' ZAFAR PASHA CHAUDHRY, J.--- Murder Reference No,194 of 1995 as well as Criminal Appeal have been taken up together as they arise out of common judgment, date 30-3-1995 passed by Rana Zahid Mahmood, Additional Sessions Judge, Kasur, whereby appellant Basharat alias Bao was convicted under section 302, P.P.C. As Tazir and was sentenced to death. He was also directed to pay Rs,30,000 as compensation to be paid to legal heirs of the deceased and in default thereof to undergo six months simple imprisonment.
2. As per prosecution case revealed from contents of F.I.R. No,25 of 1993 registered with Police Station Ganda Singhwala, District Kasur, Farzand Ali complainant (since dead) was coming to his house after offering Eid-ul-Fitar prayer. They were confronted with Arif, Ahmad Din and Basharat alias Bao (appellant). Basharat was armed with a revolver whereas the others were empty- handed. They were sitting in a Pulli near the culvert of the street. The complainant was accompanied by Riasat Ali, his son (deceased), Bashir and Liaqat Ali P.Ws. Nos.8 and 7 respectively.
Basharat appellant raised a Lalkara that Riasat Ali be done to death as he refused to give her hands in marriage to him. Simultaneously, he fired a shot which hit Riasat on the left side of his chest. He fell down and succumbed to the injury.
3. The motive was alleged to be that daughter of Riasat Ali had been engaged to Basharat alias Bao whereas Nazir son of Farzand had been engaged to Irshad daughter of Said. Muhammad Arif prevailed upon Nazir brother of Riasat deceased and got him married to Parveen daughter of Dara.
' Aggrieved by this, Riasat Ali refused to give hands of her daughter to the appellant which developed a grievance. It was further alleged that the appellant was taking bath in the bath-room of the mosque. He teased him and remarked that by repeatedly rubbing soap he will not be able to improve his complexion. As a result of aforesaid grievances, the appellant with the connivance of his father, brother and Nazir committed murder of Riasat Ali deceased.
4. The prosecution examined 11 witnesses in order to prove its case. Out of them Liaqat P.W.7 and Bashir Ahmad P.W.8 furnished eye-witness account of the occurrence. Both Liaqat and Bashir Ahmad supported the prosecution version in toto and stated that they alongwith Riasat deceased and Farzand were coming back after offering Eid-ul-Fitar prayer to their homes. When they reached near the culvert of the street, they were confronted with Arif, Nazir empty-handed whereas appellant Basharat alias Bao was carrying a .32 bore pistol. He raised a Lalkara that Riasat will not be spared and fired a shot hitting Riasat on left of his chest. He fell down and succumbed to the injury on the spot. Both the witnesses saw the occurrence and narrated the same before the learned trial Court. Both the witnesses also stated about the motive which had been given by the complainant. They were subjected to lengthy cross-examination but nothing damaging to the prosecution case could be brought on the record.
5. Apart from them, Dr. Zulfiqar Ahmad P.W.5 conducted the postmortem examination of the deceased and noticed the following injury on his person:--
(1) A circular wound with abraded inverted and black margins on left side of chest 6 c.m. Down and outer left nipple. Size of the wound was 1 x 1 c.m.
' The injury was ante-mortem and was sufficient to cause death in the ordinary course of nature.
6. During course of investigation, the appellant led to recovery of revolver P.5 from his house. Its chamber contained one empty P.6. Both were secured vide recovery memo. Exh.P.D. Each was attested by P.W.6 Munawar Hussain. Muhammad Atiq, Sub-Inspector P.W.9 conducted the investigation as Farzand Ali complainant died before trial, therefore, he proved the contents of the F.I.R. Before the learned trial Court. He also performed the necessary, formalities during investigation, effected necessary recoveries, he arrested Basharat accused on 4-4-1993 and got recovered pistol P.5 and empty P.6 which were taken into possession vide recovery memo. Exh.P.D.
During his investigation he found appellant guilty whereas all his co-accused were found to be innocent, and, therefore, only appellant was sent up to face trial. During course of cross- examination, the Investigating Officer admitted very suggestions put forwarded by the defence regarding the fraction within the family of Farzand Ali complainant-deceased as also that a dispute existed between sons of Farzand i.e, brothers of the deceased Riasat Ali regarding consolidation of the holdings. It was tried to be inferred that, in fact, Riasat Ali had been killed by his own brothers outside the Haveli and the dead body had been removed inside the house and had been found as such by the Investigating Officer, during site inspection. The remaining witnesses are all formal in nature. The prosecutor after tendering in evidence report of Forensic Science Laboratory closed the prosecution case.
7. The appellant was examined under section 342, Cr.P.C. He denied the various allegations levelled against him. He also disowned the recovery of the revolver. However, he admitted that the same belonged to his father which was a licensed weapon. He came forward with the plea that the deceased and his brothers had a joint holding and a dispute arose between the brothers whereafter they divided into two groups and the appellant was living with his deceased father whereas the remaining brothers were residing with their mother and, therefore, it was pleaded that, in fact, Riasat Ali had been killed by his own brothers which, according to the appellant, was supported by the fact that the dead body was found inside the Haveli at the time of site inspection by the Investigating Officer. The learned trial Judge discarded the defence plea which we understand has rightly been done. The same on the face of it appears to be false rather preposterous. Even if there was some dispute or differences between the family with regard to consolidation proceedings, there was no occasion for the brothers to have murdered their own brother. Mere fact that dead body was lying inside the Haveli does not mean that the offence had been committed over there. It is rather not unnatural that after the incident which took place in the street, the deceased who obviously had not succumbed to injury at that very moment had to be removed to the courtyard of the house. There is nothing unusual in the same rather it appears the defence tried to capitalise the situation and the Investigating Officer also extended some concession in this regard to the defence which on the face of it appeared to be mala fide otherwise there was nothing on the record to concede to the suggestion put to him by the learned defence counsel. Both the prosecution witnesses are natural and have supported each other on all material points. Their statements are supported by the medical evidence which is further supported by the report of Forensic Science Laboratory, according to which, the empty P.6 had been fired from the revolver P.S. The eye-witness account is also supported by the evidence of motive which had been proved by both the eye-witnesses by making consistent statements. The conviction recorded against the appellant, therefore, appears to be unexceptionable and there is no valid reason to interfere with the same as the prosecution successfully discharged its onus by proving the guilt of the appellant. The conviction of the appellant under section 302, P.P.C. Is, therefore, upheld and maintained.
8. However, as regards quantum of sentence, we appraised various facts and ambient circumstances of the case are of the view that the murder was not result of any pre-planning or pre-meditation. It appears to be an accidental incident between the appellant and the complainant party. The appellant was obviously annoyed because he had been insulted and taunted in the morning by the deceased while he was taking bath in the bath-room of the mosque.
Apart from that, appellant had a grievance against the deceased for not handing over the hands of his daughter in marriage as well, therefore, he fired a shot which unfortunately hit the deceased on the vital part of the body and he succumbed to the injury. The fire was not even repeated which shows that the appellant had not acted in a cruel and gruesome manner. Section 302, P.P.C.
Provides for both death as well as imprisonment for life as a legal and valid sentence and to award either of them the facts and circumstances of the case have to be taken into consideration.
Viewed in the light of the relevant circumstances of the case, the award of capital punishment may not be proper, therefore, we convert the same to that of imprisonment for life. We .
9. The appellant has been imposed a fine of Rs,30,000 which does not appear to be adequate. We have, therefore, issued notice to the appellant as to why the same may not be enhanced especially when we are not inclined to confirm the sentence of death. The learned counsel accepts notice who did not seriously contest the enhancement of compensation. We, therefore, enhance the compensation from Rs,30,000 to Rs,1,00,000 to be paid to the legal heirs of the deceased which may be recovered as arrears of land revenue and in default of payment or of recovery of the same, the appellant shall suffer simple imprisonment for a period of six months. The benefit of section 382-A, Cr.P.C. Shall be extended.
10. Both the murder reference and appeal are disposed of in the above terms.
The sentence of death is not confirmed.
Sentence reduced.