MUHAMMAD HALEEM, J.---One common judgment will suffice for dis--posing of Criminal Appeals 48 and 52 of 1973 as they arise out of the same order of conviction dated 31st January, 1973 passed by the learned Sessions Judge, Karachi. In Criminal Appeal No. 48 of 1973 Muhammad Younas is the appellant while in the other appeal the appellants are Khurshid Khan and Syed Nawab Ali. They were tried for the murder of Shabbir Ahmad and for attempted murder of Faizyab, his son. On the first charge they were convicted under section 302 read with section 34, P. P. C. And sentenced to transportation for life while on the second, they were convicted under section 307 read with sec-- tion 34, P. P. C. And sentenced to three years' rigorous imprisonment. They have filed these appeals to impugn their conviction.
2. The incident occurred at 8-30 p. m. On 6th September, 1969 in 61-G area, near Liaquat Market in Malir Colony. The deceased and the injured lived in House No. 364/6, not far from the place of incident. The appellants also resided in the same locality. It is the case of the prosecution that at the stated time, Faizyab came out of the house and proceeded towards Abubakar's hotel and near it he saw Younas slapping his uncle, Shafi Ahmad, who was going along with Latif. Faizyab asked Younas as to why he has slapped his uncle, upon which Younas abused him. In the meantime Khurshid and Syed Nawab Ali, who resided nearby, also came there and seeing them Younas shouted "catch hold of him" and he would "finish him today" as he does not abstain from visiting Majid's house. All the three thereupon started beating him. Younas and Syed Nawab Ali Shah were unarmed but Khurshid took out a knife from the right pocket of his pant and stabbed him on his right hip while the two other caught hold of him. Faizyab then raised cries, on which his father, Shabbir Ahmad and his brother, Saghir Ahmad ran out of the house towards the vardat, but Faizyab, in the meantime, hastily ran towards the police station and while running he saw the three appellants belabouring his father with fists and kicks. Faizyab lodged the F. I. R. At 2-20 hours at Police Station Malir, which is a mile away, the same day accusing all the three for having stabbed him with' the intention to kill him.
3. The report was recorded by Abdur Rehman A. S. I., Muhammad Akram S. H. O. On receiving the copy of the report repaired to the vardat and after inspecting it prepared the Mashirnama Exh, 13.
Nothing incriminating was found there. He then went to the house of the deceased, where he saw the deceased lying dead on a cot in front of his house. He sent the dead body for his post-mortem examination and thereafter handed over the investigation to Talat Hussain A. S. I. Talat Hussain examined Saghir Ahmad. Sharif Ahmad, Shafi Ahmad, Idoo, Jabbar, Latif and Majid on 8th September, 1969 and later arrested Younas, Khurshid and ,Syed Nawab Ali from their houses the same day. Khurshid produced a knife from the heap of the scrap, which was seized vide mashirnama Exh.
38. This knife was not produced at the trial and the police officers concerned with the investigation have also not spoken about its recovery. The mashir, however, was examined in defence and he has not supported its production by Khurshid.
4. Faizyab was sent for examination and treatment to Jinnah Hospital, where he was examined by Dr. Muhammad Mahmud Ali, who noticed the following injuries :- "(1) Incised wound right hip --" x --" x 1".
(2)Five abrasions on back left side --" x -----.
(3)Abrasion right arm 1/8" x 1".
(4)Haematoma about left eye lateral angle --" x --".
In his opinion all the injuries were simple and except for injury No. 1 which was caused by a sharp- edged object the others were caused by a hard and blunt substance.
(5) The autopsy on-the dead body was performed by Dr. Muhammad Umar Khan, who noticed the following external injuries :- "(1) Abrasion on right dorsal hand --" x --".
(2)Abrasion on right knee at two places on inch- apart ----- x ----- and 1" x --".
(3)Left knee at two places 1" below another 1----- x ----- and another 1--- x 1---.
(4)Abrasion right dorsal foot -- " x -----.
(5)Abrasion left dorsal front -----x --".
He has also noticed an old partly healed abscess at midsternum 1/4" x 1/4" x skin deep. In his opinion, the external injuries were caused by a hard and blunt weapon. However, on internal examination he noticed congestion in the masentry and abdomen as under :- Masentry.- ---At the attachment on left side was congested and had a haemotomal 1" x 1" near attachment' to stomach was also congested at the middle 2--- x 2". Liver, spleen and kidneys were slightly pale.
Abdomen.- Stomach contained full of undigested food gravicerted on the front and left side near the sertric attachment showed congestion 2" x 2" and near respohageal and 3--- x 2---.
In his opinion, the congestion was as a result of a blow on the abdomen and that it was sufficient in the ordinary course of nature to cause severe shock and death. However, there was no surface injury on the abdomen. The appellants denied their presence at the vardat. Younas stated that he had a dispute with his sister's husband, Abdul Majid, and that the witnesses were under, his influence and had deposed at his instance. Syed Nawab Ali also alleged dispute with his neighbours over the "fight--ing of children" and, according to him, this was the reason for his implication in the crime. Khurshid Khan pleaded that he was in Korangi at that time and that he was brought from his house the next day. He also alleged enmity with Faizyab on account of a quarrel some 6 or 7 months back in connection with their daily work in the factory. According to him, it was on account of this dispute that he was implicated in the case and that the other witnesses, who are his relatives, had deposed against him. He has denied the production of knife. In defence the appellants examined Kadir Khan, Abdur Rauf and Wajid Ali Khan.
6. At the trial the prosecution examined Faizyab, Shafi Ahmad, Saghir Akhtar, Idoo, Abdul Majid and Abdul Ghani to furnish direct evidence. While the first three supported the prosecution case, the other three did not do so. Ldoo merely stated that while returning the home he saw "riot taking place in the street" and later saw some four persons carrying the dead body of the deceased. He did not give the names of those who were engaged in the fight. His evidence is of no value. Abdul Majid stated that he did not see the incident. He, however, saw the dead body of the deceased after the arrival of police. Abdul Ghani did not say anything about the incident but gave evidence as mashir of the vardat. The testimony of these two witnesses does not throw any light on the incident which is of no value so for as the particulars of the incident and the identity of the appellants are concerned. The first set of three witnesses, however, speak of the incident. Faizyab himself was injured. His presence cannot be doubted for it was he who had gone and lodged the report while the deceased was being beaten and the incident had not concluded. In the F.I.R. He had stated that Younas prevented him from visiting Majid's house who was his brother-in-law and it was because he had not desisted from doing so that there was a quarrel. It was in that quarrel that Shafi Muhammad got a beating from Younas. Later on, he intervened and was beaten by all the three and stabbed by Khurshid. The deceased and his other brother, Saghir Akhtar, came later to intervene when all the three appellants gave a beating to his father, Shabbir Ahmad, with fist and kick blows, as a result of which he succumbed to the injuries. We have no reason to doubt his implication of the three appellants as nothing of any consequence has emerged to show their false implication. The F. I. R. Was lodged while his father was being given beating and it is not possible to conceive that he would leave the real culprits and involve the appellants, with whom there was no enmity worth the name except for the disapproval shown by Younas on his visits to his brother-in-law's house. Shafi Ahmad deposed that after taking meals he went out of the house towards Latif's house, which is opposite to the house of Khurshid and from there they went towards the market side, where they saw the three appellants coming from that side and without any rhyme or reason Khurshid and Syed Nawab Ali gave him fist blows, which felled him down. He thereupon raised cries, which attracted Faizyab who also intervened. While Younas and Syed Nawab Ali gave him fist blows, Khurshid took out a knife and stabbed him. In the meantime Shabbir Ahmad came out of his house and as he bent to pick up Faizyab who had fallen down, all the appellants attacked him with fist kick blows. While he was being beaten Shafi Ahmad took Faizyab to Malir Police Station but on the way Syed Nawab Ali and Khurshid obstructed their way, upon which the deceased again intervened but he was given a fist blow on the stomach by Syed Nawab Ali, who fell down. He then took Faizyab to the police station for lodging the report. In the F. I. R.
Faizyab has not mentioned that Shafi Ahmad had taken him to the police station or that while being taken by him Syed Nawab Ali and Khurshid had come in the way, upon which his father intervened and he was then given a blow by Syed Nawab Ali on his stomach. He has also not stated so in his evidence, therefore, the part assigned to Syed Nawab Ali in causing the fist blow on the stomach and so also obstruct--ing their way along with Khurshid, is an improvement and can safely be brushed aside. Nonethless, we have no hesitation in accepting his evidence that he had witnessed the incident as he was himself beaten and his name was disclosed in the F. I. R. Which was lodged while the incident was taking place. There is another discrepancy between his evidence and that of Faizyab. While Faizyab stated that Younas was grappling with Shafi Ahmad, Shafi Ahmad has not mentioned about Younus but stated that it were Khurshid and Syed Nawab Ali who gave him fist and kick blows though at the same time he also mentioned that all of them bad attacked him. This discrepancy is hardly of any value as there cannot be any doubt that Younus must have also caused him blows while attacking him. As being the uncle of Faizyab he had a reason to fight with him which, of course, was that he should prevent Faizyab, from visiting Majid's house, upon which it was likely that there must have been hard talk between them.
7. Lastly Saghir Ahmad stated that he came out of the house along with his father, he saw his brother, Faizyab, bleeding from the injuries on his shoulder while Khurshid was standing and holding a bloodstained knife. The other two namely Syed Nawab and Younas, were there. Shafi Ahmad was also there and crying. As Shafi Ahmad took Faizyab to the police station, the appellants attacked his father and gave him fist and kick blows, as a result of which he fell down and died on the spot. He and Majid then took his father to the house. He was confronted with his 161 statement about Faizyab bleeding from his shoulder injury and Khurshid running with a knife, which he denied, but the contradiction was proved through the evidence of the investigating officer.
Apparently, this contradiction does not fit in with his evidence so far as the beating of his father by all the three appellants is concerned. In what context he had given that statement, is not clear. Be that as it may, there is the evidence of Faizyab and Shafi Ahmad to establish the presence of Khurshid and to implicate him in causing the blows to the deceasad, which we have no reason to doubt. If Saghir Ahmad had accompanied his father and had seen the appellants causing fist and kick blows, it is not understandable why he would say that Khurshid was escaping with the knife. It must therefore, be after the incident that he may have so meant.
8. In the cross-examination of the prosecution witnesses, the plea suggested is that the deceased fell down before he reached the vardat and died. Two of the defence witnesses, namely Kadir Khan and Wajid Ali have also stated so. The medical evidence belies this defence and we see no substance in it. Again it was suggested to Shafi Ahmad that the deceased on hearing about his son lying on the ground and bleeding, died of heart failure, which is also palpably false. The enmity suggested by the appellants is of no value and we see no reason why on such flimsy reason Faizyab would leave the real culprits and involve the appellants. Again, Younas has pleaded that he had dispute with Abdul Majid and it was Abdul Majid who had got him implicated. There is no foundation for this assumption as well. The nature of the dispute is not known and we see no reason why his own brother-in-law would get him implicated in a murder case, namely because of this friendship with Faizyab. We have, therefore, no hesitation in accepting the pro--secution case that it were the appellants who had caused the injuries to Faizyab and the deceased.
9. There is, however, difficulty in the way of accepting conviction under section 307, P. P. C. The doctor who examined Faizyab was not examined. Instead Dr. Syed Zafar-ul-Abbas was produced to prove the medico-legal report, which is Exh.
21. Dr. Syed Zafarul Abbas has stated that Dr. Mahmood had left Jinnah Hospital about a year back and had proceeded to U. K. And his address was not known. In cross-examination he admitted that he had only heard that he had gone to U. K., but had no personal knowledge. His evidence is, therefore, hearsay. No attempt was made by the prosecution to prove that he was not available to give evidence in the case. It might be that after leaving Jinnah Hospital he would be still in Pakistan. Before such evidence can be admitted, section 32, of the Evidence Act requires that it should be strictly proved that the witness was not available for giving evidence in the case and, it is thereafter that the medico-legal report could have been proved by someone who was acquainted with the handwriting. This requirement of law has not been adequately satisfied. Relying on Fazal Muhammad and another v. The State (PLD 1970 SC 405), the learned counsel for the State invited our attention to this lacuna and conceded that this evidence should be ruled out from consideration. We have no doubt that this is the proper course.
The result is that there is no medical evidence of the injuries sustained by Faizyab and in its absence none of the appellants can be convicted on a serious charge of attempt to murder. This is besides the question as to whether the other two, who were unarmed, shared the common intention with Khurshid to commit this offence. In view of the defect we have not gone into this question. Accordingly their conviction and sentence under section 307, P. P. C. Is set aside.
10. The next question for consideration is whether the conviction of the appellants under section 302/34, P. P. C. Can be sustained. Admittedly, the deceased came after Faizyab was stabbed.
Younas and Syed Nawab Ali were unarmed. Khurshid, who is said to have carried a knife, also did not use it. All the three belaboured him with fist and kick blows as is apparent from the external injuries suffered by the deceased. The doctor has opined that these injuries could have also been sustained by a fall but, in our view, the injuries are consistent with the beating given to the deceased by the appellants. The other opinion of the doctor is mere hypothetical and we attach no importance to it. The role of the deceased could not have been but to have gone to help his son from being beaten. For these reasons and the fact that only fist and kick blows were given, it is difficult to accept that whosoever gave the blow, the other shared the common intention with him of the knowledge that it was likely to cause death or grievous injury. Of course, on the evidence as to the beating given to him by fist and kicks blows, intention to cause death cannot be impugned to them. As already observed it is not known as to who caused the fatal fist blow and therefore in the context of the above reasons, none can be imputed for causing the blow on the stomach.
Therefore, all that can be said is that they could not have had a common intention higher than that to cause simple hurt. The learned State Counsel also conceded to conviction of the appellants under section 323/34, P. P. C.
11. In the result for the foregoing reasons we are unable to sustain the conviction and sentence under section 302/34, P. P. C. And alter it to one under section 323/34, P. P. C. And impose a sentence already under--gone and a fine of Rs. 500 or in default to suffer rigorous imprisonment for three months. The amount of fine, if realised, shall be paid to the heirs of the deceased. The fine to be paid within one week and on its deposit, the bail bonds shall stand discharged. Subject to the above modification in the conviction and sentence, the appeals stand dismissed.