' SH. ABDUL RASHID, J.---Muhammad Sher alias Sheri son of Amir Caste Marra resident of Chak No,134-NB Sargodha (appellant) was tried, in case F.I.R. No,451 dated 20-9-1997 under section 302, P.P.C. Registered at Police Station Sillanwali, by the learned Sessions Judge, Sargodha, who vide judgment, dated 3-4-1999 convicted the appellant under section 302(b), P.P.C. And sentenced him to death, subject to the confirmation by the High Court, and further ordered him to pay Rs,20,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default in payment of which to further undergo six months S.I.
2. Feeling aggrieved by his conviction and sentence the appellant has filed this Appeal No,237 of 1999 whereas Murder Reference No,174 of 1999 has been received for confirmation of the death penalty awarded to him. Both the appeal and the murder reference are being jointly disposed of by this judgment.
3. Briefly stated the facts of the prosecution case set up in the F.I.R. Exh.P.G. Lodged by Muhammad Farooq son of Mehmand complainant are that on 20-9-1997 at about 3 a.m. While complainant along with his father Mehmand, Saleh Muhammad and Kameer P.Ws. Was asleep in the Dera of the complainant and his deceased father, situated within the area of Chak No,134 Shumali, they were awakened by the barking of the dog. Mehmand deceased lit a lantern and proceeded towards the cattle shed of his brother Amir. Muhammad Sher appellant son of Amir (paternal uncle of the complainant and brother of the deceased) aimed with .12 bore gun suddenly confronted him and called out Lalkara that he would teach him a lesson for his insult by the deceased and fired with his .12 bore gun hitting Mehmand deceased on his chest who fell down at the spot and died there. The complainant along with P.Ws. Ventured ahead to apprehend Muhammad Sher appellant who ran away brandishing his weapon. The motive for the occurrence alleged in the F.I.R. Was that Muhammad Sher appellant about 15/20 days prior to the occurrence had abducted Mst. Zakkia Bibi wife of the complainant and she was got restored and the deceased on the said account used to insult the appellant and to avenge his insult the appellant had committed the occurrence. Leaving Saleh Muhammad and Kameer P.Ws. To guard the dead body Muhammad Farooq complainant went to Police Station Sillanwali and reached there at about 8 a.m. He narrated the occurrence to Malik Zulfiqar Ali A.S.I. Who recorded the F.I.R. Exh.P.G. As per his dictation which was read over to him and he signed the same in token of its correctness.
4. Malik Zulfiqar Ali A.S.-I. Accompanied the complainant to the place of occurrence and upon reaching there he prepared injury statement Exh.P.D., inquest report Exh.P.E. And entrusted the dead body of Mehmand deceased to Muhammad Ijaz Ahmad Constable for its transmission to the mortuary for postmortem examination. He carried out the inspection of the place of occurrence and took into possession blood-stained earth from the place where the dead body of the deceased was lying and made it into a sealed parcel vide memo. Exh.P.M. He recorded the statement of Muhammad Salehoon and Kameer P.Ws.
5. Muhammad Ijaz Constable produced the dead body of Mehmand son of Ali Muhammad caste Marra aged 55 years before Javed Khalid Mehmood Medical Officer Rural Health Centre Sillanwali who conducted post-mortem examination on the same day i.e, 20-9-1997 at 2 p.m. The medical officer observed that the mouth and eyes of the deceased were closed, rigor mortis was present and the body was clad in white Salooka, white Chaddar. Corresponding holes were present on Salooka. He observed the following injuries on the dead body:--
(1) There were four fire-arms wounds of entry in the form of group (size 3 c.m. x 2 c.m., 2.5 c.m. x 2 c.m. - 1.5 c.m. x 1.5 c.m. - 1 c.m. x 1 c.m.) in the area of 6.5 c.m. x 4.5 c.m. On left side front of chest 2 c.m. Below nipple going deep into chest cavity damaging ribs and visceras.
(2) There were seven fire-arms wounds of exit in the area of 7 c.m. x 6.5 c.m. On back of left side chest, (Size 0.5 x 0.5 c.m. Of each) 3 c.m. From middle and 11 c.m. From top of axilla.
' Fifth, sixth and seventh ribs were found fractured, pleura, left lung were found perforated, pericardium, heart and blood vessels were found perforated and damaged. In the abdomen peritoneum, diaphragm, stomach and its contents and spleen were found to be perforated and damaged. Rest of organs were found to be normal and healthy. In the opinion of the medical officer the death had been caused by Injury No,1 which was ante-mortem and had been caused by fire-arm which was sufficient to cause death in the ordinary course of nature. Two metallic pieces were found by the Medical Officer on dissection which were sealed in a phial. The probable time which elapsed between injuries and death was immediate while that of between death and post- mortem was 10 to 12 hours. After the post-mortem examination the medical officer handed over the last worn clothes of the deceased, sealed phials and police papers to Ijaz Ahmad Constable Exh.P.C. Is a correct carbon copy of postmortem report while Exh.P.C./1 is pictorial depiction of the injuries which both were recorded by the Medical Officer and bear his signatures.
6. On the same day Muhammad Ijaz Constable produced before Malik Zulfiqar Ali A.S.-I. The last worn blood-stained clothes of the deceased which are Salodka P.1, Chaddar P.2 and Dhoti P.3 which were taken into possession by him vide memo. Exh.P.B. The Sub-Inspector got prepared a site-plan Exh.P.A. And its copy of Exh.P.A./1 on the pointation of the P.Ws. And gave his notes in red ink on the same. On 21-10-1997 Malik Zulfiqar Ali A.S.-I. Arrested the appellant who on 24-10-1997 while in custody led to the recovery of gun P.4 along with two cartridges P.5/1-2 from his residential Kotha vide memo. Exh.P.F. The sealed parcels were deposited by the A.S.-I. With the Moharrir Head Constable for their safe custody upon completion of the investigation the appellant had been challaned in this case.
7. The appellant had been charged under section 302, P.P.C. Which was read over to him in the language which he understood and he pleaded not guilty and claimed to be tried.
8. The prosecution had produced Ghulam Muhammad Patwari P.W .1, Muhammad Ijaz Constable P.W.2, Dr. Javed Khalid Mehmood P. W.3, Muhammad Nawaz Constable P.W.4, Muhammad Khan P.W.5, Muhammad Farooq P.W.6, Muhammad Salehoon P.W.7, Malik Zulfiqar Ali S.-I. P.W.8 and Dost Muhammad A.S.-I. P.W.9 in support of its case.
9. The learned D.D.A. While giving up the remaining P.Ws. Tendered in evidence report of the Chemical Examiner Exh.P.K. And that the Serologist Exh.P.L. And closed the prosecution case.
10. The statement of the accused under section 342, Cr.P.C. Was recorded and all the incriminating prosecution evidence was put to him which he refuted and stated that he had been falsely implicated on account of suspicion and enmity. The accused did not wish to produce defence evidence or to appear as a witness on oath in disproof of the prosecution case.
11. Upon conclusion of the trial the appellant had been convicted and sentenced as mentioned above. Feeling aggrieved, this appeal had been filed.
12. The ocular evidence in this case comprises of Muhammad Farooq complainant P.W.6 and Muhammad Salehoon P.W.7 who had deposed that on the night of occurrence they were asleep along with deceased and Kameer P.W. In the Dera of the deceased and at 3 a.m. During night they were awakened by barking of the dog. Mehmand deceased proceeded towards the cattleshed of his brother Amir father of the appellant along with a lantern and the appellant suddenly emerged being armed with .12 bore gun and called out Lalkara that he would teach him a lesson for his insult by the deceased and fired at him hitting him on his chest. The deceased fell down and died at the spot. The motive for the occurrence deposed by the said P.Ws. Was 10/12 days prior to the occurrence the appellant had abducted Mst. Zakkia wife of the complainant whom the deceased got restored by exerting pressure of brotherhood and he used to insult the appellant off and on account of his misdeed and that the appellant had committed the occurrence to avenge his insult.
13. The learned counsel for the appellant while arguing this case has frankly conceded that he does not want to challenge the conviction of the appellant but only pleads for reduction in sentence on the ground that the deceased had been insulting the appellant off and on, because of the incident of Mst. Zakia's abduction and even at the time of occurrence the deceased insulted the appellant and thus offered provocation due to which the appellant in his youthful indiscretion and heat of passions fired a single shot at the deceased and did not repeat any fire shot and that the provocation offered by the deceased constitutes mitigating circumstances for award of lesser punishment. It has also been argued that there was no other motive on the part of the appellant to commit this occurrence.
14. It is an admitted fact that the deceased and father of the appellant were real brothers and their Deras were contiguous to each other. The appellant also resided there. It is prosecution case itself that the appellant had abducted Mst. Zakkia wife of complainant about 15/12 days prior to the occurrence who was got restored by the deceased and he often used to insult the appellant on account of the said incident; except for this grouse there was no other enmity between the appellant and the deceased. Therefore, it is quite probable that the deceased had insulted the appellant prior to the commission of offence which raised the appellant's danders and he in his youthful indiscretion made only one fire shot at the deceased and did not repeat the same. The probability of provocation being offered by the deceased to the appellant thus cannot be ruled out which is a mitigating circumstance for award of lesser penalty. We, therefore, while dismissing the appeal and maintaining the appellant's conviction under section 302(b), P.P.C. Alter his death sentence to life imprisonment and further direct him to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. Which shall be paid to the legal heirs of the deceased.
15. Resultantly, the Murder Reference is answered in the negative.