P L D 1965 (W (PLP)

Under section 147, P. P. C. have also been given 6 months' R. I. Appellant No. 8, Shah Jamal son of Ramani, Jakhrani, has been convicted‑ Under section 304, P. P. C. and sentenced to 5 years' R. I.; Under section 323/149, P. P. C. and sentenced to 6 month' R. I.; and Under section 147, P. P. C. and sentenced to 6 months' R. I. Appellant No. 9, Bhagoo son of Noor Muhammad, Jakhrani, has been convicted‑ Under section 323/149, P. P. C. and sentenced to 6 months' R. I.; and Under section 147, P. P. C. and sentenced also to 6 months' R. I. All the sentences to run concurrently. They have also appealed from these convictions and sentences,

2. The case for the prosecution is that there has been a dispute over some survey numbers of agricultural land between the complainant Shah Murad and his sons on the one hand, and the accused party on the other. These survey numbers are situated in deh Jaindero Jagir, tapo Jacobabad, taluka and district Jacobabad. On the morning of the 27th May 1960, complainant Shah Murad (P. W. 1) with his two sons, deceased Din Muhammad Noor Muhammad (P. W. 2) were sitting in the but of Shah Murad situated on these disputed survey numbers. Shah Murad's son, Habibullah (P. W. 4) was at that time in his own house, a furlong away, and his youngest son, Rahim (P. W. 5), aged 11 years, was grazing his cattle also in the vicinity of Shah Murad's house. At about sunrise time, appellants, Jamal, Sono, Gul Beg and Ali Gul, came to Shah Murad's hut. The appellant, Shah Jamal was armed with a hatchet and the others with lathis. They asked the complainant and his family to migrate from those lands, but as they refused to do so, the appellants attacked them, Jamal and Sono giving blows to deceased Din Muhammad, while Gul Beg and Ali Gul instigated them to do so. Complainant Shah Murad raised cries which brought to the scene his sons Habibullah (P. W. 4), and Rahim (P. W. 5). In the meanwhile, the remaining appellants Sher Ali, Hothe, Bhagoo, Afghan and Punbu also came there, Sherali and Hothe carrying hatchets and the remaining three lathis. Sher Ali and Hothe gave blows with their hatchets to deceased Din Muhammad, while the others attacked Noor Muhammad and Habibullah, as well as the complainant Shah Murad himself. The appellants then left the scene and returned to their houses, about a mile away. Complainant Shah Murad proceeded to the Mouladad Thana, some 3 miles away, where his F. I. R. was recorded at 9‑45 a.m. on 27‑5‑1960. He had been preceded there by appellant Shah Jamal, whose F. I. R. had already been recorded half an hour earlier, and is Exh. 22 on the record of this case.

3. S. H. O. Aijaz Ali (P. W. 10), after recording the reports of Shah Jamal and Shah Murad, preceded to the scene of offence which he found to be in front of the house of complainant Shah Murad. He found the injured Din Muhammad, Noor Muhammad and Habibullah present there, and he prepared mashirnamas of the injuries of these three persons, including the injuries on their father, complainant Shah Murad, as per Exhs. 13, 14, 15 and 16 in this case. He prepared a mashirnama of the scene of offence (Exh. 12), and he sent the injured to the hospital for medical examination. The deceased Din Muhammad was then unconscious, and he expired in hospital at 1‑50 p.m. that same afternoon. The S.H.O. then recorded the statements of the prosecution witnesses, arrested the 9 appellants accused, and then challaned them all in Court. This S. H. O. had also investigated the counter‑complaint of appellant Shah Jamal, and he had also challaned the accused in that case as well.

4. The appellants in their examination under section 342 in both the" Courts below deny having committed any offence at all. Two of them, namely, Shah Jamal and Sono, admit their presence at the scene, while the remaining seven deny all knowledge of the incident. Appellant Shah Jamal admits that on that morning he and appellant Sono were cultivating their field when they were attacked by complainant Shah Murad and his sons, the prosecution witnesses. The appellant, Shah Jamal, admits to having hit back in self‑defence, while the appellant Sono claims to have run away from the scene through fear.

5. The fact that the deceased Din Muhammad died an unnatural death, and that his father Shah Murad and brothers, Noor Muhammad and Habibullah, received injuries, is not disputed. The evidence of the then Medical Officer, Civil Hospital, Jacobabad, Dr. Habibur Rahman, who had expressly been examined for the second time in the Court of Sessions as P. W. 10, puts this beyond all doubt. He held the post‑mortem examination on deceased Din Muhammad, and found that he had the following external injuries:‑-- (1) A contusion with swelling 5" x 3" over the right front temporal parietal region; (2) A contused wound 1 " x " x scalp deep over the mid frontal region. These appear to have been caused by a weapon like a lathi, or the back of a hatchet. On internal examination he found clotted blood under the scalp with a depressed fracture of the right temporal bone and a fissured fracture of the right parietal bone. The deceased, Din Muhammad, expired in hospital at 1‑50 p.m. that day. According to this doctor, injury No. 1 was sufficient to cause his death in the ordinary course of nature. The doctor also examined complainant, Shah Murad, and he found that he had the following injury: A contusion 5" x2" over postero lateral aspect of the right arm in middle. It was simple and could have been caused by a. blunt weapon, for example, a lathi. On Noor Muhammad (P. W. 2), the doctor found no less than 5 injuries, all contusions one over the frontal region in the centre of the head, one over the lateral aspect of the left arm, and the remaining three across the back. On Habibullah (P. W. 4), the doctor found only one injury being a contusion with swelling 3" x 2" over the left temporal region. This doctor also examined the appellant Shah Jamal and found that he had two contusions one on the dorsal aspect of the left forearm just above the wrist joint, and another on his back. He also had an abrasion over the dorsal aspect of his left index finger and a skiagram of left forearm showed fracture of the left ulna at the lower third. Injury No. 1 was grievous. According to the doctor all these injuries appear to have been caused with a blunt weapon such as a lathi.

6. Now the case for the prosecution against these 9 appellants rests in the main upon the evidence of the four eye‑witnesses, namely, the three injured, Shah Murad (P. W. 1), Noor Muhammad (P. W. 2), Habibullah (P. W. 4) and the boy Rahim (P. W. 5). There is also the corroborative evidence of the injuries on the 3 injured and the deceased as deposed to by Dr. Habibur Rahman (P. W. 10). The evidence of the four eye‑witnesses is very much the same as the prosecution story set out in para. 2 above. According to these witnesses, first the four of the appellants, namely, Shah Jamal, Sono, Gul Beg and Ali Gul, came to the but of complainant Shah Murad where he was seated with his sons, Noor Muhammad and Din Muhammad, and asked him to vacate the lands and to migrate elsewhere. On his refusing to do so, Sono and Jamal gave hatchet blows to Din Muhammad at the instigation of Ali Gul and Gul Beg. The injured raised cries, whereupon the remaining five appellants came up armed with hatchets and lathis with which they attacked the complainant's party. According to Shah Murad and his son Noor Muhammad, the complainant party were completely unarmed, and caused no injury to the appellants.

7. The evidence of these four eye‑witnesses has been severely criticized by Mr. Azizullah Shaikh, the learned counsel appearing on behalf of the appellants. He has pointed out in the first instance that these prosecution eye‑witnesses did not explain the three injuries, including a fracture that was found by the doctor on appellant Shah Jamal. He has submitted secondly that the evidence of these eye‑witnesses does not coincide with the medical evidence. According to Shah Murad and his son, Noor Muhammad, appellants Shah Jamal and Sono first attacked deceased Din Muhammad each giving him a blow, after which deceased Din Muhammad received two more blows from appellants Hothe and Sherali. According to Shah Murad, Shah Jamal had a hatchet and Sherali and Hothe were also carrying hatchets. Therefore, if these weapons were used on deceased Din Muhammad he should not only have had on his person some incised wounds, but also at least four wounds in all. Instead, according to doctor Habibur Rahman, there were only two contusions on the dead body of deceased Din Muhammad, and no incised wounds. The learned counsel appearing for the appellants has further pointed out that the four prosecution eye‑witnesses are closely inter‑related being father and three sons, and that, therefore, it would be most unsafe to rely upon their evidence without some substantial outside corroboration. He has also referred me to the well‑known case of Janu Khair Muhammad and others v. The Crown (I L R 1943.Kar. 148), in which it has been held by the predecessor Court of this High Court that in the former Province of Sind where it is so common in cases of a fight between two parties to implicate all the male members of a family when only one or two of them may have been concerned in the commission of an offence, it is but a matter of prudence to insist on corroborative evidence to support the oral testimony of interested witnesses. Finally, the learned counsel has relied upon the case of Ahmed and others v. The State (P L D 1964 Kar. 553).

8. Inasmuch as this appeal has had a protracted hearing in this Court bong adjourned from‑one S. B. date to another, I have had more than one occasion to go through this record. In the first place it is admitted that as against the F. I. R. lodged by complainant Shah Murad at 9‑45 a.m. on the morning of 27‑5‑1960, an F. I. R. by appellant Shah Jamal was recorded half an hour earlier at the same Police Station. According to these two F. I. Rs. and the evidence of the S.H.O. Aijaz Ali, there were two scenes of offence: one in the case of Shah Jamal about a furlong's distance from the house of Shah Murad, and the second according to the complaint of complainant Shah Murad, just outside his own house. Blood was not visible at either of these scenes, and although the mashir in this case Salah (P. W. 6) has stated in his examination- in‑chief that there were some drops of blood outside the house of the complainant Shah Murad, in cross‑examination and on being confronted with the text of the mashirnama of the scene of offence, Exh. 12, he has agreed that there was no blood at this scene. According to appellant Shah Jamal, he and Sono were engaged in cultivation at the time of the attack, but the S. H. O. and the mashirs have made it clear that there was no plough and no bullocks present when they arrived at the scene to support this theory of appellant Shah Jamal. Thus it seems to me that the scene of offence was really outside the house of Shah Murad, and that it was the appellant‑party who were the aggressors in this case. It is admitted that there have been disputes and previous cases between the complainant and the appellant‑party on account of a dispute in connection with these lands. The police had also challaned them under section 107, Cr. P. C. There is on record an order of the Deputy Collector, Jacobabad (Exh. 6), setting aside an earlier order of the Mukhtiarkar as to the division of these survey numbers. Therefore, from the evidence on record it would appear that it was the appellants who were the aggressors, and came to fight with the complainant party on the day of the incident.

9. A peculiar feature of this case is that the prosecution evidence rests in the main upon the oral testimony of a father and his three sons. I have carefully perused this evidence, and there can be no doubt that it is subject to the defects and infirmities pointed out by the learned counsel appearing on behalf of the appellants. Not only is there no explanation for the grievous hurt and other two injuries caused to the appellant Shah Jamal, but it is also apparent that eye‑witness evidence does not coincide with the medical evidence. It is also apparent that the prosecution have tried to exaggerate the case by claiming that the appellants came armed with hatchets which they used, while the medical evidence shows that no incised injury was found on any of the injured persons. It seems to me that if the prosecution witnesses can exaggerate their evidence in this manner, there is nothing to prevent them from exaggerating even the number of the accused that took part in the assault that day. I am also familiar with the views expressed by the predecessor Court of this High Court in the case of Janu Khair Muhammad and q others v. The Crown. I am also familiar with the case of Ahmad v. The State inasmuch as the judgment of the Division Bench in this matter was delivered by me. In these circumstances, then, I would be reluctant to uphold the convictions of the appellants, unless there is some outside corroborative evidence to support the interested testimony of the four prosecution witnesses.

10. Examining the matter in this light, I find that appellants Shah Jamal and Sono both admit their presence at the scene. Appellant Shah Jamal admits having caused injuries to the complainant‑party, though he adds that he did so in self‑defence. Sono also admits that he was present with his uncle Shah Jamal at the scene that morning. Accordingly, I would dismiss the appeals and confirm the sentences imposed upon appellants Shah Jamal and Sono. They will surrender to their bail bonds, and serve out the un expired portion of their sentences. The appeals of the remaining seven appellants are allowed, their convictions and sentences set aside, and their bail bonds cancelled. K.B.A. Appeal partly accepted.