The five appellants Ibrahim' son of Morio, another Ibrahim SOIL of Sultan, Khamiso, Sultan and korio were tried jointly along with 7 other co-accused namely, Mitho, Sajjad Shah Mohomed, Yousuf, Piyaro, Obhaljo and Osman by the learned Additional Sessions Judge, Tharparkar at Sanghat for the murder of deceased Daim and causing simple and grievous hurts to Misri (P. W. 5), Mooso (P.
W. 6), Isso (P. W. 7), Jumo (P. W. 8), Abdul (P. W. 9) and Mohomed A.I (P. W. 10) on 20th of May 1966 at about 4 p .m. At watercourse No. 6-L, Shahpur Distributory. The seven co-amused named above were acquitted by the trial Court while the appellants were all convicted. They were all convicted under section 304, P. P. C. And each. f them was sentenced to 5 years' R.
1. Additionally appellants Ibrahim con f Morio, another Ibrahim son of Sultan and Morio were also convicted rider section 323, P. P. C. And each of them was awarded sentence of one ear R. I. Their sentences were ordered to run concurrently. All the convicted said 5 appellants have now appealed against their convictions and, sentence,
2. The facts of the prosecution case as gleaned from the testimony of material P. Ws. Briefly are these. Deceased Daim was the father of Gul Hassan (P. W. 4), Isso (P. W. 7), Jumo (P. W. 8) Abdul (P.
W. 9), Mohomed A.I (P. W. 10) and first informant Niamo (P. W. 1.2) are brothers inter se aed they are maternal uncles of P. W. Gul Hassan. Mooso (P. W. 6) is the nephew of informant Niamo while Misri (P. W. 5) is their hari since many years. They all live in village Sultan Bhanejo where the deceased also lived. Sister of Daim deceased is the wife of appellant Sultan. Khamiso appellant is cousin of the deceased. Appellant Morio, who is the father of Ibrahim appellant, is also related to the deceased. The five appellants also lived in the village of deceased Daim and other P. Ws.
Mentioned above. The acquitted seven accused are not related to the five appellants except co--- accused Yousuf who is married to the daughter of Sultan appellant. All these seven co-accused live in another village which is at a distance of about one mile from Sultan Bhanejo village.
3. Deceased Daim and appellant Khamiso along with two others jointly owned agricultural land 32 acres in area which-was watered by water--course No. 6-L, Shahpur Distributory which i; at a distance of about one mile from Sultan Bhanejo village. Before the present occurrence this land was leased out to one Hadi Bux by all the joint owners and the period of lease had expired in Kharif season some months before the occurrence. After the expiry of the term of lease, the land was privately partitioned between its joint owners and each sharer started cultivating his own portion of land. According to the prosecution on the day of occurrence which was a Friday the turn of water of the land c f deceased Daim from the said water course was to start at 4-15 p m. And was to last up to 7-30 p.m. Accordingly, the deceased, his son P. W. Gul Hassan and their part P. W. Misri went to their land at 4 P.m. To take their turn of water for the land. Their turn accord--ing to them, was to follow that of land of one Ishak Zamindar and his Kamdar (Manager) Nabi Bux (P. W. 11) allowed the deceased party to start taking water for their turn. According to prosecution, the turn of water for the appellant Khamiso's land was to follow the turn of water of deceased's land. It is further alleged that as soon as the deceased and P. Ws. Gul Hassan and Misri started taking water, all the appellants came running and asked the deceased and his companions as to why they had taken their turn of water, Deceased Daim is said to have replied that he was taking his own turn of water, Appellant Khamiso, who was armed with a hatchet, then dealt blows to the deceased Daim with his hatchets on his head. Thereafter, the remaining four appellants, who were armed with lathis, also gave blows to the deceased. While the five appellants, it is alleged, were striking Daim, the other seven acquitted co-accused also came there. Of them Piyaro and Obhaijo were armed. With hatchets while the rest of them carried lathis. Seeing these seven co-accused arrive P. W. Gul Hassan left the scene and ran back to his village. There he informed P.Ws. Muhammad A.I, Abdul, Mooso,. Isso and Jumo. Gul Hassan remained behind in the village and these five P. Ws went to the place of occurrence. The culprits gave injuries to P. W. Misri the hart, who had a spade with himself for diverting water. When the said five P. Ws. On the information given to them by P. W. Gul Hassan reached the scene of offence they saw Daim injured and lying unconscious and also said that P. W.
Misri hats received injuries too. They saw all the 12 culprits mentioned above, according to them, at the scene variously/ grated and when they reached the place of occurrence they were all also caused injuries by these culprit. According to the` prosecution none from the complainant's side caused injuries to any of the appellants or their seven companions, the acquitted co-accused. The culprits then left the scene when Sumar (not examined) arrived at the spot. Due to the injuries P.
Ws. Mooso and Adul had also fallen unconscious as the deceased. P. W. Misri there--after brought a bullock cart from the village and removed all the injured, including the deceased, in to the village.
Niamo informant on that day had gone to Shahbaz Khan and returned to his own village at about 6 p.m. Where he learnt about the occurrence. He saw all the injured lying in their houses. P. W.
Mohomed A.I injured informed him what he was told by P. W. Gul Hassan when he bad reached the village and also about the facts of occur--rence which were substantially the same as detailed above. Naimo then left for Police Station Shahpur Chakar which was about 6 miles away and having reached there lodged his F.
1. R. Exh. 21 at 9-30 p.m.
4. The report was registered by A. S. I. Mumtaz Ahmad (P. W. 14) who was incharge of the police station then. Some--tine thereafter injured Daim, Mooso, Adul, Jumo and Muhammad A.I were brought to the police station and a mashirnama of their injuries Exh. 37 was prepared by the A.S.I. In presence of mashirs Sidiq and Sher Mohomed. Daim and Moosa were unconscious. The A. S. I. After recording the statements of all those out of the injured who were in senses sent them all to the hospital for treatment. On the next day the A. S. I. Went to the place of occurrence and inspected it in presence of mashirs Allahdino (P. W. 13) and Mohomed Sumar. He found blood at three places near the watercourse No. 6-L and took into his possession the stained earth. He prepared a mashirnama of the scene Exh. 23 in presence of the said mashirs who duly attested it. The A. S. I.
Then prepared the mashirnama regarding the injuries of P. W. Misri, who appears to have brought to him there, which is produced as Exh. 24 and sent this injured to the hospital for treatment etc. Statements of P4 W. Gul Hassan and other P. Ws. Were then recorded, The A. S. I. Thereafter arrested appellant Morio who produced a laths and spade which were taken into possession as per mashirnama Exh.
25. House of appellants Sultan and Ibrahim was starched by A. S. I. In their absence and he recovered a lathi as per mashirnama Exh.
26. The house of appellant Khamiso was also searched in his absence an a hatchet was recovered as per mashirnama Exh.
27. The A. S. I.
Then handed over the papers of investigation to the S. H. O. He had in the meanwhile released appellant Morio on bail as the F. I. R. Lodged by Niamo was registered for bailable offences, namely, under sections 148, 323, 324/114, P. P. C. The A. S. I. Had found appellants Morio and Khamiso injured so he prepared mashirnama of their injuries which he produced as Exhs. 38 and 39, respectively. He also recorded the counter F. I. R. Lodged by appellant Khamiso at 9-45 p.m. The same night when he had recorded the F. I. R. Of Niamo informant in this case. The counter F. I. R. Has been produced as Exh.
40. Beth injured appellants had also been sent for medical treatment. The counter F. I. R. Of appellant Khamiso reads as found :- "I have got land in deh Sarori at watercourse No. 6-L, Shahpur Chakar minor and according to the Government share list the turn of water, is 7 and half hours on Friday from 4-15 p.m. To 11-45 'p.m. In.
Order to take the turn of water I along with my hari Moro Bhaojo went to the water course at about 4 p.m. I, had to take water from Ishak Bhanejo. I went and turned the water when Muhammad A.I son of Samoon, Jumo and Niamo son of Ha Daim son of Gul Hassan armed with hatchets, Isso son of Samoon, Abdul son of Haji Dosso, Mohomed son of Jumo, Bhaojo and Misri son of Kaisaryo Bheel resident of Sultan Bhaenjo, Bukhshish son of Shadi, Kadir Dino SOD of Noora, A.I Mohomed son of Hakim, Allam son of Hakim Bhaojo resident of Shadi Shadi of Bbaojo armed with hatchets came there. Mohomed A.I told me as to why I had turned the water as it was their turn of water.
I told them that their turn of water is after my turn of water. On my saying so Mohomed A.I gave me sharp sided hatchet blow and Mooso, Isso gave lathi blows on my shoulders, as the result of which I fell down. Morio intervened to rescue me. Mohomed A.I also inflicted him sharp sided hatchet blow.
Isso and others also inflicted him lathi blows. We raised cries. On our cries Usman, Sajan, Bhaojo came running. They got us released. Mohomed A.I turned the water to his land and went lo his land.
Other accused persons went towards village. Morio brought Sultan Bhaojo. I narrated him the above facts. He has brought me here to lodge report: I have got no share list, but it is with Soomar and Ishak Bhanejo. I lodge complaint. Investigation be made. Read over, admitted correct and affixed his L. T. I. Thereon.
L. T. I. Complainant Khamiso."
5. This counter F. I. R. It will be seen makes the complainant party in this case responsible for causing injuries to appellants Khamiso and Morio as according to this F. I. R. It was the turn of water for appellant Khamiso and complainant party, as described by him, had forcibly taken their turn of I water for the land and caused injuries to them. As is usual in such counter cases, it will be noticed that this F. I. R. Of the appellant does not say that they caused injuries to complainant party, including I the deceased Daim.
6. On 23-5-1966 the S.H. O. Shahpur Chakar Police Station Mansubdar (p. W. 15) took over investigation of the case from A. S. I. P. W. Mumtaz Ahmad. The S. H. O. Went to the place of occurrence and verified the investigation already conducted by the A. S. I. On that date he arrested the acquitted co-accused Mitho, Sajjan and Osman as per mashirnama Exh.
29. Osman produced a lathi-which was secured as per mashirnama Exh.
30. Then he arrested other acquitted co- accused who also produced weapons but none of the weapons produced by any of them or, appellants was found blood--stained. On 28-5-1966 the S. H. O. Arrested appellants Khamiso and Morio from Civil Hospital, Sanghar where they were under treatment for injuries mashirnama of which he prepared in presence of mashirs Saghir Hussain and Muhammad Saleh which has been produced as Exh.
42. The same day S. H. O. Also arrested appellant Ibrahim son of Morio. Appellants Sultan and his sons Ibrahim had already been granted bail before arrest by Sessions Court. It might be mentioned here that deceased Daim died in the hospital on 22-5-1966 at 6-30 p.m. Obviously then the S. H, O: must have changed the sections in the F. I. R. Of this case into those falling under section 302 read with section 149 P.P. C, etc. After completing the investigation of this case he challaned the appellants end acquitted co-accused on 3-7-1966 in a Court of law. The case registered on the counter complaint of appellant Khamiso was disposed of under `B--- summary.
7. In due course of time the appellants and the said co-accused were committed to the Court of Session where they took their trial before the said Additional Sessions Judge with the result already mentioned above Hence this appeal.
8. The appellants when questioned at the trial under Section 342, Cr.P.C professed innocence and denied the version of incident as put forward b the prosecution.
9. Appellant Ibrahim son, of Morio besides denying prosecution allegation about the commission of offences charged with stated that the P. Ws. Had falsely deposed against him due to enmity.
10. Appellant Ibrahim son of Sultan also followed suit and he toy stated that the P. Ws. Gave false evidence against him due to enmity.
11. Appellant Khamiso in reply to, the question as to why the P. Ws deposed against him replied as under:- "The turn of water was mine and I and Morio accused who is my hari had gone to the watercourse to take water. When we had diverted the water to our land, Daim deceased and all the P. Ws. Came there and they forcibly wanted to take the water. When I protested, they abused me and attacked me and Daim deceased caused me injuries with the laths and therefore, I caused him injuries in exercise of my right of self-defence,"
"I am innocent. I had lodged report of the occurrence of injuries caused to me and Morio key the deceased and the P. Ws. But the police did not take any action due to the influence of Hasan Khan Sanjrani."
12. Appellant Sultan denied that polio had secured a laths from his house. As regards the question as to why the P. Ws. Deposed against him he replied that they did so falsely due to enmity against him.
13. Appellant Morio gave the version of the incident as follows in answer to one of the questions:- "The turn of water was of Khamiso accused and he and I had gone to the watercourse to take water. When we had diverted the water to our land, Daim deceased and all the P. Ws. Came there and they forcibly wanted to take the water. When we protested, they abused us and attacked us. I did not cause injury to Daim or any P. Ws."
14. None of the appellants led any evidence in defence
15. There can be no manner of doubt that on the side of the com--plainant party deceased Daim was killed and six P. Ws. i.e. Misri, Mooso, Isso, Jumo, Adul and Muhammad A.I sustained hurts and on the side of appellants two of them namely, Khamiso and Morio were injured.
16. The evidence of Dr. Baghchand who conducted the post-mortem examination on the dead body of the deceased after medically treating him for some days when he died in the hospital and also examined all the injured P. Ws. As well as injured two appellants aforesaid.
17. The doctor in his deposition in the committal Court which was transferred to the record of the trial Court as Exh. 44 states that on 21-5-1966 be received Daim in his hospital from the police and he was unconscious.
The doctor found the following 6 external injuries on his person:--- "(1) One contused wound Y shape with lower limb measuring 2 -- ' x -- ' bone deep, right limb measuring -- x -- ' x skin deep Left limb -- ' x -- ' x skin deep over the right occipital region, suspected fracture of occipital bone.
(2) Contused wound 1 --x -- ' skin deep on right side of frontal region of scalp.
(3) Contused wound 1' x -- ' x skin deep J' to the left of injury No. 2.
(4) An incised wound 2' x -- ' x skin deep on upper lid of right eye.
(5) An incised wound 2 -- ' x -- ' x muscle deep on the palm of right hand, in horizontal direction.
(6) Swelling 3' x 3' on the right side of the forehead.
18. When Daim expired in the hospital this doctor conducted the post mortem examination of his body and found the following internal damage done to it:- "(1) Big haemotoma seen under the skull over fight frontal, right temporal, right parietal bone.
(2) Fracture of right frontal bone at the middle.
(3) Fracture of right temporal bone.
(4) Separation of longitudinal suture about 5' long.
(5) Extra dural haemotoma present on right frontal parietal temporal region.
(6) Haemorrhage in brain with laceration of right frontal lobe of brain."
19. From the external and internal examination of the dead body of deceased Daim the doctor was of the opinion that the death of the deceased was due to shock; and haemorrhage as a result of the head injuries which were sufficient to cause death in the ordinary course of nature. It goes without saying that they were anti-mortem.
20. When the doctor examined P. W. Jumo he found the following 5 injuries on him:- "(I) Lacerated wound 3' x -- ' x scalp deep, on left side of frontal region of scalp.
(2) Lacerated wound 2' x -- ' scalp deep on occipital region of scalp in right half
(3) Contusion 8' x 1' on lower part of chest running obliquely.
(4) Bruises 5' x 1 -- ' on the back of chest in upper, part running obliquely across both scapula: regions.
(5) Bruise 4' x 2' on right scapular region."
21. The injuries were simple in nature and appeared to have been caused by some hard and blunt substance such as laths, or side of hatchet.
22. On the examination of P. W. Muso the doctor found that he had the following four injuries on his person:- ---(1) Contused wound 3' x -- ' x bone deep on right frontal parietal region of scalp,
(2) Contused wound 2' x -- ' x bone deep on the right side of occipital region of scalp.
(3) An incised wound 1' x -- ' x skin deep on the left thigh.
(4) Contusion 4' x 1` on right side of front of chest."
22-A. In the opinion of the doctor these injuries except No. 3 were caused by some hard blunt substance such as a lathi or back side of hatchet and No. 3 was caused by some sharp cutting weapon.
23. On the person of P.W. Mohomed A.I the doctor noticed the following 5 injuries on his examination:-
(1) Contused wound 3' x -- ' x skin deep on the left side of frontal region of scalp.
(2) Bruise 5' x 1' on the lower part of the back of left side chest.
(3) Bruise 4' x 5' on lower part of the back of right side chest.
(4) Bruise 3' x -- ' on right scapular region.
(5). Bruise 2 -- ' x 2' on left upper arm on lateral side."
24. The doctor opined that the above injuries were simple in nature and were caused by some hard blunt substance such as a lathi or back side of hatchet.
25. On the person of -P. W. Misri the following two injuries were detected by the doctor "(1) Contusion 4' x 1' on lateral side of upper part of left upper arm.
(2) Contusion 2' x 1' oh middle of right forearm.
Both these injuries were simple and were caused by some hard blunt substance such as a lathi.
26. P. W. Adul had the following 10 injuries on his person which the doctor noticed on his examination:-- "(1) Contused wound 2' x -- ' x scalp deep on right parietal region of scalp.
(2) Contused wound 2 -- ' x -- ' x skin deep on left parietal region of scalp.
(3) Swelling on the back of right hand.
(4) Contusion 5' x 1' on lower part of right side chest on the back.
(5) Bruise 5' x 1' on lower part of left side of the back of chest.
(6) Bruise 1 -- ' x 1 on left shoulder.
7. Bruise 2' x 2' on right scapular region.
(8) Contused wound 1 -- ' x -- ' skin deep on right side of scalp over frontal region.
(9) Facial palsy right side.
(10) Bleeding from right ear and nose, suspected fracture of base skull.
All the above injuries were simple according to the doctor except Nos. 9 and 10 which were grievous and the injuries appeared to have been caused by some hard blunt substance such as a lathi or back side of hatchet.
27. The doctor also stated that the injuries on persons of P. Ws. Muso and Adul would have taken more than 3 weeks for complete recovery and the injuries on the other injured would take less than 20 days to cure.
28. This doctor Bhagchand teas also examined by the trial Court as Court witness No. 1 as he had omitted to mention the injuries of too of the appellants Khamiso and Morio.
29. At the trial he deposed that on the examination of appellant Morio he found the following 3 injuries on his person.
"(1) Contused wound 1 -- ' x -- ' x scalp deep on left parietal region of scalp.
(2) Contused wound 2--- x -- ' x scalp deep on left parietal region of scalp.
(3) Swelling on back of right hand.
All these injuries according to the doctor, were simple and were caused by bard blunt substance.
30. On the examination of appellant Khamiso be noticed the following 3 injuries on him:-
(1) Contused wound 2' x -- ' x skin deep on left parietal region of scalp.
(2) Bruise 3 -- ' x 1' on right shoulder.
(3) Abrasion 2' x 1' on back of left shoulder."
All the above injuries appeared simple in nature and appeared to have been caused by some hard blurt substance. The doctor also stated that both the injured appellants had remained indoor patients in the hospital and their injuries would have healed up within a week.
31. Thus, it will be seen that the prosecution case itself is that Daim deceased was killed on the side of the complainant party and also 6 P. Ws. Aforesaid were injured on their side while on the other side of appellants two of them sustained injuries as mentioned in the-evidence of doctor Bbagchand.
32. The prosecution case rests solely upon the evidence of the 7 eye--witnesses, namely, P. Ws. Gul Hassan, Misri, Mooso, Isso, Jumo, Adul and Mohomed A.I as corroborated by the complainant Niamo and there is no corroborative evidence having been found from the appellants because all their weapons, some of which they produced and the others were secured on search of their houses in their absence, were not found to be blood-stained. The only factor that the prosecution can put forward in support of the story of the incident as advanced by the 7 eye-witnesses is that six out of them i.e. Except Gul Hassan have injuries on their person. But as will be soon discussed hereafter this fact also by itself is of no avail to the prosecu--petition. It is necessary to say that on the evidence of these very same 7 eye--witnesses 7 other co-accused already named above, who were tried jointly along with the appellants, have been acquitted by the learned trial Court by giving them the benefit of doubt as it held in its judgment that their presence at the scene of occurrence and participation in the crime was doubt--full. When this is the position of evidence arising for assessm ent in appeal the rule of prudence clearly is that the same evidence ought not to be relied upon which has been disbelieved by the lower Court, in respect of those persons, i.e. The appellants in this case, who have been convicted by the same Court. This rule of prudence is accepted to be a principle of appreciation of evidence in the case of Mohomed and another v. The Crown (PLD 1964 FC 84) in which their Lordships observed as under:-- "where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance."
This-decision of the Federal Court clearly shows that in the instant case confirmatory circumstances lending support to the ocular evidence in the case has to be looked for in order to sustain the conviction of the appellants. That this further corroboration to the ocular evidence should be looked for/ In this case is also made necessary by the fact that the parties in this case, as will be shown from the evidence, are' on inimical terms with each other.
33. P. W. Mooso in his cross-examination has been confronted with his evidence in the committal Court where he said that Sultan appellant had purchased land from one Farooq of Karachi and that it was in possession of Niamo complainant, in this case, whom Sultan evicted two months prior to this occurrence. He has further said in his cross-examination as under; "We are not on visiting terms with Sultan accused since a long time and we do not go to each other even on ceremonial occasions. We bad not even attended the feast given by Sultan accused to our Murshid some months before the occurrence. We had complained to our Murshid that Sultan would not give his daughter in marriage to my uncle Isso. He got his daughter married to Yousuf accused."
34. Yousuf accused refereed to just above is one of the co-accused at the trial who has been acquitted. On this point P. W. Isso made the following admissions in his cross-examination:- "It is correct that Sultan accused had made applications against my brother Niamo as the result of which he was declared history sheeter at the police station. It is also correct that we are against Sultan ac--cused on account of several reasons. I had demanded in marriage the daughter of Sultan accused but he had refused and had got her married to Yousuf accused. It is correct that we have disputes with Mitho and Obhayo accused since a long time."
Mitho and Obhayo referred to above are two of the acquitted co-accused.
35. P. W. Jumo in his cross-examination has admitted that a little while before on the day of the occurrence he and P. W. Mohomed A.I had gone to Soomar and had asked Soomar to remonstrate and admonish Muhammad A.I who was trying to cause a quarrel between them and appellant Khamiso over the rotation of water. Soomar admonished Muhammad A.I but the latter did not listen to him and insisted that Soomar should get him land on lease from Khamiso. P. W.
Muhammad A.I also said that he would not allow Khamiso accused to take turn of water. Again, on this point of enmity P. W. Adul in his cross-examination has admitted that he was a prosecution witness in the case filed by his brother P. W. Muhammad A.I against Morio, one of the acquitted co- accused, for theft of his radio. Morio was, however, acquitted in that case. P. W. Muhammad A.I has also admitted in his cross-examination that he had asked appellant Khamiso to give land on lease to him but he refused. The complainant, Niamo, admits in his cross-examination .That he was the history sheeter at Shahpur Chakar Police Station but not at the time when he gave evidence. He, however, further admitted that there were criminal cases pending against him at the time he was giving evidence after trial.
36. All the above admissions from these prosecution witnesses will clearly show that the complainant party was on inimical terms with the appellants side and that the. Complainant Niamo is also such a witness with bad antecedents that his evidence should not be relied upon without corrobo--ration from some independent source. This enmity also, therefore, requires that the ocular evidence in this case be assessed with great caution, care and circumspection and that corroboration should be looked for in support of it.
37. Coming to the story of the prosecution regarding their version of the Incident all the seven eye- witnesses have supported the prosecution case so also the complainant Niamo and their case substantially is that on the day of occurrence at 4-15 p.m, it was their turn of water for irrigating their lands from watercourse No. 6- L, after the turn of Zamindar Muhammad Ishaque was to finish, and this Zamindar's Kamdar Nabi But (P. W. 11) was present at the scene of offence in order to give them their turn of water. It is the further case of the prosecution that initially deceased Daim accompanied by his son P. W. Gut Hassan and admittedly their hart P. W. Misri had gone to the place of occurrence for the purpose of taking their turn of water from the Kamdar of Zamindar Muhammad Ishak namely, p, W. Nabi Bux; who was also present at the spot. According Jo the prosecution the turn of water of appellant Khamiso was to follow the turn of water of the deceased Daim. According to P. W. Gul Hassan none of them was armed with any weapon when they went to take their turn of water. According to P. W. Misri, the hari, his case in his own examination-in-chief is that he had a spade for diverting the water while P. W. Gut Hassan and deceased Daim had nothing in their hands. It is then the case of the prosecution that when the deceased along with his son. P. W. Gul Hassan and their hari P.W. Misri started to take their turn of water for their land, initially the present 5 appellant, arrived on the spot while appellant Khamiso was armed with a hatchet arid the rest of them four carried lathis, According to P. W. Gut Hassan, the son of the deceased, the present 5 appellants came running to the spot after the deceased and he along with their hart P.
W. Misri had reached at the spot and were starting to take their turn of water when the appellants came running. But in his cross-examination he has changed the version and stated that all the five appellants were already at the watercourse where they had reached. P. W. Gul Hassan also admits in his cross-examination that when the appellant prevented them from taking water they insisted on taking it. Thus, it is the ease of the prosecution that when they were taking their turn of water all the five appellants variously armed, as mentioned above, attacked the deceased Daim and P. Ws.
Gut Hassan and Misri, Gul Hassan out of fear rain away to the village before sustaining any injury but on P. W. Misri certain injuries appeared as have been already described above in the deposition of the Medical Officer Dr. Bhagchan. The prosecution story further is that deceased Daim vas caused injuries. Both with hatchet and lathes and was laid low and P. W. Misri also sustained injuries at the hands of the appellants. By that time P. W. Gut Hassan had reached his village and informed the other five eyewitnesses, namely, P. Ws. Mooso, Isso, Jumo, Mohomed A.I and Adul that his father was being beaten by the appellants and that seven other culprit` also, who were the acquitted co-accused at the trial, had also reached the scene of offence and that the five appellants had caused injuries to his father Daim for whose help they should go. All these five P. Ws.
Then proceeded to the spot while P. W. Gul Hassan according to him, remained behind in the village. It is the case of these five eye-witnesses at the scene all the 12 culprits including the appellants and the 7 acquitted accused gave them all injuries with their weapons with which they were variously armed. The culprits then are said to have gone away. Thereafter the complainant Niamo arrived at the village where the injured witnesses had been removed by them including the deceased and the complainant Niamo was informed of the occurrence after which he went and lodged a report at Shahpur Chakar Police Station.
38. As against this version of the incident put forward by the 7 eye-witnesses and the complainant we have the other opposing version from the side of the appellants who claimed that it was their turn of water for irrigat--ing their land and the deceased Daim had not to, take his turn of water at that time but he forcibly tried to take the turn of water and attacked the appellants, therefore, they in self-defence caused injuries to the deceased and the other injured P. Ws. The learned trial Court has reached the finding that the appellants did cause injuries to the injured P. Ws. And the deceased but in self-defence on a sudden fight flaring up at the spot and that they exceeded in exercise of right of their private defence and, therefore, had committed the offences for which they were punished except the 7 co-accused who are acquitted. The trial Court also gave a finding that the evidence showed that the rotation of water at the time of the occurrence was of appellant Khamiso but it was not of Daim deceased. It also held that it cannot be said on the evidence that unlawful assembly had been formed by the appellants, thereby implying that each of the appellant was responsible for his own individual criminal act although the finding is not expressed in so many specific words: -The learned counsel for the State appearing before me also conceded that the appellants` had acted in exercise of right of private defence of their person and, therefore, supported the judgment of the trial Court.
39. "The fact that the appellants acted: in the right of private defence is made clear from various circumstances on the record which I shall presently refer to P, W. Mohomed A.I has admitted in his cross-examination that the parties in this case had to take the turn of water according to the share list prepared by Abdar Ghulam Hussain, who has been examined as a Court witness and this P. W.
Mohomed A.I has produced that share list prepared by the Abdar as Exh.
18. This share list clearly shows at the entry at section No. 13 that Allahdino, who is admittedly the deceased brother of appellant Khamiso, had to take his turn of water from 4-1,5 p.m. Friday to 11-45 p.m. At night. After that was the turn of the water for P. W. Mohomed A.I. This share list has been produced by the Court witness Abdar Ghulam Hussain, who has stated that this share list has been prepared by him in consultation with the Khatedars according to the relevant rules. It is, therefore, quite obvious that at the time of occurrence the turn of water for irrigation was to he taken by the appellant Khamiso and his companions and the deceased Daim and his party had not to take their turn which they could not do in view of the share list Exh.
18. It is also further, therefore, obvious that the complainant party must have tried forcibly to take their turn of water. Therefore, it is quite likely regard being had to the common course of natural events and human conduct that the com-- plainant party must be the aggressors on the appellants. It is admitted by P. W. Misri that he had a spade and P. W. Isso has also admitted that he of them on their side had any weapons, therefore, it is denied by the prosecu--petition witnesses that "they caused any injuries to the appellants which obviously inconsistent with the medical evidence of Dr. Bhagchand, Exh. 44, who examined the appellants Khamiso and Morio on whom he found injuries having been caused with a blunt and hard substance. The prosecution, witnesses have obviously suppressed the fact of having caused Injuries to the two of the appellants who have been found injured by the doctor. This is also an additional reason why independent corroboration would be necessary to seek for in order to rely upon the version of the prosecution which as Is being discussed now appears to me to be very doubtful. The Kamdar of Zamindar Mohomed Ishaque i.e. P. W. Nabi Bux, has also been examined on the side of the prosecution and he has at his testimony at the trial in examin--ation-in-chief supported the version of the self-defence put forward by the appellants. He deposes, inter alia, that on Friday at 4-15 p.m. Appellant Khamiso took the turn of water for his land after their turn (Nabi Bux's) turn of water was over. At the same time when appellant Khamiso came to take his turn of water Daim deceased and his son Gul Hassan as well as Misri also came there. They as well as the appellants claimed that it was their turn of water. He further' goes on to add that Daim deceased had a lathi while P. W. Misri had a spade. Daim deceased then struck appellant Khamiso with the lathi and the latter dealt hatchet blows-to deceased Daim. According to him appellants Morio and Ibrahim also then struck Daim with lathis and he out of fear ran away. After giving this evidence in examina--petition-in-chief this witness was declared hostile by the Public Prosecutor at the trial and he was granted permission to cross-examine him. So the learned Public Prosecutor contradicted this witness with his lower Court statement where he had given the version of the incident which is in consonance with the prosecution story as advanced in this case; But it is all the same brought out in the evidence of P. W. Nabi Bux that he had not stated before the Committing Magistrate that Daim first struck Khamiso with the lathi and then Khamiso struck him with the hatchet as no such question was put to him. The learned trial Court in view of the contradictory statements made by this witness at the trial and in the committal Court has thought it right to discard his evidence completely, but in my opinion; the evidence given by this witness his examination-in-chief at the trial is more consistent with this of this case as it is quite obvious from the share list, Exh 18 that the turn of water was that of the appellant Khamiso and not that of the complainant, 'therefore, what P. W. Nabi Bux stated in his examination-in-chief at the trial ought to be relied upon. I, therefore, find that P, W. Nabi Bux also supports the case of the self-defence of the appellant and his version that the deceased attacked the appellants first ought to be relied upon and preferred from his evidence given in the committal Court from which he has reverted to truth at the trial.
40. It appears in the prosecution evidence that at the initial stage P.Ws. Gul Hassan and Misri had accompanied deceased Daim to the scene of occurrence anal thereafter whet: the appellant started beating the deceased P. W. Gul Hassan had run back to his village and informed P. Ws.
Mooso, Isso, Jumo, Adul and Muhammad A.I that his father was being beaten and, therefore, they should go for their help and, accordingly, they reached at the spot. It is their case that these five eye-witnesses also reached the spot later were attacked by the appellants which might go to show that the appellants have at least attacked these witnesses for no rhyme or reason but it appears to me that having regard to the common course of natural events and human conduct it must be these 5 injured eye-witnesses who must have attacked the appellants seeing that deceased Daim was already lying injured on the ground along with P. W. Misri as obviously they were claiming that it was their turn of water to take and. That the appellant had no right to take the turn of water for themselves. I am, therefore, of the opinion that the appellants and perhaps along with some of the other acquitted co-accused acted in self-- defence and caused simple injuries to all the 6 injured eye-witnesses. It is quite obvious from the evidence on record as discussed above that at least some of the prosecution eye-witnesses must be armed with lathis because injuries with such a weapon appeared on the person of two of the appellants i.e Khamiso and Morio. In these circumstances the law is well laid down by now that if an accused person is attacked with a weapon like lathes which is likely to cause at least grievous hurt to him he has the right to exercise the right of private defence to cause injuries to his assailants even to the extent of causing his death. For this proposition of law there is ample authority laying down that an assault with a lathi or dunda may be productive of "reasonable apprehension of death or grievous hurt and may, therefore, justifying causing more grievous hurts. In this connection refer to the following reported cases:
(i) Imam Din v. Emperor (1925) 26 Cr. L J 730, wherein it has been held that in the heat of the moment and while defending one-self from a man armed with a stick, it is practically impossible to calculate with accuracy the exact force which one is entitled to comply in self---defence. In this case the facts were that the accused insulted the deceased and the deceased struck him with a stick. Accused thereupon retaliated by striking deceased on the head with a lathe, fractured his skull and killed him. It was held that the accused had acted in the exercise of the right of private defence and could not be held to have exceeded that right.
(ii) Pahlad and another v. King-Emperor AIR 1924 Oudh 334. In this case also four persons bad come up armed with lathis which they caused injuries to the accused person who in retaliation and in exercise of rights of private defence caused them blows resulting in the death of one of them and it was held that the accused who had been attacked 'had acted in exercise of right of private defence and that they were not guilty of any offence.
(iii) Imam Din v. Emperor AIR 1925 Lah. 514. In this case it was held and observed as under:- "In a fight between two parties the accused insulted the deceased. The deceased then struck the accused. The accused retaliated with a heavier blow which caused his, opponent's death. It was held that the accused was protected by his right of self-defence."
It was further also laid down:- "In the heat of the moment, and while defending oneself from a man armed with a stick it is practically impossible to calculate with accuracy the exact force which one is entitled to employ in self---defence."
(iv) Samoo v. The State PLD 1952 Kar. 495, in which case the accused killed the deceased with hatchet in answer to deceased's abuse and two lathi blows but he was given benefit of right of exercise of private defence and acquitted.
41. All the above reported cases clearly support the proposition that if an accused person is attacked by another man armed with a lathi then the accused has the right of private defence to defend his person by causing even the death of his assailant who is so armed with a lathi. In this instant case e also some of the P. Ws. As admitted by some of the prosecution witnesses an particularly Nabi Bux have stated that deceased Daim was armed with lathe and he bad attacked the appellant Khamiso first. This witness also stated that P. W. Misri had a spade which has also been admitted by P. W. Misri in his own evidence. Under these circumstances, thus, it is quite clear that the appellants were quite within their right of exercise of the right o private defence and did not exceed the same by causing the death of the deceased assailant upon them. The law is also laid down by the Supreme: Court on this point further that if the plea of right of exercise of the right of private defence is reasonably possible on the evidence on record then the benefit of it should be given to the accused person,. As held by the Supreme court in the case of Shamshad v. The State (PLD 1963 SC 740),
42. On the identical facts and circumstances as are present in the instant case there are some reported decisions in which it has been held that the accused acted in exercise of right of private defence and, therefore, were not guilty of any offence and these are the following:-
(1) Khuda Bux v. The State 1972 P Cr. L J 51 which was a case of exercise of the right of private defence on the complainant party diverting water much earlier than their own turn according to wara--bandi and altercation between parties leading to fight, one on. Complainant side lost his life and two of the appellants received injuries.
(ii) Ghulam Rasool v. The State PLD 1970 Lah. 832 wherein it was held that in the murder case based on unlawful assembly plea of private defence can be raised in appeal, if spelt out from prosecution evidence though not sufficiently taken at trial and the accused "in possession of the water,'' on account of their turn and while irrigating their field complainant party trying to divert it to their field before proper time and in their attempt to divert the water supply by other party it was held that the accused were entitled to maintain supply in defence of their property to deal with intruders and to cause injuries and that the accused were entitled to acquittal in the circumstances of the case as they acted in the exercise of the right of private defence.
43. It might be argued that the number of injuries on the prosecution side is much more than the number of injuries caused to the two appellants, therefore, this circumstance would indicate that the aggressor was the appel--lant party and not the complainant party. But merely from the fact treat the complainant's side had many injuries on the person of the prosecution witnesses more than those appearing on the side of the appellants would not by itself go to show as to who is the aggressor as this question will depend upon the facts and circumstances of each particular case. I am supported in this view of the matter by the case of Inayatullah and another v. The State (PLD 1966 Lah. 8) wherein it has been held that the mere fact that complainant party suffering greater number of injuries than those suffered by accused was not sufficient to hold accused as aggressor.
The prosecution had failed to explain injuries on the person of the accused and it was further held that such omission makes prosecution version, highly doubtful and lends support to accused's plea of self-defence. This reported case also, it will be seen, helps the appellants' version of the incident of self-defence and as such I find that the appellants have acted in exercise of the right of private defence even by causing the death of the deceased and that therefore, they cannot b- held guilty of any offence. I am also fortified in this view by the case reported as 1971 SCMR 162.
The counter report of the appellant Khamiso which was lodged by him at the same police station only 15 minutes after the F. I. R. In this case and has been brought on record as Exh. 40 in which appellant Khamiso has named all the injured eye-witnesses in this case as their assailants and therefore it also supports the version of the appellants' side putting forward exercise of the right of private defence.
44. In view of all the discussion made above of the evidence of the prosecution in this case I find that the appellants have to be given the benefit of exercise of the right of private defence and acquitted of the charges for which they are convicted and I hold that they have been improperly convict--ed by the trial Court.
45. For the foregoing reasons I acquit all the five appellants of all the charges levelled against them and set aside their convictions and sentences. They are on bail and their bail bonds shall stand cancelled.