The appellants above-named, being aggrieved by judgment dated 26th October, 1980 of the learned IInd Additional Sessions Judge, Dadu, by which they have been convicted and sentences under section 304, Part 1, P. P. C. Read with section 149, P. P. C. To undergo R. I. For 7 years each and to pay a fine of Rs. 1,000 each and in default to undergo further 6 months' R. I. And under section 326, P. P. C. Read with section 149, P. P. C. To 5 years' R. I. Each and a fine of Rs. 1,000 each and in default to undergo further 6 months' R. I., and under section 323, P. P. C read with section 149, P. P. C.
To undergo one year R. I., anal under section 148, P. P. C. To suffer R. I. For one year, have preferred the above appeals, on the following facts and grounds
2. The prosecution story, briefly stated, is as under The complainant Haji Sher Mohammad lodged F. I. R. At Police Station, K. N, Shah on 3rd October, 1978 at 3-30 p. m. Alleging that he and his brother P. W. Ali Gul live together in the same house and Ali Gul and deceased Noor Mohammad were working as chowkidars on T. V. Booster. He further stated that appellant Ali Hassan, Wahidoo and Mohammad Ali also live in his neighbourhood and some strangers were visiting them despite protest and objections by the complainant party. .
According to appellants on 2nd October, 1979, there was exchange of harsh words between, the parties, over visiting of strangers. On the day of the incident, viz 3rd October, 1978 at 2-00 p. m. The complainant has alleged in the F. I. R. That appellants Ali Hassan, Wahidoo and Mohammad Ali accompanied by appellant Haji Sheedi, Loung and Guloo came there. Appellant Haji Sheedi, Loung and Guloo were armed with hatchets, while appellants Ali Hassan Wahidoo and Mohammad Ali were armed with lathis. The appellants party, as per F. I. R. Started abusing the complainant despite `SAMJHA00'. It is the' case of the complainant in the F. I. R. That appellant Haji Sheedi, caused hatchet blow on the right arm of deceased Noor Mohammad with sharp side and Noor Mohammad fell on the ground. Appellant Guloo and Loung caused blows with back side of the hatchet to P. W. Ali Gul on the shoulder and complainant was caused laihi blows by appellants Ali Hassan, Wahidoo and Mohammad Ali. Their cries attracted P. W. Mohammad Yaqoob and Parial who came running and saved the complainant party. Thereafter, all the appellants went away.
3. The F. I. R. Of the complainant was recorded by A. S. I. P. Jan Mohammad at 8-30 p. m: under sections 307/148/323 and 504, P. P. C. He examined P. W: Ali Gul and also prepared mashirnamas of injuries on the persons of complainant Sher Mohammad and P. W. Ali Gul. He referred them to Government Dispensary K. N. Shah for examination, treatment and certificate. Injured Noor Mohammad was also brought to the P. S. The A. S. I. P. Prepared mashirnama of this injury and also referred to him Medical Officer, K. N. Shah, where he expired in Hospi--tal. The A. S. I. P. Then prepared the Inquest Reportlof the dead body and sent it for post-mortem examination. The A. S. I.
P. Thereafter, went to wardat and prepared mashirnama. He examined P. Ws. Yaqoob and Parial, - whereafter S. H. O. Ali. Mohammad Baloch reached the wardat and verified the investigation. The S. H. O. Arrested all the appellants on the same date viz. 3rd October, 1978. On 4th October, 1978 the S. H. O. Handed over papers to A. S. I. P. Jan Mohammad for further investigation. All the appellants are said to have produced blood-stained clothes and hatchets/lathis which were secured by the Police. On 8 October, 1978 Police got 164. Cr. P. C. Statements recorded of P. Ws. Yaqoob and Parial.
Ultimately, appellants were challaned to face the trial.
4. The prosecution in support of its case examined in trial Court (1) Complainant Haji Sher Mohammad Exh. 7, who produced his original F. I. R. Exh. 8, (2) Ali Gul Exh. 9, (3) Yaqoob Exh. 10, (4)
Mohammad Parial Exh. 11, (5) Dr. Allah Warayo Medical Officer, K. N. Shah Exh. 13, who produced post-mortem notes Exh. 14, injury certificate of Haji Sher Mohammad Exh. 15, appellant Loung Exh. 16, appellant Guloo son of Loung Exh: 17, final report Exh. 18, one X-Ray plate Exh, 18-A, (6) Dr. Ghulam Rasool of Civil Hospital, Dadu Exh. 19, who produced injury certificate of P. W. Ali Gul Exh. 20 and X- Ray plate Exh. 21, (7) Tapedar Moula Bux Exh. 22, who produced sketch of wardat Exh. 23, (8) Mashir Sayed Ghulam Rasool Shah Exh.
24. Who produced mashirnamas of injuries on the persons of P. W.
Ali Gul Exh. 25, complainant Sher Mohammad Exh. 26, deceased Noor Mohammad Exhs. 27 and 28, inquest report Exh.
29. He also produced mashirriama of arrest of appellant, mashirnama of securing of clothes of appellants Haji Sheedi, Ali Hassan, Loung Guloo, Wahidoo and Mohammad Ali. He also produced mashir--nama of securing of hatchets from appellant Haji Sheedi Exh. 31.
Hatchet from appellant Loung Exh. 32, hatchet from appellant Guloo Exh.
33. Lathi from appellant Ali Hassan Exh. 34, lathi from appellant Wahidoo . Exh. 35 and lathi from appellant Mohammad Ali Exb.
36. Mashir Saved Ghulam Rasool Shah also produced mashirnarna of wardat Exh.
38. The prosecution also examined A. S. I. P. Jan Mohammad Exh. 43 and side was closed vide statement Exh. 44.
5. All the six appellants did not plead guilty to the charge Exh. 2 and claimed to be tried. In their statements Exhs. 45. 46, 47, 48 and 50 they denied the allegations against them. . They also denied the recovery of blood-stained clothes or blood-stained hatchets/lathis from them. The appellant- Haji Sheedi also denied to have lodged counter case. According to them the witnesses are interested and hostile. The appellants did not examine any witness in the defence vide their defence plea Exhs. 51, 52, 53, 54, 55 and 56.
6. The learned trial Court taking into consideration the evidence adduced, before it, vide its impugned judgment dated 26th October, 1980, have convicted and sentenced the appellants above-named as hereinabove mentioned and the appellants being aggrieved by the said impugned judgment dated 26th October, 1980 have filed the above three appeals, on the grounds mentioned in the said memo of appeals.th
7. Since all the three appeals arise out of common judgment dated 26th October, 1980, 1 propose to dispose of them, by this common judgment.
8. I have heard the learned Advocates for the appellants and have gone through the statements of all the prosecution witnesses recorded by the trial Court as well as through the impugned judgment.
9. The learned Advocate for the appellants .In support of the above appeals submitted as under :-
(i) That all alleged eye-witnesses of the incident are inter-related and interested witnesses and further .These witnesses have exaggerated the incident and as such their evidence cannot be relied upon, without independent corroboration, which is not at all available in the present case. In support of this contention the learned Advocate relied on cases reported in PLD 1981 Kar. 1, PLD 1980 SC 1092 and PLD 1973 SC 321.
(ii) Alleged recoveries from the appellants have not been supported by mashirs, examined by prosecution and as such no reliance can be placed on said recoveries for purposes of corroboration.
(iii) There was a sudden fight, therefore, each appellant is liable only for his own act, as section 149, P. P. C. Not at all applicable to present case. In support of this, learned Advocate relied on cases reported in PLD 1965 SC 198, 1971 SCMR 432, PLD 1964 SC 205 and PLD 1967 SC 356.
(iv) If the evidence of P. Ws. Is not believed in respect of five appellants, it cannot be relied upon for conviction of appellant Haji Sheedi, as well. In support of this contention learned Advocate relied on cases reported in PLD 1976 Kar. 438 and PLD 1959 SC. (Pak.) 109.
10. The learned Advocate for the State submitted, that he did not support the impugned judgment of the learned trial Court in respect of appellants Loung, Ali Hassan, Mohammad Ali, Wahid Bux and Guloo, but he supports the conviction of appellant Haji Sheedi, as specific injury caused to the deceased is attributed even in F. I. R. To this appellant and. Case against this appellant is also otherwise distinguishable from the case of other appellants.
11. I have carefully considered the above submissions' made by the learned Advocates before me and I have gone through the various authori--ties cite by the learned Advocates for the appellants.
12. Prosecution case rests on evidence of P. W. 1 Haji Sher Muhammad, P. W. 2 Ali Gul, P. W. 3 Muhammad Yaqoob and P. W. 4, Muhammad Parial, as alleged eye-witnesses of the incident. Out of these four witnesses, P. W. 3 Muhammad Yaqoob is the only independent witness of the incident.
Since Pr Ws. 1, 2 and 4 are inter-related and interested witnesses, no reliance can be placed on their statements without independent corroboration, as rightly urged by the learned Advocate for the appellants. However, prosecution for purpose of such corroboration has relied upon the evidence of P. W. 3 Muhammad Yaqoob, alleged recoveries from the appellants, on the evidence of P. W. 10 Jan Muhammad (I.O.) and on the injuries on person of appellant Loung and Guloo and non-cog report of appellant Haji Sheedi, lodged at police station Exh. 39-A and Chemical Examiner Report Exh. 39-B.
13. In my opinion, since P. W. 8 Syed Ghulam Rasool, the only mashir of recoveries, examined by the prosecution, has not at all supported such recoveries as mentioned in mashirnama Exhs. 30, 31. 32, 33, 34, 35, 36 and 37 it would not be safe to rely on said recoveries, on the basis of statement of P.
W. 10 Jan Muhammad (I. O.) only, for purposes of corroboration, against the appellants. In view of this, Chemical Examiner Report Exh. 39-B will have no bearing on the present case. The second document on which prosecution has relied upon for corroboration is Exh. 39-A, non-cog report alleged to have been filed by appellant Haji Sheedi. In my opinion no reliance can be placed on this document, as oPlice, in spite of medical certificate Exh. 18, that injury on person of appellant Gulu was grievous, did not care to correct the said non-cog report under S. 326, P. P. C. And since appellant Haji Sheedi in his statement has denied lodging of such report and failure of police to file F. I. R. Under S. 326, P. P. C. In respect of injuries on person of appellant Gulu, it would be unsafe to rely on Exh. 39-A, for purpose of corroboration. As far as injuries on the person of appellant Loung and Gulu are concerned, I find no questions at all were put to them in their statements under S. 342, Cr. P. C., to explain the same and as such these injuries on their persons cannot be used against them for any purpose.
14. Therefore, prosecution case as far as corroboration of evidence of P. Ws. 1, 2 and 4 is concerned rests on evidence of P. W. 3 Muhammad Yaqoob only. I have very carefully gone through his evidence and I find, that he came on the scene after quarrel had actually started between the parties and as such he has not stated how the incident started nor this witness has said anything to suggest existence of common object between the appellants, to cause injuries, which were caused to the deceased and complainant P. W. 1 and P. W. 2 Ali Gul. His evidence only corroborates statement of P. Ws, 1, 2 and 4 to the extent, that appellant Haji Sheedi caused hatchet injury on the arm of deceased Noor Muhammad and appellant Loung and Guloo gave hatched injuries to P. W. 2 Ali Gul, but the medical evidence of P. W. 6 Dr. Ghulam Rasool shows, that P. W. 2 had only one injury on his person, which could have been caused by sharp cutting weapon like hatchet. As far as injuries on person of P. W. I Haji Sher Muhammad are concerned this witness stated that appellants Ali Hassan, Wahidoo Bux and Muhammad Ali gave 8/10 lathi blows to him, whereas evidence of P.
W. 5 Dr. Allah Warayo shows, that P. W. 1 had only 2 simple injuries of blunt weapon like lathis. I find that P. Ws. 1, 2 and 4 have exaggerated injuries received on their side. So also P. W.
3. However, all these four P. Ws. Corroborate each other fully to the extent, that injury received by deceased Noor Muhammad on his arm, was caused by appellant Haji Sheedi. In view of these facts on record, I am of the opinion, that prosecution has established beyond doubt that appellant Haji Sheedi gave hatchet blow on the arm of deceased Noor Muhammad, which ultimately resulted in his death, in view of statements of P. Ws. 1, 2 and 4, as corroborated by evidence of P. W. 3 Muhammad Ayub independent eye-witness. Since P. W. 3 Muhammad Ayub has further confirmed in his cross, that P.
W. 2 Ali Gul was armed with lathi and was fighting with the appellants, it is clear, that there was a sudden fight between the parties, as a result of quarrel which started the said fight and as such, I agree with the contention of the learned Advocate for the appellants, that each appellant will be responsible for his own act in such fight, in the absence of evidence on record to prove common object between the appellants, in connection with starting said fight and forming of unlawful assembly. The authorities cited by learned Advocate for appellants, fully supports his contentions in this connection.
15. In view of above conclusion arrived at by me, I hold, that since there is evidence on record to show, which of the appellants caused grievous injury to P. W. 2 Ali Gul and two simple injuries to complainant the offences under section 3231326/149, P. P. C. Against all the appellants have not been proved by prosecution beyond reasonable doubt. I am also of the opinion, that prosecution has failed to establish offence under section 148, P. P. C. Against all the appellants, as prosecution has failed to establish beyond reasonable doubt, ingredients of section 148, P. P. C. In respsct of formation of unlawful assembly, by the appellants. Therefore, I allow the appeals filed by appellants, Loung, Guloo, Ali Hassan, Wahid alias Wahidoo Bux and Mohammad Ali 'and set aide convictions and sentences awarded- to them, by impugned judg--ment dated 26th October, 1980 and acquit them, by giving benefit of doubt and discharge bail bonds executed by them.
16. As far as appellant Haji Sheedi is concerned, I dismiss his appeal in respect of his conviction under section 304 (I), P. P. C. For L having caused the death of deceased Noor Mohammad, by giving him hatchet blow on his arm and maintain his conviction on this account and sentences awarded to him in this connection; by the impugned judgment dated 26th October, 1980 of the learned IInd Additional Sessions Judge, Dadu. However, I set aside conviction of Haji Sheedi, under section 323/ 326, P. P. C. As well as under section 148, P. P. C. And acquit him in respect thereof only, by giving benefit of doubt, for reasons hereinabove mentioned, while allowing appeals of other five appellants.
17. I further direct that period of detention of appellant Haji Sheedi, as under-trial prisoner, be computed towards his substantive sentence, in addition to all other remissions to which be may be entitled in accordance with rules. The bail granted to appellant Haji Sheedi is cancelled and he is remanded back to custody to serve out remaining sentence.
18. A ll the above appeals stand disposed of in terms of the above order.