Z. A. CHANNA, J.-The two appellants, Barkat A.I and Manzoor A.I, who are brothers inter se, were tried by the learned Additional Sessions Judge, Sanghar, under, section 302/34, P. P. C., for committing the murder of their co-villager Mohammad Akram, were convicted of the said offence and each of them was sentenced to transportation for life. They have appealed to impugn their conviction and sentence.
2. The case of the prosecution is, that on 28-2-1970, at about 5 p.m., appellant Manzoor A.I took Faqir Mohammad, a boy of about '2 to 14 years of age, to his compound (hata) for assisting him to cut fodder, where he tried to commit sodomy on Faqir Mohammad, when deceased Mohammad Akram, who was maternal uncle of Faqir Mohammad turned up and picking up a danda, which was lying nearby, gave a blow with the same on the head to Manzoor A.I, who ran away to his house. It is alleged that a short while thereafter, both. The appellants went to the house of the deceased called him out and after exchanging abuses with him, appellant Manzoor A.I grappled with him while appellant Barkat inflicted a knife injury to him on the neck, as a result of which the deceased fell down and thereafter both the appellants ran away. The incident is said to have been witnessed by Fakir Mohammed's father Ghulam Mustafa, Fakir Mohammed, Abdul Sattar and Khadim Hussain. Mohammed Akram died shortly thereafter as a result of the injury. Ghulam Mustafa first reported the matter to Yousuf, the Lambardar of the village, and on the latter's advice repaired to the Sinjhoro Police Station, 12 miles away, where he lodged the F. I. R. The same day at 9-45 p.m.
3. After recording the F. I. R., A. S. I. Mohammad Hussain, who was then incharge of Sinjhoro Police Station, accompanied the complainant to the scene of offence, and found the dead body of deceased Mohammad Akram lying in the street in front of his house and the ground near the body stained with blood. The A. S. I. Collected the blood-stained earth and prepared mashirnama Exh. 15.
On the following day, the A. S. I. Recorded the statements of P. Ws. Abdul Sattar and Faqir Mohammad. The latter pointed out to the A. S. I. The compound where appellant Manzoor had attempted to commit sodomy on him. The A. S. I. Found a danda lying in the compound, which he secured. On the same day, the A. S. I. Arrested the two appellants from the "otak" of B. D. Member Ghulam Mohammad. Appellant Manzoor was found to have an injury on his head and on his shirt was stained with blood. Appellant Barkat was found wearing a joota" which had stains of blood on it. The A. S. I. Seized the shirt and "joota" and prepared mashirnama, Exh.
17. Appellant Barkat then took the A. S. f. And mashirs Ghulam Mohammad and Ch. A.I Mohammad, to a place near a metalled road, and from a "Sur" bush brought out a bundle containing a shirt, a loin cloth and a knife, all of which were blood-stained. The A. S. I. Seized the same and prepared mashirnama, Exh.
18. On the same day, the A. S. I. Recorded the statements of Ghulam Mohammad and Yousuf A.I, and sent appellant Manzoor A.I to M. O. Sinjhoro, for examination. On 2-3-70, the A. S. I. Produced the two appellants before the Mukhtiar kar and F. C. M., Sinjhoro, who recorded their confessions. The A.
S. I. There--after sent the blood-stained earth recovered front the scene of offence, the shirt seized from the person of appellant Manzoor, the joota of appellant Barkat and the shirt, loin cloth and knife recovered at the instance of appellant Barkat to the Chemical Examiner to Government, who has reported, vide Exh. 23, that all of them were found stained with human blood. It may be pointed out that appellant Manzoor in his "confession" denied having participated in the attack on the deceased, and only admitted that he had complained to his brother Barkat that deceased had given him a hatchet blow on the heady
4. The autopsy on the deceased was performed by Dr. Keshab Lal, who was then M. O., Sinjhoro. He has deposed that he found the following external and internal injuries on the deceased, which in his opinion appeared to have been caused by a sharp-cutting weapon, such as a knife, were sufficient in the ordinary course of nature to cause death, and that the death of the deceased must have been instantaneous:- External Injury: An oblique penetrating incised wound -- ' x -- x 2-- on the right side neck front 1' below the mandible and 1 -- ' to the right of mid line.
Internal Injuries: Right common carotid vessels cut. Blood clots found all over the right side of the neck beneath the skin and faciae."
5. The case of appellant Manzoor is that he was not even present when the deceased was killed and that he has been falsely implicated by the witnesses who are related inter se. In the committal Court, he denied that he had attempted to commit sodomy on P. W. Faqir Mohammad, but admitted that he had been given a blow with the back side of the hatchet by the deceased, which had caused a bleeding injury, and further admitted having made a confession before a Magistrate.
In the Sessions Court, while repeating his contention that he was not present when the deceased was killed, he admitted that he had attempted to commit sodomy on Faqir Mohammad, on which count the deceased gave him a hatchet blow with its blunt side. He also admitted that the police had secured a blood-stained shirt from his possession.
6. Appellant Barkat, both in the committal Court as well as in the Sessions Court, admitted that he had caused a knife injury to the deceased, but contended that he had done so in self-defence. In the committal Court, be denied that his ---joota--- was stained with blood or that at his pointation a bundle containing a blood-stained knife, a shirt and the loin cloth was secured by the police from a ---sur--- bush. In the Session Court, however, he admitted that a blood-stained ---joota--- was secured from him by the police and that he had produced before the produced by him at 24 Jamrao. His further statement in the Session Court is as follows: ---Accused Mansoor is my brother. On the day of the incident I was coming from village 24 Jamrao when on the way some body told me that my brother Manzoor was given blow by Akram. I do not know the name of that man. I came to my house. I saw that Manzoor had injury on his head.
On my inquiry Manzoor told me that he was given blow by Akram without any reason. Akram was our friend, therefore went to the house of Akram to know about that incident and at his house when I asked the reason of the previous incident from Akram, he went annoyed, abused me and assaulted me with his hatchet, and in my self-defence I gave him knife blow. Accused Manzoor was not with me."
7. There is overwhelming evidence to show that appellant Barkat caused the fatal injury to the deceased. On this point there is not only the evidence of P. Ws. Ghulam Mustafa, Abdul Sattar, Khadim Hussain and Faqir Mohammad, who have deposed to having seen him-inflicting the fatal blow to the deceased, the fact that at the time of his arrest by A. S. I. Mohammad Hussain on the day following the incident, he a as found wearing a "joota" on which the Chemical Examiner found stains of human blood, the recovery at his pointation of a bundle, hidden in a "sue" bush, contain-- ing a shirt, a loin cloth, and a knife, all of which according to the report of the Chemical Examiner, were stained with human blood, but also his confession recorded by the Mukhtiar kar and F. C. M., Sinjhoro, on 2-3-1970, wherein he has admitted to having caused the fatal injury with a knife to the deceased. Furthermore, as already indicated, both in the committal Court as well as in the Sessions Court, he has admitted to having caused the fatal injury to the deceased, though contending that he did so in self-- defence.
8. The points falling for consideration in the instant case are:-
(i) Whether the appellant killed the deceased in exercise of right of self-defence?
(ii) Whether, in causing the fatal injury to the deceased, he intended to, accomplish his death?
(iii) Whether appellant, Manzoor can be attributed common intention with his brother Barkat of committing the murder of the deceased?
9. We have carefully examined the evidence in the case, but find no merit in the contention of appellant Barkat that he killed the deceased in self-defence. It was suggested to P. Ws: Abdul Satter and Khadim Hussain that the deceased was armed with a hatchet and was attempting to strike appellant Barkat, but both of them emphatically repudiated the suggestion. Mashir Haji Ghulam Mohammad also denied in his evidence in the Sessions Court that any hatchet was secured by the police from the scene of offence. He was confronted with his statement in the committal Court, tile English record whereof shows that he had admitted that besides blood- stained earth, a hatchet was also secured from the scene of offence. However, the Sindhi record of the committal Court, which has generally been considered more reliable as it is in the language in which the evidence was given, makes no mention of any hatchet being found at the scene of offence, and states that only bloodstained earth was secured from there. It allay also be pointed out that mashirnama of the scene of offence (Exh. 14) also makes no mention of a hatchet being found there. Furthermore, no question was even suggested to A. S. I. Mohammad Hussain, who had prepared the aforesaid mashirnama that a hatchet was found at the scene of offence. We consider it highly Improbable that appellant Barkat would have dared try attack the deceased with a knife if the letter had been armed with a hatchet. We therefore, repel the contention that the deceased vas armed with a hatchet and that appellant Barkat, in causing the fatal injury to the deceased, was acting in exercise of the right of self-defence.
10. It was strongly urged by Mr. Azizullah Shaikh, learned counsel for the appellant, that since only a single injury was caused by appellant Barkat to the deceased and that too with a knife, he cannot be attributed with the intention of killing the deceased, and at best, he could be attributed with the knowledge that the injury which he was inflicting was likely to result in the death of the deceased. In support of his contention he relied upon the reported cases of Dino v. State (1971 P Cr. L J 1176), Hassan Din and others v. State (1972 P Cr. L J 944) and Abdul Lais and another v. State (PLD 1970 Dacca 790). The facts of the reported cases, however, are clearly distinguishable from the facts of the instant case. In Dino's case, the victim had received a contused wound 2 -- ' x -- " on the back of the lowest left side part of the chest. The wound was an oblique one and caused with blunt side of a hatchet. The medical evidence only stated that the injury was dangerous but failed to state that it was sufficient in the ordinary course of nature to cause death. In holding that the appellant at most may be imputed with the knowledge that his act was likely to cause death, the learned Judges were influenced by the important factor that the injury was caused with the blunt and not with the sharp side of the hatchet and that further, it was not caused on a very vital or delicate part of the body and "could not normally be expected to cause death." In Hassan Din's case, there was a conflict between the testimony of the doctor who had initially examined the deceased and the doctor who performed the autopsy. According to the first doctor, there were four injuries on the deceased, one of which was caused with a sharp-cutting weapon and the other three with a blunt weapon, but according to the doctor who performed the autopsy, there were only contused wounds on the deceased and all the injuries on him apparently were caused with a blunt weapon.
By reason of the above conflicting medical evidence and that fact that Hassan Din was found to have been armed only with a "soti," it was held that he could not legitimately be presumed to have intended to cause death of the deceased. A further factor which influenced the learned Judges in altering Hassan Din's conviction from one under sections 302 to 304, Part II, P. P. C., was that he acted under the influence of his elder brother. In Abdul Lals's case the important circum--stance, which weighed with the learned Judges in altering his conviction from section 302 to section 304, Part II, P. P. C., was that he had caused only one injury to the deceased on 3rd inter costal space, and that it had been caused with a penknife. In homicide cases, among the factors to be considered for ascertaining the intention of the assailant, are the kind of weapon used, the part or parts of the body selected for causing injuries, the number and nature of the injuries caused, the force employed in causing the injuries, the circumstances in which the injuries were caused and the conduct of the appellant immediately before and after the assault. In the instant case, though only a single injury was caused to the deceased, it was on the neck, which is one of the most vital parts of the body. The injury was 2-- ' deep and had cut the carotid artery, which is the supply line of blood to the brain. The injury was so serious that on receipt thereof, the deceased collapsed and died almost instantaneously. The knife with which the injury was caused had a blade 4-- ' long.
Immediately after causing the fatal injury, to the deceased, appellant Barkat not only ran away but also concealed the knife and his blood-stained clothes in a `sue bush at some distance from the village. These circumstances, in our opinion, clearly lead to the conclusion that the appellant, in causing the knife injury to the deceased, had .The intention of killing him.
11. We are, however, not satisfied, that appellant Manzoor shared a common intention with his brother Barkat to cause the death of the deceased. He admittedly was unarmed, which would hardly have been the case, if he had shared a common intention with his brother Barkat of killing the deceased. There is no evidence to indicate that he was even aware of the fact that his brother was armed with a knife. None of the eye-witnesses has deposed to having seen the knife with appellant Barkat before he inflicted the fatal injury to the deceased. This suggests that possibly appellant Barkar had the knife concealed on his person. From the mere facts that both the appellants had come together to the house of the deceased and that appellant Manzoor was grappling with the deceased when the latter was caused the fatal injury by appellant Barkat, it cannot be inferred that the appellants bad a common intention to kill the deceased. It is not unlikely that appellant Manzoor had accompanied his brother to the house of the deceased under the directions of his elder brother and possibly under the impression --that the latter would simply chastise the deceased for causing an injury to him. We accordingly are of the view that the case against appellant Manzoor is not free from reasonable doubt, to the benefit whereof he is entitled.
12. For the reasons stated above, we would maintain the conviction and sentence of appellant Barkat and dismiss his appeal, and would set aside the conviction and sentence of appellant, Manzoor, allow his appeal and direct that he be released forthwith if not required in any other case.