' FAIZ MUHAMMAD KHAN, J.-Muhammad Akram son of Kala Khan aged about 40 and Ghulam Haider son of Kala Khan, aged about 45, both brothers inter se, residents of village Pind Hasham Khan, Tehsil Haripur, District Abbottabad, faced trial in the Court of Additional Sessions Judge, Haripur on a charge, under section 302/34, P.P.C., that they, in furtherance of their common intention, on 8-8- 1981 at about 'deegarqaza-wela'' in the land called `Mohri,' situated within the limits of village Pind Hasham Khan, committed the murder of their co-villager Alaf Din. On the conclusion of the trial, however, the learned Additional Sessions Judge, considering the charge having not been proved beyond reasonable doubt, vide his judgment, dated 22-5-1983, acquitted them of the charge.
Against their acquittal the State has filed this appeal, and so was filed a criminal revision by the complainant, which on account of this appeal having been filed became infructuous and was disposed of as such, vide order, dated 9-1-1984 made by this Court.
2. The prosecution case at the trial, in brief, was that while Alaf Din deceased, after getting his plough repaired from a village carpenter, was returning to his house at about `deegarwela', he saw she-nuffalo of Muhammad Akram accused damaging the `jowar' crop in his field. The deceased complained of this fact to Muhammad Akram accused whose house was situated nearby and in that process altercation between the deceased and both the accused took place which also resulted in exchange of abuses between them, where after both the accused, named above, attacked the deceased; Muhammad Akram giving stick blows to the deceased and Ghulam Haider throwing stones on him which hit him. Alaf Din, after getting hit, fell down on the ground and became unconscious. Mst. Karam Jan, the wife of Alaf Din deceased, and her brother Mian Dad, who were on their way to the same field where the occurrence took place for the purpose of cutting grass saw the occurrence with their own eyes and upon their raising alarm both the accused decamped from the spot. Alaf Din, who was then unconscious, was taken by the co-villagers, who were attracted to the spot on the alarm raised by Mst. Karam Jan and Mian Dad, to the house of Fazal Ahmed. Efforts were made to arrange for the conveyance to take him to the police station but with no success. Alaf Din succumbed to his injuries at about `sham qaza wela' and his dead body was then taken by the co-villagers on a 'cot' to police station, Haripur.
3. The first report was lodged by Mst. Karam Jan, the wife of the deceased, on 9-8-1981 at 3 a.m., in which she mentioned the same story as given above. This report was recorded by Abdul Majid A.S.I.
(P.W. 9) who happened to be there in the police station at the relevant time. In the report it was mentioned that the parties had no previous enmity and the immediate motive for the crime was the one stated above.
4. After registering the case the Investigating Officer prepared the injury sheet and inquest report of the deceased, which respectively are Exh. P.W. 5/3 and Exh. P.W. 5/4. He then dispatched the dead body of Alaf Din to the mortuary under the escort of Aurangzeb F.C. (P.W. 1) for post-mortem examination. The Investigating Officer then proceeded to the spot where, vide recovery memo. Exh.
P.W. 3/1, he took into possession one small blood-stained stone (Exh. P. 1), vide recovery memo. Exh.
P.W. 3/2, he took into possession 4 pieces of broken blood stained stick (Exh. P. 2), vide recovery memo Exh. P.W. 3/3, he took into possession the plough (Exh. P 3) belonging to the deceased, and vide recovery memo. Exh. P.W. 3/4, he took into possession one blood-stained `chadar' (Exh. P. 4) of the deceased which was produced before him by the complainant. He also prepared the site plan Exh. P.W. 9/3 in which he gave point No, 1 to the place where the deceased was dealt blows by the accused and wherefrom 4 broken blood-stained pieces of stick were also recovered, as also the small blood-stained stone. Point No, 2 in the site plan was given to the place where, at the relevant time, the complainant was and point No, 3 was given to the place where Mian Dad (P.W. 7) was and from point No, 4 in the site plan the plough belonging to the deceased was recovered. The Investigating Officer also recorded the statements of the P. Ws. The same day and since the accused were not available in their house, they could not be arrested by the Investigating Officer.
The accused were, however, arrested by the S.H.O. On the following day.
5. Doctor Noor Wahab (P.W. 5) had on 9-8.1981 at 9-30 a.m, conducted post-mortem examination on the dead body of Alaf Din. On external examination the doctor found the following injuries on his person :
(1) Lacerated wound 1f" x 1/3" x bone deep on the left side and posterior part of the head.
(2) Lacerated would 12" x 1/3" x bone deep on the right side and posterior part of head.
(3) Depression and bruise 2" x 11( on the right side of forehead.
(4) Bruise 3' x If on the top of right shoulder.
(5) Bruise 5' x of right side chest in the back on the lower part.
' Internal examination revealed that the scalp membranes and brain were injured. Parietal and frontal bones were fractured. 9th and 10th ribs were also fractured. Stomach was healthy and empty. Intestines were healthy, full of gases and faucal matter. Bladder was healthy and empty.
' In doctor's opinion, the cause of death was shock and haemorrhage due to fracture of the scalp, injury to tie brain and the fracture of the ribs. The injuries, according to the doctor, were caused by blunt means about 3 to 4 hours before the death of the deceased and the post-mortem examination was conducted about 16/17 hours after death.
' The doctor also prepared post-mortem report Exh. P.W. 5/1 with pictorial Exh. P.W 5/2. He signed both these documents, and so did he the injury sheet Exh. P.W. 5/3 and the inquest report Exh. P.W.
5/4, to which he testified at the trial.
6. In support of its case the prosecution produced 9 witnesses at the trial, but main reliance was placed on the statement of Mst. Karam Jan (P.W. 7), who claimed to be an eye-witness to the occurrence, the statement of Allah Din (P.W. 4), the carpenter who had repaired the plough of the deceased, and the recoveries made from the spot, already mentioned.
7. The learned trial Judge, however, did not accept this evidence as sufficient to prove the guilt of the accused and he, therefore, acquitted them of the charge, mainly because there was unexplained considerable delay in lodging the first report, the statement of Mst. Karam Jan was not confidence inspiring, she was also found to be an interested witness with motive to lay a false charge against the accused and there was no other independent evidence on the record to support her. Her presence on the spot at the relevant time was also doubted by the learned trial Judge.
8. Kb. Nazir Ahmed, Assistant Advocate-General appeared on behalf of the State. He was also assisted by Mufti Muhammad Idris, Advocate, who was engaged by Mst. Karam Jan complainant.
The respondents were represented by Abdullah Jan Mirza, Advocate. They were heard and with their assistance the record of the case was minutely examined by us.
9. The learned Assistant Advocate-General argued that there was available on the record the statement of Mst. Karam Jan (P. W. 7), who was an eye-witness to the occurrence, and other corroborating evidence and in presence of such evidence the learned trial Judge was not right in acquitting the respondents. His contention was that Mst. Karam Jan (P.W. 7) was a disinterested witness, having no motive of her own to falsely implicate the accused-respondents in the crime, and because her statement at the trial, in which she gave detailed account of the occurrence, was corroborated by the recovery of plough and the broken pieces of stick from the spot, as well as the statement of Allah Din (P. W. 4) carpenter, such statement could not be easily ignored and thrown out of consideration in judging the fact whether or not the prosecution had succeeded at the trial in proving the guilt of the accused-respondents. His other contention was that according to Mst.
Karam Jan (P. W. 7) the occurrence had taken place at `deegar qazawela' and despite efforts having been made to procure the conveyance to carry Alaf Din in injured and unconscious condition to the hospital, the conveyance could not be arranged when in the meantime at 'sham qazawela' Alaf Din succumbed to his injuries, whereafter his dead body was carried on foot to the police station and such travel being at night, sufficient time must have been consumed to reach the police station. According to the learned Assistant Advocate-General, when all these facts were kept in view there was no delay in lodging the first report and the learned trial Judge was, therefore, wrong in saying that the occurrence was reported at the police station after a long delay. The learned Assistant Advocate-General also contended that the presence of Mst. Karam Jan (P. W. 7) on the spot at the relevant time stood established on the record and should not have been doubted by the learned trial Judge.
10. The learned counsel representing the accused-respondents, however, argued that there was long delay in lodging the first report and that was because it was an witnessed occurrence and consultations had to be made in order to rope in the enemies of the complainant side, that the presence of Mst. Karam Jan (P. W. 7) on the spot at the relevant time was highly doubtful, that she was not a disinterested witness as according to evidence brought on record her step-mother Mst.
Rahima had been murdered for which the father and uncle of the present accused-respondents were charged but acquitted and that her statement neither received support from the recoveries made from the spot, nor from the statement of any other independent witness. His other contention was that having earned acquittal at the trial, the accused-respondents could not be deprived of that on the strength of the unreliable evidence tendered by the prosecution at the trial.
The learned counsel for the accused-respondents also contended that the medical evidence led by the prosecution at the trial established that the occurrence did not take place at 'cleegar qaza wela', as was alleged by the prosecution, but it had taken place much earlier than that and in this respect ocular evidence led at the trial having stood contradicted by the medical evidence became worthless and unreliable. His contention was that the prosecution deliberately tendered false evidence about the time of the occurrence so that the delay which had occurred in lodging the first report could be covered thereby.
11. We have no doubt in our mind that the occurrence did take place at 'eleegar' time because Allah Din (P. W. 4), a totally disinterested witness, deposed to the fact that after getting the plough repaired from him Alaf Din (deceased) had gone back at about 'cleegar' time. Unfortunately, neither the shop of Allah Din (P. W. 4) has been shown in the site plan nor the house of the deceased, nor has it come in evidence as to what was the distance in-between these two places.
There is equally no evidence on the record to show as to what was the distance between the shop of Allah Din (P. W. 4) and the place of occurrence, but since according to the statement of Mst.
Karam Jan (P. W. 7), Allah Din was attracted to the spot on the cries raised by her, we can accept that both these places were located not far away from each other. One other thing is, however, clear from the record and that is that Alaf Din deceased had not reached his house when the occurrence took place because the plough which he had got repaired from Allah Din was recovered by the Investigating Officer from the place of occurrence. Keeping these facts in mind, we can conclude that the occurrence did take place at the time mentioned by the prosecution.
12. As already mentioned, the main evidence in this case on which the prosecution relied at the trial was the statement of Mst. Karam Jan (P. W. 7), who was alleged to be an eye-witness to the occurrence. If we were to accept her presence on the spot at the relevant time, then in the light of her statement, corroborated as it was by the other circumstantial evidence pointed out by the learned Assistant Advocate-General in his arguments, there would be no escape from the conclusion that the prosecution did succeed at the trial in bringing home the guilt to the accused- respondents. But if we were to exclude her presence on the spot at the relevant time, then the other circumstantial evidence mentioned above would not advance the prosecution case any further because by itself that evidence did not provide any direct link of the accused-respondents with the crime.
13. As noticed by the learned trial Judge, the first report was lodged at the police station with considerable delay. No plausible reason was forthcoming on the record to explain that delay, and the one mentioned by Mst. Karam Jan (P. W. 7) at the trial (Daur river being in flood) was an improvement made by her, having not been mentioned in the first report lodged by her. The learned trial Judge has correctly worked out that delay A and when that was there, without plausible explanation therefore, a doubt could genuinely arise in the mind of the Court that may be that I was because the witnesses who were to support the prosecution case were l probably not present on the spot at the relevant time and they were, , subsequent to the occurrence, procured and summoned in order to become eye-witnesses to the occurrence. On our part, we entertain the same doubt, and in this manner the presence of Mst. Karam Jan (P.W. 7) on the spot when the occurrence took place becomes doubtful. She had stated at the trial that her brother Mian Dad was also accompanying her when she was going to cut the grass from the field where the occurrence took place. They both were carrying sickles with them. She also stated that the deceased was dealt blows by the accused-respondents in their presence. That being so, in all probability, she and. Her brother must have rushed towards the deceased in order to save him from the attack made by the accused-respondents and also to attend to him when after receiving injuries he had become unconscious. In such circumstances, while keeping in view the human behaviour and conduct on such occasions, both of them should have left their sickles on the spot, which, if had been there, should have been recovered by the Investigating Officer from the spot.
The sickles' were, however, not recovered from the spot and we can, therefore, presume that they were not there because they had not been carried by Mst. Karam Jan (P.W. 7) and her brother Mian Dad (P. W. 8). The statement given at the trial by Mst. Karam Jan (P. W. 7) in this regard appears to be a B concoction. Now, if the story of carrying of sickles by Mst. Karam Jan and her brother Mian Dad was not to be accepted, then the presence of these two witnesses on the spot at the relevant time shall also stand excluded as there would have been no reason for them to be present there. In the least, the non-recovery of sickles from the spot did create a doubt as to the correctness of the prosecution story disclosed at the trial.
14. Mst. Karam Jan (P. W. 7) deposed to the fact that after the incident the deceased while in unconscious condition was taken to the house of Fazal Ahmed situated nearby. Her statement creates an impression that the deceased had died at 'sham qaza wela' while in the house of Fazal Ahmed. No other witness has come forward to depose to this fact. Fazal Ahmed was not examined by the prosecution at the trial, nor was he examined by the Investigating Officer, as stated by him in his cross-examination, when he had reached the spot. This would raise a presumption against the prosecution to the effect that he was not examined c because he was either not supporting the prosecution story as a whole, or was not supporting the presence of Mst. Karam Jan (P. W. 7) on the spot at the relevant time. The statement of Mst. Karam Jan (P.W. 7) in this regard was belied by the statement of Karim Dad (P. W. 2) who stated to have reached the spot after half-an-hour of the occurrence and found the dead body of Alaf Din lying in the field where he was allegedly done to death by the accused-respondents. This statement also creates doubt in our mind as to the presence of Mst. Karam Jan (P.W. 7) on the spot at the relevant time, as also about the story related by her at the trial.
15. The immediate motive for the crime, as disclosed in the first report and at the trial, was that when Alaf Din (deceased) was returning to his house from carpenter's shop he saw in his field the she-buffalo of Akram, accused-respondent, damaging the maize (in fact jowar) crop. The deceased complained of this fact to Akram, who, in reply, abused the deceased, who also returned the abuse. It was after this that both the D accused-respondents were said to have attacked the deceased and injured him. The Investigating Officer has not shown in the site-plan any such damage to the crop by the she-buffalo of Akram, accused-respondent, although he was aware of this fact being the immediate cause of the attack allegedly made by the accused-respondents on the deceased. We are not prepared to accept that if the 'jowar' crop of the deceased had actually been damaged by the she-buffalo of Akram, accused-respondent, then such fact, though forming immediate cause of attack on the deceased by the accused-respondents, could go unnoticed by the Investigating Officer at the time of investigation or the preparation of the site-plan. Had such damage to the crop been caused, the investigating Officer, in all probability, would have shown it in the site plan prepared by him. Once this fact was removal out of the chain of facts stated at the trial, then the whole chain was broken and the prosecution story became doubtful, if not false, as there would have been no immediate cause for the accused-respondents to have attacked the deceased. It was also possible that the incident had taken place not in the manner alleged by the prosecution and disclosed at the trial but in some other way, and if that were so, the prosecution was to suffer therefor and not the accused-respondents.
16. Two persons were stated to have attacked the deceased, one of whom (Ghulam Haider) was empty-handed and the other (Muhammad Akram) was having stick in his hand. The prosecution has alleged that Mst. Karam Jan (P.W. 7) and her brother Mian Dad (P. W. 8) were present on the spot when the attack was in progress. They both were allegedly having sickles in their hands. If this were true, then, in all probability, they must not have remained idle spectators and allowed the attackers to do their job. The conduct of these two witnesses at the relevant timet creates a doubt in our mind as to their presence on the spot.
17. Judging the case in the light of above stated facts, the probabilities were in favour of the accused-respondents, the presence of Mst. Karam Jan (P.W. 7) on the spot at the relevant time was doubtful and so was doubtful the immediate motive for the crime disclosed at the trial. In such circumstances, the conclusion reached by the learned trial Judge could have been possible. When such be the position, this Court would be reluctant in interfering with the acquittal recorded by the learned trial Judge in favour of the accused-respondents. This appeal, being without merit, is, therefore, dismissed.