1977 P Cr (PLP)

4. In his deposition before the Sessions Court the complainant Qari Muhammad Younus gave an altogether different version of the incident according to which he had seen the deceased Abdul Qayum and Abdul Hamid having a quarrel, the complainant intervened and on his advice they separated. Abdul Rashid was standing nearby and he also tried to pacify and separated his son Abdul Hamid and the deceased Abdul Qayyum. One person, the complainant went on to depose, by name Din Muhammad, a prosecution witness, was also present who bad in his hand a stick with which his struck Abdul Hamid. Abdul Rashid protested. In the meanwhile Abdul Latif, brother of Abdul Qayyum reached the place and he pursuaded Abdul Qayyum to accompany him :o his house. About this time two other sons of Abdul Rashid one of them being appellant Abdul Majid cane and picked up a quarrel with Abdul Qayyum and his brother Abdul Latif and they fought each other. Thus a fight broke out among these four persons, two brothers on each side during the course of which fight deceased Abdul Qayyum fell down and the two sons of Abdul Rashid went away. The witness had seen the Injury on the left chest of deceased Abdul Qayyum, which was slightly bleeding. By that time according to him a big crowd had already gathered but he did not remember the name of any person. A few minutes later father of Abdul Qayyum came and removed injured Abdul Qayyum to the hospital and the witness thereafter went to the police station and lodged the F. I. R. The witness categorically stated that he did not see anything in the hand of appellant Abdul Majid nor did he notice him making arty assault on the deceased. He could not identify the Weapon with which injury was caused to rte deceased but did say that while falling down after receiving knife injury deceased Abdul Qayyum had shouted to his brother P. W. Abdul Rehman that he should keep away from Abdul Majid because he had a knife. As to the lodging of his complaint the witness stated drat though he had gone in the morning of the incident to lodge the report but the same as tar as he could recollect was not recorded in writing, which was done when he was called to the Police Station at about Maghrib time. As to the contents of the F. I. R, he stated that the Police had made some additions. The A. P. P. was happily content with the production of the lower Court statement of his witness, which was exhibited. No application was made under section 288, Cr. P. C, no request made to declare the witness hostile and no questions put as to the contents of the F. I. R. and the contradictions between the two deposition. As to recovery of knife allegedly in his presence the complainant stated that police had told him of the place in the house of the appellant from where knife had been earlier recovered but he had seen the knife for the first time at the police station. In his cross‑examination the complainant admitted that the incident occurred all of a sudden; that the accused Abdul Hamid was called Charia since his mental condition was unsound long before the incident and that it was correct that Abdul Hamid had taken a Rapi from the nearby cobbler and with it struck the deceased Abdul Qayyum.

4. The other uninterested occular evidence is of P. W. Muhammad Yusuf Qureshi, who stated in his deposition that he had not seen the incident. He was declared hostile and his lower Court statement was brought on reword under section 288, Cr. P. C. but that also does not materially improve the prosecution case in as much as even earlier he had stated that he was not an eye‑witness having come on the scene after the incident.

5. The next unconnected witness, P. W. Ghulam Samdani, like the complainant gave a go‑by to his statement before the committal Court. He could not identify the appellant Abdul Majid and went on to state that either Abdul Hamid or the appellant Abdul Majid had inflicted the knife injuries on the deceased but did not recollect which of them had done so. An application was made under section 288, Cr. P. C. for bringing on record his lower Court statement, which was granted but it proved redundant for the permission sought by the A. P. P. to cross‑examine the witness as he had become hostile, was sprightly disallowed and no grievance was made against it by the prosecution.

6. The fourth prosecution witness who was cited as an eye‑witness was P. W. 8 Rana Mukhtar Ahmed who was also a mashir for the recovery of knife. He denied that he had witnessed the Incident or that the knife was recovered in his presence. His statement in the lower Court was not brought on record for the obvious reason that there was no difference between the two versions.

7. Then there are two more formal witnesses, P. W. 9 Abdul Rashid who had guarded the dead body of the deceased and the S. H.

0. P. W. 11 Yar Muhammad Khan, the Investigation Officer who deposed that the complainant's complaint was recorded by the him at R‑30 a.m. on the day of the incident, and that the appellant Abdul Majid led him to a but in Abbysinia Lands, and from under the courtyard produced a knife covered with blood which was secured and sealed by him in the presence of mashirs P. Ws. Qari Muhammad Younus and Rana Mukhtar Ahmed. In his cross‑examination he stated that he had not obtained the signature of the complainant on the F. I. R. at 8‑30 a.m. but at 8‑00 p.m. when he again came to the police station and went on to contradict himself and state that in fact he had taken his signature at 8‑30 a.m.

8. Now I come to three more prosecution witnesses, namely, the father and the two brothers of the deceased who have been described by Mr. Sami Ahmed, the learned counsel for the appellant as interested witnesses. The first witness is P. W. 3 Abdul Latif. This witness stated that on his way to the market front his house lie saw Abdul Hamid and deceased Abdul Qayyum fighting with each other near the Chowk of Abbysinia Lines and that the former vas beating the latter. P. Ws. Ghulam Samdani, Qari. Muhammad Younus, Rana Mukhtar Ahmed, Yousuf Qureshi and others were trying to get them separated. 1n the meanwhile Abdul Rashid, father of Abdul, Hamid came and started abusing and asked Abdul Hamid to fetch leis brothers which request was complied with for he brought his brothers, the appellant Abdul Majid and Abdul Farid. The witness alleged that Abdul Rashid told his son to catch the deceased and give him beating whereupon Abdul Farid caught hold of the deceased from behind and appellant Abdul Majid inflicted on him knife blows on the left side of the chest. The witness was also caught hold of by Abdul Rashid and Abdul Hamid gave "Rapi" blows on his head. In his cross‑examination he admitted that his father Allah-Ditta had reached the scene after, the incident and had sustained injuries and that the accused had runaway by the time his father came. The witness denied the suggestion that appellant Abdul Majid was assaulted by him the deceased Abdul Qayyum, Allah Ditta and my uncle Muhammad Din, with knife and dandas causing injuries.

9. The next witness, the father of the deceased P. W. 4 Allah Ditta supported the version given by P. W. Abdul Latif. He also did not mention the presence of P. W. 5 Muhammad Dire at the scene of offence. He denied the suggestion that appellant Abdul Majid as also injured. According to him he was present right from the very beginning for he had seen Abdul Hamid and Abdul Qayyum fighting when none else was present. He denied the suggestion that P. W. 5 Muhammad Din' was his relative. He further stated that he had gone to lodge the complaint with Saddar Police Station at about 11‑30 a.m. on the day of tile incident when he was examined by S. I. P. Yar Muhammad.

10. The third and the last eye‑witness in this category is P. W. 5, Din Muhammad. According to his deposition he had seen the incident right, from the very beginning and he further supported the version given by P. We. Abdul Latif and Allah Dim. He did not state if P. W., Allah Ditta had seen the incident or 'that he was present. He denied that he had beaten Abdul Hamid or that the appellant Abdul Majid was injured by "any of us". He also denied that he was paternal uncle of P. W. Allah Ditta.

11. Finally, there is the medical evidence of the examination of appellant Abdul Majid on the day of the incident at 5‑50 p.m. according to which he had received three simple injuries by sharp‑edged light weapon and one injury by a hard blunt object which cold be a stick. There is also medical evidence of three injuries to Abdul Hamid caused by hard blunt object.

12. Before I come to the contentions raised by Mr. Sami Ahmed, the learned counsel for the appellant it may be useful to refer to the reasoning of the learned Additional, Sessions Judge in arriving at the finding of the guilt against the appellant arid giving 'the two other' accused Abdul Rashid and Abdul Farid benefit of the doubt. The learned Judge held that P. W. Allah Ditta was an eye‑witness, P. W. Muhammad Din was not related to him and that P. Ws. Muhammad Yousuf Qureshi, Ghulam Samdani and Rana Mukhtar Ahmed were "almost hostile". The evidence of P: W. Muhammad Yousuf Qureshi before the committal Court that he had been informed by P. Ws. Qari Muhammad Younus and Ghulam Samdani that Abdul Rashid had caught hold of Allah Ditta anti Farid had caught hold of the deceased who was then stabbed by the appellant Abdul Majid was accepted as corroborative piece of evidence, though the alleged informants had not so stated nor was any such suggestion put to them. As to P. W. Ghulam Samdani, the learned Additional Sessions Judge believed his trial Court version which was brought on record, in which he had stated that Abdul Rashid had caught hold of Abdul Latif and Abdul Hamid hit Rapi on the head of Abdul Latif, while Farid had caught hold of the deceased Abdul Qayyum who was stabbed in the chest by appellant Abdul Majid. P. W. Rana Mukhtar Ahmed's statement was relied upon to the extent that he was present in his shop at the; time of the incident and had seen the appellant running from infront of his house, escaping into a by‑lane where upon he looked out and saw a crowd about 50 paces away and a person falling on the ground, who was recognised by him as the deceased Abdul Qayyum. As to the witness Qari Muhammad Younus the learned Additional Sessions Judge regarded him as a witness whose deposition needed to be looked into in great detail. According to the learned Judge the lower Court statement of this witness, which was brought on record was practically the same as the statement before him which would go to show that he did not deem it necessary to have it transferred on to his record under section 288, Cr. P. C. The learned Judge then referred to the evidence of the S. H. O. Yar Muhammad Khan as, to the securing of a blood‑stained knife and observed that the recovery was not sufficiently proved or the mashir Qari Muhammad Yunus did not state that the knife was recovered in his presence The learned Additional Sessions Judge then considered the ocular evidence of Abdul Latif brother of the deceased, Allah Ditta father of the deceased and. observed that both of them consistently supported the prosecution version involving all the four accused and that they were supported by P. W. Muhammad Din. As to the latter he found that there was no evidence on record that he was related to the deceased except P. W. Ghulam Samdani who had referred him as uncle of the deceased but he could not be believed as he was almost hostile. The father Abdul Rashid was given benefit of doubt as P. W. Qari Muhammad Younus did not attribute any part to him both in his committal as well as trial Court statements. As to the accused Farid and Abdul Majid the observation was that evidence against them was consistent and without any contradiction, but went on to give Farid benefit of doubt by a process of reasoning which is not easily understandable. In convicting the appellant Abdul Majid, the learned Additional Sessions Judge almost entirely relied upon the statement of Qari Muhammad Younus recorded by the committal Court, for he appeared to him as a straight forward witness inspiring full confidence. Additionally the leaned Judge relied upon the statement of Qari Muhammad Younus before him that the deceased Abdul Qayyum while falling down after receiving knife blows had shouted to his brother that he should keep away from appellant Abdul Majid because he had a knife, which, according to the learned Judge was a sort of dying declaration and implied that this was the knife with which the appellant Abdul Majid had stabbed the deceased. 13 Mr. Sami Ahmed the learned counsel for the appellant forcefully contended that the conviction of the appellant has been based by the learned Additional Sessions Judge almost exclusively on the deposition of witness Qari Muhammad Younus recorded by the committal Court, which the learned Judge was clearly not entitled to for several valid reasons. There was no application filed by the prosecution under section 288, Cr. P. C. The defence had no notice that the Judge or the prosecution intended to use against the appellant the witness's lower Court statement as substantive evidence. Tue learned Additional Sessions Judge did not in fact transfer lower Court statement of this witness to his record and even otherwise ignored the law on the subject that when a deposition is sought to be admitted under section 289, Cr. P. C. section 145 of the Evidence Act governs the situation and it cannot be admitted unless contradictory portions are put to the witness. The learned Additional Sessions Judge has at one place observed that the two statements are practically the same, which is contradicted by its bare reading for in one the appellant gas clearly implicated while in the other he was totally absolved. The learned Additional Sessions Judge also referred to some sort of dying declaration said to have been made by deceased Abdul Qayyum when he shouted that the appellant bad a knife it, his hand from which the inference drawn was that this was the knife by which the appellant had stabbed the deceased. The nature of the statement allegedly made by the deceased at its best proved that the appellant was armed with a knife and not that he had knifed the deceased. In any event the source of the so called dying declaration is Qari Muhammad Yaunus himself, according to whom he had neither seen anything in the hand of the appellant nor did he notice him making any assault on the deceased. It is also significant that P. W. Abdul Rehman to whom the declaration was supposedly addressed by the deceased did not say so in his deposition. In fact according to Abdul Rehman he came on the scene after the incident. The evidence of Ghulam Samdani is also of little assistance to the prosecution for he did not support the prosecution at the trial though he had deposed to the contrary before the committal Court. No doubt in his case an application under section 288, Cr. P. C. was filed by the prosecution and his lower Court statement was brought on record but what is significant is the omission of the learned Judge in drawing the attention of the witness to his previous statement and afford him an opportunity of explaining the inconsistency between his two statements as required by section 145 of the Evidence Act, with the result that we are now left with Ws evidence before the learned Additional Sessions Judge which does not implicate the appellant.

14. Coming to the evidence of the father Allah Ditta, Abdul Lati the brother of the deceased and Muhammad Din, Mr. Sami Ahmed rightly pointed out that their relationship with the deceased cannot be ignored in malting proper evaluation fl the case and since they were interested, inde pendent corroboration was necessary which is obviously wanting. Even as to these three witnesses Mr. Sami Ahmed invited my attention to not insignificant contradictions in their versions. P. W. Abdul Latif stated that he was injured on his head by Abdul Hamid by a Rapi but there is no medical evidence of this injury. The medical evidence is that appellant and Abdul Hamid were injured but both Abdul Latif and Muhammad Din categorically denied this. According to Abdul Latif hid father Allah Ditta came on the scene after the incident but according to the father he was present throughout and had seen the incident. Lastly, neither Abdul Latif nor his father Allah Ditta speak of the presence of P. W. Muhammad Din, apparently because Qari Muhammad Younus had alleged that be had given a stick blow to Abdul Hamid and the defence version was that he had participated in the fight which resulted also in the injury to the appellant and Abdul Hamid, which also explains the anxiety of these witnesses to deny their relationship with Muhammad Din. In this view of the matter it was conceded by Mr. Muhammad Nazir Alam, learned counsel for the State that it will be unsafe to maintain the conviction of the appellant on the evidence of the aforesaid three partisan witness the absence of independent and cogent corroboration.

15. Before I part with this case I must point out that neither the learned III Additional Sessions Judge nor the counsel for the State appearing before him were conscious of their duties in conducting a criminal trial and but for their omissions, referred to above, the result of this appeal might as well have been different. Office is directed to invite the attention of my Lord the Chief Justice to this judgment for such action as he may deem fit.

16. For the reasons aforesaid I had by a short order allowed this appeal and acquitted the appellant. Appeal allowed.