Appellants Sher A.I, Rind A.I, Khan Muhammad, Basham and Pahalwan have been convicted by the learned Addition Sessions Judge, Jacobabad, under section 325/149, 323/149, and 148 P.C., vide his judgment dated 30-3-1970, and each of diem has been awarded 2 years R. I. On the first count, six months R. I. On the second count and one year R. I. On the third court the sentences to run concurrently. One Rahim who was also tried alongwith the appellants, was acquitted by the learned Additional Sessions Judge. The appellants have appealed against their convictions and sentences.
2. Appellants Rind A.I, Khan Muhammad and Basham and the acquitted accused Rahim are brothers. Appellant Sher A.I is not related to them but like them is a Banguwar by case. Appellant Pahalwan is a Sabzoi by case. He is the real brother of complainant Lutuf A.I and uncle of injured Daim. Appellant Pahalwan, complainant Lutuf A.I and injured Daim jointly own or at least at the time, of the incident, which has given rise to this case, owned some land. Appellant Pahalwan was anxious to sell his share of the, land to appellant Basham and for this purpose he wanted partition of the land, but his brother and nephew were opposed to Pahalwan selling his share to Basham on the ground that it would be an invasion of their privacy and also in contravention of their right of pre-emption. Because of this, there were strained relations between appellant Pahalwan on the one side and complainant Lutuf A.I and injured Daim on the other side. It is alleged that on the day of the incident, namely, 30-7-1968, at about sun-set time, appellants Pahalwan, accompanied by the four other appellants and acquitted-accused Rahim, went to the house of P. W. Daim and called him out, and no sooner he came out than all of them, at the instigation of appellant Pahalwan, attacked Daim with hatchets and lathis and caused several injuries to him. It is further alleged that on Daim s cries, complainant Lutuf A.I, P. W. Muhammad Bux and the latter's brother Mahboob turned up and on seeing them the appellants and the acquitted accused Rahim ran away. Early on the following morning, the complainant went to Kandhkot Police Station which is 9 miles away from the scene of offence, and lodged his report at 7-30 p.m.
3. The F. I. R. Was recorded by A. S. I. P. Shah Muhammad, who repaired to the scene of offence; which he inspected in the presence of mashirs Saman and Muhammad Ramzan. At the scene of offence, which was at a distance of about 20 pacts from the house of P. W. Daim and at almost equal distance from the house of appellant Pahalwan, he saw drops of blood and marks of struggle. The A. S.I. P. Also recorded the statements of injured Daim and P. Ws. Muhammad Bux and Mahboob and on 2-9-1968 he challaned the appellants and the acquitted accused Rahim.
4. On the same day -that the F. I. R. Was recorded in this case at Kandhkot Police Station, appellant Pahalwan had lodged a report at 9-45 a.m. At Tandwani Station against P. W. Daim and two other persons, charging them with committing theft of his sheep and of attempting to kill him by firing at him when they were discovered with the stolen property.
5. Injured Daim was examined by Dr. Muhammad Alam of Kandhkot Police Station, who has testified to having found the following injuries on his person :-
(1) One lacerated wound 3' x --' x scalp deep on the right occipito region.
(2) One abraded contusion --' x --' on the left parietal region.
(3) One contusion 3--' x --' on lower one-third of left fore-arm with fracture of the ulner bone.
(4) One contusion --' x --' on the left side front of the abdoman.
The Doctor has opined that injury No. 3 was grievous in nature and all the rest were simple and appeared to have been caused by a blunt weapon such as a lath.
6. All the appellants have denied having formed an unlawful assembly or caused any injury to P. W.
Palm. Their case is that they have been falsely implicated because appellant Pahalwan wanted to sell his share of land to appellant Basham which land was coveted by complainant Lutuf A.I.
Appellant Pahalwan has further stated that he had filed a theft case against Daim and others. No defence was led by the appellants.
7. The case against the appellants rests on the ocular testimony of injured Daim, complainant Lutuf A.I and P. W. Muhammad Bux, the medical evidence and the corroborative evidence of blood being found near the house of P. W. Daim.
8. The ocular testimony, however, is not such as to inspire any confidence. All the three eye- witnesses appear to be closely related to each other and interested witnesses. P. W. Daim is admittedly the nephew of the complainant. P. W. Muhammad Bux has brazenly tried to suppress the fact of his relationship with the complainant, but P. W. Daim has admitted that the daughter of P. W. Muhammad Bux is married to A.I Nawaz, the son of complainant Lutuf A.I. The relations between the parties were admittedly strained on account of appellant Pahalwan wanting to sell his share of land jointly held by him with the complainant and P. W. Daim to appellant Basham. In view of this dispute the possible argument that it is unlikely that the complainant, who is the real brother of appellant Pahalwan, and the other two eye-witnesses, who are closely related to him, would falsely implicate him, loses all force. There are additional reasons why the evidence of these witnesses cannot be relied upon. In the first place, if P. W. Daim had been attacked by as many as six persons, and all of them had showered laths and hatchet blows on him, as stated by these witnesses, one would have expected to have found many more than the four injuries which Dr. Muhammad Alam found on his person Secondly, according to these witnesses, including Daim, he was given blows with the sharp as well as the blunt side of hatchets, but they stand falsified by the medical opinion which is to the effect that the injuries on P. W. Daim appeared to have been caused with lathis. Thirdly, P. W. Muhammad Bux is a chance witness, who admittedly resides two miles away from the scene of offence. He has given no cogent or plausible reasons for his presence at the scene of offence at the time of incident.
Fourthly, the village of Arbab Khan is only two furlongs away from the scene of offence, as admitted by A. S. I. P. Shah Muhammad, but curiously no one from that village was examined or is said to have come upon the cries of P. W. Daim. Lastly, there is a difference of opinion among the eye- witnesses on the important point as to what weapons were sported by each appellant. Although in the trial Court. All the witnesses alleged that appellants Basham, Rind A.I and Khanoo were armed with hatchets and the rest with lathis. In his statement in the committal Court, with which he was confronted, P. W. Daim has stated that appellant Sher A.I and Rahim had hatchets.
9. The learned Additional Sessions Judge trying the case has himself disbelieved the evidence of the three eye-witnesses in respect of accused Rahim, whom he has acquitted, on the ground that P. W. Muhammad Bux had not named this accused in his statement in the committal Court, If these witnesses were not considered worthy of belief in respect of one accused there is no valid reason why their evidence should have been relied upon; in respect on the appellants, since there is no corroborative evidence to support of their testimony against them. I would accordingly set aside the convections and sentences of the appellants. The appellants are on bail. Their bail bonds stand cancelled.
10. Before parting with this judgment, I am constrained to point out that the learned Additional Sessions Judge has committed the very same mistake against which S. A. Mahmood, J. Had cautioned in Raza Muhammad and others v. The State (PLD 1965 Kar. 637) which case incidentally like the present case was tried by the Additional Sessions Judge, Jacobabad, although he was a different officer from the one who-tried the instant case, for he has not only disposed of this case and the counter-case by a single judgment, but has referred to the evidence in the counter-case without that evidence being brought on the record of this case. As in the reported case, but for the fact that I am acquitting the appellant and accepting their appeal, I would have been constrained to remand the case back to the learned Additional Sessions Judge for writing separate judgment based on the evidence which is admissible and was recorded in- the case.