' IJAZ NISAR,J Shamshad Hussain alias Shada son of Arif Hussain was tried along with Arif Hussain, Nazar Hussain and Sadiq Shah for the murder of Altaf Hussain deceased. The learned Additional Sessions Judge, Gujranwala vide his judgment, dated 11-5-1981 convicted Shamshad Hussain appellant under section 302, P.P.C. And sentenced him to death and a fine of Rs, 5,000 or in default to undergo R.I. For three years. The fine was ordered to be paid to the legal heirs of the deceased as compensation. However, the other co-accused were given the benefit of doubt and acquitted.
' This order will dispose of the murder reference as also the appeal filed by Shamshad Hussain appellant.
2. The prosecution case is that Arif Hussain father of the appellant contracted second marriage with Mst. Kaniz Fatima, sister of Altaf Hussain deceased about 13 years prior to the occurrence.
About 3 years prior to the occurrence Arif Hussain had installed a tubewell which he later on sold to Mukhtar Hussain complainant. About a year before the occurrence Arif Hussain asked the complainant to pay the price of tube well failing which he would remove the same. This led to estranged relations between the parties, in consequence of which Arif Hussain accused turned out his wife Mst. Kaniz Fatima who came to the house of her brother Mukhtar Hussain complainant.
After some time the appellant also divorced the sister's daughter of the complainant.
' On 20-1-1977 at Chhahwela the appellant visited the house of the complainant and asked his sister Mst. Kaniz Fatima to pay the price of the tubewell failing which they would dismantle the same. This led to an exchange of abuses between Shamshad Hussain appellant and his step- mother Mst. Kaniz Fatima. Altaf Hussain deceased who was present their gave fists blows to the appellant. On hearing the alarm, Muratab Hussain and Talib Hussain Shah P.Ws. Came there and separated them. The acquitted accused also reached there and enquired from Shamshad Hussain appellant as to who had given him the beating whereafter they left threatening the deceased. After about an hour when Mukhtar Hussain complainant, his mother, his sister Mst. Kaniz Fatima, Nazir Ahmad P.W. And the deceased were present in their house the appellant came on the roof of their house through the house of one Zahoor and fired a gun-shot at the deceased hitting him in his chest and left arm. He died instantaneously. Mukhtar Hussain complainant left for the police station and lodged the F.I.R. Exh. P.D. With Mushtaq, S.I. At 12-30 p.m. On the same day, the distance between the spot and the police station being 12 miles.
' After recording the F.I.R. Mushtaq Ahmad, S.I. Reached the spot, prepared the injury statement Exh.
P.K. And inquest report Exh. P.L. Of the deceased. He also recovered empty cartridge P.3 from the roof of the complainant's Kotha through memo. Exh. P.F. He arrested the appellant and recovered from his possession gun P.4 through memo. Exh. P.J. In the presence of Abid Ali Shah and Jamait All Shah on 21-1-1977. The gun and the empty cartridge were sent to the Fire-arm Expert and according to his report Exh. P.N. The crime empty had been fired from the said gun.
4. Dr. Capt. Muhammad Aslam Butt, P.W.4 conducted the post-mortem examination an the dead body of Altaf Hussain deceased on 21-1-1977 and found the following injuries thereon:-
(1) Multiple small (countless) lacerated wounds with inverted edges, over the whole of the front of left chest in an area of 12" x 10"
(2) Multiple small (countless) lacerated wounds with inverted edges over the front and inner aspect of left upper arm and forearm in an area of 24" x 51/2".
' Left third rib was fractured under injury No,1 alongwith left pleura. There was multiple perforations under injury No,1 on the left lung, the heart and pericardium were also injured under injury No,1.
Large intestines contained faecal matter. The bladder contained about 4 ounces of urine. Injury No,1 was grievous and dangerous while injury No,2 was simple. Both the injuries were caused by fire-arms and were ante-mortem. The death was due to shock and haemorrhage resulting from injury No,l. The death was sudden. The time between death and post-mortem was 24 to 36 hours.
5. The appellant pleaded not guilty to the charge and denied the prosecution allegations. He attributed the case to enmity and did not call any evidence in defence.
6. The prosecution examined 11 witnesses to prove its case. Of them, Mukhtar Hussain, P.W.7 and Mst. Emina Bibi, P.W.8 furnished the ocular account. Mst. Kaniz Fatima and Nazir Ahmad the eye- witnesses were given up as unnecessary. Abid Ali, P.W.9 proved the recovery of empty cartridge P.3 from the spot and the recovery of gun P.4 from the possession of the appellant. Jamait All the other recovery witness was given up as having been won over. Mushtaq Ahmad, S.I., P.W.10 and Muhammad Rafique, Inspector, P.W.11 investigated the case.
7. Relying on the testimony of Mukhtar Hussain and Emina Bibi and Abid Ali the recovery witness, the trial Court convicted and sentenced the appellant as stated above. His co-accused were, however, acquitted .
8. Criticising the impugned judgment, learned counsel for the appellant states that Mukhtar Hussain P.W.7 and Emina Bibi P.W.8 are close relations of the deceased and were inimically towards the appellant and thus it was not safe to base conviction of the appellant on their testimony more particularly when they had been disbelieved against three co-accused of the appellant and further that it is contradictory to the medical evidence. It is next stated that the crime-empty and the recovered gun were sent to the Ballistic Expert with a delay of one month which adversely affects its value.
9. Mukhtar Hussain P.W.7 is real brother of the deceased while Mst. Emina Bibi P.W.8 is his mother.
The other two recovery witnesses namely Mst. Kaniz Fatima, sister of the deceased and Nazir Ahmed, a cousin of the deceased were given up. The relations between the parties were admittedly not cordial because the appellant's father had sent back his wife Mst. Kaniz Fatima to the house of her brother Mukhtar Husain complainant. The appellant had also divorced the sister's daughter of the complainant a few months prior to the occurrence. The alleged sale of tubewell by Arif Hussain, father of the appellant in favour of the complainant does not stand established. Only Mukhtar Hussain has deposed about the same. Neither any independent evidence nor any document has been produced to prove the sale of the tubewell in favour of Mukhtar Hussain complainant. On the other hand, Munawar Hussain, P.W.3 stated that Arif Hussain had installed a tubewell in the land of his father where it was working for 3 or 4 years and thereafter he installed it in the land of Ghulam Hussain Lambardar where it was working nowadays. The prosecution version that even on the day of occurrence a dispute had taken place between the appellant and Mst.
Kaniz Fatima over the payment of the price of the tubewell and their separation by Muratab Hussain and Talib Hussain Shah P.Ws. Does not stand established because neither Mst. Kaniz Fatima nor Muratab Hussain nor Talib Hussain were examined to prove the said incident.
Since the occurrence took place in the house of Mukhtar Hussain, therefore, his presence and that of his mother at the material time was quite natural but at the same time it cannot be said that whatever they are saying is nothing but the truth. Admittedly there was a bad blood between the parties over the divorce given by the appellant to the sister's daughter of the complainant and his father turning out Mst. Kaniz Fatima, sister of the complainant. It would, therefore, be legitimate to presume that the complainant party have not come out with true story and have concocted and fabricated the story so as to magnify the appellant's role. The medical evidence also does not support the ocular testimony. According to the eye-witnesses the appellant had fired at the deceased while standing on a roof but the injuries on the deceased were not found in downward direction but were located in front of chest and arm. According to the site plan the intervening distance between the place where the deceased was standing and the place from where the appellant had fired was three feet (sic) but inverted edges of the wounds of the deceased show that he was fired at from a close range.
10. From the above circumstances, it appears that in all probability there was a sudden flare up between the parties over the divorce pronounced by the appellant to the sister's daughter of the complainant and the turning out of Mst. Kaniz Fatima by the father of the appellant resulting in the occurrence. Accordingly, we think that the ends of justice will be met if the appellant is awarded lesser sentence provided by the offence of murder. We, therefore, alter his sentence from death to imprisonment for life and a fine of Rs, 20,000 or in default to undergo two years' R.I. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation.
' The appeal is dismissed with the above modification.
11. The death sentence is not confirmed.
' . Death sentence not confirmed.