' TALAT QAYUM QURESHI, J.---The appellant has earned conviction from the Court of learned Sessions Judge, Mansehra vide judgment dated 15-8-1997 whereby he was convicted under section 302(b), P.P.C. And sentenced for life imprisonment. He was also ordered to pay compensation of Rs,50,000 to the L.Rs, of deceased under section 544-A, Cr.P.C. And in case of his failure to pay the compensation to undergo further S.-I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Mst. Shah Fazoon complainant (P.W.7) reported on 16-2-1995 that she alongwith her mother-in- law Mst. Sahib Jan alias Durkhanai wife of Mehboob were present in their house. Her father-in-law had gone to offer prayers of Taraweh in the mosque. It was about 7-30 that, Wali Dad and Gul came to their house duly armed with rifles. Wali Dad (absconding accused) attacked her. Her mother-in-law intervened. Gui caught hold of her mother-in-law and pushed her. Accused Wali Dad fired at her mother-in-law which hit her at her abdomen. He fired second shot at her which hit her at her back on the ribs. She fell down and died at the spot. Accused decamped from the spot.
Motive stated in the F.I.R. Is that accused had asked for the hand of Mst. Banu, daughter of her father-in-law, who had refused to give her hand to the accused.
3. The said report was reduced into writing in the shape of Murasila Exh.P.A./1 by Muhammad Ishfaq, Inspector (P.W.9) who on information had reached the spot where complainant lodged the abovementioned report. The said Murasila was sent to Police Station which culminated in registration of case vide F.I.R. No,148 in P.S. City Mansehra.
4. We have heard Mr.Ghulam Mustafa Khan Swati, Advocate, the learned counsel representing the appellant, Mr. Adam Khan Jadoon, Advocate, the learned counsel representing the complainant and Mr.Muhammad Ayub Khan, A.A.-G. Representing the State and perused the record of the case.
5. The case of the prosecution is mainly based on the ocular evidence furnished by Mst. Shah Fazoon (P.W .7 .), medical, evidence and incriminating recoveries made from the spot by the I.O.
6. Lady Dr.Tanveer Chaudhry, F.M.O., D.H.Q., Hospital, Mansehra was examined as P.W.4. She had on 17-2-1995 at 8-40 a.m. Conducted P.M. Examination on the dead body of Mst. Durko wife of Mehboob which was brought to her by Muhammad Khalid No,66, Police Station, Mansehra. The dead body was identified by Awal Khan son of Isa Khan and Sanobar. She found the following:--- ' Rigor mortis slightly present. Injuries:
(1) Fire-arm entrance wound 1/2" x 1/2" with slight charring marks on the left lateral side Hof the chest just below and lateral to the right axilla.
(2) Wound of exit 3" x 2" on the right renal angle intestine and stool oozing out. Injury No,1 continues with injury No,2.
' Internal Examination: ' In the thoracic region, ribs, pleasure, pericardium and heart injured. All the big vessels injured. In the abdomen, stomach full of undigested diet and gases. Small intestine full of gases, faecal matter and crushed badly alongwith the liver. Right posterior 7th and 8th ribs fractured.
' Cause of death: ' By fire-arm due to severe internal haemorrhage and shock. Bloodstained shirt, blood-stained Shalwar and sweater bearing corresponding cuts were handed over to the police. The probable time between injury and death was within about half to one hour and between death and P.M. 14 to l hours duration. The P.M. Report Exh.. P.M . Alongwith pictorial was in the handwriting of the doctor and correctly bore her signature. Injury sheet and inquest report also bore her endorsements.
' In cross-examination the lady doctor stated that she found only one entrance wound on the person of the deceased and one exit wound.
7. Mst. Shah Faroon was examined as P.W.7. She repeated the contents of the F.I.R.
8. Muhammad Ishfaq Khan Inspector was examined as. P.W.9. During the days of occurrence he was posted as a S.H.O., P.W. City Mansehra. On receipt of information about the incident of murder, he proceeded to the spot where Mst. Shah. Fazoon lodged report at 22-00 hours which was reduced by him into Murasila- Exh.P.A./1. He sent Murasila to police station for registration of case.
During the investigation he prepared injury sheet Exh.P.E., inquest report Exh.P.F. Of deceased Mst.
Sahib Jan alias Mst. Durkhanay, despatched the dead body of deceased under escort of Muhammad Khalid No,66 to hospital for P.M. Examination. During spot inspection he took into possession two empty shells of 7.62 bore (Exh.P.1) blood-stained earth from spot and sealed the same into parcel vide recovery memo. Exh. P.C. In presence of marginal witnesses. He also prepared site plan Exh.P.B. At the pointation of complainant, took into possession one shirt Exh.P.2.
Having blood stains, one sweater Exh.P.3 also having blood stains produced by Khalid No,66 sent by doctor after P.M. Examination vide recovery memo. Exh. P.D. Both were having corresponding cut marks. He sealed the same into parcel in presence of marginal witnesses. Blood-stained earth, shirt and Banyan were sent to FSL for report vide application Exh. P.W.9/1. He also placed on file the report of FSL Exh.P.E and its receipt. He arrested the accused, recorded the statements of P.Ws.
Under section 161, Cr.P.C. On his transfer he handed over the case file to Muharrir of Police Station City.
9. The F.I.R. Was lodged with delay of two and a half hours. The occurrence took place at 7-30 p.m.
Whereas the report was lodged at 22-00 hours. The Police Station is situated only at a distance of 1 kilometre from the place of occurrence. There is contradiction regarding the lodgment of report also. Mst. Shah Fazoon (P.W.7) stated that on arrival of Mehboob her father-in-law and Gul Dad her brother-in-law, they went for report and while they were en route to police station, the police party met them near Kaho Wali Ziarat whereas Muhammad Ishfaq Khan, Investigating Officer (P.W.9) stated that on receipt of information about incident of murder at Taj Abad Mohallah, he proceeded to the spot where Mst., Shah Fazoon (P.W.7) lodged the report at 22-00 hours which was reduced in the shape of Murasila Exh.PA/1, the contents of which were read over to her. Although Mst. Shah Fazoon had tried to give the explanation for the delay that there was no male member in the house and she was guarding the dead body of deceased and on arrival of her father-in-law after Taraveh prayers and Gul Dad they went to police station to lodge report but the police party met them in the way but her this version has been negated by the statement of Investigating Officer who denied having met the said persons in the way near Kaho Wali Ziarat. He rather stated that he reached the spot at his own after being informed about the incident.
10. The perusal of the record and statements of P. Ws. Shows that it was a night occurrence and as per F.I.R. There is no source of light through which the accused could be identified. Mst. Shah Fazoon (P.W.7.) in her statement has made improvement to show the source of light. She stated that there was a lantern lit but in the F.I.R. Neither she mentioned about a lantern nor the Investigating Officer took into possession any lantern nor in site plan ' Exh.P.B. Prepared at the instance of Mst. Shah Fazoon any lantern has been shown in order to show that the accused were identified in the light of lantern.
11. There is a contradiction in the ocular evidence and medical evidence also Mst.Shah Fazoon P.W.
7 who is the only eye-witness to the occurrence stated that accused Wali Dad fired two shots at the deceased. The first hit her in abdomen and the second hit the deceased at her back in the ribs.
The medical evidence does- not support this version. As per post-mortem report Exh.P.M. There is only one entrance wound 1/2" x 1/2 with a slight charring marks on the left lateral side Of the. Chest, just below and lateral to the right axilla and one exit wound 3" x 2" on the right. Renal angle intestine and stool oozing out. Injury No,1 continues with injury No,2 as per report of the doctor.
12. The site plan Exh.PB also does not fully support the case of prosecution. As per site plan Ex.h.PB the deceased was done to death at point No,1 wherefrom blood-stained earth was taken into possession by the Investigating Officer. Accused Gul has been shown at point No,3 whereas accused Wali Dad has been at point No,4. The Investigating Officer took into possession two empty shells of 7.62 bore from point No,3 and point No,5 which are situated inside the room. The deceased was murdered in Verandah but the empties were found inside the room. Moreover, the Investigating Officer took into possession the said empties on 17-2-1995, i,e,, on the following day.
13. The prosecution has also failed to prove the motive. It is in the F.I.R. That the occurrence took place because Mehboob father of Mst. Banu had refused the hand of Mst. Banu to the brother of accused Patang. There is nothing on record to show that the accused-party had ever asked for the hand of Mst. Banu for Patang. Mst. Shah Fazoon P.W.7. In her statement has deposed that the hand of Mst. Banu was demanded some two years prior to the present occurrence whereas he was married to Bashir one year prior to the present occurrence. Mehboob P.W.8 has also 'stated that no Jirga was convened by accused for the hands of Mst. Banu. He stated it to be correct that no Nikah of Mst. Banu was performed with brother of accused. So the prosecution could not prove the motive set forth by it.
14. It was contended by the learned counsel for the appellant that Mehboob the husband of deceased had blood feud enmity in Ilaqa Allai and the occurrence took place due to the said enmity. Mst. Shah Fazoon (P.W.7) in cross-examination admitted that two brothers of Mehboob her father-in-law were murdered in Ilaqa Allai sometimes prior to the present occurrence. She stated that it was not in her knowledge that the enmity of one Sundri and Khoidad resulted in the murders of those two persons. It was not also in her knowledge that as a result of those murders her father- in-law Mehboob (P.W.8) migrated to the present place of occurrence due to fear of enmity with Sundri and Khoidad. Mehboob P.W.8. Also admitted in cross-examination that many years back he migrated to Mansehra from Allai. He admitted it to be correct that Wali Jan and Madda his brothers were murdered in Allai before his coming to the place of occurrence. He also admitted that he had enmity with Sundri and Khoidad in Allai due to those two murders. Keeping in view the above- mentioned enmity the possibility cannot be ruled out that deceased might have been killed by the other enemies of Mehboob, the husband of deceased.
15. Considering all the facts and circumstances of the case we have come to the conclusion that the F.I.R. Was lodged with the delay of two and a half hours. The occurrence took place in the dark hours, there is no source of light to identify the accused, the medical evidence contradicts the ocular version and there was other enmity of the husband of deceased and the possibility cannot be ruled out that the deceased might have been killed by other enemies of her husband. The motive as alleged in the F.I.R. Could not be proved by the prosecution. The case of the prosecution is not clear from reasonable doubts, therefore, while giving the benefit of doubt, we accept the appeal, set aside the conviction and sentence and acquit the appellant. He shall be released forthwith unless required in any other case. The above findings shall, however, have no bearing on the case of absconding co-accused whose case will be dealt with on its own merits.