1987 PLP 3086 (MLD)

4. Reaching the scene of offence, the ASI prepared injury statement of the deceased Ex. PH and inquest-report Ex. PJ and despatched the dead body to the mortuary with police escort. He removed blood --stained earth from there and also picked up crime empty (P5) which were secured under memo Ex. PG and PF, respectively. He arrested the appellant, produced before him on the spot and also secured his pistol (P4) with live cartridges P5/1-2 vide memo Ex. PE. The pistol was unlicensed, therefore, he got a separate case registered against the appellant under Arms Ordinance. After the post-mortem examination, last worn clothes of the deceased and the packet containing pellets, sent by the doctor extracted from the wound were seized by him under memo Ex. PB. Blood-stained earth was found stained with human blood vide Serologist's report Ex. PM and the empty Ex. P5 to have been fired through pistol (P4) vide Fire Arms Expert's report Ex. PN. Having completed the investigation the appellant was challaned to Court.

5. Dr. Muhammad Akram Khan (PW 5) conducted post-mortem examination on the dead body of Faiz Ahmad at 5 p.m. on 24-5-1982 and noted the following injuries on it:- (1) A curved bruise 5 cm x 11 cm on left side forehead. (2) Abrasion 1 cm x 1 cm on upper portion of nose and abrasion 1 cm x 1 cm on right side of nose, left nostril was blood-stained. (3) A lacerated wound I cm x 11 cm on right side of head (vault) 10 cm above right eye and 11 cm from right ear. (4) Eight fire-arm wounds of entry on front right side chest, starting from mid line reaching upto 4 cm to right nipple. In the opinion of the doctor, death occurred due to shock and haemorrhage and cardiac failure due to injury No. 4 which was ante-mortem and was sufficient to cause death in the ordinary course of nature, probable time between injuries and death was immediate and between death and post-mortem 6 to 8 hours.

6. At the trial prosecution examined ten witnesses in all. It mainly relied on the testimony of eye-witnesses namely, Muhammad Ramzan (PW 8) and Ahmad Yar (PW 9) who stated the motive and also about their having captured the appellant on the spot and snatching of pistol (P4) from him; the evidence of Dr. Muhammad Akram (PW 5) who deposed to that the deceased had died of gun shot injuries; and the reports of Serologist and the Fire-arms Expert.

7. The appellant in his statement under section 342, Cr.P.C. did not dispute the time and place of occurrence and also the death of the deceased by firing. He also admitted his presence on the spot, but denying the motive he explained that when his wife was willingly going with him to his house whom the complainant party had brought in his absence from his house a day earlier the deceased objected to it, whom he started beating. At this Ahmad Yar PW advanced towards him with a loaded pistol. He grappled with him and in the process the pistol went off and the bullet hit Faiz Ahmad deceased accidentally. He went to the police and informed all about it but they involved-him falsely in this case. The appellant produced two witnesses in defence, namely, Muhammad Aslam H.C. (DW 1) and Ghulam Rasool, Muharrir Head constable (DW 2). Their evidence need not be discussed as it has no bearing on the case.

8. Learned trial Judge considering the material on record in detail discarded the defence theory being not reasonably probable and also not fitting in the circumstances of the case and held the appellant guilty under section 302, P.P.C. as according to him the appellant had a grudge against the deceased due to previous night's incident; the F.I.R. was lodged promptly; and he being the sole accused had been apprehended red-handed on the spot.

9. Learned counsel appearing on behalf of the appellant argued that prosecution witnesses have made deliberate improvement at the trial as to the motive part of the story in order to make it appear as a premeditated murder. He stated that he would not subscribe to the plea of the appellant raised at the trial that the deceased was hit with the shot fired from pistol held by Ahmad Yar PW, which accidentally went off during the scuffle as the same was not reasonably possible. He, however, argued that there is sufficient material on the record suggesting that the appellant's wife Mst. Nur Bhari had been brought to Ahmad Yar's house on the night preceding the, morning of occurrence from the house of the appellant in his absence in order to pressurise appellant to divorce her, and that the appellant also arrived there just after them and when his wife was willingly going with him, the deceased blocked their way unjustifiably and in the heat of moment and under grave and sudden provocation the appellant fired at the deceased as a result of which he was killed hence the offence committed by the appellant would not be murder but culpable homicide not amounting to murder. In the alternative he submitted that if it is found that the appellant is guilty of committing offence of murder then exacting the extreme penalty, at least, in this case is not called for Learned State counsel assisted by learned counsel for the complainant have defended the impugned judgment.

10. We have considered the contentions of the learned counsel and perused the record with their assistance carefully.

11. The occurrence took place in the house of Ahmad Yar (PW 9). His presence at the time of occurrence was, therefore, natural. His presence is not even denied by the defence. Muhammad Ramzan (PW 8), nephew of the deceased, lodged the F.I.R. within half an hour of the occurrence. His presence on the spot is established beyond any doubt. We have therefore no hesitation in believing them as for the main occurrence is concerned i.e. the deceased had died as a result of shot fired at him by the appellant. Appellant's plea that the deceased was hi: with a bullet which got fired from the pistol held by Ahmad Yar P.W. during scuffle not only is highly improbable but absurd and that is why the appellant's learned counsel though it fit to abandon the same. We may point out that had Ahmad Yar been armed with a pistol then he would have conveniently shot the appellant down when he (appellant) on his own showing, was busy beating the deceased with a soti. Furthermore, If the appellant was really carrying a soti at the time of occurrence then he would have; naturally used it against Ahmad Yar P.W. instead of grappling with; him on seeing that he was advancing towards him with a loaded pistol.

12. The contention of the learned counsel that the appellant was suddenly and gravely provoked as the deceased blocked his way when his wife was willingly accompanying him for going to his house, appears to be without force as Mst. Nur Bhari has not been produced to support the plea. Assuming without conceding that the deceased stood in their way empty handed objecting to the going of Mst. Nur Bhari with the appellant to our mind neither constituted grave provocation nor it otherwise provided slightest justification for the appellant to shoot him to death. Resultantly we find that the appellant has been rightly found guilty of committing offence of murder punishable under section 302, P.P.C. and we maintain the same.

13. This brings us to the question of sentence. The story of the prosecution that the deceased accompanied by Muhammad Ramzan complainant (P.W.F) and Ahmad Yar (P.W.9) had gone to the house of the deceased a day before the occurrence for bringing appellant's sister Mst. Bakhat Bibi to the house of her husband Imtiaz but had instead brought Mst. Nur Bhari, his wife, when he refused to send Mst. Bakhat Bibi and asked them to take away his wife if they so desired, does not ring to be true for various reasons, i.e., this story does not find mention in the F.I.R.: Ahmad Yar (P.W.8) conceded that he did not tell this story during the investigation and had stated it for the first time at the trial, He admitted to have not told to police in the investigation that during talks held at appellant's house) Ghulam Muhammad appellant got flared up with Faiz Ahmad deceased and that he mentioned this fact only at the trial. He denied to have got recorded in his police statement Ex DB that "the motive for the murder was that Ghulam Muhammad accused had felt annoyed) on account of our taking away his wife without his consent" but on confrontation it was found recorded in Ex .DB. All these facts indicate that the complainant party at the trial introduced the story that they visited appellant's house, on the day preceding the day of occurrence, to bring Mst. Bakhat Bibi but instead of her they brought Mst. Nur Bhari, wife of the appellant with his permission which is falsified due to omission in the F.I.R. and by the admissions made by Ahmad Yar P.W. about his making improvements at the trial. By reading between the lines of statement of Ahmad Yar P.W. a son-in-law of the deceased, it appeals to us that the complainant party had brought Mst. Nur Bhari carrying 40 days old baby in her lap from the house of the appellant in his absence, therefore, the question of appellant's, getting flared up with the deceased or the deceased having pulled his hair does not arise. This means that the appellant's visit tot Ahmad Yar's house was to take back his wife and not for killing Faiz; Ahmad. The carrying of pistol by him is also explainable, that is, he might have carried it with him to defend himself against any aggression; Keeping all these facts in view, we find that it was not a pre-meditated murder but it all occurred at the spur of the moment, therefore, the appellant is entitled to the lesser penalty. Consequently, we alter his sentence from death to imprisonment for life. The sentence of fine is, however, maintained. The result is that the appeal is dismissed and the death sentence is commuted. The sentence of death is not confirmed. For the same reason we dismiss complainant's revision petition seeking enhancement of fine. M. Y. H./G-82/L Appeal dismissed.