1. ' Appellant abovenamed, being aggrieved by judgment, dated 24th May, 1981 of the learned Sessions Judge, Hyderabad, in Session Case No, 256/79, by which appellant has been convicted under section 326, P. P. C. And sentenced to suffer R.
1. For 3 years and to pay fine of Rs, 3,000 or in default to suffer further R. I. For 1 year, has preferred the above appeal, on the following facts and grounds :- ' Prosecution case, briefly stated, is that complainant Munir Ahmed and his son Shahid used to run an hotel near Gole Building, Hyderabad City. The co-accused Tasawar, appellant Tariq and co- accused Iftikhar Ali used to take meal at their hotel. It is alleged that all the three appellants as well as co-accused visited the hotel on 2nd July, 1979 and took meal. There was altercation between the appellant as well as co-accused and the hotel management over the quality of food served to them. The appellant as well as co-accused did not make payment of the bill and left issuing threats to the complainant Munir Ahmed and his son Shahid. It is further alleged, that all the three appellants as well as co-accused re-visited the hotel at about 8-30 p.m., while co-accused Tasawar and appellant Tariq were carrying open knives, and co-accused Iftikhar Ali was carrying a hockey stick. They started abusing the complainant Munir Ahmed and his son Shahid on account of the earlier incident. Co-accused Tasawar struck complainant Munir Ahmed by means of the knife he was armed with. Appellant Tariq stabbed P. W. Shahid by means of the knife he was carrying. Co-accused Iftikhar Ali played the part of the hurling the hockey stick. This incident was witnessed by the hotel employees, namely Farhad, Ramzan, Anwar Ali and the customers present there. The appellant as well as co-accused made good their escape. Both the injured Munir Ahmed and Shahid were rushed to L. M. C. Hospital, Hyderabad, whre they were attended upon by the Duty Medical Officer, Dr. Amanullah. Someone conveyed information of the incident to City Police by means of telephone. The Incharge Police Station, Inayat Ali A. S. I.-P., received the information and made such note on the station diary and proceeded to L. M. C. Hospital, Hyderabad. He found both the injured Munir Ahmed and Shahid there. Munir Ahmed was in a condition to make statement. A.
2. S. I. P. Inayat Ali recorded his statement, which reads as under :- "Injured Shahid is my son. We have an hotel at Gole Building. Tasawar, Tariq and Iftikhar Ali have been taking food at our hotel daily on payment. Today, evening, at about 6 O'clock, all the three aforesaid appellant as well as co-accused quarrelled with us over the payment of food. On that account, all the three, appellant as well as co-accused visited the hotel tonight, at half past 8 O'clock. They said that we had abused them in the evening and they would not spare us. From amongst the three appellants as well as co-accused Tasawar and Tariq had knives and Iftikhar had a hockey stick. Witnesses Anwar Shaikh, Ramzan and Farhad tried to pacify time, but they did not listen Tasawar gave me a knife blow, which struck me on my abdomen by the side of umbilicus on left side. Tariq gave two knife blows to Shahid on his abdomen. Iftikhar went on hurling hockey stick. The aforesaid witnesses intervened and rescued us. Blood had oozed out from the injuries. We both, myself and my son Shahid, were got removed to the hospital, I am in proper senses and make the statement."
3. ' After recording the aforesaid statement of complainant Munir Ahmed, Inayat Ali S. S. I. P., prepared mashirnama of injuries on both the injured. He then returned to the Police Station and transcribed the statement of Munir Ahmad in 154, Cr. P. C. Book, at 9-30 p.m. After registration of the crime, he went back to the Civil Hospital and recorded statement of Shahid. He also recorded statement of Anwar and Ramzan witnesses, who were available there. He inspected the vardat in presence of Muhammad Akhtar and Abdul Rashid mash irs. He observed blood there on the ground and found furniture and utensils in the hotel lying topsyturvy. He found a blood-stained 'potra' lying there and secured it. He then made hunt for the appellant as well as co-accused. He arrested co-accused Tasawar on 2nd September.
4. 1979. Co-accused Iftikhar Ali obtained bail before arrest. Appellant Tariq disappeared. The A. S. I. P.
5. Passed on the papers to Khalil Bajwa S. H.
6. 0., who challaned the appellant as well as co-accused.
7. ' All the three, appellants as well as co-accused had denied the allegation. Co-accused Tasawar, who has absconded during the pendency of the trial, had taken the plea of alibi, that he was admitted in the Civil Hospital on the day of the incident. He could not say as to why had been implicated in this case. Appellant had alleged false implication on the ground that he happended to find an obscene photograph of P. W. Shahid and he showed it to the complainant Munir Ahmed and impressed upon him to take care of his son, who had been indulging in obscenity, but did not part with the photograph. Complainant Munir Ahmed alleged that he has implicated at the instance of the Police.
8. ' Prosecution had examined complainant Munir Ahmed (P. W. 1), Shahid (P. W. 2), Anwer Ali (P. W. 3), Farhad (P. W. 4), Inayat Ali A. S. I. P. (P. W. 5), and Medical Officer Dr. Amanullah (P. W. 6).
9. ' Co-accused Tasawar desired to examine in his defence Dr. Sanaullah, Medical Officer, Medico- Legal Section, L. M. C. Hospital, Hyderabad. But he absconded before the witness could be examined. Appellant Tariq had examined in his defence two witnesses Bashir Ahmed (Exh. 28) and Nasim Ahmed (Exh. 29). Co-accused Iftikhar Ali has not adduced any evidence in his defence.
10. ' Learned trial Court taking into consideration the evidence adduced before it, while acquitting co- accused Iftikhar, convicted-appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
11. ' Learned Advocate for appellant in support of the above appeal submitted as under :-
(a) Motive alleged by P. Ws. Disbelieved by learned trial Court and as such statements of P. Ws.
12. Required independent corroboration, which is not at all available in present case.
(b) Co-accused Iftikhar Ahmed acquitted on same set of evidence and as such conviction of the appellant not at all justified.
(c) That all P. Ws. Are interested and On account of enmity suggested no reliance can be placed on their statements, without independent corroboration, which is not at all available in present case.
(d) In the alternative appellant remained in custody for one year as under-trial prisoner and for 15 days after conviction and as such said period be considered as sufficient punishment, in view of the facts of present case.
13. ' Learned Advocate appearing for the State on the other hand submitted that he fully supports the conviction of the appellant for cogent reasons given by the learned trial Court. He further submitted that case of acquitted co-accused was distinguishable, as stated by learned trial Court and as such his acquittal has no effect on the case of present appellant.
14. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment.
15. ' Learned trial Court disbelieved the statements of P. Ws. Regarding earlier incident, which was alleged to be motive for main incident, on account of contradictions inter se in the statements of P.
16. Ws. About actual time of the said incident etc. In addition to this, P. W. 3 Anwar Ali the alleged eye- witnesses of the incident did not state, the present appellant caused any injury to P. W. Shahid. He only said appellant Tariq and co-accused Iftikhar threatened us, when we tried to save P. W. 1 and P. W 2. The learned trial Court doubted his presence at the time of incident. However P. W. 4 Farhad, who is employee of P. W. 1 and P. W. 2 at their hotel fully corroborated the statements of P. W. 1 and P. W. 2 about present appellant having caused two knives blows to P. W.
2. It is significant to note, that this P. W. 4, did not state the location of injuries received by P. W. 2, at the alleged hand of present appellant. Further according to P. W. 5 Inayat Ali, I.O. Of the case, he recorded his statement under section 161, Cr. P. C. On 28th August, 1979 after long delay, although this P. W. Was available for at least two days after the incident. In view of this, it would be unsafe to rely on his statement. Therefore, we are left only with the statements of P. Ws. 1 and 2, father and son, who were not believed by learned trial Court about motive and presence of B acquitted co- accused Iftikhar Ahmed. Consequently, it would be unsafe to rely on their statements, without independent corroboration, which is not at all available in present case, against above appellant.
17. In view of this prosecution has failed to establish its case against present appellant beyond reasonable doubt.
18. ' Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds by the appellant in above appeal.