RUSTAM S. SIDHWA, J.-Khaliq Dad and Zubair Farooq were tried by the Additional Sessions Judge of Rawalpindi under section 304/34, P.P.C. For the murder of Pir Abdul Salaam deceased. The learned trial Judge, by his judgment dated 3-5-1980, convicted both the accused under the said section and sentenced Khaliq Dad to suffer death subject to confirmation by this Court, and to pay a fine of Rs, 5,000 or in default thereof to suffer rigorous imprisonment for two years and Zubair Farooq of life imprisonment with a fine of Rs, 5,000 or in default thereof to suffer further rigorous imprisonment for two years. Three-fourths of the fine, if recovered from the accused, was ordered to be paid as compensation to the legal heirs of the deceased. The joint appeal (Cr. A. No, 570 of 1980) preferred by Khaliq Dad and Zubair Farooq, accused. Against their conviction and sentence, the reference (M. R. No, 147 of 1980) sent up by the Additional Sessions Judge, Rawalpindi, for the confirmation of the death sentence awarded to Khaliq Dad, accused, and the private revision (Cr.
R. No, 938 of 1980) filed by Pir Abdul Razzaq complainant for the enhancement of the sentences of Zubair Farooq, are all now before us for consideration and will be disposed of by this judgment.
2. The brief facts of the case are that on 17-8-1977 at about 4 p.m. Pir Abdul Salaam, deceased, with his cousin Pir Amin-ud-Din P. W. 6 were proceeding on a bicycle towards Bus Stand Golera Sharif.
After the had crossed the bridge of the Nala and were overtaking a bullock cart (Karachi), the wheel of the deceased's bicycle touched the niece of Khaliq Dad, accused, who, alongwith two daughters of one Ghulam Ahmad, was returning from her school in Rawalpindi. Upon this, the niece of Khaliq Dad, accused, started hurling abuses at Pir Abdul Salaam, deceased, and Pir Amin-ud-Din P.W. 6, but due to the timely intervention of Ghulam Hussain (given up P. W.), the matter was hushed up. However, the niece of Khaliq Dad, accused, narrated the incident to her uncle and other relatives, who got infuriated and took it as insult. Accordingly, at about 5 p m. When Pir Abdul Salaam, deceased, emerged from his house into the lane' Khaliq Dad, accused, armed with a pistol, and Zubair Farooq, accused, armed with a rifle, came from the opposite side. At that time, Pir Abdul Razzaq P. W. 7, the complainant and father of the deceased, was standing at the shop of Haji Khuda Baksh P. W. 8, few paces away, purchasing some articles. Shah Zaman P. W. 9 and Karam Dad (given up P. W.) were also present at the said shop making some purchases. On seeing the deceased in the lane, the accused raised lalkara and Zubair Farooq, accused. Fired a shot with his rifle, but Pir Abdul Salaam, deceased, ducked by sitting down and the bullet missed him. Khuda Bakhsh P. W. 8 and others tried to stop Khaliq Dad, accused, from going towards the deceased, but he pushed aside Haji Khuda Bakhsh P. W. 8 and went near the deceased, who was then in a sitting and posture, fired a shot with his pistol from a very close range, hitting the deceased on the right side of the neck and felling him to the ground. Both the accused after committing the crime fled away.
3. The deceased had become unconscious. Pir Abdul Razzaq P. W. 7 took him in a wagon to the D.H.Q. Hospital, Rawalpindi, but the moment they reached the hospital, the deceased succumbed to his injury. Leaving the dead body in the supervision of Fir Akhtar Hussain P. W. 5, Pir Abdul Razzaq P. W. 7 proceeded to Police Station, Golera Sharif where he lodged F.1.R, Exh. P. D. At 7 p. m. Which was recorded by Muhammad Khan S.-1. P. W.
10. The Investigating Officer then proceeded to D.H.Q. Hospital, Rawalpindi, where, after preparing necessary papers, he despatched the dead body to the mortuary for post-mortem examination.
Thereafter, the Investigating Officer proceeded to the spot, from where he collected blood-stained earth vide memo. Exh. P. E.
4. On 18-8-1977 at 8 a. m. Dr. Muhammad Siddique P. W. 1 conducted the post-mortem examination on the dead body of Pir Abdul Salaam, deceased, and found one fire-arm wound of entry 1/3' in diameter with blackening and burning on the upper right side of the neck and one lacerated fire- arm wound of exit 1" x 1" with everted margins on the left scapular area on the back of chest. The cause of death was severe shock and haemorrhage as a result of fire-arm injury which was declared to be sufficient to cause death in the ordinary course of nature. Probable time between injury and death was immediate (within one hour) and that between death and post-mortem examination about 14 hours.
5. On 21-8-1977 both the accused were arrested by Muhammad Khan S.-1, P.W.
10. At the time of his arrest, Khaliq Dad produced licensed rifle P. 4 with 3 bullets and licensed pistol P. 5 with 3 live bullets before the police officer, who took the same into custody, vide memos. Exh. P.
H. And Exh. P. I. Respectively, in the presence of Fir Abdul Razzaq P. W.
7.
6. After completing the necessary investigation, the challan against both the accused was sent up.
7. At the trial, the prosecution produced Pir Amin-ud-Din P. W. 6 to prove the motive, Fir Abdul Razzaq P. W.7. Haji Khuda Bakhsh P.W. 8 and Shah Zaman P. W. 9 in proof of the ocular account, Pir Abdul Razzak P. W. 7 and Muhammad Khan S.-I. P.W. 10 in support of the recoveries and Dr. Muhammad Siddique P.W. 1 to corroborate the medical testimony. Both the accused denied the accusations that were levelled against them. Khaliq Dad, accused admitted the production of the weapons of offence by him before the police and stated that they belonged to him. Both the accused imputed their false implication to suspicion.
8. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony, convicted and sentenced both the accused, as stated in para. 1 above.
9. 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 Pir Amin-ud-Din P.W.
6. According to his version on the date of occurrence at 4.00 p.m., be and the deceased were going from their house to Bus Stand Golera Sharif, on a bicycle. The deceased was riding the bicycle and he was sitting in front. When they just crossed a small bridge. a bullock cart (Karachi) came in their way. When the deceased tried to overtake the same the wheel of the bicycle touched the niece of Khaliq Dad, appellant, who alongwith two daughters of one Ghulam Ahmad, was going towards the village and she started hurling abuses, Ghulam Hussain (given up P. W.) came there and the matter was hushed up. In cross-examination, he submitted that he and the deceased had joint house and that they had started for the bus. Stand at 3-45 p. m. Ghulam Hussain P. W. Was given up as unnecessary. It is true that Pir Amin-ud-Din P. W. 6 is a first cousin of Pir Abdul Salaam, deceased, and a nephew of Pir Abdul Razzaq P. W. 7 and that their group has been having past enmity with the appellants party, but there is nothing in the cross-examination to discredit his testimony. Ghulam Hussain' P. W. Was given up in Court on 11-3-1980 and had the appellants desired to cross-examine him, they could have asked for his production for cross-examination, which they did not do. In these circumstances, the testimony of Pir Amin-ud-Din P. W. 6 stands unrebutted and cannot be thrown aside. The learned trial Judge rejected his testimony on the ground that as there was previous enmity between the parties, the same required corroboration and that as the driver of the cart (Karanchi) was not produced, the motive did not stand established. We are afraid we cannot accept this position. The production of the driver of the cart was not relevant. For reasons already stated, we accept the motive as clearly established in the case.
10. Pir Abdul Razzak P. W. 7, Haji Khuda Bakhsh P. W. 8 and Shah Zaman P. W. 9 are the eye-witnesses of the occurrence. Pir Abdul Razzak P. W. 7 is the real father of the deceased. Haji Khuda Bakhsh P.
W. 8 is a shopkeeper before whose shop the incident occurred. Shah Zaman P. W. 9 happened to be present at the shop of Haji Khuda Bakhsh P. W. 9, when the occurrence took place. Both Khuda Bakhsh P. W. 8 and Shah Zaman P. W. 9 are neither related to the deceased nor happened to be of the same caste as that of the deceased. There is long-standing enmity between the family of Pir Abdul Razzaq P. W. 7 on one side, and that of Khaliq Dad, appellant, on the other. This is admitted on both sides and the learned counsel appearing for the appellants, the complainant and the State admit this position and have also argued the case on the said basis. For the purposes of record, the enmity may be reproduced. Forty years back Khuda Dad Khan, the father of the appellant, was murdered, in which case Chan Pir, the uncle of Pir Abdul Razzaq P. W. 7, and one Faqir Muhammad were prosecuted, but Chan Pir was subsequently acquitted. This stands borne out from the evidence of Pir Abdul Razzaq P. W. 7 and the document Exh. D. E. In 1956 one Muhammad Nawaz, the brother-in-law of Pir Abdul Rehman, the maternal. Cousin of Pir Abdul Razzaq P. W. 7, was murdered, in which case one Illahi Dad Khan, a relative of Khaliq Dad, appellant, was an accused.
This stands borne out from the evidence of Pir Abdul Razzaq P. W. 7 and documents Exhs. PG and DH. In 1965, one Arif, son-in-law of Pir Abdul Razzaq P. W. 7, convicted Khuda Bakhsh, brother of Khaliq Dad, appellant, in his capacity as Chairman of Union Council. This stands borne out from the statement of Abdul Razzaq P. W. 7 and document Exh. DL. In 1975, Pir Abdul Khaliq and Pir Abdul Salaam, deceased, sons of Pir Abdul Razzaq P. W. 7, were challaned under the Gambling Act, as is evident from document Exh. DO. As admitted by Pir Abdul Razzaq P. W. 7 himself, this was due to information supplied by the appellant. This evidence, therefore, conclusively establishes the enmity between the families of Abdul Razzaq P. W. 7 and the appellants. There is also other evidence to show that the deceased was not of good character and that the complainant party had other enmities. But this need not detain us as, in any case, we have decided to treat Pir Abdul Razzaq P.
W. 7 as an interested witness. Haji Khuda Bakhsh P. W. 8 is a shop-keeper aged 70 years before whose very shop the incident occurred. As already stated, he is not related to the complaitant party. However, against him it is stated that his wife Mst. Walayat Jan is cousin of Mst. Mahboob Jan, wife of one Jamal Din, and Faqir Muhammad, father of the said Jamal Din and Chan Pir', the uncle of Haji Abdul Razzaq P. W. 7, were prosecuted for the murder of Khuda Dad Khan, the father of Khaliq Dad, appellant and thus Haji Khuda Bakhsh P. W. 8 is inimical to the appellant party. The relationship 'between wives of this witness and Jamal Din and the involvement of Faqir Muhammad in the murder case of Khuda Dad Khan are borne out from the evidence of Haji Khuda Bakhsh P. W. 8 and documents Exhs. DE and DG. However, no enmity can be spelt out from this evidence. But again to press the plea of enmity, it is further suggested that the said Jamal Din was a witness in the case relating to the murder of one Muhammad Nawaz, in which one Illahi Dad, a relative of the Khaliq Dad, appellant, was an accused and that the said Muhammad Nawaz, deceased, was brother-in-law of one Pir Abdul Rehman, who was maternal-cousin of Haji Abdul Razzaq P. W.
7. The evidence of Pir Abdul Razzaq P. W. 7 read with documents Exhs. DC, DH and DG are relied upon in this connection. It cannot be denied that Haji Khuda Bakhsh P. W. 8 is not closely related to Jamal Din and that even if the said Jamal Din had some involvement with Muhammad Nawaz, deceased, who was distantly related to Pir Abdul Razzaq P. W. 7, this would hardly stamp him either as being inimical to the appellant or as a partisan of the complainant party. The learned trial Judge also rejected the contention that he was either inimical to the appellants or a partisan of the complainant party. Shah Zaman P. W. 9 is not related to the complainant party at all. Against him it is suggested that he was previously an employee of one Fateh Muhammad, who was the maternal-uncle of Ghulam Hussain (given up P. W.), and that since the said Ghulam Hussain (given up P. W.) and Pir Saddar Din, brother of Pir Abdul Razzaq P. W. 7, were witnesses in the murder case one of Hayat, deceased, therefore, the said Shah Zaman P. W. 9 was also a partisan witness. The inference is rather remote and no such conclusion can be drawn. The fact that previously Shah Zaman P. W. 9 was an employee of Fateh Muhammad, would not motivate him to stick his neck out to involve himself in a murder case for a past employer and thus invite the wrath of the two appellants and their family for the next many years. He is a thoroughly disinterested witness and the learned trial Judge also found him as such. This now brings us to the main question as to whether the witnesses were present at the spot and did see the occurrence. Pir Abdul Razzaq P. W.
7 and Shah Zaman P. W. 9 were present at the karyana shop of Haji Khuda Bakhsh P. W. 8, when the occurrence took place outside the karyana shop of the latter. Each of the witnesses corroborates the presence of the other two. Both Pir Abdul Razzaq P. W. 7 and Sh Zaman P. W. 9 had gone to purchase some articles. No question we put to Pir Abdul Razzaq P. W. 7 to displace the purpose of his visit why he stopped there. Some questions were put in this connect to Shah Zaman P.W. 9, who explained that as he was given credit facility by Haji Khuda Bakhsh P. W. 8, he purchased his articles from hi Notwithstanding a lengthy cross-examination on these two witnesses nothing has been brought out to show that they were not so present at the shop or did not see the occurrence.
Only a lane passes between the hous of Pir Abdul Razzaq P. W. 7 and that of Haji Khuda Bakhs P. W.
8, Shah Zaman resides 120 yards away from the shop of Khud Bakhsh P. W.
8. Both were present on a valid errand, which they hay explained. Haji Khuda Bahksh P. W. 8 was present at own shop outside which the occurrence took place. All the three witnesses . Are, therefore, natural witnesses of the occurrence. Their evidence a regards the occurrence is consistent; though some minor contradiction have been pointed out, but they do not displace the consistency. In these circumstances, we have no hesitation in holding that all the witnesses are natural witnesses, they were present at the spot and they did see the occurrence.
Pir Abdul Salaam, deceased, died of a fire-arm wound which, according to the medical testimony, appears to be that of a bullet. According to the ocular testimony, Khliq Dad, appellant, fired the fatal shot with his pistol. His participation, therefore, stands clearly established even by the medical evidence. As regards Zubair Farooq, appellant, it is the case of the witnesses that he was the first to fire at the deceased, but his shot missed, as the deceased ducked by sitting down. Thereafter, Haji Khuda Bakhsh P. W. 8 came out of his shop and physically tried to restrain Khaliq Dad, appellant from firing at the deceased, but the said appellant pushed him aside and from a close range fired a shot which mortally hit the deceased. It is suggested that had both the father and son come to murder the deceased, as suggested by the motive story put up by the prosecution, Zubair Farooq, appellant, would not have remained passive after his first shot had missed, but would have fired again. In this connection, it is also submitted that no lead of a bullet or crime empty of a rifle was found at the spot, nor any mark of a bullet was found on any of the walls of adjacent houses near the spot. As against this, it is submitted on behalf of the prosecution that since Khaliq Dad, appellant, fired the second shot which mortally hit the deceased, Zubair Farooq, appellant, did not feel the necessity of firing again, as the job had been done. However, without prejudice to the ocular testimony, but for the purposes of the safe administration of justice, we feel that the common intention of Zubair Farooq, appellant, is not conclusively established in the case and that there is an element of chance that Khaliq Dad, appellant, may have fired the first shot also, which all the witnesses mistook for that of Zubair Farooq, appellant, is, therefore, entitled to the benefit of doubt. In these circumstances, Khaliq Dad appellant's conviction deserves to be maintained, whereas that of Zubair Farooq, appellant, deserves to be set aside.
11. The only question that now remains is that relating to the sentence of Khaliq Dad, appellant.
According to the motive set up in this case, the appellant was infuriated by the conduct of the deceased, who had truck his niece with his cycle. Even if it was unintentional, in view of enmity, Khiliq Dad, appellant, would have assumed that the same was deliberate and that the deceased deserved a lesson of his life for elating their family honor. In these circumstances, Khaliq Dad, appellant, is entitled to the lesser penalty.
12. For the foregoing reasons the appeal of Zubair Farooq, appellant, is accepted and his conviction and sentence are set aside. He is on ail. His bail bonds shall stand discharged. The fine, if any recovered from him, shall be refunded to him. The conviction of Khaliq Dad, appellant, under section 302, P. P. C. Is maintained. His sentence is altered from death to imprisonment for life. The fine imposed on him by the trial Judge and the penalty for its default, are hereby maintained. He whole of the fine, if recovered from the appellant, shall be paid as compensation to the legal heirs of Fir Adbul Salaam, deceased. The jail authorities shall also grant him the benefit of section 382-B, Cr. P. C. When computing his sentence. His death sentence is not confirmed. The Criminal Revision is dismissed in limine.