AHMED Versus THE STATE
These two Criminal Appeals Nos. 218/86 and 219/86 are directed against the judgments dated 8th October, 1986 of Vth Additional Sessions Judge (South) Karachi. I propose to dispose off both the appeals by this single judgment as both the prosecution cases are connected.
2. Facts are that appellant Ahmed alongwith co‑accused Qasim and Yousuf was tried for the murder of Umar. Co‑accused were acquitted while appellant Ahmed has been convicted under section 302 and sentenced to imprisonment of life and also to pay fine of Rs.5,000 in default to suffer R.I. one year. Fine if realised to be paid to the legal heirs of Umar. Appellant has also been convicted separately for the offence punishable under section 14(e) of Arms Ordinance and has been sentenced to suffer R.I. for one year and to pay fine of Rs.500 in default to undergo R.I. for one month Appellant filed‑appeals against both the judgments.
3. Briefly the case of prosecution is teat on 30‑10‑1981 at about 5‑30 p.m. when the deceased Umar alongwith prosecution witnesses was coming back from the burial of Abdul Hafiz son of Mohammad Ismail, the present appellant Ahmad gave him knife injuries when accused Qasim and Yousuf caught hold of him. It is alleged that Qasim and Yousuf and knives but they did not cause injuries. Umar fell down. Haji Mohammad, Yaqoob and Ismail removed him in Civil Hospital, but he died on the way. The incident was alleged to have been witnessed by P.Ws. Mohammad Ismail, Yaqoob and Abu Bakar. Police came in the hospital and recorded the statement of Haji Mohammad. Motive is a matrimonial dispute between the parties. Police after investigation challaned the case and finally case proceeded and Qasim and Yousuf were acquitted and appellant Ahmed has been convicted as stated above.
4. Prosecution in support of the case examined P.W.1 Haji Mohammad Ex.6 and P.W.3, Abu Bakar as eye‑witnesses. P.W.4 Abdu Bakar son of Haji Mohammad Mashir P.W. 5, Mohammad Shafi, Head Constable P.W.6, Head Constable Mohammad Tariq P.W. Dr. S.M. Hizamani P.W. 8 S.I. Khalilur Rehman, P.W.9 Dr. Shahid Azhar Saddiqui and P.W.10, Inspector Mohammad Islam.
5. Appellant in his statement under section 342, Cr.P.C. had denied allegations and stated that witnesses have deposed against him due to enmity. He did not give his statement on oath, nor examined any witness in his defence.
6. Haji Mohammad Ex.6 has corroborated the version as given in the statement and stated that appellant Ahmed gave knife injuries to Umar in his presence and incident was witnessed by his brothers Yaqoob, Ismail, Abu Bakar another Abu Bakar son of Haji Umar. He has stated that Docks Police came in the hospital and recovered his statement which he produced as Ex.7. He also acted as Mashir of injuries and inquest and produced the same as Exs. 8 and 9. P.W. Ismail Ex.10 has stated that his son Abdul Hafeez died and after offering Juma prayer the dead body was burried. After the burial he alongwith father was going to his house. His cousin Umar was ahead of them while complainant Haji Mohammad was on their back side. At about 5‑30 p.m. when they reached near Tanki there appeared appellant Ahmed, accused Qasim and Yousuf and abused them. On which Umar resisted. Thereupon, Yousuf and Qasim caught hold of Umar while appellant Ahmed gave him knife injuries who fell down. The incident was witnessed by Yaqoob, complainant Haji Mohammad and others. Abu Bakar son of Yousuf Ex.12 has stated that on the day of incident after offering Juma prayers the dead body of Hafeez was burried. They were going to their house. On the way saw accused Ahmed, Qasim and Yousuf appeared. Ahmed had open knife and caused blow to Umar on his chest due to which he fell down. Accused Qasim and Yousuf caught hold of deceased. Police came at the place of incident and he has taken police station where his statement was recorded. Sarfraz Khan Ex.13 is process‑server and stated that prosecution witnesses Yaqoob and Haji Ismail have expired, so he returned unserved summons and produced as Ex.16. P.W.4 Abu Bakar son of Haji Mohammad Ex.17 has stated that he was Mashir of place of incident. He produced Mashirnama as Ex.18. He has stated that police arrested appellant Ahmed and secured blood‑stained clothes from the person of the appellant. Appellant voluntarily led the police and produced blood‑stained knife. Police secured and sealed the knife and Mashirnama was prepared and he produced as Ex.19. Mohammad Shafi Ex.21 stated that on 30‑10‑1981, he was Head Constable, Police Station Docks, Karachi. At 19‑00 hours one Doctor from Civil Hospital informed him on telephone that Umar had come in the hospital in injured condition anal subsequently died. He made such entry in the Roznamcha and produced as Ex.22. In his cross‑examination stated that he was on duty from 2‑00 p.m. to 8‑00 p.m. but do not know if any person came at the police station to lodge the report. He stated that from Baba Island at police station one can reach within 20 minutes. Head Constable Mohammad Tariq Ex.26 stated that on 30‑10‑1981 he was Head Moharar at P.S. Docks. S.H.O. sent him, statement Ex.7 and he registered the case and he produced F.I.R. as Ex.27. He has further stated that on that day no one came at the police station to inform about the incident. P.W. 7 Dr. S.M. Nazamani was Duty Officer in Civil Hospital, Karachi. He received dead body of Umar. He informed Police Station Jackson, Karachi. He issued medico‑legal certificate regarding dead body of Umar which he produced as Ex.29. P.W.9. Dr. Shahid Azhar stated that on 30‑10‑1981 he received dead body of Umar at 6‑00 p.m. He conducted post‑mortem on the dead body of Umar and found the following external injuries:-
(1) There was incised wound left side chest measuring 3/4" x 1/4" x cavity deep. On left side lateral to sternum in the 4th inter costal space 4" Rt to the Lt. Nipple. Oblique in direction in comparison with the mid sternal line.
(2) Abrasion forehead on the Rt. side 1 " above the right eye‑brow measuring 3/4" x " x S.D. (Skin deep).
(3) Contusion right upper hand on the biceps on the anterior surface measuring 1" x ".
(4) Abrasion right lower arm medially mid way between the elbow and the wrist joint measuring 2 " x " skin deep.
(5) Abrasion right knee joint anteriority measuring " x " x skin deep.
(6) Incised wound left lower arm on the lunar aspect about 5" above the wrist joint. " x 1/8" x skin deep.
(7) Abrasion back in the left lumber region 1 " x " x skin deep. "
He has stated that cause of death was cardio respiratory failure due to coma and irreversible shock due to haemorrhage due to incised wound left side chest. He produced post‑mortem report as Ex.33. Mohammad Islam Ex.35 is Investigating Officer. He stated that on 30‑10‑1981 he was S.H.O. Police Station Docks. On that date when he was petrolling duty, he received a written intimation at 7‑00 p.m. from the police station through P.C. Zulfiqar. On receiving this information he went to Civil Hospital where he recorded statement under section 154, Cr.P.C. of complainant Haji Mohammad Ex.7. Thereafter, statement was sent to police station for registration the case. The case was registered crime No.127/81 as Ex.27. He inspected the dead body of deceased Umar and prepared inquest memo. of inspection as Exs. 8 and 9. He proceeded to the Wardat and prepared Mashirnama. On 31‑10‑1981 he arrested Ahmed near his house and prepared Mashirnama as Ex.20. After his arrest he found some blood stains on the shirt of accused which he secured and sealed. Appellant produced one knife. He prepared Mashirnama as Ex.19. Thereafter, recorded the statement of prosecution witnesses and after investigation submitted challan in the Court.
7. A case under section 14(e) was also registered on 31‑10‑1981 and case was challaned separately.
8. I have heard Mr. Sheikh F. M. Javid, Advocate for the appellant. It is contended by learned counsel that entire evidence is of interested witnesses and enmity between the parties is admitted. It is argued that there is ordinate delay in lodging the First Information Report. It is contended by the learned counsel that blood was not found at the Wardat nor there is chemical examiner report of clothes and knife. Mr. Javid, submitted, that medical evidence does not support the ocular testimony.
9. Mr. Hayat Qureshi, appearing for the State, does not support the conviction and submitted that the case is not free from doubt.
10. Admittedly the incident took place at 17‑30 hours when Police Station Docks, Karachi according to the First Information Report is about two miles. The report was not lodged at the police station but when Doctor informed the police on which S.I.P. came at the hospital where he recorded statement of complainant Haji Mohammad Ex.7 at 2‑00 hours. Complainant has not furnished any explanation for not reporting to the matter to police after the incident. According to the report of Haji Mohammad appellant Ahmed gave knife injuries to deceased Umar, but according to the medical evidence Ahmed sustained two incised wound and four abrasions and one contusion and death is due to sharp weapon. In my opinion contusion and abrasions could not be caused by sharp weapon but these injuries could be the result of hard and blunt substance. Therefore, the medical evidence in my view does not support the version given by the eye‑witnesses. The case of prosecution is that this incident was witnessed by Haji Mohammad his brother Yaqoob, Ismail, Abu Bakar, son of Yousuf and Abu Bakar son of Haji Umar P.W. Ismail cousin of deceased in his evidence stated that all the accused were armed with the knives but appellant Ahmed gave injuries to Umar who fell down as result of injuries. P.W. Abu Bakar son of Yousuf, admitted, that there is enmity between Haji Mohammad, the accused over the affairs of marriage of Ismail with sister of accused. The chemical examiner's report is not on record. Therefore, it has not been proved that a knife and clothes secured from the appellant were blood‑stained.
11. In these circumstances there is only evidence of three eye‑witnesses viz. complainant Haji Mohammad, Mohammad Ismail and Abu Bakar. Yaqoob was not examined as he died. There is admitted enmity. There is delay in reporting the matter. The dead body of Umar was received by Dr. Shahid Azhar on the same day at 6‑00 p. m. till then report was not lodged. Police Officer came at the hospital and recorded the statement of Mohammad at 8‑00 p.m. According to the prosecution so many persons were present but no one went to lodge the report at the police station. There is no explanation from the witnesses. The medical evidence is also not supporting the ocular testimony of the witness in toto. There is no corroboration to the ocular testimony as blood was not found from the Wardat and articles were not sent to the chemical examiner. Trial Court acquitted co‑accused Qasim and Yousuf and not believed the same set of witnesses.
12. For the reasons, stated above I am of the view that case is not free from doubt. The Criminal Appeal No. 218/86 is allowed and appellant is acquitted. He is in jail and still he released forthwith if not required in any case.
13. With regard to the case under section 14(e), there is evidence of P.W.1 Abu Bakar who is son of Haji Mohammad complainant of the main case. There is no independent Mashir of recovery. Enmity there. This witness is interested. Moreover, appellant was sentenced to suffer R.I. for one year. He has already served out of his sentence. I extend benefit of doubt to appellant and his Appeal No. 219/86 is also allowed, and he is acquitted.
S. G. D./A‑200/K Appeal allowed.