S. A. MAHMOOD, J.-These two Criminal Appeals Nos. 388 of 1965 and 61 of 1966 are by Abdur Razzaq and Muhammad Hanif, who have been sentenced under sections 302 and 302/34, P. P. C., respectively, for the murder of Ghulam Jilani committed .On the 31st of December 1964 in the house of Zahur Alam in Fire Brigade Quarters, ,close to Urdu College, has been sentenced to death, and the latter to transportation for life. The case of the former is also before us under section 374, Criminal Procedure Code, for confirmation of the death sentence. The appeals and the reference will be disposed of by this judgment. Zahur Alam, Banaras and Muhammad Ilyas, who were tried along with them, were acquit.
2. The case for the prosecution is that the deceased Ghulam Jilani was murdered in the quarter of Zahur Alam situate in Fire Brigade Quarters of the K. M. C., Karachi. His dead body was dragged from the quarter to the open space, where in the presence of the witnesses, Abdur Razzaq ripped open the chest and stomach of the deceased, while Muhammad Hanif held his legs and tried to carry away his head when he was challenged and caught by the police. Abdur Razzaq was also captured at the spot. The prosecution produced Abdur Rahim (P. W. 1), Abdul Karim (P. W. 2), Muhammad Aslam (P. W. 3), Mir Alam Khan (P. W. 7), Saeed Hassan (P. W. 9), Sher Muhammad (P.
W. 12), Badar Din (P. W. 14), Taj Muhammad (P. W. 15), Mst. Darveshan (P. W. 16) and Mirwal (P. W. 8) as eye-witnesses of the occurrence. Mirwal was merely tendered for cross-examination. Mst.
Darveshan wife of Muhammad Aslam, denied all knowledge of the murder and the commission of the murder in the quarter of Zahur Alam, in which her husband Muhammad Aslam also resided.
3. As the version of these witnesses is not wholly consistent, it is necessary to state briefly the gist of their evidence one by one.
4. Abdur Rahim (P. W. 1) deposed that at about 11 a. m. a carriage driven by a horse came to the Fire Brigade Quarters, where he resided, and three or four men got down from it. As they went towards the street, his brother Abdul Karim came up, and they both went to the town to make purchases for the marriage of their sister. When they returned at about 5 or 6 p. m., they saw a crowd of 300/400 persons outside their quarters. At about 8 or 10 paces, they saw Abdur Razzaq appellant killing another man. He was cutting him with a knife. He did not notice any one else near him, but he added later that one other man was holding the deceased by his legs, but he could not see who he was. He did not know Abdur Razzaq accused before and his identifi--cation parade was not held.
Abdul Karim (P. W. 2) states that he saw Abdur Razzaq killing a man with a knife. His head had been cut off, One or two other men were holding the feet or legs of the deceased, but he' was not sure about it. Abdur Razzaq was cutting the stomach of the deceased with a knife. He saw one or two men dragging out the dead body one or two paces outside Zahur's house but he could not say who they were. While Abdur Razzaq was cutting` the dead body, the S. I. Police came there and he attacked the police on which the S. I. Receded. Other policemen also came there, and accused Abdur Razzaq and Hanif, who was running, away with the severed head of the deceased, were caught by the police. He picked out Hanif appellant in Court correctly. , He did not know the names of the accused before Zahur Alam was not present in his house. He arrived one or two minutes before the arrival of the police when he had a market bag in his hand. His statement (Exh. 5) was recorded at the spot by Tehzibul Hassan Zaidi, S. H. O. Of Idgah Police Station, who having received information at 5-30 p. m. On phone from A. S. I. Taj Muhammad that a murder had taken place in Brigade Quarters, reached the spot, at about 6 p. m. On this statement first information report (Exh.
19) was formally registered at the Police Station the same evening. Muhammad Aslam (P. W. 3) returned from Mahmood--abad at about 5-30 p. m, and when he came near his quarter he saw Abdur Razzaq cutting the stomach of the dead body with a knife and two men, one on his left and the other on his right, were holding the legs of the dead body. The man cutting the stomach of the deceased was Abdur Razzaq appellant and Hanif appellant was holding the legs of the dead body.
The assailants tried to run away, but the police caught Abdur Razzaq, Hanif and Ilyas. Hanif tried to run away with the severed head of the corpse, when he was caught. Abdur Razzaq was his Peer.
Zahur Alam had gone away on duty in the morning and he came after a few minutes with a market bag in his hand. He denied that the police secured any articles from his house or that of Zahur Alam He further stated that the police had threatened him, but had no beaten him. The police had taken him, his wife and Zahur wife to the Police Station. He was kept in the lock-up for the night. His evidence was not believed, as the learned Additional Sessions Judge thought that he might be an accomplice in the crime: Mir Alam Khan (P. W. 7) returned from the bazar at 5-30 p. m. To his quarter, which is ten or twelve paces from the quarter of Zahur Alam. He saw a man cutting the stomach of the dead body with a knife at a distance of ten paces from the quarter of Zahur Alam.
That person was Abdur Razzaq. One man was holding the feet of the deceased, but he could not identify that man. The police did not catch any culprit in his presence, and he did .Not see any culprit caught by the police, when he came out of his house after half an hour. He did not know Abdur Razzaq before the incident. Mirwal (P. W. 8) was tendered as having been won over, but was not cross-examined. Saeed Hassan (P. W. 9) came to his house at about 4 p. m. At about 5 or 5-30 p. m., he heard a commotion outside his house that a murder had been committed and came out.
He saw Abdur Razzaq cutting the dead body with a knife or chhuri and Hanif accused holding the feet of the deceased. He pointed them out correctly. He did not see any of the culprits being caught by the police. The police recorded his statement after 6 or 7 days. He did not know the accused before the occurrence. Sher Muhammad (P. W. 12) went to live with his brother two days before the occurrence. At about 6 p. m. He came out of his quarter and saw Abdur Razzaq, whom he pointed out, standing near the dead body. He was doing nothing. He did not see any knife in his hand. He did not see him cutting the stomach of the deceased. He did not know him before. Badar Din (P. W.
14) lives in Fire Brigade Quarters. At his ration shop somebody told him that a person had killed another man. He left his shop and came to the site, which was 30/35 paces at the back of his shop.
He saw a dead body there with a severed head lying about 5 or 6 paces from the dead body. While Hanif was holding the feet of the dead body, Abdur Razzaq was cutting its stomach. He pointed them out correctly in Court. Abdur Razzaq attacked the police and felled down the Inspector. In their struggle, an open knife, which he had in his hand, fell from his hand, which the Inspector kicked when the accused tried to pick it up. The police overpowered him. Accused Hanif also tried to run way, but the police caught him. He then went back to his shop. He came back after 15/20 minutes and found Zahur Alain also ' caught by the police. The police prepared Mashirnama, which he attested. The police secured a quilt, a cot, blood--stained earth and a shalwar from the quarter of Zahur Alam. A side of the cot and the earth were blood-stained but he did not see any stains of blood on the shalwar or quilt, though the latter was wet. The police secured the clothes of Abdur Razzaq accused, namely, a chadar and loin-cloth, as they were blood-stained. The knife (Article 3) is the same, which was secured from the spot. The clothes of Hanif, a red shirt and pants, were secured from his person and were sealed into a parcel. He did not notice whether there was any blood on them. He was not present when the police seized the clothes from the person of Abdur Razzaq. The police had only told him about it. He did not himself see the clothes, which he was wearing. The S. H. O. Came at about 8 or 8-30 or 9 p. m. And he remained with the police up to 11 p. m. Taj Muhammad A. S. I. (P. W. 15) reached Urdu College on round duty at about 5 p, m. And saw a crowd near the Fire Brigade Mosque. A crowd of 40 or 50 persons were collected there. He found Abdur Razzaq appellant cutting the dead body with a knife. He also saw Hanif appellant and Banaras holding the legs of the dead body. Zahur Alam was standing behind Abdur Razzaq. A severed head of the dead body was also lying there. Abdur Razzaq assaulted him with an open knife. On seeing him, he snatched the knife (Article 3) from his hand with the help of the police party. Accused Hanif was running away with the severed bead, when be was caught by the police party, but Banaras ran away successfully. Zahur Alam remained among the crowd. He took into custody Abdur Razzaq and Hanif and telephoned to Idgah Police Station from where Mr. Zaidi, S. H.
O. Along with a police party arrived at the spot, He produced the two appellants with the blood- stained knife before him. Abdur Razzaq had minor injuries and the S. H. O. Told him to take him to the hospital for treatment. The clothes of Hanif and Abdur Razzaq were blood-stained. Zahur Alam was arrested by the S. H. O. In his presence. Mst. Darweshan (P. W. 16) denied that the Peer of Zahur Alam came to their quarter or that of Zahur Alam. She also denied that a murder took place in their quarter. She further stated that the police had beaten her and her husband severely, and had kept them with them for two days.
5. Dr. Anwarul Hassan performed the post-mortem examination on the body of Ghulam Jilani on the 1st of January 1965, at 1-15 P.m. And found the following injuries on his person;---
(1) The head was decapitated at the level of second cervical vertebra by an incised wound around the neck. It had been severed by more than one injuries.
(2) There was also an extensive incised wound, running from front of the neck in injury No. 1 to the scrotum, exposing the chest and abdominal cavities. Through this wound, which consisted of more than one wounds at the tissues, the abdominal organs and penis had been taken out. These organs were brought separately in a basket.
(3) An incised wound, 10" x 4", cavity deep on the right side of axillary area.
(4) Two irregular lacerated wounds, with swelling 2" x 1", and -- " x 1" bone deep and left side and front of head with underlying fracture of bones and blackening of left eye.
(5) A lacerated wound, 1-- x -- ", bone deep, surrounded by contusions and swelling on the left side of head and temporal area with fracture underneath.
(6) Small and multiple contusion marks on both cheeks and nose with fracture of the nasal bones.
Injuries Nos.4, 5 and 6 were caused by hard and blunt object and were ante-mortem; the rest were caused by a sharp-edged weapon and were post-mortem. Internal examination showed that there was extensive occhymosis under injuries Nos.4, 5 and 6 with underlying fissured fracture, 4" long on left side bone and 5" long on left temporal bone. There was also occhymosis at the back of the head on right side where external injuries were not visible. There was sub-arachnoidal haemorrhage in left temporal arid frontal areas. Tree neck and the chest wall was cut through the sternum. The deceased had been killed by head injuries and the head was decapitated soon after.
The cause of death was shock as a result of homicidal injuries on the body. The incised injuries could be caused by a knife like Article 3.
Abdur Razzaq accused was produced before a Magistrate on the 15th of January 1965 for recording his confession. His statement was recorded, but it does not amount to a confession, and there is nothing incriminating in it.
7. Tehzibul Hassan Zaidi (P. W. 17) carried out the investigation. When he reached the spot accused Abdur Razzaq and Hanif had been caught. A dead body with severed head was lying at the spot. Its intestines, liver and other organs were lying outside the body. He recorded the statement of Abdul Karim P. W. And sent his statement to the Police Station for formal registration of the case. A. S. I. Taj Muhammad handed over knife (Article 3) to him. He prepared Mashirnama of the spot. He secured a cot, shalwar, quilt and earth from inside the house of Zahur Alam. There was blood on them. The quilt was also wet. Having prepared the inquest report he sent the dead body to the Civil Hospital for post-mortem examination. He secured clothes from the person of Abdur Razzaq, namely, a loin- cloth and a lungi. They were blood-stained. The Mashirnama' is Exh.
31. He sealed the clothes. He also secured the clothes of Muhammad Hanif from his person. He was wearing red shirt and a pants. They were both blood-stained and they were sealed into a parcel. The Mashirnama is Exh.
32. Abdur Razzaq had injuries on his person and he was sent to the hospital for medical examination.
8. Abdur Razzaq and Muhammad Hanif appellants denied the prosecution allegations. Abdur Razzaq explained that his injuries were caused to him by the police who beat him. The witnesses had given false evidence against him. They denied the recoveries of clothes from their person. They led no evidence in defence.
9. The medical evidence sows at the deceased was killed as a result of the blunt injuries inflicted on his head, which caused several 'fractures. The severing of the head also took place soon after the causing of these injuries. There is, however, no evidence direct or indirect connecting the appellants with the causing of these injuries or the severing of the head of the deceased. The witnesses produced by the prosecution deposed to the ripping open of the chest and stomach of the deceased by Abdur Razzaq., but this injury was post-mortem injury and if he had caused thx, injury he did not commit any offence. The story that Muhammad Hanif tried to run away with the head of Ghulam Jilani is not consistent and is highly discrepant. It is also not possible to believe that on the arrival of the A. S. I. Muhammad Hanif would try to run away with the head. This story appears to have been fabricated with a view to prove active participation of Muhammad Hanif in the crime. The evidence is also discrepant and incon--sistent as to whether he held the legs of the deceased when Abdul Razzaq cut the chest and stomach of the deceased, but even if he did so, and held his legs, he committed no offence, as it was a post-mortem injury caused by Abdur Razzaq. In assisting or abetting Abdur Razzaq he committed no offence as Abdur Razzaq's act amounted to no offence. The learned counsel Appearing for the State was unable to show that the evidence of the prosecution has made out any offence against the two appel--lants. It is not possible, to hold on the evidence that the two appellants were responsible for the causing of the blunt injuries to the deceased or the severance of his head. The time of the occurrence as shown in the first information report is 11 or 11-30 while the incident which is deposed to by the witnesses took place at 5-30 p.m. 'The incident deposed to evidently took place long after the infliction of the fatal injuries to the deceased, which appear to have been caused to him inside the house of Zahur Alam, Where blood was found on a quilt, a cot, earth and shalwar. There is no evidence at all on the record about what happened inside his house.
10: For the reasons given above, these appeals are accepted and the appellants are acquitted.