1995 P Cr (PLP)

Hafiz Ghulam Bari for the State. Date of hearing: 6th November, A

94. FALAK SHER, J.‑‑‑ Muhammad Sarwar (35) appellant having been tried alongwith his paternal‑cousins, father and Phoopizad Muhammad Zaman (21), Muhammad Sharif (40); (brother inter se) Sultan Ahmad (70) and Muhammad Bashir (34) respectively for the murder of Muhammad Ashraf (25) by the learned Additional Sessions Judge, Gujrat was convicted and sentenced under section 302, P.P.C. to death with a fine of Rs.50,000 or in default to serve 5 years' R.I. in the event of its realisation half to be paid to legal heirs of the deceased recording acquittal of the co‑accused vide the impugned judgment, dated 14‑7‑1991 has preferred Criminal Appeal No.879 of 1991 while confirmation of the awarded death sentence has been sought by the trial Court under Murder Reference No.384 of the same series and are disposed of together hereinbelow.

2. Fazal Hussain P.W.1 brother of the deceased on 27‑5‑1989 at 7‑45 a.m. got his statement Exh.PA. recorded with Muhammad Iqbal S.I./S.H.O. Police Station Kunjah at Dinga Chowk on the basis whereof formal F.I.R. Exh.P.B./1 was registered by Muhammad Sadiq Moharrir A.S.1. (given up) on the same day at 8‑25 a.m. 3‑1 /2 miles away from the venue of occurrence being the culvert of Rajbah 13R within the area of Village Nageryanwala. Alleging that the complainant alongwith the deceased, his maternal- nephew Arshad Ali P.W.2 and paternal‑grandson in the second degree (Phoopizad's son) Muhammad Bashir P.W.3 ail residents of Village Moosa on way to Gujrat at 6‑30 a.m. for earning their livelihood were ambushed by the appellant and Muhammad Zaman co‑accused both equipped with .12 bore guns, emerging from Keekar trees at the culvert of Rajbah 13‑R with the deceased being 100 yards ahead of them. Exhorting to bear the consequence of molesting Mst. Inayat Begum, Muhammad Zaman fired at the deceased which he escaped whereafter the second shot was fired at by the appellant landing on r right side of the deceased's face to which he succumbed on the spot while assailants under fire cover vanished away, Attracted by their hue and cry many persons gathered around. Revealing the motive it was stated that 5 days ago a skirmish had occasioned between the appellant's wife Inayat Begum and the deceased's brother Anwar which eventually precipitated into the occurrence having conspired with Muhammad Sharif and Sultan Ahmad acquitted co accused.

3. The complainant discontended with the investigation soliciting discharge of the three co‑accused preferred private complaint Exh.P.B. on 12 10‑1989 adding Muharnmad Bashir as the third assailant.

4. Muhammad Iqbal, S.I./S.H.O. C.W.1 proceeding to the spot, recorded supplementary statement of the complainant, secured into possession blood stained earth vide memo. C.W.1/A prepared the deceased's inquest report Exh.C.W.l/B, despatched the dead body order Allah Ditta F.C. P.W.6's escort to the mortuary who later on, tendered his last‑worn blood‑stained clothes Shalwar P.1, Shirt P.2, Phial P.3 containing pellets taken into possession vide memo. C.W.1/C, got prepared site plan Exh.C.W.l/D from Akhtar Naqqash, Draftsman P.W.7, on 6‑7‑1989 arrested the appellant alongwith Muhammad Bashir acquitted co‑accused being equipped with unlicensed .12 bore single barrel guns with one live cartridge each P.4, P.5; P.6 and P.7 respectively reduced into possession vide memo. Exhs.P.D., P.E. attested by Muhammad Yunus, A.S.I. P.W.9, Ghulam Abbas F.C. P.W.11 in addition to the Investigating Officer. Refuting recording of the complainants' statement after preliminary investigation affirmed reaching the venue at 8 a.m., discharging the acquitted co‑accused Sultan Ahmad, Muhammad Sharif, Muhammad Zaman upon finding them innocent, omission of the P.Ws. names in the site plan, that of the F.I.R. number in the inquest report, lack of any crime empty, led bullet or pellets recovered near by the dead body, and non‑association of Inayat Begum and Anwar with the investigation. 5.Dr. Tahir Rashid P.W.8, then Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat on the same day performed autopsy on the deceased's body at 3 p.m. brought by Allah Ditta F.C. P.W.6 identified by Sahibdad P.W.5, a covillager observing the following vide post‑mortem report Exh.P.W.8/A. (1) A fire‑arm lacerated wound of entry 5 c.m. x 1 c.m. x D.N.P. on the right side of the face involving area of upper lip. There was loss of part of lip on the right side of the upper lip. The right angle of mouth was disfigured. The margins of wound was inverted.

14. However, we find ourselves in agreement with the learned counsel's plea in the alternative viz., avenging of wife's insult being a mitigating factor capital punishment is not attracted.

15. Therefore, partly allowing the appeal, maintaining the appellant's conviction and fine the awarded death sentence is commuted to imprisonment for life with the benefit contemplated by section 382‑B, Cr.P.C.

16. The sentence of death is not confirmed. N.H.Q./M‑1931/L Sentence reduced.