This revision application under section 439, Cr. P. C. Is directed against tsar judgment of Additional City Magistrate as well as Section 30-Magistrate court No. 11, Karachi dated 18-7-1969, whereby he acquitted respondents Mazhar Ali, Abdul Ghaffar sad Abdul Razzak, who were charged under section 307/34, P. P. C. On a complaint by applicant Syed Wahidul Hasan as Fell as order of III Additional District Judge, Karachi dated 26-11-1969, whereby the learned Judge dismissed the revision application of the present applicant as infructuous pan the ground that acquittal appeal was to be filed by the State. It may however be observed that the State has not filed any acquitted appeal,
2. Briefly the facts are that complainant/applicant Syed Wahidul Hasan on 18-6-1967 went to Liaquat Chowk, Golimar at 2 p. m. In his car. He was told there that his friend Jamal who has a shop in the Chowk wanted him. The three respondents came there and started abusing him.
Respondent Mazhar it is alleged took out a knife and struck him in the back. . Many people collected there but the respondents ran away. The knife it is stated remained struck in the back of the complainant who sat in his car and drove to the Golimar Police Station, where he lodged the report. He was sent to the hospital, the knife was taken out from his back by the doctor and he remained under treatment for more than. 21 days. The respondents denied the allegation against them and stated that they have been falsely implicated on account of enmity with the complainant party. Two defence witnesses Abdul Majeed and Mohammad Abbas however, were examined.
3. The prosecution case rests mainly on the statement of Complainant/applicant and eye- witnesses P. W. 5 Jamal, P. W. 4Wajid. All P. W. 8 Ejaz Ali and P. W. 10 Nazar Muhammad N.
1. P. Malir, the Investigating Officer. In the F. I. R. It was stated by the complainant that on the day of incident: when be came to Liaquat Chowk looking for a person who prepares keys it, take him into his house (o make certain keys for him, he was told that Jamal was calling him. This Jamal is known to the com--plainant and has a shop in the Chowk. He went to Jamal but he told him that he had not called him. Two or three persons were standing there with whom he had exchange of abusive words to the morning. It way he noted that too Incident happened on the second visit of complainant to Liaquat Chowk. These persons told him that he has abused them. He denied, whereupon they took out a knife and started abusing him. All the three respon--dents ran after him. He tumbled and fell down and one person of fat body, short stature and wheat complexion who had previously called him that Jamal wanted him, stabbed him in the back. The knife was still in his back. He did not give names of the respondents in the F. I. R. Nor named any person in the F. I.
R. To have witnessed the offence, but he said that many persons were present there. In his statement he states that he had exchange of abusive words between him and Razzak, but he only identified them in hospital after their arrest in presence of Magistrate and the knife was taken out from his body in the hospital and he did not know the accused before and saw them for the first time at Liaquat Chowk but knew Jamal since long who has a decoration shop. He could not give the name of the person who called him but later on it was told that his name was Mazhar. The reason for dispute, in the morning, given by him, was that he had enquired about the address of the person who prepares keys whereupon he was told that he was not a contractor for him. He admits that he has neither given the description of the accused before the Magistrate nor in the F. I.
R. At the time of stabbing, there gathered 5-6 persons and he was not familiar with any one but he knew Jamal since 10 years and used to visit his shop. In cross-examination he states that in the morning altercation took place with only one person and not 2-3 persons and the mention of 2-3 persons is wrongly written in the F. I. R., and he slid not know as to whom the police made the witnesses on the spot. He was stabbed after he fell down. He denied that the names of accused were told to him by Jamal later on and also denied the suggestion that he filed the case at the instance of Jamal, who had enmity with the respondents.
4. P. W. 4 Wajid Ali is a mill employee and on the day of incident it was holiday and he was going after purchase of gur from Golimar Bazar. When he reached Liaquat Chowk he saw Abdul Ghaffar and Abdul Razaq quarrelling with a third person, the present applicant whom he did not know previously. Razaq had a knife in his hand and he did not know what was in the hand of other person. The quarrel was oral and the third accused Mazhar came with open knife who stabbed the applicant in the back and then all of them ran away leaving the knife struck in his body of the injured person. He sat down with the applicant with his car, went to the police station nearby. The car was driven by the applicant while the knife remained struck in his back. He knew all the three accused from before. Police had obtained his statement after two days and that also between 7-8 p. m. Surprisingly, he states that although he went with the complainant, who had a knife struck in his back, in the car, but at that time neither the police had asked him anything nor he told to the police any--thing. Now it is unbelievable firstly that a man who drove a car himself and went to the Police Station to file the report when a knife is struck deep in his back causing grievous injuries and secondly it is not believable that the person accompanying the complainant as this witness, was not examined by the Police. It appears to me that this witness was not present at the time of incident otherwise he would have definitely made a statement to the Police, which would have been recorded at that very moment. There was no explanation by the police for not examining this witness at time of report, as admitted by the witness that he was examined after two days of the incident although he was accompanying the complainant at the time of filing the F. I. R. I give no credence to the statement of this witness as an eye-witness of the offence.
5. With regard to P. W. Jamal, the other alleged eye-witness, this witness also cannot be relied upon particularly so when he states that when the complainant came to his shop and enquired about lock-repairer, Abdul Razaq was sitting there. He enquired from him, there was a quarrel between them and exchange of abusive words. I came down from my shop and intervened. Waheedul Hasan went with the lock-repairer. This witness identi--fied accused Abdul Razaq. After it at about 2 p.m. Waheedul Hasan again came back in his car and dropped the lock-repairer. Meanwhile Abdul Razaq, Ghaffar and Mazhar Ali came and a quarrel started between them and Waheedul Hasan. He tried to intervene but he was pushed. Some other people also collected. The incident occurred 20 paces from his shop. After he was pushed he stated he went aside and left the respondents fighting with the complainant who is known to him according to the complainant for the last 10 years. He claimed to have seen Mazhar giving knife stab to the complainant-and also that in spite of request of the complainant to take out the knife, no one pulled the knife out. He claims to have known the complainant for the last 10-12 years and he also knows three accused persons for a long tine. He states that after the complainant was stabbed he did not make any conversation with him. All he did was that he visited the complainant in the hospital next day. This is unbeliev--able particularly so when this witness used to have business dealings with him, knew him for many years, as it appears he was on friendly terms with him, it would have been natural for this witness to go to the Police Station along with the complainant who initially claims to have visited him in the morning as well as in the afternoon but another witness is stated to have gone to the Police Station. It appears to me that either this witness was not present and has not witnessed the incident or otherwise he has withheld the true facts due to fear or some other reason known to him. In normal circumstances a man is not stabbed with a knife on such flimsy pretexts as shown by the complainant unless they know each other or there exists some enmity between them, but this enmity has been denied by the complainant with the respondents. It is also surprising for this witness to state that at the time of stabbing although there were 7-8 persons but he did not recognize any of them, although he is a resident of Chowk and has a shop there and normally people of the locality are expected to be present at the site. Not only this he states that Abdul Waheed and Siddique Hotelwala had shops nearby his shop and there were other shops also, yet he falls to state that any of those persons whom he knew did see the offence having been committed. A question was put to him that he had a dispute with Mazhar on money dealings and that is why he deposed falsely but this suggestion however, he repelled. The statement of this witness however, is not straightforward in my opinion. His not going to the police station at the time of incident which he alleged to have seen, raises a doubt in my mind that this is a witness of truth.
He definitely is withholding the factual position. I therefore, give no credence to him.
6. The next witness is P. W. 7 Afsar Ali. This man came to the vardat to purchase ice and saw 3-4 persons quarrelling and states that Razaq instructed to catch hold complainant and Mazhar gave the knife blows. He also went after two days to the police station at evening time and gave his statement. Had he been present at the site he would have also accompanied the complainant to the Police Station but that is not so. His visiting the Police Station after two days to give a statement, raises a doubt to the veracity of his statement mainly because he is a resident of Jehangir Road and on that date being a holiday according to him he had gone there exclusively for purchasing ice is a reason to show his persence at the vardat otherwise the ice could be available at Jehangir Road. This seems to me a chance witness set up by the prosecution. He knew Mazhar for last 10-12 years who has a shop according to him 300-400 yards from his house and at the time of incident he was running a hotel but this witness did not go to the hospital. He denied the suggestion in cross-examination that before the incident there was a quarrel between him and Mazhar and that is why he is giving evidence due to enmity. In his examination-in-chief he states that he enquired the name from the injured who told him to be Wahidul Hasan but in his cross-examination he contradicts himself by stating that he knew Wahidul Hasan from 8-10 years. I do not give any credence to the statement of this witness either.
7. P. W. 8 Ejaz Ali is only a witness in the hospital with regard to the knife which was produced allegedly by doctor before the Police and he is a witness of the mashirnama of the knife. Statement of this witness therefore, in no way helps the pro--secution.
8. The injuries sustained by the complainant are not contest--ed nor his treatment in the hospital to which necessary medical certificate has been issued by the doctor. The learned trial Magistrate gave benefit of doubt to the respondents. He did not believe the statements of P. Ws. As well as the possibility of the appellant's driving the car himself while knife is struck in his back to the police station. He also doubted the identification test of the respondents by the complainant specially when the test is alleged to have taken in the hospital in the circumstances where the complainant was sleeping in his hospital bed, neither the Magistrate was examined who allegedly carried out the identifica--tion parade. He therefore, rejected the evidence with regard to the identification of the respondents. With regard to 21 days staying of the complainant in the hospital for treatment, the Magistrate came to the conclusion that according to the doctor there was only one incised wound on back middle part 1x-- and that the nature of the injury was kept reserved as the patient was hospitalised for more than 21, days and only on that ground 4 was held to be grievous. This statement of the doctor was repelled by the Magistrate by observing that in his opinion the injury was simple as it was easy to manage and keep the injured as indoor patient more than 21 days so as to make the offence grievous under the law. If it was really serious and grievous injury the nature of injury should have not been reserved by the: doctor. He also doubted the capability of complainant's driving his car with the alleged knife struck in his back to the police station and then to hospital. If the injury was serious, definitely the complainant would have fallen down and could not have been able to drive the car in place like Karachi. I find myself in agreement with conclusion reached by the learned Magistrate and hold that the prosecution has not proved its case beyond reason--able doubt, benefit of which must go to the respondents and in my opinion it was rightly given by the learned Magistrate to the respondents and acquitted them. Lengthy arguments were addressed at the Bar by counsel for the applicant and he cited number of cases which in view of the evidence on record with regard to occurrence I do not think to be relevant, to discuss. This is an application against acquittal and it has repeatedly been held by the Supreme Court as well as this Court that the Court has to be very cautious at this late stage to set aside acquittal orders except when there is compelling reason and overwhelming evidence which has not been properly assessed and appreciated by the Courts below. The counsel for the State as well as Mr. Abdul Hakeem Khan, counsel for the respondents have opposed this application by arguing that the prosecution has riot proved its case sufficiently and beyond reasonable doubt. Normally it is for the State to come for setting aside the acquittal orders but in this case as stated above the State has not come forward. The only conclusion I can reach is that the State has accepted slip acquittal order of the learned Magistrate as correct.
9. In view of the above discussion I find myself in full agreement with the conclusion reached by the learned, Magistrate consequently uphold his order dated 18-7-1969, and dismiss this revision applications.