' SALIM DIL KHAN, J.--- Astam Khan appellant herein has assailed through this appeal the judgment and order of conviction dated 15-1-1991 passed by Additional Sessions Judge Abbottabad whereby the appellant was convicted for the offence of murder under section 302/34, P.P.C. And was sentenced to life imprisonment and also to pay a fine of Rs,5,000 and to further one year's R.I. In default of payment of the amount of fine, and, if realized, was to be paid to the heirs of the deceased.
2. The appellant was charged alongwith his father Sher Ahmad for committing the murder of Rustam Khan who also happened to be his father-in-law. The case was registered in Police Station, Havelian through F.I.R. No,139, dated 7-8-1980 which is Exh.P.A. The appellant alongwith his father Sher Ahmad, on the completion of the investigation and submission of challan in the Court, were put on trial in the Court of Sessions Judge, Abbottabad in Sessions Case No,10/8 of 1981. On the conclusion of the trial the learned Sessions Judge, while extending the benefit of doubt, acquitted Astam Khan appellant herein while found Sher Ahmad guilty of the offence of murder and sentenced him under section 302, P.P.C. To suffer life imprisonment and also to pay a fine of Rs,5,000 and to further one year's R.I. In default of payment of amount of fine. This judgment and order was recorded and announced on 1-6-1982. Khan Bahadur, first informant, and, complainant in this case filed a revision petition in this Court against the order of acquittal of Astam Khan present appellant while co-accused Sher Ahmad filed appeal in this Court against the conviction.
The revision petition against the order of acquittal of the present appellant was allowed by this Court and the case was remanded back to the Court of learned Sessions Judge, Abbottabad on 16-12-1984 for de novo trial. The appeal of Sher Ahmad co-accused was disposed of by this Court through its order dated 14-10-1989 in the following terms:- "The appellant has been serving imprisonment for life for an offence under section 302 P.P.C. As per judgment of the learned Sessions Judge, Abbottabad, dated 1-6-1982. He, however, preferred appeal from Jail. Later on he engaged Abdullah Jan Mirza, Advocate as his counsel who states that under the terms of amnesty declared by the Federal Government the appellant being a convict over 50 years of age, was entitled to be released and has consequently been released from Jail. He submits that in the circumstances this appeal has become infructuous. In this context of the matter, this appeal is dismissed having been infructuous."
' It is pertinent to note that in the appeal filed by Sher Ahmad co-accused, this Court had not given any judgment on merits, therefore, the learned trial Court started the de novo trial of the present appellant with open mind. The trial against the appellant was commenced in the case, which was renumbered as Sessions Case No, 56/8 of 1984, and on the conclusion of trial he was found guilty at par with Sher Ahmad accused and was sentenced to life imprisonment and also to pay a fine of Rs,5,000 and to further one year's R.I. In default of payment of fine. This judgment and order were recorded and announced on 15-1-1991 by learned Additional Sessions Judge, Abbottabad. The present appeal before us is against the order dated 15-1-1991 in Sessions Case No,56/8 of 1984 whereby the appellant was convicted and sentenced to life imprisonment. There is also one Criminal Revision No,6/91 filed by Khan Bahadur complainant wherein he has prayed for enhancement of the sentence of present appellant. We propose to decide Criminal Appeal No,1 of 1991 and Criminal Revision No,6 of 1991 through this single consolidated judgment.
3. Brief facts of the prosecution story, as revealed in the F.I.R. Are that the complainant P.W.6 had gone to the house of the appellant, then married to Mst. Zuhra husband of his sister, in order to take her to father's house for celebration of Eid. On his arrival in the house of the appellant he was asked by Sher Ahmad, father of the appellant, to send his father Rustam Khan deceased for fetching Mst.
Zuhra Bibi. On this the complainant returned without her and asked his father to do the needful.
Accordingly on the following day, to wit 7-8-1980, Rustam Khan deceased accompanied by complainant, set out for the house of Astam Khan appellant. On approaching near the house of the appellant at about 8-00 hours, Sher Ahmad father, of the appellant shouted at the deceased saying that he had called him for evenging the insult hurled on him and abused the deceased. The abuses were returned by the deceased, whereupon a shot by the appellant with a .12 bore gun was fired at the deceased but the same went amiss. He was followed by Sher Ahmad, his father, who also fired a shot with a .12 bore shot gun hitting the deceased and resulting in his death after half an hour. The accused then decamped and the complainant proceeded to the Police Station for lodging the report, in which Mst. Zuhra Bibi has been stated to have witnessed the occurrence. The motive for the offence has been alleged as strained relations between the two families on account of maltreatment of Mst. Zuhra Bibi which forced her to abandon her husband's house and to take up residence in the house of her father Rustam Khan deceased.
4. The report Exh.P.A. Of Khan Bahadur was recorded by A.S.I. Ali Haider P.W.4, and it transmitted to Sub-Inspector Syed Sajjad Hussain P.W.9 who proceeded to the spot. On reaching the spot at 13-00 hours, he prepared the injury sheet Exh.P.9/1 and inquest report Exh.P.9/2 of Rustam Khan deceased.
He despatched the dead body for post-mortem examination under the escort of F.C. Muhammad Yaqoob P.W.S. The above Sub-Inspector prepared the site plan Exh.P.B. With all its drawings and footnotes. During inspection of spot, he recovered blood-stained earth and a blood-stained cardboard disk. In this regard, recovery memos Exh.P.W.9/3 and Exh.P.W.9/4 were prepared respectively. Two other cardboard of .12 bore were also taken into possession by him through memo Exh.P.W.9/5. Similarly, he took into possession three empties of .12 bore, one broken handle of the room-door, a wooden piece of the door, allegedly hit with pellets, in addition to 7 card board disks of .12 bore and 27 pellets of .12 bore vide recovery memo Exh.P.W.2/7 from the house of the appellant in the presence of Abdul Rehman P.W.2. The blood-stained shirt and one blood stained jacket having corresponding cut marks were sent by the doctor after the post-mortem examination which were also taken into possession by the same Sub-Inspector through memo Exh.P.W.9/12. He also took into possession and made into sealed parcel one phial containing 4 pellets alongwith a wad of .12 bore cartridge stained with blood, sent to him by Doctor, vide recovery memo Exh.P.W.9/7. Copy of the report lodged by the appellant as counter version was also exhibited as Exh.D.1 in evidence through this witness. After recording the prosecution witnesses, the Sub-Inspector arrested Aslam Khan appellant on 88-1980 while Sher Ahmad was formally arrested on 16-9-1980, when his pre-arrest bail was rejected. On completion of investigation, local police submitted a charge sheet under section 302/34, P.P.C. Against the accused to Court concerned for trial.
5. The post-mortem examination of the deceased was conducted by Dr. Noor Wahab Shah P.W.1, on 7-8-1980 at 3-45 p.m. On the identification of Ali Asghar P.W.3 and found the following :-- External examination.
(1) Fire-arm entrance wound 1-1/2" x 1-1/2" on the front of right side neck in the middle.
(2) A fire-arm entrance wound 2" x 2" on the front of neck right side, 1-1/2" above the injury No,1.
(3) Multiple scattered 5 fire-arm entrance wounds 1/8" x 1/8" each on the front of upper part of chest, neck and right side face.
Internal examination.
' Upper part of chest wall, trachea, carotid artery both sides and oesophagus were found injured, while 4th and 5th cervical vertebrae injured. The stomach was healthy and empty and so was bladder.
' According to the doctor the death was caused - due to shock and haemorrhage on account of injury to trachea, oesophagus and carotid artery. The probable time that had elapsed between injuries and death was about 1/2 hour and between death and post-mortem examination about 9 to 10 hours. The shirt, jacket bearing corresponding cuts alongwith pellets recovered were handed over to the police. The doctor further stated that injuries Nos.1 and 2 on the person of the deceased individually were sufficient to cause the death in the ordinary course of nature. The post-mortem report Exh.P.W.9/1 and the remarks on the injury sheet Exh.P.W.8/1 and the inquest report Exh.P.W.8/2 are in his hand and correct.
6. The appellant was examined under section 342, Cr.P.C. Wherein he .Professed complete innocence and did not produce any evidence in his defence by stating that he did not want to produce defence because nothing had been proved against him. Upon conclusion of trial, the learned Additional Sessions Judge convicted appellant for the offence under section 302, P.P.C. And sentenced him to life imprisonment and a fine of Rs,5,000 or else to undergo further one year's R.I.
By his order dated 15-1-1991, as already stated.
7. Mirza Abdullah Jan, the learned counsel for appellant seeks to assail the impugned judgment on variety of grounds, such as, firstly, the prosecution case receives fatal stroke on fire homes in lodging the report, thereby creating a doubt of the involvement of appellant in the transaction in question, secondly, the ocular evidence is belied by the medical testimony as regards the number of shots and distance from which these were fired on the deceased, thirdly the venue of occurrence as stated by eye-witnesses is not established, fourthly the appellant had no motive to make a murderous assault on the deceased and lastly circumstantial evidence in the case does not advance prosecution case an inch forward and, at any rate, rules out the application of section 34, P.P.C. To the case in hand. In short, his contention is that conviction of appellant rests either on legal evidence or on evidence of no legal consequence and merits to be set aside. On the other hand, learned Assistant Advocate-General, has insisted that the report is prompt and this shows the presence of eye-witnesses at spot and being close relations of appellant are not expected to lay a false charge at his door, that their evidence is free from doubt and conflict with medical testimony and their version establishes the venue of occurrence, motive for attack, manner of assault and guilt of the appellant beyond doubt. Thus conviction is sustainable.
8. First and the foremost point that calls for determination is whether the report lodged in this case suffers from delay and if so with what effect. In this context, certain considerations arise and are to be kept in mind. For instance, the first information report, if any, always forms foundation of a Criminal Case; its importance is, therefore, paramount in nature. There is presumption that the first informant does not get enough time to manipulate or to conspire to bring false charge or to give slant to events having taken place in reality. Ordinarily, people give very plain and innocent account of the occurrence in the First Information Report. But, when the lodging of report is inordinately delayed; the fabric of presumption, elaborately discussed above, is badly torn, for, in such circumstances, another counter presumption crops up to the effect that the first informant had consulted some other persons before lodging the First Information Report. In such event, chances of adulteration of the true account become very luminous, because, every person so consulted shall have his own inkling and shall prompt and prode the first informant to narrate the occurrence exactly in the manner he likes to be. Therefore, the Courts are always pricked at the very outset when they find delay in lodging the F.I.R. Nevertheless, delay per se is not a ground to reject the prosecution case down right. Every case proceeds on its own facts and circumstances and, therefore, the adverse effect of delay cannot be made a rule of universal application.
Nonetheless, in absence of plausible and convincing explanation of any such delay, the Courts are compelled to conclude it like skid on the first step of marathon.
9. In the instant case, the occurrence is alleged to have taken place at 8-00 hours in the morning while the report has been lodged in the Police Station at 11-30 hours the same day. It is in evidence that the distance being 10/12 kilometres, between the scene of occurrence and the Police Station, could be covered in one hour, and, reliance in this behalf is placed on two statements. Firstly, Khan Bahadur P.W.6, who is lodger of the report, says that he reached the Police Station at 11-30 a.m. And lodged the report. The recording of report and other formalities including preparation of the police party and departing for the scene of occurrence for investigation should have, at the minimum, consumed 30 minutes which makes the starting time from Police Station as 12-00 hours. Khan Bahadur very specifically states that he alongwith the police party reached the spot as 1-00 p.m.
(13-00 hours), Second price of evidence in this behalf is the cross-report made by the appellant and entered at Serial No,32 of Daily Diary of Police Station Havellian (same Police Station) at 9-00 hours, dated 7-8-1980 (same day). This report also pertains to the same occurrence though as counter version. This report, having been admitted into evidence as Exh.DA., indicates that the occurrence took place at 8-00 hours and the appellant reached the Police Station at 9-00 hours i.e within one hour. In view of this evidence, we can safely conclude that the distance between the scene of occurrence and the Police Station can be covered in one hour. On the basis of the aforesaid finding, there appears to be a delay of 2 hours and 30 minutes. The finding of delay is further supported by the statement of the first informant Khan Bahadur P.W.6 because he has tried to explain the same in the following words:-- "I then came straight to Havellian and at first went to the telephone exchange to inform my uncle Salim Khan who was then working as a personal manager at 'Holiday Inn'. He was contacted after about 2-00 hours. I informed him about the occurrence. Then I went to the Police Station, Havellian and lodged the report Exh.PA. Which is correct and bears my signature correctly".
' The aforesaid statement indicates that there is no controversy over the delay of two hours. It is worthwhile to examine the intrinsic value of this statement inasmuch as the delay of two hours has been explained. To our mind this explanation is not acceptable on two fold grounds because there is no mention of this explanation in the F.I.R. Nor has any witness supported this part of the statement of Khan Bahadur P.W.6, secondly the plea so taken, on the face of it, appears to be fanciful and off-spring of afterthought to cover up wilful delay. We, therefore, reject this explanation which is neither plausible nor convincing, especially when it is not supported by uncle of informant or by recitals of F.I.R
10. There is yet another important circumstance in shape of medical evidence which also supports the factum of delay. Dr. Noor Wahab Shah P.W.9 says that he performed the autopsy on the dead body of Rustam Khan at 3-45 P.M. On 7-8-1980. He further states that the time between death and P.M. Examination is 9-00 to 10-00 hours. On the basis of this statement when the time is computed; the time of death comes to between 5-45 A.M. And 6-45 A.M. The aforesaid timings are also supported by the fact that people in the rural area normally start their journey on foot before sunrise time in order to avoid the heat of the sun rays. In the present case too, in view of the hot month of August, the deceased must have started from his village before sunrise to reach the village of the accused, at the latest, immediately after sunrise so as to enable him to get back to his village alongwith his daughter Mst. Zuhra, if at all, shows from which ever angle, the matter under reference is judged, we cannot avoid the inference that the unexplained delay and the manner of reporting the incident to the police cast doubt on the prosecution case. This circumstance adversely affects the claim of Khan Bahadur P.W.6 about his presence at spot and reflects on the truth of prosecution story as narrated by him or his sister Mst. Zuhra Bibi P.W.8.
11. By far the most important question for consideration is whether both the eye witnesses were present at the scene at the relevant time. We have just held above that if the incident was in fact seen by Khan Bahadur P.W.6 and had seen the assailants, there would have been no delay and the intervening time was consumed to fabricate a story in mutual consultation after due deliberation.
The same taint is spread on the presence of Mst. Zuhra P.W.8 for several reasons. In the first instance, in the promptly lodged counter-report Exh.DA. By appellant, it was stated that she had left her conjugal domicile on the evening preceding the fateful day due to domestic quarrel with him; thereby showing that she was not present on the day of occurrence at the time and place as alleged by the prosecution. This was a spontaneous assertion under the immediate influence of the transaction mentioned therein. It is, in the next place, supported further by two-fold circumstances, (1) that the investigating officer has nowhere stated that he had seen her at the spot or near the dead body of the deceased on his arrival and (2) nor has he mentioned at the foot note of site plan, if it was prepared at the instance of the eye-witnesses in hand. Singular lapse on the part of the investigating officer to indicate her presence at point No, 14 in the site plan which speaks of wailing of many womenfolk or to show as to where he had examined her under section 161 Cr.P.C. Or to state as to where did he see her infant child, if at all or to elicit explanation from her as to how and in what manner and by whom, dead body of deceased was carried from point No,1 to a distant place like point No,14 as shown in site plan, further throws thick cloud of doubt on the claim of Mst. Zuhra as an eye-witness. This suspicion does not abate here but is firmly aggravated by the recitals in F.I.R., the relevant portion of which reads thus :-- {{URDU TEXT}} ' Khan Bahadur P.W.6 thus admitted the correctness of this assertion with the rider that due to intervention of his uncle Yaqub Khan she was sent to her husband's house, but the rider remains unproved for lack of support from Yaqub in this regard. However, the matter of intervention of Yaqub is conspicuous by its absence in F.I.R. On the contrary Mst. Zuhra P.W.8 has herself admitted that she had spent most of the time after her marriage in the house of her parents. All these series of admissions by both these witnesses converge on one and only one point that Mst. Zuhra P.W.8 was not present at the spot on the fateful day despite her very compact tutoring.
12. Notwithstanding the above, the ocular version offered by both the eyewitnesses, at its face value, is refuted by the medical evidence in its essential details. It is useful to recall that these witnesses have, with one accord, stated that the shot initially fired by appellant at the deceased went amiss while the shot from Shah Jan fired by Sher Ahmad, his father, hit the deceased on neck, killing him there and then. The doctor conducting autopsy on dead body has stated that the deceased met his death half an hour after infliction of gun-shot injuries, three in number. Only one injury on neck is mentioned by eyewitnesses and they are silent about injury to chest. In the site plan, it is shown that Sher Ahmad fired from point No,4 whereas appellant had ensued firing from point No,3, distant, 13 and 12 paces from point No,1, where deceased was standing. This distance of firing as indicated is not denied by Khan Bahadur P.W.6. In refreshing contrast, Dr. Noor Wahab Shah P.W.1, as already stated in early part of this judgment, has found three injuries of different dimensions, two, one of 1-1/2" x 1-1/2" and other of 2" x 2" in size on right side of neck and third of multiple scattered fire-arm entrance wound 1/8" x 1/8" each on the front of open part of chest, neck and right side face of the deceased. This doctor has recovered cardboard and pellets from injury No,1 which, according to him, was caused from a range of about four feet. This is not consistent with version of eye witnesses, who put the distance of firing at 12 paces, to wit, 30 feet. Again injury No,2, in the opinion of the doctor, could be result of a separate shot and so was injury No,3, each caused from a distance of more than four feet. No explanation is forthcoming from eye witnesses as to who had fired these two other shots, causing independent twin independent injuries on the person of deceased. Likewise, there is black-out as to who has fired at the deceased from close range of 4 feet, because the effective shot fired from distance of 30 feet is not compatible with the pattern of injury found on the deceased. These injuries though result of 3 shots, as described above cannot ex facie be attributed to appellant's father Sher Ahmad, who had fired one shot from long distance as indicated in the site plan. Thus the number of injuries on the deceased might have been caused by more than one person, armed with different fire-arms, but there is no way of knowing who they were. We cannot avoid an inference that the occurrence had taken place in a different context from the one as alleged by the eye-witnesses, who stand contradicted by medical testimony as regards the number of shots and the distance from which these were fired.
13. The eye witness account as discussed above is irreconcilable with the medical evidence, rather there is a clear contradiction of the version offered by the eye-witnesses. In such circumstances, the credibility of eye-witnesses is completely eroded and cannot be relied upon. Where ocular account is inconsistent in material facts with medical opinion, which is result of careful observation, then preference should be given to medical opinion, which in the instant case, has gone unchallenged with regard to life of injuries, manner and distance of its infliction and number of fire- arm shots resulting in these injuries. If such contradiction is brought into high relief, it is the duty of prosecution to explain it and not the accused who must be given benefit of such discrepancies. It is prosecution owns case that relations between the parties is far from cordial due to maltreatment accorded to Mst. Zuhra P.W.B. Therefore the evidence of eye witnesses, being son and daughter of the deceased, requires corroboration, which, in this case, is sought from recovery of three empties from inside the compound of the house of appellant as is shown at points 6, 7 and 8 where none of culprits is pinpointed in the site plan, 35 paces from the place where deceased was hit. It is significant to note that no recovery or wad or pellet is found at points 3 and 4 from where appellant and his father Sher Ahmad had fired. Nor has any weapon of offence been recovered from the house of appellant or elsewhere at his pointation. None of the eye-witnesses has alleged firing by appellant from points 6 and 7 and 8. No, doubt Mst. Zuhra P.W.8 has introduced factum of 3/4 more shots fired by both appellant and his father at the door, on hearing of which, Khan Bahadur P.W.6, out of fear, took to flight from spot for safety, but no mention of such firing is made in F.I.R., which would have contained the details to that effect, if such event had happened in reality. For, Khan Bahadur P.W.6 has admitted that he remained at spot till death of his father, which took place half an hour after the shot of Sher Ahmad, as alleged, landed on his body. In that case and situation further firing could not go unnoticed and unseeing nor demonstrated in site plan. Strangely enough, Mst. Zuhra P.W.8 suggests that after firing on door, both the culprits put her dower articles at sixs and sevens, which fact has not been found by the investigating officer at the spot. However, the broad fact remains that there is divergence on point of further firing between the two eyewitnesses. And on this aspect of the case, evidence of Dadan P.W.7 does not make any contribution. For, he is not mentioned in F.I.R. Nor does the site plan fix him in scenario anywhere.
Thus enigma of further shots remains unresolved and this injects a serious doubt in the veracity of the case set up by the prosecution. However, possibility of firing by deceased's companions for taking away dower by use of violence cannot be excluded. And death of deceased frustrated the attempt.
14. There is again very negative circumstance on the record of the case which creates a great dent in the prosecution version. The blood stained earth was taken into possession by the Investigating Officer on 7-8-1980 but, for reasons not revealed so far, it was not sent to the Chemical Examiner till 18-6-1981. The report of the Chemical Examiner shows that the said article was received by him on 18-6-1981 about 10 months after the occurrence. Although the Chemical Examiner has opined that the same was stained with human blood, nevertheless, it appears to be improbable and unnatural because after such a long time, an opinion in positive terms could not be given. Reference may be made to Muhammad Khan v. State PLD 1984 Lah.
522. This circumstance demonstrates neither blood was recovered from point Not and indeed the investigating officer did not find dead body at that place but at point No,14, distant 115 paces therefrom. Who carried the dead body there and why, there is no explanation and this belies the entire version offered by the eye-witnesses as to manner of arrival of deceased near the house of appellant as also the origin of murderous assault on him.
15. In every Criminal Case motive plays a very vital role and the law is that once the prosecution alleges a motive then it is bound in duty to carry the same to its logical conclusion. Alleging motive or proving motive is not incumbent for the proof of the prosecution case, and, for securing conviction. Nevertheless, once the prosecution comes out with clear cut allegation with regard to certain motive then it becomes obligatory on the prosecution to prove the same because prosecution story stems therefrom. In the present case the prosecution has alleged motive in very clear words by stating that Sher Ahmad father of the appellant shouted at the deceased while appearing in front of his house, that he would kill him for avenging the insult meted out to him by the deceased. There is only bald word of Khan Bahadur P.W.6 that Sher Ahmad was insulted by the deceased when had come to take Mst. Zuhra to his house. It is suggested that Yaqub, his uncle was present but Yaqub has not been put into deck to support the visit of Sher Ahmad to house of deceased or insult hurled at him. Even nature or gravity of insult is not disclosed so as to good Sher Ahmad to do away with the deceased. The prosecution thus has given a very vague type of evidence in this behalf which does not convince us to agree with the prosecution that the kind of insult was such that accused Sher Ahmad and more particularly the present appellant were infuriated to the extent to kill their closest relation. The manner in which the motive and the ensuing events have been mentioned, also does not inspire confidence.
16. Furthermore, even if we presume that there was a motive as alleged by the prosecution, then accused Sher Ahmad could easily kill the deceased anywhere in the locality because topographic conditions of the area such as existence of hillocks, surrounded by forest trees throughout the area between the houses of the two parties interspersed by a distance of 5/6 furlongs, provided much safer haven for the purpose. It does not appeal to reason that accused Sher Ahmad would call the deceased to his house just to kill him near his own residence and place his neck in the hangman's noose by creating evidence against himself. The motive alleged in the case is both hazy and farfetched and is not enough to good an offender to commit murder on that account, as alleged on the contrary, it is alleged and admitted by Mst. Zuhra P.W.8 that the appellant had never maltreated her and that his relations with her and father-in-law were cordial. If it were so, which certainly is the case, there was no occasion for him to kill the deceased. The part of ineffective firing ascribed to him is also beset with grave doubts. For instance, Khan Bahadur P.W.6 states that on return of abuse by deceased, to Sher Ahmad, the appellant on his own initiations fired a shot at the deceased; but later changed this version by stating that he did so at the asking of Sher Ahmad.
Mst. Zuhra P.W.8 has stated that appellant did not initiate the attack of his own but fired at the behest of his father. The appellant was an army employee and could not miss the target, if at all, he had fired at the deceased. The absence of any empty from place of firing assigned to him shows his non-participation and motive alleged was not enough to incite or urge him to bring about extinction of life of his father-in-law with when he had cordial relations. There is no evidence of pre-planning or pre-arrangement between the appellant and his father to accomplish the murder of deceased. The whole occurrence seemingly is attended by element of suddenness and absence of pre-meditation and now it cropped up and who participated in it and in what manner the assault was initiated and enacted and by whom, there is no tangible and credible evidence.
However the factors highlighted above very strongly argue against the non-complicity of the appellant in the commission of crime imputed to him. The prosecution has miserably failed to link the appellant with the offence of which he is charged by production of clear, cogent and convincing evidence.
17. Pursuant to the aforesaid discussion, while holding the appellant not guilty of the offence charged with, we accept this appeal, set aside the judgment and order of conviction passed by the learned trial Court and acquit the appellant Aslam Khan and order that he be set at liberty forthwith if he is not required in some other case.