' The appellants have been convicted by Sessions Judge, Dadu for offence under section 326 read with section 34, P. P. C. And they have been sentenced to undergo R. I. For 6 years and fine of Rs, 500 or in default R. I. For one year more.
2. It is the case of the prosecution that Kazi Muhammad Anwar and Abdul Ghafoor Bhugio had some dispute over a piece of land situated near village Weji, taluka Khairpur, Nathan Shah.
Appellants Ramzan and Sahbbir were harries of Abdul Ghafoor Bhugio while decased Ali Bux and Allah Dino complainant were harries of Kazi Muhammad Anwar. The party of appellant Shabbir had asked Ali Bux not to cultivate that _land and there had been a quarrel between them in the course of which Shabbir has sustained some injuries.
3. On 14-10-1973 at about 5-30 p. m. Complainant Allah Dino was standing in the land situated about one furlong away from Chana Mosque, when he heard cries. On coming over there he found appellants Ghulam Shabbir and Ramzan giving hatchet blows to Ali Bux. P. Ws. Ali Murad Bhugio and Ramzan Memon were already there and had witnessed the incident. Ali Bux had sustained hatchet injuries on his head and other parts of his body. Ali Bux it is said informed these witnesses that Ghulam Shabbir and Ramzan had caused injuries to him. Leaving Ramzan and Ali Murad there, Ali Bux went and brought Kazi Amiruddin brother of his Zamindar Kazi Muhammad Anwar from his otak at village Weji. He also made enquiry from Ali Bux who informed him that Ghulam Shabbir and Ramzan had caused him those injuries. Ali Bux was then removed in bullock cart to Khairpur Nathan Shah Police Station where Allah Dino lodged F. I. R. At 3-00 a. m. He then took the injured to K. N. Shah dispensary where injured Ali Bux breathed his last at 7-00 a. m.
4. S. H. O. Khan Muhammad after recording the F. I. R. Went to the dispensary and held inquest regarding the dead body of Ali Bux. He then inspected the scene in the street near the mosque at Village Weji. There were spots of blood on a hedge at the scene. The S. H.
0. Examined P. Ws. Ramzan, Ali Murad and Kazi Amiruddin. On the following day i. e. 16-10:1973 accused Ghulam Shabbir and Ramzan were arrested. On 10-10-1973 as a result of interrogation appellant Shabbir produced a hatchet from the heap of straw lying at the back of his house. The hatchet had faint marks of blood. Accused Ramzan also led the S. H.
0. And the mashirs to A. G. Minor about two furlongs away and took out a hatchet concealed in reed bushes. This hatchet was blood-stained. Both the bloodstained hatchets were sent to chemical examiner who found them to be stained with human blood. Both the appellants were challaned on 31-10-1973.
5. The prosecution has examined complainant Allah Dino P. W. Murad and P. W. Kazi Amiruddin. Dr. Abdul Khaliq Medical Officer, Khairpur Nathan Shah who had examined the injured and Dr. Ghulam Mustafa Medical Officer Mahar who had performed post-mortem examination on the dead body of Ali Bux have also been examined. On the person of Ali Bux Dr. Abdul Khaliq found the following injuries
(1) Lacerated wound 1r x 1/4' x deep to scalp on right parietal region with signs of intracranial haemorrhage.
(2) Incised wound of 3/4' x X muscle deep on left forearm at upper 1/3' laterally.
(3) Swelling of 1' x 1/2' at the base of left ring finger with fracture of proximal phalanx. Injuries Nos. 1 and 3 were grievous in nature while injury No, 2 was simple. In the opinion of the Medical Officer injuries Nos. 1 and 3 appeared to have been caused by hard and blunt substance such as lathi or back side of hatchest while injury No .2 appeared to have been caused by some sharp-cutting weapon such as hatchet.
6. On post-mortem examination Dr. Ghulam Mustafa found fracture of right parietal bone; a big clot of blood was found present in right parietal and temporal lobes of the brain matter. Death was due to this injury No, as a result of intracranial haemorrhage and this injury was sufficient in the ordinary course of nature to cause death.
7. The evidence in this case consists of the oral testimony of complainant Allah Dino, P. W. Ali Murad and P. W. Kazi Amiruddin. Then there is evidence regarding oral dying declaration of deceased Ali Bux to these witnesses and the recovery of blood-stained hatchets at the instance of the two appellants on the 3rd day of the incident.
8. The ocular testimony of complainant Allah Dino does not inspire confidence. Allah Dino was standing at the time of the incident in his field which according to the evidence of Tapedar Ahsan All Shah was half a mile from the scene. According to his own evidence the place was one furlong away from the land were he was standing. It was after he had actually reached Chana Mosque in the village that he found Ghulam Shabbir and Ramzan giving hatchet blows. Allah Dino has stated that both the appellants were causing hatchet injuries with sharp side to All Bux. That Ali Murad, Ramzan and other people of the village were present at the scene before he arrived there. He then went and brought Kazi Amiruddin and to him also the injured stated that Ghulam Shabbir and Ramzan had caused him injuries. The witness has then stated that he cannot say how many injuries were caused by appellant Ramzan and how many by Ghulam Shabbir, nor could he say on what part of the body each one caused the injuries. Ali Bux received two injuries on his head and all the injuries caused to Ali Bux were with sharp side of the hatchet.
9. The medical evidence is inconsistent with this ocular evidence of complainant Allah Dino. The injury on the head according to medical evidence could be caused with a lathi or blunt side of the hatchet. There was only one injury with sharp side on the hand. The third injury being a swelling, Allah Dino, therefore, could not have been present at the time the alleged injuries were inflicted.
Allah Dino has admitted that Ali Murad was standing there before him. P. W. Ali Murad has on the other hand stated in the evidence that leaving All Bux and Ramzan in the lane near the mosque he went to the shop situated 50 paces away. He then heard tumult from the side of the mosque. On coming back he saw All Bux lying injured but he could not see the assailants. Ramzan and Allah Dino were also standing there. Ali Bux had injuries and he was bleeding. The evidence of their witnesses given in the lower Court was brought on record under section 288. In that evidence the witness had stated that the injured told him that appellants Ramzan and Shabbir had given him the injuries, but at that time these appellants were not there. Complainant Allah Dino had come at that time and he and deceased Ali Bux had narrated the story to him. In his evidence in the Sessions Court P. W. Ali Murad had said that Ali Bux had gone unconscious and in that semi- conscious state he was uttering some words like "Allah Dino", "Ghulam Ali", etc. According to evidence of Kazi Amiruddin, Ali Bux was lying injured and unconscious when he was brought there.
He advised Allah Dino to remove him to police station and lodge report.
10. Thus Allah Dino who reached the scene after Ali Murad, could not have witnessed injuries being inflicted on All Bux when even Ali Murad had not seen the blows being given. The only witness who was with Ali Bux at the time of the assault was Ramzan but he was given up by the prosecution.
Thus there is practically no eye-witness to the incident and we are left only with the alleged oral dying declaration. But considering the A nature of the injury causing fracture of the skull and compression of the brain it is doubtful if the deceased could have been in a position to speak, after receiving that injury. No such question has been asked from the medical officers. In any case the alleged oral dying declaration has been disbelieved by the trial Court.
11. Thus the only remaining piece of evidence is the alleged recovery of blood stained hatchets at the instance of the two appellants. The appellant were arrested on 16-10-1973 but it was after three days' interrogation that the appellants volunteered to point out the weapons. The evidence of mashirs regarding these recoveries is also not very satisfactory. Moreove there was only one incised injury and it could not be explained how both the hatchets got stained with blood.
12. The evidence is thus very scanty and of doubtful nature. Since the hatchet injury was found sufficient in the ordinary course of nature to caus death and the injury was caused intentionally, the offence would ordinarily fall within the definition of clause (3) to section 300, P. Pe C., and would be murder and not merely grievous hurt. But it has not been established as to who inflicted this injury on the deceased nor is there any evidence of common intention to make both the appellants constructively liable. In the result the convictions and sentences passed against both the appellants are set aside and they are acquitted of the offence. Their appeal accepted. The appellants are in custody, they may be set at liberty forthwith if not required in any other case.