AGHA ALI HYDER, J.-This appeal from the judgment of the learned Additional Sessions Judge, Karachi, convicting the appellant for an offence under section 302, P. P. C., and sentenc--ing him to transportation for life, arises in the following circum--stances:-
2. It is alleged that one Chakori had Inflamed the passions of the appellant and Karim, since deceased. The appellant was employed at the Odeon Cinema while Karim worked at the Plaza Cinema. On 28-9-1968, P. W. Ghulam en employee of the Regal Cinema carne to Karim at the Plaza Cinema acid took him away for an outing. According to the F. I. R. At about 11-30 p.m. The brace of friends came across the appellant and Siddik, since acquitted, in front of Cafe Jahan near the Odeon Cinema: and a quarrel ensued between the three of theme. P. W. Ghulam hired a rickshaw and brought P. Ws. Ghulam Nabi, Anwer and Ashraf with him from the rescue of Karim. When they reached near Cafe Jahan at about 11-45 p.m. They found the quarrel going on between Siddik and Jalal on the one side and Karim on the other. Within their sight, Siddik overpowered Karim, and Jalal whip--ping out a knife struck Karim on the chest Karim ran a short distance and collapsed on the ground. Ghulam Muhammad tried to attend to the wound of Karim and was beaten by the appellant and his companion Siddik. On the intervention of Ashraf and some other people in the vicinity, Ghulam Nabi was left alone a.m. The culprits decamped from the site. Anwer immediately took tine two injured persons to the Civil Hospital in a rickshaw where within minutes Karim breathed his last. From their Anwer went to the Preedy Police Station, and lodged the report at about 12-30 in the night.
3. Ashiq Nawaz, the S. H. O. Proceeded to the Civil Hospital where he prepared the inquest report.
From there he went to the wardat, and prepared the mashirnama after obtaining the blood- stained earth. Enquiries were then made from Afzal, Ashraf, Ghulam Nabi, and some other persons.
The appellant and Siddik were arrested a little later from the Odeon Cinema. P. W. Ghulam Muhammad was examined on 30-9-1968, and after due investigation, the case came to be challaned in the Court of a Magistrate, against the appellant and Siddik.
4. The post-mortem examination of Karim was conducted by Dr. Muhammad Umer who found the following injuries on the person of the deceased :-- "(1) Incised wound on the left sixth intercostal space 1" lateral to mid sternal line transverse in direction --" x -- x cavity deep.
(2) Abrasion on left side fore-head --" x 1/6".
(3) Abrasion on left side neck -- x 1/6".
The internal examination revealed the left sixth costral cartridge cut, and a, half inch out on the medial edge of the left lower lobe of the lung. The pericardium was cut and full of clotted and liquid blood. In the opinion of the doctor the injuries had been caused with a sharp-edged weapon, like a knife, and the injury No. 1 was sufficient, in the ordinary course of nature, to cause death due to shock and profuse bleeding.
5. Ghulam Nabi was examined by Dr. Muhammad Alimul Haq who found an abraded contusion on the back of lumber region 2" x 2" and three contusion marks on the abdomen near umbilicus each 2" x 2" According to the doctor, the injuries had been caused by a hard blunt weapon and were simple in nature.
6. The appellant in his statements at the Court of Enquiry as well as at the trial denied the various allegations made against him and stated that the witnesses were deposing against him at the instance of Ghulam Nabi and Ashraf, who were related to the deceased. He did not examine any witness in his defence.
7. The learned Additional Sessions Judge, found the appel--lant guilty of an offence under section
302. P. P. C. And exonerated him of the charge under section 323, P. P. C. Siddik was acquitted on both the counts.
8. The case against the appellant consists of oral testi--mony, and the evidence of motive. The ocular version has been furnished by three sets of witnesses. The first in the series will he P. W.
Ghulam. He was in the company of Karim, when the appellant and Siddik had met them near the Cafe Jahan. Once the exchange of abuses had started and tempers became frayed. It was he, who had left the scene and within half an hour brought Anwar, Ashraf and Ghulam Nabi from the Plaza Cinema to save Karim, The second set consists of Anwar, Ashraf and Ghulam Nabi, within whose gaze the fatal injury was inflicted on Karim. Ghulam Nabi had tried to look after the injuries of Karim and in his turn, received 1st and kick blows from Siddik. The assailants had thereafter, without any challenge or chase, walk-d away from the scene. Then there is the evidence of P. W. Muhammad Afzal, a hawker, who had been a witness of the happenings throughout, He is a totally disinterested witness, and his presence is specifically vouched by P. W. Ghulam. It will be in the fatness of things to examine his version first.
9. He has deposed that, after some exchange of abuses, it was Karim who took out a knife, and the appellant and Siddik caught hold of hire. Karim fell down on the ground. He is completely reticent as to how he got the injury. He was cross-examined by the learned Assistant Public Prosecutor and confronted with certain portions of his statement at the Court of Inquiry, wherein he had stated that Siddik had caught hold of Karim, when Jalal had given him the knife blow. He was also confronted with the portion, where he had ascribed the beating of Ghulam Muhammad to both the accused.
These passages were brought on the record, under section 288 of the Code of Criminal Procedure.
But even the earlier version, thus brought on the record, loses all significance, as he had pointed out there Siddik for Jalal and nothing was done to retrieve the situation. So, according to him, it was not the appellant who had been responsible for the only injury to Karim.
10. Then we come to P. W. Ghulam. He was a friend of the deceased and states to have casually taken him away from the venue of his work at about 9-30 p.m. They had set together for a while at the Regal Cinema and then went to regale themselves with "pan" from a cabin neat Caf-- Jahan, It was here, that the appellant and Siddik had chanced to meet them. As soon as they had met, Jalal gave a push to Karim and they started abusing each other. He and some other passersby intervened, and the matter ended there. He took away Karim to the Regal Cinema, while the appellant and Siddik walked away in the direction of the Odeon Cinema. About one hour later both the accused again appeared on the scene, and renewed abusing Karim. He and Karim protested but all in vain. It was thereafter that he proceeded on his cycle to tile Plaza Cinema, to apprise the friends of Karim of the quarrel that had started. Ghulam Nabi and Ashraf took a motor rickshaw, while Anwar sat with him on his cycle. He and Anwer went to the Regal Cinema, but the parties were not there. Then they went to the side of the Odeon Cinema and found Siddik catching hold of Karim. Within their sight, the appellant took out a knife and darted a blow there from on the chest of Karim. In the meantime Ashraf and Ghulam Nabi had also reached the place. Ghulam Nabi made a bid to have Karim and was given s few kick and fist blows by Siddik. Ghulam Nabi also lay prostrate on the ground and the culprits made good their escape. Anwer and Ghulam Nabi then took Karim in a rickshaw to the Civil Hospital and out of fright he himself went away to his house. On his own showing, he did not talk about the incident to any one till he was examined by the police on the 30th. He was a friend of the deceased, and did nothing more than bringing some friends. There is nothing to indicate, that there was any thing more than an exchange of abuses and it was not necessary to rush and having friends from some distance. It is also rather strange, that nothing more than a wordy warfare went on between the parties for as good as half an hour and the fatal injury was given to Karim, when a number of his supporters had mustered together. It is however nobody's case, that any body had helped himself with any thing to be really helpful to Karim. It is also surprising that soon after the incident, he went away to his house not even caring to enquiry about Karim's condition; not to talk of accompanying him to the hospital. There are a number of police stations in the vicinity, but he did not care even to report the matter. For two days, he kept his mouth shut, In regard to the gruesome tragedy he had witnessed. This unconcern is totally at tangent, with his professed conduct earlier. The very fact that he was examined by the police two days later is enough to look askance at his evidence. Apparently, he is not a witness of truth.
11. If his evidence is discarded, as it must be, the presence of Ashraf. Anwar and Ghulam Muhammad in the mariner deposed by them, would hardly pass muster. There are also quite some glaring contradictions in the statement of these witnesses. Admittedly, there were a number of people in the vicinity, apart from there four friends of Karim-three of whom were his subordinates- but nobody tried to raise arty cries or apprehend the culprits when they had just slung away to the Odeon Cinema. There are however some injuries on the person of Ghulam. Nabi which were contemporaneous with the injuries of Karim as disposed by the Medical Officer. It will therefore be difficult to completely rule out his presence. But even this Ghulam Nabi was declared hostile, and cross-examined by the learned Assistant Public Prosecutor as he was not prepared to implicate Siddik at the stage of trial demonstrably, he has spoken with two voices and his veracity stood doubted by the prosecution itself. Implicit reliance cannot therefore be placed on his version and it can not be said with any judicial certitude as to how the trouble had started. There were scores of people present at the time of the incident. The only independent witness examined at the trial gave a complete go-by to the prosecution case. It is also to be seen that the incident had taken place near about the Odeon Cinema where the appellant was working and it can not therefore be said, that it was the appellant who was spoiling for the fight. It has been repeatedly held that credibility cannot be treated as divisible; accepted against one and rejected against the others. To accept his version against the appellant there must necessarily be some evidence aliunde e.g. Confession, circumstantial evidence or any confirmatory circumstance, which by itself may suffice to show beyond reasonable doubt, the appellant's implication in the crime. This was the view taken in Rahmat v. The State (PLD 1959 SC (Pak.) 109),. Muhammad Afsar v. The Crown (PLD 1954 FC 170), Ahmad Khan v. The State (PLD 1962 Lah. 390) and Muhammad Fiyaz Bakhsh v. The Queen (PLD 1959 P C 24). Nothing of that sort is available on the record. Even the evidence of motive appears to be somewhat of a padding. Not only that Chakori was not examined at the trial, but even the investigation officer did not care to make any enquiry from her. P. W. Ismail has stated that both, the appellant and Siddik were on terms of illicit intimacy with Chakori, and a month before the incident, he had seen an exchange of abuses between them and Karim. Thereafter the appellant and Siddik had asked him to warn Karim, to keep away from her and the message had been duly conveyed. But that was not his version at the Court of Inquiry. P. W. Ghulam Muhammad has deposed that he was informed of the earlier clash over Chakori by Ismail, but the latter does not even faintly refer to him at ail. Even a clear cut motive is thus far from established.
12. There might be some suspicion against the appellant, but it can not be a substitute for proof. I am clearly of the opinion that the case against the appellant is not free from doubt The benefit thereof will accrue to him.
13. On the conclusion of the arguments, we had passed a brief order setting aside the conviction and allowing the appeal. The above are the main reasons, which I now give for setting aside the conviction and the sentence awarded by the trial Court to the appellant.
NOORUL ARFIN, J.-I agree.