1. SAJJAD ALI SHAH, J.---This acquittal appeal has been filed against the judgment dated 12.11-1975 of Ex Officio IIIrd, Add]. Sessions Judge Karachi whereby respondent namely Dillu son of Hashim, who was charged for offence under section 302, P. P. C. Has been acquitted.
2. Brief prosecution story is that deceased Ghazi lived in his house Jhoona Kalri, Baghdadi Karachi and respondent Dillu and his brother Dadal also have a house there close to the house of the deceased. There was a dispute between the parties over approaching passage to the house of the deceased. On the day of incident i. e. 28-1-1972 at about 5 p. m. Complainant Noor Bux, who is originally resident of Sonmiani, came to visit his sister's son Ghazi deceased in his house and when he reached near that house he found that the passage was blocked. At that time respondent Dillu came and caught hold of him and gave a call to his brother Dadal who came out from the house with a knife and stabbed Noor Bux complainant. In the meantime deceased Ghazi also came out from the house and respondent Dillu caught hold of Ghazi while Dadal assaulted him with knife.
3. Mst. Mah Bano, sister of deceased Ghazi, Mat. Mah Bano and other people of Mohalla came there and saw the' incident. Complainant Noor Bux, who was injured himself, went to the Police Station for report. In the meantime injured Ghazi was removed to the hospital and on the way he succumbed to his injuries. The hospital informed the police station about death of Ghazi due to knife injurieo.
4. Such entry was made in the daily diary by the duty officer of Polica Station Baghdadi before the arrival of complainant. Complainant lodged his F. I. R. At 8-45 p. m, at 10-30 p. m. On the same day respondent Dillu also went to the same Police Station and lodged his counter report for offence under section 324, P. P. C. He had taken with him his wife and mother and all the three were found in injured condition. Respondent Dillu was arrested. S. H. O. Muhammad Hussain went to the hospital where inquest report of the dead body of Ghazi was prepared and the body was handed over for post-mortem examination. He then proceeded to the place of occurrence which was pointed out by complai--nant Noor Bux. Ho took into possession blood-stained earth, matting and wood. He recorded statements of Abdul Ghafoor, Fakir Mohammad Mian, Bazid, Mst. Sher Bano and Mst.
5. Manza. He also seized blood--stained clothes of respondent Dillu. After the investigation was com- -pleted challan was presented in the Court.
6. Prosecution has examined 10 witnesses in support of its case. P. W. 1 Mst. Sher Bano, P. W. 3 Bazid, P.
7. W. 5, Mian, P. W. 6 Noor Bux and P. W. 8 Fakir Muhammad have been examined as eye-witnesses of the incident. Statements of doctors M. S. A. Farooqi, Zeba Irfanullah and Muhammad Ramzan recorded before the Committing Court were transferred to the file of Sessions. Doctor Farooqi conducted post-mortem examination. Dr. Zeba examined complainant Noor Bux and found three incised wounds on his person. She also examined respondent Dillu on the same day and found 6 injuries on his person. She also examined Mst Bakhto and Mst, Ganj Khatoon and found injuries on their person.. All the injuries of four persons examined by her, were simple in nature. Other P. Ws.
8. Examined by prosecution were of formal nature.
9. It may be mentioned here that in F.I.R. Respondent Dillu and his brother Dadal were both named as assailants but Dadal could not be arrested as he had absconded. Only respondent Dillu was tried and in his statement under section 342, Cr. P. C. Before the trial Court he has denied prosecution allegations levelled against him and further stated that deceased Ghazi was aggressor. It is asserted by the respondent in that statement that the disputed passage is part of his house and the complainant party were forcing him for the last three years to vacate that house. On the day of incident Noor Bux and Ghazi came to his house and Noor Bux abused his wife and both of them assaulted him with danda. His wife and Moballah men also attacked. He went uncon--scious. He could not say how Ghazi died. The appellant bas also examined his mother Mst. Ganj Khatoon and his wife Mst. Bakhto in his defence. ---We have heard the arguments of the learned counsel appearing for each side and in the light of those arguments and submissions we have examined minutely the record of the case.
10. Prosecution case mainly depends upon ocular evidence of the five eye-witnesses which was sought to be supported by medical evidence and that of motive. From the eye--witnesses P. W. 3 Bazid has not deposed as an eye-witness. He stated be--fore the trial Court that he came to the spot on cries and found a crowd of persons at the spot. He found Ghazi lying dead and his body was profusely bleeding: He learnt from the persons that Dillu had inflicted injuries. This witness failed to give the names of the persons who informed him that Dillu had inflicted injuries. The evidence of this witness is heresay and rightly rejected by the trial Court. P. W. 1 Mst. Sher Bano is sister of deceased Ghazi and niece of complainant Noor Bux. P. W. 5 Mian had denied before the trial Court that he was uncle of deceased Ghazi and P. W. 8 Fakir Muhammad has admitted this relationship between P. W. Mian and deceased Ghazi. P. W. Fakir Muhammad has further admitted that he is friend of P.W. Mien. Noor Bux complainant is maternal uncle of deceased Ghazi. All these witnesses are closely related to the deceased with the exception of Faqir Muhammad, wan is also friend of Mian. These witnesses are interested. Complainant Noor Bux is an injured eye-witness but he has not given convincing version of the incident. In fact the evidence of all these eye-witnesses is replete with contradictions and discrepancies and they have not taken a consistent stand.
11. Complai--nant Noor Bux went to the Police Station in injured condition and filed F.I.R. According to the F. I. R. Complainant was stopped by respon--dent Dillu when he was going to the house of Ghazi. Dillu caught hold of him and called his brother Dadal who inflicted injuries on him with a knife. On the cries deceased Ghazi came out from the house and Dillu is said to have given up the complainant and caught hold of Ghazi who was given knife injuries by Dadal. Further according to F. I. R. Only Mst. Sher Bano and Mst. Mahbano have been specifically named as eye-witnesses.
12. Before the trial Court complainant has stuck to `this version of incident as narrated in F. I. R. But P. W.
13. 1 Mst. Sher Bano has given a different version of incident before the trial Court. She has testified that respondent Dillu stabbed Noor Bux with 'chhuri' and when her brother Ghazi came and intervened, Dillu attacked him with chhuri and struck blows on his neck. She further stated that Dadal brother of Dillu was also present. In the same breath she changed her version and said that it was Dadal who stabbed Noor Bux and Ghazi while Dillu had held them. She has given both these conflicting versions in her examination-in-chief before the trial Court and further stated that other witnesses namely Mian, Fakir Muhammad and Abdul Ghafoor came to the spot after about half an hour of the incident. This shows that according to Mst. Sher Bano, Mian and Fakir Muhammad who have been examined before the trial Court are not eye-witnesses of the incident. P. W. 8 Fakir Muhammad has deposed before the trial Court that on cries he came out and saw Dadal and Dillu assaulting Noor Bux. Ghazi came and intervened whereupon Dillu stabbed Ghazi by chhuri at his neck. Ghazi fell down unconscious. P. W. 5 Mian has deposed before trial Court that on cries he came out and saw Dadal and Dillu assaulting Noor Bux and on the intervention of Ghazi, Dillu caught hold of Ghazi and Dadal struck a knife blow to Ghazi who fell down injured. There are so many other contradictions also. P. W. Had concealed his relationship with the deceased and also denied that ho was Zikri by caste. He denied a suggestion before the trial Court that only Zikris resided in that Mohalla but was confronted with his state--ment before Committing Court where he has said so. He had stated before Police that on hearing the noise he came out from the house and found Noor Bux already in injured condition. P. W. Fakir Muhammad testified before the trial Court that he slid not see any injury on the head or any other part of the body of Dillu. He denied before the trial Court having been mother and wife of Dillu present at the spot but was confronted with his statement before the Inquiry Court where he had admitted having seen them injured and bleeding. Likewise P. W. Mian also denied the presence of the mother and wife of Dillu at the spot or at the time when the police arrived. On the other band Mst. Sher Bano has deposed before the trial Court that the mother and wife of respondent Dillu were present at the spot at the time of incident.
14. She denied having noticed any injuries on their persons but she stated that they might have received injuries at the time of incident and she might not have noticed those injuries on them. She admitted having seen some injuries on the person of Dillu. Before the Committing Court she: had stated that she had seen knife injuries on the persons of these ladies but those injuries were inflicted by Dadal. She denied a suggestion before the trial Court that Noor Bux and Ghazi had attacked Dillu, Dadal and the ladies. She further admitted before the trial Court that Dillu was not Zikri by caste and it was correct that in their Mohallah no person who was a non-Zikri lived there with the exception of Dillu. She denied a suggestion that Ghazi and Noor Bux wanted to eject Dillu forcibly from the Mohallah. One other prominent feature of her evidence is that she excluded the presence of Mian and Fakir Muhammad at the spot at the time of incident. In view of these discrepancies it can be said the the evidence of these eye-witnesses is highly doubtful and it is possible that they were not present at the spot to see the incident with the exception of Noor Bux complainant who was injured. Noor Bux complainant has also not spoken the whole truth and has concealed many material facts. Neither in F. I. R. Nor before the trial Court he has admitted or explained the injuries on the persons of respondent Dillu, his wife Mst. Bakhto and his mother Mst.
15. Ganj Khatoon. These injuries are medically respondent Dillu that a blood-stained stick and a `chatti' were recovered from the spot bf the Investigating Officer. Doctor Zeba Irfanullah has deposed that she found three incised injuries on the person of Noor Bux, five injuries mostly contusions and a swelling on the person of Dillu. Two contusions were on the head, one on the bridge of nose and one on the ankle. There was swelling on the left cheek. She found one con--tusion on the forearm of Mst. Ganj Khatoon and two incised wounds on the arms of the Mst. Bakhto. She declared all the injuries on the person mentioned above to be of simple nature.
16. Chhuri, the alleged weapon of crime has not been recovered. Recovery of blood-stained clothes of Dillu is not helpful to the prosecution because he was also injured. The evidence of the prosecution is not con--sistent whether respondent Dillu caused injuries or absconder Dadal had caused them.
17. Prosecution witnesses have cancelled the true facts. From the evidence brought on the record, it appears that there was a sudden quarrel between the parties in which persons from both parties were injured. Counter report was filed by Dillu on the 'same day. Respon--dent Dillu in his statement under section 342, Cr. P. C. Before the trial Court had stated that Moor Bux and Ghazi came to his house and attacked him and his wife. He further has stated that his wife and Mohallah men retaliated and due to injuries he had become unconscious so he could not explain how Ghazi came to be murdered. Both Mst. Ganj Khatoon and Mst. Bakhto, mother and wife of respondent Dillu were examined in the trial Court as defence witnesses and they have supported the version of respondent Dillu which is to the effect that complainant party was aggressor and they received injuries at the hands of Noor Bux complainant and deceased Ghazi. They have not mentioned anything about the part allegedly played by Dadal. They have further stated that they were the only non-Zikris in that locality and the Zikris wanted them to vacate the house. Both these versions of the incident given by the parties are in conflict with each other and it cannot be ascertained as to which of the two parties was aggressor.
18. In the circumstances, the finding of the trial Court giving benefits of doubt to the respondent and acquitting him is perfectly justified. We find no reason to interfer with the impugned judgement.
19. Appeal is dismissed.
20. AGHA ALI HYDER, J.---I agree.