1996 P Cr (PLP)

MEHBOOB ALI KHAN, J.

This criminal appeal arises in the circumstances that follows:

1. On 18-5-1985 at 10-50 a.m. complainant Malik Ali Gohar lodged a report at District Headquarter Hospital Abbottabad and charged appellant Ghazi Shah for the murder of one Tariq Mahmood with a pistol. The occurrence had taken place on the same day at 10-30 a.m. in the shop of P.W. Ali Asghar Khan situated on Kutchery road. The report was recorded by Muhammad Riaz Khan, S.I. Police. Tariq Mahmood deceased, Malik Ali Gohar complainant and P.W. Haji Muhammad Nazir were sitting in the shop of P.W. Ali Asghar Khan on the fateful day and talking about the election campaign of Malik Abdur Rauf when in the meanwhile at 10-30 a.m. accused Ghazi Shah appeared on the venue and attacked Tariq Mahmood with a pistol shot. The deceased got hit in the left shoulder area and fell down. P.W. Ali Asghar Khan caught hold of the accused inside the shop. Malik Ali Gohar and Haji Muhammad Nazir took Tariq Mahmood then injured to D.H.Q. Hospital in Suzuki pickup NoADA/6992. The deceased succumbed to his injuries in the Casualty ward. Malik Ali Gohar (lodger of the report), Haji Muhammad Nazir and Ali Asghar Khan have witnessed the occurrence.

2. A year back Tariq Mahmood had abducted Mst. Chand Bibi daughter of appellant Ghazi Shah which provided a motive to the accused for his murder. The report was later on sent to P.S. Cantt: where a case vide F.I.R. No.336 was registered at 11-30 a.m. On the close of investigation a complete challan was put in the Court of S.D.M., Abbottabad against the appellant who thereafter sent this case to the Court of Sessions for trial.

3. A formal charge under section 302, P.P.C. was settled against the accused on 2-3-1986 in the Court of Additional Sessions Judge, Haripur. He did not plead guilty and claimed trial.

4. On the commencement of the trial the learned Sessions Judge examined as many as 10 witnesses in support of the prosecution case. Appellant Ghazi Shah also made a statement under section 342, Cr.P.C. and produced defence.

5. Dr. Syed Amjad Hussain (P.W.1) on 8-5-1985 at 1-00 p.m. conducted autopsy on the dead body and found the following on external examination:

(1) A wound 5 c.m. in diameter with 6 x 5 c.m. area around the wound patchial haemorrhages. Margin of the wound slightly charred. Everted edges 5 c.m. medial to the inferior angle of scapula, 5 c.m. from mi(i line at left seventh rib. (2) A wound measuring 1 x 5 c.m. This wound was exit of wound No.1 and placed 4 c.m. below the clavical, 10.5 c.m. from left nipple about 6.5 c.m. from the angle of lewis on the front side. On internal examination the Doctor found pleurae injured, left lung collapsed on account of wound passing from lower to the upper lobe of the lung. Mouth, pharynx and oesoghagus contained blood, stomach cavity contained juices and semi-digested food was found in small intestine. Large intestine was full of feaces. Bladder contained urine. The death in the opinion of the Doctor had occasioned due to haemorrhage and shock. The Doctor has given probable time between injuries and death 5 to 10 minutes and between death and post -mortem examination 2-1/2 hours. The Doctor has confirmed the correctness of the post-mortem report Exh.P.M. and his notes (dated 18-5-1985) and remarks on the inquest report and the injury statement Exh.P.M./1. The Doctor has stated that the deceased had expired in the Casualty ward of the Hospital where he was brought in severe shock. He has opined that the injuries received by the deceased were sufficient in the ordinary course of nature to have caused death. Bullet had travelled from down to upward:

6. Mehrban Shah, A.S.I. (P.W.2) on the receipt of the Murasila Exh.PA./1 registered the case at Police Station Cantt: vide F.I.R. Exh.PA. Muhammad Riaz F.C. had delivered dead body of Tariq Mehmood to the Doctor for autopsy. On the completion of post-mortem examination he took into possession blood-stained Shirt Exh.P.l and afterwards handed it over to the Investigating Officer. The shirt had a hole in front of left chest. Muhammad Riaz F.C. also brought the Murasila (Exh.P.A./1) from Muhammad Riaz Khan S.I. to the Police Station and gave it to Maddad Moharrir for registration of the case. He has stated that the police had gone to Hospital on the receipt of a telephonic message.

7. Malik Ali Gohar complainant on the fateful day at 9-45 a.m. came to the shop of P.W. Ali Asghar Khan situated on Kutchery Road from the house of Malik Abdur Rauf. He was accompanied by P.W. Haji Muhammad Nazir and Tariq Mahmood deceased. Ali Asghar Khan was present in his shop. They were talking about the elections. In the meanwhile they heard the report of a tire shot and saw appellant Ghazi Shah who had fired on Tariq, Mahmood. The deceased who was sitting on a chair got up on being hit walked 2/3 paces inside the shop and fell down in the same chair. P.W. Ali Asghar Khan caught hold of the appellant inside the shop and disarmed him of his pistol. Malik Ali Gohar and Haji Muhammad Nazir lifted the inured in a Suzuki pickup to the hospital. He expired in the Casualty ward before the arrival of the police. At 10-50 a.m. Malik Ali Gohar reporter the matter to Muhammad Riaz Additional S.H.O.

8. P.Ws. Haji Muhammad Nazir and Ali Asghar Khan (the man in whose shop this incident had taken place) have been examined. They have furnished ocular testimony of the event and corroborated the evidence of Malik Ali Gohar complainant in material particulars. Ali Asghar Khan has stated that he caught hold of the appellant inside his shop after the fire shot and disarmed him. That Malik All Gohar and Haji Muhammad Nazir took Tariq Mahmood (then injured) to D.H.Q. Hospital. P.W. Ali Asghar Khan on the arrival of the police in his shop handed over appellant Ghazi Shah to the Investigating officer alongwith the crime weapon. i.e., .22 bore pistol, Exh.P.l and a charger Exh.P.2 containing 7 live rounds. The Investigating Officer himself on personal search of the appellant recovered another .22 bore charger containing 3 live rounds (Exh.P.5) from the waist coat of the accused, tine country made .32 bore revolver (Exh.P.8) from his trouser fold containing 3 live rounds, five live rounds .32 bore (Exh.P.9) from the outer pocket of his wearing jacket and a dagger (Pashqabiz) from the second fold of his trouset.

9. P.W. Muhammad Riaz Khan, S.I. was Additional S.H.O. at police Station Cantt: during those days. At 10-50 hours on 18-5-1985 do the receipt of information about the incident he rushed to the casualty ward of D.H.Q. Hospital, Abbottabad and recorded the report ExhY.A./1) at the instance of Malik Ali Gohar. He recorded the Injury sheet Fach.P.W.10/1 and inquest report Eth.P.W.10/2 of the deceased and delivered dead body for postmortem examination. The S.I. then went to the shop of All Asghar Khan situated on Kutchery road and made formal arrest of accused Ghazi Shah from the custody of the said witness. He also took into possession one .22 bore pistol, i.e., the crime weapon. On personal search of the appellant the Investigating Officer took into possession another .32 bore loaded revolver, 5 live rounds of .32 bore from the right side outer pocket of his wearing jacket and a dagger from the trouser fold. Muhammad Riaz Khan S.1. also prepared the site plan Exh.P.B. on the spot correct with foot notes. Point No.1 in the site plan indicates the place (inside the shop of P.W. Ali Asghar Khan) whore the deceased was allegedly sitting in a chair at the tune of attack. He was fired at and injured by the accused at this place. Point No.2 is the place where the deceased fell on the receipt of fire shot. Paints Nos.3, 4 and 5 show the places where P.W. Ali Asghar Khan, Malik All Gohar and Haji Muhammad Nazir were present. Accused Ghazi Shah had fired on the deceased from point No.7. Point No.8 indicates the place on which appellant Ghazi Shah was over powered by P.W. Ali Asghar Khan and disarmed of his pistol.

10. The appellant was examined under section 342, Cr.P.G. on the close of the prosecution case. He totally denied his involvement in the crime and produced defence. Two witnesses have been brought in defence evidence by the accused showing that his daughter Mst. Chand Bibi had been given in the Nikah of one Ejaz Hussain Shah prior to her abduction by the deceased. A Nikahnama dated 20-12-1981(Exh.D.W.1/1) has been produced.

11. The learned Sessions Judge believed in ocular testimony as put forth by P.Ws. Malik Ali Gohar, Haji Muhammad Nazir, Ali Asghar Khan and held the accused guilty of the murder of Tariq Mahmood deceased with a pistol. He thus convicted the accused under section 302, P.P.C. vide his judgment and order, dated 7-4-1990. The trial Judge did not however, accept the defence plea that the appellant had acted in grave and sudden provocation. But he accepted the truth of the motive as put behind the incident that the deceased had abducted daughter of the accused a year before his murder and the appellant in retaliation to the said incident killed Tariq Mahmood deceased out of revenge on the eventful day. The learned Sessions Judge while taking this fact into consideration did not ask for normal penalty of death and sentenced the accused to suffer imprisonment for life with fine of Rs.20,000 or two years R.I. in default. Half of the fine if paid was to be given to the legal heirs of the deceased. The convict was also given the benefit of section 382-B, Cr.P.C. Hence this appeal. A petition under section 439, Cr.P.C. has been moved by P.W. Malik Ali Gohar complainant for the enhancement of sentence into death penalty and increase in the compensation amount awarded under section 544-A, Cr.P.C. The instant judgment recorded in criminal appeal No.8 of 1990 shall also be helpful in the disposal of the aforesaid revision petition.

12. The occurrence had been promptly reported within 20 minutes of the incident and the appellant is alone charged which rules out any chance of false implication. Not only this the accused was caught red handed inside his shop by PV. Ali Asghar Khan (where the incident took place) and disarmed of his pistol. He was few minutes later handed over to the Investigating Officer on the venue alongwith the crime weapon. Malik Ali Gohar (the lodger of the report) and P.W. Haji Muhammad Nazir are shop-keepers doing their business in the same locality. The occurrence took place in their presence inside the shop of Ali Asghar Khan. The complainant has mentioned in his report the presence of his aforesaid companions on the spot at the time of the incident and these persons have provided ocular testimony of the event in the manner it took place. The medical evidence proves the factum of one fire shot received by the deceased which proved fatal.

13. Mufti Muhammad Idris, Advocate the learned counsel for the appellant did not assail the correctness of testimony furnished by these persons. He rather conceded that the learned Sessions Judge has rightly believed them and he would not grudge the prosecution case on that score. But at the same time he very vehemently put forth his argument that the appellant had acted in the commission of the offence in grave and sudden provocation in view of very strong motive and this aspect of the case should not have been lightly ignored by the trial Judge. The motive-behind the deceased's killing according to the learned counsel was of the natural which should have been weighed with very serious consideration by the trial Court while assessing the matter of conviction and sentence to be recorded against the appellant. That the learned Sessions Judge should have pondered on the back ground of murder in the context, that the appellant who belongs to a village `Syed' family had been deprived of his young daughter by the deceased about one and a half year prior to the occurrence (no matter whether she herself eloped after him or forcibly abducted by the deceased) whom he had already given in Nikah in the family. That this ever losting family honour throughout this period of 1-1/2 years had been gravely smarting the appellant under constant provocation who on seeing Tariq Mahmood first time after the abduction incident lost self control and killed him to avenge dishonour. This fact is available in the evidence of P.W. Malik Ali Gohar, that appellant Ghazi Shah had been openly saying after the elopement of his daughter that he shall kill Tariq Mahmood deceased when ever he gets hold of him. The complainant has conceded that he cannot cite any example in Abbottabad in which a girl of Syed family had been married in a non-Syed family with the consent of parents. Similarly P.W. Ali Asghar Khan has confessed this fact that if a Syedzadi is abducted by a non-Syed in this part of the country it causes an uproar.

14. There is no evidence in this case that the appellant had ever met Tariq Mahmood deceased after the incident of abduction. The armoury of weapons of which the accused was relieved by the police at the time of his arrest shows, that he remained in constant pains of vengeance throughout this period after the abduction of his daughter. Smarting under continuous provocation which did not die throughout that time when on the fateful day he suddenly came in sight of the deceased in the shop of Ali Asghar Khan, he lost. Self control and put Tariq Mahmood to an end and evenged dishonour of the family. The behaviour shown by the appellant after the incident, that he did not resist being fully armed when P.W. Ali Asghar Khan caught hold of him and disarmed him of his weapon indicates that he was not repentful of his act.

15. In these circumstances of the prosecution evidence the appellant can 1 be said to have been guilty of man slaughter but not of culpable homicide amounting to murder. His case is, therefore, covered under exception 1 to section 300, P.P.C. The conviction and sentence recorded by the learned Sessions Judge under section 302, P.P.C. shall be thus altered and the appellant would now stand convicted under section 304, P.P.C. and sentenced to 10 years R.I. with fine of Rs.10,000 which shall be paid as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. In case of default in payment of fine the accused shall suffer 6 months further R.I. The benefit of section 382-B, Cr.P.C. as already given to the convict by the trial Court shall continue. The appeal in the circumstances succeeds to this extent and the connected revision petition moved by the complainant is dismissed. N.H.Q./1843/P Order accordingly.