1. ABDUL KADIR SHAIKH, J.---This appeal is directed against the judgment of Peshawar High Court dated 30-5-1978 reversing the acquittal of the appellant on the charge of murder of Khana Mir and sentencing him under section 302, P. P. C. To life imprisonment and fine of Rs. 6,000 or in default to undergo further R. I. For 6 months. The fine, if realised was directed to be paid to the widow of the deceased as compensation.
2. The incident occurred in Village Karbogha on 5-3-1972 at Pesheen --Qaza time, and the report was recorded in the Village itself at 445 p.m. By Fa.Al Hussain S. I. Who was said to be on patrol duty there. According to the version of the incident given by Zarnama widow of the deceased, she and her husband were going to enquire about the health of her husband's aunt, Mst. Bibiji, and when they reached the field of Khawaja din, she saw the appellant and his companion Zar Khanan following them with daggers, and they then chased her husband; Zar Khanan caught hold of her husband and the appellant struck dagger blows to him with the result that the victim fell on the ground. Both Zar Khanan and the appellant then gave several hatchet blows to the victim and ran away. Aribstan, of the deceased who was coming from the opposite direction at the relevant time also witnessed the incident.
3. The parties are related to each other but they had deep-rooted enmity. Mst. Marghalara sister of Khanan Mir (deceased) was married to the appellant, while Mst. Tamaki sister of appellant was married to Mir, uncle of deceased. About 12-13 years ago, Marghalara was charged for the murder of Mst. Markhar, daughter-in-law of accused Zar Khanan, and she was convicted and sentenced to seven years' R. I. After the release from jail, Mst. Marghalara refused to live either with her husband or with her parents, and she instead went to Kohat and worked as a domestic servant. The relations between the parties became strained and security proceedings were initiated against both the parties. It is said that the accused panty forcibly took away Mst. Tamaba wife of Mir, uncle of the deceased, and for this reason the relationship between them got further strained.
4. The appellant is said to have absconded, and he was arrested after about 2 -- years on 16-7-1974.
5. In the meantime, the co-accused Zar Khanan was tried and acquitted by the Sessions Judge, Kohat.
6. At the trial, the prosecution case against the appellant rested on the ocular testimony of Mst.
7. Zarnama and Arbistan and the circumstantial evidence of abscondence of the appellant.
8. The Sessions Judge, who tried the case, did not give credence to the eye-witnesses, Mst. Zarnama, widow of the deceased and Arbistan, paternal uncle of the deceased for several reasons. On this view of the ocular testimony, the circumstantial evidence of abscondence of the appellant was rendered worthless, and the appellant was accordingly acquitted.
9. On acquittal appeal by the State, the High Court while concurring with the finding of the Sessions Judge that P. W. Arbistan was not a trustworthy witness, held that there was no reason to discard the evidence of Just, Zarnamu, and this coupled with the absconderice of the appellant, in the opinion of the High Court, warranted "beliefe in the complicity of the respondent (appellant herein) in the crime".
10. In support of the appeal, Mr. Mian Mahmood Ali Qasuri submits that the evidence of fist. Zarnama is fall of inherent contradiction and since she had been disbelieved as a totally unworthy witness in so far as the co-accused Zar Khanan is concerned, her evidence cannot force a safe basis for founding guilt of the appellant beyond reasonable doubts.
11. According to Mian Mahmood Ali Qasuri, the murder of Khan Mir was an un-witnessed crime, for, according to the medical evidence the deceased died at a time not earlier than 7-45 p.m. And not at Pesheen Wella as alleged by the prosecution, and the eye-witnesses who later became aware of the murder of the deceased, falsely involved the accused due to previous enmity. In this behalf, learned counsel pointed out the discrepancies in the prosecution evidence as to the manner in which F. I. R. Came to be recorded. According to Mst. Zarnama, after the dead body of her husband was brought to the house, Arbistan P. W. Went to the Police Station to lodge the report, but in the meantime he came to know that the Police- Officer was available in the village, and he therefore returned to the house and asked her to go to the Police Officer who was available in the village- shop and lodge the report. According to Mst. Zarmania, it was in these circumstances that she went and lodged the report of the crime with the Police Officer at the village-shop. P. W. Arbistan, on the other hand, stated that when he went out from the house of the deceased for the purpose of lodging the report, he saw the Police Officer coming to the house, and he then informed him of the incident. The Police Officer inquired from him whether he was willing to make a report upon which he replied in the affirmative, but he later on requested the Police Officer that since Mst. Zarnama, widow of the deceased, was accompanying the deceased at the time of the crime, the report may be lodged at her instance. He then went to the house of the deceased and brought Mst. Zarnama at the village shop where she lodged the report.
12. As against these two conflicting versions, the Police Officer stated that he was on patrol duty in the village when he learnt about the incident and he, therefore, proceeded towards the house of the deceased. He came across the dead body of Khana Mir near his house and Mst. Zarnama who was present there, lodged the report of the crime.
13. In view of this conflicting version in the prosecution case, Mr. Mahmood Ali Qasuri submitted that since from the very beginning the prosecution case is patently unreliable, including the manner in which the deceased received the injuries the reversal of acquittal of the appellant into conviction made by the High Court is contrary to the well-establishedprinciples of law in this regard.
14. After hearing the learned counsel and having gone through the record of the case, we wholeheartedly agree with the views of the learned Sessions Judge that the statements of the eye- witnesses produced by the prosecution are discrepant with each other to the extent that makes the totally unworthy of credence. P. W. Arbistan was not believed even by the High Court, and so far as the only other alleged eye-witness, Mst. Zarnarna, her claim that she was accompanying her deceased husband was not believed by the learned Sessions Judge for several reasons. For example according to her statement before the committal Court, she had gone to enquire about the health of Mst. Bibiji for the first time, but at the trial in the Sessions Court she denied having made this statement. The reason was obvious, for Mst. Bibiji had been ill for 3 to 4 months before the incident.
15. Since the reasons' that prevailed with the learned Sessions Judge in disbelieving the prosecution evidence were quite cogent, and his views that the "prosecution has miserably failed to bring home the charge to the accused and the prosecution evidence is full of doubts and suspicions" do have basis in prosecution evidence, the benefit of doubt granted to the appellant stood fortified by his acquittal, and its reversal into conviction just because another view of the prosecution case prevailed with the learned Judges in the High Court is not justified.
16. This appeal, therefore, succeeds and is allowed with the result that the impugned judgment of the High Court is set aside. The appellant shall be released forthwith, unless he is required in some other connection.