1. ' JAVID IQBAL, J.--This appeal is against the acquittal of six respondents who were initially tried by the Additional Sessions Judge, Karachi under section 302/148/149/201, P.P.C. But were acquitted.
2. Thereafter, the State appeal against the acquittal of these respondents was dismissed by the High Court of Sind, Karachi. Out of the six respondents Mustafa Abbas and Fazal Ali were stated to be armed with knives whereas lqtidar Hussain, Muhammad Abbas and Mazhar All were empty handed and had been ascribed the part of causing fist blows to and holding the deceased. So far as Ali Shamshad respondent is concerned he was not mentioned as accused in the FIR but was subsequently implicated and charged under section 201, P.P. C. For the destruction of evidence of murder by washing the blood-stained earth. Leave to appeal was granted in this case to consider whether in the circumstances of the case the acquittal of the respondents was in the interest of justice.
3. 'The occurrence took place at 6-30 a.m. On 8-September, 1975 near Mumtaz Provision Store, KDA Road, Drigh Colony, Karachi. FIR was prepared at 7-50 a.m. On the same day at Drigh Colony Police Station on, the statement of- Habibur Rahman PW (Mamoonzad and Behnoi of Muzaffaruddin alias Irshad deceased) recorded in the hospital. According to the statement of Habibur Rahman PW the, deceased who, was residing- with him left in connection with his service from the house and a few minutes thereafter Habibur Rahman PW heard hue and cry outside on the road. He went out and saw that near Mumtaz Provision Store the respondents except Ali Shamshad had caught hold of the deceased. They were beating him and blood was coming out from his abdomen. Respondents Mustafa Abbas and Fazal Ali had knives in their hands. Before he came out Waqar Ahmad, Shabbir Hussain, Muhammad Hanif Siddiqui and Shamsuddin PWs had already reached there and witnessed the occurrence. On seeing him the aforesaid respondents ran away leaving the deceased in an injured condition. Thereafter, Habibur Rahman PW asked Waqar Ahmad PW to arrange for a vehicle so that the victim could be taken to the hospital. He also inquired from the victim as to who had caused injuries to him and he told him that respondents Fazal Ali and Mustafa Abbas caused injuries to him with knives and the other three respondents namely Iqtidar Hussain, Muhammad Abbas and Mazhar All had beaten him with fist blows after catching hold of him. This statement of the deceased while he was still alive was also supported by the other eye-witnesses who were present on the spot. Eventually a Suzuki was brought and the deceased in an injured condition was taken to Jinnah Hospital but on the way the deceased expired as a result of his injuries and his dead body was brought to the hospital. The motive for the occurrence according to Habibur Rahman PW was that earlier on the same morning the deceased and another boy named Ghandi PW had exchanged hot words at the mosque because Ghandi PW could not repair the loudspeaker of the mosque which had failed to work. Soon after respondents Mustafa Abbas and Iqtidar Hussain reached there and tried to interfere. The deceased told them to go away as it was a matter between Ghandi PW and him but Mustafa Abbas respondent refused to go away and started quarreling with him. Thereupon, the deceased is stated to have slapped him upon which both these respondents left with a threat that revenge will be taken from him. The deceased after offering the morning prayers returned to the house and then at about 6-15 a.m. Was on his way to his duty when he was attacked by the accused party.
4. ' About the motive version Ghandi PW was produced who in his statement under section 161, Cr.P.C.
5. Had supported the same. However, his statement was recorded by the trial Court after many years and he in his examination-in-chief had first stated that it was Mustafa Abbas respondent who had slappped the deceased but then stated that it was the deceased who had slapped Mustafa Abbas respondent. However in the cross-examination he clarified this confusion and categorically stated that it was the deceased who had slapped Mustafa Abbas respondent. Anyway both the trial Court and the Sind High Court did not rely upon him for the reason that not only his statement was contradictory on the point and did not mention the part that while leaving the two respondents had held out a threat that they would take revenge, but also that his statement was not supported or corroborated by any witness. The Courts, were therefore of the view that the prosecution had failed to establish the motive. But while hearing the arguments of learned Assistant Advocate- General Sind and counsel for the respondents on this point we note that both the Courts had failed to consider that the statement of Ghandi PW was supported by Habibur Rahman PW who had heard this from the deceased as well as by Mustafa Abbas respondent himself who in his statement before the trial Court had stated that he and Muhammad Abbas respondent were coming back from the mosque after offering prayers and that they saw Ghandi PW and the deceased fighting with each other. He further stated that they got them separated and went away.
6. Thus, it is evident that Mustafa Abbas respondent did not deny his presence so far as the earlier incident was concerned, If Ghandi PW made contradictory statements as to who had slapped whom it was only because his statement before the trial Court had been recorded after a number of years. In any case he had clarified the confusion in the cross-examination. In that view of the matter there was no justification in arriving at the conclusion that the prosecution had failed to establish the motive. In our opinion the prosecution has succeeded in establishing the motive in the light of what we have discussed above.
7. ' So far as the medical evidence is concerned Dr. Abdul Hadi PW had conducted the post-mortem examination on the dead body of the deceaed and found on his person three incised wounds on the lower part front of chest, right side front of abdomen and left themar eminence, and four contusions on the left hand, deft side of chest outer part, bridge of nose and left side of nose. The incised injuries had been caused by sharp-edged weapon such as a knife whereas the other injuries were caused by blunt weapon. The incised injuries were sufficient to cause death individually and collectively in the ordinary course of nature. The death had resulted due to shock and haemorrhage and damage to the internal parts of the body.
8. ' Mukhtar Ahmad S.H.O. P.W. Who had arrested Mustafa Abbas and Muhammad Abbas respondents had stated that they both had injuries on their person and he had got their blood-stained clothes removed and taken them into possession. But it is strange that if this was so then why they had not been medically examined, and there is nothing on the record to indicate that they were in fact injured or that they had received these injuries in the course of the occurrence. The medical evidence respecting the deceased thus indicates that incised injuries had been caused to him by sharp-edged weapon Like a knife and the four contusions on his person could have been caused with blunt weapon such as fist blows.
9. ' The recoveries in this case are human blood-stained clothes of the aforesaid two respondents and two knives recovered at the instance of Fazal Ali respondent only, apart from blood-stained earth mixed with water picked up from the spot. Although the trial Court did not discuss the recovery evidence, the High Court had discussed it but did not consider it as it had no corroborative value. The human blood-stained clothes of the two respondents Mustafa Abbas and Muhammad Abbas were not taken into consideration for the reason that according to the Investigating. Officer who arrested Mustafa Abbas and Muhammad Abbas respondents had found injuries on their person and the blood on their clothes would presumably be the blood of themselves as the chemical examiner had not mentioned anything about the group of the blood.
10. The evidence respecting the recovery of two knives was rejected because the Investigating Officer had not stated in the memorandum that any of these knives'was stained with blood. However, these knives were sent for chemical analysis after one year of the occurrence and the report of the chemical examiner was received after another one year. Consequently if they were found to be stained with human lilood it was not possible to detect human blood on them after such a long lapse of time. Besides that if the said two knives were recovered at the pointation of only one respondent namely Fazal Ali, how could Mustafa Abbas respondent be saddled with the liability of carrying the other knife when it was not recovered at his instance.
11. ' It was for these reasons that the recovery evidence was not taken into consideration as a corroborative piece of evidence. We agree with the learned Judges of the High Court that the recovery evidence in this case was not of any corroborative value but in our considered opinion the nature of the ocular testimony supported by the motive version and medical evidence was such that no corroboration was required of recovery evidence.
12. ' All the respondents in this case denied having participated in the occurrence and stated that they had been falsely implicated. Two of them namely Fazal Ali and Mazhar Ali respondents produced defence witnesses in order to establish their alibi. Their case was that they were not present on the spot at the time of the commission of the crime. The others also advanced in defence pleas the effect that Habibur Rahman P.W. Complainant was inimical to their fathers or that they had been implicated because they were Shias whereas the complainant side was Sunni. Be that as it may the trial Court relied on the alibi evidence of Fazal Ali and Mazhar Ali respondents and the High Court did not hesitate to disagree with it, although in our view their alibi evidence in the light of the ocular testimony could have not been considered as reliable. So far as the ocular testimony in this case is concerned the eye-witnesses cited in the F.I.R. Besides Habibur Rahman P. W. Complainant were Shabbir Hussain, Waqar Ahmad, Mirtammad Hanif Siddiqui and Shamsuddin P.Ws. Out of them Waqar Ahmad, Muhammad Ha Siddiqui and Shamsuddin P.Ws. Turned hostile by stating before the trial Court that they had either not seen the occurrence or did not see respondents Mustafa Abbas and Fazal Ali holding knives. Yet they admitted in their testimony that the respondents were present on the spot at the time of the occurrence. It may be noted that their statements were recorded by the trial Court after a lapse of seven years and it was argued by the learned Assistant Advocate-General before the High Court that this was long time enough during which they could have been won over. Anyway since they had resiled from their earlier statements and had turned hostile we may not attach any importance to their testimony. So far as Jamil Khan P.W. Is concerned he is only witness of the offence under section 201, P.P.C. Of which Ali Shamshad respondent was charged. He claimed that he saw Ali Shamshad respondent trying to wash the blood-stained earth from the spot after the occurrence. Thus, Jamil Khan P.W. Is not eye-witness of the actual occurrence, and his testimony respecting the implication of Ali Shamshad respondent is not being supported by another witness. Therefore, in our view his testimony was rightly discarded.
13. Besides that the name of Ali Shamshad respondent did not occur in the F.I.R. As an accused person.
14. Therefore, his acquittal was quite proper and is accordingly maintained, and so far as he is concerned the appeal against his acquittal is dismissed.
15. ' But so far as the other five respondents are concerned and whose names were mentioned in the F.I.R. As well as specific parts had been attributed to them, their case is distinguishable in the light of the testimony of Habibur Rahman and Shabbir Hussain P.Ws. Further supported by such facts as the occurrence having taken place at a public place during day time, the prompt lodging of the FIR, the statement made by the deceased while he was in an injured condition to Habibur Rahman P.W., the motive version and the medical evidence. The trial Court proceeded to reject the ocular testimony of Habibur Rahman and Shabbir Hussain P.Ws. Mainly for the reason that Habibur Rahman P.W. Was Mamoonzad and Behnoi of the deceased whereas Shabbir Hussairr P.W. Was his brother-in--law, they were therefore, both considered as . Interested witnesses. Furthermore, some inconsistencies were noted in their statements as well as discrepancies which had been adjudged as material although these were merely trivial and should have not been considered as material particularly when their statements were recorded in the trial Court after seven years of the occurrence. The High Court simply followed the reasoning and adopted the conclusion arrived at by the trial Court without examining the important aspect of the case as to whether these two witnesses although related to the deceased had any motive to falsely implicate the respondents.
16. There is no background of enmity existing between them. Complainant and the accused sides. The motive which led to the occurrence as advanced by Habibur Rahman P.W. Has been supported by Ghandi P.W. And even Mustafa Abbas respondent did not deny that he was present at the time of the earlier incident. Since there was no other background of enmity between the parties except that the earlier incident took place perhaps G one hour or so before the main occurrence, it cannot be said that Habibur Rahman and Shabbir Hussain P.Ws had any motive to falsely implicate the respondents. They may be related to the deceased but their mere relationship in the circumstances would not make them interested witnesses when they had no motive to falsely implicate the respondents. Habibur Rahman P.W. Is a natural witness because the deceased was residing with him and the occurrence took place not far from the house where both of them were residing. He was attracted -to the scene of the crime because of the alarm raised by the deceased. His version is quite natural that when he rushed out he saw the respondents had surrounded the deceased and they were beating him. Blood was coming out from the abdomen of the deceased and Mustafa Abbas and Fazal Ali respondents were holding knives in their hands.
17. Thus, the occurrence in substance has been seen by Habibur Rahman and Shabbir Hussain P.Ws.
18. Thereafter, when Habibur Rahman P.W. Went close to him and asked him as to what had happened, the deceased in an injured condition told him that knife injuries were caused to him by Fazal All and Mustafa Abbas respondents whereas the other three respondents had given him fist blows after catching hold of him. The parties lived in the same locality and there was no occasion for mistaken identity. That is the reason that the names of the respondents were mentioned in the F.I.R. Which was lodged promptly. Again it was the deceased while he was alive who had told Habibur Rahman P.W. About the motive which led to the occurrence. In our view the prosecution was successful in establishing the motive in this case in the light of what we have discussed above.
19. But respecting the testimony of these two eye-witnesses the High Court simply proceeded' on the reasoning of the trial Court without applying well-established principles for the appreciation of evidence in safe administration of criminal justice. After going through the statements of Habibur Rahman and Shabbir Hussain P.Ws. Who should have not been considered as interested witnesses as they had no motive to H falsely implicate the respondents, we are convinced in our minds that their testimony should have not been discarded particularly when it was being supported by the motive version as well as the medical evidence in' this case.
20. ' In that view of the matter the judgments of the trial Court as well as the High Court are hereby set aside and this appeal against the acquittal of the respondents namely Mustafa Abbas, Fazal Ali, Iqtidar Hussain, Muhammad Abbas and Mazhar Ali is accepted. Since in the light of the record Mustafa Abbas and Fazal Ali respondents had caused incised injuries which led to the death of the deceased, each of them is convicted under section 302/34, P.P.C. And sentenced to imprisonment for life plus to pay compensation in the sum of Rs,10,000 each to the heirs of the deceased, or in default to undergo six months' further R.I. The benefit of section 382-B, Cr.P.C. Is extended in the matter of computation of their sentence. Respondents Iqtidar Hussain, Muhammad Abbas and Mazhar Ali are stated to have caused simple injuries by fist blows to the deceased and, therefore, each of them is convicted under section 323/34, P.P.C. And sentenced to one year's R.I. However, Iqtidar Hussain respondent had been behind the bars for 41/2 years, and Muhammad Abbas and hlazhar All respondents had also been behind the bars for 31 years each during the course of the trial, therefore, their sentence be considered as already undergone under the aforesaid section by extending them the benefit under section 382-B, Cr.P.C. The bail bonds of these three respondents are hereby discharged and they are set at liberty. As already held above the appeal against Ali Shamshad respondent has been dismissed. Hence his bail bonds shall also stand discharged. But Mustafa Abbas and Fazal All respondents should surrender themselves before the police to undergo the sentence awarded to them.