AGHA ALI HAIDER, J.-The appellants were convicted by a learned Additional Sessions Judge, Karachi for an offence under section 326/34, P.P.C. And sentenced to suffer R. I. For 4 years each, and a fine of Rs. 100, or in default to suffer R.1 for one month more. Aggrieved by the judgment of conviction and sentence, Muhammad Sated has filed a separate appeal, being No. 403 of 1968 while Anwar Beg and Aziz Beg have filed appeal No. 428 of 1968 jointly. An Appeal (No. 59 of 1969) has been filed under section 417, Cr. P. C., by the Assistant Advocate-General, against the acquittal of the appellants of the offence under section 302/34, P. P. C. As all the appeals emanate from the same judgment, we propose to dispose of them by a composite judgment.
2. The appellants Anwar Beg and Aziz Beg are brothers Inter se. The appellant Muhammad Saeed Ahmad is their first cousin. It appears that in the afternoon of 30-7-1967, there was an incident, in which Anwar Beg had received a drubbing at the hands of Rauf since deceased, and his brothers P.
W. Muhammad Siddiq Khan and the complainant Munawwar Khan. There were no visible injuries received. Anwar Beg had, however, lodged a report at the Liaquatabad Police Station, Karachi, which was recorded in the roznamcha.
3. The prosecution story is that at about 8-30 p.m. While Rauf and Munawwar Khan, were at their shop in the name and style of Friends Electric Works and Decoration, in Lalukhet, the appellants and one Muhammad Saeed Militarywala, who is a fugitive from justice bad turned up there. The absconder had dealt a knife blow to Rauf and when Munawwar Khan tried to intervene on behalf of his brother, the absconder Muhammad Saeed whipped out a revolver, but it dropped to the ground as he was struck on his hand with a tube light base by Munawwar Khan. All the culprits then took to their heels. However, the appellant Saeed, came to be apprehended after a short chase, with the assistance of a police party, that happened to pass by. Rauf was rushed to the hospital by P. W.
Muhammad Siddiq Khan, while Munawwar Khan, after handing over the revolver to P. C. Sikandar Beg, proceeded to the Liaquatabad Police Station and lodged the first information report of the incident. Syed Siraj Hussain, the S. H. O. Proceeded to the wardat and secured the blood-stained earth and some other articles. Later he examined Dilshad, Jabbar, Muhammad Akhtar, P. C.
Sikandar Beg, Wazir A.I and some other persons, whose names have not been specified. Rauf succumbed to his injuries near about the mid-night in the Seventh Day Adventist Hospital. The S. H.
O. After preparing the inquest report, sent the dead body to the Medical Officer, Civil Hospital, for the post-mortem examination, and examined Anwar Abroad, Naziruddin and some other persons on 31-7-1967. The appellants Anwar Beg and Aziz Beg were arrested on 1-8-1967. As Muhammad Saeed, Militarywala, eluded arrest, the charge-sheet was sent against the appellants only, showing the former as an absconder.
4. The appellants Anwar Beg and Aziz Beg in their statements at the Court of Inquiry as well as at the trial, denied the allegations made against them. Anwar Beg, however, admitted having lodged the report of the earlier incident. Muhammad Saeed Ahmad made out at the trial, that he was caught on the other side of the road, near the Tin Hatti, Bus Stop, where he was waiting for a bus and was beaten. At the Court of Inquiry, he had also stated that be wan to lodge a report, which was not recorded.
5. Apart from the evidence of Munawwar Khan, Muhammad Siddiq and others, about the death of Rauf, there is the evidence of Dr. Abdul Majeed Khan who had held the autopsy finding the following injuries on the person of the deceased:-
(1) Incised wound about 1' x -- ' x skin deep on the medial side of left eye-brew.
(2) Incised wound about 1' x -- ' x skin muscle deep on the front of the upper part of medial side of left arm.
(3) Incised wound about 1' x -- ' x muscle deep on the medial side of left elbow side.
(4) Incised wound about 2 -- ' x -- " x muscle deep through and through on the upper part of the medial side of middle left thigh 4' below the middle inguinal region cutting the muscle blood vessels and nerves through and through, piercing the posterior part of the thigh about -- ' x -- '
(blood vessels ligated). Injury No. 4 caused the damage of the vital blood cells profound a femoris and femoral artery and veins.
(5) Three abraided contusions on the front of the face about -- ' x -- ' each.
(6) One abraided contusion -- ' x -- ' on the bridge of nose.
(7) Incision about -- ' x -- ' on the medial side of right malious (incision given by the doctor the verses section).
According to the Medical Officer, the injuries were ante-mortem and the injuries Nos. 1 to 4 appeared to have been caused by a sharp cutting weapon, while the rest were with blunt weapon.
The death had occurred due to profuse bleeding and shock as a result of the injuries. In the light of the view we are taking, suffice it to say, that Rauf met his end, as a result thereof.
6. The eye-witness account of the incident has been furnished by the complainant Munawwar Khan, Anwar Ahmad Khan and Naseeruddin. P. W. Muhammad Siddiq Khan had turned up after the incident. Sikandar Beg had only featured in the apprehension of the appellant Sated, and has nothing further to say.
7. Munawwar Khan has stated, that at about 8-30 p.m. He was closing his shop, better described earlier. His brother Rauf was the only other person there, busy reading a newspaper. Saeed appellant and the absconder Sated turned up and enquired from him, as to why he had beaten Anwar and Aziz. He had denied the allegations and asked as to who they were. Aziz Beg and Anwar Beg then appeared on the scene. There was a dando with Aziz and Anwar had a knife. They cried out "Kill Kill". Rauf tried to intervene, when the absconder accused took out a knife and pierced it in the thigh of Rauf. He opened the shop and helping himself with a tube light base, rushed towards Sated, the absconder. The latter took out a revolver, but he hit his hand with the tube light base and the revolver fell down on the ground. Sated absconder ran away. When he looked towards Rauf, he found the appellants beating them, but seeing him, they also bolted away. However, the appellant Saeed came to be apprehended at the spot, with the help of a police party, who happened to arrive there. In the meantime, their cider brother Muhammad Siddiq came up, and took Rauf to the hospital, while he himself proceeded to the police station for the lodging of the report. He also narrated the earlier incident, but alleged that Anwar was the first to beat him, Hp bad, however, not lodged any report in this context.
8. He admitted in the crops-examination that when Anwar Beg and Aziz Beg had turned up at the shop, nobody else apart from them. Was there. Nobody had bone to intervene even later on. None of the accused had given any beating to him, though, they had the grievance against him for beating Anwar. He had also not raised any cries. He also unequivocally or conceded, that when Sated, the absconder had come to the shop, there was no knife or revolver in his hand. He also denied that they had caused any Injuries to Sated appellant, or that the latter had bled from his head. It was suggested to him, that he was not present at the time of the incident, but the suggestion came to be repudiated. He had, however, stated at the Court of Inquiry, duly brought on the record that he had seen only the first stabbing attack on his brother and thereafter he had gone to the shop to fetch the tube light base. It is an admitted position that the blood-stained earth was secured from a distance of about 35 pacts away from the shop. He had also stated there, that when he returned from the shop, he had found 10/15 persons standing, whose names he did not know. The assertion that when Anwar Beg and Aziz Beg had turned up, they were shouting "Kill Kill", is also not to be found in the F. I. R. It is true that there are no injuries on his person, but as his presence soon after the incident is vouched by P. W. Sikandar Beg, there is no reason to doubt that he had witnessed the incident.
9. The names of Anwar Ahmad Khan and Naseeruddin are not to be found in the F. I. R. Even Munawwar Khan has not chosen to mention them in his deposition. It also appears that both of them were examined by the police on 31-7-1967. Anwar Ahmad Khan on his own-showing lived 2 miles away. He states to have been in a barber's saloon near the wardat, and oar coming out, had witnessed the incident from a distance of 4/5 paces. He knew the complainant's family since 3/4 years earlier, but did not participate in the chase, or go to the police station. When he however learnt pf the death, the next day he not only participated in the burial, but went to the family of the deceased for the condolence. Naseeruddin is an employee in a barber's saloon, near the wardat.
He states to have known the parties for 14 or 15 years. He also was examined the next day though be states to have slept that night at the saloon. On his own showing there were six other barbers working with him, but have not entered the witness-box. There were 20/25 customers also, as he would have it at the Court of Inquiry. The appellants however found time to hear the entire talk and watch the entire incident. He says that he had not talked about the incident to any body and yet tie is examined by the police the next day. And why not a word about him from Munawwar Khan, in the F. I. R., or even in his deposition? They look to he speak-easy witnesses, unworthy of reliance.
10. Munawwar Khan makes out that the appellant Sated was empty---handed all along. Anwar Beg and Aziz Beg, had turned up a little later. Anwar Beg had a knife and Aziz Beg bad a danda. We do not find any independent support. Neither their shouting "Kill Kill" finds a place in the F .I. R. Nor any bating by the three appellants. Further he had stated at the Court of inquiry that he had seen only the first stabbing and then: ha had gone away to the shop to fetch the tube light base. Any way, he does not ascribe any knife blow to Anwar Beg, nor any specific injury to Aziz Beg. We have serious doubts at least about Anwar Beg having a knife in the open. "The incident after all had taken place outside the shop and the earlier incident was rather trivial in nature. It is also admitted by him, that the absconder had taken out the knife and later on the revolver, from inside. There is nothing on the record to show that the appellants know that he was armed with any deadly weapons. Munawwar Khan, even in his Examination---in-Chief, has clearly stated that when weed the absconder had come he had nothing in his hand.
11. It was argued by Mr. Ahsanul Haq Qureshi, and later on by fir. Hasan Inamullah for Saeed, that, if the appellants never knew about the presence of the knife, or for the matter of that, revolver, which was not cased by the absconder the appellants could not be fixed tap with any vicarious liability, for the acct of the absconder was individual and without any pre---concert or pre-arrangement.
Mr. Ahsanul Haq Qureshi, in support of his argument, cited Saadat Mian v. The State (PLD 1963 Kar.
745). A.I Mohammad and another v. The State (PLD 1965 Kar, 135), Yousuf and another v. The State (PLD 1963 Pesh. 118) and Shihab Din v. The State (PLD 1964 SC 177
12. In Saadat Mian's case, the two co-accused were stated to have pulled out the victim from the tonga, axed then were holding him by the collar and his legs, when Saadat Mian is alleged to have struck the fatal knife blown. It was found that the other two accused could not be imputed with the necessary ingredients of section 34, P. P. C. Because their intention could be no more than helping Saadat Mian in the thrashing. In A.I Mohammad's case, the firing was done by A.I Muhammad.
Soomer, the other accused had a hatchet but had done nothing more than brandish it in the air, to warn off the pursuers. There also, the pistol had been taken out by the co-accused from under an ajrak. The common intention was therefore ruled out though Soomer had the real motive to avenge his brother's death. In the Supreme Court case, the sudden use of the knife by one of the accused, was found to be his individual act. The case of Yousuf and another is some--what dissimilar but enunciates the principle in which common intention might be inferred.
13. Giving our anxious considerations to the evidence on the record, we have reached the conclusion, that the case against the appellants is not free from a reasonable doubt. We will, therefore, set aside their conviction and sentence and allow their appeals. They are on bail and their bail bond stand cancelled. The appeal under section 417, Cr. P C. Was only about the nature of the offence. To dilate on the nature of the injury, will be an essay in futility, in view of our conclusions. The Acquittal Appeal No. 59 of 1954, therefore, stands dismissed.