' MUHAMMAD AZAM KHAN, J.--- The appellant namely, Muhammad Aziz son of Mian Umar resident of Jano Bela, Police Station Khawaza Khela, District Swat, has filed this appeal against the judgment, dated 11-11-1996, passed by the learned Additional Sessions Judge/Izafi Zilla Qazi, Swat, whereby the appellant was convicted under section 302/34, P.P,C. For the murder/Qatl-eAmad of Maulvi Ihsanul Haq and sentenced him to death as 'Qisas' in addition to compensation of Rs,50,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. Along with this appeal we have before us Murder Reference No,20 of 1996 and we propose to dispose of both the matters by this single judgment.
2. The case of the prosecution briefly stated, is that on 4-8-1994 at 11.30 a.m. Mst. Razia wife of Maulvi Ihsanul Haq deceased made a report Exh.PA at the spot before Hakim Khan A.S.I. Police Station Khawaza Kilda (P.W.9), to the effect that on that day at 9.00 a.m. She was present in her house while her husband Maulvi Ihsanul Haq along with P.Ws. Abdul Jalil alias Khaista Mulla and Mian Munir were busy in constructing the adjacent 'Kandar', when in the meantime she heard the report of fire shot. She rushed to the spot and saw Muhammad Aziz appellant and his two sons namely Muhammad Zeb and Amir Zeb (absconders) firing indiscriminately at her husband, who was hit and killed at the spot.
' The complainant alleged that the occurrence was witnessed by her and the two witnesses mentioned above and the motive for the offence was that the accused were not accepting the deceased to act as 'Peshi Imam' of village Jano Bela.
3. Having come to know about the occurrence Hakim Khan A . S I. (P. W .9) reached the spot where he found the dead body of the deceased lying on a cot. He recorded the report Exh.PA of the complainant and sent the same to the Police Station for the registration of the case where it was incorporated into F.I.R. Exh.PA/1, by the S.H.O. Shamsur Rehman.
4. Hakim Khan, A.S.I. (P.W.9) took over the investigation of the case. He prepared. Injury sheet Exh.P.W.9/1 and inquest report Exh.P.W.9/2 of the deceased and then handed over the dead body to Dr. Habibur Rehman, Medical Officer Khawaza Khela Hospital who by then had arrived at the spot alongwith Additional S.H.O. Shamsur Rehman. The post-mortem examination was abandoned upon the request of Mst. Razia widow of the deceased, however, the aforesaid doctor examined the dead body for the injuries of the deceased and found the following:--
(1) Entrance wound on the skull anterior.
(2) Exit wound 4" in length on the neck at side.
(3)13 (Thirteen) entrance wounds on the back side.
(4)Twelve exit wounds each one is 2 to '3" inches on the chest and abdomen.
(5) Four entrance wounds on the left arm and four exit wounds on the same arm, Bones are fractured.
' In the opinion of the doctor death was due to shock to the heart and lungs. The medico-legal in this respect is Exh.P.W.1/1.
5. Since Dr. Habibur Rehman and the Additional S.H.O. Shamsur Rehman were abroad and were not available, therefore, upon the request of the learned P.P. Their statements recorded under section 512, Cr.P.C. Were transferred by the trial Court to the Sessions file and treated in evidence.
' The Additional S.H.O. Shamsur Rehman whose statement has been transferred to the Sessions file had investigated the case. He incorporated the contents of the Murasila Exh.PA into F.I.R. Exh.PA/1. At the pointation of the ocular witnesses he prepared the site plan Exh.PB with all its foot notes. He had taken into possession blood-stained earth, one spent bullet Exhs.P.1 and 12 empties of .7.62 bore vide memo. Exh.P.W.3/1. The blood-stained clothes of the deceased were taken into possession vide memo. Exh.P.W.3/2. Later on he delivered the dead body of the deceased to his heirs vide memo.
Exh.P.W.3/3. Since the appellant was serving , in the Telephone Exchange , Khawazakhel a , he, therefore , obtained the photo stat copy from the register of attendance Exh.P.W.5/1 which shows that the appellant had left the Exchange on 4-8-1994 at 7.00 a.m. After performing his night duty.
He also annexed with the file roaster of duty of the appellant from 26-7-1994 to 4-8-1994 which are Exh . P. W 6/1 and Exh .P .W. 6/2 respectively.
6. The prosecution evidence consists of 11 witnesses out, of which the three ocular witnesses namely, Mst. Razia (P.W.1), Mian Munir (P.W.2), Abdul Jalil (P.W.3) and Hakim Khan A.S.I. (P.W.9) are of relevance and importance.
' The accused-appellant was examined under section 342, Cr.P.C. By the trial Court. He denied ' the accusation and professed innocence but claimed that he had a dispute over a 'Kandar' with the prosecution witnesses who wanted to grab his property. However, he could not elaborate or explain his aforesaid plea to create a doubt in his favour.
7. The conviction of the appellant is based on the ocular evidence of the three witnesses mentioned above, the abscodence of the accused, the motive for the offence and the recoveries effected from the spot. The trial Court, therefore, was of the view that the ocular version was fully corroborated and the prosecution had proved its case against the appellant beyond reasonable doubt
8. The learned counsel for the appellant raised the following contentions before us:--
(i) that the ocular witnesses namely Mst. Razia and Abdul Jalil were related to the deceased while Mian Munir had with the appellant and that their testimonies are not supported by any circumstantial evidence;
(ii) that the recoveries of the crime empties from the spot do not tally with the medical report and are in conflict with the ocular account. Besides these empties were not sent to the Fire-arm Expert, in order to ascertain the facts that these were fired from one weapon or different weapons;
(iii) The delay of 2-1/2 hours in reporting the matter to the police would suggest that the charge was brought after consultation.
' On the other hand, the learned Assistant Advocate-General supported the impugned judgment, by re-iterating the reasons contained therein. He contended that the ocular witnesses were natural as the occurrence took place inside the under constructed house belonging to Mian Munir (P.W.2) and that the statements of these witnesses were uniform and consistent.
9. We have evaluated the ocular evidence on which the prosecution case essentially rests. It is an admitted fact, that the occurrence, took place inside the 'Kandar' belonging to Mian Munir (P.W.2).
This 'Kandar is contiguous to the house of the deceased intervened by a wall. The presence of Mst.
Razia (P.W.1) in her house is natural and so is the presence of Mian Munir (P.W.2) as their presence cannot be excluded or can be made the subject of doubt being natural witnesses to the episode.
Their evidence inspires confidence. Abdul Jalil (P.W.3) a relation of the deceased was said to be working on that day on daily wages with Mian Munir (P.W.2). The deceased, therefore, went to the under constructed 'kandar' either to meet P.W.3 or just to see the progress of the construction work being a close neighbour.
10. It is a natural phenomena that after having heard the volly of snots Mst. Razia rushed to the spot from Point No,5 to Point No,5-A and saw the occurrence herself, the distance between these two points is 15 feet. We are, therefore, unable to exclude the presence of P.W.1 Mst. Razia, Mian Munir (P.W.2) on the scene of occurrence as there is no motive on their part to falsely implicate the accused on a charge of capital punishment. Similarly we cannot doubt the presence of Abdul Jalil (P.W.3) as being a mere relation without any motive against the appellant would not discredit his testimony. There is nothing on the record to suggest that the deceased or the ocular witnesses, aforementioned had enmity or ill will with the accused party. In fact the motive advanced by the prosecution would lend ample support to the prosecution case that the deceased was done to death, simply because he was performing the duties of 'Pesi Imam' of the village mosque to the annoyance of the accused party.
' We are, therefore, of the view that the contentions of the learned counsel for the appellant with regard to the points raised by him are without substance.
10-A. It has been explained by the witnesses that after the occurrence children and woman-folk of the village had visited the spot and had carried away some spent bullets, the shortage of the recovery of empties from the spot, if any, would, therefore, be natural. In the instant case three persons have been charged for firing at the deceased and there were 18 inlet wounds on his dead body. The witnesses of the prosecution in a sudden attack, therefore, would not attribute specific role to any of the assailants. During the investigation after the arrest of the appellant on 6-12-1995 when his bail before arrest was refused P.W. Dil Aram had recovered a weapon of .7.62 bore at the instance of the appellant on 9-12-1995 which did not 'match with the crime empties recovered from the spot. This recovery, however, is not of vital importance as the same has been made after a belated stage. Neither these recoveries can favour the prosecution nor it is a disfavour to the appellant. We, therefore, ignore the same.
11. The delay in reporting the matter has been fully explained by Mst. Razia (P.W.1) in her cross- examination where she stated that her children are minor and that a person from the village had already left for Khawaza Khela who informed the police and that the police would arrive soon.
Besides, it cannot be expected from a lady having minor children who was under grief would possibly leave the dead body of her deceased husband and proceed to the Police Station all alone.
Her aforementioned explanation, therefore, seems probable and in the presence of a prompt charge supported by circumstantial evidence certainly there cannot be any delay in reporting the matter to the police.
12. Our positive and tentative assessment is that the ocular evidence of the prosecution which we have considered seems to be natural and it is supported by circumstantial evidence, i,e, the recoveries of the bloodstained earth, the crime empties recovered from the spot, the abscondence of the appellant for more than one year and the absence of the motive for a false charge. In' these circumstances we are of the view that the prosecution has succeeded to prove its case against the appellant beyond reasonable doubt. Since three persons have been charged for collective firing and no specific role of a fatal shot has been attributed to the appellant, therefore, we hold that it is a mitigating circumstance the benefit of which may be given to the appellant. While upholding the conviction of the appellant under section 302, P.P.C. We partially allow this appeal and alter the death sentence awarded to him into imprisonment for life with compensation of Rs,50,000 under section 544-A, Cr.P.C., if realised, shall be paid to the legal heirs of the deceased or in default of payment of compensation he shall undergo six months S.I. The benefit of section 382- B, Cr.P.C. Is also extended to the appellant. As the death sentence is not confirmed, the murder reference is answered in the negative.