' MUHAMMAD FARRUKH MAHMUD, J.--Shah Nawaz alias Shani son of Ghulam Nabi-appellant was sent up to face trial in case F.I.R. No,7 of 1999, registered at Police Station Saddar Khanpur, for offence under section 302, P.P.C., for causing death of Haji Allah Wasaya. Vide judgment, dated 18- 10-2000 Mian Jalal ud Din Akbar, Sessions Judge, Rahim Yar Khan, convicted the appellant for offence under section 302(a), P.P.C. And sentenced him to death as Qisas for committing murder of Allah Wasaya. He was also directed to pay compensation amounting to Rs,50,000 to the legal heirs of the deceased, in default of payment thereof he was to undergo R.I. For two years.
2. Feeling aggrieved, Shah Nawazappellant through this appeal has challenged his conviction and sentence. Murder Reference No,27 of 2000 has also been placed before us. We proposed to decide both these matters by this single judgment.
3. Ahmad Yar (P.W.1) son of the deceased Allah Wasaya went to Police Station Saddar Khanpur and narrated the incident. On his statement F.I.R. Sr. No,7 of 1999 Exh.PA was registered at 6-10 p.m. On 7- 1-1999, for offence under section 302, P.P.C. By Muhammad Mansha, SI (P.W.9).
4. The facts unfolded in the F.I.R. Are that at about 9-00 a.m. The complainant, his father Haji Allah Wasaya, Jam Balla alias Jam Bhudhu (P.W.2), Zafar Iqbal started towards Khanpur in lieu of mutation of agricultural land. When they reached metalled road Shah Nawaz alias Shani aimlessly fired and exhorted Lalkara that he would take revenge of the murder of this father. However, brotherhood intervened and the complainant along with three PWs went to Khanpur After mutation proceedings, the complainant, his father Allah Wasaya, Jam Balla and Zafar Iqbal boarded a wagon and alighted from the wagon in front of their house at 5-00 p.m. Shah Nawaz, who was armed with .222 rifle came out of the sugarcane field and started firing towards the complainant party, while exhorting Lalkara that he would kill the murderer of his father. The fires caused by Shah Nawaz-appellant hit Haji Allah Wasaya on chest and left arm, who fell down. Jam Balla (P.W.2) and Zafar Iqbal tried to apprehend Shah Nawaz. A grappling took place between Jam Balla and Shah Nawaz. Resultantly, Jam Balla received minor injury on his forehead. The accused/appellant while making aerial firing succeeded in running away from the spot.
5. The motive behind the occurrence was that 25/26 years earlier of the occurrence Allah Wasaya- deceased (father of the complainant) had murdered Ghulam Nabi father of Shah Nawaz- appellant. Subsequently, the matter was patched up between the parties but Shah Nawaz kept grudge in his heart and for that reason he killed father of the complainant.
6. After registration of the case, Muhammad Mansha, S.I. (P.W.9) reached the scene of occurrence and collected bloodstained earth vide memo. Exh.PC attested by Jam Balla (P.W.2) and Zafar Iqbal (not produced). He also collected three empties of .222 bullets P-5/1-3, which were lying on the scene of occurrence and secured the same vide memo. Exh.PD attested by afore mentioned witnesses.
7. On 26-1-1999 Muhammad Mansha, 5.-I. (P.W.9) arrested the appellant. At the time of his arrest one rifle .222 P-6 along with two magazines P-7 containing three live rounds were recovered from the appellant and the same were secured vide memo. Exh.PE attested by the above mentioned witnesses.
8. On the same date i.e, 26-1-1999, the appellant led to the recovery of another .222 rifle P-8 along with magazine P-9, which was hidden near the northern wall of the Brick Kiln owned by Jam Bashir.
The above noted articles were secured vide memo. Exh.PF attested by the witnesses mentioned above.
10. After completion of investigation, the accused was sent up to face trial. Charge was framed against him. He denied the charges and claimed to be tried. Thus, the trial commenced.
11. During trial, the prosecution produced 9 witnesses in support of its case. Ahmad Yar son of the deceased and Jam Balla cousin of Ahmad Yar appeared as P.W.1 and P.W.2 and furnished the ocular account. They stated in line with the story as given in the F.I.R. They also stated about the motive of the case. Jam Balla, in addition to that, stated about the recoveries. Dr. Agha Toheed appeared as P.W.3 and stated that on 7-1-1999 he conducted the post-mortem examination on the dead body of Allah Wasaya at 9-00 p.m. According to his observations, Injuries Nos.1 to 4 were caused by firearm. Injuries Nos.1 and 3 were the entry wounds, while Injuries Nos.2 and 4 were the exit wounds. Injury No,1 was on the chest cavity deep, while Injury No,3 was on the elbow. The deceased had also received injuries on his lower lip, upper lip, left cheek and on left eyebrow. The same were caused by blunt weapon. According to his opinion the injuries caused by firearm on the chest proved fatal and resulted into instantaneous death. He also examined Jam Balla on the same date i.e, 7-1-1999 and according to his observations Jam Balla had received simple injury "Shajjah-I-Khafifah" on his forehead, which was caused by a blunt weapon. Muhammad Altaf, Constable appeared as P.W.4 and stated that on 16-1-1999 he deposited a sealed parcel of crime empty with the office of Forensic Science Laboratory, Lahore. P.W.5 Ashafq Ahmad, Constable, stated that on 30-1-1999 he deposited the sealed parcel containing .222 rifle with the office of the Forensic Science Laboratory. Both these witnesses were not cross-examined. Muhammad Mansha, SI appeared as P.W.9 and stated about the registration of the case and investigation. The rest of the witnesses are formal in nature and need not be discussed. After placing on record the reports of Chemical Examiner Exh.PK, Bacteriologist Exh.PL and Forensic Science Laboratory Exh.PM, the prosecution closed its case. According to the report of the Forensic Science Laboratory the empties recovered from the spot wedded with the rifle P-8 recovered from the appellant.
12. In his statement under section 342, Cr.P.C. The appellant pleaded to be innocent, denied all the charges and in answer to question No,15 stated as follows:-- "I am innocent. As a matter of fact Jan Muhammad father of Jam Balla P.W. Was alleged to have been murdered by my father before my birth and that during the childhood Allah Wasaya deceased of this case had murdered my father Ghulam Nabi by causing sharp edge injuries. He removed one of his legs thereby the dead body of my father had to be buried without leg.
Afterwards the amputated leg was returned and it was reburied.
' Further that I was married with Mst. Naseem a first cousin of the complainant and niece of Jam Balla P.W. No male child had born out of the said wedlock. Thereby I remarried with Mst. Naziran, upon which the P.Ws. Bore grudge against me and we have strained relations with each other. For that reason, I have been involved in the murder of Allah Wasaya due to enmity and suspicion."
' Neither the appellant appeared in his defence under section 340(2), Cr.P.C. Nor he produced any defence witness.
13. After arguing the case at great length on various aspects of the case, the learned counsel for the appellant submitted that instead of pressing this appeal on merits he would pray for reduction of sentence in the circumstances of the case. In that regard, he has argued that Allah Wasaya (deceased in this case) murdered Ghulam Nabi-father of the appellant while the appellant was only 2/3 years old. After committing murder, Allah Wasaya removed one of the legs of the appellant's father, therefore, the dead body had to be buried without one leg. Subsequently the B amputated leg was returned, which was buried later. The learned counsel has placed reliance on the cases of Zulfiqar alias Bhutto v. The State (1995 SCM R 1668), Zulfiqar and 5 others v. The State (1974 PCr.LJ 100), Shera and others v. The State (1976 PCr.LJ 1028), and Sambali Khan v. The State (1999 PCr.LJ 1611). In the instant case the Division Bench of Peshawar High Court took lenient view when father of the accused was murdered by the deceased some 12/13 years back and deceased was charged with the offence but was acquitted. At that time the age of the accused was 7/8 years. The learned counsel also relied upon the case of Muhammad Aslam v. The State (PLD 1985 SC 257) wherein the Hon'ble Supreme Court had reduced the sentence from death to imprisonment for life, as the accused had taken revenge of the murder of his father, who was done to death 12/13 years before the occurrence and the accused was minor at the time of murder of his father
14. Conversely, the learned counsel for the complainant and the learned counsel appearing on behalf of the State have vehemently opposed this proposition and have argued that after the murder of father of the appellant the parties had entered into compromise and Mst. Naseem cousin of Ahmad Yar P.W.1 and niece of Jam Balla P.W.2 was married with the appellant (Shah Nawaz) and out of the wedlock two daughters had born, thus, no reason existed for causing cold- blooded murder of Allah Wasaya; that on the fateful day the appellant while armed with .222 rifle threatened and tried to take the life of Allah Wasaya in the morning, however, he could not do so due to the intervention of the relatives and thereafter he with the intention to take the life of the deceased hid himself in sugarcane field in front of the house of the deceased and the moment the deceased alighted from the wagon, the appellant callously while raising Lalkara took the life of the deceased, therefore, no mitigating circumstance was available in favour of the appellant; and that the learned trial Court has rightly convicted and sentenced the appellant to normal penalty of death.
15. We have heard the learned counsel for the parties at length and have scanned the entire record of the case. P.W.1 and P.W.2, though related to the deceased, have stood the test of cross- examination.
' Their statements are corroborated by the circumstances that the F.I.R. Was lodged promptly, the post-mortem examination of the dead body was conducted on the same night and the empties recovered from the spot wedded with the rifle recovered at the instance of the appellant, particularly when the empties were deposited with the Forensic Science Laboratory on 16-1-1999 while the appellant was arrested on 26-1-1999 and the rifle recovered at his instance was deposited with the Forensic Science Laboratory on 30-1-1999. The medical evidence also supports the ocular version. Thus the learned counsel for the appellant has rightly come to the conclusion that instead of pressing this appeal on merits he should pray for reduction of the sentence in the circumstance of the case.
16. We have given our anxious and considerate thought to the quantum of sentence in the circumstances of the case.
' Undoubtedly Allah Wasaya-deceased murdered Ghulam Nabi father of the appellant. At that time the age of the appellant was 2/3 years. P.W.1 admitted that his father Haji Allah Wasaya had given land as Badl-e-Sulah in lieu of murder of Ghulam Nabi father of the appellant and his father. Allah Wasaya was acquitted on the basis of compromise after remaining 4/5 years behind the bars. He further admitted that Mst. Naseem Mai, who was his cousin, was married with the appellant; that Mst. Naseem Mai was niece of Jam Balla P.W.2 and that two daughters were born out of the wedlock. Jam Balla P.W.2 admitted that Mst. Naseem Mai, his niece, was first wife of Shah Nawaz- appellant and that the marriage still existed; that as out of the wedlock no male child was born, Shah Nawaz contracted second marriage with Mst. Naziran who gave birth to a male child. He further stated that he was not unhappy with the second marriage of Shah Nawaz-appellant and rather he had visiting terms with the family of Shah Nawaz. Father of the appellant was murdered 25/26 years prior to the occurrence. The above noted developments had taken place after the murder. There is nothing on record that prior to the fateful day the appellant issued any threat to Haji Allah Wasaya or any feud took place between them. According to prosecution story itself the appellant had for the first time challenged Haji Allah Wasaya in the morning by raising Lalkara that he would kill the murderer of his father but at that time though the appellant was equipped with a rifle yet he did not fire at Allah Wasaya and chose to fire aimlessly. Nothing could prevent him from firing on Allah Wasaya at that time. This leads us to conclude that earlier part of the story relating to aimlessly firing is just an overplay on the part of the complainant party. The prompt motive, which led to the occurrence, is shrouded in mystery in the above noted circumstances. In somewhat similar circumstances the Hon'ble Supreme Court in the case of "Zulfiqar alias Bhutto v.
The State" (supra) converted the death sentence into life imprisonment by making the following observations:-- "The learned counsel then contended that the motive for the offence is not strong and seems to be shrouded in mystery. No doubt the enmity, which is alleged to be the motive, occurred before the birth of the appellant. The parties were living in proximity but nothing happened during past, 15/16 years. Therefore, there must have been some other reason, which has not been disclosed by either side particularly the prosecution.
' Furthermore, the P.Ws. Had witnessed the incident from some distance but what happened immediately before the appellant attacked, is not clear. No Lalkara has been alleged to the appellant to show that what was the motive for which he committed the murder. In these circumstances, we partly allow the appeal, convert the death sentence into life imprisonment with benefit of section 382-B, Cr.P.
' The sentence of fine of Rs,20,000 in default of payment 3 years' R.I. And in the event of realization compensation to be paid to the legal heirs of the deceased is maintained."
17. We find it appropriate to reproduce the observations made by the Hon'ble Supreme Court on the point of sentence in the case of Ajun Shah v. The State (PLD 1967 SC 185):-- "According to the prosecution, the appellant's motive for the crime was to avenge the murder of his father and brother. It appears from the record that in June, 1945, Hikmat Shah, brother of the appellant, was murdered and the deceased Fazal Raziq and others were charged for the offence, but they were acquitted. In October, 1945, appellant's father, Syed Qadir Shah, was murdered and Fazal Raziq was charged with the offence but he was a acquitted. At the time of the instant murder, i.e,, in 1965, the appellant's age was 28 years. It is, therefore, clear that when his father and brother were murdered he was only 8 years old. He belongs to the Frontier Province where it is a matter of tradition and even family duty to avenge the murder of a father. Such murders are committed in that area out of a sense of honour and self-respect. Since he was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw that deceased in a Tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this.
' A man is after all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind, which should be visited with extreme penalty.
' If the circumstances, which we have mentioned above, had been brought to the notice of the learned Judges of the High Court, perhaps, they would not have confirmed the sentence of death.
We are, therefore, of the opinion that in this case the sentence of transportation for life should be more appropriate than the sentence of death."
18. The upshot of the whole discussion is that we convict the appellant for causing murder of Allah Wasaya for offence under section 302(b), P.P.C. And reduce the sentence of death to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is given to the appellant. However, we enhance the amount of compensation under section 544-A, Cr.P.C. From Rs,50,000 to E Rs,2,00,000. The same would be recovered as arrears of land revenue and would be given to the legal heirs of the deceased. A due notice in this regard was given to the learned counsel for the appellant, who accepted it.
19. For the above noted reasons the murder reference is answered in the Negative. Death sentence is not Confirmed.