1989 PLP 819 (MLD)

The brief facts of the instant case, are that Ghaus Bakhsh deceased was suspected of having amatorial ties with Mst. Kancez, the wife of the appellant. On 19‑8‑1978 at about Aser time, Ghaus Bakhsh, Allah Bakhsh, Ghulam Hussain, Rafique Ahmad and Nabi Bakhsh were grazing their cattle, when the appellant appeared there and called Ghaus Baklish towards hint and said that he would teach him a lesson of his guilty associations and fired with a pistol on Ghaus Bakhsh, which injured his chest. Ghaus Bakhsh fell down and died instantaneously. The appellant 'is stated to have fled away with the weapon of offence. Allah Bakhsh P.W.9 who happens to be the first cousin of Ghaus Bakhsh deceased went to Police Station Zahir Pir and lodged the F.I.R. Exh.P.F at 5‑40 p.m. on the same day which was recorded by Saadullah S.I. P.W.11.

3. The police went to the spot and collected blood‑stained earth. They despatched the dead body for autopsy and Dr. Abdur Rauf Anwar P.W.6, conducted the autopsy on the dead body of Ghaus Bakhsh and observed the following injury:‑ One oval wound of entry 1‑1/4" x 1‑1/2" was found near lower part of sternum on right side.

4. This medical expert has found blackening of edges and tatooing of skin. According to him this injury has caused instantaneous death of the deceased. This witness was not cross‑examined.

5. The appellant was arrested on 21‑8‑1978 and pistol Exh.P.4 in which the empty cartridge Exh.P.5 was found, was recovered .at his instance and taken into possession vide memo. Exh.P.C. After the completion of the investigation, the challan of the appellant was submitted arid he was awarded the aforementioned punishment. .

6. Allah Bakhsh P.W.9, happens to be the first cousin of the deceased and he lived with him. He has depicted the motive for the commission of this crime, which has not been denied by the appellant in his statement made under section 342, Cr.P.C. Allah Bakhsh has stated that he was grazing his donkeys and the others were grazing their cattle, when Shabbir Ahmad fired his pistol on Ghaus Bakhsh which hit him on his chest and he fell down and died. He has stated that the appellant had gone towards the deceased upto 2 to 3 Karams and then fired at him. He has added that Ghulam Hussain P.W. is a' resident of village Lal Aram which is at a distance of 10 Acres from his house, whereas his house is at a distance of 6 Acres from the spot. Allah Bakhsh ran a provisions 'shop in his village and was a professional tax‑payer. He was not expected to gaze donkeys after leaving his shop. In case, he and Ghaux Bakhsh lived together, Ghaus Bakhsh could have taken his donkeys for grazing and he was expected to be busy at his shop at Aser time in summer season. The presence of Allah Bakhsh at the spot is not credible.

7. Ghulam Hussain P.W.10 has deposed that he was grazing 'his cattle alongwith Ghaus Bakhsh and others, and the appellant shot at Ghaus Bakhsh with his pistol which hit .him on his chest. When they tried to catch hold of Shabbir Ahmad, he ran away. Before the police, he has stated his residence at Ghazipur and actually he lives in village Lal Arain fie has adopted his profession of constructing mud‑walls and has not explained as to why he was grazing his cattle on that day. He has stated that he did not see any person passing by on the Katcha road, whereas the complainant had contradicted this fact. The presence of Ghulam Hussain on the spot is also not convincing.

8. The recovery of pistol has been supported by Ghularn Oadir P.W.5 and Saadullah P.W.11. Ghulam Oadir has stated that the appellant had given the key of a wooden box in which he had concealed the pistol, whereas Saadullah, the, investigating Officer P:W.11 has contradicted this fact and has stated that the wooden box had not been locked. The complainant has stated that the appellant was arrested on the same evening and again stated that the appellant was arrested on the next morning i.e. on the morning of 20-8‑1978. The Police Officer has stated that he was arrested on 21-8‑1978. This discrepancy has not been reconciled. It is also not believable that a person who has. enmity would keep empty cartridge in his pistol so as to keep it for the police after his arrest. The story of recovery is not believable.

9. When the ocular evidence and the story of recovery of pistol is not believable then the motive and the medical evidence do not furnish a basis for the conviction of the appellant on a capital charge.

10. In response to question No.4 in his statement under section 342, Cr.P.C., the appellant gave the following explanation:‑ "My father‑in‑law owns a house and a shop in Ghazipur. My wife. Mst. Kaneez went to her father about 2/3 days before the present occurrence. On the day of occurrence, I was going to Ghazipur to take her. I had a pistol with me for my safety. I passed by the cluster of date trees near the place of occurrence. I heard a noise. I went inside the cluster and saw Mst. Kaneez and the deceased Ghaus Bakhsh in an objectionable position. They were kissing each other. Seeing me both ran. I followed their running. I also loaded my pistol at the time. The deceased Ghaus Bakhsh fell down near the cluster. I approached him running and fired at him when he was getting up abusing and, saying that I would teach him a lesson for Zina Kari. In the meantime Mst. Kaneez ran away. I searched for her in the nearby fields, but could not find her: None of the P.Ws. were present at the spot. I went to the police station and produced the pistol and narrated the story. I had fired at Ghaus Bakhsh under grave and sudden provocation."

11. According to the Investigating Officer, the deceased was bare‑footed when he saw him. This fact supports the version put forth by the appellant. Secondly, when the prosecution story is doubtful and the ocular evidence and the evidence of recovery of the pistol have been disbelieved, then the plea put forth F by the appellant is to be accepted in toto. I accept the plea of the appellant and hold that he was under the stress of grave and sudden provocation when he killed Ghaus Bakhsh. He is, therefore, guilty under section 304 Part 1, P.P.C. I, therefore, change his conviction from section 302. to one tinder section 304, Part I, P.P.C. and award him five years' R.I. and a fine of Rs.2,

000. In default of payment of fine, he shall suffer six months' R.I. As the appellant has killed an unmoral person, no compensation is awarded to the heirs of the deceased. The appellant is allowed the benefit of section 382‑B, Cr.P.C. The appeal is decided in these terms. The appellant was released on bail. He shall be taken into custody forthwith and sent to jail to serve his remaining term of sentence. M.Z.S./S‑411/L Order accordingly.