' MUHAMMAD AZAM KHAN, J.---The appellant, Haider Zaman son of Abdul Zaman, resident of Bughicha Dheri, Tehsil and District Mardan, has approached this Court through the present appeal against the judgment and order of additional Sessions Judge-II, Mardan, dated 13-5-1998, whereby he was convicted under section 302, P.P.C. (QDO) and sentenced to death and also to pay a sum of Rs,50,000 to be paid to the legal heirs of the deceased as compensation or in default to suffer six months R.I. The learned Trial Court has sent Murder Reference No,15 of 1998 for confirmation of the death sentence. We propose to dispose of both the matters through this judgment.
2. Brief facts of the prosecution case are that Mir Zaman complainant took the dead body of his son Bahadar Sher on 27-9-1993 at 16-00 hours to Police Station Shahbaz Garhi and reported the incident to the effect that about 10/12 days ago his brother Abdul Zaman had beaten his grandson Bahadar Sher. In connection with the compromise Bahadar Sher and Abdul Zaman were present in the house of his relative Sher Rehman while the complainant stayed in his own house. In the- meantime he heard noise from the house of Sher Rehman, he went there and saw Abdul Zaman and the appellant Haider Zaman altercating with Bahadar Sher. Accused Haider Zaman had a pistol and his father Abdul Zaman ordered him to kill. Accused Haider Zaman fired at the deceased who was hit and killed. The accused then decamped from the spot. The occurrence was also witnessed by Sher Rehman.
' The case was registered vide F.I.R., No,408, dated 27-9-1993 under sections 302/34, P.P.C. At Police Station Shahbaz Garhi. Co-accused Abdul Zaman was arrested and on completion of the investigation challan was submitted to the Court, against him. He was tried and acquitted on 2-11- 1996. As the appellant Haider Zaman was absconding, therefore, he was declared a proclaimed offender.
3. Faridullah Khan, S.H.O. (P.W.10), after recording the report F.I.R. Exh.P.A. Read over the same to the complainant who after admitting it to be correct thumb-impressed it. He then prepared the injury sheet Exh.P.M./2 and inquest report Exh.P.M.3 of the deceased, and despatched the dead body to the mortuary for post-mortem examination. He then went to the spot, inspected it and recovered one empty of .30 bore Exh.P.P.1 giving smell of fresh discharge and sealed it into a parcel vide memo. Exh.P.R.1 in presence of marginal witnesses. He took into possession blood-stained earth from the spot and sealed it into a parcel Exh.P.W.6/1. The Investigating Officer prepared the site plan Exh.P.B. With all its foot-notes, drawing and sketches on the pointation of the complainant and the witnesses. He also took into possession shirt Exh.P.2, Shalwar Exh.P.3, blood-stained and having corresponding cut marks. He recorded the statements of the P. Ws. Under section 161, Cr.P.C. He sent the blood-stained articles to the Forensic Science Laboratory. He obtained warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Against the accused and handed over the same to the D.F.C. For doing the needful. He got recorded the statement of Sher Rehman under section 164, Cr.P.C. After completion of investigation he submitted challan under section 512, Cr.P.C.
4. Dr. Muhammad Tariq (P.W.5), conducted the post-mortem examination on the dead body of Bahadar Sher on 27-9-1993 at 5-30 p.m. And found the following injuries on his person:--
(1) Wound of entrance about 1/2 x 1/2 c.m. On the left of abdomen at the level of about 2 c.m. Above the umbilicus about 3 c.m. In left lateral position to umbilicus.
(2) Wound of exit about 1 x 1 c.m. On the left side of the back about one c.m. Above the left.
' On internal examination the doctor found cranium and spinal cord, vertebrae and spinal cords injured. Abdomen: Walls, peritoneum stomach, panchreas, small and large intestines spleen and left kidney were found injured. Stomach contained semi-digested food.
' In the opinion of the doctor death was due to injury to stomach, spinal cord and haemorrhage.
Time between injury and death was five to ten minutes and between death and post-mortem examination was 1-1/2 to 2-00 hours.
5. After submission of the challan in the Court, provisions of section 265-C, Cr.P.C. Were complied with. The appellant was formally charged to which he did not plead guilty and claimed trial.
6. In order to prove its case the prosecution examined 10 witnesses in all. After close of the prosecution case the accused was examined under section 342, Cr.P.C. Wherein he stated that he is innocent and has been falsely charged.
7. We have heard Mr. M. Zahuraul Haq, Bar-at-Law for the appellant, Mr. Musarratullah Khan, Assistant Advocate-General for the State and Mr. Khalid Khan, Advocate for the complainant and have gone through the record of the case.
8. The trial Court based the conviction of the appellant on the ocular account of P.W.7 namely, Mir Zaman who was the father of the deceased and during the course of the trial of acquitted co- accused namely Abdul Zaman his statement recorded by the trial Court on 11-7-1996 was transferred to the Sessions file as Amir Zaman had died. According to the aforesaid statement Abdul Zaman acquitted accused was the brother of the complainant while the present appellant was his nephew. According to his version there was no enmity between the parties but ten days prior to the present occurrence a quarrel had taken place between Abdul Zaman acquitted accused and the deceased. In order to patch up the difference between the aforesaid two, P.W.8 Sher Rehman who is the son of the maternal uncle of Mir Zaman and equally related to the accused party tried to patch up the dispute between them. Both the parties were present in the house of Sher Rehman for a compromise while the complainant was in the adjacent house when he heard the noise from the direction of the house of Sher Rehman. He, therefore, suddenly rushed towards the spot where he saw Abdul Zaman acquitted accused directing his son Haider Zaman, the present appellant, to fire at the deceased and upon the aforesaid direction Haider Zaman fired a shot at the deceased and killed him. Thereafter, the accused decamped from the spot. The dead body was taken to the police station where report was made by Mir Zaman (P.W.7). The statement of this witness is fully supported in all material particulars by Sher Rehman (P.W.8) who is related to both the parties as he wanted to effect a compromise in his house.
9. Admittedly, the occurrence took place inside the residential Kotha of the house of this witness in his presence, therefore, it cannot be said that he is not a natural witness to occurrence. Sher Rehman stated before the trial Court that Haider Zaman accused-appellant had abused the deceased upon which both had started grappling and it was Abdul Zaman the acquitted accused who directed his son Haider Zaman to kill the deceased and under the influence and direction of his father the appellant fired a shot at the deceased and killed him whereafter they decamped from the spot. The statements of these two witnesses is supported by the motive for the offence and corroborated by the recovery of a crime empty of .30 bore from the spot besides the abscondence of the appellant for more than 3 years. It is a case of single shot attributed to a single accused, as such there cannot be a mistake in identifying the actual culprit.
10. The learned counsel for the appellant candidly agreed not to challenge the conviction and sentence of the appellant on merits. He, however, straightaway requested that in order to secure the ends of justice a lenient view of the conviction and sentence awarded to the appellant may be taken. He further contended that there was no serious enmity between the parties. The occurrence took place inside the residential house of P.W.8 Sher Rehman when the compromise between the parties was being arranged by the said witness and that during such effort a quarrel ensued between the appellant and the deceased whereafter the acquitted Abdul Zaman father of the appellant directed his son to fire at the deceased, therefore, according to the learned counsel the appellant was under the direct influence of his father and that at his direction he fired at the deceased and killed him. As such the conviction and sentence in such-like cases was always life imprisonment. The learned counsel relied on 1995 SCMR page 256 wherein it was held that the High Court had altered the death sentence to imprisonment for life on the ground that the convicts had obeyed the orders of their father, the Honourable Supreme Court in the aforesaid case had dismissed the petition for leave to appeal and had upheld the decision of the High Court. He also cited 1976 SCMR page 128 in which similar proposition was discussed and the convicts who had committed the murder under the influence of the father had been awarded life imprisonment on conversion of the death sentence.
' The learned counsel for the complainant and the learned Assistant Advocate-General, however, supported the impugned judgment.
11. We have considered the arguments of both the learned counsel and the record and to our humble mind are of the view that both the parties are closely related to each other and that during the compromise efforts the occurrence took place all of a sudden upon the .Direction of the acquitted accused namely Abdul Zaman his son Haider Zaman, the present appellant fired a single shot at the deceased and killed him. We, therefore, feel that it is a case in which capital punishment is not called for and the impugned order needs interference. We accordingly partially accept the appeal and while maintaining the conviction of the appellant, his death sentence is altered into life imprisonment. The appellant should pay a sum of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default to suffer six months R.I., however, the appellant is extended the benefit of section 382-B, Cr.P.C. The murder reference is answered in the negative.