1. SAJJAD AHMAD, J.-The three respondents, namely. Sail Badshah, his brother, Khan Badshah, and their cousin, Nawab Shah, were found guilty by the Additional Sessions Judge, Peshawar, under section 325, P. P. C. On a charge laid against them for the murder of Naeem Khan, deceased. They were sentenced to 7 years' R. I. And a fine of Rs. 1,000 each, or, in default, to undergo 1 -- years' further R. I., under section 325, P. P. C. They were additionally convicted under section 379, P. P. C.
2. And sentenced to 3 years' R. I. And a fine of Rs. 300 each, or, fin default, to suffer 9 months' further R.
3. I., for stealing the shot-gun belonging to the aforesaid Naeem Khan. The sentences of imprisonment under both the charges were made to run concurrently. Out of the fine, if realised, a sum of Rs. 3,000 was directed to be given as compensation to the heirs of Naeem Khan. On appeal, a learned Single Judge of the High Court (Peshawar) has acquitted the respondents of both the charges. On a petition filed by Ghani Khan, the present appellant, who is a relation of the deceased, leave was granted by this Court on the 20th of November 1969, to consider whether A the acquittal of the respondents has proceeded on correct legal principles.
4. The occurrence took place at digarwela on the 9th of Novem--ber 1967, which was reported to the police station at 2 a. m. The following morning by the deceased himself at Police Station Karah, which is situated at a distance of 16 to 17 miles from the scene of occurrence. According to the prosecution case, the deceased was going from village Dam Killi to his own village Gul Shah Khel) when on the pathway, the three respondents, who were allegedly lying in wait for him, assaulted him with fists, kicks and butts of their topaks with which they were armed. Naeem Khan, deceased, was also carrying his licensed shot-gun bearing No. 496 K-45, which fell down on the ground during the scuffle. The respondent, Khan Badshah, picked up the shot--gun of the deceased with which he gave two or three more blows to him. After beating the deceased, all the respondents fled away from the spot taking with them the shot-gun of the deceased, already mentioned above. The occurrence was stated to have been witnessed by P. Ws. Khan Badshah and Sardar Khan, who were at the time coming from their fields and going to their houses along with their donkeys loaded with cut bajra.
5. There was no previous enmity between the parties. The motive for the crime alleged was that a few years before the occurrence, the accused had stolen some wheat of the deceased, who had forcibly recovered its price from them. The shot-gun of the deceased was recovered from the house search of the respondents, Sail Badshah and Khan Badshah, during their absence. Both of them had absconded after the occurrence and did not surrender till the 3rd of February; 1958.
6. The learned trial Judge based the conviction of the respon--dents on the dying declaration of the deceased incorporated in the F. I. R., as well as on the ocular testimony of the two eye--witnesses.
7. The recovery of the stolen gun and the abscondence of the respondents Sail Badshah and Nawab Shah were accepted as pieces of corroborative evidence, which . Supported the prosecution case.
8. The learned Single Judge of the High Court, in acquitting the respondents, has not relied on the dying declaration, because of the delay that had occurred in making it, and also because it was in some particulars inconsistent with the evidence of the eye-witnesses. The recovery of the stolen licensed shot-gun and the abscondence of the respondents, Khan Badshah and Nawab Shah, from the 9th November 1967 to the 3rd February 1969, have also been discounted on the view that they did not cover the inherent judicial weaknesses in the prosecution case.
9. We have carefully examined the evidence and we feel that the learned Single Judge, in recording the acquittal in this case, has disturbed the conclusion reached by learned Sessions Judge in regard to the guilt of the respondents, without any valid basis. The delay in the F. I. R. Which Naeem Khan made at the police station himself, and which was utilised as "dying declaration" on account of his subsequent demise, was g satisfactorily explained by the prosecution. The deceased was seriously injured, and it took some time to arrange for his transportation to the Police Station, which was ultimately done after a bus was arranged for. The only discrepancies that appear in the dying declaration of the deceased and the state--ments of the witnesses are that in the dying declaration the deceased had stated that all the three accused were armed with bandook, while the witnesses stated that one of the accused, namely Sail Badshah, was armed with a pistol. The other discrepancy was that in the dying declaration the deceased had stated that the accused- respondents had stolen 3 maunds of grain from him, while P. W. Sardar Khan, in his statement, had stated that the stolen wheat weighed only 2 maunds. We do not thinly that these discrepancies were of a nature which should have led to the rejection of the dying declaration as well as the ocular testimony, particularly as there was no serious enmity of the deceased or of the eye- witnesses against the respondents, which could have led to a false charge against them for a capital offence. The recovery of the licensed shot-gun of the deceased from the house of the respondents, Sail Badshah and Khan Badshah, was satisfactorily proved, and furnished a good corroborative evidence for the prosecu--tion case. Similarly, the abscondence of these two accused persons after the occurrence was not satisfactorily explained by them.
10. On a careful review of the evidence and the circumstances of this case, we are of the opinion that the learned Single Judge in the High Court was not right in interfering with the conviction of the respondents, as recorded by the learned trial Judge. The result is that we accept this appeal, set aside the decision of the learned Single Judge, and restore that of the trial Judge. The respondents shall surrender to their bail bonds, and shall be taken into custody to serve their sen--tences, as awarded by the learned Additional Sessions Judge, Peshawar, by his judgment dated the 20th of January 1969. The compensation of Rupees 3 thousand, out of the fine, if realised, shall be paid to the heirs of Naeem Khan, as directed by the trial Judge.