1. SAJJAD ALI SHAH, J.-----This appeal is filed by the appellant named above against the judgment, dated 30th May 1977, passed by learned Sessions Judge, Karachi, whereby he has been convicted under section 326, P. P. C. And sentenced to imprisonment for life for having caused knife injuries to Nakim Khan, who subsequently died in the hospital. Initially the appellant and his co-accused Mushtak were challaned for offence under section 302/34, P- P- C. But the trial Court acquitted Mushtak and convicted appellant as stated above.
2. Prosecution story in nutshell is that both parties to the case are dents of Railway Quarters in Cantonment Karachi. On 12-7-1976 at about 7-30 p.m., Hakim Khan was sitting on a cot in front of his quarter No. 6, Block No. 115. Right opposite this quarter is the back of quarter of appellant with one window on the back side opening towards the houses of Hakim Khan. Appellant, while inside his house, through back window exchanged abuse with Hakim Khan. Thereafter, appellant armed with a chhuri, his nephew Mushtak and one other person armed with dandas came towards Hakim Khan and attacked him. Mustak and one other person gave Hakim Khan danda blows while appellant stabbed him with chhuri several times. In the meantime complainant Abdul Aziz and witnesses Abdul Rashid, Ahmed Bux and Haji Sami Khan and others, who were residents of nearby quarters, rushed to the spot and rescued Hakim Khan from further assault. Appellant and his companions thereafter made good their escape along with their weapons. Injured Hakim Khan was brought to the Jinnah Hospital by P. W.
2. Abdul Aziz Khan complainant and Haji Sami Khan. Such telephonic message was received at Frere Police Station on the same day at 8.40 p.m. And entry was made in Roznamcha by Riasat Ali, :Incharge of the Police Station, who proceeded to Jinnah Central Hospital where he found injured Hakim Khan in Casualty-Ward, who was not capable of making a state, ment. However, P. W. 2 Abdul Aziz was available there and his statement wk's recorded, which was subsequently entered in 154, Cr. P. C. Register as F.J. R. At the Police Station.
3. Copy of F. I. R. Was handed over to S. H. O. Abdul Hafiz Kadri at 9.30 p.m. On the same day, who proceeded to the place of occurrence. He inspected vardat in presence of Rifaqatullah and Fakir Muhammad. Some blood was found on the pavement in the street which was secured and put into sealed parcel. Thereafter he arrested appellant Muhammad Tufail from his quarter and, recorded statements of Haji Sami Khan, Rifaqatullah, Fakir Muhammad, Abdul Rashid and Mst. Kamli, He also recorded further statement of complainant Abdul Aziz. On the following day appellant Muhammad Tufail, while in custody, produced chhuri as crime weapon after digging it out from the courtyard of his house. The said 'chhuri' was sealed into a parcel. Appellant Tufail also produced a lathi from thatched roof of a shed in his quarter, which was also seized. Thereafter the Investigating Officer arrested co-accused Mushtak from near the quarter of appellant Tufail. Then he recorded statements of Ahmed Bux, Mst. Baqara Idan and Shabrati.
4. On 17-7-1976 information was received that injured Hakim Khan had died at Jinnah Hospital, the same Investigating Officer went there and prepared inquest report and handed over the dead body for post-mortem examination. After completing further steps of investigation, he presented challan in the Court.
5. Prosecution has examined in all 13 witnesses in support of its case. P. W. 1 is mashir Fakir Muhammad, who has attested mashirnama of vardat Exh. 4, rnashirnama of recovery of `chhuri'
6. Exh. 5 mashirnama of arrest of co-accused Mushtak Exh. 6 and inquest report Exh.
7. P. W. 2 Abdul Aziz complainant, P. W. 3 Sami Khan, P. W. -4 Abdul Rashid and P. W. 6 Shirimati Kamli haws been examined as eye-witnesses of the incident, out of whom Shirimati Kamli deposed that at the time of incident she heard the commotion and shut her door, so she did not see the incident. P. W. 7 Haji Ahmed Bux had testified before the trial Court as corroborative witness and stated that after the incident he went to the spot and saw Hakim Khan injured and was informed by P. Ws. Rashid and Mst. Jamila who were there, that Tufail had assaulted him. P.W 5 Muhammad Baqar constable kept guard over the dead body in the hospital. P. W. 9 Rifaqatullah mashir had attested recovery of 'chhuri from appellant and production of lathi by co-accused Mushtak, P. W. Riasat Ali and P. W. 10 Abdul Hafiz Qadri are the police officer who investigated the case. P. W. 12 Abdul Hafiz Sidiki, City Surveyor had prepared sketch of vardat Exh. 26.
7. P. W. 11 Dr. Iqbal Ahmed had examined injured Hakim Khan in the Casualty Ward of Jinnah Hospital on 12-7-1976 at 8 p.m. According to the doctor, injured Hakim Khan was under shock and was virtually breathless. He was not able to talk. The doctor found the following injuries on his person:- "(1) Stab wound ----- x 1" X 1-- on the left side of chest, between 6th and 7th intercostal space.
8. Stomach contents were oozing out.
(2) Incised wound --" x --" X --" right side chest, at 7th intercostal space.
(3) Incised wound --" x-- " into skin deep on right side below exilla.
9. The injuries were fresh and they appeared to have been caused by means of a sharp cutting weapon such as a knife. Injury No. 1 was grievous in nature and dangerous to life. The shirt and banyan of the injured had corresponding cut marks, and were blood-stained. They were secured.
10. The injured was provided necessary treatment and was admitted in the hospital. Frere Police Station was informed.
11. P. W. 13 Dr. Ashfaq Hussain conducted post-mortem examination on the dead body of Hakim Khan on 17-7-1976. He found deceased to be 19 years old. There was hospital dressing on the left and right side of the chest. Post-mortem staining was present on the body. On external examination he found the following injuries :-
(1) Stitched wound on the left side, lower part, front chest with three black silk sutures, verticle in direction 2--" from the mid line 1--" inches below the level of left nipple. It was 1--" long.
(2) Thoracicotomy surgical scar on the left front and lower side of the chest, just below the level of the injury No, 1, slightly oblique in direction, with ten black sutures. It was 5" and --" inches long.
(3) Surgical drainage stitched wound with one black silk sutured on the left side of the chest, in the mid axillary line, at the level of injury No. 1. It was half inch long. Purulent material was oozing out.
(4) A stitched wound of the right side of the chest in the middle and mid axillary lines oblique in direction with four black silk sutures. It was 5-- away from the mid line. It was 4" away from the pit of axilla. It was 2" long.
(5) An incised wound in a state of healing process on the right side of axillary fold, 2-- above the level of injury No. 4, oblique in direction. Its dismensions were --" x 1/3" x skin deep.
12. On dissection it was observed under injury No. 4 -that the weapon had, after cutting the skin, soft tissues, passed into the sixth inter costal space and cut the lower border of the sixth rib and entered the left side of the chest cavity, and caused an injury which was in healing process, is the inner border of the middle lobe of right lung. There was ecchymosis on the right side of the pericardium.
13. On dissection under injuries Nos. .1 and 2, necrosis on the soft tissues of the chest wall was found and also of the sixth intercostal space. The sixth left rib had been respected, necrosis and suppuration were found of the left lung, the surface of which was covered with purulent material.
14. The inner border of the lower part of the left lung showed injury which was stitched. Left side of the pericardium showed stitched injury. There was a stitched injury on the outer side of the left ventricle. The left dome of disphram was seen wounded and stitched. The posterior surface of the stomach near the pyloric end of lesser curvature was found stitched.
15. All the external injuries were ante-mortem. The injury No. 3 was caused in the process of surgery.
16. The injuries Nos. 1, 2, 4 and 5 appeared to have been caused by means of a sharp cutting and pointed substance.
17. The cause of death was pulmonary artery thrombosis leading to cardio-respiratory failure as a result of complication of the operation per--formed under extenal injury No. 1. Even otherwise, the injury No. 1 was sufficient to have caused death in ordinary course of nature. Injury No. 2 was caused in the process of surgery. Injury No. 4 was individually sufficient in the ordinary course of nature to have caused the death. Injury No. 5 was simple. Even if the injury deceased had not been operated upon, upon, he could not have survived on having sustained the injuries Nos. 1, 4, and 5.
18. The defence of the appellant before the trial Court in his statement under section 342, Cr. P. C. Was denial of prosecution allegations and false implication in the case. He had further stated 'that deceased Hakim Khan had suffered injuries in his own family dispute and this case was manipulated against him in order to save his relatives who had assaulted. The appellant examined no witness in defence.
19. We have heard the learned advocate appearing for each side. In the light of their arguments we have made the appraisal of the record. It would be pertinent at this stage to point out that it is admitted by P. W. 13 Dr. Ashfaq Hussain in his evidence before the trial Court that cause of death was pulmonary artery thrumbosis leading to cardio-respiratory failure as a result of complication of the operation performed under external injury No. 1. The doctor had further opined that injury No. 1 was, even otherwise, sufficient to have caused death in the ordinary course of nature. Impressed by the assertion that the cause of death was due to surgical complication, the learned trial Court wanted to examine the surgeon, who performed the operation but it was reported that he was out of the country. The learned trial Court then summoned doctor Mumtaz Nafees, who had assisted the surgeon in the operation and had appeared in the Court on a number of dates but could not be examined for the reason of non-production of prisoners by jail authorities. Ultimately the trial Court excused the lady doctor and proceeded with the case without examining her. Keeping in view the fact that the death was due to surgical complication and the evidence of doctor Iqbal Ahmed, who had examined Hakim Khan when he was alive and had declared that injury No. 1 was grievous in nature and dangerous to life, convicted appellant under section 326, P. P. C. And sentenced him as stated above.
20. Prosecution has examined four eye-witnesses out of whom P. W. 6 Shirimati Kamli has claimed not to have seen the incident. P. W. 2 Abdul Aziz complainant is married to sister of deceased. P. W. 3 Sami Khan is father of the deceased, P. W. 4 Abdul Rashid is not related to the deceased and is an independent witness. Complainant had accompanied injured Hakim Khan to the hospital where his statement was recorded, which was treated as F. I. R. According to F. I. R. Complainant, Abdul Rashid, Ahmed Bux and Haji Sami Khan and others came to the rescue of Hakim Khan. In other words the presence of these witnesses, mentioned above, at the spot at the time of incident is admitted. In his evidence before the trial Court complainant has admitted the presence of Haji Sami Khan and Abdul Rashid. He has further stated that Mst. Baqar wife of Abdul Rashid and one sweepers by name Kamli were present at the spot and did see the incident. Complainant has further stated before the trial Court that Mst. Jamila Khatoon and Haji Ahmed Bux reached the vardat after the incident and by that time the assailants had disappeared. It .Is obvious that the complainant has changed the role of Ahmed Bux as eye-witness in h. I. R. To that of a corroborative witness in his statement before the trial Court. In any case complainant insisted on both the occasions that Abdul Rashid and Haji Sami Khan were other two eye--witnesses apart from him.
21. No wonder Shirimati Kamli has not supported the version of the complainant ns eye-witness, because the complainant has named her in his evidence before the trial Court and not in the F. I. R.
22. Complainant being close relative to the deceased is highly interested witness and his inconsistent views about the eye witnesses, as mentioned above, reflect upon his credibility. Haji Sami Khan, the other eye-witness, being father of the deceased, is also highly interested witness. Both these witnesses, namely complainant Abdul Aziz and Haji Sami Khan, have attempted in vain to exaggerate the ocular account of the incident by converting even the minute details like exchange of abuse between appellant and the deceased before the incident. Inadvertently each of these two witnesses has excluded the other on 'minute details. For example complainant has stated in his evidence before the trial Court that he was consoling his ailing daughter in the Court-yard in his quarter when he heard noise from outside at 7-30 p.m. He went outside. He beard and saw appellant Tufail and deceased Hakim Khan exchanging abuse. Deceased Hakim Khan was sitting on the cot in front of his door and appellant Tufail was inside his quarter locking out from the rear window of his quarter. This witness advised Hakim Khan to go inside the quarter as it was not proper that they should indulge in such a situation. Hakim Khan obeyed and this also went in his quarter. After a while this witness again heard noise and came out to see the incident. This witness has further deposed in the Court that Abdul Rashid and Haji Sami Khan also came to the spot and saw the incident. It is clear from the evidence of this witness that Haji Sami Khan was not present at the time when, appellant and the deceased exchanged abuse before the incident, nor Haji Sami Khan advised deceased to go away and not to argue -with the appellant before the incident. . As against this P. W. 3 Haji Sami Khan has deposed before the trial Court that on the day of incident at.
23. About 7.30 p.m. He was coming to his quarter after offering evening prayer and saw Hakim Khan sitting on a cot in front of the quarter of Mst. Jamila adjoining his quarter. He saw appellant Tufail hurling abuse at Hakim Khan from his quarter through -the window. He asked Hakim Khan to go inside from there. Hakim Khan went away and he went inside the quarter after a while he heard noise from the outside and rushed out to see the incident.
24. Other witnesses including Abdul Aziz and Mulla Rashid were also present and they saw the incident.
25. It is. Manifestly clear that both these witnesses Abdul Aziz and Haji Sami Khan have each excluded the presence of the other at the prelude to the incident in which each heard exchange of abuse and advised the deceased to go away. In any case both of them have admitted the presence of Mulla Rashid or Rashid Khan (same person was called by two names.
26. P. W. 4 Abdul Rashid has- deposed before the trial Court that at the time of incident he saw appellant going towards the quarter of deceased Hakim Khan while abusing him. -Appellant was having something in his hand which appeared to be black and he could not identify as to what it was. Appellant Tufail started striking Hakim Khan with what he was carrying. Hakim Khan cried for help. In the meantime co-accused Mushtak also passed by. The witness tried to snatch lathi from him and the lathi struck him. Hakim Khan fell down and was found having sustained injuries caused by a sharp weapon. No one else was available at the time of occurrence. Appellant ran away from the vardat. Deceased Hakim Khan's father and brother-in-law reached there and removed him to Railway hospital. In cross-examination this witness had admitted that it was dark by the tine the incident took place. In re-examination to the Court question the witnesses specifically stated in unequivocal terms that Haji Sami Khan and Abdul Aziz were not available at the time of incident and besides him none else witnessed the incident. This witness was .Not declared hostile, which proves that prosecution had not called in question his statement. Now if this witness, whose presence at the spot is admitted by P. Ws. Abdul Aziz and Haji Sami Khan and his name appears in F. I. R., is to be believed then the presence- of eye-witnesses Abdul Aziz and Haji Sami Khan at the time of incident will have to be excluded. This witness is independent as he is not related to the complainant party and is also natural because his quarter is nearby. On the other, hand, the other two eye-witnesses, namely Abdul Aziz complainant and Haji Sami Khan, are related to the deceased, hence it would be necessary to look for corroboration. P. W. 7 Haji Ahmed Bux has been examined and he has testified before the trial .Court that after the incident he saw Hakim Khan lying injured in front of the quarter of Rifaqatullah. P. Ws. Abdul Rashid and Mst. Jamila were there. Abdul Rashid informed him on inquiry, that Tufail had assaulted Hakim Khan: This witness was not cross-examined by the defence. He has admitted presence of Abdul Rashid and Mst. Jamila at the spot at the time of incident. He did. Not see that P: Ws. Abdul Aziz and Haji Sami Khan were also present at the spot. The statement of this. Witness lends support to the claim of P.
27. W. Abdul Rashid only. We, therefore, hold that only Abdul Rashid is an eye-witness in, this case.
28. It is the case of the prosecution that `chhuri, alleged crime weapon, was recovered at the pointing out of complainant, who also produced the danda. The said chhuri and danda were not stained with blood, P. W. 10 Abdul Hafeez Qadri, S. H. O. Has stated before the trial Court that appellant Tufail produced chhuri after digging it out from the courtyard of his quarter. He seized it in presence of mashirs Rifaqatullah and Fakir Muhammad. Complainant also produced lathi from thatched roof of shed in his quarter, which was, also seized in presence of same mashirs. In the mashirnama of recovery of chhuri Exh. 5 it is stated that on the pointing out by Tufail, police took into possession one knife, which was produced by Tufail from the kutcha ground under the wall by the side and near the outer gate of his house. As against this P. W. Fakir Muhammad mashir has deposed before the trial Court that Muhammad Tufail pointed out churri at the roof of shed in front of his quarter which was secured by police. He has stated in his cross-examina--tion that wife of Tufail was available at the quarter when he pointed out the chhuri. In view of the discrepancies between the evidence of this mashir and the Investigating Officer on the question of actual place from where the said chhuri was recovered and also to seek further clarification from the privotal witness Abdul Rashid, in the interest of justice and in order to be able to appreciate the evidence more effectively, we had ordered the recall of P. Ws. Abdul Rashid and Fakir Muhammad and recorded their further statements in presence of appellant. P. W. Fakir Muhammad deposed before us that lathi was recovered from the roof of the house of appellant and chhuri was produced by the appellant which .Was buried in the ground near the gate of his house. P. W. Abdul Rashid has testified before us that he had seen the incident with his own eyes and P. W. Haji Ahmed Bux had come to the spot after the incident. Haji Ahmed Bux made inquiries as to who had given injuries to the deceased but- he did not recollect if he had informed Haji Ahmed as to who had stabbed the deceased. He may have told him or may not have told him. In the cross-examination this witness states further that he did riot remember if Haji Ahmed enquired from him as to who caused injuries to the deceased. This witness appeared to us to be an old man with religious bent of mind. Seemingly he was under considerable strain when he stated that he did not remember whether he informed Haji Ahmed or not as to who caused injuries to the deceased. It is consistent with natural conduct that the person who comes to the spot and sees the injured would ask such a question from the person who is sole eye-witness. Apparently this witness has lied inasmuch as he said that he did not, remember whether he informed Haji Ahmed about the name of assailants or Haji Ahmed enquired from him as to who caused injuries. He has said so in order to favour the appellant and by making this concession he has compromises integrity. In. View of his statement, evidence of Haji Ahmed loses significance o corroborative nature because Haji Ahmed had learnt to name of assailants from this witness. Since this witness is the only eye-witness and. He has lied in his statement before us we hesitate to place implicit reliance on his solitary testimony and also there is no other corroborative evidence. In the circumstances We feel that evidence brought on the record against the appellant is insufficient and does not have such qualitative nature to warrant conviction and sentence. We, therefore, give benefit of doubt to the appellant and. Set aside his conviction and sentence. He may be se at liberty if he is not. Wanted in any other case. Appeal is allowed.