The appellants Abdul Malik, Maqbool Hussain and Mauji were convicted by the Additional Sessions Judge at Multan for an offence under section 302 read with section 34 of the Pakistan Penal Code on the allegation that they had in furtherance of their common intention caused the death of Fakharuddin Shah deceased. For this offence all the appel--lants were sentenced to imprisonment for life. In addition Malik was asked to pay a fine of Rs. 4,000 or in default to suffer further rigorous imprisonment for a period of four years. Maqbool Hussain and Mauji were directed to pay fines of Rs. 500 each or in default to suffer further rigorous imprisonment for a period of 6 months. The appellants have filed this appeal jointly against their conviction and sentences.
2 On 29th December, 1973 at about 11-30 a. m. Some persons were digging out sand from a depression near Eidgah in Usmanwala, Multan. While doing so they came upon a dead body which was lying buried in the sand. The discovery of a dead body attracted a number of persons to the depression. Aslam Adeeb (P W. 12) who lived in the vicinity of the depression went to Police Station Saddar, Multan, and lodged the F. I. R. There at about 12.00 noon. After recording the F. I. R., S. I. Iqbal Ahmad (P W.16) who was then S. H. O. At the said police station went to the spot and took over the possession of the dead body. It was in a fairly good condition. Its identity could not be immediately established. S. I. Iqbal Ahmad (P. W. 16) sent it to the hospital for an autopsy and had also some photographs of it taken for the purpose of identifi--cation.
3. The post-mortem examination of the dead body was performed at 1 00 p. m. On the following day, that is, 30th December, 1973, by Dr. Abdul Wahid Khan (P. W. 1) who was at the relevant time posted as Medical Officer in the Civil Hospital at Multan. The doctor found the dead body to be of an adult young man of about 19 to 20 years of age who had been done to death 30 to 40 hours earlier. It had three incised wounds. Two were on the chest and one on the abdomen The wounds on the chest were only skin deep but the one on the abdomen had pierced through the peritonium, cut the mesenteric vessels and ascending colon and injured the mesentery. In the opinion of the doctor this abdominal injury was sufficient in the ordinary course of nature to cause death. The doctor also thought that the death had occurred within a few hours of the receipt of the injuries.
4. On 4th January, 1974 Zainul Abideen (P. W. 3) went to Police Station Saddar and from the clothes found on the dead body and its photographs identified the same to be that of his son Fakharuddin Shah who had been missing from his house since the evening of 28th December, 1973. On the information supplied by him the three appellants were arrested by the Police. After their arrest Mauji and Abdul Malik assis--ted the investigating officer in recovering two knives in February, 1974.
Since these knives were not stained with blood it cannot be said that these had been used for causing the death of the deceased.
5. The appellants pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceas--ed and alleged that they had been falsely implicated. They did not lead any evidence in their defence.
6. The case of the prosecution against the appellants rests mainly on the testimony of Zainul Abideen (P. W. 3). Muhammad Akbar (P. W. 2) and Rahim Dad (P. W. 5). Muhammad Akbar is a tonga driver while Rahim Dad is a newspaper seller. According to the prosecution on the evening of 28th December, 1973 Muhammad Akbar (P. W. 2) had taken the appellants and the deceased from a local cinema to near the place from where the dead body, of the deceased was recovered.
Rahim Dad (P. W. 5) was alleged to have seen while standing near a petrol pump the appellants and the deceased getting down from a Tonga and proceed--ing towards the place of occurrence.
At the trial Muhammad Akbar (P. W. 2) stated that he was unable to identify the persons whom he had taken on his Tonga to the place of occurrence. Similarly Rahim Dad (P. W. 5) deposed that he could not recognise the persons whom he had seen proceeding towards the scene of occurrence at the relevant time. Both Muhammad Akbar (P W. 2) and Rahim Dad (P. W. 5) were declared hostile and were cross-examined. It will thus appear that the testimony of these two witnesses does not in any way further the case of the prosecution against the appellants.
7. Zainul Abideen (P. W. 3) deposed that on the evening preceding the recovery of the dead body he was present in his house with the deceas--ed when all the appellants came there and took away the deceased with them. He admitted to his cross-examination that it was quite usual for the deceased to go out with the appellants in the evening. This being so, the mere fact that on the evening to question the appellants had taken away the deceased with them from his house is by itself not sufficient to B justify the inference that it were the appellants who had also done him to death also.
8. There was also no motive at the time of occurrence for the appel--lants to harm the deceased.
Although Zainul Abideen (P. W. 3) alleged that about 6 months prior to the occurrence Abdul Malik appellant bad got a case registered against the deceased under section 324 of the Pakistan Penal Code for attacking his brother, but he admitted that this case had been subsequently compromised. He also stated that after the compro--mise the deceased would usually go out with the appellants. Quite obvi--ously the compromise must have been a genuine one for it does not appear that Zainul Abideen (P. W. 3) even felt suspicious about the intentions of the appellants when they would come to take him away.
9. In the circumstances 1 am of the view that there is no evidence on " the record which may be taken to be reasonably linking the appellants with the death of the deceased. I, therefore, set aside their conviction and sentences and acquit them of the charge against them. They are already on bail. Their bail bonds shall stand discharged.