This appeal is directed against the judgment of the learned Sessions Judge, Thatta, dated 26-9- 1981 by which he convicted the appellant Natho under section 326, P.P.C. For causing hatchet injuries to Muhammad Hassan and Umar and sentenced him to suffer R.I. For three years and also to pay a fine of Rs.1,000 or in default to further suffer R.I. For six months. Appellant Gul Hassan was convicted under section 323, P.P.C. And was sentenced to R.I. For three months.
2. The facts in brief are that P.W. Khaman lodged the First Information Report on 18-9-1975 at Police Post Gharo which was subsequently incorporated under sections 154 and 157, Cr.P.C.
According to F.I.R. The father of the complainant owned 100 acres of land in Deh Khato wherein Mango Garden, vegetables and grass is standing. His father had licensed gun and he used to take the gun of his father for the safeguard of their lives. Last night at Past Esha prayers time his brother Hamzo took the licensed gun and went to look after the lands alongwith Muhammad Hassan and Umar. He heard cries upon which his father Ali Muhammad, Suleman, Hussain Soomar, Yaqoob and he himself went running and found that about 30/40 cattle were damaging the grass of their land, whom Muhammad Hassan, Hamzo and Umer were taking to the cattle pond when from a distance namely Natho, Jaffar, Gul Hassan, Ghulam, Ismail, Hashim and Bhoro armed with hatchets and Lathis reached there. They abused them and asked them not to take cattle to the cattle pond.
Thereafter the Patnis instigated his fellowmen, upon which Gul Hassan gave Lathi blows to Hamzo on arms and back. Jaffar gave hatchet blows to Muhammad Hassan on head. He also gave blows to Umer. During fight his brother Hamzo opened a gunfire in self-defence which hit Jaffar who fell down. Later Rajib son of Qasim and other villagers came to the site. After usual investigation the case was challaned against the appellants.
It may also be stated that a counter-case was also lodged by the accused persons against the complainant party regarding the death of Jaffar.
3. Dr. Ghulam Muhammad examined the injured and found the following injuries on their person.
HAMZO SON OF ALI MUHAMMAD (1)Oval-shaped abrasion 1/4" x 1/3" just above the back of left elbow joint with swelling around the elbow joint.
(2)Lacerated wound 1/2" x 1/4" x skin deep just above the lateral aspect of left wrist joint.
GUL HASSAN SON OF NATHO: Three parallel abrasions of the diamensions of 1/4" x 1/12" each on the dorsom of left hand.
4. The appellants in their statements denied the prosecution allegations. Accused Gul Hassan in his statement pleaded as under:- "My two buffaloes have incidentally gone in the lands of complainant party and so I had gone to take them. Khaman, Umar, Hassan, Ahmed and Hamzo met me there and they enquired from me why the buffaloes had gone to their lands and I replied that it was per chance. At this Khaman gave me hatchet blow on my hand and then he also instigated other persons. I raised cries which attracted Jaffar, Khamiso and Ismail Jaffar enquired from them about instigation. He also asked them to leave me and if they wanted to take away cattle, they may do so. At this Khaman abused and asked Hamzo to fire at, as a result of which Hamzo fired at Jaffar, and who died. Ismail and Khamiso also make them not to kill the person, and so the complainant party ran away. I lodged the report. I have been falsely implicated in this case due to my case. The co-accused in this case viz. Natho, Ghulam, Ismail and also Hashim were not even present at the time of occurrence."
5. The prosecution examined Khaman, Hamzo, Umer and Muhammad Hassan as the eye- witnesses. There is no other piece of evidence except the ocular testimony on which the reliance has been placed by the trial Judge.
The learned trial Judge has placed reliance on the ocular testimony of these witnesses who are related inter se. The place of incident is not disputed, i.e. In the land of the complainant. According to the complainant the accused were the aggressors and they prevented the complainant party in taking away the cattle to the cattle pond. On the other hand the accused had stated -that they had come to take the cattle who had gone there as per chance. The report of the incident was lodged. Thus there are two versions of the incident, one stated by the complainant party and the other by the accused party. It is on record that one of the persons from the accused party namely Jaffar died due to the gunshot made by Hamzo. The case put up by the defence was not considered by the trial Judge and if there are two versions of the same incident and if the plea put forward by the defence is possible in the circumstances of the case then the same must not be ignored. Four accused were tried on the same allegations. The evidence against all the accused is the same but two accused have been acquitted and on the same evidence the present appellants have been convicted. The facts have not been properly appreciated by the learned trial Judge. The injuries alleged to have been caused to Umar and Muhammad Hassan were attributed to Natho and Jaffar and improvements have been made in this respect. According to Khaman, Natho and Jaffar were armed with hatchets and Gul Hassan, Ghulam, Ismail, Hashim and Bhoro were armed with Lathis Natho and Jaffar gave hatchet blows to Muhammad Hassan and Gul Hassan gave Lathi blows to Hamzo.
P.W. Umar has stated that Natho, Gul Hassan, Jaffar, Ismail Hashim, Bhoro were armed with hatchets and Lathis Jaffar gave hatchet blow to Hassan and Natho gave hatchet blow to Umer and Ismail gave hatchet blow to Hamzo. In the First Information Report the injury to Hamzo was attributed to Ismail. It is also on record that Gul Hassan appellant had also received injuries but there is no mention of his injuries either in the First Information Report or in the evidence of the witnesses. No part has been attributed to accused Natho in the First Information Report and the statements of the witnesses recorded under section 161, Cr.P.C. The witnesses made improvements and attributed specific role to accused Natho in their depositions at the trial. The learned trial Judge did not consider the inherent defect in the evidence of these interested witnesses. They have implicated the accused Natho for causing injuries but in their previous statements no role was attributed to him. The learned trial Judge has not held the appellants constructively liable for the commission of the offence and they have been convicted for their individual acts. In the F.I.R. Seven accused have been named but four were tried by the learned Sessions Judge. P.W. Umar did not state in his 161 statement that Ismail the acquitted accused caused injuries to Hamzo. He has specifically not named Natho for giving him hatchet blow. He also did not state that Jaffar grappled with Hamzo and in that struggle the fire went of and hit Jaffar. He stated in the First Information Report that Hamzo directly fired at the chest as a result of which Jaffar died.
P.W. Hamzo did not state in his 161 statement that Jaffar grappled with him and caught hold of the barrel of his gun and Gul Hassan gave him Lathi blow at that time and at that time his gun went of.
He also did not state in the same statement that he did not know who was if any was hit by the fire.
He stated that he fired which hit Jaffar and as a result of which he died.
P.W. Muhammad Hassan did not state in his 161 statement that Natho gave a hatchet blow to Umar.
The improvements are not minor which can be excluded but as stated above nothing had been stated against Natho in their previous statements and he had to be acquitted. The part ascribed by each of the witnesses is not in conformity with their subsequent statements. They have made improvements in their depositions about the injuries caused to the deceased. On this evidence two accused have been acquitted by the trial Judge and there is nothing against the accused Natho and, therefore, he had to be acquitted.
As regards the fourth accused who is appellant in this appeal the infirmities pointed out earlier would also absolve him of the penal action. The evidence in this case has to be read as a whole and as it does not inspire confidence then all the accused have to be acquitted.
6. In the result the appeal is accepted. The convictions and sentences recorded against the appellants are set aside. They are on bail. Their bail bonds are stand discharged.
The appeal was accepted by the short order. The above are the reasons for the same.