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(On appeal from the judgment of the Lahore High Court, Lahore, dated 11‑7‑1975, passed in Criminal Jail Appeal No. 777/Murder Reference No. 205 of 1973).

---S. 302 read with S. 300, Exception 1‑Murder‑Grave and sudden provocation‑‑‑Deceased dying as result of firearm injuries found on her chest by Medical Officer‑‑‑Prosecution case being supported by disinterested eye‑witness account of a witness, fact of recoveries of crime weapon and empty being disbelieved by trial Judge and High Court in no way affecting prosecution case‑Likewise fact of E. I. R. having been seemingly recorded by Investigating Officer after making inquiry on spot of no help to accused appellant due to F. I. R. being no substantive evidence‑F. I. R. even if ignored, authentic, convincing and unblemished evidence still remaining on record‑Appellant being married to younger sister of Mst. B living wife of one W bound to have entertained motive to kill deceased not only because of her living in adultery with W but also because of married life of Mst. B having been made miserable‑Appellant in his Jail appeal also admitting to have murdered deceased but stating to have done so under grave provocation for her living in adultery with W‑Admission 'of accused alone though not to be taken into consideration against him but in context of rest of evidence surely explains story of he alone being responsible for crime‑Appellant having been objecting to such open adultery from time to time but on fateful day appears to have come to make final attempt to persuade W to mend his ways but seemingly being frustrated in such attempt lost his temper and murdered deceased Sentence of death in circumstances, held, not called for and reduced to transportation for life.

Sadiq Muhammad Warraich, Advocate for Appellant.

Sh. Riaz Ahmad, Assistant Advocate‑General (Punjab) for the State.

Date of hearing : 6th November 1978.

‑This Jail appeal is directed against the judgment of the Lahore High Court, dated 11‑7‑1975 and arises in the following circumstances

In consequence of F. I. R. (Exh. P. A.) lodged at the Vehari Police Station, District Multan, by Abdul Razaq (P. W. 7) at 2‑30 a.m. on 21‑10‑1971, appellant Hakim Ali was arrested for having murdered Mst. Walian in her house on the night between October 20/21, 1971 with the aid of a pistol. According to the prosecution, the background which ultimately led to the said tragedy was that the deceased was married to Umar Din, the brother of Wali Muhammad. (P. W. 9), but after the death of Umar Din, Wali Muhammad started living with her saying that they had entered into a wedlock. However, appellant Hakim Ali, who was married to the younger sister of Mst. Begum (the living wife of Wali Muhammad) did not accept the version of Wali Muhammad and resented his living with the deceased in adultery. For quite sometime, Hakim Ali is said to have tried to persuade Wali Muhammad to mend his ways discontinue his said objectionable association with the deceased, and to go back to his wife Mst. Begum. But it seems that the efforts of Hakim Ali in that behalf did not succeed, and consequently he is said to have shot the deceased in her own house, where he had stayed for the night as a guest, and thereafter managed to run away from the scene of occurrence.

In the trial Court the prosecution relied on the eye‑witness account of Abdul Razaq (P.W. 7) Wali Muhammad (P. W. 9) and Abdul Majid (P. W. 8). It also relied on the medical evidence, the motive, the recoveries, namely the pistol and an empty of 12 bore with which the deceased is said to have been shot to death. In his statement under section 342, Cr. P. C., however, Hakim Ali denied the whole case of the prosecution. He admitted that he was married to the sister of Mst. Begum (the living wife of P. W. Wali Muhammad), but contended that after the death of her husband, the deceased had developed illicit relations with. Wali Muhammad; that his wife Mo. Begum thus left his house; and that Abdul Razaq (P. W. 7) (the son of the deceased) and one Ramzan (the brother of Mst. Begum) were responsible for the murder of the deceased, as both of them were aggrieved of her adulterous connections with Wali Mohammad.

The learned trial Judge, by a very well‑considered order, believed the evidence of the prosecution and consequently convicted the appellant under section 302, P. P. C., and finding no mitigating circumstances in his favour, sentenced him to death. In appeal and in the confirmation proceedings in the High Court, the learned Judges agreed with the judgment of the learned trial Judge and dismissed the appeal of Hakim Ali. Leave to appeal to Hakim Ali was granted by this Court for the following reasons :‑

"There is only one eye‑witness of the occurrence namely Abdul Razzaq P. W. 7 who is the son of Mst. Wallian deceased. It is also evident from his testimony that the Police Officer at first visited the spot, made the enquiries and thereafter he recorded the statement of the informer at the Police Station. This shows that the F. I. R. was recorded after deliberations. The High Court also disbelieved the recovery of the pistol (Exh. PU) and the empty (Exh. P. 8) and attached no importance to the opinion of the expert to the effect that the empty was fired through the pistol. In my opinion this is a fit case for leave to appeal from the judgment of the High Court and the delay in the application be condoned."

We have heard Mr. 0.Sadiq Muhammad Warraich, the learned counsel for the appellant and Sheikh Riaz Ahmad, the learned Assistant Advocate General, for the State. By going through the judgment of the High Court as well as the evidence on record there seem to be no doubt that the only authentic eye‑witness in this case was Abdur Razaq (P. W. 7); that the F. I. R. of the occurrence had been recorded by the Investigating Officer having made enquiries at the spot: and that the recoveries had been rightly disbelieved by the High Court. Seemingly, therefore, it was considered to be a fit case to grant leave to Hakim Ali to consider the question if upon the evidence of the sole eye‑witness, the conviction of the appellant on a capital charge could be sustained. By examining the evidence in this case however, we are satisfied that the appellant had been rightly convicted for the murder of deceased Mst. Walian. Abdul Razaq (P. W. 7), a younger lad of about 18 years of age, is the son of the deceased and there is nothing in the evidence that he had any ill‑will or grudge against the appellant. His evidence, which the two Courts have rightly believed to be true, is that on the night of the occurrence, the appellant was staying in the house of his mother as guest, that after taking their meals he; his deceased mother and the appellant retired to their cots lying in the verandah of the house, P. W: Wali Muhammad went to sleep on a cot lying inside the room; that at about mid‑night, the appellant got up from his cot and went to empty his bladder. But when he returned, he stood by the cot of his late mother and fired at her from close quarters and thereafter ran out of the house,; that having seen his mother being shot by the appellant, he jumped out of the cot and started chasing the appellant ; that out in the street he was joined by Abdul Majid (P. W. 8), but they could not apprehend the appellant and he succeeded to make himself scarce. In his cross‑examination, however, nothing was suggested to the witness that the appellant had not stayed in the house of his mother for the night or that he had brought a false charge against him.

Abdul Majid (P. W. 8), who is a neighbour of P. W. Abdul Razaq, is an independent witness having no grudge or malice of any kind against the appellant. He has supported the case of the prosecution saying that on the evening of the night of the occurrence he had seen the appellant in the house of the deceased as also that right at the time of occurrence he had just returned from his shop rather late and was emptying his bladder, when he heard the report of a shot from the house of the deceased at which he came out in the street and saw the appellant running followed by Abdul Razaq (P. W. 7); that in order to apprehend him he also joined Abdur Razaq in pursuit but they did not succeed with the result that the appellant managed to make himself scarce.

P. W. Wali Muhammad has also corroborated the evidence of Abdur Razaq. His evidence is that after his marriage with the deceased (which version, however, has been rightly disbelieved by the High Court), he started living with her in the same house; that the appellant who was married to the younger sister of his (Wali Muhammad's) wife, namely, Mst. Begum resented his said marriage and tried to persuade him to divorce the deceased, but he did not oblige him; that on the night of occurrence the appellant was staying in the house of the deceased as a guest, that at about mid‑night, he heard the report of a shot from outside in the verandah, at which he got up, but found the door of the room chained from outside; that through the crevices of the door, however, he saw in the light of the burning lamp, the appellant running away followed by Abdur Razaq; that after a while when Abdur Razaq returned to the house, the door of his room was unchained and when he came out he saw that Mst. Walian had already died.

Now there is no dispute that the deceased bad died as a result of the fire‑arm injuries found on her chest by the Medical Officer. It is true that the recoveries of the crime weapon and the empty have been disbelieved by the trial Judge, and the High Court both. But this would in no way affect the case of the prosecution which is supported by the disinterested eye‑witness account of Abdur Razaq. Similarly, the F. I. R. seems to have been recorded by the Investigating Officer, after he had made enquiries at the spot, but again this would not help the appellant. It is well established that F. I. R. is not substantive evidence. Ignoring the F. I. R. in question, therefore, there remains on the record of the case authentic, convincing and unblemished evidence in support of the case of the prosecution. We are, therefore, satisfied that the appellant had indeed come to the house of the deceased on the evening of the night of occurrence, had stayed for the night as a guest in the house, and had shot the deceased to death sometime in the middle of the night. In this view, even if the evidence of P. Ws. Abdur Razaq, Majid and Wali Muhammad is excluded from consideration the prosecution must still be held to have proved its case against the appellant beyond any reasonable doubt.

We also agree with the finding of the High Court that the appellant being married to the younger sister of Mst. Begum, the living wife of Wali Muhammad, must have entertained the motive to kill the deceased no by only because she was living in adultery with Wali Muhammad, but also because the married life of Mst. Begum had been miserable and embarrassing. It would be interesting to note that even in the Jail Appeal filed by the appellant he has admitted to have murdered Mst. Walian, but says that he had done so under grave provocation as she was living in adultery with P. W. Wali Muhammad. Now it is true that this admission of the appellant alone cannot be taken into consideration against him. But when seen in the context of the rest of the evidence on record it surely explains the case of the prosecution that he alone was responsible for the crime.

Having said this, however, the next question which falls for consideration is whether in view of the facts and circumstances‑ of this case the appellant can be said to have been properly and adequately awarded the sentence of death. We feel that the answer must be in the negative. The evidence would show that after the death of her husband almost five years ago, the deceased and P. W. Wali Muhammad had been living together in open adultery to which objections were taken by the appellant from time to time. From this it would follow that the appellant on the one hand and Wali Muhammad and the deceased on the other had evidently no love lost between them, and so to presume that he had paid them a courtesy call, and had stayed with them for the night as a welcomed guest would by out of the question. Therefore, the only object for which he seems to have visited their house would be to make one final attempt in persuading Wali Muhammad to mend his ways, and discontinue his adulterous association with the deceased, but it seems that after having talked to him in that behalf he was evidently frustrated with the result that his anger got the better of him which consequently led him to murder the deceased. In the mosaic of the social life, in which the bulk of our people in this count it are living, the act of the appellant must be viewed in the proper perspective. And when so viewed, we feel that upon the peculiar facts of this case, the sentence of death awarded to him was not the proper sentence.

For all these reasons, this appeal is dismissed, with this modification only that we reduce sentence of death awarded to the appellant to the one of transportation for life.

Appeal dismissed but sentence reduced.

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