' IJAZ-UL-HASSAN KHAN, J.---Khanzada alias Khano appellant aged about 22/23 years, was tried by Mr. Tariq Parvez Baloch, Additional Sessions Judge/Judge Special Court, Mardan at Takht Bhai for committing Qatl-e-Amd of his co-villager Mst. Usmania (44/45) wife of Saleh Hag, by firing. At the conclusion of the trial he was found guilty of the offence charged with and vide judgment dated 26-4-2003 was convicted under section 302(b), P.P.C. And sentenced to death. He was also directed to pay compensation of Rs.100,000 to legal heirs of deceased as required under section 544-A, Cr.P.C. Or in default to suffer S.I. For six months. The appellant has challenged his conviction and sentence by way of filing Criminal Appeal No.238 of 2003. A reference was also sent to this Court by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence awarded to the appellant. Since the Criminal Appeal and Murder Reference have arisen out of the same judgment, therefore, these are being disposed of by this common judgment.
2. The crime in question is alleged to have taken place on 20-5-2000 at 11-45 a.m. In front of the house of Fazle-Qadir P.W. In Mazdoor Abad, Takht Bhai and the matter was reported to the Police the same day at 12-10 p.m. By Mst. Usmania herself, who was brought to the Police Station in injured condition. The report (Exh.P.A.) wasrecorded by A.S.-I. Tahir Shah P.W. In the report the victim charged the accused for firing at her with pistol on the thigh of her left leg. The motive leading to the occurrence was stated to be that accused was interested in the hand of Mst. Rozmina, a minor daughter of the complainant but he was apprehensive that the proposal would not be materialized. Fazle Qadir and Mst. Zakia were stated to have witnessed the occurrence. After accomplishing the mission the accused was stated to have bolted away.
3. A.S.-I. Tahir Shah (P.W.11) after recording the report (Exh.P.A.) prepared injury sheet of the victim and sent her to Rural Health Centre, 'Ganjai' under the care of F.C. Sherzada for medical treatment.
He proceeded to the spot and on reaching there prepared site-plan (Exh.P.B.) at the pointation of eye-witnesses. He took into possession the blood-stained earth and one spent bullet (Exh.P.3) from the spot vide recovery memo. (Exh.P.W.4/1) in presence of marginal witnesses. During the course of investigation he was informed that the victim has expired in the hospital. He converted the section of law from section 324, P.P.C. To section 302, P.P.C. He also took into possession blood-stained shirt (P.1) and blood-stained shalwar (P.2) vide recovery memo. (Exh.P.W.1/1). He sent the incriminating articles for analysis to Chemical Examiner Peshawar and received the report (Exh.P.W.11/4). As the accused was avoiding his arrest, he initiated proceedings against him under section 204, Cr.P.C.
Read with section 87 thereof. He handed over the remaining investigation to A.S.-I. Sher Malook Khan (P.W.6). On 11-7-2000 the latter arrested the accused during raid. The accused, while in handcuffs, led him to the place of incident. He prepared pointation memo. (Exh.P.W:5/1) in this respect. After recording the statements of witnesses and fulfilling the necessary requirements, complete challan was submitted in Court against the appellant to face trial.
4. Lady Dr. Nargis, Woman Medical Officer, DHQ Hospital Mardan on 20-5-2000 at 4-30 p.m.
Conducted post-mortem examination on the dead body of Mst. Usmania and found the following:- - ' External Examination.
(1) Fire-arm entry wound 1/2" x 1/2" in size in front of left thigh.
(2) Outlet wound about 1" x 1/2" in size at the back of left thigh. Internal Examination.
' All healthy.
' In the opinion of the doctor, the cause of death was injuries to large vessles, leading to haemorrhage and shock. Probable time between injuries and death was found 4 to 5 hours and between death and postmortem examination between 1/2 to 1 hour.
5. The prosecution in order to prove its case produced 11 witnesses in all including doctor, Investigating Officers and other relevant persons.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied the prosecution allegation and claimed to have been falsely charged on account of a quarrel between Mst. Zakia and mother of the appellant. He also denied abscondence and stated that at the relevant time he was in Karachi in connection with labour and on learning about the false charge, he returned to the village and surrendered before the local police. The appellant led no evidence in defence and declined to be examined on oath.
7. The learned trial Judge acting on the material available on the record, proceeded to hold that statement of the victim amounts to dying declaration within the meaning of Article 46(1) of Qanun- eShahadat Order, 1984 and prosecution has succeeded to prove its case against the accused- appellant beyond shadow of reasonable doubt. He convicted and sentenced the accused- appellant as noted above.
8. Mr. Mazullah Barkandi, Advocate, in support of appeal mainly contented that the prosecution evidence is full of contradictions and improvements; that there is no independent eye-witness to prove the guilt of the appellant, that the learned trial Court has wrongly taken the report of Mst.
Usmania deceased as dying declaration; that the motive for the alleged offence has also not been proved and the appellant has been awarded the capital punishment illegally and that keeping in view the allegation in the F.I.R., the site-plan and the post-mortem report, the prosecution has not been able to establish its case beyond reasonable doubts. Concluding the arguments, the learned counsel maintained that in case the submissions made by him are not prevailed, the sentence of death awarded to the appellant may be converted into life imprisonment in order to meet the ends of justice. To substantiate the contentions, he placed reliance on Muhammad Younas Khan v. The State (1992 SCM R 545), Rab Rakhio and 2 others v. The State (1992 SCM R 793), Allah Dad and another v. The State (1995 SCM R 142), Sardar Khan and 3 others v. The State (1998 SCM R 1823), Muhammad Fayaz v. The State (PLD 1993 Peshawar 138) and Alim Dad alias Khan v. The State (2002 PCr.LJ 1785 Peshawar).
9. Mr. M. Tariq Javed, learned deputy Advocate-General,controverted the arguments of his adversary and contended that the appellant is directly nominated in the promptly lodged report for the commission of crime and in the absence of any motive to falsely implicate him, there is no reason to discard or disbelieve the prosecution version and impugned judgment is based on valid and cogent reasons and hardly calls for interference of this Court. Mr. Muhammad Yunas Khan, Advocate for the complainant adopted the arguments of Mr. Tariq Javed, learned Deputy Advocate-General and maintained that no good ground for reduction in sentence has been made out and the appeal warrants outright dismissal.
10. Notwithstanding the fact that counsel for the appellant has not seriously challenged conviction of the appellant and prayed for reduction in sentence, we have considered the merits of the case, in the light of the evidence on record. We are convinced that the learned trial Court has properly appreciated the evidence and has drawn correct conclusion qua conviction of the appellant. The offence in question, is alleged to have taken place on 20-5-2000 at 11-45 a.m. In front of the house of Fazle Qadir P.W. And the report was lodged the same day at 12-10 p.m. At Police Station Takht Bhai by Mst. Usmania herself, who was brought to the police station in injured condition. The matter has been reported to the police without loss of time and no time has been consumed in consultation and deliberation. The appellant has been directly nominated in the report and a specific role of firing has been attributed to him resulting in the death of Mst. Usmania complainant. Two witnesses of the spot namely Mst. Zakia, sister of the deceased and Fazle Qadir, relative of the deceased, fully support the charge. Blood-stained earth and one spent bullet (Exh.P.3) have been recovered from the spot which fully established the venue of occurrence. A definite motive has been assigned to the appellant actuating him to commit the offence in question. The medical evidence is in line with the prosecution version and abscondence of the appellant is a pointer towards his guilt. It is true that Mst. Zakia is real sister and Fazle Qadir is closely related to the deceased but this relationship by itself, is not enough to discard their evidence. It is well-settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence unless the witness has motive to falsely implicate the accused. In the present case, there is no enmity whatsoever between the appellant and the P. Ws. And the enmity suggested by the appellant in his statement tinder section 342, Cr.P.C. Hardly appeals to reason. The witnesses were put to lengthy and searching cross- examination by the defence but they withstood the test on all the material and relevant aspects and the defence could not break their testimony. The witnesses arc material witnesses. Their houses are in the same locality where the occurrence is alleged to have taken place. Their presence at the venue of incident cannot be doubted nor their evidence has been challenged to prove that they were not present and had not seen the occurrence. They had no cause or motive to falsely implicate the appellant and allow the real culprit go unpunished. The submission of learned counsel for the appellant that the above named witnesses have failed to account for their presence at the spot and their claim of having seen the occurrence, stands belied by host of circumstances, has not impressed us. Muhammad Muslim v. Mazhar Malik (1999 SCM R 103) and Jafar Shah v. Mian Yahya Shah (1999 SCM R 20).
11. The occurrence having taken place on 20-5-2000 the appellant was arrested on 11-7-2000 during raid by A.S.-I. Sher Malook Khan P.W. No doubt, abscondence by itself is not sufficient to convict an accused person but it is a strong piece of corroborative evidence of the D direct and circumstantial evidence in the case. The appellant remained fugitive from law for more than a month without any plausible and reasonable explanation. His conduct after the occurrence is indicative of his guilt when considered in conjunction with ocular and circumstantial E evidence in the case. Mst. Raheela v. Khan Bahadur and another (1992 SCM R 1036).
12. Having found that the guilt of the accused-appellant was substantially and materially brought home by the prosecution at the trial, through independent, reliable and trustworthy evidence, we advert to the question of sentence. We agree with learned counsel for the appellant that a single fire shot on the lower part of the body of the deceased lady brings the case out of the ambit of intention of murder which fact has been ignored by the learned trial Court. We feel that having regard to the facts and circumstances of the case the extreme penalty of death to the appellant was not proper and the sentence of imprisonment for life would sufficiently meet the ends of justice and accordingly we reduce his sentence from death to imprisonment for life. The sentence regarding compensation under section 544-A, Cr.P.C. Shall remain intact. The sentence of compensation and consequential imprisonment in default in the payment of the same shall also remain intact. The appellant shall be accorded benefit under section 382-B, Cr.P.C. With the above modification in sentence, we maintain the conviction and dismiss the appeal. Murder reference is answered in the negative. Death sentence is not confirmed.
13. The above are the detailed reasons for our short order dated 24-7-2003.
Sentence reduced.