AGHA ALI HYDER, J.--The appellants were convicted by the learned Sessions Judge, Nawabshah, for offences under sections 302/149, 148, 324/149 and 323/149, P. P. C., and sentenced as follows:- Under section 302/149, P. P. C....Transportation for life.
Under section 148, P. P. C------------.2 years R. I.
Under section 324/ 149, P. P. C....6 months' R. I.
Under section 323/149, P. P. C. ...6 months' R. I.
All the sentences were to run concurrently. Aggrieved by the judgment of conviction and sentence, they have come in appeal.
2. The prosecution story is that sometime before the incident, the appellant Sabu had asked for the hands of Mst. Amirzadi, the daughter of Abdul Hamid. The latter had spurned the proposal to the great chagrin of Sabu. On the evening of the 23rd January 1970, at about the sunset time, on the instigation of the appellant Sabu, the remaining appellants are said to have made a short work of Abdul Hamid and caused injuries to his two sons by the names of Arbab and A.I Asghar. Abdul Hakim, the nephew of Abdul Hamid professes to have been present at time of the incident, but remained unhurt, though the butt of his gun came to be broken in the melee. Leaving A.I Asghar and Arbab in their house which was not far away from the wardat, Abdul Hakim had proceeded to the Tharusbah village and broken the news of the happenings to his cousin Ghulam Qadir. From there he had proceeded to the police station and lodged the First Information Report of the incident at about 10 p.m. The S. H. O. Abdul Khalique, after examining Ghulam Qadir, proceeded to the wardat and found the dead body of Abdul Hamid lying there. Sabu and Nabo are stated to have been present there and came to be arrested. The clothes of Sabu were blood-stained and came to be secured. A revolver was also secured from the person of Sabu which came to be sealed at the spot. Nabo was having a blood-stained hatchet which also came to be secured.
Nabo had also produced a gun with a broken butt. There was an empty cartridge inside the barrel.
Thereafter the S. H. O. Prepared mashirnamas in regard to the injuries of A.I Asghar and Arbab and examined A.I Asghar. Arbab could not be examined because he was not in his senses. The next morning he proceeded to the wardat, secured the blood-stained earth and prepared a mashirnama thereof. The appellant Ilyas was arrested and a hatchet was secured from his house but the same appeared to be washed. A little later Jano was arrested. Enquiries were made from Arbab at the Bhiria Dispensary on 28-1-1970. Mitho, Ghulam Hussain and Dhani Bux were arrested on 4-2-1970 and after due investigation, the charge-sheets against them came to be filed in the Court of the learned Civil Judge & F. C. M., Naushahro Feroze.
3. The appellant Sabu, in his statement at the Court of Enquiry as well at the trial denied all the allegations made against him. However, after all these denials, he produced an attested copy of the direct complaint filed by him which was against 7 persons out of whom 6 were specified for offences under sections 307/149, 148 and 147, P. P. C.
4. Dr. Sikandar A.I had held the autopsy and found the following injuries on the person of Abdul Hamid deceased:- External injuries:
(1) Vertical incised wound 5--' x 2--' x skull cavity deep over the frontal region fracturing the frontal bone and the brain matter was protrud--ing out of the injury.
(2) Contused wound oblique 4--' x --' x --' with swelling over the right side of the forehead.
(3) Oblique incised wound 6' x 2' x shoulder deep over the right shoulder Butting the whole shoulder.
(4) Oblique incised wound 6' x 3' x 2" along the right axilla.
(5) Contused wound oblique 2--' x 2' x skull cavity deep over the middle of the occipital region.
(6) Liniat transverse incised wound over the back 4-- ' x 1/5' x 1/10' in between both the scapulas.
(7) Vertical incised wound 5' x 2' x 1-- at the root of the neck over the left side.
(8) Two vertical contusions of brown colour 5' x 1' parallel to each other along the medial border of right scapula.
(9) Oblique incised wound 1-- ' x --' x --" over the mid of right pina.
On the internal examination, the frontal region of the skull was found to have been fractured at the right front temporal and the occipital region, and all the brain membranes were cut along with the brain matter at the frontal lobe. The Medical Officer was of the opinion that these injuries had been caused by a sharp-cutting weapon such as hatchet and blunt substance such as 'lathi', and were ante-mortem in nature. He further deposed that the death had occurred as a result of severe haemorrhage and shock due to these injuries which were collectively sufficient in the ordinary course of nature to cause death.
4. The injuries on the person of A.I Asghar as found by Dr. M. M. Hasan, were as under:--
(1) Incised would 4--' x 2' x 1/8' deep on the back of the left shoulder and above the left scapula.
(2) Contused abrasion 1/3'x 1/3' and another one smaller than pea-- sized and in front of wrist joint.
(3) Abrasion 1/2' x 1/3' with contusion around on in front of the left thigh upper third.
(4) 1/3"x 1/3' superficial skin was detached from the palm of the right hand.
(5) Pea-sized abrasion on in front of the left ankle joint.
According to the Medical Officer all the injuries were simple in nature. The same Medical Officer bad examined Arbab and found the following injuries on his person:
(1) Incised wound 4--' x 1--' x scapular deep with cutting the upper border of right scapula medial to downwards and lateral wards direction.
(2) Incised wound 4" x 1--' x --' deep on the back of the right deltoid above downwards.
(3) Contusion 9-- ' x --' on the left scapula above downwards.
(4) Contusion 5-- ' x --" on the right shoulder and back.
(5) Contusion 4" x --' on the right scapula.
(6) Contused wound 1-1/8"x --' scalp deep with swelling on left parietal region with swelling antero posterior direction.
(7) Abrasion 2--' x --' on posterior aspect of left forearm at the middle third with suspected fracture of left ulna at the lower third and swelling.
The injuries, according to him, were simple in nature.
5. The eye-witness account has been finished by Abdul Hakim, Arbab and A.I Asghar. The last two are the sons of the deceased and also had injuries on their person, as referred to earlier. It will therefore be in the fitness of things to examine their versions first.
6. Arbab has stated that on the evening of the incident, he, A.I Asghar and Abdul Hakim were standing on the street in front of their 'otaq'. A mosque was nearby. They had heard some cries coming from the southern side and had proceeded in that direction. When they had reached there, Sabu had warned them to keep away and that they would not spare their father. Nabo, Jano and Ilyas had hatchets while Ghulam Hussain, Mitho and Dhani Bux had `lathis'. Sabu was armed with a pistol. He has very clearly stated that he did not see his father at all at that time. Ghulam Hussain, Mitho and Ilyas had assaulted him and he fell down. A.I Asghar was attacked by Nabo and Dhano and he also lay prostate on the ground. He then ran away to his house where he lost his consciousness, regaining it later on in the hospital where he was examined. He had however, stated at the Court of Enquiry duly brought on the record, that he had been given injuries by Nabo, Jano and Ilyas. He denied, but had also deposed at the Court of Enquiry, that Abdul Hakim after firing from his gun had thrown the empty shell at the wardat. It was also admitted by him that 'Sur' grass was to be found on the Kachcha side five miles away from the wardat, and any body going from that side to the village of the appellants would pass through their village (the witnesses').
7. A.I Asghar makes out the presence of one Mohammad A.I also at the time of the incident.
According to him, Mohammad A.I was standing with them at the street when the cries were heard.
He states that Sabu had a pistol, Jano, Nabo and Ryas had hatchets and the rest were armed with 'lathis'. He went on to say that on the instigation of Sabu, the other appellants had given injuries to him. In the context it is placed patently he meant Abdul Hakim. However, throughout his statement he has not cared to let drop a word in regard to his father, either dead or alive. Abdul Hakim had fired in the air whereupon Jano had caught hold of his gun and in the struggle the butt of the gun was broken, All the three of them had run away to their village and did not break a word of the incident to any of their relatives including his 4 uncles. Abdul Hakim had then gone to the police station and he was referred to the hospital. He then furnishes the motive which was that Sabu wanted to marry his sister but the proposal had been rejected by his father. His version at the Court of Enquiry duly brought on the record, was that Arbab had been given injuries by Ilyas and Mitho, and that the appellants had raised slogans and fired in the air till about the mid-night when the police had arrived. He has also admitted that he was an accused in the counter-case filed by Sabu.
8. Abdul Hakim, who had lodged the report, has stated that on hearing the cries of his uncle Abdul Hamid, he along with his cousins had gone that side and seen the appellants Nos. 2 to 7 giving blows to him on the instigation of Sabu. On seeing them, Sabu had asked them to keep away as they wanted to do away with Abdul Hamid Sabu then fired in the air saying that they would not spare Abdul Hamid, as the latter had refused to give his daughter in marriage to him (Sabu). He (the witness) had then fired from his gun in the air. Jano tried to snatch away the gun from him and in the struggle the butt of the gun was broken. Nabo and Dhano gave hatchet blows to A.I Asghar while Arbab was given injuries by Mitho and Ilyas. At that time 4 camels loaded with 'kahn' grass were standing at the wardat. Seeing Abdul Hamid dead, out of fear, he and his cousin had run away. He had then broken the news to Ghulam Qadir and from there proceeded to the police station where he had lodged the report. The incident, according to him, had taken place at about the sunset time, but he had no difficulty in fixing up the identity of the appellants because there was sufficient light.
9. On his own showing, there were 50 houses in his village, but no body had turned up at the wardat in their presence. The village Golachi was only 200 paces away from the wardat and contained 100 houses. The appellants lived about 1000 paces away from the wardat in village Gajra which had 30 to 40 houses. According to him, the camels belonged to the appellants, which Ni ere being taken from the kachcha side to their village and the appellants at that time had sickles in their hands. He has stated in categorical terms that when he had reached the wardat he bad found Abdul Hamid lying dead. It was further admitted by him that there was a dispute between Abdul Hamid and a retired Major of the Army over land, and there were a number of cases in-between the two parties.
In one of these proceedings, Abdul Hamid was absconding. He also admitted that Abdul Hamid was challaned for the murder of one Galo 5/6 years earlier. He has also stated that while he was still in the village, before proceeding to Tharushah for lodging the report, he had beard 20 gunshots fired by the appellants who were raising slogans, and when he returned from the police station accompanied by the policemen, Sabu and Nabo were still there with their camels. Sabu and Nabo had picked up 20 empty shells and produced them before the police, but the police had secured only one empty shell and asked them to throw away the rest. The witness also deposed that the clothes of Sabu were neither blood-smeared nor any blood-stained clothes had been secured by the police.
10. It is thus clearly made out that Arbab and All Asghar have not a Word to speak about the murder of their father Abdul Hamid, anti even Abdul Hakim stopped short by saying that he had only found the dead body of Abdul Hamid lying there. Since all the three of the witnesses had left together from their village which is at a stone's throw from the wardat, the reticence of A.I Asghar and Arbab who have injuries on their persons makes the version of Abdul Hakim extremely suspect.
Even he had no details to offer.
11. Abdul Hakim's evidence also shows that the appellants had camels loaded with grass, and had sickles in their hands. It is alleged that Sabu was nursing a grudge against Abdul Hamid, as his proposal for marriage had been turned down by the latter, but there is nothing to show on the record, that any untoward incident had occurred earlier. Besides, this was the normal route for the return of the appellants to their village from the Kachcha side. Certainly, any concerted or planned attempt on the life of Abdul Hamid is not even remotely discernable. In the circumstances of the case, at any rate, it cannot be said that A.I Asghar, Arbab or even Abdul Hakim were witnesses of this incident. The parties are admittedly related to each other may be it was the blood-ties, may be it was the fear of the counter-case, but the witnesses have succeeded in making confusion worse confounded.
12. However, Subu in his statement at the trial, when asked as to whether he had to say anything else, himself produced an attested copy of the direct complaint filed by him, which went on to say that while he, Jano, Ilyas and Nabo were returning to the village, with their camels loaded with "Sur" grass, they had been waylaid by A.I Asghar, Abdul Hamid, Arbab, Abdul Hakim and one unidentified person. People had arrived and during the melee, Abdul Hamid had met his death at the hands of his own com--panions. He had then gone along with some of his companions to the police station and narrated the events the police had however involved him and his relation in the case.
13. This admission of Sabu will not bind any of the appellants though it can be used against him, whatever it is worth. However, this being the only version, in regard to the death of Abdul Hamid, it has to be accepted in its entirety. Viewed that way, it only shows, that tine injuries had not been caused by him or his party men at all and that they themselves were attacked by the other side.
Apparently the earlier part of it is not only stained but dishonest, but due effect has got to be given to it.
14. Abdul Hakim, A.I Asghar and Arbab have however given details about the injuries sustained by the tatter two and also named the persons responsible for the same. But their versions were shifting from time to time and were in conflict with each other. The fact also remains that Abdul Hakim had a gun with himself and also states to have fined from it, though only to scare away the appellants. It also clearly appears that there is a complete absence of any pre concert or pre- arrangement on the part of the other side whatever their number. In this very context, it might be mentioned that the only confirmatory circumstances are against Sabu and Nabu Sabu is stated by P.W. Allah Rakhio who bails from Tharushah and the S. H.O. To have been putting on blood- smeared clothes, but Abdul Hakim contradicts them, though he was very much with the police at the time of the arrest. Nabo is alleged to have been at the wardat with a blood-stained hatchet.
Abdul Hakim's version is different, and he does not say that it was blood-stained. The hatchet recovered from the house of Ilyas, admittedly was without any blood. The question arises as to why these two appellants should have remained glued to the wardat for hours at a stretch, awaiting the arrival of the police, and supremely indifferent to the threat to their lives at the hands of the relations of the deceased who were living at a stone's throw.
15. It would also appear that on the showing of the witnesses the appellants were going with the camels laden with grass. They had taken sickles with themselves. The route taken by them was the normal route to take. The incident was near the village of the deceased. Apparently some thing happened but it is any body's guess as to how the events took this ugly turn. The witnesses examined, because of their shoddy performance, inspire no confidence. Not a single witness has been examined from any of the villages, though some of the appellants are stated to have remained at the wardat till about 10 p.m. It passes comprehension as to why the dead body remained unattended.
16. After anxious consideration, I have therefore reached the conclu--sion, that the case against the appellants has not been proved beyond reasonable doubt. The benefit thereof must therefore accrue in their favour not as a matter of grace, but of right.
17. I will, therefore, set aside their conviction and sentence and allow their appeal. They are in custody and will be released forthwith unless wanted in connection with some other case.
I. MAHMOOD, J.-I agree.