1994 P Cr (PLP)

CH. GHULAM SARWAR, J.

Baqir Shah appellant was tried by the learned Additional Sessions Judge, Vehari under section 302, P.P.C. for committing intentionally the murder of one Munawar Shah on 2-3-1987 at 2-00 p.m. in the area of Village Mehboob Shah situated at a distance of five miles from Police Station Saddar Mailsi, District Vehari being armed with .12 bore pistol. Vide judgment, dated 24-12-1989 the learned Additional Sessions Judge, Vehari recorded the conviction against the appellant and sentenced him to death with a fine of Rs.5,000 to be paid to the 'legal heirs, if realised, under section 544-A, Cr.P.C. as compensation and in default thereof he was to suffer further R.I. for one year.

2. The present judgment shall dispose of the Murder Reference No.13 of 1991 and Criminal Appeal No.103 of 1989 filed by the appellant.

3. The prosecution case as disclosed by Sadiq Shah P.W.6 in the F.I.R. Exh.P.F. is that about 5-1/2 years ago he had married his daughter Mst. Mumtaz Bibi to his maternal-uncle's son Munawar Shah and out of their wedlock Mst. Parveen aged about 1-1/2 months was born. On 2-3-1987 Mst. Parveen was sick and was taken by the complainant, Munawar Shah deceased, Bashir Hussain Shah and Mst. Mumtaz Mai to Hakeem Khan Muhammad in Mauza Mehboob Shah, and after getting medicine for Mst. Parveen they all were coming towards the Bhani of Gul Shah and when they reached near Abadi Bellan Wala at 2-00 p.m. Baqir Shah appellant being armed with pistol .12 bore came there and raised Lalkara addressing the deceased that he would not be spared. Simultaneously he fired with his pistol at Munawar Shah, which hit him on his left shoulder, whereupon he fell down on the ground and then the appellant caused second shot on his head. In consequence thereof Munawar Shah succumbed to the injuries at the spot. Sadiq and other P.Ws. tried to apprehend the appellant but he succeeded in making good his escape alongwith his pistol. The motive of the crime is that Munawar Shah deceased and Iqbal Shah had murdered Maqsood Shah brother of the appellant five years before and the appellant in order to take revenge of the same committed this murder.

4. Sadiq Shah P.W.6 went to Police Station Saddar Mailsi where he lodged F.I.R. No.54, dated 2-3-1987 at 2-35 p.m. which was recorded by Raja Sikandar Hayat, S.H.O. P.W.8.

5. Raja Sikandar Hayat, the S.H.O. after recording the F.I.R. proceeded to the spot. He prepared the injury statement Exh.P.C. and inquest report Exh.P.T. of the deceased while reaching there. He despatched the dead body to the Civil Hospital Mailsi and collected blood-stained earth from the spot and sealed the same into parcel vide recovery memo. Exh.P.G. He also took into possession empty cartridges P.8 and P.9 lying at the spot and sealed the same into parcel vide recovery memo. Exh.P.H. On 3-3-1987 after post-mortem Ghulam Abbas, F.C. P.W.2 produced the last-worn clothes of the deceased P.1 to P.4 and a vial P.5 containing pellets before the Investigating Officer who took the same into possession vide memo. Exh.P.E. On the same day viz. on 3-3-1987, Raja Sikandar Hayat, S.H.O. arrested the appellant from Adda Kot Muzaffar and recovered pistol .12 bore from him with a live cartridge and took the same vide recovery memo. Exh.P.J. On 8-3-1987 Muhammad Akram H.C. P.W.5 sent the sealed parcel of blood-stained earth, cartridges and pistol to Chemical Examiner and Forensic Science Laboratory, Lahore through P.W.2 who brought back the same on 11-3-1987. On the same day site plan Exh.PA. was got prepared from Ghulam Abbas, Patwari, P.W.1. After completing the investigation the challan was submitted against the appellant.

6. Dr. Muhammad Aslam, M.O., T.H.Q. Hospital, Mailsi did the post-?mortem examination on the dead body of Munawar Shah deceased on 3-3-1987 and found the following injuries on his person:-- (1) A fire-arm wound of entry. A lacerated wound 7 c.m. x 3 c.m. on the back and right side of head, 12 c.m. from right ear going deep into cranial cavity. (2) Wound of entry. Multiple lacerated wound area measuring 16 c.m. x 9 c.m. on front and upper-most part of left upper arm and left shoulder joint, directed towards chest cavity. There is corresponding tear on shirt and Bunyan. In the opinion of P.W.3, cause of death in this case was shock and haemorrhage and injury to vital organs i.e. brain. Injury No.1 and 2 were ante-?mortem and sufficient to cause death in ordinary course of nature. Injuries Nos.1 and 2 were caused by fire-arm weapon. According to him, the probable time that elapsed between injuries and death was instantaneous and between death and post-mortem within about a day. He prepared the post-mortem report Exh.P.B. He also prepared the diagram of the locale of injuries as Exh.P.B./1 and Exh.P.B./2.

7. During trial the appellant denied the charge rind claimed the trial. In order to substantiate the charge against the appellant the prosecution produced eight P.Ws. in all including Dr. Muhammad Afzal P.W.3 as the Medical Officer, Sadiq Shah P.W.6 and Bashir Shah P.W.7 as the eye-witnesses of the occurrence and Sikandar Hayat P.W.8 as the Investigator of this case; some of them being the formal witnesses. The remaining witnesses were given up by the prosecutor but he tendered in evidence the positive reports of the Chemical Examiner Exh.P.M., the Serologist Exh.P.N. and that of the Forensic Science Laboratory Exh.P.O. to prove the origin of the blood collected by the police and also to prove that the empties recovered from the spot had matched with the pistol allegedly used in the occurrence and recovered from the appellant.

8. When confronted with the evidence produced by the prosecution during his examination under section 342, Cr.P.C. the appellant Baqir Shah took up the plea that he was involved in the case due to enmity as he was pursuing the appeal of the murder of his brother Maqsood Shah against the deceased Munawar Shah and his co-accused Iqbal Shah in the Honourable Supreme Court and to restrain him from doing so he was falsely involved in this case.

9. Neither he opted to appear as his own witness as provided under section 340(2), Cr.P.C. and nor any defence evidence was led by him.

10. Sahibzada Farooq Ali Khan, the learned counsel while appearing for the appellant made efforts to make it a case of doubtful identity of the culprit. He further contended that the ocular witnesses are inimical and related to the deceased and also that the prosecution evidence is of full improbability and is in conflict with the medical evidence. Lastly the learned counsel pleaded for the commutation of sentence and placed reliance on Ajun Shah v. The State and Ali Khan v. The State two judgments of the Honourable Supreme Court reported as P L D 1967 SC 185 and P L D 1980 SC 109, in support of his argument.

11. The learned AA.-G. while appearing on behalf of the State repelled the arguments advanced by the learned defence counsel on merits. However, he could not do so on the point of mitigation.

12. After having heard both sides at some length we have also gone through the prosecution evidence very minutely. We find that it is a case where the appellant committed this crime in broad daylight in presence of the eye?witnesses namely Sadiq Shah P.W.6 and Bashir Shah P.W.7. The appellant was arrested by S.H.O. P.W.8 on 3-3-1987 i.e. the next day and he was dispossessed of the weapon of offence when he had gone in search of the appellant in the company of P.Ws.6 and

7. Certainly no person from the public was joined at Adda Kot Muzaffar but it is quite obvious that the police had no sufficient time to seek the services of any other person from the Adda because if the delay would have been caused it could have certainly been argued that the recovery of the crime weapon was foisted upon Baqir Shah appellant. The search of Baqir Shah appellant in the presence of eye-witnesses of the case does no: seem to be objectionable in view of the dictum laid down in the judgment reported as Safdar Abbas and others v. The State P L D 1987 SC 467 and a Sultan and others v. The State 1987 S C M R 1177. We also find that the weapon recovered from the appellant was found matched with the crime empties recovered from the place of occurrence which goes to prove that this pistol was used. The motive which has been furnished by the prosecution has partly been admitted by the appellant himself when he says that there is a blood feud between the parties and he has been involved in the case due to that.

13. The eye-witness account rendered by P.Ws.6 and 7 is quite cogent, consistent and natural and the same is being supported by the medical evidence as well as the evidence of strong motive. We have not been persuaded to discard the claim of the eye-witnesses of having witnessed the occurrence. We find that no suggestion was put to the eye-witnesses or to the Investigating Officer that blood-stained earth and the empty cartridges were not recovered from the place of occurrence. We are, therefore, convinced that the prosecution had established beyond reasonable doubt that appellant Baqir Shah had committed the murder of Munawar Shah deceased. The charge against him is established by ocular evidence of Sadiq Shah P.W.6 and Bashir Shah P.W.7 and is fully corroborated by the medical evidence and the recovery of blood-stained earth, empty cartridges P.8 and P.9 from the place of occurrence, pistol P.6 from the possession of the appellant, the reports of the Chemical Examiner, Serologist and that of Forensic Science Laboratory Exhs.P.M., P.N. and P.O., respectively and the other evidence of formal nature as discussed above.

14. In our view the appellant could not substantiate his defence plea and nor he produced any evidence in this regard.

15. While coming on the point of commutation of sentence as pleaded by the learned counsel for the appellant we have gone through the judgments cited at the bar pronounced by the Honourable Supreme Court, wherein it has been laid down tat in cases where family honour relatable to females is involved or there appears from the record a tradition of taking revenge hardening into family duty aggravated to the extent of being an obsession with the accused, the lesser, sentence is awarded.

16. In the instant case we find that Maqsood Shah, the brother of the appellant was murdered in the year 1982 by Munawar Shah deceased and one Iqbal Shah. Munawar Shah and Iqbal Shah were however, acquitted by the High Court and the appellant was pursuing the case in the Supreme Court against them. We find that F.I.R. Exh.P.L. was got registered against Munawar Shah deceased and one Iqbal Shah for the murder o: Maqsood Shah brother of Baqir Shah under section 302, P.P.C. Thus the reasons for lesser penalty as given in Anjun Shah's case would be applicable to the instant case.

17. The death sentence of Baqir Shah appellant is, therefore, commuted to imprisonment for life but we increase the fine from Rs.5,000 to Rs.10,000 or in default of payment of fine the appellant will have to undergo further R.I. for two years. On realization, this fine shall be paid as compensation to the heirs of the deceased as envisaged under section 544-A, Cr.P.C. The benefit provided under section 382-B, Cr.P.C. shall also be extended to the appellant.

18. Resultantly the murder reference is decided in the negative as the death sentence has not been confirmed and the appeal filed by the appellant is dismissed with the modification in the sentence and fine. N.H.Q./B-118/L ??????????? Death sentence reduced.