1. ' ABDUL QADEER CHAUDHRY, J.--The appellants have been convicted by an Additional Sessions Judge, Karachi under section 302/34 P.P.C. By his judgment dated 22-12-1985 and sentenced to 10 years' R.I. Each.
2. The facts in brief are that complainant Imaduddin was residing in P.I.B. Colony alongwith his family members. On the day of incident that is on 8-8-1972 at about 5.30 p.m. There was exchange of harsh words between his brother Samiuddin and his neighbour Abdul Razzaq on of Abdul Qadeer over kite flying in which his brother Samiuddin had slapped Abdul Razzaq. Samiuddin came to house and after a shortwhile, Mst.Zamarud mother of Abdul Jabbar, Mst.Nargis sister of Abdul Jabbar and Abdul Jabbar brother of Abdul Razzaq came to their house and attacked Samiuddin.
2. The Mohallah people intervened and the dispute was pacified. After about 15-20 minutes when the complainant had returned to his house, Qadeer father of Abdul Jabbar came to their house and took his father with him outside to know the reasons of the dispute. In the meantime Mst.Zamarrud wife of Qadeer, Mst.Nargis daughter of Qadeer and accused Jabbar (now deceased) came in the street of the house and again attacked Samiuddin. Sufi Abdul Razzaq brother-in-law of Samiuddin came there when the two appellants caught hold of him and Abdul Jabbar took out a chhuri from the fold of his pant and attacked Abdul Razzak. The accused ran away from the wardat. The injured was removed to the hospital where he succumbed to the injury. After usual investigation the accused were sent up to stand their trial in the Court. Accused Abdul Jabber died during the pendency of the case. The appellants had denied the charge an their 342, Cr.P.C. Statements.
3. Appellant Mst. Nargis stated that she was having pregnancy of eight months at relevant time and was confined to bed and was suffering from anaemia. She produced medical certificate.
3. The death of the deceased is not disputed. The case against the appellants rests on the ocular testimony of P.W.1 Abdul Majid Shaikh, P.W.3 complainant Imaduddin, P.W.4 Samiuddin, P.W.5 Ghulam Mujtaba, P.W.6 Sirajul Hassan, P.W.8 Hafiz Malik and P.W.9 Syed Muhammad Rafiuddin. The other witnesses are only formal witnesses. It is also alleged that the knife had been recovered from Abdul Jabber but that recovery is immaterial in the circumstances of the case.
4. We have heard the learned counsel appearing for the appellants and Mr.Zaheer Ahmed Qureshi on behalf of the State. It is to be seen whether the appellants were vicariously liable for the commission of the offence alongwith principal accused Abdul Jabber. The consistent stand of the prosecution witnesses is that the present appellants had caught hold of the deceased. But the question is whether the appellants were liable even if we accept the theory set up by the prosecution witnesses about the common intention of all the accused to be correct in the present case.In the first information report it is stated that Zamarrud, Nargis and Jabber came from their house to the lane and while abusing attacked Samiuddin. In the meanwhile brother-in-law of the complainant, Abdul Razzaq tried to rescue Samiuddin when Ms.t.Nargis and Zamarrud caught hold of the deceased Abdul Razzaq while Jabber took out chhuri from the right side fold of his pant and attacked Abdul Razzaq. A bare perusal of the F .I.R. Does not establish that there was common intention between Abdul Jabber and the present appellants. They were present at the time of incident and the quarrel was between Samiuddin on one side and Abdul Jabber and present appellants on the other side; and during such quarrel, it is not alleged that the appellants had caused any injury to Samiuddin. It- is also not alleged that the appellants were armed with any weapon. The incident had occurred suddenly. There was no previous enmity between the accused and the deceased.
4. ' P. W.1 Abdul Majid in his deposition has stated that his brother Abdul Razzaq advanced to separate the fighting party but Mst. Zamarrud Begum and Nargis caught hold of his brother and Abdul Jabber took out chhuri from the fold of his pant.
5. ' P.W.3 Imaduddin has stated that accused Nargis had stick in her hand while accused Zamarrud had an iron rod in her hand. This fact has not been stated by him in his previous statement and even other witnesses have not said so. He has admitted that Abdul Jabber was empty handed. He has further stated that all the three accused attacked his brother Samiuddin and at this stage he and his brother-in-law Abdul Razzaq tried to rescue Samiuddin when Zamarrud Begum caught hold of Abdul .Razzaq by waist and Nargis caught hold of his hands. This fact has also not been stated by this witness in his previous statement.
6. ' P.W.4 Samiuddin in his statement has stated that Nargis and Zamarrud Begum came out of their house and started quarrelling with him. He has not stated that these ladies were armed with any weapon or had caused any injury to this witness. He has stated that after leaving him both the ladies caught hold of his- brother-in-law and Jabber inflicted knife injury to his brother-in-law.
7. Similar facts have been stated by P.W.5 Ghulam Mujtaba. He has admitted that there was no enmity before the incident between B the accused and the deceased.
8. ' P.W.6 Sirajul Hassan stated that when he went outside the house he saw two ladies holding Abdul Razzaq by his arms and at that time Abdul Jabbar after giving slap on the face of Abdul Razzaq took out churri from the fold of his shalwar and stabbed Razzaq. No overt act has been attributed to the present appellants, It appears at the most that the parties were fighting with each other and the ladies were holding Abdul Razzaq by his arms. No witness has stated that there was any conversation between the appellants and Abdul Jabbar when Abdul Jabbar caused injury to the deceased.
9. ' The statement of Hafiz Malik is also material. He has stated that while they were deciding the dispute so that such thing should not take in future they heard commotion and they came out of the house and came to know that Abdul Razzaq had been killed. He has further stated that the persons collecting there were telling that Abdul Jabbar has killed Abdul Razzaq. The name of this witness has been mentioned in the first information report as the witness who c had seen the incident. The evidence of this witness is material as he is not related to the parties otherwise all the material prosecution witnesses are related inter se.
10. ' P.W.9 Syed Muhammad Rafiudin has stated that Abdul Jabbar accused had exchanged harsh words with Samiuddin. And Imaduddin. He further stated that when he came out of the house he saw Abdul Jabbar was running from the wardat with something in his hand and at that time one of the lady accused was holding Abdul Razzaq by his hand and the other lady accused was holding Abdul Razzaq by his neck. This witness has not seen the incident. He has given' this statement in favour of the prosecution otherwise none of the witnesses have stated that after the actual incident the ladies had caught hold of the deceased. If there was common intention between the accused to take life of the deceased then these ladies would have run away from the wardat alongwith the principal accused. The prosecution witnesses are closely related to each other and as the deceased was related to them therefore there is every possibility of roping in the ladies of the house. The trial Court has erred in holding that the appellants had planned to kill the deceased Abdul Razzaq.
11. From the above facts it is quite clear that the case against the appellants has not been established and the prosecution witnesses cannot .Be implicitly relied upon for convicting the appellants on the constructive liability. The appeal is therefore accepted and conviction and sentences recorded against the appellants are set aside. They are on bail. Their, bail bonds are discharged.
12. ' The appeal was accepted by the short order 4-2-1987. The aforesaid are the reasons for the same.