MIAN BURHANUDDIN KHAN, J.-The accused/appellant Dawa Jan was tried by the learned Additional Sessions Judge, Peshawar for the murder of Hidayatullah by firing at him with a pistol in the main bazar of Bhana Mari, Peshawar City on 16-8-1972 at about 20-45 hours, and was convicted under section 302, P. P. C. And sentenced to death and a fine of Rs. 2,000 to be paid as compensation to the heirs of the deceased, vide judgment dated 8-3-1976. Appeal filed by Dawa Jan before the Peshawar High Court was dismissed and his death sentence was confirmed with a fine of Rs. 3,000 to be paid as compensation under section 544-A, Cr. P. C. Vide the impuned judgment dated 23-12-1976. The accused/appellant then filed a petition' for leave to appeal and leave was granted vide order of this Court dated 27-2-1978 on the ground that the two eye- witnesses in the case had resiled from their previous statements recorded under section 164, Cr. P.
C, and also to consider whether the report recorded in the form of F. I. R. Could be treated, in the circum--stances of the case as dying declaration of the deceased corroborated by the .Fact of the alleged abscondence of the accused.
2. According to the prosecution, on 16-8-1972 at about 8-45 p.m. The deceased was standing on the road in front of his garrage in Bhana Mari Bazar, Peshawar City where the accused came in Tonga and fired two shots at him with a pistol one of which proved effective and, consequently, the deceased fell down injured while the accused decamped in the same Tonga. The deceased, then alive was taken to the Police Post Bhana Mari where he himself lodged a report Exh. P. A./1 on which a case wits, registered in the Police Station Sabarb Peshawar at 21-00 hrs. On the same day vide F.
1. R. Exh. P. A. Report Exh. P.A./1 was recorded by *Muhammad Yusuf Khan, S. 1. Then Incharge of Police Post Bhana Mari, at the instance of the deceased ; it was read over to Hidayatullah deceased and he thumb-impressed the same in token of its correctness.
3. The Investigating Officer Muhammad Yusuf Khan, P. ,W. 9 prepared the injury-sheet Exh. P. D. And sent Hidayatullah (deceased) then alive, to the hospital for treatment, and himself proceeded to the spot, prepared the site plan Exh. P. B. Collected the blood from the spot and sealed it into parcel vide Exh. P. F.
4. Police party conducted a search to arrest the accused but when he was not found warrant Exh. P.
K. Was obtained under section 204, Cr. P. C. But with no effect. Then proclamation order under section 87, Cr. P. C. Was acquired but the same could also not be served and, therefore, proceedings under section 512, Cr. P. C. Were taken against the accused and .Be was pro--claimed as absconder.
5. On receiving the information that the accused was arrested and detained under 40/44 F. C. R. By the Political authorities of Khyber Agency and was sentenced to undergo three years imprisonment on 3-11-1976, Afzal Khan, S. H. O. Bhana Mari P. W. 5 formally arrested Dawa Jan accused/ appellant on I8-I1-1975 on a Zamima issued by the Illaqa Magistrate.
6. The main prosecution evidence in the case is the statement of Hidayatullah deceased recorded in the police post wherein the deceased, then possessed of his senses, stated that at about 8-45 p. m. He was standing in front of his garrage and there was sufficient electric light when Dawa Jan came in a tonga and fired two shots at him with a pistol (Tamancha) one of which hit him on the right side of his back and Dawa Jan decamped in the same tonga. Ahmad Gul son of Khan Gul and some other persons were present there whose names were not known to him (Hidayatuilah) and they witnessed the occurrence. The deceased further stated in his statement that about a month prior to the occurrence Dawa Jan and he had a verbal altercation but no report was made, and on this accountDawa Jan had fired at him.
7. Dr. Sher Bahadur Khan P.W. 1 examined the deceased Hidayatullah on 16-8-1972 at 9-25 p. m. And found a fire-arm injury on the left lateral side on the back of left side of the chest and admitted Hidayatullah to Surgical Ward "C" but when he succumbed to his injury, the same doctor conducted the post-mortem examination on 18-8-1972 and found his peritoneum injured and grazing wound on the wall of the large intestine at the spleenic flexture and in the opinion of the doctor Hidayatullah died due to haemorrh--age and shock caused by fire-arm injury.
8. Ahmed Gul P. W: 6 stated that the deceased used to ply tonga on hire and for that reason he was present in his garrage at Kohat Road ; that Dawa Jan accused/appellant was also known to him ; that on the day of occurrence at about 8-45 p. m. He was present outside the garrage of the deceased and when he heard the report of two shots followed by a cry of `Way' he ran towards the spot where he found Hidayatullah wounded and many persons were also present there. On inquiry by the witness Hidayatullah charged Dawa Jan for firing at him from a tonga. In the meantime, a car came there which was stopped and the deceased was taken to the Police Post Bbana Mari in that car. Hidayatullah deceased himself lodged the report at the police post, he was in full senses and made a coherent statement to the police, and thereafter Hidayatullah was taken to the Casualty Ward in the hospital, for treatment. Pir Muhammad P. W. 7 also gave a statement on the same lines. He also heard the report of the fire shot and on reaching the spot he heard Hidayatullah deceased charging accused Dawa Jan for causing him the bullet injury.
9. The accused/appellant when examined under section 342, Cr. P. C. Denied the charge and stated that he was charged at the instance of his enemies that the witnesses are under the influence of the brothers of the deceased and are his friends; and regarding his absence from the place of his residence he said that he was all the time present at his house but as he used to -go for gambling to the tribal territory, he was arrested there.
10. Learned counsel for the appellant could not assail the judgments of the Courts below not could he give any reason to discard the dying declaration made by the deceased before the Police immediately after the occurrence. The police officer who recorded the dying declaration Exh. P. A./1 was not questioned regarding the genuineness of the dying declaration or its contents. The dying declaration is further supported, by the statements of the two witnesses who are disinterested and have no personal grudge against the accused/appellant. There is no contradiction in their statements which are natural because the witnesses heard the fire shots and rushed to the spot where the deceased had fallen and on their inquiry Hidayatullah deceased informed them that Dawa Jan was the assailant. Furthermore, we find that there was a period of abscondence without any reasonable explanation. Thus, the prosecution case is free from any reason--able doubt.
11. As regards the sentence, we find that it is admittedly Pir Muhammad P. W. 7 that the deceased had illicit relations with the wife of the accused. We, therefore, consider that the penalty of death is not called for in this case because there was deep-rooted hatred in the mind of the accused against the man who had dishonoured him. Accordingly, we convert the death sentence into life imprisonment but maintain the sentence of fine of Rs. 3,000 to be paid as compensation to the heirs of the deceased.