' KHALIL-UR-REHAN RAMDAY, J.--- One Adalat Hussain alias Zar Adalat was tried by the learned Sessions Judge of Jhelum for the murder of one Muzaffar Ali. Through his judgment, dated 20-10- 1992, the said learned trial Judge found the said Adalat guilty of the said charge; convicted him under section 302, P.P.C. And punished him with death. He was also directed to pay a fine of Rs,50,000 or to suffer five years' R.I. In default of payment of the said fine. An amount of Rs,40,000 out of the said amount of fine was directed to be paid to the heirs of Muzaffar Ali deceased, as compensation.
2. Murder Reference No,393 of 1992 seeks confirmation of the said sentence of death awarded to Adalat Hussain convict who filed Criminal Appeal No,165 of 1992 to impugn the above noticed conviction and punishment recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 1-12-1991 at about 4-30 p.m. In the shop of Ghulam Ali P.W.5 in the Bazar of Mauza Haranpur Chak No,52 about 7 miles from Police Station Pind Dadan Khan of District Jhelum and the said occurrence had been reported at the said police station by a son of the deceased, namely, Sana Ullah complainant at about 5-30 p.m.
4. Narrating the occurrence and the background leading thereto Sana Ullah complainant had mentioned that he was a resident of Haranpur; that he had given a tape-recorder for repair to Ghulam Ali P.W.; that on the day of occurrence his father went to the shop of Ghulam Ali to get the said tape-recorder; that the complainant also went to the said shop after a little while; that just as he reached the said shop he saw Adalat accused entering the shop in question where after he took out a carbine and fired at the deceased raising a Lalkara that he had come to teach a lesson to the deceased for giving evidence against him; that the accused then ran away from the place of occurrence and that the deceased died at the very place of occurrence.
5. Disclosing the motive for the said occurrence, the complainant had alleged that Adalat accused and others had murdered one Nawaz in the year 1986 and that the complainant and his father were witnesses against the said accused in the said murder case and finally that it was on account of this grievance that the accused had done the deceased to death.
6. Mian Khan,, Inspector/S.H.O. Visited the place of occurrence from where he collected blood with the help of cotton and seized it vide memo. Exh.P.D. He also collected tape-recorder (P.1) and loud- speaker (P.2) from the said shop vide memo. Exh.P.C. He arrested Adalat accused on 19-12-1991 who then allegedly led to the recovery of .12 bore carbine (P.3) on 21-12-1991 which was taken into possession vide memo. Exh.P.E.
7. When confronted with the prosecution case the appellant denied his involvement in the occurrence in question and attributed his false implication to enmity.
8. Ghulam Ali P.W.5 runs a shop for the repair of Radio etc. And it was in his shop that the occurrence in question had taken place. He entered the witness-box and declared that while Adalat accused was his Phoophizad he was also related to the deceased as his sister was married to a paternal-cousin of Muzaffar deceased. He verified the prosecution claim that the complainant party had given him a tape-recorder and a loud-speaker for repair which he had produced before the Investigating Officer being P.1 and P.2. He had conceded that he had not seen the actual occurrence because he had gone to his house which was about 100 yards from his shop and when he had returned to his shop he had found the deceased lying dead in his said shop.
9. The ocular testimony had been offered by Sana Ullah complainant P.W.8 and one Muhammad Ali P.W.9. Sana Ullah complainant is a son of deceased but Muhammad Ali P.W.9 was not related to the deceased party nor could it be demonstrated by the appellant that he had any or any motive which could have led him to falsely implicate the appellant in the occurrence in question.
10. The occurrence in question had taken place in a Bazar with a number of shops around it and in broad daylight. Thus, there was no possibility of the occurrence having gone unwitnessed or the culprit having escaped unidentified.
11. Six fire-arm injuries had been found on the person of the deceased out of which three injuries had been found on the left side of the deceased while the other injuries had been found on his right side. From the medical evidence it appears that the injuries on the left side of the body of the deceased were the wounds of entrance caused by pellets and the ones on the right side were the wounds of exit. It was only a person who had actually witnessed the occurrence who could have declared that all the six injuries were the result of one shot fired at the deceased and if the eye- witnesses had not seen the occurrence then there was a possibility of their having claimed firing of more than one shots by the assailant on the deceased.
12. It was not denied that one Nawaz who was a cousin of the wife of the deceased had got murdered in the year 1986 and that the appellant and his two sons were amongst the accused persons of the said murder; that the two sons of the appellant had been acquitted by the learned trial Court but Adalat appellant who was convicted for the said murder, was acquitted only in appeal; that Muzaffar deceased and Sana Ullah complainant were P. Ws. In the said case and Muzaffar deceased had been given up but Sana Ullah had appeared as a witness to prove the motive of the said murder case.
13. Having, thus, examined the entire record relating to the present murder and having considered all aspects of the case, we find that no exception could be taken to the finding of guilt as recorded by the learned trial Judge against Adalat appellant. His conviction for Qatl-e-Amd is, therefore, maintained.
14. This brings us to the question of confirmation or otherwise of the sentence of death awarded to Adalat appellant.
15. It is admitted in the evidence that Adalat appellant was acquitted in the murder case of Nawaz in the year 1987 and had returned home. No untoward incident had happened between the parties for about four years i.e, since the return of Adalat to the village after his acquittal till the day of occurrence. If the appellant had been planning to take revenge from the Muzaffar deceasgd for about four years then he is not reasonably accepted to have selected broad daylight to take revenge from the deceased and that also in a busy bazar. It is also available on record that Muzaffar deceased had not actually entered the witness-box in the said murder case but had been given up. Therefore, we are not too sure about the actual immediate cause prompting the murder in question. Consequently, the sentence of death awarded to Adaalat appellant is not confirmed, and he is instead directed to suffer imprisonment for life under section 302(b), P.P.C. He shall also be allowed the benefit of provisions of section 382-B, Cr.P.C.
16. The provisions of section 302, P.P.C. As they stood on the day of occurrence did not envisage punishment of fine. Therefore, the sentence of fine imposed on the appellant and his imprisonment in default of payment of the said fine are set aside. We would have ordinarily passed an order under section 544-A, Cr.P.C. But as no notice has been issued to the appellant for the purpose, therefore, no such order is being passed by us.
17. Criminal Appeal No,165 of 1992 and Murder Reference No,393 of 1992 are disposed of in the above terms.
Sentence of death not confirmed.
Sentence reduced.