' RUSTAM S. SIDHWA, J.-Haji Sohna alias Ramzan and his son Muhammad Ismail were tried by an Additional. Sessions Judge of Sargodha under section 302/34, P. P. C. For the murder of Karam Elahi, deceased, and whilst Muhammad Ismail was acquitted, .Haji Sohna alias Ramzan 'as convicted under section 302, P. P. C. And sentenced to death, subject to confirmation by this Court and to pay fine of Rupees Five Thousand (Rs, 5000) or in default of payment of fine to suffer further rigorous imprisonment for two years. Fine, if recovered was ordered to be paid to the heirs of Karam Elahi, deceased, as compensation under section 544-A, Cr. P. C. The appeal (Cr. A. No, 130 of 1979) preferred by Haji Sohna convict, the connected reference (M. R. No, 62 of 1979) submitted by the learned trial Judge for the confirmation of the convict's sentence anti a private revision petition (Cr.
R. No, 871 of 1979) filed by Rehmat Ullah, complainant, against the acquittal of Muhammad Ismail, the acquitted accused, are all three before us for disposal.
2. The brief facts of this case are that about 11 years prior to the occurrence, one Mst. Phaphan, sister-in-law of Sohna, accused, was murdered and for her murder, Karam Elahi, deceased, and Rehmat Ullah P. W. 5 were chalianed. This case was compromised as Sohna, accused, received compensation of Rs, 12,000 and was promised the hand of one Mst. Kalsoom daughter of Rehrnat Ullah P.W. For his son, Muhammad Ismail, accused. Since Mst. Kalsoom was minor at that time, so the Nikah could not be performed. On her attaining puberty, Sohna, accused wanted the fulfilment of that promise, but Karam Elahi, deceased, and Rehmat Ullah P. W. 5 refused to comply with their promise. In this connection, a day before the present occurrence, Sohna, accused, approached the deceased Karam Elahi and Rehmat Ullah P. W. 5 in the village alongwith Jaimal, Allah Bakhsh and Ghulam Muhammad, in the form of a punchait for the fulfilment of the abovesaid promise. Karam Elahi and Rehmat Ullah P. W. 5 did not accept their request. Sohna, accused, while leaving, threw a challenge that he would deal with Karam Elahi, deceased, and in return, Karam Elahi, deceased, asked the accused to do whatever he liked. On the next day, i. e. 18th March, 1977 at about 6 p. m.
Rehmat Ullah P. W. 5 was sitting in the Baithak of Muhammad Panah, alongwith Noor Muhammad P.
W. 6uand Sahiba (given up P. W.). Karam Elahi, deceased, was also sitting on the threshold of that very Baithak at that time. A radio was on in this Baithak and all these people were listening to it. All of a sudden, Sohna, accused, armed with a gun, and Ismail accused, armed with a dang, emerged there. Sohna, accused, challenged Karam Elahi, deceased, that he had come to take the Rishta for his son from him and at the same time, simultaneously fired a shot at Karam Elahi, deceased, felling him. Ismail, accused, exhorted his father, Sohna, accused, to repeat the fire, but in the meantime, the complainant and other P. Ws. Got up, rushed towards the accused and the accused had no chance to reload and repeat the fire. Both the accused then made good their escape with their respective weapons. Since Karam Elahi, deceased, had received in;uries, so Rehmat Ullah P. W.
5, his brother, removed him in a trolley to Sillanwali Hospital, but he learnt at the Bus Stand Sillanwali that the doctor was not available in Sillanwali Hospital, so he arranged for the removal of Karam Elahi, deceased, in a bus to Sargodha Hospital in the company of Habib Ullah P. W. And, after so. Doing, he himself went to the Police Station Sillanwali where his statement Exh. P. D. Was recorded on 18th March, 1977 at 10-30 p. m. By Sardar Ali S.-I. P. W.
9.
3. After the registration of the case, Sardar All S.-I. P. W. 9 proceeded to the Sargodha Hospital, where he learnt that Karam Ali, deceased, had died. After preparing the necessary papers, he sent the dead body for autopsy.
4. On 19th March, 1977 at 9-00 a. m. The Investigating Officer recovered blood-stained earth, blood- stained peeri P. 7 and four pellets P. 8/1-4 from the spot, which he took into possession vide memos.
P. F., P. G. And P. H. Respectively. All Muhammad Chowkidar P. W. 7 produced a crime empty P. 9, which he had recovered from the spot the previous evening, vide memo. P. J. The said recoveries were witnessed by Noor Muhammad P. W. 6 Ali Muhammad P. W. 7 and Sardar Ali, S.4. P. W.
9.
S. The same day Dr. Muhammad Firdos P. W. 1 conducted the postmortem examination on the dead body of Karam Elahi, deceased, and found a lacerated firearm entrance wound 1" x 3/4" going deep into the right side of the uppermost part of the back, about half inch away from the midline, a lacerated firearm entrance wound 1" x 1" going deep on the outer side of the right arm in the upper haft with a pellet present at that place and a second pellet (which he removed) at a distance of 31" below this wound on the back of right arm in its middle 1/3", a lacerated firearm exit wound x 1/3" in the right axilla (armpit) and three lacerated firearm exit wounds each x 1/3" on the outer right side of the chest along the medial axillary (armpit) border about 1" x 1 1" below the first exit wound. Death was due to firearm injury on the right side of the upper most part of the back of the chest which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
Stomach was found to contain semi-digested food and large intestines were distended with fluid faecal matter and air. Time between death and post-mortem examination within twelve to fourteen hours.
6. On 25th March, 1977, both Haji Sohna and Muhammad Ismail, accused, presented themselves before Sardar Ali, S.-I. P. W. 9, the investigating officer who arrested them. Haji Sohna, accused, produced his licensed gun P. 10, which was taken into possession vide memo. P. R. The said recovery was witnessed by the same witnesses that had witnessed the earlier recovery of the crime empty P.
9. The gun P. 10 recovered from Haji Sohna, accused, was found to match with the crime empty P. 9 recovered from the spot by Ali Muhammad P. W. 7 and delivered to the investigating officer on 19th March, 1977.
7. After completing the necessary investigation the challan against both the accused was sent up.
8. At the trial, the prosecution produced Rahmat Ullah P. W. 5 and Jaimal P. W. 8 to prove the motive, Rahmat Ullah P. W. 5 and Noor Muhammad P. W. 6 in proof of ocular account, Ali Muhammad P. W. 7, Noor Muhammad P. W. 6, and Sardar Ali, S.-I. P. W. 9 in support of the recoveries and Dr. Muhammad Firdous P. W. 1 to prove the post-mortem report of the deceased. Both the accused denied the accusations levelled against them and imputed their false involvement to enmity. Haji Sohna, accused, further stated that his licensed gun P. 10 was taken into possession from his house by the Police on 19th March, 1977 while he was at his dera, from which the Police had fabricated the crime empty.
9. The learned trial Judge, relying upon the motive, the ocuar account, the recovery and the medical evidence, convicted and sentenced Haji Sohna alias Ramzan, accused, and acquitted Muhammad Ismail, accused, as stated in para. 1 above.
10. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The evidence as regards motive is furnished by Rehmat Ullah P. W. 5 and Jaimal P. W.
8. The testimony of these two witnesses is consistent, but it is stated that as in question No, 6 put. To Sohna appellant, in his examination under section 342, Cr. P. C., the name of Jaimal P. W. 8 was not mentioned in collaboration with that of Allah Bux and Ghulam Muhammad, whose names were mentioned as constituting the punchait that had gone to the house of Rehmat Ullah P. W. 5 to secure the hand of Mst. Kalsoom, where the altercation took place between Karara Elahi, deceased, and Sohna, appellant, that the testimony of Jaimal. P. W. 8 as regards his participitaion in the punchait should be excluded. It appears that by mistake the name of Jaimal P. W. 8 was not mentioned with that of Allah Bux and Ghulam Muhammad, as members of the punchait in question No, 6 put to Sohna, appellant, but it appears that no prejudice was caused to Sohna, appellant, as the whole of the story regarding the punchait was relied in evidence and was already within the knowledge of the appellant when he was examined on 3rd January, 1979. However, assuming that Jaimal P. W. 8's evidence is not taken into consideration, the story as regards the motive put forth by Rehmat Ullah P. W. 5 cannot be discarded, as a major part of the same already stands admitted by this appellant in the answers given by him to questions Nos. 1 to 3 put to him in the examination by the Court. Whilst he admitted that his sister-in-law Mst. Phaphan had been murdered eleven years prior to the occurrence, in respect of which matter Rehmat Ullah P. W. 5 and Karam Elahi, deceased, were tried and which case was compromised and he had received compensation of Rs, 12,000 but he denied that in the said compromise Rehmat Ullah P. W. 5 had promised the hand of his daughter Mst. Kalsoom for marriage to his son, Ismail, acquitted accused, or that any demand was made later for the said girl or that any punchait was brought by him in company with Allah Bux and Ghulam Muhammad to the residents of Rehmat Ullah P. W. 5 for securing the said girl. Nothing material was brought out from the cross-examination of Rehmat Ullah P. W. 5 to show that the story of motive as set up by him, was untrue or could not be accepted without reservations. In these circumstances, we have no reason to disbelieve Rehmat Ullah P. W. 5 and that therefore, the motive stands proved.
11. The ocular account in the case is furnished by Rehmat Ullah P. W. 5 and Noor Muhammad P. W. 6, who happen to be the brother and maternal cousin of Karam Elahi, deceased. Both were at the Baithak of one Muhammad Panah, which Baithak was a type of meeting place for persons to sit and chat. The site plan Exh. P. C. Shows that the ihata of Rehmat Ullah P. W. 5 and Karam Elahi, deceased, is just opposite the Baithak and ihata of Muhammad Panah. As such, Rehmat Ullah P. W.
5 was a natural witness. The residence of Noor Muhammad P. W. 6 is at a distance of four killas from the Baithak. He was also, therefore, a natural witness for the evidence is consistent that the Baithak was a common meeting place. The testimony of the said two eye-witnesses as regards the occurrence is given in the brief facts submitted is para. 2 above, which need not be repeated, as the same would only drag a greater length of chain. Suffice do say that the testimony is consistent that Sobna appellant, within the view of the two eye-witnesses and Sahiba (given up P. W.) fired at Karam Elahi, deceased, hitting him on his back, while he was sitting on a peeri listening to the radio, and that after Ismail, acquitted accused, exhorted him to fire once again, he and Ismail left the place when they found themselves being challenged by the eye-witnesses and Sahiba (given up P.
W.). The learned counsel for the appellant challenged the ocular testimony on a number of grounds. First, that as the occurrence took place at 6 p. m. And the F. I. R. Was lodged at 10-30 p. In, thus, there was delay in the lodgment of the F. I. R. For which there was no explanation and, therefore, must be assumed that the F. I. R. Was lodged after consultation. . Second, that the occurrence did not take place at 6-00 p. m , as alleged, as the doctor's testimony showed that the deceased's stomach contained semi-digested food and assuming he had his evening meals at about 6-00/6-30 p. m., the deceased would have met his death at about 8-30/9-00 p. m. Third, that the presence of the eyewitnesses was doubtful as no radio, which was stated to be playing at the tieee of occurrence, was recovered by the Police and as such the presence of the t ye- witnesses at the Baithak for the purpose for which they alleged that they were there, was not made out. In this connection it was also submitted that had Rehmat Ullah P. W 5 been present it was not understood why he would be spared. It was also suggested that Muhammad Panah, the owner of the Baithak and other independent witnesses were not present and only the relations of the deceased were present at the time. Fourth, it was submitted that the eye-witnesses were related to the deceased and inimical to the appellant and their testimony required corroboration, which was not reliable. Ali Muhammad P. W. 7 the so-called independent recovery witness, was actually a Chowkidar serving under Rehmat Ullah P. W. 5, who was his Lambardar, and being an interested witness, his testimony could not be accepted independently. In this connection, it was also submitted that since the presence of Ismail, acquitted accused, at the spot had been disbelieved by the trial Judge, the story of the prosecution that Sohna, appellant, at the exhortation of his son, Ismail, acquitted accused, to fire another shot, had perhaps reloaded his gun, which necessitated the ejection of the crime empty, must be disbelieved. As regards the first objection, from the testimony of Rehmat Ullah P. W. 5, it is clear that they first removed Karam Elahi, deceased, to the Civil Hospital, Sillanwali in a trolley which place they reached at about 8/9 p. m., but the doctor not being available, they made arrangements to send the deceased to the Civil Hospital at Sargodha by bus which obviously took some time and only then he went to Police Station Sillanwali and lodged the F. I. R. At about 3.30 p. m. At best there is some slight delay, but Rehmat Ullah P. W. 5 was .Six miles away from his village at Police Station Sillanwali and it seems unlikely that he named Sohna, appellant, out of sheer suspicion or deliberation, without giving the Police any opportunity to collect some evidence at the place of occurrence. In these circumstances, we have no reason to believe that the name of Sohna, appellant, was given falsely, even though the learned trial Judge has found that Muhammad Ismail, acquitted accused, was not present at the place of occurrence.
As regards the second objection, Rehmat Ullah P. W. 5 in cross-examination stated that his deceased brother had taken his last meal at peshiwaila on the day of occurrence, as before that he had remained busy in his fields with his tractor. Peshiwaila is about 1.00 p. m. To 2-30/3-00 p. m.
(up to Asar prayer time, in the month of March). Assuming that the deceased took some meal during this period, semi-digested food would have remained in his stomach up to 2/3 hours of his taking meal. The time of the incident, therefore, as given by the prosecution, is consistent with the medical evidence. Regarding the third submission made by the learned counsel for the appellant, the absence of the radio at the Baithak on 19th March, 1977, when Sardar Ali S.-I. P. W. 9 came to inspect the spot, is easily explainable as the same would have been taken away by Noor Muhammad P. W. 6, the previous night, as the said radio belonged to him. Since the occurrenCe had taken place at 6-00 p. m. On 18th March, 1977, it was not expected of Noor Muhammad P. W. 6 to leave behind his radio in the open Baithak, so that the same would be picked up by somebody else and spirited away. As regards the suggestion that had Rehmat Ullah P. W. 5 been present he would not have been spared the same appears to be conjectural. Sohna, appellant, came to wreak vengeance on Karam Elahi, deceased, as the deceased had quarrelled in the punchait a day earlier and he had also threatened the deceased. The fact that he also did not fire at Rehmat Ullah P. W. 5 is not an unequivocal' circumstance to show that Rehmat Ullah P. W. 5 was not present. The appellant could have bred either at Karam Elahi, deceased or Rehmat Ullah P. W. 5 or both and the fact that he did not fire at both, does not lessen the veracity of the ocular account. As regards the allegation that the owner of the Baithak and other independent witnesses were not produced, since they were not present and did not see the occurrence, there was no value or worth in producing them in Court and their absence, therefore, does not weaken the prosecution case. As regards the fourth and last objection, it is true that Rehmat Ullah P. W. 5 liad previous enmity with Sohna, appellant, in respect of the murder of the latter's sister-in-law, Mst. Phaphan, in which .Case he was involved, but as admitted by Sohna, appellant, the said case was compromised and the appellant had even received a sum of Rs, 12,000 as compensation and the matter had ended there.
On the appellant's showing, therefore, Rehmat Ullah P. W. 5 had no enmity or grievance against him. However, even assuming for the sake of argument, that Rehmat Ullah P. W. 5, being related to Karam Elahi, deceased, and being previously involved in a murder 'case in respect of the sister-in- law of Sohna, appellant, requires corroboration. Noor Muhammad P. W. 6, though related to the deceased, has no such enmity and his testimony does not require corroboration. However, corroboration is also available in the case from the recovery of the licensed gun P. 10 from Sohna, appellant, which he produced before the Investigating Officer at the time of the arrest, which matches with crime empty P. 9 recovered from the spot by Ali Mohammad Chowkidar P. W. 7 on the date of occurrence and delivered to the investigating officer the next day when he came to investigate the case. It is true that Ali Muhammad P. W. 7 is a Chowkidar working under Rehrnat Ullah P. W 5. Who is his Lambardar, but nothing appears in the evidence to show that he had any enmity or animosity with the appellant or the acquitted accused to furnish false testimony against them. He denied the suggestion in cross-examination that he was a personal servant of the Lambardar. He resided only 4/5 killas from the place of occurrence and, hearing the hue and cry raised at the time of occurrence, he reached the spot and saw and picked up the crime empty P. 9, which he retained with him till the arrival of the Police on the next morning at 9.00 a. m., when he handed the same over to Sardar Ali, S.-I. P. W.
9. It was suggested to him that the Police had reached the house of Sohna, appellant, and taken the possession of his licensed gun and fabricated the crime empty that day, which suggestion he denied. Sohna, appellant, was not arrested till seven days after the occurrence. The inference is, therefore, clear that he decamped with his licensed gun after committing the crime. Assuming the Police raided the house of Sohna, appellant, immediately after the occurrence, they would not have found the licensed gun in the house. As regards the learned counsel's suggestion that since Ismail, acquitted accused, had been found to be present at the place of occurrence, the suggestion of the eye witnesses that Ismail, acquitted accused, had exhorted Sohna, appellant, to fire once again, which had thus motivated the appellant to eject the crime empty P. 9 from his gun and reload it, should not be believed, but must be rejected. When Karam Elahi deceased, was fired at there were three witnesses sitting in the Baithak and it was, therefore, natural for Sohna, appellant, to have immediately reloaded his gun in order to protect himself from any attempt at capture or detention.
The fact, therefore, that Ismail, acquitted accused, has been held by the trial Judge as not having participated, therefore, does not weaken the inference that Sohna, appellant, reloaded his gun once again to protect himself from any attempt at capture. The evidence of Ali Muhammad P. W. 7 and Sardar Ali, S.-I. P. W. 9 as regards the recovery of the crime empty P. 9 and production of the licensed gun P. 10 by Sohna, appellant, is natural and convincing and not open to doubt. The report Exh. P. Q. Of the Director of Forensic Science Laboratory shows that the crime empty P. 9 was fired from the gun P.
10. The production of the said gun by Sohna, appellant, to the Police at the time of his arrest is a strong incriminatory circumstance. In these circumstances, we have no hesitation in accepting the ocular testimony without corroboration, as firmly proving the prosecution case. However, the production of the gun P. 10 by Sohna, appellant, at the time of his arrest and the medical evidence provides sufficient corroboration to the ocular testimony to bring home the charge of guilt to Sohna, appellant. We, therefore, hold that Sohna, appellant appears to have been properly convicted under section 302, P. P. C. For the murder of Karam Elahi, deceased.
12. The only question that now remains to be determined is that relating to the sentence, in respect of which an appeal has been made that he may be granted the lesser penalty. It is clear from the evidence that Karam Elahi, deceased, and Rehmat Ullah P. W. Had entered into a compromise with Sohna, appellant, in respect of the case in which the former two were challaned for the murder of Mst. Phaphan, deceased. According to the compromise, the deceased and his brother had paid compensation of Rs, 12,000 and the hand of Mst. -Kalsoom, daughter of Rehmat Ullah P. W. 5, was promised for marriage to Ismail, acquitted accused. On the basis of the said agreement, the case was compromised and Sohna, appellant, received Rs, 12,000 but as Mst. Kalsoom was a minor, nikah was postponed. Later, when Mst. Kalsoom attained puberty, Rehmat Ullah P. W. 5 and his brother Karam Elahi, deceased refused to perform the nikah of Mst. Kalsoom with Ismail, acquitted accused, and when a punchait was taken to press their demand, the same was rejected and an altercation took place between Karam Elahi, deceased, and Sohna, appellant. In these circumstances, it cannot be denied that Sohna, appellant, felt wounded that the deceased and his brother had tricked him by breaking their bargain and making him lose his self-respect before his family.Considering that in our rural society, it is customary for compromises to be arrived at in murder cases where not only money as compensation, but the hand of a girl in marriage is also given as recompense for loss of a life, the breach of agreement on the part of Rehmat Ullah P. W.
And Karam Elahi, deceased, was in fact a slap to the family honour of Sohna, appellant, thus compelling him to wreak vengeance on Karam Elahi, deceased. In this view of the matter, we are of the view that Sohna, appellant, is entitled to the lesser penalty.
13. For the foregoing reasons, whilst maintaining the conviction of Sohna, appellant, under section 302, P. P. C. We would reduce his sentence to life imprisonment with a fine of Rupees Five Thousand (Rs, 5,000) or in default of payment thereof to further R. I. For a period of two years. Fine, if recovered, shall be paid to the heirs of Karam Elahi, deceased, as compensation under section 544-A, Cr. P. C. The sentence of death is not confirmed. This appeal, therefore, stands partly accepted in terms of reduction of sentence, as stated above.
14, The Revision Petition filed by Rehmat Ullah complainant, has no merit and is dismissed in limine. .