' AGHA ALI liviona, I.-The appellants were convicted by a learned Additional Sessions Judge Karachi for an offence under section 326/34, P. P. C., and sentenced to suffer R. I. For 4 years each, and a fine of Rs, 100 or in default to suffer R.1. For one month more. Aggrieved by the judgment of conviction and sentence, Muhammad Saeed has filed a separate appeal, being No, 403 of 1968 while Anwar Beg and Aziz Beg have filed Appeal No, 428 of 1968 jointly. An Appeal (No, 59 of 1969) has been filed under section 417, Cr. P. C., by the Assistant Advocate-General, against the acquittal of the appellants of the offence under section 302/34, P. P. C. As all the appeals emanate from the same judgment, we propose to dispose of them by a composite judgment.
2. The appellants Anwar Beg and Aziz Beg are brothers inter se. The appellant Muhammad Saeed Ahmad is their first cousin. It appears that in the afternoon of 30-7-1967, there was an incident, in which Anwar Beg had received a drubbing at the hands of Rauf since deceased, and his brothers P.
W. Muhammad Siddiq Khan and the complainant Munawwar Khan. There were no visible injuries received. Anwar Beg had, however, lodged a report at the Liaquatabad Police Station, Karachi, which was recorded in the roznamcha.
' I. The prosecution story is that at about 8-30 p.m. While Rauf and Munawwar V hen. Were at their shop in the name and style of Friends Electric Works and Decoration, in Lalukhet, the appellants and one Muhammad Saeed Militarywala, who is a fugitive from justice had turned up there. The absconder had dealt a knife blow to Rauf and when Munawwal Khan tried to intervene on behalf of his brother, the absconder Mohammad Saeed whipped out a revolver, but it dropped to the ground as he was struck on his hand with a tube light base by Munawwar Khan. All the culprits then took to their heels. However, the appellant Saeed, came to be apprehended after a short chase, with the assistance of a Police party, that happened to pass by. Rauf was rushed to the hospital by P. W.
Muhammad Siddiq Khan, while Munawwar Khan, after banding over the revolver to P. C. Sikandar Beg, proceeded to the Liaquatabad Police Station and lodged the first information report of the incident. Syed Siraj Husain, the S. H. O. Proceeded to the vardat and secured the blood-stained earth and some other articles. Later he examined Dilshad, Jabber, Mohammad Akhtar, P. C.
Sikandar Beg, Wazir All and some other persons, whose names have not been specified. Rauf succumbed to his injuries near about tne midnight in the Seventh Day Adventist Hospital. The S. H.
0. After preparing the inquest report, sent the dead body to the Medical Officer, Civil Hospital, for the post-mortem examination, and examined Anwar Ahmad, Nasiruddin and some other persons on 31-7-1967. The appellants Anwar Beg and Aziz Beg were arrested on 1-8-1967. As Mohammad Sneed, Militarywala, eluded arrest, the charge-sheet was sent against the appellants only, showing the former as an absconder.
4. The appellants Anwar Beg and Aziz Beg in their statements at the Court of Inquiry as well as at the trial, denied the allegations made against them. Anwar Beg, however, admitted having lodged the report of the earlier incident. Mohammad Saeed Ahmad made out at the trial, that he was caught on the other side of the road, near the Tin Matti Bus Stop, where he was waiting for a bus and was beaten. At the Court of Inquiry, he has also stated, that he wanted to lodge a report, which was not recorded.
5. Apart from the evidence of Munawwar Khan, Mohammad Siddiq and others, about the death of Rauf, there is the evidence of Dr. Audul Majeed Khan, who had held the autopsy finding the following injuries on the person of the deceased :-
(1) Incised wound about 1' x f" x skin deep on the medial side of left eyebrow.
(2) Incised wound about 1' x I" x skin muscle deep on the front of the upper part of medial side of left arm.
(3) Incised wound about 1' x f" x muscle deep on the medial side of left elbow side.
(4) Incised wound about 24" x 3/4' x muscle deep through and through on the upper part of the medial side of middle left thigh 4' below the middle ingunial region cutting the muscle blood vessels and nerves through and through, piercing the posterior part of the thigh about f" x 4" (blood vessels ligated). Injury No, 4 caused the damage of the vital blood cells profunda fernoris and femoral artery and veins.
(5) Three abraided contusions on the front of the face about 4" x each.
(6) One abraided contusion f- x 4" on the bridge of nose.
(7) Incision about 4' x f" on the medial side of right malious (incision given by the doctor the venes section).
' According to the Medical Officer, the injuries were ante-mortem and the injuries Nos. 1 to 4 appeared to have been caused by a sharp-cutting weapon, while the rest were with blunt weapon.
The death had occurred due to profuse bleeding and shock as a result of the injuries. In the light of the view we are taking, suffice it to say, that Rauf met his end, as a result thereof.
6. The eye-witness account of the incident has been furnished by the complainant Munawsvar Khan, Anwar Ahmad Khan and Naseeruddin. P. W. Mohammad Siddiq Khan had turned up after the incident. Sikandar Beg had only featured in the apprehension of the appellant Saeed, and has nothing further to say. Munaw war Khan has stated, that at about 8-30 p m he was closing his shop, better described earlier. His brother Rauf was tile only other person there, busy reading a newspaper. Saeed appellant and the absconder Saeed turned up and enquired from him, as to why he had beaten Anwar and Aziz. He had denied the allegations and asked as to who they were.
Aziz Beg and Anwar Beg then appeared on the scene. There was a danda with Aziz and Anwar bad a knife. They cried out "Kill I Kill 1" Rauf tried to intervene, when the absconder accused took out a knife and pierced it in the thigh of Rauf. He opened the shop and helping himself with a tube light base, rushed towards Saeed, the absconder. The latter took out a revolver, but he hit his hand with the tube light base and the revolver fell down on the ground. Saeed absconder ran away. When he looked towards Rauf, he found the appellants beating them, but seeing him, they also bolted away.
However, the appellant Saeed cane to be apprehended at the spot, with the help of a police party, who happened to arrive there. In the meantime, their elder brother Mohammad Saddiq came up, and took Rauf to the hospital, while he himself proceeded to the police station for the lodging of tae report. He also narrated the earlier incident, but alleged that Anwar was the first to beat him. He had, however, not lodged any report in this context.
8. He admitted in the cross-examination that when Anwar Beg and Aziz Beg had turned up at the shop, nobody else apart from them, was there. Nobody had come to intervene even later on. None of the accused had given any beating to him, though, they had the grievance against him for beating Anwar. He had also not raised any cries. He also unequivocally conceded, that when Saeed, the absconder had come to the shop, there was no knife or revolver in his hand. He also denied that they had caused any injuries to Saeed appellant, or that the latter had bled from his head. It was suggested to him, that he was not present at the time of the incident, but the suggestion came to be repudiated. He had, however, stated at the Court of Inquiry, duly brought on the record, that he had seen only the first stabbing attack on his brother and thereafter he had gone to the shop to fetch the tube light base. It is an admitted position that the blood-stained earth was secured from a distance of about 35 paces away from the shop. He had also stated there, that when he returned from the shop, he had found 10/i 5 persons standing, whose names he did not know. The assertion that when Anwar Beg and Aziz Beg had turned up, they were shouting "Kill ! Kill I", is also not to be found in the F. I. R. It is true that there are no injuries on his person, but as his presence soon after the incident is vouched by P. W. Sikandar Beg, there is no reason to doubt that he bad witnessed the incident.
9. The names of Anwar Ahmad Khan and Naseeruddin are not to be found in the F. I. R. Even Munawwar Khan has not chosen to mention them in his deposition. It also appears, that both of them were examined by the police on 31-7-67. Anwar Ahmad Khan on his own showing lived 2 miles away. He states to have been in a barber's saloon, near the vardat, and on coming out, had witnessed the incident from a distance of 4/5 paces. He knew the complainant's family since 3/4 years earlier, but did not participate in the chase, or go to the Police Station. When he however learnt of the death, the next day, he not only participated in the burial, but went to the family of the deceased for the condolence. Naseeruddin is an employee in a barber's saloon, near the vardat.
He states to have known the parties for 14 or 15 years. He also was examined the next day though he states to have slept that night at the saloon. On his own showing there were six other barbers working with him but have not entered the witness-box. There were 20/25 customers also, as he would have it at the Court of Inquiry. The appellants however found time to hear the entire talk and watch the entire incident. He says that he had not talked about the incident to any body and yet he is examined by the police the next day. And why not a word about him from Munawwar Khan, in the F. I. R., or even in his deposition? They look to be speak-easy witnesses, unworthy of reliance.
10. Munawwar Khan makes out that the appellant Saeed was empty-handed all along. Anwar Beg and Aziz Beg, had turned up a little later. Anwar Beg had a knife and Aziz Beg had a Banda. We do not find any independent support. Neither their shouting "Kill I Kill 1" finds a place in the F.
1. R., nor any beating by the three appellants. Further he had stated at the Court of Inquiry that he had seen only the first stabbing and then he bad gone away to the shop to fetch the tube light base. Any way, he does not ascribe any knife blow to Anwar Beg, nor any specific injury to Aziz Beg.
We have serious doubts at least about Anwar Beg having a knife in the open. The incident after all had taken place outside the shop and the earlier incident was rather trivial in nature. It is also admitted by him, that the absconder had taken out the knife and later on the revolver, from inside.
There is nothing on the record to show that the appellants knew that he was armed with any deadly weapons. Munawwar Khan, even in his examination-in-chief, has clearly stated that when Saeed the absconder had come he had nothing in his hand.
11. It was argued by Mr. Ahsanul Haq Qureshi, and later on by Mr. Hasan Inamullah for Saeed, that, if the appellants never knew about the presence of the knife, or for the matter of that, revolver, which was not used by the absconder, the appellants could not be fixed up with any vicarious liability, for the act of the absconder was individual and without any pre-concert or prearrangement. Mr. Ahsanul Haq Qureshi, in support of his argument, cited Saadat Mian v. The State (1), All Muhammad and another v. The State (2). Yuosuf and another v. The State (3) and Shihab Din v. The State (4).
12. In Soadat Mian's case the two co-accused were stated to have pulled out the victim from the tonga, and then were holding him by the collar and his legs, when Saadat Mian is alleged to have struck the fatal knife blow. It was found that the other two accused could not be imputed
(1) PLD 1963 Kar. 745 (2) PLD 1965 Kar. 135
(3) PLD 1963 Pesh. 118 (4) PLD 1964 SC 171 ' with the necessary ingredients of section 34, P. P. C. Because their intention could be no more than helping Saadat Mian in the thrashing. In Ali Mohammad's case, the firing was done by Ali Muhammad. Soomer, the other accused had a hatchet but had done nothing more than brandish it, in the air, to warn off the pursuers. There also, the pistol had been taken out by the co-accused from under an ajrak. The common intention was therefore ruled out though Soomer bad the real motive to avenge his brother's death. In the Supreme Court case, the sudden use of the knife by one of the accused was found to be his individual act. The case of Yusuf and another is somewhat dissimilar but enunciates the principle in which common intention might be inferred.
13. Giving our anxious considerations to the evidence on the record, we have reached the conclusion, that the case against the appellants is not free from a reasonable doubt. We will, therefore, set aside their conviction and sentence and allow their appeals. They are on bail and their bail bonds stand cancelled. The appeal under section 417, Cr, P. C. Was only about the nature of the offence. To dilate on the nature of the injury, will be an essay in a futility, in view of our conclusions. The Acquitta Appeal No, 59 of 1969, therefore, stands dismissed.