' ALI NAWAZ BUDHANI, J.-The appellant Shamsherwan son of Hijaz aged 50 years was convicted and sentenced under section 302, P. P. C. To death by the VIII Additional Sessions Judge, Karachi, vide his judgment dated 13th October, 1982. The appellant was further convicted and sentenced under section 449, P. P. C. To suffer R. I. For 10 years and to pay fine of Rs, 2,000, in default to suffer R. I. For 6 months. He was also sentenced under section 307, P. P. C. To R. I. For 10 years and to pay compensation of Rs, 2,000 to each injured person namely Umer Farooq. Mst. Husan Bano and Mst.
Wala Jan or in default to suffer R. I. For 6 months. The appellant was further ordered to pay compensation of Rs, 10,000 under section 544-A, Cr. P. C. To the heirs of deceased Khawja Muhammad Khan and in case of failure to suffer R. I. For two years. The sentence were to run concurrently.
2. By our short order dated 16th August, 1983 we had altered the death sentence to that of life imprisonment and maintained the other sentences for the reasons to be recorded later on.
Following are the reasons for the same.
3. The incident took place on 25th July, 1979 at 10.30 a.m. In the house of the complainant Muhammad Ishaque son of Izat Gul. The complainant is a clerk in K. P. T. The appellant is said to be former husband of Mst. Walajan and the father of two injured children Husan Bano and Umer Farooq. The deceased Khawaja Muhammad Khan is related to the complainant. The F. I. R. Was filed at about 12.00 noon with the Baldia Police Station. The prosecution story is that the complainant was a neighbour of the appellant Shamsherwan. Mst. Walajan was the wife of appellant and that two injured namely Husan Bano and Umer Farooq were the children of the appellant from Mst. Walajan. On 22nd June, 1978 Mst. Walajan came to the house of the complainant to seek protection. Subsequently as alleged by the complainant she was divorced and he married her. There was one case filed under section 498 by appellant Shamsherwan against the complainant but the case was dropped and after the statement of Mst. Walajan the complainant was left off. On 14th September, 1978 the complainant married Mst. Walajan and thereafter Mst. Walajan resided in his house. The behaviour of Mst. Walajan, enraged the appellant and his son Mian Badshah who was also son of Mst. Walajan from Shamsherwan. There was a case against Mian Badshah who had fired at the complainant. Thereafter the incident of the murder of Khawaja Muhammad Khan took place in the house of the complainant at about 10.30 a.m. When he was in his office. One Qadim Khan the nephew of the complainant had informed him about the incident and therefore he reached the vardat. He went inside the house and found Khawaja Muhammad Khan lying dead while Mst. Walajan, Mst. Husan Bano and Umer Farooq lying injured at the vardat having suffered gun shots wounds and wounds by a pistol. The details of the story as to how the incident took place are given by Mst. Walajan. Mst. Walajan was washing clothes when the two accused i,e, the appellant Shamsherwan and the absconding accused Mian Badshah, her son entered the house. Shamsherwan was armed with a gun while Mian Badshah was armed with a pistol. After when she saw the two accused have entered the house, she quickly closed the door.
However two windows were open and inside were sitting Khawaja Muhammad Khan and the two children Umer Farooq and Husan Bano. Both of the accused fired at them. Khawaja Muhammad Khan received injuries and he died on the spot while Mst. Walajan and two children received injuries who went unconscious. They were removed to the hospital where they regained the consciousness.
4. The F. I. R. Filed by the complainant was registered by Maqbool Hussain S. H.
0. Baldia Police Station at 12.00 noon. After registering the F. I. R. He inspected the vardat in presence of mashirs Manzoor Hussain, Abdul Qayoom and Muhammad Ishaque. The vardat was situated in the house of the complainant in Muhajar Colony. The dead body of deceased Khawaja Muhammad was lying inside the house while Mst. Walajan, Mst. Husan Bano and Umer Farooq were lying injured in the same house. Blood-stained earth was sccured and sealed before the mashirs. A number of pellet marks on the wall at vardat were noted. Five empty cartridges fired from the gin, and some pellets were secured and sealed. Blood-stained `Dopata'of Mst. Walajan, blood-stained `Chapar of deceased Khawaja Muhammad and blood-stained pillows were also secured vide mashirnama Exh. 3/B. The dead body was despatched to the Civil Hospital through P. C.
Muhammad Ishaque and the injured persons were referred for treatment and certificate to Abbasi Shaheed Hospital. The sketch of vardat was prepared in presence of the same mashirs which is produced as Exh. 17-A. The investigating Officer further recorded the statements of P. Ws. Manzoor Hussain, Abdul Qayoom, Qadim Khan, Muhammad Hassan, Dost Muhammad and Khan Muhammad on the same day. On 14th August, 1979 he recorded the statement of P. Ws. Mst.
Walajan and Mst. Husan Bano who were reported by the doctor to be in fit condition give statements. There was search for the accused but they had fled away and hence on 3rd September, 1979 the S. H.
0. Deputed the S.-I. Nazeer Ahmed alongwith the police party to Swat for arresting the accused persons. On 14th September, 1974 the police party came after arresting the accused Shamsherwan but they could not lay hands on accused Mian Badshah who is still an absconder. He verified the mashirnama which was prepared by the police at Swat. On 19th September, 1979 statements under section 164, Cr. P. C. Of P. Ws, Mst. Walajan, Mst. Husan Bano and P. W. Ghulam Nabi were recorded by the A. C. M. Baldia, Karachi. On 19th September, 1979 appellant Shamsherwan was challaned to face the trial.
5. The appellant in his statement under sections 342, Cr. P. C. Has denied the allegations made against him but admits that Mst. Walajan was his wife and he did not divorce her. He pleads that he is innocent.
6. Mr. Muhammad Hayat Junejo Advocate argued the case of the appellant while Mr. Imam Bux Shaikh argued the case for the State. The prosecution has relied upon the evidence of Muhammad Ishaque the complainant Exh. 3, P. W. Ghulam Nabi Exh. 4, P. W. Muhammad Hassan Exh. 5, P. W. Mst.
Walajan Exh. 6, P. W. Mst. Husan Bano Exh. 7, P. W. Qadim Khan Exh. 8, P. W. Abdul Qayoom, Mashir of vardat Exh. 9, P. W. Khalilur Rehman Exh. 11, P. W. Nazir Ahmed Exh. 14, Dr. Anwar Ali Exh. 15, Dr. Muhammad Ibrahim Exh, 16 and S. H. O. Maqbool Hussain Exh.
17. The appellant has not examined any witness in defence.
7. Most important witnesses in this case are those eye-witnesses who have seen the incident and have also suffered the injuries. Complainant Muhammad Ishaque has not seen the incident himself but he has learnt the facts of the incident from Qadim Khan who came to inform him at his office.
Then there are witnesses such as Ghulam Nabi Exh. 4, Muhammad Hassan, Qadim Khan and one Abdul Qayoom. This category of witnesses have not seen the incident taking place but have seen the accused from a distance after commission of the offence. Their evidence furnish corroboration.
P. W. Ghulam Nabi Exh. 4 was sleeping in his house when he heard the gunshot firing and he came out of the house and saw two accused Shamsherwan and his son Mian Badshah coming out of the house of the complainant. Shamsherwan was armed with rifle and Mian Badshah was armed with a pistol. There was a bridge in front of the house of the complainant. The assailants fired in air, when they reached the bridge. Subsequently they escaped ; P. W. Ghulam Nabi then went inside the house of the complainant and saw Khawaja Muhammad Khan dead and others injured. P. W.
Muhammad Hassan is the witness who was attracted by the reports of the firing. The people were standing near the Firdous Masjid and they informed him that the firing was coming from the house of the complainant. Then he saw that the two accused namely the present appellant and his son Mian Badshah emerging from the house of the complainant and they were armed with rifle and pistol, respectively. P. W. Qadim Khan was sitting in his house when he heard the fire-shots. He came and saw that Shamsherwan and his son Mian Badshah duly armed with gun and pistol, respectively, were coming out of the house of the complainant. They came towards the graveyard and disappeared. The witness Abdul Qayoom is also a person who was present at the wardat but he was made mashir of the wardat by the police.
8. The evidence of these witnesses, corroborate, the main prosecution case, as to the identity of the assailants, inasmuch as they have seen the appellant and his son coming out of the complainant armed with rifle (gun) and pistol. They have mistaken gun for the rifle and in common parlance of the Pathans gun is also called a rifle. These witnesses are corroborating the incident and the identity of the accused persons. But the important witnesses are those who are injured and who had seen the accused persons actually firing at them. They are Mst. Wala Jan and Mst. Husan Bano.
9. Now we would advert to the evidence of Mst. Walajan at Exh.
6. Ste is the most important witness in this case. She has averred that she married the appellant 17 years ago. She had four children from the appellant and they were Mian Badshah, Husan Bano, Muhammad Bilal and Umer Farooq. She was divorced five years before she came to depose in the present case. After the divorce she was kept forcibly by the appellant for two years and she learnt that the appellant would murder her therefore she left the house and took shelter in the house of her friend Feroza. Thereafter she married with Muhammad Ishaq the present complainant. The appellant institued a case against Muhammad Ishaq under section 498, P. P. C. In that case she was examined by a Magistrate and the complainant was let off. She started living with Muhammad Ishaq alongwith her two children Husan Bano and Umer Farooq. The other two children Mian Badshah and Bilal remained with the appellant. On the day of the incident she was in the house washing clothes. Khawaja Muhammad. Nephew of the complainant and two children Husan Bano and Umer Farooq were present in the house. At about 10.00 or 11.00 a.m. The appellant Shamsherwan alongwith his son Mian Badshah entered the house forcibly. The present appellant had a gun and Mian Badshah had a pistol. As soon as they entered the house they started firing but she succeeded in closing the doors of the house. The windows were however lying open and Mian Badshah fired from a window which hit Khawaja Muhammad who fell down and died on the spot. She also received injuries at the hands of the accused persons. Appellant Shamsherwan also fired at the children and both of them received injuries. They fell down. She became unconscious.
Appellant and the absconder accused Mian Badshah then ran away. She is supported by her daughter Husan Bano as Exh.
7. Mst. Husan Bano has deposed that she, her mother, Khawaja Muhammad, Umer Farooq were present in the house. Her mother was washing clothes. The appellant and Mian Badshah entered the house. The appellant had a rifle (gun) and Mian Badshah had a pistol in their hands. They had come to kill their mother who had closed the door of the room in which she was washing clothes.
The present appellant fired on her (Husan Bano). Both the assailants fired. Her brother and mother also received injuries. Khawja Muhammad received injuries and he died. The accused then ran away. The boy Umer Farooq was is not examined during the triai.
10. In assessing the evidence of these two eye-witnesses we find that Mst. Walajan is not cross- examined on the point of identity of the assailants. She is mostly cross-examined on her past career with her previous husband, the present appellant and her divorce and then marriage with the complainant. So far the incident is concerned, her evidence is not successfully challenged or shattered by the cross-examination. She had seen the two assailants who were respectively her previous husband namely the present appellant and her son Mian Badshah. It was a daylight incident and she had a clear view of the assailants. The assailants started firing and she had the hunch that the assailants had come to murder her. She quickly closed the doors but unfortunately the windows of either side remained open and a volley of gun fire was discharged inside the room.
Khwaja Mohammad died due to this firing while she was injury and the two children also lost consciousness due to injuries of fire-arms on their persons. They were removed to the hospital where they regained consciousness and were examined by the police. It is clear to us that Mst.
Walajan who has remained as wife of the present appellant for 17 years has clearly identified her previous husband and her own son Mian Badshah the absconder. There is no doubt in our mind as to the identity of the assailants and indeed Mst. Walajan had identified the present appellant and her son Mian Badshah. Husan Bano her daughter has supported her mother and she did identify her brother and her father. In this respect there are no circumstances on record to discredit the evidence of Mst. Walajan and Mst. Husan Bano. The assailants were identified. They have surrepittiously trespassed inside the house and after having passed the small lane leading to the rooms they had opened fire, on the inmates of the house. The weapon used by the present appellant is a .12 bore gun while Mian Badshah was armed with a pistol. The injuies on the person of deceased Khawaja Muhammad are of the pistol shots and also of the gunshots. The lower portion of the deceased bore pellet wounds while the bullet had hit him on the upper portion. The two assailants had fired incessantly by volley of fire on Mst. Walajan and two children. The appellant had fired by gunshot only on Mst. Walajan his previous wife but also on his two children because she and two children had gunshot injuries and not pistol shot injuries. It appears that Mian Badshah, being the brother of the children, had spared them but the present appellant who was all enraged did not spare his previous wife and his own children. The medical evidence which follows makes it D clear as to what role each of the assailants had played while firing with their weapons.
11. Dr. Anwar Ali Exh. 15 conducted the post-mortem on the dead body of deceased Khawja Muhammad and found two injuries on his person which are as under :- "Injury No, 1.-Punctured wound 1 r x 1" right side face below right eye into bone deep. Charring and blackening around the wound, which is wound of entry. Margins inverted. Injury No, 2.-Multiple punctured wound in area of measuring 1" x on left thigh on interior aspect upto knee. Wounds were muscle deep. The above injuries were ante-mortem i,e, fresh injuries in nature." the second injury on the left thigh of the deceased is with a ,12 bore gun and therefore it could be safely opined that Mian Badshah fired with a pistol and the present appellant also fired with his gun at the deceased.
The evidence of Dr. Ibrahim at Exh. 16 indicates that Mst. Walajan had five injuries and Mst. Husan Bano had 40 to 45 punctured wounds. The injuries on Mst. Walajan, Husan Bano and Umer Farooq are as under :- Mst. Walajan : "(1) Multiple punctured wounds, about 20 to 26 in number) each 1/6" x 1/6" into skin muscle deep on right cheek with black discolouration of skin around most of the wounds.
(2) Lacerated wounds, 3" x 2" into skin muscle and bone deep on right lateral aspect of chin extending to under-surface of chin with black discolouration of skin around the wound.
(3) Lacerated wounds 1" x i" into skin muscle deep on front of chin, right side just lower lip with black discolouration of skin around the wound.
(4) Multiple punctured wounds (about 40 to 45 in number) each about 1/6" x 1/6" into skin muscle and chest deep on front of chest upper part on the left side above left breast with black discolouration around the wound.
(5) Two punctured wounds each 1/6" x 1/6" into skin muscle deep on interior aspect of left arm upper 1/3rd."
Husan Bano "(1) Multiple punctured wounds (about 40 to 45 in number) of different sizes varying from 1/4" x 1/4" into skin muscle and chest deep. Few x r into skin muscle deep on posterior aspect of left scapular region in middle with black discolouration of skin around most of the wounds."
Umar Farooq "(1) One punctured wound about 1/6" x 1/6" into skin muscle deep on lateral aspect of left forearm lower 1/3rd just above left wrist joint with swelling about 1" x 1" at the same region, surrounding skin of the wound was stained black in colour."
12. It appears that present appellant Shamsherwan has fired at Mst. Walajan, Mst. Husan Bano, Umer Farooq and also at the deceased Khawaja Muhammad. It was a blind firing through the window. The nature of injuries sustained by Mst. Walajan. Husan Bano and Umer Farooq indicate that gunshot pellets have injured them and when they had collapsed the assailants believed that they are dead and then they escaped through the same door that they had come. They had passed the rendezvous as is clear from Exh. 17-A i,e, the sketch of vardat drawn by the Investigating Officer. They had come from the main street and passed through other houses and had got entered the main door which leads to the house of the complainant. Then they had passed through the narrow lane and entered the court-yard. The house has two windows and one door and the door was closed by Mst. Walajan and firing took place from two windows.
13. We would now refer to the arguments of the learned counsel for the appellant. His plea is that the present appellant had no intention to murder Khawaj Muhammad and at the most he would be liable for firing and causing injuries to Mst. Walajan, Mst. Husan Bano and Umer Farooq. Firstly there is no recovery of any weapon from the present appellant and he was possibly not present at the vardat and was at his village at Swat. Secondly he did not fire at the deceased who died due to pistol shots fired by the absconding accused. This piece of arguments has no weight as two independent eye-witnesses had identified the present appellant armed with gun and firing at the injured which is further corroborated by the evidence of the Medical Officer inasmuch as that the pellet wounds on the thigh of the deceased are caused by gunshots of the present appellant, therefore it is clear that the present appellant also fired at the deceased. The appellant cannot escape from the liability of murdering Khawaja Muhammad, as is clear from the medical evidence, that the deceased had injury on the thigh, caused by gunshots. These injuries were pellet wounds, and could only be caused' by the firing of a gun. Thus the arguments of the learned counsel have no force in view of the evidence on record.
14. The question for consideration would only be in respect of quantum of sentence. It is to be noted that Mst. Walajan was the wife of the present appellant for 17 years and she had given birth to four children from the appellant. The appellant an old man, of 50 years nursed a feeling of disgrace, and dishonour, due to betrayal of his own wife, who lived with him for almost two decades and who bore him four children. His pride was injured and he stood insulted. These are extenuating circumstances, and need be considered in awarding sentence. He is 'Pathan' by caste and pathans are jealous in guarding their honour. In the authority produced before us i,e, 1974 SCM R 485 in which learned counsel Mr. Muhammad Hayat Junejo himself appeared carries the following passage in respect of the family honour :- "The question of the proper sentence to be awarded in such cases came up to consideration before the Court in Umar Hayat v. State. Relying upon two earlier decisions, namely, Fazal Khan v.
State and Ghulam Rasool v. Ali Akbar it was observed that among the agricultural tribes of West Pakistan questions of family honour, touching the females of the family, are of almost overpowering importance, and to vindicate that honour they feel bound to go t very great lengths.
It was also observed that generally the .Facts and circumstances emerging in these cases are such that if the convict had found the offending female and her paramour in a compromising position on the spot, and had killed one or both of them, he would have been entitled to the benefit of the exception, relating to grave and sudden provocation. It was, therefore, concluded that death was not the proper penalty in such cases, and the ends of justice would be met by awarding the lesser punishment of transportation of life."
15. In the present case also a question of similar importance of family honour is involved, thus we would alter the capital sentence of death to that of life imprisonment. Appeal is accordingly dismissed with this modification. We decline to accept the reference for confirming the death sentence. The sentence awarded under section 307/449 are, however, maintained and the same shall run concurrently.
16. However, the benefit available to the appellant under section 382-B, Cr. P. C. Be granted to him after verification.