SARDAR MUHAMMAD DOGAR, J: -- Satia, aged 40 years, was tried by the learned Additional Sessions Judge, Faisalabad, for having murdered Ahmad Yar on 16-1-1987, a little before sunrise, in his shop in Chak No.613/G.B., at a distance of 21 k.m. From Police Station Tandlianwala, District Faisalabad.
The learned trial Judge vide judgment, dated 11-5-1988, convicted him under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.20,000, in default whereof to undergo R.I. For three years. He has also been directed to pay a sum of Rs.20,000 as compensation to the heirs of the deceased, in default whereof to undergo S.I. For six months.
2. The reference submitted by the trial Judge and the appeal filed by the convict are being disposed of together.
3. F.I.R. (Exh.P.E.) was recorded at the police station by Mumtaz Khan, Inspector/S.H.O. (P.W.9), at 10 a.m. On 16-1-1987, on the statement of Allah Yar (P.W.6).
4. According to F.I.R. The complainant alongwith his mother had come out of the house to bid farewell to Mokha (P.W.7), who had stayed with them for the night as a guest, a little before sunrise.
Ahmad Yar deceased had started saying morning prayers in the room of the house, where he had set up a grocery shop. While P.Ws. Were standing in front of the shop in the Bazar, the appellant came there armed with a gun. He entered the shop and fired at the deceased raising a Lalkara that the deceased is being taught a lesson for having cultivating illicit intimacy with his sister Mst. Bibi.
After firing shot, the appellant, succeeded in running away. The deceased, who had fallen in injured condition was taken to the hospital on a cot. However, he died before admission in the hospital. His dead body was brought back to the village.
Motive for the occurrence mentioned in the F.I.R. Is suspicion of the appellant about illicit intimacy of the deceased with his sister, Mst. Bibi.
5. Mumtaz Khan, S.H.O., after recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem, after preparing necessary papers and collected blood-stained earth as well as Mussalla (P.6) from the spot vide memos. Exhs. P.F. And P.G. Respectively. The appellant was arrested by him on 23-1-1987. Gun (P.5) got recovered by the appellant on the same day from a heap of chaff lying in his cultivated land was taken into possession by him vide memo. Exh. P.D.
Challan was submitted to Court after completion of necessary investigation.
6. Statements of 9 P.Ws. Were recorded at the trial.
7. Dr. Abdul Khalid, who had performed autopsy on 16-1-1987, at 3 p.m., appeared as P.W.2. He had noted a fire-arm wound of entrance 5 c.m. x 3.5 c.m., with burnt and lacerated margins on back, outer and lowest part of left side of chest and upper part of renal area. Corresponding tears in shirt and Bunyan were noted.
On dissection, peritoneum, kidney and intestines (small as well as large) were found injured.
Death was opined to have occurred due to shock and haemorrhage, resulting from the above-said injury, which was opined to have been caused within half an hour of the death, with fire-arm. Time between death and post---mortem was opined to be about 12 hours.
8. Ocular account was deposed to by Allah Yar (P.W.6) and Mokha (P.W.7).
Allah Yar P.W.6 after repeating the facts given by him in the F.I.R. Stated that the police on reaching the spot had taken into possession blood--stained earth and Mussalla (P.6) from the spot vide memos. Exhs. P.F. And P.G. Respectively. During cross-examination he admitted that Mokha P.W.
Was not related to them and was a resident of Chak No.396, at a distance of 6-7 miles from their house. Although he stated that Mokha P.W. Used to deal in purchase and sale of cattle yet admitted that he had not any appointment with anyone from his village for any bargain. He admitted that there were inhabited houses in front of the shop of the deceased as well as on both the sides. He stated that a. Few persons were present in the bazar at the time of occurrence and that many persons had witnessed the occurrence. According to him the accused had fired at the deceased from half Karam. He stated that the deceased had fallen back with head towards the East after receiving the fireshot and that his feet only remained on the Mussalla. He stated that he had taken the Lumberdar alongwith him for lodging the F.I.R. He denied the suggestion that their sister Mst. Bakhi had eloped with Ashiq resident of Shahkot and that they had involved the appellant falsely in the case, as he had helped Ashiq in that matter.
9. Mokha P.W.7 corroborated the statement made by P.W.6 about the actual occurrence and the Lalkara raised by the accused before firing at the deceased, that he had come to teach him a lesson for having illicit relations with his sister Mst. Bibi. During cross-examination he admitted that he had no appointment in connection with the business of cattle purchase and sale with any resident of the village on that night. According to him he had come to the house of the complainant on the previous evening at about sunset time and had stayed there for the night. He stated that he had also accompanied the complainant when he alongwith others had taken the deceased to the hospital at Garh. He denied the suggestion that his mother and mother of the deceased (Mst. Fatima P.W.) were real sisters.
Both the P.Ws. Denied the suggestion that they had not witnessed the occurrence and had made incorrect statements due to relationship and connections.
10. Rajab Ali who had identified the dead body at the time of post-mortem examination and had witnessed the recovery of gun P.5 at the instance of the appellant, appeared as P.W.5 and vouchsafed those facts. During cross---examination he admitted that his father-in-law was real brother of the father of the deceased and that his were's sister was married to Ahmad Yar deceased. He gave out that he had accompanied the complainant to the police station for lodging the report. While declaring that the deceased was of a good character, he admitted that he had been challaned in a murder case alongwith Wali Muhammad etc. He, however, expressed ignorance that he had abducted Mst. Sakina daughter of Maulvi Ghulam Sarwar of their village or that Riaz brother of Mst. Sakina had fired at him (the deceased) prior to the present occurrence.
Similarly, he expressed ignorance that the deceased had abducted Mst. Khurshido in October, 1986.
11. Mumtaz Khan, S.H.O. Who had registered the case and submitted the challan to Court after arrest of the accused, recovery of gun from him and after completion of necessary investigation, appeared as P.W.9 and gave the details of the investigation conducted by him. During cross- examination he admitted that the Mussalla taken into possession from the spot was not stained with blood. While admitting that the accused was produced before him by Bakhsha, he denied the suggestion that he (the accused) had not got recovered gun P.5 and that the same had been planted on him on being produced by Rajab Ali Lumberdar P.W.5. He denied the suggestion that he had fabricated a false story to involve the accused.
Statements of the remaining P.Ws. Are more or less of a formal nature.
12. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He took up the stance that he had been involved due to enmity with the P.Ws. He denied that he had got recovered gun P.5. Although he examined in defence Muhammad and Bakhsha as D.W.1 and D.W.2, yet declined to make statement on oath under section 340(2), Cr.P.C.
13. Muhammad D.W.1 stated that Allah Yar P.W. And Umra were with him at the time of occurrence in connection with the purchase of tube-well water and that Mumma Machhi of Chak No.613 had come there and informed them about the murder of Ahmad Yar. During the cross-examination he admitted that he had never appeared before any Police Officer nor deposed anywhere that story, prior to that day (when he made statement at the trial).
14. Bakhsha D.W.2 stated that he had produced the appellant before the police; that the accused had not led to the recovery of any gun and that in fact the gun had been provided by Rajab Ali Lumberdar, which was planted on him (the accused). During cross-examination he admitted that Mst. Hasnoli was sister of his father-in-law Qaim and Mst. Niamat was mother of the accused. He stated that he could not deny that Mst. Niamat was daughter of Mst. Hasnoli.
Both the D.Ws. Denied the suggestion that they had made false statements in order to save the accused.
15. Learned counsel for the appellant after having taken us through the evidence, criticised the impugned judgment and contended that the ocular account did not inspire confidence and that the evidence of recovery of gun P.5 at the instance of the appellant was not worth placing reliance upon.
16. Learned counsel for the State defended the judgment of the trial Court.
17. No doubt, Allah Yar P.W. Was real brother of the deceased and Mokha r P.W. Was resident of a village 6-7 miles away from the spot but their testimony cannot be discarded merely on that account, particularly so when there is no evidence on record to consider that they were inimically disposed towards the appellant in any manner.
The presence of Allah Yar P.W. In his own house early in the morning cannot be doubted. Had Mokha P.W. Been not at the spot, complainant would not have named him, for, he was neither closely related to the deceased nor had any other extraordinary special connection with him, for which he would have opted to appear as a false witness too. Mokha P.W. Had accompanied the complainant when he had taken the deceased in injured condition, alongwith others, to the hospital at Garh. Had he not been present at the time of the occurrence, he could not have been available to accompany the deceased to the hospital.
18. The argument of learned counsel for the appellant that the narration of the occurrence given by the eye-witnesses stands contradicted by the fact that Mussalla, on which the deceased was alleged to be standing to say prayer, when he was fired at, was not found stained with blood, is obviously because of misreading of the evidence; in that, P.W.6 during cross-examination clearly explained that the deceased after having, received injuries while standing on the Mussalla had fallen backward and his feet, had only, remained on the Mussalla. Obviously, blood of the deceased could not have fallen on the Mussalla. In fact, in such circumstances if Mussalla had been found stained with blood, an adverse inference could have been drawn.
19. We have examined the argument of learned counsel for the appellant that the complainant had purposely avoided to name independent persons as eye--witnesses. Firstly, those persons were not specified secondly, nothing was suggested as to for what reasons the complainant would have avoided naming them as eye-witnesses. In fact, the witness seems to have made that statement inadvertently, for, many persons could not have been present inside the shop when the occurrence took place. Moreover, if a large number of persons had witnessed the occurrence, the appellant would not have failed to produce them in defence, as he had opted to produce defence, and in fact had examined two persons from the village in his defence.
20. It is on record that the deceased had faced trial in a murder case and his sister Mst. Bakhi had been abducted by one Ashiq. Allegation was also levelled at the trial that he had abducted two different ladies, and a brother of one of the ladies had fired at him also, sometime before the occurrence. If the complainant had not witnessed the occurrence and was to lodge a false F.I.R. His choice would definitely have fallen on the complainants of the murder case, in which the deceased had faced trial, or Ashiq who had abducted their sister. In fact, he should also have thought of involving those persons, whose ladies, the deceased had abducted or at least Riaz who allegedly had fired also at the deceased for having abducted his sister. Such being the state of affairs, it cannot be assumed for any reason that the appellant who was not a known enemy of the deceased or his family, would have been chosen by the complainant to be named as accused, falsely.
21. In the circumstances, no doubt is left in our mind that the account furnished by P.W.6 and P.W.7 can be safely relied upon for maintaining the conviction of the appellant. The same finds support from the evidence of motive, the medical evidence and the evidence of recovery of gun at the instance of the appellant.
Except the fact that Rajab Ali P.W. Was related to the deceased through marriage, nothing else has been brought on record to show that he would have come up as a false witness. He was obviously, not an enemy of the appellant. In the circumstances, there is no reason to discard the evidence of recovery of gun.
The appeal filed by the appellant is dismissed and his conviction under section 302, P.P.C. Is maintained. However, we are not inclined to confirm the sentence of death as it was prosecution's own case that the appellant had committed the murder for vindication of family honour, in that, it is prosecution's own case that the deceased had illicit relations with his sister. The sentence of death is altered to imprisonment for life.
22. There is no evidence that the appellant was a man of means. The sentence of fine of Rs.20,000 and the direction to pay a sum of Rs.20,000 as compensation to the heirs of the deceased, in the circumstances appears to be inappropriate. The amount of fine is reduced to Rs.5,000 (Rs. Five thousand). The amount of compensation to be paid to the heirs of the deceased, is also reduced to Rs.5,000 (Rs. Five thousand). In default of payment of fine, he shall undergo R.I. For one year while in default of payment of compensation he shall undergo S.I. For six months. The fine, on recovery, shall also be paid as compensation, to the heirs of the deceased. The appellant shall also be given benefit of the provisions of section 382-B, Cr.P.C.