2004 PLP 778 (YLR)

7. P.W. 7 is Dr. Iftikhar Ahmad who on 17-1-1996 at 12-30 p.m. had conducted post-mortem examination on the dead body of Shahbaz Ahmad deceased and had found four fire-arm injuries on his person. Exh.P.F. is the carbon copy of the post mortem report while Exh.P.F/1 is the diagram of injuries.

8. In this case the eye-witness account is furnished by P.W.1 Muhammad Abbas complainant and also by P.W.2 Muhammad Asghar Ali, both of whom deposed on the same lines as indicated in the F.I.R. Both of them also deposed about the existence of motive. On 17-10-1998 the Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.K. and closed the case for the prosecution.

9. On the same day i.e. on 17-10-1998 the statement of the accused was recorded under section 342, Cr.P.C. and wherein he denied all the incriminating circumstances. In answer to question No.2 he admitted that there had taken place a dispute between him and Mst. Maryam Bibi regarding washing his clothes on 12-1-1996 and in the meanwhile Shahbaz accused who had arrived there, abused him. He got annoyed, flared up and took the gun from his room and as he was unable to control his passions, he fired at the deceased. He stated that he had not killed the deceased intentionally. In answer to question No.3 regarding the recovery of gun P.1, he stated that on 20-1-1996 he had himself appeared before the Investigating Officer with the gun P.1 and he had taken the same into possession. He stated that he had also produced the licence of the gun before the police. In answer to question No.5 he stated that the offence had been committed due to sudden and grave provocation because of `hot words' used against him by the deceased. However, the accused did riot produce any evidence in defence nor he made statement on oath under section 340(2), Cr.P.C.

10. On the conclusion of trial, the learned Additional Sessions Judge convicted and sentenced the accused/appellant as aforesaid. Hence, he has filed this appeal (Criminal Appeal No. 128/J-98). The learned trial Court has also sent a reference for confirmation of sentence of death awarded to the accused: Both these matters are being disposed of through this judgment.

11. The learned counsel for the appellant has argued that the occurrence had taken place as a result of grave and sudden provocation and that as Abdul Rehman deceased had abused the accused/appellant for quarrelling with Mst. Maryam Bibi on her refusal to wash his clothes, the accused/appellant was unable to control his passions and in a fit of rage and in the heat of moment, went inside the room, took his gun and fired at the deceased. The learned counsel for the appellant has argued that as the occurrence was the result of grave and sudden provocation, it was clearly a case of lesser punishment, if it be not possible to exonerate the appellant.

12. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient incriminating material on record to connect the accused with the offence. He has argued that it is a case of single accused and there are no mitigating circumstances and hence the judgment passed by the learned trial Court be upheld.

13. We have carefully considered the arguments.

14. As mentioned above, the accused/appellant does not deny the occurrence. The date, time and place of occurrence are also not in dispute. The accused also admits that he had fired with the gun P.1 at deceased. From the evidence on record it is evident that as a result of the injuries sustained by the deceased during the occurrence, he had expired: The ocular account in this case is furnished by P.W.1 and P.W.2 and although they were subjected to lengthy cross-examination, they could not be shaken. Their statements are corroborated by the medical evidence. Anyhow, the accused has taken the plea that as the deceased had abused him, he got annoyed, flared up, took the gun from his room and being unable to control his passions, he fired at the deceased. He has taken the plea that he had not killed the deceased intentionally. It, therefore, means that the version of the prosecution and the defence version are almost the same. As mentioned above, the accused/appellant does not deny that it was he who had fired the fatal shot at the deceased. The only question to be seen is as to whether there are any mitigating circumstances. Admittedly the parties are very closely related to each other and the accused/appellant was also living in the same house. It is also an admitted fact that the deceased had admonished the accused for quarrelling with Mst. Maryani Bibi on her refusal to wash his clothes. It appears that in the heat of the moment, the accused picked up the gun and fired at the deceased and the shot fired by him proved fatal. The accused/appellant is not alleged to have fired another shot at the deceased. As the occurrence had taken place in the heat of the moment, after the deceased had an altercation with the accused/appellant, the accused had fired the solitary shot at him and this fact provides sufficient mitigating circumstance for awarding lesser punishment to the accused/appellant.

15. Since there is sufficient evidence on record to warrant conviction and since the accused/appellant does not deny the occurrence, the conviction could be recorded under section 302(b), P.P.C. although proof of Qatl-i-Amd liable to, Qisas as required under section 304, P.P.C. for recording conviction under section 302(a), P.P.C. is not available in this case. Similarly, as there are above mentioned mitigating circumstances, the sentence of death awarded to the accused/appellant in this case can be converted into life imprisonment.

16. In view of what has been stated above, the conviction of the accused/appellant is converted from section 302(a), P.P.C. to section 302(b), P.P.C. and the sentence of death awarded to him by the learned trial Court is converted to life imprisonment. The accused/appellant will also pay an amount of Rs.20,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default in payment of compensation, he will undergo further S.I. for six months.

17. With this modification in the impugned judgment, this appeal filed by Abdul Rehman accused/appellant is dismissed.

18. The sentence of death awarded to the appellant by the learned Additional Sessions Judge is not confirmed.

19. Murder. Reference (No. 122 of 1999) is answered in the NEGATIVE. H.B.T./A-841/L Appeal dismissed.