' AGHA ALI HYDER, J.- The appellant, his brother Mahboob and their father Ayub were tried by the learned Additional Sessions Judge, Karachi, for an offence under section 302/34, P. P. C. Mahboob bad died before the judgment was announced, though the learned Additional Sessions Judge, in spite of the abatement of appeal, has chosen to say that he was given the benefit of doubt.
Mahboob was acquitted, and the appellant was convicted under section 302, P. P. C. And sentenced to life imprisonment. He has come in appeal.
2. The appellant was a neighbour of the complainant, Abdul Lateef. The prosecution story is that the appellant's family had built an uncovered water tank on plot No, G. 121/3 for the purposes of constructing their house. It is alleged that the relations between the parties were estranged, and, when, on 10-6-1972, Abdul Naim, the son of the complainant, aged about eight years, had happened to go by the side of the water tank, he came to be drowned. Later, they had taken the child to the Hospital, and informed the complainant at the Lyric Cinema in regard to the death of Abdul Naim as a result of an accident. In this very context, it might be mentioned that Abdul Lateef had gone to the Malir Police Station on the date of the incident, and reported about the death of his son as accidental. On 13th June, 1972 the complainant addressed a letter to the Superintendent of Police, requesting for action to be taken against the appellant, and his two other family members, referred to earlier, as they had committed the murder of his child Abdul Naim "with the help and in conspiracy of his father Ayub and brother Mahboob deliberately." It went on to say that he and his wife had gone to the Police Station, but the report was not lodged. It also made certain insinuations against the Police authorities concerned. There was a further request that the investigation be entrusted to the C I. A. Or, Special Police, or, any other police agency. However, the Police authorities evinced no further interest in the matter, and Abdul Lateef filed a complaint against all the three persons before a Magistrate at Karachi, culminating in the aforesaid judgment.
3. The defence was that of denial. The appellant stated that once his family members had learnt about the drowning of the child, they had immediately taken him to the Nihal Hospital in a taxi, where he was declared to be dead. The appellant, therefore, protested his innocence in the matter.
Two defence witnesses, who were neighbours, were also examined on their behalf.
4. The ocular testimony has come from Mat. Zaibunnisa, the sister, and Mst. Rashida Bano, the mother of the deceased, and two other people, namely, Abdul Ghafoor and Ghulam Ali. Abdul Lateef and Ibrahim have only derivative versions to offer.
5. Mst. Zaibunnisa states to have seen the appellant dipping Abdul Naim into the tank, and that she had rushed to her mother, and, when they came together, they had seen the appellant and his family members taking away the child in a taxi. However, after about forty-live minutes, her mother returned with the dead body of Abdul Naim, and, when her father came to the house, at about 3-00 p.m., they bad apprised him of the incident. This is what has been deposed to also by Mst. Rashida Bano, who also says to have seen the appellant, and the two other culprits, since acquitted, doing the dipping within her view. She also mentions her following the appellant and his two companions to the Hospital separately in a rickshaw. She also added that her husband had come to the house at about 3-00 p.m., and they had broken the news to him. Abdul Lateef, however, has stated that he had been supplied wrong information by Ayub at the Hospital, and he was made to get down at the Police Station, wherein he had lodged the Report in his own writing. It was on his return that he had learnt from his wife and daughter that Abdul Naim had actually been killed by the appellant and his family members by drowning. News to this effect had later been supplied to him by P. Ws.
Abdul Ghafoor and Ghulam Ali. He had again, therefore, gone to the Police Station for action being taken, but with no results. Even the higher authorities from the Police Department refused to move into the matter, with the result that he had to file the complaint. It is also to be seen that both he and his wife, Mst. Rashida Bano, had mentioned that the appellant had tried to drown Abdul Naim earlier also on a few occasions. Abdul Lateef also talks about the estranged relations of the parties.
6. It is to be seen that the appellant in the information supplied to the Police authorities, which is on the record as Exh. A-4, specifically mentions that he had reached home after getting the news of his son's death, and found him dead. On his own admission, this information was in his handwriting.
Even Mst. Rashida Bano and Mst. Zaibunnisa mention his coming to the house at 3.00 p m., while the Report is lodged after 4-00 p.m. It is clearly, therefore, to be seen that the version of Mst.
Rashida Bano and Mst. Zaibunnisa in regard to the seeing the actual drowning is only an afterthought. Otherwise too, on their own showing, it was the appellant and his family members, who had taken the child to the Hospital, and that could not be the conduct of guilty people. P. Ws.
Abdul Ghafoor and Ghulam Ali state to have seen the appellant holding Abdul Naim, and dipping him into the water. However, they had gone away, and, when they returned after about twenty minutes, or, so, they learnt about the death of the child. The complainant in his letter to the Superintendent of Police, which is on the record, had mentioned the name of the witnesses of the incident. Among the people from outside, he has specifically mentioned Syed Waris Ali, Noor Muhammad, Fahimuddin and Muhammad Ibrahim. The names of these witnesses i,e, Abdul Ghafoor and Ghulam Ali are not to be found at all, though these persons are stated to have talked about the incident to him much earlier. Their names, for the first time, have been mentioned in the complaint. Patently, they are speak-easy witnesses, unworthy of any credence. Waris Ali, Noor Muhammad and Fahimuddin have however not been examined at all.
7. The only other witness examined at the trial was Dr. Omar Khan, the Police Surgeon of Karachi, who had conducted the post-mortem examination. He has clearly stated that there were no marks of any external injury anywhere on the dead body. He has also mentioned that the sphincter was relaxed; there was no discharge at the anal region, and there were no inflammations, redness tear or bleeding at the anal region. No attempt was made to examine any police officer. Obviously, a case has been spun out by the family members of the complainant on some suspicion against the appellant and his family members. The other two witnesses, namely, Abdul Ghafoor and Ghulam Ali arc totally unworthy of any reliance, as they would be mere chance witnesses, who appeared on the scene at a very late stage. Abdul Ghafoor says that he had broken the news to Abdul Lateef on the day of the incident at 11-00 p.m. Ghulam Ali states that he had talked about it to Abdul Lateef the next day. There is no explanation as to why there people have not been specifically mentioned by the complainant in his report to the Superintendent of Police.
8. This being the state of the record, the finding of conviction arrived at by the learned Additional Sessions Judge is totally insupportable. I will, therefore set aside the conviction and sentence, and allow the appeal. The appellant is in custody, and would be released forthwith, unless wanted in connection with some other case.
' JAMALUDDIN, H. AHMED J,-I agree.