SAAD SAOOD JAN, J.---The appellant Muhammad Ashiq (aged, 30 years) has been convicted by the Additional Sessions Judge at Faisalabad for an offence under section 302 of the Pakistan Penal Code on the allegations that on 11-10-1974 at 11 a.m he had fired at and thereby caused the death of Ata Muhammad deceased. For the said offence he was sentenced to death and also asked to pay a fine of Rs. 3,000 ; in default of the payment of the fine he was to suffer rigorous imprisonment for a period of 2 years. The appellant has filed this appeal against his conviction and sentence and the learned Additional Sessions Judge has also made a reference under section 374 of the Code of Criminal Procedure to this Court for the confirmation of the sentence of death imposed upon the appellant. This judgment will dispose of both these matters.
2. The deceased as well as the appellant resided in Chak No.449/JB. According to the prosecution the appellant suspected that the deceased was having an affair with his sister, Mst. Rashidan alias Rashidi. On the day in question the deceased went to the shop of Akbar (P. W. 10), the village cobbler, to get his shoes repaired. Muhammad Alam (P. W. 9) was already present there. Suddenly, the appellant came there armed with a rifle. He stood tit the threshhold of the shop of Akbar (P. W.
10) and raised a lalkara that he was about to take revenge for thin intrigue which the deceased was carrying on with his sister. Immediately thereafter he fired four or five time: with his rifle, hitting the deceased on the backside. The deceased was killed at the spot. The appellant then ran away with his rifle. The occurrence was also witnessed by Muhammad Khan (P. W. 8), father-in-law of the deceased, and one Kamir.
3. Immediately after the occurrence Muhammad Khan (P. W. 8) went to Police Station, Summandari which was at a distance of 6 miles from his village and lodged the F. I. R. At 1-15 p.m. S. 1. Ghulam Qadir (P. W. 11) was at the relevant time posted as S. H. O at the said Police Station. He arrested the appellant on 11-10-1974. On that very day the appellant led S. I. Ghulam Qadir (P. W. 11) to his dhari and from there produced a 7 mm. Rifle along with four cartridges. As no empty shall was recovered from the scene of occurrence it cannot be said that it was this very rifle which had been used for causing the death of the deceased.
4. The post-mortem examination of the deceased was performed by Dr. Muhammad Riaz Ali. The deceased had 10 fire-arms injuries on his body. Of these four were wounds of entrance and 6 were that of exit. On dissection the doctor found one of the ribs fractured and the second lumber vertebra partially fractured He also found injuries on the right lung, pleura, diaphragm and the right lobe of liver. In the opinion of the doctor the deceased had died immediately after the receipt of injuries.
5. The appellant pleaded not guilty to the charge against him. He admitted that he had caused the death of the deceased but alleged that he had done so under-grave and sudden provocation. His story was that the deceased had been carrying on with his sister. On the day of occurrence when he returned from his land he discovered that his sister was not at home. He took a gun and went to look for her. He found his sister sitting with the deceased in the courtyard of Akbar (P. W. 10). On seeing them together he felt extremely provoked. His sister Mst. Rashidan ran away. As the deceased was about to do the same he fired at him. The deceased was hit in the back and thus killed. The appellant did not lead any evidence to support his version.
6. The case of the prosecution rests mainly upon the testimony of Muhammad Khan (P. W. 8), Muhammad Alam (P. W. 9) and Akbar (P. W. 10). Kamir, the fourth eye-witness mentioned in the F. I.
R. Was not examined by the prosecution at the trial. Even if the testimony of Muhammad Khan (P.
W. 8) and Muhammad Alam (P. W. 9) be considered as suspect there is no justification whatsoever to disbelieve the evidence of Akbar (P. W. 10). The occurrence took place at his shop at a time when he ought to have been ordinarily present there. He had no enmity whatsoever with the appellant and there is no reason why he should have elected to perjure himself to falsely implicate the appellant. So far as Muhammad Khan (P. W. 8) is concerned it may be mentioned that he is closely related to the appellant also for the daughter of his sister is married to the appellant. There is nothing on the record which may indicate that at the relevant time Muhammad Khan's relations with his sister were in any way strained. It is extremely unlikely that this witness would falsely attribute the death of his own son-in-law to the son-in-law of his own sister. Therefore, there is sufficient evidence on the record which links the appellant with the death of the deceased.
7. As already mentioned the appellant himself had not denied his responsibility in the death of the deceased. His case is that be killed the deceased under grave and sudden provocation when he found his sister Mst. Rashidan sitting with the appellant. Now, there is no evidence on the record which may be taken to support the plea of grave and sudden provocation. All the three eye- witnesses produced by the prosecution have denied that at the relevant time Mst. Rashidan was present in the shop of Akbar (P. W. 10). The appellant led no evidence of his own to substantial his assertion in this regard. In the circumstances the plea of the appellan that he had killed the deceased under grave and sudden provocation must be rejected as without any foundation in the evidence. Accordingly, we uphold his conviction for the offence under section 302 of the Pakistan Penal Code.
8. The question of sentence requires serious consideration. Both Muhammad Alam (P. W. 9) and Akbar (P. W, 10) stated before the police that illicit relations of Mst. Rashidan with the appellant were known t the whole village. The appellant must have, therefore, been suffering from a sense of disgrace and humiliation in the village. He was thus an aggrieved party. The shop of Akbar (P. W.
10) where the occurrence took place is contiguous to the house of the appellant. It is also in evidence that the appellant's sister used to reside with him at the relevant time of occurrence.
Seeing the deceased in the vicinity of his house where his sister also lived might have provoked the appellant to put an end to cause of his shame. We, therefore, do not think that this is a fit case where the maximum penalty provided by the law should be exacted. Accordingly, we set aside the sentence of death and instead direct that the appellant should suffer imprisonment for life. The sentence of fine, however, does not require any interference. The appeal and the reference are disposed of accordingly.