MUHAMMAD HALEEM, J.-Appellants Sultan Khan and Ghulam Muhammad alias Baboo were tried for the murder of Nisar Ahmad, the former convicted under section 302, P. P. C. And sentenced to death, while the latter under section 302/34, P. P. C. And sentenced to imprisonment for life by the learned Additional Sessions Judge, Karachi, vide judgment dated 15th January 1974. Madad Khan, Taj Muhammad and Hashim were also tried along with the appellants but they were acquitted by the same judgment. Both of them have appealed to impugn their conviction and sentence, while the learned Sessions Judge has referred the case of Sultan for the confirmation of death sentence.- This judgment will dispose of the appeal and the reference.
2. According to the prosecution case, the incident occurred at 6-15 p.m. On 24th May 1972 in the Central Jail, Karachi. The appellants, acquitted accused and the witnesses were all under-trial prisoners. The report of the incident was handed over by the Assistant Superintendent, Lumpe, to Fazlur Rahman S. H. O. Who had coma there on having received some information on telephone, which was later on transcribed in the 154 book at 7-30 p.m. At Police station, New Town. It is alleged in the report that while Lumpe was the Duty Officer, he heard an alarm while sitting in his office after releasing the prisoners. He immediately rushed out and was informed by Manzoor Ahmad, an under-trial prisoner, and others that appellant Ghulam Muhammad, Hashim, Taj Muhammad and Madad Khan had caught hold of the deceased and Sultan had stabbed him with a sharp iron patri (cutten), which was lying at the wardat in front of barrack No. 11. The names of the witnesses, namely Manzoor Ahmad, Mashir Ahmad, Bashir Ahmad, Muhammad Nasir, Sabir Hussain, Afzal Ahmad and Warder Rahmat Shah were also disclosed in the report. It was further intimated that the deceased had died in the jail hospital while Manzoor Ahmad, Bashir Ahmad Gad Mashir Ahmad had received injuries while trying to save the deceased. The motive was also given in the report. It was stated that the appellants were "bullys", and because they had been abused by the deceased in the morning, they took revenge and murdered the deceased. The blood-stained iron patri was also disclosed to have been secured, and that it would be produced.
3. Fazlur Rahman S. H. O. Inspected the wardat and secured the iron patri (cutten) from Lumpe vide mashirnama, Exh.
17. He secured the blood-stained clothes of Ghulam Muhammad and Sultan vide mashirnama Exh. 18, and those of Hashim and Madad Khan vide mashirnama, Exh.
19. He next prepared the sketch (Exh. 25) of the wardat, and from the wardat itself he secured earth, a piece of 'banyan', one chappal, one blanket and a few pieces of cement plaster, which were all blood- stained and sealed in separate parcels. Lastly, he recorded the statements of Mashir Ahmad, Bashir Ahmad Manzoor Ahmad, Rais Malik Awan and Kawas Khan. He sent the articles for chemical analysis and the report not only disclosed that the articles were stained with human blood but the blood on the white shalwar and white banyan of Sultan was of the same group as that of the deceased.
4. The injuries on the deceased were first examined by the Jail Doctor, Irfan Ahmad, who noticed only the following two incised injuries:- "(1) Incised wound 2" x 1/3" cavity deep, transverse in direction 3" behind left nipple.
(2) Incised wound 2" x ----- skin deep on left upper abdomen transverse in direction," which, in his opinion, were caused by a sharp-cutting weapon, but on autopsy Dr. M. S. A. Faruqut discovered the following four injuries:-
(1) Incised wound left side front of chest 4" below left nipple in the sixth and seventh ribs measuring 2" x 1" x and chest cavity deep. Margins were clean-cut slightly crescentic cut and taking on the inner side with an acute angle near the tail.
(2) Transverse incised wound 2" x ----- x skin deep front of abdomen in the epgastrium. The margins were clean-cut and shape was crescentic cut.
(3) Abrasion vertical in shape inner side left upper arm 1" x 1/8".
(4) Incised wound vertical in direction 1" x ----- x scalp deep back of head. Margins were clean-cut shape ellipitical with acute angle."
5. Dr. Irfan Ahmad also examined Rais Ahmad, Bashir Ahmad, Mashir Ahmad and Manzoor Ahmad and so also the appellants and Hashim Rais had one incised wound on the back of his left thumb which was simple in nature and caused by a sharp-cutting weapon. Bashir Ahmad had the following two injuries:-
(1) Incised wound 2" x ----- tissue deep just below left jaw.
(2) Punctured wound 1/8" x 1/8" tissue deep on the left angle of mouth," which were simple in nature and caused by a sharp-cutting weapon.
Mashir Ahmad had three incised injuries:- "(1) Incised wound 1--" x 1/6" tissue deep on the palmer surface of right', thumb.
(2) Incised wound 2" x 1/6" tissue deep on the back of right lower palm.
(3) Incised wound ----- x ----- tissue deep on the left buttocks", which were also simple in nature and caused by some sharp-cutting weapon.
Manzoor Ahmad had one contusion on the back of his right hand which was simple innature and caused by some hard and blunt weapon. On Hashim, one contusion on the right cheek was noticed, which was caused by some and blunt weapon and was simple in nature.
On Ghulam Muhammad the following injuries were found:-
(1) Incised wound 3----- x 1/6" x tissue deep on the left forearm.
(2) Incised wound ----- x ----- x tissue deep triangular in shape on the rights-.
(3) Two abrasions each 1" x ----- on left knee joint.
(4) Lacerate wound --" x ----- x tissue deep on back of right ear." ---(1) Incised wound 1" x ----- x tissue deep on the left lower forearm.
(2) Incised wound 1----- x ----- x tissue deep on the left thigh," which were simple in nature and were said to have been caused by some sharp-cutting weapon.
6. Appellant Sultan, while denying his participation in the crime, gave out that some four to five hundred persons took part in a "free for all light". He, however, admitted that blood-stained shalwar was recovered from his person, and that the injuries on him were the result of a beating given to him by the police. Lastly, be alleged that the prosecution witnesses and so also the Assistant Superintendent of Jail were all Mohajirs and, therefore, they had falsely implicated him. Ghulam Muhammad denied his participation in the tight but explained his injuries on the basis that he received them while trying to intervene in the fight, but at the trial he gave out that some four to five hundred persons were involved in the fight and that while running towards his barrack he sustained the injuries, on account of which his clothes got blood-stained. He admitted that the clothes were secured from his person.
7. What we have observed from the evidence on record is that the prosecution case was not placed in its proper perspective at the trial. The report of Lumpe is based on the information conveyed to him by Manzoor Ahmad, but he has not been examined in the case. As for others, their names are not mentioned and it does not transpire from the evidence whether any of the prosecution witnesses bad conveyed to him the information which was disclosed in the report. The injuries on the person of the two appellants and Hashim were not disclosed in tile report and the impression given is that it was a one-sided affair, that is that the three acquitted accused and appellant Ghulam Muhammad had caught hold of the deceased while appellant Sultan stabbed him with the iron patri, which injury caused his death. There is also a mention of the securing of one iron patri only. The evidence, however' discloses that not only, one injury, which is attributed to Sultan, was found on the deceased but there were two other incised injuries and one abrasion for which there is no explanation as to who caused them. The jail doctor even minimised the number of injuries on the deceased by stating that he found only two "incised wounds". Again, the injured on the prosecution side had received injuries not only by a sharp-cutting weapon but also by a blunt weapon. On the side of the appellants and those acquitted, injuries by a sharp-cutting weapon, and so also by a blunt weapon, were found. There is also no explanation as to who caused such injuries on the appellants and acquitted accused Hashim. We have also noticed from the mashirnama of the wardat, Exh. 16, that spots of blood were noticed at different places. Blood was seen lying on the floor from barrack No. 8 up to the stairs of verandah of block No. 10. There was blood on the floor from the stairs of room No. 8 up to the verandah of barrack No. IV. In room No. 8, one blood-stained torn banyan and pieces of 'kanch' of a broken bottle were lying which were secured. Further, a blood-stained blanket was seen spread on the floor in the room and an iron patri wrapped in a blood-stained cloth was lying there, and a trail of blood was seen from the blanket in enough quantity up to a place towards the east, where one plastic chappal was lying. All these articles were secured and there can be no manner of doubt that they were used in the fight.
The Investigating Officer has omitted to mention about the se curing of the iron patri from room No. 8 and so also the glass pieces in his evidence.
8. No question was put to the mashir to elicit the above facts, nor did he say about the securing of these articles. The investigating officer merely spoke of some of the articles having been secured without giving any further information about the wardat. In the context of all ibis, the prosecution evidence has to be appraised. Bashir Ahmad and Rais Ahmad are brothers inter se. They furnish direct evidence in the case. Bashir Ahmad has stated that while he was returning after taking his meal, he saw the deceased going towards the laterine carrying a 'Iota' in his hand, he was called by Ghulam Muhammad and as he came near, Sultan inflicted a blow with a cutten on his chest.
Not only Taj but other persons, whom he was unable to identify, were also holding cuttens. As to the injuries under his chin, he explained it saying that it was acquitted Taj who had caused it. Rais Ahmad, the other eye-witness, stated that he saw three persons holding the deceased without naming them. Thereupon, Ghulam Muhammad instigated Sultan to kill the deceased who gave a cutten blow on his chest. Both the witnesses have spoken of one blow having been p given to the deceased without explaining the other injuries on him. Again, from the evidence it is not established that Ghulam Muhammad had held the deceased. Even the 'Iota' was not secured from the wardat. Sabir Husain, posing as an eye-witness, has merely stated that he saw the deceased going to the laterine with a Iota in his hand but did not say as to who killed the deceased although he admitted the presence of the appellants and the acquitted accused and also the fact that they were empty-handed. He, nonetheless, stated that there was a quarrel and that he had rushed to the Jamadar of the Jail to report to him about the quarrel. His evidence does not support the ocular testimony in so far as the killing of the deceased by Sultan with a cutten blow is concerned.
Obviously, the reference to a quarrel must be a fight and not in the fashion, in which the deceased was killed. Muhammad Nasir and Mashir Ahmad had gone together to the wardat on hearing the noise and seen the deceased bleeding from an injury on his chest. Muhammad Nasir, however, adds that on asking the deceased as to who caused the injuries, the deceased told him that Sultan had inflicted the injuries while Ghulam Muhammad had caught hold of him. Mashir Ahmad, who was also with Muhammad Nasir, has not spoken of what the deceased had told Muhammad Nasir.
If at all the deceased had spoken, there was no reason for mashir Ahmad to have suppressed it.
Again, the account given by Muhammad Nasir of what the deceased had told him, is not consistent with the evidence of either Bashir Ahmad or Rais Ahmad, who have not attributed to Ghulam Muhammad the part of having held the deceased. Besides, these two witnesses speak of one blow while the deceased used the words "inflicted the injuries", which again is not consistent. It is, therefore, not possible to give credence to the dying declaration. Mashir Ahmad has further stated that Sultan and Taj Muhammad were holding cuttens in their hands, which fact is denied by Muhammad Nasir although he stated that Hashim, Sultan and Ghulam Muhammad were also injured. There is, therefore, discrepancy even in the statements of Muhammad Nasir and Mashir Ahmad. Warden Rahmat Shah, stated that as he was returning from the barracks after delivering the keys to another warden, he heard an alarm and thereupon he hastened to the wardat, where he saw four to five hundred persons and learnt that five Pathans had killed the deceased. From whom he had heard so, is not apparent and his evidence, therefore is hearsay. After having scrutinised the evidence, it becomes clear that the deceased was not killed in the fashion, in which it was reported to the police. The presence of blood in room No. 8 on the blanket and the seizure of another cutten, pieces of cement plaster, broken pieces of a bottle and blood at various places suggest that the fight had started in room No. 8 between the acquitted accused and the appellants on the one band and the prosecution witnesses, who were injured and the deceased on the other. It is also not possible to accept as to who initiated the fight in the absence of any reliable testimony. Certainly, the story that the deceased was called while he was going to the laterine, with a Iota in his hand, which was not found, is not reconcilable with the presence of blood on the blanket and the recovery of the articles from room No. 8. The presence of blood at different spots shows that the fight had taken place not only in room No. 8 but at other places also. The injuries on the deceased, Rais Ahmad, Bashir Ahmad, Mashir Ahmad, Manzoor Ahmad and the two appellants and the acquitted accused suggest different types of weapons having been used. There is no explanation of the injuries on the appellants. From the above, the only inference that can be deduced is that there was a free fight and the participants were individually liable for their own part, but in the face of unreliable and discrepant evidence we are unable to conclude that it was Sultan who gave the fatal blow to the deceased. This much is, however, certain that he was one of the persons who had fought and that he must have at least caused one incised injure to the deceased as the blood on his clothes was found to be of the same group as that of the deceased.
As for the participation of Ghulam Muhammad, all that is said is that he had held the deceased, which is not even established beyond reasonable doubt from the evidence. The trial Court has not considered the above features in the evidence and has unduly laid stress on the evidence of Lumpe, to whom a wrong version of the, incident was given. In this view of the matter, Sultan can only be convicted, for causing simple injury in the absence of anything to show that the other two incised injuries were grievous in nature. We would accordingly alter his conviction from section 302 to section 324, P. P. C. And impose a sentence of imprisonment already undergone.
9. As for Ghulam Muhammad, no case of his participation in the fight is established, which, In our view, was, as observed earlier, a free fight. He is, therefore, entitled to acquittal. We would accordingly give to him the benefit of doubt and acquit him. His appeal is accepted while that of Sultan Khan is dismissed subject to the above modification in the sentence.