' M. DILAWAR MEHMOOD, J.-Khan Muhammad son of Khan Zaman aged 23 years and Muhammad Iqbal son of Zarif Khan aged 29 years were tried by Sessions Judge, Mianwali for offences under section 302/34, of the Pakistan Penal Code for the murder of Haji Fateh Khan aged 56/57 years on 29th of July 1973 at 12-30 p.m. In the area of Guru Bazar, Mianwali. The learned Sessions Judge vide his judgment dated 8th of May 1976 convicted both the accused under section 202/34, P. P. C. He sentenced Muhammad Iqbal accused appellant to death while Khan Muhammad accused appellant was sentenced to imprisonment for life. Both the appellants were also ordered to pay Rs, 1,000 each as compensation to the heirs of the deceased under section 544-A, Cr. P. C. This judgment will dispose of Criminal Appeal No, 620 of 1976 and the Murder Reference No, 191 of 1976.
2. The murder of Haji Fateh Khan was committed on the 29th July 1973 at 12-30 a.m. In the area of Guru Bazar, Mianwali.
3. The prosecution case briefly was that on the day of occurrence Abdul Rashid (P. W. 8) accompanied his father Haji Fateh Khan and came to Mianwali. Abdul Majid (P. W. 9), Abdullah and Abdul Razzak (given up P. Ws.) were also with them. They all went to the house of Malik Dilband, Advocate who was a counsel for the accused in a murder-case in which five sons of Haji Fateh Khan and consanguine brothers of this P. W. Along with others were implicated. Report in that case was lodged by Muhammad Aslam a brother of Muhammad Iqbal, the appellant in the present appeal. The said case was proceeding in Court and was fixed for hearing on the next day i,e, on the 30th of July 1973.
4. At about noon time Haji Fateh Khan deceased accompanied by Abdul Rashid (P. W.), Abdul Majid (P. W.), Abdul Razzak and Abdullah (given up P. Ws.) aforesaid went to Guru Bazar from the house of the Advocate to purchase two Dhotis Exhs. P. 7 and P. 8 from the shop of Abdul Rahim (given up P.
W.). While Haji Fateh Khan was in the shop of Abdul Rahim the cloth merchant, Khan Muhammad and Muhammad Iqbal appellants both armed with .12 bore pistols appeared in front of the shop.
Muhammad Iqbal, while standing at the step of the door of the shop, fired at Haji Fateh Khan hitting him on the upper arm and right side of the back. He fell down. Khan Muhammad appellant tried to fire a shot but the cartridge did not fire. Abdul Rashid (P. W. 8) and Abdullah (given up P. W.) overpowered Iqbal accused and snatched the pistol P. 9 from him. While Khan Muhammad accused was caught and overpowered by Abdul Razzak (given up P. W.) and Abdul Majid (P. W. 9), his pistol P. 13 and missed cartridge P. 14 and two live cartridges P. 15 and P. 16 were recovered from him.
5. Sister of Khan Muhammad appellant is married to Muhammad Iqbal appellant.
6. Haji Fateh Khan died 4 to 5 minutes after the occurrence. Police reached there about 10/8 minutes later. Ayaz Ehsan A. S. I. (P. W. 10) of Police Post, Mianwali City who was on patrol duty in the Cattle Fair was coming to the police post when he heard a commotion in the Bazar and reached the spot.
7. The Police Officer recorded the statement Exh. P. E. Of Abdul Rashid (P. W. 8) on the basis of which formal F. I. R. Exh. P. E./1 was recorded at the Police Station Sadar Mianwali at 2-15 a.m. By Ghulam Ali A. S. I. (P. W. 4).
8. Pistol P. 9 of Iqbal appellant along with one crime empty P. 10 which was in the pistol chamber and two live cartridges P. 11 and P. 12 recovered from Muhammad Iqbal appellant were taken into possession by Ayaz Ehsan, A. S. I. (P. W. 10) vide Memo. Exh. P. F. Dated 29-7-1973. Abdul Rashid (P. W.
8), Abdul Majid (P. W. 9), Ayaz Ehsan (P. W. 10) and Abdul Razzak (given up P. W.) attested this recovery. A .12 bore pistol P. 13 along with one missed cartridge P. 14 which was in the chamber of the pistol and two live cartridges P. 16 and P. 17 which had been snatched from Khan Muhammad appellant were taken into possession by Ayaz Ehsan A. S. I. (P. W. 10) vide Memo. Exh. P. G. Dated 29- 7-1973. This recovery was also attested by Ayaz Ehsan (P. W. 10), Abdul Majid (P. W. 9) and Abdul Rashid (P. W. 8) and Abdullah (given up P. W.). A piece of card-board wad of 12 bore cartridge was also recovered from inside the shop of Abdul Rahim cloth merchant. This was taken into possession by Abdul Razzak A. S. I. (P. W. 11) vide Memo. Exh. P. L. On 29-7-73 in the presence of Abdul Rashid (P.
W. 8) and Abdul Majid (P. W. 9).
9. Parties have a long history of enmity and blood-feud. Haji Fateh Khan deceased father of Abdul Rashid (e. W. 8) and real paternal uncle of Abdul Majid (P. W. 9) had two wives. Hakam Khan, Abdul Razzak, Abdul Wahid, Abdul Majid and Muhammad Ishaq were sons from his first wife Mst. Hazare while he had five other sons from Mst. Khatoon his second wife and mother of Abdul Rashid (P. W.
8). The appellants and the complainant party live in villages which are at a distance of two furlongs from each other.
10. It is in evidence that about 7 years ago Abdul Wahid a consanguine brother of Abdul Rashid (P.
W. 8) and son of Haji Fateh Khan deceased had abducted Mst. Amiran, a brother's daughter of Muhammad Iqbal appellant. She was, however, restored to her parents and no case was registered against Abdul Wahid. In order to avenge that insult Muhammad Iqbal appellant and his brother made an attempt on the life of Abdul Razzak another son of Haji Fateh Khan deceased. This happened a few days after the aforesaid abduction. A criminal case was registered against Muhammad Iqbal appellant and others. They were convicted by the trial Court but some of them were acquitted by the Sessions Court while others, including Muhammad Iqbal, by the High Court.
11. A few days after the afore-mentioned incident another fight took place between Abdul Razzak son of Haji Fateh Khan deceased and Muhammad Iqbal appellant and his brother Muhammad Amir. Muhammad Amir was murdered and Muhammad Iqbal appellant and Abdul Razzak another son of Haji Fateh Khan were injured. A criminal case under section 302/307/148/149, P. P. C. Was registered against various sons of Haji Fateh Khan while another criminal case under section 307/148/149, P. P. C. Was registered against Muhammad Iqbal and others at the instance of Abdul Razzak. The accused of both the cases were acquitted by the Sessions Court.
12. About three years ago Khan Zaman, Rozi Khel and Sher Abbas friends of Muhammad Iqbal appellant were murdered and a report to this effect was lodged by Muhammad Aslam a brother of Muhammad Iqbal appellant. A case under section 302, P. P. C. Was accordingly registered against five sons of Haji Fateh Khan deceased and others. This case was pending at the time of the present occurrence. The accused in this case were in jail and the case was fixed for hearing on 30th July 1973 for evidence. It was in this connection that Haji Fateh Khan accompanied by Abdul Rashid (P.
W. 8), Abdul Majid (P. W. 9), Abdullah and Abdul Razzak (given up) had come to Mianwali on the 29th July 1973 (the day of occurrence) to arrange for appropriate defence for his sons.
13. Both the appellants were overpowered and apprehended at the spot. Abdul Rashid (P. W. 8) and Abdullah (given up P. W.) overpowered Muhammad Iqbal appellant while Khan Muhammad appellant was overpowered and caught by Abdul Razzak (given up P. W.) and Abdul Majid (P. W. 9).
The appellants were disarmed and their respective pistols Exh. P. 9 of Muhammad Iqbal and Exh. P.
13 of Khan Muhammad were also snatched from them by the aforementioned P. Ws. One crime empty P. 10 which was in the chamber of the pistol of Iqbal appellant, was also taken into possession. Two live cartridges P. 11 and P. 12 were also recovered from appellant Muhammad Iqbal.
They were taken into possession by Ayaz Ehsan A. S. I. (P. W. 10). The other attesting witnesses were Abdul Rashid (P. W. 8), Abdul Majid (P. W. 9) and Abdul Razzak (given up P. W.). One unhit cartridge (Exh. P. 14) which was in the chamber of the pistol was recovered from Khan Muhammad appellant along with two live cartridges Exh. P. 15 and P. 16 vide Memo. Exh. P. G. They were taken into possession by Ayaz Ehsan A. S. I. (P. W. 10). The other attesting witnesses were Abdul Rashid (P. W.
8), Abdul Majid (P. W. 9) and Abdullah (given up P. W.). Crime empty P. 10 was found to have been fired from pistol P. 9 of Muhammad Iqbal. This fact was established by the deposition of Muhammad Sarwar (P. W. 13) Fire-arms Expert, who appeared and supported his report Exh. P. S. As well as photo-micrograph Exh. P. R.
14. It may not be out of place to mention here that the missed cartridge P. 14 which was found in the chamber of the pistol recovered from Khan Muhammad appellant was found not to have been hit at all. Khan Muhammad appellant produced a report Exh. D. B. Of the Fire-arms Expert. The opinion of the Fire-arms Expert is to the following effect :- "The examination of the case has revealed that the '12 bore missed cartridge marked as 'C. M.' does not bear the hit of the firing pin of the 12 bore shot pistol, country-made, body signed."
' Otherwise, the appellants denied the occurrence and attributed their implication to enmity with P.
Ws.
15. It has been mentioned earlier that the F. I. R. Was promptly recorded on the basis of statement Exh. P. E. Of Abdul Rashid (P. W. 8). This statement was recorded by Ayaz Ehsan A. S. I. (P. W. 10) who was on patrol duty and had reached the place of occurrence on hearing the commute at about 12- 45 p.m. Formal F. I. R. Exh. P. E /1 was recorded by Ghulam Alt Muharrir (P. W. 4) at 2-15 p.m.
16. Dr. Ashiq Ali Chaudhry, Medical Officer, D. H. Q. Hospital, Mianwali, conducted the post-mortem examination of Haji Fateh Khan aged 56/57 years on the 29th of July 1973 at 6 p.m. He found the following injuries on his person : "(1) Five fire-arm wounds of entry 1/4"x 1/4" each on the outer aspect of right upper arm 5' below the right shoulder joint in an area of 4' x 2.
(2) Five exit wounds of 1/4' x 1/4" each on the inner aspect of right upper arm 2" below right armpit.
(3) Five fire-arm wounds of entry 1/4" X 1/4" each on the lateral side of right chest in an area of 4' x 4' about 2' below right armpit, and 4' away from right nipple.
(4) Three fire-arm wounds of entry 1/4' x 1/4' each on the right chest wall in posterior axillary lines about 2" far from Injury No,
3. No blackening and tattooing was seen. The skull was not opened.
' In the chest, right chest was injured. 5th, 7th and 8th right ribs were fractured. Both the pleurae were perforated. Lower lobe and three pellets were found. The heart was healthy and empty on both sides. Chest cavity was full of blood and rest of the organs in the chest cavity were healthy.
' In the abdomen the peritonium and both domes of diaphram were perforated. Stomach was also punctured and was empty. The sma ll intestines contained traces of digested food. The large intestines were full of faecal matter. The liver was punctured and one pellet found. The spleen was also punctured. The urinary bladder was empty, and abdominal cavity was full of blood. Rest of the organs in the abdomen were healthy.
' In his opinion the cause of death was haemorrhage and shock due to Injuries Nos. 3 and 4 collectively as well as individually causing damage of lungs, liver, and spleen. Both these injuries were sufficient to cause death in an ordinary course of life. All these injuries were caused by fire- arm and were ante-mortem. Probable time between injury and death was about 5/8 minutes and probable time between death and post-mortem was about 5/6 hours."
17. The case of the prosecution rests upon the testimony of eye-witnesses Abdul Rashid (P. W. 8) and Abdul Majid (P. W. 9) ; evidence of recoveries ; evidence of motive and the medical evidence.
18. Abdul Rashid (P. W. 8) has stated the prosecution case in details. After narrating the various incidents of enmity and blood feud between the parties he added that on the 29th of July 1973 he along with his father Haji Fateh Rhan, Abdullah (given up P. W.), Abdul Majid (P. W. 9), Abdul Razzak (given up P. W.) came to Mianwali and went to the house of Malik Dilband Advocate who was a counsel of the accused in a murder case in which five sons of Haji Fateh Khan and others were implicated. They reached Guru Bazar at about 12 noon from the house of the said Advocate as Haji Fateh Khan had to purchase some Dhotis. They went to the shop of Abdul Rahim (given up P. W.).
Haji Fateh Khan entered the shop and purchased two Dhotis Exhs. P. 7 and P.
8. Khan Muhammad and Muhammad Iqbal appellants who were both armed with 12 bore pistols appeared in front of the shop. Muhammad Iqbal appellant fired at the deceased while standing on the step of the door of the shop. This shot hit the upper arm in the right side of the back of Haji Fateh Khan who fell down. Thereafter Khan Muhammad accused tried to fire a shot but the cartridge did not fire. Abdul Rashid (P. W. 8) and Abdullah (given up P. W.) overpowered Iqbal while Khan Muhammad appellant was caught and overpowered by Abdul Razzak (given up P. W.) and Abdul Majid (P. W. 9). Pistol Exh. P. 9 was taken into possession from Muhammad Iqbal appellant along with one empty P. 10 and two live cartridges P. 11 and P. 12 Pistol P. 13 was recovered from Khan Muhammad with one unit cartridge P. 14 in the chamber of the pistol and two live cartridges P. 15 and P. 1 were recovered from the possession of Khan Muhammad. Respectiv recovery Memos Exh.
P. F. And Exh. P. G. Were prepared. Witnesses to these recoveries are Abdul Rashid (P. W. 8), Abdul Majid (P. W. 9) and Ayaz Ehsan A. S. I. (P. W. 10). Abdullah and Abdul Razzak P. Ws. Were given up.
19. According to Abdul Rashid (P. W. 8), 8 or 10 minutes later the police arrived at the spot. He made a statement Exh. P. E. To A. S. I. Ayaz Ehsan (P. W. 10) who sent the same to the Police Station for the formal F. I. R. Exh. P. Ell which was recorded by Ghulam Ali A. S.
1. (P. W. 4). Abdul Rashid along with other witnesses remained at the spot for about three hours after the occurrence. Dead body of Haji Fateh Khan was despatched for post-mortem examination at 2 or 2-20 p.m.
20. Abdul Majid (P. W. 9) fully supported the evidence of Abdul Rashid (P. W. 8) in all particular details. Abdullah and Abdul Razzak P. Ws. Were given up as unnecessary while Abdul Rahim P. W.
The shopkeeper was given up as having been won over. In any case according to the evidence of Abdul Rashid (P. W. 8), Abdul Rahim had not seen the occurrence because at that time he had gone inside his house, which was adjacent to his shop and there was a back door of the shop which opened in the house.
21. It may also be noted that both the eye-witnesses are close relations of the deceased. Abdul Rashid (P. W. 8) is the son of Haji Fateh Khan deceased while Abdul Majid (P. W. 9) is the son-in-law of the deceased. Besides, as stated above, there is a long history of enmity and blood-feud between the parties. Applying the well-known rule of caution, therefore, it will be unsafe to rely upon the testimony of these eye-witnesses against each individual appellant except in so far as it receives independent corroboration.
22. Adopting the above criterion we are of the considered opinion that the prosecution has succeeded to establish its case beyond all doubts against Muhammad Iqbal appellant. Apart from the testimony of the two eye-witnesses Abdul Rashid (P. W. 8) and Abdul Majid (P. W. 9) mentioned above, we have the recovery of pistol P. 9 along with one crime empty P.
10. The crime empty was found in the pistol chamber at the time he was apprehended and overpowered by Abdul Rashid (P. W. 8) and Abdullah (given up P. W.). The crime empty P. 10 was found to have been fired from pistol P.
9. Muhammad Sarwar Fire-arms Expert appeared as P. W. 13 and stated that after careful examination and comparison of the crime empty P. 10 he came to the conclusion that the same has been fired from pistol P.
9. He produced a composite photo-micrograph Exh. P. R. With a report Exh. P. S. Of his opinion.
23. This appellant was apprehended and overpowered at the spot. Besides, the medical evidence also supported the testimony of the eyewitnesses who had deposed that only one shot had been fired at the deceased. Nature and duration of injuries corroborate the testimony of eye-witnesses Thus the case of the prosecution stands proved to the hilt against Muhammad Iqbal appellant. His conviction is proper and is maintained.
24. The learned counsel for the appellant has argued that the circumstances of the case do not warrant the extreme penalty of death in so far as Muhammad Iqbal appellant was concerned. He has relied upon Shera etc. v. State (1) and Ajun Shah v. State (2). In the later case the Supreme Court of Pakistan observed "The learned counsel has submitted that this is not a fit case for (1) 1976 P Cr. L J 1028 (2) P L p 1967 SC 185 imposition of extreme penalty. In a case of murder the death sentence should ordinarily be imposed unless the trying Judge for reasons to be recorded by him, considers it proper to award lesser penalty. No doubt, discretion is his and if he exercises that discretion after taking into account all the circumstances, the appellate Court should not interfere. It is, therefore, necessary to consider whether the Sessions Judge or the High Court, in adjudicating that the appellant has forfeited his life by his act, has taken into consideration all the circumstances surrounding his act.
' According to the prosecution, the appellant's motive for the crime was to avenge the murder of his father and brother.
' It appears from the record that in June 1945, Hikmat Shah, brother of the appellant, was murdered and the deceased Fazal Raziq and others, were charged for the offence, but they were acquitted. In October 1945, appellant's father, Syed Qadir Shah, was murdered and Fazal Raziq was charged with the offence but he was acquitted. At the time of the instant murder, I e. In 1965, the appellant's age was 28 years. It is, therefore, clear that when the father and brother were murdered he was only 8 years old. He belongs to the Frontier Province where it is a matter of tradition and even family duty to avenge the murder of a father. Such murders are committed in that area out of a sense of honour and self-respect. Since he was a boy his mind had become obsessed with one "thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a Tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this."
' The Court further observed :- "A man is after all a creature of his environment. His action, therefore, must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case, the criminality is not of a kind which should be visited with extreme penalty."
25. In the former case the motive as set up by the prosecution in the case was that Ahmad a brother of Shera (appellant) was murdered by Ghulam Murtaza deceased and another Shera (appellant) had committed the murder of Ghulam Murtaza deceased to take revenge for the earlier murder of his brother at the hands of Ghulam Murtaza deceased. High Court relying upon the earlier judgment of the Supreme Court referred to above altered the sentence of appellant from death to that of imprisonment for life.
26. We are of the view that the dicta as laid down in the afore mentioned two cases is not attracted to the facts and circumstances of the present case.
27. In the administration of criminal justice superior Courts have revolved a number of considerations/principles warranting lesser penalty. Some of these considerations may be enumerated below.
' For instance, extreme penalty is not awarded when it is not clear as to who fired the fatal shot or when there is free fight between the parties. Sometime the extreme youth of the accused who was acting under the influence of or at the instigation of elders has been taken as mitigating circumstance. There is also the principle of expectation of life when the trial or the appeal is dragged on for a long time giving expectancy of life to the convict/appellant. Recently, however, Supreme Court of Pakistan has shifted its trend of awarding lesser penalty on the principle of expectancy of life because of chronic delay in committal, trials, appeals etc. And deliberate tactics of convicts to delay the proceedings to avoid gallows. This Court has also taken lenient view when the occurrence was sudden and there was no pre-planning. Similarly offences committed in the heat of passion or excitement have also been dealt with rather leniently. Murder committed under desperate conditions when accused was completely up set and sick of life has also been treated in a lenient manner. Some times age of the accused is a relevant factor for awarding a lesser penalty.
Then there are cases involving family honour, wife's infidelity etc. One can go on' multiplying these instances but essentially the question of sentence in each case must depend on the facts and circumstances of that particular case and the kind of criminality and the manner of committing the offence.
28. It is true that man is a creation of his own environments and his acts and deeds or misdeeds are, therefore, to be judged in the background of his environments and the society in which he is placed at any given time. But at the same time private revenge cannot be condoned nor can it be regarded as a mitigating circumstance. In the present case Muhammad Iqbal appellant has caused the death of Haji Fateh Khan, an old man of 57 years. The deceased was not responsible for any murder whatsoever. Earlier feud referred to above related to his sons and the present appellants are their brothers or their friends. If one of the sons of the deceased was murdered, the argument may perhaps be available to the appellant that this was a sequel to the earlier feud. But the act of the appellant in murdering Haji Fateh Khan in cold blood, and in broad daylight in a busy thoroughfare of the city was a bold and daring affront to law. There is nothing on the record to suggest that Haji Fateh Khan deceased had done any act which could be termed as provocation in any manner. He was not armed. He had come to Mianwali merely to consult and brief the Advocate who had been engaged by him to defend his sons in the murder trial which was fixed for hearing on the next day. The appellant has acted in a cruel manner. Failure to award normal sentence of death in the circumstances, would amount to grave miscarriage of justice. The appellant is not entitled to a lesser penalty provided under section 302, P. P. C. We are fortified in this view by a later judgment of the Supreme Court of Pakistan reported as Abdul Ghaffar v. State (1). Their Lordships declined to award lesser penalty to an appellant who has taken his revenge not from the person who had killed his father but from the brother of that person. It was observed :- "In the present case, the appellant has not taken his avenge from the person who killed his father.
He murdered the brother of the person who killed his father. In these circumstances, he is not entitled to lesser punishment."
29. In our considered view in the circumstances of the present case, the appellant Muhammad Iqbal is not entitled to a lesser punishment. The sentence of death awarded to him is confirmed.
Criminal Appeal No, 620 of 1976 in so far as it related to Muhammad Iqbal appellant is dismissed.
(1) 1973 SCMR 39
30. As regards Khan Muhammad appellant we have the testimony on two eye-witnesses who are not only closely related to each other and the deceased but are inimical to the appellant Parties have a long history of enmity and blood feud. No independent corroboration is forthcoming on the record against Khan Muhammad appellant to remove such doubts as might be attached to the evidence which consists of highly interested, partisan and inimical witnesses. Missed cartridge P. 14 which was found in the chamber of the pistol recovered from Khan Muhammad appellant was found not to have been hit at all. We are, therefore, of the considered view that the case against Khan Muhammad appellant is not free from doubt. We therefore, give him the benefit of doubt and acquit him, Criminal Appeal No, 620 of 1976 in so far as it relates to Khan Muhammad appellant is accepted. His conviction and sentences are set aside. He will be set at liberty forthwith unless he is wanted in some other case.