' Appellant was tried by learned Sessions Judge, Khushab in case F.I.R. No, 153 of 2000 under section 302, P.P.C., registered at Police Station Mitha Tiwana. The trial Court vide judgment dated 25-1-2001 convicted appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs,1,00,000 (rupees one lac) as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. He was also given the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved by the impugned judgment appellant filed the instant appeal whereas complainant filed criminal revision (Criminal Revision No,180 of 2001) for the enhancement of sentence of appellant.
3. Brief facts of the prosecution case as narrated in the F.I.R. Are that Muhammad Mansha and Abdul Razzaq (co-villagers of the complainant) had a dispute over some piece of agricultural land about which Soofi Noor Jahan deceased was interested to effect reconciliation between them. On 25-7-2000 at about 10-30 a.m., Naik Muhammad complainant and Soofi Noor Jahan deceased went to see Muhammad Mansha for the said purpose in the house of his son-in-law Fazl-i-Haq appellant where he was putting up in those days. They started negotiation with Muhammad Mansha in the courtyard when Fazl-i-Haq appellant armed with .30 bore pistol also came there and asked Soofi Noor Jahan deceased that he had refrained himfrom effecting any sort of reconciliation but even then he had come to his house whereupon a clash of hot words and exchange of abuses took place between Soofi Noor Jahan and Fazl-i-Haq appellant. The latter saying that he would teach the former a lesson for hurling abuses, fired two shots one after the other, hitting on the left neck and back of right shculder of Soofi Noor Jahan as a result of which he died. The reports of firing attracted co-villagers namely Muhammad Saleem P.W.2 and Muhammad Latif (given up) who were passing through the public thoroughfare street. They also saw the occurrence. The appellant on seeing the P.Ws. Fled away. The P.Ws. Took Soofi Noor Jahan to the Rural Health Centre Mitha Tiwana but on his way he succumbed to the injuries.
' Motive for the occurrence was that the appellant was against reconciliation between Muhammad Mansha and Abdul Razzaq but Soofi Noor Jahan deceased wanted a reconciliation between them and due to that grudge appellant had killed the deceased.
4. After formal investigation challan was submitted before the trial Court where prosecution produced eleven witnesses to prove the charge against the appellant.
5. Naik Muhammad P.W.1 and Muhammad Saleem P.W.2 being the eye-witnesses while supporting the prosecution case, narrated the circumstances under which the appellant committed the murder of Soofi Noor Jahan deceased. Muhammad Wakeet P.W.3 identified the dead body of Soofi Noor Jahan at the time of post-mortem examination. He was also present when the last-worn clothes of the deceased were handed over to the Investigating Officer. Alamshcr Moharrir P.W.4 kept the parcels (case property) in the Malakhana for safe custody and delivered the same to the Constables for onward transmission to the relevant offices, Muhammad Rafiq P.W.5 took the parcel of blood-stained earth and delivered the same to the office of Chemical Examiner intact. Azizur- Rehman P.W.6 took the dead body of Soofi Noor Jahan to the mortuary for post-mortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer Atta Muhammad H.C. P.W.7 was present when the appellant led to the recovery of .30 bore pistol P.3 with 10 live bullets P.4/1-10 and licence book P.S. These articles were taken into possession vide memo. Exh,P.D. This witness also attested the said recovery memos.
Ghulam Fareed, S.-I. P.W.8 conducted the investigation in . This case and submitted challan before the trial Court.
6. Dr. Mehmood Akhtar P.W.9 conducted the post-mortem examination on the dead body of Soofi Noor Jahan and observed the following injuries on his person:--
(1) An ante-mortem fire-arm entry wound 0.5 x 0.5 c.m. On the left side of back and lower part of skull, directed upwards, forwards and rightwards, 3 c.m. Below and behind the left ear.
(2) An ante-mortem fire-arm exit wound 2.0 x 2.0 c.m. On the right side of bridge of nose, eye-brow and upper eye lid.
(3) An ante-mortem fire-arm entry wound 0.5 x 0.5 c.m. On the back of left shoulder region, 16 c.m.
Left to midline, directed rightward, upward and forward.
(4) An ante-mortem fire-arm exit wound 1.0 x 1.0 c.m. On the right sterno-clevicular junction joint.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by injuries Nos.1 and 3 to brain, left lung and arch of aorta which were sufficient to cause death in the ordinary course of nature.
' Muhammad Saleem Draftsman P.W.10 prepared scaled site-plans Exh.P.H. And P.H./1 Muratab All P.W.11 look the parcels to the office of Forensic Science Laboratory and delivered the same intact.
' Learned D.D.A. Tendered in evidence reports of Chemical Examiner Exh.P.K. That of Serologist Exh.P.K./1 as well as that of Forensic Science Laboratory Exh.P.L. And closed the prosecution case.
7. Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question, why this case against you and why the P.Ws. Deposed against you? The appellant replied as under:-- "Soofi Noor Jahan deceased, although of advanced age, was a person of bad character. He used to visit my house for illicit liaison with my wife. I had forbidden him many time from doing so. On the day of occurrence, at about 9-00 a.m., Soofi Noor Jahan went to my house and was talking to my wife in the courtyard, when there was no one else in my house except my wife. I was cutting firewood of bushes towards the west of my house near it. I overheard their voices and came to my house. I admonished Soofi Noor Jahan telling as to why he had come to my house in spite of my repeated warnings not to visit my house. He taunted me that he would maintain his relations with my wife and refused to go away when I asked him to leave my house. He started abusing me, whereupon I was enraged and lost my self-control. Due to sudden and grave provocation of the conduct of Soofi Noor Jahan, I picked up my licensed pistol from the room of my house and again asked him to leave my house, otherwise I would fire at him, but he continued abusing me, whereupon under grave and sudden provocation I fired at him, as a result of which he died at the spot. The occurrence was not witnessed by the above mentioned P.Ws. And a false story was cooked up regarding reconciliation between Muhammad Mansha and Abdul Razzaq. The P.Ws. And Mansha my father-in-law were not present there. I myself went to the police station and informed the S.H.O. About the occurrence. The F.I.R. Was recorded later on after summoning the P.Ws. From the village. I produced my pistol, bullets and licence to S.-I. Ghulam Fareed at that time when I reached the police station shortly after the occurrence. The S.-I. Did not investigate the case on correct lines and he also challaned me for offence under sections 13/20/65 and 11-B of the Arms Ordinance, although the pistol and bullets were covered by my licence.
' The appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
8. Learned trial Court after appraisal of evidence available on record vide judgment dated 25-1- 2001 convicted and sentenced the appellant as narrated in the earlier part of the judgment.
9. While challenging the legality of the impugned judgment, learned counsel for the appellant submitted that the motive for this occurrence was never proved by the prosecution before the trial Court and this fact was sufficient to shatter the credibility of prosecution case. It was argued that when there was no evidence on record to show that Abdul Razzaq and Muhammad Mansha had any dispute, then there was no occasion for the deceased and the complainant to visit the house of appellant for reconciliation between the said persons. It was further argued that in fact deceased had illicit relations with the wife of the appellant and on the day of occurrence deceased was asked by the appellant to leave his house but he refused and under grave and sudden provocation appellant fired at the deceased and that in the circumstances trial Court had erroneously convicted and sentenced the appellant under section 302(b), P.P.C. Conversely learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant. It was argued on behalf of complainant that it was an intentional murder and in the circumstances trial Court should have awarded maximum sentence of death to the appellant.
10. Record of this case has been perused with the able assistance of learned counsel for the parties. The time, place of occurrence and the weapon, used for the murder of Soofi Noor Jahan are the admitted facts. The only question to be resolved is whether Soofi Noor Jahan was done to death under the circumstances as narrated by the prosecution witnesses or the defence plea put forth by the appellant under section 342, Cr.P.C. Is to be relied upon.
11. The purpose of visit of Naik Muhammad complainant and deceased in the house of Fazal-i-Haq appellant was to settle the dispute between Abdul Razzaq and Muhammad Mansha. The said Muhammad Mansha is father-in-law of Fazal-i-Haq appellant who was residing in the house situated opposite to the place of occurrence. Statedly, at the time of occurrence Muhammad Mansha was alsc present in the house of appellant. The site-plans prepared by the investigating Officer Ghulam Fareed, S.-I. (P.W.8) as well as by the Draftsman Muhammad Saleem P.W.10 are silent about the presence of Muhammad Mansha. Even otherwise, as stated the dispute over the agricultural land was between Abdul Razzaq and Muhammad Mansha, the natural conduct on the part of deceased and complainant would have been to visit the house of Muhammad Mansha and not the house of appellant. There is nothing on the record to suggest as to why deceased and complainant opted to visit the house of appellant for the reconciliation instead of visiting the house of Muhammad Mansha which was situated just opposite to the house of appellant. Admittedly, during the investigation said Abdul Razzaq and Muhammad Mansha were never asked to join the investigation and there is no independent evidence on the record to show that in fact there was any dispute between Abdul Razzaq and Muhammad Mansha as narrated by the prosecution witnesses. In this view of the matter, the presence of Naik Muhammad P.W.1 at the relevant time seems to be doubtful.
' As far Muhammad Saleem P.W.2 is concerned, he was passing by near the house of appellant when he heard the commotion and witnessed the occurrence. It is interesting to note that before the police stand of the prosecution was that this witness reached at the spot after hearing the fire reports. The house of this witness was about three acres from the place of occurrence and in order to show his presence near the place of occurrence it was stated that he was present in the house of one Muhammad Latif as he had to go to Chak No,2/41-M.B. For making a telephone call from the P.C.O. It is interesting to note that said Muhammad Latif was never produced by the prosecution and was given up as unnecessary.
' In the light of the abovesaid facts of the case, it is difficult to rely upon the evidence of eye- witnesses and the defence plea raised by the appellant while deposing before the trial Court is to be relied upon in totality. The said defence plea also finds support from the statement of Ghulam Fareed, S.-I. P.W.8. Statedly, the first version of the appellant after his arrest was the same which he narrated before the trial Court while making statement under section 342, Cr.P.C.
' In the light of the said circumstances, the conviction and sentence of the appellant under section 302(b), P.P.C. Is not sustainable. Accordingly, the same is set aside and the appellant stands convicted under section 302(c), P.P.C. And is sentenced to ten years R.I. With benefit of section 382- B, Cr.P.C. Since the deceased was not a Masoomud-Doam, the legal heirs of the deceased are not entitled for any compensation as required under section 544-A, Cr.P.C. With the above modification in the conviction and sentence the instant appeal stands disposed of.