AGHA ALI HYDER J.-----The appellant in Criminal Appeal No. J-189 of 1971, was convicted by the learned Sessions Judge, Karachi for an offence under section 302, P.P.C. And sentenced to transportation for life; and a fine of Rs. 500, or in default to undergo R. I. For two years. The appellant in Criminal Appeal No. J.-190 of 1971 was, in the same trial, convicted for an offence under section 325, P. P. C. And sentenced to undergo R. I. For 3 years, and a fine of Rs. 200, or in default to undergo R. I. For one year. They have come in appeal through the Jail authorities. Both the appeals will be disposed of by a composite judgment. The circumstances giving rise to these two appeals are as follows:--
2. Mushtaq Ahmed, a Police Head Constable, since deceased, was married to Mst. Aisha. He had divorced his wife, and some 5/6 months before the incident, married Mst. Amina, his sister-in-law.
Mst. Amina was the widow of Abdul Qayyum, a brother of the appellant Manzoorul Haq. Abdul Qayyum is stated to have left behind some property. Manzoorul Haq's family members, and the other appellant, who is his son, did not feel happy at this marriage. It is alleged that on 13-8-1967 at about the noon time, the appellants accompanied by two other persons, who have been since acquitted, came to the quarter of Mushtaq Ahmed in Landhi Colony. The appellant Manzoorul Haq was armed with a spear while the appellant Zahoorul Haq had a hockey stick in his hand. They had called for Mushtaq Ahmed and when he appeared outside, Manzoorul Haq had struck him with the spear and Zahoorul Haq had given him a blow with the stick. Some other injuries had been caused by the two companions of the appellants. When Mushtaq Ahmed tried to take shelter in his quarter, appellant Manzoorul Haq is alleged to have struck him in the back with the spear, Mushtaq Ahmed had collapsed on the ground and succumbed to his injuries. Even some of the family members, while trying to intervene, got some injuries at the hands of the assailants. After about an hour Hayat Mohd had lodged the report at the Landhi Police Station. The S. H. O. Mohd Ashraf had repaired to the wardat and sent the dead body for post-mortem examination. Mst. Munawwar and Aslacn were also referred to the hospital. Enquiries were made from some of the witnesses, whereafter the appellants and their two companions came to be arrested from a Bus Stand a few hours later. As the shirt and the vest of Manzoorul Haq and the shirt of Zahoorul Haq appeared to be blood-- stained, these came to be secured. Manzoorul Haq had later produced a spear from a bush, near his house while Zahoorul Haq had produced the handle of the stick. As these articles appeared to be blood-stained, these were secured under separate mashirnamas. Manzoorul Haq also was referred to the Medical Officer as there were some injuries on his person. The next day, enquiries were made from Sharafat, Bashir Ahmed and Munshi Chowhan. After due investigation, the case was sent up in Court.
3. The appellant Manzoorul Haq at the trial, inter alia, stated as under:--- "I was standing in front of my quarter near the Electric Pool. Aslam asked as to why I was standing there. I said I am in front of my house. He abused me and went inside the house of the deceased.
The deceased was `Chacha' of Aslam. Mushtaq come out with a Barchi, Aslam with a Danda and Hayat with a stick. They all beat me. I fell down unconscious. I had caught hold of the Barchi. He pulled it. It slipped from my hands. I regained consciousness after 10 or 15 minutes and went to the Thana. Police-walas did not write my report. They made me sit at the police station."
As for the blood found from his clothes, he stated that the same was due to the injuries sustained by him. He denied that he was nursing any grudge due to the marriage of the deceased with Mst.
Amina. That was more or less the stand adopted by him at the Court of Enquiry.
4. Zahoorul Haq, in his statement at the Court of Enquiry as well at the trial denied the various allegations made against him. He, however, stated at the trial, that the police had secured his shirt but it was not blood-stained.
5. As for the death of Mushtaq Ahmed, apart from the eye-witness account, there is the evidence of Dr. Abdul Majeed, who found the following external injuries on his person:-
(1) A lacerated wound about 2"x 1 x scalp deep on the middle left parital region.
(2) incised wound 2" x --' x chest deep on the front of the right chest --" below the right nipple.
(3) Incised wound about 2--' x --' x chest deep on the back of the right chest 1' away from the vertical column in the 6 inter-costal place, posteriorly. The internal injuries were as follows:---
(1) Big haematuma under the scalp.
(3) Right 6 rib was partially cut.
(3) Panotoration of the interior surface of the upper side of the right middle lobe of the lung.
(4) Panotoration of the lower lobe of the right lung posteriorly.
According to the Medical Officer all the injuries were ante-mortem in nature. The injuries Nos. 2 and 3 appeared to have been caused by a sharp-edged weapon such as a knife, dagger or spear, and were individually sufficient in the ordinary course of nature to cause death.
6. The eye-witness account in the case has been furnished by Mohammad Hayat, Aslam, Daud A.I, Mst. Amna Begum, Bilqis Fatima, Hafizan Bano, Mst. Munawwar, Sharafat Hussain, Samaiat A.I Khan, Munshi Chohan and Bashir Ahmed.
7. The names of Sharafat Hussain and Samaiat A.I Khan are not to be found in the F. I. R. They were examined by the police the next day. Sharafat Hussain resides in Malir and states to have come to Landhi to meet his brother. This brother, on his own admission, had died in India two decades earlier. Samaiat A.I Khan lived behind the quarter of the deceased. He has deposed that he had been attracted by the noise. There was hardly any wordy warfare before the incident. The hue and cry would have been raised, once the attack was on. It was all over in a minute or so. But he says that he was there from the very beginning. As a neighbour he should have also been known to theth th family members of the deceased. His name is conspicuous by its absence in the F. I. R. There is also no explanation as to why he was not examined on the day of the incident, when the police was near his house for hours together. Their evidence was rejected by the learned Sessions Judge and, I think, very properly.
8. Bashir Ahmad and Munshi Chohan are friends. They live a few miles away. They state to have gone to the Samina Textile Mill, and decided to meet Mushtaq Ahmed on return. Munshi Chohan mentions only one cycle, while Bashir states that they had a cycle each for themselves. However, when they were some 30/40 paces away from the quarter of Mushtaq, they had found the appellants and two other companions ready to attack him. Bashir traces his friendship from the father of the deceased and even Munshi Chohan states to have attended the funeral. Bashir Ahmed states to have accompanied Hayat, the complainant, even to the Police Station. They were also at the wardat when the police had arrived, but they were examined the next day. It is true that their names are to be found in the F. I. R., but in all probability could be counted upon by the complainant to toe the line. I am clearly of the opinion that it is unsafe to rely on their version.
9. The other witnesses, are related to the deceased with the closest ties. Mst. Amina the widow apart, every one of them lived at varying distances from the wardat. Mst. Amina has however not supported the prosecution case, and was cross-examined by the learned Public Prosecutor.
According to her, none of the witnesses were present in the house except Mst. Munawwar the mother of the deceased. It might however be mentioned that she is a niece of the appellant Manzoorul Iraq and a cousin of the other appellant. There are injuries on Mst. Munawar and also on the person of P. W. Aslam. They were referred to the Medical Officer. Mst. Munawwar was found to have a contused abrasion over the right shoulder tip, measuring 4' x 3' and tenderness with swelling over the left hand dorsum. She was also X-rayed. Aslam had tenderness with swelling over the right shoulder tip "including the seromion process". Hayat also talked of injuries, but there is no medical evidence in support thereof. The presence of Mst. Munawwar and Aslam, in the circumstances of the case, is not open to any doubt. The presence of Hayat is admitted by Manzoor. The other witnesses, being members of the family, might as well have been there.
Anyway, on the showing of these witnesses, throngs of people had gathered round at the time of the incident but no independent witness has been examined in the case. None of the witnesses has also accounted for the injuries of the appellant Manzoorul Haq, and that of Bashir, since acquitted.
Mohammad Hayat has it, that the injury of Manzoorul Haq was from his own associates. Aslam stated to have seen Manzoorul Haq in bandage at the hospital.
9. Their version is that the appellants and their two companions had turned up at the quarter of Mushtaq at about 11 or 11-30 a.m. Manzoorul Haq was wielding a spear; Zahoorul Haq had a hockey stick and the other two men had dandas. They had shouted that Mushtaq Ahmed should come out, as they were prepared to meet him. Mushtaq Ahmed came out of the house. Zahoorul Haq struck him with the hockey and Manzoorul Haq gave a spear blow on the chest. The others showered danda blows, shouting to their companions to make an end of him. Mushtaq Ahmed started bleeding from his injuries and tried to retreat inside the house, when he had turned back Manzoorul Haq struck again with the spear in the back. Mushtaq Ahmed collapsed and died in the `baithak'. Mst. Munawwar, Aslam and Hayat also received some injuries, when they tried to come to his rescue. The culprits thereafter made good their escape.
10. As Manzoorul Haq admits the incident, though with, altogether a different narration of events it is not necessary to look to the other pieces of circumstantial evidence against him. It might however be mentioned in this context, that the motive for attack, which is the marriage of Amina with Mushtaq, and the nursing of grudge by Manzoorul Haq and his family members on the account, was disbelieved by the learned Sessions Judge and cannot pass muster. There is nothing to indicate that there was any unpleasantness, not to talk of any untoward incident during the past four months or so of their married life. Mushtaq Ahmed belonged to the Police Department and if he had any threats to his life, he would not have been slow to lodge report. No witness had anything specific to say in that context. Manzoorul Haq was a close neighbour. It appears that Mushtaq Ahmed, apart from the fact that he was a Police Head Constable, was given to temper.
The witnesses have not come out with the true facts, but something happened on the day, and the matter thereafter took an ugly turn.
11. Manzoorul Haq states that he was all by himself, standing in front of his quarter. Aslam objected to his presence there and abused him. Then he was attacked by three persons, namely, Aslam, Hayat and Mushtaq. Mushtaq was having a spear. He bad caught hold of the spear and it slipped from his hand. As he had become unconscious, he did not know what happened thereafter.
12. Looking to the rival versions in juxtaposition, Manzoorul Haq has also not spoken to a forthright manner. It appears that Manzoorul Haq being outnumbered and near the quarter of Mushtaq got the beating first. The injuries on his person, according to the Medical Officer were-
(1) Lacerated wound over the right forehead on the lateral near scalp hair roots 1' x 1/8' x 1/6';
(2) Lacerated wound over the left parietal eminence 3' x 1/2' 1/4".
Accused Bashir also sustained injuries as deposed by the Medical Officer. He then helped himself with a spear-after all his quarter was nearby, and being apprehensive of his life wielded the same to ward off the danger. As the law stands, all the doubts must be resolved in his favour. The witnesses have clearly stated that the spear thrust on the back was given, when Mushtaq after the other injuries was retreating to his house. It was one of the two injuries which proved fatal. He died soon thereafter. To .4 my mind, this will be clearly exceeding the right of private defence. I am therefore of the opinion, that the offence made out against him will fall under section 304, (1) P. P. C.
13. As for Zahoorul Haq, the other pieces of evidence, are the securing of the shirt from his person, soon after his arrest and his production of a broken hockey stick, which have been found to be blood-stained by the Chemical Examiner. The appellant is stated to have been arrested with the other accused from near a bus stand, at about 5 p.m., half a mile away from his quarter. Ishtiaq Hussain, the only mashir examined has deposed that he had a cycle repairing shop near the bus- stand. He was called from there by a police man and seen the appellant and his companions being arrested. The other mashir, Osman a milkman was also there. The S. H. O. Has however deposed that Ishtiaq Husain and Osman were present at the wardat and had accompanied him to the bus stand alongwith the complainant. The versions of these two witnesses are discrepant in regard to the place where the shirt was secured. He had also accompanied the police party to the wardat when the hockey stick is alleged to have been produced. The S. H. O. Was at the wardat for about 2-- hours after the lodging of the report. The quarter of Zahoorul Haq was nearby. There is no explanation as to how the quarter was not searched. The hockey stick is alleged to have been lying by the door of the quarter. The presence of Ishtiaq Husain at the wardat even before the arrival of the police, as admitted by the S. H. O. Goes to show that he was not a totally disinterested witness.
From the wardat, he had accompanied the police party up to the bus stand, once information was brought that the culprits were there. The distance between these places is half a mile. However when the police party reaches there, the wanted men are still there. Ishtiaq Hussain, on his own showing had acted as a mashir in at least 2 other cases earlier. He has admitted that in one case, police "had called me and showed me Shamshad, and I said that he was Shamshad". Demonstr-- ably he is a speak-easy witness and it is totally unsafe to rely on his evidence. I might as well add, that his evidence of the production of the dandas by the acquitted accused and the spear by the appellant Manzoorul Haq was disbelieved by the learned Sessions Judge. There is therefore no corroboration to the testimony of interested witnesses, who have come out with half-truths. His case will therefore be open to serious doubt and he must get the benefit thereof.
14. In the result, the conviction of Manzoorul Haq is altered from 302 P. P. C. To .304, (1) P. P. C. The record shows that he was in custody for over 3-- years before the trial. I will, therefore, sentence him to R. I. For 3 years. The fine imposed on him stands remitted. The conviction and sentence of Zahoorul Haq under section 325, P. P. C. Is set aside, and be is acquitted. Re will be released forthwith, unless wanted in connection with some other case.
TUFAIL ALI A. REHMAN, C. J.----I agree.