RUSTAM S. SIDHWA, J.--Abdul Ghani, Abdul Qayum, Muhammad Tufail, Haibat, Munawar Ali, Ghulam Hussain alias Hussaina, Barkat Ali and Ghulam Abbas were tried by an Additional Sessions Judge of Multan under sections 302/307/148/149, P. P. C. For the murder of Haq Nawaz deceased, attempt on the life of Munawar Ali P. W. 9 and for rioting. The learned trial Judge, by his judgment dated 28-6-1978, convicted Abdul Ghani accused under section 302, P. P. C. And sentenced him to death by hanging, subject to confirmation by this Court, and to pay a fine of Rs. 1,000, which was ordered to be paid to the legal heirs of the deceased as compensation. The rest of the accused were acquitted of all the charges. The appeal of Abdul Ghani convict and the connected murder reference, are both now before us for consideration.
2. The brief facts of the case are that on 29-3-1976 at about 2-00 p.m. Haq Nawaz deceased, Ghulam Fareed P. W. 8, Munawar Ali P. W. 9, Mashooq P. W. 10 and Manzoor Ahmad P. W. 11 were sitting in the hotel of one Muhammad Sharif near the bus stop in Shujabad Town. Abdul Ghani, Abdul Qayyum, Muhammad Tufail, Haibat, Munawar Ali, Ghulam Hussain, Barkat Ali and Ghu1am Abbas accused, came there. They were all empty handed. As soon as the eight accused persons entered the hotel, Abdul Ghani accused asked Haq Nawaz deceased either to hand over his licensed gun to him or to make a statement before the Police that his licensed gun had been stolen by some unknown person. Haq Nawaz deceased refused to accede to his request, which resulted in an altercation between the two. They started abusing each other. Munawar Ali and Mashooq Ali P.
Ws. Stepped forward in order to separate the parties and to patch up the matter, whereupon Muhammad Tufaii and Haibat accused pushed Munawar Ali P. W. 9, who fell on the ground.
Mashooq Ali P. W. 10 was pushed to the ground by Ghulam Abbas and Munawar Ali accused.
Ghulam Farid P. W. 8 and Manzoor P. W. 11 tried to intervene. Ghulam Farid was taken into grip by Barkat Ali accused and his companion, Manzoor Ahmad P. W. 11 was taken into japha by Ghulam Hussain accused. At this juncture, Abdul Ghani and Abdul Qayyum accused took out their revolvers from their dubs. Abdul Ghani accused fired at Haq Nawaz deceased, hitting him on his head. Abdul Qayyum accused then fired at Munawar Ali P. W. 9, hitting him on his back. The accused persons decamped while firing in the air. The motive for the occurrence, as stated in the F.
1. R., was that about 8/10 months prior to the occurrence, licensed gun of Haq Nawaz deceased was stolen, which was subsequently recovered from the possession of Abdul Ghani accused and a case under the Arms Ordinance was registered against him. Abdul Ghani accused wanted to prevail upon Haq Nawaz deceased not to produce his licensed gun in Court. The deceased was, however. Reluctant to accede to this request, because the gun was with him on Supurdari.
3. Mashooq Ali P. W. 10 and Manzoor Ahmad P. W: 11 removed Haq Nawaz deceased and Munawar Ali P. W. 9 to Civil Hospital, Shujabad, and Ghulam Farid P. W. 8 went to Police Station Sbujabad for reporting the occurrence and lodged F. I. R. Exh. P. J. At 2-05 p.m., which was recorded by Shamim Hussain P. W.
14. The Investigating Officer, in the meantime having received information about the -admission of the deceased and Munawar Ali P. W. 9 from Dr. Muhammad Rafi P. W. 1, reached - Civil Hospital, Shujabad. After preparing the necessary papers, the dead body of the deceased was sent for post-mortem examination. Since Munawar Ali P. W. 9 and Mashooq Ali P. W. 10 were present in the hospital and they were found injured, the Investigating Officer prepared their injury statements Exh. P. C. And P. O. Respectively and recorded their statements and then left for the spot. At the place of occurrence, the In Investigating Officer recovered blood-stained earth, which he took into possession vide memo Exh. P. 1.
4. The same day at 3-30 p.m. Dr. Muhammad Rafi P. W. 1 medically examined Munawar Ali P. W. 9 and found a firearm wound on the left lumber region and two abrasions on his right and left elbow joints. The X-ray of the firearm injury revealed a bullet embedded in the left gluteal region. The same day at 4-30 p.m. Dr. Muhammad Rafi P. W. 1 conducted the post-mortem examination on the dead body of Haq Nawaz deceased and found a circular contused wound --x -- " on the left parietal region. He found both the parietal bones perforated. A bullet was recovered from the right parietal lobe. This ante-mortem firearm injury was sufficient to cause death in the ordinary course of nature. Time between injury and death was about -- an hour and that between death and post- mortem about two hours. The bullet recovered from the head was sealed in a phial and handed over to the Police.
5. On 1-4-1976 Dr. Muhammad Rafi P. W. 1 medically examined Mashooq Ali P. W. 10 and found two abrasions on the left popliteal region and the right shin, both of which simple blunt weapon injuries were opined to have been caused within three days of the examination.
6. The same day, i.e. 1-4-1976, Munawar Ali and Ghulam Hussain accused were arrested by Shamim Hussain, A. S. I. P. W. 14, the Investigating Officer.
7. On 3-4-1976 Barkat Ali accused was arrested by the Investigating Officer.
8. On 14-4-1976 Abdul Ghani and Haibat accused were arrested respectively by Muhammad Nawaz, Inspector P. W. 6 and Shamim Hussain, A. S. I. P. W. 14.
9. On 17-4-1976 Ghulam Abbas accused was arrested by Muhammad Nawaz, Inspector P. W. 6.
10. On 19-4-1976 Abdul Ghani accused led to the recovery of '32 bore revolver P. 9 from his cattle- shed, which was taken into possession by the Police vide memo Exh. P. L. In the presence of Ghulam Sarwar P. W. 12, Muhammad Jamil P. W. 13 and Shamim Hussain, S. I. P. W. 14.
11. On 20-4-1976 Muhammad Tufail and Abdul Qayyum accused were arrested by Shamim Hussain S. I. P. W. 14.
12. On 23-4-1976 Abdul Qayyum accused led to the recovery of '32 bore revolver P. 8 from near the wall of Riaz Cotton Factory, which revolver was taken into possession by the Police vide memo. P. K.
In the presence of Ghulam Farid P. W. 8; Ghulam Sarwar P. W. 12 and Shamim Hussain, S. I. P. W. 14.
13. After completing the investigation, the challan against all the accused was sent up for trial.
14. At the trial, the prosecution produced Ghulam Farid P. W. 8, Munawar P. W. 9, Mashooq Ali P. W. 10 and Manzoor Ahmad P. W. 11 in proof of the motive and the ocular account, Ghulam Farid P. W. 8, Ghulam Sarwar P. W. 12, Muhammad Jamil P. W. 13 and Shamim Hussain, A. S. I. P. W. 14 in support of the recoveries and Dr. Muhammad Rafi P. W. I to prove the post-mortem and medical examination of the deceased and the injured P. Ws. At the trial, all the accused denied all the allegations that were levelled against them and imputed their involvement to enmity. They did not lead any evidence in their defence.
15. The learned trial Judge held the motive to be proved. The learned trial Judge also held that even assuming that the motive as set up by the defence, namely, a dispute about the bus stand between the deceased and the accused, was true, the fact remained that bad blood existed between Haq Nawaz deceased and Abdul Ghani accused. As regards the ocular account, the learned trial Judge held the presence of Manzoor Ahmad P. W. 11 as doubtful. Further, the learned trial Judge relied upon the testimony of Ghulam Farid P. W. g and Mashooq Ali P. W. 10, but held that as he could not escape the impression that they had been guilty of adding to the number of culprits and had made exaggerations in giving the details of the occurrence, their evidence needed independent corroboration, which he found from the testimony of Munawar Ali P. W. 9, the hostile, though disinterested, witness. He; therefore, found Abdul Ghani accused guilty for having fired at and caused the death of Haq Nawaz deceased. He did not give any clear finding as' to whether Abdul Qayyum accused had or had not fired at and injured Munawar Ali P. W. 9, though he noted in passing that Munawar Ali P. W. 9, the hostile witness, had denied the version of the other two. However, as regards the participation of the remaining seven accused other than Abdul Ghani, he held that they had no animus against the deceased or the P. Ws., that they had come empty handed, that they did not cause any injury to the deceased and that even assuming, on the P. Ws.
Own showing, that a fight took place all of a sudden, they might have been 'absolutely ignorant that their co-accused Abdul Ghani had a revolver which he would use and it could not, therefore, be said in the circumstances of the case,. .That the said accused persons had come to the spot with a view to causing injuries to the deceased or the P. Ws. Or that they had any community of design with the principal accused. The seven accused were accordingly given the benefit of doubt and acquitted.
16. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. ' The testimony, as regards motive is furnished by Farzand Ali P. W. 8, Mashooq Ali P. W. 10 and Manzoor Ahmad P. W.
11. According to their. Consistent testimony, when the appellant and the seven acquitted accused came to the hotel. Of Muhammad Sharif, Abdul Ghani, appellant, asked the deceased to hand over his licensed gun to him or to make a statement to the Police that his licensed gun had been stolen by some unknown person, to which the deceased did not agree, which resulted in an altercation between the two. Though Ghulam Farid P. W. 8 in cross-examination admitted that he had not mentioned in the F. I. R. That the appellant had been pursuading the deceased even on earlier occasions not to produce the gun in Court and that he did not know the result of the criminal case registered against the appellant under the Arms Ordinance or where the licensed gun belonging to the deceased was lodged at the time of evidence, but the Investigating Officer Shamim Hussain, A. S. I. P. W. 14, when cross- examined, clearly. Stated that during investigation it transpired that a case under section 13 of the Arms Ordinance bad been duly registered in respect of the theft of a gun belonging to the deceased and that a gun belonging to the deceased was recovered from Abdul Ghani, appellant.
The defence did not pursue the matter by calling upon the Investigating Officer to produce the F. I.
R. Relevant to the case instituted against the said appellant under section 13 of the Arms Ordinance, which they .Could have done. However, we cannot help but observe that it was the duty of the prosecution to prove the F. I. R. Or establish the motive by documentary evidence, which would have been the proper direct evidence to show that the case stood instituted, as alleged. In these circumstances, we hold that the motive does not stand established. But this does not mean that if there is other clear and convincing evidence, the case would not stand proved. Motive, if urged, and not established, can only place us on guard, but cannot ipso facto destroy the case.
We, however, disagree with the view of the trial Judge that the motive, as set up by the defence, even if accepted as an alternate motive, establishes bad blood. The version of the defence was not accepted by Ghulam Farid P. W. 8 and Mashooq Ali P. W.
10. As such the same cannot be accepted, as an alternate motive.
17. We now turn to the ocular evidence. Ghulam Farid P. W. 8, Munawar Ali P. W. 9, Mashooq Ali P. W.
10, Manzoor Ahmad P. W. 11 and Muhammad Sharif (won over P. W.) were the eye-witnesses to the occurrence. Ghulam Farid P. W. Is a brother-in-law of the deceased, Manzoor Ahmad P. W. 11 is of the same caste as the deceased, but otherwise not related to him, whereas Munawar Ali P. W. 9, Mashooq Ali P. W. 10 and Muhammad Sharif (won over P. W.) are not related at all to the deceased.
All the five eye-witnesses have no enmity or animus against either Abdul Gbani, appellant, or any of the seven acquitted accused. Munawar Ali P. W. 9, however, turned hostile at the trial. A request was made by the learned Public Prosecutor not to take into consideration his evidence, but the same was taken into consideration by the trial Judge as offering corrobora--tion. However, this aspect we will deal with presently. Sharif P. W. Having been won over, was given up at the trial on the said ground. The testimony of Manzoor P. W. 11 was rejected by the trial Judge on the ground that his presence appeared doubtful and his testimony, which contradicted with that of Ghulam Farid P. W. 8 and Mashooq Ali P. W. 10, suggested that he was not present. This leaves us with the evidence of Ghulam Farid P. W. 8 and Mashooq Ali P. W. As eye-witnesses supporting the ocular account. But before turning to this ocular account, we would like to state that even on the basis of the F.
1. R., as recorded, and the statements of witnesses, recorded under section 161, Cr. P. C., a challan for the offences as noted in column No. 1, could not have been filed. According to the evidence collected, the appellant and seven acquitted accused bad come to the hotel of Muhammad Sharif, all empty handed ; . That Abdul Ghani, appellant, had asked Haq Nawaz deceased either to hand over his licensed gun, or to make a statement before the Police that the same was stolen, which request was turned down by the deceased ; that an altercation between the two resulted thereafter as a result of the said refusal ; that the appellant and the deceased started abusing each other ; that when Munawar Ali P. W. 8 and Mashooq Ali P. W. 9 tried to separate them, they were pushed by Muhammad Tufail, Haibat, Ghulam Abbas and Munawar Ali, acquitted accused, whereupon they fell on the ground ; that when Ghulam Farid P. W. 8 and Manzoor Ahmad P. W. 11 tried to intervene, the former was caught by Barkat Ali, acquitted accused, and the latter by Ghulam Hussain, acquitted accused ; and that thereafter, Abdul Ghani, appellant, and Abdul Qayyum, acquitted accused, took out their respective revolvers from their dubs and the former fired at Haq Nawaz deceased, hitting him on his head, and the latter at Munawar Ali P. W. 9, hitting him on his back. With this state of affairs, no case was made out against Muhammad Tufail, Haibat,Munawar Ali, Ghulam Hussain, Barkat Ali and Ghulam Abbas, acquitted accused, either under section 148 or 302/149 or 307/149, P. P. C. There was no evidence collected to state that they had enmity with Haq Nawaz deceased or had come with any pre-planned intention to murder him or .To cause injury to any of the witnesses sitting in the hotel. At best, if any challan had to be lodged against them, for any offence committed, it _ could only have been against Ghulam Abbas and Munawar Ali, acquitted accused, under section 323/34, P. P. C. For two petty abrasions which Mashooq P. W. 10 had received when pushed to the ground by them. However, Abdul Ghani, appellant, and Abdul Qayyum, acquitted accused, having fired at Haq Nawaz deceased and Munawar Ali P. W. 9, a challan against them for offences under sections 302/34 and 307/34 would have been within permissible limits. We mention this, because a host of unwanted offences having been imputed to at least six acquitted accused in the challan, the case proceeded on the basis as if the appellant and the acquitted accused were responsible for the same, which not only induced a number of witnesses to resile from their statements in order to free certain accused persons from capital offences, but also influenced the learned trial Judge to observe that he could not escape the impression that the prosecution witnesses had exaggerated the number of culprits and the details of the occurrence. We strongly deprecate the tendency of Police officers to file major offences in challan against persons who prima facie do not appear to have committed the same.
Such a tendency, as has been proved in the present case, not only compels disinterested witnesses to resile from their statements in order to shield innocent parties from being saddled with major punishments, but diverts the minds of the Judges in wrong channels or influences them to form wrong impressions, which would otherwise not happen.
18. According to the testimony of Ghulam Farid P. W. 8 and Mashooq Ali P. W. 10, they, together with Haq Nawaz deceased, Munawar Ali, P. W. 9, Manzoor Ahmad P. W. 11 and Muhammad Sharif (won over P. W.), were at the hotel on the relevant date and time when the incident occurred. Munawar Ali P. W. 9, the hostile witness, confirms the presence of the deceased and Mashooq Ali P. W. 10, in addition to himself and the presence of Abdul Ghani, appellant, and the seven acquitted accused at the time of occurrence in the hotel. According to Munawar Ali P. W. 9, the appellant and the seven. Acquitted accused were already sitting in the said hotel, whereas according to Ghulam Farid P. W. 8 and Mashooq Ali P. W. 10, they had come later, when they were already there. Though we do not propose to rely on Munawar P. W. 9's testimony with regard to the material parts of the incident, as he has resiled from the statement he gave to the Police in a material way and had to be declared hostile-and rightly so-we would, however, accept his testimony for the limited purposes of showing that Mashooq Ali P. W. 10 was present at the time of occurrence and that Abdul Ghani, appellant, and the remaining seven acquitted accused were present at the scene of occurrence on the relevant date and time when the occurrence took place. We would again repeat, that we have not relied upon the whole testimony of Munawar P. W. 9, but only as regards the two items of fact, . As stated above, as evidence aliunde to establish the presence of Mashooq P. W. 10 and Abdul Ghani, appellant, and the seven acquitted accused, at the spot at the time of occurrence. The evidence of a hostile witness does not necessarily have to be totally rejected. The value of the testimony of a hostile witness was first considered in a serious way by five learned Judges of the Calcutta High Court in Profulla v. Emperor (1), where inter alia it was held that the evidence of a hostile witness was not to be rejected either in whole or in part, but the whole had to be taken into account and assessed like any other evidence, to whatever extent it affected both the parties favourably or unfavourably. After partition, this' case was followed by the Lahore High Court in Islam v. The State (2) and has generally been followed, when. Not overlooked. But Profulla's case does not lay down any water tight rules or guidelines. Each case has to be dealt with judicially on its own facts. In each case, such evidence . Has to be carefully examined. More often than not, a witness is declared hostile on flimsy or specious grounds, just because he has differed from his earlier statement on a few minor points, though he may actually be telling the truth, or on a construction which may be erroneous. In such a case, the Appellate Court may ignore the minor discrepancies and accept the statement or draw necessary inferences and repel the erroneous construction. Whether, in the given case, the Appellate Court will accept the whole or a part of the statement and, if so, which part, will always be for the Court itself to decide on a proper judicial consideration of the facts. But where a witness has resiled from material parts of his earlier statement, it is not safe to rely upon the testimony furnished by him in Court, except perhaps in respect of such items of facts or circumstances which the Court may consider safe to accept as evidence aliunde to corroborate the testimony of other reliable witnesses. No hard and fast rule can be laid down in this respect. It should not be understood that the Court can always at random pick up stray facts or circumstances from a statement of a hostile witness and use D it as good corroboration. Whether it will do so or not, would depend upon the facts of each case. But where the Court finds that certain facts disclosed by a hostile witness, taken in juxtaposition with the story as se up by the other witnesses, can safely be accepted as true or having the strong possibility of being reasonably possible and can safely be accepted as evidence aliunde to corroborate the version of the other witnesses, the same may be accepted. We now turn to some important facts.
The occurrence took place at 2-00 p.m. On 29-3-1976. F.
1. R. Exh. P. J. Wall lodged by Ghulam Farid P. W. 8 at Police Station, Shujabad at 2-05 p.m. On the same date. The presence of Mashooq Ali P.
W. 10 at the- time of occurrence is not only admitted by Munawar Ali P. W. 9, the hostile witness, but stands proved, by the fact that he accompanied Haq Nawaz deceased and Munawar Ali injured P.
W. 9 to the hospital, where his name stands also recorded in post-mortem report Exh. P. M. And the fact that his injury statement Exh. P. C. Was prepared at the hospital the same day a few hours later by Shamim Hussain, A. S. I. P. W. 14, In fact so strong is our. Conviction that he was there, that we feel his sole testimony alone is more than sufficient. In any case, there is another witness. Ghulam Farid P. W. 8 had accompanied Haq Nawaz deceased and Munawar Ali P. W. 11 from Basti Mithu to Shujabad. He was to purchase some grocery items in Shujabad for his grocery shop, but since they proceeded to the hotel straight away where the occurrence occurred, he could not make any purchases. His presence, therefore, stands established. The fact that he lodged F. I. R. Exh. P. J.
Within five minutes or the occurrence shows clearly that he was with the deceased at the time and date of occurrence. He had also thereafter proceeded to the hospital and identified the deceased at the time of post--mortem examination. The fact that he did not know the names and parentage of the accused, by which we assume he is referring to the six accused other than Abdul Ghani, appellant, and his brother, Qayyum, acquitted accused, this would not detract from his presence at the spot, Mashooq Ali P. W. 10 knew who they were, which is obvious from the last sentence of his examination-in-chief. The presence of Mashooq Ali P. W. 10 has already been established, as stated above. Even for a matter of argument, if we hold that he did not suffer any injury at the time of occurrence, his presence cannot be disputed, as his presence is even mentioned by Munawar Ali P.
W. 9, the witness who turned hostile. Though Ghulam Farid P. W. 8 is a brother-in-law of Haq Nawaz deceased, yet he had no enmity or animus with either the appellant or any of the acquitted accused to falsely involve them on any major or minor charge. Mashooq Ali P. W. 10 is also a disinterested witness. No questions were put either to Ghufa- Farid P. W. Or Mashooq Ali P. W. 10 to suggest any enmity or animus against the appellant or any of the acquitted accused or the fact that they were acting under influence of the Investigating Officer. In these circumstances, we have no hesitation in treating the said two witnesses as disinterested witnesses. The account as given by them, is, the same as recorded in the brief facts submitted in para. 2 above, which need not be repeated. Their testimony is consistent. From the account given by them, it. Cannot be stated that Muhammad Tufail, Haibat, 'Munawar Ali, Ghulam Abbas, Ghulam Hussain and Barkat Ali came to the spot with Abdul Ghani, appellant, and his brother, Abdul Qayyum, acquitted accused, with a view to cause any injury to Haq Nawaz deceased or Munawar Ali and Mashooq Ali P. Ws. Or they had any community of design with the appellant and his brother in respect of the said matter. The findings given to this effect by the learned trial Judge, in para. 18 of his judgment, are correct. We do not share the impression, as found by the trial Judge, that Ghulam Farid P. W. 8 or Mashooq Ali P.
W. 10 had exaggerated the number of culprits. Since they had no enmity or animus against any of them, there was no necessity to add to the number of culprits. We also do not share the impression formed by the learned trial Judge that these two witnesses had made exaggeration in giving the details of the occurrence. Apart from some petty contradictions, no material exaggeration appears. In any case, the overt acts attributed to Muhammad Tufail, Haibat, Munawar Ali, Ghulam Hussain, Barkat Ali and Ghulam Abbas acquitted accused were not strictly culpable. We also disagree with the approach of the trial Judge who permitted the testimony of Munawar Ali P. W. 9, who had turned hostile, to be treated as corroborative evidence to the testimony of Ghulam Farid P.
W. 8 and Mashooq Ali P. W. 10, whom he treated as requiring corroboration. Munawar Ali P. W. 9 having resiled on material particulars from his earlier statement to the Police, his whole statement, could not have been used to corroborate the testimony of the other two witnesses. It appears the learned trial Judge did not apply the correct legal principles applicable to such cases. However, as regards the parts played by Abdul Ghani appellant and Abdul Qayyum acquitted accused, both the witnesses are clear that Abdul Ghani appellant took out a revolver from his dub and fired at Haq Nawaz deceased, hitting him on his head. As regards the part attributed to Abdul Qayyum, acquitted accused, with regard to his taking out a revolver from his.Dub and firing at Munawar Ali P.
W. 9 and hitting him on his back, there seems to be some contradiction, as Mashooq Ali P. W. 10 in cross--examination stated that Munawar Ali P. W. 9 was facing backward when he was fired at by Abdul Ghani, appellant. Due to the sudden nature of the occurrence, perhaps Mashooq. Ali P. W. 10 did not clearly notice the particular assailant whose shot hit Munawar Ali P. W.
9. Due to this position, Abdul Qayyum, acquitted accused, would be entitled to the benefit of doubt. However, if one reads the cross-examination of Ghulam Farid P. W. 8, one cannot escape the conclusion that Abdul Qayyum acquitted accused's presence and his firing at Munawar Ali P. W. 9 were being admitted. To questions in cross-examination, Ghulam Farid P. W. 8 not only denied the suggestion that Munawar P. W. Was lying on the ground when he received the revolver shot at the band of Abdul Qayyum, acquitted accused, but the suggestion that Abdul Qayyum, acquitted accused, while standing on a platform had fired at Munawar Ali .P. W. When he was at a lower level and the assailant at a higher level. This shows clearly that Qayyum's presence was being admitted by the defence counsel. Be that as it may, since there is no appeal by the State or revision by any private party against his acquittal, we need not labour on the question whether he should have been convicted for offences under sections 307/34 or 307/34, P. P. C. With regard to the death of Haq Nawaz deceased or the firearm injury on Munawar Ali P. W.
9. However, the ocular testimony clearly implicates Abdul Ghani, appellant, with regard to the murder of Haq Nawaz deceased and since we have held that the two witnesses are disinterested, we do not consider that independent corroboration is required in the instant case.
(1) AIR 1937 Cal. 401(2) PLD 1962 Lah. 1053
19. Notwithstanding the ocular account, the testimony of Dr. Muhammad Rafi P. W. 1, which shows that Haq Nawaz deceased died of a firearm wound on his head within two hours of the post- mortem report, corroborates the use of a revolver. The post-mortem report shows that both the parietal bones of the head of the deceased were perforated, though the bullet remained imbedded in the right parietal lobe. This shows that the shot was fired from a near range. The medical evidence, therefore, corroborates the ocular testimony.
20. The upshot of the above discussion is that the motive, the ocular account as furnished by Farid P. W. 8 and Mashooq Ali P. W. 10 and the medical testimony, bring home the charge of guilt to Abdul Ghani, appellant, without any shadow of doubt. We, therefore, hold that his conviction under section 302, P. P. C. Is legal and proper and must be maintained.
21. This now leaves us with the question of sentence. It cannot denied that an altercation took place between Abdul Ghani; appellant, and Haq Nawaz deceased in the hotel, as a result of some request being mad by the appellant, which the deceased turned down. The said matter not only .Resulted in altercation and abuses, but, as submitted by both the witnesses, grappling both in and out of the hotel, whereafter the appellant lost his control and took out his revolver from his dub and fired at and injured Haq Nawaz deceased. Since the deceased may have said something' very offensive in the abuses be hurled at the appellant, we would, taking all circumstances into consideration, hold that the appellant is entitled to the lesser penalty. His sentence of death is, therefore; not confirmed and is set aside. However, Abdul Ghani, appellant, is sentenced to life imprison--ment with a fine of rupees Five Thousand (Rs. 5,000) or in lieu thereof to undergo further one year's rigorous imprisonment. Fine, if realised, shall be paid to the legal heirs of Haq Nawaz deceased.
22. This appeal, therefore, stands partly accepted, in terms of reduction of sentence, as stated above.
M. A. x.Appeal partly accepted.