MUHAMMAD HALEEM, J.-----This judgment will dispose of Criminal Appeals No. 310 and 334 of 1970 filed by the appellants Ejaz A.I Shah and Balach. They were tried alongwith Mir Muhammad, Allah Waryo. Jan Muhammad and Jamal for the murder of Ibrahim and for causing simple injuries with sharp and blunt weapons to Misri and Muso by the learned Sessions Judge, Tharparkar at Sanghar and convicted and sentenced vide judgment dated 13th June 1970 as under:---
(a) Ejaz A.I Shah under section 302, P. P. C. To transportation for life, under section 148, to R. I. For one year, under section 323 read with section 149, P. P. C. To R. I. For six months, under section 324 read with section 149 to R. I. For two years.
(b) Balach: under section 148 to R. I. For one year, under section 323 read with section 149, P. P. C. To R. I. For six months, under section 324 read with section 149, P. P. C. To R. I. For two years.
(c) Mir Muhammad under section 147, P. P. C. To R. I. For one year, under section 323 read with section 149, P. P. C. To R. I. For six months and under section 324 read with section 149; P. P. C. To R. I.
For two years.
(d) Allah Waryo: under section 147 to R. I. For one year, under section 323 read with section 149, P. P.
C. To R. I. For six months and under section 324 read with section 1 49 to R. I. For two years.
(e) Jan Muhammad: under section 147, to R. I. For one year, under section 323 read with section 149, P. P. C. To R. I. For six months and under section 324 read with section 149 to R. I. For two years.
(f) Jamal: same conviction and sentence as in the case of Jan Mohammad.
Only the first two appealed against their conviction, while the others have not appealed.
2. According to the prosecution case, at about 5 p.m. On 23rd March 1968, one Misri son of Yaroo informed Gul Baig at his house that employees of the Forest Department had given hatchet blows to Ibrahim, Misri and Muso, who had gone earlier in the day to graze their goats on the land of Kalois to the west of Jamrao Canal, whereupon he left for the wardat where he was told about the incident by Misri and Muso as under: "We were grazing the goats in the land of Kalois, when persons of Forest Department came there in jeep. They stopped the jeep and got down from the same and came towards us. We identified one Ejaz A.I Shah Forester and five or six other persons, two of them were in "Khaki" suits, and the remaining were in civil dress, who were armed with hatchets. As they reached, they started driving the cattle. We prevented them whereupon there was quarrel, and Ejaz A.I Shah and his companions gave us sharp-sided hatchet injuries and fell down us, and ran away in the jeep. They told us about Ejaz A.I Shah, that they identified them by his name and about the remaining persons they disclosed, we will identify them on seeing."
Gul Baig removed Ibrahim to Berani Dispensary, as his condition was serious and from there he was taken to the hospital at Sanghar. From Berani Dispensary he went to Ghulam Muhammad Khan, Manager of Jam Anwer A.I and narrated to him the facts, who advised him to lodge the report. He left for Police Station, Naoabad, where he lodged the report the same day at 11 p.m. After recording the report Sattar A.I, S. H. O. Repaired to the wardat on the following day, where he spotted blood stains at two places on the ground which he secured under a Mashirnama (Exh. 18).
He examined Muso, Misri, Sher A.I, Haji Kambir and one other person by name of Mooso and then proceeded to the hospital. The same day, appellant Ejaz A.I shah lodged his counter-report (Exh.
35). This appellant was sent to the hospital for medical examination and treatment that very day.
Haji Abdullah was also examined in the course of investigation and Ejaz A.I was arrested on 27th March 1968. He volunteered to produce the crime weapon and in the presence of Mashir Saaib Khan he took out a hatchet from a Khabar Bush near about the wardat which was seized under a Mashirnama (Exh. 33). Appellant Balach on being arrested also volunteered to produce a hatchet which he produced from the shop of Siraj, a Cycle Dealer, in the presence of Mashirs Muhammad Hassan and Khuda Bux, which was seized under a Mashirnama (Exh. 45). On 29th of March 1968, the Investigating Officer was informed about the death of Ibrahim and he left for Sanghar to arrange for the post-mortem examination of the deceased. After the arrest of the appellant and the convicts, two identification parades were held. One was on the 3rd April 1968 in the presence of Ata Muhammad, 3rd Class Magistrate, Sinjhoro. In which the convicts were put to identification test and they were correctly picked out by P. Ws. Muso, Misri. Sher A.I and Haji Abdullah. The second was on 8th April 1968 at Sub---Jail Tando Adam in the presence of Mashir Khuda Bux in which appellants, Ejaz A.I and Balach were put to identification test and they were correctly, identified by Haji Abdullah, Sher A.I and Muso. Misri picked out Ejaz A.I but failed to identify Balach. Other recoveries of lathis were made at the instance of convicts which were not blood-stained and have therefore no evidentiary value.
3. The autopsy on the dead body of the deceased was performed by Dr. B. A. Hardasani, who noticed the following injury:--- "Incised wound 8' x 1' x brain deep on left front-parieto occipital region of scalp."
"(1) Contused wound 1--x 1 x scalp deep on left occipital region.
(2) Contused wound 1" x -- x scalp deep on left occipito temporal region:
(1) Lacerated wound 1' x --' x scalp deep on left occipital region.
(2) Abrasion one inch 1" x -- inch on back of right fore-arm.
(3) Incised wound -- " x -- ' x skin deep on left hand middle finger."
According to him, injuries Nos. 1 and 2 were caused by a hard blunt substance such as lathi or back side of the hatchet while injury No. 3 was caused by some sharp weapon like hatchet or knife- blade and the injuries were simple in nature. The same Doctor examined convicts Mir Muhammad and Jan Muhammad and the appellants on different dates. On Mir Muhammad be noticed on 25th March 1968 the following injuries:- "(1) Healed contused wound semi square -- x -- over the occipital region.
(2) Complains of pain in the back of left side of chest."
According to him, the injuries were simple in nature and their probable duration was some four days back and that those were caused by some "hard blunt substance" such as lathi or back side of the hatchet. He also stated that injuries could not be self-suffered or self-inflicted. On Ejaz Hussain he observed on 26th March 1968, the following injuries:- "(1) Abraded contusion 6' x 4' in transverse direction on lower part of back of trunk in the middle in lumber region.
(2) Contusion 4-- x 1-- on back of chest lower part on oblique direction extending from lower thoracic spine to the left side.
(3) Contusion 6' x 1-- ' in lower part of back of left side chest.
(4) Contusion 4' x 3' on left scaple region."
4. The blood-stained earth and the two hatchets were sent for chemical analysis and according to the report of the Chemical Analyst, the earth and the hatchets were stained with human blood. The report lodged by appellant Ejaz A.I Shah was disposed of as false. He had also filed a com--plaint which was dismissed. Appellants Ejaz A.I Shah and Balach took an identical defence while the convicts denied their presence and also their involvement in the crime. Since much will turn on defence of these two appellants, it will be of advantage to reproduce their statements in extenso.
Appellant Ejaz A.I Shah when examined by the Inquiry Magistrate stated as under:--- "I had orders from my Ranger Nazim to supervise inspection path of Jamrao within Landhi Block. As there were reports that there were frequent damages to the trees on inspection path of Jamrao on the southern area and Landhi Bridge, my Ranger borrowed Jeep from Mr. Bhati and I had taken the Jeep with me. I took Balach co-accused from Sinjhoro and I took Beldars namely accused 'Mir Mohammad, Jan Mohammad, Allah Waryo and one Abdullah on the way near Shahu Minor, we came to Bhaji Mori and took inspection path of Jamrao Canal."
While replying to a question as to whether he caused injuries to Ibrahim with n hatchet, he stated as under:- "It is correct. The facts are that I accompanied above-mentioned Beldars went along inspection path for supervision and when we were nearing RD-5 of 147, we saw that some branches of Babul trees were lying cut by the side of inspection path and goats were grazing thereon. Two persons were standing with the goats and 2 more persons were on the trees cutting the branches. As soon as, the culprits saw our Jeep nearing, one of the persons standing with the goats, started running to Dalore Bridge just at the time we reached the branches cut, two persons on the trees came down from the trees. They Here P. W. Muso and Misri, who I already knew. The person who was standing with the goats was deceased Ibrahim. I could not identify the 4th person who ran away. I found that these persons had cut about 500 branches from 4 Babul trees and they had about 100 goats grazing thereon. I knew these persons as habitual offenders of Forest offences. I therefore called upon them to pay the compensation of Rs. 250 for the damage caused by them, according to forest rules else goats would be taken to pound. They refused to pay compensation. They threatened us that they would not allow us to take the goats to pound. On this I ordered my Beldars to collect the goats and drive them to their goats down below the canal on its western side. My Beldars went ahead of the goats and seized them and drove them at a little distance towards south, when these grazers came in front of their goats and stopped them and threatened to fight.
They came armed with hatchets. On this I who was coming behind approached them and samjhaod them that they should not deter us from performing our lawful duties and by doing so they were committing offence. But they persisted and challenged us that they belonged to party of Jams and never cared for such offences. By this time their other men being about 10-15 in number came running from Dalore Bridge, when they reached us the graziers attacked us and caused injuries to us and also snatched the goats from us. My Beldars in order to defend me and themselves caused injuries to deceased Ibrahim P. W. Muso and Misri in self-defence. I and accused were not armed with any weapon. My Beldar Abdullah was carrying hatchet and other Beldars had lathis. The deceased was struck by hatchet blow of Abdullah before this, the deceased tend his companions had caused injuries with blunt side of hatchet to tie, Balach, Jan Mohammad and Misri:--- Again in reply to a question as to whether he and Balach, threatened to take the goats to the cattle-pound, this is what he stated:-- "It is false. They were actually grazing the goats on the branches and" trees cut by them on the inspection path of Jamrao near R. D. 147/5 and had committed Forest offence. The place in land of Haji Murid A.I Kaloi is all ploughed land and was not a place for grazing of the goats. In fact, it was there that graziers and their other men who, came from Dalore Bridge snatched the goats from us and attacked us".
Lastly, he pleaded self-defence as under:- "P. W. Muso, Misri fought with us and caused us injuries. They are deposing falsely in their own defence. Complainant Gul Baig and, others Kaloi witnesses are offenders, are connected with deceased party and have deposed falsely at their instance."
He maintained the same stand in the trial court and denied the production of blood-stained hatchet. Appellant Balach adopted the same defence in the: following words, while denying his own involvement:-- "In fact these graziers were grazing their goats on the cut branches of 4 Babul trees on inspection path and my further statement is same as that of co-accused Ejaz A.I Shah."
He explained the injuries on his person by saying that they were caused by deceased Ibrahim in order to rescue the goats while he was taking them to the cattle pound. In the trial Court he pleaded self-defence while sticking to his earlier stand and stated that when the P. Ws. And the deceased attacked him and the others he and his companions also used their weapons in self- defence but denied knowledge as to whose weapon struck whom.
5. The trial Court held that there was no common object to commit murder but only to cause harassm ent to the villagers to extort money from them. In this view of the matter, while accepting the prosecution evidence, it held that it was Ejaz A.I Shah, who had caused hatchet blow to deceased Ibrahim and convicted him alone under section 302, P. P. C. But impliedly acquitted the others of this charge while convicting them for other offences as above stated.
6. The prosecution examined Misri, Muso, Sher A.I and Haji Abdullah to support its case. Ghulam Muhammad, the driver of the Jeep in which the appellants and the convicts travelled, was also examined in support of the ocular testimony of the above witnesses. Appellants Ejaz A.I and Balach have admitted their presence. There were injuries not only on appellant Ejaz A.I but on convicts Mir Muhammad and Jan Muhammad, Appellant Balach although complained of pain but had no visible mark of injury. The Doctor at the same time has opined that the injuries were neither self- suffered nor self-inflicted. He only expressed doubt as to the pro--bable duration of injuries on appellant Ejaz Hussain but in cross---examination, he admitted that it is possible that Ejaz Hussain and the two convicts could have suffered them as far back as on 23rd March 1968. In view of this admission and in the context of the further statement that they were neither self-suffered nor self- inflicted, the only plausible inference: deducible is that they were suffered by the appellant Ejaz Hussain and the convicts in the course of the fight. P. Ws. Misri and Muso stated that they were unarmed and have therefore denied having caused injuries to the appellants and the convicts. In the light, therefore, of the defence pleaded, by the appellants, it remains to be seen whether it finds support from the prosecution case so as to create a reasonable doubt to entitle them to the benefit of the plea taken by them. The prosecution version is that the quarrel started when the appellants and the convicts started driving the goats for taking them to the cattle pound, while they were grazing on the private land of the Kalois, whereas the defence version is that the deceased and the two injured witnesses, Misri and Muso, had cut branches of the trees standing on the Inspection path and while the goats were grazing on them, the appellants and their companions arrived and demanded com--pensation from P.Ws. And the deceased and on their refusal, they started to drive the goats to the pound and to prevent them from doing so, the P. Ws.
And the deceased attacked them. At this stage there is some difference in the version of the appellants Ejaz A.I and Balach. According to appellant Balach, he and others caused injuries in self- defence but he could not say as to whose weapon struck whom. Appellant Ejaz A.I, while admitting that he was present, denied having taken part in the fight. According to him it was his Beldar Abdullah whose hatchet struck the deceased. Against this back--ground, we have appraised the ocular testimony of the eye-witnesses and Ghulam Muhammad. Gul Baig on reaching the wardat was informed by Misri and Muso as to what had happened. What they stated is disclosed in the F. I.
R. According to that version, the quarrel originated because Ejaz A.I and his companions, who were five or six in number, had started during the cattle and when prevented from doing so, Ejaz A.I Shah and his companions gave sharp sided hatchet blows where after they escaped. No reason was assigned as to why they did so. Although each one was assigned the part of causing hatchet blow with the sharp side yet only two incised in--juries were noticed, one on the deceased and the other on Muso while the other four were with blunt weapons. Again they have testified that the incident occurred while they were grazing their goats on the ploughed land of Kalois. While P. W. Misri has not given any reason why the appellants started driving the goats to the pound, P. W. Muso assigned the cause that the appellants and their companions demanded compensation on the accusation that their goats had drunk water from Jamrao Canal, and on their refusal to pay it in spite of the entreaties of deceased Ibrahim, appellant Ejaz A.I struck hatchet blow on his head which caused his death. We have noticed from his cross---examination that he did not assign this reason in his police statement nor has he said that they were grazing the goats on the land of Haji Kaloi. There is, therefore, wilful suppression as to what prompted the appellants and the two convicts to seize the goats. No reliance can therefore be placed on their ipse dixit, and therefore their presence alongwith the goats on the ploughed land of Kalois, where there was nothing to graze for as many as 60/70 goats is unexplainable. They have also suppressed having caused' injuries to Ejaz A.I Shah which are of sizable dimensions and the other two convicts and one of such injury was incise. This shows that at least one of them was also armed with a sharp cutting weapon. While in the F.I.R. P. Ws. Misri and Muso have not ascribed to appellant Ejaz A.I Shah, the part of causing hatchet blow to deceased Ibrahim yet in their testimony' before the trial Court they were ascribed this part to Ejaz A.I Shah and also to Balach of having caused hatchet blow to P. W.
Muso. This was not without a reason for the earlier version was not consistent with the medical evidence and therefore this stand was taken to explain the two injuries. Under the circumstances, their testimony detracts from truth and it is not possible to accept it on its face value qua the part ascribed to appellants Ejaz A.I and Balach. The presence of Haji Sher A.I and Haji Abdullah does not transpire from the F. I. R. According to Sher A.I, he was in his field when the incident occurred, cutting grass and was able to identify appellants Ejaz A.I and Balach but of going to the wardat he went to his village to inform his zamindar, Mooso. Mooso has not been examined and it is, therefore, not possible to get support of his presence. How his name transpired subsequently as an eye-witness is obscure, particularly, in the context of the testimony of Misri son of Yaroo where his name also does not transpire while quoting Muso Khan as saying "that Bhambras were lying injured and I informed their relations Gul Baig and Khan Muhammad." The next eye-witness Haji Abdullah claims to have witnessed the incident while grazing his goats, near the land of Murid Kaloi. According to his version, he went to the wardat but was threatened not to come near the appellants. In spite of it his presence is not mentioned in the F. I. R. It is, therefore, not possible to accept the version of these two witnesses in the light of what they have stated for their presence appears to us to be doubtful.
The prosecution case is not advanced by the testimony of Ghulam Muhammad for be has only deposed to the fact chat the two appellants and the convicts travelled in the jeep and that out of them four left the Jeep armed with hatchets and the other two with lathis and beyond it he has not deposed about the actual occurrence. Therefore, there is no firm material to support the prosecution version as to how the fight originated. The trial Court reached the conclusion that there was no enmity and therefore while agreeing with it we see no reason as to why the appellants and the convicts would take upon themselves the responsibility of seizing the goats to drive them to the cattle pound. There is, however, material on record which leads to an inference that cut branches were found near about the Inspection path. In this connection, it will be of advantage to refer to the admission of Mashir Muhammad Sadik. Sattar A.I, S. H. O. And lastly Ghulam Muhammad.
Muhammad Sadik while denying the presence of cut branches was confronted with his lower Court deposition where he admitted, "Police has also shown wardat on Inspection path opposite to above wardat. There were cut branches of 4 Babul trees cut and lying on Inspection path opposite to wardat but were not about one mile to the north of the wardat." While accepting the presence of cut branches he stated that they were lying a mile to the north of the wardat. This distance was stated by Sattar A.I, S. H. O. To be about 170 paces from the wardat. Sattar A.I further admitted that the cut branches were still green and that some appeared to be grazed and the trees that were cut, were below the Inspection path but above "Jamrao Canal". Ghulam Muhammad has also deposed to the fact that some trees were found cut on the Inspection path along the Jamrao Canal and that the goats were seen grazing on them. The plausible inference, therefore, is that the fight originated because the goats were found grazing the cut branches and while the altercation was going on the goats strayed up to the ploughed land and it was there that they were seized for being taken to the cattle pound and the fight took place over there. In the context of this conclusion, we are impelled to hold that there was a sudden fight without any premeditation in which case the common object fails and each of the participants would be liable to the extent of the part established against him. Again either party could claim the right of self-defence. The learned counsel for the appellants has failed to point out to us that the appellant could seize the cattle for non-payment of compensation under the law an therefore it is not possible to accept the plea of self-defence through the purported exercise of this right cannot be ruled out but in view of our conclusion it is of no value. The trial Court while convicting appellant Ejaz A.I Shah under section 302, P. P. C. Has accepted the prosecution ' evidence as to the part assigned to him and convicted him of that offence while holding the others liable for minor offences, as according to it, the common object was not to kill any one. We are not convinced as to the part assigned to Ejaz A.I Shah and even if he and appellant Balach had pro--duced blood-stained hatchets yet there is a room for doubt as to whether it was Ejaz A.I Shah who had caused the fatal blow. Any one who was armed with a hatchet could have caused the blow and therefore his con--viction under section 302, P. P. C. Is not sustainable. He cannot also be held vicariously liable for acts of the other participants as we have repelled the existence of common object. Accordingly, he is entitled to the benefit of doubt and we would accordingly acquit him of that charge. The case of appellant Balach is also on the same footing; he has been impliedly acquitted of the murder charge and prosecution evidence has not established with any certainty that it was he who had caused the hatchet blow to Muso. We would therefore acquit him of this charge, and other he was incuriously held liable and convicted. The appeals of both the appellants are accordingly accepted. Appellant Ejaz A.I Shah should be set at liberty forthwith unless required in connection with some other case.
Appellant Balach should also be set at liberty forthwith if he has not undergone the sentence and is also not required in connection with any other case.
7. The case of the non-appealing convicts also requires consideration. Having held that there was no common object, their conviction can only be sustained if the prosecution was able to establish their individual participa--petition. There is room for doubt in their case as to whether it was one person who had caused the blows or more than one. In this view of the matter, their case also rests on the same footing and they are also entitled to benefit of doubt. We would therefore in the exercise of our revisional power set aside their conviction and acquit them. They should be set at liberty forth with if they have not undergone the sentence and rare not required in an other case.