1. MUSHTAQ HUSSAIN, J. Muhammad Aslam, aged 21, son of Ghulam Haider has been convicted under section 302 of the Pakistan Penal Code by the learned Sessions Judge, Lyallpur by his order dated 4-11-1970 and has been sentenced to death for having killed Muhammad Nawaz, aged 35, at mid-night between 29/30-7-1969 in Chak No. 304/J. B. On the roof of the house of the deceased. By the same order he has been convicted under section 13 of Arms Ordinance, 1965, and sentenced to undergo one year's rigorous imprisonment. Ghulam Haider, the father of the appellant and the co- accused, was acquitted by that order of the charge against him. The appellant has filed Criminal Appeals No. 773 and 867 of 1970 against his conviction under section 302, P. P. C. And the Arms Ordinance and the case is also before us under section 374, Cr. P. C. For confirmation of the death sentence.
2. The prosecution story is that a few days before the occurrence, Ghulam Sarwar and Muhammad Aslam were fighting. Muhammad Nawaz deceased caught hold of Muhammad Aslam appellant and gave hint a severe beating at the spot. Muhammad Aslam nursed this grudge against him. On the fateful night, Muhammad Nawaz deceased and Muhammad Aslam son of Sardar Muhammad complainant (P. W. 13) were sleeping as usual on the roof of their residential kotha. At about 12-30 in the night Aslam P. W. Was awakened by the sound of gunfire and a shriek from his brother Muhammad Nawaz deceased. Muhammad Aslam P. W. Raised a hue and cry. It was a night of the full moon and in that light, the complainant saw the appellant running away towards the north from the cot of Muhammad Nawaz deceased, He was armed with a gun at that time.
3. Simultaneously, he heard the voice of Ghulam Haider father of the appellant asking the latter to jump down immediately if he had done his job. The appellant ran towards the kotha of Nazar Muhammad son of Nizam Din and having crossed it jumped into the bazar. He was seen running also by Khalil Ahmad and Nazar Muhammad P. Ws who were sleeping in their house. The appellant then vanished into his own house. Khalil Ahmad, Nazar Muhammad and the complainant went to the cot of the deceased and found that he has sustained an injury on the left side of his chest which continued to open in his back. The deceased was unconscious, but they thought that he might still be alive and, therefore, they placed him on a cot and Muhammad Akram, Muhammad Sadiq, Nazar Muhammad and Nazir took him towards the dispensary at Gojra. Muhammad Nawaz died in the way and, therefore, they repaired to the police station where Muhammad Aslam P. W.
4. Lodged F. I. R. (Exh. PA) at 2-25 a.m. And the same was recorded by Sultan Ahmad, Sub-Inspector (P. W. 15).
5. Sultan Ahmad (P. W. 15) prepared the injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He then proceeded to Chak No. 304/J. B. And inspected the spot, collected blood-stained earth from the roof of the house of Nawaz deceased and sealed it into a parcel. An empty .12 bore cartridge was also found on the same roof, i.e., of, Nazar Muhammad and Khalil Ahmad P. Ws. Which he took into possession ride memo. Exh. P C and went through other form alities. On 8-8-1969, the appellant led the Sub-Inspector accompanied by Ghulam Rasool and Khan Muhammad P. Ws to his house in the village and produced gun P. 2 from behind an iron box in the kotha which was taken into possession by the witness vide memo. Exh. P D. The investigation having been completed, the case was challaned with the result already indicated above.
6. The appellant denied all knowledge of the occurrence and the recovery and claimed to be tried.
7. The prosecution produced. 16 witnesses in all in support of its case. The defence produced none.
8. Dr. Masood Faruki, Medical Superintendent of the Civil Hospital Gojra appeared as P. W. 1 and testified to having performed the post---mortem examination on the dead body of Muhammad Nawaz. He found the following injuries on the dead body:-
(1) Gun shot wound on the front of the chest 1----- x 1----- rounded situated just below the nipple level, three inches from the middle level. The margins of the wound were irregular and slightly blackened. A piece of amentum was protruding out of the wound (entry).
(2) Irregular gunshot wound on back of lower part of the right side of the chest 1" x ----- with everted margins (exit).
9. He was of the opinion that death was due to the gunshot wound, which was sufficient in the ordinary course of nature to cause immediate death. He was also of the opinion that the death took place immediately after the receipt of the injuries. It follows, therefore, that the death of Muhammad Nawaz occurred on account of wounds sustained by him in consequence of a gun having been fired at his chest and that his death took place immediately on receipt of the injuries.
10. Out of the eye-witnesses named in the F. I. R., Nazar Muhammad, the father of P. W. 14 Khalil Ahmad, was given up. Muhammad Aslam (P. W. 13) who is a brother of the deceased, and is also related to the appellant gave an eye-witness account of the occurrence and faithfully supported the statement already made by him in the F. I. R. He was cross-examined at length by more than one learned counsel and except for inconsequential and very minor discrepancies nothing could be elicited from him. For example, he did not remember if he had told the Sub-Inspector that the appellant was aiming the gun at his brother when he awoke. Again he stated that he did not mention the word Gullu before the police when refer--ring to Ghulam Haider, but the F. I. R. Did contain a mention of the word Gullu. These are of no consequence whatsoever. We have, therefore, no hesitation in accepting his version of the story as correct.
11. Khalil Ahmad appeared as P. W.
14. He is uncle's son of the deceased. He also supported the prosecution story in detail. He was similarly cross-examined. Learned counsel for the appellant laid great stress on his admission in the cross-examination that the appellant caught the parapet with his bands and lowered down his body along the wall and then jumped down. At that time, the gun was in the hand of the appellant. He submitted that this was inconsistent with the statement of P.
12. W. 13 who had only stated that on hearing the voice of his father, the appellant had simply jumped down into the bazar and took his gun. We do not find any difference between the two statements.
13. The first witness did not mention the manner in which he jumped down and the second witness bas mentioned it. This can hardly be called a discrepancy.
14. Learned counsel for the appellant has submitted that although it was supposed to be a night of the full moon but the date was the 30th of July, 1969, which falls in the rainy season. He was of the view that nights are cloudy in those days and, therefore, the mere fact that it happened to be the night of the full moon would not help in identification and the statement of the witnesses that they had seen Aslam appellant in the light of the moon was therefore, not to be given any credence. No question was put in this behalf during the cross-examination and there is no suggestion on the entire record before us that the sky was overcast on that unfortunate night. We cannot draw the inference which the learned counsel wants us to do because we have no material on which we can base it. On the other hand, all the witnesses have stated that it was the night of the full moon and that they had identified Aslam in the light of the moon. That being so, we have no option, but to assume that the moon was shining.
15. Learned counsel for the appellant has also laid great stress on the short span of time in which the entire incident took place and was over. The witnesses got up from deep sleep because of the sound of the fire and it was in a split second that Aslam made good his escape. It is urged that he could not have been identified because it takes a person some time, after getting up from sleep, to adjust himself to the environment and to regain the full use of his sight. This again is not a universal rule. Some-- persons are light sleepers, others are not. Be that as it may. Aslam had to go up the roof of the adjoining kotha which is admittedly several feet higher than the roof on which the incident took place and all this takes time. We do not find any difficulty in believing that the witnesses had the oppor--tunity of seeing the appellant fully and have identified him.
16. It has also been submitted that no one saw him firing. This is correct. The fact, however, remains that he was seen with a gun in his hand near the bed of the deceased immediately after the sound of firing was heard and only a single shot had been fired. There was nobody else on the roof nor was anybody else seen running away from the roof. He was called by his father by name and his father is not said to have had a gun and he was standing in the galli down-stair. In these circumstances, it was not necessary that the witnesses should have seen the appellant actually firing the gun at the deceased.
17. Learned counsel for the appellant then referred to the recovery of the gun and the crime empty. He submitted that the crime empty was not mentioned anywhere in the F. I. R. Which was otherwise a detailed docu--ment. We know that the occurrence took place at night and an empty cartridge is but a very small article. There was nothing unusual in its having been missed at first sight. It was also submitted that Mr. Mufti Munir (P. W. 2) Examiner of Firearms stated before the Court that the main spring of the weapon in question (gun P. 2) which gives force to the hammer of the weapon to strike the firing pin was missing. The location of the spring is such that it cannot be removed accidentally, but in order to remove it a definite effort of the person is required who opens the machinery of the weapon for that purpose. However, the test empties were prepared from the weapon in question Exh. P. 2 by exerting the hit of a hammer on the hammer of the gun and thus transmitting the force required to explode the cartridge which otherwise would have been done by the main spring mentioned above. It was submitted by learned counsel that it was incredible that the appellant should have taken such an unserviceable weapon to commit a murder and then would have used a hammer or some other extraneous object for firing a cartridge from it. This submission assumes that the gun was in this condition at that time when it was used by the appellant. There is no evidence to the effect that it was in that condition. The weapon was not recovered from the spot. It was recovered on the morning of 5-8-1969, i.e. Five days after the occurrence-and anybody in the house of the appellant might have tinkered with it meanwhile. The mere fact, therefore, that the expert found the spring missing does not detract from the correctness of the prosecution case that the crime-empty found at the spot which has been proved to have been fired through this gun by the evidence of P. W. 2 had, in fact, been so fired.
18. It was also suggested that the implication of Ghulam Haider the acquitted accused is proof of the fact that the not was being thrown too wide, Nothing incriminating was found against Ghulam Haider and he has been acquitted. A State appeal against its acquittal has been rejected by this Court on the ground that if Ghulam Hyder was standing is the bazar and he asked that boy to come down after he had fired the gun it did not mean that of necessity the father had crime with the son or there was any pre-concert between them. The firing of the shot might have awakened the father who was sleeping in a neighbouring house and who upon seeing his son missing from his bed might have come out into the bazar to find out his whereabouts. He must have then heard commotion on the roof and thinking that his son was there might have called him out. We are afraid we do not agree with the suggestion of the learned counsel in this behalf either.
19. We, therefore, find that the appellant has been rightly convicted under section 302 of the Penal Code on the charge levelled against him.
20. Learned counsel for the appellant has drawn our attention to the motive for this offence and has in this connection referred us to the statement of Ghulam Sarwar (P. W. 9) and in particular to the following portions at page 35 of the paper-book:- "Nawaz did not inflict any stick to the mother of Aslam accused. I did not state before police that Nawaz deceased gave stick blows to the mother of Aslam. (Confronted so recorded in portion A to A in Exh. D. A.) Aslam was given stick blows by Nawaz at his buttocks. I do not know how many stick blows were given by Nawaz to Aslam. At that time Nawaz was having white clothes on his body.
21. When Nawaz gave stick blows to Aslam, loin cloth of Aslam fell down and in the same condition he was given some blows. Then some women arrived and Nawaz stopped beating him to enable Aslam to wear his chadar. Aslam, is F. A. Fail. It is incorrect that only Aslam gave me beating. Both gave blows to each other. I do not remember, if I stated before the police that I also gave blows to Aslam. (Confronted. Not so recorded in Exh. D. A.) I stated before the C. M. That I said to Aslam that he should not take bath as it was his way of doing things. (Confronted. Not so recorded). I do not remember, if I stated before the C. M. That on receiving injuries loincloth of Aslam fell down and in the same condition he was given blows. (Confronted. Not so recorded) Ghulam Mustafa is my uncle from biratheri. Khan Muhammad is not related to me. Khan Muhammad was, not related to Nawaz deceased."
22. He has submitted that the manner in which he was beaten and he became naked because his chadar fell down and he had no shirt on, the observation of the Supreme Court in Ajun Shah's case (PLD 1967 SC 185) that- "A man is after all a creature of his environment. His action, therefore, must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation still the above circumstances maybe taken into account for imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty." is fully apposite to the facts of this case. We agree with him. The appellant is a young man, has been educated in a college, was berated by the deceased in public with a stick in the presence of women, he became naked as his chader fell down and the violence continued despite that. We are, therefore, of the view that this murder was committed out of the sense of honour and self-respect obsessed as he was with the thought of the abject humiliation to which he had been put. We, therefore, decline to confirm his sentence of death sand setting the same aside sentence him to transportation for life.