1. GHULAM RASOOL K. SHAIKH, J.-The appellants were con--victed by the learned Additional Sessions Judge, Karachi. Appellant Ali Khan was convicted for an offence under section 302, P. P. C.
2. And sentenced to transporation for life, while the other two appellants Sadiq and Aurangzeb were convicted for the offence under section 323, P. P. C. And sentenced to undergo R. I. For 6 months.
3. Co-accused Mohd. Aslam was acquitted. In this incident Sarwar aged about 18 years was killed on 11-12-66 at 8 a.m. In Plot No. 1638/18 situated in Federal B. Area, Karachi. The report was lodged by Mohd. Shafi at 2 p.m. At Liaquatabad Police Station situated at a distance of 3 miles from the scene of offence and it was recorded by Mr. Mohammad Aslam A.S.I.P.
4. Mohd. Shall complainant lived in Lasbella House, Karachi and had taken up the construction work in Federal B. Area Block No. 18. He had employed certain labourers including Mohammad Ashraf, Mohammad Abad, Mohammad Hussain and the deceased Sarwar. On the day of the incident at about 8 a.m. Abad, Mohammad Ashraf and the deceased were spraying water on the walls of the building under construction while Mohammad Hussain who was carpenter was working in another quarter on the opposite-side. On that day the construction was not going on as shuttering work had completed and it required spraying of water. There was a cement pool near the place where the labourers were working. At that time appellant Aurangzeb went there and asked Sarwar deceased to stop spraying water on the building and further asked him to empty the water pool.
5. But Sarwar refused whereupon there was some exchange of alterca--tion between the two.
6. Appellant Aurangzeb then left and re--turned after 15 minutes along with appellants Sadiq and Ali Khan as well as the acquitted person Aslam. Immediately on their arrival they started giving fist blows to Sarwar. Appellant Sadiq and Aurangzeb were grappling with Sarwar while Aslam threw a cement block on the deceased and in consequence of this Sarwar fell down. Then appellant Ali Khan whipped out a knife and stabbed the deceased twice, one was caused on the back and the other on the lateral side of thigh. On account of these injuries Sarwar died on the spot after a short time. All the three appellants are brothers inter se. Ashraf and Mohammad Hussain tried to intervene but threats were issued to them. The appellants and Aslam after inflicting the injuries went away to the hotel of Aslam, which was situated at a distance of one furlong from the scene of offence. Mohammad Ashraf then went to Mohammad Shall who was in his house and informed him. Mohammad Shall accompanied him to the scene of offence and after making in--quiries from Mohammad Hussain and Abad went to Liaquatabad Police Station and lodged the first report.
7. Mr. Mohammad Aslam A. S. I. After recording the first report sent it to Mr. Abdul Rehman S. I. P. Who immediately proceeded to the scene of offence and found the dead body of Sarwar lying there.
8. There were two blood-stained cement blocks near the dead body and blood on the ground. The blood-stained earth and the cement blocks were secured. Then the statements of Mohammad Ashraf, Mohammad Abad, Mohammad Hussain, Karamdad and Mohammad Sharif were recorded.
9. After pre--paring the inquest report the dead body was sent to the hospital through Ashfaque Hussain constable. On 12th December 1966 Aurangzeb appellant and Mohammad Aslam were arrested at 3 a.m. While appellant Sadiq and Ali Khan were arrested at 2 p.m. Appellant Ali Khan was produced before the police Surgeon for determination of age and he was reported to be aged about 16 years. Subsequently Mr. Siraj Hussain S.H.O verified the investigation and challaned the appellants and Mohammad Aslam on 31st December 1966. Thereafter they were committed to the Court of Sessions.
10. At the trial the prosecution examined Amanatullah, Mohammad Shafi complainant, Mohammad Abad Syed Afaque Hussain constable, Mohammad Sharif Mashir, Mohammad Hussain, Ashraf, Mohammad Aslam A. S. I. P., Mr. Siraj Hussain S. H. O. And Mr. Abdul Rahim Additional S. H. O. The evidence of Dr. Abdul Majid recorded in the committal proceedings was brought on record.
11. The appellants proclaimed their innocence and denied the allegations. It was pleaded by Aurangzeb that he had to receive Rs. 6,000 from the complainant and the construction work was stopped since about 2-- months and on the day of incident it was a Sunday and, therefore, he was in his house busy in washing the clothes. Ali Khan stated that they were implicated at the in-- stance of Mohammad Shafi who owed him Rs. 6,000 for which Mohammad Shafi had given two cheques, which were dishonoured. They had stopped the work of Mohammad Shafi since about 2- - months because he was not making payments. It was Sunday and he was in his house. The third appellant also stated that he was implicated by Mohammad Shafi. Karamdad and Ghulam Hussain were examined in defence.
12. On the assessm ent of the evidence the learned Additional Sessions Judge believed the prosecution evidence and came to the conclusion that the appellants were guilty of the offence for which they were convicted and sentenced as above.
13. During the course of arguments it transpired that appellant Ali Khan was sent to the medical officer regarding his age and he was examined by Dr. S. M. Moonis Police Surgeon but his' evidence was not recorded and only certificate was brought on record. As this evidence was material in considering the question of the application of the Bombay Children Act. Dr. S. M. Moonis was called and his evidence was recorded. He stated that the appellant was examined by him on 3-12-66 and on the basis of his examination and the report of the radiologist the age of the appellant was found to be 15 or 16 years. In cross---examination he stated that he could be a couple of months below 16 or above 16 years. Thus his evidence does not establish that the appellant was under 16 years at the time of this incident.
14. There can be no doubt that Sarwar was killed and this is borne out by the evidence of Dr. Abdul Majid Khan who found the following injuries "External
(1) Incised wound about 3/4" x 1 /2" x chest deep on the back of the right side chest 3-- " below from the top of the shoulder and 3-- " away from the vertebral column on middle right scapular region.
(2) Incised wound about 1" x 1 /2" x muscle deep on the lateral side of right thigh at the junction of upper one third and lower two third right thigh. The muscles blood vessels (pro--fonda femoris and murve are cut due to the injury No. 2).
15. Internal
(1) Right scapula cut through and through.
(2) 4th and 5th, ribs of right side partially cut posteriorly,
(3) Chest cavity containing blood on the right side..
(4) Posterior portion of the upper lobe of right lung was pierced due to external injury No. 1.
16. According to the medical officer all the injuries were ante---mortem and appeared to have been caused by sharp-cutting weapon such as hatchet. The death was due to shock and haemorrhage as a result of the injuries. He was further of the opinion that injury No. 1 was sufficient in the ordinary course of nature to cause death and this could be caused in standing position.
17. The case against the appellant was sought to be supported by the ocular testimony of three witnesses Mohammad Abad, Mohammad Hussain and Mohammad Ashraf corroborated by the evidence of Mohammad Shafi. Mohammad Abad and Mohammad Ashraf witnesses are cousins of the deceased while Mohammad Hussain was not related to them. He was a co---labourer.
18. Mohammad Shafi is also not related to the deceased. He was the contractor who had employed the deceased and the witnesses for the purpose of construction work and on the day of e incident they were busy in spraying water.
19. We have carefully considered the evidence produced in this case to establish the case against the appellants and we are unable to place any reliance upon their evidence. It is not possible to hold that any of the witnesses had seen the assault on the deceased. This is the natural consequence of the serious in--firmities appearing in the evidence of the witnesses. It seems that none of these witnesses was present at the site when the assault was made and subsequently the relations of the deceased turned up and the entire evidence was fabricated before Mohammad Shafi was informed about the incident.
20. This conclusion, which we have reached, is firstly confirmed by the undue delay in lodging the first report. The incident, as has been stated, took place at 8 a.m. While the first report was lodged at 2 p.m. Although the Police Station was situated at a distance of 3 miles. It was claimed that immediately after the assault Mohammad Ashraf went to Mohammad Shafi and informed him and then both of them went to the scene of offence and thereafter Mohammad Shafi went to the scene of offence and thereafter Mohammad Shafi left for the Police Station. All this could not have taken the time, which was wasted in this case. This delay stands unexplained and heavily operates against the prosecution. The fact that undue delay was caused is further supported by the evidence of Mohammad Shafi who stated that Mohammad Ashraf had come to him at 1-30 p.m.
21. And he was all alone and then he lodged the first report at 2 p.m. Thus when Mohammad Shaft could not take more than half an hour in reaching the Police Station although he had gone to the scene of offence to verify, it is not understood how Mohammad Ashraf took several hours to approach Mohammad Shaft. This fact, therefore, confirms our view that it was a case of unwitnessed crime and later the relations of the deceased having come to know of the incident and after preparing the evidence Mohammad Ashraf approached the complainant. It may be true that the assault on the deceased was made by the appellants, but the case must be supported by true evidence. If the evidence is found to be false and unreliable no conviction can be recorded. It is the A duty of the prosecution to place true facts by true evidence before the Court and in case the prosecution comes with unclean hands and dishonest intention no relief can be granted by the Court.
22. There is also no agreement between the witnesses as to who had gone to inform Mohammad Shafi. As already pointed out Mohammad Shafi stated that Mohammad Ashraf alone had come to him at 1-30 p.m. Whereas Mohammad Abad stated that ' Mohammad Hussain and Ashraf had gone together to inform Mohammad Shafi while he stood beside the dead body. Mohammad Hussain stated that he and Abad had gone to inform' Mohammad Shall while Ashraf was not at the scene of offence at the time of this incident. Thus even he excludes the presence of Ashraf who claimed not only to be an eye-witness but also claimed that he had gone to inform Mohammad Shall about the incident. He was declared hostile by the learned Assistant Public Prosecutor and was confronted with his evidence recorded in the committal proceedings wherein he stated that Abad and Mohammad Ashraf had undertaken to inform Mohammad Shaft about the incident. He disputed the correctness of the fact that Mohammad Ashraf had gone to inform Mohammad Shaft. According to him Mohammad Ashraf came along with Mohammad Shafi. He admitted in the committal proceedings that neither he knew the appellants before the incident nor he knew their names yet no identification test was held. According to him he and Abad had gone to Mohammad Shafi at 10 or 11 a.m. In the committal proceedings he stated that Mohammad Shafi took 2 to 3 hours before accompanying them to the Police Station. Mohammad Ashraf claimed that he- and Abad had gone to Mohammad Shafi. He made fruitless efforts to explain the delay in reaching the house of Mohammad Shafi. He stated that they did not know his house and, therefore, took considerable time in locating his house. This explanation is clearly false in view of his admissions made in the cross-examination as well as in. The committal proceedings. In the cross-examination he stated he had first contacted Mohammad Shall at his house for the purpose of employment while in the committal proceedings he has stated that sometime Mohammad Shafi used to come to the site and some time he used to go to his house at night to render the account. He further stated in the same proceedings that they had gone to the house of Mohammad Shaft but he was not available in his house and, therefore, they met him at 12 noon although they had reached his house at 8-30 a.m.
23. The other important circumstances appearing in the evidence of the witnesses is that according to them the acquitted person had thrown cement block at the deceased as a result of which the deceased received the injury on the head and fell down. This does not find support from the medical evidence. No such injury was found even by the S. H. O. Who had prepared the inquest report. It further confirms our view that the witnesses came much later and finding that there was blood on the blocks they presumed that the blood on the blocks must have been received after it was struck on the deceased.
24. The third circumstance is the falsity of the reason of the presence of the various persons at the scene of offence. It was contended that water was being sprayed and, therefore, they were present.
25. In this Mohammad Ashraf was contradicted by his evidence recorded in the committal proceedings wherein he stated that the construction work had stopped 2/3 days before the in-- cident on account of lack of water. That being so, how it could be possible for them to have sprayed water. Moreover it was a Sunday and admittedly it was a holiday and was also enjoyed by the witnesses. So their presence' at the scene was highly improbable.
26. Yet there is another important circumstance, which relates to the injuries. The witnesses have stated that when the deceased fell down after having been hit by the cement block he was stabbed by appellant Ali Khan on the back as well as on the thigh. The possibility of the injury on the back having been caused to the deceased while he was lying on the ground has been dispelled by the evidence of the medical officer who stated that this injury could be caused in standing position. Moreover in the police statements recorded under section 161, Cr. P. C. None of the witnesses disclosed that any injury on the back was caused by appellant 'Ali Khan or by any other. They talked of only one injury i.e. On the thigh. They could not have omitted to mention this important fact if they were really present at the scene of offence and had seen the appellant Ali Khan stabbing the deceased.
27. Thus the prosecution case suffers from numerous doubts, which have not been resolved. We are, therefore, inclined to give benefit of doubt to the appellants. Their appeal is allowed and the conviction and sentences are set aside and they are acquitted. They are in custody and should be set at liberty forthwith.