MIAN BURHANUDDIN KHAN, J.-Ghulam Qadir alias Kharahi appellant, alongwith three others, was tried under section 302/34 on two counts and 392/34, P. P. C., for committing the murder of two persons namely Siraj and Raza Khan on 29-2-1976, at about 4-30 a.m. While travelling in a bus from Pesha--war driven by Gul Rahman complainant, vide judgment of the learned Sessions Judge, Peshawar dated 22-12-1977.
2. While the three co-accused were acquitted, appellant alone was convicted under section 302/34 on two counts and was sentenced to death, and was sentenced to 7 years' R. I. Under section 392/34, P. P. C. And fine of Rs. 500 on each count under section 302/34, P. P. C. Or in default to undergo further six months' R. I. On each default. Amount of fine if realized was ordered to be paid to the heirs of the two deceased as compensation in equal shares:
3. Appellant Ghulam Qadir filed an appeal against his conviction and sentence and Murder Reference to confirm his death sentence was also placed before the Peshawar High Court. His appeal was dismissed by the learned High Court Judges vide judgment dated 16-10-1978, murder reference was ordered in the affirmative and sentence under section 302/34, was ordered to be maintained. Appellant then filed a petition seeking leave to appeal against the said judgment and leave was granted by this Court vide order dated 11-3-1979 to consider whether it was safe to confirm the conviction of the appellant on the retracted contracted confession which needed corrobora--petition i.e. The eye-witnesses examined at the trial did not constitute the ingre--dient of an offence under section 302 as none of the eye-witnesses has deposed to the effect that the appellant was the person who fired and killed the two victims in the bus at the relevant time. As far as conviction under sec--petition 392, leave was refused in view of the statements of Amir Badshah, Khalid Khan and Zahir Shah, P. Ws. Who were robbed - by the appellant of their possession while they were travelling in the same bus wherein the two persons were shot to death.
4. Learned counsel contended that the prosecution evidence consist -of the statement of P. W. Gul Rahman who is father of Siraj one of the two deceased and was examined as P. W. 17 by the trial Judge when he stated that on the day of occurrence at 3-30 a.m. He left Peshawar in a bus, driven by him, to Mingora. His son Siraj deceased and conductor Raza Khan deceased were also with him in the bus in addition to about ten passengers. When the bus reached near village Tarru labba on the G: T'. 'Road, he heard fire shots and simultaneously a person placed his pistol on big head and asked him to vacate the driver's seat and one of the accused took over the steering from him and drove the bus on and the culprit, driving the bus, turned the bus towards the Pabbi-Chirat Road and on the way the deceits, who were accord--ing to him, four in number, dispossessed the passengers of their belongings, and as these persons had muffled their faces, therefore, he could not identify them.
5. Amir Badshah, P. W. 27 stated that he was also one of the passengers in the unfortunate bus. He loaded his pistol as a precautionary measure against any hold up and the person sitting next to him saw him doing so. After the bus crossed village Tarru Jabba, the person sitting next to him (P.
W. 27) suddenly aimed his pistol-at him and asked him to band over his pistol which he (P. W. 27) did out of fear ; and then he (P. W. 3) saw the person sitting near the Driver taking control of the steering, then he heard the report of two shots and deceits, after robbing the passengers, jumped out of the bus and decamped; then the bus was driven to the police station by P. W. 17, Gul Rahman, complainant where he lodged the report and they discovered that two persons were dead as a result of firing inside the bus. Khalid Khan, P. W. 33 also made a similar statement but he did not charge the appellant for firing and killing the two deceased, but this P. W. Was also robbed by the culprits. Similarly, Zahir Shah was also a passenger in the ill-fated bus and saw another passenger, at the point of pistol, taking the pistol from Amir Badshah, and another passenger taking over the control of the bus from complainant Gul Rahman : then he heard firing inside the bus and the culprit drove the bus towards Pabbi Chirat Road, deprived the passengers of their belongings, money and wrist watches etc., and then the culprits jumped down the, bus and ran away. This P. W. Had pointed towards Ghulam Qadir appellant as one of the culprits whom he had later identified before a Magistrate.
6. Learned counsel then referred us to document Exh. Y. Z. Which is statement of Ghulam Qadir alias Kharay recorded by P. W. 26 Muhammad Akbar Khan, Magistrate on 6-5-1976 in his Court room. 1n this statement the appellant has admitted his connivance with the acquitted accused to rob the passengers of the bus which left Peshawar on the fateful day at 3-30 a.m. For Mingora ; that he and the acquitted-accused robbed the passengers of their cash and wrist watches etc. ; that one of the acquitted. Accused Bacha Said took over the control of the bus from Gul Rahman complainant whereupon there was an upheaval in the bus and Izzat Muhammad, another acquitted accused started firing at the passengers but he (appellant) asked him to stop firing ; thereafter the bus stopped and they ran away. In this statement, he had not made any indication of his complicity in the firing and killing of two persons inside the bus rather he exonerates himself of the offence of murder. This confession, as already mentioned, is a retraced confession and had been recorded after long interval since the arrest of the accused appellant.
7. In the light of above discussion we find that the case against the appellant regarding the murder of two persons has not been established beyond - any reasonable doubt. He is, therefore, acquitted of the charge under section 302, P. P. C. On two counts and his death sentence is set aside However, his conviction and sentence under section 392/34 are maintained Appeal allowed to this extent.