' The appellants Umer and Jumman. Both brothers, were tried on charges under sections 302/34, 452, P. P. C. By the learned Sessions Judge, Dadu (Mr. Nazim Hussain Siddiqui) who by a judgment dated 3rd November, 1982, convicted both the appellants under section 302/34, P. P. C. And sentenced each of them to suffer imprisonment for life and to pay fine of Rs, 5,000 or in default to suffer R. I. For 6 months. They have further been convicted under section 452, P. P. C. And sentenced them to suffer R. I. For a period of 3 years or in default whereof to suffer R. I. For a period of 3 months.
' Being aggrieved with the judgment both the appellants filed an appeal on 13th November, 1982.
' The brief facts of the prosecution case are that complainant Muhammad Sumar is Tapedar in Revenue Department and deceased Achar was his brother who used to ran cloth shop at Johi Town as well as to look after the lands of Muhammad lqbal.
' On the day of incident i. e. 9th February, 1978 in the morning the deceased as usual went to his shop and Muhammad Sumar to his office, where Ghulam Muhammad Solangi informed him that be and Minhoon were standing at the shop of deceased when at 10.00 a. m. Umar and Jumman both sons of Mir Muhammad Rind. Resident of Bachal Rind, duly armed with hatchets came, entered in the shop of Achar and told deceased that his Hari Hamzo Rustamani had fought with them on rotation of water by saying so they abused and gave him blows with back side of hatchet.
On hearing this news complainant went to the scene of offence and found that his brother Achar was lying unconscious in the shop having injuries on head and other parts of the body, many persons were standing there. He took his brother to the Police Station Johi and lodged report which was registered under sections 325/34, 452, P. P. C. At 11.15 a. m. (Crime No, 7/78).
2. Khaliqdino A. S.-I. Recorded the F. I. R. Prepared memo. Of injuries and referred Achar injured who was unconscious to Medical Dispensary Johi. He then proceeded to vardat which was in Shahi Bazar of Johi and prepared Mashirnama in presence of Mashirs, Muhammad Ali, Suleman. He also recorded statements of P. Ws. Minhoon, Ghulam Muhammad, Liagat, Siddik and Muhammad Ali. On 14th February, 1978 A. S.-I. Received intimtaion from Hospital about the death of Achar. He went to the Hospital and prepared memo. Of dead body in presence of Mashirs and on same day arrested both the accused from their village Bachal Rind, who voluntarily produced their hatchets. On 23rd February, 1978 A. S.-I. Got recorded 164, Cr. P. C. Statement of P. W. Ghulam Muhammad, Minhoon, Liaqat, Muhammad Afi and Muhammad Siddik through Mukhtiarkar and F. C. M., Johi. Achar died on 13th February, 1978 therefore, the case under sections 302, 325, 452/34, P. P. C. Was challaned on 25th February, 1978 in the Court of Civil Judge and F. C. M., Johi from where it was sent up to the Court of Sessions Judge, Dadu for trial.
3. At the trial prosecution examined 10 witnesses in support of its case. Ocular testimony is furnished by three witnesses who are Ghulam Muhammad Exh. 12 Minhoon, Exh.
22. Muhammad Siddik Exh.
35. P. W. Dr. Ghulam Rasool, Exh. 3 Saw the injuries of deceased on 9th February, 1978 and subsequently conducted the post-mortem on the dead-body on 14th February, 1978. P. W. 2 Muhammad Soomar Exh. 10 complainant is not eye-witness P. W. 5 Ahmed Ali is Tapedar who prepared the sketch of vardat, P. W. 6 Muhammad Ali is Mashir who attested the mashirnamas of injuries, vardat and production of hatchets from accused Umar and Jumman. He has also acted as Mashir of arrest of accused. Nazar Hussain, Police Constable Exh. 31 has returned unserved process of P. W. Liaqat Ali, P. W. 9 Khaliqdino A. S.-I. Exh. 39 has investigated the case. P. W. 10 Dr. Mukhammil Hussain examined the injuries of accused Muhammad Umar and issued certificate which is Exh.
41.
4. Before the trial Court the appellant Umar in his statement under section 342, Cr. P. C. Exh. 44 denied the allegations and stated that (Reproduced as under). "In 1978 one day it was our turn of water where appeared Muhammad Soomar, Jumman and Usman who prevented us not to have the turn of water. We entreated them to leave us and they attacked us and caused me injuries.
Deceased Achar also came. He also received injury in the scuffle. Thereafter my brother Jumman took me to the thana where the report was lodged which has been exhibited by A. S.-I. As Exh. 31, Abdul Rahim is our Zamindar. He was also informed about the incident before the report was lodged."
' Appellant Jumman adopted the statement of his brother Umar. One Abdul Rahim has been examined in defence. His statement is at Exh.
47.
5. I have heard Mr. Usman Ghani Rashid, learned Advocate for the appellant and Mr. Agha Ghulam Ali for the State.
Learned Advocate for the appellants has strongly criticised the evidence produced by the prosecution. He has further stated that witnesses are interested and name of eye-witnesses of Muhammad Siddik does not appear in F. I. R. Learned Advocate for the appellants has also taken plea of self-defence and disputed the place of occurrence and relied upon the complaint lodged by appellant Umar Exh.
40. He has further contended that eye-witnesses are chance witnesses because they did not belong to the locality in which incident took place. Mr. Agha Ghulam Ali contended that names of accused appeared in F. I. R. Which has been lodged without any delay and that eye-witnesses have fully supported the case of prosecution.
6. So far actual incident is concerned eye-witnesses Ghulam Muhammad Exh, 12 Menhoon, Exh. 22, Muhammad Siddik Exh. 35 have deposed that incident took place in Shahi Bazar of Johi and both the appellants caused injuries to deceased by blunt side of hatchet. Dr. Ghulam Rasool, P. W. 1, has stated that he examined injured Achar on 9th February, 1978 at 12.00 noon and found following injuries :-
(1) Contusion 1" x 1" on left parietal region.
(2) Contusion 3" x 3" on right parietal region.
(3) Contusion 1" x 1" on the top of the skull on right side.
(4) Contusion x 1" on the front of right lower chest.
(5) Abrasion 1/4" x 1/4" on the dorsum of left little finger.
(6) Abrasion 1/2"x 1/4" on the dorsum of left wrist joint.
' Injuries according to Medical certificate Exh. 4 were two hours old. After death of Achar the Doctor also conducted his post-mortem and gave same opinion and stated that from external as well as internal examination death occurred due to haemorrhage and damage to brain consequent upon injuries Nos. 1, 2, 3, and 4, caused by blunt substance. Mashir Muhammad Ali Exh. 25 and A. S.-I.
Khaliqdino, Exh. 39 have also supported so far place of occurrence is concerned. From Medical evidence and ocular testimony it proved that incident was witnessed by eye-witnesses which had taken place in the Shahi Bazar of Johi. Enemity has not been proved. In the cross-examination suggestion has only been made that incident took place at the lands but defence has not been able to prove that aspect of the case.
7. The contention of learned Advocate for the appellants that name of eye-witnesses Muhammad Siddik, Liaqat and Muhammad Ali do not appear in F. I. R, is correct but in F. I. R. It has been mentioned that other people were present in the bazar whereby Police recorded statement of Muhammad Siddik, Liaqat Ali and Muhammad Ali. P. W. Muhammad Siddik has Cloth Shop in the bazar opposite the shops of deceased. In this context, I refer to case reported in 1982 P Cr. L J 298 can be where it has been held that though witness not named in F. I. R. Believed. P. W. Liaqat Ali was not available therefore, Ahmed Ali process-server was examined. In a case reported in 1983 S CMR 697 it has been held that it is not incumbent upon the prosecution to produce each and every witnesses Ipentioned in the calendar of witnesses.
8. Now I come to plea of right of self-defence taken by appellant. Appellant Muhammad Umar, is said to have gone at Police Station Johi on 9th February, 1978 at 11.00 a. m. And his report under section 323/34, P. P. C. Exh. 31 was entered in Roznamcha as non-cognizable offence. The contents of the complaint of Muhammad Umar are as under :- "I am Hari of Abdul Rahim Khan Rind. Yesterday i. e. On 8th February, 1978 at sunset time, the turn of my water started. I took the turn of water from Sobho Rustamani. I turned the water towards my land. I remained there till sunrise in the morning. Thereafter I feel some cold, therefore, I went to bring Lai-wood. In the meanwhile Jumo, Usman and Soomar Solangi came there. They came and opened the blockade of water towards their land. I prevented them not to divert the water towards their land as still there was one pahar-time for my turn of water. Upon this Jurno abused me and became ready to quarrel. Jummo and Usman caused injuries with handle of hatchets. On commotion Sobho Rustamani came there. Usman and Jumo were armed with hatchets. Soomar and Sobho were armed with lathis. Thereafter my brother Juman also came there. He asked the accused not to give the blows to the man. While doing so (paper-torn) made entreaties and got me released. Thereafter the accused went away towards their land. Thereafter Ghulam Qadir and Hamzo Solangi came. They also abused me and told me that they will see me when I will go to the land. Thereafter I and my brother Jurno came to the village. I narrated the facts to Abdul Rahim Khan, who has brought me for lodging report. During the quarrel Muhammad Achar Solangi has received the blows who came later on."
' There is a note of A. S.-I. Khaliqdino in the report which reads as under :- "The report of the complainant disclosed non-cognizable offence therefore he was directed to file complaint in the Court."
' A. S. I. Khaliqdino in his deposition Exh. 39 has stated that he did not observe visible marks of injuries on the person of Muhammad Umar in spite of that he referred hi' m to M.O., Johi, Dr. Mukhamil Hussain, Exh. 41 found 8 injuries on Umar appear to have been caused by blunt substance like fist blow or slap. Injured Muhammad Umar was examined on 9th February, 1978 at 12.00 noon and age of injuries were opined to be within 8 hours. However, Dr. Mukhamil Hussain, Exh.
41 has tried to oblige appellant in cross-examination contrary to his certificate Exh.
42. It is worth to be mentioned that according to medical certificate, Muhammad Umar was sent in police custody to medical dispensary on 9th February, 1978 whereas according to A. S.-I. Appellant was arrested on 10th February, 1978 from his house at village Bachal Rind. This also creates doubt about arrest and medical certificate of Umar.
' In view of the circumstances and recorded facts that Muhammad Umar has not filed direct complaint in any Court through his defence witness who took him to police station, was Advocate.
Moreover according to his report Achar had no weapon and he did not cause any injury to Muhammad Umar. Medical evidence about the time of incident do not .Support the report lodged by Muhammad Umar. The place of vareat at the lands not proved, I am of the view that appellants have not been able to prove the plea of self-defence. The evidence of defence witness Abdul Rahim is not reliable as he is interested.
9. Mr. Usman Ghani Rashid has also contended that in view of the injuries caused by back side of hatchet the offence will fall under section 325, P. P. C. And not under section 302, P. P. C. I do not agree with his arguments deceased sustained as many as 6 injuries which proved fatal and he died. In this respect the Supreme Court in case reported in PLD 1983 page 88 held :- Relevant page 92.
"It is clear that the appellant had given a blow with full force with an iron implement on a vital part of the body of the deceased and he must therefore, be burdened with intention to cause death or at least such bodily injuries as was likely to cause death and ordinarily death would be the appropriate penalty in such a ease."
' It was contended that at the time of incident appellant Umar was under 16 years of age as such be should have been tried under Sind Children Act, 1955. On this point learned Sessions Judge.
Dadu in view of Medical Report gave his finding that he was not minor at the time of occurrence. I have also heard Mr. Usman Ghani Rashid learned Advocate and decided this on point and passed an order on 3rd August, 1981 that Umar was above 16 years at the time of incident.
11. For the facts and reasons that three eye-witnesses fully supported the case of prosecution, enmity has not been proved, the occular testimony is corroborated by Medical evidence and there is motive that the prosecution has proved its case beyond reasonable doubt against the appellants and I dismiss the appeal filed by them and maintain impugned judgment of conviction and sentence.
' Appellant Umar is on bail. His bail bond is cancelled and trial Court is directed to issue non- bailable warrants and he be remanded back to custody to serve out the sentence.
Appeal rejected.