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Petitioner: THE STATE VS Respondent: CH. AMIRUDDIN
P L D 1964 (W
P L D 1964 (W. P.) Karachi 231
Before Illahi Bakhsh Khamisani and Abdur Rahim Kharal, JJ
THE STATE‑Appellant
Versus
Ch. AMIRUDDIN AND OTHERS‑Respondents
Criminal Acquittal Appeal No. 322 of 1962, decided on 27th January 1964.
(a) Criminal Procedure Code (V of 1898), S. 417 read with West Pakistan Administration (Merger of Federal Territory of Karachi) Order [President's Order No. 9 of 1961], Ss. 5 & 10 Chief Commissioner of Karachi is "Provincial Government" within meaning of S. 417, Cr. P. C. and has power to sanction filing of appeal against acquittal.
(b) Witness‑---Interested‑Unsafe to rely on uncorroborated testimony of.
(c) Witness---‑Mere omission to mention a particular fact by witness in his statement under S.162, Cr. P. C.‑Not sufficient for doubting veracity of his evidence in Court‑Evidence, in appeal against acquittal, nevertheless, not taken into consideration in view of trial Court having refused to accept same.
(d) Witness--‑Interested‑Testimony of disinterested witnesses in support of evidence of interested witness ‑ Held, sufficient corroboration.
(e) Criminal Procedure Code (V of 1898), S. 154‑Quarrel involving large number of people‑Omission to mention name of particular accused in F. I. R.‑Effect‑Penal Code (XLV of 1860), S. 304, Part 1.
(f) Witness‑Consistency in evidence of witness not possible where large number of people are involved in a fight‑Penal Code (XLV of 1860), S. 304, Part I.
(g) Penal Code (XLV of 1860), Ss. 302/149 & 304, Part I/ 149‑Partics at loggerheads with each other‑Evidence on record doubtful as to persons taking initiative in starting trouble‑(Appeal against acquittal)‑Offence, held, fell under S. 304, Part 1/149 and spat under 5. 302/14,9.
(h) Penal Code (XLY of 1860), S. 148‑Blunt weapons used for inflicting injuries on deceased and others‑Benefit of doubt given to accused in res9ect of offence under S. 148.
(i) Criminal Procedure Code (V of 1898), S. 367‑Slipshod manner of recording judgment‑Deprecated.
Muhammad Ali Sayeed Assisted by Ameer Ahmad Khan for the State.
Sami Ahmad for Respondent No. 1.
Asanand Joshi for Respondents Nos. 2, 4, 5, 6, 8, 9, 10, 13, 15, 16, 17, 18, 19 and 25.
N. K. Jatoi for Respondent No. 3.
M. A. Naqvi for Respondents Nos. 7 and 20.
Muhammad Hayat Junejo for Respondents Nos. 11, 21 and 22.
Manzar Uddin for Respondents Nos. 12, 14, 23 and 24.
Dates of hearing : 10th, 11th, 12th, 13th, 17th, 18th and 19th December 1963.
JUDGMENT
KHAMISANI, J.---‑All the 25 respondents in this appeal were sent up to stand triai for offences under sections 147, 148, 302/ 149, 325/149, and 323/149, Pakistan Penal Code. They were committed to the Court of Sessions and were tried by the learned Additional Sessions Judge, Karachi. They were all acquitted. The Public Prosecutor, Karachi, after sanction from the Com missioner, Karachi Division, has filed this appeal against the judgment of acquittal.
2. The facts of this case briefly are that the complainant's party and the respondents had been at loggerheads for quite some time. The admitted position is that several cases had been filed between the parties some of which were pending at the time of the incident. It is alleged that on the 10th of January 1960, at about evening time Ibrahim alias Tehni came to the house of complainant Abdul Hameed and quarreled with his younger brother Saeed. Hanif, another brother of Abdul Hameed, wit nessed this quarrel and informed Abdul Hameed about it when became to his house at about 10 p. m. Hanif also informed Abdul Hameed that several people of the locality had collected at the time of quarrel and had intervened to save Saeed. He also informed him that Tehni had given threats that he would take revenge. At about the same time, i.e., at about 10‑15 p. m., Abdul Hameed heard noise outside and therefore went out. When he went near Isa Hotel, he found Nadir, Munshi and Badru lying injured. He also saw the respondents mentioned in the first information report giving injuries to these persons. The names of the respondents given in the first information report are Amiruddin, Cheena, Chuna, Aziz, Babuddin, Riazo, Sharif, Rafikuddin, Tehni, Bakhva, Barkat, Islam, Fariduddin, Bashir, Tahir and Zakir. As soon as Abdul Hameed went for the rescue of the injured he also was given injuries. It is suggested that a lot of people from the locality including Nathu, Sattar, Nathu son of Karim and Aijaz had collected at the scene and witnessed the occur rence. The police also arrived on the scene and apprehended some of the respondents. It is also mentioned in the first inform ation report that at the time when the police was taking the arrested persons to the police‑station people at the scene were saying that Amiruddin had run away to the police station after inflicting blade injuries on his chest. It is also mentioned in the first information report that some of the witnesses caused injuries to some of the respondents in the exercise of the right of private defence.
3. The admitted position on the record also is that Muhammad Yakub Head Constable, Soofi Zardar, Khaki Khan, Iqbal Ahmed and Bashir Ahmed, constables, had come to the scene and arrested Ibrahim alias Tehni, Rafikuddin alias Rafu, Gulfar, Riazuddin alias Riazo, Sharifuddin alias Sharif, Islam alias Nata, Farid alias Bhambho and Babu Din son of Gulab. It is also on the record that the police had secured lathis and bamboo sticks from these respondents. These respondents, who had injuries on their persons, were produced before Kalakot Police. Abdul Hameed and others, who had been injured, had also gone to the police‑station at Kalakot where First Information Report, Exh. 32, was lodged by Abdul Hameed, P. W. 9, at 11‑15 a. m. Counter First Information Report, Exh. 73, had already been lodged by Amiruddin at 10‑40 p. m.
4. The Police during the course of investigation visited the scene of offence and prepared its mashirnama. The significant part of the investigation is that the crockery and some of the furniture in Isa Hotel was found broken at the time when the mashirnama of the scene was made. The statements of the wit nesses were also recorded. The injured respondents as well as the witnesses were sent to the hospital for medical examination and treatment. Some of the respondents, who bad received injuries were those who had been arrested at the scene by Head Constable Muhammad Yakub. Ch. Amiruddin who had lodged the counter first information report was also found with injuries on his person and he also therefore was sent to the doctor for medical examina tion and treatment. From amongst the witnesses, the persons who received injuries were Abdul Ghaffar, Badruddin, Munshi Faridud din, Nadir, Sharif, Israr Alimad, Muhammad Kamil, Jamil Ahmad and Abdul Hameed. Out of these injured persons, Abdul Ghaffar and Badruddin succumbed to the injuries on the 14th of January 1960 and 19th January 1960, respectively. Munshi Fariduddin, Nadir and Sharif had received grievous injuries. Simple injuries were caused to the rest of the injured witnesses. After the usual investigation was completed, the respondents as has been stated above were sent to Court to stand trial. They were all committed to the Court of Sessions where they were acquitted.
5. The respondents, who had neither injuries on their persons nor were arrested on the scene had, when questioned, denied the allegations made against them. They also denied their presence at the scene of offence at the time of the incident. With regard to the respondents Ch. Amiruddln, Ibrahim, Rafikuddin, Gulfar. Riazuddin, Sharifuddin, Islam, Farid and Babu Din, the case put forward was that when Ch. Amiruddin was going to his house and was in front of Chuna's house, Modi, Ghaffar, Chuna Soofi, Allauddin, Shamshad, Nadir and Saeeda gave beating to him with fists. Modi was also alleged to have been given injuries with a knife. The case of these respondents further was that on the cries raised by Ch. Amiruddin, Abba, Aziz, Hamid and others had arrived there and saved him. It is also stated by Ch. Amiruddin that after this quarrel he went to the Police‑station at Kalakot and lodged first information report, Exh. 73. He denies the knowledge about the incident in which Abdul Ghaffar, Badruddin and others received injuries. The case of the other respondents was that on account of the injuries given to Ch. Amiruddin the com plainant's party came in a body and assaulted the respondents and caused injuries to them. Ch. Amiruddin alone has examined Abdul Hai, D. W. 1. and Haji Muhammad, D. W. 2, as wit nesses in defence.
6. The learned counsel for the respondents took up a preliminary point that the sanction for filing an appeal against acquittal which was granted by the Commissioner, Karachi, was invalid in that it could be granted by the Provincial Govern ment alone and the Commissioner, Karachi, was not the Provincial Government for the purpose of granting sanction under section 417, Cr. P. C. The learned counsel for the State took us chronologically through the law on the subject, referred initially to section 5 of the Pakistan (Establishment of Federal Capital) Order, 1948, which inter alia mentioned that the executive authority of Karachi was to be exercised by the Governor. General either directly or through the Administrator and that that authority would extend to all matters included in the List II of Seventh Schedule to the Act. The Government of India Act, 1935, talks in Item 1 of Public Order, Administration of Justice, Constitution and Organisation of all Courts except the Federal Court and fees taken therein. He also referred to Notification No. 1/24/48‑Kar. dated 23rd July 1948, under which all the powers of the Government of Sind under every enactment were conferred on the Administrator of Karachi. He then referred to the Pakistan (Establishment of the Federal Capital) (Amendment) Order, 1952, under which Karachi became the Chief Commissioner's Province and the Administrator was substituted by the Chief Commissioner. Notification No. 3/4/52‑Kar:Il dated the 21st of October, 1952, was also referred under which the Chief Commissioner was given all powers of Sind Government under every enactment just as the Administrator of Karachi was given powers under Noti fication No. 1/24/48‑Kar. dated 23rd July 1948. He next referred to section 2 (i) (ii) of the Establishment of West Pakistan Act, 1955. Under this provision of the Act, the Capital of the Federation was made a Province. Under section 2 (2) of this very Act, it was laid down that the Capital of the Federation was to be governed under section 290‑A of the Government of India Act, 1935. Governor‑General's Order No. 22 of 1955, (Capital of the Federation Order, 1955) was also cited. Under section 2 (2) of this Order, it has been laid down that the Chief Commissioner would exercise executive authority in all matters including the matters in List If of the Seventh Schedule to the Government of India Act, 1935. Under President's Order No. 6 of 1958 (Federal Capital Powers and Duties of the Chief Commissioner) (Declaration Order, 1958) dated 15th April, 1958, a declaration was made under which Notification No. 3/4/52‑Kar.‑lI dated 21st October 1952, was put into effect and the powers conferred under that Notification were ordered to be the powers exercisable by the Chief Commissioner of Karachi. Under President's Order No. 11 of 1959 (Capital of the Federation (Amendment) Order, 1959) dated 11th July 1959, the Administrator of Karachi was substituted for the Chief Commissioner. On 1st August 1960, President's Order No. 20 of 1960 (Seat of Government Order, 1960) was promulgated under which the name of Federal Capital of Karachi was changed to Federal Territory of Karachi. Under Karachi (Federal Territory) Order, 1960, dated 1st December 1960, the powers of the Commissioner were conferred on the Commissioner of Karachi in addition to the powers that he previously exercised. The merger of Karachi took place on 1st July 1961, under Notification No. S. R. O. 27 (R), dated 29th June 1961. Under Article 7 of President's Order No. 9 of 1961 (West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961) under which Karachi was merged all laws that were in force before the merger of Karachi were ordered to remain in force. In view of all the enactments and notifica tions referred to above, it is quite clear that the Commissioner of Karachi exercises the powers of former Government of Sind under all enactments. The Government of Sind in amongst other powers exercised the power under section 417, Cr. P. C. for granting sanction to file appeals against the judgments of acquittal. The Chief Commissioner of Karachi before the merger of Karachi exercised all those powers and was ordered under the law to continue to exercise those powers even after the merger. Under these circumstances we find no substance in the preliminary A objection taken by the learned counsel for the respondents an we are of the view that the Commissioner of Karachi had the legal power to sanction the filing of appeals against the judgments of) acquittal.
7. The question whether Abdul Ghaffar, Badruddin, Munshi Fariduddin, Nadir, Sharif, Israr Ahmad, Muhammad Kamil, Jamil Ahmad and Abdul Hameed received injuries and Abdul Ghaffar and Badruddin succumbed to them is not disputed. It is also not disputed that the injuries on the persons of Munshi Faridud din, Nadir and Sharif were grievous in nature. It is also not disputed that the injuries on the persons of the rest of the injured persons were simple injuries. Dr. Aijaz Ahmad had examined all these injured persons but since he was not available, Dr. Major A. Hassan was examined as P. W. 29. He has produced the certificates of injuries given by Dr. Aijaz Ahmad and has thereby established the case of the prosecution. In view of the question not being disputed, it is not necessary to go into further details about it. The question, in our opinion, stands established.
8. The most important question that needs to be decided in this appeal is whether the respondents or some of them were responsible for causing injuries to the injured persons and whether the judgment of acquittal passed in their favour is proper. It is conceded that there was a long drawn-out enmity between the parties and that there were numerous cases filed between them.
It is also admitted that some of the cases were pending at the time of the incident. It is also admitted that all the respondents are closely connected. It is also established and conceded that all the prosecution witnesses except Muhammad Yakub, Soofi Zardad, Arif Hussain and Ghulam Mohiuddin are related inter se and form one party. It is also conceded that the evidence of all these witnesses except the four witnesses mentioned above will be considered to be interested and inimical and there are tainted and as such will not alone be sufficient for holding the respondents guilty of the offences with which they have been charged. On these admissions made by the learned counsel for the State, the case of the respondents will have to be categorized in three divisions:
(1) The respondents against whom there is evidence of interested witnesses.
(2) The respondents against whom there is evidence of interested witnesses supported by the evidence of disinterested witnesses.
(3) The respondents against whom there is evidence of the witnesses both interested and disinterested and other corrobo ratory circumstances.
We shall in the light of the admissions made, deal with the case of the respondents in the categories mentioned above. We will therefore deal with the case of the respondents of the first cate gory against whom the evidence consists of only the interested witnesses. These respondents are (1) Azizuddin alias Azizo, (2) Aziz alias Abba, (3) Villayat, (4) Abdul Ghani, (5) Rashid alias Bakhwa, (6) Sabir, (7) Babu, (8) Zakir son of Mulla Bashir, (9) Abdul Hameed alias Hamid and (10) Tahiruddin alias Taro. The witnesses who implicate Azizuddin are Abdul Hameed, P. W. 9, Munshi Fariduddin, P. W. 10, Nadir, P. W. 13, Israr Ahmad, P. W. 14 Aijaz Ahmad, P. W. 16, Syed Arif Hussain, P. W. 21 and Mohiuddin, P. W. 23. Out of these witnesses, Abdul Hameed, Munshi Fariduddin, Nadir, Israr Ahmad and Aijaz Ahmad implicate respondent Azizuddin in that they say that he was one of the persons who was in the quarrel and had caused injuries to the injured persons. Abdul Hameed has also men tioned his name in the first information report as Aziz. Apart from the fact that the evidence of these five witnesses is interested as we have already stated the mention of the name of Aziz in the first information report does not convincingly establish the presence of respondent Azizuddin in the quarrel merely because there are two Aziz who are respondents and it cannot be known as to who was the Aziz out of these two Aziz that was meant to be mentioned in the first information report. Syed Arif Hussain, P. W. 21, and Ghulam Mohiuddin, P. W. 23, are disinterested witnesses. Although an argument has been advanced that Ghulam Mohiuddin is not disinterested because he is a son of Mulla Allauddin and one Allauddin is mentioned in the counter first information report, Exh. 73, as one of the Assailants. It is not established whether Allauddin mentioned in the Counter First Information Report is Mulla Allauddin, the father of Chulam Mohiuddin. Under these circumstances, we will consider Ghulam Mohiuddin to be a disinterested witness. Out of these witnesses, Syed Arif Hussain does talk of Aziz being one of the assailants but as we have already stated that there are two Aziz who were the assailants it cannot be inferred that the Aziz mentioned by Syed Arif Hussain is the respondent Azizuddin. Ghulam Mohiuddin does not specifically mention Azizuddin to be one of the assailants. He has, however, implicated him in his general statement that the respondents present in Court were the assailants. The evidence of Ghulam Mohiuddin therefore also cannot be accepted for the purpose of holding that Azizuddin was one of the assailants when Azizuddin was not specifically mentioned in his evidence. The learned counsel for the State also for the reasons given above for not accepting the evidence of Syed Arif Hussain and Ghulam Mobiuddin did not place reliance upon their evidence. Under these circumstances, the evidence which is left on the record implicating Azizuddin consists of the evidence of interested witnesses and there being admittedly no corroboration of their evidence it will be unsafe to accept their evidence for the purpose]' of holding Azizuddin to be guilty of the offences with which he has been charged.
9. Against respondent Aziz alias Abba the evidence consists of the evidence of Munshi Fariduddin, Nadir, Israr Ahmad, Aijaz Ahmad, Syed Arif Hussain and Ghulam Mohiuddin, Syed Arif Hussain has again mentioned only Aziz in his evidence and for the same reason that there were two Aziz as assailants, the evidence of Syed Arif Hussain cannot be considered against this respondent also. Ghulam Mohiuddin has also not specifically implicated him. The learned counsel for the State has also for the same reasons not relied upon the evidence of Syed Arif Hussain and Ghulam Mohiuddin so far as this respondent is concerned. Under these circumstances, the evidence against this respondent reduces itself to the evidence of only interested wit nesses which is not corroborated by any other circumstances on the record. The evidence of the witnesses, therefore, cannot be accepted against this respondent for holding him guilty.
10. So far as respondent Villayat is concerned, the evidence against him consists of the evidence of only interested witnesses who are Munshi Fariduddin, Nadir, Iqbal Ahmad and Muhammad Sharif. Ghulam Mohiuddin does not specifically mention him. There is no other corroboratory circumstance existing on the record against this respondent. The evidence of these witnesses therefore, in our view, will not be sufficient for holding this respon dent guilty.
11. Against respondent Abdul Ghani, the evidence con sists of the evidence of Israr Ahmad, Muhammad Sharif, Munshi Fariduddin, Nadir and Ghulam Mohiuddin. Ghulam Mohiuddin does not specifically involve him in the case. The evidence of the witnesses therefore is interested and inimical and consequently cannot be considered to be sufficient for holding this respondent guilty of the offences with which he has been charged.
12. So far as respondent Rashid alias Bakhwa is concerned, the evidence against him consists of the evidence of Abdul Hameed, Aijaz Ahmad, Muashi Fariduddin, Syed Arif 1‑lussain, Nadir and Ghulam Mohiuddin. Ghulam Mohiuddin does not specifically mention him as an assailant but talks of him generally as being one of the assailants. Syed Arif 1‑lusain did not know this respondent before the incident and was not put to identification test His pointing out of the respondent in Court only therefore will not be sufficient for holding that the respondent was present at the time of the incident. The evidence of rest of the witnesses is tainted and has received no corroboration from any quarter. The evidence as such is not sufficient for holding the respondent liable for the offences with which he has been charged.
13. Against respondent Sabir, the evidence consists of the evidence of Abdul Hameed, Muhammad Sharif, Munshi Faridud din, Nadir and Ghulam Mohiuddin. Abdul Hameed has not mentioned his name in the first information report. Ghulam Mobiuddin speaks of him in general terms and does not speci fically mention him as an assailant. The evidence against this respondent therefore consists of the evidence of only interested witnesses without any corroboratory circumstances and as such is not sufficient for holding him liable for the offences with which he has been charged.
14. So far as respondent Babu is concerned, the evidence against him consists of the evidence of Munshi Fariduddin, Nadir, Ghulam Mohiuddin and Syed Arif Hussain. Ghulam Mohiuddin has not specifically mentioned him as an assailant and for the reasons that we have given in respect of his evidence against the other respondents we do not consider his evidence to be sufficient for holding this respondent liable for the offences with which he has been charged. Syed Arif Hussain had identified him only in Court and was not put to identification test although he did not know the respondent before. The evidence of Syed Arif Hussain therefore also will not be sufficient for holding that the respondent was one of the assailants. The rest of the wit nesses appearing in evidence against this respondent are interested and inimical and as such their evidence will not be sufficient for holding the respondent guilty.
15. So far as respondent Zakir son of Mulla Bashir is concerned, the evidence against him consists of the evidence of Abdul Hameed, Munshi Fariduddin, Muhammad Kamil, Israr Ahmad, Jamil Ahmad, Ghulam Mohiuddin and Nadir. Out of these witnesses, the only disinterested witness is Ghulam Mohiud din but he has not implicated him specifically but has merely stated generally that he was the assailant. Under these circums tances, there being no corroboratory circumstances supporting the evidence of the interested witnesses we consider the evidence against this respondent to be insufficient for holding him guilty.
16. Against Abdul Hameed alias Hamida respondent, the evidence consists of the evidence of Abdul Hameed, Syed Arif Hussain, Munshi Fariduddin and Ghulam Mohiuddin. Abdul Hameed has not mentioned his name in the first information report. Ghulam Mohiuddin has like others put him up as one of the assailants without specifically mentioning his name or assigning any part to him. Syed Arif Hussain did not know this respondent before nor was be put to identification test. His identification in Court therefore, in our opinion, is not sufficient for holding him guilty. There is no other corroboratory circum stance supporting the evidence of interested witnesses and as such the evidence appearing against him, in our view, is not sufficient for holding him guilty.
17. So far as Tahiruddin alias Taro respondent is concerned, he is generally mentioned by Munshi Fariduddin, Nadir and Ghulam Mohiuddin only. No specific part has been assigned to him. His name is also not mentioned in the first information report. No other circumstance in corroboration has been brought forward on the record. Under these circumstances, the evidence against him, in our view, is not sufficient for holding him liable for the offences with which he bas been charged.
18. In view of what we have stated above, we consider the evidence against Azizuddin, Aziz alias Abba, Villayat, Abdul Ghani, Rashid, Sabir, Babu, Zakir, Abdul Hameed and Tahiruddin to be insufficient. We consequently dismiss the…
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