RAZA ALI Versus THE STATE
This appeal under section 410, Cr. P. C. is directed against the judgment dated 24th May, 1979 of the learned Sessions Judge, Hyderabad whereby he convicted the appellant under section 302, P. P. C., and sentenced him to imprisonment for life and to pay a fine of Rs. 1,000 or in default of payment of fine to undergo further R. I. for one year. He also ordered for payment of Rs. 1,000 as compensation payable by the accused to the heirs of the deceased in terms of section 544‑A, Cr. P. C. and in default of such payment to undergo further R. I. for six months.
The facts of the prosecution case are that one Bashir Ahmed Quresbi son of Nazar Mohammad resident of Unit No. 9jE, House No. 186 of Latifabad, Hyderabad lodged his F. I. R. on 1st June, 1976 at Police Station Latifabad which reads as under :‑
"I and my brother Abdul Kadir used to do the 'Nagina' work, and reside on the above address. Today in the evening, Abdul Kadir after doing his usual work went to visit city. At about 21‑30 o'clock when I was present at my house, that some one called me from outside. I came out and found my brother Abdul Kadir in the injured condition in the Rickshaw. Naeem Khan son of Yaseen Khan Pathan, Abdul Latif son of Muhammad Yaqoob and Ali Hassan son of Noor Muhammad were also in the rickshaw. They told me that Ali Raza causing knife blows, bad injured my brother Abdul Kadir. I also found the knife injuries on the chest and back of my brother, which were bleeding. My brother told me that few days prior accused Ali Raza had given me a knife which was lost by him. Today at 8‑45 p. m. 1, Abdul Latif and Ali Hassan were standing at `Osmania Mosque' in Unit No. 9. Raza Ali came there. He demanded back the knife from me. I replied him that the knife was lost, whereupon he got annoyed and gave me abuses. Hence the quarrel occurred in between us but Abdul Latif and Ali Hassan intervened and evaded the quarrel. Raza Ali giving absuses went away, saying that he would see him, Abdul Kadir. Then, I Abdul Latif and Ali Hassan while talking, reached at 'Yaseen' Hotel, Unit No. 11. While we were standing on the side of road, at 21‑10 o'clock, accused Raza Ali came there. There was an open knife in the hand of accused Raza Ali. He abused and told me that he would not spare him. In the meanwhile he attempted upon me and stabbed a knife blow on my chest ; I fell down. Raza Ali again stabbed second knife blow on my back. Abdul Latif, Ali Hassan, Naeem and others intervened and rescued me. Accused Raza Ali ran away alongwith his knife. The above mentioned witnesses have carried me in a rickshaw. Abdul Latif, Ali Hassan and Naeem also supported the above facts. Thereafter, carrying my brother in the same rickshaw, I have come at P. S. to lodge the report. I lodge complaint that the accused Raza Ali causing knife blows to my brother Abdul Kadir had made him seriously injured with intention to commit his murder, in presence of the above witnesses. I lodge complaint, justice be done".
Khushhal Khan P. W. 13 A. S. I. of Police Station Latifabad, recorded the F. I. R. Exh.
8. He found injuries on person of Abdul Kadir and prepared such mashirnama Exh. 18 in presence of mashirs Abdul Waheed and Jaffar. He also recorded the statement of the injured who was in his senses. He then referred him to the hospital. He also recorded the statements of P. Ws. Abdul Latif and Ali Hassan who had gone with the injured. P. Ws. Ghayasuddin and Naeem Khan had also gone with the inured but he recorded their statements on the next day. When he came to know through the complainant Bashir that his brother Abdul Kadir had expired in the hospital, he went there and left P. C. Munir with the dead body as a guard. He inspected the scene of offence on the next day in presence of mashir Rehmat Ali and Fakhruddin. It was situated near the bus stand in front of "Yaseen Hotel" in Unit No. 11, Latifabad. It was shown to him by Ali Hassan P. W.
8. He prepared such mashirnama Exh. 22 of the dead body of the deceased Abdul Kadir in presence of mashirs Abas and Aijaz. He prepared such inquest report Exh. 9, in presence of the same mashers. He then arrested the accused Raza Ali in presence of mashers Rahmat Ali and Fakhruddin and prepared such mashirnama Exh.
12. The accused volunteered to produce the knife and led the Police and mashers to a place at a distance of 25 paces from place of his arrest and he produced the knife from small bushes on back side of "Pan‑Biri" cabin before them. He secured it and found blood stains on it and prepared such mashirnama Exh.
13. The accused produced his shirt and shalwar which were freshly washed and were having slight blood stains. He secured the clothes and prepared such mashirnama Exh. 14 in presence of same mashirs. He got recorded statements of Abdul Latif and Ali Hassan under section 164, Cr. P. C. before the A. C. M. I, Hyderabad on 3rd June, 1976 and of Naeem, Yaseen and Ghayasuddin on 4th June, 1976. He then handed over the case papers to the S. H. O. Qamar Shaikh who finally challenged the accused in the Court to stand trial under section 302, P. P. C.
The prosecution case is mainly based on the evidence of the complainant Bashir Ahmed P. W. 1, ocular testimony of Muhammad Yaseen P. W.
7. Ali Hassan P. W. 8, Ghayasuddin P. W. 10, Abdul Latif P. W. 11. corroborative evidence of Naeem Khan P. W. 9, Rehmat Ali masher P. W. 2, Muhammad Ibrahim P. W. 12 who recorded 164, Cr. P. C. statements of the P. Ws. Dr. Abdul Majeed P. W. 5 and Khushhal khan I. O. P. W. 13.
The medical evidence shows that the deceased Abdul Kadir died due to injury to his heart, shock and haemorrhage. Dr Abdul Majeed, who performed the autopsy, has been examined and he has stated as under :‑
On 2nd June, 1976 1 was Medical Officer in L.
10. C. Hospital Hyderabad. On that day A. S. I. P. S. Latifabad, referred dead body of the deceased Abdul Kadir son of Nazar Muhammad for post‑mortem examination. The body was identified to me by Abdul Hameed brother of the deceased. I started post‑mortem examination at 11.15 a.m. and finished it in about 1 hours. The body was of a male Muslim of average built aged about 25 years. Rigor Mortis was present in the entire body. On external examina tion, I found the follwing injuries :‑
(1) Stitched wound above left nipple 1 long. Stitched wound on left scapula 1 long. On dissection, I found injury No. 1 was cavity deep. Piercing through 4th and 5th ribs on left side. Injury No. 2 was only muscle deep. On internal examination I found as follows:‑
(1) Left therasic cavity was full of blood.
(2) Through and through cut in left verticle of heart.
(3) Stomach was full with fluid food particles.
(4) Bladder was empty.
(5) Remaining organs were normal.
Opinion :‑--
All injuries were anti‑mortem and appeard to have been caused with sharp cutting weapon like a knife. Death was due to external injury No. 1 which resulted in injury to heart, shock and haemor rhage ending, in death. Injury No. 1 was individually sufficient to cause death in the ordinary course of nature. Injury No. 2 was simple in nature. Time between death and post‑mortem was about 12 hours. Time between injury and death was within an hour. I issued such P. M. notes. I produce the same as Exh.
20. It is the same and bears my signature."
The accused however denied the allegations and claimed to be innocent.
The point for determination is if the accused inflicted injuries to the deceased who died as a result of it ?
At the trial, the prosecution in order to prove guilt of the accused has examined the complainant Bashir Ahmed who is not an eye‑witness. He has stated the facts given by him in the F. I. R. He has also stated that the S. H. O. had inquired from the injured and reduced it to writing. P. Ws. Muhammad Yaseen, Ali Hasan, Abdul Latif and Ghayasuddin, who are eye‑witnesses have not supported the prosecution case and have been declared hostile and so also the only corroborative witness Naeem Khan P. W. 9 Rehmat Ali mashir, has also not supported the case as he has stated that the accused was already under arrest at the Police Station when he had reached there. He has also not supported the production of recovery of knife and clothes by the accused in his presence.
Mr. Azizullah K. Shaikh, the learned counsel for the appellant has contended that there is only uncorroborated evidence of the complainant Bashir Ahmed who is brother of the deceased and not an eye‑witness of the occurrence. All the eye‑witnesses have given complete go‑bye to the prosecution case and so also the corroborative witness Naeem Khan and mashir, Rehmat Ali. The appellant, therefore, has not been connected with the offence and is entitled to acquittal under the circumstances of the case.
Mr. Ghulamally H. Agha, the learned counsel appearing for the State is also of the view that all the eye‑witnesses have not supported the pro secution case and the accused is, therefore, entitled to acquittal.
I have considered the contentions of the learned counsel for the A appellant as well as State. I have read the evidence on record. There are 164, Cr. P. C: statements of the P. Ws. which have been recorded by Muhammad Ibrahim A. C. M., P. W. 12 who has also been examined. The statements of P. Ws. Muhammad Yaseen, Naeem Khan, Ghayasuddin have been recorded in absence of the accused whereas 164, Cr. P. C. statement of Ali Hassan P. W. 8 is not signed by him. There remains only 164, Cr. P. C. statement of Abdul Latif P. W. 11 which has been o: course recorded in presence of the accused. But this witness does not implicate the accused as he has stated in his statement under section 164. Cr. P. C. that he did not see anybody causing injury to the deceased. Therefore cumulative effect of the evidence on the case as a whole is that there is no convincing evidence to connect the accused with the offence. I, therefore allow his appeal and acquit him. The convictions and sentences awarded to him are set aside. The judgment acquitting the accused was announced by short order earlier and these are the reasons for it.
Appeal allowed.