' MIAN BURHANUDDIN KHAN, J.-This is an appeal as of right against the judgment and order of the Peshawar High Court dated 26.9-1982 passed in Criminal Case No, 140 of 1979.
2. Appellant Gul Muhammad, alongwith the absconding accused, was tried by the learned Sessions Judge, Nowshera under section 302 for committing the murder of Hamid Gul, deceased in furtherance of their commit intention, by firing at him on 29-6-1977 at a. m. Within the limits of village Kotarpan, Tehsil Nowshera, and taking away the bicycle and the shot-gun of the deceased, vide judgment dated 3j-1-1979, and was acquitted of the charges. An appeal was filed by complainant in the Peshawar High Court against his acquittal and the learned Judges, vide their judgment dated 26-9-1982, accept the appeal and convicted the accused/appellant under section 302, P. P. C. Read with section 34, P. P. C. And sentenced him to life imprisonments and a one of Rs, 2,000 or in default, to undergo further R.. L for one year. Mount of fine, if realized, was ordered to be paid to the heirs of the decade. Appeal as regards the charge under section- 404, P. P. C. Was rejected. Against the impugned judgment of the High Court the accused/appellant has file this appeal.
3. According to tl a prosecution, on the day of occurrence 1. e. 29-6-1977 at 6-30 a. m. Hamid Gul deceased, while proceeding on a bicycle to assume his duty in the Power House, Mardan when he reached sugar crushing machine of one Ajun Khan, he saw the absconding accused Hunar Din, armed with a shot-gun, Umra Khan absconding accused also armed with a shot-gun and Dad Khan absconding accused armed with a 303 bore pistol, alongwith Muhammad Gul accused/appellant, who was empty-handed. When the deceased reached near them, Dad Khan and Gul Muhammad accused allegedly caught hold of him, while Hunar Din and Umra Khan fired two shots with their respective guns which hit the deceased and the accused decamped from the spot; and Dauran Khan P. W. 4 and Naeem Shah P. W. 5 reached the scene of occurrence, took the injured to the Police Station Risalpur in a van where he himself lodged the report Exh. P. A. At 7-15 a.
In. After recording the report Hamid Gul injured was shifted to the Lady Reading Hospital, Peshawar where he died on 30-6.1977.
4. Motive assigned for the crime is that one and a half years prior to the occurrence a quarrel took place between the deceased and Hunar Din absconding accused over a bandolier of a shot-gun.
Dr. Khurshid Ahmad who had examined the deceased had found the following injuries:
(I) a fire-arm entrance wound on the lateral aspect of upper part of left upper arm 2.1/2" x 1.1/2' and more than skin deep charring present around the wound
(ii) a fire-arm exit wound on the medial aspect of upper part of left upper arm 6' x with fracture of upper 1/3rd of left humerous bone
(iii) a fire-arm entrance wound on the front left side chest 1.1/2 x 1.1/2 more than skin deep
(iv) Corresponding marks alongwith charring present on the shirt of Hamid Gul Dr. Khurshid was not available during the trial, therefore, the post-mortem report Exh. P. K. Was proved through Dr. Iftikhar Ali Khilji P. W.
10.
5. The eye-witnesses supporting the prosecution are two namely Dauran Khan P. W. 4 and Naeem Shah P. W.
5. According to Dauran Khan, he and Naeem Shah were present near the scene of occurrence when they saw Hamid Gul deceased riding bicycle and armed with a shot-gun, who greeted them and passed by them; when he had gone for some distance Umra Khan and Dad Khan absconding accused and Gul Muhammad appellant alongwith Hunar Din absconder came armed with shot- guns near the 'Gatti' of one Ajun Khan. Gul Muhammad accused/appellant caught hold of the deceased while Hunar Din absconder fired at him and so did Umar Khan absconder; the deceased was hit and fellwounded. Dad Khan who. Was following the three accused, also fired on the deceased ineffectively, and during the scuffle Gul Muhammad accused/appellant was also injured; there-after Dad Khan absconder took the gun of the deceased while Hunar Din carried away the bicycle of the deceased. The injured was then taken to the police station where report Exh. P. A. Was recorded. Dauran Khan P. W. 4 was supported by .Neem Shah P. W. The other eye- witness who claimed to be present at the spot at the time of occurrence and saw the accused Hunar Din firing at the deceased while Gul Muhammad accused/appellant and Dad Khan were holding the deceased and thereafter the accused carried away the gun and the bicycle of the deceased.
6. Abdul Qayyum Khan S. I. P. W. 6 recorded the F. I. R. Of the deceased Exh. P. A. Which was read out to the deponent. He then completed the investigation.
7. Learned counsel for the accused/appellant argued that the role attributed to the accused/appellant was highly doubtful as nobody will hold a victim who is to be fired at by his co- accused with a weapon like shot-gun because in so doing the person holding the victim will expose himself to a possible gunshot. The learned counsel further contended that the accused/ appellant was incapable of using one of his hands, above the palm level and as such a disabled person would not be able to hold a victim or adversary in a firm grip, as the prosecution has alleged.
8. We find that the trial Court has taken all these points into consideration and arrived at the conclusion that the accused/appellant has been falsely implicated in the case. Referring to the judgment of the trial Court we find that the learned trial Judge has observed that the accused/appellant is in such a physical state that he would not be able to catch hold of the deceased at the time when the absconding accused opened fire on the deceased and the role attributed to the accused/appellant is the usual role which is assigned to innocent persons or for having common intention with the other accused culprits. We agree with the finding of the learned trial Court and hold that it is not a case free from reasonable doubt and, therefore, the conviction of the accused/appellant by the learned High Court is not maintained in view of the foregoing discussion. .