' This is an appeal under section 410, Cr. P. C . Against the judgment, dated 30-11-2000 passed by the learned Additional Sessions Judge, Lodhran convicting the appellant under section 302(b), P.P.C. As Tazir and awarding sentence of life imprisonment and to pay Rs,1,00,000 as compensation to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C, and in default to undergo R.I. For six months and the compensation shall be recoverable as land revenue and benefit of section 382-B, Cr.P.C. Was also granted.
2. Briefly stated the facts of the case as alleged in the F.I.R. No,343 of 1999 registered under section 302 at Police Station Jalla Arian, District Lodhran are that the complainant Sher Muhammad alleged the report that he lives in Chak No, 376/WB. He was carpenter by profession and had been allotted two acres land by Government which was cultivated by his brother Mian Muhammad . It was his turn to irrigate his land from 1-43 a.m. To 3-23 a.m. In the midnight between 13/14 March, 1999. It was also his turn from "Theekripehra" and about 1-00 a.m. In the night he alongwith Pervaiz had gone to the house of his brother Mian Muhammad and had taken tea with him and then went to Chak for watch duty while Mian Muhammad had gone to the Khal for turn of irrigation after having lantern, Soti Bansi and Kasi at about 1-30 in the night they heard the voice of two shots of, fire from eastern side 'of Chak to which they paid no heed and slept after prayer time and finishing watch duty at about 6-15 a.m. Ghulam Rasool alias Puno informed them that his brother Mian Muhammad was lying dead on road side near the land owned by Ahmad Sher Wan. He alongwith Ghaus Muhammad, Muhammad Yousaf of the vicinity reached at place of occurrence where they saw Mian Muhammad lying dead in blood-stained condition and that unidentified persons had killed his brother Mian Muhammad and that the complainant or his brother Mian Muhammad had no enmity with anybody and for the time being he had no doubt for the murder of anybody. After completing investigation, the challan was submitted to the Court where prosecution examined Slier Muhammad (P.W.8), who confirmed his version of F.I.R. (Exh.PL), Sahib Khan (P.W.4), who deposed that on 14/15th March, 1999 he was present at his Dera when the accused came to him who was mentally disturbed and informed that he had killed Mian Muhammad due to the reason that the said deceased gave to his wife Taaviz in result of which she left his house in an anger and he also informed that only due to this grudge he had killed Mian Muhammad with his gun and that this extra-judicial confession was made before him when Amir Khan P.W. Was also present and that the accused wanted to get the matter compromised with the complainant. Mr. Jamil Ahmad Shahzed the learned Magistrate (P.W.1) deposed that on 24-3-1999 a written request was made by the police (Exh. PA/1) and he recorded the statement of Amir Hussain under section 164, Cr.P.C.
Which is (Exhs.PA/2 to 3) and attached with certificate (Exh.PA/4). Dr. Muhammad Iqbal Shah appeared as (P.W.2) who deposed that on 14-3-1999 he conducted post-mortem examination of Mian Muhammad and found the following injuries:-
(1) A lacerated wound on lower 1/3 of extenser surface of fore-arm 1.4 edges enverted burning positive.
(2) A lacerated wound on lower 1/3 of extenser surface on right forearm 1 x 1.5 c.m. Edges inverted burning positive 2 c.m. Away from injury No,1.
(3) A lacerated wound 1 x 1 c.m. Ovel shape on mid of left buttock edges inverted.
(4) A noval lacerated wound 1 x 1 c.m. On mid of right buttock edges inverted.
(5) A lacerated wound 1 x 1 c.m. On mid sacral region edges inverted.
(6) A lacerated wound oval shape 1 x 1 c.m. On back of right thigh 10 c.m. Above popliteal region edges inverted.
(7) A lacerated wound 1 x 1 c.m. On back of right thigh middle part edges inverted.
' EXIT WOUNDS:
(8) A lacerated wound semi-circular 1.5 x 1.5 c.m. On left side of abdomen 6 c.m. Below umbilicus edges evened.
' A lacerated wound 1.5 c.m. x 1.5 c.m. On left inguinal region edge's everted.
' A lacerated wound 1.5 x 1.5 c.m. On front of right 5 c.m. Below injury No, 9.
' A lacerated wound 1.3 c.m. x 1.3 c.m. On front of right thigh 7 c.m. Above knee edges everted.
' A lacerated wound 1.5 c.m. On front side of right forearm on lower 1/3 edges everted.
' A lacerated wound 1.5 c.m. x 1.5 c.m. On front of right forearm adjacent to wound No, 12 edges everted.
(14) A lacerated wound on medial surface of left thigh 4 c.m. x 1 c.m. x skin deep burning positive.
3. In the opinion of the doctor, all injuries were ante-mortem and the cause of death was haemorrhage and a shock due to all injuries, particularly due to fracture of right femur and bladder injury in abdomen, in d course of time all injuries were caused by fire-arm.
4. Iftikhar Ahmad (P.W.5) is the recovery witness of double barrel gun (P.1) at the pointation of the accused-appellant, parcel of which was (Exh.PF). Muhammad Yousaf PW.7) is the recovery witness of bloodstained clothes of Mian Muhammad i.e, shirt (P.2), Chadar (P.3), Saloka (P.4), Pagri (P.5) alongwith Chadar (P.6), Tasbi (P.7), Wrist watch (P.8) two rings (P.9 and P.10) which were taken into possession by the I.C. Vide recovery memo. (Exh.PG ) and Kassi (P.11), Soti (P.12), lantern (P.13 ) and a pair of Chappal (P.14/1-2) which were taken into possession by the police vide recovery memo.
(Exh.P,H), two empties of cartridges (P.16 and P.17) were taken into possession vide recovery memo.
(Exh.P.J) and blood-stained earth vide recovery memo. (Exh.P.K). Abdul Ghafar (P.W.10) was Moharrer Head Constable, who deposed that he had handed over sealed parcel containing .12 bore double-barrel gun. Ashiq Ali (P.W.11) was Constable-79, who deposed that he delivered a sealed parcel containing .12 bore gun to the Forensic Science Laboratory, Lahore on the same day.
Abdul Sattar (P.W.6) identified the dead body of Mian Muhammad deceased before the Medical Officer. Muhammad Ashraf (P.W.9) recorded the statement of Sher Muhammad (Exh P. L) and conducted the investigation. Hafiz Muhammad Abdullah (P.W.3) who deposed that he inspected the site and prepared the site-plans (Exhs.P.E & P.E/1). The report of the Forensic Science Laboratory is (Exh.P.0) and the report of the Serologist (Exh.P.P) and the report of Chemical Examiner is (Exh.P.Q). P.Ws. Ghaus Muhammad, Salah Muhammad and Ghulam Rasool were give up being unnecessary.
5. After the conclusion of the prosecution evidence, the accused was examined under section 342, Cr.P.C. Who pleaded not guilty and stated that he has been involved in this case on account of enmity at the instance of Ahmad Sher, Member Khidmat Committee who was inimical to his father and that the deceased dealt in Taaviz Ganda and used to give Taaviz and was involved in immoral activities and enjoying bad reputation in locality and that some unknown person killed him. The accused did not opt to lead evidence under section 340(2), Cr.P.C. And after hearing the arguments, the impugned conviction and sentence were passed.
6. The main argument of the learned counsel for the appellant is on the statement under section 164, Cr.P.C. Of the accused which he made before the learned Magistrate. It has come that murder took place for the reasons that the accused saw his wife in a compromising position with the deceased and only out of "Ghairat" he had committed murder and this fact is supported by Sahib Khan (P.W.4), and that if this case was true the case is falling within the meaning of section 302(c), P.P.C. And not 302(b), P. P .C .
7. Learned counsel for the State could not rebut this argument from the record.
8. In this view of the matter, the appeal is partly accepted and the sentence and conviction of the accused Amir Hussain is modified from under section 302(b) to under section 302(c) and sentence already undergone by the convict is considered sufficient but the compensation of Rs,1,00,000 to be paid by the appellant to the legal heirs of the deceased is maintained.
9. However, it is ordered that the same amount shall be paid in four equal instalments and the appellant shall be released on the payment of first instalment to the legal heirs before the trial Court against valid receipt and if there is any minor then the share of the minor shall deposited in the Bank which shall be received by anyone except by minor when age is major. The remaining instalments shall be paid after every three months failing which he shall remain in jail till all the instalments re paid by him in lump sum.
Sentence reduced.