IMDADALLY H. AGHA, J.-Appellants Gal Mohammad alias Gullo and Mohammad Hanif were tried by the learned Additional Sessions Judge. Karachi Mr. Fakhruddin Haleemuddin Sheikh, for the murder of deceased Hussain Bux and the former was convicted under section 302. P. P. C. While the latter was convicted under section 302 read with section 109. P. P. C. Both the appellants were sentenced to transportation for life. They have now appealed against their convictions and sentences.
2. The facts of the prosecution case briefly are these. On 14-12-1966 deceased Hussain Bux had come to the house of Francis (P. W. 6) at about 6-30 p.m. And asked him to go with him for a round.
They both knew each other as the deceased had worked for two or three years in Reno Cinema, where the witness Francis was also employed. They both left the house of Francis and took tea at Taj Hotel There they stayed for about one hour. Deceased Hussain Bux then told P. W. Francis that he had to go to Depot Lines for some work with his friend. P. W: Francis, therefore, accompanied him to the Depot Lines. They reached the Kutcha lane Depot which is opposite to the Fire Brigade. On the way deceased Hussain Bux set down to urinate near the wall of a bungalow when Hussain Bux got up and was buttoning up his pants the present two appellants whom P. W. Francis already knew came there. They had come by scaling over the compound wall to the same bungalow. They started abusing deceased Hussain Bux and objecting to his urinating there. When deceased Hussain Bux started going both the appellants grappled with him. P. W. Francis tried to intervene but appellant Gullo kicked him at his testicles, due to which he fell down. ' Francis raised cries of "Help, Help". One person had come out from the bungalow on the cries. P. W. Francis saw that appellant Gullo was stabbing Hussain Bux with a knife while appellant Hanif had caught hold of Hussain Bux by his hands from the back side. P. W. Francis heard the man who had come from the bungalow shouting at appellant Gullo not to kill the man. The man who had come on cries was Abdul Majid (P. W. 5), whose name Francis came to know on the next day. Deceased Hussain Bux then, went lingering on inside bungalow No. 124. And fell down there near the water tank while both the culprits that is, the appellants ran away towards their houses. P. W. Francis followed Hussain Bux and tried to straighten him. He was bleeding from his chest. According to P. W. Francis 2 or 3 persons had come out from the bungalow and made enquiries from him. He told them that Gullo and his companions had injured Hussain Bux. One of those P.Ws who had come there was Abdul Razzaq (P. W. 3). P. W. Francis did know his name before which he came to know on the following morning. P. W. Francis then without doing anything went home because he was feeling pain in his testicles. No one else from the above-mentioned witnesses also reported the matter to the Police.
However, at the time of the occurrence Khayam Ghani (P. W. 1) was in his bungalow No; 124; Depot lines at 8 p.m. Mr. M. Ghatti who lived upstairs in the same bungalow came to P. W. Khayam Ghani and informed him that somebody was lying injured outside their bungalow and presumably he was dead. P. W. Khayam Ghani and Mr. Ghatti then went outside and saw a person lying dead on the water tank at the back of the compound. Khayam Ghani tried to feel his pulse but found that the body was cold. He then phoned up the Emergency Police by dialling No. 55555. The telephonic message was received by S. I. P. Mohammad Hanif (P. W. 4) at 8-45 p .m. The S. I. P. Then sent intimation of this incident to Brigade Police Station and. Also made such an entry in the station diary. He produced the copy of the original station diary as Exh.
14. P. W. Mohammad Hanif's message to the Brigade Police Station was received by S. H. O. Mohammad Yar Khan (P. W. 9) at that Police Station. He recorded that information in the Roznamcha and sent to the spot A. S. I. P.
Ashgar A.I Shah and Head Constable Nasir Hussain. At about 8-30 p.m. The S. H. O. Himself alongwith Nazir Mohammad S. I. P. Left the police station for the scene of offence. He saw the dead body of a person lying in bungalow No. 124 Depot Lines. Later on the came to know the name of that person as Hussain Bux. The S. H. O. Recorded statements of P. W. Khayam Ghani who used to live within the compound of the same bungalow. . He sent that statement to the police station for being recorded in the register under section 151, Cr. P. C. This statement has been produced as Exh. 5.
From this statement which was received by S. I. P. Mohammad Hashim (P. W. 2) at Brigade Police Station at 10-30 p.m. The latter transcribed it into the register maintained at the Police Station under section 154, Cr. P. C. This First Information Report has been produced as Exh.
9. It was recorded at the police station at 11-30 p.m. The same night. The S. H. O. P. W. Mohammad Yar Khan who was at the- scene of offence prepared inquest report of the dead body of .The deceased in presence of, mashirs Abdul Mukhtar (P. W. 8) and P. W. Khayam Ghani. This inquest report bas been produced as Exh.
6. The S. H. O. Then prepared a mashirnama of the scene of offence in presence, of the same mashers which is produced as Exh.
7. The S: H. O. Searched the person of the deceased and found a bunch of papers .In the pocket of his coat. These papers included an envelope bearing the name and address of Rahim Bux who is the father of the deceased. The S. H. O. Also prepared sketch of the scene of offence which he produced as Exh.
26. He then made enquiries at the address given at the envelope which was secured from the coat of the deceased. At the above address he cane to know about Yaqoob who was uncle of the deceased and who lived at Azizabad. Yaqoob was taken to the scene: of offence and shown the dead body which he identified to be that of deceased Hussain Bux Constable Qalander Khan (P. W. 7) was then made to guard the dead body of the deceased and later on the dead body was sent to the Civil Hospital through the same constable for post-mortem examination. On 15-12-1966 one boy Francs (P. W. 6) came to the scene of offence in the morning, when the police reached there. The S. H. O. Recorded his statement. At his pointing the S. H. O. Saw the place where the deceased was said to have been attacked regarding which he prepared a mashirnama in presence of mashies P. Ws. Abdul Mukhtar and Abdul Majid. The mashirnama has been produced as Exh.
17. Statements of Abdul Majid, Abdul Razzaq, Hurmat Bibi, Abdul Mukhtar and others were then recorded by the S. H. O. Under section 161, Cr. P. C. The S. H. O. Also searched the houses of the accused but nothing incriminating was found.
On 16-12-1966 the father of the deceased had also come and he was taken to the Civil Hospital where he identified the deceased- Hussain Bux. On 17-12-1966 at 8-30 p.m. The S. H. O. Received a spy information whereupon he went to the house of Gulloo and arrested him. P. Ws. Abdul Mukhtar, Abdul Majid as well as Francis were present at that time: The S. H. O. Brought the appellant Gullo to Bungalow No. 124. He was arrested from his house which was within the compound of Bungalow No.
114. Mashirnama of arrest Exh, 1--- was prepared in presence of P. Ws. Abdul Mukhtar and Abdul Majid The S. 14. O. Interrogated appellant Gullo who offered to produce the knife He then led the S. .H. O, and mashirs to the same quarter from where he was arrested. The mashirs were the same.
This appellant then dug the ground in the courtyard in his house and took out a knife and produced it before the S. H. O: which was secured as per Mashirnama Exh.
16. The knife was stained with blood. The S. H. O. Then started for the search of the other accused, namely, Mohammad Hanif.
On 17-12-1966 at 10 pm The S. H. I. And others were on Harchandrai Road when appellant Mohammad Hanif was seen going from Ramzan Hotel. He was pointed out by P. W. Francis who was with the S. H. O. At that time and the appellant Mohammad Hanif was put under arrest as per Mashirnama Exhs to which the mashirs were P. Ws. Francis and Mohammad Ayub. The S. H. O. Sent the blood-stained knife secured at the instance of appellant Gullo and the blood-stained earth as well as the blond-stained clothes of the deceased to the Chemical Analyser whose report he hay produced a Exh.
29. This report is in the positive. After the investigation was complete the S. H. O.
Challaned the appellants, on 27-12-1966 to the lower Court front where they were committed to the Court of Sessions. Karachi and they too their trial as already mentioned above with the result which also has been stated earlier.
3. Both the appellants when questioned under section 342, Cr. P. C at the trial: denied the prosecution allegations and professed innocence.
4. Appellant Gullo stated that he was arrested from his house in Jinnababad No. 1 .Where he was sleeping and that he was not arrested frog Bungalow No. 114, Depot Lines. He also said that he did not reside in the bungalow. He, however, admitted that he was son-in-law of Hayat Khan who resided within the compound of Bungalow No. 114 He denied to have produced any knife before the police. Regarding the question as to why t6 prosecution witnesses were giving evidence against him he stated the P. W. Abdul Majid had enmity against him because he had married to daughter of Hayat Khan. Earlier Abdul Majid had demanded hand c this girl for his own son which was refused by Hayat Khan. He also further stated that other witnesses bad been set up by the police against him.
5. Appellant Mohammad Hanif stated, that the prosecution witnesses Francis and -Abdul Majid were false witnesses. He also stated that he an appellant Gulloo were Arrested in the same house in Jinnababad No. 1 from where they were arrested simultaneously; at the pointing of P. W. Abdul Majid. Regarding Vs to why the prosecution witnesses gave evidence again, them he stated that they had been set up by the police.
6. None of the appellants led any evidence in defence.
7. The fact that the deceased Hussain Bux was killed by means of knife injury does not admit of any doubt. This point is also not dispute by the learned counsel for the appellant. Furthermore, Dr. Abdul Maji conducted the post-mortem examination on the dead body of the deceased.
He in his deposition in the committal Court which was brought on record of the trial Court as Exh. 31 states that on the external examination of the dead body of the deceased he found the following injury ore it-- "Incised wound about -- ' x -- ' x chest deep. On the front of the cheat 4' below sled medial to the, left nipple and 6' below mannhirum storm and -- above the middle opigastrium.'
8. On the internal examination of the dead body he found the following damage done to it:--- "No. 4--Seventh costal cartilage was partially cut.
No. 2.--Chest full of blood.
No. 3.--The pericardium was pierced.
No. 4.---Anterior surface ref the heart eras pierced, 1, e. Verticular surface by right side."
9. According to the doctor all the injuries we're anti-mortem and appeared to have been caused by a sharp-edged weapon such as a knife. The doctor also opined that the external injury causing the internal injury was sufficient to cause death in the ordinary course of nature as it was dangerous. He lastly said that the death of the deceased was due to shock and haemorrhage consequent upon the injuries on his person.
10. There is no reason to doubt this evidence of the doctor which has not been challenged by any one. We also see no reason not to rely upon it. We, therefore, fend that the prosecution has proved beyond all reasonable doubt that the deceased Hussain Bux was killed by means of a knife injury.
11. The prosecution case rests on the ocular testimony of two witness, namely, P. Ws. Francis and Abdul Majid as allegedly corroborated by the production of blood-stained knife by the appellant Out Mohammed.
12. P. W. Francis has deposed to the same facts as are detailed in the narrative of the prosecution story given above and the same need not be repeated. So much may be said that although he had seen, according to him, the deceased being killed by appellant Gul Mohammed with a knife while appellant Mohammad Hanif had held him from his back still after the Incident this witness went straight to his house without reporting the matter to the police arid returned to the scene of offence on the next day in the morning when he found police there on the spot.
13. P. W. Abdul Majid the next alleged eye-witness has substantially deposed that he was living in Bungalow No. 114; Depot tines, Karachi since 1962. He, was living in a servant quarter within the compound of this bungalow. On the day of incident he was in his house in the evening at about 7- 30 or 7-45 pm. He was prepared for Namaz when he heard a noise in the street. The street is a Kutcha lane with bungalows on both the sides. He anent out: of the gate and found that one boy was crying for help while another man had caught hold of another man by his hands from the back. The person who had caught hold of the hands was appellant Mohammad Hanif, whom this witness already knew as he used to visit the compound where this witness lived in order to see appellant Gulloo who also lived in the same compound. According to this witness appellant Gulloo had taken out a knife from his pocket. This witness shouted at Gulloo hot to stab the man but he stabbed the man who was in the grip of appellant Mohammad Hanif The injured person cried and ran towards Bungalow No. 1 24 and entered its compound. The rather bony who was companion of the injured and was crying for help also followed the injured person This witness did not know the companion of the injured person before; Later on; he came to know that his name was Francis. This witness then went to the mosque fear prayers and did not report the matter to police or any one else. In the morning when lie was going to bazar he found the police at the scene of offence and he was called by the police at the pointation of P: W. Francis and his statement was recorded.
14. From what is stated above it will be seen that the alleged two eye--witnesses to the incident have not reported what they saw to any one particularly not to the police. These witnesses belonged to Karachi city and not to the Mufasil so that different considerations would have applied to their case if they had not reported the, matter to the police and kept silent for the whole night of the incident and on the next morning when they came to the scene the police recorded their statements. At Karachi telephones are frequently available at bungalows and at other places like restaurants, etc. And it would not have been difficult for any of these alleged eye-witnesses to have reported the matter to the police which it was their duty to do. Sine they have not revealed the incident to any one and they have kept quiet, therefore, their evidence does not inspire confidence in us and as such no implicit reliance can be placed upon what they now alleged in Court about having seen the incident. Looking to the circumstances and the facts a doubt arises in our mind that perhaps the two alleged eye-witnesses are telling lies and they have not come out with the truth. There is also lave on the point that an eye-witness who keeps silent after having seen the incident ought not to be relied upon and this law-need not be reproduced here. We are, therefore; of the opinion that the two alleged eye-witness produced by the prosecution are not reliable at all and their testimony h to be kept out of consideration, The ocular evidence having been discarde what the prosecution is left with is the only alleged production of blood--stained knife by appellant Gulloo. This evidence even if it is believed to be true would not advance the prosecution case so that it can be said that it has proved its case beyond a reasonable, doubt against the appellant Gulloo. Production of the knife by, appellant Gulloo by itself, therefore, is not a circumstance which can avail tire prosecution side in its case.
15. For the foregoing reasons we find that the prosecution has failed to establish their case against both the appellants beyond a reasonable doubt as such we hold both the appellants to be not guilty. Their appeal is allowed.
16. We had pronounced the above conclusion at the close of the arguments of counsel for parties and have now set out the reasons therefore.