. Muhammad Halebm, J.--Appellants Saindad, Ghulain Raza, Gulab and Sijoo alias Sijawal were tried along with Faqir Ghulam Rasool and Khandu for the attempted murders of Hadi Bux, Muhammad Alam, Dur Muhammad, Bangui, Abdullah alias Bidoo, Badal, Rashid and Shahbazdino and except for Faqir Ghulam Rasool, all others were convicted under section 148 and section 30? read with section 149, P. P. C. and sentenced to two years' rigorous imprisonment on the first count and transportation for life on the second. Khandu, however, died after his conviction. The other appellants have appealed against their convictions.
2. The present incident is the outcome of dispute over possession of land bearing survey No. 538 situated in deh Gharjagir in taluka Rohri. At 10 a.m. on 2nd July 1967 it was alleged that while Muhammad Alam along with Hadibux, Badal, Bangui, Rashid, Shahbazdino, Dur Muhammad and Bidoo were transplanting paddy seedlings the appellants along with Faqir Ghulam Rasool and deceased Khandu arrived there in a jeep and diverted the water from survey No. 538/6.38 and No. 236/2.36 which were in their possession, upon which Hadibux and Dur Muhammad approached them and proclaimed that these survey numbers belonged to them and as to why they had come to occupy and divert the water. Ghulam Rasool thereupon shouted "kill him" and himself fired two shots at Hadi Bux and the others also fired which resulted in gunshot injuries to Hadibux, Dur Muhammad, Badal, Rashid, Bangui, Shahbazdino, Bidoo and Muhammad Alam. It was also alleged that the incident was witnessed by Qadir Bux and Sukhio. As many as 8 to 10 shots were ascribed to the assailants. The report was lodged at Police Station, Kandhra by Muhammad Alam on the same day at 2-30 p.m. The counter-report of the same incident was lodged by one Ahmed who was not examined in the case on the same day at 16-30 hours at the same police station which was recorded by Miskeen, Head Constable. After recording the first report Zulfiqar Hyder S. H. O. sent Muhammad Alam for treatment to the hospital and himself repaired to the place of incident and from there recovered 10 crime empties (.12 bore). Bangui and Abdullah were lying injured while Hadibux had expired. He recorded the statements of Bangui and Abdullah and sent the dead body for post-mortem examination to the Medical Officer, Rohri. Thereafter he examined Nasrullah, Qadirbux, Faqir Muhammad, Ismail and Sukhio. He arrested appellant Gulab and Saindad on the night intervening between 2nd and 3rd July 1967. They had injuries on them and were sent to the Medical Officer, Rohri.. Khandu alias Khawandino was arrested on 3rd July 1967 and at his pointation a licensed gun and two cartridges were secured from his shop. From the house of Faqir Ghulam Rasool one double- barrel licensed gun and two rifles were secured in his absence. He then recorded the statement of Badal, Rashid, Shahbazdino and Dur Muhammad in the hospital and handed over the investigation to his successor, Nafis Husain.
3. The autopsy on the dead body of Hadibux was performed by Dr. Abdul Haleem and he noticed five gunshot injuries which appeared to have been caused by the discharge of a firearm and injuries Nos. 2 and 3 in his opinion were individually sufficient to cause death in the ordinary course of nature. He had not observed any charring around the margins of the wound. He had also examined the injured prosecution witnesses and found one abrasion and two lacerated wounds on Shahbazdino; 11 injuries on Badal which were in the nature of abrasions and lacerated wounds; 17 gunshot and two lacerated injuries on Dur Muhammad; I6 rounded gunshot injuries on Rashid; 8 gunshot and multiple gunshot wounds on Bangui and one lacerated wound on Bidoo. In his opinion, all these injuries were caused by discharge from a firearm. He had also examined appellant Saindad and noticed five lacerated, one contused and three abrasions and in his opinion they were caused by a blunt weapon; on Lalbux, a defence witness, he found one lacerated, one incise and three abrasions and in his opinion they were caused by sharp and blunt weapons.
According to Zulfiqir Hyder, appellant Gulab was also injured but there is nothing on record to sustain it and at the time of arguments the learned counsel for the appellants had emphasized that the Investigating Officer was biased and had not for that reason sent this appellant for examination and treatment even though admittedly he was injured. Appellants Ghulam Raza and Sijoo were arrested on 18th July 1967. From Ghulam Raza his licensed gun was seized which he had brought along with him while counting arrest. The ten crime empties and the guns of Ghulam Raza and Ghulam Rasool and deceased Khandu were sent for matching to the forensic laboratory and according to the testimony of Muhammad Sarwar, the gun of Ghulam Raza was opined to be not in working order and no test cartridges could be fired from it and thus no opinion was expressed. One crime empty matched with the gun produced by deceased Khandu, three with Ghulam Rasool's licensed gun.
4. Appellant Saindad alleged enmity and his false implication because of dispute over land. His version of the incident is as under:-- "I am hari of Haji Iqbal Shaikh on the other lands. I along with Gulab, Haji Shaikh and Ahmad Dharejo were engaged on the land. P. W. Lalu also came there. All of a sudden 20 to 30 peoples rushed on us. Gulab sustained injuries. 1 also got guLshot wounds and also a hatchet injury. P. W.
Dur Muhammad and Alim had given me hatchet and lathi injuries and Badal had fired a gunshot. P.
W. Lalu had given hatchet injury to Rashid. Haji Shaikh is hari and Kamdar of Haji Muhammad Iqbal Shaikh of Khairpur. Haji Shaikh had already filed a complaint against the P. Ws. in this case which is prior to the present case. 1 have been involved due to enmity. Faqir Ghulam Rasool, Ghulam Raza and Sijoo and Khanwandino, the present accused in this case were not present at wardat at all. My finger of left hand had been fractured by a gunshot."
He denied having diverted the water and alleged that the prosecution witnesses were *murids' of Pir Ahmad Shah and it was at his instance that they had deposed against him. Appellant Ghulam Raza denied his presence at the place of incident and alleged his false implication in the crime at the instance of Pir Ahmad Shah and has filed Exhs. 23-B, 23-C, 23-D, 23-E and 23-F, to establish enmity against the deceased and Pir Ahmad Shah. Appellant Gulab alleged that he was falsely implicated in the case. He has also given a version of the incident which is as under:-- 1 "I am hari of Haji Muhammad Iqbal Shaikh. At the time of incident 1 was along with other harts of Muhammad Iqbal namely Haji, Ahmed and Saindad, when about 20 to 30 people including the P.Ws, in this case came and attacked us with guns, hatchet and lathis. I was injured during the time of attack. I file a true copy of Telegram of Mr. Rab Dino to S. P. Sukkur for not sending me to the hospital for treatment and certificate."
Haji had filed a complaint before the First Class Magistrate, Rohri in 1967, wherein he had accused P. W. Dur Muhammad, Alim, Rashid, Shahbazdino, deceased Hadibux and others and a process was issued against them and he (Gulab) figures as a witness in that case. He also claimed that at the time of incident D. W. Lalbux had come at the place of incident and suffered injuries. Sijoo denied his presence at the place of incident and alleged his implication due to enmity. Andal, his brother- in-law, had complained to the Additional District Magistrate, Sukkur and accused Pir Ahmad Shah and others for kidnapping his t*o nieces and copies of the complaint were sent to the Commissioner and the District Magistrate, Sukkur, but Ahmad Shah had continued to confine them wrongfully. They examined Haji Yar Muhammad, Haji Rabdino, Ahmad Ali, Dr. Abdul Khaliq Abro and Lalbux in defence. #
5. The trial Court acquitted Faqir Ghulam Rasool upon the promise that the part assigned to him was doubtful and also for the reason that his alibi was established by D. W. Dr. Abdul Khaliq Abro and Ahmed Ali, Mukhtiarkar and Resident Magistrate, Kandiaro. He also held that there was enmity between the parties and it is not uncommon to implicate all the * known enemies and particularly the leader of the parties. Having acquitted Faqir Ghulam Rasool who was attributed the part of firing at deceased Hadibux the trial Court reached the conclusion that the appellants could not be connected with his murder and thus proceeded to convict them under section 307 read with section 149, P. P. C. as it found the evidence of the witnesses reliable to sustain conviction.
6. There is no controversy with regard to the possession of any other lana except surveys Nos. 538 and 236 mentioned in the F.
1. R. The case of the prosecution witnesses was that they were in possession of these survey numbers. The incident is said to have occurred on survey No. 538, when they were transplanting the paddy seedlings. Acquitted accused Faqir Ghulam Rasool, the appellants and deceased Khandu arrived there in a jeep and upon Ghulam Rasool's direction the others diverted the water from the watercourse and it was thereafter that Ghulam Rasool and the others fired at the deceased and the prosecution witnesses. The basis of their claim for possession is, however, obscure. D.W. Haji Yar Muhammad has stated that these two survey numbers belonged to Haji Muhammad Iqbal his brother- in-law and they were in his possession. Previously they belonged to Mst. Irshad Begum as they Were transferred to her in satisfaction of her claim and subsequently it was purchased from her by Haji Muhammad Iqbal. He had produced documents, Exhs. 87 to 89 in support of this claim. He had also filed a power of attorney (Exh. 90) executed in favour of Muhammad Murad by the legal guardian of Mst. Irshad Begum for managing these and other survey numbers as far back as 8th February 1961. Muhammad Murad had filed a complaint against Dur Muhammad and one Bhakan Shah on 28th April 1961 for illegally harvesting the crop and keeping the produce with them without giving any 'batai' and process was issued on lst June 1961 against them. Subsequently Muhammad Alam got these survey numbers allotted in his name vide order of Mukhtiarkar dated 27th May 1966, which allotment was, however, cancelled on 30th September 1966. The earlier allotment order was only in respect of As. 8 share in these two survey numbers and an Hjazatnama' had been issued to Muhammad Alam to occupy it as hari for the year 1966-67. The documents, Exhs. 94 to 96, were filed to show the payment of price of this land on behalf of Mst. Irshad Begum, presumably because it-was surrendered and repurchased. Receipts Exhs. 97 to I0O for the year 1965-66 were also filed to show payment of land revenue. One Jamaluddin Khan is shown as the person who had paid the money.
Lastly, a complaint (Exh. 101} was filed accusing some of the prosecution witnesses in the instant case for having forcibly taken away the produce of these survey numbers and they have been committed to stand their trial, lt is, therefore, clear that the land belonged to Haji Muhammad Iqbal.
P. W. Dur Muhammad alone appears to have cultivated Rabi crop of 1960-61. P. W. Muhammad Alam was issued *ijazatnama' for the occupancy of these survey numbers for the year 1966-67, which was cancelled on 30th September 1966. P. W. Muhammad Alam in his cross-examination stated that he purchased these survey numbers in 1944 and ever since then they were in his possession and no one during this period had come to take possession of this land "as cultivators".
He was then confronted with the F. I. R. wherein he had stated that he was in possession of the land since two years prior to the incident, which he denied. No document was produced to establish the sale in his favour and in view of his claim about the recent possession of the land, it is not possible to accept his continuous possession since 1944. One Jamaluddin had paid land revenue for the year 1965-6t. One such receipt (Exh. I0O) is dated 15th July 1967. Who this person is, has also not been established. However, neither the prosecution nor the defence has laid claim through him. It is also apparent that Muhammad Alam and some of the prosecution witnesses had forcibly taken away the produce of these survey numbers in October 1966, which, according to the complaint (Exh. 101) were in possession of one Haji and appellant Gulab. The prosecution has not led any documentary evidence to establish the de facto possession of Muhammad Alam during the year 1966-67. On the other hand, the appellants have also not established their de facto possession. No question was put to D. W. Yar Muhammad to establish that they were engaged as haris of the land.
It was only in the complaint. (Exb. 101) that Gulab was described as the hari of the land belonging to the complainant and that too in 1966, which fact was not even established on record. In the cross- examination of Muhammad Alam it was suggested whether he was aware that one of the appellants had "any land" of "Shaikh Iqbal", which was denied. In the circumstances there is no clear indication of their status as haris of these survey numbers or their possession of them. With this background we are inclined to view that each of the two parties had a contending claim over the possession of these survey numbers and the evidence of the occurrence has to be thus appraised.
7. The ocular version of Muhammad Alam and the other prosecution witnesses is that the appellants, Ghulain Rasool and deceased Khaiidu had come in a jeep to occupy the land and in furtherance of their claim they had diverted the watercourse. The watercourse, according to the mashir, Ismail, was breached at two places. It is also in evidence that there was no plantation in surveys Nos. 538 and 236. P. W. Abdullah was not consistent on this stand. In one breath he stated that the appellants had breached the watercourse and in another he resiled from it and said that they had blocked the flow of water.
Ismail has also not spoken of any tranaplantation of paddy seedlings going on in the survey numbers. Zulfiqar Hyder S. H. O. has also not stated about the transplantation of paddy seedlings.
Accordingly, there appears to be no foundation for reaching the conclusion that the prosecution witnesses were so engaged when they were attacked. There is also no indication of any wheel marks on survey No, 538 which was a likely feature if the appellants, Ghulam Rasool and deceased Khandu had come in a jeep as this survey number extended up to the read. Appellant Saindad has suffered injuries, which according to the doctor, were caused by a blunt weapon. D. W. Lalbux has testified that he saw appellants Gulab, Saindad, Ahmad and Haji Shaikh watering the land while he was proceeding to Khairpur from his village when he went there to meet them and within a few minutes he saw some 20 to 25 persons amongst whom he recognised P. Ws. Badal, Muhammad Alam, Dur Muhammad, Shahbazdino and others coming on the land and Muhammad Alam telling appellant Saindad not to water the land as it belonged to him while Saindad replying that it was the land of Shaikhs and he and the others were his harts; whereupon P. W. Badal fired a shot from his gun and the pellets struck Saindad on his head. He was also given lathi blows. P. W. Rashid inflicted hatchet blow on him (Lalbux) while appellant Gulab sustained injuries on his arm. Lalbux was cited as a prosecution witness but was given up and examined by the defence. Appellants Saindad and Gulab have admitted their presence on the land along with Ahmad and Haji Shaikh.
Their version is substantially the same as that of Lalbux. There is, however, no gunshot injury on Saindad. Gulab claimed that he was injured but was not sent for examination and treatment.
Lalbux had one incise injury and the others by a blunt weapon. The injuries on Saindad and Lalbux cannot be explained upon the hypothesis of the prosecution case, for the prosecution witnesses had not alleged fight and had not explained the injuries on Saindad and Lalbux. All of them stated that they did not know as to how Saindad and Lalbux received injuries. This was not without a purpose for there was a counter-case against them and with a view to avoid their liability in the crime they had taken this stand. Nevertheless we feel that the incident has not occurred in the manner suggested by them. The prosecution witnesses have failed to establish that they were on the land for transplanting paddy seedlings and in the circumstances their presence there at that time on that premise is not believable. It appears to be more consistent with the probability that Saindad and Lalbux were attacked first with lathis and a sharp-cutting weapon, for if the appellants had come armed with guns and fired at the prosecution witnesses, it was not possible for anyone of them to cause injuries on Saindad and Lalbux. The presence of Lalbux cannot also be discounted as he had suffered injuries with both types of weapon. However, he has suppressed one essential fact and that is, as to how the prosecution witnesses suffered gunshot injuries. It appears to us that the firing of guns at the prosecution witnesses was at a later stage. No purpose for breaching the watercourse appears except to assert possession and in that context it was done to water the survey numbers on which there was no plantation with the object of cultivating it. Which party came first to do it, is also not clear but the probability is that appellants Saindad and Gulab had come first as their version appears more plausible in the context of the injuries received by Saindad and Lalbux, particularly when the prosecution witnesses did not suffer injury from any other weapon except gunshots. On this view of the matter, the prosecution has not been able to establish beyond reasonable doubt that the appellants had formed into an unlawful assembly with the object of occupying the land and thus committed rioting with deadly weapons. The only legitimate conclusion to be drawn is that there was a mutual fight with a view to enforce their supposed right after they had come armed in expectation of a conflict. In the circumstances no party can be said to be acting in self-defence of person or property and the common object having failed, each person would be responsible for his individual act upon the principle laid down in the case of Syed Ali v. Nibaran Mullah (1).
8. Deceased Khandu is only established to have used the gun as one of the crime empties matched with it. He is dead and it was he who must have caused gunshot injuries to the prosecution witnesses. No gun was recovered at the instance of appellant Saindad and having regard to the injuries suffered by him it was unlikely that he could have been armed with a gun. No other type of injury was found on any prosecution witness. In the circumstances it is not established that he had caused any injury with any weapon. His mere presence on the survey number will not make him vicariously liable and accordingly he is entitled to the benefit of doubt.
Appellant Ghulam Raza's gun was not found in working order and accordingly it was not possible to match it with any crime empty. There is also nothing to show that its non-functioning was manipulated subsequent to the incident. Nafis Hussain S. H. O. even when it was returned got it repaired and sent it back for re-matching but there is nothing to show that it matched with any one of the crime empties. It is, therefore, not possible to accept the part assigned to him and he is also entitled to the benefit of doubt. Appellant Gulab was also attributed the role of firing the gun but no gun was recovered at his instance. He has pleaded that he was injured but not sent for medical examination. Even though he was not sent for medical examination yet the fact that he was injured is even confirmed by Zulfiqar Hyder S. H. O. and in this context we fail to see how he could sustain injury if he was armed with a gun. The role thus assigned to him appears to us to be doubtful and though he has admitted to be present yet that fact alone will not make him vicariously [20] liable on the view that we have taken. He is also entitled to the benefit of doubt. Appellant Sijoo has not produced any gun and there is, therefore, nothing to connect him with the part assigned by the prosecution witnesses. He is also entitled to the benefit of doubt. The licensed gun of Ghulain Rasool matched with three crime empties but be has been acquitted. The prosecution has thus established the firing of two guns, one with which deceased Khandu was armed and the other by someone who was armed with Ghulam Rasool's gun. _ Who that person was is also not established on record. Additionally, in the context of the background of enmity which was accepted by the trial Court it is also not possible to accept the ocular testimony against the appellants without any corroborative evidence, particularly when it is beset with doubts.
9. In the result, the prosecution has failed to establish beyond reasonable doubt the parts assigned to appellants Saindad, Ghulam Raza, Gulab and Sijoo. We would, therefore, give to them the benefit of doubt and acquit them. The appeal is accepted and they are ordered to be set at liberty forthwith unless required in some other case. .