RIAZ AHMAD, J.-- Appellant Shauqeen son of Noor Muhammad alongwith Muhammad Ayub his step-brother was tried by the learned Additional Sessions Judge at Pakpattan on the charge under section 302, read with section 34, P.P.C. For having committed the murder of Muhammad Boota deceased. Vide, judgment dated 18th of February, 1986, the learned Additional Sessions Judge found only appellant guilty on the charge under section 302, P.P.C., while the co-accused Muhammad Ayub was acquitted. The appellant was convicted on the aforesaid charge, and was sentenced to death, and to pay a fine of Rs. Ten thousand, or in default whereof, to undergo rigorous imprisonment for a period of 1-1/2 years. The appellant was further directed to pay compensation amounting to Rs. Ten thousand under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default thereof, to suffer another term of rigorous imprisonment for a period of six months.
2. The appellant was also convicted under section 13 of the Arms Ordinance for 'having kept an unlicensed carbine and was thus sentenced to undergo rigorous imprisonment for one year.
3. Aggrieved by his convictions and sentences, the appellant has preferred two appeals, viz. Criminal Appeal No. 107 of 1986 assailing his conviction on the charge under section 302, P.P.C. And Appeal No. 108 of 1986 to call in question the conviction under the Arms Ordinance. The case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeals as well as the Reference.
4. The unfortunate occurrence resulting into the death of Muhammad Boota deceased took place on 1st of June, 1984 at 9-00 a.m. In the area of Chah Jeday Wala Dakhli Rakh situated at a distance of six kilometers from Police Station Malka Hans. Occurrence was reported at 10-30 a.m. Vide F.I.R.
Exh.P.B. Which was lodged by Ghulam Nabi P.W.2 father of the deceased Muhammad Boota, and the same was recorded by Muhammad Rafique Sub-Inspector C.WA
5. In brief, the complainant Ghulam Nabi P.W.2 stated in the F.I.R., that he was a resident of Kalu Wala, and was an agriculturist by profession. He had three wives, namely, Saira Bibi, Mst. Noor Hussain and Noor Bibi. No issue was born out of the wedlock of the complainant with Saira Bibi, while out of the wedlock of the complainant with Mst. Noor Hussain two daughters were born, out of them, Fakhran Bibi had died, and the other Mst. Sharaf Elahi was a married girl. Out of the wedlock with 3rd wife Noor Bibi, deceased Muhammad Boota aged 18/19 years, Muhammad Tayyeb aged 13/14 years, Muhammad Khan aged 11/12 years and a daughter Nighat Parveen aged 8/9 years were born. Previous husband of Noor Bibi, namely, Haider A.I had died 20/21 years before the occurrence, and out of the wedlock between Haider A.I and Noor Bibi, Muhammad Umar aged 25/26 years, Muhammad Ashraf aged 22/23 years and Muhammad Akram aged 20/21 years were born. One Noor Muhammad son of Ibrahim resident of Chah Jeday Wala had married one Noor Begum widow of Sher Muhammad against the wishes of the complainant, and therefore, the complainant and Noor Muhammad were not on speaking terms with each other. 3/4 months before this occurrence, aforesaid Noor Muhammad had propagated that Muhammad Boota deceased son of the complainant had illicit liaison with Mukhtar Bibi daughter of Noor Muhammad, and the deceased used to visit the house of Noor Muhammad in their absence, and if Boota deceased did not mend his ways, he would be killed. On the fateful day at 9-00 a.m. Deceased Muhammad Boota having loaded his tractor with a bag of fertilizer was coming towards his land.
When he reached near the house of appellant Shauqeen in the area of Chah Jeday Wala, Noor Muhammad armed with .12 bore gun, appellant Shauqeen armed with pistol .12 bore and Ayub son of Sher armed with pistol .12 bore were standing near an open door which had no planks. On the sight of the deceased, Noor Muhammad raised Lalkara that the deceased should not be spared, and he fired a shot with his gun hitting the right arm of the deceased. Appellant also fired a shot with his pistol hitting the right chest of the deceased. Ayub acquitted co-accused also fired shot with his pistol hitting the abdomen of the deceased, who fell down from the tractor. The tractor in running condition stopped at a distance of one Acre near a Khal. In the meanwhile, Muhammad Ashraf and Muhammad Akram who were present in their field nearby also reached at the scene of the occurrence. Other residents of the village also reached the scene of occurrence. The appellant and the acquitted co-accused ran away from the spot, while deceased Muhammad Boota succumbed to his injuries there and then.
6. On 2nd of June, 1986 at 7-00 a.m., Dr. Muhammad Nasar Dilshad P.W.1, Medical Officer Tehsil Headquarters Pakpattan Sharif conducted the post--mortem examination on the dead body of the deceased, and noticed the following injuries on his person:- (1)A fire-arm wound circular 4 x 4 c.m. On the back of upper part of right h_ arm. The wound was through and through the muscle of the area. Margins of the wound were inverted, and inlet was there. The exit wound was on the inner side of upper part of right upper arm. The margins here were everted and outlet there. A cover piece of the Kartus was found in this wound. The outlet exit wound was 4-1/2 c.m. x 4-1/2 c.m. And circular.
(2)A fire-arm wound 4 x 4 c.m., chest cavity deep on the right side of chest above and slightly to the right of nipple. Margins were inverted and inlet -wound was there. A cover piece of Kartus found in the course of inlet.
(3)A fire-arm exit wound `one mark of pellet' the wound margins were everted. Total eight marks of pellets inside the skin. The area of the skin above these marks was darkened. These pellets marks were in an area of 10 cm. x 8 c.m. On the back of upper part of the left chest.
(4)Eight fire-arm wounds mark on the front of abdomen above ambilicus and were just skin deep in an area of 10 x 8 c.m.
Ribs Nos. 3 and 4 of right side of the chest were fractured. On the left side ribs Nos. 5 and 6 of back were fractured. Pleura was pierced through by pellets. Right and left lungs were pierced by pellets.
Pericardium and heart were pierced through by pellets, liver ryas ruptured in its part. Death in the opinion of the doctor had occurred due to shock and haemorrhage caused by injuries to the vital organs, specially due to injury No.2 which was sufficient in the ordinary course of nature to cause death.
7. On 3rd of June, 1984 appellant was arrested by Muhammad Rafique, Sub-Inspector C.W.4. On 12th of June, 1984 the appellant while in police custody led the police and got recovered a pistol P.1 and crime empty P.2 from a heap of bricks lying in his house. The same were taken into possession vide memo. Exh.P.E. Attested by Insaf C.W.2 and Shakir (not produced) besides the Investigating Officer Muhammad Rafique Sub-Inspector C.W.4.
8. In course of investigation of this case, the police found the acquitted co---accused Ayub and Noor Muhammad innocent. Dissatisfied with such findings of the police, complainant Ghulam Nabi P.W.2 instituted a private complaint stating therein, that on account of conspiracy, the police was letting off Noor Muhammad and Ayub, whereas, in fact, they were the culprits. It was further stated in the complaint, that with a view to destroy the case of the complainant, another person, namely, Shamma was being implicated, who was innocent. The said complaint was sent to the Magistrate to hold an enquiry under section 202 of the Cr.P.C.
9. To substantiate its case, the complainant at the trial produced Muhammad Akram P.W.3 an eye- witness while Muhammad Ashraf another eye--witness named in the F.I.R. Was given up.
10. In addition to the reliance placed upon the ocular testimony, the evidence as to the motive, and also the evidence as to the recoveries of pistol and empty from the appellant, and the opinion of the Forensic Science Laboratory Exh.P.M. According to which, crime empty P.2 had been fired from the crime weapon, viz., the pistol P.1 were also relied upon.
11. During his examination under section 342, Cr.P.C, the appellant denied the charge, and made the following statement:- "I am son of Noor Muhammad co-accused. Noor Muhammad's daughter Mst. Mukhtar Bibi is my sister. I live in a separate house than Noor Muhammad accused (since dead). Noor Muhammad found Boota deceased with Mukhtar Bibi in objectionable position in his house, when Noor Muhammad (since dead) under sudden and grave provocation killed Boota deceased. I was not present at the spot. I have been falsely involved due to my relationship with Noor Muhammad accused (since dead)."
12. The appellant also entered the witness-box in his defence under section 340, Cr.P.C. And stated that he was innocent, and was not present at the spot, and lived in a separate house from the house of Noor Muhammad his father. He further added that he was a married man, and had been involved due to his relationship with Noor Muhammad co-accused his father.
13. With the assistance of the learned counsel for the appellant, the complainant and the State we have carefully perused the entire evidence oh record of this case, and we have also heard the various contentions raised by both sides at length.
14. It was argued by the learned counsel for the appellant that the evidence of the complainant Ghulam Nabi P.W.2 and Muhammad Akram P.W.3 could not be relied upon, because both the witnesses were close relations of the deceased; and were thus interested witnesses, therefore their evidence qua Ayub co-accused had been disbelieved, therefore, it would be unsafe to act upon the testimony of these eye-witnesses for sustaining the conviction of the appellant.
15. It was next contended that the medical evidence in this case belied the eye-witnesses, inasmuch as, injuries Nos. 1 and 2 on the person of the deceased could be caused by one shot, therefore, the eye-witnesses' account was improbable
16. The learned counsel for the appellants also highlighted discrepancies between the statements of the eye-witnesses, and it was contended, that P.W.2 Ghulam Nabi stated that the appellant and the co-accused were standing together at the time of occurrence, while according to P.W.3 Muhammad .Akram, the acquitted co-accused Ayub was standing in a street at the time of occurrence, therefore, it was not possible to believe their statements, because no correct inference could be drawn as to who had caused the particular injury.
17. Our attention was drawn to the site plan, and it was argued, that from points Nos.4 and 5 nothing could be discerned as to which of the assailants inflicted a particular injury.
18. It was further argued that the acquitted co-accused Noor Muhammad was declared innocent by the police, therefore, the prosecution case was highly doubtful, and in view of such ocular account, conviction of the appellant could not be sustained.
19. It was also contended that according to complainant Ghulam Nabi, all the assailants were standing in front of the tractor at the time of occurrence, whereas according to P.W.3 only Ayub acquitted co-accused was standing in front of the tractor and other two including the appellant were standing on the northern side of the tractor at the time of occurrence.
20. It was further strenuously argued that injury No. 4 could not have been caused, if the deceased in fact was sitting on the driving seat while driving it.
21. It was further contended that according to the complainant, all the assailants fired at the deceased simultaneously, while P.W.3 stated that the assailants fired one after the other.
22. The prosecution was also blamed for its inability to produce any independent witness from the vicinity and it was therefore, argued that it was unsafe to rely upon such eye-witnesses.
23. The evidence as to the recovery was also criticized and it was argued that Insaf C.W.2 witness of the recovery of pistol was not a resident of a nearby place, and therefore, his testimony was not sufficient in the eye of law to be relied upon.
24. After anxious consideration, we regret to agree with the learned counsel for the appellant. It was a broad daylight occurrence, the F.I.R. Was lodged promptly, and the recovery of tractor and the bag of fertilizer from the spot supported the prosecution version, therefore, we arc of the view, that the occurrence did take place in the manner as described by the complainant. Next crucial question is whether these eye-witnesses had seen the occurrence. In our view, P.W.3 Muhammad Akram had seen the occurrence, because, he was working in the nearby field. It may be stated here that in all crimes it is the assailant who knows that he has to launch an attack while the witnesses nearby cannot be burdened with the knowledge, nor they can anticipate an attack, and therefore, to expect the narration of event with mathematical precision by such eye-witness is a far-fetched expectation. Question for determination in such like cases is, whether such witnesses could have been present. Our answer to this question in the context of the case is that P.W.3 Muhammad Akram was a natural witness, and was present at the spot, and was attracted to watch the occurrence after hearing the fire shots. In this view of the matter, we repel the contention raised by the learned counsel for the appellant. Absence of any blood stains on the tractor is hardly a circumstance, like the discrepancies as pointed out by the learned counsel for the appellant to doubt the prosecution case. After sudden attack, behaviour of the victim of attack is to be judged in the light of the shock which such victim would receive. Recovery of tractor and bag of fertilizer goes a long way to show that the appellant was driving the tractor while having loaded it with the bag of fertilizer, therefore, absence of blood stains on the tractor cannot demolish the prosecution case.
25. As far as discrepancies are concerned, these are not material, because an eye-witness of any calibre is bound to err, inasmuch as, it is not possible to expect that in anticipation of the attack, he would be keen and ready to watch and note all the details of an attack, such as, directions and angles from which an attack might be launched.
26. In the peculiar circumstances of the case by following the rule of prudence which has developed into Rule of Law, we would look for corroboration, and in our view, ample corroboration exists on the record in the; form of the recovery of pistol and the crime empty at the instance of the 'F appellant. According to the report of the Forensic Science Laboratory, the empty had been fired from the said pistol. As far as Insaf C.W.2 recovery witness is concerned, we have gone through his statement carefully, and we do not find any flaw in the same, nor anything exists on the record to infer that Insaf C.W.2 is telling a lie. We may further observe here, that as far as injury No.4 is concerned, the same was attributed to the co-accused Ayub, who was given the benefit of doubt by the learned trial Judge, therefore, we would not further comment upon the conflict between the ocular testimony and the medical evidence.
27. Adverting to the defence plea, we are unable to believe the same. The I occurrence had taken place in the morning time, and if at all, there had been any truth in it, the tractor would have been found parked, whereas, after the fall of the Boota deceased from the driver's seat, the tractor in a running condition stopped near the Khal, therefore, we are unable to believe that Boota deceased had gone to commit the sexual intercourse with Mukhtar Bibi as alleged by the I appellant. In this view of the matter, we repel the defence plea.
28. Upshot of the above discussion is that the prosecution has successfully I established its case beyond any shadow of doubt against the appellant. However, the sentence of the appellant requires consideration, inasmuch as, illicit liaision of the deceased was suspected with Mukhtar Bibi and the appellant Shauqeen motivated by the sense of family honour had committed the crime.
Commission of crime out of such sense is a mitigating circumstance, and therefore, we would decline to confirm the sentence of death, instead, we alter the same into life ,I imprisonment.
Accordingly this appeal is dismissed with the modification in the sentence as stated above.
Reference i,: answered accordingly. We may further observe that the sentence of fine and the award of compensation as directed by the learned trial Court stands maintained. However, the appellant shall be entitled to the benefit under section 382-B, Cr.P.C.
29. Adverting to the conviction of the appellant under the Arms Ordinance, we are of the view that the prosecution has successfully established its case on the II aforesaid charge against the appellant. Recovery of weapon stands proved on the record of the case, and the same, therefore, cannot be doubted. Accordingly, we maintain the conviction and sentence of the appellant on the aforesaid charge. Accordingly, this anneal is dismissed. However, we direct that both the sentences of the appellant under section 302, P.P.C. And under the Arms Ordinance would run concurrently.
M.Y.H./S-476/L