JUDGMENT DOST MUHAMMAD KHAN, J.---Appellant, Muhammad Riaz alias Gul, was booked for the murder of his real brother namely, Said Karim Shah, vide Crime No.129 dated 13-12-2004 by Police Station Bisham under section 302, P.P.C. After his arrest, charge-sheet was filed against him, trial was held by the learned Sessions Judge/Zilla Qazi Shangla Camp Court Swat and vide judgment dated 11-6-2007 he has been convicted under section 302(b), P.P.C. And sentenced to life imprisonment. He was further directed to. Pay Rs.1,00,000 to the legal heirs of the deceased or in default thereof to suffer two (2) years' S.I. Benefit of section 382-B, Cr.P.C. Was given.
2. Arguments heard and record perused.
3. The crime was 'committed inside the joint residential house of the parties. None amongst the inmates of the house or close blood relatives were ready to lodge F.I.R., despite of persuasion by the S.H.O. Of the Police Station, who, at his on, had gone to the crime spot. Confronted with the above situation, he, on his secret information, booked the appellant for the crime vide murasila Exh. PA/1.
4. Right from the date of crime i.e. 13-12-2004 till the arrest of the appellant i.e. 20-4-2005, no one came forward to charge the appellant, however, it was after about more than four (4) months time that Mst. Noor Bibi (P.W.4), the widow of the deceased, and Mst. Safia (P.W.5), the young daughter of the deceased, were examined under section 161 and then under section 164, Cr.P.C, who both charged the appellant and gave the following statements:-- "On the fateful day, the deceased and the appellant were busy in rendition of account/settlement , when they quarreled with each other and in that course the appellant fired at the deceased, who was hit and died."
5. Both these ladies, to explain the delay in charging the appellant, stated that while leaving the crime spot, the appellant threatened them not to depose against him. This explanation was readily accepted as plausible by the learned trial Judge.
6. The prosecution, to prove its case, produced nine (09) witnesses at the trial, however, the father of the deceased and that of the appellant, who has been shown as eyewitness in the site plan, was dropped at the trial for no cogent reason.
7. During the custody of the appellant, his mother produced a repeater shotgun, telling the police that it was the crime weapon which was taken into possession vide memo Exh. P.W.7/4. That was not sent to the arms expert to ascertain as to whether the barrel was having gun powder and was recently fired or not.
8. No autopsy on the deadbody was conducted, as is a common practice in the area, however, his medico-legal report was prepared which is Exh.P.W.3/2. The Medical Officer has shown one entry wound of 1-cm, circular in shape, with profuse bleedings and charring marks, however, there was no exit-wound. As autopsy was not conducted on the deadbody, thus, it could not be ascertained as to whether the injury was caused by a bullet or by pallets. No X-Ray was drawn / conducted to ascertain the shadow/opaque inside the deadbody.
9. The widow of the deceased and his daughter both have deposed against the appellant. The cause of the tragedy has been shown a sudden flare-up between the two on the settlement/rendition of account with no further explanation. The Investigating Officer also could not collect any notebook or "Khata" or anything, relating to settlement/rendition of account, from the crime spot.
10. Mst. Safia (P.W.5) stated in her statement, recorded under section 164, Cr.P.C, that she was present inside a room when heard report of fire shot and when came out, she saw the appellant, holding a shotgun while her father was lying in a pool of blood. She and her mother, both stated that on their hue and cries the neighbours attracted to the spot, to whom the story was narrated, but none has appeared either before the police or at the trial to depose against the culprit/appellant.
11. Mst. Safia and her mother namely, Mst. Noor Bibi, both have stated that on the fateful day, after the crime, police entered their house, to whom they both narrated the occurrence, however, the Investigating Officer is clearly giving false statement by stating that despite of his demand, none of the blood relatives allowed him to meet the widow and daughter of the deceased, so that, to ascertain their point of views.
12. The presence of Mst. Safia has been shown at Point No.4 in the site plan which is inside the crime room; this fact runs counter to her statement, given at the trial and the one under section 164, Cr.
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13. The repeater shotgun was produced by the mother, which does not amount to recovery and discovery at the instance of the appellant. Moreover, no crime empty was recovered from the spot, therefore, it was not sent to the expert for comparison, thus, the recovery of this gun is not even of a little help to the prosecution.
14. Undoubtedly, the statements of the two ladies, recorded after more than four (4) months and that too when the explanation given are half way plausible, create reasonable doubts in reasonable minds that they have not told the whole truth rather they have deliberately suppressed material facts including, the immediate grave cause for this unfortunate tragedy, where, real brother has shot dead his brother. This mysterious circumstance is highly disturbing for the Court, thwarting it to assess and estimate or discover the real cause behind the tragedy. The defence has also not come forward with a pinch of truth to assist the Court, so that, to reach at a just conclusion, thus, when both the parties are bent upon, suppressing the truth from the Court of law and creating impediments in the way of doing justice then, it is open for the Court to act upon the third probable theory, in view of the principle of law laid down by the Hon'ble Apex Court in the case of "Syed Ali Bepari v. Nibaran Mollah and others" (PLD 1962 SC 502).
15. It is an admitted fact that the entire family including, the deceased and the appellant, were living a cordial and peaceful family life. Not a single unpleasant incident has been cited during the long period of association, bringing any division amongst the family, much less any bitterness nor their cordial relationship, at any point of time, turned disdainful much less inimical.
Keeping in view this ironclad fact, it is more than probable and the tragedy is suggestive of the fact that indeed the deceased committed something niggardly, causing the appellant a sudden impulse of irreversible nature. The appellant perhaps lost all his faculties of control and restraint and his passions went boiling, which could not subside nor could retake its seat, thus, in state of grave provocation, he enacted the tragedy, thus, even if the cryptic evidence of the two ladies is accepted because of the fact that no outsider could commit the murder and because the appellant was the inmate of the same house and because he fled away when he was charged by the S.H.O. In the F.I.R., the story put forth by the two ladies with regard to the dispute -of settlement/rendition of account, in no manner, rings sound and acceptable and on this very crucial point they have suppressed much from the Court of law for obvious reasons.
5. In the case of "Zahid Parvez and another v. The State" (PLD 1991 SC 558), the scope of the principle laid down in Syed Ali Bepari's case, mentioned above, was much widened by the Hon'ble Apex Court to act upon the third probable theory, hence, this principle is squarely attracted to the facts and circumstances of the present case. Moreover, if the delay of four (4) months in charging the accused-appellant is considered for which no convincing explanation have been offered, much have been left behind, which could be debated upon. In a situation like this, another principle laid down, by the Hon'ble Apex Court in the case of "Nawaz Khan v. Ghulam Shabbir and another" (1995 SCM R 1007) is also attracted because judicial mind remain disturbed while judging the story of the prosecution from different angles, therefore, in the given circumstances, to secure the ends of justice, the Court has no alternative but to adopt the third theory, discussed above.
Accordingly, this appeal is partially allowed. Conviction of the appellant is maintained but it is converted to one under section 302(c), P.P.C. And his sentence of life imprisonment is reduced to fifteen (15) years' R.I with benefit of section 382-13, Cr.P.C, however, the compensation amount of Rs.1,00,000, awarded by The trial Court, is maintained but in case of default to pay the same, the appellant shall suffer six (6) months', S.I instead of two (2) years' S.I because the trial Court has committed a legal error in that regard.
These are the detailed reasons for our short order of the even date.