' Muhammad Mushtaq (204) and Abdul Rahman (50) were tried for the murder of Abdul Sattar by the Sessions Judge, Mianwali. On 13-9-1980 Muhammad Mushtaq was convicted and sentenced to imprisonment for life and a fine of Rs,1,000 in default to undergo one year's rigorous imprisonment further. The fine if realise() was ordered to be paid to the heirs of the deceased. Abdul Rahman was acquitted of the charge. The appeal of the convict and the connected revision petition filed by the complainant are before me.
2. About 14 years before the occurrence in this case Abdul Sattar (deceased) had abducted Mst.
Zarina sister of Muhammad Mushtaq (accused). Later the matter was patched up because the hand of Abdul Sattar's sister was given in Nikah to the accused Muhammad 'Mushtaq but Muhammad Mushtaq still bore a grudge against Abdul Sattar and according to the prosecution on 13-11-1978 at 3-30 p.m. Abdul Sattar, his father Muhammad Hussain informant and Shah Nawaz were on their way to their fields for collecting fuelwood from there. Abdul Sattar was a little ahead of the rest. When they passed in front of the house of Muhammad Mushtaq, he came out of his house with a gun and fired at Abdul Sattar hitting him in the head; a few paces behind Muhammad Mushtaq, Abdul Rahman, his cousin, stood on guard with a gun. As Abdul Sattar fell on the ground Muhammad Mushtaq declared that he had been taught a lesson for abducting his sister Zarina.
Out of fear Muhammad Hussain and Shah Nawaz sat down. The occurrence also witnessed by Amir Muhammad, brother of the informant. Both accused fled away. Abdul Sattar was carried on a Charpai towards his house. As they reached near the house, Abdul Sattar died, P.W. Muhammad Hussain went towards the Police Station Piplan situated at a distance of 8 miles from the place of occurrence. He reached there at 4-30 p.m. The same day and made a report Exhs. P.F. To P.W. 9 Faiz Muhammad S.I. S.H.O. After registering the case the S.I. Went to the place ol occurrence. Abdul Sattar's dead body was lying near the shop of Zangi. He prepared the necessary documents and sent it for post-morteff examination. Thereafter, he inspect. The spot, took, into possession bloos- stained earth vide memo. Exh. P.G. Attested by P.W. 7 Muhammad Hussain and P.W. 8 Shah Nawaz.
3. On 14-11-1978 at 10-30 a.m. P.W. 1 Dr. Ashiq Ali, Medical Officer, D.H.Q. Hospital, Mianwali, held the autopsy on the dead body of Abdul Sattar and found a fire-arm wound of entry with inverted margins 7 c.m. x 7 c.m. On the left temple and adjoining part of left side of head. There was clotted blood around the wound in the left ear and the nose. He did not notice any blackening or tattooing.
The left temporal, parietal and occipital bones were fractured, which extended upto the right frontal and parietal bones. The brain matter and left meanings were injured with clotted blood around the brain matter. The deformed bullet in the shape of two elongated big pieces and a small piece was found embedded in the left occipital bone, which were removed and made into a sealed phial. There was two ounces of liquid in the stomach, the small intestines contained traces of digested food and the large intestines had faecal matter. The urinary bladder was empty. In Doctor's opinion death occurred due to shock and haemorrhage caused by injury No,1 which was sufficient to cause death. According to him the probable time that lapsed between the injury and death was about half an hour and that between death and post-mortem examination was about 16 to 20 hours.
4. Faiz Ahmad S.I. Arrested Muhammad Mushtaq on 15-11-1978, who got recovered Rifle P. 5 and three bullets P. 6/1-3 from his house. These were sealed into a parcel through memo. Exh.P.H.
Attested by P.W. 7 Muhammad Hussain and P.W. 8 Shah Nawaz. Through Exh. P.B. The S.I. Made a query from the Doctor whether it was .303 bullet and whether the bullet split into pieces on account of hitting the skull. Through memo. Exh.P.B/1 the Doctor replied that it was for the Fire-arms Expert to state about the bore of the bullet and in his opinion he possibility of the bullet's splitting after striking the skul was there.
5. Faiz Muhammad S.I. Arrested Abdul Rahman. Thereafter, he completed the investigation and the accused were tried in due course.
6. At the trial admitting their relationship inter se both accused denied guilt. According to Muhammad Mushtaq about 1 1/2 year before the occurrence, his sister Mst. Zarina was abducted by the deceased an after one month she was returned. But three months later the deceased again abducted her and a case was registered against him under section 363 and 366, P.P.C. And she was returned through the intervention of the Brotheri. Further according to Muhammad Mushtaq since he was in the Army and when he came on leave to his village, he learnt that thi Nikah of a daughter of the informant had been performed with him in his absence and the complainant family had given a document in writint that on attaining the puberty she would be married to him, but it wa not settled whether his wife would be Mst. Zainab or Mst. Sakina. He denied whether any money was paid to him and maintained that all this was done in his absence to get the criminal case settled. Further According to him the two families were not on visiting terms and after the acquittal of the accused in the abduction case, the accused party demanded the hand of the girl, but the complainant and the deceased said that she was a minor. They, however, wanted divorce for her. Further, according to Muhammad Mushtaq he had come on two months have and was fired at by the deceased, for which he made no report. Again he came on five days leave for Eid and a day after Eid, his mother, sister and younger brother Mumtaz had gone to attend the feast in the house of their uncle Ghulam Hassan, situated at a distance of 400 Karams from his house, and his father left to deliver Qurbani lest to his sister, who lived at a distance of two miles from there.
According to him he went to sleep in his room. But on hearing some whispering outside he got attentive and saw that Muhammad Mushtaq deceased was standing near the wall of his house inviting Mst. Zarina, its sister to run away with him. Out of Ghairat he picked up his father's .32 bore rifle from a box and fired at Abdul Sattar. He denied the recovery of rifle P.
5. In his defence he produced Nikahnama Exh. D.B., school leaving certificate of Mst. Sakina Exh. D.C., his own Arth certificate Exh. D.D. , birth certificate of Mst. Zarina Exh. D.E. Copy of Exh. D.F. And the photostat copy of the licence of its father's rifle Exh. D.G. He explain that on the Nikahnama Exh. D.B.
His signatures were obtained later when he had come on leave from the Army. According to Abdul Rehman at the time of occurrence he was ploughing his land and had been falsely roped in due to enmity. He added that during investigation he also produced witnesses in defence.
7. Since Abdul Rahman did not take any active part in the occurrence for incited Mushtaq and at the investigation stage he took up the plea of alibi in support of which he had produced witnesses, therefore, trial Court came to the conclusion that the prosecution case was not satisfactorily proved against him. Giving him the benefit of doubt it acquitted him. But in so far Muhammad Mushtaq was concerned, the trial did not accept his plea of grave and sudden provocation. Relying in the statements of the witnesses and the recovery of rifle P.W 5 at is instance, the trial Court concluded that the F.I.R. Was lodged without delay, it considered the prosecution case satisfactorily proved gainst him.
8. Criticising the findings learned counsel for the appellant contended that the statement of the appellant is supported by the circumstances appearing in the evidence of this case inasmuch as that his sister Mst.Marina had been abducted by the deceased and a criminal case was registered in which the informant i.e, the deceased's father was also in accused and that a compromise was effected for the withdrawal of he case in lieu of which the appellant was promised the hand of deceased's sister who was then a minor but it was never agreed that apppellant's sister Mst Zarina who had been abducted would be given marriage to the deceased. In support of this argument, learned counsel for the appellant contended that there is no written Nikah of Mst. Zarina with the deceased. In order to meet this__ omission, the informent took up the position that there was an oral Nikah but he led evidence to support his stand. It was further argued that Nikah of two accused with the sister of the deceased was performed in his absence and when he cape on leave from the Army, his signatures were obtained and the so-called settlement in lieu of Nikah was in fact secure an acquittal in the abduction case. After having achieved it the deceased again tried to abduct Mst. Zarina and as such the appellant acted under grave and sudden provocation when he tried to approach her at the house of the appellant and was seen whispering to her to go with him.
9. I have considered the submissions. To my mind, the sole question for determination in this appeal would be whether the appellant acted under grave and sudden provocation. Had the matter between the deceased and the appellant been settled then there was no reason with the appellant to have killed Abdul Sattar. The fact that he fired at him obviously indicates that the deceased had offered provocation to the appellant. On the other hand, I find that the prosecution story is that the deceased alongwith his father and uncle were proceeding towards their land to collect fuelwood. A perusal of the site plan Exh. P.F. Would show that the cattle-shed, hand-pump and the oven situated in the north of the house of the appellant are all his property. The informant and P.W. Shahnawaz were said to be at point '4' in a straight line towards the west of the hand- pump; whereas Abdul Sattar had come down south close to the wall of the house of the accused shown at point '1' which according to the Patwari was 2-2i feet from the wall of the houses of the accused. The field of Muhammad Hussain from where he was to collect the fuelwood is situated towards east of the house of the appellant. The informant admitted under cross-examination that his house was 80-90 Karams towards the north-west of the place of occurrence. In the site plan Exh. P.E., there is no thoroughfare shown between the cattle-shed, hand-pump, oven and the house of the appellant. These are the property of the appellant and would obviously be in his courtyard. If the eye-witnesses were proceeding with the deceased as indicated in the site plan towards the east of appellant's houses, obviously their path would not have been the one which they followed. It does not stand to reason that persons coming from north-west of the house of the accused would first come down south near the wall of appellant's house and then proceed towards east to the field. The Patwari, however, did not remember whether there was watercourse running north-south passing near the field of the informant but this would not mean that there was none. On the other hand, the informant admitted that the watercourse runs towards the east of his land from north to south. The informant could have followed this route without trespassing the property of others.
Moreover, it is also clear from the reading of the site plan that there could be no thoroughfare passing through the courtyard of the house of the appellant. Besides this awkward path which the eye-witnesses would like to be believed that they followed, there were also other circumstances in the evidence of this case which showed that the eye-witnesses stage-managed their presence at the spot. P.W. Shah Nawaz a nephew of the informant did not mention before the police the purpose for which they were going to their field nor mentioned its location. I also find that he did not state before the police that when the deceased was hit Abdul Rehman (the acquitted- accused) ran and stood towards the west. The informant had also not mentioned this fact in the F.I.R. Shah Nawaz P.W. Did not state before the police that Mushtaq ran towards Abdul Rehman and stood near him. He also did not mention that out of fear, he and the informant sat down. He also did not mention that after the deceased was hit, he was alive and was carried near the shop of Zangi where he expired. It was suggested to Shah Nawaz that in fact the womenfolk of the deceased came and-took him away from the spot which of course he denied. It may be mentioned at this stage that according to Muhammad Hussain (informant) when his son reached the house of Mushtaq, he came out with a gun followed by Abdul Rehman who was also armed with a gun. After Mushtaq fired hitting the deceased, Abdul Rehman ran towards the west and sat near the witnesses to put them in fear. The attack was not described by the informant in the F.I.R. In the manner mentioned above. It however, made no sense for both Abdul Rehman (the acquitted- accused) and the appellant to have gone 17 Karams towards the west, after the attack. In all probability, it may have been introduced so that the witnesses of the nearby houses from that point may be procured. The circumstances also creates a doubt about prosecution story.
10. As to the settlement between the parties, it is noteworthy that besides the solitary,statement of the informant, there was no proof of the terms and conditions of the settlement with regard to the withdrawal of the criminal case against the informant and his son. I find that the informant has been evasive in replying questions which concerned the criminal case against him and his son. For instance, under cross-examination, he said that he could not say that the case against the was under sections 363/366 and 376, P.P.C. Again I find that according to him, he did not remember whether the appellant, was in the Arm when the reconciliation had been effected and he also did not remember whether appellant's Nikah with his daughter was solemnized on the day of reconciliation. He admitted that since his daughter Mst. Sakina was a minor being 8 years of age, therefore, he acted on her behalf but did not remember whether the Nikah was signed by her. He however, asserted that he had signed the Nikahnama, but in Exh. D.B. The Nikahnama which bears the seal of the Nikah Registrar produced by the accused in his statement, the facts were otherwise.
Therein Mst. Sakina is shown as 16 years old and the document has been signed by her. When questioned at he had misrepresented her age at the time of Nikah, he denied it. True, there is no formal confrontation of the Nikahnama to the witnesses but the fact remains that he has not produced any Nikahnama during the investigation to prove the settlement. It has been mentioned earlier that informant did not remember whether the appellant was present at the time of the reconciliation but later when he had been questioned about the details of the Nikahnama concervene the age of his daughter, he asserted that the appellant was present at the time of the Nikah. It is obvious from the above analysis of his evidence that he has been evasive and even contradicted himself. Under these circumstances, it would not be safe to rely on his solitary statement in proof of the settlement as asserted by him. It is also noteworthy that the informant did not mention whether his son Abdul Sattar was married to Mst. Zarina. Under cross-examination, he said that there was an oral Nikah between the two. The fact is also not supported by any other evidence. If Mst. Zarina was living with the deceased as his wife and the matter had been settled by giving Mst. Sakina in Nikah to the appellant, then there was no reason for him to attack his brother- in-law. I am of the view that the settlement if any was in all probability to avoid prosecution of the criminal case and in this view of the matter, I find no reason to discard the defence version. I, therefore, alter his conviction to section 304, Part I, P.P,C. And reduce his sentence to a period of sentence already undergone by him. He has remained in custody before and after trial for a total period of nearly 41 years. The sentence of fine is remitted. He is on bail.He shall be discharged ' The sentence of fine is remitted. He is on bail. He shall be discharged of his bail bonds.
' Sentence reduced.