P L D 1971 Lahore 410 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑Rustam (55) was tried and convicted by the learned Sessions Judge, Lyallpur, for the murder of Nur Mohd. committed on the 28th of November 1967, at digarwela in Killa No. 12 of square No. 18 of Chak No. 360‑G‑B, Police Station Lundianwala, District Lyallpur, and was awarded the sentence of death. He has appealed against his conviction and sentence, and the case has also been referred to us under section 374, Cr. P. C. for the confirmation of the sentence of death. This judgment will dispose of the appeal as well as the murder reference.

2. The simple background of the case is that Rustam appellant is the first cousin of Alam complainant, father of Noor Muhammad deceased. Mst. Nuran P. W. 8, sister of the deceased, was married to Mian Khan, younger brother of the appellant, who was murdered about 5/6 years prior to the occurrence. After his death, Mst. Nuran continued to live in the house of her deceased husband, along with her minor daughter. The appellant, who had already three wives, also wanted to marry her, but the proposal was not acceptable to Mst. Nuran. On her refusal he started pestering her, and consequently about 8/9 months prior to the occurrence she thought it advisable to shift to the house of her parents and started living with them. The appellant sought the good offices of Taja P. W. 9 and Sadiq P. W. 10 and one Sher for the purpose, and along with them, approached Alam complainant repeating the same request which was turned down, both Alam as well as his son Nur Muhammad being opposed to it. A couple of days prior to the occurrence, the appellant once again approached the deceased in the company of Taja P. W. 9 with the same object but the request was firmly declined by the complainant and the deceased, when hot words were also exchanged between he appellant and the deceased at which the appellant threatened to kill him.

3. On the 28th of November 1967, at about digarwela, when Alam complainant and Sakhi Muhammad P. W. 5, a visitor from a neighbouring village, were pr.‑sent in Killa No. 13 of square 18 smoking Huqqa, and Nur Muhammad deceased had gone on a casual round of his wheat crop in Killa No. 12, the appellant suddenly appeared from the West armed with a .12 bore gun Exb. P. 1 and challenged Nur Muhammad deceased. Coincidently, Tufail P. W. 6, son‑in‑law of Alam complainant, also happened to return from his land in square No. 8, armed with a dang. In their presence, the appellant fired at the deceased from a distance of about three karams. The witnesses ran towards him. The appellant allegedly gave a blow on the head of Alam complainant with the butt‑end of his gun, but in the meantime, Tufail P. W. 6 dealt him dang blows and all the three namely, Alam complainant, Sakhi Muhammad and Tufail succeeded in overpowering the appellant. His gun was snatched by Tufail which he later produced before the Sub‑Inspector. Rustam was given several blows and was produced before the Sub‑Inspector at the spot. An empty cartridge was also found at the spot. Alam complainant lodged report Exh. P. E. at 4 p. m. the same day at Police Station Lundianwala, after covering a distance of four miles on horseback.

4. Farzand Ali Sub‑Inspector P. W. 12 who recorded the F. I. R. prepared injury statement Exh. P. A. of Alam complainant and got him medically examined. He reached the spot at about sunset time, and found the dead body of Nur Muhammad deceased lying in Killa No. 12 of square No. 18, where wheat crop had been sown. He prepared injury statement Esh. P. H. and inquest report Exh. P. G. of the deceased and sent the dead body to the mortuary for post‑mortem examination under the escort of Muhammad Sharif Constable P. W.

2. He arrested the appellant who was produced before him by Tufail and Sakhi Muhammad P. Ws. He prepared his injury statement Exh. P. J. Tufail P. W. produced gun Exh. P. 1 which was taken into possession vide memo. Exh. P. B. Tufail P. W. also produced his stick P. 3 which was taken into possession vide memo. Exh. P. D. The Sub‑Inspector took into possession blood‑stained earth from the sport vide memo. Exh. P. A. A .12 bore empty cartridge Exh. P. 2 was also recovered from near the spot and was taken into possession vide memo. Exh. P. C. All these recovery memos were attested by Taja P. W. 9 and Tufail P. W.

6. There is, however, a confusion as to the place of the recovery of the empty cartridge which, according to the aforesaid memo. was in Killa No. 12 of square No. 20, but according to the statement of the Sub‑Inspector was in Killa No. 12 of square No.

18. The discrepancy was explained by him at the trial as being the result of inadvertance, the correct square number being

18. On 30th of November 1967, he handed over three sealed parcels to F. C. Muhammad Sharif who delivered the Fame intact to Muhammad Anwar Moharrir P. W.

3. On the following day, Muhammad Anwar again handed over the same parcels to Muhammad Sharif who delivered one of them in the Office of the Chemical Examiner and two in the Office of the Forensic Science Laboratory, Lahore. It may be observed in this context that vide Chemical Examiner's report Exh. P. R. the earth was found to be stained with blood which was determined to be of human origin vide Serologist's report Exh. P. Q. Although a report was submitted by the Fire‑arms Expert after the examination of gun Exh. P. 1 and of crime empty Exh. P. 2, yet it was not considered necessary by the prosecution to prove it. It appears that the Examiner was not available on the date fixed for the trial and an adjournment on that account was not considered expedient to bring on record a piece of evidence which was not deemed indispensible to bring home the offence.

5. The post‑mortem examination of the dead body of Nur Muhammad was conducted by Dr. Abdul Ghafur P. W. 1, who found it to be a well‑built body of a young man of 35/36 years, and vide his P. M. Report Exh. P. M. found the following injury on it :‑ A fire‑arm wound 3 " x 2" x chest cavity deep on front of right side of neck with three wounds of outlet on the back of right scapula middle ' x ' each apart with three correspond ing tears on the back of shirt. The blood vessels of right side of neck were ruptured, 4th and 5th cervical vertebrate, first rib to right side and right scapula bone were fractured. Apex of right lung was injured and right side of chest was full of blood. Two pellets were removed from under the skin on the back of right shoulder and wadding was also removed from the wound on the right side of the neck. Stomach was healthy and contained small amount of semi‑digested diet. Death was due to shock and haemorrhage as a result of the above injury which was sufficient to cause death in the ordinary course of nature. Death had taken place immediately and probable time between death and post‑mortem examination was within 24 hours.

6. On the same day, Dr. Abdul Ghafoor examined Rustam appellant who was produced in police custody and vide his medico legal report (Exh. P. N.) found the following injuries on his person :‑ (1) A contused wound 1 " x " x scalp deep on left side of head 4F above left ear. (2) A contused wound 1 x 1/8" x scalp on deep top of head. (3) A contused wound 1 x 1/8 x scalp deep on top of head, one inch behind injury No. 2. (4) A contused wound 1 " x x scalp deep on left side of head 2 " above left ear. (5) A contused wound " x 1/8" x skin deep on left side of head " anterior to injury No. 4. (6) A contused wound 1 x 1/8" x skin deep on the left side of back of head. (7) A contusion mark 6 x 1" on left side of back of chest ‑on medial side of scapula. (8) A contusion mark 2' x 1' on the back of left shoulder medial. (9) A contusion mark with abrasion 2 " x on upper part of back of right shoulder. (10) An abrasion 1 " x " on back of right shoulder middle. (11) A contusion mark 4 " x 2 on the back of right shoulder middle side. (12) A contusion mark 1' x 1" on right side of back of chest on medial side of lower and of scapula. (13) An abrasion 1 x 1" on back of dorsal spine middle. (14) An abrasion " x " on lumber spine. Injuries Nos. 1 and 4 were kept under observation and were later found to be simple on X‑Ray Examination. All the injuries were caused by a blunt weapon within 24 hours.

7. On the following day i. e. 30‑11‑1967 the same doctor examined Alam complainant and vide his report (Exh. P. O.) found a contused wound 1" x 1/8" x skin deep on middle line of head 3' above the root of the nose. This injury was simple ‑in nature and caused by a blunt weapon within 48 hours.

8. The blood‑stained clothes of the deceased Shirt (Exh. P. 4), Chaddar (Exh. P. 5) and Patka (Exh. P. 6) along with a phial containing two pellets and a wad were handed over by the doctor to Mohammad Sharif constable who produced the same before the Sub‑Inspector and were taken into possession vide memo. Exh. P. F.

9. After the completion of the investigation, the appellant was sent up by the police for an offence under section 302, P. P. C. Before the committing Magistrate his case was one of denial simpliciter. At the trial, however, he stated that after the murder of her husband Mian Khan, Mst. Nuran never lived in his (Mien Khan's) house. He denied that he was anxious to marry her. He also denied the recovery or ownership of the gun (Exh. P. 1) and attributed his false implication to a quarrel with the complainant and the deceased over certain trees growing on the common boundary line. He explained the injuries on his .person in the following words:‑ "I took the turn of water at 10 a. m. My turn of water was for three hours. I started irrigating Killa No.

19. Thereafter I went for the round. When I reached in my half of Killa No. 12, I saw five persons namely Nur Mohammad deceased, Alam P. W., Manzoor, Phana and their servant, whose name I .do not know. I had a Kassi with me. I told Alam P. W. as to why he had cut the trees, which were on the water .course and were joint property. A quarrel took place between me and Alam P. W. All the above‑mentioned five persons were armed with sticks. They came towards me and started giving stick blows. They beat me mercilessly. I became unconscious. I regained my consciousness at the police station on the following day."

10. In an elaborate and well‑considered judgment, the learned Sessions Judge after having discussed all the relevant points came to the conclusion that the offence stood proved against the appellant and accordingly convicted him with an award of sentence of death.

11. In view of the undeniable apprehension of the appellant at the spot and injuries sustained by him; the learned counsel obviously found himself in a difficult position. The following contentions were, however, raised:‑ (1) That the motive did not stand established, (2) that there was not a single disinterested witness in the' case and that Sakhi and Tufail were chance witnesses, and ever otherwise their statements being materially discrepant were not. worthy of credit; (3) that there was a conflict between the medical evidence and the ocular evidence; and (4) that the occurrence had not taken place in the manner alleged, and in all probability was the result of a dispute over the trees.

12. In support of the first contention on the point of motive, learned counsel contended firstly, that it would be difficult to believe that a 55 years old man, as the appellant was, should have been so keen to marry a fourth wife, one of his wives, being a young girl of 20 years of age; secondly that the two witnesses namely Taja and Sadiq were related inter se and were inimical to the appellant and as such could not be believed; and thirdly that their statements were discrepant. No doubt, Taja P. W. admitted in cross‑examination that Sikandar, brother of Rustam appellant, had been challaned for the theft of the bullocks of Taja's brother. He admitted that Yaqub was his sister's son, but he could not say that he (Yaqub) had appeared as a prosecu tion witness against the appellant in a case under the Arms Ordinance. Sanatta, a brother of Sadiq P. W., was married to, the aunt of Taja, as admitted by Sadiq. Again, according to Sadiq, Alarn complainant, had been approached by them for the hand of his daughter Mst. Nuran in his fields, and not at his house, whereas according to the statement of Taja before the committing Magistrate they had approached him for the second time at his house Having considered these arguments we are of the view that even if the testimony of Taja and Sadiq is. excluded we see no reason to disbelieve Mst. Nuran herself. It was never suggested to her in cross‑examination that since after the death of her husband Mian Khan she had been living with her parents. No doubt it is in evidence that the appellant bad married Mst. Fatima, a twenty years old girl, as a result. of the compromise of the murder case of his brother Mian Khan, she being a cousin (Mamunzad) of Dosa accused in that case, yet this would not exclude the possibility of the appellant's keenness to marry the widow of his deceased brother either for notions of family honour or for grabbing the landed property of his deceased brother or even on account of lustfulness. In her allegations of being pestered by the appellant for being forced to enter into a marriage she has been fully supported by her father Alam P. W.

4. In fact, this motive was specifically mentioned by the latter in the police report Exh. P. E. The promptitude with which the report was lodged would, in our view, exclude the possibility of the fabrication of a false motive as a result of mutual conference and consultation. We, therefore, uphold the finding of the learned trial Judge on this point that the motive stands fully established.

13. Coming now to the next contention it may be observed at the outset that Alam and Tufail P. Ws. could not be characterised as interested witnesses merely on account of their relationship with the deceased but even if we proceed on the assumption that they were interested as well as chance witnesses, they cannot be discredited on this account for the reason that chances do take place in life though rarely and interested witnesses may also be truthful. The truth or falsehood of their testimony has, therefore, to be judged in the context of the concomitant circumstances. We find that it is a case of broad‑daylight occurrence where there can be no question of any mistaken identify. Again, it is not only a case of a single accused but of one who was caught at the spot alongwith the weapon of offence. Lastly, there appears to be no previous bad blood between the appellant and the complainant who are closely related, inter se being first cousins, which relationship was further cemented by the marriage of the complainant's daughter to the younger brother of the appellant. In this background, we find it difficult to believe that the appellant who also bore several injuries had been substituted in place of the real culprit. While dealing with the testimony of interested or chance witnesses the Courts have, as a matter of abundant caution, insisted on independent corroborative evidence which, in our view, is amply available in the form of apprehension of the appellant at the spot, the existence of injuries on his person and the recovery of the weapon of offence. The contention is, therefore, overruled.

14. Coming to the contention regarding the so‑called conflict between medical evidence and the ocular evidence it may be straightaway observed that it is not of a nature which might be considered irreconcilable or incapable of being explained away. No doubt, a single gaping wound of entry coupled with the dispersal of the pellets inside the body, the recovery of the wad from the neck of the deceased would indicate that the gun had been fired from a closer distance than that of three karams as the prosecution would have us believe, but this distance was only approximately given by the witnesses and could possibly be less than that. We have also seen the gun Exh. P. 1 whose barrel is not less than three feet. In the circumstances, therefore, nothing would really turn upon this so‑called discrepancy particularly when considered in the light of the other circumstances referred to above. The second point raised in this context was the presence of semi‑digested food in the stomach of the deceased, who, according to the complainant had taken his meal in the morning. It is not the prosecution's case that the complainant and the deceased had remained all along together on the relevant date and as such the possibility of the latter having taken his meal without the knowledge of the complainant cannot be excluded. Accordingly, we do not consider this point to be incapable of an explanation so as to be adversely construed as being damaging to the prosecution.

15. This brings us to the last contention. Learned counsel contended that it did not stand to reason that the deceased after having been challenged by the appellant, who appears to be a man of desperate character having already absconded in a case of murder should not have tried to run away to save himself and likewise that after having killed the deceased the appellant should not have tried to make good his escape. It was further contended that although according to the F. I. R. both Sakhi Muhammad and Alam were present at their dhari from where they ran to the spot they later shifted their position at the trial and claimed instead to be present in Killa No. 13 to bring themselves closer to the scene of occurrence. It was also argued that according to the statement of Muhammad Sharif Patwari P. W.

11. Tufail P. W. 6 who played an important role in the occurrence had no cultivation in square No. 8 from where he was stated to be returning at the relevant time and as such he was completely belied in his assertion. Lastly, it was argued that the defence plea of the fight having taken place over trees had been put to the prosecution witnesses at the earliest opportunity and the cutting of trees from near the place of occurrence was also admitted by Mohd. Sharif Patwari which lent considerable support to the defence version. We have carefully considered this aspect of the matter. As regards the argument that the deceased should have tried to run away it may be observed that perhaps in view of his relationship with the appellant who was like a father to him he could not have apprehended or anticipated that he would actually go to the extent of killing him and as such did not run away, or alternatively he might have been a man of strong nerves and extraordinary pluck and did not choose to show a clean pair of heels. No doubt there is some discrepancy in the statements of the witnesses as to whether the appellant actually ran away from the spot and was apprehended at some distance or whether he did not or could not move. According to Sakhi Muhammad P. W. he ran for a distance of one Kanal before he was appre hended. According to Alam complainant, they started running as soon as the appellant, challenged the deceased and reached immediately after the deceased was fired at by the appellant who also gave a blow to the complainant with the butt‑end of the gun. This seems to us in all probability to be the correct position but nothing would really turn upon such a discrepancy in the circumstances of this nature, which cannot discredit the entire version of the prosecution. As regards the contention that Tufail P. W. was belied by the Patwari in his assertion that he had his cultivation in square No. 8 we fully agree with the explana tion which found favour with the learned trial Judge. Tufail's father had a joint khata with his uncle, and the mere fact that no entry existed in the Crop Inspection Register in the name of Tufail P. W. or his father would not per se be deemed to be good enough to give a lie to the assertion that he had cultivation in square No. 8 and was returning from there at the relevant time. In fact, the promptitude with which the F. I. R. was lodged at the Police Station giving an elaborate account of the occurrence in which the part played by Tufail P. W. was specifically highlighted, would in our opinion be good enough to repel the contention raised in this behalf. Lastly, we come to the defence plea which no doubt was suggested to the prosecution witnesses during cross‑examination but its patent absurdity rendered it completely devoid of any merit. If the trees growing on the common boundary line belonged to or were claimed by the appellant and bad been cut by the com plainant party, the motive lay more with the appellant to take initiative in this regard to get the damage made good or the wrong redressed. On the contrary, according to the explanation given by the appellant, the complainant party lay in ambush for him as it were waiting for an opportunity to assault him. It would be pertinent in this context to refer to the provisions contained in section 103 of the Evidence Act which would also shift the onus ,on the appellant to some extent to explain his position. No doubt in view of the verdict of their Lordships of the Federal Court in Safdar Ali's case (PLD 1953 FC 93.) the onus will not lie so heavily on the appellant as it would invariably do on the prosecution which should prove the case beyond reasonable doubt, nevertheless the appellant has to offer some reasonable explanation with a semblance of reasonableness which in the instant case to say the least is simply absurd. We should not be misunderstood to be saying that the appellant had to prove his plea of defence, yet some kind of plausible explanation should have been forthcoming to explain the circumstances in which he was not only caught at the spot along with the weapon of offence but had also sustained injuries before he could be apprehended.

16. Having considered all the pros and cons of the matter, we are clearly of the view that the offence was fully brought home to the appellant who was rightly convicted. Consequently, the appeal fails in so far as the conviction is concerned.

17. Our opinion is however, divided' as to the award of sentence and we have not been able to agree on the confirmation of the sentence of death to which speaking for myself I do not see any objection in the absence of any mitigating circumstance. On the contrary, my learned brother Muhammad Afzal Zullah, J. 'has been able to clearly spell out such circumstances which according to his Lordship call for the commutation of the death sentence to that of transportation for life. Having this agreed to differ we have decided to record separate notes on the question of punishment to enable the third Judge to whom the matter has to be referred, to appreciate the reasoning and decide the issue by agreeing with one view or the other.

18. There is no statutory provision governing the situation and the law has left the question of the nature or quantum of punishment in the event of conviction to the discretion of the Court. The position is not, however, devoid of precedents and judicial pronouncements are amply available for the guidance of the Courts.

19. Normally, we find that in cases of conviction under section 302 of the Pakistan Penal Code, tender age, commission of murder in vindication of the sense of honour or under the influence of seniors and superiors have been considered to be mitigating circumstances justifying the award of the lesser penalty of transporation for life. Likewise in cases where the fatal blow has not been directly attributed to a convict who might have been found guilty on the principle of vicarious liability having played a comparatively lesser role the Courts have invariably chosen to award the sentence of transportation for life. On the contrary in cases of pre‑planned and cold‑blooded murders, capital punish ment has been considered to be the normal sentence.

20. In the instant case, we have fully believed the evidence of motive, that the appellant was keen to marry the widow of his deceased brother and that he considered Nur Mohammad deceased as the principal hindrance in his way to remove which he fired the fatal shot at him from a close range and later also dealt a blow with the butt‑end of the gun on the head of the complainant. To my mind, it was a case of a pre‑planned and intentional murder which merits the award of capital punishment. Obviously, the appellant cannot claim credit for having leniently dealt with the father of the deceased to whom he gave a blow with the butt‑end rather than firing at him which, in all probability he had opportunity to do, as it was a clutch action single -barrelled gun and had to be reloaded for which he had neither the time nor perhaps the means to do as no other live cartridge was recovered from his possession.

21. Three factors seem to have influenced the mind of my learned brother in taking a lenient view in the matter of punish ment. Firstly, it was conceded by Alain complainant in cross- examination that the appellant was an absconder in two cases of murder and as such usually kept a gun with him and, therefore, could not be presumed to have particularly armed himself for the purpose of killing the deceased. Secondly, that Killa No. 12/2 of Square No. 18 belonged to his father Kalu and as such having a right to go there the occurrence might have taken place during one of his normal visits. Thirdly that it was admitted by Alam complainant that he had disposed of some trees from near the place of occurrence, which could possibly lend support to the plea of defence.

22. It will be seen that the above consideration run counter to the finding unanimously given by us and which have formed the basis of conviction, and therefore, any conclusion drawn from these would actually amount to going back on the findings given by us and consequently by means of this implied challenge we would be not only blowing hot and cold in the same breath but would also be demolishing the very basis of conviction which we have agreed to uphold. But even otherwise the three points can be reasonably explained away. In the first instance, assuming that the appellant was an absconder in two murder cases, as conceded by the complainant in cross‑examination and as such usually carried a gun that would also indicate that he was a man of a hazardous nature and having already been accused of two murders would not in desparation hesitate to commit a third. Having believed the evidence of motive and the eye‑witnesses' account given by Alain and Tufail P. Ws. this position appears to me to be more in consonance with the natural probabilities of the situation. Coming to the next point that Killa No. 12/2 belonged to the father of the appellant and it might have been one of his normal visits to his land, it may be observed that according to Mohammad Sharif Patwari (P. W. 11) this piece of land was neither under the appellant's own cultivation nor under that of his father but was cultivated by Nosher son of Sakhi as a tenant and that too not directly under Kalu but under his son Sikandar. This in my view would be sufficient to negative the assumption of a normal and innocent visit of the appellant to the spot. In the circumstances, therefore, there seems to be no truth in the appellant's claim to have gone there to water his fields as he would have us believe. Coming to the last point I have already dealt with the absurdity of the defence plea. The land stood in the name of Kalu, the father of the appellant though it was cultivated by the tenants under his uncle Sikandar son of Kalu. In the first instance, therefore, it is difficult to believe that the appellant could legitimately claim the ownership or possession of the trees growing on the common boundary line and could have single‑handed gone to the extent of picking a quarrel on this account. Again, Alam complainant admitted in cross‑examination that he had sold some shisham trees growing on the bank of the water‑course of one Jalal teli who had cut them 3/4 days prior to the occurrence. The Patwari also stated that he had seen that trees had been cut near the spot. Assuming that the appellant laid a claim to these trees it was he who should have felt aggrieved and taken the initiative to seek redress of his grievance, and as such it would be simply absurd to conceive that the complainant party should have gone to the spot fully armed waiting for an opportunity to assault the appellant, on the pretext of his objection to the sale or disposal of the trees growing on the common boundary line. I am, therefore, clearly of the view that by holding that something had transpired between the deceased and the appellant before the latter pulled the trigger would be importing something which is not on the record and would only amount to a sojourn in the realm of conjecture.

23. For the foregoing reasons I am clearly of the view that the appellant was rightly awarded on conviction the penalty of death which should be upheld. MUHAMMAD AFZAL ZULLAH, J.

‑After hearing the argu ments in this case we agreed to maintain the conviction but differed on the question of sentence. My learned brother Muhammad Afzal Cheema, J., has recorded the reasons for maintaining the conviction and has also expressed his view on the question of sentence. I agree with the conclusions arrived at by my learned brother on all the material points. They are: that the appellant had a motive to attack the deceased: that he did intentionally fire at the deceased; that the eye‑witnesses Alam, Sakhi and Tufail did see the occurrence and they apprehended the appellant at the spot and that he was injured by Tufail P. W. after he fired at the deceased; and that he had no right of private defence. The reasons recorded by my Lord are a material of detail and I do not think it necessary to comment on them in this note, except to the extent and in the manner that it has become essential in connection with the question of sentence. After going through the evidence more than once and after considering all the circumstances of the case, I most regretfully, say that it is not possible for me to agree with my Lord on the question of sentence. With profound respect I differ with his Lordship's reasoning on that question. Though his Lordship has assumed certain factors which, according to him, seem to have influenced my mind yet consider it necessary to state all the circumstances which, in fact, have weighed with me.

2. There is no doubt that the appellant wanted to marry Mst. Nuran. But, to say that this was the only motive or that the deceased was the only target in this behalf is not correct. It is in the statement of Muhammad Sharif Patwari (P. W. 11) that southern half of Killa No. 12 of Square No. 18, is owned by Kalu father of the appellant. The northern half belonged to Mst. Jannat Bibi and Mst. Sai Bibi but according to Alam P. W. it was in his possession. Mst. Jannat Bibi is the widow of Shahabal, a brother of aforesaid Kalu and Mst. Sai Bibi is the widow of the son of Shahabal. The Patwari also stated that there were "signs that the trees had been cut" near the spot. According to the appellant, Alam P. W. had cut the trees which were on the water course. This water course passed on the eastern side of Killa No.

12. His case is that the trees were joint property of the co‑sharers; and it was on account of the fact that Alam had cut the trees that he (the appellant) complained to Alam in this behalf which led to the present occurrence. Alam P. W. admitted that he sold some shisham trees which were on the bank of the water course and that they were cut about two or four days before the .occurrence. But he denied that there was any dispute about those trees and that the. appellant had made a complaint in this behalf. It cannot be ignored that before the partition of Killa No. 12 into two halves, one going to the father of the appellant and the other going to the successors of his uncle, the trees growing on the water course, which passed along the entire eastern side of this Killa, were joint property. After the partition of the Killa in dispute, it may be different matter that Alam, on behalf of Mst. Jannat Bibi and Mst. Sai Bibi, may have refused to admit the claim of Kalu or his sons on one half of those trees; but to say that the latter would not, at all, have objected to the appropriation of those trees exclusively by Alam P. W., cannot be believed. It is particularly, so, when looked at from the background of estranged relations between the parties, on account of the refusal of Alam P. W. to give his daughter in marriage to the appellant. Therefore, in my view, there was another motive with the appellant, namely, that he felt aggrieved against the conduct of Alam P. W. and, may be, his son also, in connection with the cutting of the trees on the water course, which were claimed to be the joint property. With regard to the other motive, i.e., relating to the hand of Mst. Nuran, it is proved beyond reasonable doubt that the appellant had a grievance against Alam and his son. But it will not be safe to hold that he had any special grievance against the son. Alam and Taja P. Ws. stated that the appellant and the deceased had altercation on this issue and that the former had given a threat to the latter, Mst. Nuran P. W. who does not claim to be the direct witness of any such accounts, stated that her brother did not agree to the proposal of marriage; but there is a conspicuous absence of any threat having been given by the appellant to the deceased. From the statement of Alam on the other hand, it is clear that neither he nor the deceased wanted to agree to the proposal of the appellant. Sadiq (P. W. 10) has further clarified the matter. He categorically stated that both Alam P. W. and the deceased did not agree to the proposal. He has made absolutely no mention of any altercation between the deceased and the appellant or any threat by the appellant. The above analysis of the relevant evidence on the question of the motive alleged by the prosecution shows that it has not been proved beyond reasonable doubt that the appellant had any particular motive against the deceased or that he had given any threat to him in any previous altercation. This part of the prosecution case appears to be an embroidery and embellishment and the truth appears to be that both Alam and the deceased having refused to give the hand of Mst. Nuran in marriage to the appellant, the latter had equal grievance against both of them.

3. The place of occurrence is in the northern half of Killa No.

12. To my mind it is not, at all, improbable that the appellant, may have gone to, and be present before the occurrence in, the southern half of Killa No. 12; which belong to his father and is in cultivating possession of his brother Sikandar. If Noor Muhammad deceased could be present in the land under the possession of his father; and if Tufail P. W. could be held to have gone to Square No. 8 (which was not shown to be in cultivating possession of his father) because Tufail's father had a joint Khata with his uncle, there seems to be no reason to disbelieve the appellant on this point; that immediately before the occurrence he had gone to have a round of the land (Kills No. 12) which belonged to his father. Otherwise too it is not an uncommon practice in the villages that land belonging to and shown to be in possession of the parents is, in fact, looked after by the sons. Even where the land is with tenants, the owners residing in the same village do go to their lands to see the crops and sometimes, also, for doing some work on it. In my view therefore, the visit of the appellant to Killa No. 12 cannot, in absence of any other direct evidence to show that it was linked with his intention to murder the deceased, be considered to be unusual or unnatural. The fact that he was carrying a loaded gun does not go against the appellant in this context because it has been explained by Alam P. W. that he used to keep the gun all the time, because he was an absconder in some earlier case/cases. Only one empty cartridge was recovered from the spot. It is in the statement of the Investigating Officer that no other cartridge was produced before him. None of the eye‑witnesses have stated that the appellant who was apprehended at the spot had other cartridges with him. This would show that the appellant was carrying the gun, with one cartridge, in a normal (for him) manner and that he had not come to the spot with any particular preparation for attacking the complainant party; which, admittedly, soon before the occurrence, comprised of Alam and his two sons in Square No. 18 and Tufail his son‑in‑law near Square No.

18. I am sorry to say that I am unable to share the view, in this connection expressed by my learned brother that "this would also indicate that he was a man of a hazardous nature and having already committed two murders would not hesitate to commit a third". The circumstances of the other two cases are not, at all, before us nor there is any reliable evidence that he has been convicted in those two cases; or that there are, in fact, two murder cases registered against him. In the absence of any basis therefore, it will be extremely dangerous to express any opinion, either with regard to the fact that the appellant had committed murders before this occurrence ; or that, for that reason, he was a man of hazardous nature; or in any case, to give a finding that he was a type (for the above reasons) who would not "hesitate to commit a third" murder. On the other hand, I agree with the following observation in paragraph 22 of the judgment proposed to be delivered by my learned brother:‑ " . . . . . it is difficult to believe that the appellant . could have single‑handed gone to the extent of picking a quarrel on this account." The point in reference was the dispute on the question of trees with regard to which I have already made my comment; that there is a reasonable possibility of the appellant having made a bona fide claim qua the ownership of, and complaint about, the trees on a common water course. In the light of the above discussion, I have reached the following conclusions:‑ That the appellant was carrying a loaded gun, without having any other cartridge with him; that he was on a normal visit to his (father's) land, when the occurrence took place; that the appellant had double‑motive against both Alam P. W. and Noor Muhammad deceased, one relating to the cutting of trees and the other relating to the hand of Mst. Nuran; that he had no particular or special motive against the deceased alone; and that some trees from the common watercourse near the place of occurrence and in Killa No. 12 were cut/sold by Alam P: W. about which the appellant could make a genuine complaint to Alam or his son, the deceased. 4: Looked at in the light of the background analysed above; it needs ‑to be seen as to what happened immediately before the shot was fired by the appellant at the deceased. According to the prosecution (Sakhi P. W. 5 in cross‑examination), the' appellant challenged the deceased from a distance of two Kanals. The deceased did not run on hearing the challenge. On reaching at about three karams from the deceased, the appellant fired the fatal ‑shot. According to Alam P. W., he and Sakhi Muhammad P. W. were in his dhari in Killa No. 14 and had gone to Killa No. 13 when the appellant challenged the deceased: He stated in the F. I. R., with which he was confronted, that at the time of the challenge both these witnesses were at his dhari: Admittedly, the dhari is at a distance of one Acre (diagonally) from the place of occurrence. According to Tufail P. W., the appellant challenged the deceased from a distance of only 24/25 karams and at that time Alam and Sakhi P. Ws. were at a distance of about 27 karams from the place of occurrence. According to Alam P. W., the challenge was given from about 16 karams. He further stated that after the challenge by the appellant, he and Sakhi ran towards the spot and that he reached first in time. The three different distances given by the P. Ws. from which the appellant is said to have given a challenge, are 16 karams, 35 karams and two kanals, and the distance from which Alam and Sakhi P. Ws. ran towards the spot after the hearing of the challenge can be, from the two statements made by Alam P. Ws., a little more or less than one Acre. In these circumstances, it becomes difficult to believe that Alam and Sakhi P. Ws. would have reached the spot at or about the time that the deceased was fired at, so as to be able to apprehend the appellant. Not only this, what is stated by the P. Ws. to have: happened ‑after the occurrence further supports the above supposition. According to Sakhi, P. W., the appellant had runabout a kanal after the occurrence when he was caught by the P. Ws. and that Alam was first to catch him: According to Alam P. W., "they captured the accused at the spot and snatched his gun". Tufail P. W. also stated that the appellant "did not run after firing the shot at the deceased" and that they, "captured the accused at the place where the deceased fell". It is also important in this behalf to note the following statement made by the Patwari:‑ "No place is shown in the site plan, where accused was injured. In my notes, I did not show any place in the site plans from where the accused fired at the deceased. If the witnesses had shown any such place, I would have mentioned it‑in the site plans. I have not shown any place in the site plans from where the empty cartridge was picked up. I visited‑ the ‑spot on 28th November 1967." This all shown that the place from where the appellant gave a challenge, the place from where he fired and the place where he was injured/captured was not only not shown to the Patwari, son after the occurrence, but also that, the statements of all the three eyewitnesses are highly improbable on these points. From this it can legitimately be concluded that the origin and the manner of attack by the appellant on the deceased, as stated by the eye‑witnesses, may not be according to what may have actually happened. The above supposition in strengthened by a very important circumstances. According to the doctor, only one wound (entry on right side of neck) 3 x 3, going into the chest cavity, was caused by the shot. There are three exit wounds on the back of right scapula ' x each and ' apart. "Waddings were removed from the wound on the right side of neck". The fourth and fifth cervical vertebrae, first rib to the right side and right scapula bone were fractured and apex of the right lung was injured. Two pellets were removed from under the skin on the back of the right shoulder. The above observations by the doctor, particularly the facts that the pallets entered the body as one mass and that waddings were found in the wound, would show that the deceased was fired at from very close range; and further that the direction of the wound is from up downwards. I agree that the distance of three karams from which the shot was fired, given by the eye‑witnesses, is only their estimate and there can be honest mistake about it and that, for that reason, the account given by them cannot be discarded. Nevertheless the fact remains that the shot was fired from a very close range. It is an admitted fact that the appellant received injuries in this occurrence. According to the Investigating Officer, the place where the appellant was lying injured is not shown in the site plan nor any blood‑stained earth was taken from that place. At least, two of the eye‑witnesses have stated that the appellant was injured and captured at the place where the deceased was fired at. The direction of the injury on the deceased shows that the assailant was at a higher level ; probably on the banna of the water course near which the deceased fall. All the above circumstances show; that the appellant did no throw a challenge to the deceased from some distance; that the deceased was close to the appellant when he was fired at; and that the eye‑witnesses were very close to the place of occurrence and were thus able to injure and capture the appellant there and then. As a necessary consequence of the above conclusions, it will further have to be held that the origin and immediate cause for the appellant to attack the deceased has not been disclosed and, at any rate, has not been correctly stated by the eye‑witnesses. A possibility which is reasonable cannot be excluded that the appellant, who had a motive against Alam P. W. and Noor Muhammad deceased on the question of Mst. Nuran and also had the grievance about the cutting of the trees, which he believed to be common property complained to one or both of them at a spot near the place were the trees were cut. This led to some altercation as a result of which the appellant decided there then and to shoot at the deceased and thus caused his death; and because Alam and other P. Ws. were also standing at the spot and further because the appellant had no other cartridge with him, they pounced at him and were able to injure and apprehend him at the spot. About the antecedent quarrel or altercation between the two sides, it is not possible to visualise any details because the eye‑witnesses have adopted an absolutely different position which, as stated above, does not appear to be correct and is negatived by circumstantial evidence. Why the witnesses have done so is not difficult to imagine. The tendency in such a case, even if the witnesses are related to both the parties, is to conceal the part played by the complainant party, even if it is insignificant or very minor, such a tendency cannot be entirely unnatural and, in some cases, its inducement by police cannot be excluded. In reaching the above conclusions I have kept in view that the benefit of any and all reasonable doubts has to be given to an accused person, particularly when on the same point, which is of importance in the context, the witnesses have made discrepant statements. The question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of the guilt of an accused person but also while considering the question of sentence, particularly in a murder case ; because there is a wide difference between the two alternate sentences under section 302, P. P. C. I, therefore, giving the benefit of reasonable doubt in respect of the origin and immediate cause of the occurrence; and also because of there being a reasonable possibility of an altercation or quarrel between the two sides, in which the part played by either party is shrouded in obscurity, consider it a fit case where lesser penalty of transportation for life should be imposed.

5. It may be stated that the number of the mitigating circumstances enumerated by my learned brother in paragraph 19 of the judgment is not exhaustive. There are many other situations where lesser sentence of transportation for life, is the more appropriate sentence. It is not necessary to discuss all those situations, in this case. However, one of them which is relevant here, needs to be mentioned. Where an offender is not found to be entitled to the exercise of right of private defence and the origin of the fight or attack, is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishment under section 302, P. P. C. This aspect of the question of sentence was considered in Sher Singh v. Emperor (A I R 1931 Lah 538), and it was observed as follows:‑ "It must be recognized however that the origin of what took place in the lane before Sundar Singh was assaulted is in obscurity and while I cannot accept the argument of the defence that this obscurity and the theory of a possible sudden fight can reduce the offence of Jiwan Singh and Sher Singh from murder to that of culpable homicide or to an offence under section 325, I. P. C. I must say that the circumstances are such that I do not think the extreme penalty of the law is deserved by the offenders in this case." Muhammad Iqbal v. The State (P L D 1957 Lah, 31) and Ghulam Hussain and another v. The State (P L D 1966 Pesh. 255), are also relevant on this point. The same principle, was followed in The State v. Muhammad Hussain and others (P L D 1967 Lah, 425), where it, was observed that the sentence of death was not called. for where, the Court was not legally certain as to what exactly preceded, the incident. The judgment of the High Court in‑ this case was challenged‑before the Supreme Court. The decision‑ of the Supreme Court is reported as Muhammad‑Hussain v. The State (1968 S C M R 428). At page 431 of the report their Lordships, of the: Supreme Court noted the observation of the High Court in respect of sentence, in the following words;‑ "The learned Judges considered that, of the assailants, only Muhammad Hussain had used a knife and as the stab wounds he caused were responsible for‑ the death of Abdul Aziz they held Muhammad Hussain to be guilty under section 302, P. P. C. Not being satisfied as to the circumstances which led to the fight, they preferred to impose upon him the lesser sentence of transportation for life. After noticing this approach of the High Court in matter of sentence, no adverse comment was made so as to show any disapproval by the Supreme Court in this behalf. In support of the above view, there are some reported cases from Indian jurisdiction but I do not think it necessary to cite them or to discuss them.

6. In view of what has been said above it has become necessary to consider the question whether in view of the conclusions reached by me in matter of sentence, the appellant is entitled to any benefit under any of the exceptions to section 300; P. P. C. Exception II is the only Exception which has been pressed into service and pleaded on behalf of the appellant by the learned counsel, at this (appellate) stage. I considered the evidence with sufficient care so. as to find whether there was any possibility of such a plea being available to the appellant but I have found none. It has already been held, and with sufficient support of evidence, that on the prosecution side there are four persons who are connected with the occurrence; namely, Noor Muhammad deceased and Alam, Sakhi and Tufail P. Ws. The analysis of the motive involved in this case does not show that these persons or any of them had such a grievance that they would arm themselves with sotis and be present in Killa No. 12 to‑ attack the appellant. Moreover, there is no reason to suppose that the complainant‑party knew that the appellant would come with a complaint, to the place of occurrence which admittedly is in the northern portion of Killa No.

12. In any case the fact that only Tufail P. W. had a stick and all other were empty handed shows that they had no intention/preparation to attack the‑appellant. The appellant suffered 14 injuries in all. Six of them are an the head and two are on the chest. Two injuries on the head were kept under observation and X‑ray was advised. Though all the injuries were ultimately found to be simple yet the fact remains that they were caused on the vital parts of the body of the appellant and are fairly substantial. After receiving the injuries as are found on his person, it was not possible for the appellant to have used the gun effectively. Therefore, this is another important circumstance to show that before receiving these injuries he used his gun. Thereafter, because he had no other cartridge with him and also because the eye‑witnesses were more in number, the latter were able to overpower the appellant. In doing so they caused him injuries some of which might have been in anger and retaliation. It is also to be noticed that the deceased was unarmed and the only person from the complainant party, who had a stick with him, was Tufail. The appellant could not have any apprehension of physical harm from the deceased. Therefore, he had no right of private defence against him. As to why the appellant selected the deceased as his target can be easily explained on a reasonable hypothesis, that a verbal quarrel between two sides may have. preceded the fatal shot. In this quarrel a further possibility cannot be excluded that the deceased might have used some harsh language whereupon the appellant shot at and killed him. The F. I. R. was lodged within a short time after the occurrence. All the essentials of the prosecution case including the name of Sakhi as an eye‑witness are mentioned therein. Had the complainant party been the aggressors, it was not possible for them to have obtained the consent of this P. W. for supporting the prosecution case. Lastly it is to be noticed that the appellant did not make a report to the police against the complainant party in respect of the alleged attack on him nor did he file any complaint against them. Moreover, the plea of self‑defence which has now been raised at this (appellate) stage was not raised by the appellant at the commitment stage and the suggestion at the trial in that behalf was also half‑hearted. It is possible for the Court to give the benefit of plea of self‑defence, even if not raised at the trial stage; but for that purpose there must be very strong reasons which should be supported by evidence. This is not a case of that type. Therefore, considering all the circumstances of the case, I have come to the conclusion that the plea of self‑defence is not available to the appellant and his case does not fall under Exception II of section 300, P. P. C.

7. My finding about reasonable possibility of there being a verbal quarrel between two sides cannot help the appellant in respect of the offence committed. The question of quarrel between two parties in a case like this is a matter of statutory provision contained in Exception IV to section 300, P. P. C. A quarrel, which results in heightening of passions, and develops into sudden fight, can be of advantage to an offender and that too only if he does not act in a cruel or unusual manner and does not take undue advantage. In this case except for the quarrel all other conditions laid down in this exception are missing, there fore, it is not applicable.

8. I have also considered the question whether the above mentioned possibility can give the benefit of Exception 1 to section 300, P. P. C. to the appellant ; but there is neither any suggestion nor any evidence to held that the appellant, due to grave and sudden provocation, was deprived of his power of self‑control. If in a sudden quarrel one side uses more harsh language as compared to the other or does so in over tones, it hardly furnishes a basis for finding of grave and sudden provocation.

9. In view of the above discussion, I hold that the appellant has been rightly held guilty and convicted under section 302, P. P. C. This discussion would also show that there is no contradiction in the reasons given by me for reducing the sentence and in the conclusions reached by me and my learned brother in respect of maintaining the conviction. I may with respect add that it is not difficult to visualise a case falling under section 302, P. P. C. which is not covered by any of the exceptions to section 300, P. P. C., and yet the Court may find in it an element relatable to one or more of these exceptions, but in a lessor degree than required by law. While imposing the sentence in such a case, the element would require serious consideration for the purpose of awarding sentence. The cases referred to in paragraph 5 above support this view.

10. With these remarks, I accept this appeal partly and for the reasons recorded above, while maintaining the conviction under section 302, P. P. C. reduce the sentence to transportation for life. The sentence of death awarded to the appellant is not confirmed. BASHIRUDDIN AHMAD, J.‑‑Rustam is alleged to have murdered Noor Muhammad. He was tried by the learned Sessions Judge, Lyallpur, and was sentenced to death. The convicted person appealed and his case for confirmation of death sentence was referred to this Court under section 374, Cr. P. Code. The learned Judges of this Court comprising the Division Bench agreed with regard to the guilt of the appellant, but differed on the question of sentence with the result that the learned Chief Justice referred the case to me.

2. The murder took place in the afternoon of November 28, 1967. Noor Muhammad deceased was looking after his crop in Killa No. 12 of Square No. 18, in Chak No. 630‑GB., Lyallpur District, when Rustam appeared on the scene, challenged Noor Muhammad for opposing the marriage of his sister with the appellant and fired with a .12 bore shot‑gun with the result that the unfortunate man received a fatal injury, of which he died at the spot. The appellant was secured by the witnesses after he was given injuries by Muhammad Tufail with a stick.

3. The report was promptly lodged by Alam, father of the deceased, who had also sustained a head injury with the butt end of the gun at the hands of the appellant in his attempt to save his son.

4. The evidence, consists of three‑witnesses, namely, Alam, who was present at the nearby dhari, Sakhi Muhammad and Tufail. The general criticism of the evidence of Sakhi Muhammad by counsel in this Court was that he was not at the scene of the occurrence. I find that Sakhi Muhammad resided at a distance of a mile from the spot. The reason given by the witness for his presence at the spot at the time of the occurrence is not convincing. He is an owner of three squares of land and tells us that 60 or 70 families are his tenants. We are called upon to believe that he had come to borrow ploughs from Alain. The witness admitted that he was told after the statement of Alain in Court to depose that he had come to Alam to borrow ploughs. Sakhi Muhammad admitted that 10 or 12 years ago, his horses were stolen and he suspected Rustam and his brother for the theft. He gave evidence in a case against Rustam under the West Pakistan Arms Ordinance. Sakhi Muhammad also appeared as a witness against a brother of the wife of Rustam appellant. Mr. Saeed‑ur‑Rehman, learned counsel appearing in this Court on behalf of the State conceded, and rightly too, that to be on the safe side, the statement of Sakhi Muhammad should be excluded from consideration and I agree with him.

5. We are thus left with the evidence of Alam who bears an injury, and his presence at the spot at the time of the occurrence was not seriously disputed before me at the time of arguments. His daughter Mst. Nooran had been married to a younger brother of the appellant, who was murdered some time ago. The appellant, after the death of his younger brother, tried to persuade Mst. Nooran to marry him and when she did not agree, he approached her father, but the deceased opposed the proposal with the result that a couple of days before the occurrence, the appellant threatened Noor Muhammad with death. The evidence of Alam with regard to the actual occurrence is sufficiently corroborated by Tufail, his son‑in‑law, who gave a good number of injuries to the appellant by means of a stick and thereby succeeded in disarming and overpowering him. No criticism was offered of the evidence of these two witnesses except that they were relations, but that, by itself, is no ground to disbelieve them. Their testimony was accept by the trial Judge as well as two learned Judges of this Court comprising the Division Bench.

6. I was not persuaded by the counsel for the appellant to hold that the deceased and others attacked the appellant when he objected to the same and cutting of trees, jointly owned by the parties, by Alain P. W. because the appellant did not take this plea in his statement before the Committing Magistrate. He came forward. with this defence at a belated stage. The, trial Judge, for reasons recorded by him, rightly came to the conclusion that the right of self‑defence did not accrue to the appellant. The Division Bench took the view that Safdar Ali's case, was not applicable and I am in respectful agreement with this conclusion.

7. The evidence in proof of motive consists of the state ments of Alam, Taja, Sadiq and Mst. Nooraa. Counsel submit ted that Taja and Sadiq, being enemies, the appellant could not have possibly taken them alongwith him to Alam. It is proved that Sadiq is related to Taja, who had enmity with the appellant over the theft of bullocks of his brother by Sikandar, a brother of Rustam, but the evidence with regard to motive was mentioned by Alam in his report to the police which was promptly lodged and is corroborated by Mst. Nooran, who was the proper person to know about it. Taja omitted to state to the Committing Court that two or three days before the present occurrence, when they approached Alam and Noor Muhammad deceased, hot words were exchanged between the appellant and the deceased person and that the appellant threatened the deceased with death. I believe that the appellant was keen to marry Mst. Nooran and although there is evidence that Noor Muhammad was opposed to this proposal, still I am not convinced in view of the material omission in the statement of Taja before the Committing Magistrate that 2 or three days before the occurrence, the appellant threatened him with death.

8. The medical evidence is to the effect that the deceased had a fire‑arm injury 3 ' x 2' chest cavity deep on front of right side of neck with three wounds of outlet on the back of right scapula middle ' x ' each ` apart, with blood vessels of right side of neck ruptured, 4th and 5th cervical vertebrae, fist rib to right side, and right scapula bones were fracured. This injury was sufficient to cause death in the ordinary course of nature. I, therefore, agree with the conviction of the accused under section 302, P. P. C.

9. This brings me to the question of sentence. I am inclined to agree with the reasons given by Muhammad Afzal Zullah, J., for withholding the sentence of death. The appellant was fugitive from justice and the possibility of his having been armed in order to safeguard against arrest could not be ruled out. It is admitted that the trees on the khala were jointly owned by the parties, but were sold to Jalal Teli by Alain, father of the deceased, 4/5 days before the occurrence. In this context, the possibility about the appellant having come to know about it could not be eliminated and if he went to the spot armed with the shot‑gun to remonstrate with Alam there was every likelihood regarding the deceased having intervened or said something to the appellant, who might have then fired and killed him. In the circumstances, I feel that it would be safer not to exact the extreme penalty, but to impose the lesser punishment as provided under section 302, P. P. C. on the appellant and I hold accordingly. He is sentenced to transportation for life. The death sentence is not confirmed. K. B. A.