1977 PLP 37 (SCMR)

WAHEEDUDDIN AHMED, J.‑This appeal, as of right, is against the judgment of the Peshawar High Court, dated the 30th July 1971, in Criminal Appeal No. 147 of 1970. By this judgment, the appeal filed by the State against the acquittal of the appellants, was accepted. The appellants were tried by the learned Additional Sessions Judge, Peshawar, for the murder of Muhammad Ali Shah in Dag Besued on the 10th October 1968, at about 8 p.m. They were charged as under :‑ (1) Under section 302/34, P. P. C. for the murder of Muhammad Ali Shah on the 10th October 1968. (2) Under section 323/34, P. P. C. for causing simple hurts to Mehr Shah P. W. 3 by blunt weapon in the same occurrence. The learned Sessions Judge found all the appellants not guilty of the charges and acquitted them by judgment dated the 17th January 1970. The State challenged this judgment in Criminal Appeal No. 147 of 1970 and a Division Bench of the Peshawar High Court, by judgment dated the 30th July 1971, accepted the appeal and convicted Zarin Shah and Zahir Shah appellants under section 302/34, P. P. C. for the murder of Muhammad Ali Shah deceased in furtherance of their common intention and sentenced each of them to transportation for life. Multan Shah appellant was found guilty of an offence under section 323, P. P. C. for causing simple hurts with blunt weapon to P. W. Mehr Shah and was sentenced to a fine of Rs. 1,000, or in default to undergo three months' R. I. The appellants have filed this appeal as of right and have challenged the judgment of the High Court resulting in their conviction. The prosecution case is that P. W. Mehr Shah had gone to the house of his brother‑in‑law Muhammad Ali Shah deceased, after evening prayer. After chat at the house, they mere to go the hujra. As they came out of the door of the house, the three appellants came out of the shop of Nur‑ud‑Din carpenter. Zahir Shah appellant abused Muhammad Ali Shah and caught hold of him. Zarin Shah appellant stabbed him with a knife. After stabbing, Multan Shah appellant gave soti blow to Muhammad Ali Shah. The deceased then fell down on the ground. P. W. Mehr Shah tried to rescue Muhammad Ali Shah from Zahir Shah accused. It is alleged that Multan Shah appellant gave two blows to P. W. Mehr Shah, one on the head and the other on the back. Rahim Shah P. W. 1 and Ajab Khan P. W. 2, who were passing by the path, also witnessed the occurrence. Muhammad Ali Shah died at the spot and his dead body was removed to his house. The motive for the offence according to the prosecution is that some 6/7 years ago, Mst. Mohammada Jana, sister of Muhammad Ali Shah deceased, was betrothed to Zahir Shah appellant. Zahir Shah was making demand for marriage but Muhammad Ali Shah was delaying it. The prosecution case is supported by Mehr Shah P. W. 3, Rahim Shah P. W. 1 and Ajab Khan P. W.

2. Rahim Shah and Mehr Shah are brothers and their sister was married to deceased Muhammad Ali Shah. P. W. Ajab Khan is not related to the complainant party nor is he inimical to the accused. The eye‑witnesses have given consistent account of the occurrence. Mehr Shah P. W. 3 has been found to be injured on the head by blunt weapon. It may be noted that Zahir Shah and Zarin Shah appellants, in their statements before the Additional Sessions Judge, admitted the presence of Rahim Shah and Mehr Shah at the time of occurrence. The counter‑version of the appellant Zahir Shah is as follows;

"I have a shop which is situated at the one corner of my house with a separate door open towards the lane. I used to keep the shop open even after evening prayers. Rahim Shah, who is a B. D. Member, took exception to it and had told me many occasions to close my shop after evening prayers but I did not agree and continued to keep my shop open even after the evening prayers. On the night of occurrence, Rahim Shah, Mehr Shah P. Ws. Khatam Ali Shah, Maqbul Shah and Muhammad Amin came to my shop and then entered my house. They gave beating to my brother Zarin Shah and my mother Mst. Wara Shana. Mr. Zahural Haq, learned counsel for the appellants, has contended that the prosecution is silent about the injuries on the persons of Zahir Shah and Zarin Shah appellants. According to him, there is no allegation that the above appellants had been injured in the occurrence in question. He con tended that the version of the defence that they were attacked by P. W. 1 Rahim Shah, P. W. 3 Mehr Shah, Maqbool Shah and Muhammad Amin in their shop who had also entered their house and was beaten along with their mother Mst. Wara Shana, should be accepted. This aspect of the case has received our anxious consideration. We are of the view that Zahir Shah and Zarin Shah appellants received injuries in the scuffle that took place between them and Muhammad Ali Shah. We agree with the High Court that such injuries on the persons of two accused could be due to the struggle for the deceased might have put up resistance before he was fatally wounded. In our opinion, there is not an iota of evidence to support the defence contention that the accused were attacked in their own shop. The High Court was right in observing that had this been the case, there must have been marks of some struggle inside the shop. We agree with the High Court that the very fact that the deceased was found injured almost in front of his house negatives the defence contention. The injury on Mst. Wara Shana, mother of the appellants Zahir Shah and Zarin Shah does not also negative the prosecution case. It appears to us that when Mst. Wara Shana heard the commotion outside the house, she reached on the vardat in support of her sons. In the ensuing confusion, she suffered a scratch on her nose and a contusion on the upper end of the left arm. The possibility that these injuries ale self‑made also cannot be ruled out. It has been pointed out by the High Court that Mst. Wara Shana was examined after about 16 hours of the incident at 12‑15 p.m. on the 11th October 1968. No importance therefore, can be attached to the injuries caused on the person of Mst. Wara Shana. In our opinion, the prosecution story so far as appellant Zarin Shah is concerned, appears to have been proved beyond reasonable doubt. The electric bulb; Exh. P. 2, was also recovered from the spot. It is true that this is not mentioned in the P. I. R. but this by itself does not prove that it was not recovered from the spot. The statement of Bahadur Khan P. W. 6 regarding the existence of point `C' from where the bulb, Exb. P. 2, was removed on the 10th October 1968, is very clear. In our opinion, the incident was witnessed by the prosecution witnesses in the light of the above bulb and the prosecution case that Zarin Shah stabbed the deceased cannot be doubted. The case of Zahir Shah appears to be a little different. It is alleged against him that he caught hold of the deceased and Zarin Shah stabbed him. The part attributed to him is little doubtful because in the circumstances of the present case, only one person could have caused the fatal injury. On the facts of the present case, it is doubtful that Zabir Shah had caught hold of the deceased. He is entitled to benefit of doubt. We would, therefore, accept his appeal. So far as Multan Shah appellant is concerned, there is good evidence on the record that he gave injuries to Mehr Shah P. W. He has been rightly convicted under section 323, P. P. C. We see no ground to interfere with his conviction. After carefully going through the evidence produced on the record, we are satisfied that Zarin Shah has been rightly convicted under section 302, P. P. CD for the murder of deceased Muhammad Ali Shah. We have given the benefit of doubt to Zahir Shah appellant. . The case against Multan Shah has also been proved. The conviction against Zarin Shah and Multan Shah is maintained. In the result, the appeal of Zahir Shali is accepted and the appeal of Zarin Shah and Multan Shah is dismissed. Appeal partly accepted.