1. MUHAMMAD AFZAL ZULLAH, J.--In This Criminal Appeal from judgment dated 18-10-1976 of the Lahore High Court whereby sentences of death and imprisonment of five years' R.
1. On conviction for offence of murder and attempt to commit murder was confirmed, special leave to appeal was granted to consider two questions:
(1) whether the evidence in the case was such so as to sustain conviction; and
(2) whether in view of the admitted motive being relatable to family honour, lesser sentence should not have been awarded.
2. The occurrence in which the victim of offence, namely, Ahmad, lost his life took place on 25th of January, 1971, at about sunrise time. Amir P. W. 13, who is brother of the deceased, was injured in the occurrence and is also the first informant. At the trial he gave the ocular account as also the motive as follows:- "At about sunrise time I and my deceased brother Ahmad took out our cattle from our Kotba and tied them in the courtyard of our haveli. We both came out of the Haveli and lit fire to warm up ourselves. My father Hadu since dead also joined us. After a short while my mother Mst. Begum P.
3. W. Also came there to warm up herself. Ahmad deceased went to urinate and when he was going towards west alongwith northern wall of the Haveli and and when he had covered a distance of 6/7 Karams, Boota accused armed with a gun came in front of, him. He raised a lalkara and challenged my brother Ahmad deceased, saying that he had come to avenge the abduction of his sister Mst. Saleeman and would not spare him. Then he fired at my brother Ahmad, which hit him on his chest and he fell down. Boota accused then fired two more shots .At the deceased when he was lying down. We entreated the accused not to kill Ahmad deceased, but he retorted that. He would not even spare any of us, not to speak of Ahmad deceased. My mother Mst. Began and my father Hadu and I saw the occurrence. When the accused challenged us, we ran towards our Haveli. Then my mother and I went into the Kotha of our Haveli. While my father was also going to enter the Kotha, he was fired upon by Boota accused and was hit on his right hand and right, leg.
4. When my father was going to fall down, my mother and I caught him and helped him to enter the Kotha. Then we chained the door of that Kotha from inside. Boota accused fired on the plank of the door of that Kotha and created hole in it. From the hole in the plank of the door. Boota accused fired more shots as a result I and my mother were hit and were injured. Boota accused continued firing in the Haveli. In the meantime Maqbool and Sher Muhammad, P. Ws. Also had come there.
5. They made us to come out of the room, telling us that Boota had left the place. When we came out of the Kotha Maqbool and Shera told us that Boota was accompanied by another person and they had gone towards the south. We went to Ahmad deceased and found him dead.
6. Mst. Saleeman is sister of Boota accused. About 7/8 months before the occurrence my real brother Yara abducted her. The where--abouts of both Mst. Saleeman and Yara are not known to us since the said abduction."
7. The deposition of Amir P. W. Alongwith the deposition of Began and Hadu P. Ws. Mother and father respectively of Ahmad deceased, was the main stay of the prosecution case at the trial. Evidence was also led to connect some crime empties and missed cartridges recovered from the spot with the licensed gun of the appellant which was produced by him at the time of the arrest on 31-1-1971.
8. It may be mentioned here that Alam a co-accused of the appellant was acquitted by the trial Court. It also needs to be men--tioned that Shera P. W. Who was to depose about Boota appellant and Alam acquitted accused having been seen going away from the place of occurrence was declared hostile and his deposition made before the learned Committing Magistrate was accordingly transferred to the record of the Sessions Court.
9. The plea of the appellant was that of total denial with an explanation that the deceased and his family members were attacked by some dacoits during the night. He did not deny the ownership and possession of the gun but asserted that it was taken by the police from his house and not from him at the time of his arrest. Both the learned Courts below placed implicit reliance on the three injured eye-witnesses and the trial Court also on the recovery of the gun with which the crime empty and the missed cartridges matched.
10. Learned counsel has taken us through the evidence in his attempt to show firstly, that the occurrence took place during the night; and secondly, that there were two assailants and because the witnesses talked only of one, therefore, they were not in a position to see the actual firing nor could they identify the assailant.
11. It is true that the injured eye-witnesses did not name Alam acquitted co accused of the appellant as an assailant and further that Shera P. W. Ha mentioned him as having accompanied Boota appellant when .He saw the going towards the dera of the deceased in his statement made before the Committing Magistrate which would show that. There was another person with Boota. Learned counsel also pointed out from the evidence that according to the Expert's evidence, some of the crime empties were not fired from the gun recovered from , Boots appellant which would show that another gun was also used during the occurrence further indicating that there was another assailant. But all that would not show that the injured persons had deliberately told lie so as to falsely implicate Boota appellant. According to them the entire occurrence wa divided into two phases. During the first one, they saw Boota only who fired at the deceased and also at Hadu P. W.
12. When he was trying to enter a room. This phase ended when the witnesses entered the Kotha of their house and chained the door from inside. A shot was then fired at the plank of the door which created a hole in it and during this second phase while the witnesses were inside the Kotha, gun was fired by placing its, muzzle end in the hole of the plank so created. The eye-witnesses received injuries from this firing when inside the Kotha with its door chained (from inside). As Boota was the person who had earlier been teen by them firing at the deceased as also on Hadu P. W. Therefore, they did not tell deliberate lie when they stated that he (Boots) continued firing in the Haveli. In such a situation if the second man without opening the door fired through the hole dropping his empties also at or near the spot, this would not necessarily mean that the witnesses had not seen the occurrence when they themselves also had suffered the injuries. And in fact they have not concealed the presence of another person when deposing that after the occurrence they were told by Maqbool and Shera P. Ws. That Boota had a companion. Be that as it may, even if it be assumed that on this point the witnesses were not sure of what had happened, they, it is certain were in a position to identify the person who s o at the deceased and Hadu P. W. And he was none else than Boota. Their testimony is corroborated by two strong circumstances one, a crime empty and some missed cartridges matched with the gun of Boota appellant, and further that their version about the two phases of the occurrence stood confirmed by the recovery of the plank of door with a hole in it as also some articles from the Kotha in question which bore marks of fire shots.
13. Learned counsel also invited our attention to the contents of large intestines, stomach and bladder of the deceased as also the opinion of the Doctor with regard to the time of occurrence.
14. After scrutinizing the same, we do not consider these elements as in any way contradicting the depositions of the eye-witnesses. The Courts below were justified in rendering finding of guilt against the appellant for the murder of Ahmad and attempt to murder eye-witnesses.
15. The learned Judges in the High Court when confirming the sentence of death awarded to the appellant for the offence of murder noted that there were "no mitigating circumstances to justify lesser penalty". Learned counsel has contended that the admission from the prosecution side that the offence was committed by the appellant on account of the family honour was not duly considered by the High Court for purpose of determining the question of mitigation. There is force in this argument. It was brought out in cross-examination of the eye-witnesses that Ahmad deceased was the elder brother of Yara who had abducted Mst. Saleeman younger sister (aged 15/16) of the appellant 7/8 months prior to the occurrence. Boota had on "many occasions" requested the deceased "for the restoration of Mst. Saleeman". A suggestion that Boota had suspected Ahmad as having a hand in the abduction was not repudiated by Amir P. W. When it was made to him. On the other hand it was admitted from the prosecution side that although the deceased used to assure the appellant that Msd Saleeman would be returned, all efforts made by Boota by then with the deceased had proved fruitless. Mst. Began P. W. When admitting that Mst;.
16. Saleema was unmarried at the time of abduction also admitted that during, the entire period of 6 or 7 months of abduction, the appellant continued asking the deceased and his family for the return of his sister and that their, failure to help him was the reason for the attack by the appellant on them: All this shows that the deceased and the other members of the family of Yara' despite all efforts of the appellant, were not helping him in the restoration, of his sister from Yara. The circumstances relating to the abduction did, support a reasonable possibility that the deceased and his family members were conniving at the failure/refusal of Yara to restore appellant's sister.
17. And further that there was enough material for the appellant to suspect them in this behalf. He, therefore, after exhausting all peaceful avenues in utter disappointment and exasperation committed the crime. In the circumstances of the case, therefore, this was a factor for mitigation which was ignored by the High Court.
18. We accordingly while partly accepting this appeal and when upholding the conviction of the appellant under section 302, P. P. C. Reduce his sentence for this offence from death to `transportation for life' (this sentence could prior to the amendment be awarded by the trial Court).
19. The other conviction and sentences need no interference except that the substantive sentences for both the offences under sections 302 and 307, P. P. C. Shall run concurrently.