GULBAZ KHAN, J.-This appeal is directed against the judgment of learned Additional Sessions Judge, Mianwali, dated 16th December, 1979 whereby Noor Muhammad appellant was convicted under section 302, P. P. C. And sentenced to death and a fine of Rs. 4,000 (Rupees four thousand) or in default in payment of fine to undergo rigorous imprison--ment for six months. His brother Dost Muhammad was, however, acquitted of the charge. It was ordered that half of the fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The case was referred to this Court for the confirmation of death sentence of Noor Muhammad. The Criminal Appeal and the Murder Reference are being disposed of together. Noor Muhammad had filed separate appeal for his conviction under section 13 of Arms Ordinance of 1965. Wherein he was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500 (Rupees five hundred). The appeal under Arms Ordinance shall be dealt with separately as there was a separate trial.
2. Noor Muhammad appellant and his brother Dost Muhammad suspected their cousin-sister Mst.
Saidan for having illicit relations with Muhammad Nawaz deceased and they bore grudge against him on that account. Mst. Saidan was real sister of Muhammad Amir.
3. On 17th October, 1976 at about 2.30 p. m., Raza Muhammad complainant (P. W. 10) was busy in the marriage of his son Nazeer Ahmad in Mohallah Amir Abdullah, City Mianwali. Muhammad Nawaz deceased, who was sister's son of Raza Muhammad complainant, had gone to attend the marriage. Noor Muhammad appellant armed with -12-bore pistol and his brother Dost Muhammad acquitted accused reached all of a sudden. Noor Muhammad threw challenge at the deceased that he had come to avenge the insult of his cousin Muhammad Amir and simultaneously fired -12-bore pistol shot at the deceased. The deceased took a turn and the shot hit him at his back, whereupon he fell down. The appellant and his acquitted accused fled away from the spot. The occurrence was witnessed by Raza Muhammad, Rab Nawaz (P. W.-11), Dost Muhammad (not produced since dead) and Mehr Muhammad (not produced as unnecessary). Muhammad Nawaz deceased was then alive. He was taken to D. H. Q. Hospital by the above-mentioned witnesses. On coming to know of the occurrence, Shamshad Ali Shah S. I. (Incharge Police Post Mianwali) reached hospital. Since Muhammad Nawaz was vomiting, Shanishad Ali Shah S. I. Recorded the statement of Raza Muhammad (P. W.-10-) Exh. P. C. And sent it for the registration of the case. He enquired from the doctor vide Exh. P. I. If Muhammad Nawaz was fit to make statement. The doctor opined that he was fit to make the, statement. Shamshad Ali Shah S. I. Went to the District Court for the recording of statement of Muhammad Nawaz by a Magistrate. He submitted an application Exh. P.
F. To Sh. Ghulam Rasool Magistrate First Class for recording the statement of Muhammad Nawaz.
The Magistrate reached Hospital. He enquired from the doctor if Muhammad Nawaz was fit to make statement and doctor gave his answer at Exh. P. F./1 that Muhammad Nawaz was capable of making statement. The Magistrate recorded the statement of Muhammad Nawaz Exh. P. F./2 and the statement was completed at 3.40 p. m: The doctor gave another certificate Exh. P. F./3 that the statement was recorded in his presence and Muhammad Nawaz remained in senses during his statement and signed the statement in his (doctor's) presence. The Magistrate sealed those documents.
4. Muhammad Nawaz expired at 3.45 p m. The doctor sent Rukka Exh. P. K. To Incharge Police Post on 17th October, 1976; that Muhammad Nawaz had expired. This Rukka was received by Sub.
Inspector when he was coning out of the Hospital. The Sub-Inspector prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He reached the spot the same day. Raza Muhammad complainant produced before him crime empty P. 6 alongwith a bag P. 7, which were sealed into a parcel Exb. P. L. Sub-Inspector explained that he inadvertently put the date as 18th October, 1976 instead of 17th October, 1976. He searched for the accused but they were not available. He received secret information on 18th October, 1976 about the presence of the appellant near railway crossing. He arrested the appellant. He recovered 12- bore pistol P. 4 and two cartridges from the possession of the appellant. The pistol was sealed into a parcel. The appellant had no licence for keeping the pistol and cartridges. Dost Muhammad was also arrested in the case. After completing the investigation the Sub-Inspector submitted challan in Court.
5. Dr. Muhammad Akram conducted autopsy on the dead body of Muhammad Nawaz on 18th October, 1976 at 8.30 a. m. And found the following injuries on his person: -
(1) Nine fire-arm wounds, of entry --" x --" of the left side back.
(2) An abraded area --" x --" on the left side back 2" outside injury No. 1.
Sixth and seventh ribs were half cut on front side. Eleventh and twelfth ribs were fractured on left back side. Seven pellets were recovered underneath the skin and from the muscles of left side chest front under the left nipple. Diaphragm was cut at many places. Stomach was perforated at many places. The large intestines were perforated at the descending colon. Liver was cut at two places on left lobe.
In the opinion of the doctor death was due to shock and haemorrhage on account of injury No. 1, which was sufficient to cause death in the ordinary course of nature. Time between injuries and death was one to one and half hours and between death and post-mortem was sixteen hours and forty-five minutes.
6. Raza Muhammad (P. W. 10) and Rab Nawaz (P. W. 11) gave the dye account of the occurrence and fully supported the prosecution case. Dost Muhammad another eye-witness could not be examined. Mehr Muhammad P. W. Was also given up as unnecessary.
7. Sh. Ghulam Rasool Magistrate First Class (P. W. 8) recorded dying declaration of Muhammad Nawaz. Before recording the statement he had obtained certificate from Dr. Muhammad Akram Khan that Muhammad Nawaz was fit to make statement. He obtained another certificate from the doctor that Muhammad Nawaz remained in senses while making the statement. Dr. Muhammad Akram Khan fully corro--borated the statement of Sh. Ghulam Rasool Magistrate with regard to the recording of statement of Muhammad Nawaz and with regard to the fact that Muhammad Nawaz was fit to make statement and remained in senses throughout his statement.
8. Ghulam Rasool Head Constable (P. W. 7) and Shamshad Ali Shah S. I. (P. W. 12) proved the recovery of - 12-bore pistol P. 4 from the possession of the appellant. Besides the above-mentioned witnesses, the prosecution also produced some other witnesses whose evidence was of formal nature.
9. The case of Dost Muhammad acquitted accused was that of denial Noor Muhammad had taken up a specific plea in answer to question No. 8. He made the following detailed statement: - ---On the day of occurrence rukhsati ceremony of the daughter of Mehr Muhammad P. W. Son of Sikandar with the son of Raza Muhammad complainant was due to be held. I was also one of the invitees of the ceremony. I was going from own house to the house of Raza Muhammad complainant to participate in the ceremony. The house of Said Ahmad Shah falls in the way. The said house has three doors in the galli of Khan Amir Abdullah Khan. One door is in the baithak of the said house. The other is the main door of the house and the third door is fixed in the koocha, a part of the house of Said Ahmad Shah, which too opens in the galli of Amir Abdullah Khan. When I passed in front of the door of the koocha I pushed the door to enter the house of Said Ahmad Shah to know if the guests were still there. On open--ing the door, I saw the deceased making love with my cousin sister MsE. Saidan. They were arm to arm with each other and the deceased was facing towards the east. I had a pistol with me casually. I at once fired having lost control to see my cousin sister being dishonoured by the deceased. Mst. Saidan quickly slipped away to the house of Said Ahmad Shah. I followed her as well, but some of the guests present in the inner side of the house inter--vened and saved her. I ran back to my house from where I was taken by my elder brother Dost Muhammad co-accused to the City Police Post, Mianwali, where we wanted to inform the Police of the occurrence and the reason therefor. The police made me and my brother sit there. I and my co-accused are both Conga drivers and poor persons. As against this, the deceased and his brothers are moneyed people having large petrol business at Lahore and Jhang. They took the police into confidence and fabricated the present case against me.--- No evidence was, however, led in defence.
10. Learned counsel for the appellant contended that the prosecution had tried to implicate Dost Muhammad falsely in this case and thus the statements of eye-witnesses could not be believed; that the dying declara--tion was a fabricated document; that statement of Raza Muhammad was completed at 3.30 p m. And sent at the Police Station for the registration of the case and the formal F. I. R. Exh. P. C. 1 was recorded at 4.00 p. In. : that there was a note by Shamshad Ali Shah at Exh. P.
O./2 underneath the dying declaration to the effect that the statement of Muhammad Nawaz recorded by the Magistrate made out a case under section 307/34, P. P. C. And it was being sent for the registration of the case and this fact clearly created the doubt about the recording of the statement of Raza Muhammad; that the appellant had no direct enmity with the deceased; that Amir brother of Mst. Saidan was alive and he could take revenge from the deceased for having illicit relations with his sister ; that the spot of occurrence was also doubtful as no blood had been recovered from that place ; that Ghulam Fareed Head Constable (P. 7V. 7) contradicted the Sub- Inspector by stating that he left for Hospital from police Post Mianwali on the receipt of a chit from the Medical Officer; that the story of the arrest of the appellant and recovery of pistol from his possession was concocted.
11. The statement of Noor Muhammad appellant had made the case a simple one. He admitted to have fired pistol shot on the grave and sudden provocation as according to him he had seen the deceased making love with his cousin Mst. Saidan in the house of Said Ahmad Shah. He further stated before the Court that Msr. Saidan slipped away to the house of Said Ahmad Shah and he followed her but some guests inter--vened and saved her.
12. Both the parties were related to each other. It was stated by Raza Muhammad complainant that he had invited Noor Muhammad and Dost Muhammad to attend the marriage ceremony of his son. Noor Muhammad appellant also stated in his statement under section 342, Cr. P. C. That he was going from his own house to the house of Raza Muhammad complainant to participate in the marriage ceremony and on the day of occurrence Rukhsati ceremony of the daughter of Mehr Muhammad P. W. Was to take place with the son of Raza Muhammad complainant. These circumstances amply proved that Raza Muhammad complainant had cordial relations with the appellant and he could have possibly no motive to involve him falsely in the case. It is true that Raza Muhammad complainant and Rab Nawaz P. W. Were related to the deceased but they had no animosity with the appellant. On account of relationship, both these witnesses could not be considered as interested witnesses. The deceased lived in Lahore and he had gone to Mianwali in order to attend the marriage ceremony. The case of the appellant during cross-examination of Raza Muhammad complainant was that Mst. Saidan and the deceased were making love with each other in the koocha of occurrence and Noor Muhammad appellant happened to pass that side and be, on seeing them in objectionable condition, lost control and fired pistol shot on the deceased. It was not the case of the appellant that when he was passing near the house of Said Ahmad Shah he pushed the door of the house of Said Ahmad Shah and saw the deceased and Mst. Saidan making love with each other. Raza Muhammad complainant had taken the house of Said Ahmad Shah to be used by his guests and the koocha where the occurrence took place was a public street. Under these circum--stances, the deceased and Mst. Saidan could neither select the Baithak of Said Ahmad Shah for making love nor could they use koocha for their love affairs. If the appellant bad seen the deceased and Mst. Saidan arm to arm with each other, the shot fired by him would have hit Mst. Saidan also. This clearly negated the defence version of grave and sudden provocation. The appellant could not have allowed Msr. Saidan to escape if he had seen her making love with the deceased. The defence version was a pack of lies and we are not prepared to place any reliance on the plea.
13. Sh. Ghulam Rasool Magistrate and Dr. Muhammad Akram Khan were responsible officers. They had no malice against the deceased nor they had any connection with the complainant party. No suggestion was put to these witnesses that they had connections with the complainant. An attempt had been made to show that Raza Muhammad complainant was an employee in the office of Deputy Commissioner while his brother Mehr Muhammad was Girdawar and they might have exerted influence over the Magistrate and the doctor but we cannot think for a moment that these two highly placed officers would go to the extent of fabricating false dying declaration. The dying declaration was a genuine document. It is true that the statement of Muhammad Nawaz was completed at 3.40 p. m. And he expired at 3:45 p. m. But it could happen because the cause of death was shock and haemorrhage. After the statement was completed his blood must have drained out, which resulted in his death.
14. Since Dost Muhammad had no active participation in the occur--rence, he was rightly acquitted of the charge. On account of his acquittal, A the statements of the eye-witnesses could not be rejected and especially when the appellant had admitted to have caused the death of Muhammad Nawaz by firing shot with his pistol.
15. The injured was taken to the Hospital at about 3.00 p. m. The doctor delivered note Exh. P. G. To the Sub-Inspector at about 3.15 p. m. The Sub-Inspector immediately arranged for the Magistrate to record the dying declaration. The District Courts were close to the Hopital and the Magistrate was immediately called. The doctor gave. The certificate Exh. P. F./ I at 3.25 p. m. That Muhammad Nawaz was fit to make the statement. The Sub-Inspector was not present when the statement of Muhammad Nawaz was recorded by the Magistrate. He completed the statement of Raza Muhammad at 3.30 p. m. And sent it at the Police Station for the registration of the case. The formal F. I. R. Was recorded at 4.00 p. m. It so appeared that the statement of Raza Muhammad by Sub- Inspector and of Muhammad Nawaz by the Magistrate were recorded almost at the same time.
After completing the statement of Raza Muhammad, Sub-Inspector sent it to the Police Station. He obtained copy of statement of Muhammad Nawaz and wrote down a note Exh. P. O./2 and under confusion again gave a note that the statement of Muhammad Nawaz was being sent for the registration of the case. It had little bearing either on the statement of Raza Muhammad on the basis of which the case had been registered or on the dying declaration.
16. Evidence had been brought on the record to show that the matter of illicit relations between the deceased and Mst. Saidan was reported to Amir Abdullah Rokhari, who got the matter patched up between the parties as the deceased had denied his relationship. The accused had gone back satisfied. The compromise was effected three/four years prior to the present occurrence. During the intervening period no untoward incident had taken place. We are not convinced that in fact, the murder had taken place on account of the illicit relations of Mst. Saidan with the deceased.
Prior to the occurrence some thing had happened between the deceased and the appellant and it is shrouded with mystery. For this reason, while dis--missing the appeal of Noor Muhammad, we reduce his death sentence to imprisonment for life. The sentence of fine is, however, maintained and in default in payment of fine he shall suffer the same imprisonment as ordered by the trial Court. Noor Muhammad appellant shall be given the benefit of section 382-B, Cr. P. C. And the period spent by him in jail shall be counted towards the term of imprisonment. With this modification in sentence, the appeal of Noor Muhammad is dismissed. The sentence of death passed upon Noor Muhammad is not confirmed.