' RAO NAEEM HASHIM KHAN, J.--- Muhammad Sharif (50) with Allah Yar was sent up for trial by Police Station Thingi, District Vehari, for an offence under section 302/34/201, P.P.C. The learned Sessions Judge, Vehari vide judgment, dated 2-12-1992 gave benefit of doubt to Allah Yar and acquitted him. Muhammad Sharif was however, found guilty under section 302, P.P.C. And sentenced to death with fine of Rs,20,000 or in default one year's R.I. On account of provision of section 544-A, Cr.P.C. For his conviction under section 302, P.P.C., Muhammad Sharif accused would also pay a compensation of Rs,20,000 to the legal heirs of Khan Muhammad deceased or in default to undergo further R.I. For 6 months. The convict has appealed while State has sought confirmation of death sentence through Murder Reference No,4605 of 1992. Both matters will be decided by this judgment.
2. According to F.I.R. Exh.P.H. The prosecution story in brief was that Hassan Muhammad P.W.8, made a statement before Shahid Niaz P.W.10, the then S.I./S.H.O., Police Station, Thingi at the police station on 5-4-1990 at 1-00 p.m. On the same day at 11-00 a.m. Complainant Hassan MuhammatL alongwith his brother Hafiz Jan Muhammad P.W. (not produced) went to the Dera of Shah Muhammad P.W.9 for purchasing a cow, and sat with him under the shade of trees outside his Bethak. A little after, his brother Khan Muhammad (deceased) also reached for buying of seed of Jawar from Shah Muhammad. He inquired from him, about the seed of Jawar to which Shah Muhammad replied that he had got the seed and he would himself deliver the same to his house at the evening time himself and he should go to home as Khan Muhammad (deceased) was observing fast. His brother started for going towards his house. When he reached 'near the house of Hafiz Noor Muhammad, Muhammad Sharif accused armed with .7 mm rifle and Allah Yar accused, empty-handed, appeared from front side. Allah Yar accused raised a Lalkara to Khan Muhammad (deceased) that he would teach him a lesson for coming there. Simultaneously, Muhammad Sharif accused fired from his rifle at his brother Khan Muhammad (deceased), which hit him on abdomen under the umbilicus. At the same time, Muhammad Sharif fired another shot at Khan Muhammad (deceased), which hit hip? On his right ribs. Khan Muhammad being injured, fell down on the ground and succumbed to the injuries at the spot.
' Hassan Muhammad complainant further added that he and his brother Jan Muhammad and Shah Muhammad P.Ws., who were standing nearby, witnessed the occurrence, but could not go near due to fear. They had been raising alarm on which many persons of the village were attracted to the spot. Muhammad Sharif and Allah Yar accused took away the dead body of Khan Muhammad (deceased) towards their Bhani alongwith the weapon of offence. The motive behind this occurrence, was stated to be that 8/10 years prior to the day of occurrence, the complainant party and the accused used to reside at Tibbi Dhudhian Wali and the accused were ousted forcibly from there by the complainant party. Due to that grievance, the accused, in furtherance of their common intention, had committed the murder of Khan Muhammad (deceased).
3. The occurrence took place on 5-4-1990 at 11 a.m. In the area of 44-WB Bhani Dhudhian Wali 15 kilometres from Police Station Thingi. F.I.R. Exh.P.H. Was lodged on the same day at 1-00 p.m. By Hassan Muhammad P.W.8 which was recorded by Shahid Niaz, Sub-Inspector/S.H.O. P.W.10.
4. Shahid Niaz the then S.H.O./S.I. P.W.10 after recording F.I.R. Exh.P.H. Went to the spot alongwith police officials. He prepared injury statement Exh.P.J. And inquest report Exh.P.K. And despatched the dead body through Ghulam Shabbir. Constable No355-C, for post-mortem examination to Civil Hospital, Chak No,56-WB. He collected blood-stained earth from the place of occurrence and made it into sealed parcel vide recovery memo. Exh.P.C. He took into possession two crime empties, .7 mm rifle Exh.P.6/1-2 and made them into sealed parcel vide recovery memo. (Exh.P.B.). He also took into possession cot Exh.P.7 from the place where the dead body was lying vide recovery memo. (Exh.P.E.). The said cot was blood-stained. He inspected the spot and recorded the statements of P.Ws. Under section 161, Cr.P.C. On the same day Muhammad Shabbir Constable No,355 produced last worn clothes and articles of the deceased which are P.2 to P.S. He took these articles into possession vide recovery memo. Exh.P.E. He got prepared site plan and place of occurrence from Muhammad Shafiq, Patwari P.W.5 which are Exhs.P.G., P.G/1 and P.G./2. Thereafter the investigation was entrusted to Maqsood Ali, A.S.I. P.W.6. On 13-4-1990 Maqsood Ali, A.S.I. Went to the place of occurrence in Chak No,44-WB. Muhammad Sharif and Allah Yar accused were produced before him by Noor Muhammad, Councillor of the village. He arrested the accused persons.
' While in custody Muhammad Sharif accused led to the recovery of .7 mm rifle P.8 and 5 live bullets P.9/1-5 alongwith a licence. He secured the rifle and the live bullets through recovery memo. Exh.P.F.
The site plan of the place of recovery Exh.P.F./1 was prepared by him. He made the rifle and the live bullets in a sealed parcel and handed over the same to Moharrij H.C. On the same day at 2 p.m.
The ocular account was furnished by Hassan Muhammad complainant P.W.8, Shah Muhammad P.W.9, Dr. Farooq Ahmad Khan P.W.3, Medical Officer, Rural Health Centre, had conducted the post- mortem examination on the dead body of Khan Muhammad.
5. At the conclusion of the prosecution evidence, the appellant was examined without oath under section 342, Cr.P.C. He refuted the prosecution allegations and pleaded innocence. He stated that in fact, Khan Muhammad deceased had cultivated illegal intimacy with his wife while they used to live at Tibbi Bharian Wali where the P.Ws. Live. He was forced to leave his abode due to his prestige and the of Khan Muhammad and his brothers towards him. He shifted his residence to his lands and built his house there. Still Khan Muhammad was not leaving him alone and used to visit the locality of his house in order to prosecute nefarious activities. Shah Muhammad P.W.9 who was inimical to him, used to give Khan Muhammad refuge and apprise for cooperation. He told Shah Muhammad P.W.9 to stop Khan Muhammad and his brothers to visit his Bhani but since he was inimical towards him, therefore, he did not care to do so. On the day of occurrence he had gone to city Vehari to get his licensed rifle repaired because a bullet had struck into the muzzle of the same. When he came back to his house with rifle, he found Khan Muhammad deceased present in the room of his house sitting with his wife. He could not control himself and in the heat of passion suddenly, he fired twice at him who fell down and died. He ran after his wife, who had locked herself into another room of his house. He then dragged Khan Muhammad out of his house and placed his dead body on a cot under Kicker tree near the watercourse. He then, went directly alongwith rifle to the police station and informed the S.H.O. About what had happened at his house. They locked him there and took his rifle, thereafter they called for the brothers of deceased and fabricated this false story against him and his brother Allah Yar. Allah Yar accused was not present anywhere there. The police and the complainant party had made false fabricated and concocted story against him and his brother Allah Yar. However, he neither appeared in his defence on oath nor produced any defence evidence.
6. It is submitted by the learned counsel for the appellant that motive is shrouded in mystery and far-fetched; that it is not a case of capital punishment; that appellant Muhammad Sharif found Khan Muhammad deceased, sitting in a room with his wife could not control upon himself and in the heat of passion, suddenly, fired twice at him and killed; that the respond of the appellant was beyond his control and requested for lenient view in favour of the appellant Muhammad Sharif.
7. The contentions are opposed by the learned State Counsel.
8. We have heard the learned counsel for the appellant as well as learned State Counsel at length and gone through the file. The prosecution in order to prove its case has mainly relied upon ocular account furnished by Hassan Muhammad P.W.8, Shah Muhammad P.W.9. Both of them had given a detailed account of occurrence ascribing specific role to the appellant. The appellant has admitted the occurrence but in a different manner. He confessed that he found Khan Muhammad deceased sitting with his wife in a room of his house. He could not control upon himself and in the heat of passion suddenly, fired twice at him who fell down and died at the spot. He ran after his wife, who had locked herself into another room of his house and was as such not done to death.
The defence plea taken by appellant was not plausible and even does not appeal to us. If there had been such circumstances he would have caused one fire on each instead of firing twice at Khan Muhammad decease or broken the door of the room in which his wife was hiding herself and killed her. But nothing happened like this. It appears that Muhammad Sharif appellant found Khan Muhammad deceased roaming somewhere near his house and killed him. We found the appellant guilty of offence under section 302, P.P.C. Since the motive behind the occurrence is shrouded in mystery, therefore, we reduce the death sentence into life imprisonment. The appeal is partly accepted and death sentence is not confirmed. The appellant is also Oven benefit of section 382-B, Cr.P.C.