1. Abdul Kadir Shaikh, J.--The appellants, Amir Bux son of Junta Khan Rind, Zulhkar son of Amir Bux Rind, Muhammad Ramzan son of Khush Muhammad Shaikh and Ali Hassan alias Hasso son of Sher Muhammad, have been found guilty by the Sessions Judge, Larkana, for the murder of Shamsuddin alias Shahzado and for having caused injuries to Aftab Ahmad and his brother, Ayub Gul. Amir Bux has been awarded death sentence, whereas each of his three companions has been sentenced to transportation for life under section 302/149, P. P. C. The sentences under sections 323 and 324 read with section 149, P. P. C. are common for one year R. I. each on each count, to run, however, concurrently in the case of Amirbux these would automatically become infructuous in case his death sentence is executed. The case has come before us by way of confirmation of the death sentence imposed upon Amir Bux, and on a joint appeal filed by the convicts.
2. The incident occurred at 7-45 p.m. on 11th July 1966 in Cafe Madina situated in a busy area of Larkana town, and came to be reported with the police within a matter of half an hour by Aftab Ahmed. His version in the First Inormation Report was that the deceased had come to visit him in his house in the evening time, when his brother Ayub Gul, P. W. 3, was also there, and the three friends went out for a cup of tea to Cafe Madina situated at a short distance. As soon as they entered the door of the Cafe, Amirbux appellant challenged him from behind and asked his companions, the three co-accused, and four other persons, namely, Nabibux, Nazir Hussain, Karimbux and Didar not to spare him alive. It may be said that Nabibux, Nazir Hussain and Karim Bux were tried along with the appellants but they were acquitted, and Didar son of Amirbux, the brother of Zulfiqar appellant, is yet absconding. Amirbux, is said to have had a big dagger in his hand, and his companions were armed with a knife each, and they first attacked two of the three friends, P. Ws.
3. Aftab Ahmed and Ayub Gul. Deceased Shahzada there upon ran out of the hotel, but he was followed by Amirbux and his son Didar, who struck him down with the weapons they were carrying, as a result of which Shahzado fell on the ground. Many persons collected on the scene, among them being Ghulam Mustafa, the father of Ayub Gul. Aftab Ahmed further stated that on coming out of the hotel after the incident, he saw his friend Shahzado lying dead outside, and leaving the others on the spot, he went to the Town Police Station, Larkana and lodged a report.
4. The motive for the crime was said to be an earlier incident during the same day at 10 a. m.
5. According to Aftab Ahmed, he and his friend Shahzado had gone to the bazar and when they reached near Royal Cinema, appellants Zulfikar and Ali Hassan along with the acquitted accused Nazir Hussain and Nabibux came behind them and started teasing Shahzado and cutting jokes with them. They resented their behaviour, but no untoward incident occurred as the passersby intervened, and separated the party. Aftab Ahmed is said to have then gone to Amirbux, the father of Zulfikar and absconder Didar, and requested that he may remonstrate his sons, but on the contrary, Zulfikar became angry. This was stated to be the reason which prompted the accused- party to attack the prosecution party.
6. After registering the crime, S. H. O. Anisur Rahman, went to the scene of offence and conducted the usual investigation during which he sent the body of the deceased Shahzado to the Civil Hospital for post-mortem examamination. He also sent the injured Aftab Ahmed and Ayub Gul for medical examination and report.
7. Dr. Ali Raza, Medical Officer, at the Civil Hospital, Larkana, who conducted the post-mortem examination on the body of the deceased, found two injuries on his person being a punctured wound IYX1/2' neck deep on the right side of the neck about 1" above the right clavicle, passing vertically downwards and the other consisted of incised wounds ll'xl/2*x muscle deep on the right forearm about 1" above the right wrist-joint outer side. The internal examination revealed that all the other organs were normal except for the corresponding damage in the external injuries.
8. According to the doctor the injuries were caused by some sharp-cutting pointed substance like a small knife, the first injury being otherwise sufficient in the ordinary course of nature to cause death.
9. On the person of Aftab Ahmed, he noticed one lacerated wound on the occipital region of left side 1* x 1/6'muscle deep. The injury was simple and appeared to have been caused by a blunt substance like a bottle or glass. The injured Ayub had also one injury consisting of an incised wound on the right upper left eyelid 3/4" x 1/6" which appeared to have been caused by a sharp-cutting weapon such as a broken glass of a bottle. , It would be appropriate to mention here that Muhammad Ramzan appellant, who was arrested the same day, and appellants Zulfiqar and Muhammad Hassan who were arrested the next day, were noticed to have injuries on their persons, and they were also sent for medical examination and treatment to the same doctor. Three injuries were noticed on the person of Zulfiqar appellant, two being incised wounds, caused by a sharp-cutting substance "such as pieces of broken glass," and the third a contusion caused by some blunt substance. All these injuries were, however, simple in nature. Appellant. Ramzan had only one injury, a contusion 4" x 1" simple in nature having been caused by some hard blunt substance "such as a lathi or a leg of chair.*' Ali Hassan appellant had two injuries, one incised wound and the other an abrasion, the former caused by some sharp- cutting sub stance such as pieces of broken glass, and the latter by a hard blunt substance.
10. At the time of arrest, the trousers and shirt of Muhammad Ramzan appellant appeared to be blood-stained and these articles were, therefore, seized under Mashirnama Exh. 24 in the presence of Muhammad Ibrahim Mashir. A blood-stained knife was also secured under the same Mashirnama, which he was carrying in the fold of his trousers. After his arrest, Amir Bux pointed out a dagger said to be used by him from a southern corn bin of his upper room, which was secured under Mashirnama Exh. 26 in the presence of the Mashirs. Under the same Mashirnama, blood - stained trousers and shirt worn by Zulfiqar son of Amir Bux were also secured. At the time of arrest, the shirt and the loin cloth worn by Ali Hassan were also noticed to be blood-stained, and these articles were also,secured under a separate Mashirnama, Exh.
27. All these articles were sent for chemical analysis of the blood noticed on them, and according to the Chemical Analyser's report, Exh. 36, received, it revealed that the blood on the articles was certified to be human.
11. The prosecution case at the trial consisted of the ocular testimony of 4 eye-witnesses, P. Ws. Aftab Ahmed, Ayub Gul, Buxal and Mujtaba, out of whom the first two are brothers, being the sons of Ghulam Mujtaba witness and Buxal was masat of the deceased.
12. The last two witnesses stated that they were attracted to the vardat on hearing commotion and rushed there in time to see the attack on deceased Shahzado by appellant Amirbux and his son Didar. Ali Nawaz P. W. 5, the father of the deceased, however, came later to the scene and his version was that he was given the narration of events by the eye-witnesses.
13. The ocular evidence was sought to be supported by the recovery of the blood-stained dagger from appellant Amir Bux and the blood-stained clothes secured from appellant Zulfiqar, Mohammad Ramzan and Ali Hassan, and also the blood-stained knife secured from Mohammad Ramzan, appellant.
14. Both the brothers, Aftab Ahmed and Ayub Gul in their statements at the trial, stated that deceased Shahzado, their friend and caste-fellow, had come to their house on the fateful evening, and they went along with him to take tea in Cafe Madina, situated two furlongs away from their houses, and while they were * sitting inside the hotel, the appellants headed by Amirbux came inside the hotel, and attacked them at the instigation of Amir Bux. The details of the attack they gave were that Amir Bux took out a dagger from the folds of his trousers and on his instigation his companions took out their knives and attacked them. Aftab stated that appellant Ali Hassan and Nazir Hussain caught him, while Zulfiqar appellant gave him a knife blow from behind his ear. The appellant Nabi Bux and Karim Bux caught hold of Ayub Gul, while Ramzan gave him a knife blow over the eye-brow. Their version was consistent in that Shahzado went out of the hotel followed by Amirbux and Didar, and was done to death by the pursuers, the fatal injury on his neck was, however, from Amir Bux.
15. According to them, Ghulam Mujtaba and Buxal came later and also saw the attack on Shahzado.
16. They named two other persons in addition, namely Lai Khan and Muhammad Hassan who were mentioned in the first information report, but these persons were not examined at the trial, or at the committal inquiry.
17. P. W. Buxal's version was that he had left his house in search of Shahzado deceased, as they were to go to Karachi, and he wanted to consult him about the actual train. He stated that he did not know that Shahzado had gone to Cafe Madina, but after searching him in other hotels, he proceeded to Cafe Madina, and when he came outside the hotel he saw about 20 or 25 persons out of the hotel. He went oil to say that appellants Ali Hassan and Nazir Hussain had caught hold of Aftab, and Zulfiqar gave him the knife blow, and at the same time Nabi Bux and Karim Bux had caught hold of Ayub Gul, and Ramzan gave him the knife blow. He further stated that appellant Amir Bux and his son Didar were at that time standing inside the hotel, the former had a dagger whereas the latter had knife, and Shahzado came out of the hotel raising cries followed by these two appellants who caught hold of him near the cycle shop, and while Amir Bux gave him a dagger blow on his neck Didar gave him the knife blow on his hand, and the deceased fell down. In the cross-examina tion, he stated that only one person could pass through the door of the hotel at that time, and there were about 25 persons on the road when the fight was going on. Ghulam Mujtaba, the father of P. Ws. Ayub and Aftab, who claimed to be an eye-witness, could not be examined at the trial as, according to his son Aftab Ahmed, he was lying ill for 1J years, and his statement during the committal inquiry was, therefore, produced under the provisions of section 33 of the Evidence Act.
18. In this statement, he stated that he had gone for opium, and was returning to his house, and while he reached the road crossing near Cafe Madina, he heard cries and saw persons running in that direction. He, therefore, was attracted to the spot where he saw the commotion and on reaching there, he saw Aftab, Shahzado and Ayub Gul outside the Cafe. Amir Bux had told his companions to kill them, and all the accused then went inside the hotel. The further version of the incident was to the same effect as given by the other witnesses.
19. As regards the testimony of these four persons, who claimed to be the eye-witnesses, the learned Sessions Judge, Larkana, took the view that both Buxal and Ghulam Mujtaba were not only interested witnesses but also appeared to be chance witnesses, and it is likely that their names were falsely added. He was of the further view that there being previous hostility between the parties, it was unsafe to rely on the testimony of Aftab Ahmed and Ayub Gul, unless corroboration thereof comes from an independent source. This corroboration he found in the case of Amir Bux appellant, in that he had pointed out the dagger which was stated to have been used by him in the crime, and which, according to the Chemical Analyser's report, was stained with human blood.
20. In the case of the other appellants, Zulfiqar, Muhammad Ramzan and Ali Hassan, the circumstantial evidence he relied upon were the injuries on their persons and the recovery of the blood-stained clothes and the blood-stained knife in the case of Muhammad Ramzan. He was, therefore, of the view that the participation of these four appellants was fortified by the circumstantial evidence. He found no independent corroboration in the cases of their companions, except for Didar, who was absconding, and he, therefore, held that they were entitled to the benefit of doubt. It was for this ground that he acquitted the three companions of the four appellants.
21. Mr. Tufail Ali A. Rahman, the learned counsel for the appellants, did not deny the presence of the three appellants, Zulfiqar, Ramzan and Ali Hassan on the scene, and frankly conceded it, for the reason of the injuries noticed by the doctor and also recoveries of blood-stained clothes secured from them. He, however, contended that their presence would at best show that they participated in the fight, but not that they were necessarily aggressors. His argument in this connection was that there was a fight by two different groups and mere presence would not make the participant necessarily a guilty person for the murder.
22. Referring to the case against Amir Bux, he contended that the part assigned to him that he attacked the deceased with a dagger and caused the vital injury has been falsified by the medical evidence, in that the injury was noticed on the neck of the deceased. He further pointed out that the version given by the witnesses as to the participation is very much contrary to the medical evidence, in that Aftab Ahmed ascribed the injuries on his person to Zulfiqar by a knife, whereas, according to the doctor, he had a lacerated wound which was said to have been caused by a hard and blunt substance. He, therefore, contended that this would itself suggest that the word of the eye-witnesses should not be believed, and even if Amir Bux and his son Didar may have followed the deceased, the fatal injury cannot be ascribed specifically to any of them and, therefore, both would be entitled to the benefit of doubt.
23. The facts and the circumstances disclosed from the record clearly are that there was altercation in Cafe Madina by the persons of two opposing groups. According to the doctor, appellants Zulfiqar had incised wound 1/2" x 1/6" skin deep on the right back of foot and another incised wound 1/2" x 1/6* behind the right toe. These injuries according to him could be caused by some sharp-cutting substance such as pieces of broken glass. It is clear that the doctor's imported knowledge about the incident in this case may have been acquired by him through the injured persons. The broken pieces of glass found on the vardat sufficiently corroborate the version of the prosecution witnesses Aftab Ahmed and Ayub Gul that while they were in the hotel for a cup of tea with their companion Shahzado, the accused party came in a body and attacked them.
24. Important feature of the case, however, is that deceased Shahzado was not the person to be attacked first. In fact, Aftab Ahmed and Ayub Gul were the first victims, and it was only when Shahzado wanted to escape from the scene that he was said to be followed by Amirbux and his son Didar. It is, therefore, clear that the body of persons who attacked Aftab Ahmed and Ayub Gul did not enter the hotel with the object of causing the murder of Shahzado. If that were so, then Shahzado should have been the first target. Whereas it is said that three persons surrounded Aftab Ahmed, the other three concentrated upon Ayub Gul, and in the brawl that took place, glass pieces and other articles were A found broken. In the circumstances, all that can be at best attributed, is that the object of the unlawful assembly was to commit offences at best punishable under sections 323 and 324, which they actually carried out in regard to the prosecution witnesses Aftab Ahmad and Ayub Gul. It cannot be said their object extended for more serious crime, on seeing the deceased I escaping.
25. As to the details of individual participation in regard to the attack on the deceased, the evidence is discrepant and hardly trustworthy. Cafe Madina, with all the persons inside, and the furniture etc. is 12 to 15 square feet, and admittedly several persons gathered outside the hotel. This was bound to be so, because the hotel is said to be in the heart of Larkana town, and at the hour of the evening the incident took place, it must have attracted several persons. It, therefore, hardly appeals to reason that the two injured witnesses who were themselves surrounded by three persons each, could have noticed the details of the attack on their companions outside the hotel. Admittedly there was hostility between the parties, and it is not unlikely that an innocent person may have been named. Rule of caution, which the Courts in the circumstances seek for bringing home the serious charges of the type in this case, is corroboration from independent quarters to the ocular testimony of the type of witnesses like Aftab Ahmed and Ayub Gul. P. W. Buxal, masat of the deceased and P. W.
26. Mujtaba, father of Aftab Ahmed and Ayub Gul, can easily be said to be chance witnesses. Out of several persons who must have gathered at the scene, which must clearly have been the position, no independent persons were produced at the trial, not even those named in the First Informination Report, who may have been independent witnesses. It is also unfair to rely upon the word of P. W.
27. Buxal and Ghulam Mujtaba that they had seen the actual attack. On their own showing, they were attracted to the scene on a commotion, and it is rather a tall claim to accept that they should have noticed the attack on Aftab Ahmed and Ayub Gul in the hotel, which was surrounded by a large number of persons.
28. In the circumstances, we are clearly of the view that the offences of which the appellants can safely be found guilty, are those under sections 323 and 324 read with section 149, P. P. C. We would, therefore, giving them the benefit of doubt, acquit them of the charge under section 302, P. P. C. and set aside their conviction and sentence under this section. The appeal is thus partly allowed, in that while maintaining the convictions and sentences imposed upon the appellants under sections 323 and 324 read with section 149, P. P. C., we acquit them of the charge under section 302/149, P. P.
29. C. and set aside the conviction and sentence thereunder.
30. We find that since their conviction on the 7th of December 1968, they have all along remained in jail, which covers the term of more than one year, which would entitle them to release forthwith, unless required in some other connection. Order accordingly. .