Appellants above-named, being aggrieved by judgment dated 8-6-1981 of learned VII th Additional Sessions Judge, Karachi, by which appellants have been convicted under section 302/34, P. P. C.
And each of them sentenced to undergo life imprisonment and to pay fine of Rs. 5,000 in default to undergo R. I. For six months more and convicted under section 323/34, P. P. C. And sentenced to suffer further R. I. For one month and to pay fine of Rs. 50 each, in default to undergo R. I. For one week more have preferred this appeal, on the following fact's and grounds
2. Briefly the case of the prosecution as disclosed in F. I. R. Exh. 6, lodged on 28-8-1978, by complainant Salahuddin is, that the complainant used to reside with his paternal uncle namely, Khawas Khan in the compound of Ice Factory, Dr. Ziauddin Ahmed Road, Karachi. Regarding the incident, he has alleged, that at about 6-45 p. m. He, his uncle Khawas Khan and his aunt Diljan were in their quarter. It was the month of Ramzan and Allauddin deceased, who is the cousin of complainant eras sitting outside his house, alongwith a by Dilshad, in front of the house of Gul Muhammad. Appellant Asif Zada, the cousin of appellant Gul Muhammad bad objected of his sitting there, but Allauddin insisted upon his sitting at that place. In the meantime, appellants Imam Zada, Khan Muhammad and Gul Muhammad came out of their houses. On hearing commotion, Khawas Khan and the complainant also came out of the house. On enquiry Allauddin disclosed to them the whole talks of the appellants, whereupon Khawas Khan requested the appellants and legged of them not to quarrel, but appellants were determined to pick up the quarrel. It is alleged that the appellants went into their house and return--ed armed with weapons. Khan Muhammad had a Dunda, Imam Zada had iron bar, while Gul Mohammad and Asif Zada had knives.
Immediately they attacked the complainant party. Khan Muhammad instigated, that the complainant party should not be spared. It is specifically alleged, that Allauddin was given a knife blow on his stomach by appellant Gul Muhammad. Complainant also sustained injury on his back, nose and arms. The injured Allauddin was removed to Civil Hospital, but he expired, on his way to hospital. In the F. I. R. It is stated, that the incident was witnessed by Khawas Khan, Diljan, Sbahida Parveen, and Haqani Khan, Chowkidar of the compound. On the above report of Salahuddin at Civil Lines, Police Station at about 8-15 p. m., a case was registered against above-named appellants.
The case was investigated by S. I. P. Muhammad Mahboob Khan, P. W. 15.
3. As deposed to by A, S. P. Muhammad Mahboob Khan, in his de--position Exth. 33, on the day of incident in his absence at about 7 p. m. Dr. Lqbal from Civil Hospital had sent a message to the Thanna, which was entered in Station Diairy by duty officer S. I. Abdul Razzak, vide Entry No. 32 Exh.
34. The message was to the effect, that one Allauddin had been brought dead in the hospital. As soon as be reached the police station, he got the information and proceeded to Civil Hospital, Karachi, after making an entry in the Roznamcha. At the hospital he found complainant Salahud-- din, whom he brought to the police station and on his report, he registered the case vide F. I. R. Exh.
6. He then again went to the hospital with Salah--uddin and prepared the memo. Of dead body in the presence of Salahuddin and Habibur Rehman. He produced the Mashirnama to this effect as Exh. 19, He also prepared the inquest report of the dead body, which is Exh- 20. This witness has corrected himself by deposing that after the registration of the case, he had proceeded, to the place of occurrence, which is near the police station and on the pointation of Salahuddin, he prepared the memo. Of scene of occurrence and collected blood-stained earth from there and prepared such memo. Which is Exh. 11 and signed by Nazir Ahmad and Muhammad. Hassan. He also produced the site sketch as Exh.
36. It was thereafter he proceeded to the hospital and prepared Exhs. 19 and 20 as stated above. He recorded further statements of Salahuddin, and examined witnesses under section 161, Cr. P. C. Namely; Gut Sharif, S. I. Abdul Razzak, A.S.I.
Muhammad Aziz, Khawas Khan. Mst. Dil jan, Haqani Khan, Khuba Gut, Muhammad Fayyaz, Nazir Ahmad, " Muhammad Hassan, Muhammad Anwar, Habibur Rehman and Anwar Zarin. According to him, appellant Khan Muhammad was arrested on that very day by S. I. Abdul Razzak. Appellants Gut Muhammad and Asif Zada were arrested by A. S. I. Muhammad Aziz and appellant Imam Zada was arrested by S. I. Abdul Razzak on 19-8-1978. Appellant Gut Muhammad had some injuries on his person hence he was referred to doctor for examination. He obtained medical certificate, which is Exh.
30. He then again sent appellant Gut Muhammad, alongwith a letter to Police Surgeon to re- examine him with regard to the cut marks on his shirt, which was secured by A. S. I. Abdul Aziz. The letter and the opinion of Police Surgeon on it is Exh.
32. The shirt of the appellant is article 'A'. On 2- 9-1978, appellant Gut Mohammad volunteered to produce crime weapon and led him and mashir Fayaz and Khuba Gut to the servant quarter of Khan appellant, from where he produced a knife, which was lying concealed in the verandah of the quarter under the Gas cylinder. He secured the knife and sealed it vide Mashirnama Exh.
17. The knife is article `B'. He despatched the blood-stained articles to the Chemical Examiner and produced the report of Chemical Examiner as Exh. 37, which shows, that all the articles sent to him in this case, were found stained with human blood. The complainant was also sent for medical Treatment and certificate. After completing the investigation, he submitted the challan in the lower Court.
4. At the trial the prosecution in support of its case has examined .P. W. 1 Salahuddin, complainant.
P. W. 2 Khawas Khan, father of the de--ceased, P.W. 3 Mst. Diljan, mother of deceased, P.W. 4 Gut Sharif, P.W. 5 Nazir Ahmad, Mashir Haqqani P.W. 6 P. W. 7 Aurang Zareen, Mashir, P.W. 8 Khuba Gut, Mashir, P.W. 9 Habibur Rehman, Mashir, P.W. 10 A.S.1. Abdul Razzak, P.W. 11 Muhammad Fayaz, Mashir, Court witness Muhammad Farid process-server in respect of non-service of process on PW Mohammad Anwar and Mohammad Hassan, P. W. 12 Dr. Syed Iqbal Ahmed, P. W. 13 Dr. Anwar Ali, P.
W. 14 Qaiser Rasool, Police Surgeon, P. W. 15 Muhammad Mahboob Khan, S. I. Investigating Officer Court witness No. 2 Mohammad Farid, Process Server in respect of non-service of process on A. S. I.
Muhammad Aziz.
5. The appellants in their statements under section 342, Cr. P C. Have pleaded innocence and they have denied the various allegations against them. Their case is that they have been falsely involved in the case due to enmity. They stated, that the complainant and the deceased have themselves fought with each other, over the domestic affairs, Accord--ing to them, deceased Allauddin was killed not by them, but by P W. Salahuddin. They have examined three defence witnesses, namely, D. W. 1 Gulshad Khan, D. W. 2 Purdil Khan and D. W. 3 Noor Muhammad and explained the injuries on their person.
6. The learned trial Court taking into consideration the evidence adduced by prosecution as well as defence, convicted and sentenced th--e appellants as hereinabove mentioned, vide its judgment dated 8-6-1981. Appellants above-named being aggrieved by impugned judgment dated 8-6-1981 have al. Referred this appeal on the grounds mentioned in the memo. Of appeal.
7. The learned Advocates for the appellants in support of the grounds of appeal stated as under :- (a)That P. Ws. Salahuddin, Khawas Khan and Mst. Diljan are closely related to the deceased and as such interested witnesses and consequently no reliance can be placed on their evidence, without independent corroboration, which is not at all available in the present case. The learned Advocates in support of this conten--tion, relied on cases reported in PLD 1981 Kar. 1, PLD 1973 SC 321 and I L R 1943 Kar. 148.
(b) That independent prosecution witnesses were not at all examined by the prosecution.
(c) That statements of P. W. 4 Gul Sharif and P. W. 6 Chowkidar Haqani and D. W. I Gut Shad (mentioned as P. W. In F. I. R.) falsify prosecution story.
(d) That learned trial Court disbelieved alleged recoveries from appellants, but erroneously and illegally relied upon injuries on person of appellants as corroborative evidence to support the statements of P. Ws. 1, 2 and 3, in spite of the fact, that there is no mention of any injuries suffered by appellants in F.I.R. And appel--lants have explained the said injuries in their Cr. P. C. Statements.
In support of this contention, the learned Advocates for appel--lants relied on cases reported in PLD 1960 Lah. 1 and 1971 SCMR 437.
(e)That there was no evidence on record to attract the provisions of section 34, P. P. C. To the case of appellants Khan Muhammad, Imamzada and Asifzada at all. The case reported in PLD 1957 SC 287, relied upon by the learned trial Court in this connection is distinguishable. In support of their contention the learned Advocates relied on cases reported in PLD 1977 Kar. 180, 1975 SCMR337and 1969SCMR612.
(f) That even on the basis of prosecution allegations, the case against the appellants would fall under section 304, P. P. C. And not under section 302, P. P. C. At all.
(g) That according to Mashir of scene, there was no blood at the actual alleged place of incident and as such prosecution has tried to change the scene of offence and consequently no reliance can be placed on prosecution case at all. In support of this, learned Advocates relied on case reported in 1981 SCMR 132.
(9) The learned Advocate appearing for the State on the other hand submitted, that there was ample evidence on record as far as appellants Gut Muhammad and Khan Muhammad were concerned and as such he supports the judgment of the learned trial, Court in respect of these two appellants only.
10. The learned Advocate for the complainant submitted, that mere relationship of P.Ws. To the deceased, in the absence of motive for false implication is no ground to discard their ocular testimony. He further submitted that case reported in 1981 SCMR ,132 is distinguishable, from present case. He further submitted that this is a fit case for enhance--ment of sentences of the appellants.
11. I have carefully considered the above submissions made by the learned Advocates and have gone through the statements of all the wit--nesses examined by the learned trial Court, as well as through the impugn--ed judgment and have also gone through the various authorities cited before me.
12. The first contention of the learned Advocates for the appellants, that no reliance can be placed on the statements of P. Ws. Salahuddin, Khawas Khan and Mst. Diljan as they are closely related to the deceased and as such interested witnesses, without independent corroboration, has great force. It is an admitted position that these three alleged eye-witnesses are closely inter-related and in view of the facts and circumstances of the present case, specially in the absence of any blood at the site of the alleged incident, no reliance can be placed on their evidence, without A independent corroboration. 1n this connection, learned Advocates, for the appellants have relied upon cases reported in PLD 1981 Kar. And PLD 1973 SC 321, with which I am to full agreement, for the reasons given in the said judgments.
13. The second contention of the learned Advocates for the appel--lants, that the prosecution has failed to examine independent eye-witnesses also has great force, specially as it is an admitted position that any independent eye-witnesses were available at the time of incident, but none of them have been examined by the prosecution, including one Gut shad Khan, whose name is mentioned in the F. I. R. And according to the prose--cution, he was sitting with the deceased, at the time of the incident. It may be noted that Gulshad Khan, however, was examined as D. W. 1 by the appellants and he has not at all supported the prosecution case, but on the contrary has stated in his examination-in-chief, that it was P.W. Salahud--din, who gave knife blow to the deceased, who took shelter in the house of Qasim Shah. In the cross-examination of this witness, prosecution has tried to establish, that he was not present at the site, in complete contra--diction of the version as given in F. I. R. It may also be noted that P.W. 1 Salahuddin also mentions in his cross-examination, that deceased Allaud--din after receiving the injury, neither Qasim Shah was examined by Police nor any efforts were made to inspect his house in order to find out blood in the said house, specially when according to Mashirnama of wardat and the statements of P.Ws. There was hardly any blood on the alleged site of the incident. The other witnesses, P.Ws. Gut Sharif and P.
W. 6 Chowkidar Haqqani the alleged independent eye-witnesses of the incident have not at all supported the prosecution case and as such were declared hostile In view of this, the presumption arises, that the independent eve-witnesses of the alleged incident were not cited nor produced by the prosecution, as perhaps, they were not willing to toe the line of the prosecution, as alleged by the learned Advocates for the appellants.
14. The third contention of the learned Advocates for the appellants, that the statements of P.W. 4 Gut Sharif and P.W. 6 Chowkidar Haqqani and D.W Gulshad Khan falsifies prosecution story, also has great force. In this connection, evidence of D. W. 1 Gulshad Khan, who is supposed to have been sitting with deceased Allauddin at the time of incident is very im--portant, because his presence is admitted in F. I. R. In spite of this, prosecu--tion did not care to examine him. It may be noted, that when this witness was produced as a defence witness and stated on oath, that it was P. W. 1 Salahuddin who gave knife injury to the deceased Allauddin, the prosecu--tion attempted to show, that he was not present at the site; at the time of incident.
15. The fourth contention of the learned Advocates for the appel--lants, that learned trial Court rightly disbelieved alleged recoveries from the appellants, but for purpose of corroborating the statements of P. Ws. Salahuddin, Khawas Khan and Mst. Diljin, erroneously relied upon inju--ries on the persons of Gut Muhammad and Khan Muhammad appellants to establish their presence at the time of incident and taking part in the said incident, also has great force. It may be noted that there is nothing in the F. I. R. To suggest, that appellants Khan Muhammad and Gut Muhammad received any injuries in the incident in question. On the contrary, both the appellants have given plausible explanation for the injuries on their person and appellant Gut Muhammad has even produced D. W. 3 Noor Muhammad in support of his explanation. The appellants also produced ^.
W. 2 Pherdil Khan, the resident of the compound in question, to which the incident in question is alleged to have been taken place and this defence witness has fully corroborated the statement of D. W. 1 Gulshad Khan, that it was P. W. 1 Salahuddin, who gave knife blow to the deceased and the deceased ran and took shelter in the house of Qasim Shah. The evidence of the defence witnesses, namely D. W. 1 and 2 and the state--ment of P.W. I Salahuddin and the absence of blood at the place where the incident is alleged to have been taken place, as envisaged by Mashirnama of wardat, clearly supports the contention of the learned Advocates for the appellants, that the incident did not take place as given in the F. I. R. And the prosecution has tried to shift the scene of incident with ulterior motive and as such the prosecution case cannot be believed at all. In support of these contentions, learned Advocates for the appellants relied upon cases reported in PLD 1960 Lab. 1, 1971 SCMR 437 and 1981 SCMR.
132. These cases fully support these contentions of the learned Advocates for the appellants and cast great doubts on the claim of P. Ws. Khawas Khan and Mst. Diljin, that they have witnessed the incident in question.
16. The fifth contention of the learned Advocates for the appellants that prosecution has led no evidence so as to attract the provisions of section 34, P. P. C. In respect of appellants Khan Muhammad, Imamzada and Asifzada also has great force, as it is an admitted position from the version of the incident as given in the F. I. R. That there was a sudden quarrel in which the deceased received injuries and as such the question of all the appellants having common intention to cause the death of the deceased cannot merely be presumed on the basis of the prosecution evidence brought on record, even if the same is believed. However, the applicability of section 34, P. P. C.
Would only come into play, after the prosecution has established its case against appellant Gut Muhammad.
17. In view of my above conclusions, I am of the opinion, that evidence of P, Ws. Salahuddin Khawas Khan and Mst. Diljan need independent corroboration, which is not at all available in the present case and the reliance placed by the learned trial Court for such corroboration on the n injuries found on the persons of appellants Khan Muhammad and Gul Muhammad, which are not mentioned in the F. I. R. Is erroneous. In this connection the case reported in PLD 1960 Lah. 1 supports this conten--tion of mine, specially in view of the explanation given by the said two appellants in respect of the said injuries on their person.
18. Therefore, I am of the opinion that prosecution has failed to establish its case beyond reasonable doubt against any of the appellants and as such, I allow the above appeal and set aside convictions as well as sentences awarded to appellants and acquit them, by giving benefit of D doubt. Therefore, I direct that appellant Gul Muhammad be released forthwith, he is not required in any other case, as far as appellants Khan Muhammad, Imamzada and Asifzada, I discharge their bail bonds.