' SARDAR MUHAMMAD DOGAR, J.--- Zahoor Hussain (17/18) was tried by Additional Sessions Judge, Sargodha, for having murdered Muhammad Riaz on 15-7-1989 at 1-00 p.m. In front of his shop under the tup in the Abadi of Chak No,75 Shumali, at a distance of 14 kilometres from Police Station Jhal Chakkian, District Sargodha.
' Vide judgment, dated 25-8-1990, he was convicted under section 302, P.P.C. And sentenced to death plus to pay a fine of Rs,10,000, in default whereof to undergo R.I. For two yeaRs, He was also directed to pay a sum of Rs,20,000 as compensation, to the heirs of the deceased, in default whereof to undergo 6 months' imprisonment.
2. The appeal filed by the convict and the Reference made by the learned trial Judge for confirmation of death sentence are being disposed of together.
3. F.I.R. Exh.P.D. Was registered at the police station by Muhammad Anwar Khan S.H.O. (P.W.8) on 15- 7-1989 at 4-15 p.m., on the statement of Muhammad Yaqoob (P.W.7).
' According to F.I.R., the complainant was sitting in his shop in the village. His brother, Muhammad Riaz (deceased), was sitting under the tup in front of the shop. The appellant came there at 1-00 p.m. Armed with a gun and declared that he will not spare Muhammad Riaz. Simultaneously, he fired a shot which struck Muhammad Riaz on the right shoulder. Some pellets hit the neck also.
Thereafter, he ran towards the village school.
' The occurrence, apart from the complainant was witnessed by Ahmad Bakhsh and Sher Muhammad P.Ws. The P.Ws. Sent for a wagon from the wagon-stand and took away Muhammad Riaz to Civil Hospital, Sargodha. However, he died there before any medical aid.
' About motive for the occurrence, it is stated in the F.I.R. That Zahoor suspected illicit connections of the deceased with his sister Mst. Nusrat alias Nusro, who had died 7/8 years prior to the occurrence.
4. Muhammad Anwar Khan S.H.O. After registering the case visited D.H.Q. Hospital, Sargodha, and despatched the dead body for post-mortem examination after preparing injury statement and inquest report. Thereafter, he went to the spot and collected blood-stained earth from there vide memo. Exh.P.E. "Moors", on which the deceased was sitting when he was fired at, was also taken into possession vide memo. Exh.P.F. The same was stained with blood. He also picked up empty cartridge P.6 lying there and took the same into possession vide memo. Exh.P.G. He recorded the statements of the witnesses and carried on the investigation.
' The appellant was arrested by him on 20-7-1989. Gun P.7 got recovered by the appellant on the same day from his house, was taken into possession by him vide memo. Exh.P.H. Challan was submitted to Court after completion of necessary investigation.
5. Statements of eight P.Ws. Were recorded at the trial.
' Dr. Muhammad Khalil Akhtar, who had performed autopsy on 15-7-1989 at 5-45 p.m. Appeared as P.W.4. He had noted following injuries on the body of the deceased:--
(1) Lacerated wound of entry 1 x 1 c.m. Margins inverted on right side of neck 4 c.m. From the midline.
(2) Lacerated wound of entry 1-1/2 x 1-1/2 c.m. Margins inverted on back of right upper most chest 9 c.m. From the midline.
(3) Lacerated wound of entry 1 x 1 c.m., margins inverted on back of right upper chest 4 c.m..Below injury No,2.
(4) Lacerated wound of entry 1 x 1 c.m. On back of right upper chest at the junction of chest and shoulder.
(5) Lacerated wound of entry 1-1/2 x 1-1/2 c.m. On back of right upper chest 13 c.m. From midline.
(6) Lacerated wound of entry 1-1/2 x 1-1/2 c.m. On back of right middle chest 10 c.m. From injury No,5.
(7) Lacerated wound of entry 1-1/2 x 1-1/2 c.m. On back of right shoulder middle part.
(8) Lacerated wound of exit 1 x 1 c.m. On back of right shoulder lower part 5 c.m. Below the injury No,7.
(9) Lacerated wound of entry 1 x 1 c.m. On left side of neck 10 c.m. Below left ear.
(10) Lacerated wound of exit 1-1/2 x 1 c.m. Margins everted on left side of neck 5 c.m. From injury No,9.
(11) Two lacerated wounds of entry each measuring 1 x 1 c.m. On tip of left shoulder.
' On dissection, he had found tissue muscles and blood vessels injured. Pleura was found ruptured and both lungs were found torn into pieces. Four pellets removed from the body, were handed over by him to the police.
' Death was opined to have occurred due to shock and haemorrhage resulting from injuries Nos.1-5, 6-9 and 10. All the injuries were opined to have been caused by a fire-arm. Time between the injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within 1-1/2 houRs,
6. Ghulam Muhammad, Constable who had been entrusted the parcels containing blood-stained earth and empty cartridge, on 18-7-1989 and deposited the same in the laboratory, appeared as P.W.1 and stated so. He also stated that he had been entrusted a sealed parcel containing gun on 26-7-1989 by the Moharrir for onward transmission to the Forensic Science Laboratory, Lahore and he had done that. During cross-examination he admitted that he had deposited the parcels of blood-stained earth and empty cartridge on the following day, i,e. 19-7-1989, as the same had been entrusted to him on the previous day at 5-00 p.m. He declared that the parcel containing gun was deposited by him in the Laboratory on 27-7-1989 for similar reasons. He claimed that so long the parcels had remained with him, nobody had tampered with them.
7. Muhammad Yaqub P.W.7, who had lodged the F.I.R. While repeating the narration of occurrence, stated with clarity that when the accused had raised a Lalkara, the deceased had attempted to save himself while sitting on a Moora and in that process the shot had struck him on the neck. He also claimed to have witnessed the collection of blood-stained earth, blood-stained Moora and empty, from the spot. He further claimed that gun P.7 was recovered from the appellant in his presence.
' During cross-examination, he admitted that the occurrence had taken place in a thickly inhabited Chowk of the village. He admitted his relationship with the P.Ws. Including the eye-witnesses. He denied the suggestion that he was not partner in the shop of the deceased and had falsely laid claim that he used to work in the shop. The suggestions that none, including himself, had witnessed the occurrence; that the F.I.R. Was lodged some time late after consultations at the spot and that the recoveries of empty and gun were planted, were denied by him.
8. Sher Muhammad P.W.6 while corroborating the statement made by P.W.7 about the actual occurrence, claimed that he had witnessed the occurrence when he had come out of his house alongwith Ahmad Bakhsh P.W. He also admitted his relationship with the complainant and Ahmad Bakhsh P.W. During cross-examination he denied the suggestion that he used to cultivate the land of Muhammad Hayat, and reside at the Dera in his land. While denying the suggestion that neither he nor the other P.Ws. Had witnessed the occurrence, he also denied the suggestion that the deceased had been struck by more than one shots. Like P.W.7 he denied the suggestion that the shot had come from the side of the Haveli of Shabbir. He stated that the police had reached the spot at 7-00\ p.m. And told him that they would register the case if he takes oath on the Holy Qur'an about the guilt of Zahoor (appellant) and that they (police) had registered the case when he had taken such oath.
9. Muhammad Anwar Khan, Inspector/S.H.O. Who had registered the case, investigated the same and submitted challan to Court after arresting the appellant and taking into possession the gun got recovered by him, appeared as P.W.8 and gave the details of those facts. During cross- examination he denied the suggestion that during the investigation at the spot, version was put forth that some unidentified assailant had fired shots from inside the Ihata of Muhammad Shabbir, uncle of the appellant. He denied the suggestion that he had recorded the F.I.R. After preliminary investigation. The suggestion that he had fabricated the evidence of collection of empty from the spot, and recovery of gun from the appellant, was denied by him.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
10. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He produced in defence copy of Khasra Girdawari (Exh.DA.) about cultivation of the land of Muhammad Hayat by Sher Muhammad P.W.6. He declined to make statement ort oath under section 340(2), Cr.P.C.
11. Learned counsel for the appellant after having taken us through the evidence, canvassed for acquittal of the appellant on the ground that the eyewitnesses do not appear to have witnessed the occurrence and that he was named merely on the basis of suspicion and surmises. While pressing the point that the eye-witnesses do not appear to have witnessed the occurrence, he placed reliance on the evidence of the doctor who had performed autopsy. It was contended by him that injuries Nos.1 and 9 on the neck of the deceased could not have resulted from the shot which had caused injuries Nos.2 to 8.
' Apparently, the argument appears to be attractive because looking from the skiagram, one had got to grant that injury No,9 (entry wound) on the neck, could not have resulted from any pellet of the shot which had resulted in injuries on the back of right scapula/shoulder. However, on deeper examination and after hearing detailed arguments of learned counsel for the parties, we came to the conclusion that the doctor expressed opinion about the wounds being "entry' or "exit", without proper data and without applying his mind consciously. In that, he noted injury No,8 on the back of right shoulder also to be an exit wound. We have failed to understand as to how that injury could be "exit wound". The pellets which would have caused injuries Nos.2 to 7, could not have made "exit" in between them as "exit wound". We also took notice of the fact that the doctor while noting that injuries Nos.1 to 3 were having inverted edges, did not care to note the nature of the edges of the other wounds, except of course, injury No,10. In fact, he did not even note that the edges of injury No,9 were inverted.
' Still another aspect is that injuries Nos.9 and 10 were so close to each other that it would be expecting too much of a coincidence that one of them would be exit wound while the other would be entry wound, particularly so when there was no aperture, or entry wound on the opposite side.
' Learned trial Judge had also taken this fact into account, and came to the conclusion that some mistake appears to have been committed by the doctor while describing the wounds as "entry wound" and "exit wound".
For all the reasons noted above, we find no disparity or contradiction j of the ocular account by the medical evidence.
12. In this case the F.I.R. Was lodged with such a promptitude that the post-mortem was also performed within 4 hours and 45 minutes of the occurrence. Obviously the post-mortem was conducted after the F.I.R. Had been recorded, and the dead body had been shifted to the hospital after preparation of necessary documents, i,e. Injury statement and inquest report. Some time, naturally must have been taken by the concerned quarters to shift the dead body from the spot to the hospital, which was at a distance of about 14 k.m. That being so, it cannot be assumed that a person who had not witnessed the occurrence, could have pinpointed the assailant, fabricated a story and selected the eye-wtinesses as well, so as to lodge the report so quickly.
13. Yet the other aspect is that there was no enmity whatsoever between the eye-witnesses and the appellant. In fact, nothing such was alleged.
14. The contention of learned counsel that the complainant was not sharing the shop with his deceased brother, was just a stroke in the wilderness. The deceased was done to death while sitting outside the shop. He would not have left the shop alone. Even if it be assumed that the complainant was not a regular shareholder, he might have been present there at least to help his brother.
15. The mere fact that the witnesses were related to the deceased, is no.
16. The ocular account, which inspires confidence, further finds sound corroboration from the wedding of the gun recovered from the appellant, with the empty picked up from the spot on the very first day. The empty had been deposited in the Forensic Science Laboratory at Lahore before the recovery of the gun. As such there was no chance of fabrication of that evidence.
' For all the reasons noted above, no doubt is left in our mind that the ground to discard their testimony. Prosecution has been able to prove the case against the appellant beyond reasonable shadow of doubt. His conviction under section 302, P.P.C. Is, therefore maintained.
17. However, we are not inclined to confirm the sentence of death, as it was prosecution's own case that the appellant suspected the deceased of having brought bad name to their family, by cultivating illicit connections with his sister. He, thus, appears to have acted in furtherance of family honour.
' At the time of trial the appellant was 17/18 years old. He would, thus be 16/17 years of age at the time of occurrence.
18. Taking into account all such facts, we feel, sentence of imprisonment for life, in this case, will meet the ends of justice. The sentence of death awarded to the appellant is, therefore, altered to imprisonment for life.
19. The appellant was a young man. There is no evidence that he possessed sufficient property to pay a sum of Rs,20,000 as compensation. The same is reduced to Rs,5,000 (Rs, five thousand) in default of payment of which, he shall suffer S.I. For six months.
' However, the fine, on recovery, is also directed to be paid as compensation to the heirs of the deceased.
' Benefit of the provisions of section 382-B of the Code of Criminal Procedure shall be extended to the appellant.
Sentence reduced.