1. ' NAZIM HUSSAIN SIDDIQUI, J.--- This appeal is directed against the judgment, dated 23-12-1992 of the then learned Sessions Judge, Karachi West, whereby appellant Ajmer Shah was convicted under section 302, P.P.C. And was sentenced to death. He was also ordered to pay an amount of Rs,50,000 as compensation to legal heirs of deceased Khan Alam Sher or in default thereof to suffer imprisonment for six months. Learned Sessions Judge, under section 374, Cr.P.C. Has sent a reference for confirmation of said death penalty. By this judgment, both the appeal and reference are being disposed of.
2. ' The occurrence took place on 10-11-1989 at about 4-00 p.m. At Habib Bank Chowk Bus-Stop S.I.T.E., Karachi. Statement of Sakhi Bad shah son of Hidayat Khan, under section 154, Cr.P.C. Was recorded by Sub-Inspector Malik Muhammad Nawaz at Abbasi Shaheed Hospital and on its basis F.I.R. No,416 of 1989 under section 302, P.P.C. Was registered. Deceased Khan Alam Sher was son-in-law of complainant Sakhi Badshah.
3. ' There was no motive for this crime, but the incident took place abruptly following a collision of two mini buses whose drivers were the deceased and the appellant.
4. ' The case of prosecution, in brief, is that on the day of incident the deceased was driving Mini Bus No,854-810 of Route No,A/3 and at about 4-00 p.m. He reached the place of incident. It is alleged that when he was parking his bus it slightly collided with another bus of Route No,A/8, which was already there and the appellant was its driver. Thereupon, the appellant started abusing the deceased, although the latter had apologized and had also offered to compensate for the loss so caused. Further, it is said that the appellant continued abusing the deceased, took out a pistol and fired three shots upon him who still was at the driving seat. He sustained injuries. Meanwhile, the police reached there and took him for hospital but he expired on the way. The complainant, who was in the bus of the deceased, maintained that name, address, and number of the bus of the assailant were not known to him, but he knew him by face.
5. ' The investigation of this case was conducted by A.S.-I. Hazrat Umer Khan and A.S.-I. Muhammad Nawaz. On the day of incident, A.S.-I. Hairat Umer Khan was on mobile duty within the area of Police Station S.I.T.E., when at about 3-50 p.m. Near Valika Mill Chorangi, he received an information that two drivers of mini buses had fought among themselves at Habib Bank Chowk Bus Stop and that driver of bus route No,D-8 had fired upon the driver of Route No,A/3. He was further informed that the culprit had absconded away from the scene of offence along with his mini bus. Within 5/6 minutes, he reached there and found that deceased Khan Alam Sher was lying critically injured at the driver seat and was unconscious. He immediately took the deceased in his mobile to Abbasi Shaheed Hospital, where he was declared dead. In the meantime, he informed the S.I.T.E. Police Officer on wireless about the incident asking the duty officer Malik Muhammad Nawaz to send some police personnel on the spot for investigation.
6. ' A.S.-I. Muhammad Nawaz, on getting above information, made entry in the Roznamcha and sent some police officials to the scene of offence. He himself proceeded to Abbasi Shaheed Hospital, where he recorded statement of Sakhi Badshah, under section 154, Cr.P.C. He came back to the scene of offence, prepared the memo. In presence of Mashirs Mirza Ali Khan and Zar Wali, secured three crime empties, collected blood stains from the driver seat of mini bus of the deceased and noted that the wind screen of said bus had two holes of bullets. He then recorded statement of witnesses Sajjad and Aslam and that of Mashirs. By that time, it was too late and he directed the witnesses to come in the morning. On 11-11-1989, he along with the witnesses, reached the house of the appellant in Sher Paoo Colony at about 11-00 a.m. And arrested him in presence of P.Ws. Mirza Ali Khan and Zar Wali Shah. He interrogated the appellant, who on 14-11-1989, voluntarily produced the crime weapon from his mini bus, which he (Investigating Officer) had already secured from near his house. On completion of investigation, he submitted charge-sheet against the appellant before the concerned Court.
7. ' At trial, the persecution examined complainant Sakhi Badshah, P.Ws. Sajjad Ali, Mirza Ali Khan, Zar Wali Shah, Yard Dad Khan, A.S.-I. Hazrat Umer Khan, Dr. Jaleel Qadir and S.-I. Muhammad Nawaz.
8. ' Necessary charge on 5-3-1990, under section 302, P.P.C. Was framed against the appellant.
9. ' The appellant in his statement recorded under section 342, Cr.P.C. Had denied the prosecution's allegations and claimed to be innocent. He examined himself on oath and also examined Mst. Bibi Zulekha, Mst. Umer Jan, Nazar Muhammad, Ajmar Shah and Mst. Gul Bibi as defence witnesses.
10. ' Dr. Jaleel Qadir had conducted autopsy on the dead body of the deceased. He started post- mortem at 6-30 p.m. Finished it at 7-00 a.m. And found the following injuries:--
(1) Fire-arm wound entry (L) side frontal region about 1/2 c.m. In diameter, margins inverted, rough no blackening singing or tattooing around cavity deep.
(2) Fire-arm wound entry (R) side chest under .Middle portium clavicle about 1/2 c.m. In diameter margins inverted no blackening signing or tattooing around.
(3) Fire-arm wound entry (R) side upper chest pectoral region, anterior axillary line about 1/2 c.m. In diameter margins inverted, no blackening signing or tattooing around.
11. ' On internal examination, he found the following damages:-- "On exploration of injury No,1 projectile passed through left frontal region making exit from occipital region and lodged into scalp tissue, fracturing left frontal parietal and both occipital bones. Brain was found lacerated. Cavity full of blood and clots."
12. ' He opined that injuries Nos.1, 2 and 3 collectively and individually were sufficient to cause death and that these injuries were caused fire-arm projectile. According to him, the cause of death was cardio respiratory failure due to irreversible hemorrhage and shock. According to him, three bullets were recovered from inside the body of the deceased. He stated that the time between death and post-mortem was 3 to 5 hours approximately. In cross-examination, he did not agree with the suggestion that deceased was fired from a distance of 10 feet. He also disagreed with the suggestion that the above injuries were caused by two shots.
13. ' The case of the prosecution rests upon: Ocular account and recovery of crime weapon. The ocular account has been furnished by complainant Sakhi Badshah, Sajjad Ali, Mirza Ali Khan and Zar Wali Shah.
14. ' Mr. Shaukat Hussain Zubedi, learned counsel for the appellant, during the course of arguments, has frankly conceded that the prosecution has proved its case against the appellant beyond any shadow of doubt. He, however, strenuously argued that the deceased was killed without any premeditation in heat of passions on a sudden quarrel. He also argued that, in fact, actual dialogue exchanged between appellant and deceased have not been brought on record and in its absence the entire responsibility cannot be placed upon the appellant. He submitted that it was the deceased, who, by a lapse on his part, was responsible for causing damage to the vehicle of the appellant and had also abused him. Elaborating it, he contended that the deceased had neither apologized nor admitted his mistake and on the contrary insisted that all that happened was due to mistake of the appellant. Although, the complainant and the eye-witnesses have stated that the deceased immediately had admitted his fault and even offered to compensate the appellant, but we are of the view that if so would have been done the ugly incident would not have occurred. It appears that the deceased spoke intemperately and it infuriated the appellant. Otherwise, the dispute would not have flared up.
15. ' Learned counsel for the complainant, however, argued that it was a deliberate murder and it was proved by the fact that three shots were fired by appellant upon deceased.
16. The fact, however, remains that it was a sudden quarrel which was followed by exchange of dialogue and the real words spoken by the deceased were not brought on record, though an attempt was made to show that he was extremely polite and courteous at the time of mishap. It was, however, a murder, as the 'appellant fired three shots upon deceased, which in all probabilities were bound to cause his death. The deceased, at the time of incident, admittedly was unarmed and the appellant had taken undue advantage and acted in cruel and unusual manner.
17. Learned A.A.-G. Has no objection, if the death sentence is altered into life imprisonment.
18. ' Accordingly, the conviction of the appellant under section 302, P.P.C. Is maintained but the sentence of death is altered into imprisonment for life. The sentence of fine is also maintained. The appellant would be entitled to the benefit of section 382-B, Cr.P.C.
19. ' With above modification in sentence, the appeal is dismissed and so also the reference for confirmation of death penalty.