1989SCMR341 (PLP)

USMAN ALI SHAH, J.‑‑Leave to appeal was granted to the appellant through his jail petition to consider whether the High Court by its impugned judgment was justified in attributing the responsibility of the murder of Jiwan to the appellant and refusing him the benefit of doubt which was given to his brother Haider, the acquitted accused, in the same case but only substituted his sentence from death to life imprisonment against the judgment of the trial Court dated 21‑2‑1977. According to the F.I.R. one year prior to the occurrence Mst. Hawa daughter of Jamal was married to Washal (P.W. 6) and in exchange Mst. Aziz Mai sister of complainant Washal was married to Mahmood (appellant herein) who is brother of Jamal. About six months prior to the occurrence Washal (P.W.6) left his wife in the house of her parents and brought back his sister Mst Aziz Mai, wife of the appellant. The appellant tried his best to get his wife back but the complainant and his father Jiwan (deceased) did not agree to it. Lastly, when the appellant went to the house of the deceased to fetch his wife, he was told to bring his niece Mst. Hawa and then take his wife. On this the appellant said that his brother Jamal is not willing to send his daughter but instead is prepared to pay money for this. This suggestion was not agreed to by Jiwan (deceased). He insulted the appellant and refused to let his daughter sent with him. The appellant while leaving the house of his father‑in‑law threatened him that he would get his wife back at all costs. As a result on 14‑1‑1978 at about Peshiwela when Jiwan alongwith his wife Mst. Minhas (P.W. 7) was busy in cutting the Maize crop, appellant Mahmood and his brother Haider the acquitted accused, both armed with .12 guns appeared there and started altercation with them. On their altercation P.Ws. Washal, Mir Khan and Dur Khan (given up) were attracted to the scene of occurrence. The appellant Mahmood fired a shot at Jiwan which hit him above his buttocks and fell down. Haider the acquitted accused fired 2nd shot which hit the deceased on his left wrist. After commission of the crime both of them decamped from the spot. The deceased died in the way to hospital and his dead body was then brought to his home. While he was alive, he told the complainant that Mahmood accused threatened him that either he should send his wife Mst. Aziz Mai or he should meet the consequence. On the refusal of the deceased both the brothers fired at him. On 14‑11‑1974 the complainant Washal (P.W. 6) went to Police Station Harrand and lodged F.I.R. (Ex. PG) at 7‑00 p.m. which was recorded by S.I. Ahmad Yar (P.W. 9). After recording the F.I.R. the S.I. went to the house of the deceased where he prepared the inquest report and injury sheet and sent the dead body to the mortuary for post‑mcirtem examination. He also took blood stained earth from the spot and secured into a scaled parcel. He also prepared the site plans through Feroze Ahmad Patwari (P.W. 1). On 16‑11‑1974 at 4‑00 p.m. Dr. Shabbir Hussain M.O. Civil Dispensary Lalgarh performed the autopsy on the dead body of the deceased who found three fire‑arm injuries on the dead body. The doctor opined that the death of the deceased occurred due to injuries Nos. 1 and 2 which were grievous and sufficient to cause death in the ordinary course of nature. The doctor also extracted 14 pellets from the dead body. On 7‑12‑1974 Mahmood appellant was produced by one Maqbool, alongwith his licensed gun P. 5, before the Investigation Officer and Haider acquitted accused was produced by Mir Hazar Lamberdar. with his gun P. 7 before the said I.O. on 16‑12‑1974. After completion of the investigation formalities both the accused were challaned before the Court of Sessions Judge, D.G. Khan for their trial on the above‑mentioned charges. The accused, however, denied their guilt. Haider also denied the recovery of gun P.7 from him as well. In order to establish the guilt of the accused, the prosecution produced complainant Washal (P.W. 6), Mst. Minhas (P.W. 7) and Mir Khan (P.W. 8) in support of their case. The learned trial Judge relied upon the ocular account furnished by complainant and other witnesses corroborated by medical evidence and motive for the occurrence, found the appellant alongwith his acquitted co‑accused guilty of the offence; convicted them under section 302/34, P.P.C. and sentenced them to death with a fine of Rs. 3,000 each which if realized be paid to the heirs of the deceased or in default to suffer further one year rigorous imprisonment each, vide his judgment dated 21‑2‑1977. Against their convictions ad sentences both the accused filed Criminal Appeal No. 257 of 1977 before the Lahore High Court, Lahore. A learned Division Bench of the said Court after a thorough examination of the evidence of the eye‑witnesses and judgment of the trial Court, found the case against Haider accused highly doubtful and acquitted him and also substituted the death sentence of Mahmood appellant to life imprisonment on the following reasons:‑‑ "In so far as the shot fired by Haider appellant was concerned Washal said that his father was falling when Haider fired at him. Mst. Minhas and Amir said that the deceased had already fallen on the ground when Haider fired at him. Further according to Mst. Minhas the deceased lay with his face upwards when he was Bred at by Haider. A witness may not be able to give exact posture of the victim and seat of each fire‑arm injury when the attack is on. However, in so far as Haider appellant was concerned he was not directly concerned with the motive in this case. It was his brother Mahmood whose wife was detained by the deceased. As we have already observed that the three injuries could be the result of a single shot which was more probable as explained earlier and it also fits in with the medical evidence. In this view of the matter and the fact that Haider is closely related to Mahmood the main accused in this case, the case against him was not free from doubt. But the case against Mahmood appellant stood on a different footing. The post‑mortem examination was held at 4‑00 p.m. on 16‑11‑1974 i.e. 3rd day of the occurrence. According to the doctor the time that lapsed between death and post‑mortem was 36 to 52 hours. This delay in the post‑mortem examination would not go to show that it was a blind murder and the dead body remained unnoticed. P.W. 4 Muhammad Wakeel. F.C. who escorted the dead body explained the delay in post‑mottem examination. According to him he took the dead body from the house of the deceased to Lalgarh hospital but as the doctor was not available, he proceeded with the dead body towards Jampur and when he had travelled about 33 miles from Lalgarh he met the doctor on the way and instead of proceeding further he returned to Lalgarh and on the same day entrusted the dead body to the doctor who held the autopsy on the next day at 4‑00 p.m. It was for the doctor to explain why he did not conduct the post‑mortem examination late in the evening of 15th or early next morning. No question was put to him in this context. However, in view of the explanation given by Muhammad Wakeel, F.C., we are of the view that delay in the post‑mortem examination, did not adversely affect the other evidence in this case. Mahmood appellant alone had the motive against the deceased who had detained his daughter i.e. Mahmood's wife and thus disrupted appellant's married life; though Mahmood made all possible efforts to get her back. For the reasons given in the earlier part of this judgment we are of the view that no one other than Mahmood was responsible for the crime. We, therefore, maintain his conviction and give the benefit of doubt to Haider and acquit him." As regards the question of substituting of sentence from death to life imprisonment of the appellant Mahmood is concerned, the learned High Court held that the appellant had tried his level best to get his wife back but the deceased was adamant not to let her go back with her husband, thus frustrating his family life for no fault on the part of the appellant. Therefore, the sentence of death of the appellant was substituted by life imprisonment and the learned appellate Court revoked fine imposed on him. We have carefully considered the arguments raised before us but we do not find any force in them. The parties are closely related and there is no background of previous enmity. The occurrence took place because the deceased had detained his daughter Mst. Aziz Mai, wife of the appellant and to get her back the appellant went a number of times to the house of his father‑in‑law but did not receive any positive reply. On one occasion when the appellant went to the house of the deceased to make an attempt to bring his wife, he was disgraced by the deceased and returned all alone. Under the circumstances, we have come to the conclusion that on the day of occurrence the appellant alongwith his brother B Haider might have gone to the deceased when he alongwith his wife Mst. Minhas was busy in cutting the maize crop, with the intention to make him agree to let his daughter go with him but during the course of talking an altercation ensued between them at the spur of moment. As a result the appellant became infuriated, picked up his gun and fired at the deceased fatally. There seems to be no preplanned intention of the appellant and of his brother, when they saw that both the deceased and his wife are away from home and are busy in cutting of maize crop in the field, otherwise they could have easily taken Mst. Aziz Mai from home by using little force but instead they preferred to solve the problem amicably. But what happened is just because of the reluctant attitude of the deceased which worsened the situation to that extent. We have examined the judgment of the learned Division Bench of the High Court and noticed that the learned Judges have thoroughly sifted the evidence of the P.Ws, and examined the finding of the trial Court. Thus we final ourselves in agreement with the view taken by the learned Judges of the High Court. There was satisfactory reason for substituting the death sentence of the appellant to life imprisonment. We do not see any justification to interfere with their impugned finding. In the light of what has been discussed above, we do not find any force in this jail appeal which is accordingly dismissed: M.A.K./M‑676/S Appeal dismissed.