Appellants above named, being aggrieved by judgment dated 19-11-1981 of the learned Sessions Judge, Thatta, in Sessions Case No. 60/75, by which appellants were convicted under section 302/149, P. P. C. For murder of Nathoo and sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000 each or in default to suffer further R. I. For one year and under section 325/149, P. P. C.
For causing grevious injuries to deceased, P. W. Saleh and P. W. Ahmad and sentenced to suffer R. I.
For three Sears and under section 324/149, P. P. C. For causing simple hurt hatchet injuries to P. Ws.
Fatoo, Jumo, Budho, Talib and Ahmad and sentenced to suffer R. I. For six months each and under section 323/149 for causing simple injuries by lathi to P. W. Fatoo, Junto, Saleb, Budho, Talib and Ahmad and sentenced to suffer R. I. For one year each and under section 148, P. P. C. And sentenced to suffer R. I. For one year each, have preferred the above, appeal, on the following facts and grounds.
2. The prosecution case as disclosed in the First Report, lodged by complainant Augedino with P. P.
Belo of Police Station Sujawal on 26-6-1973, at 12.10 p.m. Is, that complainant alongwith Saleh, Bodo, Talib, Ahmed, Aaroo, Achar and Jumo were doing plantation of paddy at his land near survey No.
92. At about 7.30 a.m., they saw appellants Ramzan and Siloo ploughing survey No. 92, they also saw the other appellants named above, as also Kassim now deceased, armed with hatchets and lathis. This survey No. 92 was said to have been purchased by P. W. Bodo from P. W. Yousif Jamali about 3/4 months back. On seeing the appellants at survey No. 92, P. W. Bodo, who is also cousin of the complainant, asked them as to why they were ploughing his land. On this, deceased Kassim abused Bodo and then rest of the appellants attacked on the complainant party and caused injuries to them. As a result of the attack by the appellants on -the complainant party, Natho died while Mano, Jumo, Talib, Patho, Saleh, and Ahmed sustained injuries. During this fight complainant party also caused injuries to appellants party. This incident was also witnessed by P. Ws. Kassim Dars and Muhammad Dars. The complainant then, leaving the injured at the wardat, came at the Police Post Bello and lodged his report as Exh. 39.
3. This report was reduced to writing by A. S.I. Incharge Khamiso Khan vide Entry No. 6 and a copy of which was sent by him to P. S. Sujawal, through P. C. Muhammad Khadum for incorporation in the Book maintained under section 154, Cr. P. C. On the same day and just prior to the arrival of the complainant, appellant, Jumo also appeared at the police post and lodged his report, which was recorded as per Entry No. 5 (Exh. 83) (Original has been produced in counter-Sessions Case No. 14 of 1975 as per Exh. 22). A copy of this report was also sent to .The P. S. Sujawal, through the same constable for necessary incorporation. After lodging the two reports referred to above, he took up the investigation and repaired to the wardat alongwith complainant Augedino and appellant Jumo. The Vardat was situated in survey No. 92 of deh Bello and it was seen by him on the pointation of complainant Augedino in this case. At the Vardat, he found 14 dandas stained with blood, one hatchet with broken handle and also stained with blood, Natho, Phato, Jumo, Saleh, Muhammad, Be Talib lying with injuries on their person. He found blood-stained e; and so the same was secured and sealed in presence of Mashirs Hassan and Esso. The weapons referred to above were also secured and se: in presence of the same Mashirs. He also prepared memo. Of Vardat mentioning all the particulars referred to above in presence of the s Mashirs as per Exh.
61. A rough sketch of the hatchet was also draw per Exh.
62. He then saw the injuries on the person of each injured per Exhs. 63 to 69 in presence of the same Mashirs and then referred t: to the Medical Officer, Sujawal, for their examination, treatment and c, ficate. He then summoned P. Ws. Muhammad Dars, Kassim Dars, A( Sarno and Aaroo at the Vardat and examined them. Oil the next da the incident, he searched the houses of appellants Manu, Chibhar, War and Kassim in their absence, but in the presence of their relation U and in presence of the above-named Mashirs and secured four hatchets f their respective houses, which all were stained with blood. Memos. To effect were prepared as per Exhs. 74 to 77. He also drew rough sketches of hatchets as per Exhs. 21 to 73. On 28- 6-1973 he searched the house of Noor Ahmed and secured one blood-stained hatchet, though in his absence but in the presence of his relation Umar and the same Mashirs as pe: Exh.
78. Like other hatchets, this hatchet was also sealed in presence o: same Mashirs. He also drew a sketch of this hatchet as per Exh.
79. On 8th of July, 1973 he recorded the statement of Ahmed Sarno. On 27-6-197: he searched the house of appellant Mamoon and secured one blood-stained, hatchet in presence of the same Mashirs and sealed the same as per Exh.
75. A sketch of this hatchet was also drawn as per Exh.
77. He then handed over the case papers to S. H. O. Irshad Ali.
4. The S. H. O. Irshad Ali has incorporated both the reports referred _ above. He produced incorporated report of the complainant Augedino as Exh.
90. He then came at the Vardat alongwith P. C. Abdul Latif and verified the investigations so far carried out by the A. S. I. Khamiso Khan. On 27- 6-1973 he examined Phato, Jumo, Saleh, Bodo and Talib at Sujawal Hospital. On 29-6-1973 he received a telephonic message from Assistan Meficalm Officer, Sujawal at 7.30 a.m. In regard to the death of Natho as a result of injuries sustained by him: After entering this information, in the Station Diary, he reached the Hospital and held inquest on the dead body of Natho; in presence of Muhammad and Muhammad Yousif Mashirs as per Exh.
59. He also prepared memo. Of dead body in presence of the same Mashirs as per Exh.
58. He then handed over the dead body for post- mortem examination and report through P. C. Allah .Bux. There--after, he arrested appellants Jumo, Manu, Chibhar, Noor Ahmad, Mamoon, Siddik, and deceased Kassim in the hospital, where they were receiving treatment in respect of their injuries. He then returned back to the police station, where A. S. I. Khamiso Khan produced. Before him appellants Siddik, Waryal, Ramzan, Jaffar, Suleman, Mureed, Soomar and Ramzan and so they were arrested in presence of Mashirs Ahmed Kachi and Ahmed Memon as per Exh.
92. On 10-7-19-/3 he got the statements of Muhammad Kassim and Muhammad recorded under section 164, Cr. P. C. Before Mukhtiarkar and F. C. M., Sujawal. On the same day he examined P. W. Muhammad Yousif Jamali. After completing necessary investigation these, appellants alongwith acquitted accused persons were sent up to face their trial.
5. To establish its case the prosecution examined Tapedar Abdul Hamid (Exh. 22), who produced sketch of Vardat as Exh. 23; complainant Augedino (Exh. 38), who produced first report Exh. 39, P.
Als. Bodo (Exh. 40) Talih (Exh. 43), Ahmed (Exh. 47), Jumo (Exh. 50), Kassim Dars (Exh. 51), as witnesses of occurrence, while statement of P. W. Saleh has been brought on record, vide order dated 3-5-1981 (Exh. 54), as per Exh. 55 and statement of P. W. Phato, vide order dated 24-5-1981 (Exh. 80) as per Exb. 81; Mashir Muhammad Hassan, who produced memos. Exhs. 61 to 79, P. W.
Muhammad Yousif Jamali as Exh. 88 A. S. I. Khamiso Khan Exh. 82 and S. H. O. Irsbad Ali Exh. 89, who brought on record incorporated first report as Exh. 90, Memos. Of arrest of appellants Exhs. 91 and 92 and Chemical Examiner's report as Exh.
93. The deposition of doctor Niat Hussain has been brought on record, vide order dated 20th April, 1981 (Exh. 27) as Exh. 28 alongwith the medical certificates and post-mortem report as Exhs. 29 to 36. The prosecution then closed its side vide Exh.
97.
6. After the close of the evidence of the prosecution, the appellants were examined under section 342, Cr. P. C. But they professed their innocence. Appellant Jumo, in his further statement, pleaded as under and produce documents Exh. 99 to 104 ;-- ---About 15/16 years ago I had purchased S. No. 92 Deh Bello from one Yousif Jamali. The possession was all along with me and I was cultivating S. No. 92. The Khata could not be changed as there was a ban under M. L. R.
64. Yousif Jamali also owned 8 annas share in S. Nos. 86, 91 and
97. Nobody was purchasing those S. Nos. Therefore khata could not be changed to my favour, though I had paid the full amount to Yousif Jamali. Without my knowledge Yousif Jamali sold S. No. 92, alongwith S. Nos. 86, 91 and 97 i.e. 7 acres to Bodo on 7-4-1973. When I came to know about this sale, I at once made application to Mukhtiarkar, Sujawal, that entry regarding S No. 92 deh Belo be cancelled, as I have already purchased S. No. 92 from Yousif Jamali about 15 years ago. The Mukhtiarkar, Sujawal after full enquiry and after examining Yousif Jamali ordered that S. No. 92 be entered in my name, while the other S. Nos. Be allowed to remain on Bodo's khata. Therefore, the khata was changed in my name. Further he ordered, that the possession of S. No. 92 being already with me should continue to remain with me. I produced the true copy of order of the Mukhtiarkar, Sujawal with my statement in lower court, which I again produce here as Exh.
99. I produce the land revenue bills, land revenue receipts (3) in number) and true copy of record of rights in my name as Exh. 100 104, respectively. I had already produced these documents with my statement in lower court also. On the day of incident the complainant party armed with hatchets and lathis attacked us when I Manu and Mamoon were ploughing the land in S. No. 92 and caused injuries to me, Chibhar, Muhammad , Noor Ahmed , Manu and Qassim. They wanted to eject us forcibly from my land. Some of the appellants (us) were present on their land, which were adjacent to S. No. 92 and other accused came from their house which are nearby afterwards. They were also injured by the complainant party. During the fight some of the persons from complainant side also received injuries. The complainant party implicated us to save themselves to the counter-case. All other accused are related to me.--- Rest of the appellants adopted the statement of appellant Jumo. None however started into their defence, excepting appellant Jumo, who examined D. W. Muhammad Yousif Jamali as Exh. 130.
Thereafter the Advocate for the appellants closed the side of defence. Vide his statement Exh. 131.
8. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants as hereinbefore mentioned, while acquitting Soomar, Jaffar, Ramzan sons of Zakhano and Mureed and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
9. The learned Advocate for the appellants in support of above appeal submitted as under:-
(a) That it was free fight between both sides in which seven people on complainant side and 6 people on appellants side received injuries and as such each individual appellant will be responsible for his own act and as' such question of applicability of section 149, P. P. C. Did not arise at all. In support of this contention, the learned Advocate for the appellants relied upon case reported in PLD 1962 SC 502.
(b) P. Ws. Agedino, Budho, Talib, Ahmed and Jumo are co-accused in counter-case and on account of land dispute between the parties, no reliance can be placed on their statements, without independent corroboration. In view of this statement of P.W.7. Kassim, who is admittedly independent eye-witness acquires great importance for purposes of corroboration. According to P.
W. 7 appellant Manoo gave fatal blow to deceased Natho, who had only one incised wound on his head, according to medical evidence brought on record and as such appellant Manoo alone could be convicted for causing death of the deceased Natho, that too under section 304(1), P. P. C., as this appellant received injuries in the said fight and as such question of exercise of right of self-defence by him cannot be ignored.
(c) That prosecution has failed to establish its case against all except appellant Manoo, on the basis of statement of P. W. 7 Kassim, the only independent witness of the incident.
10. The learned Advocate for the State on the other hand submitted, that each appellant was responsible for his act. In support of this contention the learned Advocate for the State relied upon case reported in 1971 SCMR 432 and submitted that P. W. 7 Qassim, the independent witness, in his statement before the learned trial Court stated, that appellant Kassim gave hatchet blow to P. W.
Bodho, whereas appellant Manoo gave hatchet blow to deceased Natho on his head and thereafter both parties started fighting with each other and as such he was not in position to give details of other injuries received by P. Ws. And appellants, as it was free fight. He further stated that appellant Kassim, who gave blow to Bodo, is now dead. In view of this prosecution case against appellant Manoo stands proved beyond reasonable doubt for having fatal injury to deceased, Natho and as such he supports the impugned judgment fully to this extent.
11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F & P of the learned trial Court and impugned judgment and cases cited by the learned Advocate before me.
12. It is admitted position that all (injured) P. Ws., except P. W. 7 Kassim are co-accused in counter- case and it is admitted position, that free fight took place between the parties over Survey No. 92 on account of which the incident in question took place, as a result of which 7 persons on the side of complainants party and 6 persons on the side of appellants and acquitted accused persons, received injuries. In view of this, it would be unsafe to rely on the statements of P. Ws. 2, 3, 4, 5 & 6, who all are injured eye-witnesses and co-accused in counter-case without independent corroboration. Further in view of the facts of the incident in question, each appellant will be liable for his own act in the said incident, as right urged by the learned Advocate for appellants as well as State counsel, in view of the law laid down by Honourable Supreme Court in cases reported in PLD 1962 SC 502 and- 1971 SCMR 432 and as such applicability of section 149, P. P. C. In the present case does not arise.
13. Keeping in view my above conclusion, I have carefully examined the cases of each appellant vis-a-vis statement of P. W. 7 Kassim, the only independent eye-witness of the incident, against whom no specific enmity is alleged by the appellants. According to P. W. 7, he saw appellant Qassim now deceased giving hatchet blow to Bhodo and appellant Manoo giving hatchet blow on the head of deceased Natho and thereafter it was free fight, in which many persons were injured on both sides. Statement of this P. W. 7 corroborates statement of P. W. 2 Agedino; P. W. 3 Bhodo, P.
W. 4 Talib, P. W. 5 Ahmad, P. W. 6 Jumo, P. W. Saleh (in committal Court) and P. W. Fathoo (in committal Court) regarding receipt of injuries by P. W. Bhudho and deceased Natho at the hands of appellant Manoo and deceased Kassim.
14. It may be noted that learned trial Court rightly discarded alleged recoveries of blood-stained hatchets from the houses of appellants, as they were not present at the time of such recoveries.
15. Since it was free fight between two groups, both of them were fully armed, offence committed in respect of deceased Natho, would be, culpable homicide not amounting to murder. Further on account of the manner in which the incident took place question of either party having right of self- defence does not arise, as laid down by Honourable Supreme Court in case reported in PLD 1962 SC 502 and as such each appellant and other co-accused who took part in the incident in question, will be responsible for his own overt act, as question of applicability of section 149, C P. P. C. To such incident does not arise, as laid down by Honourable Supreme Court in cases reported in 1962 SCMR 502, 1.971 SCMR 432 and PLD1983SC79.
16. In the, present case, which party was aggressor is also immaterial and said question is also not free from doubt, in view of the statement of D. W. I Misri Khan, as I do not agree with the conclusions of the learned, trial Court, for discarding his evidence completely.
17. Therefore I am of the opinion, that prosecution has failed to establish its case against appellants Jumo, Chibber, Noor Muhammad. Muhammad, Warial, Suleman and Ramzan. As far as appellant Mano is concerned, prosecution has established its case against him for causing fatal r, injury to deceased Natho, beyond doubt. However the offence committed by appellant Manoo in my opinion, in view .Of above discussions would fall under section 304(I), P. P. C. And not under section 302, P. P. C., as only one injury was given by appellant Manoo to the deceased and on account of the facts leading to the incident in question.
18. Consequently I allow the above appeal as far as appellants Jumo, Chibar, Noor Ahmed, Muhammad, Warial, Suleman and Ramzan are concerned and set aside their convictions and sentences awarded to them and acquit them by giving benefit of doubt and direct that these appellant be released forthwith, if not required in any other case. However, I dismiss the above appeal as far as appellant Mano is concerned, but alter his conviction from section 302, P. P. C. To one under section 304(1), P. P. C., in respect of the death of Natho is concerned and reduce his sentence from E life imprisonment to 8 years' R. I. And maintain the fine of Rs.2, imposed on him and in default of payment of said fine to suffer further R. I. For one year. However, I set aside conviction of the appellant Manoo also under section 325/149, P. P. C. As well as under section 323/149, P. P. C.
And under section 324/149, P. P. C. As well as under section 148, P. P. C. And acquit him on these accounts, by giving him benefit of doubt, as there is no independent corroboration for these offences, even in respect of this appellant. I further direct, that a sum of Rs. 1,000 out of fine, if realised, be paid to the legal heirs of deceased Natho only.
19. I further direct that benefit of provisions of section 382-B, Cr. P. C. In respect of period of detention of appellant Manoo, as under-trial prisoner be given to him, towards his substantive sentence, after due verification, in addition to all other remissions to which he may be entitled, in accordance with rules. 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.