' TASSADUQ HUSSAIN JILLANI, J.---Appellant Mir Afzal Khan along with co-accused Sarfaraz, Sher Afzal, Umer Gul, Akbar Zaman and Amir Khan alias Miro were proceeded against in the case registered vide F.I.R. No,440 dated 20-12-1993 Police Station Lakki Marwat for the murder of Abdullah Khan uncle of the complainant, Muhammad Gul P. W.3. Appellant became fugitive to law whereas the remaining accused were tried and the learned trial Court in terms of its judgment dated 15-9- 1997 acquitted them. It was thereafter that the appellant surrendered before the court on 14-4-1998 which led to his trial and the same culminated in his conviction under section 302(b), P.P.C. Vide the judgment of the learned trial Court dated 30-9-1999 and was sentenced to life imprisonment as also with fine of Rs,50,000 or in default whereof to undergo S.I. For six months. He was also extended the benefit of section 382-B, Cr.P.C. The learned High Court vide impugned judgment dismissed the appeal of the appellant and confirmed conviction and sentence awarded to him.
2. Learned counsel for the appellant in support of this appeal submitted that it was a case of no evidence; that the co-accused were acquitted by the trial Court in the earlier trial and the same set of evidence cannot be relied upon to sustain appellant's conviction; that there is no incriminating recovery; that Muhammad Gul Pw.3 is a close relative of the deceased whereas Inayatullah Khan P.W.4 was not named as an eye-witness in the F.I.R. In these circumstances, it would be unsafe to Maintain appellant's conviction.
3. Learned Deputy Prosecutor-General, however, defended the impugned judgment by submitting that it was a broad-daylight occurrence; that the appellant was specifically named in the F.I.R.; that the ocular account is consistent with the medical evidence as also the statements of other eye- witness namely Inayatullah Khan P.W.4. He lastly submitted that the appellant remained absconded for about four and a half years.
4. Having heard learned counsel for the parties and having gone through the evidence on record, we find that the occurrence took place in broad-daylight and the F.I.R. Was lodged without unnecessary delay. Appellant along with others was specifically named. The testimony of the eye- witnesses i,e, Muhammad Gul P.W.3 and Inayatullah Khan P.W.4 remained consistent insofar as the role attributed to the appellant is concerned. Although learned counsel for the, appellant has tried to canvass that the eye-witness account was discrepant but we find that the testimony of Muhammad Gul P.W.3 inspires confidence as it remained consistent on all material particulars i,e, the time of occurrence, the manner of attack, the reason for his being present at the spot and the motive alleged. So far as the non-mention of the name of Inayatullah Khan P.W.4 in the F.I.R. Is concerned, we note that the learned High Court did advert to this aspect in para-8 of the- impugned judgment and observed that in the F.I.R. Though the name of Inayatullah Khan P.W.4 was not mentioned but there is a name of the eye-witness mentioned therein as Matool and this was never disputed by the defence that Inayatullah P.W,4 was aforereferred Matool. Furthermore, the identity of the said witness was not challenged even while cross-examining the Investigating Officer Gul Hassan, ASI P.W.5. The occurrence is dated 20-12-1993 and the appellant was arrested on 14-4-1998. He remained fugitive to law all these years. This long absconsion which stood proved by P.W.9 Mohabat Khan, S.H.O. Is yet another corroborative circumstance consistent with appellant's guilt.
5. In the afore-referred circumstances, we are of the view that the concurrent findings of guilt qua the appellant are in accord with the weight of evidence led by the prosecution and the same does not call for interference. However, we find that the learned courts below did not appreciate that awarding of sentence of fine under section 302(b), P.P.C. Was not tenable in law.
6. Consequently, while dismissing the appeal, we are persuaded to convert the sentence of fine to the similar amount to be disbursed in the same manner i,e, to be given to the legal heirs of the deceased if realized or in default whereof the appellant shall undergo S.I. For six months.