1. M. R. KHAN, J.-The appellants Mehr Muhammad and Wasiullah are full brothers. They were tried under section 302/34, P. P. C. For committing the murder of their first cousin Shamsher Ali and sentenced to death. On appeal and reference, the High Court of West Pakistan, Peshawar Bench, confirmed the death sentence of each and dismissed the appeal.
2. The prosecution case was that on the 30th of September 1965, Shamsher Ali, deceased, accompanied by his brother Saadatullah had gone to their field to irrigate their maize crop by water drawn from a well. At about digarwela, Zarshad, the were's brother of the deceased, came to the deceaseds' field to borrow their he-buffalo for the purpose of irriga--tion of his own land.
3. Zarshad was asked to wait for sometime as the buffalo wanted by him could not be spared till the irrigation of the deceased's land was completed. Shamsher Ali was watering the field, while Saadatullah and Zarshad went to a nearby land to pluck chillies there from. At about sunset time, when Shamsher Ali was still busy in his field, the two appellants, armed with shot-guns appeared there. Of them, Wasiullah fired one shot at Shamsher Ali. Immediately there--after Mehr Muhammad also fired another shot at him from his gun. Both the shots hit the deceased. He dropped down and died on the spot. The incident was witnessed by Saadat--ullah and Zarshad.
4. Leaving Zarshad with the dead body of Shamsher Ali, Saadatullah came to the village and informed Wali Muhammad and the deceased's brother Farman Ali that the two appellants had killed Shamsher Ali by gun-shots. Saadatullah returned to the spot, accompanied by Wali Muhammad and Farman Ali. They then placed the dead body on a cot and carried it to the Police Post Toru at a distance of about 3 miles from the, place of occurrence. At the police post, Saadatullah reported the occurrence which was recorded by the Head Constable-in-Charge at 8- 45 p.m. After holding an inquest, the Head Constable sent the dead body to the mortuary for post- mortem examination. Akbar Hayat, S. H. O., Police-Station, Sadar Mardan reached the place of occurrence the next morning at 5-30 a.m. And started the investigation. He recovered from the spot two empty shells of 12 bore (Exhs. P/1 and P/2), some blood-stained earth along with a large pellet and a card-board. He also prepared a site plan. On the same day, he arrested Mehr Muhammad, but Wasiullah was not traceable. Accordingly, proceedings under sections 87 -and 88 of the Code of Criminal Procedure were taken against him. As a result, he surrendered before the S. H. O. On the 9th of October 1965.
5. Previous to the present occurrence, Ismatullah, a brother of the appellants had been murdered on the 23rd of November 1948. For the murder of Ismatullah, Saadatullah and his brother Farman Ali were charged and tried under section 302/34, P. P. C. In that case, Saadatullah and Farman Ali were convicted under section 325, P. P. C. And sentenced to rigorous imprisonment for 5 years each.
6. They were also fined Rs. 500, each. The appeal preferred in that case was dismissed by the Court of the Judicial Commissioner, N.-W. F. P. It was alleged that the murder of Shamsher Ali in this case was by way of revenge for the previous murder of the appellants' brother Ismatullah.
7. The post-mortem examination revealed that the deceased had sustained two gun-shot wounds and that the pellets caused some other injuries near these wounds. The death of the deceased, in the opinion of the doctor was due to the gun-shot wounds.
8. Saadatullah (P. W. 8) and Zarshad (P. W. 9) gave evidence that both the appellants had come to the spot, armed with shot-guns, that each of them fired one shot at Shamsher Ali and that both the shots hit him and caused his instantaneous death. Both these eye-witnesses were closely related to the deceased. As such, the learned Judges took the view that the statements of the eye- witnesses could not be accepted unless these were corroborated by independent evidence. The learned Judges found that there were sufficient materials on record to corroborate the evidence of the eye-witnesses. Accordingly, they accepted the evidence of the eye-witnesses and maintained the appellants' conviction and sentences.
9. Learned counsel for the appellants submitted that the presence of P. W. Zarshad at the spot was very doubtful as he himself had nothing to do with the irrigation of the deceased's land. His further contention was that the materials said to be furnishing corroboration are not sufficient and dependable for the purpose of corroborating the evidence of the eye-witnesses. According to the medical evidence, the deceased had sustained two gun-shot wounds. The evidence of the eye- witnesses was also '.That each appellant had fired one shot at the deceased. Wali Muhammad P.
10. W. 7, who was a disinterested witness, stated that he and the deceased's brother Farman Ali were taking the evening meal in the hujra of Farman Ali when P. W. Saadatullah went there and informed them that the appellants had killed Shamsher Ali by gun--shots. This witness further stated that he went to the spot along with Saadatallah. And found P. W. Zarshad waiting near the dead body. The evidence of this witness, whose credibility could not be doubted, clearly established that P. W.
11. Zarshad was present at the time of the occurrence. The two empty shells of ' 12 bore Exhs. P/1 and P/2) recovered from the spot also went to show that only two shots had been fired from shot-gun as stated by the eye-witnesses. The doctor recovered some pellets from the dead body. This was yet another factor indicating that shot-guns had been used in killing the deceased. A According to the site plan (Exh. P. B.) prepared by the Investigat--ing Officer, the deceased's land was shown to have been freshly irrigated. This was also a circumstance furnishing corroboration. Of the two appellants, Wasiullah had absconded, and he surrendered only after proceedings under sections 87 and 88 of the Criminal Procedure Code had been taken against him. The absconsion of Wasiullah was also a circumstance furnishing corroboration. Lastly, the motive for the murder as alleged by the prosecution, was amply supported by the judg--ment of the Court of the Judicial Commissioner, N.W. F. P. (Exh. P. T.) which shows that in a previous case P. W. Saadat--ullah and his brother Farman Ali had been convicted and sentenced for causing the death of Ismatullah the brother of the appellants. The learned Judges were, therefore, right in holding that the statements of the eye witnesses in this case were substantially corroborated by other materials on record and that their evidence so corroborated was sufficient to establish the guilt of the appellants.
12. Learned counsel referred to the site plan and the evidence of the S. H. O. And submitted that the maize crop in the fields from where the assailants were said to have fired shots at the deceased, was more than the height of a man and, as such, it was not possible for P. Ws. Saadatullah and Zarshad to see the occurrence actually. It is true that there was maize crop above the height of a man in the fields where--from the assailants had fired shots, but the site plan clearly shows that both the appellants had taken their stand just at the edge of the fields containing maize crop.
13. Moreover, it is clear from the site plan that there was open space between the points where the assailants had taken their stand and the place where the deceased had been killed. Accordingly, there is no substance in the contention of the learned counsel that the eye-witnesses had not actually seen the occurrence.
14. Learned counsel lastly submitted that the extreme penalty of death is not warranted in this case in view of the fact that the murder of Shamsher Ali, deceased, was an outcome of a family feud and had been committed by way of revenge for the earlier murder of Ismatullah, the brother of the appel--lants. He even cited a decision of this Court in the case of Ajun Shah v. The State (PLD 1967 SC 185) in support of his contention. While private revenge cannot be regarded as a mitigating circumstance for lesser penalty, we think that there are some features in this case for which the ends of justice would be met if the death .Sentence of each appellant is altered to one for transporta--tion for life, and we alter their sentences accordingly. With this modification in the sentences, we dismiss the appeal.