1994 PLP 1785 (MLD)

This Criminal Appeal and Criminal Revision No.113/91 shall be disposed of through this single judgment.

2. Muhammad Ashraf appellant had been tried by the learned Additional Sessions Judge III, Okara, who vide his judgment dated 28-1-1991 convicted the appellant under section 302, P.P.C. for committing the murder of Mukhtar Ahmad deceased and sentenced him to life imprisonment with a fine of Rs.10,000 and in default thereof to further undergo one year's R.I. The fine if realised shall be paid to the legal heirs of the deceased to the extent of one half. The appellant was however, given the benefit of section 382, Cr.P.C.

3. The prosecution case as spelt out from the F.I.R. Exh.PD scribed on the statement of Bashir Ahmad complainant P.W.4 and subsequently reiterated on solemn affirmation by him as well as testimony of the other eye witness Nazir Ahmad P.W.6 is that on 21-11-1987 at about 3 p.m. Mukhtar Ahmad deceased was confronted by the appellant in the field where the latter asked him to send his sister Taj Bibi to revive conjugal relations with the appellant. They however, exchanged hot words. The appellant left the place threatening him to teach a lesson and soon in presence and full view of the eye witnesses the appellant brought out the gun from his nearby house and fired at the deceased which hit the head of the deceased who fell down and died at the spot. The complainant and other eye-witness Nazir Ahmad are real brothers and their sister was married to the appellant whereas the sister of the appellant was married to the complainant. The ladies howevet, had come away from their conjugal domicile to live with their parents on account of strained relations of their husbands. The said incident took place when the appellant asked the deceased who is also brother of the complainant to send his sister to live with her husband, the appellant.

4. Khushi Muhammad S.I. conducted investigation and arrested the appellant on 5-12-1987 and at his instance got recovered his licensed gun 1' with cartridge Exh.P-1/4 from his house in presence of eye-witnesses Idrees (given up) and Bashir P.W.4. He took the weapon into possession vide oleo Exh.PE. Empty could not be recovered from the spot, therefore, the gun 0 not sent to Forensic Science Laboratory. However, the gun was recovered fro a joint house. The learned trial Court therefore, rightly disbelieved recoveries and also the motive.

5. Complainant (P.W.4) admitted in cross-examination that "no untoward event occurred prior to the occurrence from desertion of my wife and the wife of the accused". Though the wives of the appellant and the complainant were living separate from them but no evidence surfaced to show bad blood between the parties or the appellant having nursed grudge against the deceased.

6. The learned trial Court, though disbelieved the motive and the recoveries, however, accepted the ocular account backed up with medical evidence and passed on the impugned conviction under section 302, P.P.C. and sentenced the appellant thereunder to life imprisonment, the mitigating circumstances being that motive and recoveries were not proved. I am inclined to confirm the verdict for reasons given below:

Both the eye-witnesses, though brothers inter se, are also related to the appellant, being their brother-in-law. Admittedly the wives of the appellant and the complainant had not sought divorce from them and no untoward incident had happened before the occurrence. The eye-witnesses therefore, have no animus, grudge or illwill to falsely involve their brother-in-law. The learned counsel for the appellant failed to devalue their testimony or point out any discrepancy in their statements on any material particular. In fact what the learned counsel for the appellant canvassed at the Bar was that the appellant was involved in a sudden fight upon a sudden quarrel with the deceased over the return of his sister and had also not repeated the fire-arm shots. According to him the appellant had committed the offence of culpable homicide not amounting to murder covered by Exception 4 to section 300, P.P.C. I however, would disagree with the learned counsel on this point.

7. When the injury was caused on the vital part of the body with deadly weapon and according to the doctor it was sufficient to cause death in the ordinary course of nature it would fall within the definition of murder even though only one blow was given to the deceased. So was ruled by Supreme Court of Pakistan in Haider Zaman v. The State (1972 SCMR 686).

8. The facts of another Supreme Court ruling Muhammad Nawaz v. Abdul Hayee and others (1976 SCMR 36) are akin to facts of the case in hand. In the stated case a quarrel over a business deal developed into exchange of altercation between the parties and the accused hurried to his house and rushed back with a Chhuri and instantly gave two thrusts in the back of the Prosecution witness and then in chest of the deceased when trying to rescue his brother, was held not covered by Exception 4 to section 300, P.P.C. so because the accused's errand in running to his house and fetching Chhuri could not be explained on any reasonable hypothesis other than that he wanted to attack he also caused injury with sufficient force with a weapon meant for assault. In burr rata case too, the appellant after having altercation with the deceased stated by the complainant and came back on the spot in just 1/2 minutes with his gun as stated by the complaint and fired at the deceased. The appellant had a time to cool down but he instead rushed to his nearby home and came back with a lethal fire-arm (.12 bore gun) and the fire hit the head, the most vital part of the deceased. The doctor has confirmed that the fatal injury on the head was caused by fire-arm. The deceased was defenceless at the relevant time. The appellant, in the circumstances, took undue advantage of his weapon and the situation and acted in a cruel or unusual manner which in turn deprived him of the advantage of Exception 4 to section 300, P.P.C. It was, therefore, a murder, The learned trial Court however, was right in not passing capital punishment as the motive was not proved and it was not a premeditated murder. In view what is stated above, I maintain the impugned conviction and sentence under section 302, P.P.C. alongwith sentence of fine and dismiss the appeal. The benefit under section 382(b), Cr.P.C. shall also be admissible to the appellant. Criminal Revision No.113/91 is also dismissed. N.H.Q./M-1628/L Appeal dismissed.