MUHAMMAD FARRUKH MAHMUD, J.---Muhammad Ayub son of Kamal-appellant, through this appeal, has challenged the judgment, dated 10-7-1999, handed down by the learned Sessions Judge, Multan, whereby the appellant was convicted under section 302, P.P.C. and sentenced to death. Compensation of Rs.50,000 to be paid to the legal heirs of the deceased, was also imposed on him, in default of payment thereof, he was to further undergo simple imprisonment for six months.
2. The trial Court has also sent Murder Reference No.393 of 1999 seeking confirmation of the death sentence. We propose to dispose of both these matters by this single judgment.
3. Jahangir P.W.5 brother of the deceased (Khuda Bakhsh), appeared at the Police Station Kot Mubarak, District Dera Ghazi Khan, on 4-5-1997 at about 12-55 p.m. and narrated about the occurrence, which was recorded by Zahid Hussain, S.I. P.W.7 and F.I.R. No.72 Exh.PD was registered under section 302, P.P.C.
4. The occurrence took place in the area of Mouza Kot Mubarak situated at a distance of 3 Kms. from the Police Station. According to the complainant, at about 12-20 p.m. he alongwith his son Ghulam Siddique P.W.6 and Amir Umar was present at his house, when he heard hue and cry of his brother Khuda Bakhsh-deceased. The complainant alongwith P. Ws. reached near the opening (Galla) of the northern wall and saw that the appellant, who was armed with 12 bore gun, had placed the same at the abdomen of Khuda Bakhsh. The complainant raised Lalkara. Meanwhile, the appellant fired with his gun, which hit on the abdomen of Khuda Bakhsh. The appellant reloaded his gun and pointed it towards the complainant and uttered that he would not spare the complainant that day. Meanwhile, Ghulam Siddique P.W.6, son of the complainant, brought licensed gun of the complainant and in order to save the life of his father, fired at the appellant- Muhammad Ayub, which hit on the back of his chest. Muhammad Ayub-appellant left for his house alongwith his gun. Khuda Bakhsh, brother of the complainant, died at the spot.
5. The motive as given in the F.I.R. is that six years prior to the occurrence, Mst. Naziran Mai, daughter of the complainant, was married with Muhammad Ayub (appellant) and in return Muhammad Ayub gave the hand of his daughter Mst. Razia Mai, who was minor at that time, to Ghulam Siddique son of the complainant. This Nikah was according to Sharia. Mst. Naziran Mai daughter of the complainant lived in the house of Muhammad Ayub-appellant for one year and after attaining puberty, Mst. Razia Mai started living with Ghulam Saddique son of the complainant and remained with him for a month. Due to some differences both the marriages ended into divorce. Two months prior to the occurrence, Khuda Baldish-deceased married Mst. Naziran Mai with one Ibrahim and for that reason that appellant was aggrieved and murdered the brother of the complainant.
6. After recording of F.I.R. P.W.7 reached the place of occurrence and collected the blood-stained earth vide memo. Exh.PJ. He also took into possession an empty cartridge P-2, which was taken into possession vide memo. Exh.PF. The memos. were attested by Ghulam Siddique P.W.6 and Amir Umar, who was given up.
7. On the same date, i.e. 4-5-1997, the appellant was arrested by P.W.7. On 13-5-1997, the appellant led to the recovery of gun P-1 from his house and the same was taken into possession vide memo.
Exh.PE attested by Amir Umar, not produced, and Jahangir P.W.5.
8. Since the appellant denied the charge, the trial commenced. During trial, the prosecution produced nine witnesses to prove its case. P.W.5 and P.W.6 appeared as eye-witnesses as well as recovery witnesses and witnesses of motive. P.W.4 Dr. Fayyaz Karim Leghari conducted the post- mortem examination of Khuda Baldish-deceased. According to his post-mortem report Exh.PB injury No.1 was caused by a fire-arm from a very close range on the middle of abdomen. Intestines of the deceased had come out of the hole. Blackening and burning were present around the wound. On the same day i.e. 4-5-1997 at about 2-50 p.m. Muhammad Ayub-appellant was also medically examined by P.W.4 and according to his report Exh.PC Muhammad Ayub had received a firearm injury on the middle of back of the side of chest. Blackening was present around the wound.
P.W.7 Zahid Hussain, S.I., stated about the registration of the case and the investigation. After placing the reports of the Chemical Examiner Exh.PM, Serologist Exh.PN and Forensic Science Laboratory Exh.PO: on record, the prosecution closed its case.
9. In his statement under section 342, Cr.P.C. in answer to question No.5, the appellant Muhammad Ayub made the following answer:-- "After receipt of fire shot injury on my back at the hand of Ghulam Siddique, I staggered but being a strong and powerful man having good physique, I snatched the gun and abruptly in exercise of my right of self-defence I fired a single shot at the deceased who was going to attack me with a churri. The P.Ws. are related inter se and they have suppressed the real facts with the connivance of police. From the very beginning the above mentioned has been my first plea which is even supported by the complainant P.W.5 as well as the Investigating Officer P.W.7. The prosecution version even otherwise stands falsified by the deposition of P.W.4 regarding the receipt of injury by me at the hand of Ghulam Siddique P.W.6."
In answer to question No.3, the appellant stated that:-- "Ghulam Siddique P.W. and Khuda Bakhsh deceased attacked me when I was going to my house.
Ghulam Siddique fired at me with a 12 bore gun which hit on my back. I snatched the gun from Ghulam Siddique but in the meantime Khuda Bakhsh deceased tried to inflict Churri blow to me. I in exercise of my self-defence fired a single shot at the deceased."
Neither the appellant appeared as a witness in his own defence in accordance with section 340(2), Cr.P.C. nor he led any defence.
10. The learned counsel for the appellant at the very outset have submitted that they would not challenge the conviction of the appellant and would pray for lesser sentence in the circumstances of the case.
11. Conversely, the learned counsel appearing on behalf of the State has argued that the prosecution has proved its case to the hilt and the appellant deserves the normal penalty of death awarded to him by the learned trial Court.
12. We have heard the learned counsel for the parties at length and have gone through the entire evidence as well as record of the case. The learned counsel for the appellant has rightly not challenged the conviction, as the presence of P.W.5 and P.W.6 has not been challenged, therefore, their relationship inter se with the deceased does not matter. According to these P.Ws., the appellant put the barrel of his gun on the abdomen of the accused and fired. This version of the P.Ws. is fully supported by the medical evidence supplied by the P.W.4.
According to him, the injury was caused on the abdomen from very close range and blackening and burning were present. The occurrence took place at 12-20 p.m. and the matter was reported at the police station, which was at the distance of 3 Kms., within 35 minutes that rules out the false implication of the appellant. However, we have given our serious thought to the quantum of sentence in the circumstances of the case. It is a classic case where the complainant party, the appellant and the Investigating Officer have come out with incomplete stories, therefore, we have to undertake an ordeal exercise of sifting the grain from chaff. The motive as set in the F.I.R. was that the intermarriages ended in divorces and ex-wife of the appellant was married with one Ibrahim two months prior to the occurrence, which annoyed the appellant and led to the said incident. During trial P.W.5 admitted that the divorces hive taken place without any pressure and coercion' and with free-will. He further stated that the appellant did not stop them from contracting marriage of Mst. Naziran Mai with Ibrahim. The deceased, P.Ws. and the appellant lived in the same village. The marriage had taken place two months prior to the, occurrence. During these two months the appellant did not assault the deceased. On the point of motive, the appellant stated that in fact the complainant P.W.5 and his son Ghulam Siddique were annoyed with the appellant, as he had divorced Mst. Naziran Mai. The Investigating Officer has taken no pain to find out the truth. No .independent witness has been produced to support the motive. There are also three versions available on the record about the genesis of the occurrence. According to P.Ws.5 and 6, they heard the cries of their brother coming from outside the house and when they saw the appellant and the deceased, the appellant had already put his gun on the abdomen of the deceased. According to these P.Ws. after firing at the deceased, the appellant pointed his gun towards P.W.5 and sensing danger P.W.6 brought the gun of P.W.5 from the house and fired at the appellant. While according to the appellant, he was on his way towards his house, when Ghulam Siddique fired at him and despite receipt of a very serious injury, he snatched the gun and fired at the deceased, who according to the appellant, was about to inflict Churri blow on him. On the other hand, according to the Investigating Officer Rustam Ali and Haji Lal, the residents of the locality, had informed him that firstly the complainant party fired at the appellant, the appellant then went to his house, came back with his gun and fired at the deceased. According to P.W.3, (Muhammad Ramzan, Patwari) the place of occurrence was the barren land and was at the distance of 260 Karams from the house of the deceased.
13. After analysing these three versions, we have come to the considered opinion that the parties had come out with half truths. Admittedly, the distance between the house of the deceased, P.Ws. and the place of occurrence is 260 Karams. According to the P.Ws, the appellant had already put his gun on the abdomen of the deceased when they saw the occurrence for the first time. They knew nothing what happened in between the deceased and the appellant on the fateful date, which led to this unfortunate incident. Although Ghulam Siddique according to the prosecution, never fired at Ghulam Siddique. We are, therefore, of the opinion that the real motive is shrouded in mystery and the analysis of the circumstances as narrated above has led us to the conclusion that it is a case where mitigating circumstances are available.
14. The upshot of the whole discussion is that we maintain the conviction of the appellant Muhammad Ayub, under section 302(b), P.P.C. but alter the sentence from death to imprisonment for life. Compensation awarded by the trial Court is maintained. Benefit of section 382-B, Cr.P.C. is extended to the appellant. Death sentence is not confirmed. Murder Reference is answered in negative.
15. With the above modifications, this appeal is dismissed.