MUHAMMAD HAYAT JUNEJO, J.--Appellants Qaimuddin .Son of Noor Mohammad,- Dana son of Qaimuddin, Shadi Khan son of Noor Mohammad, Jamaldin son of Imamdin, Ghulam Mohammad son of Imamdin, Ramu son of Megho, Nizamuddin son of Allah Bux and Tulla son of Moula . Bux have been convicted by the learned Sessions Judge, Tharparkar at Mirpurkhas and sentenced to transportation for life under section 302/149, P. P. C., R. I. For 12 months under section 148, P. P. C. And R. I. For to years for "offences under sections 325, 324 and 323 read with section 149, P. P. C." all the sentences to run' concurrently.
2. The facts leading to this appeal briefly are as follows.
'On 2-10-1966 at about 5-30 a. m. An incident took place in Blocks Nos. 60/1 and 4 of Deh Rahmore, Taluka Umerkot; in the course of which deceased Rehmat son of Boota lost his life and P. Ws.
Yousuf,' Fazal Din arid Sadruddin: sustained injuries on the side of the complainant, while four out of the eight appellants, namely, Shadi Khan, Ghulam Muhammad, Jamaluddin. And Ramu also sustaiged injuries. The same morning at 7-45 a. m. Com--plainant Manghar P. W. 4 lodged his First Information Report Exh. 15 at Nabisar Road out-post, wherein he described the prosecution version of the occurrence in the following words :- "I am resident of Nabisar Road Taluka Umarkot. I own land in Block No. 33, Deh Rahmore Taluka Umarkot. I am also "hari" of Dr. Iqbal. Today on 2-10-66, I had to take my turn of water which was to start from 5-30 a.m. To 9-30 a.m. Before me, was the turn of Rehmat. Today at about 5-30 a.m. I and my brother Fazaldin and Sadar alias Sadruddin went to take over turn of water from Rehmat.
When we reached the crossing of Block No. 60, we saw that Rehmat was watering his leased land in Block No. 60 Square No. 1 acre No. 1 of Deh Rahmore Taluka Umerkot. He shouted at us to see as to who were coming in a bullock-cart from a distance. We looked towards West and found a bullock- cart coming in which Qaim--din (2) Dano (3) Shadi Khan (4) Jamala alias Jamaluddin (5) Talla
(6) Nizamuddin, all by Baste Gujar and (7) Ramo Bhil were sitting. They straightaway drove the bullock-cart into the leased land of Rehmat in Block No. 60, Square No. 4 of Deh Rahmore. We all three also went and reached there. In the meantime, Qaimuddin incited his other companions to attack. Then all of them mobbed us anal started giving blows-- to me, my brothers, and Rehmat.
Dano Gujar gave a spear blow to my brother Fazldin, which hit him on his left nipple. Shadi Khan Gujar gave blunt-sided hatchet blow. To my brother Sadra alias Sadaruddin which hit him on his side. Qainidin Gujar gave sharp-sided .Hatchet blow to Rehmat which struck him on his head.
Jamaldin Gujar also gave lathi blows to Rehmat. Rano Bhil gave me lathi blows which hit me on my left hand. Upon our cries Kamal Khaskheli, Rehmat Khaskheli, Mataro Khoso and other people came running. They intervened and got us freed from them. The said leased land of Rehmat, belongs to zamindar Ghous Mohamed son of Yousuf Gujar, which has been allotted to him against his claim.
The above-mentioned opponents have also received injuries during the quarrel. The above accused came and trespassed into the leased land 'of Rehmat, accused, with spears hatchets and "lathis" and inflicted fatal injuries. I lodge complaint: Investigation be made."
About 15 minutes earlier appellant Qaimdin also lodged his First Information Report at the same police out-post wherein he gave his version of the occurrence as follows: "I am resident of Nabisar Road, Taluka Umerkot. I have got land against my claim, comprising Square No. 124, Block No. 60 in Deh Rahmore Taluka Umerkot. Earlier, it was in possession of Rehmat and Josef Sheikh for about ten years. After my receiving it in claim, Tapedar Habibullah under the orders of the Mukhtiarkar, got me its possession from .Them on 24-8-66. After receipt of possession, I got the said land ploughed and raised lucerne and millet cultivation in Square No. 1. Today on 2- 10-66, it was my, turn of water which started from 3-30 a.m. To 5-30 a.m. Which I took over from Manghar the Hari of Dr. Iqbal, and watered my lucerne cultivation. . At about 5-30 a.m. When my turn was over, I handed over the charge of water again to Manghar for his land. Then, my brother Shadi Khan and servant Ramo harnessed bullocks in the plough and started ploughing my land in Acre No. 4 of Square No. 1. I was standing there. Then Manghar returned towards his house and at about 6-30 a.m. Accompanied by Rehmat (2) Sadra (3) Joseb turned up to us in our above claim land. Of them Manghar, Rehmat and Sadar were armed with spears and Josef was armed with a hatchet. Soon afterwards, Manghar said to us, "we have been restored this land. Why you have started ploughing. Stop ploughing and get out from the land. And I old him that we would not stop ploughing as I had got it against the claim, and nor shall we leave it. Upon my so saying, Manghar shouted at his companions to attack and not to spare. Thereupon all -of them pounced upon us.
Manghar inflicted spear blows on servant Ramo Bhil, and Rehmat dealt spear blows to my brother Shadi Khan. Ramo received injuries on his right arm and head. Shadi Khan has received injuries over his left eye, forehead, left hand and left thigh. During the quarrel my nephews Jamaldin and Ghulam Mohamed came and tried to intervene whereupon Sadra gave spear blows to Ghulam Mohamed which hit him over his left eye and back and Josef gave hatchet blows to Jamaldin which hit him on his left cheek and back. On our cries and alarms Sadiq Arain and Hasan Khaskheli and other people, came and averted the quarrel have brought the- above injured persons and lodged complaint. I do not know whether the above opponents have received injuries or not, in the quarrel. The spears used in the quarrel by accused Rehmat, Sadra and Manghar and the hatchet used by Josef which were -snatched from them, have been brought by me, which I produce.
The above-mentioned accused trespassed into my allotted land and attacked with spears and hatchets. I lodge complaint. Investigation be made."
3. After recording these to First Information Reports, A. S. I. P. Mohammad Issa of Nabisar Road Out- post went to the scene of occurrence. Where he found a bullock-cart standing - with to bullocks containing a plough yoke, and spade. The wheel marks of that cart led from Nabisar Road village to the scene of occur--rence. This cart belonged to appellant Qaimdin. The, A. S. I. P. Also found blood on the ground and prepared a mahirnama of the wardat where in all these facts were noted. No weapon was. Found lying at the scene of occurrence. After the usual investigations were concluded the appellants were challaned.
4. The defence of the appellants Dana, Nizamdin and Tulla was one of complete denial; while the remaining 5 appellants admitted their presence at the scene of occurrence, and stated that the possession of the disputed land was with them and that in fact they were attacked by the complainant party. In other words their defence was similar to that urged by Qaimdin in his First Information Report, Exh. 60, which has been repro--duced above.
5. The fact that there: was a fight in which several persons received injuries and deceased Rehmat lost his life has not been disputed at any- stage of the case. The evidence of Dr. Alah--bachayo Medical Officer, Umerkot shows that deceased Rehmat had as many as 10 injuries on his person which were caused by blunt weapon such as a lathi or back side of the hatchet. The three injured witnesses, namely, Yousuf Fazaldin and Sadaruddin had also sustained 6 injuries of which all except one were caused by a blunt weapon. The appellants had a total number of 15 injuries, some of which were caused by sharp cutting weapon while the remaining injuries were caused by blunt weapon. The medical evidence, accordingly, leaves no room for doubt that a fight took place on the day of the occurrence which is also the common case of both the parties.
6. The only question which, therefore, needs consideration is as to which of the to parties was the aggressor in this case. This would also depend on the question as to who was in physical possession of disputed land on the day of the occurrence. We would, accordingly proceed to consider this aspect of the case first.
7. All the injured witnesses, namely P. Ws. Manghar, Fazaldin, Sadruddin and Yousuf have stated that deceased Rehmat was in possession of the disputed land. It would not, however, be possible to accept their evidence on this point on its face value and we shall have to consider whether this assertion on their part is supported by any other independent or circum--stantial evidence.
8. The most important witness regarding the question of possession is P. W. Habibullah who is Tapedar (Patwari) of Tapo Rahmore in which the disputed land is admittedly situated. He stated that he had delivered possession of the disputed land to appellant Qaimuddin, on 24-8-1966 but deceased Rehmat and Yousuf did not vacate the disputed land and even refused to sign the mashirnama regarding handing over of possession. There is no doubt that this witness tried to favour the appellants initially in his examination-in-chief but he was therefore, asked to bring the previous correspondence file and thereafter he had to give evidence on the basis thereof. The witness stated that Qaimuddin never paid land revenue in respect of this land and the same was all along being paid by Rehmat and even after his death it was being paid by his nephew P. W.
Yousuf. The witness admitted that he had lodged a complaint with the. Mukhtiarkar alleging that Rehmat and Yousuf had refused to hand over possession of the disputed land to Qaimuddin and they were bent upon fighting over possession. This witness also stated that Rehmat and Yousuf were the actual cultivators of the land. The order of the Mukhtiarkar and Tribunal at page 15 of the P. C. Showed that the possession of the Zamindari share had already been delivered to Qaimuddin on 24-4-59 but Rehmat and others were not allowing Qaimuddin to enter on the land. On the basis of this the learned trial Judge very rightly came to the conclusion that although the formal possession had been delivered by the Tapedar to Qaimuddin the actual and physical possession of the disputed land still, remained with deceased Rehmat and he was taking all the necessary precautions to see that this possession was not interfered with. This finding is also supported by the circumstantial evidence regarding the finding of one bullock cart with to bullocks containing plough yoke and spade standing there. This was deposed to by mashir Gulab, P. W. 10 and his evidence was corroborated by the mashirnama of the wardat, Exh.
53. There were also wheel marks which showed that the cart had been brought from Nabisar Road: The very fact that this cart with a plough yoke and spade lying therein was brought by the appellants in the morning of the fateful day of .The occurrence would show that they wanted to take possession of land forcibly. If the possession was already with them as asserted by them in their defence this would not have been so.
9. Mr. A.R. Kazi, the learned counsel for the appellant has emphasized the fact that one day prior to the occurrence Qaimudin had lodged a report at Kunri Police Outpost regarding "the theft of his but", which was situated there. The learned counsel emphasised that the presence of this hutment showed that the appellants were in physical possession of the land. The report of the S. H. O., who investigated this case, however, showed that this report was false and that the but had been removed by Qaimuddin himself. This is on page 242 of the paper book (Exh. 68). Even otherwise a bare reading of the report, Exh. 66, would show that it was a false report and was rightly treated such by the police, in their report Exh.
68. Mere filing of this false report only one day prior to the incident could not, therefore, establish the possession of the appellants. In fact it shows that they were very keen to create a defence for themselves by filing a false complaint of this nature. Besides the mashirnamu of the wardat which was prepared on 1-10-1966 also showed that there was cultivation of Bajra and lucerne in the disputed land which was ploughed up and the hutment which was supposed to have been erected there had also been removed. The learned trial Judge was, accordingly, correct in inferring from this circumstance that since Qaimuddin and others could not have been interested in removing this hutment, it was clear that the land was ploughed by Rehmat and his party. For all these reasons we have no hesitation whatsoever in agreeing with the learned trial Judge that the physical possession of the disputed land was with the complainant party and that it was the appellants who wanted to dispossess them by force as a result of which deceased Rehmat lost his life and several other persons suffered injuries.
10. Mr. A. R. Kazi, the learned counsel for the appellants next contended that even if the appellants party was the aggressor, the questions would still remain whether each one of the eight appellants participated in this occurrence. Mr. Kazi, contended that appellants Dana, Nizamudditi and Tulla had absolutely no injuries on their person and it would have been very difficult for them to escape unhurt if they had really participated in this fight. Mr. Kazi emphasised -the fact that all the injured persons were interested in the prosecution case as they were accused in the counter-case filed by the appellants. They would, accordingly like to implicate as many people from the other side as possible. The tendency is this part of the country to implicate as many persons from the rival faction as possible well-known. To quote the words of Lobo, J. In the well-known case of Janoo Khair Mohamed and others v. The Crown (I L R 1943 Kar.. 143) : "In this Province, where it is so common in cases of a fight between to parties to implicate all the male members of a family when only one -or other of them may have been concerned in the commission of an offence, it is but a matter of prudence not to accept the oral testimony of interested witnesses as sufficient to convict an accused person, unless the oral testimony is corroborated by other reliable oral evidence or incriminating circumstances."
11. It would accordingly have to be seen whether apart from the testimony of these injured witnesses who are all interested, there is any corroboration of their testimony to connect; these three appellants with the crime. It appears that the learned Judge has been impressed by the testimony of to witnesses, namely, Mataro P. W. 8 and Kamal P. W. 9, who m he considered to be independent witnesses. It is no doubt true that they are not related to the complainant but a bare reading of their evidence leaves no doubt in our mind that they cannot be described as disinterested persons. P. W. Mataro stated that he witnessed the occurrence only because at the relevant material the he had gone out to ease himself. Mr. Kazi has accordingly contended. That he is a chance witness. Be that as it may, there are other circumstances in the evidence of this witness which belie the findings of the, learned Judge that he, is a disinterested witness. P. W. Mataro stated that the blows were being struck when he reached the wardat and that at the same the he also saw deceased Rehmat giving blows to the. Appellants. His version before the police however, was that when he reached at the wardat Rehmat had already fallen down. The witness made this improvement at the trial in order to attribute the injuries on the person of the appellants to deceased Rehmat as he did not want to implicate any of the prosecution witnesses for having caused any of these injuries. The: witness stated that Rehmat dealt hatchet blows to Jamaluddin and Shadi while "the other to received blows from their own companions." We consider this to be a crude attempt on part of the witness to improve his evidence at the trial to support the prosecution version. If a prosecution witness is found to make improvements on the point which he thought material and goes to the extent of making absurd statements in order to bring his evidence in line with that of the interested witnesses, we feel that he cannot be considered to be an independent witness by any stretch o imagination. Similar is the case of P. W. Kamal, lf. W. 9, who stated at the trial that he found Shadi and Nizamuddin receiving blows from deceased Rehmat and "the other accused may have received blows from their own companions." This he had not stated either before the police or in the Court of Enquiry. It was a clear improvement to favour the prosecution.
What is more, this witness also admitted that deceased Rehmat had filed a case against Qaimuddin and Shadi regarding theft of sugarcane about four years back and he was a prosecution witness in that case but the accused were let of. This is another circumstance to show his interest in the prosecution case. For all these reasons we consider that neither of these to witnesses can be considered to be a completely disinterested witness and consequently their evidence would not be sufficient corroboration of the testimony of injured interested witnesses.
12. Mr. Manzoor Hussain, the learned counsel for the state does not support the conviction of appellants Dana, Nizamuddin and Tulla. According to the learned counsel these appellants are entitled to the benefit of doubt. We agree with the learned counsel in view of the circumstances mentioned above.
13. Mr. A, R. Kazi, lastly contended that the offence committed by the appellants would not be one under section 302, P. P. C. But it would more appropriately fall under section 325, P. P. C. As the appellants had no intention to commit murder of deceased Rehmat. It is correct that we find the participation of three out of the eight appellants to be doubtful but the fact however, remains that the participation of five, appellants cannot be disputed. They accordingly, formed, an unlawful assembly, the common object of which was to eject the complain--at party by force from the disputed land. For this purpose they brought dangerous weapons, like hatchets and lathis. The minimum that can be presumed in such a case is that they hack at least the knowledge that in these circumstances a murder was likely to be committed ,in the process. They would accordingly be fully liable by virtue of the second part of section 149, P. P. C. We would, accordingly maintain their convictions and sentences under section 302/149, P. P.C. 'as also under sections 325, 324 and 323 all read with section 149, P. P. C. As provided under section 71, P. P. C. However, it is not necessary to record separate sentences under each of these sections. We would, therefore, maintain their sentences of R. I. For one year each under sec--tion 148, P. P. C. And R. I. For to years each under section 325/ 149, P. P. C. It is, however, not necessary to award separate sentences under section 324 and 323 both read with section 149, P. P. C. All the sentences shall run concurrently.
14. In the result the appeal is partly allowed, The convictions and sentences of appellants Dana, Nizamuddin and Tulla are set aside: They are in custody and shall be released forthwith unless required in any other case. The convictions of appellants Qaimuddin, Shadi Khan, Jamaluddrn. Ghulam Mohamed and Ramu and the sentences awarded to them by the trial Court are, however, maintained. The appeal is partly accepted to the extent indicated above.