AGHA ALI HYDER, J.--This appeal from the judgment of the learned Additional Sessions Judge, Karachi, convicting the appellants for offences under sections 302, 324 and 323 read with section 34, P. P. C. And sentencing each of them to transportation for life, R. I. For two years and one year respectively ; the sentence running concurrently, arises in the following circum--stances.
2. The appellant No. 1 is the father of the appellant No. 2. They live in Federal 'B' Area, Karachi. P. Ws.
Laiqur Rehman, Shabihur Rehman, Aqidur Rehman and Kafilur Rehman since deceased, lived in their neighbourhood. It is alleged that the appellant Yaqoob and his brother Yousuf, on the evening of 21-7-1966 had danced and sung obscene songs, in front of the residence of Laiqur Rehman and his brothers who were living together. The latter bad taken exception to this indecorous behaviour, and there was an exchange of hot words between the parties, but the situation did not deteriorate, because of the intervention of some neighbours. There was some further trouble later in the evening, but again the parties were pacified. The prosecution story is that, on 23-7-1966 the appellants along with some other persons appeared before the house of Laiqur Rehman, armed with deadly weapons and caused a number of injuries to these four brothers. The incident is alleged to have been witnessed by soma of the neighbours. Kafilur Rehman and some other injured were taken on a Van to the Hospital. The former was struggling between life and death, and breathed his last when put on the Van, if not earlier. Laiqur Rehman proceeded to the Liaquatabad Police Station, and lodged the F. I. R. At about 10-00 p.m. S. I. P. Nazar Hussain Shah, proceeded to the Civil Hospital, Karachi and prepared the Inquest Report and handed over the dead body of Kafilur Rehman for the post-mortem examination. S. H. O. Syed Siraj Hussain in the meantime had repaired to the vardat and secured the blood-stained earth and some other articles for which he prepared a Mashirnama. He then sent Laiqur Rehman to the Civil Hospital and examined Azizur Rehman, Atiqur Rehman, Abdul Munim, Aqidar Rehman and Shabihur Rehman. The appellant and Yousuf were arrested the same night. The appellant Mohammad Bhai is stated to have produced some blood-stained clothes from the bath room of his house and a blood-stained 'churi' from the kitchen. The articles were seized and duly sealed. Two sticks were also secured and the same were found to be blood-stained. As there were some injuries on the person of Mohammad Bhai, he was referred to the hospital on 24-7-1966. The case against the appellants came to be challaned on 19- 8-1966. It transpires, that Yousuf's charge-sheet was submitted separately, as he was to be proceeded against under the Bombay Children's Act.
3. The appellant Muhammad Bhai in his statement at the trial in regard to the incidents on 21- 7.1966, stated as under :- "In fact I had come out of my house at the said time and Rehman Brothers had also come out of their houses. I went to them in order to 'Samjhao' them as Laiqur Rehman and others used to play with hockeys in front of my house. On trying to 'Samjhao' them Rehman and others abused me. On this hue and cry some people collected there and nothing happened. I went back to my house and they went to their houses. I was not armed either with churi or danda. My sons were not with me."
4. As for the incident in question he had the following to say "On the alleged date and time I was sitting outside my house for fresh air. In the meantime Laiqur Rehman, Kafilur Rehman and their two brothers whose names I do not remember properly, and two or three persons attacked me. They had hockey sticks. Laiqur Rehman and Kafilur Rehman caused me injuries with their hockey sticks. I had nothing with me then. To save myself I picked up a piece of 'Lakri' which was lying on the ground and tried to save myself by obstructing them with that piece. I raised hue and cry for my safety. It was dark and I do not know who caused injuries to whom. This incident took place in front of my house. My two sons were not with me then. Both my sons are studying and at that time they had gone for tuition."
5. He maintained that after the incident he had gone to the police station for lodging the report but the police authorities refused to record the report and arrested him the nest day, from Lit house. He further stated that the injuries had been given to him by Laiqur Rehman and his brothers. The other allegations came to be denied by him. At the Court of Inquiry he had contended himself by denying the allegations and promising to make a fuller statement at the trial.
6. The appellant Yakoob both at the Court of Inquiry as well as at the trial denied his participation in the incident and pleaded his innocence.
7. As regards the death of Kafilur Rehman apart from the testimony of Laiqur Rehman, Shabihur Rebman and others, there is also the evidence of Dr. Syed Akman Faruqui, who had held the autopsy, finding the following external injuries on the person of the deceased
(1) one oblique and parallel incised wound 1" x 1/2" x 3" to the inner and above the one-fourth of the right collar bone. The margins were clean cut and the wound was eliptical with acute angle.
(2) An oblique incised wound 1" x 1 /3", muscle deep on the back and right side of the right shoulder above the crest of the right shoulder bone (scapula).
8. The internal examination revealed the cutting of the right carotid sheath, cutting the right carotid vessel and the upper lobe of the right lung at its apex and the root of the lung. The right lung had partially collapsed and the cavity was full of blood. The Medical Officer was of the opinion that the injuries were ante-mortem and were the result of stab wounds. The death occurred as a result of shock and haemorrhage due to the injuries, out of which the injury No. 1 was sufficient in the ordinary course of nature to cause death.
The injuries on the persons of Aqidur Rehman. Shabihur Rehman and Laiqur Rehman were as follows
1. Aqidur Rehman :
(1) An incised wound on the left upper arm near elbow transverse in direction 2" x 1" M. D.
(2) Incised wound right side back near the mid line, just above 1'' x 1/2" M. D.
(3) L. W. Lt. Side head 1" x 3/4' M. D.
2. Shabihur Rehman :
(1) Incised wound on the left posterior axillary wall, transverse in dimension 2' x 1" M. B. With bleeding.
(2) Left side back 4" x 1/2".
(3) Back right side 2" x 1".
(4) Left shoulder top part.
(5) Contusion on the right side chest 2"x 12-- " with difficulty breathing, fractured ribs.
3. Laiqur Rehman :
(1) Left fore-arm 2" x 1" with swelling and clinical fracture of the under bone.
(2) Contusion left buttock, three in number each 3" x 1".
(3) L. W. Left side head --" x --" M. D.
10. The details of the incident in question, have been furnished by the three brothers namely Aqidur Rehman, Laiqur Rehman and Shabihur Rehman. They have also described the earlier incidents of 21-7-1966 and their protests to the appellants about the indecorous behaviour on their part. Then there is the evidence of some neighbours who had collected on the hue and cry. Zulfiqar Akbar states to have passed by the house of the complainant and found the parties exchanging hot words. He had heard Laiqur Rehman saying that they had got fed up with the appellants and were left with no option but to take legal action against them. Then he had seen the appellant Yacoob going into his house along with his brother Yousuf and they had come out with sticks in their hands.
Apprehending danger and being a patient of blood pressure, he hid walked away and was examined by the police the next morning.
11. Azizur Rehman is another neighbour and deposes to have gone to the house of Aqidur Rehman to take him to the mosque for Isha prayers. While he was still there, he had seen the appellants turning up at the house of Aqidur Rehman and asking him in a harsh tone, if he wanted to live in the Mohalla. He had inquired from Laiqur Rehman as to what it was all about and the latter had told him that he would seek his remedy from a Court of Law. Yakoob had then attacked Aqidur Rehman at the instigation of Mohammad Bhai. Immediately thereafter, Yousuf a son of the appellant Muhammad Bhai and two or three other persons armed with sticks had appeared on the scene. He had seen Aqidur Rehman bleeding after the attack. Kafilur Rehman had also reached there and was felled on the ground. There was blood on his clothes. The incident had taken place at a distance of about 5/6 feet from the house of Aqidur Rehman. He could not say for certain as to who had injured whom, or tell the weapons that had been used, as he had an impaired vision, but could see that Laiqur Rehman had been hit by the stick on his head, and Kafilur Rehman had become unconscious. He had then gone to Abdul Jabar in order to remove the injured persons to the hospital. The latter had brought his van and removed the injured to hospital, where Kafilur Rehman was declared to be dead. According to him the incident had lasted for 2 or 3 minutes.
12. Abbas Ali states to have seen a dagger in the hands of the appellant Muhammad Bhai. There were 3-4 other persons along with Muhammad Bhai but he could not identify them, as he was at some distance, and had gone back to his house, seeing that an ugly situation was developing.
However, he had seen Muhammad Bhai pulling Kafilur Rehman by his shirt collar. He lives about 100 yards away from the house of Rehman brothers and knew Yakoob for the last six years. In cross--- examination he made out that he had seen Muhammad Bhai catching Kafilur Rehman by his neck, just outside the latter's house. At that time some people were inside the hedge and some outside.
P. W. Abdul Hamid stopped short by saying that on the commotion, he had gone to the vardat from the mosque, where he was offering prayers, and seen the appellant running away to their house with sticks in their hands. Kafilur Rehman was unconscious and was shifted to the hospital on the van of Abdul Jabbar. He very candidly admitted that he was on visiting terms with Aqidur Rehman and Kafilur Rehman who were his neighbours. The version of Abdul Munim is almost identical. He had not seen the actual attack but the appellants returning to their house with the knife and churi in their hands. The version of Masood Jaferi is only derivative. He also states to have seen the incident of 21-7-1966. The only other evidence in the case is against Muhammad Bhai. He is alleged to have produced a knife and some clothes, which have been found to be blood-stained by the Chemical Examiner. This piece of evidence has however been rejected by the trial Court.
13. Mr. Abdul Karim Siddiqui, learned counsel for the appellants did not challenge the presence of Aqidur Rehman, Laiqur Rehman and Shabihur Rehman, during the incident. He however, maintained that the incident had taken place in the night and it could not be said for certain that the assailants had been properly identified. We are afraid, there is no substance in the contention.
It is clearly brought on the record that there was light in the gallery of the house of Rehman brothers and there were other lights in the vicinity. He further contended that the other witnesses were from the neighbourhood and also interested, and their testimony could not be used for corrobora--tion. In support of his argument, he cited Wasiullah v. Mirza Ali and others (PLD 1963 SC 25) and Faqira and others v. The State (PLD 1965 Lah.715). In the Supreme Court case which was an appeal against acquittal, their Lordships while granting special leave to appeal observed that- "the major question which arises is whether having regard to all the circumstances of the case, the ocular evidence at all required the kind of corroboration which the learned Judges in the High Court felt it their duty to seek . . . . . :'
The other considerations were :
(a) that the eye-witnesses were all natural witnesses,
(b) that the results produced were commensurate with the number of persons charged, viz., six,
(c) that there was visibility and the trial Court had believed a number of witnesses after seeing and hearing them, and
(d) that the feud had been dormant for 20 years.
The question therefore asked was whether in view of these factors corroboration was at all necessary? On the examination of the evidence their Lordships, found that the case was not free from doubt, inasmuch as one of the accused persons involved therein was falsely implicated, and his name had been excluded later on. Some other solecisms also were found. It was in that context that their Lordships observed that- "When such be the case, and the main direct, evidence be also that of interested persons, i.e., enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt."
14. In the latter case it was observed that the testimony of the two brothers of the deceased could not be the sole basis of conviction, unless it was corroborated by independent evidence.
15. We are afraid the authorities do not advance the case of the appellants. In the instant case, apart from the testimony of the three injured brothers, there is the evidence of Azizur Rehman, who was present all along and has categorically stated that the appellants had attacked Rehman brothers and that the latter were totally unarmed. Zulfiquar Akbar has described the earlier part of the incident. Their names were mentioned in the F. I. R., which was lodged promptly. They are neighbours of the complainant, but they are equally neighbours of the appellant. There is nothing to show, that they had any enmity with the appellants. They appear to be witnesses of truth and have been believed by the learned Additional Sessions Judge, who had the advantage of seeing them and marking their demeanour. Then there is the testimony of Abbas Ali, Abdul Hamid and Abdul Munim, which gives support to some aspects of the incident, as described by the main witnesses. The names of these persons are not to be found in the F. I. R., but even the appellant Muhammad Bhai admitted that a number of persons had turned up after the incident. There is no indication that any of these witnesses had any motive for the false implication of the appellants.
Even the earlier incident has not been challenged and Muhammad Bhai in his statement and the trial admitted the same though according to him only Rehman brothers were to be blamed. He has also admitted that the dispute was resolved on the inter--vention of some people who have gathered round, during the altercation. It is also to be noticed that a number of injuries were sustained by all the four brothers out of whom Kafilur Rehman died within moments. As against this the injuries on the person of Muhammad Bhai appellant, are an abrasion on the left fore-arm 1" x -- , a contusion on the right side of the neck 1' x 1/6" and a contusion on the right side of the back 2" x 2--". The same could be received in the struggle. This will clearly go to establish the prosecution version that Rehman brothers were totally unarmed and that the attack had been let loose on them by the appellant's party. The injuries on the four brothers could not be inflicted only by one man. The number of the assailants therefore cannot be said to be exaggerated. If the attack, with deadly weapons was pre--planned and deliberate, as it must be found, it would be immaterial as to who caused the fatal injury. The doer of the partial act will be considered to be the doer of the entire act. As held in Bashir v. Crown (AIR 1953 All. 668): "The law considers them as one unit and the criminal act, as done by that one unit and makes the unit punishable, regardless of the question, which member of it did which act. Just as when a man assaults, his guilt does not depend upon whether he assaults him with the right hand, or the left hand, so also when a unit consisting of a number of persons A B etc., commits an offence, in furtherance of its intention, it does not matter, whether A commits the offence, or B commits it and the unit, that is, all the persons are held guilty of it. It may be said, that section 34, P. P. C, dispenses with the necessity of ascertaining what are the respective acts done by the various conspirators."
16. Both the appellants will thus be answerable for the injuries inflicted on the victims during the attack. We are therefore of the opinion that the case against the appellants has been established beyond all reasonable doubt. We will therefore affirm the conviction and sentence and dismiss the appeal.
K. B. A.