JUDGMENT KH. MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No. 377 of 2001 filed By Ejaz Hussain alias Jadoo. Who faced trial in case F I R. No. 42, registered at Police Station Injura. District Attock, on 10.05.1999. For offences under Section 302, P.P.C., before learned Additional Sessions Judge, Attock, who after conclusion of trial, vide his judgment dated 26.10.2001 convicted the appellant under Section 302(b), P.P.C.. And sentenced him to DEATH with compensation of Rs. 50,000/- or in default six months R.I.
2. Murder Reference No. 814 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 mentioned in F.I.R. Ex.PJ are that on 10.5 1999 at about 6.00 p.m. While Mubammad Wazir complainant/PW-6 and his brother Saleem Iqbal were sitting near hotel of Arsala Khan in front of house of Azam Khan at thoroughfare for taking tea, Ejaz Hussain (their cousin) armed with 8 mm rifle came there and fired two successive shots on the back side of Saleem Iqbal, which existed from bally. Thereafter, the accused fled away from the spot. Saleem Iqbal succumbed to the injuries at the spot. Abdul Hameed and Abdul Hakeem brothers of the complainant and deceased also witnessed the occurrence.
4. The motive behind the occurrence was that Ejaz Hussain had suspicion that Saleem Iqbal deceased had illicit relations with his wife, so due to that suspicion Ejaz Hussain murdered Saleem Iqbal.
5. After registration of formal F.I.R., >the investigation of the case was taken over by Muhammad Afzal, inspector/PW-8. He proceeded to the place of occurrence,, took over the dead-body prepared injury statement Ex.PK and. Inquest report Ex.PL. He took into possession blood-stained earth from, the spot vide memo. Ex.PG. He also took into possession two empties of 8 mm rifle from the scene of occurrence vide memo. Ex.PH. On 24.05.1999 he arrested the accused, who while in custody led to the recovery of 8 mm rifle which was taken into possession alongwith its licence vide memo. Ex.PF. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in Order to prove its- case produced 8 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Ex.PP, Serologist Ex.PP/1 and that of Forensic Science Laboratory Ex.PO closed its case. The accused' in his statements recorded under Section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under Section 340(2), Cr.P.C. After conclusion of trial, the learned Trial Court convicted and sentenced the appellant as stated above.
7. After arguing the case at some length, the learned counsel for the appellant submits that the mitigating circumstances are flowing from the F.I.FL and the statements of the witnesses. He has relied upon NLR 1984 CRL. CASES 7 (SC) and NLR 1991 CRL. CASES 239. He lastly submits that it is not a case of capital sentence but life imprisonment.
8. The learned Assistant Advocate-General submits that though the appellant has not taken a specific play for committing the murder of the deceased but it spells out from the record and motive given in the first information report.
9. However, the learned counsel for the complainant submits that it is a fundamental right of human being that he cannot be killed due to Ghairat and family honour. He has relied upon PLD 2001 SC 96 and PLD 2002 SC 5581.
10. 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 in this, case is concerned, we have no doubt in our minds that it was the appellant who had committed the murder of the deceased. The learned counsel for the appellant has rightly submitted that mitigating circumstances. Are flowing from the first information report, which was lodged immediately after the occurrence and we reproduce hereunder as mentioned in the F.I.R.:- {{Urdu Text}}
11. In the statement of the appellant recorded under Section 342, Cr.P.C. In reply to question No. 3 and also in reply to question No. 7, and. Also from the record it spells out that the murder of the deceased was committed because of provocation. Both, the deceased and the appellant are first cousins. The deceased used to visit the house of the appellant being first cousin but unfortunately he kept a bad eye on wife of the appellant. The appellant had suspicion that the deceased had illicit relations with his wife.
12. Taking into consideration these mitigating circumstances and moreover two sentences are mentioned in Section 302(b), P.P.C. i.e. Death and life imprisonment. Even the learned AAG has submitted that the plea through not taken by the appellant but it spells out from, the F.I.R. And' the evidence. So. It is a case which calls interference of this Court only to the extent of sentence.
13. Taking into consideration motive mentioned in the F.I.R. We may observe here that PW-6 during cross- examination admitted that "it is correct that motive written in that F.I.R. Is that about 13/14 years before I had committed sodomy with Amir son of Lashkari Khan. Volunteered that it was mere a suspicion" and "prior to the occurrence, about 2/21/a months before Ejaz Hussain accused made complaint to my father that the deceased had illicit relations with his wife". It is common in our society that a person who has illicit relations with wife of any one else or a woman it is considered bad,
14. After having heard the learned counsel for the parties, having taken into consideration submissions made them respectively, having gone through the record with lire able assistance of the learned counsel for the parties and relying upon the judgments cited by the learned counsel for the appellant, we are of the opinion that mitigating circumstances exist in -favour of the appellant, so while maintaining conviction of the appellant under Section 302(b), P.P.C. We convert his sentence to imprisonment for life. Order of the learned Trial Court under Section 544-A, Ci P C is set aside, as in such like cases compensation cannot pe awarded. Reliance is made on Mairaj Begum v. Ejaz Anwar and others (PLJ 1982 SC 435). Benefit of Section 382-B. Cr.P.C. Is extended to the appellant.
15. This appeal with the above modifications stands dismissed.
16. Murder Reference is answered in the negative. Death sentence is not confirmed.