MUHAMMAD GUL, J.-On the conclusion of arguments in this appeal on 1st June 1973, we, by a short order announced our judgment accepting the appeal setting aside the acquittal of Muhammad Hussain respondent No. 1, herein, and sentenced him to rigorous imprisonment for life for having caused the murder of Faiz Muhammad. What follows, are the reasons for our judgment.
2. Faiz Muhammad, husband of Mst. Nur Begum appellant herein, was murdered at about 8-30 a.m., on 25th May 1967, is the immediate vicinity of the Primary School, Gohawa, Police Station South Cantt., Lahore. Respondent No. 1 was tried along with three others (who are brothers inter se) for the murder. The other three accused were acquitted by a learned Additional Sessions Judge, Lahore, who, however, convicted respondent No. 1 for offence under section 302, P. P. C. And sentenced him to death. On appeal by the respondent, he too was acquitted by a Division Bench of the Lahore High Court, vide judgment dated 22nd April 1970. By the same judgment, State appeal against the acquittal of the other three accused was also dismissed.
3. Leave was granted to Mst. Nur Begum, widow of the deceased, to re-examine the evidence for the safe dispensation of justice.
4. The prosecution case briefly is that there existed previous enmity between the parties, who had been bound down in security proceedings for maintaining the peace. On the morning of the 25th May 1907, Faiz Muhammad deceased went to purchase cigarettes and sweets for his daughter from a shop at a short distance from the Primary School. At that time, the other three acquitted accused met him, felled him down on the ground and began assaulting him. Respondent No. 1 armed with takwa Exh. P. I also appeared on the scene and struck it from its blunt side on the head of the deceased. Lie then asked the other three accused to get aside and caused further blows from the right side on the chest and other parts of the body of the deceased. On hearing cries of the deceased, Zafar Abbas (P. W. 8), and Muhammad Aslam (P. W. 9) (both of whom were school teachers), Mst. Nur Begum (P. W. 10) and Muhammad Sharif (P. W. 11) came to the spot. The respondent and the co-accused tried to drag the body of the deceased but Mst. N,,-,r Begum fell on the body to prevent its removal.
As she lay over the body of the deceased, the respondent gave a blow to her, with the takwa. As the four assailants were decamping from the scene the respondent declared that he will not spare, Niaz and his son Zakria. Incidentally Niaz is none else than the brother of the respondent.
Muhammad Sharif P. W. Hastened from the scene to inform Niaz of the occurrence and the respondent's intention against him and his son. Niaz in turn informed Mangoo (P. W. 12), a maternal uncle of the deceased, of the incident who lodged the first information report at the police station, at 9-15 a.m. This is Exh. P. E.
5. The four accused were arrested on the same day. The Investigating officer recovered chadar Exh.
P. O. From the person of the respondent which was found by the Chemical Examiner to be stained with human blood. Later, the respondent also produced takwa Exh. P. I which appeared to have been washed in the meantime and therefore had no blood stains on it, though 4 vas also sent for the examination by the Chemical Examiner.
6. The prosecution case rested on the eye-witness account given by the two school teachers, Zafar Abbas and Muhammad Aslam ; the deceased's widow, Mst. Nsur Begum and Muhammad Sharif.
There was also the evidence of tile alleged previous enmity and also of recovery of chadar Exh. P. 4.
Tile learned trial Judge opined that the first information report recorded in the case was inadmissible because it was lodged by Mangoo P. W. Who himself was not an eye-witness but was informed of the incident by Niaz who was not examined during the trial. The missing link in the opinion of the learned trial Judge destroyed the incidents of F. I. R. In Exh. P. E. The trial Judge also doubted the veracity of Muhammad Sharif. Neverthe--less, he accepted the evidence of the two school teachers and that of Mst. Nur Begum which, coupled with the other circumstantial evidence in the case in his opinion brought home the charge against respondent No. 1. As regards the other three accused, he found that the case was not proved, beyond doubt and therefore acquitted them.
7. The learned Judges of the Division Bench on the other hand doubted the entire prosecution story, notwithstanding the fact they found Zafar Abbas and Muhammad Aslam the two school teachers to be reliable and natural witnesses an I further that Muhammad Sharif was also a natural witness.
They also disagreed with the trial Judge on the point of admissibility of Exh. P. E. However, the main reasons which weighed with the learned Judges to record a judgment of acquittal in favour of respondent were these :-
(i) There was no affinity or community of interest between respondent No. I and the other three accused acquitted by the trial Court. The respondent is a Jat, while the other three accused were Kumhars and belonged to the brotherhood of the deceased.
(ii) The security proceedings relied upon by the trial Court (Exh. k', 'l) were between the other three accused and the deceased and not between the respondent and the deceased, and therefore, did not constitute any motive for the offence by the respondent.
(iii) The respondent had apparently no motive to murder deceased, rather it was the deceased who had grievance against the respondent No. 1 in that the latter appeared as a witness against deceased in a smuggling case.
(iv) Muhammad Shah P. W. Immediately after the occurrence instead of going to inform the deceased's parents whose house was not distant from the scene of occurrence, went all the way to inform Niaz the petitioner's brother of the occurrence.
(v) That the two school-teachers took no action to lodge the, report or to inform the parents of the deceased.
(vi) The prosecution evidence, as to whether or neat the shop of Allah Din where the deceased had gone to purchase cigarettes ant sweets was open, is discrepant, Failure to examine him rendered the prosecution case doubtful
8. We have been taken through the evidence by the learned counsel of the parties sad we are definitely of the view this the prosecution evidence lies brought home the offence as against the respondent No. 1, beyond any reasonable doubt. The learned Judges of the Division Bench did not doubt that Zafar Abbas and Muhammad Aslam P. Ws. Were reliable and natural witnesses. Both of them supported the main prosecution story and testified to having seen the respondent No. 1 dealing fatal blows to the deceased with a takwa. As to their inaction in not having seen the respondents inform--ing deceased's parents, they being natural, it is not surprising that they did not take any initiative in the matter. Then the deceased's own wife was at the spot and this was perhaps the prime reason why having seen the occurrence they did not take steps to lodge report with the police or to inform the deceased's parents of the incident. As to the conduct of Muhammad Sharif in having gone all the way to inform Niaz of the incident, the reasons are not far to seek. As pointed out already, while repairing from the scene, the respondent had declared that Niaz and his son Zakria would meet the same fate. Therefore, it is quite consistent with the pro-- babilities of the case that Muhammad Sharif P. W. Thought it more prudent to warn Niaz of the respondent's evil designs before it was too late.
9. Nothing turns on the omission to examine the shop-keeper Allah Din, or on the question whether his shop was or was not open at the material time. The fact that whether or not his shop was open was not relevant to the case and much less a fact in issue. If at all it was only explanatory of the deceased's presence at the spot at the material time. A fact which is only, incidentally introduced into the prosecution case need hardly be proved. As pointed out by the Federal Court in Ghulam Safdar v. Crown (PLD1956FC120) it is no part of the duty of the prosecution to prove all incidental matters that are mentioned by a witness in his deposition. It is important to point out that the learned Judges entirely overlooked the impact of the recovery of chadar Exh. P. 4 from the person of the respondent on his arrest by the Investigating Officer. The recovery of chadar Exh. P. 4 which was found ~. To be stained with human blood goes a long way to confirm the authenticity of the main prosecution case against the respondent. As observed by this Court recently in the case of Mushtaq Ahmad (PLD 1973 SC 418), the true principle to be observed in the administration of criminal justice is that the law allows to a person accused of a criminal offence the benefit of reasonable doubt. Reasonable doubt is not an imaginary or exaggerated doubt ; it is a doubt which having regard to the circumstances of the case would be entertained o by a person of common prudence and not by a person who is inclined to be over-suspicious, and unduly to magnify his doubts.
10. Having given our careful consideration to the evidence on record, particularly of the two school- teachers and the corroborative evidence of the recovery of the blood-stained chadar and the medical evidence, in our opinion, the charge of murder is proved against the respondent beyond reasonable doubt. Accordingly, we accept the appeal, and set aside the ,judgment of the learned Judges of the High Court and convict the accused under section 302, P. P. C. For the murder of Faiz Muhammad deceased and sentence him to rigorous imprisonment for life. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.