Aoha Au Hyder, J.--The appellants were convicted by the learned Additional Sessions Judge, Hyderabad for offences under sections 225, 302/149, 325/149, 323/149 and 148, P. P. C. and sentenced as follows :--
(1) For the offence under section 225, P. P. C., R. I. for one year.
(2) For the offence under section 302/149, P. P. C. transporta tion for life and a fine of Rs. 1,000 or in default to undergo R. I. for one year more.
(3) For the offence under section 325/149, P. P. C., R. I. for two years, and a fine of Rs. 500 or in default to undergo R. I. for 6 months more.
(4) For the offence under section 323/149, P. P. C., R. I. for 6 months.
(5) For the offence under section 148, P. P. C., R. I. for 2 years.
The sentences were to run concurrently. Aggrieved by the judgment of conviction and sentence, they have come in appeal.
2. The prosecution story succinctly stated is that some time in the mouth of September 1966, P. W.
Mst. Jannat the wife of Mohammad was enticed away from her husband's house, by one Allahditto, who was accompanied by another person namely, Ghutto. They are alleged to have stolen some ornaments and clothes valued at about Rs. 1,100. All efforts for the restoration of Mst. Jannat, having proved abortive, Muhammad on 18-10-1966, lodged a report at the Kario Ghanwar Police Station. It is alleged that H. C. Abdullah of Kario Ghanwar Police Station, on 20-10-1966, after receiving spy information that Allahditto and Mst. Jannat were hiding in a sugar-cane held not far away from Allahditto's house, proceeded to the hotel of P. W. Mataro. He found P. Ws. Ghulam Hussain, Mataro, Esso, Faqir Muhammad, Nido, Rato and Feroze, since deceased, present at the hotel, and asked them to accompany him to the sugar-cane cultivation. At about the noon time, the sugar-cane field was surrounded and Mst. Jannat and Allahditto, were secured therefrom and arrested.
Allahditto was armed with a hatchet. He was having a bundle in his hands, which on opening was found to contain the stolen articles. H. C. Abdullah, after preparing the mashirnama in that connection, asked his companions to accompany him to the bus stop. After they had covered a distance of about 4-5 S. Nos., the appellants are alleged to have appeared on the scene and demanded that release of Mst. Jannat and Allahditto. When the demand was refused, the appellants who were armed with hatchets, and lathis, attack ed the party causing injuries to Feroze, Rato, Esso, Nido and Faqir Muhammad. The policemen, to scare them away, fired a few shots in the air, whereupon the appellants fled away.
H. C. Abdullah then prepared the mashirnama of the injuries and after making inquiries from Feroze, Rato, Esso, Nido and Faqir Muhammad, sent them to the hospital on a bullock cart alongwith P. C. Dilber Khan. Abdullah then himself lodged the F. I. R. on a blank paper and despatched the same to the police station, through P. C. Muhammad Usman, for being entered in the book, maintained under section 154, Cr. P. C. Later he proceeded alongwith Allahditto and Mst.
Jannat to the otak of Esso. It appears that in the meantime Feroze succumb ed to the injuries and his dead body was brought by P. C, Dilbar Khan in the otak of Esso. S. H. O. Sati Dan Singh, got the information of the incident at about 3-30 p.m. and proceeded to the otak of Esso, where H. C.
Abdullah was present. The dead body of Feroze was still lying there. After preparing the inquest Report, the S. H. O. examined P. C. Dilbar Khan. P. C. Muhammad Usman, and H. C. Abdullah Khan.
Three empty shells were produced before him by the police men, for which a separate mashirnama was prepared and inquiries were made from Mst. Jannat and some other persons.
The next morning the dead body of Feroze was sent to Tando Muhammad Khan through P. C.
Muhammad Usman, for the post-mortem examination. The S. H. O., then proceeded to the wardat and secured the blood-stained earth therefrom, for which a mashirnama was prepared. Later in the day, he went to the Civil Hospital, Hyderabad and interrogated the appellants Mevo, Ahmad, Idal, Rasoolo, Punhoon, and Durro and arrested them. As there were injuries on their persons he prepared a mashirnama. The appellant Walidad was arrested on 24-10-1966, at Hyderabad, On 23- 10-1966, Mevo, Daro, Punhoon, Ahmed and Idal, who has also been described as Abdul at some places, are alleged to have produced blood-stained hatchets. The same came to be sealed in the presence of the mashirs and separate mashirnama were prepared. The appellants Bhiro, Vikio and Amb came to be arrested on 31-10-1966. The challan was submitted on 15-11-1966, show ing the appellants Yateem and Dilawar as absconders. It appears that Dilawar surrendered himself before the Court later on and the appellant Yateem came to be arrested as late as 16- 6-1967.
3. The appellant Mevo in his statement at the Court of Inquiry made out that he had been framed in the case because of enmity and promised to make a fuller statement at the trial. At the trial he stated that he, Rasool Bax, Punhoon, Ahmad, Idal and Durro had fought among themselves four days prior to the arrest on a dispute of water rotation, where he had sustained the injuries. No report had been lodged with the police, as they had resolved their differences among themselves.
He also gave the details of enmity between his father Marid and P. W. Ghulam Hussain and his brothers. He also maintained that Mst. Jannat was living with her uncle Ghutto and later came to be married to Allahditto, Esso, Muhammad and Allan Khan a brother of P. W. Ghulam Hussain had approached his father who is the nekmard of the locality for the return of Mst. Jannat and when he had evinced no interest in the matter, Esso and his friends had become infuriated and involved him, his three brothers and cousin in the case. The appellants Ahmed, Idal, Rasool Bux, Punhoon, Durro, Walidad, Amb and Vikoi adopted the same stand. Bhiro in his statement at the trial maintained that he and his brother Walidad had gone to a village in Sanghar on 19-10-1966 and returned to their village on 21-10-1966, when he had been arrested by the police. Dilawar and Yateem also attributed their involvement in the case because of enmity.
4. Apart from the oral testimony as furnished by Esso, Faqir Muhammad, H. C. Abdullah and others in regard to the death of Feroze, there is also the evidence of Dr. Rati Ahmed Khan, R. M. O. Liaquat Medical College Hospital, Hyderabad, who had held the autopsy, finding the following injuries on the person of the deceased: Incised wound 6" x 3" bone deep on the upper part of the left side of the chest at the level of clavical.
5. On the internal examination the part of the axillary artery was found cut, while the clavical was also cut at the junction of lateral 2/3 and medial 1/3. According to the Medical officer, the injury was ante-mortem and death had occurred as a result of shock and haemorrhage due to the injury which was sufficient in the ordinary course of nature to cause death.
6. The injuries on the persons of Nido, Esso, Faqir Muhammad and Ratto were as follows :--
(1) Niclu :
(1) Abrasion 1* x 1/16' on left side of the skull 2* above the left ear.
(2) Contused wound If" x 1/8' on the forehead left side above the left eye brow.
(3) Contused wound 1]" x 1/8" x 1/8" on the forehead left side just below and backwards to injury No. 2.
(4) Abrasion 1/3" x 1/3' on the back of proximal phalanx of the little finger of the right hand.
The injuries were simple and appeared to have been caused by a blunt weapon like a lathi.
(2) Esso :
(1) Bruise 3J" x 1" on the front of chest right side along with swelling 1" below the right nipple.
(2) Contusion f' x 1/8" x 3/8" on the lateral side of the distal phalanx of the middle finger of the left hand.
(3) Abrasion Y' x Y on the lateral side of the middle phalanx of the right ring finger of the left hand.
The injuries were simple and appeared to have been caused by a blunt weapon like lathi.
(3) Fakir Muhammad :
(1) Bruise 1" x J' on the back of the scapula 2" below the right shoulder of girdle.
(2) Bruise 2" x Y on the back of the right scapula just below the shoulder girdle.
(3) Abrasion x 1/8" on the back of the right scapula 1" below the right shoulder-joint.
(4) Bruise 1* x ' on the lateral side of the right upper arm 2" below the shoulder-joint.
(5) Incised wound H" x 1/8" x J-" on the forehead right side, 3" above right eye-brow.
The injuries were simple and all the injuries except No. 5 appear ed to have been caused by a blunt weapon such as lathi. The injury No. 5 was caused by a sharp cutting weapon such as a hatchet.
(4) Rato :
(1) Abrasion J" x 1/8" on the front of chest left side 2" above the left nipple.
(2) Bruise 4" x 1" on the front of right thigh 5" above the right knee-joint.
(3) Vertical contusion I" x 1/8* x 1/6" on the left cheek 7/8* below the lower eye-lid.
(4) Transverse contusion 1' x 1/6" x 3/8" on the left cheek 1/2" below the eye lid along with the swelling of cheek.
(5) Bruise 3/4* x 3/4" on the left parietal bone I above the left ear.
The injuries were simple in nature, except 3 and 4, which showed the fracture of the left maxilla and, therefore, grievous.
7. Esso, Faqir Muhammad, Nido, Mataro, H. C. Abdullah, P. C. Dilbar Khan, F. C. Muhammad Usman and Mst. Jannat, who are the witnesses of the incident, were examined at the trial. Ghulam Hussain had appeared as witness at the inquiry when the appellant Yateem was still an absconder and died later on. At the trial, his deposition was brought on the record under section 33 of the Evidence Act against all the appellants except Yateem. P. W. Faqir Muhammad is the brother of Feroze the deceased. They are sons of a cousin of P. W. Esso. Muhammad, the husband of Mst. Jannat and Nido are the sons of cousins of Esso. P. W. Mataro is a cousin of Muhammad. P. W. Esso deposed that Ratto was only a caste-fellow of theirs but Nido has clearly admitted that Ratto also was related to them and the relationship between them is also admitted by Mataro.
8. H. C. Abdullah has deposed that he had gone to Mataro's hotel, after getting spy information about the hiding of Allahditto and Mst. Jannat in the sugar-cane field of Muhammad Shall and had asked these witnesses and Ghulam Hussain to help him in securing them therefrom. It seems to be rather naive. It is rather strange that the only persons present in the hotel should have been those, interested in the recovery of Mst. Jannat. Be as it may, the party had proceeded to the sugar cane field from where Mst. Jannat and Allahditto are alleged to have been secured. Allahditto had a trunk in his hand containing all the alleged stolen property and so the police party had not to bother any more. Mst. Jannat also had been examined. She has admitted her recovery from the sugar-cane field. H. C. Abdullah was taking them to the bus stop and states to have requested the party to accompany them thereto, It is alleged that after they had covered some 4-5 Survey numbers, the appellants had emerged from a grove of trees and demanded the release of Mst. Jannat and Allahditto. On the refusal of the policemen who were in their uniforms, the appellants who were armed with hatchets and lathis had unleashed an attack causing injuries to Esso, Faqir Muhammad, Feroze, Nido and Ratto, Esso, Faqir Muhammad, Nido, Mst. Jannat, P. C. Dilbar Khan, H.
C. Abdullah and Katto, have remained reticent about any injuries being received by any of the assailants, but Gbulam Hussain had stated that some of the persons from their party had caused some injuries to the assailants who were about 13 in number. According to Mataro, the attack had been let loose by 20/25 persons. Rasool Bux, Durro, Mevo, Punhoon, Idal and Ahmed were arrested from the hospital and the injuries are not denied by them. They were examined by Dr. Rashid Ahmed, M. O. Liaquat Medical College Hospital, Hyderabad, who found the following injuries on their persons.
(1) Rasool Bux son of Usman.--Incised wound 2Y x Y skin deep on the left parietal region. The injury was simple and was caused by some sharp cutting weapon like hatchet.
(2) Durro son of Shaft.--Incised wound 3" x J" x bone deep on the anterior part of the mid-parietal region, with the fracture of the right parieto-from region of the vault. The nature of the injury which was front a sharp cutting weapon, was grievous.
(3) Mevo son of Mureed.--Lacerated wound about 2" x Y x scalp deep on the right parietal region.
The injury was simple, caused by some blunt weapon such as the back side of a hatchet or lathi.
(4) Punhoon son of Junto.--Incised wound of about 2'x x scalp deep on the left parietal region. The injury was simple and with some sharp cutting weapon like a hatchet.
(5) Idal son of Gul Muhammad.--Incised wound about x Y x scalp deep on the left temporal region.
The injury was caused by a sharp cutting weapon and simple in nature.
(6) Ahmed son of Soomar.--(1) Incised wound 11' x 1" x skin deep on the right parietal region.
(2) Oedema, tenderness of the right index linger. The injuries were simple. The injury No. 1 was caused by some sharp cutting weapon like a hatchet and injury No. 2 with some bluut weapon like a lathi-
9. P. W. Esso has categorically stated that none of the appellants was related to Mst. Jannat, Ghutto or Allahditto. The appellant Mevo has, however, stated that his father Murid us the nektnatd of the locality had been approached to exer cise his good offices in the restoration of Mst. Jannat, but had declined to intervene. It is also to be noted that only 9 persons had been named as accused in the report lodged by H. C. Abdullah. The main incident has not been challenged. These are injuries on the person of four of the witnesses and they are fully supported by three policemen.
The short point to deter mine in this appeal, as urged by Mr. Tufail Abdur Rehman, learned counsel for the appellants is as to who were the appel lants who participated in this attack, in a bid to rescue Allabditto and Mst. Jannat and were responsible for the injuries to Faqir Muhammad and others and the death of Feroze ?
10. It will be in the fitness of things to begin with H. C. Abdullah, the complainant in this case. He has stated at the trial, that it was the appellants who had given *hakals' and asked for the return of Allahditto and Mst. Jannat. They were all known to him since before the incident. He stated naming them, but then retreced the steps and stated that he knew only 9 by names. In the next breath he conceded that he did not know the other three and their names were disclosed to him by the witnesses present at the time of the incident. The only overt act he could mention was the hatchet blow dealt by Mevo to Feroze. He further admitted in the cross-examination that during his stay at Kario Ghanwar Police Station, none of the appellants had been involved in a case or appeared as a witness. The appellants whose names are not to be found in the F. I. R. arc Rasooi Bux, Punhoon and Walidad.
11. Esso denied the suggestion in cross-examination that he did not know any of the appellants till the day of the incident but that was his version at the Court of Inquiry, as duly brought on the record. It is also to be seen, that at the Court of Inquiry, he was asked to point out certain appellants, and he failed to do so. According to him, the names of the accused were given to the Police by the witnesses, who had received the injuries. Faqir Muhammad has stated that he had given the names of all the appellants at the Court of Inquiry, but the only names given there were of Walidad, Idal, Dilavvar, Rasoolo Punhoon, Yateem and Ahmed. He has, however, added that he had not furnished the names of the appellants to H. C. Abdullah. P. W. Nido also could name only Mevo, Rasoolo, Punhoon, Walidad, Amb, Ahmad, Yateem and Dilawar at the Court of Inquiry. It is an admitted position that no identifica tion test of any of the appellants was arranged in this case. He has also conceded that he had not supplied the names of the appellants to H. C. Abdullah Mst.
Jannat has not a word to say against any of the appellants specifically. She has confined herself to her recovery by the police from the sugar-cane field and the attack by 10/12 persons, Mataro mentions the presence of Mevo, Ahmad, Yateem, Bhiro. Walidad, Amb, Punhoon. Idal, Vikio aud Durro, but could not say whether the other two persons, were among the accused. His version at the Court of Inquiry, however, was that there were 20/25 persons in the attack, out of whom 10/12 were armed with hatchets. He had further admitted at the Court of Inquiry, that he had not seen any of the accused before the incident and was not in a position to identify them at all. Rato very candidly admitted in the examination-in-chief, that he did not know any of the accused, but they were the assailants. He, had, however, conceded at the Court of Inquiry, that he did not know them by name, before the incident. P. C.
Dilawar Khan also stated at the trial, that the appellants were the persons who had fought with them, but at the Court of Inquiry, he had stopped short by naming only Amb, Dilawar, Mevo and Yateem. He expressly added that he did not know the names of the others. P. C. Muhammad Usman, professed to be knowing all the appellants and he named them, but admitting having said at the Court of Inquiry that he knew only Mevo and Dilawar already. He made out that he had not mentioned about the rest, as no such question was asked from him. What was worse, he showed his inability to identify any of the accused except Mevo and Ahmad, because, according to him, "their appearances are changed on account of their remaining in jail." All that speaks for itself. The trial Court asked him to identify Idal, but he failed to do so. Ghulam Hussain, who died after he had appeared as a witness at the Court of Inquiry, against all the appellants, except Yateem and whose evidence has been brought on the record under section 33, Evidence Act, against these appellants only, put the number of the assailants at 30, including the said appellants, but even lie could not specify as to who had injured whom. They had all of a sudden appeared from behind. The question, however, remains that if he knew all the accused, why did he not come out with the same to H. C.
Abdullah, when the report was being lodged. We might as well add that the few overt acts attributed to a few of the appellants by one witness have been contradicted by the others. The only thing about which there is no conflict amongst the witnesses is the injury given by Mevo to Feroze.
12. It is, therefore, clearly made out, that the witnesses, who had received the injuries, neither knew the appellants properly, nor had given the names to H. C. Abdullah. It is also made out that the party had been suddenly attacked from behind, and the assailants had emerged out of a jungle.
According to P. Ws. Rato and Ghulam Shah, it was a thick jungle, According to P. W. Ghulam Hussain, the assailants were as many as 25-30. Even according to Mataro, they were 20 to 25 persons. It is no body's case, that any attempt was made by the rioters to free Mst. Jannat and Allahditto. The policemen were armed with rifles, and discretion was considered to be the better part of valour. Most probably, the police men were at some distance from the clashing factions. In that hurly-burly, which looking to the nature of injuries on the parties could not have lasted long, it is too much, therefore, to expect that all the assailants could properly be identified by them. Even the police men cannot be said to have known all the appellants. The tenor of their evidence makes it all too clear. If they or for the matter of that even Ghulam Hussain knew all the appellants, there is no explanation, as to why the names of at least three of them were omitted in the F. I. R. Two of the appellants, namely Rasool Bux and Punhoon, are among those, 4 who had injuries on their persons, while 5 of the appellants named in the F. I. R. are without any injury. There is no other corroboration forthcoming against those who escaped injury, in any conceivable form. The mention of the names of the accused, in the circumstances of the case, would not appear to be a safe guide to reach the conclusion that they had participa ted in the attack. These appear to have been given at random. Nor can we agree with Mr, Usman Ghani Rashid, learned counsel for the State, that the three appellants not mentioned in the F. I. R., would be entitled to the benefit of doubt, as out of them two have got injuries, and the explanation on their behalf is far from satisfactory.
13. After anxious consideration, we have reached the con clusion that the prosecution has established its case against Mevo, Durro, Ahmad, Idal also called Abdul, Rasool Bux and Punhoon, which the case against Dilawar, Yateem, Amb, Vikio, Bhiro and Walidad, would appear to be doubtful. We might as well add, that this was the stand taken up, by the learned, A. P. P. at the trial.
14. In the result, we would affirm the conviction and senten ces of Mevo, Durro, Ahmad, Idal, Rasool Bux and Punhoon and dismiss their appeal. The conviction and the sentence, in regard to the rest, namely Dilawar, Yateem, Amb, Vikio, Bhiro and Walidad is set aside and their appeal is allowed.
They are in custody and would be released forthwith, unless wanted in connec tion with some other case. .