2002 PLP 3720 (YLR)

(5) An exit wound on the right side of the face 2 c.m. anterior to the right ear. " His further observations were as follows:‑ " Each entry wound was 1 c.m. in diameter except of right eye which was 3 c.m. x 2 c.m. The right temporal bone was found fractured. Skull was found fractured in the midline upto occipital bone. Clotted blood was found under scalp on the right side of head. Brain was found smashed at the corresponding side of the injury. A pellet was recovered from the right side of the skull, sealed and preserved in the bottle. On opening the thorax, all the organs were found normal and healthy while right side of the heart contained blood." According to him:‑‑ " In my opinion the death resulted because of the damage of brain, caused by Injuries Nos. 1, 4 and 5 which were caused by fire‑arm and were sufficient enough to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were caused by some blunt weapon. All the injuries were ante‑mortem." Exh.P.C is the carbon copy of his post‑mortem report.

9. Dr. Muhammad Khan (P.W.14) had medically examined Hayat Ullah P.W. and he found the following injuries on his person: "(1) A fire‑arm injury on the left side of back which was a wound of entry on the left posterior side of back which was 0.5 x 0.5 c.m. in size, 9 c.m. from midline. The wound was bleeding. There was no wound of exit present. (2) A fire‑arm wound of entry on the left side of back which was 0.5 c.m. x 0.5 c.m. in size it was 5 c.m. from the midline and 7 c.m. below Injury No.1. The wound was bleeding and there was no wound of exit present. (3) A fire‑arm injury which was an entry wound on lateral side of the back 1 x 1 c.m. in size on the right side of back, 2 c.m. from the midline. The wound was bleeding and there was no wound of exit present. (4) A fire‑arm wound of entry on the left side of back 0.5 x 0.5 c.m. in size, 3 c.m. from the midline. This wound was also bleeding and there was no exit wound present. (5) A fire‑arm wound of entry 0.5 x 0.5 c.m. on the lateral side of the back. This wound was bleeding with no exit wound present. (6) A fire-arm wound of entry 0.5 x 0.5 c.m. in size on the back of the buttock on the left side. The wound was bleeding with no exit wound present. (7) A fire‑arm wound on posterior side of the left buttock in the size of 5 x 5 c.m. and was 7 c.m. from Injury No.6. The wound was bleeding with no wound of exit present." These injuries were caused by a fire‑arm and were declared as Ghair Jaifah Mutalahimah and were kept under observation. Exh.P.M state his Medico‑Legal Report, while Exh. P.M/1 shows the diagram.

10. Muhammad Saeed Khan P. W. was also examined by the same doctor. Two fire arm injuries were found on his person by the doctor but his case is now irrelevant because he did not appear to support the prosecution version with respect to his injuries.

11. Amongst the formal witnesses were Ghulam Shabbir A.S.‑I. (P.W.1) who had kept the case property in the Malkhana and had handed over the same on 1‑9‑1997 to Constable Ghulam Murtaza for onwards transmission to the office of Chemical Examiner at Lahore. Ameer Muhammad (P. W.2) had identified the dead body of Allah Dad. Ghulam Murtaza (P.W.5) corroborated the testimony of Ghulam Shabbir (P.W.1) for having taken the case property to the office of the Chemical Examiner. Esab Khan (P.W.8) had recorded the statement of the complainant Mauladad Khan, on the basis of which the F.I.R. was registered. Wali Dad Khan (P.W.9) was present when the police collected the blood stained earth, from the place of occurrence which was taken into possession vide memo. Exh.P.E, attested by him. The motor‑bike, on which the deceased and the P.Ws. Were riding at the relevant time, was also taken into possession in his presence. Sardar Khan (P.W.12) had taken the dead body of the deceased for post‑mortem examination and had received the last worn‑clothes of the deceased Allah Dad which he delivered to the Investigating Officer vide memo. Exh.P.K, Muhammad Shafique Khan (P.W. 13) had prepared the site plans, being a draftsman, of the place of occurrence on the direction of the police and on the pointation of the P. Ws. The site plans are Exh.P.C and Exh.P.C/1.

12. Muhammad Munir (P.W.6) is witness of the recovery of .12 bore gun, Exh.P.1, and its four cartridges, which were in possession of Gul Naib Khan appellant at the time of his arrest and were secured vide memo. Exh.P.8 Abdur Rahim (P.W.7) had partially investigated the case. He arrested Gul Naib Khan on 28‑9‑1997 and recovered unlicensed .12 bore gun from him with four live cartridges in the presence of Muhammad Munir (P.W.6).

13. According to Haji Muhammad Khan (P.W.10), on the day of the occurrence, he had seen Gul Naib Khan appellant while carrying a double barrel gun which he also passed on to his son while both of them were present in the street and were saying that they would kill Allah dad and Hayat Ullah. He is a Khalazad of the deceased.

14. In his statement under section 342, Cr.P.C., the appellant advanced his own version in defence by stating:‑-- " In fact I am an old man aged about 70 years and a labourer. My two sons are also labourers out of whom Muhammad Rafiq accused is a conductor‑cum‑driver with a van plying for loading of goods. I have got two young daughters living at my house in Mohallah Shadi Khel. Shadi Khel is a big tribe and are the biggest landlords of Kamar Mushani. The, complainant and the deceased are the close relatives of Abaid Ullah Khan Shadi Khel MNA and Ghulam Rasul Khan Shadi Khel, who is father of Abaid Ullah Shadi Khel and is a sitting MPA for a long time. Allah Dad, Hayat Ullah and Saeed are vagabonds and are of the age group. They used to tease my daughters in my absence and in the absence of my sons Muhammad Rafiq and Muhammad Hanif. I complained this fact to the Shadi Khel elders but they misbehaved with me. Hayat Ullah P.W. is a gangster and renowned criminal of the Ilaqa and is a record holder against whom so many cases of sodomy with the young boys were registered. On the day of occurrence all the three i.e. Muhammad Saeed, Allah Dad and Hayat Ullah came on a motor‑cycle to my house as they were having the information regarding my absence and the absence of my sons Muhammad Hanif and Muhammad Rafiq as we all the three had not returned from our work. All the three wanted to outrage the modesty of my young daughter and at that time Ashraf son of Gul Jahan a Khalazad of Muhammad Rafiq my son was present at my house who fired to save the honour and modesty of my daughter which hit the deceased and the other injured. I am a disabled person and even I cannot hold a simple Danda in my hand. Due to the political pressure of Shadi Khel group the complainant party twisted, the real facts and in connivance with the police formed a baseless motive and a false case against me. I am at the mercy of this Honourable Court and I am innocent.

15. There does not appear to be any profound enmity existing between the parties. Even if we believe the prosecution story pertaining to the motive aspect of the case, it shows two happenings in enraging the accused side. But even if we accept that the people of Mianwali are very emotional and trigger‑happy, the two previous incidents do not appeal to be the main cause of the occurrence.

16. The cross‑examination of Hayat Ullah reflected that he was involved in two cases, one under section 324, P.P.C. and the other under section 302, P.P.C. registered at the same police station. This reflects upon his conduct. Several questions were put to him in cross‑examination pertaining to his personal character. In his cross‑examination he admitted that the appellant had no enmity with either Saeed P.W. or Allah Dad deceased. All the three were in the range of 24 to 25 years of age. They were young. All the three were riding a motor‑bike when the occurrence took place near the house of the appellant.

17. The defence version whether during the cross‑examination or in the plea taken by the appellant under section 324, Cr.P.C. was that these youngsters would tease his daughters and this had annoyed him. Incidentally, it may also be mentioned that people of Mianwali District get enraged over even minor questions pertaining to family honour.

18. There being no serious motive; the presence of the appellant in the street alongwith his wife while holding his gun and hurling threat, supports the defence version of the case. The defence story, under the circumstances and on appraisement of the evidence, appears to be plausible and cogent except with respect to the total innocence of the appellant from whom even a gun is recovered. The circumstances of the case do not allow any scope for the substitution of the appellant for his son Rafiq. The appellant was an aged person and would not have fired at the deceased or the P.Ws. just over a minor incident. This Court believes the defence version and finds that the Court below was also obsessed by it and, therefore, was inclined to take it as a mitigating circumstance and awarded life imprisonment to the appellant.

19. But should this man who was enraged over a question of his family honour, suffer imprisonment for life when he was provoked by three youngsters who were passing by his house and even on seeing him armed did not turn back their motor‑bike for averting the occurrence. The answer is in the negative. People have a right to protect their family honour and if a killing takes place on provocation, the law affords concession to such killer.

20. The circumstances reflect that the complainant party were the miscreant and it was on account of their conduct that the occurrence took place and the appellant was provoked.

21. This Court is of the view that the, case squarely fell under section 302 (c), P.P.C. The appellant is convicted accordingly and in view of the mitigating circumstance of this case and question of family honour involved, he is sentenced to nine years rigorous imprisonment. The conviction under section 324, P.P.C. for causing injuries to Hayat Ullah P.W., is also upheld but the sentence is reduced to four years rigorous imprisonment and since the provocation came from the side of the complainant, there will be no orders as to fine or payment of compensation to the family of the deceased or the injured. The appeal is, therefore, partly accepted through reduction of sentence and disposed of accordingly.

22. The revision petition asking for enhancement of sentence has no merits after the observations made by this Court hereinabove and it is dismissed. S.M.A.H./G‑207/L Order accordingly.