1987 PLP 3158 (MLD)

4. It was also alleged in the F. I. R. that the appellant had murdered the deceased at the instigation of Ahmad Khan and Muhammad Mumtaz.

5. S.I. Ghulam Qasim P.W.11 after recording the F.I.R. Ex. PK, left for the spot and on reaching there he prepared injury statement Ex. PN and inquest report Ex. PO in respect of the dead body of the deceased. He recovered six currency notes Ex. P5/1-6, each of the denomination of Rs. 100, two currency notes Ex. P.6/1-2, each of the denomination of Rs. 10 seven currency notes Ex. P.7/1-7, each of the denomination of Re. 1 and ring Ex. P.8 of the identity card of the deceased from the pocket of his shirt and took them into possession vide memo Ex. PG. He despatched the dead body to the mortuary for post-mortem examination. He inspected the spot and recovered empty cartridge P.11 lying on the road outside the bus and made it into a sealed parcel vide memo Ex. PL which was attested by Hakam Khan P.W. 10 and Muhammad Khan PW (not produced at the trial). On 6th of January, 1984 F.C. Faqir Hussain P.W.2 produced before him last worn blood-stained shirt P.1 and shalwar P.2 and vest P.3 of the deceased and a sealed phial P.4 containing a pellet and he took them into possession vide memo Ex. PB. On 15th of January, 1984 he arrested the appellant from a. bus stand and on his personal search recovered from him carbine Ex. P.9 and two live cartridges P.10/1-2 and sealed them into a parcel vide memo Ex. PH which was attested by Munshi Khan P.W.7, and Fateh Khan PW (given up at the trial as unnecessary). He got prepared site plan Exs. PJ and PJ/1 of the place of occurrence from Mohammad Saeed, draftsman P.W.8.

6. The crime empty P.11 recovered from the spot and carbine P.9 recovered from the appellant were sent to the Forensic Science Laboratory where after examination it was found vide report Ex. PQ that the crime empty had been fired from the carbine.

7. During the investigation, Habib Ullah P.W.9 conceded that Ahmad Khan and Mumtaz who according to his allegation in the F.I.R. had abetted the commission of the crime by the appellant were innocent.

8. In view of the above investigation, therefore, only the appellant was challaned under, section 302, P.P.C.

9. On 6th of January, 1984 Dr. Nasir Khan P.W.1, Medical Officer, Civil Hospital, Jauharabad performed post-mortem examination on the dead body of the deceased and found the following injuries:- (1) A lacerated wound of graze 6 c. m. x 4 c. m. x muscle deep on the outer side of left forearm. (2) 6 lacerated wounds of entry each measuring c.m. in an area of 6 c. m. x 3 c. m. on front of left side of chest 4 c. m. below left nipple and 3 c.m. from the mid-line. Blackening of the clothes was present. Wounds were also tattooed.

10. In the opinion of the Medical Officer, the death of the deceased had occurred due to injury No. 2 which was fatal and sufficient to cause death in the ordinary course of nature. Injury No. 1 was simple. Both the injuries were ante-mortem and caused by fire-arm. The probable interval between the injuries and the death was within a few minutes and between the death and the post-mortem examination within 24 to 36 hours. Ex. PA is the post-mortem examination report and Ex. PA/1 is the diagram showing the locale of the injuries. In his cross-examination he said that injury No. 1 and 2 could be caused by a single shot.

11. The appellant was charged under section 302, P.P.C. to which he pleaded not guilty. When examined under section 342, Cr.P.C. he denied the prosecution case and the recovery of the crime empty from the spot and the carbine from him. According to him, he had been falsely implicated in the case due to enmity. He pleaded innocence. However, he stated that Mst. Bhagbhari, his sister, had been enticed away by Saif Ullah and the deceased. He declined to adduce any evidence in defence.

12. The prosecution at the trial examined eleven witnesses who included two eye-witnesses namely Habib Ullah P.W.9, who is the complainant and Hakam Khan P.W.10. They also deposed to the recoveries. Bahadur Khan P.W.6 and Munshi Khan P.W.7 also were produced as recovery witnesses. After appraising the evidence, the learned trial Court held the appellant guilty of the murder of the deceased and accordingly convicted and sentenced him as above.

13. As regards the motive, the appellant admitted that Mst. Bhaghbari, his sister, was enticed away by Saif Ullah and the deceased. Habib Ullah P.W.9 and Hakam Khan P.W.10 deposed that on the day of occurrence they alongwith the deceased reached Qaidabad Bus Stand at 9.45 a.m. on their way to Jauharabad to know about the disposal of the bail application of Saif Ullah and Mst. Bhaghbari. Muhammad Ramzan P.W.5, Record Keeper of the Court of Sessions, Jauharabad stated that the bail application of Mst. Bhaghbari and Sa Ullah in a case under sections 10 and 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was fixed for hearing on 5-1-1984. This evidence, therefore, proves the motive for the crime as well as the purpose for which the deceased and the eye-witnesses were present at the Bus Stand of Quaidabad where the occurrence took place.

14. S.I. Ghulam Qasim P.W.11 deposed that during the investigation of the case, he arrested the appellant on 15th of January, 1984 from the Bus Stand of Fatehpur Maira and recovered from him on his personal search carbine P.9 and two live cartridges P.10/1-2 an sealed the carbine into a parcel vide memo Ex. PH. Munshi Khan PW. fully supported him Although Munshi Khan is admittedly related t the deceased yet no animus was ascribed to him for making a false statement against the appellant. It may be mentioned here that the deceased and the appellant also were related inter se. S.I. Ghulam Qasim P.W.11 further stated that on 5th of January, 1984 he recovered empty cartridge P.11 from the road outside the bus in which the occurrence took place and made it into a sealed parcel vide memo Ex. PL. Hakam Khan P.W. 10 corroborated him.

15. Learned counsel for the appellant has argued that the recover of the empty is dubious because it was not mentioned in the F.I.R. that an empty was lying at the spot, that there was no mention in the inquest report about the presence of the empty at the spot and that the place of recovery of the empty was not indicated in the sit plan Exs. PJ and PJ/1 of the place of occurrence prepared by draftsman Muhammad Saeed PW.8. These omissions do not per se necessarily cast any aspersion on the genuineness of the recovery and can be ascribed to lack of diligence on the part of the I. O.

16. We, therefore, find no valid reason for discarding the recover of the crime empty as well as the carbine. Both these articles were sent to the Forensic Science Laboratory where after examination i was found vide report Ex. PQ that the empty had been fired from the carbine. There is nothing on record to assail the report.

17. So far as the ocular evidence is concerned, it was provide by Habib Ullah P.W.9 and Hakam Khan P.W.10. They fully testified to the occurrence as narrated above. They explained their presence at the spot at the time of occurrence. The explanation furnished b them was corroborated by Muhammad Ramzan, P.W.5, Record Keeper of the Court of Sessions, Jauharabad as discussed above while dealing with the motive. Their veracity remained unshaken in their cross-examination. Learned counsel for the appellant has taken strong exception to the non-production by the prosecution of Ghulam Abbas and Aman Ullah, driver and conductor respectively of the bus, who were cited as witnesses. Both of them were given up at the trial as having been won over. The record does not show that at the trial any objection was taken on behalf of the appellant to the non-productions of these two witnesses or that any request was made on his behalf, for their examination as court-witnesses. Therefore, the objection of the learned counsel at this stage is simply an after thought and un-availing. We, therefore, feel inclined to give credence to they testimony of the eye-witnesses.

18. In view of the ocular account corroborated by the evidence of motive and also of recovery of incriminating articles; the learned trial Court was perfectly justified in holding the appellant guilty of the murder of the deceased and invoking his conviction under section 302, P.P.C. We, therefore, maintain the conviction.

19. However, we agree with the learned counsel for the appellant that in the circumstances of the, case, the extreme penalty of death is not called for. The sister of the appellant had eloped with the brother of the deceased and after the arrest of both of them it was the deceased who was playing active role for their release on bail. Habib Ullah P.W.9, who is the complainant and also the brother of the deceased, conceded in his cross-examination that they had n enmity with the appellant and the appellant had committed the murder of the deceased due to ghairat. We, therefore, alter the sentence of the appellant from death to imprisonment for life but maintain the sentence of fine awarded to him. While computing the period o sentence, the appellant shall be entitled to the benefit of the provisions of section 382-B, Cr.P.C.

20. With the above alteration in the sentence, this appeal is dismissed.

21. The sentence of death imposed on the appellant is not confirmed. S.A./G-90/L Sentence altered.