1. GHULAM RASOOL K. SHAIKH, J.--This is an appeal against the judgment of the. Learned Additional Sessions Judge, Hyderabad, convicting appellant Siraj for an offence under section 302, P. P. C. And sentencing him to death and further convicting the remaining appellants for an offence under sections 326/147 and 149, P. P. C. And sentencing them to undergo R. I. For 7 years and pay a fine of Rs. 200 or in default to undergo R. I. For 2 months. These appellants were also convicted for an offence under section 148, P. P. C. And sentenced to undergo R. I. For 6 months. The sentences were ordered to run concurrently. On account of the death sentence passed against Siraj appellant his case was also referred to this Court under section 374, Cr. P. C.
2. The incident took place on 6-11-69 at about 10-15 p. m. Near the shop of Qamardin at Prince Ali Khan Road, outside brothel at Hyderabad, and the first report was lodged by Waryam at 10-30 p. m.
3. At Market Police Station situated at a distance of one furlong and it was recorded by Mr. Abdul Majid, A. S, I. P In this incident 5 persons, namely, Mir Khan, Mashooq Ali, Aiman Ali, Aligohar and Mst.
4. Salamti were injured and out of them Mir Khan had died.
5. The parties are closely related to each other and lived in the brother at Hyderabad, as they were carrying on the profession of prostitution. Mir Khan, Ali Gohar and Aiman Ali are sons of Mst. Salamti who is Waryam's sister's daughter. Mashooq Ali is son of Waryam while Mohamed Rashid is cousin of Mir Khan. Mst. Shame and Mst. Parveen are daughters of Waryam while Mst. Gulzari and Mst.
6. Sarwar are daughters of Mst. Salamti Appellant Siraj, Achi, Yacoob and Mubarak are brothers filter se while Mst. Khurahid is their sister.
7. Appellant Siraj used to harass the daughters of Waryam and Mst. Salarntl in order to outrage their modesty. He was repri--manded by Waryam but he paid no heed. On that account there was a quarrel between the parties on 6-11-69 at about 3-30 p. m. The complainant party went to the Market Police Station and lodged the report. The police summoned the appellants but they not appear.
8. On the same day at about 10-15 p. m. Waryam, Mashooq Ali, Ali Gohar, Aiman Ali, Mir Khan, Mst.
9. Salamti and Shera left Market Police Station for their house. When they reached the shop of Kdramdin they were suddenly attacked by the appel--lants along with Mst. Khurshid. It is said that Mst. Khurshid and appellants Siraj, Achi and Yacoob had knives while the remaining appellants had lathis. Injuries were inflicted upon the complainant party. However, Waryam and Shera escaped bar running away and watched the incident from some distance. Thereafter the appellants left, The injured persons were taken to the Market Police Station in tongas by Waryam and Shera. Waryam lodged the first report.
10. Mr. Abdul Majid A. S. I. P, after recording the first report sent for ambulance from the hospital and after preparing the mashirnama of the injuries sent the injured persons to the hos--pital. He then went to the scene of offence. There was blood at several spas. The blood-stained earth, blood- stained dandas and four pieces of blood-stained wood were secured and sealed in presence of mashirs Mohamed Ashraf and Zardar Khan. He made efforts to secure the appellants but they were not available in their houses. He, therefore: returned to the police station.
11. On the morning of 7th November 190 A S. I. P. Went to the house of appellants but they were not available. In the meantime he same to know that Mir Khan injured had died. He therefore went to the hospital and prepared the inquest report. According to the evidence fatal injury was caused by Siraj appellant. The A. S. I. P. Then recorded the statements of Ali Gohar, Mashooq Ali, Aiman Ali, Mst.
12. Salamti, Muhammad Rashid alias Shida. The appellants were arrested from Shishmahal Hotel in presence of mashirs, Muhammad Sharif and Zardar Khan. Appellant Siraj, Yakoob and Ashraf led the police and mashirs to the house where they were living and they produced washed knives having some blood stains: Appellant Siraj, produced the knife from a bag, appellant Yakoob produced the knife from a box while appellant Ashraf produced the knife from another box. The knives were sealed and mashirnama Exh, 19 was prepared. Appellant Liaquat had an injury on the head while a Yakoob appellant had an injury at his face above eyebrow. Mashirnama, Exh 36 was prepared. On 13th November 1970 the statements of Ali Gohar, Aiman Ali, Mashooq Ali, Muhammad Rashid, Qamardin Shoukat, Razik Dino and Muhammad Umar were recorded under section 164 Cr.
13. P. C. Thereafter, the app slants were challaned and the blood stained knives were sent to the Chemical Analyst who detected human blood vide his report Exh. 32.
14. The appellants proclaimed their innocence and ascribed their implication due to enmity. They denied having absconded or having produced the knives. They pleaded that they were all along in their houses and the police had not visited their houses.
15. The prosecution examined. Vali Muhammad Shah, Tapedar, Waryam, Mashooq Ali, Allahyar mashir, Mst. Gulzari, Zardari Khan mashir, Aiman Ali, Muhammad Rashid,, Mst. Salamti, Ali' Gohar. Mr. Aijaz Akhtar D. S. P., Mr. Inayatullah S. H. O. And Mr. Abdul Maid A. S. I. P. While the evidence of Dr. Muhammad Iqbal and Dr. Muhammad Siddik recorded in the committal pro--ceedings was brought on record. The appellants did not examine any witness in defence. It may be stated here that four witnesses, namely, Razik Dino, Qamardin, Shoukat and Umer were examined in the committal proceedings but at the trial they were given up by the prosecution.
16. At the trial all the appellants were charged for an offence under sections 302/34, P. P. C. And 307, 326, 324, 148 and 149,
9. P. C. On the assessment of the evidence the learned Additional Sessions Judge was of the view that the appellants were members of the unlawful assembly and the common object of the Assembly was to cause grievous hurt and, therefore, they would be liable for the acts which they had committed. On the basis of this finding he convicted appellant Siraj for an offence under section 302, P. P. C. As he was said to have caused fatal injury whil4 the remaining appellants were convicted for an offence under sections 147, 148 and 326/149, P. P. C.
17. There can be ho manner of doubt that an incident had takers place in which five persons had sustained the injuries and out of them one had died as a result of those injuries. This is borne out by the medical evidence. They had the following injuries: -- Mir Khan:
(1) A contusion 2" x 2" on the left parietal region.
(2) An oblique incised wound 1 x 5' x abdominal cavity deep on the post axillary line in length inter costal space on the sight side chest.
(3) An incised wound 5' x 3" on the inner aspect at the left fore-arm at its middle.
(4) An incised wound --' x --'x --' half inch below Injury No. 3.
(5) An abrasion 1' x 1` on the front of left knee.
(6) An abrasion J' x J' one inch below injury No. 5.1 According to tire medical officer the injuries were ante-mortem, Injury No.1 was caused by a blunt weapon such as a lathi, injuries Nos. 2, 3 and 4 were caused by a sharp-cutting weapon such as knife, and injuries Nos. 5 and 6 were caused by hard and rough substance such as by fall on the ground, The death was due to shock and haemorrhage as a result of injury No. 2 which had cut the liver and it was sufficient in the ordinary course of nature to cause the death. The injury. No. 1 had caused the fracture of the left parictal bone.
18. Aiman All:
(1) Incised wound --x 1" x 4" x scalp deep, on the vault of the skull at the junction of sagital and calul sutures.
(2) Brulse 2 x 2' at the back of the left thigh at its middle. The injury No. 1 was, caused by, sharp cutting weapon, while the injury No. 2 was caused' by had blunt object. The injuries were simple in nature.
19. Mashooq Ail:
(1) Incised wound it the lateral side of the right thigh at its middle war about 5" x 3 x ?
20. The Injury was caused by sharp-cutting weapon and It was simple in nature.
21. Ali Gohar:
(1) An incised w6itid right side of chest below nipple 2 x -- x ?
(2) Incised wound at the left buttock 2" x; -- x
(3) Incised wound --"x -- at the back aft the left scapular region.
(4) Incised wound J" x i" at the front loft side of chest lit the anterior axillary line."
22. The injuries were caused by sharp-cutting weapon. Out of them injuries 1, 3 and 4 were grievous while injury No. 2 was simple.
23. Mst. Salamti:
(1) Incised wound left parietal region 2" x -- x 7
(2) Incised wound left thumb 1" x -- x ?"
24. The injuries were caused by sharp-cutting weapon and wttd simple in nature.
25. As regards the identity of the appellants with the crime it is clear from the statement of facts that the evidence against the appellants is three-fold via. Ocular, recovery of crime weapons coupled with the fact that the appellants were said to have absconded after the commission of the crime.
26. This evidence was accepted by the learned Additional Sessions Judge. On appraisal of the evidence we are of the view that there are indications persuading us to entertain the belief that the evidence produced in this case is not such on which implicit reliance can be placed. There are six eye-witnesses viz. Waryam, Mashook Ali, Aiman Ali, Muhammad Rashid; Mst. Salamti and Ali Gohar.
27. It is not necessary to state their evidence in detail as they have confirmed the story related in the statement of facts. It may, however, be briefly stated that according to their evidence the relations between the parties were strained since about more than a year and several cases had been filed.
28. The cause of enmity was that appellant Siraj wanted to have illicit connections with the two daughters of Wallow complainant and on occasions he had buss" them, although he was reprimanded but he paid no heed. On the day of the incident at about 3 p.m. Siraj. Achi, Leki, Nazir, Yakoob, Makoo alias Mubarak and Met. Khurshid went to the house of the complainant and threatened to kill them in case the case which was already pending was not withdrawn or at lease Mst. Khurshid was not excluded. It is said that all of them carried knives. However, on the intervention of some persons Siraj and others left. Mat. Salamti went to the police station and lodged the report. Consequently the police sent for both the parties but the appellants did not appear. They remained at the police station up to 10 p. m. And then they were allowed to go. So when they were returning they were waylaid by the appellants accompanied by Mst. Khurshid and the injuries were inflicted upon them.
29. The presence of the various witnesses at the time of this incident cannot be disputed. As already indicated there are six eye-witnesses and out of them four had sustained the injuries. The appellants are closely related to the complainant party. There was also municipal electric light at the spot where the incident had taken place. There were houses and shops all around and the shops were still open. However, the main question is whether the evidence of these eye-witnesses can be implicitly relied upon in order to hold that the appellants had participated in the crime. It is an admitted position that there is long standing enmity between the parties as a result of the misbehaviour of appellant Siraj. All the witnesses are closely related to each other. In such circumstances the evidence has to be put to strict scrutiny in order to be ensured that an innocent person has not been falsely implicated. In this connection the rule laid down by the Supreme Court may be referred to. It was observed that where the ocular evidence was of interested and partisan witnesses such ocular evidence, to carry a conviction on capital charge, must be supported by some strong circumstances such as might serve to overcome the inherent doubt which such evidence is necessarily affected. The necessity of independent corroboration is all the more necessary in the present case as it would be found that the evidence of the witnesses suffers from certain serious infirmities which I would like to point out presently. There are at least three persons, who, as has been fully established, bad been falsely implicated. The first person is Mst. Khurshid. It was said that she participated in both the incidents which took place on that day and on both the occasions she carried a knife. This accusa--tion was rejected by the learned Additional Sessions Judge. In this connection it was observed by him that it was unbelievable that a grown up lady who was mother of several children and was a respectable lady would carry a knife and would attack and cause injuries to male persons, in public. The reference to Mst. Khurshid as a respectable lady is probably due to the fact that at that time she was the wife of an ex-minister. It -was further observed by him that the idea was unbelievable and bogus on the very face of it. He then referred to the contradictory state--ments made by the witnesses with regard to W participation of the lady. It was pointed out by him that Waryam, Aiman Ali and Mashook Ali had stated that Mst.
30. Khurshid had caused knife injury to Mashook Ali but according to Mst. Salamti the injury to Mashook Ali was caused by Siraj appellant. His view therefore, was that Mst. Khursheed was neither present at the scene of offence nor she had caused the injury to Mashook Ali, It is also important to hear in mind that she was not challaned by the police. .
31. The other person who had been falsely implicated is appellant Rafique. His name does not appear in the first report. Despite this the complainant insisted that he had disclosed his name in that report. This serious discrepancy was realised and it was brought out in the evidence of Mashook Ali that Rafique was also called Latif whose name was disclosed in the first report. This claim is false and stands dispelled by the very evidence of Waryam complainant who categorically denied that Rafique was also known as Latif.
32. The identity of Nazir appellant is also doubtful. Of course his name appears in the first report and he was also implicated by all the witnesses but considering the conflicting statements it is not possible to come to a definite conclusion about his participate --Waryam complainant stated that Nazir bore no other name Mashook Ali and Mst. Salamti stated that Nazir was also known as Jerri.
33. Turning to the evidence of Rashid it would be found that according to him Nazir had two brothers by name Liaquat and Jerri. He further stated that he had not seen Jeff I there, but in his statement recorded under section 164, Cr. P. C. He had implicated all the three brothers. He had stated that Nazir, Liaquat and their younger brother had inflicted injuries. In this connection refering to the evidence of Mst. Salamti it would be found that according to her Nazir was aliased Jerri and no younger brother of Nazir was present at the time of the 'incident Again, participation of three appellants, namely, Ashraf Nazir and Rafique in this crime is also rendered doubtful by the evidence of Aiman Ali who although admitted their presence but stated in clear terms that they did not take part in the assault.
34. It is an admitted position that the incident had taken place in the busy, locality where shops were still open but not a single person has been produced to support the prosecution as regards the participation of the appellants in this crime. Not only this but Razikdino, Qamardin, Shoukat and Umer who were examined the committal proceedings were given up at the trial. It is, draw an inference that they did not support prosecution with regard to the implication of the appellants in this crime. Realising the gravity of the situation the witnesses tried to deny their presence although their names were disclosed in the first report as well as in police statements and it was on that account that they were examined in the committal proceedings.
35. It was further emphasised by the learned counsel for the appellants that although it was claimed by the witnesses that four of the appellant carried dandas and had actually inflicted injuries but the medical evidence disclosed that only one of the injured persons had received such an injury and it was a bruise 2 x 2 at the back of left thigh at its middle on Aiman Ali, while all the remaining injuries on various persons were by sharp-cutting weapons. This also renders the participations of the various persons who were said to be armed with dandas doubtful.
36. Thus, it is clear that the prosecution is not only hostile to the appellants on account of the long standing enmity but their evidence suffers from serious infirmities and conflicting statements have been made. It is therefore, necessary to seek explanation for holding that variation had been introduced at the trial in good faith but no satisfactory explanation is forthcoming. Since the prosecution witnesses had made false statements and compromised their integrity, their veracity is evidently damaged. If they are capable of making false statements in respect of some of the appellants they are equally capable of making false statements in respect of others, and consequently, in order to accept their evidence independent corroboration is absolutely necessary.
37. Corroboration has been sought from two circumstances with which we will presently deal.
38. It was alleged that the appellants had absconded after the incident and were not available till they were arrested from a hotel. The Investigating Officer had gone twice to their houses but they were not found. It if, however, established that the appellants had disappeared when the report regarding the first incident had been lodged. An attempt was made to secure their presence but they did not appear at the police station. In this connection Mst, Salamti had stated in her evidence that on the first occasion the appellants could not be contacted as they had run away, So the appellants had not absconded on account of previous incident they- had disappeared before it.
39. Further-- more although the appellants were not available in their houses but they were arrested from a hotel situated in the same locality as had been admitted by Mr. Abdul Majid A. S. I. P. In cross-- examination. All of them were found together. It may also be added that when certain persons are implicated in a case they are scared on that account and try to keep themselves away from the house.
40. The second, circumstance is the production of the blood--stained knives by appellants Siraj, Yakoob and Ashraf as deposed by Mr Abdul Majid A. S I. P. The mashir Zardar Khan how--ever, did no support the prosecution. He completely denied the production of the knives by the appellants.
41. The, learned Addi--tional Sessions Judge while a commenting upon his evidence observed that he had been won over. The prosecution made no attempt to bring on record his interest in the appellants. Even the other mashir was not examined. The recovery is further rendered doubtful by the fact that although he Investigating Officer went to the house of the appellant, twice but he made no effort to search the house. The explanation offered by him that he had not searched the house on account of the absence of his appellants is unacceptable. Ordinarily it id the anxiety of every police officer to secure the incriminating articles at the first available opportunity. Apart from this, there is another important admission made by Muhammad Rashid that the knife used by Siraj appellant was standing up in the body of Mir Khan and, therefore, Siraj ran away leaving the knife there. It is not under stood how Siraj, then, produced the knife from his house.
42. In the circumstances, the prosecution case suffers from serious infirmities and it is not possible to maintain the conviction an sentence passed against the appellant. We, therefore, allow the appeal and set aside the conviction and sentence passed against them and acquit them. The reference for the confirmation of the death sentence is rejected. They should be set at liberty forthwith unless required in some other case.