1. ' S. USMAN ALl SHAH, J.--Zafar Ali appellant alongwith his brother Malik Khan and their father Lal Khan, residents of village Bhal, P.S. Kallar Kahar Tehsil Pind Dadan Khan, District Jhelum were charged with the murder of Shahra Khan, their co-villager. The learned Sessions Judge, Jhelum convicted the appellant Zafar Ali under section 302 of the Pakistan Penal Code and sentenced him to imprisonment for life with fine of Rs,20,000 which on realization was ordered to be paid to the heirs of the deceased or in default to undergo further R.I. For 2 years. The learned Sessions Judge however, acquitted Malik Khan and Lal Khan from the charge of murder by giving them the benefit of doubt. The appellant's appeal against his conviction and sentence before the High Court was dismissed and the sentence and fine awarded to him was maintained. Criminal revision filed by the complainant for the enhancement of the sentence awarded to the appellant was also dismissed vide judgment dated 1-11-1978.
2. ' The prosecution case in brief is as follows:-- ' On 8-11-1974 Ahmad Bakhsh, mason, (P.W.8) was working at the village mosque and Zafar Ali appellant was supervising the work. At about Peshiwela the same day Shahra Khan deceased came and called the said mason into the street and asked him to do some job for him after he finishes his work in the mosque. The appellant took it ill and started abusing each other. Gulsher (P.W.11) intervened and took Shahra Khan deceased to his home. The appellant also left for his home. Soon after, the appellant along with his brother Malik Khan both armed with guns and their father Lal Khan armed with a spear, came in the field of Sawal Khan and raised "lalkara and abuses" to the deceased who was present in the courtyard of his house alongwith Gulsher P.W.11 and Feroze Khan P.W.9. The deceased went towards the eastern wall of the house when the appellant fired at him, hitting him on the right eye-brow, due to which he fell down. Malik Khan acquitted accused also fired two shots with his double barrel gun which missed the deceased and hit the wall of the house. The occurrence was witnesses by Lal Khan (given up) and Qassam Khan P.W.10, besides Gulsher P.W.11 and complainant Feroze Khan P.W.9. Both Lal Khan and Qassam Khan P.W.10 rebuked the assailants who decamped from the spot. The deceased was put on a cot but in a little while he expired. Complainant Feroze Khan while on his way to Police Post Buchhal Kalan met with A.S.I. Raja Akhtar Hussain P.W.12 at Bus Stand on the same day at 3.30 p.m. Who recorded his statement (Ex.P.A.) and on the basis of which formal F.I.R. (Ex.P.A/1) was registered in the Police Station Kallar Kahar.
3. ' A.S.I. Raja Akhtar Hussain P.W.12 reached the spot in the evening on the same day and found the dead body lying in the courtyard of the deceased on a cot. He prepared the injury statement (Ex.P.F.) and inquest report (Ex.PF/1) and sent the dead body to the mortuary for post-mortem examination. The A.S.I. Took into possession blood-stained earth from the spot and secured it into a sealed parcel vide memo (Ex.P.C.). All the three accused were arrested by the said A.S.I. The next day on 9-11-1974. The appellant produced his licensed gun to the I.O. Which was secured into a sealed cover (Ex.P.D). The site plan was prepared by the A.S.I. Through Nawab Khan draftsman (P.W.2).
4. ' The motive for the occurrence according to the prosecution is that three/four months prior to the occurrence Zafar All accused appellant had the suspicion that his wife Mst.Satten was having illicit connections with Shahra Khan deceased.
5. ' Doctor Asghar Hamid Qureshi (PW-1) conducted the autopsy on the dead body of the deceased on 9-11-1974 at 11 a.m. And found the following injuries:-
(1) Firearm wound 3/8" x 2-1/2" brain deep on the lower part of the right side of the forehead inside outer part of right eye-brow going to the left backward and slightly upward towards a point 7/8" above and in front of left ear where the deformed pellet was lying under the scalp over the temporal area.
6. ' The pellet was removed by incision and sealed by the doctor into a parcel. The margins were inverted but this entry wound did not show any blackening or scorching around the wound. Right eye-lids were bluish and swollen in an area 2-1/2" x 1-1/4" with subuntaneous haemorrhage inside the right eye.
(2) Multiple abrasions largest 4" x 1-1/2" and smallest 1/2" x 1/2" in area 101/2" x 6" over lower part of the back of chest and lumber area. The death in the opinion of the doctor was caused due to injury to brain and bleeding. Injury No,1 was fatal and was sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem. Injury No,1 was caused by a fire-arm while injury No,2 was caused by a blunt weapon or was possible during a fall on the hard surface. Probable time between death and the injuries were about 3-5 minutes and between death and post-mortem 18 to 24 hours.
7. ' After completion of the investigation all the three accused were challaned before the Sessions Judge to face their trial. They pleaded their innocence. The appellant at the trial denied that he ever suspected Shahra Khan of having illicit affairs with his wife and admitted that he himself produced his licensed gun to the police. The defence of Zafar Ali appellant was that "he had been implicated in this case, due to polluting of the spring by the working of the coal-mines, there was litigation with the mine-owners and Shahra deceased gave a written compromise to the mine- owners in the Court and on this all the villagers were against him and the appellant alongwith his brother and father were falsely involved in this case".
8. ' The prosecution in support of its case produced 12 witnesses and relied on the ocular testimony of Feroze Khan P.W.9, Qassam Khan P.W.10, Gulsher P.W.11, the recovery of a gun, motive and the medical evidence. The learned trial Judge disbelieved the suspected illicit relations of the deceased with the wife of the appellant but accepted the prosecution version that both the deceased and the appellant had exchanged abusive language after calling of Ahmad Bakhsh mason P.W.8 by the deceased to do some work for him after he finishes the work of the mosque.
9. The learned trial Judge found the case against Malik Khan and Lal Khan accused doubtful and were acquitted from the charge of murder by giving them the benefit of doubt. As the role attributed to them by the complainant and Gulsher P.Ws.9 and 11 was that Lal Khan raised a lalkara to the accused and Malik Khan fired two shots from his double barrel gun in quick succession which missed the deceased and hit the wall. None of the witnesses have deposed against these two acquitted accused that they had taken an effective role in the commission of the crime.
10. However, the learned trial Judge found Zafar Ali appellant guilty of the offence, convicted him under section 302, P.P.C. And sentenced him to life imprisonment with fine of Rs,20,000 to be paid on realization to the heirs of the deceased or in default to suffer further 2 years' R.I. Appeal of the appellant against his conviction and sentence before the High Court was dismissed by a Division Bench and the learned Judges agreed with the judgment of the learned Sessions Judge. The learned Judges of the High Court also dismissed a criminal revision filed by the complainant for the enhancement of the sentence of the appellant.
11. ' Special leave was given to the appellant Zafar Ali to appeal against his conviction and sentence of life imprisonment for the murder of Shahra Khan deceased which was confirmed by the High Court, to examine the question whether in view of the finding of the learned trial Judge with regard to what preceded immediately before the actual firing by the appellant his act would not fall under Exception I to section 300, P.P.C. And, therefore, the conviction should have been under section 304, Part I of the P.P.C.
12. ' According to the eye-witness Gulsher who stated that he was present with the deceased at his house when on hearing the lalkara, he went to the eastern wall of his house, the appellant fired at him with his gun with which he was hit on his eye-brow and fell down. Thus, the participation of appellant in the occurrence has been proved beyond any shadow of doubt. Now from the nature of the injury found on the dead body of Shahra Khan deceased a legitimate conclusion can be drawn that the appellant was not acting merely in exercise of his right of self-defence. Furthermore, in view of the fact that the appellant after having an exchange of abuses with the deceased came towards the house of the deceased, freely fired at him while he was present alongwith Gulsher P.W.
13. In his house i,e. In the house of the deceased unarmed. Hence, the appellant is not entitled to the benefit of Exception I of section 300, P.P.C. And sentence thereto, under section 304, Part I.
14. ' This is a case of no motive because the different motives advanced by the prosecution as well as by the defence have been disregarded by the Courts below. Admittedly, before the occurrence the deceased and Zafar Ali appellant had exchanged abuses on calling of Ahmad Bakhsh mason (P.W.8) who was busy in the construction of the mosque, in the street and asked him to do some work for him after he finishes his work in the mosque. The eye-witnesses whose presence is proved on the spot have charged the appellant for having fatal fire on the deceased with his gun. The circumstances of the case are such wherein the possibility cannot be ruled out that some overt provocative act might have been done by the deceased which attracted the appellant to go armed with a gun and fire at the deceased fatally. The benefit of this remote possibility has rightly been given to the accused and we considered that the sentence of life imprisonment with fine of Rs,20,000 or in default thereof two years' R.I. Was sufficient to meet the ends of criminal justice.
15. ' Under the circumstances, we do not find any merit in this appeal which is accordingly dismissed.