' This Criminal Appeal No, 500 of 1983 and the connected Criminal Revision No, 759 of 1983 by Arif etc. For the enhancement of the sentence arise from the judgment of learned Additional Sessions Judge, Jhang whereby he on 21-8-1983 convicted Akbar appellant under section 302, P.P.C. For causing the death of Aziz Ahmad and sentenced him to imprisonment for life. He was directed to pay Rs,5,000 to the heirs of the deceased as compensation under section 544-A, Cr.P.C. Neither any fine was imposed nor any sentence in default of the payment of compensation was awarded. I propose to dispose of the appeal as well as revision through single judgment.
2. The occurrence took place on 3-4-1981 at about 5 p.m. In the area of Chak No, 225/J.B. Of Police Station Bhowana, District Jhang. The distance between the place of occurrence and the police station is seven miles. F.I.R. Exh.P.J. Was lodged by Abdullah (since dead) the father of the deceased on the same day at 10-45 p.m. And was recorded by Amir Muhammad A.S.I. P.W.10.
3. The background of the occurrence as stated by the prosecution was that about 2 1/2 hours before the occurrence, there was a Kabaddi Match in the Chak. Akbar appellant and Aziz Ahmad deceased were present there. Aziz Ahmad was a Kabaddi player.He asked Akbar appellant to get back so that room is made for the Kabaddi players. This led to the exchange of abuses. Siddique and Muhammad Yousaf P.Ws. Intervened. The appellant however, declared that he would take revenge for the insult done to him.
4. As far the main occurrence is that at the eventful time, Abdullah complainant, Amir, Muhammad and Arif P.Ws. Were present near the shop of the complainant situated in the village Chowk. Aziz Ahmad while on his way back to his house, passed by them. He had gone a few yards when Akbar appellant came there armed with the licenced gun of his father declaring that he had come to revenge his insult. He opened fire at the deceased hitting on the right temple who fell down. The appellant made good his escape, taking away his gun with him. The occurrence was seen by the aforesaid witnesses.
5. On 3-4-1981 at 10-30 p.m. Dr. Atta Ullah Khan P.W.9 medically examined Aziz Ahmad in his injured condition. He found lacerated wounds 4" x 11/2" x 1/2" on right side of face extending from just outer to right eye to the back of ear. Upper part of the right ear pinna was also crushed. All structures, skin, muscles, blood vessels, etc. Were crushed. The injured person was serious. Injury was caused by fire-arm within 12 hours of the examination. Aziz Ahmad was referred to D.H.Q. Hospital, Jhang.
He succumbed to the injuries on 16-4-1981, so postmortem examination was conducted by Dr. Atta Ullah Khan. He found following injuries on his person:-
(i) A lacerated wound 4" x 11" bone deep on right side of head from right eye to the upper part of ear which was bandaged.
(ii) A lacerated wound 1/2" x 1/2 x bone deep was observed just behind wound No,1 on right side of the head.
(iii) Upper part of the right ear pinna crushed and absent.
' On internal examination right temporal bone was found fractured. A metallic piece was found in the brain matter. In his opinion the death was due to shock, haemorrhage, stupor, and coma as a result of injury to the brain which was sufficient to cause death in the ordinary course of nature.
6. Akbar appellant was arrested by Amir Muhammad A.S.I. P.W.10.On 22-4-1981, he led to the recovery of his father's licenced gun Exh.P.I. From his house which was taken into possession vide memo. P.C. Attested by Muhammad Yolisaf P.W.6 cousin of the deceased and Abdullah (not produced), the recovery was effected by Amir Muhammad A.S.I. P.W.10.
7. To prove its case prosecution examined 10 witnesses. Amir P.W.3,Muhammad P.W.4 and Arif P.W.5 have given the ocular account of the occurrence. They claim to have seen Akbar appellant, firing at the deceased causing his death. Muhammad Yousaf P.W.6 and Amir Muhammad A.S.I. P.W.10 have supported the recovery of gun P.I. At the instance of the appellant. Yousaf P.W.6 has also deposed about the motive of the appellant for the murder of the deceased. The rest of the evidence is of formal nature.
' When examined under section 342, Cr.P.C. The appellant while admitting the causing of the death of the deceased by him, raised plea of self-defence. He stated "I was present at my Dera near the shop of one Hayat Muhammad in the evening. Aziz Ahmad deceased came there and wanted to commit un-natural offence with me. I acted in self-defence and shut at him with the gun belonging to my father". In defence he did not produce any witness.
9. The learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the eye-witnesses are closely related; that they are not reliable; that there is no independent corroboration of their statements; that the occurrence did not take place in the manner as alleged by the prosecution and that there is a reasonable possibility of the defence version being true. In the alternative the learned counsel argued that the appellant having acted in retaliation to the insult done to him, 21 hours before the occurrence, had in fact acted under grave and sudden provocation which does not amount to murder. Conversely the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant who is also counsel for the petitioner in the connected revision, has argued that the prosecution witnesses are quite dependable; that the plea of self-defence of person was false and that the act of the appellant falls within the ambit of section 302, P.P.C. The learned counsel also requested for the enhancement of the sentence of the appellant from imprisonment for life to death.
10. I have considered the arguments advanced by the learned counsel for the parties with care. I find that it is a case of prompt F.I.R. The names of the eye-witnesses, the names of the appellant and the manner of the occurrence are detailed therein. There is nothing to show that the F.I.R. Was not recorded at the place and the time as it indicates. The eye-witnesses had a probable cause of their presence near the spot. They have stood the test of cross-examination. Their statements do not suffer from infirmities such as major discrepancies, A major contradictions and dishonest improvements. I do not see any inherent infirmity in their statements. They have involved single accused for the murder of the deceased. The number of the injuries found on the person of the deceased and the number of the accused named by them to commensurate. For all these reasons, I do not see any reason to disbelieve the eye-witnesses or exclude their statements from consideration.
11. This brings me to the plea of self-defence raised by the appellant. I find that not only the appellant has failed to establish his version but also there is no reasonable possibility of its being true inasmuch as the occurrence did not take place in the Dera; that the occurrence took place near the shops, in an open place and that the witnesses had seen the deceased passing nearby when all of a sudden the appellant appeared on the scene armed with gun and declared that he would take the revenge of the insult done to him. The circumstances of the case do falsify the plea raised by the appellant.
12. Adverting to the alternative arguments of the learned counsel for the appellant, I find sufficient force in it, inasmuch as there was no previous enmity between the parties; that 21 hours before the main occurrence, the deceased had asked the appellant to get back in order to make room for others; that the deceased had also abused the appellant; that the appellant was feeling insulted as he declared in the Kabaddi Match as well as at the time of occurrence, and that he in fact had acted by way of retaliation within 2 1/2 hours of his insult in the public by the deceased. Relying on the case Nusrat and 4 others v. The State reported as P 1. D 1967 SC 18 and case Fazal-ur-Rehman and 2 others v. The State reported as PLD 1971 Lah. 883, I feel inclined to hold that the appellant had fired at the deceased resulting in his death under grave and sudden provocation.
13. The upshot of the above discussion is that there being no satisfactorily basis to uphold the conviction of the appellant under section 302, P.P.C. The same is set aside. Instead, he is convicted under section 304, Part I, P.P.C. And sentenced to 10 years' R.I. And a tine of Rs,10,000 in default thereof two years' R.I. The fine when recovered be paid to the legal heirs of the deceased as compensation.