' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 74 of 1981, connected Murder Reference No,149 of 1981 and Criminal Revision No,94 of 1981 arise from the judgment of learned Sessions Judge, Attock whereby he on 11-3-1981 while acquitting Zafar Iqbal co-accused convicted Hafizur Rahman appellant aged 24 years under section 302, P.P.C. For causing the death of Sultan Khan aged 45 years and sentenced him to death and a fine of Rs,5,000 or in default thereof one year's R.I.
The appellant was tried alongwith Shah Muhammad and Zafar Iqbal co-accused. The learned Sessions Judge vide his order, dated 15-2-1981 acquitted Shah Muhammad at the time of framing the charge. The complainant has filed Criminal Revision No,94 of 1981 against the acquittal of Zafar Iqbal. We propose to dispose of criminal appeal and Murder Reference through single judgment.
The criminal revision has been dismissed by us today for want of prosecution.
2. The occurrence took place on 9-2-1981 at Degarwela in village Chanji of Police Station Tallagang.
The distance between the place of occurrence and the Police Station is 15 miles. The F.I.R. Exh. P.F.
Was lodged by Zafar All P.W.6 brother of the deceased at 7 p.m. On the same day and was recorded by Amir Khan S.H.O. P.W.10.
3. The motive as alleged by the prosecution was that about 21/2 years before the occurrence the sister of the appellant namely Mst. Amir Begum was married to Fateh Khan son of Sultan Khan deceased. She was murdered by her husband and Sultan Khan deceased. They were prosecuted for her murder. During the trial the parties effected compromise.
So Sultan Khan deceased and his son were acquitted. Mst. Bhag Bhari daughter of Sultan Khan deceased was married to Hafizur Rehman apellant in exchange of the marriage of Mst. Amir Begum with Fateh Khan. The deceased Sultan Khan demanded divorce of Mst. Bhag Bhari his daughter from the appellant who refused to divorce his wife. The relations between the parties, therefore, became strained and led to the present occurrence.
4. As far the main occurrence, it has been stated that a few days before the occurrence Hafiz-ur- Rahman appellant came to village on leave. He was serving in the Army. On the day of occurrence, at Degarwela, when deceased was coming from village Chanji and reached Banna of field, the appellant, his brother Zafar Iqbal, both armed with guns alongwith Shah Muhammad who was empty-handed, emerged from behind the said 'Banna'. They raised Lalkara and opened attack on the deceased. Hafizur Rehman fired a shot which hit the deceased as a result of which he fell down and died. The appellant and his co-accused then went away to the village. The occurrence was seen by Zafar All P.W.6 and Iftikhar P.W.7, Allah Bakhsh son of Allah Yar and Allah Bakhsh son of Misri Khan P.Ws. (Both not produced).
5. On 9-2-1980 Amir Khan S.H.O. P.W.10 inspected the spot and secured crime empty P.7 vide memo.
P.E. Attested by Hatim Khan P.W.5 Nawab Khan (not produced).
6. On 10-2-1980 at 9.30 a.m. Dr. Nisar Ahmad Qureshi conducted post-mortem examination on the dead body of Sultan Khan deceased and found following injuries on his person;
(1) Irregular lacerated wound with inverted margins 6 1/2 x 41 c.m., going deep towards the chest cavity in the upper part of front of left upper arm and left shoulder.
(2) Lacerated wound 3 x 11 c.m. Going deep into the chest cavity in the left arm pit, 2 c.m., below injury No,1.
(3) Lacerated wound 11/2 x1/4 c.m. x 1/2 c.m. On the right supra clevicular area. The shirt, jersey and vest of the deceased overlying injury No,1 bore corresponding holes, which were signed by him.
' On internal examination he found 2nd, 3rd and 4th ribs on the left side under injuries 1 and 2, and Ist rib on right side under injury No,3, fractured. Similary parietal pleurea on both sides were found lacerated under injuries 1, 2 and 3. Both pleural cavities contained lot of fluid blood. A cartridge- plug and cork were found in the right pleural cavity and were extracted therefrom Trachea was punctured in its chest portion while in the right lung, there were holes in its upper lobe. In the left lung, upper lobe was extensively damaged and lacerated at many places. Stomach contained small amount of liquid food, and bladder was full of urine.
' The Death', in his opinion, occurred due to shock, haemorrhage, mainly internal, and injury to lungs and trachea. Injuries 1 and 2 were entry wounds and No,3 the exit. Four pellets were recovered from muscles of the right armpit by dissection while tracing the direction of wound. Injuries 1 and 2 were sufficient in the ordinary course of nature to cause death collectively. All the injuries were ante- mortem and caused by a fire-arm. Time between injury and death was a few minutes and between death and post-mortem 12 to 24 hours.
7. Hafizur Rahman appellant was arrested by Amir Khan S.H.O. P.W.10 after mid-night on 10-2-1983 from Tallagang. At the time of arrest, the appellant was carrying with him his licenced .12 bore gun P.8 and six live cartridges P.9/1 to 6 in a haver-sack P.10 which were taken into possession vide memo. P.6 attested by Muhammad Qasim P.W.8 Sultan Mubaraz (not produced).
8. Prosecution examined as many as 10 witnesses. Zafar All P.W.6 and Iftikhar P.W.7 supported the motive and the main occurrence as detailed in paras. 4 and 5 of the judgment. Iftikhar P.W.7 was disbelieved by the trial Court in para. No,23 of its judgment. The other two eye-witnesses namely Allah Bakhsh son of Allah Yar and Allah Bakhsh son of Misri were given up as having been won over.
Hatim Khan P.W.5, Muhammad Qasim P.W.8 and Amir Khan S.H.O. P.W.10 supported the recovery of crime empty P.7 from the spot and of gun P.8 from the appellant. The Forensic Science Laboratory report P.M. Reveals that empty P.7 was fired from gun P.8 recovered from the appellant. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C., the appellant admitted his marriage with Bhag Bhari daugther of Sultan Khan deceased, in exchange of the marriage of his sister Amir Begum with Fateh Khan son of the deceased. He admitted the murder of Amir Begum and prosecution of Sultan Khan deceased and his son Fateh Khan. He admitted compromise between the parties and acquittal of Sultan Khan and his son in the murder case of Mst. Amir Begum his sister. He also admitted subsequent demand by Sultan Khan deceased of Talaq of his daughter Bhag Bhari from him. The appellant admitted to have caused the death of Sultan Khan by firing shots from his gun.
While raising plea of provocation and self-defence of person he stated.
"I was employed in the Army and had come on leave during the days of occurrence. On the day of occurrence, I went to the Dhok of my maternal grand-parents and when I was returning therefrom at about Digarvela, to Chinji to my house. I saw Sultan Khan deceased going towards his Dhok from village Abadi. Since we were treading the foot-path, we accosted each other in the field of Sheikhan. He asked me to divorce his daughter as he had already sent 2-3 messages to me. I told him that I was not willing to divorce her and he should better consult his daughter and if she was wiling to live with me I was ready to keep her. He stated that he would definitely obtain Talaq of his daughter from me, but I repudiated his demand. Thereupon he flared up and taking out a pistol fired at me, but it did not hit me and I in self-defence fired at him which hit him and he fell down.
Thereafter I went to my house and taking my maternal uncle with me went to P.S. Talagang, where I reported the matter to the S.I. Neither my brother Zafar lqbal accused nor Shah Muhammad accused was accompanying me. The occurrence was seen by Nur Khan son of Draz Khan, Nur Khan son of Haji Khan, Ghulam All son of Haji Khan, Gul Jahan son of Sultan Khan, Hayat Carpenter and many others."
' In defence no witness was produced.
10. The learned counsel for the appellant submitted that Zafar All P.W.6, the solitary witness relied upon by the trial Court is not dependable inasmuch as he is a related; inimical and chance witness; that he falsely invovled Shah Muhammad and Zafar Iqbal the acquitted co-accused and that the circumstances in which the appellant was arrested from Talagang at a distance of 15 miles from the place of occurrence indicate that there is a reasonable possibility of the defence version of provocation and self-defence being true. On the other hand the learned counsel for the State supporting the judgment of the trial Court submitted that prosecution has successfully brought home the suit to the appellant; that reliance can safely be placed on the statement of Zafar All P.W.6 and that the pleas raised by the appellant are totally false.
11. Since it is a case of two versions, therefore, keeping in mind the guidelines given by the superior Courts for the appreciation of such like cases, we propose to discuss prosecution case first, in order to come to an independent finding as to the truth or falsity of its case and credibilities of occular evidence. In case, we do not exclude the prosecution case and its evidence we will examine the two rival cases placing in juxtaposition and will review the entire evidence and attending circumstances at the close, to arrive at a conclusion regarding the truth or falsehood of the defence plea and will estimate its total effect in relation to two questions.
(1) Is the plea of the appellant satisfactorily established by the evidence and the circumstances appearing in the case;
(2) If the answer be in the negative, is there yet a reasonable possibility that the plea raised by the appellant might be true so as to cast a reasonable doubt upon the prosecution case.
12. Dealing with the prosecution case, we find that it is a case of prompt F.I.R. The occurrence took place at Degarvela. The report was lodged by Zafar Ali P.W. 6 at 7 p.m. On the same day. The distance of the Police Station from the place of occurrence was 15 miles. There is no reason to doubt the genuineness of this document. Despite lengthy cross-examination, the defence could not shake and shatter the F.I.R. This prompt and genuine F.I.R. Can be used to corroborate the statement made at trial by its maker i,e, Zafar Ali P.W.
6. Further, the background of murder as given by Zafar All P.W. 6 has almost been admitted by the appellant in his statement recorded under section 342, Cr.P.C. Examining the occular testimony of Zafar An P.W. 6 a bit more carefully than has been done by the trial Court. We find that he was the resident of the vicinity where the murder took place; the making of First Information Report with great promptitude also gives rise to the conclusion that he must have either witnessed the affair or was otherwise connected with it. He has given probable cause of his presence near the place of occurrence at the time of murder. So he cannot be termed as a chance witness. Prior to the occurrence he had no direct enmity with the appellant. His relationship that he is brother of deceased, is no ground for the rejection of his testimony. His evidence is not inconflict with the medical evidence. The trial Court has not stated that Shah Muhammad and Zafar Iqbal were falsely involved in the case. Since Shah Muhammad was empty-handed and Zafar Iqbal though armed with gun had not fired at the deceased, therefore, the trial Court acquitted Shah Muhammad under section 265-R, Cr.P.C. And acquitted Zafar Iqbal by giving him the benefit of doubt. The acquittal of the co-accused thus does not damage the veracity of Zafar Ali P.W.
6. The learned counsel has not been able to point out material contradiction, major discrepancies and dishonest improvement in his statement. He made almost consistent statement. Even the powerful engine invented for the discovery of truth, could not elicit anything damaging the integrity of the witnesses. His statement is inconsonance with probability, materially fits in with other evidence and circumstances of case and has inspired confidence of truth in our mind. We do not see any reason to discard prosecution case or the statement of Zafar Ali P.W.
6. So we proceed to resolve the two questions formulated by us in pars No, 11 of the judgment.
Adverting to first question i,e, Is the plea of appellant satisfactorily established by evidence and circumstances appearing in the case?
Our answer is in negative. Although in statement under section 342, Cr.P.C. The appellant stated that at the time of occurrence when he fired at the deceased under provocation and in exercise of right of his self-defence, Noor Khan son of Draz Khan, Noor Khan son of Haji Khan, Ghulam Ali, Gul Jahan, Hayat carpenter and many others were present and seeing the occurrence yet he did not care to produce single person out of them to prove his version. The learned counsel has not been able to point out any circumstance appearing in evidence which could establish the plea of the appellant.
' This brings us to the second question i,e, Is there yet reasonable possibility of the defence version being true.
' We find that the appellant was not injured in the occcurrence. Sultan Khan died on the spot but no pistol or empty allegedly fired from his pistol were found there. The absence of any injury on the person of the appellant and the non-recovery of pistol of the deceased and empty, fired therefrom, eliminates the reasonable possibility of the defence version being true, it rather falsifies the exclupatory part of the statement of the appellant recorded under section 342, Cr.P.C. So far as plea of grave and sudden provocation is concerned he has not raised this plea specifically in his statement. He has not stated that he acted under grave and sudden provocation or that he was very much provoked on the deceased asking divorce of his wife from him. The statement of the appellant accepted as a whole no case of grave and sudden provocation is made out. The plea of grave and sudden provocation and self-defence is not spelt out from prosecution evidence or the surrounding circumstances. For all these reasons we are of the view that the appellant has rightly been convicted by the trial Court under section 302, P.P.C. For the murder of deceased.
13. This brings us to the question of sentence. We find that there are mitigating/extenuating circumstances in favour of the appellant for lesser penalty, inasmuch as, the deceased had already murdered the appellant's sister Mst. Amir Begum and although he and his son were acquitted because of the compromise between the parties yet the deceased instead of sending his daughter Bhag Bhari to the house of her husband the appellant, made demand of Talaq of his daughter from him.
14. For what has been stated above, the appeal is partly accepted while maintaining conviction under section 302, P.P.C. For causing the death of Sultan Muhammad, the sentence of death awarded to the appellant is altered to imprisonment for life and a fine of Rs, 5,000 or in default whereof to further R.I. For one year. The fine when recovered be paid to the legal heirs of the deceased.
' The sentence of death is not confirmed.