Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 25 of 2001 filed by Ghulam Rasool, appellant who was convicted under Section 302(b) PPC and sentenced to death with further direction to pay Rs, 50,000/- as compensation, in default six months RI. The conviction and sentence was recorded by learned Additional Sessions Judge, Burewala vide judgment dated 14.12.2000.
Murder Reference No, 91 of 2001 for confirmation or otherwise of death sentence shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 10 a.m. on 7.3.1995 within the revenue estate of Chak No, 35/KB which is at a distance of 8 miles from Police Station Sahooka, District Vehari. The matter was reported to the Police by Falak Sher at Police Station on the same day and formal FIR Ex. PK was recorded by SHO at 10.30 a.m.
3. Briefly stated the facts of the case are that on the fateful day (7.3.1995) at 10 a.m., the complainant alongwith Shahmand, Muhammad Zaman and Muhammad Ramzan was going towards Chak No, 35/KB. Mst. Rani also accompanied the complainant. When they all reached in front of the lands of Ashiq, Ghulam Rasool armed with a .30-bore pistol emerged and raised lalkara that Ramzan would be given a lesson for illicit relations with Mst. Rani. After that, Ghulam Rasool fired at Mst. Rani which landed on her abdomen towards left. The second shot fired by Ghulam Rasool hit Muhammad Ramzan on his right shoulder and in order to save his life, he (Muhammad Ramzan) ran toward sugarcane crop. He was chased by accused Ghulam Rasool and was again fired which hit his abdomen, right hand, back and various parts of his body. The occurrence was witnessed by Shahmand and Muhammad Zaman. Injured Muhammad Ramzan succumbed to the injuries at the spot.
The motive alleged was that accused Ghulam Rasool had suspicion that Muhammad Ramzan had illicit relations with Mst. Rani, his sister.
4. Muhammad Ishfaq, SI/SHO (PW.9) took, over the investigation. He after registration of the formal FIR, visited the place of occurrence, prepared injury statement (Ex. PK), inquest report .(Ex. PL) and took into possession the blood stained earth vide memo Ex. PD. From the spot, two crime empties were secured vide memo Ex. PE. The injury statement of Mst. Rani injured was Ex. PN. Khadim Ali SI (PW.11) also partially investigated the case. He on 17.5.1995 arrested Ghulam Rasool, accused and the accused while in custody on 23.4.1995 got recovered .30-bore pistol which was taken into possession vide memo Ex. PF. After completion of all the formal investigation, the accused was sent to face the trial.
At the trial, prosecution in order to prove its case produce 11 witnesses in all. The eye-witness account was furnished by Falak Sher Zaman and Shahmand, PWs. 3, 4 and 5. The learned DDA tendered in evidence report of the Chemical Examiner (Ex. PP), report of the Serologist (Ex. PQ), report of the Forensic Science Laboratory (Ex. PR) and closed the case of prosecution. The accused in his statement under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant submits that no eye-witness being present at the spot, it was an un-witnessed occurrence and the FIR was recorded after due deliberation and consultation. The main stay of argument of learned counsel is that the appellant committed the murder of deceased Muhammad Ramzan under grave and sudden provocation and to support this version, Mst. Rani had also appeared as DW.1 before the trial Court.
7. Learned counsel for the State submits that it was a broad day light occurrence, the matter was reported to the Police promptly, mere relationship of the eye-witnesses with the deceased or the complainant is no criteria to discard their testimony and that prosecution story finds further corroboration from the recovery of fire-arm on the pointation of the appellant.
8. We have heard learned counsel for both the sides and have gone through the record with their able assistance. In the instant case, the motive is that there were illicit relations between Mst Rani and Muhammad Ramzan, the deceased. Firstly Mst. Rani was cited as PW but was then given up as having been won over. The application moved for producing her as CW was also dismissed by the trial Court and was finally produced as DW.1. In fact, she wanted to save her brother Ghulam Rasool and deposed that some other person had committed the murder of the deceased Muhammad Ramzan.
Though the plea of grave and sudden provocation was not taken by the appellant before the trial Court but under the law this Court can consider the said plea if it is borne out from the evidence produced by the prosecution. Muhammad Ramzan deceased had abducted Mst. Rani and on the fateful day she was in his company. The existence of illicit relations between deceased and Mst Rani was the case of prosecution itself. The appellant is real brother of Mst. Rani. He having seen the deceased in the company of his real sister Rani, under grave and sudden provocation committed the murder of Muhammad Ramzan. It is thus not a case of capital punishment but one falling under Section 302(c) PPC. We therefore, convert the conviction from Section 302(b) PPC to Section 302(c) PPC. The appellant is behind the bars since 17.4.1995. Now, we are in 2006. More than a decade has elapsed. The period which the appellant has remained in jail in our considered view would meet the ends of justice. We order accordingly. The sentence of compensation is set aside because in a case of such like nature, it is not to be awarded. Reliance is placed on the case of Mairaj Begum versus Ejaz Anwer and others (PLJ 1982 S.C. 435). The appellant shall be released forthwith if not required to be detained in any other case.
The death sentence of Ghulam Rasool appellant is not confirmed and Murder Reference is answered in the Negative.