ALI NAWAZ BUDHANI, J.---This is an appeal against the judgment of acquittal recorded by the learned IVth Additional Sessions Judge, Karachi on 29-10-1974. By our short order dated 12-10-1982 we had dismissed the appeal for reasons to be recorded later. The reasons thereof are as follows :-
2. The five respondents namely Hamidullah son of Masitullab, Rais Ahmed son of Nasir Ahmed, Shujat Ali son of Latafat Ali, Ismail son of Sindhi and Shaddan son of Naimatullah were tried and acquitted by the impugned judgment recorded on 29-10-1974. They were tried under sections 302, 307 read with sections 149, 324 and 323, P. P. C.
2. The facts of the prosecution story described in the F. I. R. Lodged on 2-9-1972 are briefly that complainant Ishtiaq Hussain was the owner of Cafe de Farid situated at Liaquatabad. He, his sons Iqbal Hussain and Sardar Hussain and his servants Taiiq and Mustafa used to work in the said Cafe.
On 2-9-19 7 2 at about 9.30 a.m. He, his two sons and servants were present in the Cafe when all of a sudden respondent Hamidullah, his brother Shaddan, his son Noor Muhammad and his companions ShaJjan, Ghulam Rasool and 7/8 other persons entered into the said Cafe armed with Balam, hatchet, and daggers and revolver and attacked them. In the first instance respondent Hamidullah fired at complainant Ishtiaq Hussain and raised Lalkara instigating others to kill all those who were working in Cafe Farid and that he would take care of the consequences.
Respondent Shaddan was armed with hatchet and respondent Shajjan was armed with knife. The respondent Hamidullah fired at the complainant and simultaneously attacked him with a Chhuri and caused injury at the thigh of the complainant. While Noor Muhammad, Shaddan and Shajjan gave Chhuri blows to Iqbal Hussain deceased and Sardar Hussain and thereafter Hamidullah also gave chhuri blows to them. The other members of the unlawful assembly gave hatchet and Danda blows to Mst. Azizan and Tariq. Mussarat Hussain, Ghulam Mustafa, Liaquat Hussain and other Mohallah people intervened and saved the complainants from the accused. Hotel furniture and other articles were damaged, Mohallah people removed Iqbal Hussain and Sardar Hussain to Civil Hospital because they had received serious injuries. Thereafter complainant Ishtiaq Hussain alongwith Mst. Azizan and Tariq went to lodge report with the police.
4. Motive of the crime is alleged to be business rivalry existing between spondent Hamidullah Complainant Ishtiaq Hussain as the latter had opened Cafe in front of Cafe Muhammadi belonging to the respondent Hamidullah. Earlier there were litigation, criminal cases and counter-cases inter alla between these two contending parties.
5. S. I. P. Ghulam Muhammad, Investigating Officer recorded the F. I. R. And visited the Vardat. He prepared the Mashirnama, secured blood-stained earth, knife, hatchet and empty cartridges from Vardat vide s memo, prepared at Exh.
11. The venue of scene of offence was Cafe Farid. The Mashirs were P. Ws. Babo, Ch. Din Muhammad and Muhammad 1,mail. The Investigating Officer then recorded the statements of P. Ws. Liaquat Hussain, Ghulam Murtaza and Wazir Muhammad. He then proceeded to Civil Hospital. Dr. Alimul Haq, Incharge at the Civil Hospital informed him that Iqbal who had been removed to the Hospital in injured condition had expired. He then prepared Inquest Report Exh.
8. The dead body was then delivered to Medical Officer for custody. The Investi- -gating Officer then recorded the statements of Mst. Azizan, P. W. Tariq and Sardar. He then went to the scene of offence and made further, inquiries. He arrested respondent Hamidullah and from his personal search he recovered one pistol with 8 live cartridges and two magazines. Mashmirnama Exh. 9 was prepared. On 7-9-1972 be arrested the respondent Muhammad Ismail. On 19-9-1972, he arrested the respondent Shaddan and the remaining respondents were arrested on 3-10-1.972.
After completing the, inquiries he challaned the respondents in the court. The articles seized from the scene of offence were sent to the Chemical Analyst and the report is at Exh. 36, The weapons were not sent to the Ballistic Expert.
6. The respondents in their statements under section 342, Cr. P. C. Completely denied to have committed the offence and have alleged enmity with the complainant's party. Respondent Hamidullah has disclosed that the deceased Iqbal Hussain had attacked him with an intention to kill him and the police had registered a case against him under section 307, P. P. C. Which was still pending. This case is filed due to deep-rooted enmity inter alia between the parties.
7. The arguments of Mr. Muhammad Hayat Junejo, learned counsel for the respondents 1 to 4 as well as Mr. Imam Bux, learned counsel on behalf of the State were heard at length. The record was perused.
8. It is necessary to allude to the names of accused mentioned in the F. I. R. The F. I. R. Mentions Noor Muhammad, Shajjan and Ghulam Rasool to be the active assailants in the process of crime. The respondents who faced the trial do not include the names of Noor Muhammad, Shajjan and Ghulam Rasool but instead the names of Rais Ahmed, Ismail and Shujaat Ali are mentioned as respondents. The discrepancy which has occurred in recording the F. I. R. At the instance of the complainant would be discussed at the relevant stage in this judgment. The arguments advanced by the learned counsel for the respondents Mr. Muhammad Hayat Junejo are briefly that P. Ws. Are interested and closely related with each other and they are in inimical terms and there is no independent piece of evidence.
9. There is no doubt that the deceased Iqbal Hussain died in the hospital. Dr. Muhammad Umer conducted the post-mortem examination of the dead body. Externally the Medical Officer had found in all, 16 injuries out of which first injury namely the incised wound do the left side of thigh .2-- x 4" Has sufficient in ordinary course of nature to cause death. The remaining injuries were on different parts of the body and some of them were caused by blunt substance. The death was due to shock and haemorrhage as a result of multiple injuries.
10. The injuries of P. W. Sardar Hussain were examined by Dr. Alikum Haq Hashmi. He had sustained five injuries. Similarly on the persons of Ishtiaq Hussain complainant, P. W. Tariq and Mst. Azizan there were sounds of different denomination and were not fatal or grievous.
11. P. W. Musarrat deposed that on 2-9-1972 he was coming out o1' his house when he saw respondent Hamidullah stabbing in the stomach of deceased Iqbal Hussain in the premises of Cafe Farid which belongs to Iqbal Hussain. He further deposes that he saw respondent Shajjan, Rais, Ismail and Shaddan attacking on other people namely Ishtiaq Hussain, Mst. Azizan, Ghulam Murtaza and Tariq. He has averred that Hamidullah had a pistol in his hand and fired two shots to threaten the people from deposing against them in a court of law. This witness is a Masher of securing blood--stained clothes of the deceased vide Mashirnama Exh.
6. He is also a Mashir of the Inquest. Report and the wounds on the dead body vide Mashirnama Exhs. 7 and 8. He is also a Mashir of the arrest of respondent Hamidullah Exh.
9. In the cross-examination he has stated that he was a Teacher in Qasimabad Training College which is at a distance of one mile from his residence. He used to go to his college at 7-30 a.m. And returned at 2-00 p .m. However on the day of incident he was enjoying summer vacation. The father of the deceased is his uncle. He has admitted that 30 to 40 persons collected at the scene of offence some of whom were residents of Mohallah. The evidence of this witness is criticised on the ground that the father of the deceased is his uncle. He has not supported the F. I. R. Wherein the names of Ghulam Rasool and Noor Muhammad are mentioned. Accused Shujjaat is not mentioned in the F. I. R. It is clear that respondent Ali was also called as Shajjan, hence there remains doubt. He is closely related person and the criticism of his evidence carries weight.
12. P. W, Ishtiaq Hussain complainant deposes in his evidence at Exh. 12 that Cafe Farid in Gharibabad was managed by his sons Sardar Hussain and Iqbal Hussain (deceased). He has stated that adjacent to his hotel was another hotel namely Cafe Muhammadi which was owned by respondent Hamidullah. He admitted that the respondent bore grudge against him in connection with business rivalry. On 2-9-1972 he was selling Halwa Puri in the hotel and his sons were working when respondent Hamidullah armed with deadly weapons attacked them. Respondent Hamidullah was armed with pistol in one hand and a knife in the other hand while accused Shaddan was armed with Tabar and accused Sajjad had a knife. Respondent Ismail had hatchet and respondent Rais had a Danda in his hand. The respondent Hamidullah fired a short at him but luckily he escaped. Then Iiamidullah stabbed on his left arm muscle. He stated that Shaddan had caught hold of Iqbal Hussain (deceased) while accused Shajjan stabbed him several times in the stomach and chest region. Shaddan gave Iqbal Hussain one or two blows. The respondent Ismail gave hatchet blow to Sardar Hussain. Due to the commotion his wife Mst. Azizan came running and she fell upon the body of her son Iqbal Hussain and respondent Shaddan gave two Tabar blows on her hand. Muhammad Tariq sustained Tabar blows on his head inflicted by Shaddan. He has further deposed that the respondents coke the furniture and the articles lying there and fired shots in the air to scare the people who had collected. In cross-examination he has stated that he name of Ismail was in fact mentioned in the F. I. R. It is not in the F. I. R. This is a clear-cut addition of an assailant whose name does not find place in the F. I. R. Similarly the name of Rais finds no place in the F. I. R. He is explained in cross-examination that Rais is known by another name as Ghulam Rasool. However the F. I. R. Does not mention that Rais was sown by another name as Ghulam Rasool. The name of Noor Muhammad mentioned in the F. I. R. But there is no explanation that respondent mail was also known as Noor Muhammad. Due to these contradictions, omissions and discrepancies both in his F. I. R. As well as deposition, his evidence is vehemently criticised by the learned counsel for the respondents and it is contended that he has picked and chosen the adversaries to be incorporated in the F. I. R. Therefore the credibility of the evidence of this witness is doubtful and his evidence is not reliable due to these contradictions.
13. P. W. SardarHussain is the brother of the deceased Iqbal Hussain and is the son of complainant Ishtiaq Hussain. His evidence in the beginning carries the statement that prior to the incident respondent Hamidullah was fired by some unknown assailant and that he held his brother Iqbal Hussain (deceased) and 4/5 other persons in locality responsible for that incident At the time of the incident he saw Ismail, Hamidullah, was armed with pistol and knife. Ismail and Shajjan were armed with knives. Shaddan as armed with knife in his hand while Rais was armed with a Danda.
Respondent Shaddan caught hold of his brother Iqbal Hussain while Hamid--;lah stabbed him with knife and also caused injuries to his father Ishtiaq Hussain. He further deposes that Hamidullah and Ismail caused him juries with Tabar while Sajjan gave him knife blow. Rais kept himself is in breaking the furniture. Further he has stated in cross-examination at respondent Hamidullah had lodged a report under section 307, P. P C. 2ainst him, and. His brother Iqbal Hussain and in that case Hamidullah, Shajjan and Shaddan were prosecution witnesses. He has made further admission that in a case under section 107 Iqbal Hussain and other persons were the accused.
14. This witness Sardar Hussain is criticised by the counsel for the respondent. He is the brother of the deceased and the son of the com--plainant. The account of the incident that he has given is in conflict with the evidence of other witnesses in so far as he has mentioned Shaddan to be armed with knife. Other witnesses mentioned Shaddan to be armed with Tabar. He gives a discrepant account that Hamidullah and Ismail gave blows with Tabar and from where the Tabar came he has not been able to explain. His evidence is, therefore, discrepant, conflicting and not reliable as such.
15. P. W. Mst. Azizan bad come subsequently on the commotion and had fallen on the dead body of her son. She alleges that accused Shaddan gave her Tabar blow. She has denied the suggestion that in her second statement before the police she said that accused had their faces muffed.
16. P. W. Tariq does not support the prosecution case and he does not name the accused persons.
He was declared hostile. The prosecution has given up P. W. Liaquat as he was completely deaf and unable to under--stand the questions put to him.
17. The last prosecution witness is Wazir Khan P. W.
7. In his deposi--tion he stated that the incident took place at 8.00 a.m. On 2-9-1972. At that time he was present at the Bus Stop of Orangi Town. He was declared hostile and cross-examined. He denied the prosecution story suggested to him by the learned A. P. P. In cross-examination.
18. The learned Trial Judge has held that the prosecution evidence is grossly exaggerated and not reliable and as such cannot be depended upon. In his judgment he has mentioned at page 175 of the paper book that Noor Muhammad son of Hamidullah was produced in the Court before him.
Noor Muhammad was a by of 10 or I1 years only. Neither Ishtiaq Hussain complainant nor any P. W.
Has mentioned presence of Noor Muhammad at the s9ene of offence. A faint effort has been made to explain that Ghulam Rasool had another name of Rais and Noor Muhammad had another name of Ismail Sindhi but no substantial material is brought on record. The learned counsel for the respondents has a very pertinent and valid criticism on the evidence of the prosecution witnesses.
The infirmities in the F. I. R. Show that the names are falsely mentioned and substituted. The evidence on record shows discrepancies and contradictions on the whole. The evidence against the respondents consists of interested and inimical witnesses and therefore they are to be assessed and examined minutely with great care and caution and independent corroboration is needed in this case. The weapons, blood-stained clothes and other incriminating articles secured from the Vardat do not connect the present respondents with the crime. The pistol secured from Hamidullah was not sent to the Ballistic Expert, hence there is no corroboration whatsoever. The learned counsel referred PLD 1963 . SC 25 and drew our attention to, the following observations of their Lordships and we quote :- ---When such be the case and the main direct evidence be also that of interested persons i.e. Enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if riot quite sufficient by itself to establish the guilt of the individual accused. Persons, beyond reasonable doubt.--- Reference is also made to PLD 1973 SC 321. This authority enunciates the same principle. In this particular case it appears that false accusation is made against the respondents who were not named in the F. I. R. No doubt the incident has taken place but due to enmity false accusations against those respondents who were not present were made in the F. I. R. The trial Court has rightly concluded that the prosecution has failed to prove the charge against the respondents. We also are of the same opinion. In the result we dismiss the Acquittal Appeal.