The three appellants Anwar Ahmed Khan, Raees Ahmed and Manzoor Salim Pervez along with Saim A.I were tried by the IIIrd Additional Sessions Judge, Karachi, on a charge under section 148, P. P. C.
And section 302/149, P. P. C. The Additional Sessions Judge by his judgment dated the 21st of May 1970, convicted the three appellants under section 326/149, P. P. C. And sentenced them to R. I. For five years and a fine of Rs. 500 (in default further R. I. For six months). A conviction under section 148, P. P. C. Was also recorded against each one of the three appellants who were sentenced to suffer R.
I. For two years. The terms of imprisonment were ordered to run concurrently. Saim A.I, who was tried along with the three appellants was acquitted.
2. The three appellants have filed separate appeals and at the time of hearing appellant Anwar Ahmed Khan was represented before me by Mr. A. K. Brohi who was assisted by Mr. I. Hashmi, appellant Raees Ahmed was represented before me by Mr. Khalid M. Ishaque and appellant Manzoor Salim Pervez was represented before me by Mr. S. Nasiruddin. The State has been represented before me by Mr. Murtaza Hussain.
3. Briefly stated the facts of the prosecution case are that at about 10-30 p.m. On the 23rd of June 1968, the deceased Maqsood Ahmed was sitting in a park located near the Model School in P. E. C.
H. S., Karachi. It seems that earlier at about 8 p.m. The deceased had had an altercation with appellant Raees Ahmed because it was stated that the deceased used to tease the girls of the locality. On account of such altercation the appellant Races Ahmed had threatened the deceased Maqsood Ahmed. It is then stated that at about 10-30 p.m. While the deceased Maqsood Ahmed was sitting along with prosecution witness Ahmed Azhar the three appellants along with the acquitted accused Saim A.I and three or four unknown persona cane up and at that time while appellants Races Ahmed and Manzoor Salim Parvez were armed with knives, the rest of the accused persons namely, Anwar Ahmed and Saim A.I were armed with lathis. Of the remaining assailants some are said to be armed with knives and the rest with hockeys and lathis. The prosecution story then is that Races Ahmed instigated his companions not to spare the deceased Maqsood and all the accused persons including the appellants thereafter, made an attack, which was in the nature of a concerted attack, on the deceased. It is stated that not only knife blows were given but even danda blows and hockey blows were inflicted on the deceased. There were other persons in the park and they raised cries but the assailants ran away from the scene while the deceased fell down on the road in an unconscious state. The story as given by Mahmood Ahmed, the brother of the deceased is that he along with his friend Hamid A.I and another friend, a Jordanian, were standing on the road and hearing the commotion they came up and found the deceased Maqsood Ahmed lying on the ground in an injured state. It is then stated by complainant Mahmood Ahmed that he asked his friends Hamid A.I and the other Jordanian student to carry his brother Maqsood Ahmed to the Hospital, whereas he himself went to his house and informed his father about the occurrence.
3. The story of the prosecution then is that the deceased was taken to the Jinnah Hospital for treatment and later on his brother Syed Mahmood Ahmed and his father, who has not been examined In this case, also reached the Hospital. In the meantime a Casualty Medical Officer of the Jinnah Hospital had sent a telephonic message to the Ferozabad Police Station informing them about the commission of this crime. Such information was recorded m the station diary (a copy of which has been produced as Exh. 87) and S. I. P. Ahmed Hussain reached Jinnah Hospital in pursuance of such information. It is then stated in the case that S. I. P. Ahmed Hussain made enquiries from the persons in the hospital and which persons accord--ing to the pattern of the case, would be the complainant and Hamid A.I and the Jordanian student; but no statement was recorded by the Sub Inspector. It seems that the police officer returned to the Ferozabad Police Station and at about 1-55 a.m. Which would be about 3-- hours after the incident, a statement of Mahmood Ahmed was recorded on a plain sheet of paper which has been produced on the record as Exh.
36. This state--ment was not directly taken down in the regular book maintained for registering the First Information Reports, and the only explanation that is available on the record has been provided by Sub-Inspector Ahmed Hussain, who has stated in his evidence that before registering the case he wanted to make a preliminary enquiry into this case from the witnesses. He has further stated that he did not directly incorporate the statement of the com--plainant in the 154, Cr. P. C. Register because the "complainant was confused'' and for such reason the police officer thought that if he recorded the statement in the first information report book the complainant might make a different statement. I will, however, advert to this aspect of the case later on, but presently suffice to say, that the same statement was reproduced in the first information report book and the time for registration in the first information report book is shown to be 1-55 a.m. In this first in--formation report the only persons who were named as witnesses are the complainant himself, Hamid A.I, and the Jordanian student, whose name as disclosed in the evidence appears to be Mustafa. It is however, stated in the first information report that Races and Pervez appellants were holding knives in their hands whereas Anwar, the appellant Zahid (not tried) and six/seven boys whom the complainant could identify by face but could not name, were holding hockeys and dandas in their hands and were running away while deceased Maqsood was lying in an injured condition. The names of any other persons stated to be present at the time of the incident have not been disclosed.
4. The deceased who was admitted in the Hospital on the 23rd of June 1968, viz. The day of incident, had three injuries on his person. Dr. Izharul Hag, whose evidence has been brought on the record of the Sessions Court under section 509, Cr. P. C. Has stated that the deceased had three injuries on his person when he was examined at 11-15 p.m. On the night of the incident. Of the three injuries two are on the left thigh and the third on the back of the chest in mid-line. With regard to the prognosis of the deceased he stated that the deceased had developed Sciatica in the left foot on account of the injury, perhaps on the thigh. However, it is stated in the evidence of the Medical Officer that the deceased was admitted in the Surgical Ward and left against medical advice on the 13th of July 1968, vie after 20 days. The Medical Officer has further stated that at that time one of the injuries had become septic and was bleeding from time to time. The evidence discloses that the deceased was conscious after one or two days of the incident and that the police used to come to the Hospital in con--nection with investigation. However, no statement of the deceased was recorded during all those 20 days that the deceased was in the hospital. When the deceased came back to his house on the 13th of July 1968, Sub---Inspector Ahmed Hussain recorded a statement of the deceased at his house. In this statement, which is a fairly detailed document, the deceased has named the three appellants along with Saim A.I, the acquitted accused and Zahid A.I and Moozam A.I, who were not put on trial. In this statement which was made by the deceased he has narrated the events in regard to the assault as follows: "I also got up and was running while Rates reached and attacked on me with the knife which struck on the left side of my back correspond--ing to the heart. I fell down. Manzoor Saleem made a second attack on me with the knife which struck on the left thigh. I got up and started running towards the lane but Races struck me the knife for the second time near the pole which struck on right thigh. Meanwhile his other companion, reached there and beated me with legs etc. On raising cries by me and the other people, Races Ahmad and others ran away towards the lane side. When Races had stabbed the knife (the) Zahid had also hit me with the hockey."
5. In the meantime the Investigating Officer had recorded the state--ments of Moeedul Hasan (P.
W. 2); Mumtaz (P. W. 6); Moeen Zafar (P. W. 7); and Alimad Azhar Mukhtar (P. W. 8) as eye-witnesses of the incident. Appellants Races Ahmed and Anwar Ahmed were arrested on the very night. The Police Officer also went to the house of the acquitted Saim A.I but the latter was not present. In the meantime the complainant Mahmood Ahmed had taken S. I. P. Ahmed Hussain to the house of one "Pervez" and such Pervez was found to be Syed Hussain Pervez son of Syed Riaz Hussain Zaidi. The said Pervez was interrogated by the Sub-- Inspector and it was found that he was the nephew of Mr. Jaffar Raza, a Deputy Superintendent of Police. Suffice to say that the said Pervez to whose house the complainant had led the police officer was not arrested and it was ultimately after a few days that the appellant Pervez surrendered in the Court to seek bail before arrest. The remaining accused person Sairn A.I, was arrested but in regard to such other persons who according to the evidence were concerned in the commission of this offence, suffice to say at this stage that they were not arrested or put on trial.
6. The deceased Maqsood Ahmed died on the 17th of July 1968, viz. Four days after his leaving the Jinnah Hospital against medical advice. The dead body was sent to the Police Surgeon Dr. Muhammad Umar Khan who found the following five injuries on his person: "(1) Old septic incised wound at the middle of right buttock on back 2--' x 1' x 2--' deep with six stitch marks, packing gauze removed from inside oozing of blood present.
(2) Healed scar back of chest at mid line 6--' below the seventh servical spine with clean cut margins scar, and 3 stitch marks present.
(3) Scar in the left thigh front-lateral side 7' below the iliac crack 2' long with 3 stitch marks.
(4) Tranverse scar just about left aliac chest 2--' x 1/8' no stitch mark.
(5) Partly healed scar on saecral region 2' x --' probably of bedsore (no cut margin no stitch mark)."
The Police Surgeon had given an opinion that the deceased died of hypostatic pneumonia and severe Anaemia. The Medical Officer explained that hypostatic pneumonia was the result of infection of the lower lobes of the lungs. It is also stated by the Medical Officer that at least three out of the five injuries that were found by him and have been reproduced above were surgical wounds. The Medical Officer has also stated that pneumonia may have been caused by the "oozing" of blood due to neglect of the patient or improper treatment.
7. There is no other incriminating circumstance against the appellants besides the evidence of the eye-witnesses and the dying declaration of the deceased. The eye-witnesses in the case are complainant Mahmood Ahmed, Moeedul Hasan. Mumtaz, Moeen Zafar, and Ahmed Azhar Mukhtar.
8. At the trial the prosecution mainly relied on the evidence of these five eye-witnesses corroborated by the dying declaration that had been made by the deceased on the 14th of July 1968, when he had left the Hospital against medical advice. There was no other incriminating circumstance in the nature of recovery, confession or of any other kind against the appel--lants.
The prosecution at the trial examined five witnesses as eye-witnesses. They are Mahmood Ahmed, the brother of the deceased and the first informant (P. W. 1); Moeedul Hasan (P. W. 2); Mumtaz (P. W.
6); Moeen War (P. W. 7) and Ahmed Azhar (P. W. 8). The last four among five witnesses claimed to be sitting near the deceased in the garden where he was attacked. In addition to these witnesses the prosecution examined two Police Officers namely, Sub-Inspector Ahmed Hussain (P. W. 10) and S. H. O. Altaf Hussain (P. W. 9). The investigation has been mainly done by Sub-Inspector Ahmed Hussain and after the death of the deceased the investigation was made over to S. H. O. Altaf Hussain who has only taken some formal stops for the purposes of sending of the case before the Court.
The evidence of Dr. Izharul Haq, the Casualty Medical Officer who had initially examined deceased Maqsood on the 23rd of June 1968, was brought on the record of the Sessions Court as Exh. 46; similarly the evidence of Dr. Muhammad Umar, the Police Surgeon who performed the post- mortem was also brought on the record of the Sessions Court as Exh.
49. The prosecution also examined Muhammad Hafeezullah, a Tapedar who had inspected the scene of occurrence and prepared a sketch. Besides these witnesses the remaining witnesses have given formal evidence.
9. Appellants have denied the entire prosecution case. Even one of them has stated that be was not present at the time of occurrence. They further alleged that the case has been engineered against them by the police. The appellant Anwar Ahmed Khan has however, stated that he had gone out of Karachi on the night on which the alleged incident is said to have occurred and in support he has examined two defence witnesses namely, Abdul Samad and Allah Bux. With regard to the eye-witnesses he stated that they were the friends of the complainant and had given evidence for that reason. Appellant Manzoor Salim Parvez has also denied the entire pro--secution case and has stated that he had been implicated on account of the influence of complainant Mahmood Ahmed with the police. He has however, stated that he has been implicated on account of mistaken identity. The appellant Raees Ahmad also denied the entire prosecution case and stated that he had been arrested from his house on the night following in incident. He produced an application which was made on his behalf for bail, which application had been sent to the Medical Superintendent of Jinnah Hospital, Karachi, on the 26th of June 1968, enquiring about the state of deceased Maqsood Ahmed and on the 29th of June 1968, an Assistant Professor of Surgery in the Jinnah Hospital certified that Maqsood Ahmed was very well and was completely out of danger to life or limb.
10. As stated above the main evidence in the prosecution case consists of the ocular evidence furnished by the five eye-witnesses. Before I proceed to consider the evidence each one of these witnesses independently I must state that in the first information report lodged by Mahmood Ahmed after 3J hours of the incident the names of Hamid A.I and a Jordanian student whose name has transpired in the evidence as Mustafa were men--tioned as the witnesses who had seen this occurrence. I may state that the names of Moeedul Hasan, Mumtaz. Moin Zafar and Ahmed Zafar had not been mentioned in the first information report. I may also state that Hamid A.I and the Jordanian student Hasan Mustafa have not been examined by the prosecution. Further to this it is the prosecution case that the complainant went to his house to inform his father Ansar Hussain in regard to the deceased having received injuries while Hamid A.I and Hasan Mustafa had carried deceased Maqsood Ahmed to the hospital but Ansar Hussain has also not been examined.
At this stage I may also refer briefly to the evidence of Hafeezullah the Tapedar who has given evidence in regard to the scene of occurrence. This prosecution witness has stated that the nearest road light from the place of incident was installed at a distance of 65 paces which would roughly be about 50 yards. It is also stated in the evidence that within the part itself there is no light but some lights are installed at the outer hedge of the park.
I may also state that in the evidence it has transpired that besides the three appellants there were other persons namely, Zahid, Moozam and Manzoor who had taken part in the transaction and given either knife injuries or lathi blows to the deceased. These three persons namely, Zahid, Manzour and Moozam have not been arrested and tried. No reason indeed has been assigned by the prosecution for not proceeding against them.
11. In the pattern of the prosecution evidence it clearly appears and is indeed stated by each one of these five witnesses that deceased Maqsood was given knife injuries and also injuries with hockeys and dandas. The medical evidence that has been brought on the record shows no other injury on the person of the deceased except three stab wounds; two on the thigh and one on tie back of chest. Suffice it to say that the medical evidence does not at all support the prosecution case that any injuries with lathis, dandas or hockey sticks were given to the deceased. The post---mortem report however, shows five injuries on the person of the deceased but two out of these five injuries are clearly relatable to surgical wounds that the deceased received on account of the surgical treatment that was administered to him in the hospital. Suffice to say that even Dr. Muhammad Umar Khan who carried out the post-mortem examination did not find any injuries on the person of the deceased which may have been caused by any blunt weapons.
12. With this background in relation to ocular evidence I now proceed to consider the evidence of the complainant Mahmood Ahmed. This witness is a brother of the deceased and on his own showing he was standing at a distance of about 100 paces from the place where his brother, the deceased, was lying injured. He states that at that time he was stand--ing with Hamid A.I who as stated above has not been examined by the prosecution. This witness has further gone on to say that he saw six persons running with their backs towards him and they were running with a speed.
He further stated that he did not follow those persons. What is more that even in his examination- in-chief he has stated that he made enquiries from those who were present, without naming those persons; as to who had injured his brother and one out of those persons, who also has not been named in his evidence, stated that the five/six persons who were running away had beaten the deceased. This person was named by the complainant as Moinuddin and although no Moinuddin has been examined in this case one Moeedul Hasan has been examined and for that reason there is possibility that it was prosecution witness Moeedul Hasan who informed the complainant with regard to assailants. But according to the com--plainant, Mocedul Hasan gave him the names of Saim and Zahid as the assailants of his deceased brother. Saim has been acquitted by the trial Court and Zahid was not put on trial. The complainant claims to have identified Raees Ahmed and Parvez Saleem when they were running away with their backs towards him. I have no hesitation in rejecting such identification. But there are certain other features in the evidence of the complainant that render his evidence incredible. First of all if he had been present at the scene of occurrence I would have normally expected him to carry his deceased brother to the Hospital instead of asking Hasan Mustafa and Hamid A.I to carry his brother to the hospital. He could have found it very convenient to have sent out of these two boys to inform his father Ansar Hussain, and he may have carried his deceased brother to the Hospital; instead what had happened was quite converse. In any case on such particulars he Is not at all supported because neither Hamid A.I nor Hasan Mustafa nor his father Ansar Hussain have been examined. It leaves me with a feeling that the complainant Mahmood had come later on and had not seen either the incident or his brother lying injured on the road as is being stated by him. What is more that in the committal Court he had stated that Hamid A.I had given him the names of the accused persons on the next morning. If Hamid A.I had been present with him and had indeed come to the place where the deceased was lying injured, then there appears to be no reason why Hamid A.I should have disclosed the names of the assailants to the complainant on the next day. However, on any vision of this matter it is very clear that complainant Mahmood Ahmed did not see the incident at all.
The most interesting feature about the evidence of the complainant is that although Sub-Inspector of Police Ahmed Hussain went to the Jinnah Hospital on receiving a phone massage, the complainant who was present in the Jinnah Hospital did not make any statement or in any case no statement was recorded in the hospital. It is then stated by Ahmed Hussain that he brought complainant Mahmood Ahmed to the police station and first recorded his statement on a plain sheet of paper for the reason that the complainant was confused and the Sub-Inspector thought that if he recorded his statement straightaway in the 154, Cr. P. C. Book, the complainant might make a different statement. This would clearly show that the report lodged by Mahmood Ahmed besides being suspicious is definitely belated. If Mahmood Ahmed had seen the incident or had known about the circumstances of the transaction there appears to be no reason why he should not have made a statement to Sub-Inspector Ahmed Hussain in the hospital and why Sub- Inspector Ahmed Hussain realising the con--fusion of the complainant should have found it necessary to record a sort of rough statement of the witness before incorporating the same in the First Information Report Book. The prosecution witnesses Mumtaz and Moeen Zafar have, however, clearly stated that Mahmood was not present at the scene. I do not wish to mean that I am relying on the evidence of Mumtaz and Moeen Zafar but suffice to say that even the prosecution witnesses have clearly stated that the complainant was not available on the spot.
However, Mahmood Ahmed, the complainant in the committal Court had made a statement to the following effect:--- "Hamid told me those names in the morning after recording my F.I.R. I had enquired from Hamid at the incident about the names of those persons and he told me that he will tell me after enquiries. In the morning, he only mentioned two names to me. I did not mention before the police about enquiries of names through Hamid at the time of recording the F.I.R. I had told police those two names in the morning when I came to know from Hamid in the morning."
The above passage which I have reproduced would clearly show that until the next morning the complainant did not know the names of the accused persons or the witnesses.
It is further admitted by the complainant in his evidence that appellant Anwar was not known to him and in spite of that no identification parade has been held.
For all these reasons I am of the view that complainant Mahmood Ahmed was not present on the scene and have not given true evidence in this case.
13. The next witness of the prosecution is Moeedul Hasan. His evidence is that he was sitting in the park when he heard some noise and found some boys running towards the park. He claims to have identified appellants and Saim A.I. He has stated that Zahid and Moozam were also with them.
According to him the two persons Zahid and Moozam were armed with knives. With regard to Anwar Ahmed and Pervez he has stated that they were armed with dandas.
The name of this witness has not been mentioned in the first informa--petition report. However, the complainant Mahmood Ahmed states that it was this witness who gave him information with regard to the identity of the accused persons. Witness Moeedul Hasan has on the other hand not supported the complainant on that aspect of the case. What is more that his evidence in the Sessions Court is contradicted by his evidence in the committal Court on several material particulars. In the Sessions Court he stated that appellant Races Ahmed was armed with a knife but in the committal Court he had not stated so. This witness also stated that the deceased was carried by Hamid A.I and a Jordanian boy to the hospital but as stated above these two witnesses have not been examined. In the committal Court he had not stated that appellant Races Ahmed had instigated the others to attack deceased Maqsood but in the Sessions Court he had stated so.
This witness has also stated that no person chased the assailants after the incident. This statement again appears to be at variance with the case that has been set up by the prosecution. What is more that his police statement was recorded after 24 hours. His evidence is also contradicted by the medical evidence because while he states that dandas, lathis and hockey blows were given to the deceased, no such injuries were found on the person of the deceased. The most important feature of the evidence of this witness is that he has alleged that only two blows had been given to the deceased with a knife and these blows were given by Zahid and Moozam. None of these two persons was sent up for trial. In regard to the rest of the assailants, which would include all the appel--lants in this case, he has stated that they gave danda and laths blows. This would show that in so far as the case against the three appellants is con--cerned this witness has clearly stated that they used dandas and there are no danda injuries on the person of the deceased.
14. The next witness is Mumtaz. This witness has not identified Races Ahmed appellant. He has further stated that knife blows were given to deceas--ed Maqsood by Moozam who is not an accused person. He went on to state that the remaining boys showered danda blows on the deceased. Although he identified appellants Anwar Ahmad and Salim Parvez he has not stated as to what part did they actually take in the transaction. He has further stated that he did, not see the complainant Mahmood at the place of occurrence. He has stated that after seeing the incident he went away to his house and did not even know as to what happened to Maqsood after he fell down. The witness is a previous convict and has a conviction under section 411, P. P. C. To his discredit. What is more that he was examined by the police on the next evening and his name is not mentioned in the first information report. His evidence is also directly contradicted by the medical evidence on the record.
15. The next witness is Moeen Zafar. This witness has again given a different version about the incident and it will be of benefit to quote a passage from his examination-in-chief:--- "Races then stabbed Maqsood with knife on his back, another stab blow was given by Salim Parvez.
At that time Maqsood was standing. I was standing little away from him. Zahid gave third blow on the leg of Maqsood. Moazzam gave knife blow on the back of Maqsood. Anwar and Saim A.I had dandas with them, there were 3 or 4 boys with sticks who were not known to me. They also delivered blows to Maqsood. Some one shouted that I was also with Maqsood, Thereafter they had beaten me."
The above passage of his examination-in-chief will clearly show that this witness received injuries.
There is no medical evidence in support of the same and indeed no witness has stated that any other person besides the deceased received any injuries. I would at least have expected this witness to have made a report at some police station or to have gone to some Medical Officer for treatment but he did not take any treatment nor did not lodge any report. This witness further went on to say that Zahid (not put on trial) had kept the pointed knife at his back and he had caught that knife from Zahid. Although this witness in the Sessions Court stated that it was appellant Races Ahmed who gave a knife blow to the deceased he had not identified him in the committal Court.
When confronted with this omission be went on to state that Races Ahmed who had attacked the deceased was a different person from appellant Races Ahmed who was being tried. What is indeed more surprising about the evidence of this witness is, that with regard to appellant Parvez he stated in cross-examina--petition that this appellant had stabbed the deceased Maqsood on the neck. In the committal Court he had stated that the appellant had given knife blow to Maqsood deceased on the face which was dragged up to neck. There is no injury on the person of the deceased either on the neck or on the face. This witness has further stated that he did not see complainant Mahmood at the place of occurrence. The most astonishing part of his evidence is that in the committal Court he had clearly stated that deceased Maqsood was not injured in his presence and if that statement is to be believed it will clearly appear that he was not present at the time of the incident. I have therefore, no hesitation in rejecting the evidence of this witness.
16. The last eye-witness is Ahmed Azhar. This witness has stated that four persons namely appellant Races Ahmed, Parvez and Zahid and Moazzam (not tried) had assaulted deceased Maqsood with knives. That would show that the deceased Maqsood at least did receive four incised injuries but the Medical evidence does not support him. The most inter--esting feature of his evidence is that when he was asked by the Public Prosecutor as to whether these four persons who according to him were armed with knives attacked or assaulted deceased Maqsood his reply was "take it that they assaulted Maqsood". He went on to state that the accused persons removed Moeen Zafar and took him with them. Again in his cross---examination he was confronted with his statement before the committal Court where he has said that only Zahid and Moazzam had knives and the remaining persons had dandas and hockey sticks in their hands. He replied that he did not remember having made such a statement before the com--mittal Court. However, in the committal Court this witness had failed to identify appellant Raees Ahmed and the acquitted accused Saim A.I. With regard to the escape of the accused persons from the scene this witness has given still a different version by stating that there was a jeep standing by and all the culprits ran away in the jeep. This story is again not supported by .Any other witness. With regard to the number of assailants he stated that they were nine in number. This too is an entirely different version of the incident. In regard to the part taken by appellant Parvez he has made an improvement again in the Sessions Court by attributing that Parvez had stabbed deceased Maqsood with a knife, a statement which he had not made before the committal Court.
17. Summing up I find that the evidence of the five eyewitnesses is so conflicting and contradictory that it Is difficult to rely on them. I also find that sufficient light did not exist at the scene of occurrence. I have entertained serious doubt even with regard to the presence of these witnesses but even if one is to assume that some of them were present I have no hesitation in stating that either they did not see the incident or they did not identify the actual assailants. These witnesses have tried to make exaggerations and each one of them has given a different version of the incident. They have attributed different weapons to the appellant. They have also stated that the party that attacked the deceased consisted of more than six persons and some of them were armed with lathis and dandas and such persons gave laths and dandy blows to the deceased but as it is the deceased did not have any injury on his person which could he stated to have been caused by laths or danda. The first information report was considerably belated and the persons who were named as witnesses in the first information report were not examined. The father of the deceased has also not been examined. There is absolutely no reason why the prosecution has withheld the evidence of Hamid A.I and Hasan Mustafa. These persons are stated to be the persons who had carried the deceased from the spot to the Hospital and such fact is also borne out from the entry in the station diary of Police Station, Ferozabad wherein it is stated that Hamid A.I had brought the deceased to the Hospital.
Coming to the evidence existing against each of the appellants I may straight away state that as far as appellant Anwar Ahmed is concerned the witnesses unanimously have stated that he was armed with a danda and no dandy blow has been found on the person of the deceased. Coming to the case against appellant Races Ahmed I find that three out of the five witnesses have not identified him and in fact two out of those three stated that the appellant Races Ahmad was not the same Raees Ahmed who had caused injuries to the deceased. Coming to the evidence against Parvez the story is even more interesting. The complainant had in his first infor--mation report named a person "Parvez". The full name of the present appellant Parvez is Manzoor Salam Parvez. It would show that his first name is Manzoor. But what is more that the complainant Mahmood along with Hamid A.I, the person who had taken the deceased to the hospital had taken Sub-Inspector Altaf Hussain to a house located at No. 142-0, P. E. C. H. S., near Sir Sayed Road and had pointed out that house as the house of Parvez. On such state of affairs the Police Officer actually interrogated that Parvez but ultimately let him off: It is stated that the said Parvez was a nephew of a Deputy Superintendent of Police at Karachi. Be that as it may, the fact is that complainant had taken the Police Officer to a particular house and shown the same as the house of assailant Parvez. One Parvez was actually found from that house and was interrogated by the Police Officer and subsequently let off' This would show that the identity of the appellant Parvez is also not established.
18. The next piece of evidence against the appellants is of the dying declaration. This dying declaration was recorded on the 14th of July 1968, viz. After nearly 20 days of the incident. It is stated by the complainant Mahmood that during all this long period of 20 days the deceased was unconscious. This statement is not at all supported by the medical evidence and on the contrary is contradicted by the medical evidence. Looking to the location of the injuries on the person of the deceased I have no hesita--petition in coming to the conclusion that the injuries that were received by the deceased were not of a nature as might have rendered him unconscious, and that too for a period of 20 days. What is more that when Raees Ahmed made an application for bail the same was forwarded to the Jinnah Hospital and a note appears in the handwriting of an Assistant Professor from the Jinnah Hospital stating that the deceased was absolutely out of danger and was progressing satisfactorily. The evidence also discloses that the Investigating Officer had been going to the Hospital very frequently and during all this period of 20 days he did not find it convenient to record any statement of the deceased. It is only when the deceased left the Hospital against medical advice and came to his house that the Investigat--ing Officer reached and recorded his dying declaration. Some of the eye witnesses have stated that they used to go to see deceased Maqsood in the Hospital and they found him to be conscious. This considerable delay in recording of the dying declaration is completely unexplained and creates a doubt. It was recorded when the deceased had returned to his house and the possibility of prompting cannot be reasonably excluded. The admitted case is that he had returned to his own house where his brother, the complainant was present. What is more that it should not have been difficult for the Police Officer in the City of Karachi to have obtained the services of a Magistrate for the recording of a dying declaration. Coming to the text of the dying declaration I find that there are material variations in the same as compared with the other evidence in this case. In any case the dying declaration mentions the names of Zahid A.I arid Moazzam A.I as the persons who were also concerned in the transaction but they were not sent up by the police to stand their trial. It would therefore, be reasonable to infer that as far as this dying declaration is concerned the prosecution also doubted the contents of the same in so far as the same related to Zahid and Moazzam. What is more that the dying declaration makes no mention of the use of dandas by any of the accused persons who had come and assaulted him. In the dying declaration the deceased had also stated that he regained senses in the Hospital and if that was so his dying declaration should have been recorded much earlier. Moreover, on a reading of the dying declaration I find that there is an attempt on the part of the declarant to make the statement conform to the medical evidence in this case. This appears to be a little bit of padding in the case. Moreover this dying declaration is not signed by the deceased. The deceased had made this statement when he was in complete senses and when in fact he had of his own accord and against medical advice left the Hospital and come to his house. This would show that the deceased was in complete senses and in that case I would normally have expected the deceased to have signed the dying declaration. There are no attesting witnesses also for this document. I have for these reasons doubted not only the authenticity but even the genuineness of this document that ha been treated by the prosecution as a dying declaration in this case.
19. For all the above reasons, even Mr. Murtaza Hussain, the learned State counsel has not supported the prosecution cast and the judgment of the trial Court against the appellants. He has expressed that the evidence of the eye-witnesses was doubtful and similarly the authenticity of the dying declaration was open to question.
20. For all the above reasons I hereby set aside the judgment, con--viction and sentence that the trial Court has imposed on the appellants. The appellants are hereby acquitted. They are on bail and they need not surrender.
21. On the conclusion of the hearing of this case on 4th of December, 1973, I had passed a short order allowing these appeals and I have now recorded my reasons for the same.
22. Appeals allowed.