SAJJAD AHMED SIPRA, J.- The present criminal appeal has been directed against the judgment dated 19.7.1990, whereby the learned Sessions Judge, Mianwali, had convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life with a i.e of Rs.10,000/- or in default thereof to further undergo R J. For two years. Half of the i.e, if realized, was directed to be paid to the legal heirs of Muhammad Afzal deceased, as compensation. Benefit of Section 382-B Cr.P.C, was extended to the appellant.
Criminal Revision No.441 of 1990 seeking enhancement of the sentence of the appellant and directed to be heard along with present criminal appeal, shall also be disposed of by the present judgment.
2. The brief facts leading to the present criminal appeal are that the complainant Muhammad Anwar PW.6 on 6.4.1989 at about 9.30 p.m. Had lodged FIR Exh. PD alleging therein that on the same day at about 830 pan. When he and his son Muhammad Afzal deceased were returning home after making purchases from the shop of Atta Ullah and reached near the shop of Atta Muhammad Tarkhan, where an electric bulb was on, Noor Muhammad accused armed with 12 bore pistol appeared from the eastern lane and after raising lalkara fired at Muhammad Afzal deceased hitting on his back, who fell down and died at the spot. According to the complainant, Taj Muhammad and Fateh Muhammad PWs were present nearby and on their raising alarm. Noor Muhammad accused had taken to his heels.
The motive for the occurrence as stated by the complainant was that Noor Muhammad accused had suspected the deceased to be carrying on with his sister, Mst. Kanizan.
3. After recording the FIR Exh. PD, Abid Hussain Shah Inspector had gone to the spot and found Muhammad Afzal lying murdered near octroi post Silwan in Mohallah Miana. He had prepared his injury statement Exh. PG and inquest report Exh. PH and had deported the dead body to mortuary through, Sana Ullah Constable. He had also taken into possession blood stained earth from the spot vide memo Exh. PE and after making it into a sealed parcel had recorded the statements of the witnesses. Sana Ullah Constable on 7.4.1989 had produced before him vest P.I, shirt P.2, Shalwar P.3, chadar P.4, pair of chappal P.5/1-2 of the deceased and a sealed packet containing pellets, which were taken into possession vide memo Exh.PK. He had also got prepared the site plans of the place of occurrence Exh.PC and PC/1 from. Mirza Zabir Uddin Draftsman.
Noor Muhammad accused was arrested on 21.4.1989 and on his personal search 12 bore pistol p.6 was recovered from the fold of his Shalwar and 2 live cartridges p.7/1-2 were recovered from the right side pocket of his shirt, which were taken into possession vide memo Exh.PF. A rough site plan of the place of recovery Exh.PF/1 was prepared. After the completion of the investigation Noor Muhammad accused/appellant was challaned to the Court.
4. At the trial, the prosecution had examined as many as nine witnesses to prove its case. PW.1 Sana Ullah Constable had taken the dead body to the mortuary and after the post mortem examination had received vest P.1, shirt p.2, Shalwar p.3, chadar p.4, pair of chappal p.5/1-2 of the deceased and a sealed packet containing pellets from the doctor and had delivered the same to Abid Hussain Inspector, vide memo Exh.PA. This witness had also transmitted the parcel containing blood stained earth to the office of the Chemical Examiner. PE.2 Zaheer Ahmad Constable was the recovery witness of 12 bore pistol p.6 and two live cartridges p.7/1-2 vide memo Exh.PB. PW3 Mirza Zabir Uddin Draftsman had prepared the site plan of the place of occurrence Exh.PC and Exh.PC/1 at the instance of the police and on the pointing out of the witnesses.
5. PWA Muhammad Aslam had deposed about the motive of the occurrence. He had deposed that Muhammad Afzal deceased was his brother. According to him, on 6.4.1989 at about 5.00 p.m. On hearing the noise, he came out of his house and saw Noor Muhammad accused and Muhammad Afzal deceased exchanging hot wards. He intervened and appeased them and on inquiry, Noor Muhammad accused had expressed suspicion of illicit relations between his sister Mst. Kanizan and Muhammad Afzal deceased. He had clarified the position of Muhammad Afzal deceased and had allayed such doubts in the mind of Noor Muhammad accused. Noor Muhammad accused then had gone away, whereas this witness and Muhammad Afzal deceased had returned to their house. According to this witness, Muhammad Afzal deceased was murdered by Noor Muhammad accused on the same evening and he had identified the dead body at the time of post mortem examination.
6. PW.5 Muhammad Afzal AS1, being Moharrir of the police station concerned had received the sealed parcel containing blood stained earth from Abid Hussain Shah Inspector on 7.4.1989 for safe custody and on 15.4.1989 had delivered the same intact to Sana Ullah Constable for onward transmission to the office of the Chemical Examiner, Lahore.
7. PW.6 Muhammad Anwar, being the complainant of the case, had reiterated the contents of the FIR and had supported the case of the prosecution.
8. PW.7 Fateh Muhammad, being an eye-witness had supported the case of the prosecution by stating that on the day of occurrence at about 830 p.m. He and Taj Muhammad PW were returning home after the day's job. Muhammad Afzal deceased and his father Muhammad Anwar P.W were also going to their home ahead of them and when they reached near the shop of Atta Muhammad Tarkhan, where an electric bulb was on, Noor Muhammad accused armed with 12 bore pistol had come behind and after raising lalkara had fired at Muhammad Afzal deceased hitting on his back, who fell down and that on their raising hue and cry the accused decamped towards north.
9. PW.8 Dr. Abu Bakr Siddique, had conducted the post mortem examination on the dead body of Muhammad Afzal deceased on 7.4.1989 at 8.00 a.m. Which was brought to him by Sana Ullah Constable and was identified by Muhammad Aslam and Atta Muhammad. It was 'the dead body of a young man, pale looking with eyes and mouth closed, rigor mortis present all over and p.m.
Staining present on the back. He had found the following injuries:-
1. 6 i.e-arm wounds of entry on the back of chest, in the middle,
6. Cm from the inferior angle of right scapula and 8 cm from the inferior angle of left scapula, 10 cm from the 7th cervical vertebra.
2. 6 i.e-arm wound of exit, each of 1 cm diameter, over the upper anterior aspect of left side of chest, in an area of 9 cm in diameter, 6 cm from the left nipple and 2 cm to the left of the mid line, just below clavial.
3. Multiple irregular shaped abrasions of different size, 1 cm diameter to 2 cm diameter, over and around the left eye and the left of nose.
4. An irregular shaped abrasion of two cm diameter over the anterior aspect of left knee joint.
Scalp, skull, membranes and the brain were healthy. 6th and 7th thoracis vertebras were fractured corresponding to injury No. 1 above. Left second rib was fractured corresponding to injury No.2 above. Left pleura was punctured, the upper lobe of left lung was punctured. Discending aorta and oesophagus were badly smashed at the corresponding site of injury No. 1. Plastic of the cartridge was found in the left lung whereas three pellets were recovered from under the dead body on the bed. Chest cavity was full of blood.
Stomach contained four Ounces of semi digested food, small intestines had. Traces of semi digested food, whereas the large intestine was full of digested food. Bladder was full of urine.
In his opinion, death was due to shock and haemorrhage brought by injuries No.1 and 2, which were sufficient to cause death in the ordinary course of nature. All injuries were antemortem of which injuries No. 1 and 2 were caused with firearm, while 3 and 4 were result of some blunt object or fall on some had surface. Time between injuries and death was from 1 to 5 minutes and between death and post mortem examination, from 10 to 12 hours.
10. PW.9 Abl Hussain Shah Inspector had recorded the FIR Exh.PD on 6.4.1989 on the statement of Muhammad Anwar complainant. Thereafter, he had gone to the spot, found the dead body of Muhammad Afzal, prepared its injury statement Exh. PG and inquest report Exh.PH and made over the corps to Sana Ullah constable for getting the post mortem examination conducted. He had inspected the spot, taken into possession the bloodstained earth vide memo Exh. PE and had recorded the statements of the witnesses. After autopsy, on 7.4.1989, Sana Ullah Constable, produced before him vest Exh.P.1 shirt p.2, Shalwar p.3, chadar p.4, pair of chappal p.5/1-2 of the deceased and a sealed packet containing pellets, which he had seized through memo Exh.PK. On the same day he had directed Mirza Zabir Uddin Draftsman to prepare site plans of the place of occurrence on the pointing out of the witnesses. On 22.4.1989 on receipt of the site plans Exh.PC and Exh.PC/1 he had entered marginal notes 1 to 4 in red in them and signed the plans.
On 21.4.1989 he had arrested Noor Muhammad accused and got recovered from him 12 bore pistol p.6 and two live cartridges p.7/1-2 and had taken the same into possession vide memo Exh.PB. He had also prepared rough site plan of the place of recovery Exh.PB/1. After the completion of the challan he had challaned the accused to the Court. In his cross-examination, he had testified the copies of the statements of Sana Ullah, Muhammad Aslam and Fateh Muhammad PWs recorded by him under Section 161 Cr.P.C.
11. The prosecution had given up Atta Muhammad and Saif Ullah PWs being unnecessary and after tendering in evidence certified copy of the birth entry of Noor Muhammad accused/appellant Exh.PJ, reports of the Chemical Examiner Exh.PK and the Serologist Exh.PL, had closed its case.
12. In his statement recorded under Section 342 Cr.P.C. Muhammad Afzal accused/appellant had denied the occurrence having taken place in the manner alleged by the prosecution. According to him, on the day of occurrence, his sister Mst. Kanizan, had gone to he house of some relative along with his younger brother Ramzan, but he was in his house. At about 9.00 p.m. After hearing the abuses and cries of his sister Mst. Kanizan and brother Ramzan, he picked up the gun of his uncle, rushed out and saw Muhammad Afzal deceased while armed with knife, holding the arm of Mst.
Kanizan. Then he raised lalkara and fired at Muhammad Afzal deceased under grave and sudden provocation, as a result of which he fell down. According to him none of the witnesses was present, at the time of occurrence and the story of the prosecution was a fabricated one.
In his defence he. Produced Ashiq Hussain Head Constable as DW.l. who had produced the FIR register to prove the FIR No.145 dated 21.4.1989. Exh. DD, to be a correct copy. He, however, did not examine himself under the provisions of Section 340(2) Cr.P.C.
13. The learned trial Judge after having taken into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellant as stated above.
14. The learned counsel for the parties were heard at length in respect of the contentions raised herein and the record of the case perused with their assistance.
15. The Court has given its anxious consideration to the arguments advanced in support of the present appeal and has taken notice of the fact that both the eye witnesses, i.e. The complainant PW.6, father of the deceased and PW.7, the maternal uncle of the deceased, were chance witnesses of the occurrence in question and as such their testimony calls for careful scrutiny. In this respect, as pointed out by the learned counsel for the appellant the prosecution has failed to bring on record any evidence in support of the claim of the complainant PW.6 to the effect that at the fateful time he and his deceased son were on their way back to their house after having made purchases of items of daily use from the neighbour shop, as neither the shopkeeper was examined in support thereof nor is there any evidence on the record in respect of any purchase made being in the possession of the said PW.6 at the relevant time. Furthermore, the second eye-witness namely, Fateh Muhammad PW.7, has conceded that in fact he was the resident of another village, but nevertheless claimed to be residing with the complainant PW.6, his brother-in-law, for many years, but at the same time further conceded that he was not enrolled as a voter in the ward in question, which raises serious doubts about his presence at the spot; and the said doubts are further strengthened by the failure of the prosecution to examine Taj Muhammad in order to corroborate the testimony of these two prosecution witnesses that at the time of occurrence they were in the company of each other. In addition thereto, the prosecution evidence suffers from legal infirmities in respect of the recovery alleged and as to the details regarding the position of the two eye witnesses and the assailant and the deceased at the time it is the case of the prosecution that the accused had fired at the deceased. The weakness in the prosecution evidence pointed out fails to establish the case of the prosecution beyond reasonable doubt against the appellant/accused.
16. However, as the appellant/accused has admitted the entire occurrence, i.e. Of having killed the deceased in the lane outside his house by firing at him with a i.e-arm, therefore, the occurrence in question stands established, i.e. That the deceased Muhammad Afzal was killed by the appellant/accused on the fateful date, time and place, as stated in the charge framed against the appellant. Therefore, it only remains to take into consideration the entire statement of the appellant, i.e. Its inculpatory as well as exculpatory parts to determine his guilt and sentence warranted to be awarded to him under the said tacts an d circumstances as highlighted in his statement under the provision: Section 342 Cr.P.C. As it is established principle of law that the offence as in the present case, claimed to have been committed under grave and sudden provocation as a result of the involvement of the family honour, i.e. The honour of the sister of the appellant in the instant case, shall fall within the ambit of the provisions of Section 304 Part-11 PPC.
Therefore, while altering the conviction of the appellant from one under Section 302 PPC to the provisions of Section 304 Part-1 PPC, the appellant's sentence is reduced to 10 years' R.I. With a i.e of Rs.10,000/- or in default thereof to 2 years' RJ. With the further direction that Rs.10,000/- shall be realized from the appellant to be paid as compensation to the legal heirs of the deceased or the appellant shall suffer 6 months RJ. In default thereof. It is further directed that half of the i.e, if realized, shall also be paid as compensation to the legal heirs of the deceased.
It is further directed that under the facts and circumstances of the instant case, the appellant shall not be entitled to the benefit of the provisions of Section 382-B Cr.P.C.
17. In accordance with the terms stated above, the present criminal 'appeal is hereby dismissed. For the reasons stated herein, the criminal revision petition, ordered to be heard along with the, present criminal appeal, is also dismissed.