' ABDUR RAHMAN KHAN, J.---The two appellants who are brothers inter se alongwith their third brother Muhammad Riaz and their father Muhammad Habib, were tried for the murder of Munir Ahmed by the learned Additional Sessions Judge. The learned trial Judge by judgment dated 18-4- 1994, convicted the appellants under section 302/34, P.P.C. And sentenced each of them to undergo life imprisonment and to pay Rs,2,000 compensation to the legal heirs of the deceased or to suffer R.I. For six months, but the co-accused were acquitted. The appeal preferred by the appellant was dismissed by the High Court through the impugned judgment dated 4-11-1997.
2. Leave to appeal was granted to re-appraise the evidence in order to consider the following aspect of the case:-- ' "The motive part of the prosecution case was disbelieved by the learned trial Judge. Similarly, taking the deceased by the petitioners to their house was also disbelieved and that is why the charge under section 364, P.P.C. Was dropped. Co-accused Riaz and Habib were acquitted by the learned trial Judge on the ground that no signs of strangulation were found during the post- mortem and Habib co-accused had raised only a proverbial Lalkara: Habib co-accused in his statement under section 342, Cr.P.C. Stated that Munir Ahmed deceased was a vagabond and on the fateful night he had trespassed into their house for committing theft. On noticing the presence of the deceased in the house, the son of Habib, Imtiaz caught hold of Munir Ahmed, who resisted and Imtiaz and other residents of the Mohallah gave beating to the deceased. Thereafter, the deceased was taken to the police station where police also gave beating to Munir Ahmed.
According to Habib, the deceased died in the police station on account of grievous injuries inflicted by the police and he and his sons have been falsely implicated by the police to save their own skin-Riaz was also acquitted on the ground that his presence could not be proved at the time of occurrence. Another feature of the case is that witnesses Iqbal and Suba, who had entered the house alongwith Muhammad Hussain, have not been produced. The recovery of blood-stained Sota from petitioner Aftab after lapse of considerable period, prima facie, seems to be doubtful.
' The Investigating Officer also admitted that although he had taken the petitioners into custody, but had not formally arrested them. The Investigating Officer also admitted that the acquitted co- accused Habib had told him during the investigation the deceased Munir Ahmed had entered their house for committing theft and was caught by Imtiaz and was given beating. All these features, in our view, require deeper examination."
2. Two different versions appear on record about the circumstances in which the deceased was murdered. One is that given by the complainant in the F.I.R. And it is to be noted that the complainant is the brother of the deceased and the other case is the one stated by Muhammad Habib (acquitted accused) father of the appellant in his statement under section 342, Cr.P.C. It would, therefore, be proper to refer both the versions so as to resolve the conflict between the two and to find out which of the two is believable and is supported by the material on record. The prosecution case as set up in the F.I.R. And rendered in English in the leave granting order is to the following effect:-- ' "The prosecution case in brief is that on the fateful day at about 11.00 p.m. Muhammad Hussain complainant accompanied by deceased Muhammad Aslam and Muhammad Islam brought wheat from chak No,219-RB on a tractor trolley to Chak No,279-RB. When they were unloading the wheat, Mukhtar Ahmed petitioner reached there and asked Munir Ahmed deceased to accompany him to his house where a film was being played on VCR in his house. The petitioner Mukhtar Ahmed thus, took Munir Ahmed alongwith him to his house. According to the complainant, till 2.00 a.m.
Munir Ahmed did not return and thus, he alongwith Iqbal and Suba P.Ws. Went to the house of Mukhtar Ahmed to inquire about Munir Ahmed deceased. It was over 2.00 a.m. And when they reached near the house of Mukhtar Ahmed petitioner, they heard the shrieks and cries of the deceased. The complainant pushed the door of the outer gate, which was open and thus, he entered the house of Mukhtar Ahmed petitioner alongwith Iqbal and Suba and saw acquitted co- accused Riaz and Aftab and Mukhtar petitioners armed with Sotas, giving beating to the deceased while Muhammad Habib was raising Lalkara that Munir Ahmed deceased should not be spared.
The complainant saw the occurrence in the light of a bulb in the courtyard. Petitioner Mukhtar Ahmed allegedly gave a Sota blow on the head of Munir Ahmed deceased. Aftab petitioner gave a Sota blow hitting right side of the forehead of Munir Ahmed. Habib accused strangulated Munir Ahmed, who fell on the ground. While Munir Ahmed was lying on the ground, Riaz allegedly inflicted 2 Sota blows on the right upper arm and on the right leg. Petitioner Mukhtar inflicted another Sota blow on the mouth of Munir Ahmed. Aftab inflicted 2 more Sota blows to the deceased hitting on his left arm and left leg. Mukhtar petitioner again inflicted a Sota blow on the right knee of the deceased followed by another Sota blow inflicted by Riaz on the chin of the deceased.
' The motive for the commission of the crime as narrated by the complainant was that the petitioners suspected that the deceased had illicit relations with their sister, namely, Mst. Nasim and thus, on account of the said grouse, they having deceitfully invited the deceased to their house, had killed him."
' The defence version appearing in the statement of Muhammad Habib, the acquitted accused is as under:-- ' "The P.Ws. Have deposed falsely. Munir Ahmed deceased was a vagabond. Munir Ahmed deceased trespassed my house at night for the purpose of theft. On seeing Munir Ahmed in the house, my son Imtiaz raised alarm and caught hold of Munir Ahmed who resisted and was given beating by Imtiaz Ahmed and the residents of the Mohallah. Munir Ahmed was then taken to Police Station Ghulam Muhammad Abad for registration of criminal case by me and others. Munir Ahmed remained in the custody of police and was tortured by the police during that time. The deceased died there at about 6.00 a.m. And after his death due to the grievous injuries inflicted by the police, I and my three sons have been falsely implicated by the police in connivance with the complainant to save their own skin. On the night of alleged occurrence, my three sons Aftab, Mukhtar Ahmed and Riaz were not present in the house as they were on their respective duties."
3. We heard the learned counsel appearing from both sides and went through the record.
' The learned trial Court while discarding the motive given in the F.I.R. Held:-- ' "The motive as alleged in the F.I.R. For the occurrence was that Mukhtar Ahmed accused and others had a suspicion that Munir Ahmed deceased was having illicit relations with Mst. Nasim Akhtar daughter of Muhammad Habib accused and due to this grievance all the accused, in furtherance of their common intention deceitfully took the deceased to their house and caused injuries to him with sotas. Muhammad Hussain P.W.8, who is the complainant in this case stated the same in the examination-in-chief but in the cross-examination he admitted that he did not know as to the illicit relations of Munir Ahmed deceased with Mst. Nasim Akhtar. He deposed that he came to know of it at the time when they were giving him beating and were saying that they would teach him a lesson for 'having the illicit relations with Nasim Akhtar. P.W.4 also deposed in that cross-examination that he did not know that prior to the occurrence, the deceased had illicit relations with Mst. Nasim daughter of Habib accused. He also stated that he did not state before the police that Mst. Nasim had illicit relations with the deceased. The motive as put forward by the prosecution appears to be flimsy on the ground that none of the P.Ws. Was aware of the fact that Munir Ahmed deceased was having illicit relations with Nasim Akhtar d/o Muhammad Habib accused and this fact they came to know allegedly at the time when the accused were giving beating to Munir Ahmed deceased. It looks quite unnatural that the accused would be shouting the motive at the time when they allegedly gave beating to Munir Ahmed deceased especially to implicate their own daughter. As such, the prosecution has failed to prove the motive part of occurrence."
The High Court has agreed with the trial Court that motive has not been proved by the prosecution.
But the High Court was of the view that the case of the prosecution otherwise stood established. It is also to be noted that on the basis of the same evidence mid almost under the similar circumstances the trial Court did not believe the prosecution case against the acquitted accused, therefore, propriety requires that the prosecution evidence must be corroborated by other evidence so as to be made safe basis for finding of guilt against the appellants which, however, is lacking in this case. The learned trial Court as well as the High Court disbelieved the part of evidence wherein it was stated that the deceased was taken from his house by the appellant Munir Ahmed. It is not understandable that when the deceased was allegedly taken by Munir Ahmed to his house at 11.00 a.m. Then why they waited upto 2.00 a.m. In the night to kill him as it was at 2.00 a.m. When the complainant alongwith P.Ws. Appeared at the scene of occurrence and at that time the accused started beating the deceased. This alleged coincidence of witnesses appearing on the spot at that odd hours of the night at 2.00 a.m. And the accused waiting till then and started beating the deceased in the presence of the witnesses to say the least is ridiculous and on such doubtful and suspicious evidence conviction cannot be based. The I.O. Has also expressed his reservation about the genuineness of the case as set up by the prosecution. In view of all the above facts when the prosecution case is not believable and no other explanation is available on record as to why the deceased had entered the house of the complainant side at that mid of the night, then the defence plea even if not strictly proved is to be given weight.
' Consequently, we are of the view that the prosecution has not proved its case beyond doubt and while giving benefit of doubt to the appellants we accept this appeal, set aside the impugned