Rustam is alleged to have murdered Noor Muhammad. He was tried by the learned Sessions Judge, Lyallpur, and was sentenced to death. The convicted person appealed and his case for confirmation of death sentence was referred to this Court under section 374, Cr. P. Code. The learned Judges of this Court comprising the Division Bench agreed with regard to the guilt of the appellant, but differed on the question of sentence with the result that the learned Chief Justice referred the case to me.
2. The murder took place in the afternoon of November 28, 1967. Noor Muhammad deceased was looking after his crop in Killa No. 12 of square No. 18, in Chak No. 630-GB, Lyallpur District, when Rustam appeared on the scene, challenged Noor Muhammad for opposing the marriage of his sister with the appellant and fired with a '12 bore shot gun with the result that the unfortunate man received a fatal injury, of which he died at the spot. The appellant was secured by the witnesses after he was given injuries by Muhammad Tufail with a stick.
3. The report was promptly lodged by Alam, father of the deceased, who had also sustained a head injury with the butt end of the gun at the hands of the appellant in his attempt to save his son.
4. The evidence consists of three eye-witnesses, namely, Alam, who was present at the nearby dhari, Sakhi Muhammad and Tufail. The general criticism of the evidence of Sakhi Muhammad by counsel in this Court was that he was not at the scene of the occurrence. I find that Sakhi Muhammad resided at a distance of a mile from the spot. The reason given by the witness for his presence at the spot at the time of the occurrence is not convincing. He is an owner of three squares of land and tells us that 60 or 70 families are his tenants. We are called upon to believe that he had come to borrow ploughs from Alam. The witness admitted that he was told after the state--ment of Alam in Court to depose that he had come to Alam to borrow ploughs. Sakhi Muhammad admitted that 10 or 12 years ago, his horses were stolen and he suspected Rustam and his brother for the theft. He gave evidence in a case against Rustam under the West Pakistan Arms Ordinance. Sakhi Muhammad also appeared as a witness against a brother of the wife of Rustam appellant. Mr. Saeedur Rehman, learned counsel appearing in this curt in behalf of he state, conceded and rightly too, that to he on the safe side the statement of Sakhi Muhammad should be excluded from consideration and I agree with him.
5. We are thus left with the evidence of alam who bears an injury and his presence at the spot at the time of the occurrence was not seriously disputed before me at the time of arguments his daughter Mst. Nooran had been married to a younger brother of the appellant who was murdered sometime ago. The appellant, after the death of his younger brother, tried to persuade Mst. Nooran to marry him and when she did not agree, he approached her father, but the deceased opposed the proposal with the result that a couple of days before the occurrence, the appellant threatened noor Muhammad with death.
The evidence of the alam with regard to the actual occurrence is sufficiently corroborated by Tufail, his son-in-law, who gave a good number of injuries to the appellant by means of a stick and thereby succeeded in disarming and overpowering him. No criticism was offered of the evidence of these two witnesses except that they were relations, but that, by itself, is no ground to disbelieve them. Their testimony was accepted by the trial judge as well as two learned judges of this court comprising the Division Bench.
6. I was not persuaded the counsel for the appellant to hold that the deceased and others attacked the appellant when he objected to the sale and cutting of trees, jointly owned by the parties, by alam P.W. Because the appellant did not take this plea in his statement before the committing magistrate. He judge, for reasons recorded by him, rightly came to the conclusion that the right of self-defence did not accrueto the appellant the division bench took the view that Safdar Ali ---s case (1) was not applicable and I am in respectful agreement with this conclusion.
7.The evidence in proof of motive consists of the statements of alam, Taja, sadiq and Mst. Nooran.
Counsel submitted that Taja and sadiq, being enemies, the appellant could not have possibly taken them along with him to Alam. It is proved that sadiq is related to Taja who had enmity with the appellant over the theft of bullocks of his brother by Sikandar is brother of Rustam, but the evidence with regard to motive was mentioned by Alam in his report to the police which was promptly lodged and is corroborated by Mst. Nooran, who was the proper person to know about it.
Taja omitted to state to the committing court that two or three days before the present occurrence, when they approached Alam and Noor Muhammad deceased, hot words were exchanged between the appellant and the decreased person and that the appellant threatened the decreased with death. I believe that the appellant was keen to marry Mst. Nooran and although there is evidence that Noor Muhammad was opposed to this proposal, still I am not convinced in view of the material omission in the statement of Taja before the committing magistrate that 2 or three days before the occurrence the appellant threatened him with death.
8. The medical evidence is to the effect that the deceased had a fire-arm injury 3 ----- *2--- * chest cavity deep on front right side of neck with three wound of outlet on the back of right scapula middle ----- * ----- each ----- apart with blood vessels of right side of neck ruptured 4 and 5 cervical vertebrae, first rib to right side, and right scapula bones were fractured this injury was sufficient to cause death in the ordinary course of nature. I, therefore, agree with the conviction of the accused under section 302, P.P.C.
9. This brings me to the question of sentence. I am inclined to agree with the reasons given by Muhammad Afzal Zullah, J. For withholding the sentence of death. The appellant was fugitive from justice and the possibility of his having been armed on order to safeguard against arrest could notth th be ruled out. It is admitted that the tree on the khala were jointly owned by the parties, but were sold to Jalal Teli by alam, father of the deceased 4/5 days before the occurrence, in this context, the possibility about the appellant having come to know about it could not be eliminated and of he went to the spot armed with the shot-gun to remonstrate with Alam, there was every likelihood regarding the deceased having intervened or said something to the appellant, who might have then fried and killed him. In the circumstances, I feel that it would be safer not to exact the extreme penalty, but to impose the lesser punishment as provided under section 302,P.P.C. In the appellant and I hold accordingly. He is sentenced to transportation for life. The death sentence is not confirmed.