Muhammad Haleem, J.--Appellant Aurangzeb son of Rahim Gul was tried along with Rahim Gul and Ghulam Hyder for the murder of Aurangzeb son of Junta Khan and was only convicted under section 302, P. P. C. and sentenced to death by the learned llnd Additional Sessions Judge, Hyderabad, vide judgment dated 24th October 1970. He has appealed against his conviction, while the learned llnd Additional Sessions Judge has referred his case for the confirmation of death sentence. This judgment will dispose of both the appeal and the reference.
According to the prosecution case while Juma Khan was having dinner along with his brother Akbar and his son Pervez at 8 p.m. on 15th July 1969, he heard the cries of his elder son, Aurangzeb, coming from the side of Nalka Lane, "Uncle, save me, save me" upon which he, Akbar and Pervez went out of the house towards the side of the lane from where the cries had come and saw that the acquitted accused, Rahim Gul and Ghulam Hyder, were holding Au rangzeb and appellant inflicting knife blows on him. Seeing Juma Khan and others coming towards them, the acquitted accused released him from their hold, who fell on the ground and the appellant again inflicted one more knife blow, A scooter was parked close-by and some one started it and drove away. Majid and Bhaiya were amongst others who had witnessed the incident. Aurangzeb expired soon after and his dead body was carried into the house. Juma Khan whereafter informed Ghulam Flussain as to what had happened and he directed him to lodge the report ; accordingly he proceeded to Police Station Cantonment, where he lodged the F. I. R. at 22-15 hours the same evening.
3. The motive alleged was that Ghulam Hyder wanted to purchase the house of Juma Khan but he refused to sell it to him, upon which Rahim Gul, Aurangzeb and others used to abuse the children and had not abstained from doing so despite protests and a day previous to the incident while Juma Khan had come to Karachi, Ghulam Hyder and Rahim Gul had quarrelled over the filling of water and Ghulam Hyder had uttered threats. Aurangzeb was thus murdered pursuant to the threats given on the previous day.
4. After receiving the report, Shamshad Ahmed, S. H. O. repaired to the place of incident which was in a lane near the house of Abdul Shakoor and from there secured the blood stained earth. He sent the dead body for post-mortem examina tion to the Civil Hospital, Hyderabad and thereafter examined Pervez and Akbar. He arrested Rahim Gul and Ghulam Hyder from their houses which was close-by. On 16th July 1969 he examined Ghulam Hussain, Muhammad Hussain, Abdul Shakoor Shahqur Rebman and Boote Shah, and Khadim Hussain on 17th July 1969 and Abdul Majid on 18th July 1969. The appellant was not arrested but he surrendered himself before the Inquiry Magistrate on 30th July 1969. No incriminating article was recovered at the instance of the appellant or the other acquitted accused.
5. The autopsy on the dead body of the deceased was performed by Dr. Rana Muhammad Razaur Rehman Khan who noticed the following injuries "(1) A vertical incised wound rx2" cutting the underline bone through and through and communicating with the chest cavity on the left second costo-sternal joint, and left part of manubrium steruni.
(2) An abrasion 3'x 2* just below the subcostal margin on abdomen on the left mid-clavicular line.
(3) A transverse incised wound i' x 4" one inch below the subcostal margin on the abdomen on the left mid-axillary line directed inwards and upwards and communicating with the abdominal cavity.
(4) An oblique wound 4' x 2' muscle deep on the back of right side of abdomen 2Y to the left middle line, just below the 12th rib.
(5) The soft part of palmer aspect of the distill right of left thumb are transversely cut from below upwards throughout the length and the breadth of the digit under the mail raising a flap."
In his opinion injuries 1, 3, 4 and 5 were caused by a sharp cutting weapon, such as knife and injury No. 2 by a hard and rough substance and injury No. I was sufficient to cause death in the ordinary course of nature.
6. The appellant denied the prosecution case and also the motive alleged against him and the other two acquitted accused. He denied his abscondence and stated : "I was not at Hyderabad on the day of the incident. Two days before the day of incident I had left for Karachi. On or about 30th July 1969 I learnt that I was shown as an accused in this case, I, therefore, came down to Hyderabad and voluntarily appeared before the Court having jurisdiction". He also pleaded that there was no light in the lane where the incident had occurred. He explained his false implication in the crime by saying that "small disputes arose over water and other trivial matters" and this was why he was implicated.
7. While acquitting Rahim Gul and Ghulam Hyder, the trial Court observed in paras. 34 and 35 as under : "34. The perusal of evidence on the record left no doubt that except the oral word of complainant Juma Khan, his son Pervez and his brother Akber and persons of his bamdari Abdul Shakoor and Mohammad Hussain alias Bhaiya, there was no other evidence to connect accused Rahim Gul and Ghulam Hyder with guilt of this offence. It was an admitted position that complainant Jooma Khan was father of deceased Aurangzeb while Pervez was his brother. P. W. Akbar was his paternal uncle.
The remaining eye-witnesses Abdul Shakoor and Muhammad Hussain alias Bhaiya were persons of bamdari of complainant Juma Khan and his deceased son Aurangzeb and were also their neighbours. The houses of several other independent persons were also in the same locality and the houses of them were nearer to the scene of offence than the houses of these witnesses Muhammad Hussain, Abdul Shakoor and complainant Juma Kban. But strange enough, nobody else from independent persons was attracted to the scene of offence. It is strange that the names of persons whose houses are situated just opposite to street in front of the scene of offence were also not cited as witnesses nor they were examined. Under these circumstances, it would be highly unsafe to rely on the evidence of such eye-witnesses who were deeply interested in deceased Aurangzeb.
35. Moreover, the night of incident was dark. There was also no light in the street. Under these circumstances, it would be very difficult to identify the assailants during dark night in the street, having no light."
The trial Court also held that it was against human conduct that Rahim Gul would be a party to the killing of the deceased by his own son and that further no connection was shown between Ghulam Hyder and Rahim Gul and hence there was no reason as to why Ghulam Hyder and Rahim Gul will join hands in facilitating the killing of the deceased. It also repelled the motive alleged by the prosecution.
8. However, while assessing the ocular testimony against the appellant the trial Court believed their words and held that "they had clearly identified the assailants of deceased Aurangzeb". There is no feature in the reasoning of the trial Court which could be taken to facilitate the identification of appellant in the same circumstances and accordingly we fail to see how a distinction was made in the case of the appellant. No exception can be taken to the view of the trial Court that it was a dark night and the lane was dark, which fact was also not disputed by the prosecution. At the same time we may observe that no evidence was led by the prosecution to show that the lane was lit up either by a street light or the light of the moon or that omitted from any house. In this context, there was only the unrebutted plea of the appellant coupled with the admission recorded in the judgment to the effect that "the prosecution had also admitted that there was no light arrangement in the street. Upon the conclusion reached that it was not possible to identify the assailants, we fail to see how it could be possible to describe the manner in which the deceased was attacked and killed. This inference finds support from the fact that not only injuries with the knife were caused but also with a blunt weapon, and the ocular testimony thus stands belied.
According to the ocular testimony, the acquitted accused held the deceased by his hands while the appellant inflicted knife blows on him, yet from the medical evidence we have noticed an abrasion measuring 3'x2" located just below the sub-costal margin on the left mid-clavicular line, which was opined by the doctor to have been caused with a hard and rough substance which cannot thus be explained on the basis of the ocular testimony. We fail to see how this injury of sizeable dimension could be caused with a blunt weapon on the frontal aspect of the body if the two acquitted accused were holding the hands of the deceased and the appellant was engaged in indicting the knife blows, as such a blow was likely to fall on any one of them. In all probability the deceased was attacked with two types of weapon though only one is alleged and the one with which the abrasion was caused could be used either before the knife blows were given or when the deceased had fallen on the ground. Another feature, which has weighed in our minds, is that while the deceased was being attacked he had given out the cry asking for help but did not mention the names of his assailants. In the circumstances, it is likely to infer that he was not able to make out as to who were his assailants and this might be because he was unable to identify them as the lane was dark.
There are other features as well. Abdul Shakoor, an eye-witness, was not mentioned in the F. I. R. though the evidence is that he and Muhammad had seen the incident together, and if Bhaiya, who is also known by the name of Muhammad Hussain, was mentioned in the F. I. R. there is no reason why Abdul Shakoor should have been left out. It is thus doubt ful whether he had seen the occurrence as stated by him. Muhammad Hussain is aged 70 and is unable to see from one eye. In the circumstances, when the lane was dark it is doubt ful whether he could pick out with certainty the appellant and give a description of the manner in which the deceased was killed. Majid, who is mentioned in the F. I. R. as an eye-witness, was given up and not produced at the trial. No reason was given by the prosecution as to why he was given up and though he was made available to the defence for cross-examination, yet the defence also gave him up.
9. There now remains three other witnesses, namely, Junta, Khan, Pervez and Akber. They are all clearly related inter se and at the time of the incident all the three were taking their meals in the house of Juma Khan. We are hesitating to accept their testimony as it does not find support from the medical evidence, particularly when it has not been accepted qua the other two acquitted accused. Additionally, if the role assigned to the two acquitted accused was that they had caught the hands of the deceased, then it was likely that their clothes would be smeared with blood, particularly when blood had come out in such quantity as to make pools at three or four places. No such evidence was secured by the prosecution even though the two acquitted accused were arrested from their houses that very night, a few hours aftei the occurrence.
10. The trial Court has disbelieved motive and rightly so. We fail to see why even if the motive existed, why should the deceased be a victim of murderous assault when his father hac refused to sell the house. Equally even if the deceased was so attacked why so many serious injuries be caused to him. To us it appears to be a crime of passion, for the injuries reflect the vengeance with which they were caused. Considering all the above, we are not inclined to place reliance on the ocular 1972] testimony and we are of the view that the case of the appellant cannot be distinguished from that of the other two acquitted accused.
11. The next circumstance, on {which the trial Court relied, was the abscondence of the appellant until 30th July 1969. This circumstance cannot lead to his guilt even if we were to accept it once the ocular testimony was eliminated. Even otherwise, there is no evidence to show that any search was made for this appellant but he was not found. The trial Court has held that his explanation was plausible, yet it has taken his absence from Hyderabad as a piece of incriminating circumstance upon the premises that he resided jointly with his father in the same house and that ordinarily he should be at Hyderabad. Again, we fail to see how having held his absence from Hyderabad plausible, it can be regarded as an incriminating circumstance.. Since we have not accepted the ocular testimony, this circumstance loses its force in any case.
12. In the result, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt against the appellant. We accordingly set aside his conviction and the sentence passed on him and accept his appeal. The sentence of death is not confirmed and the reference is rejected. He is directed to be released forthwith unless required in some other case. .