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-- S. 417-Appeal against acquittal-Evidence, appreciation of-- Complainant party consisting of seven persons but eye-witness account furnishing only three persons-Injuries suffered by persons on both sides, but no independent evidence as to origin of fight forthcoming --Judgment of --- trial Court based on quite sound reasonings-- Acquittal of respondents, held, rightly recorded, in circumstances. [Appeal against acquittal-Evidence],

S. Murtaza Hussain for the State.

S. Nasiruddin for Respondents.

Date of hearing. 14^th February 1979.

-The Respondents were tried by the learned Addi tional Sessions Judge, Karachi for an offence under section 302/34, P. P. C. and were acquitted. The Government has preferred an Appeal against their acquittal.

2. The prosecution story in brief is that on the 19th of August 1971 at about 7 a. m., the respondents had inflicted knife injuries on Riaz, since deceased, P. Ws. Arif Hussain and Muhammad Irshad and another person by the name of Muhammad Iqbal near the Bus Stand, Bismillah Hotel, Asif Colony, Karachi. This was alleged to be a sequel to a fight the night before between Iqbal and Arif on one side and the respondents on the other. Arif Hussain had gone to Kalakot Police Station where he had lodged the report. The F. I. R. was recorded by Sultan Ahmed Khan who was the Duty Officer. The injured persons were referred to the Civil Hospital and inquiries were made from the witnesses of the incident. As the condition of Riaz was precarious, his dying declaration was also recorded. In this very context, it might be mentioned that Riaz met his death in the Hospital on the 24th September 1971.

3. The S. I. P. had proceeded to the vardat and prepared the Mashirnama thereof. The respondents had also gone to the Police Station where a counter report was lodged. There were injuries on their persons and they were also referred to the Civil Hospital. Later on, the same day they had produced a knife which appeared to be blood-stained. After the death of Riaz, the case was registered under section 302. The challan came to be filed in Court accordingly.

4. The Respondents in their statements admitted the earlier quarrel and asserted that it was the complainant party which had attacked them in the morning to avenge their discomfiture the night before.

9. The learned Additional Sessions Judge, on the basis of the evidence of Dr. Farooqi, was of the view that Riaz might have died as a result of ulcer and not of the injuries inflicted. It is not necessary to go into this question, on view of the case, that we are taking. Nor is it necessary to look into the evidence given by the mashir of the production of the knife rightly. The presence of the respondents at the time of the incident is not denied by them. They maintain, and this is also the case of the prosecution, that they had themselves received injuries and bled from the same. The S. I. P. has also mentioned that they had been referred to the hospital though the Doctor who had examined their injuries had not been produced in Court.

6. The F. I. R. lodged by Arif Hussain mentions the names of Sikandar, Muhammad Azam, Muhammad Anwar and Muhammad Iqbal. Actually Muhammad Iqbal is stated to have received injuries and was also examined by the Doctor. None of these persons have been examined at the trial. The eye-witness account has been put furnished by three persons, namely, Arif, Muhammad Irshed, and Saeedullah Khan. Arif Hussain and Muhammad Irshad had injuries on their persons and there can be no doubt about their presence at the relevant moment. Saeedullah Khan would be a chance witness. He had tried to show that the complainant party was not known to him prior to the incident, but the same stands belied by his earlier statement duly brought on the record. Anyway the version furnished by him is at tangent with the version as furnished by the other two witnesses as on his showing, the witnesses have maintained discreet silence as to how these injuries came to be received by the respondents. There is, therefore no independent evidence from any quarter as to the origin of the trouble and patently Arif Hussain and Irshad have not given an honest account of the happening is also to be seen that there was no body else with the respondents while the complainant party, on their own showing, consisted of seven persons. The learned Additional Sessions Judge, has considered this aspect of the case with due care and caution and in the light of the case-law on the subject. I am clearly of the opinion that the application of law and his findings based thereon, are not open to any exception. It was because of this that we had not called upon Mr. Nasiruddin appearing on behalf of the respondents to address us.

7. There is no merit in this appeal. We will therefore dismiss it. The respondents are on bail and their bail bonds stand cancelled.

Appeal dismissed.