Z. A. CHANNA, J.-The two appellants Muhammad Nasim and Muhammad Mubin, who are brothers inter se, were tried by the learned Additional Sessions Judge, Karachi, under section 302 read with section 34, P. P. C., for committing murder of their relation Khalid, and were con--victed and sentenced for the said offence to death. The learned Additional Sessions Judge has referred their case for the confirmation remittance, while they have preferred an appeal against their conviction.
This judgment will dispose off both the reference and the appeal.
2. According to the prosecution case, some two years prior to the incident, appellant Nasim married Mst. Rehana, the elder sister of deceased Khalid. The marriage did not prove a happy one and a few months after the marriage Mst. Rehana left Nasim and came and put up with her parents. Appellant Nasim thereupon filed a suit for restitution of congujal rights. The said suit was decided in favour of appellant Nasim but subject to the payment by him of prompt dower of Rs.
5,000.00 to Mst. Rehana. Due to this litigation the relations between the parties were strained and it is alleged that on one hearing of the Civil Suit appellant Mubin had threatened deceased Khalid outside the Court premises. On the day of the incident (29-1-1969), at about 2-30 p.m. The deceased accompanied by first informant Zamir Hyder and their friend Jawed Iqbal were going from the Plaza Cinema side towards the City side when in front of the Sind Assembly Building, the two appellants were seen approaching from the opposite direction. Appellant Muhammad Nasim struck his shoulder against deceased Khalid and thereafter both appellants started beating him, but he was rescued by Zamir Hyder, Jawed Iqbal and some passers-by. Thereafter, the deceased and his two friends went to Tehran Restaurant for the purposes of taking meals, but finding that it was merely a tea shop, and served no meals, they came out and proceeded on their way to the City side. When they had reached Aurangzeb Market, the two appellants, who had been following them, stopped the deceased and while appellant Nasim caught hold of him, appellant Mubin attacked him with a knife. The deceased averted the first blow with his left arm, but appellant Mubin thrust the knife in the abdomenof the deceased and thereafter the appellants ran away. The deceased was immediately taken by his two friends in a taxi to the Civil Hospital, where he expired soon after.
3. Information of the death of the deceased was sent by Dr. Moosa of the Civil Hospital to S. H. O.
Maqbool Asif of Nabi Bux Police Station, who after making the necessary entry about the incident in the station diary, proceeded to the Civil Hospital, where he recorded the statement of Zamir Hyder, which was subsequently transcribed in the register of cognizable cases. The S. H. O. Thereafter repaired to the wardat, where he recorded the statements of P. Ws. Jawed Iqbal. Choudhary Shamim, Muhammad Aslam and Jamaluddin. On the same day, he examined P. W. Muhammad Hashim and the deceased's father Asad Durrani. On 4-2-1969, the S. H. O. Arrested the two appellants outside the District Court Building. On 5-2-1969, on the pointing out of appellant Mubin, he recovered a blood--stained knife from the bushes near a peepul tree in the compound of the Old Sind Assembly Building. The knife was sent to the Chemical Examiner, who has reported that it is stained with human blood.
4. The deceased was first examined by Dr. Moosa Ibrahim, C. M. O. Civil Hospital, who has deposed to having found the following injuries on him:
(1) Incised wound left iliac region, oblique in direction, 1/2" x 1/2" peritoneum deep. His intestines were cut with corresponding cut over his shirt and pant.
(2) Incised wound left arm, lower part, laternal side, 1/2" x 1/4" x skin deep, direction vertical with corresponding cut over the shirt.
5. The autopsy on the deceased was conducted by Dr. Muhammad Umer Khan, Police Surgeon, Karachi, who besides the two injuries referred to above and an operation wound, found the following injuries on the deceased t Abrasions t
(1) Left side angle of jaw 1/4" x 1/4".
(2) Left dorsal hand 1/2" X 1/4".
On internal examination, the Police Surgeon found that the coils of the small intestine of the deceased were cut at two places, the omentum was cut at one place and also the common iliac artery half-cut below the external wound in the abdomen at a depth of three inches.
6. Both the appellants have denied having attacked or caused the fatal injuries to the deceased.
Appellant Mubin has further denied that a. Blood--stained knife was secured by the police at his pointing out. In their state--ments in the Committal Court they have stated that at the time of the Incident they were living in Dastagir Colony, which is at a distance of 12 or 14 miles away from the scene of offence, that on the day of the incident there was curfew in Dastagir Colony and in the entire area of l6alukhet Police Station, and there was no possibility of any one moving out of his house in that area and that besides there were disturbances of all kinds in almost all parts of the city, and military and police were vigilantly patrolling the City. Appellant Nasim has further stated that he has been falsely implicated due to enmity with his wife and in-laws, while appellant Mubin has further alleged that he has been falsely implicated due to the enmity between his brother Nasim and the latter's wife and in-laws.
7. In holding the appellants guilty of the murder of deceased Khalid, the learned Additional Sessions Judge, relied upon the evidence of the eye-witnesses, particularly Jawed Iqbal and Zamir Hyder, evidence of the recovery of a blood-stained knife at the instance of appellant Mubin and motive. A close examination of these pieces of evidence shows that the first, two are far from reliable or satisfactory.
8. The prosecution have examined in all six eye-witnesses. Of they,, complainant Zamir Hyder and Jawed Iqbal were with the deceased at the time of the fatal assault on him ; three of them, namely Muhammad Aslam, Muhammad Hashim and Jamaluddin hawker sell pan. Sugar-cane, ere,, in the immediate vicinity of the scene of offence ; while the last witness Shamim Ahmad is said to have been buying pan from a shop near the scene of offence. The three traders, however, have not implicated the appellants. P. W. Muhammad Aslam has deposed that on the day of the incident he was selling sugar-cane near the Tehran Hotel when, at about 3-30 p.m., we heard a noise, saw a crowd and heard someone crying out that the assailant be caught as he had run away after hitting. The witness has frankly admitted that he did not see any one running away or striking blows. The noteworthy feature of this witness's evidence is that the first cry that he heard was that there was one assailant. That cry runs counter to the prosecution version that there were two assailants.
9. P. W. Muhammad Hashim has testified that on the day of the incident, at about 3 p.m, he was sitting at his thela, about 10 paces away from Tehran Restaurant, when all of a sudden there was a commotion and he saw one man running away and a person injured 10 to 15 paces away from him across the road. The witness has admitted that he could not identify the person who was running away, as he was going fast The evidence of this witness tallies with the cry that P. W. Muhammad Aslam heard that there was one assailant who was running away.
10. P. W. Jamaluddin has deposed that on the day of the incident he was selling pan near the gate of Aurangzeb market. When he saw three boys, whom he does not know, coming from Tehran Hotel side, who were fighting among themselves, and out of them one started running away and the others were crying that he was running away after giving blows. The evidence o 9 this witness. Like that of the previous two witnesses, indicates that there was one assailant, and not two as is the prosecution case.
11. The learned Additional Sessions Judge has considered P. W. Shamim Ahmad as the most important witness and placed reliance on his testimony so far as the incident itself is concerned, but not as to the identity of the assailants, as he did not know the names of the appellants and "vas not put to any identification test. This witness has testified that on 29th January 1969, at about 3-15 p.m., he had come to see Razak Proprietor of Elite Films, Aurangzeb market, and was buying a pan from a pan-shop on Bunder Road, when the two appellants, whom he did not know previously, stopped three boys who were coming from Taj Mahal Cinema side, and while appellant Muhammad Nasim caught bold of one of the boys, appel--lant Mubin gave that boy two blows with a knife, whereupon the injured fell on the ground and the appellants escaped. There are a number of reasons for viewing the evidence of this witness with great suspicion. In the first place his name does not transpire in the F. I. R. Secondly, he is 8 admittedly a resident of Lahore and even on the day of the incident was putting up at Nazimabad No. 3, which according to the witness himself 5/6 miles away from the scene of offence. Thirdly, it has been established from the evidence of Maqbool Khan, S. H. O., Liaquatabad, that on the day of incident there was curfew in force throughout Liaquatabad, Golimar and Nazimabad, which was relaxed between 2 p.m., and 5 p.m. The witness has stated that his statement was recorded by the police on the very day of the occurrence, at the scene of offence. According to S. H. O.Maqbool Asif, he had reached the scene of offence at 7-30 p.m. In view of the fact that the witness admittedly had no curfew pass, it is not under-- stood why he tarried at the scene of offence more than four hours after the occurrence, not even caripg for the fact that the period for which the curfew had been relaxed in his area was over. The witness has admitted that he knows Mr. Durrani, the maternal uncle of the deceased, who is an employee of the National Bank. It is possible that the witness was induced by Mr. Durrani to give evidence in support of the prosecution.
12. From the eye-witnesses, there remains to be considered the evidence of complainant Zamir Hyder and Iqbal Javed, who are said to have been with the deceased at the time of the assault on him. Both of these have implicated the two appellants and have testified that while appellant Muhammad Nasim caught hold of the deceased, appellant Mubin gave him two blows with a knife, one of which the deceased warded off with his left arm, but the other penetrated his abdomen, whereupon the deceased fell down and the appellants escaped. The two witnesses, however, have made contradictory statements on material points. Furthermore, there are inherent defects in their evidence, which makes it difficult to place reliance on their testimony. According to complainant Zamir Hyder, it was appellant Muhammad Nasim who in the earlier incident had dashed his shoulder against the deceased and had threatened him that he would not be spared. However, P.
W. Javed Iqbal has ascribed this part to appellant Mubin. Again, according to complainant Zamir Hyder, the two appellants, after causing injuries to the deceased, ran away along the lane by the side of Tehran Hotel, while according to P. W. Javed Iqbal they ran away towards the old Sind Assembly Building, on the foot-path of Bunder Road. Secondly, there appears to have been quite some delay in lodging the F. I. R. The incident is said to have occurred at 3-15 p.m., but it was not till 6-15 that the police was informed of the incident and it was at 7 p.m. That the F.I. R. Was recorded at the Civil Hospital. The delay in informing the police is unexplainable for it appears from the evidence of Mst. Rehana that a telephone message was received at 2 p.m., at Malir from Javed Iqbal that Khalid had received injuries and he had been taken to the Civil Hospital and thereupon her brother Shahid had gone to the Civil Hospital. It should not have been difficult for Shahid or one of the companions of the deceased to inform the police about the incident on telephone or otherwise. Their failure to do so, coupled with the contrary evidence given by the three independent eye-witnesses, whose evidence has already been referred to, casts a dark shadow over their evidence. It appears from the evidence of F. W. Muhammad Hashim that in the days when the incident occurred there were serious disturbances in the city and cases of stone throwing and stabbings. The possibility of the deceased having been a victim of cane such unfortunate stabbing incident by an unknown miscreant cannot be lightly brushed aside. That possibility not only finds support from the testimony of the three independent eye-witnesses, namely, Muhammad Aslam, Muhammad Hashim and Jamaluddin, that there was a single assailant, but further accounts for the delay of about 3 hours in lodging the F. I. R. And the fact that in the telephone message referred to by Mo. Rehana in her evidence, which according to her was received from Javed Iqbal at 2 p.m., only the fact if Khalid having received injuries and being taken to the Civil hospital was mentioned, but the names of his assailants were not mentioned. If either Javed Iqbal or Zamir Hyder had identified the assail4aits of the deceased there was no reason why Javed Iqbal should not have disclosed their names in his telephone message.
13. The evidence regarding the recovery of a blood-stained knife at the instance of appellant Mubin is equally inconvincing. Apart from the fact E that the knife was recovered from the compound of the Old Sind Assembly building, a place which is accessible to the public, the inference that it was thrown there by appellant Mubin while running away from the scene of offence would be at variance with the evidence of complainant Zamir Hyder, according to whom the two appellants had run away along the lane running by the side of Tehran Hotel. A reference to the sketch, which was prepared when the learned Additional Sessions Judge visited the scene of offence, shows that the said lane is at right angle to Bunder Road. If the evidence of the complainant is believed, the assailants could not possibly have had an opportunity of throwing the knife in the compound of the Old Sind Assembly Building, which is on the main Bunder Road. Furthermore, according to the evidence of tapedar Hafizullah, the said building is at a distance of about 842 feet from the scene of offence. It is unlikely that appellant Mubin would have held on to the murder weapon for such a long distance before discarding it.
14. There remains only the evidence of motive. It is an admitted position that the relations between the appellant and the deceased's party were strained because of the unhappy marriage of app;:llant Nasim to Mst. Rehana, the sister of the deceased, and the (:evil Suit riled by appellant, Nasim against Mst. Rehana. The strained relations between the parties, however, cannot support the inference that the appellants must have com--mitted the murder. As a matter of fact, the possibility of the appellants having been implicated because of the dispute between the parties cannot he ruled out there is evidence to suggestion that the complainant's party has tried to improve its case against the appellants. P. W. Assad Durrani the father of the deceased, has deposed that about 2J months prior to the incident, as they were coming out of the Court premises, after a hearing of the Civil Suit riled by appellant Nasim, appellant Mubin had threatened the deceased and had caught hold of him but Syed Hussain and other persons, who had assembled, had intervened and separated the parties. Mst. Rehana however, neither in her section 161, Cr. P. C. Statement nor in her statement in the Committal Court made any such allegations. In her statement in the Sessions Court she siad no doubt deposed to this incident, but according to her it was one Mir Sahib who had intervened and separated the parties. She has made no Mention of the presence of Syed Hussain, who according to her father, had intervened and separated the parties. It is not under--stood way appellant Mubin, who was not directly involved in the dispute arising from appellant Nasim's marriage, should have taken greater interest in the matter than Nasim. All this merely indicates that there was animosity between the parties and requires that the evidence of the relations of the deceased, including his two friends Zamir Hyder and Javed 1qbal, should be viewed with great caution.
15. There is one more circumstance in the case which calls for notice; At the time of the incident, the appellants were living in Dastagir Colony, which is at a distance of 12/14 miles away from the scene of offence, They could not possibly have known that the deceased would be roaming on Builder Road on the day of the incident. The possibility of the appellants having met the deceased on that day by accident cannot be rated high and to our minds was far too remote to be accepted as admittedly on that day there was curfew in the area where the appellants were residing and it is difficult to believe that the appellants would be roaming about so far away from their residence during the short break in Curfew.
16. For the reasons stated above, we are of the opinion that the pro--secution have failed to establish that the appellants had attacked the deceased or caused fatal injuries to him. We accordingly accept their appeal, set aside their conviction and sentence and order that they should be set at liberty if not required in any other case. The reference for confirmation of their death sentence is rejected.