' This appeal is directed against the judgment, dated 29-10-1998 passed by learned Additional District Judge, Rawalpindi whereby he convicted the appellant Muhammad Jamil under section 302(c), P.P.C. And sentenced him to undergo R.I. For 15 years and to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. Or in default thereof to undergo S.I. For six months. Benefit of section 382-B, Cr.P.C. Has also been extended to the appellant.
2. Succinctly stated the prosecution case is that Habib-ur-Rehman son of the complainant Muhammad Mushtaq was employed in a factory situated in Hattar. On 9-10-1996 he had to move for Hattar to join his duty. The parents of Mst. Rehana Bibi wife of Muhammad Munir, a daughter of his cousin, reside at Haripur. Habib-ur-Rehman along with his younger brother Muhammad Rizwan went to the house of Mst. Rehana Bibi to receive any message from her for her parents. Both the brothers entered the courtyard of Mst. Rehana Bibi at 4-30 a.m. Adjacent to the house of Mst.
Rehana Bibi, the house of Muhammad Bashir, an elder brother of Muhammad Zamir is situated.
Both the said houses, however, have a common courtyard. Muhammad Jamil son of Muhammad Bashir came out with his .12 bore gun and raised Lalkara upon them. Upon this Habib-ur-Rehman started running. Muhammad Jamil fired at him which hit Habib-ur-Rehman on his back, as a result of which he fell down. The occurrence was witnessed by Muhammad Rizwan as well as Muhammad Tariq son of Abdul Hakim who was also present adjacent to the place of occurrence.
On receipt of such information the complainant reached the spot and found that his son Habib-ur- Rehman was tossing at the place of occurrence. He put the injured on a cot and made for his house who on the way succumbed to the injuries. He left the dead body in the courtyard of his house. He stated that motive behind this occurrence was that Muhammad Jamil suspected Habib- urRehman for carrying on with his mother Mst. Taazim Bibi and had committed the murder on account of suspicion. Leaving the dead body in the courtyard of his house, he made for police station and lodged F.I.R. Exh.P.G which was recorded by Ishtiaq Ahmed, 5.-I. (since deceased). After usual investigation the case was sent up to the Court for trial.
3. A charge under section 302, P.P.C. Was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution examined Dr. Asif Mehmood P.W.1 who on 9-10-1996 conducted the post-mortem examination of Habib-ur-Rehman deceased and found the following injuries on his person:---
(1) A wound of entrance 5 c.m. x 3.5 c.m. Of main wound, with surrounding irregular and inverted margins without burning of the surrounding skin. No blackening but tattooing was present. This main wound was surrounded by multiple circular pellet size wound in satellite pattern covering the total area of 9 c.m. x 6 c.m., the bullets were directed interiorly lacerating the underline muscle. It was situated on back of the chest on lateral side and lower part .5 c.m. From mid line and between 5th and 7th ribs, 24 c.m. Below upper border of the chest 9 c.m. Medially to the left posterior axillary line. There was fracture of underline of 6th and 7th ribs.
' Notes.---Corresponding holes were present in the back portion of Kameez and Bunian and were blood-stained x-ray film of chest showing multiple pellet in left chest cavity was attached.
5. In his opinion death has been caused by hemorrhage shock due to massive internal bleeding caused by Injury No,1 which was fire-arm injury and was ante-mortem in nature. The injury was sufficient to cause death in the ordinary course of nature. Time between injury and death was about two hours whereas between death and postmortem examination was about 10 hours. After post-mortem examination he handed over the last worn clothes of the deceased and a sealed phial containing pellets as well as plastic wads and other documents to Muhammad Arif, H.C. He issued postmortem examination report Exh.P.A and diagrams Exh.P.A/1 and Exh.P.A/2 which bear his signature. He also signed inquest report Exh.P.B and application for postmortem examination Exh.P.C. Qamar-ud-Din P.W.2 is the draftsman who visited the place of occurrence on 28-10-1996 and prepared site plans Exh. PD and Exh. P.D/1 on 12-11-1996 and handed over the same to Ishtiaq Ahmed, S.I. On the said date. Zulfiqar Ali P.W.3 was given a sealed parcel containing blood-stained earth by Mukhtar Ahmed Moharrir on 13-10-1996 along with another sealed parcel containing empty of .12 bore gun for onward transmission to the Office of Chemical Examiner and Forensic Science Laboratory, Lahore. He delivered the said parcels in the said offices on 14-10-1996.
Muhammad Arif, H.C. P.W.4 escorted the dead body of Habib-ur-Rehman on 9-10-1996 to T.H.Q.
Hospital, Gujjar Khan for postmortem examination. Thereafter he was handed over the last worn clothes of the deceased consisting of Shalwar P.1, shirt P.2 and Bunian P.3 and a sealed envelope.
He produced all the said articles before the I.O. Who secured it vide memo. Exh.PE which bear his signature. Muhammad Nazir Constable P.W.5 was given a sealed parcel containing .12 bore gun on 20-11-1996 for onward transmission to the Office Of Forensic Science Laboratory which he delivered there on the following day. Mukhtar Ahmed Moharrir/A.S.-I. P.W. 6 deposed that on 9-10-1996 he was given two sealed parcels consisting of blood-stained earth and an empty of .12 bore gun for keeping the same in Malkhana at the hands of Ishtiaq Ahmad, S.-I. On 13-10-1996 he delivered the said parcels to Zulfiqar Ali, Constable (P.W.3) for further delivery in the Office of Chemical Examiner and Forensic Science Laboratory, Lahore. On 11-10-1996 Ishtiaq Ahmed, S.-I. Handed over to him a parcel containing .12 bore gun for keeping the same in Malkhana. On 20-11-1996 he delivered the said parcel to Muhammad Nazir Constable (P.W.5) for onward transmission to the Office of Forensic Science Laboratory.
' He further deposed that from September, 1996 to 29-1-1997 he has been posted as Moharrir, P.S. Mandra. During the said period Ishtiaq S.-I. Had been posted over there as such was conversant with his hand writing and signature. He further deposed that said Ishtiaq Ahmed, S.-I. Has died. He produced F.I.R. Exh.P.G, memo. Of recovery of blood-stained earth and an empty of .12 bore gun Exh.P.F, memo. Of recovery of gun P.5 along with 3 live cartridges P.6 to P.8 Exh.P.H, inquest report Exh.P.B, application for post-mortem examination Exh.P.C, memo. Of recovery of last worn clothes of deceased Exh.P.E red notes on site plans Exh.P.D and Exh.P.D/1, rough site plan Exh.P.J alleged to have been prepared by Ishtiaq Ahmed, S.-I. And identified his signature on the said documents.
' Abdul Khaliq, P.W.7 identified the dead body of Habib-ur-Rehman at the time of post-mortem examination. Muhammad Shafqat, P.W.8 is witness of memo. Of recovery of blood-stained earth and empty of .12 bore gun which were secured vide memo. Exh.PF. Muhammad Mushtaq complainant P.W.9 is the scriber of F.I.R. Ddi.PG and has corroborated his version contained therein.
He deposed that on 16-10-1996 the accused led to the recovery of .12 bore gun P.5 and 3 live cartridges P.6 to P.8 which were lying concealed in Nawar of his bed and which were secured vide memo. Exh.P.H. Muhammad Rizwan P.W.10 is one of the eye-witnesses who has corroborated the prosecution version. The learned D.D.A. Gave up the other eye-witness Muhammad Tariq being unnecessary and produced reports of Chemical Examiner Exh.P.K, of Serologist, Exh.P.L and of Forensic Science Laboratory Exh.P.M and closed the case for prosecution.
6. When examined under section 342, Cr.P.C. The accused/appellant denied the prosecution version and in reply to question No,15 as to why the case had been registered against him and why the P.Ws. Had deposed against him replied as follows: ' On 9-10-1996 at 2/2-30 a.m. I was sleeping in a room of my house whereas my mother and my paternal aunt were sleeping in another room which was towards the room of house of Zameer husband of Mst. Rehana. The courtyard of the Havaili of Zamir and my father is common. I got up on hearing the report of some sound outside. I picked up a licensed gun of my father and came out of my house. There was darkness outside and there was no light. I saw a person fiddling with the door of the room of my mother and aunt and trying to open the same. I called him, but he did not reply, on which I fired a shot which hit him and he fell on the earth. I came near him and saw that he was Habib-ur-Rehman. He was bare footed. I went myself to the house of the father of Habib- urRehman to inform him of the incident. None of the witnesses as have claimed in this case were present on the scene of occurrence. The blood-stained earth and dead body of the deceased Habib-ur Rehman was removed from the courtyard of our house. On the same day in the early hours I myself appeared in the police station along with the gun and reported the matter to police.
Police came on the place of occurrence in pursuance of my report. Habib-ur-Rehman was a man of immoral character. Neither we nor my paternal aunt Mst. Rehana were on visiting terms with the family of Habib-ur-Rehman. Twice before this occurrence he committed such-like offence in the village. Once in the house of Mehboob and once in the house of Mehrban where he was apprehended and given beating. I in order to save the honour of the women of my family and to save them from disgrace out of Ghairat fired.
7. He further stated that neither he would like to make statement under section 340(2), Cr.P.C. Nor adduce any defence evidence.
8. After going through the evidence produced by the prosecution, the trial Court convicted the accused/appellant vide judgment under appeal.
9. Arguments have been heard and record perused.
10. Contention of the learned counsel for the appellant is that occurrence stands admitted and the only point to be resolved is if the appellant has been awarded punishment in accordance with law or not. He further contended that as per prosecution version, the occurrence has taken place at 4- 30 a.m. When Habib-ur-Rehman along with his brother Muhammad Rizwan had gone to the house of Mst. Rehana Bibi for obtaining any message in the name of her parents, as Habib-ur-Rehman deceased was going to Hattar to join his duty and parents of Mst. Rehana Bibi used to live there. He argued that this prosecution version does not appeal to reason as nobody would go to the house of another person at that odd hours of the night just for the purpose of collecting some message in the name of her parents. He contended that actually the deceased alone had gone to the house of the accused/appellant as the deceased was carrying on with the mother of accused/appellant. He further argued that as the deceased was found in the courtyard of the Bose of accused fiddling with the door of room of his mother so on account of Ghairat he fired at him. He further submitted that dead body of the deceased was found in the courtyard of the accused and this fact further corroborates the accused/appellant's version that deceased had come there as he was carrying on with his mother. He submitted that accused/appellant being a young man of 17 years has committed the murder of the deceased out of sudden and grave provocation as well as Ghairat.
He further submitted that under similar circumstances the maximum punishment which has been awarded to the accused ranges between 3 to 5 years. He submitted that the sentence awarded be modified to one which he has already undergone as the appellant was arrested on 9-10-1996 and since then is in jail.
11. Conversely the impugned judgment has been supported by the learned counsel for the State.
12. According to the prosecution version contained in F.I.R. Exh.PG, the stand of prosecution is that the deceased Habib-urRehman along with his brother Muhammad Rizwan had gone to the house of Mst. Rehana Bibi for collecting some message from her for her parents who were residing in Haripur. Conversely the stand of appellant is that it was only the deceased who had come to the house of her mother with whom she was carrying on. As per prosecution version as soon as the deceased Habib-ur-Rehman and his brother Muhammad Rizwan reached the house of Mst.
Rehana Bibi which is situated within a common courtyard of the house of accused/appellant, the accused came out with his licensed gun and raised Lalkara. Upon this Habib-ur-Rehman started running and tried to scale over the wall but fell down as a result of fire shot received on his back.
Even if it is assumed that some message had to be collected from Mst. Rehana, what was the necessity or justification to visit her house at that odd hours of the night. Thus prosecution version regarding collecting some message from Mst. Rehana Bibi does not appeal to reason and does not ring true. The falsity of this prosecution version also becomes evident from the fact that as soon as accused/appellant is said to have raised Lalkara it was Habib-ur-Rehman who started making his good escape by scaling over the wall and his brother Muhammad Rizwan is said to have not budged an inch from there. If the, prosecution version is accepted as true, natural behavior of Habib-ur-Rehman as well as Muhammad Rizvan should have been that both of them should have run from there to save their lives. The mere fact that it was only Habib-ur-Rehman who tried to escape from there, shows that it was he alone who was present at the relevant time and Muhammad Rizwan was not accompanying him at the relevant time. Had Muhammad Rizwan been present along with Habib-ur-Rehman, the accused/appellant must have not allowed him to go alive or at least unhurt. Thus the prosecution version which has come on record through the statement of Muhammad Mushtaq complainant does not appeal to a man of ordinary prudence. It may also be mentioned here that Muhammad Mushtaq complainant is not an eye-witness and has reported the matter to police on the basis of information communicated to him by Muhammad Rizvan (P.W.10). It has been admitted by Muhammad Rizvan (P.W.10) that his statement under section 161, Cr.P.C. Was recorded which is Exh.DB. He further admits that he had stated in his statement that the deceased was scaling over the wall when he was fired at, that on receipt of fire shot the deceased had fallen in the courtyard of house of Fazil, that he had informed about this occurrence to his father. He has been confronted-with his statement Exh.DB where all these facts are not mentioned. These contradictions also reveal that story of scaling over the wall falling in the courtyard of Fazil and of narrating the story to the complainant is nothing but improvements made by P.W.10 Muhammad Rizvan who was not present at the relevant time along with deceased Habibur-Rehman. 'Had Muhammad Rizvan (P.W.10) brought all facts into the notice of his father Muhammad Mushtaq/complainant, the latter would have narrated such fact to the scriber of F.I.R. Exh.PG. The non-mentioning of these facts by the complainant in the F.I.R. Exh.PG also makes the complainant's version highly doubtful. All these facts lead to an irresistible conclusion that the occurrence has not taken place in the manner as depicted in the F.I.R. Exh.PG, but it has taken place in the manner as disclosed by the accused/appellant while replying question No, 15 in his statement under section 342, Cr.P.C. And as reproduced above.
13. It may also 'be argued that mere suspicion could not authorize the accused/appellant to commit the murder of the deceased and by this act of accused/appellant, he has exceeded his right of self-defence. There is no doubt that at the relevant time the deceased Habib-ur-Rehman was not found in an objectionable position with the mother of the accused/appellant yet the mere fact that deceased was found fiddling with the door of room of his mother with whom the deceased was suspected to be carrying on, was sufficient grave and sudden provocation authorizing the accused/appellant to commit the murder of the deceased. A grown up boy of 17 years seeing the deceased under such circumstances is expected to behave in the way in which the accused/appellant has behaved.
14. The upshot of above discussion is that the occurrence has been taken place in the manner in which it has been narrated by the accused/appellant in his statement under section 342, Cr.P.C.
And as such he committed the murder of the deceased Habib-ur-Rehman as a result of Ghairat.
Thus the offence squarely , falls under section 302(c), P.P.C. The trial Court has convicted the accused/appellant under section 302(c), P.P.C. And has sentenced him to undergo R.f. For 15 years and compensation of Rs,50,000. In offences committed under the impulse of Ghairat/ sudden and grave provocation the sentence has been ranging from 2 years to 5 years- and in this respect reliance is placed upon Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274, Saeed Ahmed v. The State 1996 PCr.LJ 1016, Fateh Muhammad alias Fattu v. The State PLD 1967 Lah. 579; Muhammad Ishaque alias Barq v. The State 1998 PCr.LJ 1110 and Muhammad Ayub v. The State 1997 PCr.LJ 2056. Thus keeping in view the peculiar circumstances of this case, the sentence awarded to the accused/appellant is reduced to 5 years. However, compensation awarded under section 544- A, Cr.P.C. Is maintained. The accused/appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
15. With this modification in the sentence, the appeal is dismissed. Sentence reduced.