' JAWAID NAWAZ KHAN GANDAPUR, J.--- Banaras Khan and Gustasap Khan sons of Qalandar Khan and Rasheed Khan son of Aksar.Khan, resident of Ghari Phulgran, Police Station Havelian, Tehsil and District Abbottabad have been convicted under section 316/34, P.P.C. And sentenced to pay.Rs,1,70,610 as Diyat collectively, in equal shares. This amount if and when paid has to be disbursed among the heirs of the deceased according to the law of inheritance. They have been further sentenced to undergo imprisonment for a period of 14 years each as Tazir. The benefit of the provision of section 382-B, Cr.P.C. Has been however given to them by the Sessions Judge, Abbottabad vide his order dated 14-2-1993.
2. The convicts have challenged their conviction and sentence by filing this appeal whereas Mst.
Naimat Jan alias Kali, widow of deceased Munawar Khan, has also filed a revision petition for the enhancement of sentence awarded to the convicts and has prayed that the sentence be enhanced to the term of imprisonment prescribed for Qatl-i-Arnd.
3. We propose to dispose of both the appeal and revision petition by the present judgment.
4. The prosecution story was set on foot by lodging F.I.R. No,68 which was recorded by Anwar Shah, A.S.I. (P.W.1) on 29-3-1991 at 5 p.m. At Police Station Hegelian. It has been alleged in the F.I.R. That on the fateful day, after Jumma prayers, Sultan (P.W.3) was present in his house when he, in the meantime, heard some noise. As a result of the same he ran in that direction. On reaching near Primary School, Ghari Phulgran, he found his brother Munawar Khan lying dead on a path. On inquiry Manzal (P.W.2), his nephew and Mst. Zubaida (P.W.4) his sister-in-law, told him that the deceased was taking his cattle for grazing when he came across the accused/appellants who were sitting near the School, that at that time accused Gustasap had a shotgun while accused Banaras Khan and Rasheed Khan were armed with sticks, they asked the deceased as to why was he taking side of his nephew Khan Dad. On this, the deceased and the accused had an altercation and immediately after the verbal duel, Gustasap Khan accused started giving Butt blows to the deceased while his two co-accused started showering stick blows on the belly, ribs and other parts of the body of the deceased. In consequence thereof, the deceased fell down and expired at the spot. The occurrence was witnessed by Manzal alias Bhola (P.W.2) and Mst. Zubaida (P.W.4) besides some other people of the village.
5. The motive for the commission of.The crime was that Khan Dad had a dispute over the land with the accused and the deceased supported his cause which annoyed the accused. This, in short, is the prosecution story.
6. The complainant took the dead body to the Police Station, Hegelian, where, on his arrival, his report was taken down. The A.S.I. Held the inquest and prepared the injury sheet in respect of the deceased. He then dispatched the dead body to the Civil Hospital, Hegelian where autopsy was conducted by Dr. Shafi-ur-Rehman (P.W.5).
7. On receiving a copy of F.I.R. Muhammad Naeem Khan, S.H.O. (P.W.7) rushed to the spot but due to darkness, deferred the investigation to the following day. He accordingly prepared site plan (Exh.P.B.) at the instance of Sultan Khan (P.W.3) and Mst. Zubaida (P.W.4). He also recorded her statement and that of other persons.
8. He arrested Banaras accused on 31-3-1991. On 4-4-1991 statement of Manzal (P.W.2) was recorded. It was on 20-5-1991 that Gustasap Khan and Rashed were arrested as a result of the rejection of their petition for bail before arrest. On 22-5-1991, Gust sap Khan accused, while in police custody, led the S.H.O. To his house, from where he produced a Danda (Exh.P.1), stating that he was in his possession at the time of the occurrence. The S.H.O. Took the same into his possession vide recovery memo. Exh.P.D., in the presence of Abdul Aziz, A.S.I. (P.W.6).
9. On completion of investigation, in the manner described above, the local police submitted charge-sheet under section 302/34, P.P.C. To the Ilaqa Magistrate, who sent the same to the Court of Sessions Judge, Abbottabad.
10. At the trial, the accused pleaded not guilty and claimed trial. They repudiated the prosecution allegations, professed their innocence and ascribed the case to enmity. In order to prove the charge the prosecution has produced as many as seven (7) witnesses, almost all mentioned above.
11. It may be stated at the very outset that, in the main, the prosecution case rests upon the following witnesses:- ' Mama' (P.W.2), Sultan (P.W.3) and Mst. Zubaida (P.W.4).
12. Of them Sultan (P.W.3) is not an eye-witness. He simply stated that on his arrival at the spot Manzal (P.W.3) and Mst. Zubaida (P.W.4) told him that the deceased was done to death by the three accused by giving him Butt and Dander blows without mentioning the number of blows and without disclosing the places/parts where the deceased had received the injuries. However, he stated about the civil and criminal cases in which father and maternal-uncle of the accused on one side and the deceased, his brothers, Ali Bahadur (husband of Mst. Zubaida (P.W.4), and Atta Muhammad, besides himself were engaged from time to time. It is thus clear that the parties are saturated with dire enmity. Manzal (P.W.2) is the nephew of the deceased (although he denied this relationship in the beginning of his deposition on oath). Mst. Zubaida (P.W.4) being widow of Ali Bahadur, also shares the same feelings of hostility against the accused. In the circumstances, therefore, their evidence requires independent corroboration from unimpeachable source as regards the time, place, manner of occurrence and the identity of the real culprits.
13. The only question for determination, in this case, is as to how far the ocular testimony of Manzal (P.W.2) and Mst. Zubaida (P.W.4) is credible and finds support from other independent quarters of reliable nature. Coming first to the deposition of Manzal (P.W.2) we find that he had put in about 7 (seven) years of service in the Army during which he has undergone training in weaponry.
According to him he did not try to intervene or catch hold of the accused or to snatch away the Dandas despite the fact that he was seeing his uncle beaten to death by the assailants. Even, after his death, he did not pick up the deceased nor placed him on a cot or Suzuki. He says he could not do so because he left the spot to fetch the Suzuki. On the other hand Sultan (P.W.3) testifies that somebody had left for the said purpose. He admittedly did not go to police station nor did he appear before the S.H.O. For recording his evidence. Muhammad Naeem, S.H.O. (P.W.7) has deposed that nothing finds mentioned in the case diary about Manzal (P.W.2) prior to 4-4,1991, when for the first time he recorded his statement. This shows that Manzal (P.W.2) was examined almost 6 days after the occurrence. We are, therefore, of the view that he is a witness of belated production and deposition of such a witness has often been put aside by a Court of law. We are of the opinion that he was certainly not present at the spot for the simple reason that the disclosure made by him in respect of the seats of injuries to Sultan (P.W.3) before lodging report, is totally belied by medical evidence which does not show any injury on abdomen, ribs or other parts of body except an injury on scrotum about which no mention is made by any witness. He is resident of Batala, a place situated 3/4 miles away from the spot. It is a bigger village and his claim that he had come to Phulgran for Jumma prayers is not supported by Sultan (P.W.3) who says that he never saw him in the mosque or outside it. Likewise Mst. Zubaida (P.W.4) says that he came from village side, thereby falsifying his assertion that he was on his way to the village from the mosque.
Be that as it may, his presence at the spot becomes all the more doubtful. It is quite strange that while deposing at the trial he states that deceased was beaten for 6 or 7 minutes by the three accused with three respective weapons but he is unable to suggest the number of Butt or Danda blows and also the seat of injuries caused therefrom. In his police statement (with which he was duly confronted) he says that the deceased was first taken to the Hospital. It requires a credulous person to believe that a dead body was taken to the Hospital for treatment instead of police station for report. He makes another interesting statement that the site plan was prepared at the police station and not on the spot. Such senseless and uninspiring version coupled with his unusual conduct and belated appearance before the police takes him outside the category of eye- witnesses. His deposition deserves to be excluded from our consideration.
14. This brings us to the analysis and examination of the deposition of Mst. Zubaida (P.W.4). While in the witness-box, she has stated that she had gone to the field' of one Abdul Ghafoor for grazing her cattle and that for the same purpose the deceased had reached there in the meantime. According to her the three accused, who were already there, gave Butt and stick blows to the deceased. She, however, admits that she had not told Sultan (P.W.3) as to where the deceased had sustained the injuries. It is obvious that Sultan (P.W.3) has stated that the deceased had received injuries on abdomen, ribs and other parts of the body, 'on account of the details .Of assault, mentioned by her to him, on his arrival at the scene of occurrence. Since the doctor has not found any injuries on the belly and flanks, she has resoled from her earlier version which was definitely false. However, she has asserted that the three accused had been constantly inflicting blows but she has failed to tell if these fell on the head, abdomen, belly, chest or legs although she has categorically stated that the number of such blows were more than 15 (fifteen). It is significant to note that all the blows did not leave a single mark of injury, on the fragile body of the old man (deceased), like bruise or laceration which is usually caused by weapons of the nature of sticks and Butt of a gun.
Accordingly we are of the view that her deposition is inconsistent with the medical evidence. On the contrary, the doctor found one superficial bruise on an ear and the small identical bruises, of equal size, caused by one and the same weapon (page 14 and 15 of the print book). If she had been present on the scene of occurrence, she could have furnished the account of these injuries but she has failed to do so. These wounds, as found by the doctor, were not seen by the two eye-witnesses nor specifically attributed to any particular accused by them. These also do not find mention in the F.I.R. Which was lodged by Sultan (P.W.3), on the basis of the details of the occurrence furnished to him by the said two alleged eye-witnesses. It is also very curious that according to Mst. Zubaida (P.W.4) and Manzal (P.W.2) many villagers had turned up at the spot, but not a single person out of the whole crowd, to .Whom the occurrence was narrated, has been examined by the Investigating Officer or during the trial to support the claim of eye-witnesses that--
(a) the accused had committed the crime and
(b) the eye-witnesses were present at the spot on their arrival.
15. We are not oblivious of the fact that the injury resulting in the death of deceased would be the work of one assailant and as such there is no circumstantial guarantee or judicial certainty as to who caused the fatal injury to the deceased and with what weapon. Unfortunately Mst. Zubaida (P.W.4), like Manzal (P.W.2), has implicated three accused, all closely inter-related and inimical to her family, and it hardly needs to be emphasized that where innocent persons are found to be implicated dishonestly in the commission of the crime, the Court is entitled to acquit those accused who have been falsely implicated: The false implication of one or two accused, as in the present case, goes a long way to bring the entire prosecution case under a thick cloud of doubt. All these features, therefore, compel us to discard the testimony of Mst. Zubaida (P.W.4).
16. It appears that the whole incident had occurred at a time when nobody was around the deceased and the assailant/assailants had escaped unidentified. The claim of Sultan (P.W.3), who posed to be the resident of a house situated at a distance of 20 yards from the spot, and had come to the spot on hearing the hue and cry, is belied by Mst. Zubaida (P.W.4), living 1200 yards away from the scene of occurrence, who stated that she had sent her son Wajid (not mentioned in the F.I.R.) to fetch Sultan (P.W.3). Introduction of Wajid has changed the whole complexion of the prosecution story. The question is as to wherefrom she had dispatched her son for the said purpose, because no one has deposed about his presence at, the spot. It, therefore, follows that the occurrence took place somewhere else. No disinterested person has been examined to fix the scene of offence. Thus, the place of occurrence is enveloped by element of uncertainty and suspicion, which badly reflects on the veracity of the prosecution case. The report itself seems to have been framed after prolonged delay and deliberations which destroys its sanctity. And the recovery of Danda from Gustasap accused, to which the gun was ascribed, further demolishes the prosecution case as a whole.
17. Even the motive alleged for the commission of the offence has not been E proved. In the F.I.R. It has been stated that there was a dispute over the land between Khan Dad and the accused and that the deceased supported the cause of Khan Dad. In the Court Sultan (P.W.3) has stated that accused were trying to take the possession of the property which belonged to Khan Dad. On the other hand, Mst. Zubaida (P.W.4) has alleged that the accused were constructing a well on the property of Khan Dad and that the deceased was desisting the accused from doing so. Strangely enough, no revenue record was produced before the Investigating Officer, in respect of the landed property, if any of Khan Dad. Even Khan Dad was not examined to support the motive as set up by the interested witnesses. No independent witness has been examined to prove the same and the testimony of Sultan (P.W.3) and Mst. Zubaida (P.W.4) Needless to mention that it is not essential or imperative for the prosecution to or set up a motive, but where specific motive is alleged and the prosecution has failed to establish the same, then it must suffer on that account and not the defense.
' The motive alleged in the case in hand is not only hazy but is far-fetched and cannot egg on the accused to commit the crime in the absence of any immediate provocation, grievance or incitement.
18. Having given our thoughtful consideration, we have come to the conclusion that the evidence furnished by the prosecution is highly incredible and does not inspire confidence. The prosecution has failed to bring home the G charge to the accused, en bloc, beyond a shadow of reasonable doubt. Extending the benefit of doubt to the accused/appellants, we set aside their conviction and sentence.
19. In the result the appeal is allowed and the revision petition is rejected. The appellants may be released forthwith if not wanted in any other case.