' Appellant Muhammad Aslam, co-accused Muhammad Siddique (since acquitted) and Muhammad Yaqub (since dead) were tried by Miss Yasmeen Abbasi, IInd Additional Sessions Judge (West) Karachi, for the offence under section 302/307/34, P.P.C. Muhammad Yaqub, who was the main accused in this case died during the pendency of the case and consequently, the case against him abated. The case against co-accused Muhammad Siddique was not proved and he was acquitted. The appellant was, however, found guilty for the offence under section 300, P.P.C.
(304, P.P.C.) and vide judgment, dated 15-6-1989 was sentenced to suffer R.I. For three years. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. Deceased Haji Sadique owned 'New Madina Hotel' situated near Oil Terminal, Keamari, Karachi.
Accused Muhammad Yaqub (since dead) owned the adjoining hotel known as Aamir Hotel'.
Salahuddin (P.W.1) and Syed Nizamuddin (P.W.3) worked as waiters in 'New Madina Hotel', while accused Muhammad Siddique (since acquitted) worked as waiter in `Aamir Hotel'. It is alleged that on 21-7-1985 Salahuddin (P.W.1) served breakfast to a driver of Mazda van, who left without making payment and returning crockery. On 22-7-1985 when the said driver again came to 'New Madina Hotel', Salahuddin (P.W.1) asked from him about the crockery and charges of breakfast and then it transpired that the money and crockery were received by accused Muhammad Siddique (since acquitted) waiter of `Aamir Hotel', which resulted into a quarrel between Salahuddin (P.W.1), and accused Muhammad Siddique (since acquitted). Due to intervention of deceased Haji Sadique, the proprietor of 'New Madina Hotel' the quarrel subsided. However, on the same day at about 10 p.m.
Salahuddin (P.W.1) went to parking place to take order for tea when he was given beating by accused Muhammad Siddique (since acquitted) and his unknown companions by means of iron pipes and iron bars. There was bleeding from the wounds of Salahuddin (P.W.1), who complained about it to deceased Haji Sadique who was sitting at the counter of his hotel. Deceased Haji Sadique then complained to accused Muhammad Yaqub (since dead) who was sitting in his hotel.
There was exchange of hot words and it is alleged that on the instigation of the present appellant accused Muhammad Yaqub (since dead) took out a revolver and fired four shots which hit deceased Haji Sadique who fell down near the counter of his hotel. Both Haji Sadique and Salahuddin were shifted to Civil Hospital Karachi in a taxi car. Muhammad Suleman Mirza, S.H.O.
Jackson Police Station was informed on telephone about the arrival of these injured persons by concerned Medical Officer; who rushed to Civil Hospital Karachi, where he recorded 154, Cr.P.C.
Statement of Syed Nizamuddin on 23-7-1985 at 12-15 a.m., which was subsequently incorporated in 154, Cr.P.C. Book maintained at police station. Accused Muhammad Yaqub (since dead) appeared at police station who produced his licensed revolver containing four empties and two live bullets which included one missed one. Such Mashirnama was prepared. The Police Officer then inspected the Wardat and prepared such Mashirnama. On 27-7-1985 Haji Sadique died in the hospital and his inquest was held. On 26-7-1985 the present appellant was arrested. After completing the investigation all the three accused were challaned.
' Muhammad (P.W.2), Syed Nizamuddin (P.W.3), Salim (P.W.4), Hazrat Ali (P.W.5), Dr. Imtiaz Hussain Shah (P.W.6), Muhammad Feroz P.C. (P.W.7), Dr. Shafi Muhammad Nizamani (P.W.8) and Muhammad Suleman Mirza S.H.O. (P.W.9).
4. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution. He has taken the plea of alibi in the following words:-- "On the day of incident I had gone in Aqiqa function at Bohra Pir on the invitation of one Sirajuddin.
Several other persons were also present there. A video film was also taken on that occasion. I came back to my home at 11 p.m."
5. The appellant did not step into the witness-box. He, however, examined Sirajuddin (D.W.1), Zia Javed (D.W.2), and Sherdil Khan (D.W.3) in his defence.
6. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 304, P.P.C. (wrongly mentioned as section 300, P.P.C., which is only a defining section), and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Liaquat Ali Shaikh, learned counsel for the appellant and Mr. M. Hayat Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.
8. The perusal of the record shows that there are two incidents in this case. In the first incident Salahuddin (P.W.1) was given beating by means of iron bars by accused Muhammad Siddique (since acquitted) and his companions. The first incident is disclosed in F.I.R. (Exh.8-A) in the following words:- "Today at about 10 p.m. One boy came and asked Salahuddin that some persons want tea near parking place. Therefore, in order to confirm the tea order, Salahuddin went there, but returned soon bleeding. He told Seth. Haji Sadique who was sitting at the counter that Siddique and his unknown companions have beaten him with pipe and iron bars."
' It, therefore, follows that except Salahuddin (P.W.1), this incident was not witnessed by any other person and that the only culprit who was identified at that time was accused Muhammad Siddique (since acquitted). Salahuddin (P.W.1), when examined in Court has tried to improve the case of the prosecution by stating as follows:-- "On the same day at about 10 p.m. One boy placed order for tea. When I took the tea towards the boy all of a sudden two persons, namely, Siddique waiter and one Aslam caught hold of me, and Siddique gave me blow on my head with iron bar. Aslam gave blow on my hand with iron pipe."
8. This is clearly an afterthought. Ghulam Muhammad (P.W.2) who was also present in 'New Madina Hotel' when Salahuddin returned bleeding has testified as follows:-- "At that time one outdoor waiter (Bahar Wala) of the hotel came to Haji Sadique, the owner of the hotel and informed him that he has been beaten by the man and outdoor waiter of Yaqub with pipe and iron bar."
9. Saleem (P.W.4) who too was present in 'New Madina Hotel' when Salahuddin returned bleeding has, however, testified as under:-- "All of a sudden one outdoor waiter of hotel came from outside in injured condition. On inquiry of Seth Sadique injured waiter disclosed that he has been beaten by the waiter of Yaqub and his companions by means of Dandas and iron bars."
10. Thus, there are different versions of all the four witnesses with regard to the first incident. No reliance can, therefore, be placed upon the testimony of Salahuddin (P.W.1) when he stated that the present appellant was one of the persons who had given him beating. To this extent I endorse the view taken by learned Additional Sessions Judge, although for different reasons.
11. The second incident in which deceased Haji Sadique lost his life at the hands of accused Muhammad Yaqub (since dead) took place all of a sudden at the spur of moment without any previous hostility.
12. The evidence which has come on record shows that appellant Muhammad Aslam was known to complainant Syed Nizamuddin (P.W.3) and others prior to this incident and according to them he used to sit at the counter of `Aamir Hotel'. Salahuddin (P.W.1) has testified in clear terms that appellant Muhammad Aslam had instigated accused Muhammad Yaqub (since dead) to kill Haji Sadique. He has also denied the suggestion put to him in cross-examination that he did not know the name of 'Muhammad Aslam at the time of incident. Ghulam Muhammad (P.W.2) who is a casual visitor of this hotel has made it clear that appellant Muhammad Aslam was known to him previously. Syed Nizamuddin (P.W.3) who lodged F.I.R. In this case was working in 'New Madina Hotel' during the days when this incident took place. In cross-examination he made the following admission:-- "Accused Aslam is brother-in-law of accused Yaqub. Accused Aslam was known to me from. Three months prior to this incident as he was sitting at the counter of his hotel."
' Saleem (P.W.4) has also implicated the present appellant by ascribing the specific role of instigation to him- His evidence, however, shows that the police had informed him about the name of appellant after this incident.
13. With this admitted position the omission to disclose the name of Muhammad Aslam in F.I.R.
(Exh.8-A) is very significant and the same cannot be brushed aside lightly. If complainant Syed Nizamuddin (P.W.3) knew the appellant prior to this incident, there was no reason for not disclosing his name in F.I.R. Which was lodged after two hours of the incident, when the complainant had sufficient time to consult other witnesses.
14. The appellant has taken the plea of alibi and he has examined Sirajuddin (D.W.1), Zia Javed (D.W.2), and Sherdil Khan (D.W.3) in support thereof. The learned Additional Sessions Judge has dealt with the defence evidence in very casual manner. The proper mode of appraisal of evidence in a case of this kind was to consider the reliability of each witness separately and then to examine the case as a whole and also to examine the credibility of the witnesses in juxtaposition with each other and in relation to the general circumstances of the case and it is only when it is found that the evidence as a whole leaves no reasonable doubt that the appellant is guilty that a conviction can safely be recorded.
15. Quite admittedly the fatal shots are attributed to accused Muhammad Yaqub (since dead). The role attributed to appellant in F.I.R. (Exh.8-A) is clear from the following fact:- ' The above role, even if admitted does not saddle the appellant with constructive liability. There is nothing on record to show that the appellant knew or had reason to believe that accused Muhammad Yaqub (since dead) was armed with a revolver. Section 34, P.P.C. Embodies a principle of joint liability in the doing of a criminal act, and the essence of that liability is the existence of common intention. It may be recalled that the incident took place all of a sudden without any premeditation. Mere presence of an accused will, therefore, not make him liable for what the others had done. The cases of Ahmad Khan and 2 others v. The State reported in 1991 P Cr. L J 304, Abdul Khaliq and another v. The State reported in 1982 P Cr. L J 466 and Asad Azhar v. The State reported in 1984 P Cr. L J 990 are clear on this subject.
16. Having regard to the above circumstances, I am clear in my mind that the case against the appellant is doubtful in nature. He is accordingly acquitted and the impugned judgment is set aside. The appellant who is on bail is discharged from his bail bond. In the result the appeal is allowed.