MUSHIR ALAM, J.---Mukhtar Alam-Appellant has impugned the conviction judgment dated 18.10.201 1. passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat whereby the conviction judgment dated 15.7.2010 rendered in Criminal Appeal No.676 of 2010 was dismissed and conviction and sentence handed down by the learned Additional Sessions Judge/Izafi Zilla Qazi-III, Swat in Crime No.8 dated 13.01.2009 for an offence under sections 302(b)/34, P.P.C. registered at Police Station Ghalagai, District Sawat aand sentenced to death as Ta'zir with Rs.2,00,000/- (two lac) as compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof six months' simple imprisonment was maintained and the same time Murder Reference No.25 of 2010 under section 174, Cr .P.C. sent by the learned trial Court was also af firmed.
2. Brief facts as appeared from the record are that the complainant Fazal Nawab lodged in FIR that he along with maternal cousin Asghar Ali were returnin g home from the Court of Sessions Judge, Gulkada in a Taxi Motorcar driven by Fazal Ghani (PW-9) when he was intercepted by the appellant-Mukhar Alam and another co-accused including his brother-Sardar who has since absconded along with two unknown persons.
3. Appellant was forcibly de-boarded from the Taxi, while the driver Fazal Ghani was directed to leave. Thereafter unknown persons assaulted the complainant by slapping while the appellant-Mukh tar Alam and his brother-Sardar started firing and from the firing of the appellant Asghar Ali was injured thereafter the accused persons made their escape good. The injured on his way to hospital lost his life. The prosecution to bring home the guilt of the appellant besides relying on the confes sional statement of the appellant found that the prosecution story is trustworthy , FIR was promptly lodged, appellant has been attributed specific overt act, incident was not reported at either of the Police Station that fell on way to the hospital from the place of occurrence which was considered by the Court below as a natural conduct to save the life of the injured. The incident is corroborated with motive, medical evidence, the empties recovered from the scene of occurrence; matched the 30 bore pistol recovered from the accused-appellant and the FSL report was also positive.
4. Learned counsel for the Appellant contended that the appellant is a younger to the co-accused his brother and the crime was not committed by him out of his own freewill he acted under the command of his elder brother- Sardar Alam, who is absconding.
5. We have examined the CNIC placed on record his date of birth is shown to be of the year 1976 and that of the appellant-Mukhtar Alam is 1978. The incident occurred on 13.1.2009 at the time of the incident age of the appellant was 31 years and that of his brother was 33 years, by no stretch of the imagination it could be said that he was a juvenile or of tender age and was influenced by his brother . Even otherwise no such case was setup rather such an argument goes against him as he admitted the commission of the crime. He next contended that the confessional statement is illegal. Learned counsel stated that confessional statement does not bear his signature. He could not elaborate any further to demonstrate as to how the confessional statement is illegal, he was arrested on 14.1.2009 and confessional statement was recorded on 15.1.2009.
6. We have seen the confessional proceedings Exh.PW -5 (page-59) and the confessional statement itself at page- 58, it is duly signed by the appellant. When the appellant was confronted to such confessional statement while recording his statement under section 342, Cr.P.C. he only stated that such proceedings are illegal. He did not deny his signature on the confessional stateme nt. Now at this stage disputing his signature is hardly of any significance nor was any such suggestion regarding the confessional statement put to the Judicial Magistrate-W ajid Ali Khan (PW5). It was next urged that the appellant was not put to identification test to Fazal Ghani (PW-9) the taxi driver therefore, the crime is un-witnessed and the complainant alone cannot be relied upon.
7. Fazal Ghani corroborated the complainant to the extent that he carried them in the taxi and he was intercepted by two armed persons and was directed to leave. He had not seen the actual occurrence of the crime, which was the case of prosecution as well. Fact remains that the crime empties were recover ed from the spot while recovery of crime weapon was led by the appellant. The FSL report produced as Exh.P W-10/12 is positive. The ocular version is also supported by the medical evidence. Therefore, no exception to the conviction as handed down by the learned trial Court and af firmed by the appellate Court could be taken.
8. The complainant-Fazal Nawab in cross-examination admitted than he complainant alleged firing by the appellant and his brother , but the appellant caused firearm injury to the deceased. However , the appellant in his confessional statement stated that both had fired. The complainant admitted that after five minutes of the incident in a Pickup Datsun Asghar Ali was carried first to village Nawagai and from there to the hospital in injured condition by Aqeel Wazir and Abdali. It took 15 minutes to transfer the injured to another Pickup Datsun, such fact was not recorded in the FIR. There is no explanation by the complainant as to why the injured was not directly taken to the hospital to provide prompt medical treatment, which could have saved his life. We have also noted that in his deposition the complainant stated that besides him, Asghar Ali (since deceased), Aqeel Wazir and Abdali had gone to the Sessions Court and all of them returned together , however , Aqeel Wazir and Abdali were not examined by the prosecution. The complainant had also suppressed the motive for the murder , which the appellant stated was the earlier murder by the deceased of his brother . Under such circumstances it would be appropriate to modify the sentence under section 302(b), IC P .P.C. from death to that of imprisonment for life.
9. Therefore, whilst upholding the conviction the appeal is partly allowed, however , remaining sentence as to the compensation to the extent of the sentence of death, which is reduced to one of imprisonment for life remains intact with the benefit of section 382-B, Cr .P.C.
10. Since the appeal has been decided, therefore, there is no question of suspension of sentence as prayed for in Criminal Petition No.1 146 of 2017 which has become infractucus and accordingly disposed of.
Above are the reasons of our short order dated 1 1.12.2017 which reads as under: "For the reason to follow this appeal is partly allowed, conviction is maintained while the death sentence under section 302(b), P.P.C. is modified to life imprisonment with benefit of 382-B, Cr.P.C. while other sentence to fine is maintained. Criminal Petition No.1 146 of 2017 is also disposed of."