1. ' BASHIR A. MUJAHID, J.---Shabbir Hussain son of Muhammad Mumtaz has challenged the judgment dated 19-6-2000 passed by the learned Special Judge, A.T.C., Sargodha whereby he was convicted under section 302, P.P.C. And was sentenced to death.
2. ' Brief facts of the prosecution case are that F.I.R. No,33 of 2000 Exh.P.F was registered at Police Station Noshera, District Khushab on 29-3-2000 at 1-30 p.m. On the statement of Abdul Aziz P.W.8 recorded by Naveed Murtaza S.I/S.H.O. P.W.9 about the occurrence which took place on the same day at 1-00 p.m. Wherein it was stated that he was resident of village Dacca and was employee in Defence Department, Rawalpindi and was on leave and present in his village. At about 1-00 p.m. His son Abdul Hafeez who was employee in PAF Base Skacer was coming to his house on leave and complainant along with Munir Ahmad son of Qamar Din joined Abdul Hafiz at the Adda and were coming, towards their house. When they arrived near the house of Muhammad Iqbal Dehour, Abdul Hafeez was ahead of the complainant. All of a sudden Shabbir Hussain accused emerged at the spot and raised Lalkara to Abdul Hafeez that he will not be left alive and fired three successive shots from his pistol hitting on the chest, left armpit and left forearm of Abdul Hafeez who fell on the ground after receiving injuries and died at the spot. The accused fled away along with the pistol.
3. ' Naveed Murtaza S.I. P.W.9 after registration of F.I.R. Arrived at the spot and took the dead body into possession, prepared the injury statement Exh.P.B. And inquest report Exh.P.C. And dispatched the dead body for post-mortem examination through Ahmad Khan, F.C. He also took into possession the blood-stained earth vide memo. Exh.P.G and three crime empties P.4/1-3 vide memo. Exh.P.H.
4. On the same day Ahmad Khan F.C. Produced before him the last worn-clothes of the deceased which were taken into possession vide memo. Exh.P.D. On 1-4-2000 the complainant produced before him Certificate Exh.P.J. Regarding the service and leave of Abdul Hafeez deceased which was taken into possession vide memo. Exh.P.K. On 2-4-2000 he arrested Shabbir Hussain appellant who on 3-4-2000 was granted physical remand. On 5-4-2000 the appellant while in police custody led to the recovery of pistol .30 bore P.5 along with 3 cartridges P.W.6/1-3 which were taken into possession vide memo. Exh.P.L. He recorded the statements of the prosecution witnesses and after completion of investigation the challan was submitted in the trial Court.
5. ' The trial Court framed the charge which was denied by the accused/appellant and he claimed trial.
6. ' During the trial prosecution examined as many as 9 witnesses to prove the guilt of the accused.
7. ' Medical evidence was furnished by Dr. Muhammad Saleem, Medical Officer P.W.4 who on 29-3- 2000 at 7-30 p.m. Conducted the post-mortem examination on the dead body of Abdul Hafeez and found the following injuries:-
(1) A fire-arm wound of entry 1 x 1 c.m. With inverted margins on left side of chest, blackening was present, 2-1/2 c.m. Inner from left nipple.
(2) A fire-arm wound of exit 1 x 1 c.m. With everted margins on back of left chest 3 c.m. Below from left shoulder with blood coming out.
(3) A fire-arm wound of entry 1 x 1/2 c.m. Skin exposed on left arm 12 c.m. Above from left elbow joint.
(4) A fire-arm wound of entry 1-1/2 x 1 c.m. On base of left axila, 13 c.m. Out of left nipple with inverted black margins.
8. ' The ocular account was furnished by Abdul Aziz P.W.8 who was complainant of the case and father of the deceased. He corroborated the version of the F.I.R. He also attested the recovery memos. Exhs.P.G. And P.H. Whereby the Investigating Officer, took into possession the blood-stained earth and empties from the spot. He also attested the recovery memo. Exh.P.L. Whereby the accused had led to the recovery of pistol .30 bore, Muhammad Ashraf P.W.7 had identified the dead body of Abdul Hafeez at the time of post-mortem examination. Kazim Hussain, M.H.0 P.W.1 had kept the sealed parcels in safe custody at Malkhana' of the police station. Muhammad Riaz, F.C. -P.W.2 had delivered the sealed parcels in the office of Forensic Science Laboratory, Lahore of pistol .30 bore and live' cartridges while Muhammad Bashir, P.0 P.W.3 had deposited the sealed parcels containing blood-stained earth and crime empties in the office of Chemical Examiner and Forensic Science, Laboratory on 1-4-2000. Ahmad Khan, constable P.W.4 had produced the last worn-clothes of the deceased before the Investigating Officer. Haji Mirza Muhammad Saeed P.W.6 was draftsman and he prepared the site plan of the place of occurrence. The prosecution, evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.N. And Serologist P.Q. And that of Forensic Science Laboratory as Exh.P.R.
9. ' Statement of the accused was recorded under section 342, Cr.P.C. He denied the -allegation and claimed his innocence and false involvement. In reply to Question 9, as to why this case against him and why the P. Ws. Deposed against him, he replied as under:-- ' My sister Sabiha was having illicit intimacy with Abdul Hafeez deceased. I and my parents rebuked both of them many times but they did not desist. I am an army employee and on 29-3-2000, when I was present at my house, being on leave, I was informed that my sister had gone to the house of Iqbal, whose sister Safia used to accommodate Abdul Hafeez and my sister Sabiha to commit Zina in the house of Iqbal. I rushed to the spot and peeped through door of house of Muhammad Iqbal and found Mst. Sabiha and Abdul Hafeez in compromising position. I raised an alarm. And persons of locality gathered there and knocked the door. After sometime Abdul Hafeez opened the door and he was having a loaded pistol in his hand. My sister slipped away and committed suicide by jumping into well-situated at a distance of about 200 yards of said place. Abdul Hafeez tried to open fire at me but I grappled with him to disarm him and during this grappling the trigger of pistol was pressed accidentally and shots were fired, which hit the deceased. It was an automatic pistol.
10. Abdul Hafeez deceased was killed in the circumstances leading to `Ghairat' resulting from his immoral activities. I informed the police but the local police did not record the version rather Abdul Aziz complainant of this case, who is an employee and during the scuffle the pistol went off and the deceased was injured is more probable. As the deceased was seen by the appellant in compromising position with his sister Mst. Sabiha who also committed suicide on the same day by falling in a well therefore, the conviction of the appellant is unwarranted under the law.
11. ' Conversely the appeal has been opposed by the learned State counsel who has supported the impugned judgment.
12. ' Heard. Record perused.
13. The occurrence took place at 1-00 p.m. On 29-3-2000 in the daylight and the FIR. Was recorded at 1-30 p.m. At a distance of 2 k.Ms. The accused was nominated in the promptly recorded F.I.R. It is correct that the complainant is father of the deceased but he has no previous enmity against the appellant for his false implication. This fact has also been admitted by the appellant in his reply to Question No,9 that he had no personal enmity with Abdul Hafeez deceased. The ocular account furnished by Abdul Aziz has been fully corroborated by the medical evidence and recovery of weapon of offence. The specific plea taken by the accused/appellant has not been established by him. He stated in his statement that he raised Lalkara which attracted many persons from the locality but nobody appeared in defence to prove his innocence version. The occurrence took place outside . The house of Iqbal and not inside as alleged by the accused/appellant. The place of occurrence is proved by the fact that the blood-stained earth and empties were taken into.
14. Possession from the lane and dead body was also lying there when the Investigating Officer arrived at the spot after registration of criminal case. Therefore, the plea of the accused is an afterthought and not correct. We find that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt. His conviction is, therefore, maintained.
15. ' As far as the sentence is concerned, the complainant alleged that Abdul Hafeez was engaged with Sabiha sister of the accused/appellant but he could not prove the engagement by any independent evidence. He also admitted that said Sabiha also committed suicide on the same day by falling in the well. Therefore, we are convinced that the offence was committed by the appellant under Ghairat and in order to save his family honour and capital punishment is not warranted under the law and we while maintaining the conviction alter the sentence of death to imprisonment for life and benefit of section 382-B, Cr.P.C. Is also extended to the appellant.
16. ' This appeal is dismissed with the above modification.
17. ' Murder Reference is answered in negative.