1976 P Cr (PLP)

MUHAMMAD HALEEM, J.‑This judgment will dispose of Criminal Appeals 86 and 88 of 1975. The former is filed by Mazhar Hussain Shah and Ali Akbar while the latter by Mir Ali Ahmed, who were jointly tried for the murder of Shaharyar, a student of Comprehensive High School Mirpurkhas. The appellants in Appeal No. 86/75 were convicted under sec tion 302/109, P. P. C. while the appellant in Appeal No. 88/75 was convicted under section 302, P. P. C. and all the three appellants were sentenced to imprisonment for life by the Sessions Judge. Tharparkar at Mirpurkhas, vide judgment dated 24th April 1975.

2. According to the prosecution case, the students of Comprehensive, High School had an assembly in the Assembly Ground at 7‑30 p.m. on 8th May 1974 and while the deliberations of the assembly were in progress, two students, Mahboob Hussain and Shafaat Hussain, came and informed the Principal, Taj Muhammad, that as they were coming to the school along with the deceased and his brother, Dildar Ahmad, they saw the appellants who were also the students of the same school along with two other boys, whom they did not know, standing ahead and blocking the road. They called out the deceased who went near them, and it was then that Mir Ali Ahmad took him aside and talked to him on some subject, where after the deceased returned but they overheard him saying that "it was all right and that he would produce that boy before him." One of the two unknown boys abused the deceased and said "We do not know anything. You give us your books and bring that boy now." upon which the deceased retorted : "I am going to school and shall not be able to bring him now." That boy then slapped the deceased who picked up a brick‑bat and wanted to hurl it at him, but Mar Ali Ahmad took out a knife from the folds of his trousers and stabbed him on his chest. The deceased shrieked and as Mir Ali Ahmad pulled out the knife it struck the deceased leaving a scratch on his arm. The deceased again picked up a brick‑bat and wanted to throw it at him but collapsed and fell on the ground. The appellants then effected their escape. On being informed about the incident, the Principal came along with Shafaat Hussain and Mahboob Hussain to the vardat where they saw the deceased lying with a knife injury on his chest and bleeding and his brother, Dildar Ahmad, standing there. He stopped a car which had come to drop some students at the school, in which he took the deceased, Dildar Ahmad, Shafaat Hussain and Mahboob Hussain to the hospital, where the deceased was taken to the operation theatre, but after 15 minutes the doctor reported that he had expired. The Principal thereafter proceeded to Police Station Town Mirpurkhas, where he lodged the F. I. R. at 08‑30 hours the same day which was recorded by Gulzar Ahmad S. H. O.

3. After recording the report, the S. H. O. went to the Civil Hospital, Mirpurkhas and arranged for the post‑mortem examination OIL' the deceased. He next examined Mahboob Hussain, Dildar Ahmad, Shafaat Hussain and Muhammad Hussain, who were in the hospital land from there he went to the wardat and inspected it at the instance of the Principal. He noticed blood on the ground, which he secured vide mashirnama, Exh.

12. Mir Ali Ahmed was arrested the same day by the D. S. P. Mirpurkhas and in the early hours of the following day, Mazhar Hussain Shah and Ali Akbar were arrested from their houses in Satellite Town. The blood stained shirt of Ali Akbar was seized in the presence of mashir vide mashirnama, Exh. 15 wherein his arrest is also recorded. Again, Ali Akbar on 11th May 1974 produced a dagger and a bloodstained knife from a graveyard behind Qaim Talkies, Mirpurkhas, which he took out from a khabar bush. These articles were seized vide mashirnama, Exh.

10. All the three appellants volunteered to confess on 11th May 1974 and they were produced before the S. D. M. Nara Valley who recorded their confessions. The shirt and the knife were sent for chemical analysis but the report of the chemical analyser has not been exhibited.

4. Dr. Pardhan performed autopsy on the dead body and noticed the following injuries: "1. stabbed wound x " x deep to the cavity of chest oblique in direction and directed to downwards and to right side in the middle line just by the side of the xiphisternum.

2. Small abrasion 1/4" in diameter on the left tip of the nose.

3. Abraded bruise 1" in diameter on the left cheek below the eye.

4. Abrasion with linear cut 1" long on the upper right medial surface of upper forearm." In his opinion, injury No. 1 was caused by a sharp cutting weapon such as knife, while the rest of the injuries appeared to have been caused by a blunt weapon such as laths and that further injury No. 1 was individually sufficient in the ordinary course of nature to cause death. The other injuries were simple in nature.

5. The appellants denied the prosecution case and alleged their implica tion in the crime at the instance of the Principal of the school. Mir Ali Ahmad resiled from his confession stating that he was illegally detained without remand and was forced to confess and that what he stated in the confession was not true. Farther, he denied knowledge of any acquaintance with Dildar Ahmad or his being a student of the school. Giving out the enmity he stated :‑ "I have been falsely involved. The complainant Taj Muhammad had grudge against me as I had taken leading part in the agitation made by the students against him. h. Ws. Shafaat and Mahboob also had grudge against me as there had been quarrel between us some time before. They had made complaint against me to the Principal. They were friends of the deceased Shaharyar. P. W. Dildar Hussain is brother of the deceased. The Principal and these witnesses got this opportunity of involving me in the case." Mazhar Hussain Shah also resiled from his confession stating that he did not confess before the Magistrate but he was forced to make a statement under police pressure during the time he was in illegal detention and that what he stated was untrue. He also pleaded enmity with the Principal and held him responsible for his implication in the crime. Ali Akbar stated that the knife and the dagger were foisted on him and he resiled from the confession giving out the same reason but stated that the contents of the confession were not true He also denied the seizure of the shirt from his person stating that it did not belong to him. He also alleged enmity against the Principal for his false implication. None of the appellants led any evidence in defence.

6. The trial Court while convicting the appellants solely relied on the ocular testimony of P. Ws. Dildar Ahmed, Shafaat Hussain and Mahboob Hussain. It excluded from consideration the recoveries of the shirt and the bloodstained knife as the origin of blood ors them was not established and so also the judicial confessions, which were self‑exculpatory. As for the evidence of Principal, Taj Muhammad, it was of the opinion that it was not impressive and, therefore, it did not act on it.

7. Mr. Muhammad Hayat Junejo while arguing the case of Mir Ali Ahmad contended that it was doubtful. whether Shafaat Husain, Mahboob Hussain or Dildar Ahmed had given out the names of the assailants to the Principal before the report was lodged. His stand is that on suspicion, the Principal had given out the names as he bore a grudge against them and for this he placed reliance on the testimony of mashir, Muhammad Hanif, who was a teacher in that school. According to his admission in cross‑examination, the Principal took part in party politics, whereupon the teachers and the students took out procession to protest against his behaviour and that appellant Mir Ali Ahmed had taken an active part in taking out the first procession. Another fact, which is stated is that the relations between Mir Ali Ahmed and the two prosecution witnesses, namely Shafaat Hussain and Mahboob Hussain, were not cordial who also took part in politics. As for Ali Akbar, he stated that he also took part in politics and that he belonged to the opposite party which had the patronage of the Principal. In this background, the learned counsel invited our attention to the evidence of not only the Principal but also of the eye witnesses to impress that they had not given out the names of the assailants. Taking first the evidence of the Principal, he admits having been demoted after the incident. His version in the examination‑in‑chief is that Shafaat Hussain and Mahboob Hussain had come to the school and given out the names of the assailants and the details of the incident, whereupon he rushed to the wardat along with them and other students and saw Dildar Ahmed and one other student, Hasnain, and from there he took the deceased to the hospital in a car, in which Hasnanin, Dildar Ahmed, Shafaat Hussain and Mahboob Hussain accompanied him. However, in cross‑examination he qualified his earlier statement in an essential respect, namely that in the first instance he was only told that the deceased had been stabbed but on being further asked by the Court he gave out that the names of the assailants were disclosed to him by Mahboob Hussain and Shafaat Hussain while they were on their way to the wardat. This is, however, not consistent with his earlier version, in which it is specifically stated that it was at the assembly ground that both of them had discloses to him the names of the assailants. Moreover, Shafaat Hussain stated that he remained at the school and did not accompany the Principal to the wardat. As to whether Shafaat Hussain disclosed the names of the assailants to the Principal, this is what he stated :‑ "To Court ‑Q : Did you disclose the names of the assailants to the Principal while informing him about the incident ? A : I did not disclose to the Principal the names of the assailants at that time." The answer clearly belies the version of the Principal that he was given out the names of the assailants by Shafaat Hussain. Equally Mahboob Hussain has not supported the Principal on this aspect of the case, for he specifically stated in his examination‑in‑chief that he did not disclose to the Principal the names of the assailants while informing him about the incident. As for Dildar Ahmed, the Principal himself stated that he did not make enquiries from him while he was taking the deceased to the hospital. He also admitted that he had no talk with any other student at the wardat. Dildar Ahmad also does not state that he had a talk with the Principal. Hasnain, whose name transpires in the evidence of the Principal and who could have thrown some light, has not been examined though his statement was recorded by the S. H. O. Again, both Shafaat Hussain and Dildar Ahmad have stated that they had not gone to the hospital along with the Principal. Shafaat Hussain stated that he remained at the school and left for his house after half an hour. Dildar Ahmad also stated that he went to his house and informed his relatives about the incident. In cross -examination, he was, however, confronted with his lower Court statement (Exh. 25), in which be stated that he went to the school after the deceased was removed to the hospital and "rang up the Police Station" which, of course, he denied. If this was so then some report should have been recorded in the station diary, which is not forthcoming. This is not all. He went to the extent of saying that he did not inform any body about the incident and that he could not say at what time he reached his house. Mahboob Hussain while admitting that he had gone in the car stated that he returned to his house on learning about the death of the deceased. The Principal as is apparent from the F. I. R. had gone to the Police Station alone, but in his examination‑in‑chief he gave out that Mabboob Hussain, Shafaat Hussain and Dildar Ahmad had accompanied him. None of these witnesses have supported him on this point, but in spite of it the Principal has .one to the extent of stating in cross‑examination that‑ "Police recorded my report after making enquiries from the boys having accompanied me to the Police Station. While I was getting my report recorded. I was seeking information about the details of the incident from the witnesses having accompanied me to the Police Station." This statement is again without any foundation. Again, it is clear from the lower Court statement (Exh. 35) of the Principal that before lodging the F. I. R. he had rung up the police, the S. P. and the D. M. informing them about the deceased having been stabbed which, of course, the Principal stated that he could not recollect having stated so, but nonetheless it lays a foundation for accepting that reports were made to the concerned authorities before the F. I. R. was lodged and what was stated has not seen the light of the day. Thus, the non‑production of such report leaves much room for argument as to the identity of the assailants. There is thus a dent to the ocular testimony by wilful suppression and whatever may be the reason for withholding the truth of the matter, the benefit necessarily has to be resolved in favour of the appellants. Cumulatively, therefore, the circumstances leave room for doubt as to whether the names of the assailants were at all disclosed to the Principal. The matter, however, does not rest here. According to the investigating officer, he had examined Mahboob Hussain, Shafaat Hussain, Dildar Ahmad and Hasnain at the hospital soon after the deceased had expired, but none of the witnesses examined at the trial have admitted so. Dildar Ahmad stated that he went to the Police Station in the evening when his statement was recorded. Shafaat Hussain, on the other hand, stated that his statement was recorded in the evening at his house. Lastly Mahboob Hussain stated that be was examined on the next day. Even on this aspect of the case the prosecution witnesses are not consistent. Necessarily, therefore, from what the witnesses have deposed, the names of the assailants must have transpired from their statements.

8. The next question, which arises for consideration, is whether their evidence can be accepted without corroboration. It is the ‑prosecution case that Dildar Ahmad was also a student of the Comprehensive School, but there is no firm evidence to sustain this fact. Moreso, in the context of the fact that Dildar Ahmad admitted in cross‑examination that he only went to attend the school that day. This is nothing but a coincidence and when considered in the context of the conduct of Dildar Ahmad, it becomes a doubtful feature whether he was at all present at the time of the incident. Equally it is not possible to place implicit reliance on the testimony of Shafaat Hussain and Mahboob Hussain who have prevaricated. According to the evidence of the Principal, he had seen many brick‑bats lying scattered on both sides of the road at the wardat. The medical evidence speaks of four injuries, of which one is incised, two are abrasions and one, an abraded bruise, which are opined to have been caused by a blunt weapon. According to the F. I. R. the deceased suffered a scratch on his arm while the knife was being pulled out by Mir Ali Ahmad, but no such injury was found on him. Again, the ocular testimony merely speaks of a slain and an incised injury caused by Mir Ali Ahmad. The presence of the two abrasions, and the abraded bruise is thus not explained from their version. As for the part assigned to the other two appellants, namely Mazhar Hussain Shah and Ali Akbar what is of significance is that it was for the first time disclosed at the stage of the trial that they bad held the deceased, which is nothing but an attempt to assign to them an incriminating part. Though Mir Ali Ahmad is stated to have inflicted the knife injury, yet it was Ali Akbar, from whose person the blood‑stained shirt was seized, and he had further produced a dagger and a blood‑stained knife which, of course, have not been proved to be stained with human blood. Be that as it may, this cir cumstance is also not consistent with the part assigned to Mir Ali Ahmad. What appears to me is that the witnesses have suppressed their own part the fight. The fight was sudden and there was exchange of brick‑bats, as result of which the deceased had suffered two abrasions‑ and one abraded bruise by the brick‑bats which must have hit him: As to who stabbed the deceased remains doubtful and no liability can be attributed to the assailant jointly, for in such a case there is no scope of common intention o common object as the assailants can only be held guilty to the extent of their own involvement. Considering all this when the case entirely rests on the testimony of these witnesses it is not possible to place implicit reliance on them, for to sustain a conviction on capital charge there must be unim peachable evidence, which is not the case here.

9. As for the confessions they are self‑exculpatory and were rightly excluded from consideration by the trial Court and so also the incriminating articles, which were not established to be stained with human blood.

10. In the result for the foregoing reasons, the prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. While accepting their appeals we would give to them the benefit of doubt and acquit them. They shall be released forthwith unless wanted in some other case. Appeal allowed