2003 P Cr (PLP)

2. Abid Hussain P.W.9, cousin of the deceased reported the incident to Saeed Akhtar, S.-I./S.H.O. P.W.11, Police Station. Bhong on 21-10-1992 at 7-00 p.m. On his statement F.I.R. No.103 of 1992 Exh.P.F. was registered under section 302, P.P.C.

3. The story as given in the F.I.R. was that the complainant lived is Mouza Thatha Digrocha and was, cultivator by profession. Mukhtiar Ahmad son of Mithey Khan deceased and Hamid son of Alam Din appellant were resident of the same Mouza. However, for the last 4/5 years prior to the occurrence they were working as Baildars with Abdul Ghafoor, contractor acid were living at a place known as Bagh Faiz Jillani, Mouza Bhong. On the fateful day the complainant alongwith Najeeb Ullah P.W.10 and Rasool Bakhsh went to visit Bhong Mosque. On their return, they stayed at Bagh Faiz Jillani alongwith Mukhtiar Ahmad. At about 5/6 p.m. when the P.Ws., Mukhtiar and Hamid were sitting in the compound of Dera, Mukhtiar Ahmad-deceased cut a joke that after paying Rs.15 to Hamid-appellant he committed sodomy with him. This amused everybody except Hamid-appellant, who left the compound and went inside the room. Mukhtiar Ahmad-deceased also went to a nearby room. Hamid came out of the room armed with a rifle and exhorted that Mukhtiar Ahmad had insulted him, he would not spare him. He fired at Mukhtiar Ahmad, which hit on his left eye and proved fatal. Hamid-appellant left the scene of occurrence alongwith rifle.

4. After registration of case P.W.11 reached the scene of occurrence and collected blood-stained earth from the spot, which was secured vide memo. Exh.P.G. He also collected one empty of bullet P.4, which was lying at the place of occurrence and took the same into possession vide memo. Exh.P.H. Both the memos. were attested by Najeeb Ullah P.W.10 and one Rasool Bakhsh, who was not produced during trial.

5. The appellant was arrested on 25-10-1992. On the same day, he led to the recovery of rifle P.3, which was lying under a heap of sticks in a room situated at the backside of the Dera. The same was taken into possession vide memo. Exh.P.J. attested by the aforementioned witnesses.

6. During the trial, the prosecution produced 12 witnesses to prove its case. P. W.9 Abid Hussain-complainant verified the contents of the F. I. R. and also stated about the motive. Najeeb Ullah appeared as P.W.10 and furnished the ocular account and stated about the recoveries. Dr: Sadiq Zia, who had conducted the post-mortem examination, appeared as P.W.3 and stated that the deceased had received a punctured wound on the left eye region from the close range, eye ball had been lost, maxilla was fractured, left part of the forehead was fractured and brain matter was coming out. The injury was caused by a fire-arm. Saeed Akhtar, S.-I./P.W.11 stated about the registration of the case as well as investigation. The prosecution also brought on record the report of Forensic Science Laboratory Exh.P.M. According to which the empty recovered from the spot tallied with the rifle recovered from the appellant.

7. In his statement, recorded under section 342, Cr. P. C. the appellant denied the charges and stated that Abid Hussain-complainant wanted the hand of his sister from his father, who refused and due to that annoyance he roped the appellant in a false case. He also stated that the deceased had relationship with a Gujar lady, whose relatives had turned inimical towards him. He added that it was an un-witnessed occurrence. The appellant did not lead any defence evidence.

8. At the outset, the learned counsel for the appellant has prayed for reduction of sentence on the ground that it was not a premeditated murder and the appellant had taken this step under grave and sudden provocation.

9. I have a benefit of hearing the arguments advanced by Mr. Ghazanfar Ali Khan, Advocate, appearing on behalf of the State, who conceded that it was not a premeditated murder.

10. I have heard the learned counsel for the parties and scanned the whole record of the case including the evidence and the impugned judgment. P.W.10 Najeeb Ullah was not related to the deceased and had no ill-will towards the appellant, so as to involve him in a false case. Despite lengthy cross-examination the evidence of this independent P.W. remained undented. Abid Hussain though related to the deceased has given a straightforward account and his statement rings true. The ocular account is fully corroborated by the promptly lodged F.I.R. as well as by the factum of recovery of rifle, as the recovered empty tallied with the said rifle. The medical evidence also supports the version of the prosecution. The appellant has rightly been convicted by the learned trial Court and the learned counsel for the appellant was justified in not pressing this appeal on merits.

11. I have given my serious and anxious thought to the quantum of sentence in the circumstances of the case. It has been noticed that the appellant was aged about 20/21 years at the time of occurrence while the deceased was aged about 23 years. Both worked as Baildars with Abdul Ghafoor, contractor and lived together at Bagh Faiz Jillani for the last 4/5 years. Even on the fateful day they were sitting together gossiping alongwith P.Ws. No previous enmity or ill-will existed between the deceased and the appellant. It was very unfortunate that in the company of friends Mukhtiar Ahmad-deceased came out with a remark that he has committed sodomy with the appellant and paid him Rs.15 for the object which amused the other friends but gravely provocated the appellant. He was disgraced in the company of friends and guests, therefore, he could not pocket this insult. The provocation was not only grave but also sudden, which blurred the reasoning of the appellant, who came out with a rifle lying in the room and fired at the deceased. The appellant was arrested on 25-10-1992. He remained in jail till 8-11-1995 and was sent back to jail to serve out the sentence on 6-11-1997. He has already spent about 8-1/2 years in jail. According to the affidavits placed on the record, Mithey Khan, father, Shabbir Ahmad, Zulfiqar and Wazir Ahmad, brothers of the deceased had granted Afw to the appellant and they had entered into a compromise with him. Statement of Mithey Khan, father of the deceased, in lieu of compromise was recorded by the learned trial Court. However, the matter could not be compounded as some of the legal heirs did not agree.

12. The upshot of the whole discussion is that I alter the appellant's conviction under section 302(b), P.P.C., to one under section 302(c), P.P.C. and reduce his sentence to the period already served out by him. The appellant would be released forthwith if not required in any other case. Considering the fact that the father of the deceased had entered into compromise with the appellant I reduce the amount of compensation from Rs.25,000 to Rs.10,000 to be deposited with the learned trial Court within a month. In case of default of payment of compensation the appellant would undergo simple imprisonment for three months.

13. With the above modification in the, conviction and sentence, this appeal is dismissed. H.B.T./H-148/L Order accordingly.