Aftab Ahmad son of Khizar Hayat, aged 14J, armed with a carbine, has been convicted under section 302, P. P. C. For the murder of Turaij, aged 48 years, and vide judgment dated 6-3-1980 of the Additional Sessions Judge, Jhang, was sentenced to life imprisonment plus fine of Rs. 2,000 or in default to undergo six months' rigorous imprisonment. His appeal is -being disposed of by this judgment along with Cr. R. No. 321 of 1.980 for enhance--ment of the sentence awarded to him to death.
2. The occurrence took place at 12-30 p.m. On 24-12-1.977 in Ayyub Chauk Jhang, at a distance of 3 furlongs from Police Station Kotwali, Jhang. Statement Exh. P. B. Was made by Nazir Ahmad F. C. P.
W. 2 at 2 p .m. On 24-12-1977 on the spot and it was recorded by Asghar Ali S. I. P. W. 7, who happened to be passing from there in connection with the investigation of some other case. On the basis of the aforesaid statement formal F. I. R. Exh. P. B. 1 was registered at the police station by Hashmat Ali M. H. C. (not produced) on the same day at 2-15 p.m.
3. The motive for crime, as stated in the F. I. R. And subsequently as proved before the trial Court, is that the deceased was admittedly a history---sheeter Badmash as well as a hired assassin who was involved in the murder of five members of the family of the appellant including his brother Munir Ahmad, cousin Sikandar Hayat, uncle Haque Nawaz, Mst. Fatima, wife of his brother Muhammad Iqbal as well as his paternal-grandmother. The motive version is being supported by Muhammad Aslam Arsala S. I. P. W. 5, who had registered the F. I. R. In that murder case Exh. P. G. As well as Asghar Ali S. I. P. W. 7, Investigating Officer in the present case.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Nazir Ahmad F. C. P.
W. 2 and Muhammad Aslam F. C. P. W.
3. Both are police constables who had brought the deceased to the Court in connection with some criminal case as against him and they were taking him back to the jail. When the occurrence took place, they were waiting for boarding a bus along with the deceased, who was in handcuffs and was also chained by feet. They are unconnected and independent witnesses. Two other eye-witnesses, namely, Fateh Sher and Bashir Ahmad were cited but were not produced.
5. The appellant was overpowered and apprehended on the spot by the P. Ws. Including Nazir Ahmad F. C. P. W. Etc. He was formally arrested by Asghar Ali S. I. P. W. 7 on- the same day i.e. 2a-12- 1977. At the time of his arrest was recovered from his person carbine P. 1 with crime. Empty stuck in the barrel as well as three live cartridges P. 2/1-3 which were taken into possession vide memo. Exh.
P. C. Dated 24-12-1977. The attesting witnesses are Nazir Ahmad F. C. P. W. 2, Muhammad Aslam F. C.
P. W. 3 and Asghar Ali S. I. P. W.
7. The weapon of offence- had not been sent to the Fire-arms Expert.
It is even otherwise not required for the purposes of corroboration because the ocular testimony, in the instant case, comes from an independent source.
6. The appellant, in his statement. Before the trial Court, denied having participated in the occurrence. He disowned the recoveries and stated that he had been falsely implicated at the instance of Fateh Sher (given up F. W.).
7. In the F. I. R. The occurrence is reported . To have taken place in the following manner : On the fateful day, Nazir Ahmad F. C. P. W. Along with Muhammad Aslam, F. C. P. W. Brought the deceased to Jhang from District Jail, Faisalabad, where he was undergoing a sentence of life imprisonment so that he could produce him before the Assis--tant Commissioner, Jhang, in a case registered against him under sec--tion 13 of the West Pakistan Arms Ordinance XX of 1965. The deceased was put in police lock-up at Police Station Kotwali and was taken out in the morning from the police lock-up for production in the Court of the Assistant Commissioner, Jhang, where his case was adjourned to the next date. Thereupon, Nazir Ahmad F. C. P. W. Along with Muhammad Aslam F. C. P.
W., who was armed with a rifle, brought the deceased in custody to Ayub Chauk so as to board a bus. The deceased was in handcuffs and his feet were also chained. The other end of the handcuffs was in the service belt of Nazir Ahmad F. C. P. W. While they were waiting for the bus, a lot of people were also present there waiting for the arrival of the buses and there was rush at that place.
Suddenly, one person whose name was subsequently revealed as that of the appellant wrapped in a Chaddar appeared and coming close to the deceased asked him if his name was Turaij. There-- after, he fired at the deceased from inside his Chaddar with' a carbine and the shot hit on the left upper arm near the shoulder of the deceased who fell down on the ground and died on the spot.
Nazir Ahmad F. C. P. W. Immediately held the appellant in his clasp and Fateh Sher as well as Bashir Ahmad (both not produced), who were standing nearby, overpowered the appellant. Muhammad Aslam F. C. P. W. Snatched carbine from the appellant and during his personal search three live cartridges were also recovered from the fold of his Shalwar. The appellant told Nazir Ahmad F. C. P.
W. That the deceased and others had murdered relatives of the appellant in which case the deceased had been convicted and sentenced to life imprisonment. The appellant, in order to take revenge of those murders had put the deceased to death while he was in police custody.
8. Dr. Muhammad Bashir P. W. 1 conducted post-mortem examination on the dead body of the deceased at 4 p.m. On 27-12-1977 and found on his person. Six fire-arm wounds of entrance on left arm at its upper part. There were three wounds of exit in axilla penetrating into the left chest.
Besides this fire-arm injury there were two abrasions on left knee and right knee. The first injury had been caused by fire-arm and the other two injuries were caused by a blunt-weapon or through friction against some hard substance. In the opinion of the doctor, the cause of death was shock and haemorrhage due to fire-arm injury which had damaged the .Lung and the heart. The injury was sufficient to cause death in the ordinary course of nature. '
9. I have heard learned counsel for the appellant as well as learned counsel for the State and the complainant and with their assistance have gone through the entire file. It is evident that the appellant, who was 141 years old at the time of the commission of crime, was armed with a carbine which he had hid under hi, Cheddar. He came to the spot where Nazir Ahmad and Muhammad Aslam F. Cs. P. Ws. Were sitting along with the deceased, who was in handcuffs and chairs, waiting for the bus. The deceased was there along with the police constables out of which one was armed with a rifle because he had been brought by the police for producing him in the Court of the Assistant Commissioner in connection with an Arms Ordinance case. The deceased had already been convicted to life imprisonment in the earlier murder case along with others and had been undergoing his sentence of life imprisonment in Faisalabad jail. The appellant came to him and after inquiring from him that the name of the deceased was Turaij, fired a single shot at him which led to his death on the spot. The appellant was overpowered and apprehended on the spot 'by the two police constables, who were present there and Fateh Sher and Bashir Ahmad. On his apprehension the appellant had told Nazir Ahmad F. C. P. W. That he had murdered the deceased, because the deceased was a history---sheeter Badmash as well as a hired assassin who , along with others had murdered five members of his family and that in that murder case he had not only been convicted but sentenced to life imprisonment, but was undergoing the same. He had also explained that he had murdered the deceased in order to avenge the death of five members of his family. When he was formally arrested by Asghar Ali S. 1. P. W., he also gave the same version to him and carbine P. 1 along with live cartridges etc. Were recovered from him and taken into possession by the police. So, it is clear that the prosecution version, in the instant case, is being supported by the independent, testimony of Nazir Ahmad and Muhammad Aslam F. Cs. P. Ws. Which is being further supported by the recovery of crime weapon as well as the medical evidence. The only question which requires determination, in the instant case, is that if the motive version is relied upon, then could the case in these exceptional 'and unusual circumstances be brought within the ambit of Explanation I to section 300, P. P. C. i.e. Grave and sudden provocation; and that there under instead of being convicted under section 302, P. P. C. If he could be convicted under section 304, Part 1, P. P. C. In the light of the testimony of Muhammad Aslam Arsala A. S. 1. P. W. 5 and Asghar Ali S. 1. P. W. 7, the motive version has to be accepted. Muhammad Aslam Arsala S.1. P. W. Was the Investigating Officer as against the deceased in the F.
1. R. Exh. P. G. Where under five members of the family of the appellant were done to death by certain accused-persons named in that F.
1. R.
And the deceased had also been tried. Convicted and sentenced in that murder case. Asghar Ali S. I. P. W. Is the Investigating Officer in the present case and the background of that murder is also within his knowledge. Learned counsel for the appellant vehemently argued that the appellant was a young boy of 141 years at the time of the commission of crime and a Metric student. On the other hand, the deceased was history-sheeter Bad--mash, who had also been used as hired assassin in accordance with the statement of Muhammad Aslam Arsala S. I, P. W.. The deceased had been involved, convicted and sentenced in the murder case in which five members of the family of the appellant had been done to death. These five members are his brother Munir Ahmad, cousin Sikandar Hayat, uncle Haque Nawaz, Mst. Fatima, wife of another brother, namely, Muhammad 1qbal, as well as his old paternal grandmother. Thus, at one go five members of the family of the appellant were wiped out at the hands of the deceased and others who were convicted and sentenced. The deceased was undergoing his sentence or life imprisonment at Faisalabad jail and had been brought to Rang in connection with the trial of another case. The record shows that there were many other criminal cases registered against the deceased. It was argued that the appellant being a young boy continuously sizzled under the emotion of revenge but a grave .And sudden provocation obviously made him lose his self-control when he chanced to see the deceased on the spot and after discovering that his name was Turaij, he fired a shot at him under the grave and sudden provocation and murdered him. Learned counsel pointed out that it was understandable that he was armed with a carbine not because the murder was intentional or pre-planned but for his own defence as five members of his family had already been done to death.
Ordinarily, the counsel urged, the appellant could have not known that the deceased along with the police constables was waiting for a bus at Ayyub Chauk. Thus, according to learned counsel for the appellant, the appellant was no doubt armed with a carbine because of self-defence but when he happened to see the deceased in a Chauk waiting for a bus and the same deceased was the one person who was involved in the. Cold-blooded murders of five members of his family, he was gravely and suddenly provoked to the extent that he lost his self-control and fired a single shot at the deceased thereby kiting him. It was thus argued that the case of the appellant fell under Exception I to section 300, P. P. C. And that, therefore, his conviction and sentence should have not been recorded under section 302, P. P. C. But he should have instead been convicted and sentenced under section 304, Part I, P. P. C. Learned counsel relied upon Muhammad Hussain v.
State 1975 P Cr: L J 422,as well as Ghulam Muhammad v. Allah Yar PLD 1976 SC 241In the Supreme Court judgment grave and sudden provocation has been defined and it is held that the Court in allowing plea of grave and sudden provocation must be satisfied with regard to the provocation being both grave and sudden and the offender being deprived of self-control while engaged in the act of culpable homicide. It was held that in considering whether the provocation has or has not been made out, one must also consider the retaliation or provocation itself i.e. To say whether the mode of resentment bore some proper and reasonable relationship to the sort of provocation that had been given.
Learned counsel for the complainant as well as the State, on the other hand, attempted to argue that the present case could not be considered as a case of grave and sudden provocation. If at all the case of the appellant was to be examined from this view-point, it could at the most be a case of provocation only and if it was merely a case of provocation coupled with the young age of- the appellant, then while recording sentence under section 302, P. P. C. The trial Judge has already awarded lesser penalty to the appellant. It was also urged that since it could not be proved that the five members murdered in F.
1. R. Exh. P. G. Were the relatives of the appellant, the case of the appellant should be considered as a cold-blooded murder of the deceased which was pre- planned by the appellant as the appellant had come armed with a carbine to the spot where the deceased was present and after satisfying himself that the name of the deceased was Turaij, he fired at him and murdered him.
I have carefully considered the arguments of learned counsel for the parties and my view is that there is sufficient evidence on record to indicate that five persons murdered in F. I. R. Exh. P. G. Were the relatives of the appellant and in that murder case the deceased had been convicted and sentenced to life imprisonment which he was undergoing. Thus, the motive set up by the prosecution is proved and established. It is also understandable that when five members of the family of the appellant had been done to death, in self-protection the appellant might be carrying a. Carbine or fire--arm being a young man. I also note that there is nothing on the record to show that the appellant had any knowledge that the deceased had been brought to Jhang from Faisalabad by the police in order to produce him in the Court of the Assistant Commissioner and that after his production the criminal case for which he bad been brought was adjourned and that while he was being taken back to the Kotwali for being lodged in the lock-up, he was waiting for a bus in Ayyub Chauk. Obviously, the appellant could have no knowledge that at the fateful time the deceased was waiting for a bus in Ayyub Chauk and that, therefore, this was the appropriate opportunity to avenge the death of his relatives and to murder the deceased. So it is clear that the appellant chanced to pass from Ayyub Chauk when he noticed the deceased present there along with the policemen waiting for a bus. On seeing him be eras reminded of , the five members and was gravely and suddenly provoked, inquired about his name as to whether it was Turaij and on satisfying himself that it was Turaij, he fired at the deceased under grave and sudden provocation and killed him.
In the light of this discussion I am of the view that the case of the appellant was well within the ambit of Exception I to section 300, P. P. C. As he bad committed culpable. Homicide not amounting to murder under grave and sudden provocation whereunder he had lost his self-control. In these excep--tional and unusual circumstances he should have not been convicted and A sentenced under section 302, P. P. C. But should have been convicted and sentence under section 304, Part I, P.
P. C. The result is that setting aside his conviction and sentence under section 3u2, P. P. C. I convict the appellant instead under section 304, Part I, P. P. C. And sentence him to undergo seven years' rigorous imprisonment plus fine of Rs. 1,000.00 or in default to undergo three months' R. I. The Jail Authorities are directed that while computation of his sentence of imprisonment, they should grant him the benefit of the provisions of section 382-B, Cr. P. C. And count the period of his custody behind the lock-up as an under-trial prisoner and his imprisonment since the date of conviction, for that purpose. The appeal is accepted to this, extent.
In the light of the above discussion, I do not find any substance in Cr. R. No. 321 of 1980 which is dismissed in limine.