DORAB PATEL, J.-The appellants Qaim and Ismail are brothers, whilst the third appellant Rahib is their cousin. All the appellants have been con--victed under section 302, P. P. C. Read with section 34, P. P. C. By an Additional Sessions Judge, Larkana and sentenced to death. They have also been convicted under section 323, P. P. C. Read with section 34, P. P. C. And section 324, P. P. C. Read with section 34, P. P. C. And sentenced to one year's R. I. Arid two years' R. I. Respectively. They have filed an appeal against these convictions and their case has also come before us for confirmation of the sentence of death passed against them by the Additional Sessions Judge. Accordingly, by this judgment we shall dispose of both the confirmation case and the appeal tiled by the appellants.
2. In view of the discrepancies in the prosecution evidence I have to point out here that, according to the F. I. R. (Exh. 8) lodged by Ghulam Kadir son of Allahdino deceased the material facts are as follows: About 8 months before the occurrence the appellant Ismail had declared P. W. Ghulam Kadir Karo with his wife. All the appellants and the said Ghulam Kadir lived in village Bathi Hakra and on 11-11-1969 at about sunset time there was a bullock cart race in the village. P. W. Ghulam Kadir had gone with his father Allahdino and P. Ws. Uris and Buxal to see this race. They had reached at about sunset time, and the appellants were already there with their friend Fakir, who was armed with a hatchet, threatened P. W. Ghulam Kadir and said he would kill him. Fakiro then attacked P. W. Ghulam Kadir. Allahdino came in front to save his son with the result that Fakiro's hatchet blow struck Allahdino on the shoulder, but Allahdino was also armed with a hatchet and he hit Fakiro in self-defence. On this, the appellant Qaim gave Allahdino a hatchet blow so that Allahdino fell down. P. W. Ghulam Kadir and others raised an alarm, and meanwhile, the appellant Ismail, who was also armed with a hatchet, gave another hatchet blow to Allahdino ran his arm. P.
Ws, Uris, Muhammad Azim, Buxal and A.I Bux intervened to rescue Allahdino and P. W. Ghulam Kadir, but the appellant Rahim gave a hatchet blow to P. W. A.I Bux and knocked him down. The appellant Ismail then gave a hatchet blow to P. W, Muhammad Azim, whilst the appellant Rahib gave a hatchet blow to P. W. Uris. Then the appellants and Fakiro, the deceased accused, ran away.
Although Allahdino was bleeding heavily on account of his wounds, P. W. Ghulam Kadir went and lodged the F. I. R. (Exh. 8) at Police Station Miro Khan. The F. I. R. Was recorded by Gaman Khan, A. S. I.
P. Who, after recording the F. I. R. Accompanied P. W. Ghulam Kadir to his father's house in village Bathi Hakra. As Allahdino had died, P. W. Gaman Khan, A. S. I. Had his body forwarded to the hospital for a post-mortem report. He then went to the house of Fakiro and as he found him badly injured, he sent him (Fakiro) to the Kamdar Dispensary for treatment. He secured (vide mashir--nama Exh.
17) a blood-stained hatchet which was lying beside the accused. The next morning he visited the wardat and recovered some blood-stained earth. Then, as the S. H. O. P. W. Sarwar Beg had returned, he handed over the investigation to him. P. W. Sarwar Beg recorded the section 161, Cr. P.
C. Statements of the eye-witnesses of the occurrence. H. C. Shahab--uddin then produced before him the appellant Qaim. This appellant had a blood-stained hatchet with him and also had injuries on his person and like--wise his clothes were stained with blood. Accordingly, in the presence of mashirs. P. W. Sarwar Beg secured blood-stained hatchet and clothes (vide the mashirnama Exh.
13). The next day he interrogated and arrested the appellants Rahib and Ismail who voluntarily produced blood-stained hatchets from their houses. He accordingly secured the said hatchets. In due course all the articles recovered were sent to a Chemical Analyser for a report, and according to the report of the Chemical Analyser (Exh. 24) the hatchets as well as the blood-stained clothes were stained with human blood. After com--pleting investigations the appellants and Fakiro were committed for trial to the Sessions Court. But Fakiro died before the trial began.
3. In support of its case the prosecution examined P. W. Ghulam Kadir, who was an eye-witness. It also examined as eye-witnesses of the occurrence P. Ws. Muhammad Azim and Buxal and A.I Bux, and as Uris had died before the Sessions trial began, his statement in the lower Court was duly brought on the record. The prosecution also examined the investigation officers as well as the mashirs of the blood-stained articles recovered from the appellants. Finally, it is sufficient to state here that the prosecution examin--ed Dr. Nisar Ahmed. This witness had carried out the post- mortem of the deceased, and had also examined all the persons injured in the occurrence on 11-11- 1969. Accordingly, he gave evidence not only about the injuries to Allahdino deceased and to Uris deceased but also about the injuries to P. Ws. Muhammad Azim and A.I Bux and about the injuries to the deceased accus--ed Fakiro and to the appellant Qaim.
4. The appellants did not produce any evidence in their defence but they denied all the allegations of the prosecution and it is necessary to observe that they denied the alleged motive for the occurrence, namely, the illicit liaison between P. W. Ghulam Kadir and the wife of the appellant Ismail. Further, their case was that only the appellant Qaim and Fakiro were at the bullock cart race at the time of the occurrence and not the other appellants, and further according to all the appellants, P. W. Ghulam Kadir, who was a bad character and had quarrelled with Qaim, was also present with his party at the race. Then suddenly a fight started "over betting of bullocks between Fakira, Ghulam Kadir-and Allahdino" in the course of which Fakiro hit Allahdino in self-defence and a fight followed between Qaim arid Fakiro on the one side and the party of the complainant on the other side. As Qaim and Fakiro were also injured. Qaim had lodged an F. I. R. But he stated that its contents had not been correctly recorded. He also admitted that in this fight as he had a hatchet he might have injured someone.
5. The learned Additional Sessions Judge was very highly impressed by the evidence of the eyewitnesses, namely, Ghulam Kadir, A.I Bux, Buxal and Muhammad Azim. He accepted their version of the occurrence and be--lieved their evidence that the motive for the crime as the suspicion of the appellant Qaim about P. W. Ghulam Kadir's relationship with his wife. He also held that the ocular evidence was corroborated by the recovery of the blood-stained hatchets from the appellants and by the recovery of the blood--stained shirt and loin cloth of the appellant Qaim, and he disbelieved the plea of the appellants that the occurrence had arisen out of a sudden dispute at the race course. But in coming to this conclusion he relied on the fact that the counter case filed by the appellants had ended unsuccessfully. Accordingly, he convicted the appellants, as stated, and the question is whether the' Convictions of the appellants are according to law.
6. Mr. Khalid Isbaque admitted that the counter case filed by the appellants against P. Ws. Ghulam Kadir, Muhammad Azim and A.I Bux bad ended in their acquittal, but he submitted that the learned Additional Sessions Judge had erred in treating this as a circumstance to support the conviction of the appellants. Mr. Khalid Ishauqe's submission is correct. However, as the learned Additional Sessions Judge was also impressed by the evidence produced by the prosecution, It is necessary to examine it.
7. I have observed earlier that Dr. Nisar Ahmed has given evidence not only about the death of Allahdino deceased but also about the injuries both to the party of the appellants and the party of the complainant, and I can--not help observing here that Dr. Nisar Ahmed's evidence is hardly consistent with the prosecution case that, the appellants and Fakiro deceased had made a premeditated attack on Allahdino deceased and his party. Additionally, although the appellants did not deny the death of Allahdino deceased in the course of the occurrence, it is clear from Dr. Nisar Ahmed's evidence that. Allahdino's death had been caused only by one injury an incised wound on the neck. As the deceased had only one fatal injury, and in view of the injuries to the party of the appellants, the obvious question which arises for consideration is whether the prosecution has proved its case against the appellants under section 34, P. P. C. Perhaps, in order to overcome this difficulty, P. W. Ghulam Kadir had stated that about 8 months before the occurrence the appellant Ismail bad declared him "Kayo with his wife" Then in his evidence P. W.
Ghulam Kadir said that the, appellant Ismail had suspected him of illicit intimacy with his wife about four or five months before the occurrence. But he was compelled to admit in cross- examination: "It is fact that before the present incident accused Qaim had inflicted me injuries, and I also inflicted injuries to Qaim, and through intervention of Abdullah the matter was patched up. It is not a fact that Abdullah had brought compromise between me and the accused in connection with my alleged illicit terms with Mst. Khatoon. I had not informed Abdullah that I was suspected by the accused to be in terms of illicit intimacy with Mst. Khatoon, the wife of accused Ismail. It is true that P. W. Muhammad Azim has said that the question of the suspicions of the appellant Ismail about p. W. Ghulam Kadir bad been brought to the notice of Abdullah. But it view of Ghulam Kadir's own reluctant admissions in cross-examination, it is clear that P. W. Muhammad Azim gave false evidence. But if disputes between Ghulam Kadir and the appellant Qaim had been referred for com--promise to the Nekmard Abdullah and yet P. W. Ghulam Kadir had not raised the question of the appellant's suspicions, it is very difficult to believe his allegation that the motive of the crime was the suspicion entertained by the appellant Ismail against him. Additionally, according to all the eye--witnesses, it was Fakiro the deceased accused who had started the fight which ended with Allahdino's death. But Fakiro was only a friend of the appellants. If there had been any truth in P. W.
Ghulam Kadir's allegations, would not the appellants have attacked him? Yet even, according to the prosecution evidence, not only was the fight not commenced by the appellants but stranger still, according to all the prosecution witnesses, after one abortive attempt, the appellants did not even attempt to attack P. W. Ghulam Kadir. It is also significant that, although the Nekmard Abdullah was a mashir of the articles recovered, he was not examined by tie prosecu--petition nor was any independent witness examined from the village to support this plea of alleged intimacy between P. W. Ghulam Kadir and the appel--lant's wife. In all the circumstances discussed, I am satisfied that this was a false plea put up by the prosecution in order to bring the case within the ambit of section 34, P. P. C.
8. I now turn to the ocular evidence which had very greatly impressed the learned Additional Sessions Judge. Mr. Khalid Ishaque referred us to the many inconsistencies in the depositions of the eye-witnesses which had been ignored by the learned Additional Sessions Judge and I would only refer here to the major discrepancies. Thus, according to all the eye--witnesses, Allahdino deceased had been hit three times by a hatchet and the first blow, which was struck by Fakiro, was with the blunt side of his hatchet However, according to Dr. Nisar Ahmed's evidence, Allahdino deceased had only two incised wounds caused by a weapon such as a hatchet and no other injury. Again, P. W. Ghulam Kadir had not specified in the F. I. R. That Fakiro had attacked his father with the blunt side of a hatchet, and, on the other hand, he had merely stated that on being hit by Fakiro, Allahdino deceased had given Fakiro a hatchet blow on the shoulder. But, according to the evidence of the witnesses in the Sessions Court, Allahdino deceased had delivered two or three blows with the sharp side of his hatchet to Fakiro. Now, as Dr. Nisar Ahmed's evidence establishes that Fakiro the deceased accused also had three incised wounds, it is clear that the pro--secution witnesses had altered their evidence with an eye to the medical evidence. Similarly, they all said in the Sessions Court that after Allahdino had fallen down his hatchet had struck the appellant Qaim on his foot. Even P. W. Ghulam Kadir has said this in evidence, although he did not say so in his F.I. R and it is obvious that this discrepancy was also with reference to Dr. Nisar Ahmed's evidence. In these circumstances, I agree with Mr. Khalid Ishaque that the euologies paid by the learned Additional Sessions Judge to the prosecution witnesses were not justified. However, even if we accept as true the prosecution version of the occurrence, the question is whether it is sufficient to spell out an offence.
9. In view of P. W. Ghulam Kadir's admission in cross-examination, which I have quoted, it is clear that this witness was inimical to the appel--lant Qaim. However, all that he said was that the deceased accused Fakiro had threatened to kill him and rushed at him with a hatchet, that he had taken shelter behind his father who was therefore hit by Fakiro's hatchet blow on his shoulder. P. W.
Ghulam Kadir further said: "My father Allahdino at the time of the present incident vas armed with hatchet and he inflicted two or three hatchet blows with sharp side of hatchet to deceased-accused Fakiro as the result of which deceased-accused Fakiro received injuries on his body and Fakiro fell down on the ground.
Accused Qaim present in the Court inflicted hatchet blow with sharp side of hatchet to my father Allahdino on his neck as the result of which my father Allahdino received injury in his neck with sharp side of hatchet and ha fell down on the ground. When my father Allahdino was lying on the ground accused Ismail came there and inflicted him injury with sharp side of hatchet on his arm as the result of which my father Allahdino received injury. I had raised cries and alarm at the time of the present incident and Uris, Muhammad Azim, A.I Bux and Buxal came there and they tried to intervene. Accused Rahib inflicted blows with hatchet to Uris on his head as the result of which Uris received injuries but I cannot say as to whether this Uris was inflicted injuries with sharp side or with blunt: side of hatchet. Uris on receiving injuries fell down on the ground at the wardat of this crime.
Accused Ismail inflicted blows to Muhammad Azeem on his lead with hatchet as the result of which Muhammad Azeem received injuries. He was inflicted injuries with blunt side of hatchet. Accused Rabib also inflicted blow with sharp side of hatchet to A.I Bux on his back as the result of which A.I Bux received injury. A.I Bux on receiving injuries fell down on the ground."
I may observe here that there are no material discrepancies between this description of the occurrence and the description of the occurrence given by the other witnesses in the Sessions Court, therefore I would pause here to examine whether this evidence is sufficient to make out any case under section 302, P. P C. Against any of the appellants, and I would first examine the case of the appellant Qaim.
10. As the prosecution evidence about the motive for the crime was false, the prosecution has failed to show that the death of Allahdino deceased was in pursuance of any common intention amongst the appellants and Fakiro deceased. Therefore, at the highest, all that the prosecution evidence can establish is that Fakiro, the deceased accused, attacked Allahdino. But how can the appellants be responsible for this attack? The result of the false evidence about motive given by the prosecution is that the cause of the fight between the two deceased, namely Allahdino deceased, and Fakiro the deceased-accused, is unknown. It is also not necessary to examine this question further because Mr. Murtaza Hussain also conceded that the evidence only indicated that a sudden fight had taken place at the race course for causes that were not known. This being so, the position is that even if Fakiro attacked Allahdino, Allahdino had to retaliate a reasonable manner. Now, as I have pointed out, in their evidence in the Sessions Court all the eye-witnesses have said that Fakiro had attacked Allahdino with the blunt side of his hatchet but that Allahdino had inflicted two or three blows on Fakiro with the sharp side of his hatchet. Here the evidence of Dr. Nisar Ahmed becomes very relevant. It shows that Fakiro had one incised wound on his right forearm and two incised wounds on his right parietal bone. This means that Allahdino deceased had twice hit Fakiro deceased on the head with the sharp side of a hatchet. Apart from the fact that Allahdin was thus going even beyond the principle of an eye for an eye and a tooth for a tooth, it is clear that he had attacked Fakiro in a manner likely to endanger his life. Therefore, can it be said that in coming to his rescue his friends, namely the appellants, had acted cruelly or in an unjustifiable manner so as to exceed the right of self-defence? It is true that, according to all the eye-witnesses, the hatchet blow received on his neck by Allahdino had been inflicted by Qaim and not by Fakiro the deceased accused. But Qaim has not been questioned by the Court on this precise allegation, and Mr. Khalid Ishaque submitted that in attributing this blow to the appellant Qaim, the prosecution witnesses had given false evidence, and in support of this argument, he relied on the fact that P. W. Ghulam Kadir had merely said in the F. I. R. That the appellant Qaim had struck his father "on his side". It is however not necessary to decide this argument because even if the prosecution evidence is accepted, it is not sufficient to spell out the ingredients of an offence under section 302, P. P. C. As Allahdino deceased had made a most vicious attack on Fakiro, an attack likely to endanger Fakiro's life, in my humble opinion, Qaim had not exceeded the right of self-defence in going to Fakiro's rescue by hitting Allahdino on his neck.
11. I now turn to the case of the other appellants. Even on the foot--ing that the description of the occurrence by the prosecution is fit to be accepted, I have held that Qaim had hit Allahdino in order to save Fakiro, and that after a sudden fight between the two deceased had begun. In these circumstances it cannot possibly be contended that this blow was inflicted in pursuance of a common intention between him and the other appellants. But as, according to Dr. Nisar Ahmed's evidence it was only this blow which was fatal, it is clear that the charge under section 302, P. P. C.
Against the other appellants must fail. Can the other convictions then be sustained? The answer turns again on Dr. Nisar Ahmed's evidence. Both the learned counsel took us through that evidence, and apart from the fatal blow to Allahdino on his neck, Allahdino had one incised wound 1--' x --' muscle deep on his left forearm. Muhammad Uris had the following injuries
(1) One lacerated wound --" x --' muscle deep on the top of skull.
(2) One lacerated wound -- x --' x muscle deep over lateral side of left knee joint.
(3) One abrasion --" x --' on the bridge of nose.
(4) One incised wound 1' x -- x muscle deep on the inner side of right thumb.
Muhammad Azim had the following injuries
(1) One contused wound -- x -- with swelling on the right parietal wound, running on theright parietal wound, running obliquely.
(2) Two parallel abrasions --' x --' on the left side of neck. A.I Bux had the following injuries.
(1) One incised wound 6' x 1' x muscle deep on the back near the left scapula starting from the nape of neck towards the medial border of the left scapula.
Thus all the injuries to P. Ws. Muhammad Azim and A.I Bux and to Uris were simple injuries, and according to Dr. Nisar Ahmed, injury No. 4 to Uris could have been self-inflicted. As against this, Fakiro, as I have point--ed out, had three incised wounds and in addition he had one lacerated wound on the right parietal bone 1--' x --" x scalp deep and a contused wound on his left forearm.
Similarly, the appellant Qaim had a contused wound on the occipit and an incised wound on the right foot. It was in order to explain away this injury to Qaim's right foot that the witnesses had said in their evidence that as Allahdino fell down, his hatchet fell on Qaim's foot: This plea is difficult to believe and as none of the witnesses had advanced it either in their section 161, Cr. P. C. Statements or in their statements in the lower Court, it is an after-thought which cannot be believed.
12. In the circumstances discussed, excluding the injuries to Allahdin deceased, it is clear from the medical evidence that the injuries inflicted by she party of the appellants were proportionate to the injuries received by them, and further except for the injuries to Allahdino deceased, the injuries inflicted by the appellants were minor and such as are inevitable in a fret fight between groups of persons. However, according to all the prosecution witnesses, the appellant Ismail had given a hatchet blow to Allahdino deceased after he had fallen down and if this allegation be true, it would not be open to Ismail to raise the plea of self-defence. Unfortunately no question was put to him with regard to this allegation. Again according to P. Ws. Alibux and Bakhshal. Ismail had hit Allahdino on his back whilst according to Y. Ws. Ghulam Kadir and Muhammad Azim, he had hit Allahdino on his arm. Apart from this discrepancy, there is another circumstance which makes the prosecution version of the occurrence extremely improbable. Dr. Nisar Ahmed's evidence proves beyond doubt that Allahdino deceased had received only two hatchet blows. But according to all the prosecution eye-witnesses, the fight had begun with the unprovoked hatchet blow inflict--ed by Fakiro deceased on Allahdino deceased. Now, as according to all these witnesses, Qaim had given Allahdino deceased the hatchet blow on the neck, if the prosecution evidence against Ismail is believed, it is clear that the prosecution evidence against Fakiro, the deceased-accused, is false, because Allahdino had received only two hatchet blows. Again, according to all the prosecution witnesses, although Fakiro had started the fight with his hatchet blow, he had thereafter turned the other cheek and received a succession of hatchet blows from Allahdino. I find it impossible to believe that Fakiro, who was a much younger man than Allahdino, did not hit back, specially as he is alleged to have started the fight. Yet that is an essential part of prosecution case. Therefore the prosecution version of the occur--rence is extremely improbable and it is also inconsistent with the medical evidence. I agree with Mr. Ishaque that it is not fit to be believed and the Sessions Court grossly erred in relying on it.
13. It is true that the Sessions Court has also relied on the evidence of the recovery of blood-stained hatchets and clothes from the appellants. But I have held that there was a sudden and un- premeditated fight between the two deceased and even though the appellants took part in this fight after it had begun, this was in the exercise of their right of self-defence, therefore, as rightly submitted by Mr. Murtaza Hussain, the only question in the case was whether the appellants had exceeded their right of self-defence. The evidence of the articles recovered is of no relevance to this question, and further, on the evidence. I am satisfied that none of the appellants had acted in a cruel or unreasonable manner. This means they have been wrongly con--victed. I therefore allow their appeal and direct the release of the appellants forthwith unless they are required on any other charge.