MUHAMMAD AMIN SHAH Versus THE STATE
JAVID IQBAL, J. ‑Muhammad Amin Shah son of Chiragh Ali Shah, aged 27 years, Foot Constable, has been convicted under section 302, P. P. C. for the murder of Muhammad Saeed, Head Constable, and sentenced to death vide judgment dated the 13th of January 1972 of the Additional Sessions Judge, Sheikhupura. His appeal as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place at 12‑30 p .m. on the 24th of February 1970, near the building National Bank of Pakistan, Sheikhupura, at a distance or one furlong from Police Station City Sheikhupura. F. I. R. (Exh. P. A.) was lodged by Samundar Khan F. C. P. W. 12, on the same day at 12‑45 p.m. at Police Station City Sheikhupura, and it was recorded by Nur Muhammad S. I. P. W. 15.
3. The motive for offence as stated in the F. I. R. is that the appellant, being a member of Police Guards, posted at National Bank of Pakistan, Sheikhupura, had absented himself from duty and the deceased who was incharge of the guards had reported against him. It is stated in the F. I. R. that on this account there was an altercation between the two which led to the murder of the deceased. There is a further elucidation of motive provided by Muhammad Jamil F. C. P. W. 13, who had stated in the cross -examination that the deceased in the course of the altercation had abused the appellant by saying that the appellant had remained away from duty because he was sleeping with his mother and that this led to the occurrence.
4. The occurrence is reported to have taken place in the following manner; Samundar Khan P. W. 12, Muhammad Jamil P. W. 13, Nazir Ahmad P. W. 14 as well as the appellant were all Foot Constables posted as guards of the National Bank of Pakistan at Sheikhupura. The deceased was a Head Constable and incharge of the guards. On the duty of occurrence the appellant and Muhammad Jamil P. W. were absent from duty and their absence was reported by the deceased in the roznamcha. At 12‑10 p.m. the appellant and Muhammad Jamil P. W. came to the guard‑room of the National Bank of Pakistan. The appellant was in uniform and was carrying 303 ride as well as bandolier containing 50 live cartridges. He reported on duty. Shortly thereafter, in the presence of Samundar Khan, Muhammad Jamil and Nazir Ahmad P. Ws., the appellant started quarrelling with the deceased as to why he had reported him as absent. They all came out from the guard room. The aforementioned three P. Ws. tried to pacify the appellant and the deceased started going in the direction of Company Bagh. Suddenly the appellant loaded his rifle and fired at the deceased on his back while he was at a distance of 5/6 karams from him. The deceased fell down and died on the spot. The three P. Ws. apprehended the appellant on the spot, alongwith the rifle and bandolier. One crime empty had fallen on the spot.
5. Dr. Imtiaz Ahmad Chaudhry P. W. 1 conducted post‑mortem examination on the dead‑body of Muhammad Saeed at 4‑00 p.m. on the 24th of February 1970, and found the following injuries on his person (1) an entry bullet wound on lower part of left chest. The edges were charred, and (2) exit wound of the bullet over the front of right chest at the level of pit of the stomach. In his opinion, injuries Nos. (1) and (2) were the entry and exit bullet wounds caused by firearm. The death had occurred due to haemorrhage and tearing of the heart and liver as a result of injuries Nos. (1) and (2) which were sufficient to cause death in the ordinary course of nature. According to him, the fire‑arm had been used from a distance of 10/15 feet and that the charring in case of rifle firing could occur even from a distance to 10/15 feet.
6. The prosecution has produced three eye‑witnesses of the occurrence, namely, Samundar Khan, Muhammad Jamil and Nazir Ahmad P. Ws. who were all F. Cs. and guards‑colleagues of both the appellant as well as the deceased.
7. The appellant was arrested by Nur Muhammad S. I. P. W. 15 soon after the occurrence as he bad already been apprehended by the P. Ws. Crime empty P. 4 was picked up from the spot and taken into possession vide memo. Exh. P. D. dated the 24th of February 1970. The attesting witnesses besides Nur Muhammad S. I. P. W. are Nazir Ahmad and Muhammad Jamil P. Ws. Rifle P. 1 recovered from the appellant was taken into possession alongwith the bandolier vide memo. Exh. P. C. dated the 24th of February 1970, attesting witnesses being the same. According to the report Mufti Munir, Fire Arms Expert, P. W. 2 crime empty P. 4 had been fired from rifle P. 1 (his report is Exh. P. R.)
8. The case of the prosecution is based on the ocular testimony, corroborated by the recoveries, report of the Fire Arms Expert and the medical evidence.
9. The appellant in his statement before the trial Court gave the follow ing version of the occurrence:‑
"In fact the deceased had come to me at the point where I was standing on Guard Duty and started to admonish me as to why I was absent. I, however, told him that I had gone to take meals. He then retaliated by saying that I had been sleeping with my mother. I strongly protested on this utterance of the deceased. He was enraged and started to abuse me. He threatened me that he would go to the Police Lines and make another report against me Simultaneously he said "Abb men teri mann nun chodunga". I lost my temper. The deceased then asked Samundar Khan P. W. who was standing nearby to take charge from me. Samundar Khan P. W. tried to collect the rifle and the bandolier from me but I refused. He then tried to snatch the rifle and the bandolier from me by force over which there was a struggle between us. In the course of that struggle the rifle accidentally went off. At that time the deceased was gong towards the Police Lines and was hit by accident at his back."
10. We have carefully gone through the record and heard learned counsel for both the sides in detail. The occurrence is not denied by the appellant. The defence version is (a) the rifle went off accidentally and (b) that the appellant had acted under grave and sudden provocation. Learned counsel for the appellant argued that the appellant was a Syed and that Muhammad Jamil P. W. had stated in his cross‑examination that in the course of the altercation between the appellant and the deceased, the deceased had taunted him that he remained absent because he was sleeping with his mother. It was submitted that the way in which the taunt had been given, gave rise to sudden provocation and that, therefore, the appellant was deprived of the power of self‑control and killed the deceased. It was argued that the case of the appellant was covered under Exception I to section 300, P. P. C. and that his conviction should be altered from section 302, P. P. C. to section 304(1), P. P. C. in the circumstances. Reliance is placed on Mir Afzal v. The State (1972 P Cr. L J 1025). We do not agree with learned counsel. The facts of the authority referred to by learned counsel were quite different from the fact of the present case. Even in that case it was held that a mere abuse would not by itself constitute ground for giving rise to grave and sudden provocation. In that case grave and sudden provocation had been offered by the deceased in the form of abuse and assault on the appellant in a street in the presence of other persons. In the present case, there had been no assault. Even other wise, the appellant being member of the police force is expected to conform to discipline in respect of his superiors. He had absented from his duty and when he was marked absent by his superior i.e. the deceased he quarrelled with him while he was in uniform and in the course of alterctition he fired at the deceased with the rifle he carried. In the circumstances his cage was not covered by Exception I to section 300, P. P. C. In our view, the prosecution leas succeeded m establishing its case against the appellant and he was rightly convicted under section 302, P. P. C. His conviction under section 302, P. P. C. is, therefore, maintained. However, taking this fact into consideration that the act of the appellant was not premeditated and that he had so acted because the deceased had given no abuse to him using filthy language, we are of the opinion that the award of lesser penalty in the circumstances would have been sufficient to meet the ends of justice. We accordingly alter his sentence from death to that of imprisonment for life. With this modification the appeal is rejected.
11. The sentence of death awarded to the appellant is not confirmed.
Order accordingly.