BASHIR AHMAD Versus THE STATE

MUHAMMAD ZAFARULLAH, J. -Bashir Ahmad.32, appellant has been sentenced to death and to pay a fine of Rs. 5,000 or in default to undergo R. I. for two years, one half of the amount of fine to be paid as compensa tion to the heirs of the deceased. He was accused of committing the murder of Zulfiqar son of Muhammad aged 22. This is an appeal against his conviction and sentence and is being disposed of together with the reference for confirmation of the sentence of death.

2. The appellant felt aggrieved, as the deceased had turned out his sister Mst. Manzuran from her house, on suspicion of lack of chastity. She was the wife of Zafar, a brother of the deceased and had lived in the house of her in-laws for 8 years but had no children.

3. The present occurrence took place on 26th October, 1975 at about 12 noon in the area of village Shahpur, Police Station Pirmahal, District Faisalabad. The F. I. R. was recorded at the Police Station at 3.00 p. m. on the same day at the instance of Haitam (P. W. 11) and was recorded by Anwar Khan, Muharrir Head Constable. According to the F. I. R., the deceased in the company of Haitam P. W. was returning to his house, carrying parali, when the appellant appeared with a gun from a maize field and shot at Zulfiqar deceased. This hit him in the back, as a result of which he fell down. Pehlwan P. W. and Ahmad Ali (not produced), who were working in the nearby fields were also attracted by the gunfire. They and Haitam P. W. tried to catch-hold of the appellant but he ran away throwing his gun at the spot. Zulfiqar died a few hours later. He was taken to the hospital at Sindilianwali, but the doctor advised that he should be taken to Faisalabad as he was in a serious condition. Zulfiqar died while arrangements were being made for his transport to Faisalabad and therefore the dead body was brought back to the place of occurrence. The medical evidence shows that the deceased died on account of a gunshot injury hitting the back and coming out in the front.

4. At the trial the story narrated by the prosecution is more elaborate and has undergone some improvement. It has been stated that the appellant was given a chase by Haitam and Pehlwan P. Ws. as well as by Muhammad P. W. the father of the deceased who was also attracted to the place and joined in the chase. It has been stated that Sajjad Hussain P. W. was coming from the opposite direction on a tractor. The P. Ws. shouted to Sajjad that the appellant was running away after killing Zulfiqar Sajjad stopped the assailant and took the gun from him and advised him to go to the nearby behni of his sister. The appellant had allegedly admitted his guilt before Sajjad P. W.

5. The appellant was arrested on 28th October, 1975. He produced licence P. 8 which pertains to gun P. 1, stated to be the weapon of offence. Gun P. 1 was produced by Sajjad Hussain P. W. on 26th October, 1975.

6. The prosecution relies on the testimony of Haitam (P. W. 11) the complainant, Pehlwan (P. W. 12) apart from Sajjad Hussain (P. W. 9) and Muhammad (P. W. 10). It also relies on the evidence of the recovery of gun which the appellant allegedly threw at the place of occurrence. It is a licensed gun and belongs to the appellant, who produced its licence P. 8 before the Police at the time of his arrest.

7. Haitam (P. W. 11) has stated at the trial that Bashir Ahmad appellant fired at Zulfiqar deceased when the deceased and Haitam P. W. were walking in the same direction about three kanals apart. The shot hit Zulfiqar on the back and he fell down. Pehlwan P. W. and Ahmad Ali (not produced) also witnessed the occurrence and joined him in trying to catchhold of the appellant who ran towards Dunga. While they were chasing the appellant, Muhammad P. W., the father of the deceased also joined them when he was informed of the occurrence. Sajjad P. W. who was coming on a tractor was also told of the occurrence. He also challenged the appellant, but the appellant ran towards the behni of Karima after throwing the gun there. Pehlwan P. W. stated at the trial that he was accompanying Haitam to Haitam's house in order to borrow his plough when he saw the occurrence. He repeats the story of the chase and the appearance of Muhammad and Sajjad P. Ws. at the scene and states that the appellant ran away towards the behni of his sister after leaving the gun at the place. Sajjad P. W. in his testimony stated that he saw the appellant running from his opposite direction chased by 5 or 6 persons. The appellant had a gun with him and on his inquiry as to why was he running he told the witness that the appellant had fired at his enemy Zulfiqar. Sajjad P. W. further states that he asked the appellant to hand over the gun to him and to go to the behni of his sister which was near the place. Muhammad P. W., the father of the deceased has given the same story.

8. In his statement under section 342, Cr. P. C. the appellant has made a complete denial and has contended that he has been falsely implicated on account of the fact that he had not agreed to proposal of marriage between Zulfiqar who was a bad character and his cousin.

9. The names of Sajjad Hussain and Muhammad P. Ws. do not figure anywhere in the F. I. R. There is no mention of chase in the F. I. R. either. The F. I. R. speaks of an attempt to catch-hold of the appellant by Haitam and Pehlwan P: Ws. and Ahmad Ali, but does not talk of a chase. The F. I. R. also indicates that the appellant threw away his gun at the spot. The story at the trial, however; indicates that there was a chase and Muhammad, the father of the deceased had also joined in it and that the gun was handed over by the appellant to Sajjad Hussain P. W. and while doing so the appellant had admitted his guilt before this witness. Sajjad P. W. is also stated to have produced gun P. 1 before the Police which he had taken from the appellant when the appellant was running away. This is a licensed gun and the licence was produced by the appellant himself when he was arrested on 28th October, 1975. The gun relating to this licence was produced by Sajjad Hussain. His name does not figure in the F. I. R. Yet another significant aspect of the story of recovery of gun is the fact that it bad a live cartridge in its chamber when Sajjad took the gun from the appellant. It is a single barrel gun and only one shot was fired. Under these circumstances the chamber of the gun should have contained one empty-cartridge and not a live one. On the other hand, if the appellant had re-loaded the gun, of which obviously there was no opportunity, an empty should have been found near the place of occurrence. No empty was found however. In view of these circumstances, the very presence of Sajjad and Muhammad P. Ws. becomes doubtful and consequently the story of the prosecution as regards the confession of the appellant before Sajjad P. W. and the recovery of the weapon of offence becomes unreliable.

10. Haitam and Pehlwan P. Ws. on the other hand, deserve a different treatment. Pehlwan has been mentioned by Haitam in the F. I. R. as the other eye-witness. It is true that Haitam and Pehlwan are both related to the deceased. Haitam is an uncle and Pehlwan's mother and the grandmother of the deceased were sisters. It is also true that they have made room for introduction of Sajjad and Muhammad P. Ws. in their deposition at the trial, but this will not justify a total rejection of their evidence, particularly when these two witnesses have no previous enmity with the appellant. The story as narrated in the F. I. R. appears to be true. There is no delay in lodging of the F. I. R. The presence of Pehlwan near the place of occurrence is natural as the thrashing floor of his paddy is only two killas away. The fact stated in the F. I. R that Pehlwan was attracted by the gunshot, fits in with the circumstances of the case. The story narrated by Haitam is quite natural. He was walking in the same direction behind the deceased when the appellant fired at the deceased. He tried to catchhold of the appellant, but he ran away.

11. As stated above, the eye-witnesses have no enmity with the appellant. There is, therefore, no reason for false implication. There is also no reason why the P. Ws. should substitute the appellant for the reai culprit. It is a broad daylight occurrence and there is no dispute about the identification. The story narrated by Haitam P. W. supported by the version given by Pehlwan, as discussed above, appears to be the whole truth.

12. The question of sentence has specifically been raised by the learned counsel and this requires consideration. The motive for the occurrence is the turning out from the house of Mst. Manzuran by they deceased on the suspicion of being of loose character. The murder was committed to avenge the insult to family honour when the sister of the appellant was turned out of the house after eight years of marriage with a label to her character. An average person tends to lose all sense of proportion when the chastity of his sister is questioned. The sentence of death under these circumstances will not be the proper sentence, nor, will a sentence of fine be appropriate.

13. In view of the above discussion the appeal is dismissed but the sentence of death is not confirmed. The sentence instead is altered to that o: imprisonment for life. The sentence of fine is also set aside.

Order accordingly