' KHIZAR HAYAT, J.-Criminal Appeal No, 409/83 the connected urder reference No, 122 of 1923, and Criminal Revision No, 788 of )84 seeking enhancement of fine imposed on the appellant are directed lainst the judgment dated 26-6-1983, passed by Sessions Judge, ianwali, whereby he convicted the appellant Ghulam Muhammad s/o hulam Hussain, 'caste Tarkhan, r/o 'Mohallah Saidanwala Wandi hundwali, di City, for the murder of Faiz Ahmad (40) committed 24.5.1982, and sentenced him to death and a fine of Rs,5,000/- in default to undergo 4 years R.I. The fine, if realised, was rected to be paid (as compensation) to the heirs of the deceased. e propose to dispose of these three matters by this single judgment.
2. Ghulam Muhammad (appellant) was married to Mst. Nur Bhari, ster of Ahmad Yar (PW 9) and in exchange thereof the appellant's ster Mst. Bakhat Bibi was married to Imtiaz; a nephew of Ahmad ar, some 31 years before the occurrence. The relations between itiaz and Mst. Bakhat Bibi were not cordial as they had no issue.
' Bakhat Bibi had, therefore, come to live with Ghulam Muhammad appellant) about three months before the occurrence.. The appellant id his wife Mst. Nur Bhari were, however, leading happy life and ey had two sons. The second son was born only 40 days before e occurrence at Mianwali in the house of the appellant . Faiz Ahmad leceased) after the death of his first wife married Mst.
Fateh Khatun, other sister of Ahmad Yar PW, by giving his daughter (from his evious wife) in marriage to Ahmad Yar PW. Muhammad Ramzan !Omplainant) nephew of the deceased lived in Pakka Ganjera about 1/35 miles away from the place of occurrence and Faiz Ahmad, ?Ceased, lived in village Shahwala district Sargodha.
3. The motive as stated by prosecution is that on 23.5.1982 (a ky before the occurrence) at Degarwela, Muhammad Ramzan (PW 8) hmad Yar (PW 9) along with Faiz Ahmad (deceased), Imtiaz and Dost {{PAGE CUT}} ' Muhammad P.Ws (not produced) visited the house of Ghulam Muhammad appellant, situate in Mohallah Wandi Ghundwali Mianwali City t persuade him to send his sister Mst, Bakhat Bibi to the house of he Husband Imtiaz. Ghulam Muhammad, appellant, was not present a his house at that time. He, however, came later and they told hit about purpose of their visit. The appellant did not agree to tha proposal and during the discussion he flared up at some point (no described) whereupon the deceased held him by his hair, however they were separated. No settlement was arrived at and Ghulan Muhammad, appellant, allegedly declared that he would not send hi! Sister Mst. Bakhat Bibi to the house of Imtiaz and that if the (complainant party) wanted to take Mst. Nur Bhari (his wife) witt them they were at liberty to do so. At this, they took Mst. Nui Bhari alongwith them and left by bus at 11 p.m. And reached their home in Wan Bhachran at mid-night. Next morning at 5 a.m. Before sun rise, Muhammad Ramzan complainant was washing his hands at the water pump in the house of Ahmad Yar PW when Ghulam Muhammad, appellant, arrived there with pistol in his hand and walked straight to Faiz Ahmad, deceased, who was, at that time, sitting on a cot in the courtyard and fired a shot at him hitting him on the chest as a result of which he fell on the ground and died then and there. Muhammad Ramzan (PW 8) and Ahmad Yar (PW 9) with the help of Imtiaz and Dost Muhammad PWs (not produced) caught him red-handed with pistol (Ex.P4). Meanwhile, Hayat and Khalid Masud also arrived. The complainant then leaving the appellant as well as the dead body in their custody went to police post Wan Bhachran and lodged report Ex.PA, recorded by Anwer Hussain Shah (PW 10) at 5.30 a.m. Who sent this statement to police station Musa Khel for formal registration of th'e case and he himself proceeded to the spot.
On the basis of Ex.PA formal FIR Ex.PA/1 was drawn up u/s 302 PPC by Manzur Ahmad Muharrir Head-Constable (PW 1) at police station Musa Khel at 7/15 a.m.
4. Reaching the scene of offence, the ASI prepared injury-statement of the deceased Ex. PH and inquest-report Ex.PJ and despatched the dead body to the mortuary with police escort. He removed blood stained earth from there and also picked up crime empty (P5) which were secured under memo Ex. PG and PF, respectively. He arrested the appellant, produced before him on the spot and also secured his pistol (P4) with live cartridges P5/1-2 vide memo Ex.PE. The pistol was unlicensed, therefore, he got a separate case registered against the appellant under Arms Ordinance. After the post-mortem examination, last worn clothes of the deceased and the packet containing pellets, sent by the doctor. Extracted from the wound were seized by him under memo Ex.PB. Blood-stained earth was found stained with human blood vide Serologist's report Ex.PM and the empty Ex.P5 to have been fired through pistol (P4) vide Fire Arms Expert's report Ex.PN. Having completed the investigation the appellant was challaned to Court.
5. Dr. Muhammad Akram Khan (PW 5) conducted post-mortem examination on the dead body of Faiz Ahmad at 5 p.m. On 24-5-1982 and noted the following injuries on it:-
(1) A curved bruise 5 cm x 15 cm on left side forehead.
(2) Abrasion 1 cm x 1 cm on upper portion of nose and abrasion 1 cm x 1 cm on right side of nose, left nostril was blood-stained.
(3) A lacerated wound 1/2 cm x 11 'cm on right side of head (vault) 10 cm above right eye and 11 cm from right ear.
(4) Eight fire-arm wounds of entry on front right side chest, 'starting from mid line reaching upto 4 cm to right nipple.
' In the opinion of the doctor, death occurred due to shock and haemorrhage and cardiac failure due to injury No, 4 which was ante-mortem and was sufficient to cause death in the ordinary course of nature, probable time between injuries and death was immediate and between death and post-mortem 6 to 8 hours.
6. At the trial prosecution examined ten witnesses in all. It mainly relied on the testimony of eye- witnesses namely, Muhammad Ramzan (PW 8) and Ahmad Yar (PW 9) who stated the motive and also about their having captured the appellant on the spot and snatching of pistol (P4) from him; the evidence of Dr. Muhammad Akram (PW 5) who deposed to that the deceased had died of gun shot injuries; and the reports of Serologist and the Fire-arms Expert.
7. The appellant in his statement under section 342, Cr.P.C. Did not dispute the time and place of occurrence and also the death o the deceased by firing. He also admitted his presence on the spot, but denying the motive he explained that when his wife was willing going with him to his house whom the complainant party had brought his absence from his house a day earlier the deceased objected to kit, whom he started beating. At this Ahmad Yar PW advanced, towards him with a loaded pistol. He grappled with him and in the process the pistol went off and the bullet hit Faiz Ahmad deceased accidently. He went to the police and informed all about it but they involved him falsely in this case. The appellant produced two witnesses in defence, namely, Muhammad Aslam H.C. (DW 1) and Ghulam Rasul, Muharrir Head constable (DW 2). Their evidence need not be discussed as it has no bearing on the case.
8. Learned trial Judge considering the material on record in detail discarded the defence thoery being not reasonably probable and also not fitting in the circumstances of the case and held the appellant guilty under section 302, P.P.C. As according to him the appellant had a grudge against the deceased due to previous night's incident; the F.I.R. Was lodged promptly; and he being the sole accused had been apprehended red-handed on the spot.
9 Learned counsel appearing on behalf of the' appellant argued that prosecution witnesses have made deliberate improvement at the trial as to the motive part of the story in order to make it appear as a premeditated murder. He stated that he would not subscribe to the plea of the appellant raised at the trial that the deceased was hit with the shot fired from pistol held by Ahmad Yar PW, which accidentally went off during the scuffle as the same was not reasonably possible. He, however, argued that there is sufficient material on the record suggesting that the appellant's wife Mst. Nur Bhari had been brought to Ahmad Yar's house on the night preceding the morning of occurrence from the house of the appellant in his absence, in order to pressurise appellant to divorce her, and that the appellant also arrived there just after them and when his wife was willingly going with him, the deceased blocked their way unjustifiably and in the heat of moment and under grave and sudden provocation the appellant fired at the deceased as a result of which he was killed hence the offence committed by the appellant would not be murder but culpable homicide not amounting to murder. In the alternative he submitted that if it is found that the appellant is guilty of committing offence of murder then exacting the extreme penalty, at least, in this case is not called for. Learned State counsel assisted by learned counsel for the complainant have defended the impugned judgment.
10. We have considered the contentions of the learned counsel and perused the record with their assistance carefully.
11. The occurrence took place in the house of Ahmad Yar (PW 9). His presence at the time of occurrence was, therefore, natural. His presence is not even denied by the defence. Muhammad Ramzan (PW 8), nephew of the deceased, lodged the F.I.R. Within half an hour of the occurrence. His presence on the spot is established beyond any doubt. We have therefore no hesitation in believing them as for the main occurrence is concerned i,e, the deceased had died as a result of shot fired at him by the appellant. Appellant's plea that the deceased was hit with a bullet which 'got fired from the pistol held by Ahmad Yar P.W. During scuffle not only is highly improbable but absurd and that is why the appellant's learned counsel thought it fit to abandon the same. We may point out that had Ahmad Ya been armed with a pistol then he would have conveniently shot the appellant down when he (appellant) on his own showing, was bus beating the deceased with a soti. Furthermore, If the appellant was really carrying a soti at the time of occurrence then he would have naturally used it against Ahmad Yar P.W. Instead of grappling with him ,on seeing that he was advancing towards him with a loaded pistol.
12. The contention of the learned counsel that the appellant was suddenly and gravely provoked as the deceased blocked his way when his wife was willingly accompanying him for going to his house, appears to be without force as Mst.Nur Bhari has not been produced to support the plea.
Assuming without conceding that the decease stood in their way empty handed objecting to the going of Mst. Nu Bhari with the appellant to our mind neither constituted gray provocation nor it otherwise provided slightest justification for the appellant to shoot him to death. Resultantly we find that the appellan has been rightly found guilty of committing offence of murde punishable under section 302, P.P.C. And we maintain the same.
13. This brings us to the question of sentence. The story of the prosecution that the deceased accompanied by Muhammad Ramzan complainant (P.W.8) and Ahmad Yar (P.W.9) had gone to the house of the deceased a day before the occurrence for bringing appellant's sister Mst. Bakhat Bibi to the house of her husband Imtiaz but had instead brought Mst. Nur Bhari, his wife, when he refused to send Mst. Bakhat Bibi and asked them to take away his wife if they so desired, does not ring to be true for various reasons, i,e,, this story does not find mention in the F.I.R.; Ahmad Yar (P.W.8) conceded that he did not tell this story during the investigation and had stated it for the first time at the trial. He admitted to have not told to police in the investigation that during talks (held at appellant's house) Ghulam Muhammad appellant got flared up with Faiz Ahmad deceased and that he mentioned this fact only at the trial. He denied {{PAGE CUT}} o have got recorded in his police statement Ex DB that "the motiv or the murder was that Ghulam Muhammad accused had felt annoyed n account of our taking away his wife without his consent" but on onfrontation it was fourid recorded in Ex DB. All these facts indicate hat the complainant party at the trial introduced the story that the isited appellant's house, on the day preceding the day of .Occurrence, o bring Mst. Bakhat Bibi but instead of her they brought Mst.Nu :hari, wife of the appellant with his permission which is falsified ue to omission in the F.I.R. And by the admissions made by Ahma ar P.W. About his making improvements at the trial. By readin )etween the lines of statement of Ahmad Yar P.W. a son-in-law o he deceased, it appears to us that the complainant party had brough st. Nur Bhari carrying 40 days old baby in her lap from the hous f the appellant in his absence, therefore, the question of appellant's ,etting flared up with the deceased or the deceased having pulled is hair does not arise. This means that the appellant's visit t hmad Yar's house was to take back his wife and not for killing faiz hmad. The carrying of pistol by him is also explainable, that is, he ight have carried it with him to defend himself against any aggression.
Eeping all these facts in view, we find that it was not a pre-maditated urder but it all occurred at the spur of the moment, therefore, the ppellant is entitled to the lesser penalty. Consequently, we alterL is sentence from :death to imprisonment for life. The sentence of ine is, however, maintained.
The result is that the appeal is dismissed; nd the death sentence is, commuted. Pie sentence of death is not! Onfirmed.
' For the same reason we dismiss complainant's revision petition .Eeking enhancement of fine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.