' IFTIKHAR HUSSAIN CHAUDHRY, J.--- Mahram Hayat Khan son of Sultan Mehmood Khan was convicted for offence under section 302, P.P.C. For causing Qatal-e-Amd of Glulam Muhammad and was sentenced to death by judgment dated 2-12-1993 passed by Sessions Judge, Attack.
2. The prosecution case as stated in F.I.R. Exh.P.E. Based on the statement of Gulzar Khan complainant P.W.7 is in the following terms: "He was constructing a house in village Amir Khan at a distance of 50/55 yards towards south-east from the house of his father-in-Jaw Gulag Khan. At about 9-00 a.m. On the same day he was collecting stones outside the house under construction, when he heard the alarm from eastern side in the land of his father-in-law Gulag Khan and rushed towards that side. He saw that his wife's brother, namely, Glulam Muhammad (deceased) was pulling his she-donkey towards his land when Glulam Mustafa alias Sahib and Maryam Khan (accused) belonging to his village wanted to take his she-donkey forcibly along with them. They had loaded a wheat bag on she- donkey. Glulam Muhammad (deceased) threw down the bag containing wheat loaded on the she-donkey. On this Mara Khan accused in anger, threw a challenge that he would take revenge of his insult from Glulam Muhammad, because he was 'Khan' of the village. At the same time, he asked his co-accused Glulam Mustafa to bring Glulam Muhammad (deceased) towards the land and the house and he was going to fetch the arms and he would not let alive Glulam Muhammad.
' The complainant further added that on hearing this, he became upset and ran towards the nearby fields to save Glulam Muhammad and raised alarm on which Elahi Bukhsh given up P.W.), Muhammad Safdar (P.W.8) and Abdullah, resident of the village came running towards him. He narrated them the whole story and took them towards the place where Ghulam Muhammad was present. They saw that Ghulam Mustafa alias Sahib (accused) had taken Glulam Muhammad (deceased) in the land of Mehmood Khan etc. Where there was no crop whereas Mahram Khan (accused) after bringing the pistol from his home had reached there and he fired at Glulam Muhammad by his pistol by abusing him which hit him on his left eye-brow, as a result of which he fell down and succumbed to the injuries. All of them, raised alarm to apprehend them and followed them but the accused managed to run away towards village side by raising alarm.
' The motive behind this occurrence is stated to be that Mahram Khan accused considered himself as 'Khan' of the village and other as 'Kamin'. When the brother-in-law of the complainant did not allow him to take his she-donkey, the accused felt insulted and they, in furtherance of their common intention committed his murder."
3. Ch. Nisar Ahmad, Inspector/S.H.O. P.W.9 after receiving information about the occurrence went to the spot, prepared inquest report Exh.P.F. And injury statement Exh.P.J., inspected the spot and collected blood-stained earth vide memo. Exh.P.F., and an empty cartridge Exh.P.A. Which was secured vide memo. Exh.P.G. The witness also took into possession she-donkey vide memo. Exh.P.H.
And one bag of wheat Exh.P.9 vide memo. Exh.P.I. He prepared site plan Exh.P.K. And sent the dead body to the mortuary at T.H.Q. Hospital, Fatehjang. The Inspector recorded the statements of witnesses under section 161, Cr.P.C. He had arrested Mahram Hayat and Glulam Mustafa alias Sahib accused on 18-6-1993 and later recovered a pistol Exh.P.5 alongwith four live cartridges Exh.P.7/1-4 and its license Exh.P.6 at the instance of Maryam Hay at accused and handed over the case property to Mohair of Police Station for keeping the same in the store room of the police station.
Both the accused were found guilty and sent up to face trial before the Court.
4. The prosecution examined as many as nine witnesses at the trial.
4-A. Dr. Muhammad Shujaat Khan P.W.1, conducted the post-mortem on the dead body of Ghulam Muhammad on 10-6-1993. He noted the following injuries on his person:
(1) A lacerated wound 4 c.m. x 1 c.m. On left eyebrow middle into bone deep margins were inverted and blackening was present. The bone probed and traced on right side. Frontal bone was fractured from the wound of entry. In scalp and skull it was fractured on the said injury membranes and brain was ruptured.
' The injury was caused by fire-arm weapon. The cause of death was shock and hemorrhage which was sufficient to cause death in ordinary course of nature. The probable time between injury and death was within half an hour, while between death and post-mortem was about 4 to 6 hours.
6. Azmat Hayat Shah Constable P.W.2 escorted the dead body of the deceased to the mortuary for post-mortem examination. After post-mortem examination he was handed over a sealed phial P.1, blood-stained earth P.2, blood-stained Shalwar P.3 which he handed over the same to the Investigating Officer. Noor Ahmad Patwari P.W.6 prepared site plan Exh.P.C. And Exh.P.C./1. Inayat Ali P.W.6 witnessed the recovery of pistol Exh.P.5 and four live cartridges Exh.P.7/1-4 and its license Exh.P.6:
7. Gulzar Khan, complainant appeared as P.W.7. He re-affirmed the narrative contained in the F.I.R.
He witnessed blood-stained earth which was secured vide memo. Exh.P.F. And an empty cartridge Exh.P.8 which was taken into possession vide memo. Exh.P.G. The witness stated that in his presence she-donkey belonging to Glulam Muhammad deceased was taken into possession vide memo.
Exh.P.H. And a bag Exh.P.9 containing wheat Exh.P.I. The complainant had also identified the dead body of the deceased at the time of post-mortem examination. Muhammad Safdar P.W.8 supported the version as advanced by Gulzar Khan P.W.7.
8. Ch. Nisar Ahmad, Inspector appeared as P.W.9. He testified about the various steps taken by him during investigation as stated above.
9. In their statements, recorded under section 342, Cr.P.C. The accused professed innocence.
Maryam Hayat, accused-appellant, took the stand that the witnesses were related to one another and they had deposed against him due to that. He further stated that the deceased had grappled with him when he was taking a bag of wheat on donkey belonging to the accused with permission of his father and the deceased took out an unlicensed revolver and during the scuffle the same went off and the deceased was hit by himself.
10. The trial Court believed the prosecution case to the extent of Maryam Hayat and convicted him for offence under section 302, P.P.C. And sentenced him to death. Ghulam Mustafa, co-accused of Maryam Hayat was acquitted from the case.
11. Maryam Hayat submitted Criminal Appeal No,208 of 1993 against the conviction and sentence awarded to him. The complainant submitted Criminal Revision Petition No,58 of 1994 against acquittal of Ghulam Mustafa and for enhancement of compensation. The matter has also been referred to under section 374, Cr.P.C. For confirmation of sentence of death imposed on Maryam Hayat. Learned counsel for the parties have been heard today.
12. Learned counsel for the appellant submitted that the learned trial Court had miss appreciated the evidence on record and had drawn wrong conclusions therefrom. It was argued that the defense had successfully shown that Gulzar Khan, complainant was not resident of village Amir Alam but was resident of village Shahpur as was evidenced by Exhs.D1 to DK voters list and application seeking employment for Gulzar Khan and Gulzar Khan was not in position to have witnessed the occurrence. It was further contended that Safdar P.W.5 had attended the Court of Assistant Collector at Fateh Jang which was manifested by Exhs.D.E. And D.F. And he could not have been present in the village when the occurrence took place and if the testimony of these witnesses was excluded there was nothing in the hands of the prosecution to bring home the guilt to the accused and the version advanced by the accused which was the correct version of the incident should be taken into consideration. Learned counsel, in the alternate, pleaded that there was no background of enmity between the parties and it was a sudden and unpremeditated occurrence and maximum penalty of death was not called for in the circumstances. Learned counsel for the State assisted by learned counsel for the complainant supported the impugned judgment. It was argued by them that it was a day time occurrence and all the villagers were up and around and incident would have been seen by people from miles around the place. It was argued that the deceased and the complainant party and witnesses were ordinary tenants and they could not have dared to have falsely involved the accused in the case. As regards the alternate plea raised by the learned counsel for the appellant, learned counsel for the complainant, agreed to this extent that there was no background of enmity between the parties and submitted that in case the Court came to the conclusion that maximum penalty of death was unwarranted, he would stress that the bereaved family be compensated adequately and also in sure terms.
13. The occurrence, the time and place of occurrence, the manner in which the death was caused (by fir-arm) and the reason for the incident which related to use (unauthorized or otherwise) of donkey belonging to the deceased stand admitted. According to prosecution the appellant expropriated donkey belonging to deceased and was carrying a bag of wheat to the flour machine when the deceased snatched the donkey from the appellant, the bag of wheat fell off the animal and the appellant being landowner in the village felt insulted, asked his companion to bring the deceased towards his place. Fetched a pistol from his home and fired with that at the deceased who died as a result of the injury received. The case of the appellant on the other hand is that he took away deceased's donkey with the permission of his father and the deceased tried to snatch the animal and then took out an unlicensed revolver which went off fatally hitting the deceased and that this incident was not witnessed by anyone. We, as such, are required to examine the respective stands of the parties.
14. The occurrence in this case took place at about 9-00 a.m. On 10th June, 1993 in village Amir Khan located about 14 k.m. From the police station where first information report was recorded at 9-45 a.m. The post-mortem examination on the dead body was carried out on the same day at 1- 30 p.m. And according to the Medical Officer P.W.1, the probable time which had elapsed between death and post-mortem examination was 4-6 hours. Therefore, the first information report appears to have been lodged quite promptly. The narrative contained in F.I.R. Is fairly detailed, the manner in which incident took place, the names of accused, the roles played by them, the names of the witnesses have been catalogued therein. In this situation, where the complainant does not consume much time in reflecting upon the whole affair, the F.I.R. Can be treated as a credible document.
15. The mainstay of the defense is that Gulzar Khan, complainant P.W.7 and Muhammad Safdar P.W.8 who were closely related to the deceased were not present at the spot and had deposed falsely against the accused. In this context, electoral rolls for village Shahpur Exh.D.1. And an application given by one Sarfraz Khan Exh.D.J. Were relied upon to press the argument that Gulzar Khan was resident of village Shahpur. People get themselves enrolled in different villages keeping in view the local interest. Being enrolled as voter in any particular area is not an indication of the fact that the person is resident of that area only and could not have been resident of another village. As far as document Exh.DJ, was concerned, it was a private document and its scribe did not appear at the trial and was not admissible in evidence. Even otherwise it did not show that Gulzar Khan was not resident of village Amir Khan. Gulzar Khan had duly explained that he being issueless lived in village Amir Khan and was building his own house there as well and the Investigating Officer, P.W.9 had categorically stated that he had investigated into this aspect of the matter and had found Gulzar Khan to be resident of village Amir Khan. It may also be seen that the occurrence in this had taken place in open fields and the spot was visible from considerable distance. Even the Patwari, P.W.5 who had prepared site plan Exh.P.C. Had noted in the plan that no crop was growing in the fields surrounding the place of occurrence and nothing stood in between the place and different witnesses to block their view. Village Shahpur was only 1-1/2 k.m. Away from village Amir Khan and no worthwhile evidence has been led by defense which would show that Gulzar Khan was not present in the village or he could not have been present in village Amir Khan. As far Safdar, P.W.8 is concerned; it was argued that he was present in the Court of Assistant Collector, Fateh Jang on 10-6-1993 which was evidenced by Exh.D.F. And Exh.D.G. As far as Exh.D.G. Is concerned, this relates to dispute between Muhammad Hussain and Sarwar, Exh.D.F. Notes presence of two of the defendants in the Court of Assistant Collector Grade H. But such interim orders are mechanical orders. The interim order also notes presence of circle Patwari in the same Court. This circle patwari appeared at the trial as P.W.5 also as he had prepared site plan Exh.P.C. But it was not even suggested to him that Safdar was present before Tehsildar/A.C. Grade-II Fateh Jang on . 10-6-1993.
The arguments advanced on behalf of the appellant are without force and we reject the same. The presence of the witnesses at the spot is believed and likewise their testimony is considered to be credible.
16. The defense version does not have the support of attending circumstances of the case and is also belied by the medical evidence. The bullet C had hit the deceased on his left eye-brow at middle and had travelled to the right. The path traversed by the missile was straight and it had not travelled from below to upper part of the head and was fired by somebody who was standing in front of the deceased. If the deceased was holding the revolver in his hand, the angle of fire and the path travelled by the projectile would have altogether different. The defense version is an afterthought, it was not the first version of the accused and we reject the same.
17. After having gone through the entire material on record, the incident appears to have occurred in the manner that Mahram. Hayat marshaled donkey belonging to the deceased and was carrying a bagful of wheat to the flour-machine when deceased, annoyed at the unauthorized use of his animal tried to snatch the donkey from Mahram Hayat, in which process the bag of wheat fell off the back of the animal and Mahram Hayat who belonged to family of landowners being incensed at the audacity of a tenant fired at Ghulam Muhammad who lost his life. The prosecution case to this extent has been proved beyond any reasonable doubt.
18. For the foregoing reasons, we maintain the conviction of Mahram Hayat for offence under section 302, P.P.C. But keeping in view the fact there was no enmity between the parties and occurrence was a sudden flare-up in which the deceased also contributed a little bit, we consider that awarding of maximum penalty of death on Maryam Hayat would not be well-warranted and, therefore, penalty of death imposed on him is converted into sentence of imprisonment for life under section 302(b), P.P.C. The deceased was a young man and had contracted marriage recently and his family, thus, deserves to be compensated adequately. The convict shall pay an amount of Rs,one lac as compensation to legal heirs of deceased by 31st December, 1998. In the event of default in payment of compensation, the convict shall undergo simple imprisonment for five years, further. The convict shall not be entitled to benefit of provisions of section 382-B, Cr.P.C.
In case compensation is not paid by him to legal heirs of the deceased. The appeal filed by Maryam Hayat - convict is dismissed with above modification in sentence.
19. The criminal revision petition has been found to be without merit and is dismissed.
20. Murder reference is answered in the negative.
Sentence reduced.