' ATAULLAH SAJJAD, J.-Manzoor, the appellant in this case, his brothers Siddiq and Inayat and his cousin Doss were tried for the murder of their co-villager Hanif by Mr. S. A. Waheed, Sessions Judge, Sheikhupura. Mansoor was convicted under section 302, P. P. C. And was sentenced to death while his co-accused were acquitted. He has appealed to this Court and Murder Reference No, 114 of 1971 is also before us for confirmation of the death sentence passed on him. This judgment shall dispose of both the matters.
2. The occurrence took place on 18th of February, 1969, at 6 p.m. In village Saler Bhattian in the area of Police Station, Khanqah Dogran, District Sheikhupura. The distance between the place of occurrence and police station is three miles.
3. The F. I. R. EA. P. D. Was lodged by Wall Muhammad (P. W. 7) a causin of the father of the deceased at 7.15 p.m. In the police station and was recorded by Malik Fsiz Ahmad (P. W. 10) S. H. O., Police Station, Khanqah Dogran.
4. Manzoor was arrested on 20th of February, 1969, when he was produced before the Investigating Officer by Mien Khan and Mathela. Revolver Exh P. 4 was recovered from him at the time of his arrest. The memo. Exh. P. P. Relating to the possession of the revolver shows that there were three missed 32 cartridges in it while in the evidence we find that live cartridges were recovered from it. A separate case under the Arms Act was registered against Manzoor in which he has been convicted and his Appeal No, 199 of 1971 is also fixed along with this case before us, but since it is a Single Bench matter, it shall go to a Single Bench after the decision of this appeal.
5. The prosecution story is that the deceased had abducted the wife of Siddiq the acquitted accused about a couple of months before the occur-rum She was restored back to her husband through the efforts of the rotherhood about 2/3 days before the occurrence. The accused were naturally annoyed due to the humiliation that had been brought on them by the abduction of one of their women-folk and they asked the deceased not to pass through their lane. On 18th of February, 1969, at 6 p.m. Wall Muhammad (P. W. 7) was sitting in his house when he heard exchange of abase and came out. He saw that the four accused were giving a chase to Hanif deceased. Siddiq and Inayat had clangs. Inayat Lambardar, Arif and Ahmi P. Ws. Were also attracted to the spot. It may be mentioned here that Arif (P. W. 8) is a brother of the deceased while Ahmad Din (P. W. 9) Is a Chaukidar of the village. Inayat Lambardar who was cited as a witness was not produced. Wali Muhammad naught hold of Siddiq, the acquitted accused, and requested him to refrain from attacking the deceased. Siddiq, however, raised a lalkara and exhorted his companions to kill the deceased. The other two accused, namely, Inayat and Doss also raised lalkaras end joined in the exhortation to kill the deceased. Manzoor appellant thereupon went near the deceased and fired at him with a pistol from a distance of 2/3 feet or even less. The fire hit the chest of the deceased. Hanif fell down and died instantaneously. After the incident the accused ran away with their weapons.
6. The medical evidence shows that there was a circular wound of entrance on the front of left side of chest of the deceased. There was blackening of the skin round the wound. A bullet was removed from the back of right side of chest. The stomach contained one pound blood-stained seal- digested food. The death was immediate.
7. The learned counsel submitted that the village in which the incident took place was populated by contentious and litigious people with the result that a penal police post had to be posted there.
He referred us to the statement of the Investigation 0 cer who said that not a single impartial witness was available in the village. The learned counsel also urged that the prosecution witnesses in this case formed a coterie and bad been associated with each other in previous ligation. He in this connection referred to EA. D. D. Which is a copy of the statement of Ahmed Din (P.. W. 9) in another case in which he had admitted that he, Arif (P. W. 8) and Inayat, the given-up witness, were co-accused. The learned counsel also said that the eye-witness account was unreliable because of the fact that in the F. I. R. Wali Muhammad had said that Siddiq and Inayat were empty-handed, but at the trial these witnesses said that these Iwo persons were armed with dangs. It was his contention that this embellishment clearly showed that the witnesses had no regard for truth and that this is a case in which independent corroboration should be sought.
8. We have carefully analysed the evidence and we find that although Ahmad Din and Arif may be chips of the same block yet Wali Muhammad (P. W. 7) and Arlf (P. W. 8) had no direct enmity with the accused except that the incident of the abduction of the wife of Siddiq had provided a background of animosity between the parties Saddiq the acquitted accused is actually hamzulf of Arif (P. W.). The sister of Doss accused is married to the maternal uncle of this witness. Therefore it cannot be said that Wali Muhammad and Arif had any motive to ascribe falsely the fatal shot to the appellant. It may be said that they attempted to multiply the number of the accused but their testimony in so far as the complicity of Manzoor appellant in the commission of the offence is concerned appears to be above reproach.
9, The learned counsel referred us to the medical evidence and said that semi-digested food was found in the stomach of the deceased and urged on this basis that the occurrence had taken place some time after the deceased had taken his evening meals. He further said that the story of the chase by the accused was unbelievable because if four persons were pursuing the deceased, they would not have permitted him to proceed so far as to reach near his house. The learned connsel canvassed the theory that the deceased came out of his house in the darkness of the night and was shot at by some unknown person. We have no difficulty in repelling this contrnt,- don. It cannot be said with certainty that the deceased had not taken anything in the afternoon. He perhaps had some refreshment in the afternoon. The F. I. R. Was lodged at 8.15 p.m. In the police station and the distance being three miles, the time of the occurrence as given by Wali Muhammad appears to be correct. Wall Muhammad (P. W. 7) and Arif (P. W. 8) are the natural witnesse 3 of the occurrence as they must be present in their houses when the occurrence took place.
10. There is a slight but reconcilable contradiction in the statement of Wali Muhammad. He said at the trial that he was in his house when he heard the alarm but before the Committing Magistrate he had stated that he was in his haveli at the time of the Incident. He explained that according to him the words "haveil" and "house" were interchangeable. We find no reason to reject this explanation. We may point out that the haveli of this witness is in the same vicinity and is at a distance of about 35 feet from the place of occurrence. Wherever he may have been he was in a position to see the occurrence.
11. We have it in the evidence that the accused had already told Hanif deceased not to pass through their lane and the pursuit by the accused in the first Instance may be with a purpose to overawe and intimidate him, but during this pursuit tempers may have risen high and Manzoor in a fit of anger might have fired at the deceased. We are, therefore, satisfied that the conviction of the appellant was well merited. His learned counsel, however, said that this was not a case In which the extreme penalty of law should be exacted from the appellant. He said that the deceased bad brought shame and humiliation to the family of the appellant and in spite of the fact that he had been told not to pass through their lane, he insisted on doing so. It was of course the right of the deceased to pass through a thoroughfare but we cannot overlook the fact that the woman had been returned only a couple of days back to her former husband and the passing of the deceased in front of the house of the appellant may not be quite innocent and must have given the accused a cause for further annoyance.
11-A. The learned counsel quoted Faz I Khan v. State (1) wherein it is said that in a case where murder was committed to vindicate family honour the question of imposing lesser penalty comes In for consideration. In Muhammad Raman v. State (2) it was observed that questions of family honour touching the females of the family are of utmost importance in western regions and to vindicate their honour they feel honour bound to go to the extent lengths.
12. Following respectfully what was said in the above cases, we uphold the conviction of the appellant but substitute the sentence of traneportatior for life for the sentence of death. The sentence of death is not confirmed. The appeal and the murder reference are decided accordingly.
Order accordingly. {{FOOT NOTE}} (1)PLD 1964 SC 54 (2)PLD 1966SC 129 {{FOOT NOTE}}