FAKHRUDDIN H. SHAIKH, J.----This is an appeal under section 41? Cr. P. C. From the judgment of learned Additional Sessions Judge, Karachi dated 26th February, 1978 whereby the learned Judge had acquitted all the above three respondents of the offences under section 302; 34, P. P. C. They were charged for having committed murder of one Shaukat Ibal in furtherance of their common intention on 1-4-1976 at about 8-00 p. m ear Karim Bakery in Mohalla bulbahar, Karachi. The facts of the case as alleged by the prosecution are as under complainant Hashmat Iqbal is real brother of deceased Shaukat Iqbal. They both lived in the same house in Mohalla Gulbahar, Karachi.
Accused respondents Hameed Baig, Maqbool and Gulab Baig also lived in the same Mohalla in a house situated just opposite to the complainant's house. On 1-4-1976 complainant Hashmat Iqbal who used to work in some Government office, returned from his once when he was informed by one Javed Iqbal that the three respondents had given beating to Mst. Gulshan Ara wife of Arif Qureshi, the maternal uncle of the complainant. This beating was the result of a quarrel between the children of Mst. Gulshan Ara and respondents one day prior to the incident. When the complainant learned that his maternal aunt has been insulted by the respondents he collected his relations Haji Khursheed Alam, Mahboob, Saghir and Abdul Hakim and suggested to them that they should go to the respondents to advise them to behave properly and also to settle their differences. Deceased Shaukat Iqbal was also present at that time. All these persons started towards bakery which the respondents' persons used to run and which was situated about 100 paces away from the houses of the parties. They sent Shaukat Iqbal to the bakery of the respondents asking him to request them to come to them for settlement, while they themselves waited a short distance away from the bakery. It is alleged that as soon as Shaukat lqbal was 10-12 yards away from the bakery, respondent Hameed Baig caught him and shouted at the respondents that "one of them had come who should not be spared." Upon this respondent Gulab Baig is alleged to have given hatchet blows to Shaukat Iqbal, while respondent Maqbool inflicted knife injuries to him. All the three accused then ran away. Injured Shaukat Iqbal is said to have walked 10-12 paces from the place where he was attacked and then fell down in the street.
Complainant Hashmat Iqbal, Khurshid Alam and Mehboob went there and removed the injured in a, Taxi to Civil Hospital but he died in the way. Mahboob and Khurshid Alam were left at the Hospital with the dead body while Hashmat Iqbal went to Gulbahar Police Station and lodged report .The same evening at 8.45 p. m. i.e. After 45 minutes of the incident. This police station is said to be Q miles away from the scene of office.
2. The F. I. R. Was recorded by Mr. Masood Hussain, S. H. O. Gulbahar Police Station in which the complainant gave !De same facts as stated above. According to the F. I. R., the incident is alleged to have been seen besides Khursbid Alam, Mahboob and Saghir, already referred to above, by Abdul Aziz also. No other witness of the spot has been cited in the F. I. R.
3. Mr. Masood Hussain proceeded to the scene of the offence which was in front of Karim Bakery.
Mashirs Abdul Latif and Abdul Aziz were called to serve as Mashirs of the scene of offence. Some blood-stained earth was secured from there and sealed in a parcel.He then recorded statements of Hakim, Muhammad Siddiq, Naney Khan, Wahid Ali, Abdul Aziz and Abdul Latif. He proceeded to the Civil Hospital where dead body of Shaukat Iqbal was lying in the mortuary. He held inquest on the dead body in presence of Mashirs Khurshid Alam and Mehhoob and prepared inquest report.
The dead body was then despatched to the Police Surgeon with a letter requesting for post- mortem examination. On 2-4-1976 P. Ws. Muhammad Yamin and Muhammad Azim were examined and on the same day respondent Maqbool was arrested from Bus-Stop Mazimabad No. 2, Karachi.
He was brought to the Police Station and interrogated. It is alleged that this respondent led the S. H.
O. And Mashirs Abdul Aziz and Abdul Latif to his house from where he took out a `Churri' from the bedding in a room and produced it before the S. H. O. This Churri was blood-- stained. It was secured and sealed under a Mashirnama. This Churri and blood-stained clothes of the deceased were sent later to the Chemical Examiner for report.
4. On 18-4-1976 respondents Gulab Baig and Hamid Baig were also arrested from Baloch Colony, Karachi in presence of Mashirs Khurshid Alam and Mehboob. After completing the investigation the three respondents were sent up to the Court for trial.
5. In their statements under section 342, Cr. P. C. The respondents have denied having committed murder of Shaukat Iqbal. Respondent Hamid Baig in his statement (Exh. 33) has denied that there was any quarrel between their children and the children of the complainant's party one a, ay prior to the incident or that on account of that incident they had gone to the house of the complainant and given beating to his maternal-aunt Mst. Gulshan Ara. He has denied that he produced any weapon before the Police. He further alleged that P. Ws. Hashmat Iqbal, Khurshid Alam, and Mehb oobSaghir, Abdul Hakim and A. R. Qureshi (husband of Mst. Gulshan Ara) and Gulshan Ara are closely related to each other and are inimical to them. He further stated that Mst. Zahida Begum, niece of respondent Hameed Bag who is brother of respondent Gulab Baig, was married to one Abdul Rashid a relative of the P. Ws. She bad obtained divorce from her husband on the allegation of ill-treatment. He has also produced certified copies relating to the litigation between Mst. Zahida Begum and Abdul Rashid. Respondents Gulab Baig and Maqbool have also given the same statements.
6. The prosecution has relied on the ocular testimony of P. W. I Muhammad Siddiq (Exh. 4), P. W. 2 Naney Khan (Exh. 5), P. W. 3 Wahid Ali (Exh. 7), P. W, .1 Hashmat Iqbal complainant (Exh. 9), P. W. 5 Haji Khur;hid Alam (Exh. 12), P. W. 6 Abdul Aziz (Exh. 15), P. W. 9 Abdul Latif (Exh. 18), P. W, 12 Saghir Ahmed (Exh. 25) and P. W. 13 Mehboob Khan (Exh. 36). Out of the above witnesses who, according to the prosecu--tion had seen the incident, P. Ws. Abdul Aziz and Abdul Latif have also served as Maaq1bS of arrest of the accused and of recovery of the 'Churri from respondent Maqbool.
7. Other witnesses examined in the case are P. W. 14 A. R. Qureshi (Exh. 28) and P. W. 15 Gulshan Ara (Exh. 29). They are on the point of motive. P. W. 16 Masood Hussain is the Investigating Officer. P. W.
10 is Dr. Abdul Hadi Khan (Exh. 22) was Police Surgeon Karachi on 7-4-1976 when he had performed post-mortem a camination on the dead body of the deceased. The respondents have not led any evidence in defence.
8. So far as the factum of murder of Shaukat Iqbal is concerned, it has not been disputed by the respondents. This fact is also proved from the evidence of Dr. Abdul Hadi Khan (Exh. 22) who had received the dead body - on 2-4-1976 at 10.00 a. m. For post-mortem examination. He had found following injuries on the person of the deceased :-- "(1) Incised wound left side front and middle chest If below and in line of left nipple, 3" from the midline oblique in direction in the 5th intercostal space measuring 1--" x --" x cavity deep.
(2) Incised wound right thigh inner aspect 5 below the level of cubic tubercle oblique in direction 1" x --" x muscle deep.
3. Contused abrasion right thigh on the bone province in an area of 1--".
(4) Lacerated wound right side of the chin 1-- X 1/3" X muscle deep surrounded by contused abrasion in area of 1--".
(5) Contused abrasion outer side of right elbow --" x --".
(6) Contused abrasion over side of right wrist --" x --".
(7) Contused abrasion back of right hand --" x ----"
(8) Contused abrasion above right knee --" x --"
(9) Contusion front of left knee --" x --".
On internal examination the Doctor found the following damage :- "(1)Left side chest cavity contained about J pint of blood. Pericardium showed through and through injury, pericardium cavity contained blood. Heart showed through and through injury, in the right ventrical. Liver showed incised injury on the superior surface of the left lobe."
According to the Medical Officer death was due to shock and haemor--rbage as a result of external injury No. 1 which was individually sufficient to cause death in the ordinary course. He has further opined that the injuries were 15 hours old at the time of the post-mortem examination. The incident had taken place at 8.00 p. m. On 1-4-1976. The probable time given by the Doctor' thus coincides with the time given by the prosecution.
9. So far as the connection of the respondents with this murder is concerned, it is sought. To be proved from the evidence of nine eye-witnesses named above. Out of the above nine witnesses, P.
Ws. Muhammad Siddiq, Naney Khan, Wahid Ali, Abdul Aziz and Abdul Latif did not give any evidence in support of the prosecution. They were declared hostile by the public prosecutor. Abdul Aziz and Abdul Latif who were also Mashirs of arrest of accused Maqbool and production of Churri, have not supported even the factum of the said recovery of Churri. The learned trial Judge, therefore, ignored the evidence of these witnesses. There is one further reason for ignoring the evidence of P.
Ws. Muhammad Siddiq, Naney Khan and Wahid Ali, that is they have not been described as eye- witnesses in the F. I. R. Although in his deposition complainant Hashmat Iqbal has stated that Naney Khan and Wahid Ali were present at the scene of offence at the tune of incident. Thus the only evidence that remains on the record is that of complainant Hashmat Iqbal, Khurshid Alam, Abdul Hakim, Saghir Ahmed and Mahboob who have supported the prosecution case and have stated that they had seen the three accused persons i.e. Respondents attacking the deceased Shaukat Iqbal and that Hameed Baig had caught hold of deceased Shaukat Iqbal while Gulab Baig had given hatchet blows to him and Maqbool. Ahmed had caused injuries to him with a Churri and then. Run away.. They have further stated that the injured had walked for about 15 paces from the Bakery of the respondents and fallen down on the main road.
10. Out of the above five witnesses who have, supported the prosecution case only Abdul Hakim (Exh. 21) is an independent witness- while all the rest are related to each other. It would, therefore, be proper to discuss as to how far the evidence of Abdul Hakim is reliable. In the F. I. R. (Exh. 10) complainant Hashmat Iqbal has not named this witness as one of the persons who had seen this incidents. This very fact is sufficient to create doubt about the presence of this witness at the place of incident. However, there are other circumstances which make presence of this witness at the spot doubtful. He lives about 200 yards, away from Karim Bakery. In cross-examination he admits that :- "It is correct that by chance I happened to pass in front of Karim Bakery. My family was not at home and I bad gone to a hotel nearby Karim Bakery to take my meal."
However, when he was examined by the Police under section 161, Cr. P. C. He stated that at the time of the incident he was going towards Alamgir Chowk for purchasing -Cigarettes. This witness is, therefore, admittedly a chance witness. His reason for being present at the spot at the time of incident is not believable on account of contradictory versions given in cross-examination and before the Police during the investigation. Learned counsel for the respondents has relied on the case of Mamoon and others v. The State (PLD 1962 Kar. 800) in support, of his argument that the evidence of this witness, should be ruled out of consideration for the reason that his name does no; appear in the F. I. R. In the above case a Division Bench of this Court held :- "It is significant that neither Mst. Sajjan P. W. Nor Sawan P. W. Have been mentioned in the F. I. R.
Lodged by Uris P. W. As either having been drawn to the spot or having witnessed any part of the occurrence. Their testimony has, therefore to be ruled out altogether from con--sideration."
The above observations are fully attracted to the facts of this case. We are, therefore, not inclined to place any reliance on the testimony of Abdul Hakim for the reasons that his name does not appear in the F. I. R., that be is a chance witness and that he has given contradicting versions about his presence at the spot.
11. Complainant Hashmat Iqbal (Exh. 91 has made several admissions in cross-examination from which it transpires that there is long-standing enmity between him and his relations on the one side and the three respondents on the other side. He has admitted that respondents Hameed Baig and Gulab Baig are real brothers to each other and that respondent Maqbool is sister's son of Gulab Baig. He also admits that there have been several criminal cases between them and the respondents, some of which are still Pending. It will be proper to reproduce these admissions of the complainant in his own words. This is what he has stated about the previous litigation between the parties :- "It is correct that Abdul Rashid Qureshi and Haji Khurshid Alam were involved in case under section- 4,07, Cr, P. C. By the accused persons. It is also correct that Saloot Khan father of accused Maqbool and Shahabuddin were involved under section 107, Cr. P. C. Both the cases are still pending in the Court. It is correct that I had moved an application in the Supreme Court for cancellation of bail granted to accused. Gulab Baig by the High Court of Sind and Baluchistan .--------------- It is correct that Abdul Rauf Qureshi my-maternal uncle had lodged cases against Haji Gulab Baig under section 14-D, A. Ordinance. It is also correct that he has also lodged a case against accused Gulab Baig and Maqbool under section 452, P. P. C. It is correct that both the cases are pending in the Court."
From the above admissions it would appear that the complainant is a highly interested witness who bad a motive to implicate the respondents in a false case on account of previous enmity. The further reason for his being interested is that be had a grievance against the respondents who, according to him, had entered his house earlier on the day of the incident and had not only abused his relation Mst. Gulshan Ara wife of P. W. Abdul Rashid but had also given her beating. The earlier incident will not be a motive for the respondents to commit the murder, because they had no grievance against the complainant on account of that incident. It is the complainant and his relations who shall be deemed to be the aggrieved persons against the respondents party on account of the earlier incident and as such they shall have a motive to implicate the respondents in a false case. The complainant's evidence therefore cannot be relied upon without corroboration.
12. Haji Khursbid Alam (Exb. 12) is the next witness who has supported the prosecution case. He is uncle of the deceased and complainant Hashmat Iqbal. He is also an interested witness and his evidence also cannot be relied upon without corroboration for the same reasons which apply to the evidence of the complainant. The question as to how far corroboration is available, shall he discussed later. In cross-examination it was suggested to this witness that there was matrimonial dispute between his nephew Abdul Rashid and one Mst. Zahida niece of accused Gulab Baig. He has denied knowledge of such matrimonical dispute but does not specifically say that no such dispute existed. However, Abdul Rashid Qureshi (Exh. 28) (he has described his name as A. R.
Qureshi) has made some admissions which prove that the enmity between the parties is confined not only to previous litigation but also to matrimonial affairs. Haji Khurshid Alam had already admitted that Abdul Rashid Qureshi is his nephew. This witness has admitted in examination-in- chief itself that about five years ago there had been a quarrel between him (A. R. Qureshi) and one Akhtar and that accused Maqbool had sided with Akhtar and beaten the witness. The witness had lodged a report of this incident at Gulbabar Police Station on 22-10-1971. It may be stated that this witness himself is an A. S. I. Police but at the time of giving his evidence he was under suspension.
He further says in examina--tion-in-chief that after the above incident with Akhtar, the respondents had quarrelled with his family in his absence and that he had reported this matter to the Superintendent of Police. He has also stated that Mst. Gulshan Ara is his wife and that on the day of the incident at 5-30 p.m the respondents had entered his house, abused her in his absence, given her beating and also taken away his shirt and revolver. He had returned to the house at mid- -night when he was informed by his wife about the above incident. He further states that he had gone to the Police Station to lodge report about the theft of his revolver and shirt but his report was not recorded. He admits that a case under sections 420/468/471, P. P. C. Was filed against him in the Court of A. C. M., Karachi and in that case he had mentioned his name as Zahid Alam Qureshi alias A. R. Qureshi. He also admits that he was convicted in that case and sentenced to undergo R. I.
For 6 months and to pay a fine of Rs. 500. He further admits that he is complainant in a case under sections 452/300, P. P. C. Against respondents Gulab Baig and Maqbool. In his statement respondent Hameed Baig (Exh. 33) has alleged that his niece Zahida was married to Abdul Rashid a relative of the P. Ws. And that due to strained relations she had obtained divorce from Abdul Rashid. He has produced certified copy of judgment in that suit as Exh.
35. This fact has not been specifically denied by P. W. Haji Khurshid Alam, the uncle of P. W. Abdul Rashid. It is, however, not disputed that the relations between the parties are seriously strained due to manifold reasons.
13. The next witness who claims to have seen the incident is Sagbir Ahmed (Exh. 25). He states that P. W. Khurshid Alam is husband of the sister of his wife. He lives in Kokrapar Colony which is 10 miles away from the scene of offence. He states that on the day of the incident he had come to the house of Khurshid Alam to pay his contribution towards `Bisi at about 7.15 p. m. He has then narrated the incident as to how he came to know from Mst. Gulshan Ara that the respondents had entered her house and insulted her and that this witness accompanied by Khurshid Alam, Hashmat Iqbal, Saghir Ahmad and others had gone towards the Bakery of the respondents and waited 15 paces away from there and sent Shaukat Iqbal deceased to bring the respondents from their Bakery to settle the matter and that as soon as Shaukat Iqbal reached the Bakery he was attacked by the three respondents with a Churri, and hatchet, that several hatchet and Churri injuries were inflicted by respondents Maqbool and Gulab Baig while respondent Hameed Baig had caught hold of the decaased. This witness is also as such interested as his relations P. W. Hashmat Iqbal and Khurshid Alam. More--over he resides 10 miles away from the scene of offence. Therefore, he is a chance witness because be had no particular reason to be present on the scene of offence on the above date. He should also be disbelieved for the further reason that his statement was recorded by the Police after 15 days of the incident as admitted by Mr. Masood Hussain Inspector of Police in his deposition (Exh. 30). Had he been present at the spot then his statement would have been recorded by Mr. Masood Hussain Inspector on the same day on which the statements of Khurshid Alam, Abdul Hakim and Mebboob were recorded. The fact that be was not available to the Police for 15 days for examination shows that he has been set up as a witness by way of afterthought.
More over he is also highly interested witness being very closely related to the deceased and his brother Hashmat Iqbal.
14. The last witness who claims to be an eye-witness is Muhammad Mehboob (Exh. 26). P. W. Abdul Aziz (Exh. 15) who is said to be one of the eye-witnesses but also was declared hostile, has admitted in cross-examina--tion that Muhammad Mehhoob is related to the complainant. Thus he is also a highly interested witness. However, this witness has not admitted his relationship with the complainant and the deceased. But in cross-examination he does state that Abdul Rashid is brother of his son in-law. We are, therefore, not inclined to hold this witness to be uninterested.
15. There are certain features of this case which make the story as given by the so-called eye- witnesses very doubtful. All the so-called eye-witnesses have said that Gulab Baig bad a hatchet while Maqbool Baig had a Churri and that both of them had given several blows with hatchet and Churri to the deceased due to which there had been profuse bleeding. They have further stated that after receiving the injuries the deceased had walked for about 15 paces up to Alamgir Chowk and had fallen down there. In the first place it is unlikely that, after having received so many injuries of hatchet and Churri the deceased could have walked for 15 paces. Moreover if he was actually attacked by the respondents in front of their Bakery as stated by the so-called eye-witness, then due to the profuse bleeding the ground in front of the Bakery must have become blood-stained.
But Mr. Masood Hussain did not find any blood at the place where, according to the P. Ws. Shaukat Iqbal was attacked by Churri and hatchet. There was no trail of blood even between the place where the deceased was attacked and the place where he had fallen down 15 paces away. The absence of blood at the actual scene of offence and the absence of trail of blood between the two places in spite of profuse bleeding, proves that the incident had not taken place in front of the Bakery of the respondents. The place of the incident has been described to be in front of the Bakery, it appears, for the reason that the witnesses .May be able to show that it was possible for them to identify the culprits in the darkness of night at 8.00 p. m. Due to electric bulbs in the Bakery and on the road. Mashirs Abdul Latif and Abdul Aziz have both deposed that the place where blood was found and where the deceased had had fallen down, was in the street where there was no light. This explains as to why the P. Ws, had chosen to depose about the place of incident being in front of the Bakery of the respondents.
16. It also transpires from the evidence of Hashmat Iqbal, Khurshid Alam, Saghir Ahmed, Abdul Hakim and Mehboob that all these witnesses had stopped about 15 paces away from the Bakery and from there they had sent Shaukat Iqbal alone to the Bakery to bring the respondents to them for settlement. It is not understood as to why these witnesses had stopped 15 paces away from the Bakery and sent Shaukat Iqbal alone to the Bakery. Nothing prevented them from going to the Bakery together and to talk to the respondents at the Bakery. The place where they had stopped of when they say, they had stayed behind is a street near Alamgir Chowk. That was not a place where talk of settlement could have possibly taken place between the parties. If at all the witnesses wanted to settle the matter, they would have either gone to the Bakery themselves or would have seen the respondents in their houses which was only 200 paces away from the Bakery. Therefore, the story that the witnesses had stayed about 15 paces away from the Bakery and had sent Shaukat Iqbal alone to bring the resp3ndents appears to be quite unnatural. The witnesses knew that the respondents are inimical to them and that on seeing Shaukat Iqbal alone there was likelihood of Shaukat Iqbal being attacked by his enemies. It would, therefore, not be believable that these witnesses would have sent the deceased alone to the Bakery of the respondents for the purpose as deposed by them.
17. Again the evidence of the above five so-called eye-witnesses who have supported the prosecution case, is unbelievable for the further reason that it is not corroborated by the medical evidence of Dr. Abdul Haji Khali, according to whom there were only two incised wounds on the person of the deceased. All other injuries which were seven, on various parts of the body of the deceased, were contused wounds caused by hard and blunt weapon. Only two incised wounds noted above were caused by sharp-cutting weapon.. But according to the said eye-witnesses both Gulab Baig and Maqbool had given several blows with hatchet and Churri to the deceased. If it had been so then there would have been several incised wounds and not only two on the person of the deceased. Moreover there were as many as 7 injuries with blunt weapon on various parts of the person of the deceased which have not been explained by the prosecution. This all shows that the evidence of the interested witnesses is unbelievable for the further reason that their version is contradicted by medical evidence.
18. The only corroboration that is sought to he relied upon by the prosecution is the recovery of Churri at the instance of respondent Maqbool Ahmed in presence of Mashirs Abdul Aziz and Abdul Latif. None of these two Mashirs has supported the factum of recovery at the instance of respondent Maqbool. It has been argued by the learned counsel for the State that at least the Investigating Officer Mr. Masood Hussain has deposed about this recovery. This witness, according to him, is independent and should be believed. According to Mr. Masood Hussain Inspector the accused had taken out the Churri from the bedding of his house and produced it before the S. H. O.
And that it was blood-stained at that time. This version appears to be unnatural because the respondent would not have concealed the Churri in blood-stoned condition in the bedding. The most natural conduct on the part of the respondent, if at all he had used this Churri in this crime, would have been either to have thrown it away or to have washed it and then conceal it in his house. Again if the Churri was immediately taken to his house by respondent Maqbool and concealed it in his bedding, then some blood stains must also have been caused to the bedding.
But there is no evidence to this effect. The factum of recovery is, therefore doubtful and the solitary evidence of the investigating officer on this point is also unbelievable.
19. So far as the motive is concerned, we have clearly held that A. R. Qureshi and his wife Gulshan Ara have deposed about the prior incident but that incident will on the contrary prove that the P.
Ws. Had a grievance against the respondents and not vice versa and that on account of that incident the P. Ws. Shall have a motive to implicate the respondents in a false case.
20. From the above discussion it would appear that there is long-standing enmity between the parties. There had been several criminal cases between the parties before the incident. Under such circumstances the possibility of the respondents or even some of them having been implicated falsely cannot be ruled out. The tendency of the people in such cases is to implicate as many persons as possible in the crime. When more than one accused is alleged to have committed a crime, then the possibility is always there that the interested witnesses have made exaggeration and have tried to implicate innocent persons alongwith the actual culprits. It also becomes very difficult under such circumstances to distinguish between the innocent and the guilty. In the present case three persons are said to have committed murder of Shaukat Iqbal. If the hatchet and Churri were easily available to the respondents then it would have been sufficient for one person alone to have attacked as unarmed person and killed him without the assistance of his other companions, Therefore, the possibility of exaggeration in the present case also cannot be ruled out. It is not possible to determine exactly as to whether all the three, respondents or any one of them, if at all, had committed this crime. All the above features have made this case highly doubtful.
For the above reasons we hold that the respondents were rightly acquitted by the learned Additional Sessions Judge. The appeal is, therefore dismissed.
The respondents are on bail. Their bail bonds stand discharged.
SAIJAD All SHAH, J.-I agree.