FAIZ MUHAMMAD KHAN, J.--By our short order dated 6-7-1987, we accepted the appeal of four persons, namely, Sabuz Hussain Shah son of Mohsan Shah, Mst. Yousaf Jan wife of Mohsan Shah, Sabir Shah son of Suleman Shah and Mst. Rashida Bibi wife of Sabir Shah all residents of village- Ledha-cum-Kakul, Tehsil and District Abbottabad against their conviction and sentence under section 302/34 PPC recorded by Sessions Judge, Abbottabad vide his judgment dated 14-9-1986, vide which each of the accused was sentenced to life imprisonment and all of them were sentenced to pay jointly fine of Rs.2,000 and also to pay Rs.4,000 by way of compensation to the legal heirs of Aslam Shah deceased for whose murder they were tried. In default of payment of fine and compensation, each accused was directed to suffer further two years' R.I. Hereafter are recorded the reasons for reaching the said conclusion.
2. The occurrence took place on 21-6-1985 after Juma prayers. Report of the occurrence was made by Hazrat Shah (P.W.6) on 22-6-1985 at 17.15 hours. The report (Ex.P.A.) was recorded by A.S.I.
Muhammad Yunis P.W.9 at Police Station Mirpur. After recording the same and after getting it thumb-impressed by the complainant in token of its correction the A.S.I . Proceeded to the house of the deceased where the dead body of Aslam Shah was lying. He prepared the injury sheet and.
Inquest report of the deceased whereafter he sent the dead body for post-mortem examination.
Thereafter, he inspected the spot and prepared the site plan Exh.P.B. On the pointation of prosecution witnesses. The A.S.I. Also took into possession two sticks Exh.P.l vide recovery memo EXh.P.W.l/1, which were recovered from the house of Yousaf Jan, the convicted accused. He also recorded the statements of Naeem Shah and Shabir Shah, the alleged eye-witnesses of the occurrence. On arrival of S.H.O., further ` investigation was handed over by A.S.I. To him. S.H.O.
Sarfraz Khan P.W.10 while investigating .The. Case, on 16-7-1985, recovered on the pointation of Mst.
Rashida, the convicted accused, 'Kutka' Exh.P.2 and took it into possession vide recovery memo Exh.P.W.2/1. After completion of the investigation he submitted challan to the Court concerned.
3. At the trial, the prosecution relied on the ocular account furnished by the two witnesses named above, the circumstantial evidence, the medical evidence and the motive for the crime. This evidence was believed by the learned Sessions Judge, Abbottabad, who convicted and sentenced the accused /appellants as aforesaid.
4. It is true that deceased Aslam Shah lost his life by violence. The injury which proved fatal Was the head injury which has been attributed by the prosecution to Sabir Shah appellant. In the opinion of the Doctor Parvez Akbar (P.W.4) This injury (lacerated wound on the occipital region of skull 1" x 1/2") was sufficient to cause death of the deceased. This injury was caused by a blunt weapon and according to medical evidence, the probable time which elapsed between the injury and death was 20 to 24 hours and between death and post-mortem examination was 14 to 15 'hours. The Doctor also admitted in cross-examination that the injury on the skull of the deceased could be received by falling of the deceased on the back side and by hitting of the skull against the hard surface. In the opinion of the Doctor, since the bleeding was slow, the deceased may have lost his consciousness after some time but not soon after receiving the injury.
5. It is also true that Naeem Shah (P.W.7) and Shabir Shah (P.W.8) have claimed to have seen the occurrence with their eyes. They are the nephews of the deceased and the sons of Hazrat Shah (P.W.6) who made the first report. The point to be determined, however, is whether from the material brought on record it is established that these two witnesses were present on the spot at the time of occurrence and' have. Faithfully and correctly described it at the trial. Mufti Muhammad Idris Advocate, who was assisted by Sahibzada Akhtar Munir Advocate, for the appellants is of the view that the presence of these two alleged eye-witnesses on the spot at the time of occurrence is very doubtful, whereas Khawaja Nazir Ahmed, Assistant Advocate-General for the State, and Mr. Sarfraz Khan Advocate, representing the complainant, are of the view that their presence at the relevant time is established beyond reasonable doubt. We would discuss this aspect of the case later.
6.The first ground urged by the learned counsel for the appellants before us is that the first report had been lodged with delay of 2.7 hours, and it was the result of consultations and deliberations in order to rope in innocent persons. In this connection, the learned counsel for the appellants submitted that the explanation furnished by the lodger of the first' report (Hazrat Shah P.W.6), both in the first report as well as in his statement at the trial, stood belied by Haji Banaras Khan (P.W.3), who categorically stated that he did advise Hazrat Shah (P.W.6) to lodge the report if his brother was seriously injure&. The statement of Hazrat Shah (P.W.6) in this regard, however, is that Haji Banaras Khan (P.W.3) had asked him not to make report of the occurrence and it he made it, he would. Be fined by him.. The learned counsel contended that the statement of Hazrat Shah (P:W.6) having been contradicted by the statement of a disinterested witness (Haji Banaras Khan P.W. 3), has no value and that this story had been introduced by the prosecution only .To overcome the long delay which had occurred in making the first report. This, according to the learned counsel for the appellants, made the A `prosecution case, doubtful; and in any case, the involvement of innocent persons as a result of deliberations and consultations could not be excluded. This argument appeals to our mind, and when seen in the light of other evidence that Aslam Shah deceased walked .On foot from the place of occurrence to his house, never lost his consciousness according to the prosecution case till his death, and did not make the first report himself, creates doubt in our mind as to the correctness of the prosecution story that the deceased wanted Hazrat Shah (P.W.6) to make the report against all the accused named by him.
7. The prosecution story described at the trial clearly indicates that the unfortunate incident' occurred because Aslam Shah deceased went to the house of his in-laws after his wife Mst. Sherin Bibi, who was during those days living with her mother, having come there after allegedly deserting her husband, in order to bring her back to his house. She was said to have left the husband's house as she wanted a separate accommodation to live in which her husband was then not providing. It is in the statements of prosecution witnesses (Hazrat Shah, Naeem Shah and Shabir Shah) that the deceased had gone to the house of his in-laws to offer Eid Greetings and also to bring back Mst.
Sherin Bibi, his wife. -In return, however, it is alleged by the prosecution, he was giver. Beating by the appellants before us, as a result whereof he died the second day. We can, therefore, safely presume that Mst. Sherin Bibi, at the relevant time, was in the house of her mother (Mst. Yousuf Jan) when this incident took place and strangely enough she has not been examined by the prosecution as a witness, though being an inmate of the house where the incident occurred.
8.The case initially set up by the prosecution (F.I.R.) was that after offering Juma prayers the deceased along with Naeem Shah (P.W.7) went to the house of Mst. Yousuf Jan, one of the appellants, in order to offer Eid Greetings and bring back his wife Mst. Sherin Bibi, Hazrat Shah (P.W.6) stuck to this statement even at the trial when he testified to the fact that the first report (Ex.P.A.) was correctly recorded. It is further stated in the first report that as soon as Aslam Shah (deceased) entered the house of Mst. Yousuf Jan, he was beaten by the appellants herein with 'Lathis' and upon raising alarm, Naeem Shah (P.W.7) and Shabir Shah (P.W.8) were attracted to the spot. This statement, in so far as Naeem Shah (P.W.7) is concerned, appears to be self- contradictory because if Naeem Shah had' accompanied. Aslam Shah deceased to the house of Mst. Yousuf Jan, then he would have been very much there from the very beginning and the later portion of the first report that he was, along with Shabir Shah, attracted to the spot upon alarm raised by Aslam Shah, was incorrect. At the trial, both Naeem Shah (P.W.7) and Shabir Shah (P.W.8) did. Not claim having accompanied Aslam Shah deceased to the house of Mst. Yousuf Jan. The story initially set up by the prosecution in the first report in this regard, therefore, stands belied by the testimony of the two alleged eye-witnesses who did not claim that they had accompanied Aslam Shah to the house of 'Mst. Yousuf Jan. The lodger of the first report yet claimed that he had faithfully and correctly made the first report in the manner disclosed and directed by Aslam Shah deceased. This brings us to another question as to whether or not, as claimed by the prosecution, the two eye-witnesses, namely, Naeem Shah (P.W.7) and Shabir Shah (P.W.8), could have reached the place of occurrence on hearing alarm raised by the deceased in order to see with their eyes- the whole of the occurrence, and described by them at the trial.
9. 'In the site plan (Exh.P.B.), unfortunately, the mosque where the Juma prayer was allegedly offered by the- deceased and the eye-witnesses has not been shown. Naeem Shah (P.W.7) has, however, stated that the distance between the place of occurrence and the mosque .Is four furlongs. In this regard, the statement of Shabir Shah (P.W.8) is that. The distance between the mosque and the house of Mst. Yousuf Jan (appellant), where the occurrence took place, 'will be less than half a mile'. He has also stated that the distance between his (complainant's) house and the mosque is one mite. A.S.I. Muhammad Younis (P.W.9) has said that the place .Of occurrence is at a distance of two furlongs from the house of the deceased. When read together, these three statements lead to the conclusion that the scene of occurrence is situated at a distance of more than four furlongs but less than six furlongs from the mosque: Naeem Shah (P.W.7) has stated that after completing prayers he and his brother came out of the mosque and heard noise. He has further stated that they were on their way to their house when they heard noise from the house of accused Mst. Yousuf Jan. Analysed further, the inevitable conclusion which one would reach from this statement is that when Naeem Shah (P.W.7) and his brother Shabir Shah (P.W.8) came out of the mosque and were close to it that they heard noise from the side of the house of Mst. Yousuf Jan. That being so and in the light of the distance between the mosque and the scene of C occurrence, as already noticed, it is improbable, if not impossible, that the eye-Witnesses could hear the alarm raised by their uncle '(deceased) while he was in the house of accused Mst. Yousuf Jan and could recognise it to be that of his, and the question of their attraction to the spot on that alarm, therefore, did not arise. In any case, this portion of the statement cannot be accepted by us without entertaining doubt with respect to its correctness. It is not the claim of the so-called eye- witnesses that they had accompanied the deceased when he was going to the house of Mst.
Yousuf Jan appellant when the occurrence took place. The deceased was having four injuries on his person, to which the Medical Officer testified at the trial. These injuries could have been caused, if all the accused-appellants had participated in the crime as alleged by the prosecution, within the span of two to three minutes. In such circumstances, even if we accept as correct the statement of Naeem Shah (P.W.7) that when they came out of the mosque and heard noise. They went to the house of Mst. Yousuf Jan appellant, they could not have seen the occurrence with their eyes because by then the incident in all probability would have been over, and at the most they could have seen the deceased in injured condition lying there. The claim of the eye-witnesses that they had seen the occurrence with their eyes, therefore, stands belied by the circumstantial evidence. As far as Shabir Shah (P.W.8) is concerned4 we doubt very much whether he was present on the spot at the relevant time because if he had been there on that occasion, it is unbelievable, keeping .In view the human conduct and behaviour on such like occasions, that he would not have entered the house of -accused Mst. Yousuf Jan and saved his uncle from receiving beatings at the hands of the appellants and would have stood outside the door of the house watching the whole incident as an unconcerned spectator. While being in such doubt, we are not prepared to accept his testimony against the appellants for conviction on a capital charge.
10. Naeem Shah (P.W.7) had stated that Sabir Shah appellant gave blows with stick to the deceased on his head. Similarly, Shabir Shah (P.W.8) has stated that Sabir Shah appellant gave two stick blows to E the deceased on his head. Both the statements stand belied by the medical evidence, as the deceased was having only one head injury, which according to the medical evidence proved fatal. The prosecution's own case is that Sabir Shah and his wife Mst. Rashida Bibi had no personal enmity with the deceased or with the complainant party. They were said to be related to the other accused. But the exact relationship could not be disclosed at the trial. In such circumstances, we fail to understand as to what had provoked Sabir Shah and Mst. Rashida Bibi appellants to participate in the crime and to be responsible for giving the blow which proved fatal for the deceased. The 'absence of motive on the part of Sabir Shah and Mst. Rashida Bibi creates doubt in our mind as to their involvement and participation in the crime.
11. As already noticed, the presence of Shabir Shah (P.W.8) at the place of occurrence at the relevant time was very doubtful. If we analyse the statement of Naeem Shah (P.W.7) more critically, his presence on the spot at the relevant time, or at least, his seeing the occurrence with his eyes is also doubtful. He teas stated that after offering Juma prayers he came out of the mosque in order to go to his house. His brother Shabir Shah (P.W.8) was accompanying him. In cross-examination, he has also stated that the people left the mosque at about 2-30 p.m. Which would naturally mean that these -two brothers also left the mosque at that time. He has also said that the occurrence took place at about 3-30 p.m. Keeping in view the distance between the mosque and his house, as already noted, these two witnesses should have, in all probability, reached their house when the occurrence took place. Their seeing the occurrence with their eyes, therefore, did not arise and to say the least is doubtful.
12. Haji Banaras Khan (P.WA), Chairman of the Union Council concerned, at totally disinterested witness, has categorically stated that when Hazrat Shah (P.W.6) had immediately after the occurrence approached him to inform him about the incident, he did not mention that Shabir Shah had participated in the crime. This would mean that immediately after the occurrence the name of Sabir Shah was not mentioned by the complainant as one of the assailants. Later, however, he was attributed fatal blow, which involvement we view with doubt.
13. Hazrat Shah.(P.W.6) has .Stated that the deceased had named the appellants as assailants before him. He has also stated that many people had visited the deceased before his death and that the deceased had been narrating the 'incident to them. None of these persons has been produced by the prosecution in evidence in support of its case, which fact creates doubt -in our mind as to whether any one of them would have narrated the same story which Hazrat Shah (P.W.6) or for that matter Naeem Shah (P.W.7) and Shabir Shah (P.W.8), have. Narrated.
14. As already noticed, we have not accepted the prosecution story that the occurrence had. Been witnessed by the two eye-witnesses named above. Hazrat Shah (P.W.6) is not an eye-witness. The incident, however, seems to have occurred, but in what manner and who gave the fatal and other blows remain in doubt. The incident had taken place inside the house of Mst. Yousuf Jan and Sabuz Hussain Shah appellants. The deceased had himself gone there and the weapons of offence, which were seen by us in 'open Court, were also' common sticks which are used for burning purposes. As the evidence suggests, there was no premeditation or preconcert on the part of the appellants for committing the crime. It .Was, therefore, a sudden affair and in such circumstances, the application of section 34, P.P.C. To this case was out of question. Each person could, therefore, at the most, be held responsible for the act committed by him. There is, however, no reliable evidence on the record to tell what exact crime each one of the appellants committed. That being so, the benefit of doubt will go to the appellants.
15. For the aforesaid reasons, we are of the view that the learned trial Judge was not right in convicting the appellants for the murder of Aslam Shah deceased nor can we, being in doubt, convict any one of them for the lesser crime. We, therefore, accept this appeal, set aside the conviction of the appellants under section 302/34, P.P.C. J as also the sentence awarded to them by the learned trial Judge, and hereby acquit them of 'the charge levelled against them. Mst.
Yousuf Jan and Mst. Rashida 13ibi appellants being on bail are discharged of the bail bonds. Sabuz Hussain Shah and Sabir Shah appellants may be released forthwith, if not required in any other case.