MUHAMMAD GUL, J.----Akbarali, son of Muhammad, aged 34 years, was fatally stabbed on September 3, 1964, at 7 p.m. In the area of Kharadar Police, Karachi City. He died later while being taken to the hospital. Twelve persons were tried under sections 302/109/148/149/387, 120-B of P. P. C.
For the murder. Of them, nine, namely, Kamal alias Kalia, Khuda Bakhsh, Usman, Rasul Bakhsh, Ibrahim alias Abroo, Jamma, Ghulamali, Shaukatali and Moosa Lashari were acquitted by a learned Additional Sessions Judge, Karachi. Of the remaining three, Murad A.I Lashari (hereinafter referred to as Murad) aged about 28 years, and Karim Bakhsh, aged 29 years, were convicted under section 302/34, P. P. C. And sentenced to death. The third, namely, Amirali Ladiwala (hereinafter referred to as Ladiwala) also aged about 29 years was convicted under section 302 read with section 109, P. P. C. And sentenced to transportation for life.
The two condemned prisoners have filed joint Criminal Appeal No. 130 of 1966. Their case is also before us for confirmation of death sentence. Ladiwala has filed Criminal Appeal No. 159 of 1966.
This judgment will dispose of, the two criminal appeals and the criminal reference under section 374, Cr. P. C.
2. The first information of the incident was lodged by Ghulamali (P. W. 5) an eye-witness at about 7-30 p.m. The same evening at Kharadar Police Station. It is Exh. 15 and was recorded by S. H. O.
Khwaja Ziaullah (P. W. 30). According to the report, the informant Ghulamali and Sherali (P. W. 4) at the time of occurrence, were sitting together on the passenger seat of auto-rickshaw belonging to the later, by the side of Sadru hotel, at the corner of Parya Street and Rehmatullah Street. Akbarali deceased joined them and sat astride on the driver's seat facing the passengers seat. Within few minutes of the arrival of Akbarali, as they were engaged in conversation, Murad appellant appeared on the scene and stabbed Akbarali deceased in the chest with a knife. After receiving the knife thrust, Akbarali ran along Rehmatullah Street in a bid to flee Ghulamali informant was taken aback by this sudden attack and followed the deceased to know what the matter was, when another "Makrani of young age whose hair on the head were erect" also joined Murad and the two ran in pursuit of Akbarali. Akbarali, however, fell down near the corner of Hussain Rashid Building where both Murad and the other Makrani inflicted further knife blows to the victim. A number of other Makranis followed the two assailants brandishing knives and lathis to terrorise and to keep away the people from Intervening. The informant tried to grapple with one Makrani who carried a lathi, when his companion, another Makrani, threatened the informant with knife and out of fear he released his grip and let the Makrani with that lathi, go. The assailants and their companions then hurried from the scene of occurrence brandishing knives and lathis, with a view to preventing their pursuit. Ghulamali informant then went up to Akbarali, where he lay injured. He lifted him and laid him on a cot which was lying close by. The informant was asked by Akbarali to call his mother who lived in a side building. She had already heard the commotion in the street. When she reached the spot and saw her son with stab wounds, she started crying. The deceased, however tried to comfort her with the assurance that he would be alright and added "all that was done by Amirali and Murad and their party". The deceased then took out some money from his pocket and took off his wrist watch and handed over to his mother. At this stage Foot Constable Noor Muhammad (P.
W. 28) who was on his beat, also reached the spot. A rickshaw was then arranged in which Akbarali was taken to the Civil Hospital, by his mother and Ghulamali the informant. Foot Constable Noor Muhammad followed them in another rickshaw. However, the doctor on seeing Akbarali declared that he was already dead. The report concluded by the statement that it was subsequently learnt that all "the said persons had come in taxis".
3. The F. I. R. Does not refer to any motive for the crime. However, during the investigation of the case, the following facts were discovered which constitute the motive for the crime.
4. One Ismail Lalji, maternal-grandfather of Ladiwala was paid Rs. 700 p.m. By Capt. Am irali (P. W 23) as Estate Agent to his Highness the Agha Khan. After death of Ismail Lalji, the payment was continued in favour c f his widow Mst. Fatima Bai Lalji. On her death in 1960, the payment was discontinued, Musa son of Ismail Lalji getting nothing. Ladiw tla claims that Ismail Lalji during his lifetime deposited Rs. 1,40,000 with Capt. Amirali as the Estate Agent and the monthly payment of Rs. 700 to Ismail Lalji and then to his widow Mst. Fatima Baire presented interest due on the deposit at the rate of Re. I per cent. On the basis of some declaration of gift in his favour by Fatima Bai, Ladiwala demanded repayment of the amount by Capt. Amirali. Capt. Amirali, on the other hand, treated Ladiwala's claim as false and a pure concoction. The monthly payment of Rs. 700 to Ismail Lalji and after him to his Aidow was not denied, but it was stated to be pure'y in the nature of gratuity (Bakhshish) from H. H. The Agha Khan. It was maintained that after the discontinuance of the payment on the death of Mst. Fatima Bai, the present Agha KLa is ordered monthly payment of Rs. 125 to two daughters of Mevsa, named Laila and Farida till their marriage and Rs. 20 per month to his son Amin as gratuity. Obsessed by the genuineness of his claim, Ladiwala petitioned to H. H.
The Agha Khan for his personal intervention in the matter. It is the prosecution case that outright refusal by Capt. Amirali of Ladiwala's claim led to the murder of the deceased Akbarali who, it may be mentioned here, is a distant relative of Capt. Amirali and lent support to the latter in his repudiation of Ladiwala's claim.
5. The prosecution story unfold itself like this. On or about August 10, 1964, Ladiwala called on Capt.
Atoirali in his office in Qamar House and confronted him with demand for Rs. 1,40,000 which his grandfather had deposited with him. Capt, Amirali repudiated the claim out of hand. Ladiwala repeated his visits to Capt. Amirali in his office to press his demand, on the following two days. On the last of such visits, he became rude and tried to intimidate Capt. Amirali who asked him to get out of his office. A few days later, Ladiwala with Murad went to see Akbarali Husaini (P. W. 19) in his office at the Intercontinental Hotel, Karachi in the same connection. Akbarali Husaini is a partner of Capt. Amirali in transport business. The two visitors told him that they had been sent by Moosa Lashari (one of the acquitted accused) to ask him to persuade Capt. Amirali to accept the claim of Ladiwala. In the course of conversation, Ladiwala explained to Akbarali Hussaini the nature of his claim and also mentioned documents in his possession in support of his claim. Akbarali Hussaini promised to broach the subject with Capt. Amirali and took sometime to do so. A few days later, wt.
En Ladiwala and Murad appellants again met Akbarali Husaini in his office, he told them that Capt.
Amirali has refused payment on the ground that the claim was false. On hearing this, both Ladiwala and Murad were enraged with this brusque repudiation of the claim and left extending threat that Capt. Amirali shall have to make the payment or else land himself into trouble.
6. Akbarali Husaini felt concerned over the threatening attitude of Ladiwala and Murad. During one of their visits to him, it transpired that Murad appellant was doing business in vegetables at Lea Market. Abdus Sultan (P. W. 21) a distant relative of Akbarali Husaini was also a vegetable grower and a wholesaler. He was also a joint Mukhi of Khoja community. Therefore, Akbarali Husaini thought that Abdus Sultan as joint Mukhi should be able to exercise influence both over Ladiwala who was also a Khoja, and Murad by virtue of his being engaged in the same trade as Abdus Sultan. Therefore, he decided to utilize the good offices of Abdus Sultan to help settle the matter.
Accordingly, Akbarali Husaini met Abdus Sultan and recounted to him what had transpired between him, Ladiwala and Murad after he had conveyed them Capt. Amirali's refusal to accept Ladiwala's claim. He, therefore, requested Abdus Sultan to persuade them not to create unnecessary trouble- and, if possible, to iron out the matter. Abdus Sultan agreed that he would talk the matter over with Ladiwala and Murad. Two days later, that is to say, on the 17th of September 1964, Abdus Sultan met Ladiwala, Murad and one Walloo at about 8 p.m. At A.I's tea shop near Jamaat Khana on Britto Road in Garden East Area. It is not quite clear whether this was a chance meet or was it pre-arranged. Abdus Sultan broached the subject about which Akbarali Husaini had requested him. In the course of discussion Ladiwala reiterated the genuineness of his claim based as it was, according to him on documents. In the course of the conversation a suggestion was made that these documents should be looked into in presence of the parties at the house of Abdus Sultan. In the meantime, Akbarali Husaini while coming out of the Jamaat Khana was seen by Abdus Sultan who called him in. Abdus Sultan told Akbarali Husaini that he had talked over the matter with Ladiwala who stated that he had some documentary proof in support of his claim and that he would be prepared to produce those documents at a meeting at his (Abdus Sultan's) house provided Capt. Amirali also attended the meeting. Abdus Sultan also suggested to Akbarali Hasaini to attend the meeting besides Capt. Amirali. Accordingly, the meeting was arranged at Abdus Sultan's house on August 19, 1964. A day before the projected meeting, Akbarali deceased and his brother Ashiqali (P. W. 27) saw Akbarali Husaini (P. W. 19) in his office in the Intercontinental Hotel. In the course of conversation, he mentioned about threats extended by Ladiwala and Murad and the projected meeting at Abdus Sultan's house on the following day to settle the dispute between Ladiwala and Capt. Amirali. On hearing Akbarali Husaini, the deceased and his brother Ashiqali volunteered to attend the meeting. They also observed that Ladiwala and Murad were both black-mailers and were trying to extort money from Capt. Amirali. The deceased and his brother had perhaps two-fold reason for their obtrusiveness. Firstly, a, s pointed out already, they were distantly related to Capt. Amirali, and, secondly, in March 1964, the deceased and his two brothers Ashiqali and Haiderali were respondents in cross security proceedings under section 107/117, Cr. P. C. For the maintenance of peace against Ladiwala and one Abdur Rahim Hashim though the cross cases were later compromised. Akbarali Husaini then went to Capt.
Amirali to inform him of the projected meeting at the house of Abdus Sultan. The deceased and Ashiqali also accompanied him. 'Capt. Amirali on hearing Akbarali Husaini agreed to attend the meeting at Abdus Sultan's place. On the following evening as arranged, the deceased and Ashiqali went to Akbarali Husaini's office to accompany him to the projected meeting at Abdus Sultan's house. From Husaini's office, all the three went to Qamar House to take Capt. Amirali to the meeting at Abdus Sultan's house. However, Capt. Amirali vas then not in his office, though his wife's brother Hasanali Villiani (P. W. 22) was present who on being told of the impending meeting at Abdus Sultan's house opined that it would be inadvisable for Capt. Amirali to go to the meeting and that he would attend the meeting on his behalf. Accordingly, all the four went to Abdus Sultan's house at about 8 p.m. Thus, Hassanali Villiani (P. W. 22), Akbarali Husaini (P. W. 19), the deceased and his brother Ashiqali (P. W. 27) attended the meeting on behalf of Capt. Amirali (P. W. 23) and Ladiwala his father-in-law Ghulamali, brother-in-law Shaukatali, Murad and Walbo represented the other side. Abdus Sultan started the discussion and asked for the documents upon which Ladiwala relied in support of his claim. Ladiwala showed him a letter scribed in Gujrati (Exh. 47) and a telegram (Exh: 48). After perusal of the two documents, Abdus Sultan handed over the same to Hasanali Villiani saying that these documents did not specify any amount. Hasanali Villiani expressed the same opinion that no deposit of amount was stated in these documents, Ladiwala and Murad were infuriated by these observations and snatched the documents from Hasanali Villiani declaring that the amount in question shall have to be paid anyhow or else there will be trouble. At this stage, Akbarali deceased intervened saying that Ladiwala and Murad were unnecessarily generating heat to harass Capt. Amirali. To this Ladiwala and Murad reacted rather sharply and said that Akbarali deceased and his brother considered themselves to be brave (bahadurs), but they may also land themselves in trouble. At this stage the meeting ended on Ghulamali's remark that it is not possible to settle the dispute which will be settled in due course.
7. After the abortive meeting at Abdus Sultan's house, Capt. Amirali started getting telephone calls threatening him that unless he would pay Rs. 1,40,000 to Ladiwala, his children would be kidnapped, and he himself and his family members would risk bodily harm. Regarding the first call, the caller identified himself as Murad, a friend of Ladiwala. These threats were repeated between the 20th and 27th August 1964, though save in the case of the first call, the person calling did not disclose his identity. During this period, the deceased and his brother Ashiqali met Capt. Amirali and on hearing from him about the threats on the telephone, assured him of their help. Captain Amirali also requested them to take care of his family members and also Habib Villiani (P. W. 6) Habib, besides being a partner with Capt. Amirali in a cosmetic shop run under the name and style of "Valico" at Shahra-i-'raq, was also son of his brother-in-law Hasanali Villiani. The threats to Capt.
Amirali on the telephone however continued. In an effort to stop this nuisance, Akbarah Husaini, and Ablus Sultan (P. Ws.) on a suggestion by the former, went to see Musa Lashari (acquitted accused) at Jahanabad who being a leader of Leshari tribe could use his influence with Murad to dissuade him from harassing Capt. Amirali by threatening telephone calls. Musa Leshari, however, instead of being responsive to their request advised his visitors to persuade Capt. Amirali to be ter settle the affair with Ladiwala. Eventually, Capt. Amirali in consultation with his brother Mr. Zulfiqarali Villiani, who is an Advocate, addressed an application dated the 27th August 1964 (Exh. 51) to the D.
1. G. Police, Karachi, for armed police guard for the protection of his family and those of his brother Zulfiqarali Villiani and brother-in-law Hasanali Villiani. As a result, armed guards were posted as requested in the application. After the posting of the armed guards, Musa Leshari (who had in the meantime entered Dr. Pinto's private hospital, in Soldier's Bazar, Karachi, for treatment) sent for Akbarali Husaini through Abdus Sultan to see him in the hospital. Accordingly, Akbarali Husaini accompanied by Ashiqali (P. W. 27) went to gee Musa Leshari in the hospital. He told them that Captain Amirali by taking the matter to the police had created an awkward situation and now there is no alternative for him except to pay the amount to Ladiwala before things get worse. This purported to be a warning.
8. This brings us to the events on the day of occurrence, September 3, 1964, between 5 and 6 in the evening on that day, a group of nine Makranis including Murad and Karim Bakhsh appellants, all residents of Jahanabad, a suburb of Karachi, asked Daman Khan (P. W. 1) to take them in his jeep for they had to meet Musa Leshari in Dr. Pinto's Hospital. Daman Khan was then in the employment of Musa Leshari as his jeep driver. Daman Khan took these nine persons in his jeep to Dr. Pinto's Hospital. Of the nine, two, namely, Murad appellant and Kamal (acquitted accused) went inside the hospital to see Musa Leshari. They returned after a short while. Murad appellant went in again taking with him Daman Khan to see Musa Leshari. Musa Leshari instructed Daman Khan to take the nine persons he had brought from Jahanabad to any place they wanted on Bunder Road, adding that he shall not in any case take them to any place off the Bunder Road. With these instructions, Daman Khan drove the nine persons along the Bunder Road. Ultimately, the jeep was halted near Light House Cinema in front of Jagirdar Hotel. There, the nine passengers got down and engaged two taxis, one of which was big taxi driven by Khurshid Ahmad (P. W. 2) in which five of the nine got seated. The other was a baby taxi driven by Ilyas Khan (P. W. 3) in which the remaining four persons were seated. The two taxis were taken along Frere Road then to Victoria Road and then to Elphinstone Street, where the big taxi stopped in front of "Household Stores" belonging to Ghulamali and Shaukatali (acquitted accused) respectively father-in-law and brother-in-law of Ladiwala.
The baby taxi following the big taxi also stopped in Elphinstone Street on the opposite side near Capital Cinema. Two among the passengers in the big taxi went inside the "Household Stores" and the remaining came out of the taxi and started strolling casually on the footpath. These persons were seen by Fatehali (P. W. 7) who is salesman in a business concern, known as "New Johnson Watch Co." opposite to the "Household Stores". Fatehali telephoned Habib of Valico (P. W. 6) to say that some Makranis had gathered in the "Household Stores". Habib in turn telephoned Haiderali (P.
W. 20) a brother of Akbarali deceased about what he had learnt from Fatehali of New Johnson Watch Co. And requested him to come to his shop immediately for he felt nervous. In response to this request Haiderali and his brother Ashiqali P. Ws. Got into their car and reached Valico at Shahrah-i-Iraq within a few minutes. They found Habib panicky and assured him that there was nothing to worry about. Habib asked Haiderali to go and find out what was happening in "Household Stores", which was not far from Valico. Haiderali went to "Household Stores" but stood at a distance and saw two or three Makranis outside on the footpath near the big taxi parked outside.
After five minutes or so, he saw Ladiwala, Murad appellants and Ghulamali and Shaukatali emerging from "Household Stores". Another Makrani also came out of the shop with them but he remained hidden from the view of Haiderali therefore could not be recognized by him. After seeing the five persons coming out of the "Household Stores", Haiderali returned to Valico to affirm the presence of the Makranis in the "Household Stores" but he assured Habib that there was nothing to worry about. Haiderali and his brother Ashiqali both remained with Habib so that he may regain his composure.
9. To complete the narrative, it is necessary to refer to yet another essential link in the prosecution case, so far it concerned the existence of conspiracy to murder Akbarali deceased. After Fatehali of New Johnson Watch Co. (P. W. 7) had telephoned Habib of Valico (P. W. 6) about the presence of Makranis in "Household Stores", a customer, namely, Rashid Husain (P. W. 10) came to New Johnson Watch Co. To purchase strap for his watch. He was an old customer of the shop. Finding Fatehali inattentive, he asked the reason therefore, to which Fatehali replied that there was going on a dispute in his community in connection with which some Makranis had just come and entered the "Household Stores". He also requested Rashid. Hussain, to go and see what was happening in Household Stores. Rashid Hussain went and returned after a few minutes and told Fatehali that there were some Makranis who were talking in Sindhi or Karachi language which he could not quite follow. On a request by Fatehali about his address, Rashid Hussain gave him his visiting card with his full address.
10. After the return of Haiderali (P. W. 20) from his errand to the Household Stores, Ladiwala is alleged to have joined the five Makranis in the big taxi driven by Khurshid and drove off to Paria Street via Regal Cinema followed by the baby taxi, driven by Ilyas Khan who had four passengers with him. Ultimately, the two taxis stopped in Paria Street at some distance from Sadru Hotel at the corner of Paria Street and Rehmatullah Street, mentioned already. The passengers in the two taxis including the three appellants got down. At the alleged pointing out of Ladiwala, Murad appellant and another, later identified as Karim Bakhsh appellant assaulted Akbarali deceased with knives in the manner stated in the F. I. R. Referred to in the beginning.
11. After Haiderali (P. W. 20) had returned from his errand to Household Stores, he and his brother Ashiqali (P. W. 27) remained for about 45 minutes with Habib (P. W. 6) when an unidentified person telephoned from Rehmatullah Street asking Habib to inform Haiderali and Ashiqali that their brother Akbarali had been stabbed and taken to Civil Hospital. Hearing this, Haiderali and Ashiqali rushed to Civil Hospital to find that their brother had already expired. Their mother Mst. Jainabai was also in the hospital. Ashiqali took his mother to the house while Haiderali remained in the hospital with the dead body of his brother.
12. In the meantime, Ghulamali (P. W. 5) left hospital to lodge the report. After recording the report, the investigating officer Khawaja Ziaullah (P. W. 30) immediately proceeded to the hospital. In the hospital after preparing the inquest report (Exh. 27) and arranging for the post-mortem examination of the deceased, he recorded the statement of Haiderali. The Investiga--ting Officer then went to the scene of occurrence and prepared memo. Of the place of occurrence (Exh. 25) with a sketch of the scene of offence on the reverse. White he was busy preparing Mashirnama of inspection, Hasanali Nur Muhammad (P. W. 14) appeared before him pro bono publico at about 9- 50 p.m. And gave him clue which led to tracking down of two taxis bearing Nos. KAP 1568 and KAU 7722 of which be had kept a note in his diary. This was apparently a very useful clue to track down the taxis. The eye-witnesses to the occurrence, namely, Sherali, Jafarali, and Shamasuddin were examined by the Investigating Officer between 1 a.m. And 2-30 a.m. The same night.
13. The autopsy was performed by Major A. Hasan who found the following injuries on the body of the deceased :-
(1) A transverse incised wound 1--" x --" x 1--" deep in front and right of the neck.
(2)A transverse incised wound --" x --" x 5" deep on left side front of chest below the collar bone direct inwards.
(3) A vertical incised wound 2" x --" x of inlet on outer side and middle of left arm with an outlet --" x --" on the inner side of same arm, 3--" apart.
(4) An oblique incised wound 3" x --" on the palm of right hand with an outlet wound --" x --" on the back of the same hand.
(5) A vertical incised wound 1--" x --" x 4" outer and middle of right thigh.
(6) An abrasion --" x --" on the left elbow.
14. The three appellants pleaded not guilty to the charge. However, of them Ladiwala did not deny that he had a claim against Capt. Amirali for Rs. 1,40,000 which the latter refused to accept. He admitted that he had also addressed an application to His Highness the Agha Khan and the matter is still pending a decision. He also stated that after the return of Capt. Amirali from Europe where he had gone to see H. H. The Agha Khan. He met Amirali in his office in connection with his claim. He, however, denied that he ever threatened him with a view to coercing him to make the payment or he ever sought the help of Murad or anybody also to terrorize Capt. Amirali into accepting his claim. He maintained that all talk with regard to payment of his claim with Capt. Amirali was conducted on business level with no attempt to intimidate him. He stated that the case against him was absolutely false engineered at the instance of Capt.
Amirali with a view to getting him out of way so that he may not have to make the payment of his claim. He further added that Capt. Amirali by virtue of his position as the Estate Agent set the members of Khoja community against him because he had the temerity to write direct to H. H. The Agha Khan pressing for his claim of Rs. 1,40,000.
15. Murad appellant also denied the charge against him on the plea that the case has been fabricated against him at the instance of Sub-Inspector, Ashfaq of Khadda Police Station who was annoyed with him because he refused to depose in an important criminal case in accordance with the Sub-Inspector's wishes. He further added that it was because of his enmity with the Sub- Inspector that he had to leave the Kala Kot area within the Khadda Police station and sought employment in a hostel at Mango Pir wherefrom he was arrested by Sub-Inspector Ashfaq He professed his innocence in the murder of the deceased. Similarly, Karim Bakhsh pleaded innocence and stated that he was at the relevant time at Hab Nadi in Lasbila District where from Aqib Shah, Sub-Inspector had arrested him.
16. It would be advantageous for a proper appreciation of arguments addressed in the case to set out briefly at this stage the findings of the trial Court on the various aspects of the case. The learned trial Judge virtually rejected as unreliable, the entire evidence relating to conspiracy for the murder of Akbarali deceased. He rejected the evidence of Akbarali Husaini, P. W. 19 Abdus Sultan P.
W. 21 and Ashiqali P. W. 27 wherein they had stated that they had gone to see Musa Leshari on different occasions to seek his help to dissuade Murad from his bellicose behaviour towards Capt.
Amirali, but that they found Musa Leshari infected with the same mania as Ladiwala and Murad appellants. Accordingly, it was held that not a single fact was proved to involve Musa Leshari in the conspiracy. Similarly, the evidence of the above witnesses and that of Hassanali Villiani (P. W. 22) and Ashiqali (P. W. 27) concerning the holding of meeting at the house of Abdus Sultan on August 19, 1964, was altogether disbelieved being described as "crude fabrica--petition". This pro tanto eliminated the whole evidence about the threats at these meetings extended by Ladiwala of the deceased and his brothers. On the above appraisal of the evidence therefore, the learned trial Judge had no difficulty to record the acquittal of the nine accused who were not directly concerned in the main transaction in Rehmatullah Street, resulting in the murder of the deceased.
17. As regards the case against Ladiwala, the finding of the learned trial Judge was that Ladiwala strongly believed in the genuineness of his claim against Capt. Amirali and tried to "tackle (him) by threats". The learned trial Judge, however, disbelieved the evidence of Akbarali Husaini (P. W. 19) regarding Ladiwala and Murad having seen him in his office to ask him to persuade Capt. Amirali to accept the claim of Ladiwala. This evidence was characterized as "unnatural and fabricated".
The learned trial Judge also found that it was not satisfactorily established that Ladiwala joined the Makranis at the Household Stores, an hour or so, before the actual occurrence or that he accompanied the assailants to the scene of occurrence or that it was at his pointing that Murad and his companions stabbed the deceased. Nevertheless, the learned trial Judge found Ladiwala guilty of abetment of the murder of the deceased on the ground that Murad and Karim Bakhsh were proved to have stabbed the deceased to death and since they were not acting independently, they were instigated by Ladiwala who had a strong motive against this deceased.
18. Murad and Karim Bakhsh were convicted by the learned trial Judge on the evidence of eye- witnesses Sherali (P.W.4), Ghulamali (P.W.5), Jafarali (P. W. 8) and Shamsuddin (P. W. 9) of these witnesses, the learned trial Judge particulary found Sherali and Jafarali creditworthy. Both these witnesses definitely implicated the two condemned appellants in the murder of the deceased. In this behalf, the learned trial Judge also relied upon the dying declaration in the F. I. R. And application (Exh. 51) whereby Capt. Amirali sought the police protection.
19. Taking the case of Ladiwala first, Mr. Tufailali Abdur Rehman appearing on his behalf, urged that having disbelieved the prosecution evidence, relating to the meeting of August 19, 1964, at the house of Abdus Sultan, and the previous visits by Ladiwala and Murad to Akbarali Husaini in his office in the Intercontinental Hotel, and having further found that it was not satisfactorily proved that Ladiwala had joined the Makranis at Household Stores, or that he accompanied them to the scene of occurrence, the learned trial Judge could not have possibly recorded the conviction of Ladiwala for the offence of abetment of murder of the deceased. According to learned counsel, the process of reasoning on which the learned trial Judge held Ladiwala to be guilty of abetment, rests on the premises that since Murad and Karim Bakbsh had definitely killed Akbarali and they had no personal motive, they must have killed at the instigation by Capt. Amirali, who had an obvious motive. Learned counsel, however, conceded that Ladiwala may have a motive against Capt.
Amirali but emphasized that it by itself would not sustain conviction for abetment to murder in the absence of evidence of an overt act. It was submitted that the learned trial Judge virtually accepted the motive as the sufficient evidence of abetment.
20. There is force in the argument. As pointed out already, the learned trial Judge totally disbelieved the evidence of Akbarali Husaini (P. W. 19), Abdus Sultan (P. W. 21), Ashiqali (P. W. 12) and Hasanali Villiani (P. W. 22) regarding the threats extended at various occasions by Ladiwala and Murad. The learned trial Judge also disbelieved the evidence of Fatehaii of New Johnson Watch Co.
(P. W. 7) and his customer Rashid Husain (P. W. 10) who were examined to show that Ladiwala joined the Makranis at Household Stores. So also the evidence of Khurshid driver (P. W. 2) in whose taxi, Ladiwala was alleged to have gone to the scene of offence from Household Stores. Indeed, Khurshid driver was not able to pick out Ladiwala at the identification test. On the top of it all, the evidence of Sherali, the only eye-witness named in the F. I. R. Definitely negatives the presence of Ladiwala at the scene of occurrence. This witness besides being named in F. I. R. Also impressed the trial Judge as truthful. It is true that according to the evidence of Ghulamah, Shamasuddin and Jafarali P. Ws., Ladiwala was present at the spot and it was at his pointing out that Murad delivered the first knife thrust to the deceased. Rut if we are to believe these witnesses then Ladiwala dismounted the car, came to the footpath and directed the attack on the deceased and then got into the car again when the attack was over, and the assailants returned to the car. If that be so, then it is impossible to believe that be should not have been noticed by Sherali who had known him before. It is also significant to point out that Ghulamali the informant admitted in his cross- examination that although he saw Ladiwala standing on the footpath, he forgot to mention the same in the F. I. R. Because he was aghast by the sudden attack on the deceased. This may or may not be so, but it certainly creates a reasonable doubt as to the presence of Ladiwala at the spot at the time of occurrence, particularly, when Sherali, a reliable witness, definitely denied his presence at the spot. This doubt cannot possibly be resolved by the evidence of Jafarali and Shamasuddin who are not mentioned as eye-witnesses in the F. I. R. In the face of this nebulous evidence, we consider that the learned trial Judge was amply justified to conclude against the presence of Ladiwala at the scene of occurrence. The reason which weighed with the learned trial Judge to convict Ladiwala for abetment of the murder of the deceased is however summed up in the following passage in his judgment: ------------------------.He (Ladiwala) tried to tackle Capt. Amirah by threats and other means and thus fell foul of the deceased and his brothers. He, therefore, to my mind, abetted the attack in such strength only because he thought that the three brothers would come and give a tough fight ------------------------..
There is no valid basis for the above finding, particularly, when the learned trial Judge disbelieved the evidence of Akbarali Husaini, Abdus Sultan, Ashiqali and Hassanali Villiani.
21. Learned Assistant Advocate-General did not quite defend the above conclusion of the learned trial Judge and our opinion rightly so. He, however; argued that the learned trim Judge, was not justified in rejecting in toto the evidence of Akbarali Husaini, Abdus Sultan, Ashiqali and Hasanali Villiani concerning various meetings at which Ladiwala and Murad threatened Capt. Amirali and the deceased. It was also stressed that Abdus Sultan as the joint Mukhi in, Khoja community held a position of responsibility and respectability and there is no reason to reject his evidence. So also, learned counsel relied strongly on the application dated 27th August, 1964 (Exh. 51) addressed to the D. I.-G. For police guard wherein Capt. Amirali had mentioned Ladiwala and Murad as "goondas" and black-mailers. This, according to the learned State counsel, establishes a community of purpose between the two to perpetrate the--clime. It was also argued that the learned trial Judge disbelieved the evidence of Ghulamali A.I informant, Jafarali and Shamsuddin as to the presence of Ladiwala at the spot .For reasons which are wholly inadequate. Reliance was also placed on the evidence of Haiderali (P. W. 20) who was asked by Habib of Valieo to go forth to find out what was happening at Household Stores and who returned with the information that certain Makranis had collected there and further that he actually saw Ladiwala coming out of the shop with his father-in-law Ghulamali and brother-in-law Shaukatali. This, according to learned State counsel, sufficiently established pre-concert between Ladiwala and the condemned appellants.
22. It may be that Abdus Sultan as Joint Mukhi is held in esteem among the Khoja community bathe fact remains that, he is a relative of Akbarali Husatnt who in turn is a business partner with Capt. Amirah. This by itself may not be of much significance and' we readily concede the proposition that an eye-witness may nevertheless be a true witness. But it is difficult to overlook the all-important fact in the case that the presence of Ladiwala at, the spot is negatived by Sherali, P.
W. Who was regarded by the learned trial Judge as the most reliable eye-witness in the case. The evidence of Ghulamali informant on the point is contradicted by his statement in the F. I. R.
According to which Ladiwala was not present at the spot. We consider that if Ladiwala had been present at the spot and had provoke the attack by pointing out the victim to Murad and his companions in the full view of Ghulamali, there was no reason why he should not have been able to recall his presence at the , time when he lodged the report. As to the evidence of Haiderali (P. W.
20) it is true that the trial Court found him a reliable witness. But he is a brother of the deceased and also employee of Valico. Therefore he cannot be regarded as disinterested. Then it is in evidence that he did not tell his brother Ashiqali and Habib of Valico, on his return from Household Stores that he had also seen Ladiwala. Be that as it may, his evidence interested as it is, cannot displace the effect of the evidence of Sherali the all important eye-witnesses in the case, as to absence of Ladiwala in the execution of the transaction.
Moreover, even if we take a different view of the evidence of Akbarali Husaini, Abdus Sultan, Ashiqali and Hasanali Villiani from that taken by the learned trial Judge, that would not per se be a sufficient evidence of Ladiwala having instigated Murad and his companions to murder the deceased. All that Ladiwala or Murad is alleged to have said at the relevant time is that unless Capt. Amirali paid the amount which Lad iwala thought was due to him, the former would be in trouble. Similarly, all that Murad and Ladiwala are alleged to have said to the deceased and his brother Ashiqali at the meeting at Abdus Sultan's house was that the latter two considered themselves to be brave persons (bahadur) but they were inviting trouble. This would not by any stretch be evidence of incitement to the murder of the deceased by any one or both of them, in the absence of further evidence of some plan to kill the deceased.
23. In essence, the prosecution case on the point of abetment by Ladiwala comprises, two incidents: firstly, his meting with the Makranis in the Household Stores and journey to the scene of occurrence with them: secondly, his pointing out the deceased to Murad and his companions which was signal for the attack. Evidence an these two incidents does not at all inspire confidence for the reason stated already. We agree with .The conclusion reached by the trial Court that the presence of Ladiwala at the spot at the time of occurrence and earlier in the Household Stores with the condemned appellants, is not proved beyond reasonable doubt. That being so, there is practically no evidence upon which it is possible to maintain the conviction of Ladiwala for the abetment of murder of the deceased. To sustain the charge of abetment of an offence, it is necessary that there must be some evidence of an overt act or omission so as to suggest a pre- concert or a common design to com-not a particular offence. So long as the design rests in intention only short of overt act directed to the commission of the offence, it is not indictable in law.
24. In the last resort learned state counsel also referred to the evidence about the attempted abseondence by Ladiwala to India on the morning of the 4th September 1964. According to the pr section, Ladiwala was arrested on 4-9-64 by Rehmatali Jafri (P. W. 15), Sub-Inspector (Immigration) from the passenger hall at the Karachi Airport between 4 and 5 a.m. Where he was waiting to fly this to Bombay by Al-Italia plane which was to take off at 7-05 a.m.Evidence, according to learned State counsel was highly significant under section 8 of the Evidence Act. The argument, however, overlooks the fact that Ladiwala had purchased the air ticket Exh. 35 and obtained Visa for visit to India before the incident. That he held a return ticket also militates against his abscondence with guilty conscience.
Ladiwala in his statement before the trial Court denied that he was arrested at the airport. He, however, admitted that he was due to leave for Bombay by Al-Italia plane on the morning of the 4th September 1964 when he was arrested from his residence at about 4 a.m. He further explained that his parents are in India and under the passport held by him, he is allowed each year eight visits to India. That he has been frequently visiting India in connection with his business is not seriously disputed. It was in these circumstances that the learned trial Judge did not attach any significance to Ladiwala's projected departure for India on the morning of the 4th September 1964.
We have no reason to take a different view of the matter.
25. Accordingly, in our opinion, the charge of abetment of murder against Ladiwala is not proved beyond reasonable doubt. We, therefore, accept his appeal, set aside his conviction and sentence for the abetment of murder of Akbarali deceased. He is already on bail and his bail bonds are hereby discharged.
26. The case of Murad and Karim Bakhsh appellants who have been convicted for the main offence, however, stands on a different footing. Their conviction rests on the following evidence :- MURAD
(i) Murad is named (with another identified as Karim Bakhsb) in the F. I. R. (Exh. 15) as one of the assailants who stabbed the deceased at two points A and B in the Plan E,-h. 25.
(ii) Murad is again named alongwith Ladiwala in the application (Exh. 51) addressed to the D. I.-G.
Police wherein Capt. Amirali apprehended danger from both of them.
(iii) Murad is identified in the trial Court by all the four eye--witnesses, namely; Ghulamali, Sherali, Jafarali and Shamsuddin, as one of the assailants who stabbed the deceased at points A and B in the Plan Exh. 25.
(iv) Murad is named in the dying declaration in the F. I. R. In so far as it refers to a statement made by the deceased as to the circumstances of the assault resoling in his death and implicating Murad and Ladiwala and their party.
KARIM BAKHSH
(i) Identification of Karim Bakhsh at the identification test as also in Court by all the four eye- witnesses named above, as being one of the assailants who stabbed the deceased at point B in the Plan Exh. 25.
(ii) Identification of Karim Bakhsh by Ilyas Khan driver as one of those who travelled in his taxi from Household Stores to the scene of occurrence.
Besides the above evidence, the prosecution also relied upon the recovery of dagger Exh. A at the instance of Murad from Mewa Shah graveyard on the 11 September 1964. Of the two witnesses for recovery, only Zia-ud-din (P. W. 16) was examined. He is an employee of the business concern of which S. Rashid Hussain (P. W. 10) is the manager. Since this recovery was made after six days of the arrest of Murad, it was rightly excluded by the learned trial Judge from consideration as corroborative evidence. Similarly, recovery of knife Exh. H from the house of Karim Bakhsh on the 9th September 1964, is unavailing to the prosecution because the knife was recovered at the instance of Karim Bakhsh's wife and not at his instance. Therefore, the case against the two condemned appellants is to be considered independent of the above recoveries.
27. Mr. Mahmood A.I Kasuri learned counsel for the condemned appellants urged at the outset that the F. I. R. Is a dubious document and, therefore, cannot be relied upon to advance the prosecution case. He argued that there were indications on the record that the F. I. R. Was not recorded at 7-30 p.m. As it purports to show. According to him it was recorded some time after midnight after the D.
I. G. (Police) visited the spot and conveyed information to the Investigating Officer based upon the application dated 27th August 1964 (Exh. 51) made to him by Captain Amirali (P. W. 23), complaining of the danger from Murad and Ladiwala. According to learned counsel it was this information that gave a clue to the Investi--gating Officer as to name Murad and Ladiwala as offenders and the report was recorded accordingly. Learned counsel rested his argument on the entries in the inquest report Exh. 28 prepared by Khawaja Ziaullah, Investigating Officer in the hospital at 8-30 p.m. The entry regarding the time of the F. I. R. Apparently is in an ink with a slightly different hue than that of the remaining entries. Furthermore, the informant in the inquest report is shown as F. C. Nur Muhammad and not Ghulamali. These facts according to learned counsel made the F. I. R. a suspicious document. The suggestion was that because of Ladiwala and Murad were named in the application Exh. 51 as villains of peace, they were also named as assailants in the F. I.
R. It may be observed at once that nothing turns on the discrepancy in Exh. 28 as to the identity of the first informant. It appears that F. C. Nur Muhammad, who according to the prosecution had also gone to hospital and telephoned the police station notifying the death of Akbarali deceased, was inadvertently shown as the first informant in the inquest report instead of Ghulamali, the actual first informant in the case. It is not unknown that such slips sometimes do occur when one has to act with speed under stress of circum--stances. Similarly, the apparent difference in the shade of the ink in the entry as to the time and date of the report is also not of much significance, either.
Apparently, the ink is the same as in other entries, though there is slight difference in shade, which does sometimes occur in the course of some writing. We consider that the very fact that F. I. R. Is rather sketchy and makes no) mention of the motive at all, gives it an impress of genuineness and reliability being made promptly within half an hour of occurrence. If the suggestion of learned counsel were to be accepted, then we should have at least expected that it should have set out the incident in greater details, named all possible witnesses and the accused. The fact that all these usual details are wanting leaves no doubt in our mind that it was made promptly by Ghulamali who was unaware of the geneses of the dispute and who had no occasion to consult anybody.
28. Mr. Mahmood A.I also argued that the last but one line in the F. I. R. In the following words :- was a subsequent interpolation in the F. I. R. To fit in with the evidence of Hassanali Noor Muhammad ,(P. W. 14) who is alleged to have appeared before the Investigating Officer at about 9- 30 p.m. On the 3rd September 1964, to state that the assailants had come to the scene of occurrence by two taxis bearing Nos, KAP 1568 and KAU 7722. This suggestion was that this line was inserted in the F. I. R. After P. W. 14 was examined by the Investigating Officer. The suggestion was sought to be supported by the fact that a Bart of the signature of the informant in Gujratith overlapped the last words of the above line in the F. I. R. It is apparent to the naked eye that it is the signature of the informant which overlapped the last part of the above line and, therefore, the informant had signed his name at the end of the F. I. R. After the above line was scribed. The converse proposition upon which the argument of learned counsel proceeds is therefore not true.
The fact that there is yet another line below the above-mentioned recital in the F. I. R. To the effect that the above statement had been read out to the informant which is correct, is also a pointer in the same direction. If the argument of learned counsel were to be accepted then it will follow as inevitable corollary that the last line in the F. I. R. Was also subsequently inserted which is nobody's case. Accordingly, we reject the suggestion about the interpolation in the F. I. R. Alleged to have been made sometimes after Hassanali Noor Muhammad (P. W. 14) had appeared before Investigating Officer.
29. It was next argued by Mr. Mahmood A.I that the evidence on the record does not establish beyond doubt the case against the two condemned appellants. With regard to the case against Murad, he urged, that of the four eye-witnesses to the occurrence, only the informant and Sherali are mentioned in the F. I. R. As having witnessed the occurrence, both of whom, it was emphasized, failed to identify Murad at the identification test held in the Jail. The other two eye-witnesses, namely, Jafarali and Shamasuddin who picked out Murad in the identification parade are not mentioned in the F. I. R. And, therefore, owing this inherent infirmity in the direct evidence, the case against Murad falls through. It is true that Ghulamali and Sherali were not able to identify Murad at the identification test. But it is in evidence that he had camouflaged his appearance by growing beard and shaving off the head and change of clothes. It is also not seriously disputed that Murad.
Was previously known both to 9hulamali informant and Sherali. Not only that, according to the prosecution Murad gave the first thrust to the deceased under their very nose while they were seated in the same rickshaw with the deceased. In such circumstances, there could not have been any question as to mistaken identity of Murad by these two witnesses when the tragedy was enacted before them. That Murad was successfully able to hoodwink these two eye-witnesses at his identification test in jail, may well be a reason to admire his dexterity in concealing his identity by camouflage, but cannot possibly alter the fact that it was he who gave the first thrust to the deceased in the immediate view of the two witnesses, to both of whom he was known before and who identified hire later in Court. As to the second part of the argument regarding the evidence of Shamasuddin and Jafarali who were able to identify Murad at the test but who were not mentioned in the F. I. R. As eye-witnesses, the informant in his cross-examination explained that he omitted to name Jafarah because he was so completely upset by the sudden attack on the deceased that he lost composure and forgot to name Jafarali as one of the eye-witnesses, although he helped him to lift the deceased from the ground on to the cot. As to the omission of Shamasuddin, the informant explained that be was not known to him and owing to the stampede ensuing after the attack he did not quite realise as to who among the persons around had witnessed the occurrence. This explanation carried weight with trial Court,, and we have no reason to take a different view of the matter. It is noteworthy that the Investigating Officer had examined Shamasuddin at 2 a.m. And Jafarali at 2-30 a.m. During the same night. This should eliminate the possibility of their evidence being procured --to prop up the prosecution case. Mr. Mahmood A.I also questioned their veracity on the ground that there was nothing to show by whom they called to appear before the Investigating Officer. However, no question was put to either of these two witnesses or the Investigating Officer. Accordingly, we are of the view that Jafarali and Shamasuddin are also eye-witnesses to the occurrence, their omission in the F. I. R.
Notwithstanding.
30. Learned counsel for the condemned appellants next argued that no reliance can be placed on the evidence of the eye-witnesses all of whom are Khojas and save Shamasuddin are rickshaw drivers, a profession in which the deceased was also engaged. The argument does not cut any ice for Ladiwala is also a Khoja and till recently a resident in the locality. It is in evidence that there are a number of workshops for the repair of auto-rickshaws in Rehmatullah Streets, and the adjoining two streets; besides the eye-witnesses are residents either of same area or the adjoining locality and, therefore, they are natural Witnesses, and merely because three of them like the deceased are rickshaw drivers would hardly be a ground to reject their evidence.
31. It was next argued by learned counsel that at least so far as Karim Bakhsh was concerned, the evidence against him falls for short of sustaining his conviction on a capital charge. The argument was that he was not previously known to the eye-witnesses nor named in the F. I. R. And the description about him was variant. He was described in the F. I. R. As a man with his hair erect on the head. The other three eye-witnesses, however, identified him by his thick nose. The fact, however, remains that all the four eye-witnesses identified him at the identification parade in the jail by virtue of the impression they respectively retained of him. It seems to us no description of a person not known before and seen from a distance during a fleeting moment can be precise. But that is not to say that he would not be identified if seen later by the persons concerned. The description of a person by his physical features unless previously known, generally speaking, cannot be precise and will depend on how he is seen. Therefore, in our opinion the mere fact that one of the prosecution witnesses identified Karim Bakhsh by his typical hair on the head while the others have done so with reference to his prominent nose, should not cause any doubt as to his identity, particularly, when besides the four eye--witnesses to the occurrence, Ilyas Khan driver (P.
W. 3) also identified him as having gone to the spot in his taxi. It is impossible to believe that all these four witnesses should have joined to falsely implicate Karim Bakhsh in a capital offence when they have no animus against him nor are they otherwise interested in the deceased with the exception of Ghulamali who is only a distant relative of his. Accordingly, agreeing with the learned trial Judge we hold that the identity of Karim Bakhsh, as one of the assailants, who besides Murad stabbed the deceased at point B in Plan Exh. 25, is established beyond any reasonable doubt.
32. It was also argued by learned counsel that the evidence of eye-witnesses as to the number of persons who actually assaulted the deceased at point B in the Plan Exh. 25, is discrepant.
According to the informant Ghulamali, when the deceased fled for his life from point A after the first thrust by Murad, he was overtaken at point B by Murad and another, both of whom again stabbed him after he had fallen on the ground. According to Sherali, Jaffarali and Shamasuddin, at point B the deceased was assaulted besides Murad, by two others one of whom was later identified by each of them as Karim Bakhsh. We do not think that this discrepancy in the evidence can cause any doubt as to the identity of Karim Bakhsh as being one of the assailants at point B in the Plan Exh.
25. Moreover, the number of injuries inflicted on the person of the deceased give a clear indication that he was assaulted by at least two persons if not more, and the prosecution evidence is consistent so far as the identity of Murad and Karim Bakhsh is concerned. As to whether or not there was yet another assailant about whose identity nothing is known, would not affect the case against the two condemned appellants if it is otherwise established on a satisfactory basis which we think it is.
33. At this stage, as point arising from the evidence of Mr. Mohammad Khan Junejo M. I. C. Who conducted the identifica--petition test needs clarification. According to the paper-book (page 142)
Mr. Junejo purports to have stated that Sherali (P. W. 4) "identified Khuda Bakhsh only". However, according to his statement in the original record Sherali had identified Karim Bakhsh appellant and not Khuda Bakhsh who incidentally was one of the acquitted accused.
34. Having considered the arguments urged by learned counsel, the next question is whether the evidence of Ghulamali, Sherali, Jafarali and Shamasuddin is sufficient to sustain the conviction of the two condemned appellants. As observed already, all the four eye-witnesses with possible exception of Ghulamali are independent. Their evidence is consistent with regard to implication of the two condemned appellants in the killing of Akbarali. The mere fact that they had no personal motive against the deceased or that Ladiwala who had the real motive against the deceased has been given benefit of doubt, would not outweigh the effect of direct ocular evidence against them.
So far as the case against Murad is concerned, there is also the dying declaration of the deceased referred in the F. I. R. And duly proved by the first informant. This definitely implicates Murad as one of assailants of the deceased. This evidence establishes the guilt of the two condemned appellants beyond any reasonable doubt and we hold they had been rightly convicted under section 302/34, P. P. C.
35. The question of appropriate sentence in the case is also of some nicety. Of the two condemned appellants, Murad undoubtedly played the role of a bully. He is named in the application Exh. 51 as one of the persons who had threatened Capt. Amirali and his family with kidnapping and acid throwing. He also opened the attack on the deceased by giving the first thrust in the upper region of his chest and having done that pursued his victim to deliver further blows with the dagger. He, therefore, deserves extreme penalty. Accordingly, we dismiss his appeal, maintain his conviction and confirm his death sentence. The case against Karim Bakhsh appellant, however, stands on a slightly different footing. He played less prominent role in the fatal attack on the deceased. Indeed, the deceased had already been incapacitated by the stab wound inflicted by Murad at points A and B in the plan Exh.
25. Karim Bakhsh participated in the "mopping up" as it were at point B. The case against him, therefore, calls for lesser penalty. Accordingly, while we maintain his conviction under section 302 read with section 34, P. P. C. Sentence him to transportation for life. The death sentence passed on him by the trial Court is thus not confirmed. Criminal Appeal No. 130 of 1966 and Confirmation No. 40 of 1966 are decided accordingly.