1976 P Cr (PLP)

MUHAMMAD HALEEM, J.

Appellant Shamim Tetri alongwith Muhammad Hanif alias Kalay, Ibrahim alias Bhoora, Mushtaq Ahmad alias Gola, Amanullah alias Chanda, Muhammad Siddiq alias Lala and Ishaq Bandhani were tried for the murder of Saeed and for causing injuries to Maqsood, Qamar Saeed and Samiullah, but was only convicted under section 302, P. P. C. and sentenced to death. The others were acquitted of that charge but convicted under sections 324/149, 323/149 and 148, P. P. C. and sentenced on the first count to one year's rigorous imprisonment, on the second to 6 months rigorous imprisonment and on the third to one year's rigorous imprisonment, by the learned Additional Sessions Judge, Karachi vide judgement dated 30th June 1971. The above sentences were ordered to run concurrently. Since the State has not appealed against the acquittal of the above named persons on the charge of murder, a revision being No. 2/72 was filed to obtain an order of retrial on the above charge from this Court. The learned Additional Sessions Judge has referred the case of the appellant for confirmation of the death sentence while he has appealed to impugn his conviction and sentence. This judgment will dispose of all these matters.

2. According to the prosecution case, the incident occurred at 10‑30 p.m. on 12th July 1969 near the cabin of Idris Panwala, which is situate in Block No. 9 of Liaquatabad, Karachi. It was alleged that Samiullah, Maqsood, Mushtaq son of Muhammad Shafi and the deceased were on their way at 9‑30 p m. to listen to Qawali, which was to begin some time later, on the road side in their locality, and before reaching that place they went‑to Cafe Madina for taking tea. While they were inside, the appellant, who resided in the same locality, came alongwith Ibrahim, Mushtaq Ahmed and Siddiq and gave a call to the deceased to come oat who did not respond to it and in the meantime the appellant and the others waited for him outside. When the deceased and the others came out of the hotel, the appellant and his accomplices went alongwith them to the shop of Abdul Sattar, where they saw the other companions of the appellant named Jawed alias Gudu, Amanullah and Ishaq Bandhani. Jawed had a lathi while Amanullah carried a stick and Ishaq Bandhani was unarmed. It was there that the appellant asked the deceased as to why he had reported against him to Babu Khan, a B. D. Member, that he gambles, teases girls and smokes charas. The deceased denied having said so and that in case he was not convinced he should ascertain from the B. D. Member. The deceased thereupon left the place and went towards the shop of Idris Panwala, which was close by. The appellant all of a sudden took out a Churri from the fold of his shalwar and attacked the deceased with it from behind. His companions, Siddiq, Mushtaq Ahmed and Ibrahim also took out knives and attacked the companions of the deceased while those remaining encircled the deceased. As the deceased took a turn the appellant again caused a knife blow on the left side of his neck, upon which Maqsood hastened to rescue him, but he was given a knife blow on his back by Ibrahim. At this juncture, Qamar Saeed, brother of the deceased, on hearing the cries also reached the spot and seeing his brother, Saeed, being assaulted intervened to save him. Mushtaq Ahmad and Siddiq thereupon caused him knife blows. Samiullah also approached to intervene, upon which Hanif, elder brother of the appellant, Jawed and Amanullah assaulted him with their weapons. Ishaq was all the time instigating the others to assault them. The incident was witnessed by Abdul Sattar, Idris, Mushtaq Mahfooz and other persons, who were attracted to the wardat. After the appellant and his accomplices escaped the deceased was taken to the hospital but he died on the way, while Qamar Saeed and Maqsood were admitted in the hospital. Samiullah was also examined there. From the hospital Samiullah came to Police Station Liaquatabad, where he lodged the F. i. R. at 00‑40 hours on 13th July 1969.

3. Muhammad Amin S. I. after recording the resort went to the wardat and from a cement platform, which was nearby, he secured a blood‑stained pant. It was, however, not known as to whose pant it was. He also secured blood‑stained earth from a place about 5 or 6 feet away from the pan cabin, Mukhtar Ahmad S. H. O. arrived at 2 a.m. and he took over the investigation. He further examined Samiullah and from there he went to the hospital to examine Qamar Saeed and Masood but they were not in a fit condition to give their statements. He next arranged for the post‑mortem of the dead body. On the next day, the S. H. O. examined Idris, Abdul Sattar, Mushtaq, Mahfooz, Jamil Abdul Ghaffar and Babu Khan. The same day in the evening he arrested the appellant, Ibrahim Siddiq and Mushtaq Ahmad from a park near Gharibabad. The appellant volunteered to produce the Chhurri, which he took out from the pipes near the K. D. A. Pipe Stores. Ibrahim volunteered to produce two knives which he took out from inside a pit which was in an open place to the north of Block No. 11‑F. Rustam Khan A. S. I. arrested Hanif while Maqbool A. S. I. arrested Amanullah. Later on, injured Maqsood and Qamar Saeed were examined. Jawed was arrested and produced before the S. H. O. on 16th July 1969 while Ishaq Bandhani was arrested on 18th July 1969.

4. The three knives, blood-stained earth and the articles of clothing of the deceased and the prosecution witnesses were sent for chemical analysis. The report, however, disclosed that ore of the two knives produced by Ibrahim and the knife produced by the appellant were not stained with blood while the rest of the articles were stained with human blood.

5. Dr. Muhammad Umar Khan performed autopsy on the dead body and found the following injuries :‑ "(1) Incised wound left shoulder above axilla oblique pointed outwards and upwards. Upto shoulder joints 2 x 1 x 2" deep. (2) Incised wound on back of upper part 1 left to midline at the level of third thoracic spin 1" x 1/3" x 3" deep (muscle deep). (3) Incised wound on left side back at 7th inter costal space 1" lateral to midline 1" x x cavity deep oblique in direction. (4) Incised wound on right side back at 7th inter costal space 1" lateral to midline oblique in direction 1" x x 2 " deep downwards in the muscle only. (5) Incised wound on left buttock 5O below ilias crest transverse in direction 1" x " x muscle deep, i. e. ". (6) Incised wound on left buttock 2 below injury No. 5, 1" x muscle deep l . In his opinion, injury No. 1 was individually sufficient to cause death in the ordinary course of nature and that injuries 1 and 3 were collectively responsible for his death. As for the weapon used he stated that it was a sharp‑edged weapon such as `chhurri' or knife.

6. Dr. Ashfaq A. Ansari examined Samiullah, on whom he found the following two injuries :‑ (1) Contusion left thigh front 2" x 1". (2) Contusion back left lumber region 1" x 1"," which, in his opinion, Rere simple in nature and caused by a hard and blunt object. Since Dr. Munir Ahmed, who had examined Maqsood and Qamar Saeed, was not available for examination, their medico‑legal reports were proved by the same doctor. Maqsood is shown to have received two incised injuries with a sharp‑edged weapon, such as a knife. Qamar Saeed also sustained two, incised injuries and that too with a knife.

7. When called upon to enter defence the appellant besides stating that he was arrested from his house denied the prosecution case. He also alleged enmity against the witnesses but did not give any details of it. Ibrahim stated that he was lying ill in the house and that he had been made an approver in a case, in which Ishaq Bandhani was an accused. As for others they were unknown to him. He denied his arrest from a park in Gharibabad and also the recovery of two knives at his instance. Mushtaq Ahmed denied his presence at the wardat and also his arrest from a park near Gharibabad, and pleaded his innocence. Muhammad Hanif denied even having seen Cafe Madina. His stand is that he was sleeping in his house at that time. When asked as to why the witnesses have deposed against him he replied "God knows that better than me". Amanullah denied tile Prosecution case and gave the following reason for his implication :‑ "Samiullah P. W. used to work with me. He was working under me. He took 7‑8 artisans to the house of Ali Kausar. One artisan died there. His name was Safdar Ali son of Mazhar Ali. When Samiullah returned to the factory for work he was not allowed to join his duty. Samiullah told me that he has been deprived of his job because I had spoken against him to the Seth. He gave me a threat that he would have his revenge from me." As for the other witnesses, he stated that they are the friends of Samiullah Siddiq while denying his part in the crime stated that he had already a dispute with Samiullah and it is at his instance that he has been implicated and the other P. Ws. have deposed against him as they are his friends. Ishaq Bandhani while denying the prosecution case gave the following reason for his implication in the case :‑ "I am a Muslim League worker. Ali Kauser is Secretary of Muslim League. He is supporter of Ayub. There was revolution against Ayub. The witnesses joined hands with Ali Kauser including accused Ibrahim. Public put the house of Ali Kauser or, fire. His daughter was burnt. Many others were finished. I also received hurts. I was in tile hospital for 20 days. There were counter cases. I am also accused in case. Ibrahim accused appeared as witness against me. Samiullah was also witness against me. Ali Kausar went to Lahore and I went to Jail. There was Martial Law. Ali Kauser got me released from jail and took me to North Nazimabad. People of Laluukhet and whole people of Karachi became enemy. Ali Kauser directed me to surrender, so I appeared before Mr. Ansari, and gave him the facts. He handed me over to the Police Officer." When asked as to why the P. Ws. had deposed against him, he stated that the background was political enmity. Jawed being a juvenile has been tried by tile Juvenile Court and his case is not before us.

8. The trial Court while convicting the appellant only on the capital charge held that he was not a member of the unlawful assembly while the others were as it was formed at the shop of Abdul Sattar. The trial Court also did not hold responsible the members of the unlawful assembly for the murder of the deceased as in its opinion it was not caused in the prosecution of the common object of the assembly. It was, therefore, that the others were acquitted of the murder charge but convicted on other counts as aforestated. In the revision application the above finding has been assailed.

9. The conviction of the appellant rests on the ocular testimony of Samiullah. Maqsood, Mushtaq, Idris. Abdul Sattar, Qamar Saeed and Mahfooz, out of whom Maqsood, Qamar Saeed and Samiullah were injured which establishes their presence at the wardat. As for lfdris and Abdul Sattar they are natural witnesses. It was in front of the pan cabin of Idris where the deceased was stabbed. Abdul Sattar had a milk shop across the street where the witnesses and the deceased and so also the appellant and his accomplices came and sat in the shop. As for Mahfooz he happened to be sitting near the fodder shop of Ghaffar which was, however, closed waiting to go to hear Qawali on the roadside in the same locality. His name transpires in the F. I. R. if he had not witnessed the occurrence. The presence of Mushtaq cannot be doubts I, for his name also transpires in the F. I. R. and was one of those who had accompanied the deceased from Cafe Madina upto the place where the incident occurred. On examining the evidence it transpires that Samiullah, Mushtaq, Maqsood and the deceased had gone to Cafe Madina to take tea before proceeding to hear Qawali and as they were taking tea, the appellant came alongwith Ibrahim, Mushtaq Ahmed and Siddiq at the Cafe and called out the deceased to come out. From there the deceased and his companions and so also the appellant and his accomplices came upto the shop of Abdul Sattar which is about a furlong away. Apart from the appellant questioning the deceased as to why he had reported to Babu Khan against his conduct, nothing else transpired between them till that stage and, therefore, there is nothing to surmise that there was an unlawful assembly. It was thereafter that the deceased asked the appellant to verify from Babu Khan as to whether he had at all stated what was imputed to him and then left to buy pan from the cabin of Idris. He was followed by the appellant who stabbed him from behind. There were as many as six injuries on his back. Apparently the knife blows were given in succession. All the witnesses, except Mushtaq, have attributed this part to the appellant alone and we see no reason to doubt it; and ought it be said that in his anxiety to implicate Mushtaq Ahmed and Ibrahim, Mushtaq has ascribed them the part of causing knife blows to the deceased. It cannot, therefore, be given any weight. Again, it is unlikely for more than one person to cause injuries from close quarter on the back from a weapon like knife at or about the same time and it would have been consistent with the causing of blows by more than one person if the deceased had injuries on other parts of the body also. The next stage now comes: Qamar Saeed has stated that he interposed at the stage when the appellant was causing knife injuries to the deceased. According to him, he had come to his house after attending night classes and from there he came to hear Qawali which was nearby and it was there that he heard commotion coming from the side of pan cabin, upon which he came and saw his brother being assaulted with a knife and he caught hold of the appellant. P. W. Maqsood hastened to rescue the deceased, upon which Amanullah and Ibrahim assaulted him with knives. The appellant in the meantime called out for help, upon which Siddiq, Ibrahim and Mushtaq Ahmed caused knife blows to Qamar Saeed, who loosened his grip and the appellant freed himself, Samiullah also rushed to intervene but Hanif assaulted him with a khurdam. Ishaq Bandhani is only attributed the part of instigating the others not to spare the deceased. Samiullah also gives the same sequence, According to him, it was Maqsood who went to save the deceased when he was assaulted with knife by Ibrahim and Amanullah, Qamar Saeed who had arrived in the meantime, caught hold of the appellant and in order to rescue the appellant from his hold that Siddiq, Mushtaq Ahmed and Amanullah attacked him but only two out of them, namely Mushtaq Ahmed and Siddiq, caused him knife blows. There is a discrepancy as to the identity of the third person who had attacked Qamar Saeed names him as Ibrahim while Samiullah states that it was Amanullah. Again, according to Qamar Saeed he received three blows while according to this witness only two blows. The medical evidence also points to two incised injuries. About himself he stated that it was Jawed who gave a stick blow while Qamar Saeed implicated Hanif to have caused him that injury with `khurdam.' Maqsood himself stated that he went to rescue the deceased when he was attacked with knife by Ibrahim and Amanullah and he had suffered two incised injuries. As for these who assaulted Qamar Saeed he named them as Siddiq, Mushtaq Ahmad and Ibrahim and to each of them he has ascribed a knife blow which, however, is not consistent with the injuries on Qamar Saeed as has been pointed out above. Mushtaq stated that seeing the deceased being stabbed Maqsood went to rescue him, on which Ibrahim and Amanullah gave him knife blows. Qamar Saeed, who had arrived in the meantime, also went to rescue the deceased and he was thereupon attacked by Mushtaq Ahmed. He points to only one assailant of Qamar Saeed and not three as was stated earlier by the three witnesses. Mahfooz also gave the same version as the other witne3ses that it was Maqsood who went to rescue the deceased when he was assaulted with knife by Ibrahim and Amanullah. About Qamar Saeed, he stated that he caught hold of the appellant upon which Siddiq, Ibrahim and Mushtaq Ahmed gave him knife blows. To this extent his version is on the same footing as that of Qamar Saeed himself. Idris stated that when Maqsood intervened to rescue the deceased he was stabbed by Ibrahim and Amanullah. His version is different. The others have stated that it was either Amanullah or Ibrahim while they are agreed with regard to the other two. Abdul Sattar also named Ibrahim and Amanullah as the assailants of Maqsood. As for those who assaulted Qamar Saeed he named them as Siddiq and Mushtaq Ahmed. Amanullah is stated in the F. I. R. to be holding a stick while in the evidence the witnesses have stated that he had a knife. This is obviously a false statement. Again, the witnesses have deposed that the appellant and the others had encircied the deceased and gave to him knife, stick and Lathi blows. There is no injury with the blunt weapon on the deceased and none of the witnesses have stated in their 161 statements about it, which omission has been duly proved. The story, therefore, of encircling the deceased is an improvement for making the others also liable for the murder of the deceased. There is also exaggeration and confusion as to the number of injuries caused and by whom. In the context of all this, this much is established that the others came into the picture only when Maqsood went to rescue the deceased and Qamar Saeed caught hold of the appellant. It was only then that an unlawful assembly was formed. There is, however, nothing to establish that their common object was to kill the deceased as the prosecution has failed to establish that any other person except the appellant had caused knife blows to the deceased. Mrs. Salima Nasrruddin, the learned counsel for the applicant in the revision application, wanted us to hold that the mere presence of these persons was sufficient to make them liable for sharing the common object as, according to her, the attack by the appellant with knife was also in furtherance of the common object. This contention is misconceived on the view of the matter that we have taken. There is nothing to show that there was meeting of mind when the appellant followed the deceased to stab him. The possibility therefore of the others not knowing what the appellant was about to do, has not been excluded. So also is the fact that nothing is apparent as to whether that assembly became unlawful at that stage. The trial Court, therefore, rightly acquitted them of that charge and we see no justification in ordering their retrial.

10. It was suggested in the cross‑examination of the witnesses that it were Maqsood and Samiullah who had caused the injuries to the deceased and his brother and having later compromised they bad falsely implicated the appellant and the others, which was however denied. This suggestion also appears to be absurd on the face of it. It was next suggested that the witnesses belonged to Ali Kauser's party. Apart from denying it we fail to see how this consideration could be relevant to prompt the witnesses to implicate the appellant, when no enemity worth the name is appearing from the record. There is, therefore, unimpeachable evidence to lead to the conclusion that it was the appellant who had caused the knife blows to the deceased. `I‑he prosecution has established its case beyond reasonable doubt against the appellant and we would, therefore, maintain the conviction. The sentence also needs no lenient treatment, for he had caused six knife g blows on a petty grievance and that too, from behind while the deceased was proceeding towards the pan cabin and thus succeeded to cause the injuries by surprise, which was a cowardly act. We would accordingly confirm the death sentence. While accepting the reference we would dismiss the appeal. As for the revision we had announced our conclusion dismissing it on 24‑9‑1973. The above are also the reasons for it. S. Q. Appeal dismissed.