1. ' BASHIR A. MUJAHID, J.--Tariq alias Tahiri son of Khushi Muhammad has challenged judgment dated 22-7-1997 passed by learned Sessions Judge, Sheikhupura whereby he was convicted under section 302, P.P.C. For - commission of murder of Mst. Naseeran Bibi and sentenced to death with a tine of Rs,25,000, in default of payment of fine he had to undergo two years' rigorous imprisonment and the same if realized was to be paid to the legal heirs of the deceased as compensation.
2. Through the same judgment Mst. Shamim was acquitted of the charge.
3. ' The brief facts of the prosecution case are that F.I.R. No,510 Exh.P.A/1 was registered at Police Station Saddar, Sheikhupura on 16-7-1995 at 1-10 p.m. On the statement Exh.P.A of Rehmat Ali, P.W.5, recorded by Rasheed Ahmad, S.-I. P.W.8 at 12--30 p.m. On the same day at Hardev, wherein it was stated by Rehmat Ali, complainant that he was resident of Hardev and was living with his wife Mst.
4. Naseeran Bibi along with their children, and his nephew Tariq son of Khushi Muhammad (accused) was residing in his neighbourhood alongwith his wife Mst. Sharnim and children. On 15-7-1995, All Raza minor son of Tariq had a quarrel with Umar Farooq, minor son of the complainant and complainant was made by Mst. Naseeran Bibi (deceased) with Mst. Shamim, wife of Tariq (appellant). On which there was a quarrel between both and Mst. Shamim was given slapped by Mst. Naseeran who threatened the deceased that she will take revenge for the insult through her husband. Mst. Naseeran had also apologized Mst. Shamim for slapping her, but on 16-7-1995 at 9- 00 a.m. When the complainant 'alongwith his wife Mst. Naseeran, Muhammad Nawaz son of Muhammad Sharif and Muhammad Ilyas son of Muhammad Yaqoob residents of Rehmat Colony were present in his house. Tariq armed with double barrel gun alongwith his wife Mst. Shamim arrived there and Mst. Shamim pointed towards Mst. Naseeran, on which Tariq appellant fired at Mst. Naseeran hitting on her left shoulder who fell down on the ground after receiving the injury and died at the spot.
5. ' Rasheed Ahmad, S.-I., after recording the statement Exh.P.A of Rehmat Ali, P.W.5 sent the same to the police station for registration of, formal F.I.R. Through Muhammad Anwar, F.0 and he himself took the dead body of Mst. Naseeran into possession, prepared injury statement through memo.
6. Exh.P.G and inquest report Exh.P.H and despatched the dead body for postmortem examination through Muhammad Anwar and Muhammad Idrees, F.Cs. He collected the blood-stained earth from the spot through memo. Exh.P.B, recorded the statements of the P.Ws. Under section 161, Cr.P.C.
7. On 17-7-1995 Muhanui tad Anwar, F.0 P.W.2 produced last worn clothes of the deceased before the Investigation Officer which were taken into possession through memo. Exh.P.C. On, 28-7-1995, he arrested. Tariq alias Tahiri accused, who while in police custody on the same day, led to the recovery of gun.12 bore P.3 from his residential house which was taken into possession through memo. Exh.P.D. He got the sealed parcels deposited in police Maalkhana for safe custody, completed the investigation and submitted the challan.
8. ' The trial Court framed the charge which was denied by the accused, who claimed the trial.
9. ' During the trial, the prosecution examined as many as 8 witnesses to prove the guilt of the accused. , ' The medical evidence was furnished by Dr. Muhammad Aslam, P.W.6 who on 17-7-1995 at 9-30 a.m. Conducted the postmortem examination on the dead body of Mst. Naseeran Bibi and found .The following injuries on her person:--
(1) A fire-arm wound 'of entry 4 x 4 c.m. Going deep on back of left chest upper part 9 c.m. Left to the mid line. Blackening and tattooing were present on the margins of the wound.
(2) Four fire-arm wounds of exit each measuring 0.8 x 0.6 c.m. In area 5 c.m. x 5 c.m. On back of right chest upper and outer part 10 c.m. Right to the midline.
(3) An abrasion 1 x 1 c.m. On the top and outer of left shoulder.
(4) An abrasion 1 x 0.5 c.m. On back and outer of left chest upper part just outer to the left axilla.
10. ' In the opinion of the doctor the death occurred due to severe haemorrhage and shock leading to cardio-respiratory failure due to the above mentioned fire-arm injuries Nos.1 and 2, which were sufficient to cause death in ordinary course of nature.
11. ' The ocular account was furnished by Rehmat Ali, P.W.5, who was complainant of the case. He supported the version of the F.I.R. And narrated the motive for the alleged occurrence. Muhammad Nawaz son of Muhammad Sharif, P.W.4, was also an eyewitness of the occurrence. He 'supported the prosecution story and his statement is in line with the statement of Rehmat Ali, complainant and he stated that on 16-7-1995 at 9-00 a.m. He was, sitting in the house of Rehmat Ali alongwith llyas, when the accused arrived there and the appellant caused fire shot with his gun.12 bore at Mst.
12. Naseeran Bibi below her left shoulder who succumbed to the injuries at the spot. He also attested the recovery memos. Muhammad Ashfaq, P.W.3 had attested the recovery memo. Exh.P.B. Ibrar Khan, M.H.C., P.W.1 had recorded the formal F.I.R. Exh.P.A/1. Rab Nawaz Shah, Draftsman P. W.7 had prepared the site plan of the place of occurrence. Rasheed Ahmad, S.-I. Had completed the investigation, arrested the 'accused, effected the recovery of weapon offence and submitted the challan as narrated above.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.I and that of Serologist Exh.P.J.
14. ' The statement of Tariq alias Tahiri, accused/appellant was recorded under section 342, Cr.P.C.
15. Who denied the allegations and claimed his innocence and false involvement due to enmity.
16. However, he did not get recorded his statement under section 340(2), Cr.P.C. In his defence.
17. ' The trial culminated into conviction of the appellant as mentioned above. He has filed Criminal Appeal No,491 of 1997 against the conviction and sentence which the trial Court has sent up Murder Reference No,250 of 1997 for confirmation of death sentence of the appellant under section 374, Cr.P.C. Hence both the matters are being decided by this judgment.
18. ' Learned counsel for the appellant at the very outset has argued that he would not challenge the conviction. However, he prays for reduction in sentence of the appellant as there was no previous enmity between the parties; the appellant is real nephew of the complainant and the occurrence took place due to quarrel between the children and the women of the family at the spur of the moment and the appellant not repeated the fire shot and there are the mitigating circumstances on which death penalty is not warranted under the law.
19. ' Conversely, the appeal has been opposed by, the learned counsel for the State, who has supported the impugned judgment.
20. ' Heard. Record perused.
21. The appellant is nominated accused in promptly recorded F.I.R. It was a day light occurrence. The ocular account furnished by the complainant and Muhammad Nawaz, eye-witness has been corroborated by medical evidence and there is no reason for his false implication or substitution by letting off the real culprit, therefore, learned counsel for the appellant is justified not to press the conviction recorded against the appellant.
22. As far as the sentence is concerned, we feel that the occurrence took place at the spur of the moment over a petty matter of quarrel between the female and the minor. Children; it is not clear froth the circumstances of the case as to what transpired between the parties at the spur of the moment before the occurrence and the complainant had himself admitted that the deceased Mst.
23. Naseeran Bibi had slapped Mst. Shamim wife of the appellant and had also apologized for her act, therefore, pbssibility. Cannot .Be. Ruled, out' that the appellant might had fired at the deceased under provocation and in heat of moment. There is no previous ;enmity and.. The appellant. Has also not repeated the fire shot. Co-accused Mst. Shamith has 'been acquitted by disbelieving the same witnesses, therefore, considering all the facts as mitigating circumstances we are persuaded to alter the sentence from death to imprisonment for life which will meet the ends of justice.
24. However, the compensation of Rs,25,000 is enhanced to Rs,50,000 to be paid to the legal heirs of the *deceased, in default of payment of the same he will undergo six months' rigorous imprisonment. Benefit of section 382-B, Cr.P.C. Is also extended in favour of the appellant. Death sentence of Tariq alias Tahiri is not confirmed. Murder Reference is answered in the negative. The appeal is dismissed with the above modifications..
25. Sentence reduced.