' Appellant above-named, being aggrieved by judgment, dated 25th March, 1979 of the learned Ex- Officlo Additional Sessions Judge, Karachi, in Sessions Case No, 80 of 1972 by which appellant has been convicted under sections 304 (II) and 148, P. P. C. And sentenced to suffer R.
1. For 7 years and to pay fine of Rs, 1,000 or in default to suffer further R. I. For one year, on first account and to pay fine of Rs, 1,000 or in default to suffer further R. I. For 6 months on second account, has preferred the above appeal, on the following facts and grounds :- "I am proprietor of Mehmood Provision Store in the partnership with my brother Muhammad Sadik.
This store is situated within the compound of K. D. A. Flats. There is also another General Store, which belongs to Muhammad Jamil. Both these stores have been common wall, on which there was painting of Shezan in our own painting. Today, at about 11-00 in the morning, Jamil also wanted to repaint that board and I told him, not to paint. Therefore, I told him to call his brother.
Jamil went to call him. At about 5-00 p. m. Jamil and his brother Ghous Bux, his brother-in-law Riaz and Nisar, Yakoob, Ishaque and two other persons, I could not recognize, came in the pick-up, at my shop. Ishaque, Ghous and Riaz bad the knives and others had the heavy sticks. There, Ahsan Illahi. Shaikh Aftab and Mr. Samdani intervened and decided, that the word "Shezan Mango Juice" written on the board with the title "Mehmood General Store" be removed. But, they did not listen.
Naseem, at that time, went in the shop and deceased. Sharif was standing outside with the appellant. All of a sudden, Ishaque, Ghous, Jamil, Nisar and Yakoob became excited and attacked with knife and dandas. Appellant Jamil, Riaz, Ghous Ishaque stabbed Sharif with knife and other people gave blows with heavy sticks. When, I alongwith Younis and Naseem received knife injury from Nisar and then these people also gave knife and danda injuries to Choudhri Muhammad Younis and the remaining accused gave danda blows to us. My brother Sharif was fatally injured and was.. Removed to hospital in motor-rickshaw and Sharif died on the way. This incident was seen by Shaikh Aftab Ehsan Illahi, Choudhry Muhammad Younus and so many other people. This incident has taken place at 7-00 p. m."
' This F. I. R. Was recorded by Samiullah Khan, who at that relevant time, was the duty officer. But, before he recorded the F. I. R., he received information from C. M.
0. Of Civil Hospital, that Muhammad Naseem, Muhammad Younis have also received injuries and Sharif has died. This station diary is marked as Exh.
34. He recorded the F. I. R. In the hospital of Abdul Latif. Then he gave the investigation to S. H.
0.
' This statement was also incorporated in 154 book by Mumtaz Ali Khan and he gave the F. I. R. To S. H.
0. Mr. Karim Bux. Then the S. H.
0. Mr. Abdul Karim or Karim Bux describes that on the day of incident, he was doing Patrolling in his area. He received the station diary. He proceeded to hospital. He went to ward, where he found Samiullah Khan, who informed him, that he has already recorded the statement of Abdul Latif. He received the F. I. R. (Exh. 45). Thereafter, he saw the dead body of Muhammad Sharif. He prepared the inquest report, Exhs. 12 and 13. He also recorded the statements of Abdul Latif. This was further statement. He prepared mashirnama of the blood-stained clothes of Abdul Latif and Muhammad Naseem. He also found, that co-accused Jamil and Nisar were in the hospital. They had also injuries. Co-accused Yakoob was also in the hospital. He had also injuries. Thereafter he went to the place of an offence with co-accused Jamil and Nisar. The place of offence was in K. D. A. Quarters in Shops Nos. 1 and 2. He visited the place of offence, on the pointation of co-accused Jamil and recovered one dagger from Jamirs shop. He also secured two Chhuries from the shop of Jamil with a letter cover. Co-accused Jamil also took out the dagger in his presence from underneath the Sandal, which had the blood stains, Exh.
15. This mashirnama was prepared in the presence of Ahsan Illahi and Yasin. He also found, that the scene of offence was in front of Shops Nos. 1 and 2. He secured the blood-stained earth and prepared the rough sketch, Exhs. 14 and 15. He also recorded statement of Ahsan Illahi and Yasin, at 1-00 night. After that he came to police station and arrested Jamil and Nisar. He also secured the clothes of co-accused Jamil and Nisar Exh. 39 in the presence of mashir Muhammad Din and Saeed Baig. He again went to the place of offence and recorded the statement of Naseem, Abdul Hameed, Abdul Majid, Gulzar, Abdul Razzak and Ghulam Samdani. He also refers to the report of the cause of death Exh.
51. According to him, he had received the sealed clothes from hospital, with the cause of death report. Then, he went to hospital ; to record the statement of P. W. Muhammad Younis was not in a position to give the statement. Thereafter, co-accused Ghous Bux surrendered in the Court. On 3rd June, 1970, he recorded the statement of Shaikh Aftab. On 4th June, 1970, he recorded the statement of Muhammad Younus, when he was in a position to give statement. He also secured the blood-stained clothes of co-accused Younis and prepared mashirnama, in the presence of mashir Muhammad and Saeed Baig. Note.-The witness has referred co-accused Younis, but there is no accused Younis. However, he referred to mashirnama Exh.
41. On the same day, he stated, that he secured the bloodstained clothes of co-accused Yakoob, in the presence of mashir Muhammad Din and Saeed Baig Exit.
40. He also sent the clothes along-with dagger and Chhuri and the blood-stained earth to the Chemical analyser. He also produced the chemical report, Exh.
52. This witness was recalled ; when he has produced the Remand Report, that the remand was taken on 3rd June, 1970 upto 9th June, 1970. According to him, he did not produce co-accused Yakoob, because he was injured. According to him, on 1st June, 1970, co-accused Jamil produced the dagger from his shop. He has also produced the second remand Exh.
56. At this stage, it may be mentioned, that on 1st June, 1970, Mr. Ghulam Muhammad, Sub- Inspector who was A S.-I. At that time, recorded the report of Muhammad Yakoob at 8-15 p. m.
Which was earlier. Sub-Inspector also noted the injuries of both Nisar and Yakoob. He also referred to the certificate of both the injured and the supplementary report of Dr. Ishfaq, in respect of the injuries of Yakoob.
' The counter-report reads in these words :- "Yakoob states, that he has a shop in the K. D. A. Flats compound. There is also shop of Abdul Latif.
Between these shops, there is a board of Benz on the half portion of the shop. Latif has also fixed the board of Shezan. When Latif asked him, not to fix the board of Benz. This led to excitement. Many people came and intervened. It was decided, that both the shops should have the board on both the walls. This was not liked by Latif, Naseem and Muhammad Sharif. Thereafter, Sharif caught hold of Yakoob. At that time, Naseem was armed with a hatchet. Latif was having knife in the hand.
Naseem attacked him with the hatchet. By that time, Nisar came. Latif attacked Nisar with the knife.
The Choudhry Younis came and fell him down. People saw this incident."
' This counter report was registered, but it is nowhere shown ; whether the case was investigated by police or it was disposed off as a false case. At this stage, it may be mentioned, that when police obtained remand, it was also found, that Yakoob and Nisar had also injuries and they also denied before the Magistrate, that they were maltreated by police. It also appears, that Yakoob had the suspected fracture and the injury on the person of Nisar was simple injury. Nowhere medical - observation also indicated, that the injuries were self-suffered or self-inflicted. On the person of Yakoob, it was observed, that injuries Nos. 1 and 2 could be caused by a broken piece of glass or sharp-edged weapon and on the person of Naseem it appeared, that the injury was caused by sharp-edged object.
' Complainant Abdul Latif lodged the following report on the basis of which in the case in question stated; that the medical opinion, revealed, that the death of Sharif was due to stabbed wounds, sufficient to cause death and the weapon used was knife. So far the injuries on the person of Younis were concerned, the medical finding was, that injury No, 1 was grievous and the weapon used was knife. So far the injury on the person of Nasim were concerned, the injury was simple. So, for the injury on the person of Latif were concerned it was caused by a sharp instrument. He had not disclosed by which weapon the injury was caused. He had referred to post-mortem notes Exh. 66, alongwith the medical certificates, Exh. 13-A and so on.
' After all these formalities were done, prosecution sent up the case in the Court of committal enquiry, from where the case was sent up in the Court of Session ; where co-accused as well as appellant have not pleaded guilty.
' All the co-accused and appellant were examined, to explain the circumstances. They had denied, that they used violence or they were present, except Yakoob and Nisar. Co-accused Jamil had denied, that he took the police and took out the dagger from underneath the Sandal, which' had blood stains. He had also denied, that while kurta was secured by police from his person, which had the blood. Accused Nisar had also denied, that he produced the banian and white shalwar which had the blood, but he stated, that incident took place with Latif, Sharif and Naseem. After the rioting was over, he came from the shop. He saw, that Naseem gave sharp side hatchet blow to Yakoob and when he intervened to rescue Yakoob. Latif stabbed him with a knife and, therefore, he had the injuries. He also explains, that other accused were not present. From the side of the complainant, he stated, that Sharif, Naseem, Latif, Younus and two other persons were present, when this rioting, took place. This incident, according to him, took place in front of the shop of Yakoob.
' Accused Yakoob also stated, that he had never produced white shalwar, white shirt and banian with blood stains. But he admitted, that when this incident took place, he was present in front of the shop ; where Naseem, Sharif and Younis came there and assaulted him. Sharif caught hold of him, Naseetn gave him hatchet blow and Latif gave him knife blow. Thereafter, Nisar came and received injuries from Latif. He also lodged report at police station.
' Co-accused Nisar also denied the allegation and also denied, that he drew the dagger inside the shop of Jamil. He stated, that he was innocent.
' Co-accused Ohous Bux has also denied his presence.
' Co-occused Riaz has also denied his presence. No one had examined the witness in defence.
' Learned trial Court taking into consideration the evidence adduced before it, while acquitting 5 co-accused persons convicted and sentenced the appellant above-named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of above appeal.
' Learned counsel for appellant in support of above appeal submitted as under :- (a)That 5 co-accused were acquitted by learned trial Court, but above appellant has been convicted on same set of evidence, for which no cogent reasons at all are given by the learned trial Court.
(b)That learned trial Court has disbelieved P. Ws. On material points and have come to conclusion, that P. Ws. Were not telling the whole truth, but in spite of this appellant has been convicted on their uncorroborated statements, without cogent reasons.
(c) That there was delay in lodging of F. I. R. In question, which has not been satisfactorily explained, when counter F. I. R. Was lodged promptly.
' In support of above contentions, the learned counsel for appellant relied upon cases reported in PLD 1954 FC 84/170, PLD 1957 SC (Pak ) 297, PLD 1959 SC 109, 1982 SCM R 1049, 1982 SC M R 162 and PLD 1976 Kar. 438 and submitted that prosecution has failed to establish its case beyond reasonable doubt against above appellant as well, and further submitted that Honourable Supreme Court by its deciaion dated 12th January, 1983 in Criminal Appeal No, K-2/1982 reversed its earlier decision reported in 1983 P Cr. L J 1246.
' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment for the cogent reasons given by learned trial Court in the said judgment and further relied on cases reported in 1978 P Cr. L J 127, PLD 1975 Pesh. 52 and PLD 1970 SC 206.
' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the Record and proceedings of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocates before me.
' It is an admitted position that the F. I, R. In respect of the present case was lodged 31 hours later than the incident, whereas the counter-F. I. R. Was lodged earlier by the appellants side. There appears to be a plausible explanation for this delay.
' Prosecution case against the present appellant as well as on the acquitted co-accused rested on the statements of P. W. I. Abdul Latif, P. W. 2 Ehsan Illahi, P. W. 4 Abdul Majeed, P. W. 5 Abdul Majeed son of Ameeruddin, P. W. Ch, Muhammad Younus and P. W. 8 Muhammad Naseem. The learned trial Court in its impugned judgment in para. 42 and onwards stated as under :- "This is all the evidence which prosecution has best offered, to prove its case. Each witness has given different accounts of the incident.
' The evidence of Mr. Abdul Majid Rajput, who has Pan shop, is most significant, when this witness has shown, that the initiative came from the complainant side, when first Younus abused Yakoob and thereafter Yakoob abused Younus and Younus again slapped. This witness, even has gone to this extent, to describe, that both parties had the weapons and whereas free use of throwing of the bottles and Naseem, who was one of the complainant side, had the heavy stick at that time and assaulted Nisar. If this witness is examined by the prosecution, as one of the neighbours, his evidence with that background and Latif's first exaggerated account of the F. I. R. That Riyaz has also attacked Sharif with knife alongwith Jamil, Ishaque and Ghous Bux, becomes the matter of caution, which otherwise, Latif has not said in the trial Court evidence, that Riyaz stabbed Sharif. All these are highly exaggerated accounts, where Abdul Majid also has nowhere said in this Court, that Ishaque caused any knife injury to Sharif. If, throughout the evidence, it appears, that Ishaque threw the dagger in the shop and others took away the weapons and this evidence is also coming from the mouth of Choudhry Younis, then it is not understood ; how accused Jamil led the police and took out the knives or the daggers, when Yasin Khan does not speak of such recovery in the presence of Jamil or any of the eye-witnesses has said, that Jamil did throw the weapons, except Ishaque which also Yasin does not support his pointation. If I am to read the evidence of Ahsan Illahi, he has not said, that when the search was taken, Jamil was present. All that, he says, that police secured blood-stained knives or chhuries from the shop, which also he is not sure ; whether it was a dagger or a knife. Then what is remarkable, that why the camplainant side has not disclosed the injury of Yakoob and Nisar, which otherwise the evidence of Abdul Majid Rajput shows, that both parties were armed, although it has not come clearly in the evidence, that complainant party was all armed except Nisar. But in the manner, the prosecution have concealed the injury and the weapons, with the different accounts of the witnesses, differently put even by the injured themselves, like Latif, Naseem and Youths, whether they have concealed the true facts from the Court.
' Now, I want to discuss the material aspects ; whether in the cross-examination, what they have said throws strong reflection on the credibility of the injured witnesses and the prosecution evidence as a whole."
Keeping in view above conclusions arrived at by the learned trial Court specially when on the above basis the learned trial Court acquitted rest of the 5 co-accused the conviction of the appellant on the same set, of evidence, who in his statement before the learned trial Court has clearly stated that he did not see who was a person who actually caused blow to Sharif and was declared hostile, but relied upon merely on the basis of his lower Court statement, in my opinion would be unsafe, specially in view of the conclusion and findings arrived at by the learned trial Court in respect of the prosecution witnesses of the incident, who were not believed by the learned trial Court in respect of the rest of the co-accused. It may further be noted that P. W. 5 another Abdul Majeed son of Ameetuddin, whose statement under section 161, Cr. P. C. Was recorded, Abdul Hameed son of Ameeruddin and who claimed to be a colleague of the deceased, no doubt before the learned trial Court has stated, that appellant caused knife injuries to the deceased, but his statement does not inspire confidence at all, as identity of this witness in my opinion is doubt full, in view of the fact that in his 161, Cr. P. C. Statement he is described as Abdul Hameed and not as Abdul Majeed. In view of this conclusion of mine the cases reported in PLD 1954 FC 84 and 170, PLD 1957 SC 297, PLD 1959 SC 109, 1982 S CM R 1049, 1982 SCM R 162 and PLD 1976 Kar. 438 cited by the learned Advocate for the appellant fully supports these conclusions of mine. The decision of the Honourable High Court reported in 1983 P Cr. L J 1246 is no more good law, as this decision was reversed by the Honourable Supreme Court in Criminal Appeal No, K-2/1982, dated 12th January, 1983 and it seems that learned trial Court has overlooked this fact. It is an admitted position, that no recovery of incriminating article is said to have been proved against the present appellant, which could have lent corroboration to these P. Ws. Statements and therefore, in my opinion it would be unsafe to convict the present appellant, on the basis of uncorroborated statement of such prosecution witnesses. It is also admitted position, that this was a free fight and in fact riot and consequently each appellant would be responsible for his own specific act in such incident and since the statements of the prosecution witnesses contradict inter se, it would be unsafe to rely on such statement for alleged specific part assigned, to the present appellant and to uphold hi conviction under section 304 (II), P. P. C.
' Therefore, I allow the above appeal of the appellant in respect of his conviction under section 304(11), P. P. C. And set aside sentences awarded to him on this account alone, while maintaining the sentence of fine C imposed on him under section 148, P. P. C. For committing rioting and using violence in the incident in question, in which both sides received injuries. If appellant pap the fine imposed on him under section 148, P. P. C. The bail bonds executed by him in the above appeal shall stand discharged. However, in case of his failure to pay said fine, I direct the learned trial Court to issue non-bailable warrants for his arrest and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine of Rs, 1,000 imposed on him in this connection by impugned judgment.
' The above appeal stands disposed of in terms of above judgment.