1980 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑

‑‑S. 382‑Sentence, concession in‑Murder committed to retrieve family honour‑‑Period during which accused remained in Jail before trial, held, to be considered as concession in sentence under S. 382, Cr. P. C. in circumstance.‑[Sentence]. Rafique Ahmad for Appellants. A. S. Hashmt for A.‑G. for the State. Date of hearing : 30th May, 1979. Nasir Ahmad and Sultan Ahmad sons of Ghulam Ahmad were tried for the murder of Muhammad Jan and for causing injuries to Abdul Aziz P. W. 8 by Sessions Judge, Mianwali, who vide his judgment dated 27th November, 1976, convicted both the appellants under sec tion 302/34, P. P. C. and sentenced them to life imprisonment with a fine of Rs. 1,000 or in default of payment of fine to undergo R.1. for one year. Under section 307/34, P. P. C. both the brothers were sentenced to seven years' R. I. with a fine of Rs. 1,000 or in default of payment of fine to undergo R. 1. for one year each. Out of the fine . Rs. 2,000 were ordered to be paid to Abdul Aziz injured P. W. as compensation, whose arm has been amputated.

2. The occurrence is alleged to have taken place on 24th June, 1975 at Peshiwela within the area of Sodhari, Tehsil Isa Khel, District Mianwali, situate at a distance of two miles from Police Station, Kamar Mushani, District Mianwaii. The matter was reported by Abdul Aziz P. W. 8 brother of the deceased, who was proceeding along with his brother, sitting on the front rod of his cycle, to Kamar Mushani. The deceased from Kamar Mushani had to catch the bus for Wah Ordnance Factory where he was employed. Both the appellants came also riding on a bicycle. They are alleged to have fired their pistols. Nasir Ahmad's fire hit Muhammad Jan on his chest and head while the fire of Sultan Ahmad injured Abdul Aziz. On hearing the reports of shots Faiz Ullah P. W. 9 brother‑in‑law of the deceased and Abdur Rehman P. W. 10 brother of the deceased who were grazing their camels nearby, came and saw the occurrence.

3. The motive for the crime was that Nasir Ahmad suspected the deceased having illicit relations with his wife Mst. Sakina Bibi. On 26th June 1975, 12 bore pistol P. 14 was taken into possession by Nazir Ahmad Sub‑Inspector P. W: 11 vide Memo. Exh. P. M. which was attested by Faiz Muhammad P. W. 7 who is related to both the parties and Faizullah P. W.

9. From the spot 12 bore empty P. 13 was taken into possession vide Memo. Exh, P. L. by the same Sub‑Inspector. The memo. was also attested by the same witnesses. The report of the Forensic Science Laboratory Exh. P. S. shows that the pistol recovered was used in the crime.

4. The learned Sessions Judge has rightly disbelieved Faizullah and Abdur Rehman P. W. 9 and P. W. 10 respectively since they are alleged to have reached the‑ spot after hearing the fire shot reports. However, there can be no escape but to rely on the testimony of Abdul Aziz P. W. 8 who was injured in the incident. As a rule of prudence an caution corroboration is needed, for, there is possibility of involvement of innocent Sultan Ahmad from whom no recovery has been made. I would, therefore, accept his appeal, set aside his convictions and sentences. So far as Nasir Ahmad is concerned there is no doubt that he is the killer of Muhammad Jan. The recovery of empty from‑the spot shows that the second fire was also made by him. The appeal so far as he is concerned is dismissed. His convictions and sentences are upheld. Since family honour is involved in this case I would not likes to impose any compensation which is mandatory under section 544‑A Cr. P. C. So far as the fine of Rs. 1,000 on each count is concerned that shall be paid as compensation to Abdul Aziz and shall be realised under section 386, Cr. P. C. from Nasir Ahmad. In the matter o sentence I would, however, direct that the period during which he has remained in Jail before the trial shall be considered as concession in the sentence under section 302, Cr. P. C.

5. Criminal Appeal No. 42 of 1977 filed by Nasir Ahmad against his conviction and sentence under section 13, of the Arms Ordinance, 1965, is dismissed. Both the sentences shall run concurrently. Order accordingly.