SAJJAD ALI SHAH, J.-This appeal is filed by the State against the impugned judgment dated 20th december, 1975 passed by learned Third Additional Sessions Judge, Karachi whereby he has acquitted both the respondents who were being tried for offence under section 302/34, P. P. C. For having jointly committed murder of Younus son of Muhammad Mian aged 23 years by inflicting knife injuries to him, in consequence whereof he died.
2. Briefly stated prosecution case is that deceased Younus lived with his brothers Muhammad Arif and Mushtaq and mother Mst. Aisha in a house on plot No, A.-I in Mahmoodabad. On the night of incident at about 8-30 p. m. Deceased Younus went out of the house after having taken his meal.
He went to the Bazar in the same neighbourhood to a Pan shop near the hotel of P. W. Fida Hussain.
There he came across both the respondents and they had some argument after which Ashraf took out a knife and gave 2-3 stab blows to Younus, who were hit in the arm and abdomen. Younus in injured condition started running towards his house, which was at a short distance. Respondents followed injured Younus but gave up the pursuit, when Younus reached his house. Four eye- witnesses and some other persons who were present at the spot saw the incident and identified the assailants. In the meantime injured Younus reached his house and his mother Mst. Aisha opened the door. Mother saw Younus walking in with his hand on his abdomen and the blood was rushing out from the wounds on his arm and abdomen. At the same time from the wound on the abdomen intestines were protruding out, and injured Younus kept attempting to keep them in.
Injured Younus lay down in the lap of his mother and said that "Ashraf nay mara hai" "Aek aur unkay sath tha", saying so Younus became unconscious. Arif brother of Younus came and removed the injured in a rickshaw to the hospital, where doctor pronounced him dead. In the meantime after removal of injured to the hospital, Mst. Aisha mother of Younus rushed to the Police Station to file report. Although record shows that some eyewitnesses had come to the house of Younus after the incident but Mst. Aisha did not speak to any one n'or they or any one of them informed her that incident was seen by them. Consequently report lodged by Mst. Aisha as complainant at Police Station Saddar at 9-27 p. m. Is very short reflecting the story that Younus 'came back injured with his hand on the wound on abdomen and blood was flowing from his abdomen and wound on the arm and to her inquiries as to who had caused him injuries, Younus replied that Ashraf has caused injuries and there was one more with him. Saying so Younus became unconscious. Mushtaq and Arif came running and Arif brought a rickshaw and took injured to the hospital. Needless to say again that on reaching hospital injured Younus was pronounced dead.
3. S. H.O. Mahmooil-ul.Haq Jafri after registeting F.I.R. Came to the scene of offence accompanied by the complainant and inspected the same and prepared mashirnama of scene of offence Exh.
15. He inspected dead body and prepared mashirnama of injuries Exh. 8 and inquest report Exh. 9.
Both these documents were prepared at the hospital. S.H.O. Then examined witnesses namely Muhammad Aslam, Muhammad Arif, Aisha Bibi and others. Duiing the investigation on 3rd November, 1969 S.H.O. Arrested respondent Ashraf. On the same day respondent Ashraf While in custody led to the recovery of one Tedy pint of sky colour which he took out from a gutter of bungalow No, 57/U of P.E.C.H.S. The paint was dried and it was found that blood marks were visible on the portion of knees. The paint was put into a sealed parcel, vide mashirnama Exh.
24. On the same day Adil respondent was arrested and he while in custody led to the recovery of a pair of chappal from under the bricks. Chappal was stained with blood and was put into a sealed parcel, vide mashirnama Exh.
25. The parcels were sent to the laboratory of chemical examiner. After completing other steps of the investigation-challan was presented in the Court.
4. Before the trial Court how many witnesses were examined by the prosecution is not clear.
According to the index prosecution has examined 11 witnesses in support of its case. On close scrutiny of index and corresponding record it appears that on page 29 of the paper book is evidence of P. W. 5 Muhammad Yameen. Again on page 50 of the paper book is evidence of P. W. 5 Mushtaq Ahmed. Similarly, at page 70 is evidence of P. W. 10 Muhammad Hassan and again on page 80 is evidence of P. W. 10 Muhammad Ali Bhatti. About this although there is no clarification on page 50 but it appears on page 79 that request was made in the application for transfer of statements of witnesses namely (1) Muhammad Ali, (2) Dr. Muhammad Syed Akmal Farooqi and
(3) Dr. Syed Akbar Ali recorded before the committing Court to the Court of Sessions under section 33 of the Evidence Act. Even this could have been done in a proper manner so that sequence of number of witnesses deposing before trial Court is reasonably maintained and statements of witnesses transferred from lower Court could also clearly be stated at one place to avoid confusion. This shows that proceedings had been conducted in the trial Court in haphazard manner without application of mind.
5. In any case evidence produced before the trial Court is that there are 4 eye-witnesses, who have been examined. These eye-witnesses are P. W. 1 Muhammad Yamin, P. W. 4 Muhammad Aslam, P.
W. 7 Bashir Ahmad and P. W. 8 Fida Hussain. They claim to have seen the incident in which respondent Adil was present at the spot when respondent Ashraf gave knife blow to Younus. They also saw Younus in injured condition leaving for his house nearby by putting his hand on his abdomen from which blood was oozing out and intestines sticking out. Now these eyewitnesses are natural and uninterested in the sense that they lived in the same locality and are not related to the deceased or the complainant. The evidence of these eye-witnesses will be discussed later at the proper place. Apart from this there is very important evidence of P. W. 6 Mst, Aisha Bibi mother of deceased, who had filed F. I. R. She has deposed about the dying declaration made by injured Younus before he fell unconscious and subsequently died, P. W. 3 Abdullah identified dead body of Younus at the hospital. P. W. 2 Muhammad Arif and P. W. 5 Mushtaq Ahmed (p. 50 paper book) are both brothers of deceased and have testified about the dying declaration P. W. 9 Majnoon Khan Head Constable is Process Server and has deposed before the trial Court that while attempting to serve it was reported that Muhammad Ali Bhutt had gone away to Dubai, Maqbool had abandoned his address and Rashiduz Zafar, had been transferred to Baluchistan. He produced reports Exh. 18, Exh. 19 and Exh. 20 and his own report Exh. 21.
6. P.W. 10--Muhamniad Ali 'Mutt, Whose statement before the Committing Court has been transferred to the record of Sessions has stated that he has attested mashirnaina relating to the trail of blood from the scene of offence to the house of deceased. He produced mashirnama Exh. 3 (a). P. W. 11 Dr. Muhammad Syed Ahmed, whose statement from committing Court has been transferred to the record of Sessions, has stated that he performed post-mortem examination on deceased Younus on 27th October, 1969 at 11 a. m. Deceased died while on way to Jinnah Hospital on the same day at 9 a. m. Deceased sustained two stab wounds. One was incised wound right side abdomen 3/4" x 3". 'Cause of death was haemorrhage and shock as a result of wound on the abdomen. The Doctor further produced post-mortem report Exh. 11/A.
6. P. W. 9 Dr. Syed Akbarali, whose statement from committing Court has been transferred to the Court of Sessions has stated that initially he made examination of Younus when he came to the hospital. He found him dead on examination. He found the same injuries which are mentioned above. Prosecution closed its side vide statement Exh.
35. Prosecution produced report of Chemical Examiner Exh. 26 according to which clothes of the deceased, paint of respondent Ashraf and left foot chappal of respondent Adil were found to be stained with human blood. Prosecution also examined P. W. 10 S.H.O. Mahmoodul Hasszn (p. 70 of the Paper Book) who has investigated the case and his evidence is given above.
7. Both the respondents before the trial Court in their statements under section 342, Cr. P. C. Have denied prosecution allegations. Respondent Ashraf has claimed enmity with P. W. Anwar and stated that he produced false evidence against him. He further stated that P. W. Ansar is also known as Basheer. In the end he proclaimed innocence and false implication. Respondent Adil further stated that at the instance of P.W. Yameen, he was a witness in 107V117, Cr. P. C. Case against him. No other witness was examined in defence.
8. We have heard Mr. Murtaza Hussain for A. G. For State, Mr. Muhammad Hayat Junejo, Advocate for respondent Ashraf and Mr. Nashuddin, Advocate for respondent Adil at great length. We have assessed the evidence which is on the record. We are aware of the limitations relating to the scope of interference in an acquittal appeal. It is in disputable that trial Court is in a better position to assess the evidence with advantage of noticing the demeanour of witnesses, who are examined before the trial Court. We know that on the question of assessment of evidence even if we come to conclusions which are different from those arrived at by the trial Court on factual side, interference will not be called for. But in a case where the trial Court has grossly misread the evidence and assessed the same with inherent illegalities disregarding settled principles of law and guidelines, which are to be observed for appraisal of evidence and the net result of these lapses is miscarriage of justice, interference in acquittal appeal is then legally called for. In the instant case the trial Court has misread the evidence and has appraised the same B in violation of settled principles of law and guidelines and has given artificial and perverse reasons for disbelieving some eye-witnesses, whose evidence is otherwise free from infirmities.
9. In the impugned judgment at page 108 of paper book the learned trial judge has discussed evidence of P. W. 1 Muhammad Yameen who is an eye-witness. He has almost reproduced evidence of this witness as recorded and then in the cross-examination highlighted a suggestion introduced by defence counsel that there was one Ashraf Makrani and it was possible that Ashraf Makrani might have stabbed Younus. P. W. Yameen further during the cross-examination also stated that he did not see P. Ws. Fida Hussain and Bashir at the time of incident. To Court question P. W. Muhammad Yameen came round again and stated that he could not identify Ashra f Makrani and it was not all possible that Ashraf Makrani could have stabbed the deceased. Then at the instance of A. P. P. The trial judge be ought on record statement recorded of this witness before the committing Court, where he has fully supported the prosecution case. The learned trial judge while forming conclusion on the appraisal of evidence of P. W. Yameen has observed that this witness blows hot and cold in the same breath and cannot be believed. This is certainly not a valid conclusion. The trial Court has lost sight of the fact that statement before the lower Court of this witness has been brought on the record under section 288, Cr. P. C. And that statement which is consistent with prosecution case is to be treated and acted upon as substantive evidence for all intents and purposes. Even this procedure under section 288, Cr. P. C. Has not been properly followed by the trial Court. In order to follow this procedure the requirements are that if the witness does not support prosecution case even at the stage of examination-in-chief then the prosecutor can make a request to the Court for permission to have the witness declared hostile and then have him subjected to cross-examination. Attention of the witness must be drawn to the relevant portions of earlier statement where he has supported the prosecution so that he may remember those parts if he had forgotten. Subsequently, those portions in the earlier statement may be put to him one by one specifically and then if he still denies then he be handed to the defence counsel for cross-examination. At the end request can be made to the Court for transfer of his statement recorded earlier before the committing Court to the file of Sessions to be treated as substantive evidence. To draw the attention of the witness to his earlier statement is to be done in accordance with the requirements of section 145 of the Evidence Act. In the instant case the procedure mentioned above has not been followed as required and in such circumstances the statement in the lower Court could not be treated as substantive evidence. Be that as it may, still we are of the view as to why his witness should not be believed when he has come round and disowned suggestion of Ashraf Makrani in response to Court questions. False concessions deliberately made to favour the accused can be ignored and the remaining evidence on material particulars which is very much consistent with prosecution case can still be relied upon. In this case P. W. Muhammad Yameen has clearly stated in his examination-in-chief that he saw Adil and Ashraf exchanging abuses with Younus. Ashraf tookout knife while Adil caught hold of deceased and Ashraf gave two knife blows the deceased. One blow struck at arm and the other at his stomach. Younus ran to his house holding his stomach.
10. On the point of appraisal of evidence reference is made to the well known case Tawaib Khan and others v. State , in which Supreme Court of Pakistan has held that maxim "falsus in uno falsus in omni bus" is no longer applicable. Similarly rule that integrity of witness is indivisible cannot be accepted as universal truth. Grain has to be sifted from E chaff in each case.
11. So far the evidence of P. W. 1 Yameen is considered he has already disowned introduction of Ashraf Makrani so that goes off. This F witness further in cross to Mr. Kabiruddin has stated that he could not recognise the other person who was with Ashraf, although in examination-in-chief he had recognised him and taken his name specifically. We ignore this piece of evidence as gratuitous concession and his remaining evidence is on all fours with prosecution case which we propose to rely upon. Other reasons assigned by learned trial Judge to disbelieve this witness are also fallacious. Firstly that this witness knew the deceased, still he did not intervene, secondly he did not go to the house of the deceased an thirdly he did not speak about this matter to any one.
These reasons are conjectural in nature and individually and collectively do not turn on the fact or falsify it that he has not seen the incident as claimed by him. We rely upon this witness moreover there are other factors which corroborate him. Locale of injuries on the person of deceased is1 medically proved. Going of injured Younus with hand on his abdomen from which blood was oozing out and intestines were sticking out is supported by Mst. Aisha and brothers of deceased.
Other eye-witnesses speak about the same injuries.
12. Now, so far the other eye-witness P. W. 8 Fida Hussain is concerned, he has deposed before the trial Court that he did not know Ashraf and when at the time of incident his attention was drawn he saw Younus lying injured and bleeding. He did not see Ashraf and Adil but saw two persons running away. This witness was not declared hostile and not cross-examined by the prosecution. His statement of lower Court was not brought on the record under section 288, Cr. P. C. Evidence of this witness is therefore, excluded from consideration.
13. Now, we take up third eye-witness P. W. 7 Bashir Ahmad. He has fully supported the prosecution case whole heartedly but admitted in cross-examination to a suggestive question from defence counsel that he has longstanding enmity with respondent Ashraf. This most obviously is gratuitous concession in favour of Ashraf. On the other hand, respondent Ashraf neither in his statement under section 342, Cr. P. C. Before the committing Court nor in the trial Court has claimed enmity with this witness in particular. Before the committing Court he has said that he has enmity with the witnesses. Before trial Court he has said that he has enmity with P. W. Anwar, who has procured false evidence against him. There is absolutely no mention about any enmity with P. W. Bashir Ahmed. That is why we consider claim of P. W. Bashir Ahmed to be having long-standing enmity with Ashraf is free concession to favour Ashraf. We also do not ignore the fact that incident took place in October, 1969 and evidence of P. W. Bashir Ahmed was recorded before the trial Court in April, 1974 when he conceded enmity with obvious purpose. We disregard this concession and rely upon the remaining evidence of this witness which is consistent with prosecution case. Similarly, we disregard another concession made by this witness that he did not see Aslam Khan at the spot at the time of incident.
14. Next eye-witness is P. W. 4 Muhammad Aslam, who resides in the same neighbourhood. He has fully supported the prosecution case. According to him Adil and Younus picked up quarrel and then Ashraf stabbed Younus on his stomach and inflicted one or two more blows. Younus caught hold of his stomach and ran towards his house and Ashraf followed him. When Younus reached his house, Ashraf came back. This witness has further stated that he went to the house of Younus and saw him lying in the lap of his mother. Arif brother of Younus went and brought a rickshaw and took Younus to the hospital. In cross-examination he stated that he had no talk with mother of Younus.
After Younus was removed to the hospital, he went away to his house and was examined by police on the same day at 11-00 p. m. Even the learned trial Judge could not find any fault in the evidence of this witness and remarked as under :- "This is the only eye-witness, whose credibility cannot be questioned but in the absence of any corroboration and in view of surrounding circumstances it is difficult to rely on his deposition."
15. We partly agree with the learned trial Judge in his observation to the extent that credibility of this witness cannot be called in question as he is trustworthy but cannot subscribe to the latter part of his observation that deposition of this witness cannot be relied upon in the absence of corroboration and in view of surrounding circumstances.
16. There is plenty of corroboration available in this case, which has been wrongly overlooked. All eye-witnesses with the exception of Fida Hussain have supported the prosecution case. Ocular evidence is supported by the medical evidence to the extent that injuries by knife were found on the deceased at the places as seen and claimed by the eye-witnesses. This evidence is further supported by Mst. Aisha mother of deceased, who has stated that deceased came to the house holding his stomach from which blood was oozing and intestines were coming out.
17. Another very important piece of evidence, which provides solid and flawless corroboration is dying declaration. Injured Younus made this dying declaration to his mother when he came to the house immediately after the incident. Mst. Aisha Bibi saw his son Younus coming in the house with his hand on his stomach from which blood was gushing out and also intestines were protruding out and there was blood coming from injury on his arm. Injured Younus lay down in the lap of his mother and on her inquiry as to who had caused injuries, Younus replied that Ashraf had caused him injuries and there was one other person with him. Urdu version is "Ashraf ney mara hai" and "Aek our unke sath tha". Saying this Younus became unconscious and was removed to the hopital by his brother Arif in a rikshaw and died before doctor could examine him. In the meantime Mst.
Aisha rushed to the police station, where she filed F.I.R. Stating the same facts as stated above.
18. Mr. Hayat Junejo counsel for respondent Ashraf assailed dying declaration on the ground that it was incomplete as name of other alleged assailant Adil was not given and father's name of Ashraf was not given and weapon was not mentioned. Now it is to be seen how badly injured was the person, who had made the dying declaration. Younus had sustained stab wound on his abdomen, which had caused internal damage. Intestines were coming out and blood was gushing out which fact is admitted by the eye-witnesses and Mst. Aisha. Doctor has stated that under the injury on abdomen incised wound was found on the liver cutting big blood vessels, which was sufficient to cause death. In this condition Younus walked 74 paces from the spot to his house with hand on his stomach to prevent intestines which were popping out. He must be in a state of great agony bordering on death and in fact he died immediately thereafter before doctor could examine him.
Now, in such a state a very short dying declaration appears to be natural. He spoke what was utterly important and took the name of Ashraf, who stabbed him. He did not take the name of Adil, may be for the reason that he might have forgotton it or that it was not important because Adil did not cause any injury to him. Similarly, he did not take name of father of Ashraf because many persons had seen the incident and Ashraf was known to the family as admitted by P. W. 2 Muhammad Arif brother of deceased. Additionally, it can be said that Younus was under great agony and had to speak as less as possible and only that which was of utmost importance that he did by naming Ashraf who stabbed him. It was not necessary to name the weapon because mother Mst. Aisha could see the nature of injuries which could be inflicted by knife. We, therefore, put full reliance upon the dying declaration.
19. P. W. 2 Muhammad Arif and P. W. 5 Mushtaq both brothers of deceased attempted in their depositions before the trial Court to associate themselves with dying declaration but we propose not to rely upon this particular part of their testimony. Muhammad Arif stated that his mother told him that Younus had informed her that Ashraf had stabbed him and one other person was with him. Mst. Aisha never said in her evidence before the trial Court that she informed Muhammad Arif about the dying declaration. Similarly, Mushtaq stated before the trial Court that on the day of incident deceased Younus came and knocked at the door and shouted that he had been stabbed by Ashraf with knife and there was one other boy with him and then he became unconscious. This assertion undoubtedly is not consistent with evidence of Mst. Aisha. We propose not to rely on both these witnesses on this point.
20. Mr. Junejo pointed out that it appears from the evidence of P. W. 6 Mst. Aisha Bibi that first injured Younus was removed to the hospital and then she came to the police station. The fact that Younus died in the hospital was not known to her and still in F. I. R. Offence under section 302, P. P. C.
Is mentioned and it is stated that Younus had died. We have no reason to doubt the veracity of Mst.
Aisha or to say that she has twisted her statement because we feel that she is without doubt a most truthful witness. This little confusion stands clarified if F.I.R. Is studied closely. At the end of F. I.
R. There is report of steps taken by the police and in it is stated that S.H.O. Who wrote F.I.R. Was informed on telephone by the doctor that Younus was brought to the hospital in dead condition by Muhammad Arif. Now, it appears that when F. I. R. Was being written this informawas received and this explains the mention in F.I.R. About death of Younus and application of section 302, P. P. C.
When the S.H.O. Was in the box before the trial Court no such question was put to him about this aspect otherwise we would have clarified this little confusion.
21. Next Mr. Junejo assailed evidence of eye-witnesses on the ground that their names do not appear in F.I.R. He cited some reported decisions but in all those cases report was lodged by eye- witness, hence non-mention of names of other eye-witnesses was a material point. Conversely in the instant case F.I.R. Is lodged by a person who is not an eyewitness and does not claim to have seen the incident. M. Aisha mother of deceased has lodged F. I. R. On the basis of dying declaration made to her by her injured son before he became unconscious. The contention is therefore, devoid of force. Mr. Junejo also submitted that eye-witnesses did not intervene and took no steps to come to the rescue of deceased. It is in the evidence that incident did not take long and Ashraf took out knife and gave two or three blows, which must have been in split of seconds. It is also in the evidence that Ashraf followed injured Yonus upto his house with knife in his hand which fact must have dissuaded witnesses to keep away for their own safety. Mr. Junejo further submitted that some eye-witnesses particularly P. W. 4 Muhammad Aslam came to the house of deceased after the incident and it is unlikely that he or they did not inform mother of deceased about details of incident. No eyewitness has admitted having informed mother of deceased about the incident and mother of deceased, who is complainant has deposed before the trial Court in categorical terms that she did not inquire from any person who came to her house and went straight to the police station for report and this must be for the reason that she had the dying declaration with her.
22. So far recoveries are concerned the case of the prosecution is that Ashraf while in custody led to the recovery of blood-stained pant from the gutter of bungalow No, 57/U of P. E. C. H. S. The pant was soiled with mud and was wet. After the pant was allowed to dry the same was sealed into a parcel. This recovery according to mashirnama Exh. 24 was made on 3rd November, 1969. This mashirnama was produced by S.H.O. Mahmoodul Hassan in the Court when he gave evidence.
Strangely the S.H.O. Has not mentioned in his evidence the date of arrest of Ashraf. The learned counsel has submitted that Ashraf was arrested on 27th October, 1969. In the circumstances recovery of pant was made after days of the Arrest, which Ashraf passed in police custody. There is no mashirnama of arrest of Ashraf on the record. Similarly S.H.O. In his deposition before the trial Court has not mentioned the date of arrest of Adil and he has produced the mashirnama of recovery of chappal. Accordingly to this mashirnama recovery of pair of chapped was made from the bricks near Bungalow No, 57/U, P. E. C. H. S. At the pointation of Adil on 13th November, 1969. On inspection one shod of chappal of left foot was found to be stained with blood and the same was put into a sealed parcel. Mash irnama of arrest of Adil has not been produced on the record hence the date of his arrest is unascertainable. The report of the Chemical Examiner is positive with regard to both of these articles. Mr. Junejo has submitted that according to mashirnama Exh. 24 the pant recovered was of sky colour but according to the report of Chemical Examiner the colour of the pant in parcel was gray. Learned counsel further submitted that the report of Chemical Examiner is open to doubt because the pant when recovered was wet and soiled with mud which could have remained in the gutter for long time hence it was possible that the blood marks could have disappeared. Recovery of pant was also criticized that the same was made after Ashraf remained in police custody for about 8-10 days. Another feature of this piece of evidence is that mashirs Maqbool Ahmed and Abdul Ghafoor who have attested these mashirnamas Exhs, 24 and 25 have not been examined. Process-Server Majnoon Khan Head Constable has been examined before the trial Court as P. W. 9, who has stated that he was given summons of Muhammad Ali Bhutt, Maqbool Ahmed and Rashiduz Zafar and it was reported that Muhammad Ali Bhutt had gone to Dubai, Maqbool had abandoned his given address and was not traceable and Rashiduz Zafar had been transferred to Baluchistan. This witness produced unserved summons Exhs, 18, 19 and 20 and produced his report as Exh.
21. Out of these three witnesses mentione only Maqbool Ahmed is mashir. Exh. 18 is summons relating to Maqbool Ahmed mashir. We have checked the original record and have seen the original summons in the name of Maqbool Ahmed. There is no endrosement of Process Server on it. However, in the report of Process Server Exh 21 it is mentioned that summons of Abdul Ghafoor was duly served while summons of other witnesses were being returned unserved as Muhammad All Bhutt had gone to Dubai and Maqbool Ahmed had changed his address and his present address was not available. Source of information is not mentioned as to who informed the Process Server that Maqbool Ahmed had changed his address and his present address was not available. What really appears to us is the fact that no attempt was made by the Process Server to go and serve Maqbool Ahmed because the address in the summons is incomplete which mentions resident of garage P.E.C.H.S. Karachi. This address is most inadequate to serve any person, hence it appears that the Process Server did not make any attempt to serve him. Secondly, if address of mashir Maqbool Ahmed was incomplete and he could not be served then no attempt was made to serve comashir Abdul Ghafoor. In these circumstances, it will not be proper to rely upon the evidence of the S.H.O. To prove recoveries. At this address we feel constrained to observe that it was the duty of the learned A.P.P. To have seen that when the S.H.O.
Produced all the relevant documents in his evidence, with regard to the investigation including mashirnamas of arrests of respondents and care should have been taken to see that mashirs were served and produced in the Court and the documents produced by the Process Server should have been scrutinized before production in the Court. It has been pointed out that at page 70 of paper- book there is statement of A.P.P. Which is to the effect "I give up P. W. Abdul Ghafoor." No reason is assigned. We, therefore, following the rule of caution exclude from consideration evidence regarding recoveries produced by the prosecution Which is unsatisfactory. Even after excluding this piece of evidence the remaining evidence as stated above is sufficient to prove the case.
23. Mr. Nasiruddin counsel for respondent Adil submitted before us that case of Adil was distinguishable from the case of respondent Ashraf for the reason that injuries of deceased are not attributed to Adil and further evidence of eye-witnesses is not consistent on the role ascribed to Adil. P. W. 1 Muhammad Yameen has deposed that he saw Ashraf and Adil exchanging abuses with Younus when Ashraf picked out a knife and stabbed Younus while Adil caught hold of deceased. P.
W. 4 Muhammad Aslam deposed before the trial Court that he saw Adil and Younus picking up a quarrel and grappling with each other and Ashraf who was present there stabbed Younus. P.W. 7 Bashir Ahmad stated before, the trial Court. That he saw Ashraf, Adil and Younus quarreling among themselves and first they were fighting with fists but later on Ashraf whipped out a knife and stabbed Younus. None of the eye-witnesses has stated that Adil was armed or he inflicted any injury to the deceased. Even deceased Younus in his dying declaration made to his mother did not take name of Adil specitically as such name of Adil does not find mention in F. I. R. Which was lodged by Mst. Aisha Bibi. It was contended by Mr. Nasiruddin that in these circumstances no active part could be assigned to Adil and evidence of the prosecution does ,not prove that Adil shared common intention with Ashraf. It is further submitted that there is no proof that Adil knew that Ashraf was armed with knife and would stab Younus. Act of stabbing with knife is an exclusive act of Ashraf in which there was no share of common intention. We feel inclined to agree with Mr. Nasiruddin that it is a fit case for benefit of doubt for Adil. Mr. Junejo, counsel for respondent Ashraf submitted before us that in case we felt inclined to hold that the case was made out and offence was proved then section 302, P. P. C. Will not be attracted because there is no evidence on the record with regard to motive and secondly, eye-witnesses have not disclosed as to what was talk between the deceased and the assailants before attack and thirdly, that at the most it appears from the evidence of the eye-witnesses that there was quarrel between the deceased and the assailants, which resulted into a fight and suddenly on impulse Ashraf whiped out knife and caused one or two injuries with no intention to cause death or grievous hurt. It is further submitted that had Ashraf such intention he would have given more injuries to cause death instantaneously. There was nothing to prevent Ashraf from causing more injuries. Only two injuries have been found by the doctor on the person of the deceased and one of them was on the abdomen and the other on the left forearm which could possibly be the result of even one blow aimed at the arm. Measurement of injury of abdomen was 3/4" x i" and that on left forearm was 14" xx 3". It was further submitted that this one knife blow or at the most two were given in the heat of moment after the quarrel. Had Ashraf intention to kill he could have easily given more injuries particularly when it is alleged by the eye-witness that he followed the deceased Younus upto his house with knife in his hand but still no further injuries were caused. It was further submitted by Mr. Junejo that even P. W. 2, Muhammad Arif who is brother of deceased has deposed before the trial Court that respondent Ashraf was a neighbour and used to visit his deceased brother Younus. The relations between the two were cordial and he was not aware of any dispute or quarrel between them. He has further deposed that he had seen Younus and Ashraf together about a week prior to the incident. In the circumstances it appears that deceased and respondent Ashraf were friends and some quarrel must have taken place between them in the result of which one or two knife blows were inflicted by Ashraf on sudden impulse without intention to kill as is apparent from the evidence discussed above.
24. For the facts and reasons stated above we partly allow the appeal in respect of respondent Ashraf and set aside the finding on acquittal in his favour and instead record his conviction under section 304-11, P. P. C. And sentence him to R. I. For 7 years. He is not present in the Court as such non-bailable warrants be issued against him to arrest him to commit him to custody to serve out the period of sentence. Appeal is dismissed in respect of respondent Adil as he is given benefit of doubt.
25. Mr. Junejo Advocate for respondent Ashraf made a request that hi case we are of -the- opinion that it is a case for conviction then benefit contemplated under section 382-B, Cr. P. C. May be given to respondent Ashraf. We accept his request and direct the Jail authorities to include period of detention of respondent Ashraf as undertrial prisoner at the time of computation of sentence. PL D 1970 SC 13