' ALI HYDER, J.-The appellants were convicted by the learned Additional Sessions Judge, Karachi, for offences under sections 302 and 307 read with section 34 of the Pakistan Penal Code. On the first count, they were sentenced to suffer imprisonment for life, and, on the latter count, R.
1. For five years; both the sentences running concurrently. One of the co-accused, namely, Israr Ahmad, was, however, acquitted. They have come in appeal.
2. The prosecution story, in brief, is that, on the 20th of June 1970, at about 10-30 a.m., Adam Khan, since deceased, and his brother Yar Hassan, the complainant, were fixing up the outer door of the house they had started building in Mahmoodabad Colony, Karachi, when the appellant, Farzand Ali, had objected to the same, and succeeded in getting them out for a talk. Once they had come out, they had found the appellants Kazim alias Nooh, Qaiser Shah, Zaheer Hyder, and another person, who was not known to the complainant, waiting there. They had asked the complainant and Adam Khan to desist from going with the construction, and, when Adam Khan showed his inability to comply with their demand, the appellant, Farzand Ali, had asked his companions to give a di ubbing to them. Soon thereafter, Adam Khan was given knife injuries, and died at the spot. Injuries were also given to Yar Hassan, but he was spared because of the arrival of some persons, namely, Mir Hyder Afreedi, Islam Badshah and Nazar Khan. After a while, Yar Hassan had proceeded to the Saddar Police Station, where he lodged the Report at about 11-4, a.m. A. S. I. Zafar Yar Qureshi, after recording the Report, referred Yar Hassan to the Civil Hospital for treatment. In the meantime, the news of the incident had been broken to Abid Raza, S. H.
0. Who reached the Vardat' at about the mid-day. The S. H.
0. Found the dead body of Adam Khan lying on a cot, for which a Mashirnama' was prepared, after the blood-stained earth had been secured. The houses of Muhammad Kazim alias Nooh and Farzand Ali were not fer away from the Vardar, and came to be searched. There was some blood at the house of Farzand Ali, and the S. H.
0. Secured the blood-stained earth thereform. However, the appellants were not there, nor any incriminating articles secured from there. Then came the inquest report, whereafter the dead body was sent to the Civil Hospital for post-mortem examination. Later, enquiries were made from Islam Badshah, Nazar Muhammad and Mir Hyder. On return to the Police Station, the S. H.
0. Is alleged to have received spy information that the appellant, Muhammad Kazim, was at his house. He was arrested. The appellant is alleged to have pointed out a knife in a corner of his house, which came to be secured. There was some blood on the shirt of Muhammad Kazim, which also came to be secured.
' Both these articles came to be sealed at the spot. Appellant Farzand Ali came to be arrested on the night between 26th and 27th of June 1970. The appellant, Zaheer Hyder, came to be arrested at Khairpur, and the appellant, Qaiser Shah, at Lahore. Both of them were brought back to Karachi. The S. H.
0. Had sent the blood-stained articles to the Chemical Examiner. On 16-7-1970, the S. H.
0. Arranged the identification test of Farzand Ali through Mir Hyder, Islam Badshah and Yar Hassan at the Karachi Central Jail. There was another identification test of Zaheer Hyder through Islam Badshah on 8-9.1970. After due investigation, the case came to be challaned in Court.
3. The appellants in their statements at the Court of Enquiry as well as at the trial denied the various allegations made against them. A witness, by the name of Assiut Raza, came to be examined in defence.
4. In regard to the death of Adam Khan, there is the evidence of Dr. Muhammad Umar, Police Surgeon, Karachi, who held the autopsy, and found the following injuries on the person of the deceased:
(1) Incised wound epigastrium region above ziphsternal cartilage in the middle 1" X 1/2' x cavity deep.
(2) Incised wound 9th in intercostal space on back at posterior axillary line 1/2' X 1/4' X cavity deep.
(3) Abrasions two tiny on right knee-joint 1/4' x 1/4' and are 1/2" apart.
(4) Cont. Abrasion on back -
(a) Lower part of right scapula Ali" x 1/4'.
(b) Medial side of mid scapula 1" X 1/2' (R).
(c) Between scapula 1' x 1'.
(d) tight elbow 1' X 1/2' laterally.
' According to the Medical Officer, the material injuries were with a knife, and death had occurred as a result of shock and haemorrhage due to Injury No, 1, which was sufficient, in the ordinary course of nature, to cause death.
5. Yar Hassan had been examined by Dr. S. Akbar Ali, who found the following injuries on his person:
(1) Incised wound right side abdomen upper part horizontally with tailing 1 1/2' x 1/2'.
(2) Incised wound back left side 3 from mid line level of lower chest (12th rib 3/4' X 1/2').
(3) Haematoma between left eye 1/2' x 1/4".
' The Injuries Nos. 1 and 2, according to him, had been caused by a sharp-cutting weapon, such as a knife. There was an operation. According to him, the Injury No, 3 was simple, and the opinion in regard to the Injuries Nos. 1 and 2 was reserved, but ultimately these also were declared to be simple.
6. The eye-witness account has been furnished by Yar Hassan the complainant, Nazar Khan, Islam Badshah and Mir Hyder. The evidence of Mir Hyder at the Court of Enquiry was brought on the record under section 33 of the Evidence Act, as at time of the trial, his whereabouts in Karachi could not be ascertained by the process-server. Yar Hassan is the brother of the deceased, and, as there are injuries on his person, which, according to the Medical Officer, were contemporaneous with the injuries of the deceased, there is no room for doubt in regard to his presence at the time of the incident. However, Yar Hassan was cross-examined by the learned A. P. P., as the version he furnished at the trial in regard to the role of the assailants was at variance with his version at the Court of Enquiry. It is further to be noticed that, though Yar Hassan had mentioned the names of Nazar Khan, Islam Badshah and Mir Hyder in the First Information Report, yet at the trial he testified that he had neither mentioned their names in the First Information Report, nor could he say that the contents of the First Information Report had been read over to him. He further mentioned that he learnt about the named of these witnesses only in the Court. Nazar Khan and Islam Badshah are employees of The Karachi Electric Supply Corporation. So was the deceased. Even Yar Hassan is an employee of the K. E. S. C., though he states that he got the job after the incident. Mir Hyder, the only other witness, is an outsider, but he lived in Jacob Lines, and states to have come with Islam Badshah to Nazar Khan, as he was in need of a driver. There is nothing to show as to why he was in need of a driver, and why he should have gone to Islam Badshah, and from there to the house of Nazar Khan in the pursuit of this object. Nazar Khan was a driver attached to the Nazimabad section of the K. E. S. C., and his head office was at Tipu Sultan Road. He says that, on the day in question, he had his duties at Mahmoodabad, and, if he was on duty, there was no occasion for him to be at his house, and sitting with the other two witnesses, namely, Islam Badshah and Mir Hyder, where they had been attracted by the cries and gone there. It is also remarkable that they had left the house of Nazar Khan on the outcries, but they had witnessed the entire incident, which they had furnished in all details. The incident would not have taken much of a time, as the attack was almost sudden, and by a number of people. It is admitted by Nazar Khan that, once the incident had taken place, 300 to 400 employees of the K. E. S. C. Had turned up at the Vardar between 2-00 to 4.00 p.m. S. H.
0. Abid Raza has stated that these workers had awaited in a deputation on the I. G. And the Superintendant of Police. However, his version is hearsay, and is not to be considered. The fact, all the same, remains that, on the showing of Nazar Khan, and also Yar Hassan, a number of people from the locality had appeared on the scene at the time of the incident, and the S. H.
0. Never cared to make any enquiries from anybody. They might have been callous, and failed in their public duty to have a crime known and properly investigated, but, all the same, it was the bounden duty of the Investigating Officer to make a bid to find out the persons who could know some details of the happenings. As against this, Nazar Khan and Islam Badshah are from the K. E. S. C., and Islam Badshah lives in Jacob Lines. Even Mir Hyder was living in Bahadurabad. His friendship with Islam Badshah and dependence on him in his affairs is clearly established. The position, therefore, is that the witnesses examined in the case are only employees of the K. E. S. C., or, through them. The evidence of D. W. Assim Raza will not be very material, one way or the other, as to whether Nazar Khan was on leave, or, working on that day, but the presence of Nazar Khan at the house is open to serious doubts, and, if his presence is doubted, the evidence of Islam Badshah and Mir Hyder also would fall in the process. These three witnesses would be chance-witnesses, and, looking to the circumstances disclosed, their presence at the time of the incident is extremely doubtful. The fact, that even Yar Hassan was cross-examined by the learned A. P. P., also gives an idea as to what extent he is a witness of truth. There were two identification tests through Nazar Khan Islam Badshah and Mir Hyder in regard to Zaheer Hyder and Farzand Ali, but, apart from the number of people not picked up, the delay involved has not been properly explained. The value of the identification parades also losses much significance, because Islam Badshah has admitted that, when he had been called to the Police Station, Muhammad Kazim alias Nooh was there, and he had seen him.
7. The only other evidence in the case is against Muhammad Kazim. There was blood on his shirt, and he is alleged to have pointed out a knife, which was lying in his house. The presence of the blood on his shirt will be of no consequence, because, even on the showing of the S. H.
0., he was bleeding from his mouth, when he was arrested. It is also stated by the S. H.
0. That, on the day of the incident, he had searched the house of Muhammad Kazim by scaling over the walls. However, nothing incriminatine was found there. Anyway, when the appellant is arrested, not very late thereafter, there is a knife lying in a corner. Apart from the fact, that both the Mashirs have given a complete go-by to the prosecution case, the knife would be lying to the naked eye, and it is remarkable that the S. H.
0., who had taken the trouble of scaling over the walls, failed to see it for himself. To imagine, that the appellant, Muhammad Kazim, had brought it later on with himself, only to provide evidence against him, would also not advance the prosecution :ace, as still it would be found to be lying in the open, and so there would be no discovery within the meaning of section 27 of the Evidence Act.
I might, as well, add that this piece of evidence was not relied upon by the trial Court.
8. It also appears from the record that there were injuries on the person of Muhammad Kazim, and he had been referred to the Hospital, where he was examined by the Medical Officer. However, none of the witnesses had a word to say about it.
9. In the circumstances, the case against the appellants is far from established, and the benefit thereof will accrue to them. It is also to be noticed that one of the co-accused had been acquitted, and his case would not be very distinguishable from the case of the other appellants. I will therefore, set aside their convictions and sentence, and allow the appeal. They are in custody, and will be released forthwith, unless wanted in connection with some other case.
G. M. SHAH, J.-I agree.