' ABDUL KARIM KUNDI, J.-- By a judgment and order dated 1-10-1987 learned Sessions Judge, Mardan recorded the conviction of Khanimullah and his two brothers, the appellants on the charge of the murder of Ghulam Sarwar deceased by firing at him in furtherance of their common intention under section 302/34, P.P.C. And accordingly sentenced each to death and a fine of Rs,10,000 or in default to undergo three months' imprisonment further and that on recovery fine to be paid to the legal heirs of the deceased as compensation. Appellants were also convicted and sentenced to five years' R.I. Each and a fine of Rs,2,000 or in default six months' R.I. Further on the charge of attempt at the life of Iftikhar P.W. By firing at him ineffectively in furtherance of their common intention under section 307/34, P.P.C. The learned trial Court has, however, acquitted the appellants on the charges of murderous assault on Frooq and Aziz P.Ws. By firing at them effectively under section 307/34, P.P.C. The appellants filed appeal as against the aforesaid conviction and sentences while the trial Court made a reference for the confirmation of death sentences awarded by him. It is proposed to dispose of the above two matters by a consolidated judgment as follows:-
2. Briefly stated on 26-2-1985 Iftikhar P.W. Of village Sawarian District Mardan had gone to Mardan in the morning and was returning in G.T.S. No, PRT.208 along other passengers when as soon the bus reached near the Bhaithak of Khanimullah appellant at 13-15 hours the three appellants armed with Topaks were found standing on the road who stopped the sus and Farooq and Arsala boarded into the bus and tried to bring down the complainant, over which grappling ensued and ultimately the passengers pushed the two accused-appellants down out of the bus and the bus started towards the village that under the command of Khanimullah appellant all the three appellants started firing at the bus as a result Ghulam Sarwar the deceased and one Farooq and one Aziz P.Ws. Were hit who were taken to the hospital, where Iftikhar P.W. Recorded a report to Muhammad Khan Incharge P.P. Tooru per Exh.PA./1 on the basis of which F.I.R. Exh.PA. Was registered. The said Police Officer prepared the injury sheet and inquest report of the dead body of Ghulam Sarwar deceased and sent the same to mortuary for autopsy under escort. The I.O. Has prepared the site plan at the instance of eye-witnesses with detailed footnotes and drawings. He had recovered two spent bullets from inside the bus and further found some six marks of bullets on the said bus. Later on he received blood-stained clothes of the deceased along with a sealed bottle containing piece of lead as sent by doctor.
3. Dr. Muhammad Ayaz (P.W.1) had conducted autopsy on the dead body of the deceased on 26- 2-1985 at about 3-30 p.m. And found one fire-arm entrance wound, 3/4 centimeter in diameter on posterior side of skull to the right side of occipital with no charring marks. He has recovered a bullet during the course of internal examination and further found that the bullet had passed through mid brain entering the epiphysial foosa of the middle cranial. The doctor stated the cause of death due to the severe damage of brain, probable time between injury and death instantaneous and that between death and autopsy one and a half hours. Dr. Muhammad Ayaz (P.W.13) had examined Farooq P.W. At 1-45 p.m. On 26-2-1985 and found one fire-arm inlet wound 1 centimeter in diameter on the back of left scapula. There were found no bony injury on X-Ray and the injury was accordingly opined simple. He has also examined Aziz PW. The same day at 2-10 p.m. And found fire-arm inlet wound 1 centimeter in diameter on the medial side of left eye on the left side of the nose and two bruises around the right eye, with nose bleeding and since there was a fracture on nasal bone, the injury was accordingly opined as grievous.
4. At the trial the prosecution examined Iftikhar, Farooq and Muhammad Din P.Ws. To furnish eye- witness account while other witnesses produced were Medical Officer, Investigating Officer, Police Constables and a relation of the deceased to identify the deceased at the time of autopsy.
Appellants produced Maqsood Ali son of Haji Ghulam Sarwar deceased and Ghulam Haider brother of the deceased in their defence to certify the genuineness of the compromise of the offence of murder of Ghulam Sarwar deceased. The appellants otherwise professed innocence at the trial and claimed to have been falsely charged at the instance of their enemies. The motive of altercation follow:A by exchange of firing over the turn of irrigation between Iftikhar complainant and the appellants was denied. The ascendance over a period of about 9 months was explained that as soon they had come to know of the charge of murder, they voluntarily surrendered before the police. The ascendance was on the other hand proved by the prosecution through search- warrants and proclamations placed on file and formally proved from a search witness.
5. After hearing the learned counsel for the appellants and the learned Additional Advocate- General appearing for the State and also putting the evidence on record to scrutiny we have found it a case that the learned Sessions Judge has on one hand believed, and very rightly, the evidence of Farooq injured P.W. But has still acquitted the appellants on the charge of murderous assault on him since he has compromised the matter with them. An offence of 307, P.P.C. Is not compoundable. Public Prosecutor has not sought the permission of the Court A to withdraw from the prosecution of the accused on the said charge under section 494, Cr.P.C. The learned Sessions Judge has thus committed a grave illegality in acquitting the appellants on the charge of murderous assault on Farooq P.W. On account of the alleged compromise. The learned Sessions Judge has also committed an equally grave illegality in acquitting the appellants on the charge of the murderous assault on Aziz injured P.W. For he has not been examined at the trial. There has been produced medical evidence by the prosecution vis-a-vis the injuries sustained by Aziz P.W.
There has also been the ocular evidence furnished by Iftikhar and Farooq P.Ws. And also to some extent by Muhammad Din P.W. About the fire-arm injury caused to Aziz P.W. At the hands of the appellants. The unfortunate aspect of the case is that the State has not come up in appeal against the acquittal of the appellants on the charges of murderous assault on Farooq and Aziz injured P.Ws. We have also not purposely minded to issue a suo motu notice on revisional side to the appellants as the same will likely entail into remand of the case for retrial on the said charges alongwith other charges on account of a joint trial.
6. The ocular evidence furnished by Iftikhar and Farooq P.Ws. Established the case of the murder and the murderous assault against the appellants by firing in furtherance of their common intention under section 302/307/34, P.P.C. Beyond all reasonable doubts. Their presence at the scene of occurrence is C established. They have duly identified the appellants. They had been very consistent in narration of the incident right from the stoppage of the bus till firing culminating into the murder of Ghulam Sarwar deceased and fire-arms injuries sustained by Farooq and Aziz P.Ws.
The defence put suggestions to the P.Ws. That there was a marriage party firing in the air in the close vicinity, which suggestion was denied by Iftikhar P.W. But was admitted as correct by Farooq P.W. That at the time of firing a 'Bare was also passing and the people were firing in the Tara'. The suggestion might not help the defence since the two P.Ws. Have stuck to the fact of firing by the appellants at the passengers' bus and that as a result of their firing a murder and fire-arm injuries to two passengers were caused inside the bus. The testimony of Muhammad Din Cleaner was ruled out of consideration since the investigation officer did not try to hold an identification parade nor the prosecut attempted to get the appellants identified by him at the trial in the Court but nonetheless without naming the appellants and the deceased and injured P.Ws. He had narrated the incident to have occurred as such. His testimony can he used in corroboration to the extent of the manner of the incident as occurred.
7. Besides consistent ocular evidence in bringing home charges of murder and murderous assault to the appellants due corroboration has been furnished by the medical evidence and the recovery of two bullets and blood-stained earth' from inside the bus and marks of six bullets on the body of the bus and last the unexplained abscondence of the appellants over a period of 9 months.
8. Farooq P.W. Had answered in cross-examination to a question that he had forgiven the accused and did not want to charge him for the offence. He had also stated that the legal heirs of Ghulam Sarwar deceased had effected a compromise with the accused party. The two D.Ws. One a son of Ghulam Sarwar deceased and the other brother of the deceased have also stated that they have pardoned the accused unconditionally and they were no longer interested in their prosecution. But the defence evidence as such cannot absolve the appellants of the charges of murder and murderous assault under section 302/307/34, P.P.C. Since the offences are not compoundable.
However, the circumstance of compromise may be validly used as a mitigating circumstance in awarding lesser punishment to the appellants.
9. In fine, we shall on one hand uphold the conviction of the appellants on the charges of the murder of Ghulam Sarwar deceased and ineffective firing on Iftikhar P.W. In furtherance of their common intention under section 302/307/34, P.P.C. But for the compromise effected with some or all of the heirs of Ghulam Sarwar deceased and also a single bullet having hit the deceased not specifically ascribed to either of the appellants we would accept the same as extenuating circumstances to award alternate sentence of life imprisonment to the appellants on the charge of murder of Ghulam Sarwar deceased. With this modification we would partially accept the appeal, commute the death sentence of the appellants to life imprisonment but would maintain the other sentences under section 307/34, P.P.C. As well fine under section 302/34, P.P.C. We would also extend the benefit of section 382-B, Cr.P.C. To the appellants. We would resultantly answer the murder .