GHAUS ALI SHAH, J.---This is an appeal filed b5 the Provincial Government through Advocate- General; Ex Officio Police Prosecutor under section 417, Cr. P. C. Challenging the acquittal of Gul Hameed son of Ghulam Rasul, resident of Ghulam Rasool Manzil, near Baghdadi Police Station, Karachi, who was tried for an offence under section 302, P. P. C. In respect of Crime No. 93 of Police Station Baghdadi of Karachi commit--ted on 21st February, 1976, in the `verandah' of Mashallah Hotel, Karachi. The case was tried by the learned VII Additional Sessions Judge, Karachi, who by his judgment-dated 16September, 1976, acquitted him. Mr. Ghulam Ali H. Agha. Advocate has appeared for the State and Mr. Sadiq Ali Khoja for the respondent.
2. The facts of the prosecution case as stated in the F. I. R. Lodged by the complainant Ghulam Rasool son of Ismail resident of Phool Gall No. 4 care of Haji Phool Wala House near Vermacellies Factory, Karachi, on 21st February, 1976 at Police Station Baghdadi of Karachi, are as under:- "I am residing at the above address since my childhood and I am originally resident of District Thatta, Tehsil Sakro, Haji Ram Debo Goth and am working in Karachi as Mistri. Today on 21February 1976 at 7-15 in the evening I was sitting at Salim Cycle Works in front of Mashallah Hotel, may companions Ali Mohammad son of Haji, aged 30/35 years, Caste Samo Deh Gaie and Anwar son of Mohammad Jumah Halo, aged 20 years were also sitting with me when in the meantime-Ali Mohammad on seeing a boy Gul Hameed son of Ghulam Rasool, resident of Ghulam Rasool (illegible) Gali No. 1 near Baghdadi P. S., standing in Mashallah Hotel, whom I know since 5/6 years, and who often meets in his Mohallah, called him and asked to listen him but Gul Hameed did not Borne on his call and said to Ali Mohammad "I am not coming, you should come here," whereupon Ali Mohammad went to him towards Mashallah Hotel. As soon as he reached-in the verandah thenth st Ali Mohammad asked Gul Hameed "brother what is the matter, why do you abuse me." Upon this Gul Hameed said to him, "I am going to show you a scene." Immediately Gul Hameed grappled with' my compa--nion Ali Mohd. Took out dagger and went on giving successive blows on the chest of Ali Mohammad due to which he got seriously injured and fell down and besmeared with the blood. Gul Hameed ran away from the spot with the dagger. I and Messrs Anwar son of Mohammad Juman Halo and Mohammad Tasleem son of Mohammad Yaqoob, proprietor Salim Cycle Works and other persons who were sitting in the hotel have witnessed this incident.
Thereafter I and Anwar put Ali Mohammad in a rickshaw, and tool: him to Civil Hospital in injured condition who died on the way, And Asghar Ali had also reached the Civil Hospital. Now I have come to spot after leaving the dead body of Ali Mohammad in Civil Hospital. My complaint against Gul Hameed is for killin--g my companion Ali Mohammad by causing him grievous injuries with the dagger."
3. The F. I. R. Exh. 4, was recorded by Imdad Ali S. H. O. P. W. 12 It was then incorporated as Exh.
32. In 154, Cr. P. C. Book by the A. S. I. Malik Aitbar. The S. H. O. Thereafter proceeded to the scene of offence which was shown to him by the complainant Ghulam Rasool inside Mashallah Hotel. He secured blood-stained earth from scene of offence and sealed it. He prepared such mashirnama Exh. 25.
He recorded statements of P. Ws. Nazeer Ali, Tasleem, Maqbool, Asghar and others. He then arrested accused/respondent Gul Hameed from his house and prepared such mashirnama Exh.
26. He also prepared mashirnamas of dead body and inquest report as Exhs. 22 and 23 respectively. He sent the dead body for post-mortem examination and the clothes of the deceased and earth to the Chemical Examiner for examination and report. He found injuries on person of Gul Hameed at the time of his arrest but did not prepare any such mashirnama. He however referred the accused to the Civil Hospital, Karachi for examination and certificate. He got state--ments of P.
Ws. Gul Mohammad, Mohammad Nazeer, Sikandar Tasleem and Anwar Ali recorded under section 164, Cr. P. C. On 4March, 1976. He thereafter challaned the accused to face trial under section 302, P. P. C.
4. Dr. S. Iqbal Ahmed P. W. 2, who performed the autopsy on the dead body of Ali Mohammad has been examined to prove death of the deceased resulting from injuries sustained by him. He has stated that there were as many as nine incised wounds on person of the deceased and the death was result of injury No. 3 being an incised wound, left side chest measuring 2" x 1" into cavity along with its internal findings collectively and individually sufficient to cause death in ordinary course.
The cause of death was haemorrhage and shock as a result of multiple homicidal stabs wound sustained by body by a sharp and pointed weapon like knife or any other similar weapon and all injuries were ante---mortem.
He had examined the accused/respondent as well on 22nd February, 1976 when he was referred to him by the Police. He had two injuries on his person, one being incised wound a right 'hand little finger, measuring 1/2" x 1/8" into superficial and the other being a contusion on left side upper eye lid measuring 1 /8" x 1 /8". Both the injuries were simple. Injury No. 1 was caused by some sharp- edged weapon like knife and injury No. 2 was due to hard blunt weapon.
5. The respondent/accused has however denied all allegations and has claimed to have been implicated due to dispute of his father with Juman over construction of a building. He has also stated that Ali Mohammad (deceased) was living with Juman. He has been implicated due to above enmity with his father. In reply to a question that he was having injuries on his band and finger at the time of arrest, he has replied that the injuries were result of beating by Police. He has further stated that the witnesses have been set up against him.
6. There is no doubt that the deceased Ali Mohammad died as a result of injuries sustained by him on the day and place as stated in the F.I.R.th
7. The prosecution case is mainly based on ocular testimony and a circumstance of injuries on the person of the respondent/accused at the time of arrest and medical evidence.
8. The trial Court has acquitted respondent/accused and reasons for such acquittal as we have been able to find for passing the judgment of acquittal are--
(i) that the eye-witnesses have not witnessed the incident and there--fore their evidence was not reliable. The trial Court has advanced the reasons for not believing such evidence.
(ii) In absence of mashirnama of injuries on person of the accused/ respondent, he cannot be connected with commission of offence.
9. The prosecution has led the evidence of the complainant Ghulam Rasool P. W. 1, Anwar Ali P. W. 3, Sikandat Din P. W. 4, Nazar Mohammad P. W. 5 Gul Mohammad P. W. 6, Mohammad Tasleem P. W. 8, who are all eye-witnesses of the incident. Mohammad Tasleem P. W. 8 out of them is a Mistry who used to work opposite Mashallah Hotel, He has not supported the prosecution case and has been declared hostile and so that also Gul Mohammad P. W. 6 who was a bearer at Cafe Mashallah.
Sikandar Din P. W. 4 and Nazar Mohammad P. W. 5 are both employees at Mashallah Hotel. P. W, Nazar Mohammad has admitted in cross examination that he was taken to Police Station at about 9-00 p.m. On the day of incident and was made to sit in lock-up for some time. He was afterwards made to sit in verandah and he remained at the police station till 5.00 p.m. Next day. He has also stated that he was not prepared to give statement but his statement was forcibly taken on next day. It was only after this that he was released. Sikandar Din P. W.4 is also employee of Mashallah Hotel and was working in the oven on the day of incident. According to him the incident took place at 7 or 7-30 p.m. When .He was preparing `Roti--- at Mashallah Hotel. The light was on at the time when the incident took place. The contractor of the hotel took him to the police station on the next day of incident. As far as the testimony of these four witnesses is con--cerned, it is full of infirmities apart from the fact that their names did not appear in the F. I. R. Or even any kind of mention regarding their presence at the spot has been shown. The evidence of Ghulam Rasool complainant P. W. 1 and that of Anwar Ali No. 2 is also contradictory in respect of their coming to the place of incident, hiring a cycle and going by cycle to different places. The ocular testimony therefore is not free from doubt and has rightly been rejected.
10. The S. H. O. In his evidence has stated that the police station was at a distance of about 20 paces from the scene of offence still he preferred to record the statement of the complainant on a white paper at the place of incident and forwarded the same for registration in 154, Cr. P. C. Book. It would be interested to mention here that the com--plainant has stated that his report was recorded at the police station when he and Anwar Ali P. W. Took Ali Mohammad (deceased) to police station. The other circumstance through which corroboration to the ocular testimony is being sought is injuries on person of the accused/ respondent. The explanation of the accused for injuries on his person in his statement under section 342, Cr. P. C is that he was beaten by police and the injuries on his person were result of it. The police however, did not prepare any mashirnama of injuries on person of the accused at the time of his arrest. He was not referred to the Medical Officer on the first day of his arrest for examination, treatment and certificate of his injuries. He has been referred to the Medical Officer on 22February, 1976. This in any case casts shadow of doubt if the accused bad really injuries on his person on the first day when he was arrested. If yes, what were the circumstances for not preparing any mashirnama for such injuries on his person before referring him to the Medical Officer on 22nd February, 1976. Moreover none of the alleged eye-witnesses have said that the respondent accused received injuries at the time of fight and under what circumstances. The complainant Ghulam Rasool has not said anything about these injuries either in F,
1. R. Or in his deposition and so also Anwar Ali.
11. Mr. Ghulam Ali H. Agha, the learned counsel for the State, has laid great stress upon the evidence of the complainant Ghulam Rasool P. W. .1 and Anwar Ali P. W.
3. It has been contended by him thatnd they are natural witnesses and their presence cannot be doubted. They have witnessed the incident and have carried the deceased to the hospital immediately after occurrence. Their evidence stands corroborated by the medical evidence and the circumstance of injuries on person of the accused. Moreover the incident being of a broad day, there is no reason to substitute the real culprit and implicate the accused. The prosecution has successfully proved the charge of murder against the accused and no doubt is left that it was the respondent who caused injuries to the deceased. Therefore acquittal of the respondent/accused has resulted in miscarriage of justice.
12. Mr. Sadiq Ali G. Khoja, the learned counsel for the respondent/ accused on the other hand has contended that the prosecution has miserably failed to prove guilt of the accused. His contentions are that ocular testimony is not worthy of reliance particularly when Mohammad Tasleem P. W. 8 and Gul Mohammad P. W. 6 have been declared hostile, P. W. Nazar Mohammad has admitted to have given evidence under pressure of the police. Sikandar Din is a set up witness as he has neither been examined on the first day nor his name has been mentioned in the F. I. R. As far as evidence of the complainant Ghulam Rasool P. W. 1 and Anwar Ali P. W. 2 is concerned, it, is contradictory to each other on most material facts and leads to only conclusion that either of is telling lies. Actually they have not stood the test of cross-examination and both of them have exposed themselves to such an extent that none of them could be believed.
13. The learned counsel for the respondent/ accused has also contend--ed that in spite of the fact that all powers vest in this Court still criterion of appreciation is bound to be different in case of acquittal appeal. He has relied upon the following cases in which the principles of appreciation of, evidence have been well settled:-
(1) AIR 1934 P C 227.
(2) PLD 1964 SC 422.
(3) AIR 1944 Sind 124.
14. We have heard the learned counsel for the State as well as the respondent/accused. We have also considered the evidence on record. We are of the opinion that the views of the trial Court, which have been formulated regarding credibility of the witnesses, are based on sound reasoning particularly when the whole case hinges on ocular testimony.
We have also given our anxious thought to the ocular testimony. The evidence of P. W. Nazar Mohammad cannot be accepted when he has himself admitted that he has given evidence under pressure of Police. According to him he was locked up before his statement was recorded by the police. How such a testimony can be made basis for conviction of any person particularly on a capital charge. Mohammad Tasleem P. W. R and Gul Mohammed P. W. 6 have already been declared hostile as they have not supported the prosecution case. We have considered evidence of the complainant Ghulam Rasool P. W. 1 and another eye-witness Anwar Ali P. W. 3 separately. After going through their versions we have no hesitation to say that both of them have given contradictory evidence on the point of reaching on the place of incident, hiring a bicycle and going by bicycle for their works. According to the complainant Ghulam Rasool he and P. W. Anwar Ali were sitting at the cycle shop when Ali Mohammed (deceased) came there. Again the complainant stated that he and Anwar Ali P. W. 3 bad hired one cycle and both of them had gone together on the same cycle to Bheem Pura where they made purchase of pipes, whereas according to Anwar Ali, he had hired a cycle about two hours prior to the incident and he had gone all alone by it and that he had gone for a booking of a film but he could not get the same. He also did not remember the name of cinema. According to him he had gone to the shop of Saleem to return the cycle and he could not say as to from where Ghulam Rasool came there. Apart from his admission that the deceased Ali Mohammed was first residing with them but he left them at the time of incident and he had resided with them for a sufficient time and left 2-3 years before this incident. He has also said that many people were present at the time of incident. He cannot give the names of those persons who were present at that time. He has been examined by the Police on the next day without any reason for it. However after gong through the evidence of both these impor--tant eye-witnesses for whom a great stress was laid that they being resi--dents of the locality, their presence at the time of occurrence has been established.
15. We however hold that their presence in view of their contradictory statements is not only doubtful but it has established the fact that they were not at all present at the time of incident. We have examined their connection with the deceased and we are of the view that the assailant would not have escaped from the scene of offence if both these witnesses were present there. As their natural conduct would have been to intervene even at the cost of receiving injuries. It would be noteworthy to say that Anwar Ali P. W. 3 has even admitted that Ghulam Rasool complainant was working with them. In reply to a suggestion from the defence, if the deceased was his stepbrother to which he has of course denied, but, there is admission on the part of Anwar Ali that Ali Mohammad (deceased) had resided with them for a sufficient time and had left only 2-3 years before this incident.
16. After examining the ocular testimony minutely and all aspects of the case we feel that the judgment of the trial Court is neither based on any illegality nor on improper appreciation of evidence. The evidence on the contrary has been properly thrashed out in view of the circumstances of the case.
The case like this which rests wholly on direct evidence of witnesses shall always be considered in view of the established rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. We therefore hold that the trial Court had read the evidence clearly and has formulated grounds of doubt which are not perverse or wholly illogical or unreason--able. Therefore we find a clear risk of departure from the rule of benefit of doubt in reversing such findings which have been arrived after proper appreciation of evidence.
17. In the result, we are of the view that acquittal of the respondent accused was quite justified under the circumstances of the case and it has not caused any miscarriage of justice.
We therefore do not find any substance in this appeal and hereby dismiss it.