1994 P Cr (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

Ashfaq Ahmad, Muhammad Adam and Muhammad Amer had been tried by a learned Special Court for Speedy Trials constituted under the Special Courts for Speedy Trials Act of 1992 for Gujranwala, for committing lurking house trespass and house breaking by night into the house of one Dr. Ghulam Mustafa; for committing robbery in the said house and for also having murdered the said Dr. Ghulam Mustafa in prosecution of the common object of them all.

2. Amer accused was found entitled to the benefit of doubt and was consequently acquitted. Ashfaq and Aslam had, however, been found guilty of all the said charges and upon their conviction under section 302/34, P.P.C., each one of them had been sentenced to death by way of Tazeer with a further direction to each one of them to pay Rs.50,000 as compensation or to suffer six months' R.I. in default of payment of the said compensation to the heirs of the said deceased; upon their conviction under section 392/34, P.P.C. each one of them had been sentenced to ten years' R.I. with a fine of Rs.1,00,000 or three years' R.I. in default of payment of fine and in pursuance of their conviction under section 460, P.P.C., each one of them had been ordered to undergo ten years' R.I. In case of alteration of sentence of death awarded to these two convicts, the sentences of imprisonment were directed to run concurrently and the two convicts were in that case also to be allowed the benefit of the provisions of section 382-B of the Cr.P.C. This was vide judgment, dated 21-7-1993 passed by the above-mentioned learned trial Court.

3. These two convicts call in question the above-noticed convictions and sentences recorded against them through the present appeal bearing Criminal Appeal No. 15 of 1993 which is being disposed of through this judgment.

4. The occurrence in question had taken place at about 1-00 a.m. on the night between 4th and 5th of June, 1991 in the house of Dr. Ghulam Mustafa deceased situate in Mauza Dhillam about four miles from Police Station Sambrial in District Sialkot. The same had been reported to Muhammad Amin, Inspector/S.H.O. of the said police station on 5-6-1991 at about 10-3Q a.m. by one Mst. Razia Begum while the former was present at Adda Bhopal Wala and on the statement of the said Mst. Razia Begum, recorded by the said Police Officer (Exh.P.D.), a formal F.I.R. bearing No.153 (Exh.P.C.) was recorded at the above-mentioned police station at about 11-00 a.m.

5. Before going into any further facts and details of the present case, it may be mentioned at the outset that Ashfaq appellant is a nephew of Dr. Ghulam Mustafa deceased being the son of an elder brother of the said deceased, namely, Zafarullah. Mst. Razia Begum complainant above mentioned is an unmarried sister of the deceased who was about 55 years of age and is thus a Phuphi of Ashfaq appellant. Mst. Khurshid Begum is another sister of the deceased who is a divorcee and is about 70 years of age. Mst.Hakam Bibi is the mother of the deceased of the present case. All these brothers and sisters, i.e. Dr. Ghulam Mustafa deceased, Zafarullah who is the father of Ashfaq appellant, Mst. Razia Begum complainant, Mst. Khurshid Begum and their mother Mst. Hakam Bibi live jointly in the same house. Zafarullah, the father of the appellant, Mst. Razia Begum, Mst. Khurshid Begum and Mst. Hakam Bibi were all cited as the eye-witnesses of the occurrence in question out of whom, Mst. Razia Begum complaitlant appeared at the trial as P.W.6 while Mst. Khurshid Begum and Zafarullah were examined at the trial as P.W.7 and P.W.8, respectively. Mst. Hakam Bibi, the mother of the deceased had, however, been given up.

6. Aslam appellant is stated to be a friend of Ashfaq appellant.

7. Mst. Razia Bibi complainant had informed Muhammad Amin L/S.H.O. that Dr. Ghulam Mustafa deceased who was living in London returned home about two years ago and was constructing his house. She had added that on the night of occurrence, she went off to sleep in the courtyard of the said house alongwith Mst. Khurshid Begum and Mst. Hakam Bibi while Ghulam Mustafa deceased went off to sleep in his bedroom after bolting the same from inside. She had further stated that she suddenly woke up at about 1-00 a.m. and found three persons, namely Ashfaq appellant armed with a rifle, Aslam appellant also armed with rifle and Amer accused armed with .12 bore gur, standing in the courtyard who directed the complainant to remain quiet. She had further claimed that Ashfaq appellant started breaking the window of the room of the deceased at which the deceased, Mst. Khurshid. Begum and their mother Mst. Hakam Bibi also woke up whereafter, Ashfaq appellant and his other companions entered the bedroom of the deceased through he above-mentioned window. The complainant had further alleged that just as Ghulam Mustafa was about to get up from his bed, Ashfaq and Aslam appellants fired shots from their respective weapons which hit the deceased who fell back on his cot. Mst. Razia Begum had gone on to add that Ashfaq appellant then demanded keys of the room from her and on her reply that she did not have any such keys, all the three above-mentioned persons started searching the rooms and took out a bundle from a box containing two gold bangles, four gold rings, two pairs of ear-rings and some cash in the form of sterling pounds besides a passport and other documents. She had further informed the Police Officer that she then raised alarm at which, her brother Zafarullah came to the spot after hearing the said alarm upon which, the above-mentioned accused persons raft away from the place of occurrence and were seen so running away by Zafarullah P.W. According to her, Dr. Ghulain Mustafa deceased had succumbed to the injuries at the very place of occurrence.

8. Disclosing the motive for the said occurrence, the complainant had stated that Ashfaq appellant had requested Ghulam Mustafa deceased to take him abroad at which, the deceased had asked the said appellant to mend his ways and it was on account of this grievance that Ashfaq appellant and his companions had killed Ghulam Mustafa deceased. The complainant had further- added that while leaving the place of occurrence, the accused persons had pushed Mst. Hakam Bibi who fell down and had received an injury on her back.

9. The investigation had been originally commenced by Muhammad Amin L/S.H.O. (P.W.11) and during the spot inspection, the only incriminating article that he could find, was the blood-stained earth which he recovered vide memo Exh.P.F. He claims to have looked for the accused persons who were, however, not available. Ashfaq appellant appeared before him on 3-7-1991 and pleaded innocence. Aslam appellant was produced before him on 7-7-1991 who also pleaded innocence. According to this 1.0., the investigation conducted by him till 11-11-1991 did not yield enough material justifying the arrest of these accused persons and he consequently deferred their arrest. The investigation was then transferred to the Superintendent of Police of C.I.A., Gujranwala on 21-7-1991 who also did not arrest the accused persons which after changing a couple of more hands, finally reached Muhammad Zaman D.S.P., who also initially deferred the arrest of the two appellants but finally took them into custody on 27-11-1991. It may be mentioned here that Amer accused had been formally arrested by Muhammad Amin I./S.H.O. on 27-6-1992 while he stood released on bail before arrest. Muhammad Zaman, D.S.P. (P.W.12) obtained remand of the two appellants which continued for fourteen days and no recovery of whatsoever i.e. either of the weapons of offence or of any of the allegedly stolen articles, could be affected from them.

10. When confronted with the prosecution case, Aslam appellant denied his involvement in the occurrence in question and submitted that he had been falsoly implicated only on account of his friendship with Ashfaq appellant. 11\ Ashfaq appellant when examined under section 342, Cr.P.C., admitted that Zefarullah (P.W.8) was his real father; that Mst. Razia Begum complainant (P.W.6) and Mst. Khurshid Begum (P.W.7) were the real sisters of his said father and that Dr. Ghulam Mustafa deceased was a younger brother of his father who was living in England and had come to Pakistan after about eighteen years. He, however, denied his involvement in the occurrence in question; claimed false implication and pleaded innocence by stating that his paternal-aunts, namely, Mst. Razia and Mst. Khurshid P.Ws. were stubborn in nature and were cruel ladies; that they had never allowed the families of their brothers to live in their house; that they turned out Ataullah P.W. (another brother of the deceased) and his family from their house in 1980 and since then he was living in Lahore; that they also turned out the appellant's mother from their house due to which his mother took him and his sister Mst. Nusrat Bibi to the house of their maternal-grandmother in the village where the appellant and his sister were brought up; that his mother died in the year 1986 and thereafter the appellant shifted to the house of his mother's sister in village Wadala Cheema while the appellant's sister shifted to the house of another sister of their mother; that his father Zafarullah P.W. did not bring him and his sister to his house even after the death of their mother because of the influence and the fear of his sisters, namely, Mst. Razia Begum and Mst. Khurshid Begum P.Ws.; that his mother died as a patient of T.B. in Mauza Ferozwala in the house of her sister but his father Zafarullah P.W. never cared even to attend her funeral; that Ghulam Mustafa deceased who was a paternal-uncle of the appellant returned to Pakistan in the year 1981 and he came to Mauza Wadala Cheema where the appellant and his sister were living and took them both to his house where they started living with the deceased and their father; that the appellant's wife was not allowed to visit that house and that his father and aunts etc. had not even attended the appellant's marriage; that during his stay in the house of the deceased, Mst. Razia Begum and Mst. Khurshid Begum P.Ws., used to pick up quarrels with the appellant but he was always pacified by the deceased and the deceased even used to check the said ladies in this regard due to which, both these aunts had become annoyed; that whenever the appellant complained to his father about the conduct of his sisters, he always took sides with his sisters; that the appellant lived in the family home for about one year and thereafter went back to Mauza Wadala Cheema due to the misbehaviour of his paternal-aunts; that his deceased uncle, however, used to call him occasionally whenever the deceased required the appellant's help; that Waheed, a son of Mst. Khurshid Begum P.W. had been taken to England by the deceased in the year 1981 and after the return of the deceased to Pakistan, the said Waheed had become the incharge of the property and other business of the deceased in England; that the appellant's intimacy with the deceased caused worries to Mst. Khurshid Begum and Mst. Razia Begum P.Ws. apprehending tJiat he might become a danger to the monopoly of the said Waheed vis-a-vis the property of the deceased as a result of which, the said two ladies became his enemies; that the deceased had been murdered during the dark hours of the night which murder had gone unwitnessed and the two said sisters of the deceased, taking undue advantage of this murder, had got the appellant and his co-accused falsely implicated in the present case; chat after the death of the deceased, Ataullah P.W. (the other brother of the deceased) had grabbed the property of the deceased in Pakistan while the above mentioned son of Mst. Khurshid Begum P.W. was enjoying the property of the deceased in England and finally that his father Zafarullah P.W. was under the influence of his sisters and he had also made a false statement against the appellant due to the pressure and the influence of the said sisters.

12. Canvassing acquittal for the appellants, Sardar Muhammad Latif Khan Khosa, Advocate, contended that there was a delay of about ten hours in the recording of the F.I.R. when the police station was only four miles away from the place of occurrence and was connected with a Pacca road and that the F.I.R. which was the result of consultations and fabrications, was not an honest narration of facts and had even been recorded after preliminary investigation. He had added that the motive set up by the prosecution was false or at least inadequate. He relied upon the additional motive pleaded at the trial i.e. the theft of V.C.R. etc. to claim the worthlessness of the said motive. The learned counsel also referred us to various improvements made by the alleged eye witnesses while deposing at the trial to argue that these eye-witnesses had not seen the occurrence and had implicated Ashfaq appellant and his friend, only on account of suspicion and malice. He vehemently argued that Ashfaq appellant should not be condemned only because his real father and his real Phuphis had deposed against him which' apparently appears to be foolproof evidence of the appellant's guilt, because Zafarullah P.W. was a father of Ashfaq appellant, only in law but was otherwise devoid of all fatherly emotions towards the said appellant and similar was the position of the two Phuphis who had deposed against Ashfaq appellant and his co-convict. The learned counsel went on to add that Zafarullah P.W., the father of Ashfaq appellant who was an old man of 70 years of age was under such an influence of his two above mentioned sisters, that he never let the appellant's mother live with him and did not even bother for the treatment of the appellant's mother while she had become a T.B. patient; did not even care to attend her funeral or to bring her body to his village for burial or even to find out her, where and in what circumstances, was his son and young daughter living. The precise submission of the learned counsel was that on account of the spell of his sisters, one of whom was a spinster even at the age of 55 and the other of whom was a divorcee for more than 30 years and who were both living oti their brothers, the father of the appellant had become completely devoid of any emotions or attachment either as a husband or as a father and in the circumstances, the blind faith which could ordinarily be placed on the testimony of a father against his son or an aunt against his nephew, was not justified in the present case.

13. It was admitted by Mst. Razia Begum complainant that the wife of their brother Zafarullah P.W. who was the mother of Ashfaq appellant was no stranger but was the granddaughter of an elder brother of her father; that she lived with them only for four years after her marriage whereafter she had been abandoned by Zafarullah P.W. alongwith the appellant and his sister for reasons not known to her; that thereafter Mst. Sughran Bibi, the mother of Ashfaq appellant had started living in the house of her father and after the death of her father, she had taken up residence with one of her married sisters and it was while she was in her sister's house, that she died in the year 1984 in village Ferozewala; that after the death of their mother, the appellant and her sister had continued to live in the house of their Khala; that Ashfaq appellant got married and neither his father Zafarullah P.W. nor any of his Phuphis i.e. the complainant herself and Mst. Khurshid Begum etc., attended the marriage and finally that Ashfaq used to occasionally come to his parental home and used to insult them.

14. Zafarullah P.W. also stated' that he had got married in the year 1954 that his wife lived in his house for about four years while Mst. Khurshid Begum P.W. was also living in the same house; that after staying with him for four years, his wife went away to her parents' house; that his daughter Mst. r4usrat was three years younger to Ashfaq appellant; that his wife's father dieei in the year 1987 whereafter his wife shifted to the house of her sister where she remained till her death; that his wife was getting treatment for T.B. in village Ferozewala where she lived with her sister; that Ashfaq appellant an(I his sister Mst. Nusrat lived throughout with their mother till her death; that even after the death of their mother, he did not bring his said children to his house; that when Ashfaq appellant got married, neither he nor his sisters attended his wedding; that Ashfaq appellant had a daughter who was about three years old and that neither he nor any of his brothers or sisters visited Ashfaq appellant even on the birth of his said daughter and finally that he did not bring the dead body of his wife to his village after her death.

15. From these admitted facts, it appears that Zafarullah P.W. was a strange kind of a father. He abandoned his wife who even otherwise happened to be closely related to him, only four years after his marriage. No reason was stated for such an abandonment. He appears never to have looked back, for almost 30 years, at his wife who lived at the mercy of her parents and after their death even when she lay at the door of her married sister in some village Ferozewala in District Gujranwala. She contracted a deadly disease of T.B. and received treatment in village Ferozewala. What kind of a treatment she must have received there in that village especially when she had no source of income of her own is anybody's guess. She died in her sister's house and the husband did not, even after her death, develop any feelings for her and did not bother to let her dead body be buried in her matrimonial village even after her death. Ordinarily, despite absence of feelings for the wife, people do not abandon their children. In the case of Zafarullah P.W., both his children i.e. Ashfaq appellant and Mst. Nusrat Bibi were born in the house of their grandfather. After his death, they also shifted to the house of their Khala alongwith their mother. Zafarullah never appears to have bothered about his children. Let alone the boy, he never appears to have cared even to find out how, in what state, where and with whom his young daughter was living.

16. In the circumstances, the submission of the learned counsel for the appellants that Zafarullah P.W. might legally be the father of Ashfaq appellant but in fact he had never acted like a father to him nor had he ever developed or possessed any paternal feelings towards the said appellant appears to have force. We cannot also resist noticing that Zafarullah P.W's. conduct towards his young daughter who according to him, is only three years younger to the appellant and would thus now be about 22 years of age, is far from being a fatherly conduct. It was never even hinted by Zafarullah P.W. that he had demonstrated such a conduct towards his two children on account of any fault on their part which makes things even worse. Such a conduct of Zafarullah P.W. compels us to hold that he was devoid of all fatherly emotions vis-a-vis his children and though he may well legally be the father of Ashfaq appellant but while appreciating his testimony, the same could not be credited with the same respect which ordinarily a father's testimony against his son, would deserve.

17. Ashfaq appellant had pleaded that his two aunts, namely, Mst. Razia Begum complainant and Mst. Khurshid Begum P.W. were living on their brothers and they never wanted their brothers to have any families which could endanger their parasitical survival on their brothers.

18. It may be mentioned here that Dr. Ghulam Mustafa deceased was 55 years of age and was still a bachelor and that it was a son of Mst. Khurshid Begum P.W. who had started living with the deceased in England and was lookiqg after his business interests.

19. As has been mentioned above, Zafarullah P.W. admitted that after his marriage, his wife lived with him only for four years and during this period, his sister Mst. Khurshid Begum P.W. was living with him. He further stated that after these four years, his wife went away to her parents' house. The reason offered by him is the old age of the parents of his wife. This reason is obviously not convincing because it is on record that even after the death of her parents, Zafarullah P.W. never brought his wife back to his house. In any case, he offers no reason for having abandoned his only son and his only daughter who from their very birth had lived away from their parental home and who even after the death of their mother had never been brought back by Zafarullah P.W. In the absence of there being any reasonable and plausible excuse for such an abandonment of his wife and children, the claim of Ashfaq appellant that the brothers were under some kind of influence and spell of their sisters who were living with them and that these sisters never desired their brothers to have any families, does not appear to be an unreasonable explanation and the same inspires confidence. We, therefore, find that no special credit can be attached to the testimony of the three eye-witnesses of the present case only because they happened to be the father and the paternal-aunts of Ashfaq appellant against whom these three were deposing.

20. The occurrence in the present case had taken place in the dead of the night at about 1-00 a.m. The report of this occurrence had been made to the police at 10-30 a.m. when Muhammad Amin L/S.H.O. had allegedly recorded the statement of Mst. Razia Begum complainant which is after nine and a half hours of the occurrence and when the police station was only about four miles away from the place of occurrence. No reasonable explanation is forthcoming as to what was it which had taken the complainant party more than nine hours to reach the police with the information regarding the incident in question. It may also be noticed here that Mst. Razia Begum complainant had stated that she had left for the police station alongwith his brother Zafarullah P.W. at about 6-00 a.m. while Zafarullah P.W. claimed that they had left for the police station at about 9-00 a.m. As if this was not enough, Ataullah, another brother of the complainant who appears as P.W.10 stated that on the night of occurrence he was in his house at Lahore where he had telephonically be informed of the occurrence by his son who was a Major in the Army and w posted at Gujranwala Cantt. He claimed to have reached the village at 11 a.m. and claimed that the police had still not reached the spot by then and it was he who then went and brought the police to the spot. In view of this delay in the lodging of the report of the occurrence in question with the police which does not stand reasonably explained, the possibility of the assailants having escaped unidentified and the time having been consumed in consultations and fabrications, could not be ruled out.

21. While narrating the occurrence, Mst. Razia Begum complainant mentioned only herself, Mst. Khurshid Begum P.W. and their mother Mst. Hakam Bibi having gone off to sleep in the courtyard of the house whip the deceased was stated to have slept in his bedroom. No mention had been made in the F.I.R. of Zafarullah P.W. also being present in the house and;-being available there. This omission becomes pertinent when it is on record that he has his Dera as well which is about two furlongs away from this house. Mst. Razia Begum complainant had further mentioned in the F.I.R. that it was on hearing the alarm that Zafarullah P.W. had reached the spot and had reached there at a stage when the assailants were leaving the place of occurrence and he had only seen them leaving the house of occurrence. Definite improvements were made at the trial when Zafarullah P.W. was put off to sleep on the roof of the house where the occurrence had taken place. Zafaruflah P.W. also claimed consequently that he was sleeping on the roof top at the time of occurrence and added that he had climbed down into the courtyard from where he had seen the entire occurrence. While under cross-examination he, however, admitted that he had heard the report of firing while he was present on the roof top; that he remained standing on the roof during the entire occurrence; that he did not come down due to the fear of the accused as they were armed; that he had raised alarm while standing at the roof top asking the inhabitants of the area to rush and to rescue the victim and that nobody had, however, responded.

22. Such a discrepant stance taken by these alleged eye-witnesses poses a rather serious question about the presence of Zafarullah P.W. in the house where the occurrence had taken place and of his having witnessed the same. There are different versions about his presence in the house and about the point from where he had seen the occurrence. Needless to say that on a dark night, it would have been impossible for Zafarullah P.W. to have witnessed all the details about the occurrence which he claims to have seen. Needless to say that the doubt, if any arising, has to be resolved in favour of the accused persons.

23. It was quite a coincident that Mst. Razia Begum complainant suddenly woke up just when' the appellants happened to be standing armed in the courtyard of the house in question. The other witnesses, namely, Mst. Khurshid Begum P.W. and Mst. Hakam Bibi (given up) were stated to have woken up when Ashfaq appellant had started breaking the grill of the window of the room where the deceased was sleeping and the further improvement was that it was when this grill of the window had fallen on the ground that the noise thus caused, had woken up Mst. Khurshid Begum and Mst. Hakam Bibi. From the medical evidence it is evident that the two fire-arm injuries on the person of the deceased had been caused by pellets but these pellets appear to have entered the two seats of injuries in the form of two groups emanating from each shot. Such an entry would, to a lay man, obviously appear to be a bullet wound. In the F.I.R., the complainant had put Rifles in the hands of Ashfaq and Aslam appellants while a .12 bore gun had been placed in the hands of the third accused, namely, Amer. At the trial, the rifles of Ashfaq and Aslam appellants had been made the .12 bore guns obviously to bring this part of ocular testimony in accord with the medical evidence. Mst. Razia Begum complainant tried to clarify that she had mentioned the weapons in the hands of Ashfaq and Adam appellants as rifles because she did not know the difference between a rifle and a gun. Such a clarification would ordinarily be acceptable but in the present case, it is pertinent to notice that the complainant is a highly educated lady who holds a Master's degree and from her own conduct it becomes unbelievable that she did not know the difference between a rifle and a gun because while she had described the fire-arm weapons being held by Ashfaq and Aslam appellants as rifles, she had described the weapon carried by Amer accused as a .12 bore gun. In the F.I.R. it had been claimed that Ashfaq and Aslam appellants were accompanied by a stranger whom the witnesses could identify but at the trial this third alleged companion of the two appellants was stated to be Amer who was further stated to be a close friend of Ashfaq appellant who had been visiting the house of the complainant party with Ashfaq appellant on more than one occasions and was thus, known to the witnesses. This is yet another improvement which militates against the veracity of the ocular testimony.

24. While describing the articles which had been taken away by the appellants after the murder of the deceased, it had been claimed through the F.I.R. that the bundle taken away contained two gold bangles; four gold rings, two pairs of ear-rings and some sterling pounds. Interestingly enough, at the trial, these some sterling pounds became 1,50,000 pounds which is equivalent of about seventy-five lacs in Pakistani rupees. The eye-witnesses had claimed that the box in which the bundle containing all these gold ornaments and such a huge amount of cash had been broken but the 1.0s. found no such broken box at the place of occurrence.

25. The motive as originally set up was that Ashfaq appellant had felt aggrieved of the remarks of the deceased who had asked the appellant to mend his ways before he could be taken to England. At the trial it had been added that the appellants had earlier stolen away a V.C.R. and a Video Camera of the deceased which articles the deceased used to persistently claim from the appellants and this was another reason why the appellants had done the deceased to death.

26. It had been claimed by the eye-witnesses that the appellants had entered the room of the deceased after breaking the grill of the window of that room. It had been further stated that at least two of the witnesses, namely, Mst. Khurshid Begum and Mst. Hakam Bibi had woken up on hearing the noise of the grill hitting the ground after being separated from the window. Neither the I.Os. nor the draftsman had found any broken grill at the place of occurrence. The grill in fact had been found placed in the very window of the room in question when they had visited the place of occurrence.

27. The time of occurrence was the darkest possible hour of the night which is obviously chosen by the culprits to conceal their identity, yet the alleged assailants of the present occurrence had neither muffled their faces nor had they taken any other step to conceal their identity after the eye-witnesses had allegedly woken up. The appellants in fact are stated to have engaged themselves in conversation with their own kith and kin thus allegedly negating the very purpose of their having chosen such a dark hour of the night of commit the offences in question.

28. All these discrepancies, improvements and other facts and circumstances above-noticed do point out towards the possibility of the occurrence in question having gone unwitnessed and the assailants having escaped unidentified from the place of occurrence in the darkness of the night. The possibility thus could not be ruled out that Ashfaq appellant and his friends had been implicated by the complainant out of sheer suspicion and spite. Though it is hard to believe that a father would ever falsely accuse his own son of the charge which could result in the condemnation of his son to death but in the peculiar circumstances of the present case, as above-noticed, the possibility of Zafarullah P.W. having been duped into believing that it was his son who had committed the murder in question and consequently the old man having so deposed, could not be ruled out.

29. Needless to mention that despite the two appellants having remained on remand for fourteen days, nothing at all was ever recovered from them or at their instance, including any weapon of offence or any of the articles and cash allegedly stolen from the place of occurrence. It has also come on record that the complainant party was locked up in serious litigation with the inhabitants of the village on account of litigation over a piece of land and Ghulam Mustafa deceased had even been, on an earlier occasion in 1960, challaned for the murder of one Jiwan Taili of their village but had secured an acquittal of the, said murder. The deceased thus had enemies in the village.

30. The comulative effect of the above discussion is, that the possibility of the two appellants having been involved merely on account of suspicion, could not be ruled out. Consequently, we find that it could not be said that the prosecution had succeeded in proving its case against the two appellants beyond all reasonable doubts.

31. The result is that the convictions and sentences recorded against Ashfaq Ahmad and Aslam appellants under section 302/34, under section E 392/34 and under section 460, P.P.C. are set aside and both the appellants are acquitted of the said charges levelled against them. They shall be set at liberty forthwith if not required to be detained in any other case.

32. Criminal Appeal No.15 of 1993 is allowed in the above terms. N.H.Q./111/SAC Appeal allowed.