2009 PLP 1131 (MLD)

HASNAT AHMAD KHAN, J.

Muhammad Ashraf-appellant, along with five others, was tried by a learned Additional Sessions Judge, Jhang, in a criminal complaint case No.44 of 2002, for the offences under sections 302, 324, 148, 149 and 109, P.P.C., allegedly committed within the jurisdiction of Police Station 18-Hazari, Tehsil and District Jhang. After the conclusion of the trial, the said learned Addl. Sessions Judge found the appellant 'guilty of murdering Sultan (slain). Consequently the appellant was convicted-and sentenced to the rope under section 302(b), P.P.C., vide judgment, dated 28-6-2003. Under section 544-A, Cr.P.C., the appellant was ordered to pay Rs.1,00,000 as compensation, to be paid to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo three months' S.I. The learned trial Court, however, acquitted Hakim, Mulazim, Mumtaz, Bahadar and Muhammad Bukhsh, co-accused of the appellant, by giving them the benefit of doubt.

2. Aggrieved by the judgment of the learned trial Court, the appellant challenged his conviction and sentence through Criminal Appeal No.1316 of 2003, while the trial Court sent a Reference (Murder Reference No.498 of 2003) for the confirmation or otherwise of the death sentence, awarded to the appellant. Muzaffar Ali-complainant also filed Cr.R. No. 818 of 2003 for enhancement of compensation awarded to the legal heirs of the deceased as well as PSLA No.78 of 2003 against acquittal of above-mentioned co-accused. This consolidated judgment will dispose of all the aforesaid matters.

3. Succinctly, the prosecution's story, as narrated by the complainant-Muzaffar Ali (P.W.8), through his statement (Exh.C.W.1/A), which later on culminated into F.I.R. (Exh.C.W.1/B), was/is to the effect, that on the fateful day at about 2-15 p.m., he along with Ghaus Muhammad, Ramzan was sitting in the shop of one Sarwar; Messrs Muhammad Ashraf, Hakim, Mulazim, Bahadur, Mumtaz were also sitting in Ashraf's hotel in front of the shop; complainant's brother Sultan (deceased) after getting off from a bus sat with them; as soon as the complainant's brother Sultan Ahmed sat with them, Messrs Muhammad Ashraf, armed with a .30 bore pistol, Mulazim, armed with a .32 bore pistol, emerged there and simultaneously Mulazim (acquitted co-accused) raised a lalkara that Sultan Ahmed should be killed; raising Lalkara, Muhammad Ashraf fired four shots from his pistol one after another which hit on different parts of Sultan's body as well as injured Muhammad Anwar (given up P.W.), who was sitting with them; Sultan Ahmed succumbed to his injuries at the spot and Ghaus Muhammad, Ramzan, above-mentioned, witnessed the occurrence; the other accused Hakim, Bahadur, Mumtaz while sitting in the hotel, kept on raising Lalkara that Sultan Ahmed should not be left alive. The motivating factor behind the occurrence is stated to be that there was a dispute over a piece of land between the parties, due to which the accused, in consultation with each other, allegedly killed Sultan.

4. After three months of lodging the F.I.R., the complainant filed the criminal complaint against the afore-mentioned accused including the appellant.

5. During the trial, the complainant, in support of his case, produced as many as 10-witnesses. Shabbir Ali, Constable No.1033, appeared as P.W.4 and deposed that he had escorted the dead-body of Sultan Ahmed to the mortuary for its post-mortem examination. Mst. Waziran Mai entered the witness box as P.W.5 and deposed that she along with others had overheard Muhammad Ashraf-appellant and other acquitted co-accused hatching a conspiracy to murder the complainant's brother Sultan. Ghulam Qasim appeared as P.W.6 and deposed about the conspiracy statedly brooded by the accused to eliminate Sultan (deceased). Muzaffar-complainant entered into the witness box as P.W.8 and furnished the ocular account of the occurrence. Muhammad Ramzan appeared as P.W.9 and corroborated the statement of the complainant. Pehlwan appeared as P.W.10 and deposed that Hakim/co-accused had made an extra-judicial confession before him. Muhammad Anwar, S.-I./I.O., who besides recording the statement of the complainant, had investigated the case, appeared in the witness box as C.W.1 and provided the detail of the investigation conducted by him. Dr. Abdul Aziz Khalid, who had conducted autopsy on the dead-body of Sultan Ahmed (deceased), came forward as P.W.1 and furnished the detail of injuries, observed by him on the corpse of deceased, as under:-- A firearm entrance wound 1 c.m. x 1 c.m. on the right side of abdomen upper quardrant 13 c.m. above right anterior, superior, iliac spine blackening at the margins present. A firearm exit wound 1.5 c.m. x 1.5. c.m: on the left side of abdomen 11 c.m. away from umbilicus. (2-A) A firearm entrance wound with blackening at the margin 1 c.m. x 1 c.m. on the outer side of right thigh upper part. 12 c.m. below right anterior, superior iliac spine. (2-B) A firearm exit wound 1.5 c.m. 1.5 c.m. on the outer side of left thigh 10 c.m. below left anterior, superior iliac spine. According to his opinion, the cause of death in this case was due to haemorrhage and shock resulting from injuries Nos. 1 and

2. He opined that injury N6.1 alone was sufficient to cause death in the ordinary course of nature. The complainant gave up P.Ws. Makhan and Mst. Naziran, being unnecessary. Learned D.A. after tendering into evidence Report of Chemical Examiner (Exh.PH), and that of Serologist (Exh.PJ) closed the prosecution's evidence. Rest of the witnesses being formal in nature need not be discussed here.

6. The appellant made his statement under section 342, Cr.P.C. While responding to question No.12, appellant stated as under:-- "All the P.Ws. are related inter se and to the deceased. They have falsely deposed against me because of their relationship. They, therefore, have motive to falsely depose against me." In reply to question No.13, the appellant further stated as under:-- "I am innocent. My Nikah with Mst. Nazran was performed some years before the occurrence. Sultan deceased who was my real maternal uncle wanted to marry her and he asked me to divorce her so that he could marry her. I protested and told this fact to my mother and asked her to prevent Sultan deceased for making such demands, but she did not do anything. When Rukhsati of Mst. Nazran took place, Sultan deceased confined himself in a room for many days as a protest and he was prevailed upon by his relatives with great difficulty to end the confinement. Thereafter Sultan deceased had been visiting my house to see Mst. Nazran and he did not leave his habits even after my marriage with Mst. Nazran for keeping bad eyes upon her. I again asked my mother to prevent him from doing so but she had been putting my off by giving so many buts and Sultan had been visiting my house. I asked the other elderly members of my brotherhood to prevent Sultan from doing so but he did not mend his ways. Sultan deceased constructed a Chowbara in front of my house where he had been sitting the whole day with a rifle to continue his lust of having amorous eyes on Mst. Nazran and to kill me if he found an opportunity to do so. He had also been saying to many persons that he would kill me because I was becoming a hurdle in the continuance of his illicit intimacy with Mst. Nazran. Sultan deceased had also been threatening me to divorce Mst. Nazran otherwise he would kill me. On 5-3-2002 Sultan deceased filed a suit for restitution of conjugal rights against Mst. Amiran who is my Phoopi. Although Mst. Amiran had already been married to Hafeez Ullah. Sultan did so just to put pressure to divorce. my wife Nazran and when written statement was submitted disclosing that Mst. Amiran had already been married, he opted to withdraw that suit. He again on 4-4-2002 filed another family suit of restitution of conjugal rights against another daughter of Hakim accused namely Mst. Balqees Bibi who is the real sister of Amiran Bibi above mentioned, in which suit the date of hearing was fixed as 3-6-2002. On that date Mst. Kalsoom appeared before the Court, she gave her written statement repudiating the version of the deceased and she also produced the alleged witnesses of the Nikah with affidavits who repudiated of any Nikah between her and Sultan deceased. She also submitted an application to the Court on that day for taking legal and penal proceedings against Sultan deceased. On the day of occurrence I was present at the shop of Haji Pehalwan which is just close to the shop of Sarwar, Sultan deceased came there and he told Sarwar and his brother Sultan who had also the nearby shop that unless Ashraf divorces Mst. Nazran, he would continue filing false suits against his family to put pressure upon him for divorcing Mst. Nazran. He further declared that even if Ashraf does not divorce Mst. Nazran he would abduct her and take her away to such a place 'where he could not find us. I protested to Sultan not to defame me publically. Sultan declared that you cannot do anything against me and you could not do anything when I filed suits against your Phoopies. I again protested upon which he fired at me but Anwar who was in between got injured. Sultan attempted to make a second fire upon me but in my right of self-defence and under grave and sudden provocation fired two shots at him. All this happened in a flashining of a moment without any intention. I did so. under grave and sudden provocation and right of self-defence. None of the other accused was present there nor any of them had abetted me in this behalf. In fact it all happened all of a sudden. The eye-witnesses were not present there, the shop keeper Sarwar and Sultan and others took Sultan in an injured condition to the Police Station but he died on the way. I myself went to the police Station to report the matter, but the Investigating Officer summoned Muzafar and got a false case registered against me and my co-accused while sitting at the Police Station after fabricating the false story. Adda Bharrari is a busy place where about 100 shops at that place no body from, Adda Bharrari appeared as a witness and the witnesses of the far away places. When the complainant did fail to vividly prove his case with regard to the alleged involvement of me and my co-accused during the whole investigation then he opted to file a false complaint after inventing a false story and setting up interested and false witnesses." The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C.,

7. After the conclusion of the trial the appellant was convicted and sentenced to death as mentioned above. However, Hakim, Mulazim Hussain, Bahadur, Mumtaz and Muhammad Bakhsh, the co-accused were acquitted of the charge by giving them benefit of doubt.

8. In support of this appeal learned counsel for the appellant contends that the F.I.R. was registered after holding a preliminary investigation, a fact which is borne out from the statement of Shabbir Ali (P.W.4), who during his cross-examination candidly admitted that the statement of the complainant had been recorded by the Investigating Officer after inspecting the spot; that in view of the said fact the claim of the prosecution of lodging the F.I.R. promptly becomes doubtful; that the ocular testimony is outrightly contradicted by the medical evidence; inasmuch as, according to the contents of the F.I.R., Sultan (deceased) was gunned down by the appellant by producing four pistol shots, whereas according to the statement of Dr. Abdul Aziz Khalid (P.W.1), Sultan (deceased) had received only two firearm entry wounds; that the medical evidence further reveals that direction of injury No.1 was from upward to downward, whereas it is not the prosecution's case that Sultan (deceased) was shot at by the appellant from a higher level; that considering the fact that there was a blackening around the injuries sustained by Sultan (deceased), the doctor admitted during his cross-examination that the shot was made from a distance of one foot, whereas according to the prosecution, the deceased was gunned down from a distance of 8 feet; that the said glaring contradictions would show that the occurrence was never witnessed by the eye-witnesses relied upon by the prosecution; that according to the contents of the F.I.R., one Muhammad Anwar, P.W. had also received firearm injuries during the occurrence but the said witness was dishonestly withheld by the prosecution, a fact which adversely affects the credibility of the prosecution's version, rather demolishes the prosecutions' case; that it is a case of two versions, one put forth by the prosecution and the other by the appellant and while putting the two versions in a juxtaposition, the defence version appears to be more plausible and believable than that of the prosecution; that the story of the motive as given in the F.I.R remained unproved during the trial; that during the trial, the prosecution improved its version regarding the motive; that it is established on, the record that the eye-witnesses relied upon by the prosecution are chance witnesses; that the independent and natural witnesses who were supposed to be present at the time and place of occurrence, were not produced by the prosecution in the witness box; that the ocular version comprises related and interested witnesses, therefore, they are not worth of any reliance, whatsoever; that during the trial both the eye witnesses produced by the prosecution made deliberate and dishonest improvements in order to ensure the conviction of the appellant, therefore, no reliance can be placed on the evidence of such like witnesses; that it is true that the appellant's mother while appearing as P.W.S., deposed against the appellant but her statement cannot be believed for the reason that her statement under section 161, Cr.P.C. was recorded one month after the occurrence; that even otherwise the story of conspiracy put forth by P.W.5 was disbelieved by the learned trial Court; that the love for her brother, i.e. Sultan (slain) somehow dominated against her love with the appellant; that be that as it may after disbelieving her statement by the learned trial Court, no credence or value can be given to her statement; that in absence of recovery of any empty from the spot, the alleged recovery of pistol at the instance of the appellant cannot help the prosecution; that since the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, therefore, the statement of the appellant made under section 342, Cr.P.C. merits acceptance as a whole and consequently the appellant deserves clean acquittal of the charge; that the burden cast on the accused under Article 121 of Qanun-e-Shahadat Order cannot be as heavy as the burden that rests on the prosecution. In order to shore up his last contention learned counsel has placed reliance on the cases of Muhammad Siddique v. The Crown (PLD 1954 F.C. 112) and Safdar Ali v. The Crown (PLD 1953 F.C. 93). In the alternative, learned counsel for the appellant has contended that in the attending circumstances of the case, Sultan (deceased) cannot be termed as "masoomuddam", therefore, the appellant, who had acted under sudden and grave provocation, at the most can be convicted under section 302(c), .P.P.C.

9. Conversely, learned D.P.G., assisted by the learned counsel for the complainant, has contended that the date, time and place of occurrence is not denied, rather admitted by the defence; that the occurrence was reported to the police quite promptly, therefore, there is no room to hold that the F.I.R. was registered after due consultations and deliberations; that no undue weight can be given to the statement of P.W.3, a Constable, who made a dishonest concession in favour of the defence by stating that the statement of the complainant was recorded after site inspection; that Muzaffar Ali, one of the eye-witnesses is real maternal uncle of the appellant, therefore, he had no reason to falsely implicate the appellant in a case which entails death penalty; that the prosecution's version is supported by the real mother of the appellant, who contradicted the appellant's' plea that the appellant had married Sultan's beloved, and due to the said grudge the latter was determined to eliminate the appellant; that the F.I.R. is never treated as an exhaustive document and for this reason it was not necessary for the complainant to give the detail of each and every injury sustained by Sultan (slain) in the F.I.R.; that the medical evidence is not contradictory to the ocular evidence, rather the same is in line with the ,prosecution's version and that the motive of the occurrence was duly proved through documentary evidence. Learned counsel for the complainant adds that the defence version, for the first time, was put to Mst. Waziran, mother of the appellant (P.W.5.); that in this regard all the suggestions made by the defence were denied emphatically by the said P.W.5; that in view of the denial of the said suggestions by the real mother of the appellant, the defence plea is liable to rejection straightaway; that similarly P.W.8, the maternal uncle of the appellant has also denied such like suggestions made by the defence; that the defence version is not believable because the appellant's Nikah with Mst. Nazran was performed 14 years before the occurrence and during this period no untoward incident took place; that the attending circumstances available on the record reflect that the defence version was an afterthought and cooked up story; that the appellant bumped off the deceased in a calculated and well thought out manner; that since the appellant was arrested after 47 days of the occurrence, therefore, the version put forward by him at the time of his arrest was a result of due considerations and consultations; that the story of self-defence as put forward by the appellant during his statement under section 342, Cr.P.C. is clear cut an attempt of improving his first version made before the police; that after raising the plea of self-defence, the burden of proof shifted towards the appellant under Article 121 of Qanun-e-Shahadat Order but he failed miserably to substantiate the same during the trial, so much so, neither he produced his wife in support of his version nor did he opt to appear as his own witness under section 340(2), Cr.P.C.; that in the peculiar circumstances of the case, the plea of grave and sudden provocation is not available to the appellant and that the, deceased was eliminated by the appellant in a cold-blooded and pre-planned manner, therefore, he does not deserve any leniency even in the matter of sentence. To shore up his contentions, learned counsel has relied upon Muhammad Dilbar alias Muhammad Boota v. The State (2002 SCMR 1425), Baggu v. The State (PLD 1972 SC 77) and Sikandar Shah v. The State (PLD 1%5 Peshawar 134).

10. In order to plumb the depths of the case, we have gone through the entire evidence, oral as well as documentary, with the able assistance of the respective learned counsel for the parties. After doing the said exercise, we have noticed that it is a case of two versions, one put forth by the complainant/prosecution and the other advanced by the appellant. So, in order to come to a just conclusion of the case we have to examine the case after putting the two versions in juxtaposition. Since primarily it is the duty of the prosecution to prove its case beyond reasonable doubt, therefore, first of all we would like to examine the complainant's case, which comprises the medical evidence, the motivating factor behind the occurrence, the recovery of the weapon of crime at the instance of the appellant, the ocular account and the evidence of conspiracy.

11. Insofar as the recovery of pistol (Exh.PG) at the instance of the appellant is concerned, we have noticed that no crime empty was recovered from the spot, therefore, no question arises regarding the existence of positive report of Forensic Science Laboratory. Nevertheless, the absence of report of the Forensic Science Laboratory cannot demolish the prosecution's case, because it is not a case of total denial of the occurrence, rather, according to the appellant, the crime was committed by him in his self-defence. So, in the peculiar circumstances of the case, the recovery of crime weapon is immaterial.

12. Now taking up the medical evidence, we find that according to the contents of the F.I.R. Muhammad Yousaf produced four shots causing critical firearm wounds to Sultan-deceased besides Muhammad Anwar, injured P.W. A perusal of the contents of the F.I.R. further reveals that while lodging the F.I.R., the complainant did not specify seats of the injuries sustained by the deceased. However, after three months of the occurrence, the complainant filed a complaint with the grievance that the police had failed to record his statement, which culminated into the F.I.R., correctly. During the trial initiated on the basis of the said complaint, Muzaffar, the complainant, gave the detail of each and every shot statedly made by the appellant. According to him, out of four shots produced by the appellant, one proved to be ineffective,' whereas one of the shots was received by Anwar, injured P.W., whereas according to him, rest of the two fire shots critically injured Sultan-deceased. Muhammad Ramzan, another eye-witness while appearing in the witness box as P.W.9 toed the line of the complainant and made a similar statement. According to learned counsel for the appellant, the eye-witnesses made improvements during the trial to bring their evidence in line with the medical evidence, according to which Sultan-deceased had received only two entry wounds and rest of the two wounds, according to the doctor, were exit wounds. On the basis of said seeming inconsistency in the ocular evidence and the medical evidence, learned counsel has contended that the occurrence was not seen by the eye-witnesses relied upon by the prosecution. Another ground of attack on the veracity of the eye witnesses is that according to the medical evidence there was blackening around the entry wounds sustained by the Sultan-deceased, a fact which, according to him, does not synchronize with prosecution's version. The last objection in this regard is based on the statement of the doctor, according to whom the direction of injury No.1 was from upward to downward. Insofar as the first objection is concerned, we find that in the F.I.R. the complainant did not specify the seats of the injuries received by the deceased. According to the complainant, the appellant had produced four shots hitting Sultan-deceased and Muhammad Anwar, injured P.W. Admittedly, F.I.R. is never treated to be an exhaustive document. In the witness-box both the eye-witnesses explained that one of the fires had hit Muhammad Anwar, injured P.W., whereas one of the shot remained abortive. In the cases of causing injuries with firearms occurrence concludes within moments/seconds and in a jiffy one cannot notice that all the fires indeed hit the deceased.

13. The occurrence was reported to the police within 75 minutes. The occurrence is admitted by the appellant, as well, though in a different manner. So, the ocular testimony cannot be disbelieved only on the basis of that seeming inconsistency. Similarly, the ocular evidence cannot be discarded on the ground that the deceased sustained firearm injuries from a close range, though, according to the site-plan the deceased was shot at from a distance of 8 feet. Admittedly,' the eye-witnesses are illiterate and rustic villagers, who cannot give/explain the distance with exactitude. Besides, in such like occurrence, neither the victim nor the assailant remain static and considering the length of the arm of the assailant and that of the firearm itself this inconsistency cannot clinch any importance. Insofar as direction of the injury is concerned, after receiving first injury the receipt of the second injury by Sultan (the deceased) in a sitting position cannot be ruled out. For all what has been stated above, we do not see eye to eye with the learned counsel for the appellant and discard the plea that the ocular evidence is contradictory to that of medical evidence.

14. As far as the motive is concerned, according to the contents of the F.I.R. the deceased was gunned down by the appellant to avenge the filing of suits by him, whereas according to the appellant, Sultan-deceased had extra-marital relations with Mst. Nazran, whose parents gave her in marriage to the appellant, who claimed that even after her marriage with him, Sultan-deceased being a lovelorn wanted to continue his illicit relations with appellant's wife. The appellant further claimed that Sultan-deceased had been pressurizing him to divorce his wife. The appellant lamented that in order to pressurize him to divorce his wife, Sultan-deceased instituted two suits for restitution of conjugal rights, one after the other, against two paternal aunts of the appellant. We find that though, the motive regarding the filing of the suits was not mentioned in the F.I.R. but while appearing in the witness box the complainant mentioned filing of the said suit as an additional motive for the commission of the crime. However, during the cross-examination, all the witnesses denied the suggestions regarding the illicit relations of Sultan-deceased with Mst. Nazran, the appellant's wife. Be that as it may, filing of the suits by Sultan-deceased against appellant's two paternal aunts is a fact which is admitted on both the sides. Therefore, we conclude that both the parties were not on good terms and the appellant had indeed some malice in his heart against the deceased. The effect and impact of the apple of discord between the parties would be discussed in the later part of this judgment while considering the question of sentence.

15. Now coming to the ocular evidence, we find that the unfortunate occurrence took place in broad-daylight. The first information about the crime was jotted down by Muhammad Anwar, S.-I. (C.W.1) at Dhal Morr within 75 minutes of the occurrence. According to the appellant, the complaint was indeed recorded on the spot after due deliberation and consideration. In this regard, learned counsel for the appellant has laid much stress on the statement of P. W.3. , according to whom, the Investigating Officer had recorded the statement of the complainant after due inspection of the spot. Barring the said statement, which appears to be a concession made by the Constable, there is no attending circumstance, which can establish the said defence plea. Even otherwise, in this occurrence, one person was shot dead by a couple of gun shots, and another person had also received firearm injury but all the said fires were attributed to the appellant alone, who is real nephew (bhanjha) of the complainant. So, we are not inclined to hold that the F.I.R. was lodged after spot inspection and due consultations/deliberations. Insofar as non-production of the inhabitants/owners of the nearby shops by the prosecution is concerned, in our society, such like independent witnesses usually avoid to appear in the witness box to give evidence, especially in murder cases, therefore, we are not inclined to disbelieve the ocular evidence on that score.

16. Insofar as the evidentiary value of both the eye-witnesses is concerned, admittedly, Muzaffar, the complainant, is real maternal uncle of the appellant. It is true that he is real brother of the deceased, as well but it does not appear to be logical that real maternal uncle would give false evidence against his nephew in a case punishable with death sentence. Similarly, Ramzan (P.W.9), another eye-witness, has no enmity, whatsoever, with the appellant to falsely implicate him in this case. Further, it has not been proven on the record that Ramzan had any relationship with the deceased. Be that as it may, in absence of any enmity between the parties, the ocular account furnished by both the eye-witnesses cannot be discarded, especially, when some of the salient features of the occurrence stand admitted by the appellant, as well.

17. Now analyzing the case while putting the two versions in juxtaposition, we find that the defence version is neither plausible nor probable, because, according to the appellant, the initiative was taken by the deceased by firing a shot at the appellant, which, according to the appellant hit Anwar, injured P.W. but the said injured P.W. was neither produced by the prosecution nor by the defence. It is true that initially it is the prosecution's duty to prove its case beyond any shadow of doubt and the burden of proof of the self-defence is not so heavy as it is cast upon the prosecution but nevertheless under Article 121 of the Qanun-e-Shahadat Order, 1984 after raising plea of self-defence the burden of proof of the said plea shifts on the defence, but the appellant failed miserably to discharge the said burden, for, neither he produced any of the inhabitants/owners of the nearby shops nor did he appear in the witness box as his own witness. Besides, it, the attending circumstances also do not synchronize with the defence plea, inasmuch as, the gun used by Sultan-deceased, as claimed by the appellant, was not found on the place of occurrence.

18. Insofar as acquittal of the co-accused is concerned, the ocular evidence cannot be disbelieved on the said account as well, for, some of the co-accused were involved in this case on the allegation of brooding conspiracy. As far as Mulazim Hussain, co-accused is concerned, the allegation levelled against him was that of raising of a Lalkara, therefore, acquittal of the said co-accused cannot be made a ground for acceptance of the appeal filed by the appellant, because in our judicial system, the Courts are supposed to winnow truth from falsehood.

19. For what has been stated above, we conclude that insofar as the allegation levelled against the appellant qua gunning down the deceased is concerned, the same has been proved beyond any shred of doubt, whereas we are not inclined to accept the plea of self-defence raised by the appellant.

20. Since the prosecution has proved its case through ocular evidence duly supported by the motive as well as medical evidence, therefore, conviction awarded to the appellant under section 302(b), P.P.C. is maintained.

21. Insofar as the question of quantum of sentence is concerned, we find that the prosecution initially claimed that the deceased was gunned down due to the civil litigation pending between the parties. However, during the trial the prosecution improved its version by stating that Sultan-deceased had filed two suits for restitution of conjugal rights consecutively against Mst. Amiran and Mst. Bilqees Bibi, paternal aunts (phoophis) of the appellant.

22. Insofar as civil litigation is concerned, the prosecution produced a copy of a plaint (Mark-D) of the suit filed by Sultan-deceased and Ghulam Muhammad against father and grand-father of the appellant and a copy of contempt of Court application (Mark-C) filed by the said plaintiffs. Admittedly, the said documents were not exhibited in accordance with the law. Be that as it may, the appellant was not a party in the said suit. There were so many other shareholders in the suit property. In presence of the said shareholders including the appellant's grand-father, father and uncles, the prosecution's claim qua the motive on the said account appears to be economical with truth. Anyway the said motive appears to be a feeble one. The other limb of the motive for the occurrence, as claimed by the prosecution is that of filing two suits for restitution of conjugal rights by the deceased against paternal aunts of the appellant. On the other hand, the appellant claims that the filing of the said false suits constituted mitigating circumstances in his favour. The appellant further claims that Sultan-deceased had illicit relations with Mst. Nazran, who was given in marriage to the appellant. He has given a long tale to show that the deceased wanted to marry the said lady and after her marriage with the appellant, he did not lose his heart and tried to continue his illicit relations with appellant's wife. The appellant further claims that the lovelorn Sultan pressurized the appellant to divorce his wife and after his failure in the said attempt, he tried to insult his family by filing two suits one after the other against his paternal aunts. According to the appellant, the only purpose behind the filing of the said suit was to pressurize the appellant to divorce his wife. In the first suit filed by Sultan (slain) against Mst. Amiran-the paternal aunt of the appellant he claimed her to be his legally wedded wife on the basis of Sharai Nikah. The said suit was withdrawn by the deceased on 11-3-2002, thereafter, he filed another suit against Mst. Bilqees-real sister of aforesaid Amiran for restitution of conjugal rights. All the witnesses relied upon by the Sultan-deceased in the said suit filed affidavits before the Judge Family Court whereby they denied his claim. All the said affidavits along with copies of two suits were produced by the appellant in his defence.

23. Learned counsel for the complainant has contended that the real mother of the appellant appeared in the witness box and denied the claim of the appellant regarding the illicit relations of Sultan with appellant's wife but the statement of the Investigating Officer reveals that since day one after his arrest, the appellant had been raising the said plea. Be that as it may, in the complaint itself, the complainant claimed that the grievance of the appellant was that Sultan-deceased was humiliating the complainant party in the Courts. The assertions made by the appellant and the fact that the deceased had filed two suits for restitution of conjugal rights against real paternal aunts of the appellant, one after the other, support the defence plea qua the mitigating circumstances. His plea that the suits for restitution of conjugal rights filed by Sultan (slain) were tainted with mala fides, is strengthened by the fact that joint reading of the said suit's would show that the appellant was claiming that he had married two real sisters at one time, which is against the injunctions of Islam. Besides, filing the said suits by Sultan-deceased one after the other reflects his nefarious designs, who wanted to disgrace the appellant's family at any cost. Therefore, on the cost of repetition we conclude that the misdoings of the deceased contributed a lot in his untimely death at the hands of the appellant, who killed him to save his family honour.

24. Consequently, while pinning faith on the cases of Muhammad Ramzan and another v. The State (1993 PCr.LJ 1589) and Muhammad Ashraf v. State (1990 ALD.749), the appeal is partially allowed and while maintaining the conviction under section 302(b), P.P.C., the death sentence awarded to the appellant is converted into life imprisonment with benefit of section 382-B, Cr.P.C. The sentence of compensation will remain intact, in, terms of the judgment passed by the learned trial Court. Murder Reference is answered in the negative,

25. In view of our findings returned above, Cr.R. No.818 of 2003 filed by the complainant for enhancement of compensation awarded to the legal heirs of the deceased and P.S.L.A. No.78 of 2003, filed by the complainant against acquittal of respondents Nos.1 to 5 therein, stand dismissed. N.H.Q./M-281/L Sentence reduced.