' Appellant above-named, being aggrieved by Judgment dated 13th April, 1976 of the learned Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No, 15 of 1975, whereby appellant Peeru has been convicted under section 304 (II) and under section 323/34, P. P. C. And sentenced to suffer rigorous imprisonment for three years and six months, respectively. Both sentences to run concurrently and appellant Amin has been convicted under section 323/34, P. P. C. And sentenced to suffer rigorous imprisonment for six months, have filed the above appeal, on the following facts and grounds :-
2. The case against the appellants has arisen from an incident of encounter between two parties having taken place at a bus stand on Umarkot to Samaro road, within the limits of Umarkot Police Station, in the morning hours of 30th of November, 1973. It carries two versions. The prosecution version of the incident is, Thata Party of four persons comprising of Yamin, Imam Bux, Soomar and Wassayo all Nuhanis by caste, had left their village at Soofia Far in Taluka Umarkot on 29th of November, 1973 for recovering certain dues from one Ahmed Halepoto at his lands, in Taluka Umarkot at a distance of about 8miles from their village. They could not contact Ahmed Halepoto there. They stayed for night at his lands with Kamdar Yousif. They left that place on the next day early morning and boarded a bus on Umarkot to Samaro road for return journey. All the appellants, except appellant Dadu, belonging to Theba community, were found travelling in the same bus, while carrying hatchets and lathis. The appellants, the other party viz. Yamin and others of being thieves, picked up quarrel with them. Both the parties got down from the bus at a Bus stand, known as the protective bund bus stand. There was an addition in the number of the appellants party by the joining of appellant Dadu there. Appellants are alleged to have surrounded the Nuhanis party and assaulted Wassayo and Imam Bux from amongst them and captured Wassayo and Soomar, while Yamin and Imam Bux effected escape. Appellant Peeru is alleged to have struck Wassayo on his head with an iron-plated lathi and appellant Dadu struck Imam Bux by means of blunt side of a hatchet. Yamin and Imam Bux rushed to their village and informed their headman Jani. All the three then complained to one Abdul Karim Palli. He advised them to lodge report with police. Yamin lodged report at Umarkot Police Station on 1st December, 1973 at 11-40 a. m. It was recorded by the Incharge P. S. Shah Muhammad H. C. In the Station Diary, under offence punishable under sections 323 and 405, P. P. C. The counter-version of the incident put in by the appellants, Is, that Yamin, Wassayo, Imam Bux, Soomar and Jani had stolen their four buffaloes during the previous night from the pasture field and that they had chased them and that the thieves had injured Allah Bachayo on the way by throwing ghobatas at him and laid him to the ground and ultimately abandoned the stolen buffaloes, which were taken back by Peeru, and the chase was continued by the Miandino, Amin, Jaffar and others and they overtook the thieves near the protective bund, with the assistance of appellant Dadu, and the thieves encountered with them and assaulted Dadu, and that two of the thieves Wassayo and Soomar were captured, while the other thieves made good their escape. Report to this effect was made at Umarkot Police Station by Jaffar Thebo on the same day at about 8-30 a. m. And it was registered by Shah Muhammad H. C.
3. Shah Muhammad H. C. Took up investigation on the report lodged by Jaffar. He proceeded to the vardat. He found Wassayo and Soomar in the custody of the appellant at the village of Thebas near the protective bund. He found an injury on the head of Wassayo. He prepared the mashirnama of injury on him, recorded his statement and referred him to Medical Officer Umarkot for medico-legal examination. Two hatchets alleged to have been recovered from Wassayo and Soomar were produced before him by the appellant party. He recorded statements of the appellants party as witnesses in the case reported by Jaffar. He referred Dadu and Allah Bachayo to the same Medical Officer Umarkot for their medico-legal examination. He visited the vardat of the encounter as well as that of the theft of the buffaloes. Wassayo's condition deteriorated and the Medical Officer Umarkot referred him to Civil Hospital, Mirpurkhas. He died there on 2nd December, 1973 at 3-15 p. m. And autopsy of his corpse was conducted there by the Medical Officer Dr. Sultan Mehmood. Information of his death was conveyed to Mirpurkhas Road P. S. Who transmitted it to P. S. Umarkot. On receipt of this information, Shah Muhammad H. C. Registered the crime of murder by transcribing in 154, Cr. P. C. Book the contents of the report made by Yamin on 1st December, 1973 and recorded in the Station Diary. He immediately proceeded in the investigation. He inspected the vardat and recorded statements of some of the witnesses. Further, investigation was undertaken by Amir Bux A. S. I. P. And Muhammad Rafique S. H.
0. It transpired during the course of the investigation, that the incident was also witnessed by Ali Bux Bunglani and Ajio Manghwar who were available at the bus stand. Amir Bux A. S. I. P. Recorded their statements on 4th December, 1973. He recorded statements of other witnesses Yousif, Abdul Karim Palli and Ahmed Halepota on 5th December, 1973. Appellants Peeru and Dadu surrendered before him, alongwith their respective weapons, at the police station on 7th December, 1973 and he took them in his custody. Appellant Mian Dino also surrendered before him on the same day evening and he put him also under arrest. Appellant Allah Bachayo surrendered at the police station on 8th December, 1973. The appellant Amin obtained bail before arrest from the Sessions Court. Interim challan was submitted in the Court of Civil Judge and F. C. M., Umarkot on 22nd December, 1973 and final challan was submitted on 5th March, 1974.
4. All the appellants were committed to trial Court on 31st January, 1975 to stand trial as the charge of offences punishable under sections 302/ 34, 323/34, 148, 302 and 323 read with section 149, P. P.
C. The charge being improperly drawn, it was amended. Under the amended charge, the appellant Peeru stands charged with the offence punishable under section 302, P. P. C. And the other appellants namely Dadu, Mian Dino, Allah Bachayo and Amin also stand charged with the same offence punishable under section 302, P. P. C. Read with section 34, P. P. C. For causing death of Wassayo deceased. The appellant Dadu stands further charged with the offences punishable under section 323, P. P. C. And the other appellants Peeru, Miandino, Allah Bachayo and Amin also stand charged with the same offence punishable under section 323, P. P. C. Read with section 34, P.
P. C. For causing hurt to P. W. Imam Bux. They have been tried on that charge on their pleading not guilty to it.
5. Prosecution had led evidence of Mir Muhammad Tapedar (P. W. 1), complainant Yamin (P. W. 2), Imam Bux (P. W. 3), Soomar (P. W. 4), Ali Bux Bunglani (P. W. 5), Hajio Menghwar (P. W. 6), Ghulam Rasool mashir (P. W. 7), Haresingh mashir (P. W. 8), Allah Dino A. S. I. P. (P. W. 9), Shah Muhammad A.
S. I. P. (the then H. C.) (P. W. 10), Amir Bux A. S. I. P. (P. W. 11). Dr. Sultan Mahmood (P. W. 12) and brought on record under section 509, Cr. P. C. The evidence of Medical Officer Umarkot, Dr. Muhammad Ayoob, recorded in the lower Court. The appellants have not led any evidence in defence.
6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named, as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. At the time of admission of the above appeal suo motu a notice was issued to appellant Peeru to show cause, why sentence awarded to him may not be enhanced and consequently suo motu Reference No, 33 of 1976 in this connection is also before me. Since both the matters arise out of common judgment, I have decided to dispose of the appeal as well as suo motu reference together.
8. The learned Advocate for the appellants in support of the above appeal submitted as under :-
(a) That all the prosecution witnesses were disbelieved by the learned trial Court and as such there is no evidence on record to connect the above appellants with the murder of deceased Wassayo and injured Imam Bux.
(b) That injury to P. W. Imam Bux is attributed to Dadu, who has not appealed from the impugned judgment and there is nothing on recording to attract the provision of section 34, P. P. C. So as to convict the present appellants for alleged injuries received by P. W. Imam Bux.
(c) That injury to deceased Wassayo is no doubt attributed to appellant Peeru, but the statements of the prosecution witnesses were not believed by the learned trial Court. In addition to this lathi alleged to have been recovered from appellant Peeru was not bloodstained and further the said recovery was not relied upon by the learned trial Court. In view of this conviction of the appellants on the basis of the counter, F. I. R. Which was not lodged by either of them and in the absence of any evidence on record to attract the provision of section 34, P. P. C. The conviction of the appellant Peeru under section 304, Part-II cannot legally be sustained. In support of his contention the learned Advocate for the appellants relied upon the case reported in P L 0 1975 SC 607. The learned Advocate for the appellants also relied upon the cases reported in PLJ 1981 Kar. 324 and 1978 SCM R 49 in support of the above contentions.
9. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment as well as suo motu reference for enhancement of punishment as far as appellant Peeru is concerned, on account of the cogent reasons given by the learned trial Court in his impugned judgment, by which appellants have been convicted.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R and Ps. Of the learned trial Court as well as through the impugned judgment and the cases cited by the learned Advocate for the appellants.
11. The learned trial Court disbelieved the prosecution version of the incident in question, as well as the statements of prosecution witnesses and also did not rely on the alleged recoveries, as recoveries made from the appellants side had no blood stains on them. However, on the basis of the counter-F. I. R./ complaint lodged by the appellants side, the learned trial Court came to the conclusion, that the encounter did take place between the complainant side and the appellant side as mentioned in the counter-FA. R./complaint and in the said encounter deceased Wassayo and P. W. Imam Bux received injuries, as a result of which deceased Wassayo died. The learned trial Court in view of these facts came to the conclusion, that the injury received by the deceased Wassayo has been attributed to appellant Peeru and the injury received by P. W. Imam Bux is attributed to Dadu and consequently convicted appellant Peeru under section 304 (II), P. P. C. By coming to the conclusion, that the appellant exceeded right of self-defence after the complainant side had left the buffaloes alleged to have been stolen by them. The learned Advocate for the appellants submitted, that since the prosecution witnesses were not relied upon by the learned trial Court for cogent reasons, their statements regarding appellant Peeru having given fatal injury to deceased Wassayo should not have been accepted, specially as in the counter-complaint Exh.
38, it is mentioned, that appellant Peeru did not pursue the thieves after they had left the buffaloes and appellant Peeru returned back with the baffaloes and in the face of appellant Peeru's statement under section 342, Cr. P. C., in which the appellant has confirmed this fact. I find great force in this contention of the learned Advocate for the appellants. I find from the impugned judgment, that the learned trial Court has for cogent reasons not accepted the statements of the prosecution witnesses and consequently the A prosecution version of the incident, in view of this, reliance on the very same prosecution witnesses for purposes of holding present appellants guilty of the offences charged, in my opinion, on the basis of presumption, by the learned trial Court was not at all warranted. Therefore, I am of opinion that prosecution has failed to establish its case against both the present appellants, by any cogent evidence on record beyond reasonable doubt.
There is no cogent evidence on record to attract the provisions of section 34, P. P. C. To the facts of the present case in my opinion. The cases cited by the learned Advocate for the appellants are applicable to the facts of the present case.
12. Therefore, I allow the above appeal and set aside conviction of the appellants and sentences awarded to them under the impugned judg-ment and acquit them by giving benefit of doubt and consequently discharge the bail bonds executed by the appellants. In view of this, I also dismiss suo motu reference No, 33/76 and withdraw the notice for enhancement of sentences issued to the appellant Peeru.