The appellants Muhammad Afsar (20) and Jehangir (22) were convicted and sentenced to imprisonment for life plus a fine of Rs. 5,000, each under section 302 read with section 34 of the Pakistan Penal Code for causing the death of Shafqat Ali deceased, vide judgment dated the 31st January, 1976 of the learned Sessions Judge, Sargodha. They have pre--ferred a joint appeal against their conviction and sentence.
2. The appellants were residents of Jauharabad while the complainant party lived at Khushab, 4 miles away. Shafqat Ali deceased was a student of Government College Jauharabad and so were Muhammad Shabir (P. W. 4) and Khan Muhammad (P. W. 5). Zamanullah (P. W. 6) as also Muhammad Sarwar a brother of Muhammad Afsar appellant were students of eighth class in Government Technical School Jauharabad. They used to go back to Khushab after school/college hours. Muhammad Tufail (P. W. 1) elder brother of the deceased worked in the United Sugar Mills at Khushab. It is the case of the prosecution that on the day of occurrence, that is, the 7February, 1974, Muhammad Tufail (P. W. 1) had gone to Jauharabad to meet a friend. There, at about 12.30 p.m., he met the deceased and Shabir (P. W. 4) who joined him. While proceed--ing towards the bus stand Jauharabad, Zamanullah (P. W. 6) also joined them. He told them that he had a quarrel with Muhammad Sarwar who told his brother Muhammad Afsar appellant that he (Zamanullah P.
W.) had cut indecent joke with him and thereupon Muhammad Afsar slapped him. When they reached the bus stand, they found the appellants already present there. The deceased asked Muhammad Afsar appellant as to why he beat up Zamanuliah. This led to an altercation between the two when the deceased picked up a chair and struck it on the head of Muhammad Afsar appellant. They were separated. The complainant party stayed back at the bus stand waiting for ath bus for Khushab In the meantime, Khan Muhammad (P. W. 5) also joined them. At about 1.30 p m.
The appellants, of whom Muhammad Afsar was armed with a knife, re-appeared proclaiming that they had come to avenge the insult Jehangir appellant felled the deceased and held him to the ground while Muhammad Afsar appellant gave him two knife blows on the knee and the thigh.
Thereafter, they made good their escape. The deceased became unconscious. He was first taken to Civil Hospital Jaubarabad and then removed to Civil Hospital Khushab where he died the same evening at 8.10 p m Muhammad Tufail (P. W. 1) on his way to Police Post Jauhar--abad met A. S. I.
Sardar Ali (P. W. 12) and made statement Exh. P. C. At 3.30 p.m. On the basis of which formal F. I. R.
Exh. P. C./1 was registered with Police Station Khushab at 4 p.m.
3. The ante-mortem as well as the post-mortem examination of the deceased conducted by Dr. Abdul Qayyurn Khan (P. W. 3) and Dr. Muhammad Raees (P. W. 2) revealed two incised wounds, both on the thighs, one of them being sufficient in the ordinary course of nature to cause death. Dr. Muhammad Raees also examined the appellants. Muhammad Afsar was found to have a contused wound --" x 1/8" x scalp deep on the right side of the head 3--" above the right eye brow.
Jehangir had two abrasions, 1" x --" on the neck and --" x --" on the right thumb.
4. The appellants pleaded not guilty to the charge and denied the allegations against them.
Muhammad Afsar stated that after the receipt of head injury he became unconscious. Jehangir attributed his false implication due to enmity with Khan Muhammad (P. W. 5). They led no evidence in defence.
5, The case of the prosecution rests entirely upon the ocular account provided by Muhammad Tufail (P. W. 1), Muhammad Shabir (P. W. 4), Khan Muhammad (P. W. 5) and Zamanullah (P. VN. 6).
Muhammad Tufail (P. W. 1) was a resident of Khushab where he wails employed in a sugar mill. He was thus a chance witness. The explanation given by him for his presence in Jauharabad is that he had gone there with a view to meet a friend. But he admitted that he had no specific business with him nor did he know about his residence. His conduct too, equally with that of the others, is quite unnatural. He remained content with being just a mere spectator rather than to come forward to rescue his younger brother After all, they were five against two, of whom case was empty handed and the other had only a knife. Then, had he been present at the time of occurrence, he would have taken the deceased to the hospital promptly. The deceased, however, arrived in the hospital, half mile away, about two hours later. The view finds further support froth the fact that his name, or for that matter, the name of any other eye-witness does not find mention in the medico-legal report which shows that the deceased was brought by the police. Thus, the presence of the witness at the tithe of occurrence is quite doubtful.
Likewise, the position of the other eye-witnesses is no better. Admittedly there was a bus stop near the College gate catering for the students going to Khushab. It was, therefore, unnecessary for them to go to the bus stand in the opposite direction. 'In any event, they have ailed to explain their over-stay at the bus stand for an hour when admittedly buses for Khushab were available every five minutes. Their presence too at the time of occurrence is doubtful.
6. The investigation of the case too does not appear to be above board. A. S. I. Sardar Ali (P. W. 12), equally with the complainant, stated that the F. I. R. Was recorded in the town but F. C. Hakim Ali (P.
W. 7) who was admittedly with him contradicted him by stating that the complaint (Exh. P. C.) was recorded in the civil hospital which finds support from the fact that the deceased was brought to the hospital by the police It is quite likely that Muhammad Tufail (P. W. 1) was summoned from Khushab and made the first informant. , There is yet another circumstance that casts further doubt on the prosecution case. The place of occurrence is thickly populated area. It is a bus stand with 150/300 shops around which were also open at the time of occurrence. It is an admitted position that the Investigating Officer (P. W. 12) examined the shopkeepers but did not cite any one of them as an eye-witness. The inference is therefore irresistible that if produced they would not have supported the prosecution case. This makes the case of the prosecution highly doubtful.
7. The defence version as suggested through the cross-examination, is that the deceased had fallen Muhammad Afsar appellant on the ground and was causing him injuries when he (appellant) in order to extricate himself, caused him (deceased) injuries. This aspect of the case need no further comment as I have come to the view that the case of the prosecution is highly doubtful and the appellants are entitled to its, benefit. Accordingly, giving them the benefit of doubt, I accept the appeal, set aside their' conviction and sentence and acquit them.