M. BURHANUDDIN KHAN, J. -This appeal by Muhammad Aslam alias Chhachi, aged 25 years, son of Nawab, resident of Ghazi Kohli, Police Station Wah Cantt., Tehsil and District Rawalpindi is directed against the judgment of the Lahore High Court dated 19-111977 whereby his appeal against the judgment of the Additional Sessions Judge, Rawalpindi dated 22-4-1976 was dismissed, and his conviction and sentence of death was confirmed and fine of Rs. 5,000 was imposed and in default of payment of fine it was further directed that he shall undergo 3 years R. I. Fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
2. The appellant sought leave to appeal against the judgment of the High Court and leave was granted by this Court vile its order dated 132-1978 on the ground that the appellant genuinely believed that his brother was murdered by Muhammad Miskeen deceased and in order to avenge the murder of his brother the deceased in the present case was murdered and that the appellant, in these circumstances, was entitled to lesser penalty; and that the sentence of fine of Rs. 5,000 was imposed for the first time by the High Court. No notice was given to the appellant to show cause as to why the above-mentioned sentence should not be imposed and hence the imposition of fine was illegal.
3. The prosecution case against the appellant as stated in the report Exh. P. A. Lodged by Sikandar Khan, P. W. 5 is that on 10-9-1974 at about 9.45 a. m. He, alongwith Muhammad Miskeen who was his nephew, and his son-in-law, Muhammad Anwar and Mehndu came to the Court in connection with a case under section 307, P. P. C. Against Akhtar son of Mehndu who was in judicial lock-up.
While they were standing outside the Court Suleman son of Khuda Bakhsh also arrived and suddenly Muhammad Aslam alias Chhachi, son of Nawab, resident of Ghazi Kohli came armed with at '12 bore pistol and challenged Muhammad Miskeen saying "Son, be ready for your death" and fired at him. Miskeen deceased was hit on the left side of his chest, fell down on the ground and died at the spot. He (Sikandar Khan P. W. 5) alongwith other witnesses, raised an alarm which attracted Foot Constables Ilam Din and Abdul Latif and they reached the spot. Ilam Din, P. W. 7 caught hold of the accused Muhammad Aslam, and then he alongwith other witnesses, overpowered the accused. Ilam Din snatched the pistol from his band. The accused was carrying 3 live cartridges in his pocket, which were taken out. During the scuffle Abdul Latif, P. C. Gave a fist blow to the accused on his mouth who got injured.
4. Motive given in the report is that long ago Muhammad Aslam's brother by the name of Muhammad Nawaz was murdered. Miskeen (deceased), Hukam Dad and Akhtar were challaned.
Hukam Dad was sentenced while the rest of them were acquitted. Muhammad Aslam was suspecting the deceased Miskin for the murder of his brother and he used to say that whenever he got an opportunity he would kill Miskin. Thus he avenged the murder of his brother by firing at the deceased with a pistol.
5. Report Exh. P. A. Was recorded by Zumard Khan, P. W. 10, S. 1. Civil Lines, Rawalpindi in the Court compound where the incident took place and he sent it to the police station for registration of the case, which was recorded, vide F. I. R. Exh. PA/1.
6. Ilam Din, constable, produced before him (Zumard Khan, S. I. P. W. 10) the accused alongwith pistol P. 4, one empty Exh. P. 6 and three live cartridges P. 5/1.3 at the spot ,which he took into possession vide Memo. Exh. P B and sealed them into parcel. He also inspected the spot, collected the blood-stained earth and took it into possession vide memo. Exh. p. C. And sealed it into parcel.
As the accused appellant was also found injured, he (P. W. 10) prepared his injury statement Exh. P.
L. And sent him to the hospital for medical examination. He prepared the inquest report Exh. P. K. Of Miskin deceased and sent the dead body to the mortuary for post-mortem examination under the escort of Zulfiqar and Muhammad Saeed constables.
7. Dr. Zaffar Iqbal Bhutta, P. W. 7 performed the post-mortion exami--nation, on the dead body of Miskin and found six lacerated wounds 3/8' in diamater each with regular jagged edges, inverted margins going deeper, the tissues were ragged and surrounding tissues were contused, swollen and skin around was ecchymosed on front left chest middle part just below the nipple, one above the other and side by side. These were all wounds of entry going deep into the chest cavity. On dissection he found that the intercostals muscles below injuries were torn and 5th rib was broken.
Four pellets were removed from under the skin and muscles of the back of chest near the middle line and middle of left chest which were showing swelling from outside the skin and one from ninth dorsal vertebra. On cutting another was removed from behind the 8th dorsal vertebra. 8th and 9th dorsal vertebra were broken. Total 6 pellets were removed and were sealed in bottle. In thorax pleura were seen lacerated and in cavity liquid and clotted blood was seen. Right lung was torn on the anterior margin through and through and the left lung was also torn. Heart was torn and lacerated through and through all the chambers, which were empty. In his opinion the cause of death was severe shock and haemorrhage caused by injury to heart and lungs. The injuries which were pellet wounds caused by fire-arm were sufficient to cause death in the ordinary course of nature. The doctor proved his report, Exh. P. D. To be in his hand bearing his signatures. The same day Dr. Zaffar Iqbal Bhutta examined the accused Muhammad Aslam at 2-15 P. W. And found a contused wound 1/3--- x 1/4" muscle deep on the right cheek with a swelling 1" x 1" around it. Injury was simple, caused by blunt weapon within six hours of duration.
Statement of the doctor was recorded by Malik Bashir Ahmad Awan, Magistrate 1st Class, Rawalpindi and it was transferred to Sessions file.
8. Muhammad Saeed, constable, P. W. 2 escorted the dead body of Miskin from the District Court premises to the mortuary Akbar Hussain, Head Constable, P. W. 3 had registered the case in the P. S. Civil Lines vide F. I. R. Exh. P. A/1 on the complaint Exh. P. A. Received through Shahzad, H. C. Sikandar Khan, p. W. 5 was examined at the trial and gave the story earlier narrated by him in the F. I. R.
9. Muhammad Anwar, P. W. 6 stated at the trial that on 10-9-1974 he accompanied Muhammad Miskeen, deceased and Sikandar Khan, P. W. 5 from village Ghazi Kohli to the District Court in connection with a criminal case pending against Akhtar, son of Mehndu. At about 9.45 a.m. When he, Miskin deceased and Sikandar P. W. Were standing in front of the court room of the A. C.
Muhammad Aslam accused came from the hotel side situate towards the west from the A. C's court and when he came near the deceased he raised a lalkara "son, be ready for death" and fired with a '12 bore pistol at the deceased which hit him on the left side of his chest, he fell on the ground and expired. An alarm was raised while the accused ran towards the court of Mr. Zaidi, Magistrate.
He was followed by the witnesses and the other persons. Ilam Din and Latif, constables who were present there, came from the opposite direction and caught hold of the accused. During a scuffle Latif constable gave a fist blow to the accused on his face while Ilam Din, P. C. Relieved him of the '12 bore pistol. On the personal search of the accused 3 live cartridges were recovered from the front pocket of his shirt. Soon after Thanedar and some constables reached the spot. Sikandar Khan lodged the F. I. R. In his presence. Blood-stained earth was collected and taken into possession by the S. I., vide memo. Exh. P. C. The accused, alongwith the weapon of offence and cartridges, was also produced before the Thanedar who took these into possession vide memo.
Exh. P. B.
10. Ilam Din, P. W. 7 is the constable who arrested the accused after the occurrence as he happened to be in the court compound and was an orderly to the P. S. S. P. At the relevant time. Abdul Latif, P.
W. 8 also joined him in the arrest of the accused and he gave a fist blow on the face of Aslam accused in order to relieve him of the pistol. Sikandar and Anwar, P. Ws. Also reached and in their presence three live cartridges were recovered from the pocket of the accused. After about 15 minutes Zumarad Khan S. I. Reached the spot and the accused was handed over to him alongwith pistol P. 4, three live cartridges P. 5/1.3 alongwith an empty cartridge P.
6. Abdul Latif, P. W. 8 corroborated the statement of Ilam Din P. W.
7. He (P. W. 8) was Naib Court in the court of Mr. Muzaffar Hussain Zaidi M. I. C., Rawalpindi, during the days of occurrence. He was present in the court room when he heard the report of a fire shot followed by an alarm. On coming out of the room he saw the accused who was holding a pistol in his hand, running from the side of the court room of A. C., Rawalipindi. He was followed by three persons. Ilam Din, P. W. 7 was also there and he caught hold of the accused from behind and tried to snatch pistol P. Q. As the accused was resisting therefore, he (Latif, P. W. 8) gave a fist blow on his face and thus relieved the accused of the pistol. The persons following the accused informed him that he (accused) had committed the murder of Miskeen deceased. Later on, he handed over the accused to Zumarad Khan, S. I.
11. Muhammad Akram, P. W. 9 prepared the site plan Exh. P. D. And its copy Exh. P. D/1 under the instructions of the police and on the pointing out of the witnesses of the various places.
12. Zumarad Khan, P. W. 10 stated he was present, alongwith some constables near Tufail Chowk adjacent to the District Courts. On receiving information about the occurrence he reached the spot where he found Sikander Khan P. W. Present; recorded his report Exh. P. A. And sent it to the police station through Shahzad Ahmed, H. C. For formal registration of the case; then prepared the injury statement Exh. P. J. And inquest report Exh. P. K. Of Miskin deceased. The accused was produced before him and he formally arrested him. He also received pistol P. 4, empty P. 6 and three live cartridges P. 5/1.3 produced by Ilam Din, P. C. Which he took into possession vide Memo. Ex. P. B.Sent the pistol, cartridges, spent empty cartridge to the police Malkhana. The accused had no licence for the pistol, therefore, a separate case a/s 13 of the Arms Ordinance was registered against him.
13. Gul Sher Muhammad Malik, P. W. 11 the fire-arm expert was also examined. He examined the country-made '12 bore pistol P. 4, prepared the three test empties T. 1 to T. 3 from this pistol and after examining these with the crime empty P. 6 he concluded that '12 bore crime empty marked as C (Court Ex. P. 6) had been fired from the '12 bore short pistol P. 4.
14. The accused was examined by the trial court. He admitted the murder of his brother Muhammad Nawaz for which Miskin deceased, Hukam Dad and Afsar were challaned. Hukam Dad was convicted in that case while others were acquitted. He never suspected Muhammad Miskin deceased for the murder of his brother. He further stated that the murder took place in 1956 when be was a child of about 2/3 years. He filed a copy of the judgment in that case Ex. D. B. He denied the present charge of murder of Muhammad Miskin. He also denied his arrest on the spot and also possession of pistol stating that it was dropped 'by the murderer of Miskin and it was planted on him by the police. When questioned about the injury on his person he stated that he had come to the Court of A. C. In connection with a case pending against Ashiq and Zumared u/s 307, P. P. C.
When all of a sudden he heard a shot followed by alarm, and saw one or two persons running away from the scene of crime and he chased them and was able to catch hold of one of them; when he turned round he was struck by something on his face; and that he was mistaken by the by-standers as the culprit. He added further in his statement at the trial that the witnesses have falsely deposed against him and that the deceased had enmity with many people who were present outside the Court premises on that day.
15. The trial Court after having discussed the evidence produced at the trial, believed the testimony of Muhammad Anwar P. W. 6, Sikandar Khan P. W. 5, Ilam Din, P. W. 7 and Abdul Latif, P. W. 8 and convicted the accused a/s 302, P. P. C. For the murder of Muhammad Miskin and sentenced him to death. However, the learned trial Judge, did not impose any fine.
16. The learned Judges of the Lahore High Court placed reliance on the ocular testimony and the other attending circumstances. They upheld the conviction and sentence of the appellant, and in addition to the punish--ment awarded to the accused by the trial Judge, the learned High Court imposed a fine of Rs. 5,000 and in default of payment of fine, three years' R. I.
17. The learned counsel appearing for the appellant had made effort to make it a case of doubtful identity of the culprit. He further contended that the ocular witnesses are inimical and related to the deceased that the prosecution evidence is full of improbabilities and is in conflict with the medical evidence.
18. On going through the prosecution evidence we find that it is a case where the accused committed the crime in broad day light in the presence of eye-witnesses. He was chased and finally arrested by Ilam Din and Abdul Latif, constables, who were present in the premises of the Court in connection with their duties, and their testimony cannot be discarded in the circumstance of the present case. He was dispossessed of the weapon of offence by these two Foot Constables and the same was found to have been used in the commission of crime. The motive which has been furnished by the prosecution has also been partly admitted by the accused.
19. Lastly the learned counsel pleaded for the commutation of sentence and placed reliance on Ajun Shah v. The State (PLD 1967 SC 185) and Ali Khan v. The State (PLD 1980 SC 109) In the first case Ajun Shah was tried for the murder of one Fazal Raziq. He was convicted and sentenced by the trial Court to the penalty of death a/s 302, P. P. C. His conviction was upheld and death sentence was confirmed by the High Court. Leave was granted on various grounds which were repelled by the Court but as regards the motive for the crime it was observed that the appellant's motive for the crime was to avenge the murder of his father and brother and it appeared from the record that in June, 1945. Hikmat Shah, brother of the appellant, was murdered for which Fazal Raziq accused in that case and others were charged but they were acquitted. In October 1945 appellant's father, Syed Qadir Shah was murdered and again Fazal Raziq was charged with the offence but he was acquitted. At the time of murder of Fazal Raziq in 1965, the appellant's age was 28 years. It was observed that when his father and brother were murdered he was only 8 years old and belonging to the Frontier Province where it was a matter of tradition and family duty to avenge the murder of a father, and such murders are committed in that area out of a sense of honour and self-respect and that since he was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother and such feeling was gaining intensity from day to day and when he saw the deceased in a tonga he lost his balance of mind. In the second cited case the same question was considered in the following words: - "As regards the sentence, this Court has certainly held that in cases where the family honour relatable to females is involved, or there appears from the record a tradition of taking revenge, hardening into family duty aggravated to the extent of being an obsession with the accused, the lesser sentence in awarded. In this case, however, that principle is not attracted for the deceased was not instrumental in causing any such grievance to the petitioner Ali Khan."
20. In the instant case we find that brother of the accused was murdered in the year 1956 for which Muhammad Miskin deceased and others were charged. Miskin was, however, acquitted but the appellant, according to the prosecution case, suspected Muhammad Miskin of having a hand in the murder of his brother. The age of the appellant is given as 25 years at the" a time of commission of offence in September, 1971 and his brother was murdered in 1956 when he must be of about 8 years. Thus the reason for" lesser penalty in Ajun Shah's case would be applicable to the instant case. His death sentence is, therefore, committed to imprisonment for life and we increase the fine to Rs. 25,000 or in default of payment of fine, further to undergo (five) 5 years' R. I. Which on realization shall be paid as compensation to the heirs of the deceased.