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Petitioner: ANWAR AHMAD KHAN AND 2 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi Title: ANWAR AHMAD KHAN AND 2 Others vs THE STATE Case No.: Criminal Appeals Nos. 191, 194 and 195 of 1970 Date of Judgment:1973-12-20 Reported As: 1975 P Cr. L J 661 Result: Appeals accepted
JUDGMENT
JUDGMENT The three appellants Anwar Ahmed Khan, Raees Ahmed and Manzoor Salim Pervez along with Saim A.I were tried by the IIIrd Additional Sessions Judge, Karachi, on a charge under section 148, P. P. C. And section 302/149, P. P. C. The Additional Sessions Judge by his judgment dated the 21st of May 1970, convicted the three appellants under section 326/149, P. P. C. And sentenced them to R. I. For five years and a fine of Rs. 500 (in default further R. I. For six months). A conviction under section 148, P. P. C. Was also recorded against each one of the three appellants who were sentenced to suffer R. I. For two years. The terms of imprisonment were ordered to run concurrently. Saim A.I, who was tried along with the three appellants was acquitted. 2. The three appellants have filed separate appeals and at the time of hearing appellant Anwar Ahmed Khan was represented before me by Mr. A. K. Brohi who was assisted by Mr. I. Hashmi, appellant Raees Ahmed was represented before me by Mr. Khalid M. Ishaque and appellant Manzoor Salim Pervez was represented before me by Mr. S. Nasiruddin. The State has been represented before me by Mr. Murtaza Hussain. 3. Briefly stated the facts of the prosecution case are that at about 10-30 p.m. On the 23rd of June 1968, the deceased Maqsood Ahmed was sitting in a park located near the Model School in P. E. C. H. S., Karachi. It seems that earlier at about 8 p.m. The deceased had had an altercation with appellant Raees Ahmed because it was stated that the deceased used to tease the girls of the locality. On account of such altercation the appellant Races Ahmed had threatened the deceased Maqsood Ahmed. It is then stated that at about 10-30 p.m. While the deceased Maqsood Ahmed was sitting along with prosecution witness Ahmed Azhar the three appellants along with the acquitted accused Saim A.I and three or four unknown persona cane up and at that time while
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appellants Races Ahmed and Manzoor Salim Parvez were armed with knives, the rest of the accused persons namely, Anwar Ahmed and Saim A.I were armed with lathis. Of the remaining assailants some are said to be armed with knives and the rest with hockeys and lathis. The prosecution story then is that Races Ahmed instigated his companions not to spare the deceased Maqsood and all the accused persons including the appellants thereafter, made an attack, which was in the nature of a concerted attack, on the deceased. It is stated that not only knife blows were given but even danda blows and hockey blows were inflicted on the deceased. There were other persons in the park and they raised cries but the assailants ran away from the scene while the deceased fell down on the road in an unconscious state. The story as given by Mahmood Ahmed, the brother of the deceased is that he along with his friend Hamid A.I and another friend, a Jordanian, were standing on the road and hearing the commotion they came up and found the deceased Maqsood Ahmed lying on the ground in an injured state. It is then stated by complainant Mahmood Ahmed that he asked his friends Hamid A.I and the other Jordanian student to carry his brother Maqsood Ahmed to the Hospital, whereas he himself went to his house and informed his father about the occurrence. 3. The story of the prosecution then is that the deceased was taken to the Jinnah Hospital for treatment and later on his brother Syed Mahmood Ahmed and his father, who has not been examined In this case, also reached the Hospital. In the meantime a Casualty Medical Officer of the Jinnah Hospital had sent a telephonic message to the Ferozabad Police Station informing them about the commission of this crime. Such information was recorded m the station diary (a copy of which has been produced as Exh. 87) and S. I. P. Ahmed Hussain reached Jinnah Hospital in pursuance of such information. It is then stated in the case that S. I. P. Ahmed Hussain made enquiries from the persons in the hospital and which persons accord--ing to the pattern of the case, would be the complainant and Hamid A.I and the Jordanian student; but no statement was recorded by the Sub Inspector. It seems that the police officer returned to the Ferozabad Police Station and at about 1-55 a.m. Which would be about 3-- hours after the incident, a statement of Mahmood Ahmed was recorded on a plain sheet of paper which has been produced on the record as Exh. 36. This state--ment was not directly taken down in the regular book maintained for registering the First Information Reports, and the only explanation that is available on the record has been provided by Sub-Inspector Ahmed Hussain, who has stated in his evidence that before registering the case he wanted to make a preliminary enquiry into this case from the witnesses. He has further stated that he did not directly incorporate the statement of the com--plainant in the 154, Cr. P. C. Register because the "complainant was confused'' and for such reason the police officer thought that if he recorded the statement in the first information report book the complainant might make a different statement. I will, however, advert to this aspect of the case later on, but presently suffice to say, that the same statement was reproduced in the first information report book and the time for registration in the first information report book is shown to be 1-55 a.m. In this first in--formation report the only persons who were named as witnesses are the complainant himself, Hamid A.I, and the Jordanian student, whose name as disclosed in the evidence appears to be Mustafa. It is however, stated in the first information report that Races and Pervez appellants were holding knives in their hands whereas Anwar, the appellant Zahid (not tried) and six/seven boys whom the complainant could identify by face but could not name, were holding hockeys and dandas in their hands and were running away while deceased Maqsood was lying in an injured condition. The names of any other persons stated to be present at the time of the incident have not been disclosed. 4. The deceased who was admitted in the Hospital on the 23rd of June 1968, viz. The day of incident, had three injuries on his person. Dr. Izharul Hag, whose evidence has been brought on the record of the Sessions Court under section 509, Cr. P. C. Has stated that the deceased had three injuries on
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his person when he was examined at 11-15 p.m. On the night of the incident. Of the three injuries two are on the left thigh and the third on the back of the chest in mid-line. With regard to the prognosis of the deceased he stated that the deceased had developed Sciatica in the left foot on account of the injury, perhaps on the thigh. However, it is stated in the evidence of the Medical Officer that the deceased was admitted in the Surgical Ward and left against medical advice on the 13th of July 1968, vie after 20 days. The Medical Officer has further stated that at that time one of the injuries had become septic and was bleeding from time to time. The evidence discloses that the deceased was conscious after one or two days of the incident and that the police used to come to the Hospital in con--nection with investigation. However, no statement of the deceased was recorded during all those 20 days that the deceased was in the hospital. When the deceased came back to his house on the 13th of July 1968, Sub---Inspector Ahmed Hussain recorded a statement of the deceased at his house. In this statement, which is a fairly detailed document, the deceased has named the three appellants along with Saim A.I, the acquitted accused and Zahid A.I and Moozam A.I, who were not put on trial. In this statement which was made by the deceased he has narrated the events in regard to the assault as follows: "I also got up and was running while Rates reached and attacked on me with the knife which struck on the left side of my back correspond--ing to the heart. I fell down. Manzoor Saleem made a second attack on me with the knife which struck on the left thigh. I got up and started running towards the lane but Races struck me the knife for the second time near the pole which struck on right thigh. Meanwhile his other companion, reached there and beated me with legs etc. On raising cries by me and the other people, Races Ahmad and others ran away towards the lane side. When Races had stabbed the knife (the) Zahid had also hit me with the hockey." 5. In the meantime the Investigating Officer had recorded the state--ments of Moeedul Hasan (P. W. 2); Mumtaz (P. W. 6); Moeen Zafar (P. W. 7); and Alimad Azhar Mukhtar (P. W. 8) as eye-witnesses of the incident. Appellants Races Ahmed and Anwar Ahmed were arrested on the very night. The Police Officer also went to the house of the acquitted Saim A.I but the latter was not present. In the meantime the complainant Mahmood Ahmed had taken S. I. P. Ahmed Hussain to the house of one "Pervez" and such Pervez was found to be Syed Hussain Pervez son of Syed Riaz Hussain Zaidi. The said Pervez was interrogated by the Sub-- Inspector and it was found that he was the nephew of Mr. Jaffar Raza, a Deputy Superintendent of Police. Suffice to say that the said Pervez to whose house the complainant had led the police officer was not arrested and it was ultimately after a few days that the appellant Pervez surrendered in the Court to seek bail before arrest. The remaining accused person Sairn A.I, was arrested but in regard to such other persons who according to the evidence were concerned in the commission of this offence, suffice to say at this stage that they were not arrested or put on trial. 6. The deceased Maqsood Ahmed died on the 17th of July 1968, viz. Four days after his leaving the Jinnah Hospital against medical advice. The dead body was sent to the Police Surgeon Dr. Muhammad Umar Khan who found the following five injuries on his person: "(1) Old septic incised wound at the middle of right buttock on back 2--' x 1' x 2--' deep with six stitch marks, packing gauze removed from inside oozing of blood present. (2) Healed scar back of chest at mid line 6--' below the seventh servical spine with clean cut margins scar, and 3 stitch marks present. (3) Scar in the left thigh front-lateral side 7' below the iliac crack 2' long with 3 stitch marks. (4) Tranverse scar just about left aliac chest 2--' x 1/8' no stitch mark. (5) Partly healed scar on saecral region 2' x --' probably of bedsore (no cut margin no stitch mark)." The Police Surgeon had given an opinion that the deceased died of hypostatic pneumonia and severe Anaemia. The Medical Officer explained that hypostatic pneumonia was the result of
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infection of the lower lobes of the lungs. It is also stated by the Medical Officer that at least three out of the five injuries that were found by him and have been reproduced above were surgical wounds. The Medical Officer has also stated that pneumonia may have been caused by the "oozing" of blood due to neglect of the patient or improper treatment. 7. There is no other incriminating circumstance against the appellants besides the evidence of the eye-witnesses and the dying declaration of the deceased. The eye-witnesses in the case are complainant Mahmood Ahmed, Moeedul Hasan. Mumtaz, Moeen Zafar, and Ahmed Azhar Mukhtar. 8. At the trial the prosecution mainly relied on the evidence of these five eye-witnesses corroborated by the dying declaration that had been made by the deceased on the 14th of July 1968, when he had left the Hospital against medical advice. There was no other incriminating circumstance in the nature of recovery, confession or of any other kind against the appel--lants. The prosecution at the trial examined five witnesses as eye-witnesses. They are Mahmood Ahmed, the brother of the deceased and the first informant (P. W. 1); Moeedul Hasan (P. W. 2); Mumtaz (P. W. 6); Moeen War (P. W. 7) and Ahmed Azhar (P. W. 8). The last four among five witnesses claimed to be sitting near the deceased in the garden where he was attacked. In addition to these witnesses the prosecution examined two Police Officers namely, Sub-Inspector Ahmed Hussain (P. W. 10) and S. H. O. Altaf Hussain (P. W. 9). The investigation has been mainly done by Sub-Inspector Ahmed Hussain and after the death of the deceased the investigation was made over to S. H. O. Altaf Hussain who has only taken some formal stops for the purposes of sending of the case before the Court. The evidence of Dr. Izharul Haq, the Casualty Medical Officer who had initially examined deceased Maqsood on the 23rd of June 1968, was brought on the record of the Sessions Court as Exh. 46; similarly the evidence of Dr. Muhammad Umar, the Police Surgeon who performed the post- mortem was also brought on the record of the Sessions Court as Exh. 49. The prosecution also examined Muhammad Hafeezullah, a Tapedar who had inspected the scene of occurrence and prepared a sketch. Besides these witnesses the remaining witnesses have given formal evidence. 9. Appellants have denied the entire prosecution case. Even one of them has stated that be was not present at the time of occurrence. They further alleged that the case has been engineered against them by the police. The appellant Anwar Ahmed Khan has however, stated that he had gone out of Karachi on the night on which the alleged incident is said to have occurred and in support he has examined two defence witnesses namely, Abdul Samad and Allah Bux. With regard to the eye-witnesses he stated that they were the friends of the complainant and had given evidence for that reason. Appellant Manzoor Salim Parvez has also denied the entire pro--secution case and has stated that he had been implicated on account of the influence of complainant Mahmood Ahmed with the police. He has however, stated that he has been implicated on account of mistaken identity. The appellant Raees Ahmad also denied the entire prosecution case and stated that he had been arrested from his house on the night following in incident. He produced an application which was made on his behalf for bail, which application had been sent to the Medical Superintendent of Jinnah Hospital, Karachi, on the 26th of June 1968, enquiring about the state of deceased Maqsood Ahmed and on the 29th of June 1968, an Assistant Professor of Surgery in the Jinnah Hospital certified that Maqsood Ahmed was very well and was completely out of danger to life or limb. 10. As stated above the main evidence in the prosecution case consists of the ocular evidence furnished by the five eye-witnesses. Before I proceed to consider the evidence each one of these witnesses independently I must state that in the first information report lodged by Mahmood Ahmed after 3J hours of the incident the names of Hamid A.I and a Jordanian student whose name has transpired in the evidence as Mustafa were men--tioned as the witnesses who had seen this occurrence. I may state that the names of Moeedul Hasan, Mumtaz. Moin Zafar and Ahmed Zafar
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had not been mentioned in the first information report. I may also state that Hamid A.I and the Jordanian student Hasan Mustafa have not been examined by the prosecution. Further to this it is the prosecution case that the complainant went to his house to inform his father Ansar Hussain in regard to the deceased having received injuries while Hamid A.I and Hasan Mustafa had carried deceased Maqsood Ahmed to the hospital but Ansar Hussain has also not been examined. At this stage I may also refer briefly to the evidence of Hafeezullah the Tapedar who has given evidence in regard to the scene of occurrence. This prosecution witness has stated that the nearest road light from the place of incident was installed at a distance of 65 paces which would roughly be about 50 yards. It is also stated in the evidence that within the part itself there is no light but some lights are installed at the outer hedge of the park. I may also state that in the evidence it has transpired that besides the three appellants there were other persons namely, Zahid, Moozam and Manzoor who had taken part in the transaction and given either knife injuries or lathi blows to the deceased. These three persons namely, Zahid, Manzour and Moozam have not been arrested and tried. No reason indeed has been assigned by the prosecution for not proceeding against them. 11. In the pattern of the prosecution evidence it clearly appears and is indeed stated by each one of these five witnesses that deceased Maqsood was given knife injuries and also injuries with hockeys and dandas. The medical evidence that has been brought on the record shows no other injury on the person of the deceased except three stab wounds; two on the thigh and one on tie back of chest. Suffice it to say that the medical evidence does not at all support the prosecution case that any injuries with lathis, dandas or hockey sticks were given to the deceased. The post---mortem report however, shows five injuries on the person of the deceased but two out of these five injuries are clearly relatable to surgical wounds that the deceased received on account of the surgical treatment that was administered to him in the hospital. Suffice to say that even Dr. Muhammad Umar Khan who carried out the post-mortem examination did not find any injuries on the person of the deceased which may have been caused by any blunt weapons. 12. With this background in relation to ocular evidence I now proceed to consider the evidence of the complainant Mahmood Ahmed. This witness is a brother of the deceased and on his own showing he was standing at a distance of about 100 paces from the place where his brother, the deceased, was lying injured. He states that at that time he was stand--ing with Hamid A.I who as stated above has not been examined by the prosecution. This witness has further gone on to say that he saw six persons running with their backs towards him and they were running with a speed. He further stated that he did not follow those persons. What is more that even in his examination- in-chief he has stated that he made enquiries from those who were present, without naming those persons; as to who had injured his brother and one out of those persons, who also has not been named in his evidence, stated that the five/six persons who were running away had beaten the deceased. This person was named by the complainant as Moinuddin and although no Moinuddin has been examined in this case one Moeedul Hasan has been examined and for that reason there is possibility that it was prosecution witness Moeedul Hasan who informed the complainant with regard to assailants. But according to the com--plainant, Mocedul Hasan gave him the names of Saim and Zahid as the assailants of his deceased brother. Saim has been acquitted by the trial Court and Zahid was not put on trial. The complainant claims to have identified Raees Ahmed and Parvez Saleem when they were running away with their backs towards him. I have no hesitation in rejecting such identification. But there are certain other features in the evidence of the complainant that render his evidence incredible. First of all if he had been present at the scene of occurrence I would have normally expected him to carry his deceased brother to the Hospital instead of asking Hasan Mustafa and Hamid A.I to carry his brother to the hospital. He could have found it very convenient to have sent out of these two boys to inform his father Ansar Hussain, and
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he may have carried his deceased brother to the Hospital; instead what had happened was quite converse. In any case on such particulars he Is not at all supported because neither Hamid A.I nor Hasan Mustafa nor his father Ansar Hussain have been examined. It leaves me with a feeling that the complainant Mahmood had come later on and had not seen either the incident or his brother lying injured on the road as is being stated by him. What is more that in the committal Court he had stated that Hamid A.I had given him the names of the accused persons on the next morning. If Hamid A.I had been present with him and had indeed come to the place where the deceased was lying injured, then there appears to be no reason why Hamid A.I should have disclosed the names of the assailants to the complainant on the next day. However, on any vision of this matter it is very clear that complainant Mahmood Ahmed did not see the incident at all. The most interesting feature about the evidence of the complainant is that although Sub-Inspector of Police Ahmed Hussain went to the Jinnah Hospital on receiving a phone massage, the complainant who was present in the Jinnah Hospital did not make any statement or in any case no statement was recorded in the hospital. It is then stated by Ahmed Hussain that he brought complainant Mahmood Ahmed to the police station and first recorded his statement on a plain sheet of paper for the reason that the complainant was confused and the Sub-Inspector thought that if he recorded his statement straightaway in the 154, Cr. P. C. Book, the complainant might make a different statement. This would clearly show that the report lodged by Mahmood Ahmed besides being suspicious is definitely belated. If Mahmood Ahmed had seen the incident or had known about the circumstances of the transaction there appears to be no reason why he should not have made a statement to Sub-Inspector Ahmed Hussain in the hospital and why Sub- Inspector Ahmed Hussain realising the con--fusion of the complainant should have found it necessary to record a sort of rough statement of the witness before incorporating the same in the First Information Report Book. The prosecution witnesses Mumtaz and Moeen Zafar have, however, clearly stated that Mahmood was not present at the scene. I do not wish to mean that I am relying on the evidence of Mumtaz and Moeen Zafar but suffice to say that even the prosecution witnesses have clearly stated that the complainant was not available on the spot. However, Mahmood Ahmed, the complainant in the committal Court had made a statement to the following effect:--- "Hamid told me those names in the morning after recording my F.I.R. I had enquired from Hamid at the incident about the names of those persons and he told me that he will tell me after enquiries. In the morning, he only mentioned two names to me. I did not mention before the police about enquiries of names through Hamid at the time of recording the F.I.R. I had told police those two names in the morning when I came to know from Hamid in the morning." The above passage which I have reproduced would clearly show that until the next morning the complainant did not know the names of the accused persons or the witnesses. It is further admitted by the complainant in his evidence that appellant Anwar was not known to him and in spite of that no identification parade has been held. For all these reasons I am of the view that complainant Mahmood Ahmed was not present on the scene and have not given true evidence in this case. 13. The next witness of the prosecution is Moeedul Hasan. His evidence is that he was sitting in the park when he heard some noise and found some boys running towards the park. He claims to have identified appellants and Saim A.I. He has stated that Zahid and Moozam were also with them. According to him the two persons Zahid and Moozam were armed with knives. With regard to Anwar Ahmed and Pervez he has stated that they were armed with dandas. The name of this witness has not been mentioned in the first informa--petition report. However, the complainant Mahmood Ahmed states that it was this witness who gave him information with regard to the identity of the accused persons. Witness Moeedul Hasan has on the other hand not
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supported the complainant on that aspect of the case. What is more that his evidence in the Sessions Court is contradicted by his evidence in the committal Court on several material particulars. In the Sessions Court he stated that appellant Races Ahmed was armed with a knife but in the committal Court he had not stated so. This witness also stated that the deceased was carried by Hamid A.I and a Jordanian boy to the hospital but as stated above these two witnesses have not been examined. In the committal Court he had not stated that appellant Races Ahmed had instigated the others to attack deceased Maqsood but in the Sessions Court he had stated so. This witness has also stated that no person chased the assailants after the incident. This statement again appears to be at variance with the case that has been set up by the prosecution. What is more that his police statement was…
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