1. ' BASHIR A. MUJAHID, J.--Walayat son of Muhammad Ali Akbar was tried under section 302, P.P.C. By the learned Sessions Judge, Hafizabad in case F.I.R. No,86 dated 13-2-1998 registered at Police Station City, Hafizabad for murder of Nazir Hussain aged 24/25 years and vide judgment dated 20- 7-1999 he was convicted under section 302(b), P.P.C. And sentenced to death. He was also ordered to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased, failing which to undergo two years R.I.
2. ' The brief facts of the case are that F.I.R. Exh.P.E. Was recorded at Police Station City Hafizabad at 8- 15 p.m. On 13-2-1998 on the statement of Muhammad Iqbal, P.W.7 alleging therein that he alongwith his son Nazir Hussain (deceased) was waiting for his guest standing near Akram Barber Shop (Hamam) where Walayat accused armed with .30 bore pistol emerged all of a sudden raised Lalkara that he would not spare them for insulting him and fired, two successive shots hitting Nazir Hussain on front side of his chest due to which he fell inside Akram's shop. Qazi Ikram Ullah, P.W.8 and one Mirza Afzal Hussain also witnessed the occurrence. They tried to apprehend the accused but he escaped from the spot with weapon of offence. Nazir Hussain succumbed to the injuries. The motive for the occurrence was alleged that on 11-2-1998 there was a quarrel between Walayat accused and Nazir Hussain deceased but the dispute was patched up but the accused nourished grudge and due to take revenge he committed the offence. Baqir Hussain Shah, S.-I., P.W.10 after registration of the formal F.I.R. Undertook the investigation and he arrived at hospital and took the dead body of Nazir Hussain into possession and prepared the injury statement through memo.
3. Exh.P.G. And inquest report Exh.P.H. And dispatched the dead body to the mortuary for postmortem examination and he himself came at the spot, collected the blood through cotton from inside the Akram's shop through memo. Exh.P.F. On 14-2-1998 he took into possession last worn clothes of the deceased through memo. Exh.P.A. He also got prepared the site-plan Exh.P.B. Through Maqsood Ahmad Bhatti, Draftsman. On 24-2-1998, he arrested the accused who on 27-2-1998 while in police custody led to the recovery of pistol .30 bore P.3 and four live cartridges P.4/1-4 through memo.
4. Exh.P.E. He completed the investigation and submitted the challan in Court.
5. ' The trial Court framed the charge which was denied by the appellant/accused and he claimed trial.
6. ' During the trial the prosecution examined as many as 10 witnesses to prove the guilt of the accused.
7. ' The medical evidence was furnished by Dr. Muhammad Munir, P.W.6 who conducted the post- mortem examination on the dead body of Nazir Hussain and found the following injuries on his body:--
(1) A lacerated wound 1 x 1 c.m. On the center of the front of the chest passing through sternum at the level of the 2nd I.C.S. Corresponding holes were present in the Qameez and Bunian.
(2) A lacerated wound 1-1/2 x 1 c.m. On the front of the chest on left side at the level of the 2nd I.C.S. (inter costal space). The wound was 4 c.m. Apart from the Injury No,1, corresponding holes on the Qameez and Bunian were also present.
8. ' The ocular account was furnished by Muhammad Iqbal, P.W.7 who was complainant of the case.
9. He supported the version of the F.I.R. And narrated the motive for the occurrence. Qazi Ikram Ullah, P.W.8 who is husband of grand daughter of P.W.7 was also eye-witness of the occurrence. His statement is in line with that of the complainant P.W.7. Muhammad Yaqoob, H.C. P.W.1 kept the sealed parcel of blood-stained swa bs and of pistol .30 bore in safe custody in police Maalkhana and handed over to Khadim Hussain, F.C. P.W.2 for its delivery at the office of Chemical Examiner and Forensic Science Laboratory who delivered the same onward. Muhammad Ashraf, F.C. P.W.3 escorted the dead body of Nazir Hussain for postmortem examination and produced last worn clothes before the Investigating Officer and attested the recovery memo. Exh.P.A. Muhammad Hanif Saqi, P.W.4 identified the dead body of Nazir Hussain at the time of post-mortem examination.
10. Masood Ahmad Bhatti, P.W.5 prepared the site-plan. Javed Iqbal, P.W.9 attested the recovery memo. Exh.P.F. Whereby bloodstained cotton swabs were taken into possession by the Investigating Officer Baqir Hussain Shah, S.-I. P.W.10 investigated the case and submitted the challan as discussed above.
11. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M. As well as Forensic Science Laboratory Exh.P.N.
12. ' After closing the prosecution evidence, statement of the accused/ appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question as to why the case against him and the P. Ws. Deposed against him, he stated as under:-- ' 'The complainant got this case registered against me by distorting the real facts, infact about 2- 1/2 years prior to the occurrence I went to see the deceased at Rawalpindi where he was employed and was best friend of mine but after mixing some intoxicants in the food and getting me unconscious, he committed sodomy with me and thereafter, on different occasions he used to ridicule me by recalling the said incident. On the night of occurrence I and the deceased proceeded to the place of occurrence i.e, Muhammad Akram's barber shop (Hamam) where he again tried to agree me for the satisfaction of his unnatural lust or to disclose the previous incident of sodomy which had taken place at Rawalpindi, to the public which fact infuriated me I lost my self control and both of us grappled with each, other but since it was a dark and cold night and the deceased was armed with a pistol with which he attempted to oblige me to submit myself before him for the satisfaction of kts sexual lust, I fired at him with his own pistol after snatching the same from him but later on I came to know that due to said fire-arm injuries he had expired. I myself had surrendered before the police before the registration of case, at the police station. All this occurrence took place inside the Akram's barber shop (Hamam)."
13. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. Learned trial Court has sent up Murder Reference No,388 of 1999 for confirmation of death sentence of the appellant, therefore, both the matters are being decided by this judgment.
14. ' Learned Defence Counsel for the appellant has argued that the place of occurrence is inside 'Hamam' of Muhammad Akram and not outside the shop as alleged by the prosecution because the blood was collected with the help of cotton swabs from inside the shop. According to the Investigating Officer he had not mentioned the fact that there was any trail of blood at the barber shop of Muhammad Akram, therefore, the occurrence did not take place in the manner alleged by the prosecution and the defence plea taken by the accused from the very beginning is more natural and believable. It is further argued that the motive as alleged by the complainant has not been proved. According to the learned Defence Counsel the occurrence has been admitted by the accused but his plea was that actually the deceased was armed with pistol and attempted to commit sodomy with the appellant, on which, the pistol was snatched by the appellant and fired at the deceased and the prosecution story has not been proved against the appellant beyond shadow of doubt. Lastly it has been argued that keeping in view the entire circumstances it is not case of capital punishment and the sentence be reduced.
15. ' The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
16. ' We have given our due consideration to the contentions raised at the bar and also perused the record.
17. ' It is a case of single accused. The appellant has been nominated in the promptly recorded F.I.R.
18. The occurrence has been admitted and only the manner it took place has been disputed by the appellant, therefore, we find that the prosecution case has been established by ocular account furnished by Muhammad Iqbal, P.W.7 and Qazi Ikram Ullah, P.W.8 corroborated by the medical evidence and by defence plea itself, therefore, we do not find any reason for interference in the conviction recorded against the appellant.
19. ' As far as sentence is concerned the motive alleged by the appellant that there was a quarrel between the deceased and the appellant, two days ago has not been proved as no witness of the said quarrel was examined by the prosecution. On the other side, the first plea of the appellant before Baqir Hussain Shah, S.-I. P.W.10 as well as before the trial Court was that the deceased and the appellant were fast friend and they had visiting terms on each other. The deceased had committed sodomy with the appellant after administering intoxicants in Rawalpindi and he used to taunt him off and on about the said occurrence and at the time of occurrence the deceased took the appellant into Muhammad Akram's barber shop with the intention to commit sodomy on pistol point and on his refusal there was a grappling between them; the appellant snatched the pistol which went off during the struggle and the deceased received the injuries. This fact has been admitted as correct by Baqir Hussain Shah, S.-I./ Investigating Officer P.W.10 that it was the first plea of the accused before him. It has also been admitted by the Investigating Officer that he had not mentioned in his inspection note that there was a trail of blood in front of shop of Muhammad Akram, barber. The blood was taken into possession from inside the shop which corroborates the defence plea that the occurrence took place inside. In absence of proof of the motive as alleged by the prosecution it is not clear what happened immediately before the occurrence between the deceased and the appellant. By placing the prosecution story and the defence plea in juxtaposition we find that the occurrence might have been taken place as alleged by the appellant and he might have done this act under provocation, therefore, taking it as mitigating circumstance, we while maintaining the conviction, reduce the sentence to imprisonment for life which will meet the ends of justice. Benefit of section 382-B, Cr.P.C. Will also be available to the appellant. With the above modification in the sentence the appeal is dismissed. Murder Reference No,388 of 1999 is answered in the Negative.
20. Sentence reduced.