' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,314 of 2001 filed by Fazal Khan, who, along with his brother Khalil Akhtar and father Ch. Lal Khan, faced trial in complaint titled "The State v. Ch. Lal Khan and others" for offences under sections 302/34/109 P.P.C., before learned Additional Sessions Judge, Attock, who after concluding the trial, vide his judgment dated 27-9-2001 while acquitting Khalil Khan and Ch. Lal Khan, convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,1,00,000 or in default six months, S.-I..
2. Murder Reference No,662 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated by Noor Hussain and mentioned in F.I.R. Exh.PG are that on the fateful day i.e, 29-3-1998 at about 11-15 a.m. While the complainant along with his cousin Muhammad Amin were going towards theii. Dhok and were near the land of Abdul Waris, Fazal Khan. And Khalil Akhtar sons of Lal Khan armed with pistols, residents of the same village, came out of the wheat crop. Fazal Khan raised Lalkara to Muhammad Amin that he will teach lesson to him for molesting his wife and fired at Muhammad Amin, which, hit him on his chest. Meanwhile, Khalil Akhtar also fired at Muhammad Amin on his neck, who fell down. While Muhammad Amin was lying on the ground both the accused caused successive fires on different parts of his body. The occurrence was witnessed by Abdul Waris, Shah Nawaz, who were working in their fields. The accused fled away from the spot. Muhammad Amin succumbed to the injuries at the spot.
4. The motive behind the occurrence was that three months prior to the instant occurrence wife of Fazal Khan Mst. Shah Sultan levelled allegation that Muhammad Amin had tried to molest her and a criminal case in that regard was got registered at Police Station Jand. In that case, Muhammad Amin was found to be innocent and the case was cancelled. It is also mentioned in the F.I.R. That for that reason Fazal Khan and Khalil Akhtar on the instigation of Ch. Lal Khan had committed the murder of Muhammad Amin.
5. After. Registration of formal F.I.R., the investigation of the case was taken over by Iftikhar Ahmad, S. -I./P.W.13. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.PJ and inquest report Exh.PK. He took into possession bloodstained earth and empties of pistol from the spot vide memo. Exh.PE and Exh.PF respectively. On 31-3-1998 he arrested Fazal Khan and Khalil Akhtar. On 2-4-1998 Fazal Khan while in custody led to the recovery of pistol P.6 along with live bullets, magazine and its license, which were taken into possession vide memo.
Exh.PB. After completion of investigation, the accused were sent up to face trial.
' Feeling dissatisfied with the investigation, the first informant filed complaint and the accused were tried in the complaint case.
6. At the trial, the prosecution in order to prove its case produced 13 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PM, Serologist Exh.PN and that of Forensic Science Laboratory Exh.PQ closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Ch. Lal Khan and Khalil Akhtar convicted and sentenced Fazal Khan-appellant as stated above.
7. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal has contended that Abdul Waris P.W.12 and Shah Nawaz including Noor Hussain, complainant who is first cousin of the deceased, are the cooked up witnesses; that there are three different passage from the Dhok of the deceased to the village; that how the accused could knew that the deceased would pass to that way; that the place of occurrence has been chosen intentionally by the complainant party to show the presence of the witnesses; that Abdul Waris in his statement before the police, recorded under section 161, Cr.P.C., stated that he was going along with Noor Hussain to the place of occurrence; that it is also unnatural that the deceased remained 15 paces ahead from Noor Hussain as he had to urinate; that the story of the complainant that he along with Abdul Waris went to the police station and from where they took police with them and came at the spot then police removed the dead body of the deceased; that Abdul Waris stated that after post-mortem his statement was recorded; that the witnesses are not only near related but are chance witnesses; and that all the above facts prove that no body had witnessed the occurrence.
' Further submits that the allegation against Fazal Khan and acquitted accused Khalil Akhtar is the same, according to F.I.R. And also according to the statement of the eye-witnesses before the learned trial Court; that both were attributed one effective shot each and other shots also; that in successive investigations Khalil Akhtar was found to be innocent and no recovery was effected from him but on the same grounds the appellant was convicted and sentenced; that only incriminating evidence produced by the prosecution against the appellant would be the recovery of pistol at his instance; that the appellant was arrested on 31-3-1998 and he himself produced his licensed pistol before the police; that when public witnesses were available, there was no need that all the witnesses of recovery should be from the police; that the police had passed from the village Kundarala but no body from the locality was associated with the recovery proceeding; that according to Dost Muhammad FC/P.W.3 he left the police station for the purpose of recovery at 10- 00 p.m., while Iftikhar Ahmad, S.-I./P.W.13 stated that they left police station at 10-05 a.m.; that according to Dost Muhammad P.W.3 except for mother of Fazal Khan no other womenfolk of his family was present there, while P.W,13 stated that no body was available in the house; that according to P.W.3 the box from where the pistol was recovered was not locked but only chained, while according to P.W.13 the box was locked and was opened .With a key, hence, these discrepancies cannot be overlooked; that Rab Nawaz FC/P.W.2 had stated that two parcels containing bloodstained earth and empties were given to him on 2-4-1998 at 8-30 p.m. And the same reached Forensic Science Laboratory on 3-4-1998; and that on the same morning the Investigating Officer took the pistol into possession but did not seal the same and handed-over the empties to P.W.2 on the same night at 8-30 p.m. For depositing the same to the Forensic Science Laboratory, hence the recovery loses all legal sanctity.
' The learned counsel submits that the deceased was a person of bad character and it has come on record that he was involved in some other cases including the case mentioned in the first information report; that in the village Abadi allegation of molesting of a woman is not levelled unless something is happened there; that if the prosecution case is accepted in totality even then there is mitigating circumstance in favour of the present appellant, as Muhammad Amin- deceased had molested Wife of the appellant and the case registered in that regard was cancelled due to the influence of comrades; and that cancellation of case registered against Muhammad Amin-deceased also added salt to the injuries of the appellant.
' In support of his submissions the learned counsel has relied upon the judgments 1987 SCM R 1864 and 1989 SCM R 165.
' As far as filing of complaint by the complainant against the appellant and two acquitted accused is concerned, it is a routine matter.
8. On the other hand, the learned counsel for the complainant and the learned Assistant Advocate General submit that though it is not on record but in fact Muhammad Amin never molested wife of the appellant and the said lady to conceal her real paramour made the deceased scapegoat in that case; that family honour is no more a mitigating circumstance, in this regard learned counsel for the complainant has relied upon 2003 SCM R 1568 and 1998 SCM R 862. Further submits that instead of adopting the legal course, the appellant had taken law in his own hand. In support of this contention learned counsel has cited 2000 SCM R 406. Learned counsel contends that case of the appellant is totally different to Khalil Ahmad, who has been acquitted by the learned trial Court, as he had no motive, no recovery was effected at his instance and that he was found innocent in three investigations.
' The learned A.A-G. Added that the deceased was not "Masoom ud Dam" and it was not a case of Qisas but it is a case of Taazir, so character of the deceased cannot be discussed for mitigating purposes. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. As far as the implication of the appellant for causing death of the. Deceased in 'this case is concerned, we have no doubt in our minds that it was the appellant who had committed murder of the deceased. One thing very important in this case is the role of Fazal Khan- appellant and his brother Khalil Akhtar (who has been acquitted by the learned trial Court), which is the same.. One injury on the neck and chest is separately attributed to them and rest, of the injuries are collectively attributed to both of them.'
' In three successive investigations Khalil Akhtar was found to be innocent. No recovery was effected from him. He was Wapda employee and was on duty at the time of occurrence. So if the prosecution can tell lie in such manner then it can also tell lie regarding some other aspects of the case.
10. Now the point which is to be considered is whether it is a case of death sentence or life imprisonment. In section 302(b), P.P.C. Two sentences are mentioned. It has not been denied that a case was got registered by Mst. Shah Sultana wife of the appellant against the deceased Muhammad Amin for molesting her. Said F.I.R. Is available at page 130 of the paper book, which was registered under section 354, P.P.C. On 26-12-1997 i.e, three months prior to the instant occurrence.
After investigation the police recommended for cancellation of the said case. This cancellation ignited the sentiments of the appellant. The submissions of the learned counsel for the appellant that in our society especially in the village no body tries to level false allegation of such nature for her wife, mother, sister or daughter and if such allegation is levelled then something must have been happened and if such case is cancelled then it becomes difficult for a person to live in the village because the people start taunting him. Even the motive is mentioned in the F.I.R. That a case was got registered by wife of the appellant against Muhammad Amin-deceased. At page 48 of the paper book it has come on record that some cases were got registered against the deceased and he was proceeded under section 182, P.P.C. There was also political rivalry in the village between the parties. Muhammad Amin was much more better placed in the village than the appellant, who was a poor person. Though the ocular account is corroborated by the medical evidence and the recovery of crime weapon, as three empties recovered from the spot matched with the licensed pistol of the appellant. It also shows false implication of Khalil Ahmad against whom PSLA has been filed. As far as Lai Khan against whom allegation of abetment was levelled is concerned, it was not mentioned in the first information report that at when and what time and in whose presence Lai Khan had made abetment. So PSLA filed against the above said persons is dismissed.
11. Our view is that though the appellant committed the murder of the deceased but due to family honour, so it is not a case of death sentence. In this regard we rely upon the judgments cited by the learned counsel for the appellant. Hence, while maintaining the conviction of the appellant under section 302(b), P.P.C. We alter his sentence to life imprisonment with benefit of section 382-Bj Cr.P.C. Order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained.
12. With the above modification in sentence this appeal is dismissed.
13. Murder Reference is answered in the negative. Death sentence is not confirmed.
14. Criminal Revision filed by Noor Hussain-complainant seeking enhancement of compensation amount, being devoid of force, stands dismissed.