' FALAK SHER, Muhammad Sarwar (35) appellant having been tried alongwith his paternal-cousins, father and Phoopizad Muhammad Zaman (21), Muhammad Sharif (40); (brother inter sc) Sultan Ahmad (70) and Muhammad Bashir (34) respectively for the murder of Muhammad Ashraf (25) by the learned Additional Sessions Judge, Gujrat was convicted and sentenced under section 302, P.P.C. To death with a fine of Rs,50,000 or in default to serve 5 years' R.I. In the event of its realisation half to be paid to legal heirs of the deceased recording acquittal of the co-accused vide the impugned judgment, dated 14-7-1991 has preferred Criminal Appeal No,879 of 1991 while confirmation of the awarded death sentence has been sought by the trial Court under Murder Reference No,384 of the same series and are disposed of together hereinbelow.
2. Fazal Hussain P.W.1 brother of the deceased on 27-5-1989 at 7-45 a.m. Got his statement Exh.P.A.
Recorded with Muhammad Iqbal S.I./S.H.O. Police Station Kunjah at Dinga Chowk on the basis whereof formal F.I.R. Exh.P.B./1 was registered by Muhammad Sadiq Moharrir A.S.I. (given up) on the same day at 8-25 a.m. 3-1/2 miles away from the venue of occurrence being the culvert of Rajhah 13R within the area of Village Nageryanwala.
' Alleging that the complainant alongwith the deceased, his maternal-nephew Arshad Ali P.W.2 and paternal-grandson in the second degree (Phoopizad's son) Muhammad Bashir P.W.3 all residents of/Village Moosa on way to Gujrat at 6-30 a.m. For earning their livelihood were ambushed by the appellant and Muhammad Zaman co-accused both equipped with .12 bore guns, emerging from Keekar trees at the culvert of Rajbah 13-R with the deceased being 100 yards ahead of them.
Exhorting to bear the consequence of molesting Mst. Inayat Begum, Muhammad Zaman fired at the deceased which he escaped whereafter the second shot was fired at by the appellant landing on right side of the deceased's face to which he succumbed on the spot while assailants under fire cover vanished away. Attracted by their hue and cry many persons gathered around. Revealing the motive it was stated that 5 days ago a skirmish had occasioned between the appellant's wife Inayat Begum and the deceased's brother Anwar which eventually precipitated into the occurrence having conspired with Muhammad Sharif and Sultan Ahmad acquitted co-accused.
3. The complainant discontended with the investigation soliciting discharge of the three co- accused preferred private complaint Exh.P.B. On 1210-1989 adding Muhammad Bashir as the third assailant.
4. Muhammad Iqbal, S.I./S.H.O. C.W.1 proceeding to the spot, recorded supplementary statement of the complainant, secured into possession bloodstained earth vide memo. C.W.1/A prepared the deceased's inquest report Exh.C.W.1/B, despatched the dead body under Allah Ditta F.C. P.W.6's escort to the mortuary who later on, tendered his last-worn blood-stained clothes Shalwar P.1, Shirt P.2, Phial P.3 containing pellets taken into possession vide memo. C.W.1/C, got prepared site plan Exh.C.W.1/D from Akhtar Naqqash, Draftsman P.W.7, on 6-7-1989 arrested the appellant alongwith Muhammad Bashir acquitted co-accused being equipped with unlicensed .12 bore single barrel guns with one live cartridge each P.4, P.5; P.6 and P.7 respectively reduced into possession vide memo. Exhs.P.D., P.E. Attested by Muhammad Yunus, A.S.I. P.W.9, Ghulam Abbas F.C. P.W.11 in addition to the Investigating Officer. Refuting recording of the complainants' statement after preliminary investigation affirmed reaching the venue at 8 a.m., discharging the acquitted co-accused Sultan Ahmad, Muhammad Sharif, Muhammad Zaman upon finding them innocent, omission of the P.Ws.
Names in the site plan, that of the F.I.R. Number in the inquest report, lack of any crime empty, led bullet or pellets recovered near by the dead body, and non-association of Inayat Begum and Anwar with the investigation.
5. Dr. Tahir Rashid P.W.8, then Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat on the same day performed autopsy on the deceased's body at 3 p.m. Brought by Allah Ditta F.C. P.W.6 identified by Sahibdad P.W.5, a co-villager observing the following vide post-mortem report Exh.P.W.8/A.
(1) A fire-arm lacerated wound of entry 5 c.m. x 1 c.m. x D.N.P. On the right side of the face involving area of upper lip. There was loss of part of lip on the right side of the upper lip. The right angle of mouth was disfigured. The margins of wound was inverted.
(2) A fire-arm lacerated wound of entry measuring 1-1/2 c.m. x 1/2 c.m. Into D.N.P. On right angle of mouth. The skin was directed inward and it was vertically in direction. Right eye socket with right side of the face depressed. Blood in right ear present."
' Fracture of right angle of mandible, right half of axilla (underlying teeth fallen into the mouth cavity due to the wound pushed by metallic foreign bodies piercing through the area) right temporal parietal and left parietal bones, right eye socket, right zygomatic arch and nasal bone; right eye-ball damaged, brain tissue bruised, multiple metallic piece alongwith plastic wad in pieces removed, stomach empty, all injuries ante-mortem, sufficient to cause death in the ordinary course of nature, time lapse between injuries and death immediate within 12 hours whereof the post-mortem was conducted.
' In cross-examination opined that injuries 1 and 2 may be the result of 2 different shots either having blackening or tattooing with firing range beyond 6 feet.
6. Fazal Hussain complainant P.W.1 testifying the prosecution story admitting the previous enmity affirmed murder of his brother Inayat some time ago on which count inter alia Hanif a relation of the acquitted co-accused was challaned, the deceased did not take breakfast on the day of occurrence while he did, they left the place of abode on foot around 6-30 a.m. After the sunrise and were to catch a bus from Kunjah distanced by 2 miles, the venue of occurrence was a mile away from their village, he spotted the assailants when they attacked the deceased, the pioneering shot was fired at the deceased from a distance of two Karams, 5/6 shots were repeated reloading the guns, they witnessed the occurrence in a standing posture and were also fired at by Zaman and Bashir but remained unhurt, repelling the suggestion of having recorded his statement after preliminary investigation at the spot, volunteered that his statement was recorded at Chowk Kunjah wherein Bashir's name escaped since he was perplexed and was not read over to him, the motive incident occurred between his brother Anwar and the appellant's wife Inayat Begum over fare of a Tonga where none of the P.Ws. Was present, he learned of the conspiracy hatched between Sultan Ahmad and Muhammad Sharif on the night intervening 27/28-5-1989. Refuted the suggestion as to the deceased being vagabond used to tease girls and was done to death in early hours of the morning by unknown persons.
7. Arshad Ali P.W.2 maternal-nephew and daily wager co-worker of the deceased as well as that of the complainant in Al-Bilal Fan Factory, Small Industries Estate Gujrat, deposing to the same effect stated that the appellant caused the fatal shot from a close range, in all 8/10 shots were fired amongst which 4/5 were that of Bashir co-accused, police arrived at the place of occurrence after an hour and recorded the complainant's statement after preliminary investigation getting his thumb-impression affixed to it, also taking into possession crime empties and blood-feud between the parties was ancient by 7/8 years. Likewise was the deposition of Muhammad Bashir P.W.3 repelling the suggestion as to concoction of the story after consultation.
8. Muhammad Hussain P.W.4 cultivator, resident of village Banian vouched the conspiracy hatched by the acquitted co-accused over-hearing it, while waiting for a wagon, in the teastall situated at Dinga Kunjah Road on 25-5-1989 at 5 p.m.
9. Positive reports of the Chemical Examiner P.F. And that of the Serologist P.G. Qua earth were tendered by the Deputy District Attorney remaining evidence being of formal nature.
10. The appellant as well as the acquitted co-accused recording their statement under section 342, Cr.P.C. Entered the plea of denial simpliciter and false involvement opting not to depose within the contemplation of section 340(2) ibid.
11. Learned counsel assailing legality of the appellant's conviction and sentence contended it to be an unwitnessed night time occurrence F.I.R. Whereof was lodged belatedly after preliminary investigation, all the 3 eyewitnesses being relations of the deceased are inimically disposed towards the appellant thus are interested whose testimony having been disbelieved qua the acquitted co-accused, needs independent corroboration which is lacking recovery of the crime weapon is of no avail for lack of any crime-empty and has been disbelieved by the trial Court.
Alternatively being a case of family honour capital, punishment is not warranted.
12. While learned counsel appearing on behalf of the State has supported the judgment.
13. Having minutely perused the entire evidence with the assistance of the learned counsel for the appellant we are not persuaded by the contentions urged because presence of all the three eye- witnesses as companions of the deceased, independent of their relationship, being co-workers on way to their place of work stands convincingly explained specifically ascribing the solitary fatal shot to the appellant which patently rules out any possibility of substitution leaving the real culprit go scot free and cannot be discarded merely on account of affinity for the same having been corroborated by the spelt out motive remaining undislodged at the trial and the medical evidence which practically remained unquestioned qua the timing furnished by Sahibdad P.W.5, identifying the dead body at the hospital viz, learning of the occurrence at 8/8-30 a.m. While Arshad Ali P.W.2's plea of recording of the F.I.R. After preliminary investigation at the spot stands fully explained by the Investigating Officer i,e, recording of the supplementary statement of the complainant at the spot; consequently the appellant's conviction is unexceptionable.
14. However, we find ourselves in agreement with the learned counsel's plea in the alternative viz., avenging of wife's insult being a mitigating factor capital punishment is not attracted.
15. Therefore, partly allowing the appeal, maintaining the appellant's conviction and fine the awarded death sentence is commuted to imprisonment for life with the benefit contemplated by section 382-B, Cr.P.C.
16. The sentence of death is not confirmed.
Sentence reduced.