' RAJA ABDUL AZIZ BHATTI, J.---Through this single judgment, we indend to decide M.R. No,48 of 1992, Criminal Appeal No,5 of 1991 and Criminal Revision No,31 of 1991 simultaneously.
' Brief facts of the case are that Mirza Khan son of Hakam Dad Khan, resident of Banda Nagyal, Rawalpindi lodged report. In Police Station Saddar Beroni, Rawalpindi. On his report a case F.I.R.
No,160 dated 29-10-1989 under section 302, P.P.C. Was registered at the said Police Station.
2. According to the contents of the F.I.R. Mirza Khan complainant was resident of Banda Nagyal.' On 29-10-1989 his son Nazir Akhtar was going towards the fields for grazing his cattle. When he reached near Pacca Road, known as Dhamial Misriot Road at 10-00 a.m. Khalid Iqbal accused armed with .12 bore gun while driving Suzuki bearing No,RIN-1630 reached there. He stopped the Suzuki and came down. The accused raised Lalkara saying that he should be careful to his life as he had come to take revenge of his father's murder. Then immediately Khalid Iqbal accused fired with his .12 bore gun twice successively, one hitting on his son Nazir Akhtar in front of his chest on the right side and the other on the right arm. The injured fell down and expired at the spot. The occurrence was witnessed by his son Munir Akhtar and Mamraiz Khan, who were present nearby.
Khalid Iqbal accused after 'commission of the crime fled away on his Suzuki towards Rawalpindi. ,3. The motive for the offence as mentioned in the F.I.R. Is that in 1968 Muhammad Iqbal father of Khalid Iqbal was murdered. In that case his son Nazir Akhtar (deceased) was challaned who was sentenced and later on acquitted because on the intervention of Jirga the matter was compromised. However, Khalid Iqbal developed grudge for taking revenge. He further stated in the F.I.R. That because of this motive the accused committed murder of his son. He further stated that on the information conveyed to him by Mainraiz Khan, he went to the spot and found dead body of his son lying on the ground stained with blood. He put the dead body under the guard of his son Munir Akhtar, and proceeded to police station for lodging the report. The police met him on the way near Dhamyal at 12-30 p.m. He narrated the incident before the police.
4. During investigation blood-stained earth was taken into possession from the place of occurrence vide memo. Exh.PB. Two empties were also recovered on 20-10-1989 and taken into possession vide memo. Exh.PC. Similarly, the shoes of the deceased were taken into possession vide memo. Exh.PD. Khalid Iqbal, accused was arrested and when he was on physical remand under the custody of police he led to the recovery of .12 bore double-barrel gun from his house, which was taken into possession vide memo. Exh.PE. Rest of the details i,e, bore and number etc. Were mentioned in the memo, Last worn clothes of the deceased were also taken into possession after the autopsy, produced by Muhammad Yamin, F.C. Vide memo. Exh.PF. Suzuki bearing No,RIN- 1630 was taken into possession along with registration book, produced by Pervaiz Iqbal, real brother of the accused, vide memo. Exh.PG. Besides this, F.I.R. No,76 dated 28-8-1968 registered under sections 302, 307, 148 and 149, P.P.C., which was got recorded by Orangzeb son of Ali Akbar complainant regarding the murder of Muhammad Iqbal, was also taken into possession, vide memo. Exh.PN. Site plan was also prepared vide Exh.PJ.
5. During investigation the accused was found guilty and challaned to Court. After the conclusion of trial learned Additional Sessions Judge, Rawalpindi convicted Nazir Akhtar under section 302, P.P.C. And sentenced him to death. He was also imposed a fine of Rs,50,000 which after recovery shall be paid to the legal heirs of the deceased in accordance with the provisions contained in section 544-A, Cr.P.C. In default whereof to further undergo two years' R.I. Vide order dated 15-1-1991, with the direction that case file be sent to the High Court as required under section 374, Cr.P.C.
6. After framing the charge, prosecution evidence was recorded. The prosecution produced 15 witnesses in support of his case. P.W.1 Muhammad Rafiq, A.S.I. Kept blood-stained earth and .12 bore gun etc. In the Malkhana. P.W.2 Jahangir Akhtar identified the dead body. P.W. 3 Mirza Khan on whose statement the complaint was recorded and thereafter formal case was registered. P.W.4 Mamraiz Khan is an eye-witness of the occurrence. T.W.5 Munir Khan real brother of the deceased is also an eye-witness of the occurrence. P.W.6 Gulistan Khan is recovery witness of blood-stained earth etc. P.W.7 Meherban Khan is the recovery witness of the gun. P.W.8 Ijaz Hussain Shah, S.I.
Recorded the formal F.I.R. P.W.9 Muhammad Yamin, P.C. Escorted the dead body of the deceased for post=mortem 'examination. P.W.10 Muhammad Iqbal, S.I. Partly investigated the case. P.W.11 Dr. Azhar Hussain Rizvi, who conducted autopsy and prepared post-mortem examination report. P.W.
12 Muhammad Saeed Shah, H.C. Kept the parcel of gun to produce the same in the office of Forensic Science Laboratory at Lahore. P.W.13 Ali Shah prepared the site plan. P.W.14 Ghulam Mehdi, S.H.O./I.O. Also partly investigated the case . P.W.15 Muhammad Khan, S.I./I.O. Mainly investigated the case. P.W.16 Liaqat Ali, H.C. Produced original register of F.I.Rs, pertaining to F.I.R. No,76 of 1968 regarding the murder of Muhammad Iqbal. After the close of prosecution evidence, the accused was examined under section 342, Cr . P. C .
7. Learned counsel for the defence contends that the ocular evidence produced by the prosecution is inconsistent. According to him there are number of contradictions in the statements. In this case, there are two eye-witnesses but they are closely related to the deceased. Learned counsel gave much importance to the statement of the accused' which is reproduced below along with question: --- "Is it correct that on 29-10-1989 at about 10-00 a.m. In the area of Pinglarah near village Banda Nagial you while being armed with .12 bore shot-gun Exh.P-2 fired at Nazir Akhtar who died because of it?
' Ans: There was a fire but I do not know whether any man was murdered or not."
' From this statement learned counsel submits that at least the presence of the accused cannot be denied but he himself admitted that there was a fire and he do not know as to whether any man was murdered or not. Learned defence counsel has also pointed out that there are number of injuries/wounds on the back of the deceased which also contradicts the ocular evidence. Thus, it can safely be said that it is an unseen occurrence. Both the eye-witnesses were planted against the accused.
8. On the other hand, learned State Counsel stated that in this case two eye-witnesses were produced by the prosecution who had fully supported the prosecution version coupled with the recovery of the .12 bore gun, which was used in the commission of crime. Empties were' also recovered from the place of occurrence. Motive is also narrated in the F.I.R. That father of the accused was murdered in which deceased was an accused who was convicted but later on acquitted. In such circumstances, the accused in order to take revenge of his father's murder, committed the offence. Learned State Counsel submits that the judgment of the Trial Court be maintained and the appeal be rejected.
9. We have heard the arguments of the learned counsel for the parties and gone through the record. According to the prosecution evidence, Mamraiz Ahmad P.W.4, is grand uncle's son of the brother of the complainant. Munir Akhtar P.W.5 is the real brother of the deceased. Both P.Ws.
Corroborated the statements of each other, in fact they fully supported the prosecution version.
Mamraiz Khan after doing some job in the fields was going back, near the bridge of Pacca Road adjoining to the house of Meherban, he saw that Nazir Akhtar deceased was grazing his cattle in the fields. As per his contention deceased was done to death by a fire of Khalid Iqbal who arrived there on a Suzuki. According to him the accused alighted from the Suzuki and raised Lalkara that he should take revenge of his father's murder and fired at the deceased on the right side of his chest and right arm. He fell down. The witness deposed that he rushed to the spot but the accused fled away. According to him the occurrence was witnessed by Munir Akhtar P.W.5. As well. These eyewitnesses fully supported the prosecution version. Though they are related to the deceased but mere relationship is not sufficient to discard their evidence. The element of previous enmity is existing in this case. Weapon of offence was recovered with empties. Report of the Forensic Science Laboratory is also positive and in favour of the prosecution which is good corroboratory piece of evidence to be relied upon the statements of these witnesses.
10. We do not like to go in minor details of the case. The judgment of the lower Court is based on proper appreciation of evidence. Sufficient reasons have been given to believe the prosecution case. There is no other compelling circumstance to show that the prosecution case has become doubtful. We have also seen the post-mortem report, which shows number of exit wounds. Learned defence counsel forcefully argued that these are entry wounds. The contention of the learned counsel for the defence is not based on the evidence on record. Even we do not see any conflict between the medical evidence and the ocular evidence. The statement of the accused that "he fired one shot. He did not know whether it hit anybody or not," has I great importance. Again he stated likewise in his statement under section 342, Cr.P.C. Where he stated that. "there was a fire but I do not know whether any man was murdered or not". The statement of the accused is so clear to prove that he admits the liability of firing at the deceased. As to whether he died because of that firing or not? He has left the question open. Since there was no body else and there is no question coupled with the fact that recovered weapon of offence was used in the commission of murder.
While the report of the Serologist was positive. There is no doubt that the accused committed the crime as alleged against him. While considering the contentions, it may be kept in view, in this case the motive for the murder is very strong. The accused entertained long-standing mental torture regarding the murder of his father. It is not out of the way in such circumstances like the present, whose family honour demands that he would have acted so.
11. In view of the above, we can safely say that evidence brought on record inspires confidence which by no stretch of imagination can be discarded. Hence the prosecution has fully proved the case against the accused in which conviction order is in accordance with law. There is an important question regarding the quantum of sentence as argued by the learned defence counsel.
We also observed that it is a case of mitigating circumstances, because father of the accused was murdered, in which the deceased was involved. He was convicted but later on acquitted. There was constant mental torture for the accused about the murder of his father. Thus, it is not extraordinary phenomena to say that he must entered into hatred for the deceased, which was pinching him and sometime compelling him to take revenge. In addition to that there was constant bitter remarks from certain persons regarding the murder of his father and his unchallenging conduct in the matter. Thus it can be said that ignoring this aspect of the case is not proper and sound. The Hon'ble superior Court has also laid guiding principles in such like cases wherein maximum punishment was not awarded. By keeping in view this aspect of the case, we have come to the conclusion that it is not a case of death penalty.
12. In view of the above, the order of conviction passed by the Trial Court is modified. The death sentence awarded to the appellant is reduced to life imprisonment. With this modification the appeal is dismissed and the judgment of the trial Court is maintained. However, benefit of section 382-B, Cr.P.C.IG shall be granted to the appellant. Revision petition is also dismissed. The sentence of death is NOT confirmed.