The appellants Wali Muhammad and Dilwash were tried by the learned S. D. M. Old Town, Karachi empowers under section 30, Cr. P.C. And were convicted under section 307 read with section 34, P.
P. C. They were both sentenced to five years R. I. And tea pay a fine of Rs. 3,000 or in default to suffer rune year more lt. s. The fine way ordered to be paid as compensation to the injured victim in this case, namely, Juma (P. W. 9). The appellants feeling aggrieved by their convictions and sentence have now against them.
2. The facts of the incident as disclosed in the F. I. R. Lodged by complainant Khudadad nephew of the injured P. W. Juma are that on the .Day of the incident i.e. 27-9-1967 at 7 a.m. Both the complainant and injured P. W. Juma who were residents of Jam Kanda village were on their way from their village to the bus stop at Malir in order to go to Karachi. Since the complainant had trouble its his leg the injured P. W. Juma was fling a bit ahead of him while the complainant was behind the injured. When P. W. Juma reached near the garden of Lal Muhammad both the appellants who are also residents of the village as the complainant as well as injured, came from front. They both were armed with hatchets and soon after their arrival they made murderous attack on Juma with hatchets. Appellant Dilwash gave one hatchet blow on the head of P. W. Juma due to which p. W. Juma fell down on the ground and thereafter appellants Dilwash and Wali Muhammad both gave numerous hatchet blows to Juma. At that time the complainant was at a distance of 10 yards from Junta. He went nearer in order to intervene whereupon appellant Dilwash told him that he should not come near else he would kill him. The complainant, therefore, kept quiet due to fear and later raised cries whereupon several people arrived from the village including Bandoo, Dad Karim and others. The complainant also gave the motive for the crime in the F. I. R.
Which was that appellant Dilwash suspected the injured P. W. Juma of having illicit connection with his wife so he (appellant Dilwash) in collusion with his nephew appellant Wah Muhammad caused injuries to Juma with the intention to kill him. There. After injured Juma was removed by the complainant first to the Malir City outpost where the complainant lodged his F. I. R. Which is Exh. P/A on record at 9 a.m. The injured was referred to the hospital for treatment etc, On the same day S. I.
P. Ghulam Lutfi (P. W. 7) received the F. I. R. Of this case and proceeded to the scene of offence where he prepared its mashirnanza which he has produced as Exh. 3/A. He then recorded the statements of witnesses and arrested both the appellants. After completing the investi--gation he put up interim challan against both the appellants in the Court. Thereafter the final challan was submitted to the same Court by S. H. O. Karimuddin Siddiqi (P. W. 6). Subsequently, the appellants took their trial with the result as already mentioned above.
3. Both the appellants have denied their guilt and professed innocence in their statements under section 342, Cr. P. C. They have ascribed the case due to enmity and also alleged that they have been falsely implicated in the case.
4. The appellants examined two witnesses in defence who are (1) Manoo and (2) Ramzan.
5. There cats be no manner of doubt that P. W. Juma was in fact injured by means of hatchet and lathi blows as the medical evidence establishes this point beyond all reasonable doubt. The injured Juma was examined in the Jinnah Post Graduate Medical Centre, by Dr. M. Hussain Shariff who made out medical report of the injuries which has been produced as Exh. 8/A. This doctor subsequently remained no more in service and his whereabouts were not known at the time of the trial of the appellants hence the prosecution examined Dr. Mirza Humayoon Bakht (P. W. 8), who proved the medical report Exh. 8/A of Dr. M. Hussain Shariff. According to this medical report the injured Juma was found to have the following injuries on his person:-- " (1) I Incised wound on the centre of head i.e. Bone 4' x -- ' x -- '.
(2) Incised wound on the forehead i.e. Frontal bone 2" x ----- x --.
(3) Lacerated wound on the lower corner of mouth -- x -- x -- '.
(4) Incised wound on left hand palm 2" x -- ' x -- '.
(5) Lacerated wound on the lower forearm --x -- '+ This report also shows that injuries Nos. 1 and 2 were grievous in nature and Nos. 3, 4 and 5 were simple. The report further shows that the injuries Nos. 1, 2 and 4 could have been caused by a sharp-edged weapon while injuries Nos. 3 and 4 could be caused by a hard and blunt substance.
The medical evidence it will be appreciated shows that the injured P. W. Juma has been caused injuries by at least two culprits each of whom carried different weapon i.e. Most likely hatchet and a lathi or a danda.
6. The prosecution has examined complainant Khuda Dad (P. W. 1), Pir Muhammad (P. W. 2), Usman Hotelwalla (P. W. 3), Lai Muhammad (P. W. 4), Ghulam Muhammad (P. W. 5), S. H. O. Karimuddin Siddiqi (P. W. 6), S. I. P. Ghulam Lutfi (P. W 7), Mirza Humayoon Bakht C. M. O. (P. W. S) and the injured Juma (P. W. 9). Of these witnesses the relevant evidence on which the prosecution relies to connect the present two appellants with the crime is the evidence of complainant Khuda Dad and P. Ws. Pir Muhammad, Usman, Lai Muhammad, Ghulam Muhammad and injured Juma.
7. As will be discussed and shown hereafter even the injured himself and the other P. Ws. Including the complainant have given a go-by to the prosecution case as disclosed in the F. I. R. And they have stated other facts which are not mentioned in the First Report. I will first take up the evidence of the complainant Juma himself. He deposes substantially that an the day of the incident at about 7 a.m. He was going towards bus stop near a hotel in his village for boarding in a bus in order to come to Karachi. He was just sitting for urinating in the garden of P. W. Lal Muhammad when the two appellants came to him and appellant Dilwash had a hatchet with which he gave him hatchet blows on his head and the other appellant Wali Muhammad had a danda, with which he gave the complainant blows on his back which, according to him, was broken. Appellant Dilwash it is alleged gave the complainant four blows and the complainant's skull bone was broken. The complainant also said that appellant Wali Muhammad had given him several lathi blows on various parts of his body and he started bleeding but did not raise a cry. Due to injuries he became unconscious. He also stated that he knew the appellants since before the incident as they were residing in the same village Jam Kando where he was living. The complainant also further said that he had previous enmity with the appellants over the land in Makran as they all belonged to the same place in Makran. The complainant lastly said that he had become senseless and regained his proper senses after about a month or so. In his cross-examination he admitted that he did not see any one coming to his rescue at that time. So that it will be seen that. The complainant was all alone by himself at the time, he alleged, both the appellants caused him injuries with a hatchet and Danda, as a result of which he had become unconscious., He also did not say that the complainant Khuda Dad was in his company at the "time of the incident as has been shown y the complainant Khuda Dad is the F. I. R. Facts from which have beet narrated already above in the paragraphs in the beginning of the judgment.
8. Complainant Khuda Dad in his deposition substantially has said that on the day of the incident at 7 a.m. He was present at a hotel near a bus stop. Again he added that he was easing himself when there was a commotion. He rushed to that spot. According to him there was fight between Juma on the one hand and both the appellants on the other. Appellant Dilwash had a hatchet with him with which be struck Juma on the head. Appellant Wali Muhammad who was also there struck Juma too. Wali Muhammad appellant also had a hatchet with him. Juma fell down and the appellants ran away. Thereafter Juma injured was taken to the police station and the complainant says that he lodged his report Exh. P/A there. According to him none else was present at the time of the occurrence and others came when the appellants had run away. However, he added that Pir Muhammad saw the occurrence from some distance. In his cross-examination the complainant said that he was not with Juma from the village. Again he added that he was ahead of Juma. It will, therefore, be seen that the complainant has not adhered to the facts of the incident as given by him in his First Information Report. He has also not said to have been in the company of the injured P. W. Juma by the latter in his evidence, It appears, therefore, that the complainant Khuda Dad is telling a lie that he saw the fight between injured Juma and the appellants who gave the latter injuries with hatchet that they carried. Again as regards the weapons of the appellants who are said to be the culprits by him he stated that both of them had hatchets whereas the complainant has stated that one of the culprits had a hatchet and the other had a danda. It is quite obvious, there--fore, from the above circumstances that Khuda Dad was not present at the time of occurrence alongwith injured P. W. Juma and he has come to the scene of offence subsequent to the occurrence when the culprits must have run away. He is giving evidence against them implicating them in his deposition at the trial which runs counter to his first report but this evidence also he gave, in my opinion, because he is admittedly the nephew of the injured P. W. Juma. For these reasons then the proper conclusion to draw would be that the evidence of the complainant has to be discounted and kept out of consideration.
9. The next witness is Pir Muhammad (P. W. 2) who has also not supported the prosecution and was declared hostile by the prosecutor. However, this witness in his very short examination-in-chief states that at 7 a.m. He was opening his shop and he rushed to the spot on hearing the alarm. But he came back to his shop and did not see the occurrence. He then added that appellant Wali Muhammad had a lathi and .The other culprit had a hatchet. After this is his deposition appears the request of the P. S. I. Who wanted to cross-examine the witness having declared him hostile.
However, in his examination-in-chief regarding appellant Wali Muhammad he said that he had a laths and the other culprit had a hatchet as the state--ment stands disconnected in context with any other accusation and by itself does not lead to any conclusion as to bow this witness Pir Muhammad saw lathi with appellant Wali Muhammad and hatchet with the other culprit. This bare conclusion, therefore, in my opinion, is of no help to the prosecu--petition. The witness has been already declared hostile as such his evidence is also to be discounted.
10. Next witness is P. W. Usman Hotelwalla. He substantially deposes that more than a year or two years before he gave evidence he was present in his hotel. He saw both the present appellants passing beside his hotel early in the morning. According to him Dilwash had a hatchet while appellant Wali Muhammad had a laths. He then added that many persons gathered and he enquired of then as to what the matter was and they told him that Dilwash and Wali Muhammad had beaten up Juma. This last statement of fact is obviously hearsay and could not be taken against the appellant as an incriminating circumstance. The only evidence thus of this witness Usman is that he saw both the appellants passing beside the hotel early in the morning but in his early in the morning but in his cross-examination he stated that the appellants used to pass from beside his hotel while going and coming daily. This witness has also not stated the time when he saw the appellants passing beside his hotel and it was their usual way to pass therefore it cannot be said from the evidence of this witness P. W. Usman that he saw the appellants in such a way that they can be connected with the present crime. Thus the evidence of this witness Usman is also of no assistance to the prosecution.
11. Then there is the evidence of P. W. Lal Muhammad. This witness substantially has deposed that about 1i years before he gave evidence he was sitting in his house, He heard that Wali Muhammad and Dilwash had beaten up Juma. Accordingly, he rushed to the spot and found Juma lying injured. He was unconscious. His nephew (meaning complainant Khudadad) came there and asked this witness to lodge a report with the police and Juma was sent to the hospital. This witness lastly said that the occurrence took place in his lands and beside his garden. The evidence of this witness leaves a clear impression on my mind that he must be the very first person who reached the scene of crime when he found injured Juma lying unconscious whereafter the latter's nephew, namely, complainant Khudadad came there as this witness deposes. But it is obvious that this witness Lal Muhammad did not see the occurrence or the culprits. Therefore, the total effect of his evidence is that complainant Khudadad reached the scene of offence after this witness had reached there and seen the injured Juma lying unconscious beyond which this witness does not implicate the appellant. His testimony too does not, therefore, implicate the appellants.
12. Next witness is Ghulam Muhammad who has not supported the prosecution at all and he was declared hostile as he said that he did not see as, to who had assaulted and injured Juma. In his cross-examination byhe prosecutor nothing has been brought out to suggest that he was an eye- --witness to the incident as even the complainant or the injured for that matter not having said that he was an eye-witness. In the cross-examination of this witness Ghulam Muhammad by the P.
S. I. He was contradicted with his police statement to the effect that he had told the police that Dilwash had suspected injured Juma to have illicit connection with his wife. This state--ment and confrontation of the witness by the P. S. I. With his police state--ment was objected to by the defence counsel and I will say rightly so as such this statement cannot be considered as relevant piece of evidence. Thus, it cannot be said that this witness Ghulam Muhammad has said anything to implicate the appellants and it cannot be taken that he has also said anything bout the motive for the crime also.
13. The discussion of all the above evidence will show that the injured Juma is the only eye-witness to the occurrence and he implicates both the appellants without being supported by any other evidence to corroborate him. The question is whether the solitary word against the appellants should be relied upon or not? In my opinion, since he has admitted in his own examination-in-chief that he has got enmity with the appellants over land Makran therefore, it is quite likely that he might be implicating the appellants due to that enmity. At least this doubt does arise in my mind on his solitary testimony. I would, therefore, give the benefit of doubt to the appellants and hold that they are not the guilty persons. I am supported in this conclusion also by the defence evidence of two witnesses produced the appellants, these witnesses are Manoo and Ramzan. Defence witness Manoo, inter alia deposes that on the day of occurrence at 7 a.m. He was going to Karachi alongwith another defence witness Ramzan and when they reached in the garden of P.W. Lal Muhammad they heard shouts of cries and rushed towards it where they saw one man Juma lying injured on the ground. They also saw two persons who were running with hatchets in their hands but they were not the appellants. Many people then collected on the spot while Juma was unconscious and could not speak. This witness has not been shaken in his testimony in his cross- examination by the P. S. I. Who conducted the prosecution. The next witness Ramzan has, inter alia deposed that while he was going to Karachi at 7 a.m. On the day of the occurrence alongwith the defence witness Manoo and when they reached near the garden of P. W. Lal Muhammad they heard cries and they rushed to the spot where they found Juma lying injured and unconscious on the ground. These witnesses also saw two persons running with hatchets in their hands but they were not the present two appellants according to him. In his cross-examination he further stated that he saw these two running persons from behind but also saw their faces and could recognize them by face. This witness has also not been shaken in his cross-examination by the P. S. I. I, therefore, find that the defence evidence also goes to show that most probably the appellants are not the guilty culprits and they have been involved in this case due to enmity of the injured Juma with them. At least this inference is reasonably possible from the evidence as a whole on the record.
14. I would, therefore, for the foregoing reasons give the benefit o doubt to the appellants and acquit them. Their convictions and sentence are set aside. They are in jail and they shall be released forthwith unless required to be detained in connection with any other matter.