JAVID IQBAL, C.J.----Noor Hussain son of Sultan Mahmood, aged 28, armed with .12 bore pistol, stands convicted and sentenced, vide judgment, dated 31-1-1982 of the Additional Sessions Judge, Sargodha as follows: He was convicted under section 302, P.P.C. For the murder of Ghulam Abbas, aged 50, and was sentenced to death plus fine of Rs.3,000 or in default to undergo four months' rigorous imprisonment with the direction that he should make payment of Rs.5,000 as compensation to the heirs of the deceased or in default thereof to undergo six months rigorous imprisonment. There were six co-accused of the convict, namely, Sher Muhammad, armed with Lathi, who had been charged along with the convict under section 302/34, P.P.C., and Sultan Mahmood father of the convict, Allah Ditta, Muhammad Hayat, Zafar 1qbal as well as Muhammad Yusuf, all closely related to the convict who were charged for conspiracy. These six co-accused have been acquitted.
Before us are Criminal Appeal No. 96 of 1982, reference for the confirmation of death sentence awarded to the convict, as well as Criminal Revision No. 200 of 1982 against acquittal of the six co- accused. All these matters are being taken up together and are being disposed of by this judgment.
2. The occurrence took place on 9-7-1980 at 7-30 a.m. Near the office of Housing Department Jauharabad at a distance of four miles from Police Station Khushab. Statement (Exh. P.E.) was made by Muhammad Hassan P.W. 11 son of the deceased, at 8-30 a.m. On the same day and it was recorded by Muhammad Saleem Khan S.I. (P.W. 14) near Ittehad Chowk at a distance of 50 Karams from Police Station Khushab where Muhammad Hasan P.W. Chanced to meet Muhammad Saleem Khan S.I. (P.W. 14). Or the basis of the aforesaid statement formal F.I.R. (Exh. P.E. /1) was registered at Police Station Khushab at 8-45 a.m. On the same day by Nazar Muhammad M.H.C. (P.W. 2).
3. The motive for crime as stated in the F.I.R. Is that one Muhammad Feroze brother of Zafar lqbal, and Muhammad Yusuf, acquitted co-accused, was murdered 819 years ago and in that murder case the deceased and Sanwal Khan Hamzulf of Muhammad Hasan (P.W. 11) were involved. But they were subsequently acquitted at the trial stage. It is stated that it was in order to take revenge of that murder that the present occurrence took place.
4. The prosecution has produced two eye-witnesses of the occurrence namely, Muhammad Hasan (P.W. 11) son of the deceased, and Muhammad Nawaz (P. W. 12) relative of the deceased. Both these witnesses are stated to be interested and hostile because of previous background of long- standing enmity between the complainant and the accused party. Two other eye-witnesses namely, Ujjal Khan and Mian Muhammad son of Ghulam Muhammad were cited in the F.I.R. But were given up as unnecessary. In respect of conspiracy statement was recorded of Ahmad Khan (P.W. 7) which has been disbelieved by the trial Court in paras of the judgment.
5. The appellant was arrested on 15-7-1980 (six days after the occurrence) by Muhammad Saleem Khan S. I. (P. W. 14). Sher Muhammad, Sultan Mahmood, Allah Ditta and Muhammad Yusuf, acquitted co-accused, were arrested on the same day by the same Police Officer. Muhammad Hayat and Zafar Iqbal, acquitted co-accused were arrested on 26-7-1980 by Nazir Ahmad A.S.I.
(P.W. 13). From the spot was recovered one crime empty (Exh. P.1) which was taken into possession vide memo. Exh. P. B., dated 9-7-1980. The attesting witnesses are Sultan Mahmood (P.W. 3) stated to be a relative of the deceased and hostile, Riaz Hussain (not produced) and Muhammad Saleem Khan S.I. (P.W. 14). At the instance of the appellant was recovered .12 bore pistol (Exh. P. 2), vide memo. Exh. P.C. Dated 29-7-19rs0. The attesting witnesses are Mian Muhammad son of Ghulam Hussain (P.W. 4) stated to be hostile, Muhammad Amir (not produced) and Nazir Ahmad A.S.I. (P.W.
13). There is also opinion of Fire-arms Expert (Exh. P.M.) at page 12 of the printed paper book which is positive but as pointed out by learned counsel for the appellant these recoveries have been disbelieved for the reasons stated in paragraphs 24 to 27 as well as 28 to 31 of the impugned judgment. The report of the Fire-arms Expert has also been rejected by the trial Court.
Consequently, the case of the prosecution is based entirely on the ocular testimony supported by the medical evidence and the motive.
6. In the F.I.R. The occurrence is reported to have taken place in the following manner. On the fateful day the deceased along with his son Muhammad Hasan (P.W. 11) and Muhammad Nawaz (P.W. 12), Ujjal Khan (not produced) and Mian Muhammad (not produced) took a bus from bus-stand Khushab and they arrived at bus-stand Jauharabad. Due to fear of their enemies, they proceeded towards the office of the Tehsildar from behind the Khokhas and leaving the main road. The deceased was a few Karams ahead of the rest. At the fateful time when they arrived near the spot, then from the Khokhas on the Northern side appeared the appellant armed as described above along with Sher Muhammad, acquitted co-accused, who was armed with Laths. Sher Muhammad, acquitted co-accused, raised a Lalkara to the deceased that they had come to avenge the murder of Muhammad Feroze and simultaneously the appellant fired a shot through his pistol which hit the deceased on the back left side. As a result the deceased fell down on the ground and died. The occurrence was witnessed besides Muhammad Hasan P.W. 11 by Muhammad Nawaz (P.W. 12), Ujjal Khan and Mian Muhammad (both not produced). The accused party managed to escape. The deceased was taken to the civil hospital, Jauharabad in an injured condition but he died on the way. It was also stated in the F.I.R. That in order to avenge the death of Muhammad Feroze the appellant and Sher Muhammad, acquitted co-accused, had attacked the deceased at the instigation, abetment and under the conspiracy of Sultan Muhammad, Muhammad Hayat, Allah Ditta, Zafar Iqbal, and Muhammad Yusuf, acquitted co-accused.
7. The appellant in his statement before the trial Court denied having participated in the occurrence. He stated that he had been falsely implicated due to enmity. Sher Muhammad, acquitted co-accused, also took the similar stand, whereas the other acquitted co-accused who had been charged for conspiracy likewise denied having participated in the conspiracy for the murder of the deceased and stated that they had been falsely implicated due to previous enmity.
The defence has produced two D.Ws., namely, Ch. Sultan Ahmad D.S.P. As D.W.1 and Malik Hakim Khan, Advocate as D.W.
2. Ch. Sultan Ahmad D.S.P. D.W. Stated in his examination-in-chief that he was entrusted with the investigation of this case by D.I.-G. Sargodha. He examined many persons of the locality including Malik, Hakim Khan, Advocate D.W. 2 and Mr. Abid. Husain Shah, S.1. (not produced) as witnesses. After the completion of the investigation he drafted his final report in the case diary. His finding was that the weapon of offence as well as the crime empty were result of police padding and that the appellant as well as Sher Muhammad, acquitted co-accused, were not present on the spot at the time of occurrence and that the alleged eye-witnesses had not seen the occurrence. Malik Hakim Khan, Advocate D.W. Stated that the occurrence took place when he was present in his chambers and he heard a fire shot report. He rushed to the spot. A bid Hussain Shah, S.I. Also rushed towards the spot. They found that a person was running away to the Railway Station, Jauharabad. Abid Hussain Shah, S.I. Ran after him. However, the culprit managed to escape. The victim had already expired on the spot. Wasim Kausar A.S.P. Jauharabad (not produced) also reached the spot. The A.S.P. Asked him about the identity of thin deceased person and none except this witness could identify him to be Ghulam Abbas. No companion of the deceased was present there. The dead-body was removed to the hospital on a truck under the custody of one A.S.I. None else accompanied the dead-body on the truck. No crime empty was found on the spot. He had given his statement before Ch. Sultan Ahmad, D.S.P. (D. W. 1).
8. Dr. Muhammad Afzal (P.W. 6) conducted the post-mortem examination of the dead body of the deceased at 9-30 a.m. On 9-7-1980 and found on his person a firearm wound in the chest cavity on the back left side of chest. Margins were black. In his opinion death occurred due, to substantive injury to the heart and left lung. The Injury was sufficient to cause death in the ordinary course of nature and it was caused by firearm.
9. We have heard learned counsel for the parties and carefully perused the record. The main argument which has been advanced by learned counsel for the appellant is that even if the motive were to be considered as valid at least the appellant was only remotely connected with the same.
Besides that it was submitted that the two eye-witnesses of the occurrence were not only closely related to the deceased but were-hostile and had motive to falsely implicate not only, the appellant but they implicated other members of the accused family in order to rope in as many members of that family as possible. It was next submitted that the other members of the accused family who had -been roped in for conspiracy were given the benefit of doubt and acquitted by the trial Court because Ahmad Khan P. W. Who had been produced in support of the conspiracy version was disbelieved by the trial Court. It was next submitted that the interested ocular testimony Learned in the instant case, was not corroborated by the recovery, evidence counsel argued that the defence version was plausible and should have been accepted because in support of the same two D.Ws. Were produced and the' defence consisted of their statements out of whom one was a responsible police officer of the rank of D.S.P. And the other was an advocate.
According to the defence version one Mumtaz Machhi had murdered the deceased and that in the course of investigation Ch. Sultan Ahmad D.S.P. D.W. Found the appellant not present un the spot and he had placed him in column No. 2. His investigation had been confirmed by Khan Taj Muhammad A.S.P. Furthermore Malik Hakim Khan, Advocate D.W. Had also stated that after hearing the shot when he rushed out, he could see that the culprit managed to escape while the deceased had fallen down as a result of the fire-arm injury He also stated that the appellant was not present on the spot Learned counsel wanted us to believe that since there is background of extreme enmity between the parties, they have falsely implicated the appellant, whereas the murder of the deceased had been committed by one Mumtaz Machhi. He conceded that substitution of particularly a single accused is a rare phenomena but in the instant case, he claimed that this has happened and that the case of the appellant from the very beginning was that he was innocent and that the murder had been committed by one Mumtaz Machhi. We have carefully considered the arguments of learned counsel for the appellant. It may be noted in this case that the occurrence took place at day-time on a really hot summer morning i.e. At 7-30 a.m. On 9-7-1980 near the office of Housing Department, Jauharabad which was a public place. The statement of Muhammad Hasan P.W. Son of the deceased was recorded at 8-30 a.m. On the same day near Ittehad Chowk 50 Karams from Police Station Khushab which was stated to be at a distance of four miles from the actual spot. Thus, evidently the F.I.R. In this case had been lodged within one hour of the occurrence by no other person except Muhammad Hasan P.W. Who is son of the deceased and who claims that he was an eye-witness of the occurrence as he had gone to the Court of the Tehsildar with his father. The version of Muhammad Hasan P.W. Is that the appellant who was armed with pistol fired a shot at the deceased which hit him at the back and as a result of the same the deceased fell down on the ground and subsequently died. This version is being supported by the medical evidence. The other co-accused who is stated to have been present along with the appellant at the time of the occurrence was Sher Muhammad armed with a Lathi but the said Sher Muhammad has not been attributed any other role except that he raised a Lalkara. Probably since proverbial Lalkara was attributed to him the trial Court proceeded to give him benefit of doubt and to acquit him. The five other co-accuses named by Muhammad Hasan P.W., in the F.I.R. Were not present on the spot j and they were, therefore, charged for conspiracy.
The accused party are all closely related to one another. The argument of learned counsel to the effect that the appellant was remotely connected with the motive has to be considered in the light of his relationship with the others. The position is that according to the motive version the murder had been committed of the deceased in order to take private revenge. The deceased had been implicated in the murder of Muhammad Feroze who was brother of Zafar lqbal and Muhammad Yusuf, acquitted co accused and that this murder had taken place 8/9 years before the present occurrence. It may be noted that Muhammad Feroze deceased happened to be the husband of the Phhuphi of the appellant. Learned counsel stated that the appellant's connection with the motive was remote for the reason that his brothers Zafar lqbal and Muhammad Yusuf had also been implicated by the complainant side and were charged for conspiracy. If it was a case of private revenge, then any of them namely, Zafar Iqbal or Muhammad Yusuf, acquitted co-accused, could have murdered the deceased. It was also submitted that the Phuphhi of the appellant was sister of Sultan Mahmood, Allah Ditta and Muhammad Hayat acquitted co-accused, and any of them could have also murdered the deceased in order to avenge the murder of their Behnoi (brother-in-law). We cannot accept this argument of learned counsel that the appellant should be considered as remotely connected with the motive simply for the reason that he was closely connected with the family of the lady whose husband C .Had been murdered at the hands of the deceased and consequently it does not make any difference as to whether he was somewhat remotely connected with the motive as compared to the others. We note that the trial Court had rightly given the benefit of doubt to Sultan Mahmood, Allah Ditta, Muhammad Hayat, Zafar Iqbal and Muhammad Yusuf co-accused and acquitted them of the charge of conspiracy because Ahmad Khan P.W. Was rightly disbelieved for the reasons stated in paras. 21/22 of the impugned judgment. We also agree with learned counsel that the appellant, in the instant case, was arrested six days after the occurrence, on 15-7-1980 but the recovery evidence in the form of crime empty (Exh. P. 1), on 9-7-1980 as well as .12 bore pistol (Exh. P. 2) at the instance of the appellant, on 29-7- 1980 and the Firearms Expert's report (Exh. P.M.) were rightly disbelieved or not considered reliable for the reasons given in paras 24 to 27 and 28 to 31 of the impugned judgment and page 12 of the printed paper-book. So now what we are left with is that there is ocular testimony of two witnesses who are closely related to the deceased and hostile on one side and there is the defence version on the other side. We have carefully gone through the testimony of the eye-witnesses, in the instant case, and also the defence version. It is a case in which F.I.R. Had been lodged promptly. It is furthermore a case in which a single person i.e. The appellant had been attributed a single shot which had hit the deceased and which eventually resulted in his death. It is a case of day-time occurrence at a public place. We are convinced in our mind that substitution of a single accused is definitely a rare phenomena. Had Mumtaz Machhi committed the murder of the deceased, in the instant case in day-light, we are sure that this fact must have been known to numerous people who had been present at the time of the occurrence in that area and also the complainant side would definitely have known that he was the real culprit. But in our view it is difficult to accept the version which has been advanced by the defence whatever be its significance. At this stage learned counsel also argued that if we were not persuaded by his reasoning that the defence version was plausible then we must consider the fact that the deceased had been implicated in the murder of the Phuphi's husband of the appellant 8/9 years before the present occurrence and that there are numerous authorities on the point that although generally speaking private revenge ought not be considered as a mitigating circumstance but in numerous eases it has so been considered and the lesser penalty has been awarded. In this connection reliance was placed on Ajun Shah v. The State PLD 1967 SC 185, Shera and others v. The State 1976 P Cr. L J 1028 and Zulfiqar and others v. The State 1974 P Cr. L J 100. We have examined these authorities. Numerous other authorities have been presented before us by learned counsel for the complainant side.
These authorities are submitted in order to show that private revenge by itself is not a mitigating circumstance and should not be considered as such. Reliance is being placed on Mokha v. Zulfiqar and others PLD 1978 SC 10 Mehr Muhammad and another v. The State 1970 SCMR 688 and Abdul Ghaffar v. The State 1973 SCMR 39. We are in agreement with learned counsel for the complainant that private revenge, as a general rule, is not to be considered as a mitigating circumstance because it amounts to taking the law into one's own hands. However, it depends 'upon peculiar circumstances of each and every case as to whether private revenge should in particular set of circumstances be considered as a mitigating circumstance or not, Learned counsel likewise pointed out that there are also cases wherein private revenge has been considered as an extenuating circumstance and death sentence has been converted into sentence of imprisonment for life but the amount of fine or compensation has been increased. Be that as it may, so far as the facts of the present case are concerned, there is background of previous enmity and murder feud between the parties. Admittedly the Phuphi's husband of the appellant was alleged to have been murdered at the hands of the deceased and one could say that in the circumstances of the case when private revenge was being taken after, the lapse of 8/9 years, we could still consider it as an extenuating circumstance. Consequently, in the light of the above discussion in our considered opinion case is made out for awarding lesser penalty to the appellant. The result is that while maintaining the conviction of the appellant under section 302, P.P.C., we alter his sentence from death to that of imprisonment for life. So far as fine is concerned, he has been awarded Rs.3,000 fine or in default thereof to undergo four months' rigorous imprisonment. He has further been awarded the sentence of payment of Rs.5,000 as compensation to the heirs of the deceased or in default to undergo six months' rigorous imprisonment. We enhance these senten--ces of fine and compensation from Rs.3,000 to Rs.10,000 or in default thereof to undergo six months rigorous imprisonment and from Rs.5,000 compensation to Rs.10,000 to the heirs of the deceased or in default to undergo one year rigorous imprisonment. With these modifications this appeal is dismissed. The sentence of death is not confirmed.