1. The appellants were convicted by the learned Sessions Judge, Jacobabad, for an offence under section 307/34, P. P. C. And sentenced to undergo R. I. For 4 years and pay a fine of Rs. 500 or in default to undergo R. .I. For 6 months. Appellant Chakar was further convicted for an offence under section 13(e) of the Arms Act and sentenced to undergo R. I. For 6 months ordering the substantive sentence passed against him to run concurrently.
2. The incident had taken place on 6-1-69 at tripahri while the first report was lodged on 7-1-69 at 12- 30, a.m. By Mobin Khan at Tajodero Police Station situated at a distance of 14 miles and it was recorded by Abdul Majid Head Constable.
3. The parties lived in different villages situated at a distance of 3/4 furlongs from each other. The parties are not related to each other but each party is related intense. The appellants and the to absconding accused are related inter se. So far the witnesses are concerned Mobin and Nadirali injured are brothers inter se and they are nephew of Makhno while Yaqoob is their cousin. Wali Mohd. And Ayub are cousins inter se. And they are not related to the injured but Wali Mohd. Is servant of Makhno and Ayub is hari of Joungal who is co-lessee of Makhno. Jamal is kamdar of Makhno.
4. About a month before this incident a bullock. Belonging to the appellants was stolen and they suspected the complainant party. Since then the relations between the parties were strained. On the day of the incident Nadirali, Mobin and Yako6b were going to pay respect to their Pir and they passed by the village of the appellants. When they reached the land, of Tajo Khan they suddenly found themselves encountered by the appellants and their to companions who had emerged from -the bushes. Appellant Chakar and absconder Alinawaz had guns while appellant Miandad and absconder Rasulo had lathis. They challenged Nadirali and others and then Chakar fired a gun shot which hit Nadirali and he fell down. Mobin and Yaqoob got frightened and took to heels raising cries. They were chased and some gun shots were also fired at them but they escaped unhurt. On the commotion Wali Mohd. And Ayub were attracted and they found the appellants chasing Mobin and Yaqoob and firing at them. Ayub and Wali Mohd. Challenged the appellants and their companions whereupon they gave up the chase and went away to their houses. The witnesses went to the scene of offence and found Nadir Ali lying unconscious. He was removed to his house.
5. Mobin went to Jamal Khan and informed him about the incident. Jamal Khan, directed Mohin to lodge the report. In the meantime Makhno returned to the village and finding that the condition of Nadir Ali was serious took him to Jacobabad and lodged him in the civil hospital. Mobin went to Tajodero Police Station and. Lodged the first report.
6. After usual investigation the appellants were challaned. The appellants proclaimed their innocence and ascribed their implication due to enmity. It was disclosed by them that some the before this incident the father of the complainant was murdered and in that case the father of appellant Chakar was prosecuted and he was convicted and sentenced to R. I. For 3 years It was further stated that sometime after this case the father, uncle and cousin of the appellant Chakar, were murdered and in that case Mobin, Nadir, Yakub, Makhno and Azim were challaned. It was denied by them that they had absconded They stated that they were available in the village and subsequently they had surrendered themselves before the police. It was also denied by them that their bullock was stolen or they had suspected the complainant party. They did not examine any witness in defence.
7. There can be no doubt that Nadirali had sustained the injuries by gun shot. This is borne out by the medical evidence. He had the following injuries: "(1) Multiple lacerated punctured type of wounds about 1/6" in diameter spread all over the abdomen and the lower of front of the chest.
(2) Multiple lacerated punctured type of wound about 1/6" in diameter, spread on the right thigh and to same type of wounds on the back of the right hand and one on the back of the left hand."
8. According to the medical officer the injuries were caused by gun shot and were grievous in nature.
9. As regards the identity of the appellants with the crime there is the ocular testimony of three witnesses, namely, Mobin, Nadirali and Yaqoob. They stated that they were going to pay visit to their Pir and they passed by the village of the appellant and after they covered some distance the appellants and their to companions suddenly emerged from the bushes and challenged them, Chakar appellant fired gun shot which hit Nadirali and he fell down while the other to took to heels and they were chases Some gun shots were fired at them but they succeeded in escaping unhurt.
10. Then there is the evidence of Wali Mohd. And Ayub. At the the of this incident Wali Mohd. Was grazing his cattle while his cousin Mohd. Ayub went to meet Wali Mohd. Shortly after-wards they heard gun reports and went running to that side. They found Mobin and Yakub running and pursued by the present to appellants and their to companions. Chakar was armed with gun while the other appellant had lathi. Chakar appellant and the absconder were firing gun shots at the to witnesses but they did not sustain any injury. They challenged the appellants and, their companions who gave up the pursuit and went away to their village. The incident was related to them by Mobin and Yakub. They also found Nadirali lying injured and unconscious: Then there is the evidence of Jamal Khan who was informed about this incident by the complainant, and he had directed the complainant to lodge the report.
11. Lastly is the motive furnished by the prosecution. It .Is stated that about a month before the incident bullock of the appellants was stolen and they suspected the prosecution party. So on that day when the, appellants found the witnesses near their village they attacked them as a result of which Nadirali sustained the injuries while the other to succeeded in running away.
12. The evidence of the various witnesses was by the learned Sessions Judge and he gave cogent reasons believed in accepting their evidence. I see no reason to disagree with him. Indeed the witnesses are closely connected with each other but that is no reason to suspect their evidence.
13. The presence of the various witnesses at the the of the incident cannot be doubted. The evidence shows that Mobin, Yaqoob and Nadirali were going to pay respect to their Pir and there is nothing unusual in it. Nadirali is the injured. Wali Mohd. Was grazing his cattle near the scene of offence while Ayub went to see him. Nothing substantial was brought out in the cross-examination to discredit the testimony of the witnesses. The incident had taken place in broad daylight and consequently there can be no question of, any mistaken identity. There can also be no doubt that the incident had taken place at the spot where it was alleged by the prosecution. When the investigating officer visited the scene of crime he found to fired cartridges and to wads. There was also blood on the ground and the blood--stained earth was secured. One stick which was said to be of the injured was also found lying there and it had pellet marks. This place was at a short distance from 'the village of the appellants.
14. The evidence of the witnesses is further corroborated by the fact that the appellants had absconded after the incident. They were arrested on 14-1-69 while the incident took place on 6-1-
69. In this connection Mr. Mohd. Akram S. H. O: stated that, he had searched for the appellants but they were not traceable. This is a strong corroborative piece of evidence and it has not been rebutted. The explanation of the appellants that they were available in the village all the the is unacceptable.
15. The learned counsel for the appellants assailed the evidence of the witnesses on the ground, that the relations between the parties were strained and, therefore, they bad been implicated on account of enmity. The enmity cuts both ways. On the contrary, the appellants nursed a grouse against the complainant party. Their bullock was stolen about a month before the incident and they laid suspicion on them. Furthermore the father of appellant Chakar was convicted for the murder of the father of the complainant and was sentenced to 3, years' R. I. So they had the reason to taken revenge. In case the witnesses had any cause of grievance and wanted to take revenge they could have attacked the appellants on some occasion. But there is no allegation that any such attempt was made by them. It was also pointed out by the learned counsel for the appellants that there were certain exaggerations in the evidence of the witnesses as Wali Mohd and Yaqoob did not state in their statements recorded under section 164, Cr. P. C. That any gunshot was fired by the appellants or their companions when they were pursuing the witnesses or they had raised alarm whereupon the ap--pellants arid their companions ran away. It was also stated by them that they had seen the appellants and their companions standing and were in the process of running away. It was further pointed out that Nadirali did not state in his statement under section 164, Cr. P. C. That Mobin and Yaqoob informed them that Chakar had fired shot at Nadirali. Indeed these omissions do exist but they do not affect the testimony of the witnesses. The statements under section 164, Cr. P. C. Are generally recorded in slip-shod manner and such omissions are not unusual. The credibility o the witnesses has to be considered in the light of the evidence which they give at the trial as well as the other circumstances of the case. I am unable to agree with the learned counsel that these omissions could form the basis for the rejection of their evidence or the evidence of the remaining witnesses. In fact none of the witnesses had any motive to falsely implicate the appellants. On the contrary the appellants had motives for the assault.
16. In the result I maintain the conviction and sentence passed against the appellants and dismiss the appeal.