' MUHAMMAD ISHAQ KHAN, J.-Waris Khan son of Behram and Gut Pasand son of Bahadur Khan, residents of Gul Abad, Tehsil Charsadda, stood their trial in the Court of Additional Sessions Judge, Charsadda on a charge under section 302/34, P. P. C. Registered against them vide F. I. R. No, 12 dated 20-2-1984 of P. S. Khanmai, for the murder of Mohyuddin deceased in furtherance of their common intention alongwith their absconding co-accused Salim. Both the accused were found guilty by the learned trial Judge and were convicted under section 302/34, P. P. C. And sentenced to suffer life imprisonment and a fine of Rs, 5,000 each, or in default of payment of fine to undergo further one year R. I. It was directed by the learned trial Judge that out of the fine, if realised, half of it would be paid to the heirs of the deceased as compensation, vide judgment dated 1-8-1985.
2. Both the convicts have come up in appeal against their conviction and sentences.
3. Briefly stated the facts of the prosecution case as given in the First Information Report are that Israruddin complainant, P. W. 3 lodged a report in the Police Station to the effect that he alongwith his bothers Ikramuddin, P. W. 4, and Mohyuddin, deceased, were present in their shop when in the meantime the present appellants alongwith the absconding accused Salim came there duly armed with tamachas; that the above-mentioned accused demanded Rs, 1,500 from Mohyuddin deceased which was outstanding against him as loan; that the deceased had no money at that time, therefore, the accused caught hold of the deceased and took him for some distance and while Gul Pasand and Wads Khan were holding the deceased, Salim, the absconding accused, fired a shot at the deceased with his tamacha with which he was hit and died at the spot.
4. Motive for the offence is demand of loan from the deceased by the accused.
5. At the trial the prosecution produced in all 7 witnesses. P. W. 7 is Dr. Mubarak Hussain Shah while P. W. 3 Israruddin and P. W. 4 lkramuddin are the alleged eke-witnesses of the occurrence and the rest are Police officials.
6. P. W. 7 Dr. Mubarak Hussain Shah conducted the autopsy on the dead body of Mohyuddin son of Khewa Din aged about 50 years, resident of Gulabad. Dargai, on 20-2-1984 at 10-30 a,m. And found the following injuries on external examination:- "An entrance wound of fire-arm about 1/2" below the right angle of the mouth 1/4" x 1/4*.
' On internal examination the doctor found cranium, the base of skull and heart plate fractured.
Membrane and brain were also found injured while skull cavity was found containing blood.
Muscles at the site of injuries were injured and mandable was found fractured on right side.
' In the opinion of the doctor the deceased died of shock and haemorrhage due to injury to the brain caused by fire-arm. Probable time between injuries and death was within 15 minutes and time between death and post-mortem was within 4 hours.
' In cross-examination the doctor stated that no charring/blackening were found on the body at the time of the examination. Even no burnt powder was found on the dead body of the deceased.
7. P. W. 3 Israruddin stated at the trial that deceased Mohyuddin was his brother and so is P. W.
Ikramuddin, that Gul Pasand appellant is the nephew of Waris Khan appellant while absconding accused Salim is the son of Waris Khan. This witness has stated almost the same facts as were stated by him in the F. I. R. With an improvement that in the F. I. R. He has not mentioned that on the demand of the accused the deceased had paid them Rs, 800 while the accused were demanding the total amount of Rs, 1,500 whereas at the trial both the P. Ws. Have stated that the deceased had paid Rs, 800 to the accused but they were insisting on total return of the loan of Rs, 1,500. Besides this there are other improvements also forthcoming in the statements of these two alleged eye- witnesses, such as that P. W. 3 Israruddin stated that Ikramuddin, P. W. 4, is a permanent employee of Pakistan Tobacco Company at Kandhar depot which is at a distance of 15 miles from Village Gul Abad whereas P. W. Ikramuddin himself has stated that he was an employee of Pakistan Tobacco Company Mandani situated in Mandani. P. W. Ikramuddin further stated that he had left the service of Tobacco Company during the days of occurrence but in the same breath he again stated that he was a mate in Tobacco Company and also a seasonal worker.
8. We have heard the learned counsel for the appellants and the Additional Advocate-General for the State and have also perused the record with their help. In this case, as mentioned above, there are contradictions and improvements in the statements of the 2 alleged eye-witnesses who are real brothers of the deceased, and their statements are of interested character. In their statements both the P. Ws. Have categorically stated that accused had dragged the deceased from his shop up to a distance of 600/700 steps but strangely enough P. W. 7 Dr. Mubarak Hussain Shah, who examined the deceased, found no marks of bruises or scratches on the body of the deceased nor the shirt of the deceased was torn to prove that he was dragged by the accused. It is in the statement of both the P. Ws. That the deceased was dragged even on the Pakka road, but no marks of struggle were observed by the I.
0. At the time of preparation of the site plan. The learned trial Judge although had referred to these defects in the prosecution case but had discarded the same for no cogent reasons. It is also the case of the prosecution that the present appellants A caught hold of the deceased when Salim, the absconding accused, fired the only fatal shot at the deceased which hit him and his death was caused. But strangely enough no charring or blackening was found on the body of the deceased which could support the contention of the prosecution witnesses. It is in the statement of P. W. 3 Israruddin that the fire was opened at the deceased from point blank distance and that the pistol was placed on the body of the deceased, but the doctor has falsified this statement as he did not find any bruises, charring and tattooing on the body of the deceased. It is also important to note that the occurrence took place at 7-30 a. m. In the Abadi of the village and it is mentioned in the F. I.
R. By the complainant that villagers were present at the time of occurrence but the prosecution has miserably failed to produce any independent witness from the loccality to support the prosecution case, which fact also casts serious doubt on th prosecution case. In this case the appellants have been attributed the role of holding the deceased alongwith the absconding accused when the single shot was fired at the deceased by the absconding accused Salim. In such like cases the prosecution has to prove their case regarding the accused allegedly catching hold of the deceased in order to prove over act on theri part but in the case in hand all such ingredients are badly lacking. It is the prosecution case that all the 3 accused were armed with tamachas but strangely enough the present appellants were attributed the role of catching hold of the deceased while the fatal shot was fired by Salim absconder, which does not appeal to reason. The deceased was not a statue who was caught hold of by the two appellants while the absconder fired at him. In such like situation the appellants could have been hit by the shot fired by the absconding accused Salim and as stated earlier the doctor has falsified the story of the prosecution that the deceased was fired at from a close range. Had he been tired at from such a close range, charring must have been found on the body of the deceased which is not the case in hand. C There are numerous authorities available in such like cases where innocent persons of a family have been roped in on a capital charge of murder. Waris Khan, appellant, is the father of Salim absconder and uncle of Gul Pasand appellant. In a case reported in Yaqoob and 2 others v. State (1), it has been observed as under:- "S. 302-Conviction-Benefit of doubt-Accused allegedly taking leading role and exhorting his co- accused to kill deceased but himself not firing at him though armed with a rifle and nothing preventing him from so doing -A reasonable doubt, held, cast on presence of accused at scene of occurrence-Accused given benefit of doubt and acquitted, in circumstances."
' In a recent authority of the Supreme Court reported in Taj Muhammad v. Pesham Khan and others (2), their Lordships of the Supreme Court have held as under:- "Ss. 302/149, 307/149 & 404/149-Acquittal-Witnesses claiming to be present on spot not standing acid test of credibility laid down by Supreme Court-Deceased and accused having bad blood feud--Corroboration of testimony of eye-witnesses not forthcoming -Delay in lodging First Information Report not explained satisfactorily Interference with order of acquittal declined in circumstances."
' In the same authority it has been further observed regarding the question of abscondence as under:- "Ss. 302/149, 307/149 & 404/149-Abscondence-Mere abscondence of accused, held, was not enough to sustain conviction of accused."
' We would also like to make reference to an authority reported in Zarin Khan and 2 others v. The State (3), wherein their Lordships have laid down as under:- "S. 302/34-One, out of several accused, alleged to have caught hold of deceased whilst another stabbed him -Only one person, in circumstances of case, could have caused fatal injury-Part attributed to accused alleged to have caught hold of deceased -Such accused given benefit of doubt and acquitted."
' There is yet another authority reported in Hidayatullah and others v. The State (4), wherein the dictum laid down runs as follows:- "S. 302-Murder-Benefit of doubt-Accused attributed only a proverbial Lalkara and although carrying a revolver yet making no use of it-Accused given benefit of doubt and acquitted, in circumstances."
9. The net result of the above discussion is that we are of the view
(1) 1980 P Cr. L J 556 (2) 1986 SCMR 823
(3) 1974 SCM R 376 (4) 1976 P Cr, L J 1067 that the prosecution has failed to prove their case against the two appellants beyond reasonable doubts and while agreeing with the authorities cited above we would hold that section 34 is not applicable in the case in hand. As such, we would accept this appeal, set aside the conviction and sentences of the two appellants and would acquit them of the charge. They should be set at liberty forthwith if not required in any other case. However, this judgment would have no effect on the case of the absconder Salim, if and when arrested.