Abdul Karim, Haji Hamzo, Ismail and Ali Nawaz were charged and tried under section 302/323/34, P.
P. C. For double murder of Haji Muhammad and Hussain by Additional Sessions Judge, Dadu (Mr. S. Zia Hussain Shah Hussani) who by his judgment dated 24-7-1968, acquitted the accused persons.
This revision application under section 435/439, Cr. P. C. Filed by Dur Muhammad is directed against the above acquittal order.
2. The facts briefly are that the present applicant Dur Muhammad filed an F. I. R. On 26-4-1967 at 6- 30 a.m. At Police Station Dadu to the effect that he and accused Abdul Karim, Ismail, Ali Nawaz, Gahi, father of Haji Hamzo and Haji Muhammad and others have got each two Jarebs share in q piece of land in Deh Malkani village Baradi. The land being cultivated by a persian well and all the four accused are his cousins on 25-4-1967, at about sunset time, he, his cousin Haji Muhammad, Allahdino Brohi, Hussain and Mst. Basran wife of Hashim were sitting at the well under a tree when accused Ali Nawaz arrived at the well for fetching water, He was told by Haji Muhammad that he had forbidden him not to take water from the well because Abdul Karim had stolen his bullocks and they were thieves and his enemies. Upon this, Ail Nawaz wont way after taking water and threatened them that he will see them. After a while all the four accused arrived running and abusing, armed with lathis and hatchets. The complainant prevented them not to abuse as they were relatives but the accused persons said that they will see them today and immediately Haji Hamzo and Ali Nawaz gave hatchet blows on the head of Haji Muhammad who fell down. Accused Abdul Karim and Ismail inflicted sharp-sided hatchet and blunt sided hatchet blows to Allahdino and Hussain. The accused have also received injuries during the quarrel. No other person of the village arrived on cries due to fear when the quarrel was over, he saw that Haji Muhammad had died due to blows and was bleeding from head and Hussain had become unconscious due to injuries. While the complainant party were still on the scene of offence, Jamadar Muhammad Umar Khan arrived to investigate a complaint filed by accused Abdul Karim a little earlier, and seeing the situation he instructed the complainant to go and file report at the Police Station.
3. It tray be noted here that accused Abdul Karim soon after the incident filed an F.I.R. 45/67 at Police Station Dadu on 25-4-1967 at 21-00 hours, registered under section 324/114/147/ 148, P. P. C.
Stating that at sunset time he was at the well stated above, his brother Ali Nawaz, Haji Hamzo brought some cattle and camel for watering when Haji Muhammad, Hussain, Shero, Haji Allahdino, Mutallib who have cultivated onion crop watered by the well, among these persons Haji Muhammad was armed with a hatchet. On seeing them, Haji Muhammad who was armed with a hatchet gave Hakels told them not to bring the cattle for watering, upon this he and his brother told Haji Muhammad that the well was common for all the villagers and they will water the cattle. Upon this Haji Muhammad gave blows to the cattle and made them run, on cries came Hussain, Allahdino who were armed with hatchets, Mutalib and Shero who were armed with lathis. Haji Muhammad abused them and they abused him in return and soon a quarrel took place on the instigation of Shero. Haji Muhammad gave him a sharp-sided hatehet blow on his head. He also received a hatchet blow on the arm. Allahdino also received a sharp-sided hatchet blow on the wrist of his left arm. Shero and Mutalib inflicted them laths blows. During the quarrel his brother Ali Nawaz and Haji Hamzo received blows. They were armed with sticks with which they inflicted blows on the other side. On commotion Vadero Dilsherkhan, Janan and other people of the village arrived there, they intervened and averted the quarrel and they narrated the above facts to Vadero Dilsherkhan and Janan who advised him to lodge report with the police, he then filed a complaint for taking action. It may be noted here that the complaint filed by Abdul Karim was disposed of as B Class by the S. H. O., he was actually sent for trial for offence under section 211, P. P. C. Thereafter, Abdul Karim's brother tiled a direct complaint on the basis of report by Abdul Karim. Thereafter, both the cases were tried by the Sessions Judge.
4. The prosecution case mainly is based on the statements of eye-witness P.W., Complainant Dur Muhammad, P.W. Mst. Basaran, Haji Allahdino P. W. Kadir Bux and the corrobo--ratory evidence of recovery of hatchets from the accused Haji Hamzo, Ali Nawaz and two dandas from accused Ismail and statements of P. W. Jamadar Muhammad Umar Khan who initially investigated the case at the spot and the medical evidence of Dr. Alamkumar and the post-mortem reports of deceased Haji Muhammad and Hussain and injuries to the other participants in the offence of both sides and chemical analyser's report as well as statement of A.S.I. P., arrest of the accused, necessary Mashirnamas and extra judicial confessions of accused Haji Hamzo made to P. W. 6 Jan Muhammad.
5. P. W. Complainant Dur Muhammad stated that he knew all the four accused who were brothers inter se and his cousins. On the day of incident at Bipahri time he along with deceased Haji Mohammad and Hussain, Allahdino and Mst. Basaran was sitting near the well when accused Ali Nawaz came to take water. Haji Muhammad however, told him that his brothel has stolen bullocks and he should not come to the well but Ali Nawaz took water and went home, while going he threatened them that he will see them. After 15 minutes all the four accused came armed with hatchets abusing Haji Muhammad, on arrival started giving blows to Haji Muhammad and Hussain.
They also caused injuries to Allahdino complainant and Mst. Basaran due to fear ran at some distance. Ali Nawaz and Haji Hamzo caused injuries to Haji Muhammad and accused Abdul Karim and Ismail caused injuries to Hussain and Allahdino. Cries were raised upon which Vaadir Bux, Jamal, Kamal, Ibrahim and Ramzan came from the village. They saw the accused causing injuries and thereafter the accused returned to the village. Haji Muhammad died on the spot due to the injuries, Hussain and Allahdino became unconscious due to bleeding. After a short while the said accused persons brought three bullocks and one camel to the well and threatened the complainant party to go away. They tied their blocks and cannel at the vardat and accused Abdul Karim left fear filing report. The other accused remained at the vardat. The complainant and other witnesses sat at short distance from the varda. Accused Abdul Karim brought Head Constable Mohammad Umar Khan and the complainant informed him about the incident at the vardat who directed him to file report at Dada Police Station upon which he went on foot travelling a distance of six miles and filed the report i.e. The F. I. R. Referred above. Vadu Police accompanied him to the vardat and Hussain was removed by them to the Hospital where he died the following day, Aallahdino also was sent by the Police far treatment to the Hospital. Mashirnama of vardat were prepared by P.W. Muhammad Umar. In cross-examination this witness gave the relationship between the parties by saying that Slier Mohammed is his father, Mutalib is his father-in-law and deceased Haji Muhammad anti Hussain are his cousins, Mst. Basaran is sister of Hussain and Haji Muhammad who are brothers inter se: Haji Allahdino is material uncle of the two deceased and P.W. Ramzan daughter is wife of Mitho brother of the deceased and his wife it niece of Mitho P. W.
Ramzan daughter is wife of Mitho brother of deceased. He went on to state that the accusedwere co-owners with them in the survey number where the well is situated but he denied that the accused used to cultivate their lands from the water of this well. The accused did not use water for home from this well. Their houses are situated 200 paces from the well. They used water for their homes from the well of Dil Sher in Beradi village which is 50-60 paces from the houses of the accused. The people of village took water from Dil Sher's well. There is a lake behind the houses of the accused and the cattle of the accused and other villagers used to drink water from this and only when the lake was dry the wells stated above were used. He denied that the accused used to fetch water from their well and it was the first occasion when accused Ali Nawaz came to take water from the well. Baradi village consists of 10-12 houses and is at a distance of 50-60 paces from the well where the fight took place. P. W. Mst. Basaran lived in Jakhra village with her husband.
This village is half a mile from their village. Haji Allahdino had no concern with the survey number.
Haji Muhammad deceased was working at the well and they were sitting in shadow of a tree at the time of incident. He came to the well half an hour before the incident while Mst. Basaran and Haji Allahdino were already there and Haji Mohammad was busy in running the well. Accused and Haji Muhammad were not on good terms with each other due to the theft of the bullocks. He did not intervene to rescue the injured because the accused were armed with hatchets. He denies that he was not present at the vardat. P. W. Muhammad Umar a Police Officer had given him a letter to be taken to the Police Station Dadu which he delivered there while filing the report. On Court question he stated that his father Sher Mohammad owns share in survey number only where the well is situated. His father cultivates the share of the land. This survey number has been privately partitioned and the accused used to cultivate their own share. They have made boring at the well and the accused had not contributed any share to it and as such they do not get any share of the water from the well. Persian wheel is fixed on the well to take water from it whereas the boring fills the well with water. I may however observe that this witness in his statement did make a departure in some respects from the statement contained in the F. I. R. Parti--cularly he states that he has stated in the F. I. R. That P. Ws. Kadir Bux, Jamal, Kamal, Ibrahim and Ramzan had come at the vardat on their cries and that he stated in the F.I.R. That the accused brought three cattle and camel and tied them at the vardat, but, these statements are not embodied in the F.I.R. In any case I am of the opinion that this slight departure does not affect the veracity of the statement of this witness with regard to the incident and the way it occurred.
6. Next prosecution witness is P. W. 8 Haji Allahdino. His presence at the vardat and participation cannot be denied because he has suffered injuries and there is medical: certificate to that effect.
He materially in his statement supports the statement of P. W. Dur Muhammad contained in the F. I.
R. And is very clear in his statement that all the accused were armed with hatchets. Haji Hamzo and Ali Nawaz caused injuries to Haji Muhammad and Abdul Karim and Ismail gave injuries to Hussain and also Ismail and Abdul Karim gave him injuries with back side of their hatchets and at that time he was standing near deceased Haji Muhammad and Hussain. He fell down due to blows and became unconscious. He states that at the time of incident P. W. Dur Muhammad and Mst. Basaran were standing at the side of the well. As he became soon unconscious he cannot remember what happened thereafter. Only he regained consciousness in hospital at Dadu. He was treated as indoor patient for 10 days. Haji Muhammad died at the spot. He further states that deceased Hussain died in the hospital. The police recorded his statement 5 days after the incident in the hospital. He has been made an accused in the counter-complaint filed by Abdul Karim. He came at Bipahri time from his house when Dur Muhammad and Mst. Basaran were already there. Mst.
Basaran came for fetching water and was filling her jar when the accused came and Dur Muhammad came to take some onion. He denied in cross-examination that his injuries were due to his intervening in the fight and is very sure that accused intentionally caused him injuries and none of his party caused any injury to the accused. He denies however, the presence of Mutalib as well as bringing of three bullocks and a camel by Abdul Karim at the well for watering. He also denied that deceased Haji Muhammad inflicted any hatchet injuries to the bullocks and also denied that he, Shero, Haji Muhammad and Mutalib prevented Abdul Karim from taking water. He denied in cross-examination that the blow aimed by Haji Muhammad at Abdul Karim fell on his camel and also the suggestion that it was Hussain's blow which hit Haji Muhammad and Shero and caused injuries to Hussain. He denied the false implication of the accused.
7. Next witness is P. W. 9 Qadir Bux. He knows the parries. His house is at a close distance from the village of the parties and on the day of incident he came to Beradi village for making some purchases at Bipahri time. While he was going to the shop of Dur Muhammad passing from the well he saw four accused going armed with hatchets. The accused caused injuries to deceased Haji Muhammad and Hussain. Haji Muhammad died at the spot. He saw the incident standing by the road side and also saw Haji Allahdino being injured. He did not come to the spot and went to his house while the accused were still at the scene of offence. P. Ws. Ramzan, Dur Muhammad, Jamal, Kamal were also standing at a distance. Sher Muhammad was also at the scene. He denied in cross-examination that he has not seen the incident.
8. There is statement, of P. W. 6 Jan Muhammad. He knows the parties. On the day of incident when he was returning from fields in the evening Haji Humzo met him on the way near Baradi village and told him that a quarrel has taken place between Haji Muhammad, Hussain, Haji Allahdino and his brother Abdul Karim, He told him that Haji Muhammad had expired. He did not tell him anything about his presence or absence at the place of occurrence and he did not see any injury on his person at that time. He asked him to give evidence on their behalf in the name of God and he replied to him that it was not his concern. The statement of this witness made in the lower Court was brought on the r(word. In cross-examination he stated that his statement before the trial Court is correct as against the lower Court statement where it was given under the Police pressure. This witness was produced by the prosecution in support of extra-judicial confession made by Haji Hamzo and is relevant only to that extent.
9. P. W. 8 is Mst. Basaran an alleged eye-witness. She states that the accused are her cousins.
Deceased Haji Muhammad and Hussain are her brothers. On the day of incident at Bipahri time he, Haji Allahdino, and Haji Muhammad were sitting near the well at onion cultivation in the survey number while she came to remove some refuse from the onion cultivation, when Ali Nawaz came to fetch water from the well. Haji Muhammad prohibited him to do so, because his brother Abdul Karim had stolen his bullocks. On this Ali Nawaz told him that he would see them. He took water, went away and came after 10-15 minutes along with three other accused with hatchets, abusing Haji Mohammad and others and caused injuries with their hatchets to Hajf, Muhammad and Hussain and Haji Allahdino. She and Dur Muhammad due to fear stood at some distance. Ali Nawaz and Haji Hamzo caused injuries to Haji Muhammad with sharp side: as well as back side of their hatchets. Accused Ismail and Abdul Karim caused injuries to Hussain deceased and Allahdino.
They raised cries which attracted Jamal, Ramzan, Kadir Bux and others. The accused ran away after causing injuries. The theft of bullocks referred above, took place she stated four years back and she did not know if they were returned or if any report was lodged. Her brother deceased Haji Muhammad got boring done to the well and the accused had not contributed any share to it for these reasons they did not use to take water from the well The accused had their share in the survey number to the extent of 2 or 2-- Jaribs. This statement she made in the cross-examination.
The accused did not allow them to go near the vardat and all along she was raising cries.
10. The next important witness for the present purpose is P. W. 13 Muhammad Umar, Head Constable, Dadu Police Station. He stated that at 9 p. m. Accused Abdul Karim came and filed an F.
I. R. Referred above. As Abdul Karim had three injuries, he sent him to hospital for examination and treatment and then went to vardat where he found Dur Muhammad standing at the dead body of Haji Muhammad, injured Hussain and Haji Allahdino. He asked Dur Muhammad to go and file the report and he prepared the mashirnamas of vardat and of injuries. There was blood at the vardat.
He secured and sealed the same. There was onion cultivation in the survey number and there was a fence round about the well. He prepared inquest report of the dead body and the other mashirnamas. The dead body was sent to Civil Hospital and also sent the other two injured persons Hussain and Allahdino to hospital. Hussain was unconscious and Haji Allahdino was able to talk but he said that his head was reeling. P. W. Dar Muhammad complainant brought a copy of the F. I. R.
At about 8 a. m. He then searched for Abdul Karim but could not be traced out. At 3 p. m. A. S. I. P.
Khair Muhammad arrival at the vardat and he handed over the papers Whim. In cress- examination he states that three bullocks and one camel were standing at the vardat. The animals had some injuries and he prepared the mashirnamas for the same. All the animals in all had six injuries. He had sent the three bullocks and the camel to the Veterinary Surgeon for examination, treat--ment and certificate. Till A. S. I. P. Khair Muhammad arrived, he vas at the vardot. At 4 p. m.
The accused themselves came to their hose who were arrested by A. S. I. P. Khair Muhammad. With regard to F. I. R of Abdul Karim he states that it was disposed of in B Cam by S. H. O. Wall Muhammad and Abdul Karim was challaned for offence under won 211, P.P.C. And he has no knowledge whether it was withdrawn by the prosecution later on.
11. Then we have the statement of Dr. Alam Kumar P W.
7. He performed the post-mortem examination of dead body of Haji Muhammad and found as many as 9 injuries, and was of the opinion that the injuries were caused by an axe and injuries Nos. 1, 2, 4 and 5 appeared to have been caused by sharp side and rest with back side of an axe. Death must have been instantaneous. Injury No. 1 individually is sufficient to cause death in the ordinary course of nature.
He also performed post-mortem examination on 28-4-1967 of dead body of Hussain and found as many as five injuries and he was of the opinion that cause of death was shock and haemorrhage due to injuries on brain and blood vessels of neck. The injuries were ante-mortem in nature. Injuries Nos.
4. And 5 appeared to have been caused from a sharp-cutting weapon like hatchet and the rest with blunt edge, like back side of hatchet. Injuries Nos. 1, 2 and 4 were individually sufficient to cause death in ordinary course of nature. This witness also examined accused Abdul Karim on 26- 4-1967, sent by the police and found only two injuries, a lacerated wound --"x --" x skull deep on right parieto temporal region. The injuries according to the doctor appeared to have been caused by blunt weapon like lathi and were simple in nature, and the age of the injuries was within 21 hours at the time of elimination. This span was admitted as indoor patient and was discharged on 29-4- 1967. On 27-4-1967 he examined accused Haji Hamzo and found on his person one abroded contusion oblique curved over surface of right over it. Measuring 2" x --'. The injuries were simple in nature and appeared to have been caused with blunt weapon like laths and he issued the necessary certificate.
12. The accused in his statement before the trial Court on question, by the Court with regard to injuries, stated that :- "It is correct. On 25-4-67 I had taken three bullocks and one camel to water them at our well. The well is common it belongs to us as well as to Haji Muhammad and others. Haji Muhammad and Sher Muhammad were at the well. They prevented me from watering the cattle at the well. They caused injuries to my, cattle and also tip me. When I asked them no to beat the animals Haji Muhammad gave me a blow with shade side of the hatchet."
13. The other three accused however, denied their presonce at the place of incident as well as recoveries yet accused Haji Hamzo admits that he had informed P. W. Jan Muhammad about the quarrel. It may be noted that Jan Muhammad was examined by the prosecution who admits that an extra-judicial confession was made by Haji Hamzo to him.
14. As I intend to remand this case for re-trial therefore refrain from discussing the other evidence on record in minute detail.
15. The admitted position as revealed from the statements of the prosecution witnesses as well sae from the F. I. R filed by accused Abdul Karim and the injuries on accused Haji Hamzo and Abdul Karim, is that the fight did take place at the time and the place stated in the F. I. R. Between the parties and two persons lost their precious lives. The conclusion reached by the trial Court that the F. I. R. Filed by Dur Muhammad was belated and no explanation given is not based on sound reasoning, because it is in the statement of Muhammad Umar that when he went to the scene, Dur Muhammad was present at the site where one person had already died and two others laid injured. Dur Muhammad obviously could not leave the injured persons to go and lodge report to the police station and neither Mss. Basaran a helpless woman was expected to be able to go and file a report when of her two brothers one lay dead and other injured in the fight. Prima facie to cover up his guilt in the meanwhile, Abdul Karim filed an F. I. R. Against the complainant party which was later on found to be false. The next conclusion of the trial Judge that the eye-witnesses being relations their statements are not believable, is also neither sound nor based on any legitimate reasoning. There was no compelling reason for Mst. Basaran who is near relation of the accused persons to involve them innocently or otherwise to concoct a story of an incident which she has not witnessed. Not only this, there is ample evidence on record that the accused were present and the fight did take place between the parties. I wonder how in view of such overwhelming evidence on record the trial Judge could come to such conclusion and acquit the accused persons.
16. I also find myself absolutely unable to contribute to the view of the trial Judge, that-- "All this evidence clearly goes to show that the complainant's party were armed with hatchets.
Abdul Karim has also stated that he was assaulted by Haji Muhammad wide the hatchet. Now when it is clear that the complainant's party was armed with hatchets and did cause injuries to the animals with hatchets, the accused who participated could rightly apprehend that death or grievous hurt would be the result of the assault against them and the animals as such the legal right of private defence of the body and property extended them to the extent of causing death, so even if it be assumed for the sake of arguments that all the four present accused participated in the occurrence and actually caused injuries to Haji Muhammad and Hussain they were within their legal rights and committed no offence. Point No. 4 is answered accordingly."
Neither I agree with this nor with the over all conclusion of the trial Judge, that the accused are not proved to have committed any offence. It appears to me that the trial Judge was under a serious misconception of law and failed to attach evidentiary value to the statements of witnesses produced before the Court, as well as the question- of right of self-defence. Nowhere the accused persons have claimed right of self-defence and in fact three of the accused have denied their presence although Haji Hamzo being one of these three, has been found by the doctor to have sustained injuries. In my opinion the trial Judge in the circumstances of this case could not give them the benefit of self-defence specially so when it was not pleaded by the parties. There may be circum--stances no doubt that in absence of specific plea of self-defence, the Court may come to a conclusion from the evidence on record and give the benefit to the accused persons, but in this case the accused perhaps either could not be given the benefit of self-- defence which under the circumstances appears to ma- to be very doubtful, because two persons have lost their lives and the third has been seriously injured. These offences cannot be committed by one person and also in self-defence. The question as to who was aggressor is yet to be decided by the Court after recording of evidence and viewing the same. The judgment suffers from material contradictions on a very important point such as, either the accused could not be present at vardat in that case, the evidence of the prosecution has to be disregarded by, the trial Court after giving cogent reasons which are lacking here or other-- wise if there was a plea of self-defence, even then there were circumstances to be shown to be sufficient with details by the trial Court that the accused were entitled to such benefit. But no such reasons have been advanced by the trial Court. He disposed of these two crucial points laconically in two paras. Of the last page of the judgment.
17. In view of the above I am of the firm opinion that serious miscarriage of justice has occurred in disposal of this case, justice is not only to be done but it must be seen to hav--e been done. I therefore, find myself compelled to remand this for re-trial, in spite of the fact that the offences relate to the yeas 1957, yet injustice shall not be allowed to be perpetuated. I may make it very clear here that my observations in no way shall treated as prejudicial to the accused persons in their trial. Learned trial Judge has to start proceedings afresh and with an open mind.
18. The result is I accept this revision application, set aside the judgment of the learned Additional Sessions Judge, Dadu dated 24-7-1968 remand the case and, direct the learned Sessions Judge, Dadu for re-trial of the accused persons according to law.