' SYED AFSAR SHAH, J.---This Criminal Appeal is directed against the judgment dated 30-6-2012 passed by learned Additional Sessions Judge-III, Swabi. Whereby the appellant Attaur Rehman was convicted under section 302(b), P.P.C. And sentenced to death with payment of compensation of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. He was also convicted under section 324, P.P.C. And sentenced to ten years' R.I. With a fine of Rs,50,000 or in default thereof to undergo one year's S.I further_ Again he was convicted under section 452. P.P.C. And sentenced to seven years' R.I with a fine of Rs,20,000 or in default thereof to undergo six months' S.I further.
Benefit of section 382-B, Cr.P.C. Was also extended to the convict-appellant. As required under section 374, Cr.P.C., the learned trial Court has also forwarded a murder reference for disposal.
2. Facts relevant for disposal of the present appeal in brief are as under:-- On 30-7-2009 at about 10.00 hours Bor Wali Khan, the deceased then injured, made a report to S.I Amir Hamza, Ineharge Casualty DHQ Hospital, Swabi, in the casualty of the Hospital to the effect that on the day of occurrence, he along with his brother Abdullah Khan, son of Zohaib Ali Khan and other inmates were present in the house of his brother Abdullah Khan, when at about 09.15 hours absconding co-accused Liaqat and convict-appellant duly armed with deadly weapons entered into their house and started firing at them. That due to the firing of the accused he was injured whereas other inmates of the house escaped unhurt. The occurrence is stated to have been witnessed by Abdullah Khan, brother of the deceased, and his son Zohaib Ali Khan, whereas motive behind the offence is that Mst. Salma daughter of Abdullah Khan was married to absconding co- accused Liaqat and that from the last three years she because of her strained relation with her husband was living with her parents. Bor Wali Khan, the deceased then injured, in his first information report has charged the accused Attaur Rehman alias Tawer and Liaqat for commission of the offence.
3. Above is the narration of Bor Wali Khan, the deceased then injured, in the shape of murasila Exh.PA/1 which was recorded by Amir Hamza. S.I in the casualty of Swabi Hospital, whereafter he prepared his injury sheet and referred him for medical treatment under the escort of Nasir Khan F.C.
4. On arrest of the convict-appellant and completion of investigation, he was sent for trial to the court 'of Additional Sessions Judge-III, Swabi, who on conclusion of the trial found him guilty of the charge, convicted and sentenced him vide judgment herein impugned.
5. Learned defence counsel appearing on behalf of the appellant contended that the dying declaration made by the deceased then injured is full of doubts as there is nothing on the record which could show that the deceased then injured was capable of talking coherently and that he was not under the influence of his brother P.W. Abdullah Khan, that the dying declaration is nothing but like a statement of an interested witness and since it is not open to the test of cross- examination, therefore, it requires close scrutiny and should not be believed solely on the ground that being in the state of dying, he was not expected to tell a lie. He went on to say that the ocular account furnished by P.Ws. Abdullah Khan and Zohaib Ali Khan, the eye-witnesses, do not fit in with the entries made in the site plan, notwithstanding it was admittedly prepared at their instance.
Learned' defence counsel also pointed out contradictions in the account furnished by the eye- witnesses with adding prayer that it being a case of no evidence, the conviction and sentence of the appellant is not sustainable in the eyes of law. During the course of his arguments, learned counsel for the appellant also tried to make the dying declaration of the deceased then injured as doubtful and a weak type of evidence. In the alternative learned counsel for the appellant urged for conversion of death sentence into imprisonment for life by submitting that record did not show with certainty that it was the shot of the appellant which killed the deceased then injured and not that of the absconding co-accused. In support of his arguments learned counsel for the appellant made reference to the contents of the F.I.R. And Medico-legal Report, where the dimension of all the three entrance wounds on the body of the deceased then injuries are of the same size. He went on to say that in the circumstances of the case the sentence of death shall be too harsh.
6. As against that, learned counsel for the complainant assisted by the State counsel argued that in the present case the occurrence has taken place inside the house, that the presence of the eyewitnesses at the place of "Wardaat" is but natural and moreover, the deceased then injured himself has reported the matter which lends support from the statements of Amir Hamza, its author, and Bawar Shah, Medical Officer, who examined the deceased then injured at the first instance. Developing their arguments, they added before us that the dying declaration made by the deceased then injured is supported by the ocular account of P.Ws. Abdullah Khan, Zohaib Ali Khan, medical evidence, recovery of bullet of .30 bore, report of FSL and abscondence of the appellant.
7. We have considered the submissions of the learned counsel for the parties and gone through the record.
8. It appears from the F.I.R. Exh.PA/1 that in this case the occurrence took place on 30-7-2009 at about 09.15 hours, whereas the matter has been reported by the injured himself in the casualty of the Hospital at about 10.00 hours i,e,, within 45 minutes. The venue of "Wardaat" is the house of Abdullah Khan, who along with Zohaib Ali Khan have furnished ocular account in respect of the occurrence. So far as the dying declaration made by Bor Wali Khan, the deceased then injured is concerned, we see no reason to disbelieve the same, firstly on the ground that it is made within 45 minutes of the occurrence and again the deceased was alive till 2-8-2009 as according to P.W.14, who conducted autopsy on the body of the deceased, he died on 2-8-2009 in between 4-10 p.m.
And 11-10 p.m. Again it is in the evidence of S.I Amir Hamza that the report of the deceased then injured as Exh.PA/1 was also verified by the doctor by signing the same. Perusal of the F.I.R. As Exh.PA/1, which was made by the deceased then injured himself, further speaks about the same fact. Moreover, the dying declaration of the deceased then injured is also corroborated by the ocular account furnished by the eye-witnesses. It appears from the record that both the eye- witnesses have furnished the natural and straightforward account in respect of the occurrence by recounting the facts mentioned by the deceased then injured in his first information report. They were subjected to lengthy searching and taxing cross-examination but nothing could be extracted from their mouths which could diminish the probative worth of their testimony. There is absolutely no conflict between the account narrated by them and the entries made in the site plan, when seen with open eyes and attentive mind. Again there is no inconsistency between the dying declaration made by the deceased then injured, ocular account furnished by the two eye- witnesses and medical evidence rather it supplement each other. Moreover, the account furnished by the official witnesses including the Medical Officers also appears to be natural and straightforward, without any significant discrepancy in their version. Minor discrepancies/ omissions, if any, on the part of the prosecution in the matter is not of much importance when the entire evidence available on record appears to be trustworthy.
9. In view of the above, we have no hesitation to hold that the charge against the appellant has been proved beyond any reasonable doubt and that he has rightly been convicted by the learned trial Court.
10. The arguments advanced by the learned defence counsel in the alternative is however not without substance. Admittedly, the convict-appellant along with the absconding co-accused has been charged for firing at the deceased then injured and other house inmates. There are three fire- arm entry wounds on the body of the deceased and are of the same dimension/size. As against that record did not show with certainty that it was the shot of convict-appellant and not that of the absconding co-accused, which killed the deceased, therefore, we in the circumstances of the case convert the sentence of death into imprisonment for life. If any authorityls needed, reference can be made to 1995 SCM R 142 titled "Allah Dad and others v. The State" and PLD 1994 Peshawar 126 titled "Habib-ur-Rehman and another v. The State". Other sentences including the compensation/fine and imprisonment in default awarded by the learned trial Court are maintained but these shall run concurrently.
' The benefit of section 382-B, Cr.P.C. Shall also remain intact.
' With the above modification, the appeal is disposed of and similarly the murder reference is answered in the negative.
Sentence reduced.