' Shafqat Hussain Shah alias Shaffa, son of Haider Shah aged 30, armed with his licensed rifle, has been convicted under section 302, P.P.C. For the murder of Muhammad Ashraf, aged 35/36, and vide judgment dated 9-6-1981 of the Additional Sessions Judge, Gujrat, was sentenced to death plus fine of Rs, 5,000 or in default to undergo one year rigorous imprisonment. His co-accused, namely, Muhammad Mansha Shah, empty-handed, his real brother, to whom only a proverbial Lalkara was attributed, was given the benefit of doubt and acquitted. The appeal of the convict is being disposed of alongwith the reference for the confirmation of death sentence awarded to him, by this judgment.
2. The occurrence took place at 8-30 a.m. On 21-5-1980 in an open space near the graveyard of village Dina Chak at a distance of four miles from Police Station Lala Musa, District Gujrat. F.I.R. Exh.
P. H . Was lodged by Abdul Ghani (P.W.10), father of the deceased, at 11-00 a. m, on the same day and it was recorded at the police station by Ali Asghar S.I. (P.W.12).
3. The motive for crime as given in the F.I.R. Is that 4/5 days before the present occurrence the deceased had restrained the appellant from grazing his cattle in the graveyard area of the village and had turned out the cattle of the appellant from the graveyard. It is stated that this led to an altercation between the two of them. Anyway, on the day of occurrence the appellant and the acquitted co-accused again brought their cattle towards the graveyard and it is alleged that they challenged the deceased to stop the cattle if he had courage to do so. Thereupon, the deceased led the cattle aside towards the pond. On this it is stated that at the instigation of the acquitted co- accused the appellant who was carrying his licensed rifle, fired at the deceased and thus murdered him.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: When the deceased had turned the cattle towards the pond, the acquitted co-accused instigated the appellant to fire at the deceased and kill him so that in future no one should take the courage of stopping their cattle. On this the appellant is stated to have fired through his licensed rifle at the deceased and the shot hit on his right chest. On having hit, the deceased fell down on the spot and died. At that time his father Abdul Ghani (P.W.10) as well as his brother Muhammad Zaman (P.W.11) and Muhammad Hussain (not produced) were also sitting on a cot nearby and were thus present on the spot. They raised alarm and even tried to apprehend the appellant and the acquitted co- accused but the appellant is said to have pointed his rifle towards them and warned them that if they came near, they would meet the same fate. Since the aforesaid eye-witnesses were empty- handed, they did not go near for fear of life. After murdering the deceased, both the appellant and the acquitted co-accused proceeded towards the village. Leaving behind Muhammad Hussain (not produced) and Muhammad Zaman P.W. To guard the dead body of the deceased, Abdul Ghani P.W. Proceeded to lodge the report.
5. The prosecution has produced two eye-witnesses of the occurrence, namely, Abdul Ghani (P.W.10), father of the deceased and Muhammad Zaman (P.W.11), brother of the deceased.
Muhammad Hussain was cited as an eye-witness of the occurrence but was not produced as he was not available having gone abroad.
6. Both the appellant and the acquitted co-accused were arrested by Ali Asghar S.I. (P.W.12) on 26- 5-1980. No crime empty was picked up from the spot but at the time of arrest of the appellant he was carrying his licensed rifle (Exh. P.6) with a stuck bullet in its chamber which was taken into possession vide Memo. Exh. P.F. Dated 26-5-1980. The attesting witnesses are Ahmad Khan (P.W.9), Ali Asghar S.I. (P.W.12) and Mehndi Khan (not produced). A leather bag (Exh. P.7) containing five live cartridges (Exh. P.8/1-5) as well as license (Exh.P.9) of rifle (Exh. P.6) were also taken into possession, because the appellant was carrying them at the time of his arrest, vide memo. Exh.P.G., dated 27- 5-1980. The attesting witnesses are the same. There is report of the Fire-arm Expert at page 59 of the printed paper-book which is not of any use in the instant case as no crime empty was picked up from the spot. As is evident, the case of the prosecution is based entirely on the ocular testimony.
7. The appellant in his statement before the trial Court denied having participated in the occurrence. However, he did not disown the rifle (Exh.P.6) or the bag (Exh.P.7) containing the articles mentioned therein but stated that he himself produced these things before the police on the day of occurrence. Anyway, in answer to the question as to why this case was against him, his reply was to the following effect: - "Firstly that there is party faction in the village and the deceased belonged to the opposite camp.
Secondly, the deceased had illicit relations with Mst. Razia, daughter of Rehmat Hajjam, who firstly used to live in the neighbourhood of the deceased and I had restrained the deceased from these immoral activities. Rehmat Hajjam was brought by Ghulam Muhammad S.I. And Shaukat and they had also restrained him from these illicit relations. He has been murdered by some unknown person and on the basis of doubt falsely implicated me in this case. Afterwards they apprehended the hand of Ghulam Muhammad on one side so Zaman P.W. Fired at him as well after the occurrence. This is due to the reason that the Chair Abad Haveli of Shaukat was quite near to the place of occurrence."
' He stated that he was innocent but he did not produce any evidence in defence. The acquitted co-accused also made identical statement.
8. Dr. Rashid Javid Chaudhry (P.W.1) conducted post-mortem examination on the dead body of the deceased at 5-00 p.m. On 21-5-1980 and found on the person of the deceased a fire-arm entrance wound on the right side of chest and a fire-arm exit wound on the upper part of the abdomen.
There was also an abraded wound on the left side of abdomen. The first two injuries had been caused by fire-arm whereas the third injury was caused by a blunt weapon. In his opinion death occurred due to the fire-arm injuries which led to haemorrhage and shock and it was severe enough to cause death in the ordinary course of nature. About the blunt weapon injury he observed that it could have been caused as a result of friction but could not be inflicted by Danda or any other similar weapon.
9. We have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant attempted to argue that the two eye-witnesses, in the instant case, being father and brother of the deceased, were interested and they might have not been present on the spot at all, for, their houses were not near the open space where the occurrence had taken place.
He also argued that the motive, in the instant case, was only hearsay, for, Muhammad Zaman P.W.
Was admittedly not present at the time of the first incident and that Abdul Ghani P.W. Had not stated in the F.I.R. That he was present at the time when the first altercation had taken place between the deceased and the appellant. Learned counsel vehemently argued that motive as set up by the prosecution could not be proved and that even the trial Judge had mentioned that it was a weak motive. We do not agree with learned counsel. Abdul Ghani P.W. Had clearly stated before the trial Court that the earlier incident had taken place because the deceased had restrained the cattle of the appellant from entering the graveyard and that on that account there was exchange of hot words between them. The observation of the trial Judge to the effect that it was a weak motive, is of no consequence. He has also observed that the motive as set up by the prosecution stands proved on the basis of the statement of Abdul Chant P.W. We also do not agree with learned counsel that the eye-witnesses might have not been present on the spot or they were interested witnesses being closely related to the deceased. The admitted facts are that there is no background of previous enmity between the parties and in that view of the matter there definitely was no motive for the eye-witnesses to falsely implicate the appellant and his brother. Even otherwise there is nothing on the record to show that the deceased was a bad character or had many other enemies who could have done the job. There is in the field only the statement of the appellant himself to the effect that the deceased was a bad character but the defence did not produce any cogent evidence which should make his character doubtful before us. We are, therefore, convinced in our mind that it was no other person that the appellant who had fired a shot at the deceased and thus murdered him. The only point which requires determination is as to possibly what were the circumstances in which the shot had been fired. On this point learned counsel took us through the statements of the two eye-witnesses. On the basis of these statements he argued that admittedly the appellant had a licensed rifle which he always carried. If the deceased had restrained his cattle in the first incident, the appellant could have fired the rifle shot at him and killed him even then but this did not happen. Learned counsel argued that if the appellant had come with the intention of murdering the deceased on the second occasion, then he should have not challenged the deceased to stop the cattle if he dared when the cattle had not" evenentered the graveyard yet. According to learned counsel, he should have wasted no time to directly fire a shot at him without any dialogue or conversation. It was then pointed out that even when the appellant did fire a shot at the deceased, admittedly it was after the cattle had been diverted towards the pond by the deceased. Thus, according to learned counsel, on the second occasion, again some kind of provocation was provided so as to make, the appellant fire a rifle shot at the deceased. This reasoning appeals to us. It is reasonably probable that on the second occasion also the appellant armed with his licensed rifle as usual, had brought his cattle for the purposes of grazing the same but before he entered the graveyard the deceased like the past incident might have diverted the cattle to the pond even before they had entered the graveyard to the annoyance of the appellant and in retaliation the appellant had fired a shot at him in the circumstances of a sudden flare up. Thus in our considered opinion there is no doubt in our mind that the appellant had committed the crime and, therefore, his conviction under section 302, P.P.C.
Was quite proper and is accordingly maintained. But when we come to the question of awarding the sentence, we are of the view that there is mitigating circumstance of sudden flare up which should be taken into consideration and in the light of the same we feel that it would be sufficient to meet the ends of justice if he is awarded the lesser penalty in the peculiar circumstances of the present case. The result is that the conviction of the appellant under section 302, P.P.C. Is maintained but we alter his sentence from death to that of imprisonment for life. The sentence of fine is maintained, with further direction that if the fine is realized from the appellant, it should be paid as compensation to the heirs of the deceased. The death sentence awarded to the appellant is not confirmed. The jail authorities are directed that while computing the term of life imprisonment of the appellant, they should grant him the benefit of the provisions of section 382-B of the Code of Criminal Procedure. With this modification the appeal is dismissed.