1983 PLP 201 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑.This appeal through special leave calls in question judgment dated 14‑1‑1978, whereby appellant's conviction for murder and sentence of death were affirmed. According to Muhammad Ismail P. W. who is the father of Muhammad Jamil deceased in this case and also the complainant, some days before the occurrence, Which took place on 22‑8‑1974 at about 10.00 a.m., the appellant and Muhammad Jamil deceased quarrelled on the appellant's hurling a filthy joke on Muhammad Jamil who retaliated by giving the appellant some slaps. There was no other previous enmity. On the day of the occurrence, Muhammad Jamil deceased and Muhammad Ismail P. W. were passing in front of the khokha shop of the appellant when the appellant and his elder brother Zahid Hussain confronted them. Zahid Hussain who was said to have armed with a chhura assaulted Muhammad Jamil. Before he could cause any injury Muhammad Safdar and Rashad P. Ws. as also Muhammad Ismail complai nant intervened and saved Muhammad Jamil by tightly securing Zahid Hussain. It was Muhammad Ismail's case in the F. I. R. that the appellant Zahid Hussain was in "helpless condition". The appellant fired a rifle shot at Muhammad Jamil who escaped unhurt. The appellant then fired a second shot which proved effective and fatal. Zahid Hussain was accor dingly released. Both the assailants decamped. Muhammad Jamil who suffered injury in the chest did not survive. Muhammad Safdar and Rasbad P. Ws. sustained minor linear wounds on their hands which indicated as if they suffered the same on account of an attempt to snatch the weapon from Zahid Hussain. At the trial, where both the appellants faced trial for murder of Muhammad Jamil and causing simple hurt with sharp‑edged weapon to Muhammad Safdar and Rashad P. Ws., in addition to the aforementioned eye‑witnesses, evidence was led regarding the matching of a bullet piece recovered from the spot with the licensed rifle of the father of the accused. These recoveries, however, were not relied upon. The defence plea was that Shahid Hussain used to collect jagga tax which was resented by the rickshaw drivers including Muhammad Safdar, Rashad P. Ws. and Muhammad Jamil, deceased. On account of this all of them attacked, the khokha of the appellant which was burnt to ashes and during this commotion somebody fired a shot which hit Muhammad Jamil. Thus the participation of the accused as also the motive asserted from the prosecution side were denied. Learned trial Judge did not accept the presence of Rashad P. W. at the spot. With regard to the role of Zahid Hussain, adverse comments were made on the testimony of Muhammad Safdar P. W. and it was held that the injuries on his hand were not the result of any scuffle with Zahid Hussain accused. Thus the said accused was given benefit of doubt and was acquitted. Relying on the remaining evidence, Shahid Hussain appellant was convicted for murder and sentenced to death. No change of any significance was made in the appreciation of evidence by the High Court. Leave to appeal was granted to reappraise the evidence so as to see whether after discarding the testimony of Muhammad Safdar P. W. against Zahid Hussain accused could the same be treated as corroboration of Muhammad Ismail's statement who was said to be an interested witness. Learned counsel has relied on the finding of the trial Court regarding '';o injuries to Muhammad Safdar P. W. namely that keeping in view the legation of there being a chhura in the hand of Zahid Hussain, the injuries suffered were most insignificant and, therefore, it was unlikely to have been a used in the occurrence. We have examined the nature of the injuries. It is an incised wound divided into three parts 1 ' x 1/8 x skin deep, 1 x 1/10" x skin deep and 1 x 1/12" x skin deep on the palmer aspect of the left hand. The duration of the injuries was suggestive of it being contemporaneous with the time of occurrence. There was nothing in the statement of the doctor indicate that it could not have been suffered in a scuffle wherein an tempt was made to snatch a sharp‑edged weapon. Be that as it may, Zihid Hussain accused was extended only benefit of doubt which could show in the circumstances of this case, that Muhammad Safdar P. W. falsely implicated him. He had no enmity against the accused to falsely,) plicate him nor the motive suggested from the prosecution side would under Muhammad Ismail into such an interested witness so as to substitute real culprit for the appellant. It was a daylight occurrence. The F.I.R. was very prompt and there is no infirmity in the deposition of Muhammad Ismail so as to show that he tried to falsely implicate any one of the two accused. Having carefully reappraised the evidence, we agree with the learned Courts below that the appellant is guilty of murder. However, on the question of sentence we agree with the learned counsel that there is no evidence to show that the accused knew that the deceased would pass in front of their khokha. Thus there was no preplanning. The fact that the appellant was armed with a rifle belonging to his father would only confirm his own statement that he used to collect Jagga tax. In that connection he might have the habit of taking rifle with him. There is some confusion in the evidence relating to what happened in the earlier incident, in which the appellant hurled a filthy joke on Muhammad Jamil deceased. The possibility cannot be excluded that on the day and at the time of occurrence something was said or done by either party which led to a scuffle between Zahid Hussain and the complainant party which initially consisted of Muhammad Jamil and his father Muhammad Ismail. The appellant then in the heat of the moment fired a shot on Muhammad Jamil, when his brother was in a "helpless" state. Although in the circum stances of the case the appellant had neither the right of private defence nor all the conditions contained in Exception IV to section 300, P. P. C. are satisfied, yet the flare‑up being sudden and involvement of Zahid Hussain accused, having remained shrouded in mystry, we deem it a fit case for award of lesser of the two penalties. Accordingly while maintaining appellant conviction under section 302, P. P. C. his sentence is reduced from death to imprisonment for lite and fine of Rs. 15,000 in default whereof he shall suffer five years' R. I: A sum of Rs. 1,000 is also awarded against the appellant under section 544‑A, Cr. P. C. in default of which he shall suffer six months' R. I. Both the amounts i.e. Rs. 16,000 shall be paid as compen sation to the heirs of Muhammad Jamil deceased. Benefit of section 382‑B, Cr. P. C. shall be allowed to the appellant in computing the substantive sentence of imprisonment for life. With the above modification of sentence this appeal is partly allowed. Appeal partly allowed.