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Criminal Appeals Nos. 16 and 39 of 1984, heard on 25th March, 1986.

‑ S. 302/34‑Criminal Procedure Code (V of 1898), S. 417‑Appeal against acquittal‑Accused, acquitted of charge of murder having not been stated by eye‑witness to be present and firing at deceased‑ Charge of murder not established against him beyond reasonable doubt‑Accused was charged for a constructive role in offence of murder to share a common intention with acquitted co‑accused but he was acquitted and State filed no appeal against acquittal of co. accused‑Appeal against acquittal of accused dismissed.

‑‑‑ S. 307/353‑.Attempt to murder‑‑Ocular evidence establishing charge of murderous assault by effective firing at injured‑Conviction under S. 307/353 Penal Code, maintained.

S. 34‑Applicability and scope of S. 34‑Constructive liability Common intention‑If principal accused is acquitted and his acquit tal stands confirmed, his co‑accused cannot be held guilty for his constructive liability under S. 34, Penal Code‑‑In incurring a constructive liability under S. 34. Penal Code, there must be a pre‑arranged plan and acting in concert pursuant to plan when for act of a person actually charged for offence his co‑accused would also incur a constructive liability for offence, since act bad been committed by him in furtherance of common intention of all‑In case principal accused is acquitted and his acquittal stands confirmed, his co‑accused cannot be held guilty for his constructive liability under S. 34, Penal Code‑Section 34 comes into play when an accused principally charged for offence is proved guilty and convicted‑It is only then that co‑accused can also be convicted for, constructive liability‑Section 34 may also have application when an accused principally charged for offence is fugitive and his co‑accused , on trial is found guilty for having shared a common intention with principal accused‑ Section 34 may also come into play when principal co‑accused dies before commencement of trial and case against him abates as such and accused charged for constructive liability is independently held guilty of charge at trial under S. 34, P. P. C.‑Section 34 will definitely not come into play when actual assailant has been acquitted and co‑accused is made to incur a constructive liability of charge of murder.

M. Shafiq Khan for Appellant.

Bashirullah Khan, A. A.‑G. for the State.

Dates of hearing : 24th and 25th March, 1986.

‑‑By his judgment and order dated 3‑1‑1984 the learned Additional Sessions Judge‑ III, Peshawar held Mukarram alias Malangai guilty of the charges of attempt at the life of Ajab Khan, S. 1. Police (P. W. 10) and of assault on the police officials during the course of performance of their duties as public servants, under section 307/353, P. P. C. respectively and accordingly sentenced him to ten years' R. I. and a fine of Rs. 2,000 or in default six months' R. I. further under section 307 and one year's R. I. under section 353, P. P. C. while acquitted him of the charge of murder of Haji Rehman (deceased) conductor of the bus under section 302/34,. Pi‑P.‑ .C. There was filed an appeal (Cr. A. No. 16/1984) against his conviction by Mukarram alias Malangai while the State filed Criminal Appeal No. 39/1984 against his acquittal under section 302/34, P. P. C. We propose to dispose of the two appeals by a judgment, hereafter.

2. Briefly stated, there was presented a case at the trial by the prosecution that on the eventful day Ajab Khan S. 1. (P. W. 10) Incharge of P. P. Urmar accompanied by Almarjan, Head Constable (P. W. 11) and Maveez Khan and Sultan F. Cs. of the Police Post boarded G. T. S. bound for Peshawar at Urmar at 8‑00/8‑15 a. m. on 14‑11‑1975 and as soon the bus arrived near the bungalow of Arbab Noor Muhammad Khan in village Maira Kichori, the bus was stopped by the accused. Immediately Ajab Khan P. W. alighted who was instantly fired at by Mukarram alias Malangai the appellant, as a result he was hit in his chest. Said Faqir (acquitted) had opened fire with which Haji Rehman Conductor of the G. T. S. was hit and he died on the spot while Faiz Muhammad alias Chapo (dead) had also fired which only bit the bus. Ajab Khan S. I. opened fire at the accused‑party with his Tamacha in self defence which, however, proved ineffective. His companions had, however, onward chased the accused but to no avail.

3. Ajab Khan S. I. (P. W. 10) was rushed in injured condition in a truck to the Lady Reading Hospital, Peshawar where he lodged the report per Murasila Exh. P. A/1 to Rahim Dad, Additional M. H. C. (P. W. 7) in which he had stated that Mukarram appellant and Faiz Muhammad alias Chapo had attempted at his life by firing and that he and his companions had fired at the accused in self‑defence and that he was bit as a result of the fire shot of the appellant and that later on he was brought in injured condition in a truck to the hospital while his companion constables had been chasing the accused. On the basis of the said Murasila Exh. P. A./I, F. I. R No. 388 Exh. P. A. was originally registered under section 307/353134, P. P. C. However, section 302 was added later since the murder of Haji Rehman Conductor of the bus had also occasioned during the incident allegedly at the. hands of the accused in furtherance of their common intention .

4. Doctor Ali Gohar Khan (P. W. 61 had examined Ajab Khan at 9‑45 a. m. on 14‑11‑1975 and found the following injuries :‑

(1) Fire‑arm injury on right upper chest 1' x 1/2' (entry wound).

(2) Fire‑arm exit wound 1 x 3/4' in the right axilla.

Since the X‑ray showed fracture of right clavical, the injury was accordingly opined grievous.

5. The post‑mortem examination of the dead body of Haji Rehman. Conductor of the bus was performed by Dr. Parvez Akbar Khan (P. W. 12) at 12‑30 a. m. on 14‑I1‑1975 who had found a single fire‑arm entry wound in the anterior, 5th intercostal space size 1/4' x 1/2' at a distance of 1J" from the mid‑line. He further found right pleasure, right lung, pericardium, heart, pulmonary blood vessels and 5th right anterior intercostal muscle injured. Stomach was found normal containing some semi‑digested food matter. He recovered a piece of bullet from the dead body. He reported the death instantaneous caused due to injury of the right lung and heart resulting in shock and ultimate death.

6. Prosecution herein places reliance on the ocular evidence of the two eye‑witnesses in police personnel one Ajab Khan, Sub‑Inspector (P. W. 10) and another Almarjan Head Constable (P. W. 11) who cannot be, no doubt, straightaway accepted as all out disinterested persons. Both the witnesses have stated at the trial that they had been engaged a number of times in cross‑firing with the accused before incident. The statement may on one hand be utilized by the prosecution to facilitate the indentification of the accused by the witnesses but at the same time it will also suggest that the witnesses were likely to nurse an ill‑will against the accused. We shall accordingly read the ocular evidence with care and caution.

7. As already stated Ajab Khan (P.W. 10) does not report the murder of Haji Rehman deceased in his Murasila Exh. P A./1 and accordingly a case was registered against the appellant and co‑accused Faiz Muhammad (dead) under section 307/353/34, P. P. C. only. The witness does not mention at all Said Faqir co‑accused to be present and to have opened fire when as a result Haji Rehman, the deceased, met his death. At the trial he duly admitted Murasila Exh. P. A./1 to be correct when read over to him and that it was recorded by him and bears his signature. Even then he claimed to have also witnessed that meanwhile Said Faqir had fired with which Haji Rehman, Conductor of the G. T. S. was hit and died. On further confrontation with his report in Murasila Exh. P. A./ 1 he admitted to have not given the details of the incident narrated by him at the trial about the direction to the bus driver to stop the bus and that he got up from his seat and gave alarm to_ the accused and that while alighting he was fired etc., etc. ,

8. So the testimony of Almarjan P. W. contains the omissions and improve ments. It has not been mentioned in his police statement that Ajab Khan P. W. had given alarm to the accused when he boarded down‑from the bas and that he fired first at the accused at and that the accused fired at him sub sequently etc. The witness was seated in a bus packed with passengers on the 3rd seat to the right side of the bus behind the Driver while Ajab Khan, S. I. had occupied the seat in the front near the female entrance gate. Necessarily Haji Rehman, the deceased Conductor of the bus must be present or seated at the near entrance gate of the bus. The witness further stated that some of the passengers were standing while some were seated in the bus. He had boarded down from the G. T. S. with difficulty as the passage was blocked by the passengers. In the site plan the occurrence has been reported that the accused had opened fire at the bus from some distance from left side when it was on way to Peshawar and as stated the witness was seated on the 3rd seat to the right side of the bus, hence, in the circumstances possibility cannot be ruled out that the witness might not have witnesses the alleged firing at Haji Rehman, the deceased, Conductor present at the left side of the bus in the rear. He might have at the most witnessed the occurrence of firing by the appellant at Ajab Khan, S. 1. who was also sitting in the front seat and alighted from the bus from the front gate.

9. The above ocular evidence, no doubt, establishes the charge of murderous assault of effective firing at Ajab Khan, S. I. by the appellant but does not seem to establish the charge of murder of Haji Rehman deceased by firing by Said Faqir co‑accused (acquitted) beyond any reasonable doubt. Further firing by co‑accused Faiz Muhammad alias Chapo (dead) which hit the bus is also not established as the very bus has not been made a case property nor there has been adduced any evidence if that how and where the bus was hit as a result of the fire shots of the said co‑accused.

10. Besides above there is another hurdle in the way of the prosecu tion vis‑a‑vis the charge of murder relating to the appellant. He is charged for a constructive role in the offence to share a common intention with his co‑accused Said Faqir who is charged for actual firing at Haji Rehman deceased while co‑accused Said Faqir was tried for the charge of murder principally and for the charges of murderous assault at Ajab Khan P. W. and assault on the police officials in the performance of public duties cons tructively. He had, however, since been acquitted of all the charges. The State has not filed an appeal against his acquittal while revision petition filed by the complainant has been dismissed. Hence for all practical pur poses co‑accused Said Faqir shall stand absolved of the charges in the case. He shall no longer continue on the array of the accused in the case. I incurring a constructive liability under section 34, P. P. C. there must be pre‑arranged plan and acting in concert pursuant to the plan when for the act of a person actually charged for the offence his co‑accused would also incur a constructive liability for the offence since the act has been committed by him in furtherance of the common intention of all. In case the principal accused is acquitted and his acquittal stands confirmed, as the instant case, his co‑accused cannot be held guilty for his constructive liability under section 34, P. P. C. Section 34, P. P. C. comes into play when an accused principally charged for the offence is proved guilty and convicted that his co‑accused can also be convicted for a constructive liability. Section 34, P P.C. may also have the application when an accused principally charged for the offence is fugitive and his co‑accused on trial is found guilty for having shared a common intention with the principal accused. It may also come into play, when the principal co‑accused dies before the commencement of trial and the case against him abates as such and the accused charged for constructive liability is independently held guilty of the charge at the trial under section 34, P. P. C. Section 34, P. P. C. will. however, definitely not come into play when, as in the instant case that the actual assailant, namely, Said Faqir has since been acquitted and that the appellant is being made to incur a constructive liability of the charge of murder.

11. In view of what has been stated above, we would dismiss the, State's appeal against the acquittal of Mukkarram alias Malangai and partially accept the appeal (Cr. A. No. 16 1984) of the convict by maintaining the conviction but reducing the sentence under section 307, P. P. C. from ten years' rigorous imprisonment to seven years' R. I. while iceepin4 the imposition of fine thereunder intact. We would also maintain the conviction and sentence under section 353, P. P. C. and further approve the exten sion of benefit under section 382‑B, Cr. P. C. to the convict‑appellant. The period for which the appellant remained in custody in connection with the offence shall be considered towards the period of has imprisonment.

M. Y. H. Appeal partly accepted.

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