1. ' Appellant above-named, being aggrieved by Judgment, dated 2nd August, 1983 of the learned VII Additional Sessions Judge, Karachi, in Criminal Case No, 19/78, by which appellant has been convicted under section 302/34, P. P. C. And sentenced to suffer inprisonment for life and to pay fine of Rs, 5,000 or in default to suffer further R. I. For 6 months, has preferred the above appeal, on the following facts and grounds :- ' Nazimabad police has submitted charge-sheet against the appellant Asad Azhar son of Azharul Haq Siddiqi and one absconding co-accused Shahid Azim son of Muhammad Azim Ali Khan to face trial for offence under section 302/34, P. P. C. For having committed intentional murder of the deceased Akhtar Ali Moghal by giving him churn I injuries. The incident of murder had taken place on 8th December, 1977 at about 7 p. m The Police Sub-Inspector Shamshad Ali of Police Station, Nazimaba recorded 154 statement of the injured Akhtar All Exh. 7 on the same nigh at 2200 hours in the hospital. The injured had given full description o the incident involving appellant Asad Azhar and co-accused Shahid Azim The 154, Cr. P. C. Statement was corroborated as F. I. R. No, 208/77 o Police Station Nazimabad. The F. I. R. Is produced as Exh. 39/B. Th injured Akhtar All Moghal died, on 10th December, 1977, which resulte in converting F. I. R. 208/77 registered for offence under section 307/34 P. P. C. To section 302/34, P. P. C. The appellant Asad Azhar an co-accused Shahid Azim were apprehended. Investigation was completed and then charge-sheet was submitted in the Court.
2. ' The charge for offence under section 302 read with 34, P. P. C. Had been read over and explained to the appellant Asad Azhar. The appellant had pleaded not guilty. The appellant had further claimed to be tried according to law.
3. ' The prosecution had examined P. Ws. Mansoor Ahmed Exh, 6, Wiqar Ahmed Exh. 9, Abdul Rahim Khan Exh. 10, Shaishta Zubairi Exh. 13, Abdullah Khan Exh. 14, Muhammad Saddiq Exh. 18, Bahadur Exh.
4. 20, Abdul Majid Exh. 31, Muhammad Ayub Khan Exh.
34. Shamshad Ali Exh. 39 to prove the case against the appellant. The Court had examined witnesses Muhammad Lateef Exh. 37 and Exh. 38 twice to establish that P. Ws. Shabbir Hussain, Aejaz Hussain, Rafiq Moghal, Dr. Nasarullab cannot be served for appearance in the Court to give evidence on behalf of the prosecution. The same witness had further stated that absconding accused Shahid Azim would not be arrested to stand trial. The appellant Asad Azhar has not examined any witness in defence.
5. ' Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as hereinabove mentioned, after having separated the case of absconding co-accused and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of above appeal.
6. ' The learned Advocate for the appellant in support of the above appeal submitted, that the alleged dying declaration has not been legally proved. There is contradiction between the said dying declaration and the statements of P. Ws. 1, 2 and 4 regarding the part actually alleged to have been played by the appellant. The learned counsel further submitted, that the learned trial Court has not at all considered the question of applicability of section 34, P. P. C. While convicting the appellant under section 302/34, P. P. C.
7. ' The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned Judgment, as dying declaration has not legally been proved and furthermore there is a discrepancy regarding the part played by the present appellant between the dying declaration and the statements of P. Ws. 1, 2 and 4. In addition to this, the learned trial Court has not even considered the applicability of section 34, P. P. C. On the basis of evidence on record and has also failed to consider the fact that P. Ws. I, 2 and 4 on account of the admitted enmity between the present appellant and these P. Ws. As a result of earlier admitted incidents, their statements required independent corroboration, which in the present case is not at all available.
8. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned judgment.
9. It is an admitted position, that P. W. I, P. W. 2 and P. W. 4 the alleged eye-witnesses of the incident in question are closely related to the deceased, Akhtarali and in the face of admitted enmity between the parties on account of earlier fights between P. W. 2 Waqar Ahmed and P. W. 1 Mansoor Ahmed, on one hand and appellant on the other their 4 statements required independent corroboration, as rightly conceded by learned counsel appearing for the State. This legal aspect was not at all considered by the learned trial Court. However, I find learned trial Court also relied upon the dying declaration of the eceased, as corroborative piece of evidence and as such I have carefully considered the contents of .The alleged dying declaration of the deceased which is Exh, 7, which was also treated as F. I. R. According to this alleged dying declaration present appellant called absconding co-accused and asked him to beat the deceased. Except for this part assigned to present appellant in said alleged dying declaration, the deceased had attributed no other part to the present appellant in respect of chhuri injuries received by him, at the hands of absconding co- accused. But P. Ws. 1, 2 and 4 in their statements before the learned trial Court stated, that present appellant caught hold of deceased and facilitated absconding co-accused to give chhuri blows to the deceased. In view of this there is material contradiction between the statements of P. Ws. 1, 2 and 4 and said alleged dying declaration, regarding the actual part played by the present appellant in the incident in question, in which deceased received chhuri injuries and as such said dyin declaration does not corroborate statements of P. Ws, 1, 2 and 4 at all, a far as part assigned to present appellant by P. Ws. 1, 2 and 4. In view of this also presence of P. Ws. 1, 2 and 4 at the time of incident becomes doubtful and even if their presence is presumed, it is clear that these P. Ws. Have tried to exaggerate part played by the present appellant in the said incident and on this ground also their statements required independent corroboration, which in my opinion is not at all available in present case. Even I find that dying declaration of the deceased was not proved in accordance with law, as no P. Ws. Produced to prove the said declaration narrated the contents thereof in their statements and as such it ought to have been discarded. This view of mine is fully supported by case C reported in PLD 1978 Kar.
710. It may further be noted that according to P. W. 6 Muhammad Saddik, one Shabeer asked absconding co-accused Shahid to remonstrate with P. W. Waqar on account of the fact, that Waqar was teasing his sister and consequently this P. W. Alongwith co-accused and said boy went to the house of P. W. Waqar, when P. W. Waqar threatened absconding co-accused and Shabeer.
10. This statement shows, that absconding co-accused was involved in this matter at the request of boy Shabeer and not present appellant. Appellant has in his statement under section 342, Cr. P. C.
11. Denied instigating absconding co-accused to attack deceased as well as the fact that he caught hold of deceased as alleged by P. Ws. 1, 2 and 4. There was no blood at all at place of vardat and as such it also creates doubt, whether incident really took place at alleged vardat or somewhere else.
12. Learned trial Court, I find has not at all applied its mind, about the applicability of the provisions of section 34, P. P. C., as far as present appellant is concerned, but has convicted the appellant under section 302/ 34, P. P. C. In spite of this. I have carefully considered prosecution evidence brought on record and I find nothing on record to suggest that present appellant, even if he was present at the time of incident and did tell absconding co-accused to beat the deceased, as alleged in dying declaration, shared the common intention of absconding co-accused for giving chhuri blows to the deceased and consequently conviction of the appellant for said murder under section 302, P. P.
13. C. Read with section 34, P. P. C. Has not been proved beyond reasonable doubt. The cases reported in PLD 1978 SC 171 and PLD 1979 Kar. 72 relied upon by learned counsel for appellant in this connection are fully applicable to the facts of the present case.
14. Therefore, I allow the above appeal and set aside conviction of the_ appellant and sentences awarded to him by impugned judgment and acquit him by giving him benefit of doubt and direct that appellant be released forthwith, if not required in any other case.