' MUHAMMAD HASHIM KHAN KAKAR, J.---The Additional Sessions Judge, Jhal Magsi at Gandawah, vide judgment dated 19-11-2009 has convicted and sentenced appellant Majeed son of Sher Dil under section 302(b) read with section 34 of the P.P.C. To death as ta'zir with direction to pay compensation of Rs,100,000 to the legal heirs of deceased Afzal Khan as provided under section 544-A of the Cr.P.C., in default whereof to further undergo R.I. For six months. He was further convicted and sentenced under section 324 read with section 34 of the P.P.C. To suffer five (5) years' R.I. With direction to pay compensation of Rs,20,000 to injured Sohrab Khan, in default whereof to further undergo R.I. For six months and under section 337-F(i) of the P.P.C. To suffer one
(1) year's R.I. And to pay Daman of Rs,5,000 to the injured, in default whereof to be dealt with as provided under section 337-Y(ii) of the P.P.C. The appellant preferred Criminal Appeal No,(S)129 of 2009 for his acquittal, while the Additional Sessions Judge has sent Murder Reference No,(S)19 of 2009 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Ghulam Rasool (P.W.1) in his Fard-e-Bayan dated 4-11-2006 (Exh.P/1-A) alleged that he, along with his brothers Afzal Khan and Sohrab Khan, went to Mouza Lakhti Tehsil Gandawah for the purposes of grazing there . Cattle. It was further alleged that when they went to a stream Badara, accused persons Doda Khan, Majeed, Dost Muhammad and Aslam, already present there, made firing upon them with Kalashnikovs, due to which Afzal Khan expired at the spot, whereas Sohrab Khan sustained bullet injuries. Consequently, a case Crime No,23 of 2006 (Exh.P/1-8), under sections 302, 324 read with section 34 of the P.P.C. Was registered at Levies Station Gandawah District Jhal Magsi.
3. After registration of the F.I.R., initially the investigation of the case was carried out by Ishfaq Ahmed, the then Tehsildar, Gandawah, who visited and inspected the site, where he found the dead body of deceased Afzal Khan and his brother Sohrab in injured condition, who was sent to hospital for treatment. He prepared site sketch Exh.P/5-A, seized the dead body vide recovery memo Exh.P/5-C, took into possession the blood-stained clothes of the deceased vide memo Exh.P/5-D and since the accused persons 'could not be arrested, therefore, he prepared incomplete challan Exh.P/5-E.
' On arrest of accused Abdul Majeed, further investigation of the case was conducted by P.W.6 Muhammad Iqbal Marwat, IP and after completion of the investigation,, he prepared incomplete challan Exh.P/6-A and accused was sent up to face the trial.
4. On the stated allegation, a formal charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced six witnesses. P.W.1 Ghulam Rasool is complainant of the case, who produced his Fard-e- Bayan Exh. P/1-A and F. I . R. Exh.P/1-B. P.W.2 Dr. Raziq, Medical Officer, examined the dead body of the deceased and the injured and issued Medico-legal Certificates Exh.P/2-A and Exh.P/2-B. P.W.3 Sohrab Khan is injured of the occurrence. P.W.4 Mureed Khan is witness to the release of dead body of the deceased to the complainant vide memo. Exh.P/4-A by the Tehsildar. In whose presence, the blood-stained clothes of the deceased were also taken into possession by the Tehsildar vide memo. Exh.P/4-B. P.W.5 Ishfaq Ahmed and P.W.6 Muhammad Iqbal Marwat, IP, are the Investigating Officers of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence.
However, he neither made any statement on oath under section 340(2) of the Cr.P.C, nor produced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced, as mentioned and detailed above.
7. At the very outset, H. Shakil Ahmed, learned counsel for the appellant, contended that instead of praying for acquittal of the appellant, he would seek for commutation of the death sentence awarded to the appellant into that of life imprisonment, on the ground that the role of firing has been attributed to four accused, but it has not been established beyond doubt as to by whose fire shot the deceased had been killed.
8. On the other hand, Mr. Abdullah Kurd, learned Additional Prosecutor-General, has opposed the appeal on merit, but conceded the prayer for commutation of the death sentence into that of life imprisonment.
9. After hearing the learned counsel for the parties and having gone through the record, we have arrived at a confident conclusion that the prosecution had, indeed, succeeded to prove its case against the appellant beyond reasonable doubt, however, we found that learned counsel for the appellant was quite justified, praying for commutation of the sentence awarded to the appellant from death to life imprisonment, for the occurrence, which culminated in, unfortunate, death of deceased Afzal Khan and injuries to P.W.3 Sohrab Khan. P.W.1 Ghulam Rasool and injured witness P.W.3 Sohrab Khan are the eye-witnesses of the occurrence, who have furnished straightforward and confidence inspiring evidence. Despite lengthy cross-examination, the defence failed to create any dent in their veracity, except a few discrepancies,. Which are immaterial and not fatal to their evidence. They were accompanying the deceased Afzal Khan at the time of occurrence and being residents of the area, their presence at the relevant time could not be doubted by any degree of seriousness. The occurrence has also taken place in broad daylight and under such circumstances, no question of mistaken identification arise at all. Their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and consistent with the probabilities, materially fitting in with other evidence, more particularly the medical evidence.
10. No doubt, P.W.1 Ghulam Rasool and P.W.3 Sohrab Khan are real brothers of deceased Afzal Khan, but only on account of relationship, they cannot be termed as interested witnesses, for the reasons that they had no direct animosity with the appellant, who has been nominated in the F.I.R. With specific role of firing. Even otherwise, the witnesses are not expected to let escort free the real culprits and substitute the appellant in such kind of offence, because substitution is a rare phenomenon.
11. It may be noted that the appellant, after commission of the offence, absconded and remained fugitive from law. Though the abscondence, by itself, is not sufficient to convict an accused person, but is a strong piece of corroborative piece of evidence of other direct and circumstantial evidence in the case. As the appellant is fugitive from justice since long, therefore, his conduct, immediately, after the incident, is indicative of his guilt, when considered in conjunction with the ocular and circumstantial evidence.
12. Diverting to quantum of the sentence of imprisonment, as already stated hereinabove, learned counsel for the appellant, instead of challenging the conviction on merit, has prayed for commutation of the death sentence into that of life imprisonment. Keeping in view the concession extended by learned Additional Prosecutor-General and the fact that as it has not be established beyond doubt as to by whose fire shot the deceased had been killed, therefore, in the peculiar circumstances of the case, the imposition of death sentence on the appellant is not warranted.
13. In the circumstances discussed above, appeal is partly allowed and while maintaining the conviction of the appellant, we alter his sentence from death to imprisonment for life, plus the same amount of compensation as awarded by the trial court. However, the convictions and sentences of the appellant recorded under section 324/34 and 337-F(i), P.P.C. Shall remain intact.
The aforesaid sentences shall D order to run concurrently, with benefit of section 382-E of the Cr.P.C.
' These are the reasons of our short order dated 18-8-2011 announced in the open court.