SHAUKAT ALI, J.-Feroze Khan (55), was charged under section 302, P. P. C., on two counts for the murders of Rahim-ud---Din and Rehmatullah and under section 307, P. P. C., for attempted murders of Mst. Vakilan and Mst. Bali. He was sentenced to death for the murder of Rehmatullah and transporta--tion for life for the murder of Rahim-ud-Din. In addition he was ordered to suffer one year's R. I., under section 307, P. P. C., for causing injuries to Mst. Bali and Mst. Vakilan. The sentences of transportation and imprisonment were to take effect only if the death sentence was not confirmed. The convict has appealed through Mr. M. Anwar, Advocate, and the case is also before us for the confirmation of the death sentence. This judgment will dispose of the appeal and the reference together.
2. The case for the prosecution was briefly as follows. Two years prior to this occurrence, Mst. Anwar Begum, unmarried daughter of the appellant was abducted by Rahimuddin deceased, Bashir Ahmad P. W. And two others from Bhera. At the time of the abduction the appellant was posted as Head Constable Police in Hyderabad District. On his application Exh. P.E.E., a case under section 366, P. P. C. Was registered on the 15th of April 1965, at Police Station Bhera, District Sargodha. The case, however, did not succeed as Mst. Anwar Begum did not support the prosecution story. However, she was restored to the appellant who eventually married her to someone else.
A month prior to this occurrence, the accused returned to Bhera on leave preparatory to retirement and told Muhammad Hashim P. W. That he had been wronged by Rahim-ud-Din and that he would avenge the insult. This it was alleged motivated the present occurrence.
On the 5th of July 1967, at about 2-30 p. m., the appellant who had a revolver around his neck and was holding a gun in his hands challenged and shot at Rahim-ud-Din deceased, who was about to enter his house which is in close proximity to that of the appellant. Rahim-ud-Din after suffering the injury rushed towards the house of his uncle--- Rehmatullah deceased which is not far off. The appellant chased him and fired a second time. The shot did not hit Rahim-ud-Din, but hit Mst.
Vakilan and Mst. Bali P. Ws. Rahim-ud-Din rushed into the house of Rehmatullah, who was lying on a charpoy in his deohri and hid himself behind a pile of straw. The appellant entered the deohri and fired at Rehmatullah, who succumbed to the injuries at the spot. The appellant rushed through the house and decamped. The occurrence was witnessed by Mst. Vakilan P. W. 15, Bashir Ahmad P. W.
16, Mst. Bali P. W. 17, Mst. Sakina P. W. 18, Rashid P. W.
19. Muhammad Siddique P. W. 20 and Sher Muhammad P. W.
21. Rahim-ud-Din was taken to Civil Hospital, Bhera.
3. The tragic incident was reported by Bashir Ahmad P. W. To Ali Nasar Sub-Inspector P. W. 22 of Police Station Bhera which is at a distance of three furlongs from the place of occurrence the same day at 3 p.m. He recorded the statement Exh. P. S. The Sub-Inspector proceeded to the hospital. By that time Rahimuddin had died. He prepared the injury statement and the inquest report and despatched the dead body to Bhera mortuary for post-mortem examination. The Sub-Inspector then proceeded to the place of occurrence, prepared the injury state--ment and the inquest report of Rehmatullah and despatched the dead body to the mortuary. He took into possession blood- stained earth from the spot from beneath the charpoy of Rehmatullah, which was lying in the deohri and made it into a sealed parcel vide memo. Exh. P. B. He took into possession one pellet P. 1 from the ground beneath the window of one Masha-allah. He also found pellet marks on the window and on the wall of the house of Masha-allah. The pellet was made into a sealed parcel vide memo. Exh. P. C. He prepared the injury statements of Mst. Vakilan and Mst. Bali and got them medically examined.
4. On the 22nd of July 1967 the accused at his own appeared before the Sessions Judge, Rawalpindi and presented an application Exh. D. A., wherein inter alia it was stated that he had read a news item in the Daily Imroze of the 8th of July, 1967, wherein he had been named as the murderer of Rahimuddin and his uncle. It was stated as well that he was a retired Head Constable of Police and that he was roaming in search of a job after his retirement and was innocent. The learned Sessions s Judge handed over the custody of the appellant to -Khawaja Umar Farooq, Sub-Inspector, P. W.
10, of Police Station Civil Lines, Rawalpindi, who was found present in the Court premises in connection with some other case, with the direction that the appellant should be produced before the Additional District Magistrate, Rawalpindi, for necessary order. On the 23rd of July 1967, the local police was informed of the arrest of the appellant by Rawalpindi Police and the accused was taken into custody by the local police for interrogation. On the 2nd of August 1967, the appellant while in custody led to the house of Khanun in village Vijhi and got recovered gun P. 8 from Khanun. The same was taken into possession vide memo. Exh. P. F. On the 12th of August 1967, one Sabir produced revolver P. 9 and licences P. 10 and P.
11. The same were taken into possession vide memo.
Exh. P. G.
5. Doctor Rashid Ahmad Akhtar, Medical Officer, Bhera, conducted the post-mortem examination on the dead bodies of Rehmatullah and Rahim-ud-Din, on 6th of July 1967; at 6-00 a. m. And 7-30 a.m., respectively, and found the following injuries thereon.
Rehmatullah.
(1) Four lacerated wounds of gunshot of entrance on the middle of right side of abdomen in an area of 2-- " x 2", 1 -- x -- " x 1" and -- x -- " x 1", each, just below and 2" right side and 1" above the right side of umbilicus. Small portions of intestines and omentum were coming out of wound.
Direction was from right to left and backwards. There was slight blackening of edges. Unconsumed gun powder was present around the wound but no burning or scorching was present.
(2) A lacerated gunshot wound, 3" x 1-- x -- ", on .The back of left index middle, and ring fingers.
Terminal phalanx of index finger, terminal and upper part of middle phalanx of middle finger and terminal phalanx of ring finger of left hand were crushed. Edges were blackened and tattooed.
Slight amount of scorching was present and unconsumed gun-powder was present around the wound.
Rahim-ud-Din.
(1) Eight rounded lacerated gunshot wounds in an area of 3" x 3-- x -- x -- " each (wound of entrance) below the back of lower part of left chest and left lumber region. Edges of skin blackened round the wounds, but no scorching or burning present. Openings of the back of bunyan was also blackened. Direction was from posterior to interior and inner side.
(2) Eight lacerated rounded gunshot wounds of exit, -- " x 1/3" each on the left side of upper part of abdomen and below the front of chest in an area of 4 -- " x 3 -- . Out of two wounds portions of omentum were coming out 5-- left and above umbilicus. No scorching or tattooing of the edges was present.
In the opinion of the doctor, death in the case of Rehmatullah Was due to injury to liver spleen and intestines leading to peritoneal haemorrhage and shock as a result of injury No. 1 caused by gunshot which was sufficient in the ordinary course of nature to cause death, while in the case of Rahim-ud---Din due to injury to kidney, spleen, large and small intestines leading to peritoneal haemorrhage and acute shock, as a result of injuries Nos. 1 and 2, caused by gunshot which were sufficient in the ordinary course of nature to cause death.
6. The same doctor also examined Mst. Vakilan and found one gunshot wound on her person. Mst.
Bali had an injury on her person caused by a blunt weapon. Both these injuries were pronounced simple in nature.
7. The appellant was examined denied the prosecution allegations and examined no evidence in defence. He made the following statement from the dock: "I am innocent. I have served in police for more than 30 years and had come on leave preparatory to retirement in March 1967."
8. The prosecution evidence consists of the testimony of the eye-witnesses, namely, Mst. Vakilan, Bashir Ahmad, Mst. Bali, Mst. Sakina, Rashid, Sher Mohd. And Muhammad Siddique P. Ws. Mst, Vakilan and Mst. Bali are injured witnesses and their presence at the spot cannot be disputed. The presence of other eye-witnesses too at the spot is natural as they were the residents of the locality.
All the eye-witnesses had given a consistent account of the incident and after examining their evidence carefully, there is no reason whatsoever, why these witnesses should falsely implicate the appellant and desired to allow the real culprit to go unpunished. We are satisfied that these witnesses were telling the truth and it was the appellant who was responsible for causing the murders of Rehmatullah and Rahim-ud-Din and injuries to Mst. Vakilan and Mst. Bali. The learned Sessions Judge has rightly believed these prosecution witnesses and has correctly recorded the convictions on the strength of this evidence. It is needless for us to refer to that evidence in detail as we agree with the conclusions and findings reached by the learned Sessions Judge, and moreover, no attempt was made before us by the learned counsel appearing for the appellant to impeach the same. In fact, the learned counsel did not challenge the convictions.
9. Learned counsel for the appellant stoutly urged that the appellant had no motive whatsoever to kill Rehmatullah or to attack him. In fact in a chase he found Rehmatullah lying on a bed in a deohri and in a fit of excitement and chase he thought that Rahim-ud-Din, who was injured outside had fallen on a charpoy in deohri and as such fired at him taking him to be Rahim-ud-Din. To support this assertion he suggested that it is well-known phenomena that if one enters from the glare of sunshine into a room or a deohri, it is not possible for one to she therein for sometime clearly.
Therefore, it was suggested that Rehmatullah was fired at by the appellant taking him to be Rahim-ud-Din. It was further argued that the appellant only wanted to kill Rahim-ud-Din and no one else otherwise he had enough opportunity to shoot at Bashir Ahmad, who was accused in the abduction case and was present at the time of the incident. Lastly, it was urged that the appellant has been awarded sentence of transportation for life for the killing of Rahim-ud-Din for ghairat, and if it was found that Rehmatullah was murdered instead of Rahim-ud-Din, the punishment to be awarded to him should be transportation for life.
10. On examining the record carefully, we find that the appellant had no motive to kill Rehmatullah.
If he had any motive it was against Rahim-ud-Din deceased or Bashir Ahmad P. W., but though he found Bashir Ahmad near the scene of crime he did not fire at him. This lends support to the argument of the learned counsel that the appellant only wanted to kill Rahim-ud-Din and no one else. The evidence on the record shows that the appellant chased Rahim-ud-Din deceased, entered the house of Rehmatullah from one end and rushed through and went out from the back door. This shows that he was highly excited. On examining the inquest report we found that Rehmatullah while lying on his charpoy was keeping his hands on his stomach, therefore, it might be, as suggested by the defence, that the appellant thought that Rahim-ud-Din was lying on a charpoy after he had suffered the injuries, and it might be e that in a split of a minute in dark place he took Rehmatullah for Rahim-ud-Din and fired at him. It appears that the appellant clearly lost the balance of his mind on seeing Rahim-ud-Din who was the abductor of his unmarried daughter and the sudden impulse proved too strong for him to resist and it was under that impulse that he acted abnormally. In our opinion, extenuating circumstances exist which compel us to modify the sentence of death passed on the appellant for the murder of Rehmatullah.1 In this view of the matter, while maintaining the conviction of the appellant under section 302, P. P. C. For the murder of Rehmatullah, we reduce the sentence from death to transportation for life on the ground that the accused committed the act in a moment of extreme excitement. The appeal is otherwise dismissed. All the sentences shall run concurrently.