BASHIUDDIN AHMAD, J.--Baggar Khan (20) was tried for the murder of his sister Mst. Sahib Jan and attempted murder of Sattan Zai on 8-4-1968, by the Additional Sessions Judge, Sabiwal, who sentenced him to death and a fine of Rs, 5,000.00 under section 302, P. P. C. or in default to undergo rigorous imprisonment for a further period of three years. The amount of fine, if realised, was ordered to be paid to Abdur Rasul, husband of the deceased. Baggar Khan was also held guilty for the attempt on the life of Sattan Zai and was sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs, 2,000.00 under section 307, P. P. C. or in default to undergo rigorous imprisonment for two years. The fine of Rs, 2,000.00, if realised, was ordered to be paid to Sattan Zai as compensation under section 544-A of the Code of the Criminal Procedure.
The sentences of imprisonment were ordered to take effect in the event of the death sentence being not confirmed by this Court.
2. The condemned person appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The prosecution made out their case thus : Twenty or 25days before the occurrence, which is the subject-matter of the case, the deceased was married to Abdur Rasul who paid Rs, 8,000.00 to the appellant. A day before the occurrence, the appellant visited his sister and told her husband to send her alongwith him in connection with her rukhsti. Abdur Rasul told the appellant to bring his paternal uncle as a surety for the safe return of Mst. Sahib Jan to the house of her husband. On the eventful day, at about 10-00 a.m., Abdur Rasul and Sattan Zai were filling bags with coal at a short distance from the jhuggi where the deceased was present. The appellant again approached her to accompany him, but she refused on the ground that she could not go with him unless permitted by her husband. The appellant felt infuriated and taking out pistol Exh. P. 1 fired three shots at Mst. Sahib Jan. She was mortally wounded, dropped to the ground and died. At that time, Sattan Zai who was helping Abdur Rasul gave a chase to the appellant and when he had gone to a distance of about eight karams, Sattan Zai reached near him whereupon the appellant fired a pistol shot at him hitting Sattan Zai in the chest. Sher Khan and Nazar Khan, who had also joined in the pursuit of the appellant seized the pistol from his hand.
4. Abdur Rasul proceeded towards Nur Shah Police Station, bat in the way near Chak No, 49/G. D., he came across Sub-Inspector Khurshid Mahmood (P. W. 14) who recorded his statement Exh. P. A. at 11-30 a.m., and endorsed it to Nur Shah Police Station, where M. H. C. Muhammad Saleem (P. W.
7) registered a case at 11-45 a.m. the same day. The Sub-Inspector went to the dera of Pathans in Chak No, 49/G. D. at a distance of about a furlong from the place where a report was made to him and found the appellant in custody of Sher Khan, Nazar Khan and others. The appellant was put under arrest and on search of his person, the Sub-Inspector found five live pistol cartridges in the pocket of his shirt. They were taken into possession, vide Memo. Exh. P. C. Nazar Khan P. W. produced the pistol, Exh. P. 1 containing five rounds, Exh. P. 5/1-5 in its chamber. Three empty cartridges Exhs. P. 3/1-3 were recovered from the jhuggi of Abdur Rasul. The empty cartridges, the spent bullets and the crime weapon were sealed into parcels. The Sub-Inspector took into possession blood-stained earth from the jhuggi where the deceased lay dead and sealed it into a parcel. He prepared the injury-sheet and the inquest-report and then despatched the deadbody to the mortuary for post-mortem examination. The appellant was arrested the same day.
4. (a) Dr. Muhammad Aslam (P. W. 2) examined Sattan Zai on April 8, 1968 at 11 a.m., and found the following injuries on his person:--
(I) A fire-arm wound of entrance measuring r x 1" on the front of chest, 2" above the left nipple. Its corresponding wound of exit was on the posterior part of the chest on left side, 7" below the 7th cervical spine. It was 1" x 1" and ends were everted while entrance wound had inverted margins and in quite a circular manner.
(2) An abrasion mark 3/4" x r on the medial side of right leg on its lower part and was 1t" above the medial malleolus.
Injury No, 1 was grievous while injury No, 2 was simple. The first was caused by a fire-arm while injury No, 2 was caused by means of a blunt weapon.
(b) Dr. Mian Habib Ullah (P. W. 1) held the autopsy on the dead body of Mst. Sahib Jan on April 9, 1968, and found the following injuries:-- (1)A fire-arm wound of inlet r circular on the left side of the abdomen at the level of lower rib going in the abdomen lacerating spleen, left lung and opening on the back of left chest at the level of middle part of left shoulder blade 1" outer to the middle line.
(2)A fire-arm wound of inlet circular at the level of right side of abdomen in middle of the fland going in the abdomen lacerating small and large intestines, the right lung, liver and opening on the left side of the back of chest at the shoulder blade 1" inner to the shoulder-joint.
(3)A fire-arm wound of inlet 1/4" circular on the lower part of the left shoulder blade going in the chest lacerating left and right lungs and bullet lodged under the skin on the right side of chest at the level of 7th rib which was found fractured. Bullet was removed and sealed.
Death, in the opinion on the doctor, occurred due to shock and haemorrhage resulting from fire- arm injuries to the vital organs. The injuries were sufficient to cause death in the ordinary course of nature.
5. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When examined at the trial, he came forward with the following version:-- "On the day of the occurrence at about 10 or 10-30 a.m., I went to Chak No, 49/G. D. to meet my sister. I did not find any one at the dera of the Pathans. But when I reached the jhuggi of Abdur Rasul P. W., I found Sattan Zai P. W. lying with my sister in one bed. I felt annoyed and provoked and fired with my pistol at both of them, but do not know how many shots hit each one of them. I then went to the Police Station where I produced my pistol before the Thanedar and also told him what had happened.. He set up a false case against me. My pistol Exh. P. 1 is my licensed pistol."
6. At the trial, Abdur Rasul (P. W. 3), Sattan Zai (P. W. 4), Sher Khan (P. W. 9), Muhammad All (P. W. 12) and Ahmad Ali (P. W. 13) furnished direct evidence. The statement of Nazar Khan which he made before the committing Magistrate was brought on the record as his whereabouts were not known by the time the case came for trial. The trial Judge while considering the evidence of Muhammad Ali and Ahmad Ali summed up his conclusion thus:-- "The statements of these two witnesses, however, do not inspire confidence. They appear to me to have been set up witnesses. I, therefore, attach no importance to their evidence. It appears that in his quest to find out unconnected witnesses the investigating officer came to the place of occurrence without recording the report and it was he who introduced Muhammad Ali and Ahmad Ali to support the prosecution version."
7. We are thus left with the evidence of Abdur Rasul, Sattan Zai, Sher Khan and Nazar Khan. The evidence of Abdur Rasul and Sattan Zai is unanimous that they were filling coal in bags at a distance of 10 or 12 karams from the jhuggi of the complainant when the appellant fired three shots at the deceased with pistol Exh. P. 1 and then tried to escape. He was given a chase by Sattan Zai followed by others and when Sattan Zai approached near the appellant, he tired at him hitting him in the chest. but Sattan Zai overpowered him and Nazar Khan disarmed the appellant. Abdur Rasul did not mention in his report to the Police that he alongwith Sattan Zai were filling bags with coal when the occurrence took place. To the contrary, he stated to the committing Magistrate that he was present in his hut. Sher Khan who lived at Chak No, 49/G. D. which is at a distance of about a mile from Chak No, 49/G. D. where the occurrence took place, deposed that on the day of the alleged occurrence, he had gone to the dera of Pathans in Chak No, 49/G. D. at about 10-00 a.m. in connection with the visit of a Pir to that place, that at about 12-00 noon when he was present with the Pir who had come from Dera Ismail Khan they heard the report of a pistol shot and the alarm raised by women that Baggar Khan had shot at his sister. The witness came out and saw Baggar Khan running away from the jhuggi of Abdur Rasul with a pistol in his hand. Sattan Zai P. W. followed by Nazar Khan ran after him. Baggar Kban turned round and fired a shot at Sattan Zai who was hit in the chest. Sattan Zai caught hold of the appellant and Nazar Khan snatched the pistol from him.
Sher Khan P. W. stated in cross-examination that at the time he heard the pistol shot, Abdur Rasul complainant and Nazar Khan P. W. we're sitting with the Pir in a tent pitched 11 killas away from the jhuggi of Abdur Rasul. After hearing the pistol shot, Abdur Rasul and Nazar Khan ran out of the tent earlier than Sher Khan who admitted that he did not himself see the appellant firing with the pistol at Mst. Sahib Jan, but he saw Baggar Kban coming out of the jhuggi of Abdur Rasul and running away followed by Sattan Zai and Nazar Khan and within the sight of this witness, Baggar Khan fired at Sattan Zai. It is also in the statement of Sher Khan that when he came out of the tent where the Pir was present, he noticed Sattan Zai filling coal bags. We are inclined to believe Sher Khan. In view of the statement of Sher Khan that Abdur Rasul and Nazar Khan were with the Fir 14 killas away from the jhuggi of Abdur Rasul, their claim to have seen the appellant firing at the victim cannot be accepted. The presence of Nazar Khan in his but at the time of the occurrence is completely negatived by the evidence of Sher Khan. Similarly, the claim of Sattan Zai that Abdur Rasul was also filling coal bags cannot be accepted in view of the categorical statement made by Sher Khan to the effect that Abdur Rasul was present with the Pir in his tent (1/4) killas away from the spot at the time of fire.
8. The story with regard to the motive as disclosed by Abdur Rasul in his report to the police was considerably improved upon by him in his statement at the trial. We find that Abdur Rasul nowhere said in his report Exh. P. A. to the police that he suspected that the appellant might not sell her to someone else. Abdur Rasul admitted that he did not tell the Thanedar that his wife had told him that he should not send her with the appellant unless he brought a surety for her safe return. Abdur Rasul did not say so even in his statement before the committing Magistrate. Mst. Sahib Jan had been married for less than a month with Abdur Rasul and if he had paid Rs, 8,000.00 to the appellant, there was no occasion for Baggar Khan to have made any further demand from Abdur Rasul within such a short period. The appellant did not stand to gain anything by killing his sister.
On the contrary, by killing Mst. Sahib Jan, he not only deprived himself of possible chance of extracting more money from Abdur Rasul but also from making an additional gain by selling her away to someone else. We are not satisfied with the motive ascribed to the appellant for the killing mode.
There is good evidence that the report in this case was recorded after a good deal of investigation by the police at the spot. There is the statement of Nazar Khan to the effect that he alongwith Sher Khan had taken the appellant to Nur Shah Police Station after the occurrence, where he was produced before the police alongwith the pistol. It is also in the statement of this witness that he told the Sub-Inspector what he had seen when they had taken the appellant to the thana, There the Thanedar enquired about the occurrence from Sher Khan P. W., who also narrated the facts of the case. Indeed, it is most unfortunate that the Sub-Inspector did not register a case on the statement of Nazar Khan or Sher Khan, but decided to visit the spot first and then taken down the statement of Abdur Rasul purporting to have been recorded at some distance from Chak No, 491G. D., where the occurrence had taken place. The investigating officer was guilty of fabricating evidence in that he made an attempt to show that the statement Exh. P. A. of Abdur Rasul was recorded before he came to the spot and started investigation. Abdur Rasul made a categorical statement denying that when he was going to the police station, the Thanedar had met him on the way or that he made the statement before the Thanedar while on way to the police station. This practice on the part of the police in this country is most reprehensible and we strongly deprecate it.
We also disapprove the attempt on the part of the investigating of officer to show that he made the recovery of the weapon offence at the spot. Since it has been demonstrated in this case that the investigating officer has been guilty of malpractice, it is not possible to rely on his word of mouth.
9. We have decided, for reasons already recorded, not to rely on the ocular witnesses except Sher Khan as out of the lot he has struck us as a truthful witness.
10.We now proceed to consider whether the plea of sudden and grave provocation taken by the appellant in his defence should or should not be accepted. The defence of sudden and grave provocation was not suggested to Sattan Zai in cross-examination. what was suggested to Sattan Zai was that he was seen with the deceased laughing by the appellant. The plea of sudden and grave provocation was put forth for the first time on the conclusion of the prosecution evidence at the trial. There was no investigation on these lines. We have for our own satisfaction looked into the statements of the eye-witnesses which they made before the committing Magistrate to find out if any such suggestion was made to them and although, legally speaking, those statements are not evidence, but we perused them with a view to find out if benefit of the exception could be extended to the appellant in case any such suggestion was made to the eye-witnesses, but we find that nothing of the kind was done. The circumstances of the case also do not support the plea as it was by day time and the husband of the deceased and the mother of Abdur Rasul were near about the place of occurrence. The husband could not have possibly spared Sattan Zai, had the defence plea been true, nor Sattan Zai could, under the cricumstances, appear as a witness for the prosecution.
We do not give effect to the plea of grave and sudden provocation because it was not taken even in the statement of the accused recorded under section 342, Cr. P. C.
What transpired between the appellant and his sister before he shot her dead is not clear, as nobody was present in the jhuggi of Abdur Rasul at that time. The possibility about the lady having made some remark or said something which provoked the appellant an impulsive young man, who is a Pathan, to take her life is there. We, therefore, uphold the conviction of the appellant under section 302, P. P. C., but substitute the sentence of death with transportation for life plea fine of Rs, 3,000.00 or in default to undergo rigorous imprisonment for a further period of two years. The fine, under this count, if realised, shall be paid to the husband of the decease d by way of compensation.
11.Having come to the conclusion that the provocation was neither sudden nor grave, the act of the appellant in firing a shot at Sattan Zai hitting him in the chest when he pursued him after he had shot dead Mst. Sahib Jan fell within the ambit of section 307, P. P. C. of which the appellant was rightly convicted. However, the sentence of seven years' R. I. and a fine of Rs, 2,000.00 awarded to the appellant on that count is excessive. We reduce the sentence of imprisonment to four years and a fine of Rs, 2,000.00 or in default to undergo rigorous imprisonment for a further period of one year. The fine, if realised, under this count, shall be paid to Sattan Zai. The sentence of imprisonment is directed to run concurrently with the life imprisonment awarded to the appellant.
The appeal is accepted to the extent indicated above. The death sentence is not confirmed.