MUHAMMAD SIDDIQ, J.------The brief facts of the case as alleged by the prosecution are that on 13-6-1972, Ghulam Sarwar complainant due to some domestic dispute gave beating to his wife Mst. Iqbal Bibi, who is the sister of Anwar. For that reason she got annoyed and went to her parents house who are living in the same village. On 14-6-1972 at about 7 a.m. When said Ghulam Sarwar was ploughing his land, the said Anwar, brother of his wife alongwith his servant Sher Muhammad, present appellant, came there. Anwar who was armed with a hatchet gave him a blow with the wrong side of that hatchet on the head of the complainant while Sher Muhammad appellant gave him a few slaps. This beating was given to him because one day earlier he had slapped and beaten Iqbal Bibi, the sister of Anwar. The complainant immediately came to his house and conveyed the whole occurrence to his uncle Allah Yar deceased. At about noon time, Allah Yar sent for Sher Muhammad appellant and, when he came the deceased admonished him as to why, he being a servant, had given beating to Ghulam Sarwar complainant. In retaliation the appellant abused the deceased also and challenged him that he would teach him a lesson for abusing his.
The appellant then went away and returned after a shortwhile armed with gun Exh. P.
1. He challenged the deceased and then fired at him hitting him on his right flank. Mst. Safia Bibi P. W.
Who was at that time sitting quite close to the deceased, also received some pellet injuries with the same shot. Allah Yar deceased on receipt of the injury fell down from the cot. The appellant is alleged to have run away from the place of occurrence. Besides Ghulam Sarwar complainant the occurrence was witnessed by Mst. Safia Bibi, Razia Bibi and Ashraf A.I P. Ws. Leaving Allah Yar in injured condition, Ghulam Sarwar P. W. Left for the Police Station. When he reached the Bus Stand of the Chak, he found Yousaf Shah, Head Constable present there. He made a statement Exh. P. A.
Which was recorded by the said Head Constable. After recording the statement H. C. Yousaf Shah P. W. Forwarded the statement Exh. P. A. To Police Station Musa Khel where formal F. I. R. Was registered at 5 p.m. On the same day namely 14-6-1972. He himself immediately proceeded towards the spot. He found that Allah Yar had already expired. He accordingly prepared his injury statement Exh. P. C., inquest report Exh. P. D. And despatched the dead body to the mortuary for post-mortem examination. He collected blood--stained earth from the spot, took into possession and sealed into a parcel vide memo. Exh. P. B. Lie got prepared site plan Exh. P. F. From Gul Khan P.
W. On 16-6-1972. He arrested the present appellant from Bus Stand of Chak No. 31/D. B. At that time he is alleged to be in possession of gun Exh. P. 1 and two live cartridges Exh. 12/1-2 which the Investigating Officer took into possession vide memo. Exh. P. K. He got medically examined complainant Ghulam Sarwar and Mst. Safia Bibi. After the usual investiga--petition the police challaned the present appellant under section 302, P. P. C. For the murder of Allah Yar. The appellant was tried by the Sessions Judge, Mianwali, who vide impugned judgment dated 20-12- 1973, found him guilty under section 302, P. P. C. For the murder of Allah Yar and sentenced him to death subject to confirmation by this Court. The appel--lant was also ordered to pay Rs. 1,000 under section 544-A, Cr. P. C. As compensation to the heirs of the deceased. The appellant has challenged his conviction and sentence through the present appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment will dispose of both the criminal appeal as well as the murder reference.
2. Dr. Muhammad Aslam Khan on 15-6-1972 at 10 a.m. Performed the post-mortem examination on the dead body of Allah Yar and found the following injuries on it :-
(1) A fire-aim wound of entry 1--'' x --'' on the right side of the abdomen and intestines were lying out side the wound and gangerenous.
(2) Four fire-arm wounds of exit on the lumbo sacral region in an area of 1--'' x 1'', size was --'' x --'' to --'' x --''.
All the organs were found healthy, except abdominal cavity was full of blood and contents of stomach and intestines etc. Peritoneum was ruptured. Abdominal walls were lacerated. Stomach was punctured and empty. Small intestines were punctured. Large intestines were healthy and full of faecal matter. Bladder was healthy and full of urine. In the opinion of the doctor, the death had occurred due to shock and haemorrhage as a result of injury No. 1, which was sufficient in the ordinary course of life to cause death. The probable time between injuries and death was about within 8 hours and between death and post-mortem examination was from about 18 to 24 hours.
3. Lady Doctor Mrs. Ghulam Rasul Khan on 15-6-1972 medically examined Mst. Safia Bibi P. W. And found the following Injuries on her person.
(1) A lacerated wound about 1/3'' x 1/3'' on left fore-arm in middle 1/3rd anteriorly.
(2) A lacerated wound about 1/3'' x 1/3'' on antremedial side of left arm 2--'' above cubital fossa.
4. Dr. Muhammad Ahmad on 16-6-1972 at 11-15 a.m. Medically examined Ghulam Sarwar complainant and found the following injuries on his person:-
(1) A lacerated wound --'' x --'' x 1/32'' on the top of head situated 5'' above the left ear and 7'' behind the left eyebrow.
(2) Two abrasions on the right side of neck 1--'' x 1/3'' and 1 1/3'' x 1/8'' res--pectively, the distance between them being --''. They were parallel and situated 2--'' below the right ear.
(3) An abrasion --'' x 1/16'' on the left side of neck, situated 2'' below the left ear.
All the injuries were simple caused by a blunt weapon, the duration of which was about 2-3 days.
5. Sher Muhammad appellant, when examined under section 342, Cr. P. C. Denied the prosecution allegations. When asked why this case was made against him, he stated as under :- "I had come to Chak No. 31/D. B. To offer Fateha on the death of Mst. Dost Bibi, mother of the deceased, about 4 or 5 months prior to the occurrence because I had family relations with the complainant. Anwar etc. There I developed friendship with them and therefore, stayed on in the Chak. I used to live in the baithak of Anwar's house and also used to help Anwar and Allah Yar (deceased) in their field work as their friend and not servant. Two or three days before the present occurrence Ghulam Sarwar P. W. Saw me talking with Mst. Iqbal Bibi P. W. And he suspected some foul relationship between us on which he gave beating to his wife Mst. Iqbal Bibi and turned her out.
On the day of occurrence at about 8 or 9 a.m. In the morning, Anwar, Ghulam Sarwar, Allah Yar and myself were sitting in the courtyard of Allah Yar deceased, when hot words were exchanged between Ghulam Sarwar and Anwar over the beating given to Mst. Iqbal Bibi P. W. They both grappled with each other. I took side with Anwar and inflicted a sots blow on the head of Ghulam Sarwar P. W. Anwar ran and brought his licensed gun from his nearby house and wanted to shoot Ghulam Sarwar when Allah Yar deceased intervened and tried to snatch the gun from Anwar.
During this scuffle gun went off and hit Allah Yar deceased and Mst. Safia Bibi who had also come there on hearing the commotion."
When asked if he had anything else to say, he replied as under :- "I did not kill Allah Yar or injured Mst. Safia Bibi. On the other hand, Ghulam Sarwar and his whole baradari and Ghulam Muhammad Lambardar, father of Anwar, got together and in order to save Anwar made me a scapegoat and fabricated a false story against me. I was present at the spot when the police came during the night and they secured me on that very day."
The appellant, however, did not produce any defence evidence.
6. In support of its case, the prosecution has relied upon the testimony of 3 eye-witnesses, namely, Ghulam Sarwar (P. W. 7), Safia Bibi (P. W. 9) and Razia Bibi (P. W. 10). The main version of the prosecution case has been given by Ghulam Sarwar P. W. Allah Yar deceased was his uncle being real brother of his father. Mst. Iqbal Bibi was his wife while Mst. Razia Bibi P. W. Was his sister. His wife Mst. Iqbal Bibi is the sister of Anwar, Razia Bibi P. W. Was married to said Anwar. According to Ghulam Sarwar P. W. He gave beating to his wife Mss. Iqbal Bibi on 13-6-1972 on account of some domestic dispute. Due to this beating she went to the house of her parents. When on the following day he was ploughing his land in the morning Anwar, brother of said Mst. Iqbal Bibi, alongwith his servant Sher Muhammad appellant, came there. Anwar gave a blow with the wrong side of the hatchet on the head of Ghulam Sarwar P. W. While Sher Muhammad is alleged to have given slaps to him. In the meantime Mst. Sardaran Bibi, mother of Ghulam Sarwar P. W., came there and separated them. Ghulam Sarwar claims to have come to his house immediately and complained against Anwar and Sher Muhammad appellant to his uncle Allah Yar deceased. At about noon- time Allah Yar sent for Sher Muhammad appellant and when be came he was admonished by Allah Yar deceased as to why he being a servant had given beating to Ghulam Sarwar P. W. The deceased further abused the appellant who in retaliation abused the deceased and challenged him saying that he would teach him a lesson, for those abusing. According to the version of Ghulam Sarwar the appel--lant then left and after a while returned armed with gun Exh. P. 1 and challenged the deceased and fired at him hitting him on his right flank. Mst. Safia Bibi P. W., who at that time was sitting close to the deceased, also received some pellet injuries with the same shot.
Allah Yar after receiving the injury fell down from the cot. The appellant then ran away. Mst. Razia Bibi, Mst. Safia Bibi and Muhammad Ashraf P. Ws. Also witnessed the occurrence. Leaving Allah Yar deceased in injured condition, Ghulam Sarwar P. W. Lvent to the Bus Stand of that Chak in order to go to the Police Station for lodging the First Information Report. At the adda he met Head Constable Yousaf Shah who recorded his statement Exh. P. A. This version of Ghulam Sarwar is supported by Mst. Safia Bibi and Mst. Razia Bibi P. Ws. Safia Bibi, as mentioned earlier is an injuries witness. She was medically examined by Lady Dr. Mrs. Ghulam Rasul Khan P. W. Who found two lacerated wounds on her person. The Lady Doctor also felt a small pellet on the left elbow-joint. According to her both the injuries were caused by fire-arm. This medical evidence corroborates the statement of Mst. Safia Bibi P. W. That she received these injuries from the same shot of the appellant which had hit Allah Yar deceased. The presence of Safia Bibi P. W. At the place of occurrence at the relevant time, therefore, stands fully established. The learned counsel for the appellant has not been able to point out any material to show that she received her injuries in some other manner and at some other place at the hands of some body else. We have carefully gone through her statement. Although she has given a slightly different version and has combined both the incidents in one yet in spite of that discrepancy we are convinced that she was present on the spot at the time of occurrence. This discrepancy is not so material as to either destroy the value of her own statement or that of Ghulam Sawar P. W. As observed earlier the presence of fire-arm injury on her person proves that her presence on the spot is beyond shadow of doubt. She has no motive to falsely implicate the present appellant. After going through the statements of Ghulam Sarwar P. W.
7 and Mst. Safia Bibi P. W. 9 we are convinced that both were present on the spot and had given correct version of the occurrence and therefore they were rightly believed by the trial Court. We endorse that finding of the trial Court. In fact, the learned counsel for the appellant has admitted before us the presence of these two witnesses on the spot. However, as regards Razia Bibi P. W. 10, it is vehemently argued that she could not be there. Reliance in this behalf is placed upon the statement of Mst. Iqbal Bibi P. W. Who before the Committing Magistrate had said that Mst. Razia Bibi had come after the murder of Allah Yar. The other two eye-witnesses namely, Ghulam Sarwar and Mst. Sass Bibi who were injured eye-witnesses and whose presence has been admitted even by the learned counsel for the appellant, have specifically mentioned that Mst. Razia Bibi P. W. Was present on the spot at the time of occurrence. After careful scrutiny of the statements of Ghulam Sarwar, Msr. Safia Bibi and Mst. Razia Bibi P. Ws. We are satisfied that Kist. Razia Bibi was present on the spot at the relevant time. However, even if her testimony is kept out of consideration it will not materially affect the pro--secution case which otherwise stands proved through the statements of Ghulam Sarwar, and Safia Bibi P. Ws.
7. The learned counsel for the appellant has also argued that the charge in this case is defective as the exact time of occurrence has not been specified in it. After going through section 222, Cr. P. C.
And the charge we find no substance in this argument. The charge as framed is perfectly valid.
8. Another argument advanced on behalf of the appellant is that he had no direct motive to kill Allah Yar deceased as he is a stranger in this village and is not related to or inimical to an party. On the other hand Mr. Said K. Haq the learned counsel for the State has drawn our attention to the F.I.R.
And the statement of the eye-witnesses. In the F.I.R. Is stated that:- "At about noon time Allah Yar sent for Sher Muhammad accused and when be came, the deceased adnomished him as to why he being a servant had given beating to him."
Mst. Razia Bibi P. W. In her statement has stated as under :-- "When the accused came, the deceased abused him saying as to why he being a servant of Ghulam Muhammad Lambardar had beaten Ghulam Sarwar P. W."
9. On the basis of above quoted portions it is argued by the learned State counsel that the appellant must have felt offended and in that state of mind he fired at the deceased. According to him the motive could be the way he was addressed saying him as a menial or a servant of Anwar.
The argument advanced by the learned State counsel appears to be correct and the appellant may have reacted in that manner at the spur of the moment. Anyhow, it is not denied that the appellant was living with Anwar several months prior to the occurrence and it was the sister of said Anwar who was given beating by Ghulam Sarwar and had come to her parents. The appellant, therefore, may have shared the feelings with Anwar, brother of Iqbal Bibi wife of Ghulam Sawar P.
W.
10. Another argument advanced by the counsel is that the version given by the eye-witnesses is not supported by the medical evidence. According to the learned counsel for the appellant the presence of card board and nemda in the body of the deceased shows that the fire was from a distance of 10/12 feet whereas according to the eye-witnesses the fire was from 4 karams which come to about 20/22 feet. We need not go into minute details of this issue as the learned counsel himself has cited 1970 Pakistan Criminal Law Journal page 87 in which it was held after referring to medical jurisprudence that a wad may perturb the body at 15/20 feet. In the instant case, the alleged distance given by the eye-witnesses is also about 20 feet. Thus on this point we find no conflict between the medical and ocular evidence.
11. The last point raised on behalf of the present appellant is that the version given by the appellant in his statement before the trial Court was more probable and nearer the truth than the prosecution version and there--fore it should have been believed by the trial Court. We have already reproduced above the relevant portion from the statement of the appellant. According to this statement on the day of occurrence hot words wore exchanged between Ghulam Sarwar P. W.
And Anwar over the beating given to Mst. Iqbal Bibi P. W. They both grappled with each other. The appel--lant stated that Anwar inflicted a soti blow on the head of Ghulam Sarwar. Said Anwar ran away and brought his licensed gun from his nearby house and wanted to shoot Ghulam Sarwar P.
W. When Allah Yar intervened and tried to snatch away the gun from Anwar. During this scuffle gun went off and hit Allah Yar deceased and Mst. Safia Bibi who had also come there on hearing the commotion. The version put to the eye-witnesses in cross-examination by the defence is different one. Mst. Iqbal Bibi P. W. 6 when asked about this matter stated as under :- "It is incorrect that my brother Anwar was holding a gun and Allah Yar was killed from its shot . . . . It is incorrect that immediately after the murder of Allah Yar, we had mutually agreed and our baradari had decided to save Anwar and to falsely implicate Sher Muhammad."
Similarly, Ghulam Sarwar P. W. In cross-examination stated as under :- "It is incorrect that the accused gave a danda blow on my head or that Anwar brought his licensed gun from his house in order to shoot me. It is incorrect that the deceased wanted to snatch the gun from Anwar and it was then that the gun went off and hit Allah Yar deceased. It is incorrect that thereafter our brotherhood gathered there and that it was resolved by all that a false case against the accused should be made because he was the bone of contention."
12. Last eye-witness Mst. Safia Bibi when asked this question in cross---examination stated as under :- "It is incorrect that Anwar and the accused on the one side had a quarrel with Ghulam Sarwar P. W whereupon Anwar brought his licensed gun and wanted to shoot Ghulam Sarwar P. W. But I and the deceased and other women intervened and at that time when my deceased uncle tried to snatch the gun from Anwar it went off and the deceased and myself received injuries."
13. From a persual of the statements of the appellant and all the eye--witnesses it is abundantly clear that the stand taken up by the appellant at the conclusion of the trial was entirely different from that suggested to the eye--witnesses through cross-examination. The defence version as taken by the appellant in his statement, therefore, appears to be an afterthought. In any case there is not an iota of evidence on the record to substantiate the defence version. There is nothing on the record even to show that the statements of the appellant could probably be true. Even otherwise now--adays substitution seems to be most difficult if not impossible. The occurrence in this case took place at dopeharwala in the village. If the deceased was not fired at by the present appellant but had died in some other manner then he would have raised this plea at the earliest before the executive and other authorities. We find that the appellant took up this plea for the first time before the Sessions Judge. Even before the Commit--ting Magistrate, the appellant did not take this plea.
In these circumstances, we are clearly of the view that the defence version as taken up in the statement of the appellant or in the cross-examination of the eye-witnesses is not reasonable or even probable and, therefore, we feel no hesitation to reject the same.
14. After hearing the arguments of the counsel for the parties and going through the entire material available on the record, we are clearly of the view that the appellant has been rightly convicted under section 302, P: P. C. For the murder of Allah-Yar. Accordingly, we maintain the con--viction of the appellant under the said section. However, as regards the sentence, we are not inclined to confirm it. Even the learned counsel for the State has admitted before us that it is a case of lesser sentence. It is an admitted fact that it was the deceased Allah Yar who took the initiative to summon the appellant in his house and then to use abusive language and also addressed him as to why he being a servant of Anwar or his father Ghulam Muhammad Lambardar had beaten Ghulam Sarwar. There is nothing on the record that the present appellant took the initiative to abuse the deceased. Another circumstance to justify the lesser penalty is that so far Allah Yar deceased was concerned the occurrence took place suddenly at the spur of the moment when the appellant was called by the deceased and abused. It is also not denied that the appellant had no direct enmity or motive against the deceased. It also appears that so far deceased was concerned there was no pre-planning on the part of the appellant.
15. After taking into consideration the background and the various aspects of this case we feel that-it is a fit case to award lesser sentence under section 302, P. P. C. Accordingly, while maintaining the conviction of the appellant under section 302, P. P. C. For the murder of Allah Yar we sub--stitute the sentence of death with that of imprisonment for life and a fine of Rs. 500. The fine, if realized, shall be paid to the heirs of the deceased. In default of payment of fine, the appellant shall further undergo R. I. For six months, which will run concurrently with the main sentence.
Death not confirmed.