' MUHAMMAD NAWAZ ABBASI, J.--- This petition is directed against the judgment, dated 27-5-2003 passed by the Lahore High Court, Lahore in Murder Reference No,111 of 1999, Criminal Appeal No,203 of 1999 and Criminal Revision No,186 of 1999 whereby the sentence of death awarded to the petitioner by the learned Sessions Judge, Mianwali, under section 302(b), P.P.C. Was converted into imprisonment for life with the direction to pay compensation of rupees one lac to the legal heirs of deceased under section 544-A, Cr.P.C. And in default thereof to undergo R.I. For two years. The benefit of section 382-B, Cr.P.C. Was also allowed to the petitioner and his criminal appeal with reduction of sentence was dismissed. The murder reference was answered in the negative and criminal revision filed by the complainant was also dismissed.
2. The facts in the background in sma ll compass, as narrated in the F.I.R. (Exh.P.E.) lodged by Abdul Rauf son of Allah Yar, complainant, at Police Station Piplan, District Mianwali, are that on 6-4-1997 at about 6-00 p.m. He along with Ghulam Sarwar. Rab Nawaz and Muhammad, Ibrahim, on receipt of information regarding murder of Amir Sultan, his cousin, were proceeding towards Jal Shumali at the trail of Moga (outlet) of Hakim Wala Nullah and when reached near the land of Ghulam Rasool, Muhammad Amir, Muhammad Ramzan and Ghulam Shabbir sons of Ghulam Muhammad, all armed with fire-arms ambushed in the crop, suddenly confronted them and on raising the Lalkara by Ghulam Shabbir to kill the generation of Ghulam Muhammad, Muhammad Ramzan fired at Muhammad Ibrahim who was ahead of the complainant and the witnesses. The second shot was fired by Muhammad Amir which hit Muhammad Ibrahim on chest and he fell down on the ground.
The motive behind the occurrence as stated was that Amir Sultan, brother of Muhammad Ibrahim, having developed illicit relations with daughter of Muhammad Amir, committed Zina with her and Muhammad Amir had demanded hand of a female of accused party in Jirga as compensation whereupon Muhammad Ibrahim, deceased, using insulted language qua the daughter of Muhammad Amir refused to accept the proposal for compromise as a result of which the accused party felt insulted and. Subsequently, in furtherance of their common intention, committed Qatli- Amd of Muhammad Ibrahim. The complainant leaving the dead body at the spot with his companions proceeded to the police station for lodging the report and Rizwan Manzoor, S.-I.
(P.W.10), after registration of case of the murder of two real brothers namely, Amir Sultan and Muhammad Ibrahim, first visited the place of murder of Amir Sultan and then the place of occurrence of murder of Muhammad Ibrahim. The Investigating Officer, after preparing the injury statement and inquest report, sent the dead body of Muhammad Ibrahim to mortuary and also recovered bldod-stained earth from the spot. Later, he took into possession the last-worn clothes of the deceased and also got the site plan prepared. Ghulam Shabbir, accused, was arrested on 30-4-1997 and he led to the recovery of weapon of offence (gun P.9) with four live cartridges (P.10/1-4) from his residence on 12-5-1997. Muhammad Amir and Muhammad Ramzan, accused were arrested on 27-5-1997 and they got recovered their weapon of offence (guns) with live cartridges on 265-1997 and 28-5-1997 respectively from their houses.
' The prosecution placed reliance on the evidence of motive, ocular account, medical and recoveries and to prove the charge, produced Abdul Rauf (P.7) and Ghulam Sarwar (P.W.8) as eyewitnesses. Dr. Maqbool Mubarik Malik, Medical Officer (P.W.1), who conducted post-mortem examination of the deceased, Qamar Abbas Shah, Halqa Patwari (P. W . 2), Nemat Ali, F .0 . (P .W .3), Mohyuddin (P. W . 4), Muhammad Jamil, F.C. (P.W.5), Muhammad Amir (P.W.6) and Noor Muhammad, A.S.-I. (P.W.9) who remained associated with the investigation. The deceased sustained the following injuries on his person:--
(i) A fire-arm wound of entry 4 c.m. x 3 c.m. On the front of left side of chest, 4.5 c.m. From midline and 2.5 c.m. Above and medial to left nipple.
(ii) A fire-arm entry wound 6 c.m. x 4 on the dorsum of left hand between the left index finger and left thumb.
(iii) A fire-arm exit wound 9 c.m. x 5 on the palmer surface of left hand.
' In his opinion the cause of death was hemorrhage and shock as a result of damage to right and left lungs, the heart and othervital organs of the body and injury No,1 was grievous and dangerous to life and also sufficient to cause death in the ordinary course of nature and so far as injuries Nos.2 and 3 being grievous also attributed towards killing and that all the injuries were caused by fire- arms."
' In addition, the prosecution also tendered in evidence the report of Chemical Examiner (Exh.P.N.) and that of Serologist (Exh.P.P.).
3. The accused in their statement under section 342, Cr.P.C. Denied the charge and taking the plea of innocence pleaded false implication. Muhammad Amir, petitioner, in reply to a question narrating the background of the occurrence made the following statement:-- "I am a driver by profession. I am a poor man. My residential Dera and that of Muhammad Ibrahim, deceased are close to each other. Ameer Sultan a brother of Ibrahim deceased committed rape with my unmarried daughter Mst. Shameem Akhtar as a result she became pregnant. On coming to know about the above said incident, I approached the local M.P.A. Malik Ghulam Shabbir Joya and placed my complaint before him. The local M.P.A. Formed a Punchait, which was attended and participated by about 2000 people from both the sides. Ameer Sultan and Muhammad Ibrahim admitted before the Punchait that the former had committed Zina with Mst. Shameem Akhtar.
Investigation Officer demanded the hands of some woman of the family of the complainant party so that my family honour could be vindicated. Muhammad Ibrahim deceased rejected and dismissed my above said proposal by saying that he was not ready to marry any woman of his family with a man of my family as prostitute Mst. Shameem Akhtar lived in my house. Muhammad Ibrahim proclaimed in presence of the participants of the Punchait proceedings that he would commit Zina with Mst. Shameem Akhtar.
' On 6-4-1997 my unmarried daughter Mst. Shameem Akhtar went outside of her house in the land near the Dera of Muhammad Ibrahim for cutting grass. Muhammad Ibrahim held her there and committed rape on her. Mst. Shameem Akhtar returned home and narrated the above said incident to me. I lost my self-control, picked up a gun, reached the spot and killed Muhammad Ibrahim by firing single shot under grave and sudden provocation. I took my daughter Shameem Akhtar to the police station the same day and narrated the above said incident to the S.H.O. The S.H.O. Did not record my version and insteadpostponed my arrest till 22-5-1997. The S.H.O.
Fabricated a false story and dishonestly involved my brother Muhammad Ramzan and Ghulam Shabbir. We are five brothers. We the three brothers were arrested in this case while the remaining two apprehended in the case of Ameer Sultan. There was none to prosecute our cause before the investigating agency. I preferred to die as the social and moral compulsions did not allow to pocket my insult."
4. Learned Sessions Judge, Mianwali, on the conclusion of the trial having found Muhammad Amir, petitioner, guilty of the charge convicted and sentenced him as stated above whereas his co- accused was acquitted.
' Learned counsel for the petitioner, pointing out discrepancies and contradictions in the statements of eye-witnesses, contended that their presence at the spot was highly doubtful and further their deposition was not supported by any independent evidence. The motive set up by the prosecution was not proved as the victim girl of the alleged incident of Zina-bil-Jabr was not produced as witness and similarly, the medical evidence would not provide corroboration to the ocular account. The evidence of recoveries also being not confidence inspiring, could not be relied to be used as corroborative piece of evidence and in the light of statement of petitioner under section 342, Cr.P.C. Contended that even if the prosecution version as such is believed, the cause of the murder being the family honour which was the result of grave and sudden provocation, the conviction and sentence under section 302(b), P.P.C. Was not justified and at the maximum, the case would fall within the ambit of section 302(c), P.P.C. For the purpose of punishment.
' Learned counsel for the State on the other hand, has submitted that the petitioner having admitted the occurrence, has not been able to prove the defence plea of grave and sudden provocation, therefore, the conviction and sentence awarded to him would not call for interference.
5. This is a case of two versions and we having put the prosecution case in juxtaposition to the defence version, according to which the petitioner having felt insulted because of immoral act of the deceased, reacted and fired at him, have found that nothing was brought on record to suggest that petitioner at any time, had seen his daughter Mst. Shamim Akhtar and the deceased together at any place. The case of the petitioner was that he having come to know about the immoral act of deceased with his daughter, lost self-control and in the heat of passion due to Ghairat under grave and sudden provocation fired at the deceased. This version of the petitioner even if is given full weight, still the element of grave and sudden provocation would be missing and it could hardly be suggested that the petitioner on receiving the information about the act of deceased, was provoked and instead of setting the machinery of law at motion against the deceased took the law in his own hands on the excuse of grave and sudden provocation. The commission of an offence due to Ghairat or family honour must be differentiated from the grave and sudden provocation in consequence to which crime is committed in the light of facts and circumstances of each case.
The plea of grave and sudden provocation may not be available to an accused who having taken plea of Ghairat and family honour, committed the crime with premeditation. The petitioner in the present case, with the intention to take revenge of the immoral act of the deceased of outraging the modesty of his daughter having prepared himself to commit the crime, armed with gun, went to the place of occurrence and fired successive shots at the deceased, therefore, his action would not be covered by the provisions of section 302(c), P.P.C., which may attract in a case, in which the essential ingredients of Qatl-i-Amd punishable under section 302(a) and (b), P.P.C. Are missing.
Learned counsel has also not been able to convince us that the case against the petitioner would not fall within the ambit of section 302(b), P.P.C. Or that it was a case of lesser punishment under section 302(c), P.P.C.
6. In the light of foregoing discussion, this petition being without ID any substance, is accordingly, dismissed. Leave is refused.