' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgments and order, dated 15-9-1994 delivered by a Division Bench of the Balochistan High Court whereby the conviction of the appellants on the charge under section 302, P.P.C. Read with section 34, P.P.C. Was maintained. The appellants were tried by an Additional Sessions Judge on a charge under section 302/34, P.P.C. For having caused the murder of Mukhtar Hussain deceased. The learned Additional Sessions Judge vide judgment, dated 26-6-1994 found both the appellants guilty on the said charge. Accordingly the appellant Asadullah was convicted and sentenced to death while appellant Mst. Masooma Bibi wife of deceased Mulchtar Hussain was sentenced to undergo R.I. For a term of 10 years. The learned trial Judge also imposed sentence of fine, but the same was set aside in appeal vide judgment impugned. The learned Additional Sessions Judge referred the case to the High Court under section 374, Cr.P.C. While the appellants also assailed their conviction through two appeals. The reference was answered in affirmative and as stated above, the appeals preferred by the appellants were dismissed. The appellants then sought leave of this Court and vide orders, dated 21-2-1995 leave was granted to consider whether two Courts below have appraised and relied upon the evidence in accordance with the principles enunciated by this Court in various judgments rendered by it.
2. The occurrence resulting into the death of Mukhtar Hussain deceased took place on 3-10-1991 at about 6.00 p.m. On the receipt of information about this occurrence on telephone Farooq Jaffar, S.H.O., Police Station Cantt. Quetta, reached Sardar Isa Khan Girls High School, i.e, the scene of occurrence where, on the basis of the oral statement made by All Barat complainant, real brother of'the deceased, at about 11-45 p.m the FIR, was recorded. In brief, the complainant stated that he was residing at Ghilzai Road while deceased, his younger brother Mukhtar Hussain, who was serving as a Chowkidar in Sardar Isa Khan Girls High School, was living with his family at the, school campus. According to the complainant, appellant Mst. Masooma Bibi' wife of his deceased brother was not a woman of good character and had illicit relations with appellant Asadullah. According to the complainant, about two months before this occurrence, his deceased brother had caught appellants Asadullah and Mst. Masooma Bibi red handed in the office of the Headmistress.
According to the complainant, on the receipt of this information, he immediately reached the scene and saw the door of the office of the Headmistress open and when he entered the office, he saw that Mukhtar Hussain, his real brother was lying dead on the left side of'the office with his head having a sign of bullet injury. The complainant stated that he was of the firm view that both the appellants Asadullah and Mst. Masooma Bibi had killed his brother Mukhtar Hussain.
3. P.W.5 Dr. Muhammad Amin Mengal, Police Surgeon, conducted autopsy on the dead body of the deceased and noticed the following three injuries:--
(1) One injury (Haematoma) on left side of Mandible 4 1/2 x 3 c.m, in size (L & W ).
(2) One Haematoma 3 c,m, x 2 c,m. (L & W) on forehead left side on scalp hair borders.
(3) One circular 2 c.m. In diameter with inverted edges (burning), tattooing absent only abrasion colour is present (entrance) present on the right temporal region 2 c.m. From right ear and 6 c.m, from right eye, the exit was on left temporal region 3 c.m. In diameter, 7 c.m. From the left eye and 5 c.m, from left ear.
4. In cross-examination the doctor stated that the fire was shot by contacting the pistol with the locale of injury. The prosecution case rests upon the ocular. Testimony furnished by Safdar Ali P.W.2.
And Muhammad Hussain. Safdar All stated that the son of deceased Mukhtar Hussain came to his garage and told him that his father was calling him. Safdar Ali thus accompanied the son of the deceased to the school, i.e, the place of occurrence and he met the deceased. At that time Mst.
Masooma appellant, wife of the deceased was sitting behind the chair of headmistress, who stood up on seeing them. While appellant Asadullah was also standing towards the south in the said room. Deceased Mukhtar Hussain then asked the witness to bring Musa, who was like a brother to him and thus the witness proceeded to bring Musa, who in the company of the witness came back to the place of occurrence. The deceased then asked both the witnesses to bring some Moulvi so that he may divorce his wife. According to the witnesses, he and Musa approached one or two Moulvis, but they refused to come and, thus, he returned to the place of occurrence and on his way he met one Master Nasir, who was apprised of the situation. Master Nasir also then accompanied the witness to the school, the place of occurrence and they all assembled in front of the room of the headmistress. The deceased was informed . By the witness that Moulvis are not willing to visit the school. The deceased then told the witness to bring Ghulam Ali, President of a Tanzim. The witness accompanied by Musa then went to bring Ghulam Ali, who came to the school, Ghulam Ali knocked at the door of the room and asked Mukhtar to open the door. The deceased refused to do so whereupon Ghulam Ali remarked that why he had been called. The deceased then informed that he was called to see both his wife and Asadullah in the room. Ghulam Ali then asked Musa to call Barat Ali, a step brother of the deceased. Musa proceeded to the house of Barat and then came back and told that Barat Ali will come a short while as some guests were present in his house. After some time the wife of Barat Ali came in the school and told the appellant Mst.
Masooma that her conduct was not above board. At this juncture, according to the witness, appellant Asadullah asked deceased Mukhtar to open the door otherwise he would shoot him and then according to the witnesses he heard a fire shot. On hearing this fire shot, Ghulam Ali asked the people who had gathered there to go to their houses and he would contact the police on telephone and, thus, the witness proceeded to his own house. It is noteworthy to mention that all these proceedings took about 4 hours from 3.30 p.m. To 7.30 p.m. When allegedly appellant Asadullah had fired a shot. It is further pertinent to mention that the statement of this witness was recorded under section 161, Cr.P.C. By the police on 7-10-1991, i.e on the 4th day of occurrence although he was an eyewitness. Furthermore, it is not claimed by the witness that he saw appellant Asadullah firing a shot. He only heard a fire shot. The crucial question is whether he could have seen appellant Asadullah while committing the crime. The answer is in the negative because the witnesses himself does not claim to have seen the appellant firing a shot although there is a window adjacent to the door of the office, but it is not the case of the prosecution that the witness had seen appellant Asadullah through the window while firing a shot. It is not intelligible as to how the witness heard while standing outside the office of the headmistress of the school the appellant asking the deceased to open the door. Assuming that he had heard appellant Asadullah asking the deceased to open the door, would it mean that the appellant Asadullah had fired a shot. The answer is in the negative. It is also important to note that the elder sister of Mst. Masooma appellant, namely, Mst. Kalsoom, who appeared as a defence witness, is married to Zaman Ali, a brother of the appellant Asadullah. According to the defence version, the deceased was an emotional person and would often beat his wife appellant Masooma on petty matters. On the fateful day, according to the defence, deceased had given beating to his wife appellant Masooma whereupon Mst. Nargis daughter of the appellant went to Mst. Kalsoom to inform her about the occurrence. According to Mst. Kalsoom then she sent Asadullah for reconciliation and since they were related to each other, they were on visiting terms and there was nothing odd about the visit of Asadullah, who was young man student of F.A. While appellant Masooma was aged 30/35 years and was mother of 3 children. The prosecution also set up a motive that prior to this occurrence in the same fashion the appellants were caught red handed by the deceased. Then on the intervention of elders and others the matter was patched up. Unfortunately, no evidence has been brought on the record to prove the previous incident. Furthermore, both the appellants were not medically examined to prove that they had committed fornication on the said date. There were no signs of such an activity on the clothes or otherwise in the office room of the headmistress, i.e, the place of occurrence, therefore, we are of the view that the motive part of the prosecution case as well as the statement made by the witnesses is unworthy of belief. There is no explanation on the record as to why on the 4th day of occurrence, statement of both the eye-witnesses was recorded.
5. The statement of Muhammad Hussain P.W.3 is also in the same terms. The witness after narrating the occurrence as stated by Safdar Ali, he stated that he asked Mukhtar deceased to open the door, but he refused to do so and thereafter, the appellant confined in the room told the deceased to open the door, but he refused to do so and on his refusal, Asadullah appellant fired a shot. According to this witness also after the occurrence, Ghulam Ali asked them to go to their houses and, thus, he came to his house. The witness admitted that he was informed about the presence of the appellants and the deceased in the office of the headmistress of the school at 3- 30 p.m and the occurrence took place at 7.00 p.m. We are not prepared to believe that for 4 hours the appellant Asadullah waited to fire a shot if at all he was armed with a pistol to pave his way to escape. At 7.00 p.m., which is the time of occurrence in the month of October, it would be pitch dark and, therefore, we are not prepared to believe that the witness would. Have seen Asadullah appellant firing a shot upon the deceased. Of course, if he had been present, he would hear the fire shot as was stated by Safdar Ali, the other eye-witnesses. No other witness was produced by the prosecution to substantiate its case. It is also noteworthy to mention that Quidabad Police Station was hardly at a distance of less than 2 furlongs from the place of occurrence. If at all both the appellants and the deceased were present in the office of the headmistress and the door had been bolted from inside and the witnesses were present and this entire affair took about 4 hours, the witnesses could have informed Quaidabad Police Station. Failure to do so casts doubt upon the authenticity of prosecution case.
6. Deep analysis of the entire prosecution case reveals that it hinges upon circumstantial evidence.
The criteria to believe the circumstantial evidence has been laid down by this Court in the case reported as The State v. Manzoor Ahmed (PLD 1966 SC 664) wherein it was observed as under:-- "In a case resting wholly on circumstantial evidence the Court must remember that the 'processes of inference and deduction are essentially involved--frequently of a delicate and perplexing character--liable to numerous causes of fallacy.' Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances, those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of explanation upon any other reasonable hypothesis than that of his guilt'. The circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e, a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by preconceived notions. But once the circumstances have been found to be so established, they may well furnish a better basis for decision than any other kind of evidence."
7. Judged upon the touchstone of the criteria as laid down in the above case, we are not prepared to believe that the prosecution has proved its case beyond any shadow of doubt. Resultantly, this appeal is accepted, and the conviction and sentence of the appellants is set aside.
' These are the reasons for our short order, dated 6-10-1998 whereby the appellants were released.