' The appellant Muhammad Sharif has been convicted under section 307, P.P.C. By VIlth Additional Sessions Judge, Karachi by judgment, dated 27-5-1980 and has been sentenced to undergo R.I. For 5 years and a fine of Rs,5,000 or in default to undergo R.I. For 6 months more. It has further been ordered that if fine is realized, a sum of Rs,2,500 be paid to the injured Muhammad Khalid as compensation under section 544-A, Cr.P.C.
2. Being aggrieved with the conviction, the appellant has filed this appeal under section 410, Cr.P.C.
3. Brief facts of the prosecution case, as narrated in the F.I.R.Are that complainant Mst. Tahira Begum is sister of the appellant and was married to injured Muhammad Khalid 5 years before the incident. It is stated that Mst. Sabri Begum, the mother of Tahira Begum detained the articles of Jahez ornaments and all other articles which were given to Tahira Begum by her husband. On this matter there were disputes between them.
4. On 27-4-1976 at 9-30 p.m. Appellant entered into the house of Mst.Tahira Begum having a knife in his hand. On seeing this Mst.Tahira Begum raised cries on which her husband Muhammad Khalid, who was sleeping in the courtyard got up. The appellant told him that he will teach him a lesson because they were demanding Jahez and he gave knife blow to Khalid on the left side of stomach, as a result of which he fell down.According to the F.I.R. This incident was witnessed by Mst.Noor Jehan, All Hussain, Muhammad Saleem, Muhammad Azeem, Sultan Jehan and Mumtaz Jehan, who were present in the house. Appellant ran away, thereafter father-in-law of Mst.Tahira Begum took his son Khalid to Jinnah Hospital. Mst. Tahira Begum went and lodged report on the same night i.e, 27-4-1976 at 10-10 p.m. At Police Station Malir, Karachi.
5. Muhammad Wan, A.S.I.P.Took up the investigation and proceeded to the place of Wardat and prepared Mashirnama which is at Exh.9. He then went to hospital for recording the statement of injured Muhammad Khalid. The injured was not able to make a statement. He examined prosecution witnesses, Mst.Noor Jehan, Farooque, Asghar, Muhammad Aslam, Muhammad Azeem, Mst.Mumtaz, Mst.Sultana. The injured Muhammad Khalid was examined on 3-5-1976. The appellant was arrested on 28-4-1976. No incriminating article like crime weapon was recovered from the appellant.
6. At the trial prosecution in support of its case, examined P.W. Mst.Tahira Begum (complainant), P.W.2 Muhammad Khalid (injured) and P.W.Noor Jehan, who furnished ocular testimony. P.W.4 Muhammad Farooq is a Mashir of Wardat, P.W.5 Dr. Abdul Hadi has produced the certificate of injury issued by Dr. Abdul Mateen, and P.W.6 Muhammad Irfan, Assistant Sub-Inspector, Police, recorded the First Information Report and investigated the case.
7. Appellant Muhammad Sharif, in his statement recorded under section 342, Cr.P.C. Has denied the allegations of the prosecution and stated that he has been falsely involved in this case due to enmity. He has taken the plea that at the time of the incident he was on duty. He examined two defence witnesses namely Muhammad Ilyas and Asghar Hussain.
8. Mst. Tahira Begum Exh.3, in her statement has stated that her marriage with Muhammad Khalid took place about 9 years ago. She has stated that her mother Mst.Sabri Begum and appellant withheld her Jahez articles and ornaments which were given to her by her hushand, Muhammad Khalid. She demanded the articles from her mother but she gave beating and on this account her mother had enmity with her husband and that two days prior to the incident her mother had issued threats that she would throw acid on her husband Khalid. She has stated that on the night of the incident, she alongwith her husband and other inmates of the house were present when appellant Sharif came having a knife in his hand. She enquired from the appellant as to why he has come in the house on which her husband Khalid came near but appellant gave him knife blow on the left side of chest, and then he ran away. On cries her mother-in-law Mst. Noor Jehan Begum and two sisters of her husband Mst. Sultana Jehan and Mst. Mumtaz Jehan also reached there. She carried her husband Khalid in a taxi to Jinnah Hospital, Karachi, thereafter, went and lodged report at Police Station Malir. Mst. Tahira Begum in her cross-examination has stated that she lodged report at 3-00 a.m. After returning from the hospital. She has categorically stated that her father- in-law, Ali Hussain, had gone to the house of his "Hum Zulf" whereas Muhammad Saleem and Muhammad Azeem were also not present in the house but she admits the presence of Mst. Sultana Jehan and Mumtaz Jehan and stated that they were offering Isha prayer at the time of incident.
She has deposed that light of the room was on when accused came in her house but there was no light in the courtyard.
9. Muhammad Khalid, injured Exh.5, has supported the contention of his wife about the dispute of dowry articles and stated that he had given 7 tolas to his wife and these articles were not being returned by his mother-in-law, therefore, their relations became strained. He has stated that on the night of the incident at about 9-00 p.m. He was sleeping in the courtyard and he heard a loud voice of appellant and his wife. He woke up and saw that appellant was reprimanding his wife. He went near them and enquired from his wife but in the meantime appellant Sharif gave him blow with knife on the left side of his chest. He became unconscious and regained senses in the hospital after third day of the incident. He remained in the hospital as indoor patient for about 11 days. He has stated that he was not examined by the police. He has stated in his cross-examination that his wife was given one quarter (House) in the Nikahnama. The possession of the quarter was not given by her brother. He has admitted that appellant is employed at Omni Bus. He has stated that dowery articles and golden ornaments were snatched by his mother-in-law after 7 days of the incident. He has also stated that he received injury when he was standing at the door and accused Sharif was outside the door.
10. Mst. Noor Jehan Exh.7, has stated that she had given 8 Tolas gold at the time of marriage of, his son in "Bari" but ornaments were retained by Mst. Sabri Begum (Police Lady Searcher) the mother of Mst. Tahira, therefore, there used to be quarrel between Mst.Tahira and appellant who is her real brother. She has stated that on the night of incident it was Isha prayer time. She saw appellant entering the house and started talking loudly with his sister Mst.Tahira Begum. She started prayer, in the meantime she heard cries of Mst.Tahira Begum who was shouting that Sharif has stabbed Khalid. She after completing the "Rikat" came and found that Tahira was weeping and her son Khalid was lying injured on the ground. She also became unconscious due to bleeding of her son.
Mst. Noor Jehan in her cross-examination stated that her husband was not in the house at that time. She has stated that one "Neem tree" is outside of the courtyard and that tree was sufficiently grown and was giving shade in the courtyard. She has stated that marriage between Mst. Tahira and Khalid was solemnised in the year 1971. She has stated that she can see during night but her eyesight is weak.
11. P.W.4 Muhammad Farooq Exh.8, has stated that on 28-4-1976, in the morning he was called by Police and in his presence scene of offence was inspected and Police prepared the Mashirnama which he produced as Exh.9. According to the Mashirnama Exh.9 a cot was lying in the courtyard at the distance of 3 paces from the outer door. The blood was not found at the Wardat although the floor of the scene of offence was very clean and "Pucca" (Cemented).
12. Dr. Abdul Hadi Khan Exh.11, has been examined. He has produced certificate issued by Dr. Abdul Mateen and also a supplementary report regarding injury on the person of injured Khalid. These certificates are as Exhs.12 and 12/A respectively. The following injury was found on the person of injured Khalid:- "Incised wound on the left side of lower side of chest at the level of coastal margin 11" x 1"."
' The injury was declared to be grievous caused by sharp-edged weapon. The whereabouts of Dr. Abdul Mateen, who examined injured, were not known as he has resigned from Government Service therefore, Dr. Abdul Hadi has been examined and he produced certificates. Doctor has stated that appellant was admitted on 27-4-1976, and discharged on 6-5-1984.
13. P.W.6 Muhammad Irfan has registered the case, then prepared the Mashirnama of Wardat and recorded the statements of the prosecution witnesses as stated above. He in his cross- examination admits that there was light in the courtyard of the complainant but he did not mention this fact in the Mashirnama. He has admitted that he has recorded the statement of the appellant who had taken plea of alibi that he was on duty, but appellant did not state that he was on duty at the time of incident, therefore, he had not recorded the statement of his co-employees.
14. I have heard Mr. Ghulam Mustafa Memon, Advocate for the appellant and Mr. Abdul Waheed Siddiqui for the State.
' Admittedly there is only ocular testimony against the appellant and no weapon of offence or blood-stained clothes have been recovered from him. Mst. Tahira Begum in her first information report has mentioned that this incident was witnessed by her father-in-law Ali Hussain brother-in- laws Muhammad Saleem, Muhammad Azeem and sister-in-law Sultana Jehan and Mumtaz Jehan who were present at the time of the incident. But she, before the Court has deposed on oath that her mother-in-law Mst.Noor Jehan and Mst.Mumtaz Jehan and Mst.Sultana Jehan were present whereas Ali Hussain was not in the house at the time of the incident. She has stated that she took her husband in a taxi to Jinnah Hospital whereas in her first information report, she has stated that her father-in-law had taken injured Khalid to Jinnah Hospital. The injured Khalid has stated that he received knife injury when he was standing at the door while appellant was outside the door. He has nowhere stated that any one else including his father, mother Mst.Noor Jehan or others were present in the house at the time of the incident. Mst.Noor Jehan the mother of injured has also not stated in her statement about the presence of other members of the family in the house at the time of incident. On the contrary she has stated that her husband was not in the house at the time of the incident. She had also not seen the injury being caused to her son Khalid. Furthermore as many as five eye-witnesses who according to the F.1.R. Were present in the house and saw the incident have not been examined in the Court by the prosecution although their statements have been recorded by the Police. This case entirely hinges on the ocular testimony. As already discussed in the above paras of this judgment it is clear that there are material contradictions in the evidence of Mst. Tahira Begum, the injured Khalid and Mst. Noor Jehan. Even the complainant has changed from her initial case set up in the F.I.R. Where she had shown the presence of the other witnesses in the house but denied in the Court. All circumstances and non-examination of the eye-witnesses clearly create doubt in my mind. It is also admitted fact that there is a big Neem tree in the courtyard of the house of the complainant and Mashirnama about electric pole or light is silent, therefore, the possibility of darkness at the place of incident cannot be overruled. The enmity is admitted and there is no corroboration of ocular testimony. For the reasons stated above I am of the view that prosecution has failed to prove the case against appellant beyond reasonable doubt.
15. There are other aspects of the case that appellant at the time of the incident was a boy of under 16 years of age and on is ground he was admitted to bail. The learned trial Judge in his judgment has also given a reference about this point and wrongly came to the conclusion that duplicate copy of the school certificate could not be relied upon in the circumstances when appellant was granted bail on the ground of age on the basis of certificate. Appellant could have been tried under the Sind Children Act, 1955. Since I have come to the conclusion that case has not been proved against the appellant I would not like 10 go into the details and defence plea of the appellant. 1 accept the appeal and acquit the appellant by giving him benefit of doubt. He is on bail. His bail bonds stand cancelled.