1. MUHAMMAD YAQUB ALI, J.-Bakhat Jamal, appellant, was tried by the Additional Sessions Judge, Mardan under section 302, P. P. C. For the murder of his wife Mst. Qeemat Baha and for making attempt on the life of his brothers-in-law Sarzamin and Muhammad Ayub (P. Ws.). He was found guilty and sentenced to death on the first count and to 7 years' rigorous imprisonment on the second count. He was further sentenced to one year's rigorous imprisonment under section 13 of the Arms Ordinance for keeping in possession unlicensed gun and three cartridges.
2. On appeal and reference, a Division Bench of the High Court set aside the conviction of the appellant under section 307, P. P. C. But confirmed the sentence of death imposed by the trial Judge, on the finding that the dying declaration made by Mst. Qeemat Baha, deceased, in the Civil Hospital in which she had charged the appellant for shooting her with a shot-gun sounded true and fitted in with the circumstances in which the occurrence had taken place. The probabilities of the case also supported the prosecution version.
3. Leave to appeal was granted on a Jail Petition to consider whether the retracted concession by the appellant was corrobora--ted by satisfactory evidence and whether the sentence awarded to him in the circumstances of the case was legal.
4. The dying declaration made by the deceased soon after the occurrence at Civil Hospital, Kalu Khan, to Lady Doctor Hamida Rahim, was to the effect About a year ago I was married to Bakhat Jamal son of Rahman Shah, resident of Qadra. Before the occurrence my relations with my husband became strained and about 15 days ago I came back to the house of my father in Miankali. Three days ago my husband came to the house of my father and tried to persuade me to accompany with him. I refused to agree to it. He thereupon felt annoyed and in the morning fired two shots at me from a shot-gun which hit me and my brother Sarzamin. My mother Marghadan and my sister Zahida were present in the house. Ayub Khan and Sarzamin who were in the godown came running to the house and saw the occurrence. I charge my husband.
5. Dr. Hamida Rahim besides deposing to the injuries found on the person of Mst. Qeemat Baha stated that she had recorded her dying declaration which was in her own handwriting and was correctly prepared and that at the time of her making the statement Mst. Qeemat Baha was fully conscious and could talk coherently. No question was asked in cross-examination by the defence counsel to cast doubt on the correctness of the dying declaration recorded by the witness.
6. Sarzamin and Muhammad Ayub (P. Ws.) brothers of Mst. Qeemat Baha were working in a tobacco godown adjacent to their house on the morning of 13th of July1967. At about 8-9 a.m. They heard the report of a gunshot from the direction of their house and rushed to the spot. As they entered the court--yard of the house the appellant who was holding a gun went inside one of the kothas in the house and chained the door from inside. A window of the kotha with iron bars opened in the courtyard. Sarzamin and Muhammad Ayub were at points 4 and 5 in the courtyard shown in the site plan, when the appellant fired a shot in their direction which missed them, but some of the pellets were struck in the outer wall of the house opposite to the window.
7. As Sarzamin and Mohammad Ayub proceeded further they saw Mst. Qeemat Baha lying injured in the kitchen at a place where from she could not have been hit by a shot fired from inside the kotha in which the appellant had taken shelter. In the meantime Said Farosh and Zaman Khan, P. Ws., arrived at the scene on haring gun reported with their assistance Sarzamin and Muhammad Ayub succeeded in breaking open the door of the kotha. The appellant put up resistence, but he was disarmed of the gun and three live cartridges and tied with a rope and kept inside the kotha.
8. Leaving Amanullah and Mohammad Khan, to keep guard over the appellant, Sarzamin and Mohammad Ayub took Mst. Qeemat Baha on a cot to the road side and from there took her in a motor car to the Police Station, Kalu Khan. As the con--dition of Mst. Qeemat Baha was serious, Mohammad Ayub Khan, Assistant Sub-Inspector of Police, directed Sarzamin and Mohammad Ayub to take her to the Hospital for medical atten--dance and himself followed them there. Dr. Hamida Rahim found on her three gun shot entrance wounds in her abdominal region and one exit wound on the lateral aspect of left side of her abdomen. After attending to her injuries Dr. Hamida Rahim recorded her statement, Exh. P. J,, reproduced above, in the pre--sence of Mohammad Ayub Khan, A. S. L, who had by then arrived in the Hospital.
9. After recording the First Information Report, Exh. P. A., on the basis of the statement, Exh. P. J., Muhammad Ayub Khan proceeded to the place of occurrence and found the appellant tied with a rope inside the kotha in the house of the father of the deceased. A shot-gun and three live cartridges were lying close to him which were taken into custody along with the appellant.
10. In the inquiry under Chapter 18 of the Code of Criminal Procedure, the appellant took up the position that the brothers of his wife had fired at him and the shot was misdirected and hit the deceased. Subsequently his inlaws brought a false charge against him. During the trial the appellant made the following version of the occurrence; "My wife Mst. Qeemat Baha who had very cordial relations with me had gone to the house of her parents as a guest. Later on I learnt that her mother and brothers were not permit--ting her to return to my house. I came to the house of my parents-in-la", in the morning for taking my wife back. Her mother Marghuda and her brother Sarfaraz and her sister Mst. Zahida were present in the house. During the talk I found that Mst. Qeemat Baha had no hesitation to accompany me to my house and live with me as my wife, but her mother put some unreasonable demands to find out an excuse for not permitting her to go with me. This led to an altercation between me and my mother- in-law. Sarfraz intervened and started beating me and then took out a gun from him. During the struggle when Sarfaraz wanted to fire at me, I pushed the barrel aside, the gun went off and hit my deceased wife. I forthwith raised an alarm and started charging them for the injury to my wife.
11. Feeling immediate danger to my life I entered the residential kotha and chained the door from inside because no disinterested person was there to save me or to help me in the charge against them. They later on after sufficient time and consultation took my wife in injured condi--tion out of the house. Till then she was not charging me and was giving the true version as stated by me in Court today. They later on planted the shot-gun at me and charged me falsely in order to save the brother of the deceased from the consequences of his rash act. I was a stranger in the village. My village is about 20 miles away in Gadoon Area. I am innocent and falsely implicated in the case for the reasons stated above."
12. No evidence was produced in defence.
13. Mst. Qeemat Baha died in the Hospital on the following day. The autopsy performed on her by Dr. Naseem Aslam revealed that the abdominal wall, peritoneum, small intestines at two places and the spleen were injured. Death was caused by haem--orrhage and shock.
14. Apart from the discrepant statement made by the appellant in his defence, the circumstances in which the occurrence took place falsified the plea that the shot-gun carried by a brother of the deceased went off accidentally and hit Mst. Qeemat Baha. Firstly, two shots were fired from this gun. One hit Mst. Qeemat Baha in the kitchen, while the other was aimed at Sarzamin and Muhammad Ayub, P. Ws. As mentioned above, the two P. Ws., escaped, but the pellets hit the wall opposite to the window of the kotha in which the appellant was found by the police sitting tied with a rope. The appellant admitted his presence in the kotha after the occurrence. The place where Mst. Qeemat Baha was injured inside the kitchen and where Muhammad Ayub and Sarzamin were fired at were located at such diver--gent angles that a single shot fired from inside the kotha could not have hit the wall where the two P. Ws., were fired at and hit the deceased inside the kitchen. It was thus safe to conclude that two shots were fired which conclusively disproved, the plea that the shot-gun brought out by Sarzamin had went off accidentally and hit Mst. Qeemat Baha deceased.
15. On the facts and circumstances mentioned above, the High Court was justified in upholding the conviction of the appellant under section 302, P. P. C. And confirming the sentence of death imposed on him by the trial Judge.
16. The appeal is dismissed.