1. The appellants were convicted by the learned Additional Sessions Judge, Sukkur for the offence under section 325/34, P. P. C. Acid 323/34, P. P. C. And sentenced to undergo R. I. For 7 years', and 1 year's R. I. Respectively, ordering the sentences to run consecutively.
2. The incident took place on 14th June 1967 at tripahri in the courtyard of the otak of Sachal appellant situated in village Chajan which was close to his house. In this incident Haji Rahimbux was killed and khaliqdino had sustained simple injury. The report of the incident was lodged by Razikdino on the same day at 10 p.m. At Panoakil Police Station situated at a distance of 10 miles from the scene of offence.
3. Haji Rahimbux deceased was related to Razikdino complainant. Shamasdin witness is their caste- fellow while Khaliqdino, Dads; and Faiz Mohd. Are of different caste. The appellants Ghousbux and Haji are brothers inter se and are nephews of appellant Sachal. They lived at a distance of about a mile or to from the village of the complainant.
4. Razikdino complainant owned to bullocks which used to graze in the jungle unattended by any person and used to return to the house in the evening without being escorted. On 14th June 1967 at tripahri one bullock returned. So the complainant went; in search of the bullock and discovered hoof marks of the bullock anal shod prints of to persons. He thought that the bullock had been stolen. He, therefore, returned to the house and picked up Haji Rahimbux and Khaliqdino and tracked the prints. After they covered a distance of to furlongs Faiz Mohd. Met them and informed them that he had seen the appellants Ghousbux and Haji taking away his bullock. On this information all the four proceeded to the otak of the appellants and found appellants Ghousbux and Haji in the otak, Sachal appellant also came there and told the tracking party why they had come to their houses and after saying so instigated Ghousbux and Haji to launch attack on them.
5. Then all the three appellants attacked Haji Rahimbux and Khaliqdino. It is said that Haji gave lathi blow on the head of Rahimbux and then appellant Sachal also gave lathi blow to him whereas appellant Ghouso gave lathi blows to Khaliqdino. Both the victims fell down and the appellants tied them. Razikdino and Shamasdin raised cries which attracted Piral, Rehmatullah, and, Dadu and they were informed. The three persons who came on the cries expressed their inability to help them and asked the complainant to lodge the report. Consequently the complainant and Shamasdin proceeded to Sanghi Police Outpost but the Head Constable was not available. So they went to Patio Akil and lodged the first report Exh. 6.
6. Mr. Mohd. Haroon A. S. I. P. After recording the first report repaired to the scene of offence along with the Mashirs Ahmed Din and Arbab. They found Khaliqdino and Haji Rahimbux lying injured in the otak of appellant Sachal. Mashirnama Exh. 17 of the injuries was prepared; The statement of Khaliqdino was recorded while Haji Rahim Bux was unconscious. Both of them were sent to the hospital. The A. S. I. P. On account of night stayed in the same otak. In the morning i. e. 15-6-67 he along with the Mashirs Mahboob Shah and Ghulam Rasul went to the place from where the bullock was said to have been stolen. There were indistinct footprints of to persons and hoof marks of a bullock. Mashirnama Exh. 12 was prepared. They then returned to the scene of offence where the injuries had been caused. There was blood on the ground and it was secured in the presence of the same mashirs. The blood-stained earth could not be sealed as the seal was not available.
7. Mashirnama Exh. 13 was prepared. Then the statements of Shamasdin, Faiz Mohd., Rehmatullah Dadu and Piral were recorded. On 16-6-67 appellants Haji 'and Ghousu appeared before the A. S. I.
8. P. And they were interrogated. They were carrying to lathis but there was not blood. The lathis were secured and Mashirnama Exh. 14 was prepared, Haji appellant took the A. S. I. P. And the mashirs to the house where he and the other appellant Ghousbux lived together from where the stolen bullock was found. Mashirnama Exh. 15 was prepared. Both the appellants were taken to the police station where appellant Sachal appeared and he was interrogated and arrested. Appellant Sachal was released on bail. On 22-6-67 Haji Rahimbux died in the Civil Hospital, Sukkur. The inquest report was prepared by Imambux Head Constable in the presence of Mashirs Mohd. Saleh and Shamu. On 23rd June 1967, Sachal appellant was re-arrested. On 27-6-67 the statement of Shamasdin, Faiz Mohd., Rehmatullah and Piral were recorded under section 164, Cr. P. C. On 30th June 1967 the appellants were challaned. The blood-stained earth which was subsequently sealed at the police station was sent to the Chemical Analyser and it was found to be stained with human blood vide his report Exh. 24.
9. The appellants proclaimed their innocence and ascribed their implication due to enmity. It was urged by them that Raziqdino while going for Haj, had mortgaged his land with appellant Sachal for Rs. 1,000 and it was cultivated by Haji appellant. On return Raziqdino wanted back the land but the appellants did not agree and, therefore, there was a dispute on land and they had been implicated on that account. They did not examine any witness in defence.
10. At the trial the prosecution examined Raziqdino, Khaliqdino, Shamasdin, Faiz Mohd., Dadu, Mahboob Shah Mashir, Ahmed Din Mashir, Mohd. Saleh Mashir, Rahimbux Tapedar, Imambux Head Constable, Mr. Mohd. Haroon A: S. I. While the evidence of Dr. Khurshid Ahmed and Dr. Khan Mohd.
11. Examined in the committal proceedings was brought on record. On the assessment of their evidence the learned Additional Sessions Judge was of the view that the injuries were inflicted suddenly by the appellants with lathis and there was no premeditated intention to inflict the injuries nor they had common intention to commit the murder and, therefore, the appellants shared the common intention to cause grievous hurt to Haji Rahimbux and simple hurt to Khaliqdino. On the basis of this finding the appellants were convicted and sentenced as above.
12. Some the after the appeal was admitted in this Court and one bail application was rejected another bail application was moved. While dealing with the second bail application my learned brother Dorab Patel, J. Observed that the deceased had received a blow on the head which fractured his skull and, therefore, in view of the nature of the injury the question of proper conviction and sentence required consideration. His Lordship, therefore, issued, notice to the appellants for enhance--ment of the sentence. This judgment will dispose of the appeal as well as the sue mote revision.
13. There can be no manner of doubt' that Haji Rahimbux was killed and Khaliqdino received injuries.
14. This is borne out by the medical evidence. They were first examined by Dr. Khan Mohd. Who found the following injuries:- Haji Rahimbux: "(1) A contused wound on the right frontal region of the skull 2-- x 1/3 inches with ecchymosis of the right eye and fracture of the frontal bone.
(2) A contusion on the right lateral side of the chest 6 inches into 2 inches."
15. According to the medical officer the injury No. 1. Was grievous while No. 2 was simple and both the injuries were caused by blunt weapon such as back side of the hatchet or lathi. Haji Rahimbux was unconscious and therefore he was sent to the Civil Hospital at the request of the complainant.
16. Khaliqdino: "(1) A contused wound on the left parietal region slightly towards the middle of skull and half inch into one by three scalp deep with a suspected fracture.
(2) A contusion on the left lateral side of the neck 2 inches into one inch nature of injury after K-ray examination is simple."
17. According to the medical officer the injuries were caused by blunt weapon such as lathi.
18. Haji Rahimbux died in the Civil Hospital, Sukkur on 22-6-67 at 1-30 p.m. And the post-mortem examination was held by Dr. Khurshid Ahmed who found the following injuries External "(1) A contused wound in process of healing, 2--" long stitched, scalp deep on the right frontal region.
(2) There was cruste form on the right side of the chest, in an area of 6" x 2."
19. According to the medical officer the injuries were ante-mortem and. Were caused by blunt weapon such as lathi.
20. Internal;
(1) There was a fracture of the right frontal bone, vertical; under eternal injury No. 3. Big clots of blood were found under the scalp, measuring about 4" x 4", and pressing over the right frontal lobe, and making depression over it. There: was a rupture anterior branch of the middle maningeal artery."
21. The medical officer was of the opinion that the death of the deceased was due to shock and haemorrhage as a result of injury No. 1 which was sufficient in the ordinary course of nature to cause death.
22. As regards the identity of the appellants with the crime firstly there is the ocular testimony of three witnesses Razikdino, Khaliqdino and Shamasdin. Their evidence reveals that the bullock of Razikdino was stolen from the jungle where it was left for grazing and the footprints of to persons were discovered along with the hoof marks of the bullock. Raziqdino. Khaliqdino, Haji Rahim Bux and Shamasdin tracked the prints and on the way they met Faiz Mohd. Who informed them that he had seen the appellants Haji and Ghousbux taking away the bullock. On this information they proceeded to the otak of appellant Sachal where they found appellants Haji and Ghousbux and at that the appellant Sachal also came. All the three had lathis in their hands and at the instigation of appellant Sachal attack was made on Haji Rahim Bux and Khaliqdino. It is said that appellant Haji gave laths blows on the head of Haji Rahim Bux while appellant Sachal also gave lathi blows to Haji Rahim Bux while appellant Ghousbux gave laths blows to Khaliqdino. As a result of these blows Haji Rahimbux and Khaliqdino fell down and Haji Rahimbux became unconscious. An alarm was raised which attracted Dadu, Rehmatullah and Piral and they were informed.
23. Thereafter Raziqdino and Shamasdin proceeded to the police station where the first report was lodged.
24. There is absolutely no reason to disbelieve the evidence of these witnesses. Their presence at the the of this incident cannot be doubted. Khaliqdino was one of the injured persons while the other to had accompanied the to victims and tracked the prints of their stolen bullock. Raziqdino and Shamasdin had also gone to the police station where Raziqdino had lodged the first report. Their evidence finds corroboration from the evidence of Faiz Mohd. And Dadu. Faiz Mohd. Is the person who had seen the appellants Haji.-and Ghousbux taking away the bullock of the complainant and subsequently he had informed the complainant about this. Dadu is the person who was attracted by the cries and had seen Shamasdin and Raziqdino along with the injured in the otak of appellant Sabhal.. He had also seen all the three appellants armed with lathis. He was informed that the appellants had inflicted injuries upon the to victims as they had gone there tracking the footprints and the hoof marks of the bullock. It is true that Raziqdino and Shamasdin are related to the deceased but that is no reason to reject their evidence which is not found to be assailed on any ground. Khaliqdino is not related to them and he had himself sustained injuries. Faizu and Dndu have also nothing to do with eithdr of the party and they are independent witnesses.
25. The evidence of the witnesses receives strong corroboration from the fact that both the victims were lying injured in the otak of Sachal appellant. This is corroborated by the evidence of the S. H. O.
26. And- the mashir as well as the mashirnama prepared to that effect. Their evidence was believed by the learned Additional Sessions Judge. The learned counsel fox the appellants could not point out a single circumstance to bring myself to disagree with that view. However, it appears that a ground was taken in the trial Court that since the S. H. O. Had not sealed the blood-stained earth at the scene of offence and in the committal proceedings he had also not stated that any such blood-stained earth was recovered there was some element of doubt against the evidence tendered by the prosecution No significance can be attached to this circumstance. The mashirnama discloses that the blood-stained earth was secured from the scene of offence and, therefore, the omission of the S. H. O. To mention this fact in the committal proceedings does not .In any way show that the S. H. O. Had given false evidence. So far the evidence of sealing of the blood-stained earth is concerned it can hardly weaken the case as in view of the presence of the victims in the otak of appellant Sachal there can be no doubt that the incident had taken place in that otak. A suggestion was made during the cross-examination that injuries had been inflicted upon them by some other thieves at 9 p.m. But this suggestion was repelled and I also finks no substance in it. It is inconceivable that the injuries having been caused by certain unknown thieves the to appellants were substituted without any ill-will or malice entertained by the witnesses against them.
27. However, the appellants pleaded that they had been implicated on account of dispute on land but apart from their bare word there is not iota of evidence on record. This allegation is -quall false and unacceptable.
28. Yet there is another supporting circumstance in this case and this is the recovery of the stolen bullock from the house jointly occupied by appellants Haji and Ghous Bux, as has been established by the evidence of the S. H. O. Corroborated by the mashirnama. The appellants denied the recovery but their denial in the circumstances of the present case cannot be accepted. There was no reason for the S. H. O. Or the mashir to fabricate false evidence against them. On the contrary there is the indication that the S. H. O. Was favourably inclined towards the appellant and it was on account of that inclination that lie enlarged appellant Sachal on bail even before the conclusion of the investigation.
29. Lastly, it was argued by the learned counsel for the appellants that at least the case against appellant Sachal was doubtful as witnesses Khaliqdino, Shamasdin and Dadu had made no allegation in their police statements that Sachal appellant was armed with a lathi or he had given any lathi blow. This plea was also raised at the Trial and was rejected by the learned Additional Sessions Judge on the ground that the S. H, O. Was favourably inclined towards appellant Sachal as lie was a zamindar and, therefore, in order to save him he omitted to mention this fact while recording the statement of the witnesses and after recording their statements he enlarged him on bail although the other to appellants were detained in custody. I find this reason of the learned Additional Sessions Judge not without force. All the witnesses at the subsequent stages of this case had persisted in the allegation that appellant Sachal was armed with a lathi and had actually given the blow. Even otherwise the evidence shows that he had instigated the attack on the victims and it was the result of; that instigation that the injured were inflicted. Consequently he is clearly liable for abetment which was committed as a result of that abetment.
30. Considering the nature of the offence committed by the appellants the learned Additional Sessions Judge found that they had the common intention to cause grievous hurt to Haji Rahim Bux and simple hurt to Khaliqdino. Taking up the case of appellants Sachal and Haji, I must say that the learned Additional Sessions Judge clearly erred in holding that the were not guilty of murder. It is true that the fight was sudden and unpremeditated but since the fatal blow was given by Haji, appellant he was guilty of the offence of murder in view of illustration (c) to section 300, P. P. C. The injury was sufficient in the ordinary course of nature to cause death and, therefore.' the offence was of murder. Similarly Sachal appellant would by guilty of the abetment of the offence of murder as it of account of his instigation that the attack on Haji Rahim Bux resulted in his death, apart from the fact that he had also joined in the assault. However, since the Government has not the filed any appeal the conviction cannot be altered. . So far, appellant Ghousbux is concerned he had given the lathi blows to Khaliqdino and the injuries sustained by him were simple. He was, therefore, guilty of an offence under section 323, P. P. C. As regards his liability for the injuries inflicted upon Haji Rahim, Bux the case against him would depend upon whether he had the common intention to cause fatal injury. It is doubtful whether this common intention can be attributed to him. The learned Additional Sessions Judge had found that the attack was sudden and unpremeditated and, therefore, in this view of this finding there could be no common intention of Ghousbux appellant in inflicting the injury, not upon the deceased but upon another person. It is true that in order to form a common intention pre-concert is not e necessary and the common intention can be developed at the spur of the moment but the present case is not of such a nature that the common intention having been formed can be attributed to this appellant.
31. As regards the sentence the appellants had been awarded the sentence of 7 years under section 325/34, P. P. C. The maximum sentence provided for that offence is the same. And, therefore, there can be no question of any enhancement of sentence.
32. In the result I maintain the conviction and sentence passed against the appellants Sachal and Haji and dismiss their appeal, while I set aside the conviction and sentence passed against appellant Ghousbux for the offence under section 325/34, P. P. C. And maintain the conviction and sentence under section 323, P. P. C. Against him and with this modification his appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.