KARAM ELAHEE CHAUHAN, J.-Musa Khan appellant alongwith two others, namely Aba Khan and Aqal Khan were tried by the learned Sessions Judge, Kohat, under section 302/34, P. P. C. For the murder of Nadir Khan. The learned Sessions Judge by his judgment and order dated 13-7-1974 acquitted all the accused holding that the prosecution has not been able to prove any case against them beyond a reasonable doubt.
2. The State filed an appeal being Criminal Appeal No. 4 of 1975 which was dismissed by a learned Division Bench of the Peshawar High Court by their judgment and order dated 16-10-1978 qua Aba Khan and Aqal Khan but was accepted qua Musa Khan appellant who was held guilty under section 302, P. P. C. And was sentenced to rigorous imprisonment for life and a fine of Rs. 5,000 or in default to undergo further R. I. For two years. He was also directed to pay a fine of Rs. 5,000 under section 544-A, Cr. P. C. To the heirs of deceased or in default to suffer further R. I. For six months.
3. Musa Khan appellant has come up in appeal to this Court under Article 185 (2) (a) of the Constitution.
4. The facts of prosecution case are that on 9-1-1974 at digarwela in village Nazrin Dalian, District Kohat, Aba Khan and Aqal Khan (acquitted accused) brought a load of firewood from the hills on their camels. Naza Mir (P. W. 8) greeted them and told them that bringing of firewood was banned by the village community and that if they had brought the fire wood Naza Mir would also do the same thing and would similarly bring the wood. On this the appellant got annoyed and told Naza Mir that he was a carpenter and had no right to bring the firewood. At that juncture appellant Musa Khan drew his dagger to attack Naza Mir who ran away but appellant then attacked Nadir Khan deceased with the aforesaid weapon. Aba Khan and Aqal Khan were armed with axes. They also inflicted blows on Nadir Khan with their respective weapons both from sharp and blunt sides. Nadir Khan fell down and was taken to his house where later he succumbed to his injuries and died. The F. I. R. Was lodged by Badshah Jan brother of the deceased at Police Station, Gurguri, at 9-30 p.m.
And the occurrence was alleged to have been seen by his own self Naza Mir (P. W. 8) his first cousin, and Mst. Nokari (P. W. 9) his mother-in-law. The prosecution case consists of :---
(a) the evidence of motive ;
(b) the medical evidence; and
(c) the ocular evidence.
5. Taking up the motive the cause of attack has been suggested by the prosecution to be an altercation which developed when Aba Khan and Aqal Khan (P. Ws.) brought some load of wood from the hills on their camels, and were asked by Naza Mir (P. W. 8) as to why had they brought that wood as the community, had banned its procurement. Naza Mir was told that he was a Karrigar (menial) and had no business to raise such an objection. Naza Mir replied that in these circumstances he also would then bring wood from the hills. At that juncture the three accused attacked Nadir Khan with their respective weapons as a result whereof he died shortly thereafter in his house. As is obvious that in this altercation Nadir Khan deceased is not alleged to have given any provocation, to the accused and from that point of view they apparently had no cause or motive to attack and kill him. In the alternative, to say the least, it means, that the real source of fight is not being disclosed by the concerned P. Ws. ' in this case. Looked at from whatever angle the not result however, remains that the motive aforesaid does not bring the offence home to the accused. In the F. I. R. It was given out that there was no previous enmity. However, the defence succeeded in getting in cross-- examination from Badshah Jan (P. W. 7) that there was a history of some blood-feud between the parties due to the murder of one Nanat Mir, who was a relation of the complainant party and in whose murder were in--volved Musa Khan present appellant and few others as detailed at pages 19-20 of his statement. These aspects of the case naturally lead to the conclusion that the prosecution has failed to place its case in a straight--forward manner and that the same should not be taken at its face value and the Court must be careful and slow in accepting their version, an should be on guard to find whether it stands corroborated in material particulars from other evidence on the record.
6. As regards the medical evidence it may be stated that instead of advancing the prosecution case it gives it a serious jolt. According to the medical evidence the deceased did not have on his person any blunt weapon injury (viz. From the blunt sides of hatchets) with which the other (acquitted) accused are alleged to have inflicted blows on him. Similarly the medical evidence shows that the appellant Musa Khan had also two injuries on his, person, viz. (i) a lacerated wound 1' 1/4' x 1/4' place horizontally below the left eye on the feet and (ii) an abrasion 2' X 2' on the left side of the left eye. Neither in the F. I. R. Nor in the whole of the prosecution, case does any witness state infliction of the above injuries on the appellant and nor is it stated as to how and wherefrom he got them. Despite this the High Court strangely enough used them as a hallmark of the presence of the accused on the spot and his participation in the occurrence. When infliction of injuries on the accused Musa Khan, was nowhere a part of the prosecution case, we do not understand as to how it could in the circumstances constitute an incriminating factor against him so as to hold him guilty. No doubt his version in his statement under section 342,1 Cr. P. C. Before the Sessions Judge was that "the injuries were caused in the case in which I am a witness and which is fixed in the Court for tomorrow", but no effort was made to place his aforesaid statement on record of this case. Even otherwise the portion quoted above was hardly a statement which could incriminate the appellant or support the prosecution case. The High Court, with due respect, committed a legal error in using this factor as proving the guilt of the appellant, when the prosecution itself nowhere owned, alleged or even remotely suggested or connected the same with their part of the case.
Conversely if now it is sought to be put forward as a part of their version that the appellant was also attacked and that he received the above injuries in that context, then the short comment is that this aspect of the case was neither stated in the F. I. R.` andis it contained in the statement of any prosecution witness. This again leads to the conclusion that the prosecution has not only withheld the real facts but also twisted them as earlier pointed out in material particulars. The more we attend to these aspects of the prosecution case the more it appears to be full of doubts, improbabilities and uncertainties.
7. Coming to the ocular evidence -the three P. Ws., viz. Badshah Jan, Naza Mir and Mst. Nokari are closely related inter se and to the deceased. Due to the above factors and with some background of a blood fued their statements cannot be relied upon unless there is strong in dependent corroboration in their support on the record which however nowhere exists. They have purged themselves in falsely implicating the acquitted accused; their statements are belied by medical evidence when they deposed that blows with blunt side of the hatchets were also inflicted on the deceased whereas he contained no such injuries on his person; and they have not disclosed as to how, when and where the appellant received the injuries on his face. An impression was sought to be given that the F. I. R. Was lodged promptly at 9-30 p.m. And that it was an undiluted version of the occurrence, but from the statement of Ghazni Khan (P. W. 3) to cousin of he deceased who identified his dead body) before the committing Court, with which he was confronted and which he tried to disown at the trial without any just cause) it appears that Zafar A.I, S. H. O., and Fazal Muhammad, Head Constable who recorded the F. I. R. Were already present at the spot in the presence of the witness at digerivela when the spot was inspected. The F. I. R. Thus it appears was recorded after spot inspection and due deliberations long thereafter at 9-30 p.m. And hence the prosecution story as given therein (which was adhered to at the trial) has not stood the test of scrutiny as above-mentioned. This (P. W. 3) was a resident of Gurguri (i.e. The same place where the police station is located). He deposed that at the time of occurrence was in village Gurguri though in his earlier statement he stated differently and deposed that at that time he was in village Gurguri where he heard of this occurrence and from where he came to the village Mazrin Dalian at digerwela, and found the police already present there. The first informant Badshah Jan (P. W. 7) admitted in cross-examination that in village Nazrin Dalian (the village in which occurrence took place) there is a Levy Police Post at a distance of 200 paces from the spot; that there is a telephone installed in that post; and that some people go to the said post for report and some people do not and that "the police party came with me in bus." Some parts of his statement lend support to the testimony of Ghazni Khan (P. W. 3) so as to discredit the recording of the F. I. R. In an undiluted form or at the police station. In the face of these details it is really strange as to why he did not lodge the report in that Levy Post and chose to walk all the distance of 10 miles on foot to the Police Station, Gurguri probably to explain the delay caused in deliberating the matter and making out a plausible story which however did not stand the test of scrutiny as above made.
8. In the face of the above highlights of the present case, in our opinion, the prosecution evidence did not establish a case beyond all reasonable doubts against the appellant and the learned Sessions Judge in the circumstances was justified in acquitting him. On the above facts ands the features of the case the interference by the High Court was totally uncalled for which instead of giving the benefit of doubt to the appellant gave it to the prosecution and also used unproved factors and evidence against the appellant as indicated above. The result is that this appeal shall have to be accepted and the order of the High Court and the conviction of the appellant shall have to be set aside. We order accordingly and acquit him. The appellant is directed to be set at liberty forthwith if not required in any other case in accordance with law. For reasons to be recorded later a short order to this effect was passed by us on 3-7-1979. The present judgment provides the reasons for the same.