M. S. H. QURAISHI, J.-This appeal by leave of the Court is directed against the judgment, dated 24- 5-1977 whereby the Peshawar High Court, on State Appeal, set aside the acquittal of the appellant, convicted him under section 304, Part I, P. P. C. And sentenced him to suffer R. I. For seven years and pay a fine of Rs, 3,000 or in default in payment thereof, suffer further R. I. For one year. The amount of the fine on realization was to be paid as compensation to the heirs of the deceased.
2. Appellant Muhammad Iqbal alongwith his brother Muhammad Sadiq and father Roshan Din had been tried for the murder of Muhammad Yunis and for attempt on the life of Muhammad Yaqoob in an occurrence which took place on 29-9-1.975 at 7'45 a. m. In Mohalla Loharan, Havelian, Tehsil Abbottabad. The deceased and his maternal-uncle Muhammad Yaqoob had at that time come out of their house on the way to their shops. At the instigation of Roshan Din, who was empty handed, the other two co-accused fired from their pistols. Muhammad Sadiq's shot passed through the chaddar of Muhammad Yaqoob while Muhammad Iqbal's shot hit Muhammad Yunis deceased on the chest killing him at the spot. Muhammad Yaqoob lodged report with the police.
Two motives were given for the occurrence, first, that there had been a quarrel between the children in which Haroon son of Muhammad Yaqoob while returning to his house from the mosque after `travih' prayers the preceding night had been injured by Muhammad Taj, a son of Roshan Din, with a stone ; and second that Roshan Din had asked for the hand of a niece of Muhammad Yaqoob for the appellant which being refused had resulted in strained relations between the parties. It may be noted that the parties are closely related to each other, Muhammad Iqbal appellant being also the son of another sister of Muhammad Yaqoob P. W.
3. The police recovered the bullet ridden chaddar (Exh. P. 1) of Muhammad Yaqoob. The deceased was found to have suffered besides three abrasions, a firearm entrance wound on the front of the chest, right lateral to the right nipple, which was responsible for the death. Haroon P. W. Was found to have an abrasion, on the right maxillary prominence, which was simple in nature and caused by a blunt weapon within 18 hours. Muhammad Iqbal appellant who at the time of his arrest was found to have injuries on his person, was also subjected to medical examination which disclosed the presence of three abrasions, and one contusion on his person which were all simple in nature, having been caused by a blunt weapon within 20 hours.
4. The ocular testimony was furnished by Muhammad Yaqoob complainant (P. W. 3), Muhammad Ayub (P. W. 4) elder brother of the deceased and Muhammad Ashraf (P. W. 5) a nephew of Muhammad Yaqoob. Haroon was examined as P. W.
6. The appellant denied his involvement which he attributed to enmity. He admitted that there had been a proposal for his marriage with the niece of Muhammad Yaqoob but stated that he had himself refused the offer. He gave no explanation for his injuries but denied that the same had been caused by Haroon P. W.
5. The trial Court doubted the place and the time of recording of the F. I. R. Inasmuch as while according to the complainant he had gone to the police station where he had lodged the report whereafter the S. H. O. Had accompanied him to the spot, the S. H.
0. Stated that he (S. H.
0.) had, on receipt of telephonic information gone to the spot where he recorded the statement of the complainant Exh. P. A/1. According to Muhammad Ashraf (P. W. 5), the statement of Muhammad Yaqoob was recorded at the spot after the preparation of the injury statement of the deceased and the site plan. The trial Court was also not satisfied as to the presence of Muhammad Ayub and Muhammad Ashraf P. Ws. At the relevant time for the reasons, firstly, that though their presence was mentioned in the F. I. R., the same was not mentioned in his evidence by Muhammad Yaqoob and secondly that the statement given by Muhammad Ayub P. W. 4 that he was "by chance watering flower beds" was not believable because the S. H.
0. Did not find the flower plants to have been watered. In regard to the presence of Muhammad Yaqoob P. W. 2 the trial Court observed that there was no convincing evidence that the chaddar belonged to him and that the possibility that it belonged to the deceased himself could not be ruled out. The trial Court thus held that none of the eye-witnesses was present at the spot.
According to the trial Court, the presence of abrasions and other blunt weapon injuries found on the person of the deceased and the appellant indicated "a greater possibility that they were caused by grappling" but the prosecution had offered no explanation for those injuries. In regard to the injuries on the person of the appellant, . The trial Court further held that the belated attempt to explain the same through Muhammad Haroon (P. W. 6) who by improving upon his earlier statement had said that the same had been caused by him during his fight with Muhammad Taj and his brothers was not acceptable. Referring to the presence of undigested food in the stomach of the deceased, the trial Court held that it being the month of Ramazan, the occurrence "probably took place in the last hours of the night" and not at the time given by the prosecution. The trial Court, therefore, disbelieved the prosecution case and accordingly acquitted all the accused.
6. In appeal filed by the State, the High Court observed that Muhammad Yaqoob P. W. Being equally related to the accused, had no motive to bring a false case against them ; that the discrepancy in regard to the place of recording the F. I. R. Was due to the fault of the S. H. O. Who, instead of recording the report at the police station, accompanied the complainant to the spot but cha the discrepancy would not result in discarding "the evidence of a person who has no reason to implicate the accused falsely"; and that, even otherwise, there were reasons to believe Muhammad Yaqoob as the occurrence had taken place in front of his house. The High Court rejected the view by the trial Court that the occurrence had taken place in the small hours of the night. As regards the other two eye-witnesses, the High Court believed their presence. The High Court agreed with the trial Court that the injuries on the person of the appellant had not been caused by Haroon P. W.
But held that "it is established beyond any reasonable doubt that at the time of the occurrence there was a scuffle between Muhammad Yunis deceased and Muhammad Iqbal respondent". On this view of the matter, the High Court found the appellant alone guilty of an offence under section 304, Part I, P. P. C. For having exceeded the right of self-defence.
7. Apparently, the High Court has proceeded upon the hypothesis that a grappling had immediately preceded the occurrence, which has been nobody's case. The prosecution had offered no explanation for the simple injuries found on the person of the deceased. It had also initially offered no explanation for the injuries found on the person of the appellant but had later come out with one that the same had been caused by Haroon (P. W.
61. The High Court, having disbelieved the prosecution on this point, could not proceed upon a new theory of its own. Such a course was not approved by the. Federal Court in Bhallu v. Crown wherein it was observed that the learned Judge having disbelieved the evidence of the prosecution witnesses on the main parts of the incident, he could not have acted upon the theory of a sudden fight, which was not supported by any evidence. Even otherwise, the appellant having been medically examined at 3'10 p. m. On the day of the occurrence, the duration of his injuries given by the medical officer does not connect them with the occurrence.
8. Learned counsel for the State advanced arguments which would favour the conviction of the appellant under section 302, P. P. C. But there C being no appeal against the appellant's acquittal under that section, such arguments could not be entertained.
' We, therefore, allow the appeal, set aside the conviction and the sentence of the appellant and set him at his liberty. The bail bond furnished by him shall stand discharged. PLD 1955 FC 432