1. B. G. N. KAZI, J.---Khadim Hussain son of Muhammad Ibrahim Jat who was tried for the murder of Ahsanullah son of Maqbool Ahmed and Nasrullah son of Muhammad Hussain by the Sessions Judge Sukkur and convicted under section 302, P. P. C. To 4eatb, has filed this appeal against his aforesaid conviction and sentence. There is also a reference for the confirmation of the death sentence. Both these matters will be dealt with in this judgment.
2. The facts of the case briefly stated are that Mst. Irshad Begum, widow of Muhammad Hassan Jat, lodged F. I. R. At the Ghotki Police Station With S. H. O. Mansoor Ahmed on 17th October, 1979 at 11 o'clock in the morning stating that her husband Muhammad Hussain died in Saudi Arabia one year earlier. He had acquired by purchase 56 acres of land in Deh Amtrabad Taluka Ghotki which was being cultivated through Haris Abdul Majid and Ismail. It was further her version that her deceased husband had entrusted the management of the land to his elder brother Khadim Hussain (the appellant herein). She along with her son Muhammad Nasrullah and other relatives normally used to reside in Hyderabad but used to visit the agricultural land in question casually. About 8 days before the incident she had called her brother Chaudhry Ahsanullah (deceased) from Punjab and she accompanied by the aforesaid Ahsanullah and her son Nasrullah had visited the land. The appellant who, as already stated, was the elder brother of her husband, had asked for share in the lands but his request had been refused and a dispute had arisen due to the aforesaid refusal.
3. On the night of the, incident Khadim Hussain appellant had one again made a demand for share in the land and on refusal of the same he got offended and taking with him his licensed gun had slept in front of the house on a cot which he had placed under a Siranh tree. The complainant and her brother and son had slept on cots in the verandah of the house. At about 3 a.m. The complainant woke up or: hearing gun shot and she and her son Nasrullah got up and found appellant Khadim Hussain with gun in hand standing near her brother Ahsanullah. Abdul Majid who had heard the noise of the gun fired, Muhammad Shafi and many other persons also came running from the neighbourhood. It was further the case of the complainant that her son Nasrullah tried to catch hold of Khadim Hussain who then fired the gun which he was holding at her son. Nasrullah fell down near the cot of Ahsanullah. The appellant threatened people not to come near him and then taking his gun went out of the house. The shots fired by the appellant had hit Ahsanullah and Nasrullah who died on the spot.
4. It was the case of the first informant/complainant that during the night she sat over the dead bodies and in the morning she requested the witnesses to take care of the dead bodies and herself went to report the matter to the Police.
5. S. H. O. Mansoor Ahmad who was incharge of Ghotki Police Station recorded the F. I. R. Of Mst. Irshad Begum and registered it in the Book kept under section 154, Cr. P. C. He then prepared memo of injuries on the person of the complainant in presence of Head Constable Shah Muhammad and Police Constable Abdul Rehman. The complainant was referred to the hospital at Ghotki for treatment and certificate. However, before she went to the hospital she had accompanied the S. H.
6. O. And the other police personnel to the scene of offence which she had shown to them. It was the house of the complainant situated in Deh Amirabad also known as Lanjari. There were dead bodies of Nasrullah and Ahsanullah lying there. The dead body of Nasrullah was lying on the ground while the dead body of Ahsanullah was lying on the cot. Both the deceased were found to have shot gun injuries. There had been profuse bleeding and there was a quantity of blood on the cot and also on the ground. The investigating officer secured blood sodden earth and made a parcel of the same which he sealed. He also secured four empties of 12 bore which he found there. He next sealed the same in presence of mashirs Muhammad Shafi and Haji Noor Muhammad.
7. The accused was also present at the scene of offence and was found sitting under a tree in the compound of the house of the complainant. P. W. Muhammad Bux, who was present there, produced before the S. H. O. One double-barrelled gun which he said he bad secured from the appellant. Muhammad Bux also produced before the S. H. O. Two live cartridges also said to have been secured from possession of the appellant. The same along with the gun were secured and sealed in the presence of the same mashirs.
8. The accused-appellant was wearing a blood-stained shirt which was secured from his person in the presence of the same mashir s and was made into a parcel and sealed and sent to the Chemical Analyser for exa--mination and report.
9. Mansoor Ahmed next held inquest on the dead bodies of Nasrullah and Ahsanullah in presence of the same mashirs. Both the corpses were sent to the Ghotki Hospital for post-mortem examination through Police Constable Ghulam Qadir. The S. H. O. Next recorded the statements of P. Ws. Abdul Majid. Muhammad Shafi and Muhammad Bux. Thereafter he returned to the Police Station taking the accused, the gun and other articles secured from the scene of offence.
10. After interrogation of the accused-appellant he was taken by the S. H. O. For the recording of his confession before the Mukhtiarkar and First Class Magistrate, Ghotki on the same day. On 21st October 1979 the S. H. O. Ghotki got the statements of prosecution witnesses Abdul Majid, Muhammad Shafi and Muhammad Bux recorded by the same Magistrate under section 164, Cr. P.
11. C. On 28th October, 1979 Dr. Bashir Ahmed, the Medical Officer who had performed the post- mortem examination of the dead bodies of Ahsanullah and Nasrullah sent pellets secured from the dead bodies which were sealed in to separate bottles, one containing 16 pellets and four wads taken out from the body of Nasrullah deceased and the other two pellets and four wads from the body of Ahsanullah. Both these bottles were sealed and sent by the Medical Officer Ghotki to the S. H. O. The same day the S. H. O. Also received post-mortem notes from the Medical Officer and the Medical certificate regarding the injury found on the complainant. After the usual investigation the S. H. O. Centre sent up the appellant for trial before the Sessions Court, Sukkur.
12. At the very outset it may be observed that it has been conceded by Mr. Azizullah K. Shaikh, the learned Advocate for the appellant that the evidence against the appellant was sufficient to sustain the conviction. We have also given anxious thought to the same matter with regard to the evidence against the appellant, and we find there is ocular evidence of Mst. Irshad Begum who was actually present in the same verandah where the shooting took place. It has come in her evidence that on hearing the first shot fired she woke up and also deceased Nasrullah got up from sleep.
13. After that she has given detailed version of facts as to how the appellant shot at the deceased Ahsanullah, her brother, and Nasrullah her son. The ocular evidence of this witness is fully corroborated and supported by the evidence of prosecution witnesses Abdul Majid and Muhammad Bux who also arrived at the scene of offence immediately on hearing the gun fire: The ocular evidence of these witnesses is fully corroborated by the testimony of Dr. Bashir Ahmed, the Medical Officer who performed the post-mortem examination of the two dead 'bodies. There is also the report of the Ballistic Expert (Exh. 27) which supports the prosecution in that the report mentions that the four empties found on the scene of offence were fired from the gun secured from possession of the appellant. There can be no doubt about the gun, which is a licensed one, in the name of the appellant. There is the further evidence of recoveries, namely, the blood-stained shirt from the person of the appellant and the report of the Chemical Analyser (Exh. 28) is positive.
14. Having recapitulated the evidence appearing against the appellant the only matter now to be considered by us is with regard to the sentence awarded.
15. It is the contention of Mr. Azizullah K. Shaikh, the learned Advocate for the appellant that the appellant is a person of advanced age of between 50-60 years and he has pointed out admitted circumstances of the case, namely, that the appellant is the elder brother of Muhammad Hussain deceased who was the owner of the land and the house on it. He has further pointed out that the appellant as the elder brother had been put in charge of looking after the land and had been responsible for doing so for about 15 years. The younger brother had died only one year before the incident : and in the meantime, presumably the widow and deceased Nasrullah, the son, desired to take over charge of the land, etc. And again presumably had therefore taken the aid of Ahsanullah who was the brother of the widow and the maternal-uncle of deceased Nasrullah. All these persons admittedly went to the land and the house thereon obviously with the purpose of ousting the appellant from control of the property. The learned counsel has very clearly pointed out that in the circumstances stated the elder uncle who had been incharge throughout and had been managing the property must have felt very sore at the way that his youngster, a nephew of his, wanted to throw him out and the conversation- which must have passed can well be imagined and also the feelings of the bold man, as respect for elders is traditional and there--fore it has been considered to be something due to elder relatives. The learned counsel has fairly conceded that he is not pleading legal insanity on the part of the appellant nor could there be said to be a case for it ; but at the same time the feelings of the appellant which prompted him to commit the offence have to be considered as a mitigating circumstance in that a reference to the judical confession would show that after the violent quarrel with his nephew he went out and did not sleep inside the house or even the verandah along with the other members of the family, The very fact that the appellant took his gun and went and slept out in the open shows that he considered himself to have been shabbily treated and insulted by his own nephew and others. It is therefore conceivable that the insult given to him and suffered by him rankled with him and was even on his subconscious when he lay down to sleep. It is also conceivable that the hurt caused by the insult and the rankling of that hurt became so exaggerated that there was temporary imbalance of the mind which may not amount to legal insanity, but could have been the result of the provocation caused by insulting an elder who due to such insult felt compelled to go out and sleep in the open.
16. The principle about the age of the culprit being considered for adjudging his feelings at the time has been recognized, and the learned counsel has referred to the decision of the Supreme Court in Abdul Rahim v. The State (PLD 1960 SC (Pak.) 401). In that case the deceased, a boy of 17 years, had been done to death by Abdul Rahim, an old man of about 60 years of age who had been rebuking some small children for being noisy in their play and ordering them to go away. Deceased Ghulam Hussain however had interfered and had taken it upon himself to walk to the door of Abdul Rahim's quarter and to engage in an equal exchange of abuses with a person who was old enough to be his father or even his grandfather. The provocation was considered to be sufficient as some words of abuse were sufficient to irritate the old man more than the others, and it was held that the circumstances of the case justified an inference that there was in the conduct of the deceased towards the accused a measure of provocation leading naturally to an imbalance of mind of which the murder by stabbing was the result. Mr. Nazeer Alam, the learned counsel for the State has pointed out that the facts of the present case were different but the reference to the aforesaid case was made only on the point to show what would be the feelings of an old person which could at the time of the incident bring about insanity which may not be legal insanity, but nevertheless could be considered a mitigating circumstance where the end result is concerned. We have given anxious thought to this matter and we consider that the imbalance of mind which in the case may not amount to medical or legal insanity was due to the provocation and insult offered, and we therefore dismiss the appeal and maintain the conviction of the accused under section 302, P. P. C., but at the same time we would change the sentence from that of capital A sentence to one for imprisonment for life. The Reference for confirmation of the death sentence is, therefore, accordingly rejected.