar came running, Jawan attempted to inflict a hatchet blow upon him but it had struck his father Mullah Bahar, who was trying to save him. Razul inflicted hatchet blow at the head of Mullah Bahar.
Hamzo's brother Abdul Ghani also came there and fell over Hamzo to save him. Accused Payaro and Shahzado inflicted lathi blows upon him. On their cries Abdul Malik and Abdul Haq came on the vardat and accused ran away. He left Abdul Ghani at the vardat and took his father Bahar in bullock cart and went to lodge the report at police post, kaki. He lodged his report as Exh.
6. He and his father were referred to Civil Hospital where they were treated. He had also stated that Razul and Shahzado had suspicion that he was having illicit intimacy with Mst. Shahzadi and they had tried to assault him many times prior to this occurrence and he had therefore complained to Mr. Sachol. In cross-examination Hamzo complainant admitted that the accused had never taken precaution to conceal their position to attack him. He admitted that Abdul Malik is his cousin and Abdul Haq who is caste-fellow lives 5 miles away and many viliagerc had come to the vardat on hearing cries but he could not give their names. He could not say if anybody from teachers had come to the vardat. He did not know that sister of Abdul Malik had been abducted by Payaro. The suggestion was put to him that he and his party had been injured by thieves when they were taking away their buffaloes but he denied the same. The evidence of P. W. 2 Bahar is substantially the same as that of complainant Hamzo. He has given the approximate time of incident as Kachri Manjhand which would be approximately early noon. While returning from his land he had seen Razul and Jawan armed with hatchet and Payaro and Shahzado were armed with lathis and fighting with Hamzo. Razul gave hatchet blow on the head of Hamzo, Shahzado gave lathi blow on Hamzo who fell down and Bahar fell on Hamzo to save him, meanwhile Abdul Ghani also came there and fell down on the other side of Hamzo to save him. Jawan gave hatchet blow on his head and he has received one hatchet injury on his index finger from Razul while trying to save his son.
Payaro and Shahzado inflicted the lathi blows on Abdul Ghani, On cries Abdul Malik, Abdul Haq and other villagers came there. This witness in cross-examination gave his age to be 90 years and he had admitted in lower Court that he could not identify the accused persons from the distance of twenty feet. He admitted that sister of Abdul Malik had been abducted and a case has been registered against Payaro. He denied the suggestion that thieves had caused injuries upon him. P.
W. 3 Abdul Ghani who is the brother of the complainant substantially repeated what had been stated by his father Bahar and Hamzo. He admitted in cross-examination that Shahzado and Razul arc 'hi-others inter se and accused Payaro and Jawan are their cousins. He further admitted that on that day School was open. P. W. Abdul Malik stated that he resides in the same village and on coming out of his house he saw the complainant Hamzo going with his buffaloes and saw that the accused who were armed with hatchets and lathis had challenged him and given him blows. He further stated that he could not say as to which accused caused injuries to him. He started in cross-examination that first Mula Bahar fell on Hamzo and that Mula Bahar and Abdul Ghani fell on Hamzo with their faces towards the ground. He denied that his sister had been abducted. P. W. 5 Abdul Hag gave the same story as the other P. Ws. Have given. He stated that he was going to village Shah Kulipur from his village, while he was on his way he heard the cries and he saw the incident and saw the accused giving blows to Hamzo and then to Bahar and Abdul Ghani who came to fall on Hamzo to save him. He admitted that his village is 5 miles away from the vardat. In cross-examination he stated that he had given the details of the various injuries being caused by the accused to Hamzo Abdul Ghani and Bahar but police had not taken them down. P. W. 6 Muhammad Sachal had supported the complainant in respect of the motive and stated that Hamzo and Bahar had gone to him and complained that accused Razul and Shahzado many times attempted to kill Hamzo and they had suspicion that Hamzo was on illicit intimacy with their mother Shahzadi. He stated that he had sent for Shahzado and Razul and asked them not to kill Hamzo and the accused assured him that in future they will not attack on Hamzo. In cross- examination his evidence has not been damaged and on the other hand he has stated that accused Shahzado and Razul had shown their suspicion of illicit intimacy of Hamzo with their mother. P. W. 7 Mula Menhoon had proved that vardat memo. Was prepared in his presence by Police Exh. 13 at 5-30 p.m. On 19-5-1972 but the police had not secured blood-stained earth. The vardat memo. Was Exh.
13. The police had also noted the injuries upon P. W. Abdul Ghani in his presence and mashirnama Exh. 14 was prepared. In cross-examination he has stated that the police had not secured blood- stained earth from the vardat and marks of struggle were not observed at vardat as he stated that there are about 100 houses in his village. He is the resident of village Halepota. The absence of marks of struggle at the vardat was of no significance as vardat had taken place at 11 a.m. While the mashirnama; was prepared at 5-30 p.m. And there is a mention in the mashirnama that due to heavy traffic no foot print or -blood mark were visible. Therefore, no damage has come from the cross-examination but one fact is established that many persons live in that village and there was heavy traffic at the scene of offence. P. W. Bagh Ali was the mashir of arrest of accused Shahzado on 20-4-1971 by A. S. I. P. W. Nazir Ahmed. He is also the mashir of the recoveries of hatchet and lathi from the two houses of accused Shahzado, Raza Muhammad @ Razul and the house of accused Jawan and Piaro, but since these were not stained with blood, therefore, the recoveries are of no significance. The same mashirs also witnessed the arrest of accused Jawan on 21-4-1972. The Investigating Officer Nazir was examined as P. W.
9. He had recorded the F. I. R. As incharge of Police Post, Lakhi and entered it in Station Diary and sent the same to Police Station, Bagarji for incorporation in the 134, Cr. P. C. Book. The 1.0. Noted the injuries of the complainant as well as of injured Mullah Bahar in the presence of mashirs Ghulam Nabi Bhutto and Abdul Hameed and mashirnamas were prepared and they are Exhs. 20 and 21.
Bahar and Hamzoo were referred to the Civil Hospital. He then went to the scene of offence and saw the vardat as pointed out by P. W. Abdul Ghani and mashirnama was prepared as Exh. 13 in the presence of P. W. 7 Menhoon. The injuries of Abdul Ghani were noted in Exh. 14 witnessed by the same mashirnama. He examined P. Ws. Abdul Ghani, Abdul Malik, Abdul Haq and Sachal. He arrested the accused and searched their houses and recovered hatchets anti lathis as mentioned by me earlier. In cross-examination he stated that complainant had not stated specifically that Shahzado had given him a lathi blow or that accused Jawan had inflicted blow on the head of Mullah Bahar or as to who had caused injury to Abdul Ghani. He has further stated that Abdul Malik had not stated that Shahzado had given lathi blow to Hamzo or that Shahzado and Piaro had caused any injury to any of the P. Ws. He had further stated that Abdul Malik did mention that accused Jawan had given blow by hatchet to Mullah Bahar. He also stated that Abdul Ghani, Mullah Bahar and Abdul Haq had given similar statements to him as that of Abdul Malik. The formal F. I. R. Exh. 24 was incorporated in 154, Cr. P. C. Book, on 19-4-1972 at 7-30 hours at P. S. Bagarji and has been produced by P. W.
10. The injuries upon the injured were examined by Dr. Khan Muhammad, Medical Officer, Civil Hospital. He had examined the injured Bahar on 19-4-1972 at 7 p.m. And found one incised wound 2" x x 1" (wide) scalp deep on left parietal region. On X-ray there was fracture found on parietal bone
(2) another incised wound " x x r was on the fold of the left middle and index finger of Bahar. Injury No, 1 was grievous while No, 2 was simple and both have been caused by sharp cutting weapon like hatchet. On the person of Abdul Ghani one contusion 1" x 4" on front of left shoulder and (2) Swelling 2" x 1" abrasion lateral and of the left clavicle were found which had been caused by hard blunt substance like lathi and were simple in nature. The Doctor found (I) one incised wound I" Si f` into scalp deep on top of the head of Hamzo and (2) contusion in diameter on left cheek. Both injuries were simple, one was caused by sharp cutting weapon like hatchet while the other was caused by a hard blunt substance like lathi. No cross-examination was directed against the Medical Officer. In their statement accused denied the various allegations and stated that the witnesses had deposed against them on account of enmity. Raza. Muhammad, Piaro and Jawan further stated that they were on duty on that day. The accused examined three defence witnesses in their defence. D. W. 1 Bagh Ali clerk of P. W. R. Rohri deposed that Jawan was employed as shunting porter and posted at goods yards, and he was present on duty on 19-4-1972 from 12 night to 8 a.m.
He produced the register of such entry as Exh.
14. No particular cross-examination was directed against this witness. D. W. 2 Muhammad Anwar Assistant Station Master Pir Bakhar Railway Station stated that accused Piaro was a cabin man at that station and he was present on his duty on 19-4-1972 from 12 midnight to 8 a.m. And his presence was noted in the diary. It was produced as Exh.
44. In cross-examination however this witness admitted that Lakhi Halt is about 3 miles away from Pir Bakhar. D. W. 3 Muhammad Shafi Yard Supervisor of Jacobabad stated that accused Raza Muhammad (Razul) works as cabin man at Railway Station, Jacobabad and was on duty on 19-4- 1972 from 12 mid-night to 8 a.m. And his presence was noted in the diary of the Railway 'Station which he produced as Exh,
46. He stated that Jacobabad is 40 to 50 miles away from Lakhi Halt. He further stated that only one train after 8 a.m. Leaves from Jacobabad at 10-30 a.m. And reaches Lakhi in one hour.
' Mr. Azizullah Shaikh argued on behalf of the defence, while Mr. Nooruddin argued on behalf of the State. Mr. Azizullah Shaikh argued that in view of the admitted enmity between the parties the P. Ws.
Are interested and should not be believed, particularly, when there is no corroboration of their statement about incident from any independent source. More and still more so when independent witnesses, who had gathered at the 'scene of offence could have been produced by the prosecution. I, however, find that the incident had taken place at 11 a.m. During the day, and therefore, it was quite easy for the injured witnesses complainant Hamzoo, his father Bahar and his brother Abdul Ghani to have identified their assailants, and there was no reason for them to name the present appellant if they were not the real assailants and substitution in such cases- is a rare occurrence. Therefore in spite of the enmity the injured persons have to be believed as it was a day time assault and it is unnatural to presume that the injured would leave the real assailants and would falsely involve the appellants. Of course there could be a chance of either exaggerating the role of some of the accused or involving a larger number, but complete substitution in such cases was not possible. Mr. Azizullah Shaikh has further argued that P. W. Hamzo had fallen down and Bahar and Abdul Ghani also fell themselves on the person of Hamzo in order to save him and they had fallen faces downward therefore they could not know as to who had inflicted the injuries upon Hamzo, Bahar and Abdul Ghani. I am, however, not impressed with this argument as, I find that Hamzo before he was attacked could easily look upon the persons, who were present at that time.
Similarly, the P. Ws. Bahar and Abdul Ghani could also had the chance of looking at the accused when they were running to save their relation Hamzo, therefore, the identification of accused on the spot before the actual blows were inflicted upon the P. Ws. Was quite natural.
' Mr. Azizullah Shaikh has argued that the failure to examine independent witnesses from the locality and particularly from the school which was open should be regarded as damaging to the prosecution because the P. Ws. Themselves admit that witnesses had come to the vardat. It is correct that some other persons of the village had come to the vardat, but it has not been ascertained as to whether they had come to the vardat before the accused had run away or thereafter. If the witnesses had come after the running away of the accused then their evidence hardly mattered as they could be used only as corroborative witnesses. In this case the corroboration of the testimony of the P. Ws. Is provided by the injuries upon their persons and the medical certificate about those injuries and hence presence of the injured at the scene of offence cannot be doubted. Therefore, the non-examination of an independent person of locality is hardly of any significance particular, when the tendency of the people is to avoid appearing as witnesses.
Mr. Azizullah Shaikh has argued that Abdul Haq lives five miles away, therefore, he should not be believed, but 1 find that the F. I. R. Had been lodged at 3-45 p.m. While the offence had taken place at about 11 a.m. And the police station was 6 miles from the place of offence, therefore, the F. I. R.
Was not unreasonably delayed considering that all the three family members had been injured and were involved in the incident, and since, the name of Abdul Haq appears in the F. I. R. Therefore, his presence at the scene of offence seems to be likely as there was not so much time available with the complainant party that they could first go to the village of Abdul Haq 5 miles away and then come back, and thereafter file a report. If they had done all that it was not possible for them to file a report at 3-45 p.m. Without procuring the presence of Abdul Haq they could not take the risk of showing him present at the vardat.
' Mr. Azizullah Shaikh also argued strenuously that the pleas of Alibi in respect of Razul, Piaro and Jawan had been taken and irrefutable documentary as well as oral evidence had been produced to the effect that they were present on their duty till 8 a.m. On the relevant date as employees of Pakistan Railways at places which are far distant from the scene of offence and hence they could not be present at the vardat at 11 a.m. And therefore, they should all be given benefit of doubt and should be acquitted. It is correct that good evidence had been tendered in respect of these three accused and that evidence has been accepted by the learned Additional Sessions Judge, Sukkur, but he has rejected their alibi as he was of the view that it was possible for all the three accused to be present at their duty on the relevant date up to 8 a.m. The learned Judge has taken judicial notice of the fact that Lakhi Halt is not far from Rohri, Pir Bakhar and Jacobabad. The learned counsel for defence has not been able to seriously challenge the position taken by the learned Additional Sessions Judge in respect of Pir Bakhar Railway Station or Rohari Railway Station. Pir Bakhar Railway Station has been stated to be only three miles away from Lakhi Halt by P. W. 2 Muhammad Anwar himself who had come to prove alibi in respect of accused Piaro, therefore, even if it is accepted that Piaro was present on his duty at Pir Bakhar Railway Station at a.m. It was not difficult for him to travel three miles from Pir Bakhar to Lakhi and b miles to village Halepota in three hours time. The observation of learned Additional Sessions Judge in respect of Piaro are therefore, more than justified and in view of the definite assertion having been made by the three injured in respect of Piaro involving him with the crime, it is not possible to believe that he was not present at the scene of offence. Therefore, the plea of alibi of Piaro was of no significance.
' Similarly, accused Jawan was employed at Rohri Railway Station and it is not denied that Rohri Railway Station is not far distant from Bakhar Railway Station, therefore even if the accused was present up to 8 a.m. At his duty at Rohri Railway Station it was certainly possible for him to reach Lakhi Railway Station and the village Halepota before 11 a.m., therefore, his presence at the scene of offence is also not doubtful. In respect of Shahzado no plea of alibi has been taken and he has been clearly involved by all the three injured, therefore, his presence at the scene of offence as an accused is also proved by the evidence of the injured who should be ordinarily believed.
' In respect of Razul or Raza Muhammad, however, I have some difficulty in discarding the alibi. The learned Additional Sessions Judge has stated that one can reach within 1 4 hours at the most from Jacobabad to Lakhi if he travels in a bus. This observation of the learned Additional Sessions Judge may be correct, but, in view of the fact that P. W. 3 Muhammad Shafi, Yard Supervisor, Jacobabad, has stated that Jacobabad is 40 to 50 miles away from Lakhi Halt, which is a considerable distance and in view of the positive evidence about the presence of Razul at Jacobabad Railway Station upto 8 a.m. On the relevant date it might have been difficult for him to reach Halepota village at 11 a.m. D. W. 2 Shafi Muhammad states that only one train leaves from Jacobabad Railway Station after 8 a.m. At 10-30 a.m. And it reaches Lakhi Outpost after one hour, and hence the accused could not have used this train. In view of this position it was incumbent upon the prosecution to prove by some positive evidence that there are buses running in-between Jacobabad and Lakhi Police Station at regular intervals and it should have been further proved that the bus stand is near Jacobabad Railway Station and the buses ply upto Lakhi Railway Station, but no such evidence has been tendered. Since, the said route is in the interior of the country it may not be possible for the buses to travel at a high speed and therefore a bus may take about 14 to 2 hours in reaching from Jacobabad to Lakhi, and thereafter, it would be difficult for a person to travel 6 miles from Lakhi Railway Station to place of offence in one hour. Even, if the observation of learned Additional Sessions Judge that a person can travel from Jacobabad to Lakhi Police Post in 14 hours is treated as absolutely correct still the distance of 6 miles between Lakhi Railway Station to Halepota village being 6 miles it would require 2 hours again for a person to travel this distance of 6 miles on foot at an ordinary speed. This would make three hours in all and thus a person could possibly be at village Halepota at 11 a.m. After leaving Jacobabad at 8 a.m. But, this time would leave no margin for going from the place of duty to the bus stand of Jacobabad and it shall also have to be presumed that the bus was available at the bus stand for Razul to board and further presumption would be needed that the bus started as soon as Razul boarded the same. Thus, leaving no margin for the delay in the procurement of bus or in its starting This hair splitting in timing would depend upon presumptions which cannot be altogether justified, and therefore, I will give benefit of doubt to Razul, although it could be possible for him to reach the place of offence, but some doubt in reaching the place within time of 11 a.m. Has been raised in mind, therefore, I have allowed benefit of doubt to Razul. I am conscious that Razul has been assigned particular part by the complainant, but in view of the possibility of doubt about his reaching at the place of offence at 11 a.m. I consider his presence at the scene of offence as not being completely free from doubt and therefore, without disbelieving the evidence of the injured but considering that there might have been some confusion in identifying Razul or there may be an exaggeration in his case, I acquit Razul. But his acquittal does not affect the case of the other accused as Razul is being acquitted on the basis of a doubt. The appeals of the appellant Jawan, Piaro and Shahzado are therefore, rejected, and the appeal of Razul is allowed.