1980 P Cr (PLP)

NOORUL ARFIN, J.‑Four brothers, .namely, Abdul Karim Haji Hamzo, Ali Nawaz and Ismail, sons of Gahi Khan Panhwar, were prosecuted under sections 302 and 323 read with section 34, P. P. C. for committing the murder of two brothers, namely, Haji Muhammad and Hussain, and having voluntarily caused hurt to P. W. Allahdino. Out of them, the Sessions Judge, Dadu, by judgment dated 8‑2‑1973 acquitted Ismail. and the remaining three brothers were convicted and sentenced to suffer imprisonment for life under section 302 read with under section 34, P. P. C., and for six months and section 323 read with section 34, P. P. C. According to the prosecution, the appellants and their brother Ismail, acquitted as aforesaid, (all four of them hereinafter referred to as the accused), the two deceased and the first informant, namely, Dur Muhammad., are cousirys inter se and jointly own land measuring sixteen "Jarebs" in Deh Makani, Taluka and District Dadu, the land being irrigated by a well situated thereon. It is alleged that at sunset time on 25‑4‑1967, the complainant, the deceased Haji Muhammad and the injured Allahdino and Mst. Basran, the sister of the two deceased, were sitting, near the well when accused Ali Nawaz came there to fetch water from the well. He was prevented from drawing water by the deceased Fuji Muha mad, who said' to Ali Nawaz that his brother, the accused Abdul Karito, was a thief, as he had stolen bullocks belonging to the com plainant party. However, Ali Nawaz did succeed in drawing water from the well and went away after giving threats to the complainant party. Shortly thereafter, the four accused turned up in strength, armed with hatchets, and started abusing the complainant party, and, upon their protest, the accused Hamzo and Ali Nawaz gave blows to deceased Haji Mohammad on his head, who‑therefore fell on the ground, and accused Abdul Karim and I mail gave hatchet blow& to Hussain and Allahdino. The four accused so received injuries during this fight. The village "abadi" is said to be situated at a distance of about 200 yards only ,from the well, and therefore, upon the cries of the contestants, some people came, but, out of fear, remained at a distance. When the fight was over, accused Abdul Karim went to the Police Station at Dadu, situated at a distance of about seven miles from the vardat, and lodged his First Information Re port (Exh. 37). The version of accused Abdul Karim in this report is that he was at the well, as also Haji Muhammad, Hussain, Sheru, Allahdino and Mutallib, when accused Abdul Karim's brother, accused Ali Nawaz and Haji Hamzo, came to the well to water their buffaloes and camel, but they were prevented from doing so by Haji Muhammad to whom accused Abdul Karim said that the well was a joint property of all the villagers and so the accused _ party had every right to use the well. However, according to this version, deceased Haji Muhammad gave blows to the cattle of the accused party and drove them away from the well, where upon g fight arose between the complainant party and the accused party, in which all participated, including Hassan son of Noor Muhammad , Mutallib, Sheru and the injured Allahdino. Accused Abdul Karim com plained that Haji Muhammad inflicted sharp side hatchet blows on his head and blunt side blows on the upper part of his right arm, and that Hussain inflicted hatchet blows on the injured Allahdino and Sheru and Mutallib "lathi" blows. According to this accused, his brothers Ali Nawaz and Haji Hamzo also received injuries and the fight was ultimately stopped by Wader o Sher Khan, Janan and other residents of the village, who had come running to the vardat. The time at which Abdul Karim lodged his First Information Report is shown as 9‑00 p. m. In Exh.

37. This report was recorded by Head Constable P. W. Muhammad Umar, who reached the vardat at about midnight and found Haji Muhammad lying dead there and Hussain lying unconscious and Allahdino lying injured. P. W. Muhammad Umar prepared the "Mashirnama". of the vardat (Exh. 12) and "Mashirnama" of the injuries found on the bodies of Haji Muhammad, Hussain and Allahdino (Exh. 14). P. W. Muhammad Umar thereafter stood guard over the, vardat and gave a letter to the complainant Dar Muhammad to be taken to the Police Station at Dadu, which the complainant accordingly did, and lodged his F. I. R. upon which the prosecution of the accused was initiated. The report, was lodged, as shown by Exh. 34 (F.I.R.) at 6.30 a m. on 26‑4‑1967. The com plainant came back with the police party from the Dadu Police Station and then the dead body of deceased Haji Muhammad was sent to the civil Hospital at Dadu by P. W. Muhammad Umar. P. W. Muhammad Umar also sent Hussain, who was still unconscious and also Allahdino to the Civil Hospital for treatment. The Police party remained at the vardat without arresting any of the accused until A. S. I., P. W. Khair Muhammad, reached the vardat between 3 and 4 p. m. The A. S. 1. took up the investigation from P. W. Muhammad Umer, and, after recording the statements of P. Ws. Mst. Basran, Muhammad Ramzan Jamal, Kadir Bux; Jan Muhammad, Fazal,: Kamal and Ibrahim, arrested the four accused. After completion of the investigation, the accused were challaned and sent up for trial before the Sessions Court,. where they were acquitted by judgment dated' 24‑7‑1968. Thereupon, complainant Dur Muhammad came in revision to this Court. The High Court took the view that tile judgment of the Sessions Court was not based on a proper appraisal of evidence, and accordingly, by judgment dated 30‑6.1972, the case was, remanded for retrial to the' Sessions Court at Dadu. At the retrial, Ismail was acquitted ‑and the remaining three accused were convicted and sentenced as aforesaid.

2. The prosecution evidence may be classified as follows :‑ (1) Ocular evidence consisting of the statements of P. Ws. Dur Muhammad (complainant), Mst. Basran, Allahdino, Jamal and' Ramzan. (2) Evidence of recoveries of a broken hatchet from accused Haji Hamzo at 7‑00 p. m. on 26th April, 1967, under "Mashirnama" Exh. 17, of a blood‑stained hatchet from Ali Nawaz under "Mashirnama" Exh. 19 and of two blood‑stained "danda;" from Ismail Under "Mashirnama"‑Exh. 25. (3) Medical evidence consisting of the deposition of Dr. Alam Kumar (Exh. 4,2) and of the post‑mortem carried out by this witness (Exh. 43) and of the report of post‑mortem on Hussain, who died on 27‑4‑1967, only one day after admission in the Civil Hospital, Dadu (Exh. 44), medical certificate, of .the injuries on Hussain before his death (Exh. 48), medical certificate with regard to the injuries on Allahdino (Exh. 81), medical certificate of he injuries on Haji $a6lzo (Exh. 46) and medical certificate of the injuries found on accused Abdul Karim (Exh. 47). (4) Evidence of "Mashirnamas", that is, "Mashirnama" of the vardat (Ex.12), "Mashirnama" prepared at the vardat of the injuries found on Hussain and Allahdino (Exh. 14), "Mashirnamas" of the arrest of the four accused (Exhs. 15, 18, 20 and 26), and "Mashirnama" of the injuries found on Haji Hamzo at the time of his arrest (Exh. 16).

3. The death of Haji Muhammad and Hussain in consequence of the injuries suffered by them during the fight between the complainant party and the accused party is not disputed, nor the fact that P. W. Allah dino suffered injuries during this quarrel. According to the medical evidence (Dr. Alam Ku alar‑Exb. 42) and the post‑mortem report (Exh. 43), the following injuries were found on the body of Haji Muhammad. (1) One incised wound 3"x 1"x 6" deep situated on left front parietal region of the skull, cutting skin, muscles, bones, blood vessels and brain substance itself. (2) One incised wound obliquely horizontally 1 " x " x " deep on left fronto‑parietal region, about one finger lateral to injury No. 1. (3) Lacerated wound on occipital region 1" x " x 3"deep cutting the bone horizontally. (4) One incised wound l ",x " x " deep over right side of parieto occipital region of skull. (5) One incised wound 2" x " x " deep vertical on right frontal region of skull. (6) One contusion horizontal _4" x 3" over right side of chest at front, 4th, 5th, 6th and 7th ribs were fractured. (7) One contusion vertical 4" x 5" over front of right side of chest and shoulder with fracture of right clavicle. (8) One horizontal contusion 4" x 1 " over front of right thigh on its middle. On internal examination pleural was found ruptured. and both cham bers of heart full of blood. According to Dr. Alam Kumar the death of Haji Muhammad was due to shock and haemorrhage due to the injuries received from hatchet, and, in his opinion, Injury No. 1 was individually sufficient to cause the death of the deceased Haji Muhammad. The medical evidence with regard to Hussain is that he suffered the following injuries:-- (1) One lacerated wound 2" x " x " deep on left parietal region of skull verticle causing fracture of skull, which on opening, revealed clotted blood. Brain was smashed and fluid blood was oozing out from it. (2) One lacerated wound horizontal over left parietal region of skull 1 " x " x " deep causing fracture of skull, clotted blood was found on opening. Brain substance was found mashed. (3) One lacerated wound 1" x 1/8" x skin deep over right parietal region of skull. (4) One incised wound 4" x 1 /2" x 3" situated on right shoulder at its front and superior surface .cutting skin, muscles, blood vessel acromial process of right scapula. (5) One abrasion on right chest 2" x " at back. On internal examination, the body of Hussain revealed that chambers of heart were full of blood and the blood vessel of the neck on the right side had been cut. In the opinion of Dr. Alam Kumar, the cause of death of Hussain was shock and haemorrhage due to the injuries on brain and blood vessels of neck and, further, injuries 1 and 4 were individually sufficient to cause the death of Hussain in the ordinary course of nature. On Allahdino the following injuries were found by Dr. Shamshad Ahtnad Khan (Exh. 50) (1) Lacerated wound/superficial 1"x l/2" x superficial left parietal region. (2) Contusion 1" diameter left parietal and temporal region.

4. It is also not disputed that, in fact, an armed fight took place between the complainant party and the accused party which resulted in the death of Haji Muhammad and Hussain and injuries‑ to P. W. Allahdino of the complainant party and Abdul Karim and Haji Hamzo of the accused party. The question is whether the evidence on record is sufficient to sustain the conviction and sentence recorded by the learned Sessions Judge against the three appellants. In this connection, it is necessary to. examine the version given by the accused. The first version from the side of the accused is that of Abdul Karim contained in his F._I. R., which was the first F. I. R. recorded at 9‑00 p.m. of 25‑4‑1.967, the date on which the incident occurred, . the second F. I. R. on which the prosecution of the accused was initiated .having been lodged only the next morning at 6‑30 a.m. by A. S. I., P. W. Altaf Hussain. The version of Abdul Karim contained in his F. I. R. has been referred to above, and, in this F. I. R. a suggestion seems to have teen made by accused Abdul Karim that Hussain took the side of the accused party against Haji Muhammad and. Allahdino. This version. bas been elaborated in the statement of accused Abdul Karim recorded in the Sessions Court under section 342 of the Criminal Procedure Code. In this statement, Abdul Karim stated that he had taken the three bullocks and one camel for watering at the well belonging to the ancestors of both the complainant party as well as the accused party, but he was prevented from doing so by deceased Haji Muhammad and Sher Muhammad, who were present then and who inflicted. injuries on the cattle and drove them away and also assaulted Abdul Karim himself, whereupon he raised cries. which attracted Hussain, who took .his side, where upon quarrel ensued between Haji Muhammad and Hussain,. latter inflicting injuries on Haji Muhammad and in turn being injured by Sher Muhammad. It was then, according to this version that Allahdino arrived to intervene between .the parties, but himself sustained injuries. This accused further stated that Haji Muhammad and Hussain were uterine brothers, that is, that they had one mother but different fathers,, and were not on good terms with each other. The defence of the other three accused, as recorded by the Sessions Court, is of total denial of the accusations made against them, and both accused Haji Hamzo and accused Ismail denied that they produced any blood stained hatchet before the Police, and. Haji Hamzo attributed the injuries found on him ‑ due to polite beating. Now, the defence taken up by Abdul Karim in his 342,_Cr.. P. C. statement is no doubt at variance with what he stated in his counter F. I. R. (Exh. 37) lodged with the Dada Police Station at 9‑00 p.m. on the day of the incident. In this F. I. R. he stated that Ali Nawaz and Haji Hamzo ,had brought cattle for watering at the well, but deceased Haji Muhammad attempted to prevent them from doing so, though he says in this report that, when this happened, he also was present and remonstrated with Haji Muhammad. But in his 342, Cr. P. C. statement, the stand taken by him is that it was he who took the buffaloes and the camel to the well. Notwithstanding this contradic tion, we are of the view that the lapses in the prosecution evidence are such that the defence version cannot . be rejected outright. It is admitted both by the complainant party and the accused. party that they are related inter se, being cousins ; that they had joint agricul tural land ; that the well was situated on this joint land ; the accused party was interfered with when they tried to water their buffaloes and camel at this well ; and this interference resulted in the fight between them. . This being the admitted position, the question arises whether Haji Muhammad and Hussain died in consequence of the injuries inflicted on them by the accused party or some other persons, who being present there or coming to the scene, intervened or attempted to intervene between the parties, or took side of one party or the other. In the first instance, we would refer to the evidence of two eye‑witnesses, Dur Muhammad (the complainant) and Mst. Basran. The latter said that she was sister of both the deceased, namely, Haji Muhammad and Hussain. As regards Dur Muhammad, we are not satisfied that he was at all an eye‑witness of the incident. He claims to have been present when the fight between the two parties took place, but he moved away to a distance out of fear without intervening between the contestants and trying to separate them, although he is cousin of all the four accused as well as of the deceased Haji Muhammad and Hussain. Further, we fail to understand why he was not prompt in lodging complaint with the police. He says that ‑he was present at the incident. He also says that, after the fight was over, Abdul Karim left the scene to lodge report with the police. But he does not explain why he also, on his part, did not at once proceed to the Police Station at Dadu which is only, at a distance of seven miles from the vardat. Instead he chose to retrain at the scene night throughout the night acid went to the Dadu‑Police Station to lodge his. F. I. R, only when asked to do so by Head . Constable Muhammad Umar, who had come to the vardat after recording the First 'formation Report of Abdul Karim. As regards Mst. Basran, she said .that both the deceased were her brothers, but‑ she was silent on the question as to whether they had different fathers and one mother. She is admittedly a married woman and lives with her husband in a different village, which is at some distance from the village inhabited by the complainant and the accused parties. It is not understandable how she left her house ant her children to be present, at the well, where all this fight took place and then without any store ado went away to her owe house the next day. She also does not explain as to why she did not intervene when her brother, the deceased Hail Muhammad, attempted to prevent the accused party from watering their buffaloes and camel at the common well. There is also contradiction in some material respects between this witness and the complainant Dur Muhammad. The latter said that when‑ he reached the common well, Mst. Basrun and Allahdiao were already there, but Mst. Basran said that she as well as Allahdino and the complainant Dur Muhammad went to the well together at about "Bipahri" time (about 2 O'clock in the noon). The fight is said to have taken place at about sunset time, but Mst. Basran has not explained why she remained at the well from noon time to sunset time. Even the cause of the fight as given out by both Dur Muhammad and Aft. Basran has to be treated with some circumspection. Both these witnesses have said that Haji Muhammad objected to the accused watering their buffaloes and camel at the well, because Abdul Karim eras, said to have stolen Haji Muhammad's cattle eight years before this incident. This is rather unsatisfactory explanation of the origin of the fight and the question arises why should Haji Muhammad have waited for eight long years to pick up a fight with the accused party and attempted to prevent them from making use of the common well. Then, in cross‑examination, Dur Muhammad has stated that Haji Muhammad had objected to the accused making use of the well, because the accused party had failed to contribute towards the expenditure incurred by Haji Muhammad and his side on the boring ‑of the well. The contradiction .between these two versions with regard to the origin of the fight has not been explained. It has to be noted that., though Abdul Karim left the vardat immediately after the fight to lode report with the Dadu Police Station, the complainant party and even Dur Muhammad, who ultimately lodged the F.

1. R. the next morning, did not do so and chose to remain at the scene of, the offence. This conduct is incomprehensive as also the complete indifference shown by the complainant party to ‑deceased Hussain and P. W. Allahdino, who are said to have become unconscious as a result of the injuries inflicted on them by the accused. Why did the complainant party, including Dur Muhammad, Mst: Basran, Jamal and 'Ramzan not rush Hussain, who had suffered very seriously, to the Hospital for the treatment? There is no answer to this question on the record of the case before us. The normal con duce expected in these circumstances is that persons receiving such serious injuries, as are said to have been suffered by‑Hussain and Allah dino; would immediately be taken to the hospital for treatment. But Hussain was allowed to lie unconscious, as also P. W; Allahdino, through out the whole night and the complainant party decided to take these two persons to the hospital only when asked to do so by Head Constable Muhammad Umar, who reached, the vardat after recording the F. I. R. Of the accused Abdul Karim. The "Mashirnma" of the vardat prepared by Head Constable Muhammad Umar, referred to above, shows incised injuries on the buffaloes and camel belonging to the accused. It is difficult to accept the explanation of the complainant .party that these injuries were inflicted by the accused themselves. If it were so, then what is the explanation of the injuries found on the accused Abdul Karim and Haji Hamzo. According to P. W. Dr. Alam Kumar, accused Abdul Karim, when examined was found to have a lacerated wound 3' x 4" x scalp deep on right parieto‑temporal region. On Hamzo, the injuries found were abraded contusion oblique curved over lateral surface of right orbit 2" x ". The injuries, both on Abdul Karim and Maji Hamzo, according to Dr. Alam Kumar, were caused by a blunt weapon. P. W. Allahdino does not seem to have suffered any serious injury. According to Dr. Kumar, he was found to have only scratches on his body. It is not even certain that he became unconscious, as Head Constable Muhammad Umar says that, when he reached the vardat, Allahdino was quite able to talk, though he complained of some pain in the head. Further, Allahdino was not admitted in the hospital, but was treated only as an outdoor patient. All the prosecution witnesses agree that, after the fight was over, the accused continued to remain at the vardat. 'There is no allegation that they had disappeared for concealing themselves. Nonetheless there is failure to explain as to why they were not arrest up to 4‑00 p. m. the next day. Specific part has been assigned by the accused to Sher Muhammad and Mutallib, both related to the contesting parties, in the fight which resulted in the death of Haji Muhammad and Hussain, but neither of these two persons has been examined by the prosecution, and this omission has not been explained, though it was necessary to do so in view of the fact that it is the case of accused Abdul Karim that Hussain inflicted fatal injuries on Haji Muhammad and Sher Muhammad in turn inflicted fatal injuries on Hussain, and there is also another suggestion in the evidence that Haji Muhammad attacked Hussain who had taken the part, of the accused, being their cousin, and Haji Mohd. was in turn attacked by Sher Muhammad. That Sher Muhammad and Mutallib were present at the fight is borne out by the admission of the complainant Dur Muhammad that these two persons were committed before the Sessions Court on the First Information Report lodged first at 9‑00 p. m. on the day of the incident by Abdul Karim. It was suggested by Mr. Usman Ghani Rashid, Assistant Advocate‑General, that the complainant party was not in a position to lodge their First Information Report and to take Hussain and Allahdino to the Civil Hospital, because there was no male adult member in their party to keep guard over the dead body of Haji Muhammad. But then the evidence is that Allahdino was quite conscious and was able to talk with Head Constable Muhammad Umar, and he is uncle of both the deceased persons and he could very well take care of the dead body of Haji Muhammad. The evidence further shows that P. Ws. Jamal and Ramzan were also present at the time of the incident, or came to the vardat shortly ‑ thereafter. Jamal, according to the complainant Dur Muhammad, is the son of the sister of the deceased Haji Muhammad, and P. W. Ramzan, according to his own admission, is the uncle of both the deceased persons. Therefore, there were three male adults on the com plainant's side, namely, P. Ws. Dur Muhammad, Jamal and Ramzan, apart from P. W. Allahdino, from amongst whom one or two persons could have gone to the Dadu Police Station which is only at a distance of seven miles from the vardat, to lodge the First Information Report on behalf of the complainant party, particularly when accused Abdul Karim had left the vardat immediately after the fight to lodge his own F. 1: R., which he did at 9‑00 p.m. on the same day, and to rush Hussain, who was critically injured in the fight, and even Allahdino, if he was still unconscious, to the Civil Hospital at Dadu immediately after the fight. The Civil Hospital was not far away and the inaction in this regard on the part of the complainant party is inexplicable. Note may here be taken of the statement of Mst. Basran that the fight which occurred between the two parties was a sudden fight. This admission should be considered in the context of the defence version that what actually happened vas that Haji Muhammad and Hussain were uterine brothers and were not on good terms with each other, and that, when Haji Muhammad attempted to prevent the accused party from watering their cattle at the common well, Hussain took the side of the accused, which annoyed Haji Muhammad, who inflicted fatal blows on Hussain and in turn was subjected to fatal blows either by Hussain him self or by Sher Muhammad. Thus, to start with, it was a fight between cousins, which ultimately turned into a fight between the two uterine brothers resulting in the death of both the brothers ; at the hands of each other, or as regards the death of Hussain at the hands of Haji Muhammad and as regards the death of Haji Muhammad, at the hands of Hussain himself or of Sher Muhammad. The possibility that this is the correct version has not been eliminated by the prosecution evidence, and, to our mind, this possibility gains substance by the conduct of the complainant party in failing to lodge their First Information Report immediately afte the fight and in not even rushing Hussain and Allahdino for treatment at the Hospital at Dadu. This being the position, it cannot be said that the guilt of the three appellants has been established beyond reasonable doubt.

5. Accordingly, the appeal of all the three appellants is accepted and the conviction and sentence recorded against them by the learned Sessions Judge of Dadu is quashed and the appellants are directed to be set at liberty forthwith unless they are wanted in some other case. Appeal allowed.