' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Murder Reference No,71 of 2001, Criminal Appeal No,639 of 2000 (Allah Ditta v. The State) and Criminal Appeal No,642 of 2001 (Noor Ahmad v. The State) as they arise out of the same judgment dated 11-12-2000 passed by the learned Additional Sessions Judge, Burewala whereby both the appellants in both the abovementioned appeals were convicted under section 302(b)/34, P.P.C. And sentenced to death each as Tazir with a compensation of Rs,50,000 each to be paid to the legal heirs of the deceased in default whereof to further undergone S.-I. For six months each.
2. Brief facts of the case as disclosed by the complainant Muhammad Saeed (P.W.6) are that on 11- 7-1995 at 8-30 a.m. The complainant had taken eight acres of land from Noor Muhammad; that complainant's brother Muhammad Akram deceased, Faqir Muhammad and Ahmad Din were scrupling in the cotton crop while Niamat had come there to inquire about the tractor; that his deceased brother went to drink water from the nearby Dhari of Nusrat Ali Lerrh when Allah Ditta and Dur Muhammad reached there on the bicycle; that Allah Ditta told his deceased brother as to why he was not returning their watch, so, they would teach him a lesson and started bickering with him; that Allah Ditta took out the handle of the hand pump and Dur Muhammad snatched the Kassi from his brother and started going towards the Dhari of Nusrat Larrh; that at that moment Noor Muhammad armed with hatchet and Zahoor Ahmad armed with spear came there and encircled his deceased brother; that Dur Muhammad raised Lalkara whereupon Allah Ditta (appellant) inflicted a hand pump handle blow upon his right "Daula", Noor Muhammad (appellant) inflicted a hatchet blow on his left ear who fell down; that on raising hue and cry the accused decamped from the spot; that Akram was shifted to the hospital but he succumbed to the injuries. The motive was stated to be a watch which was taken by complainant's father Nasir Ahmad from appellant Allah Ditta twenty days prior to the occurrence.
3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced nine prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. Pleaded not guilty and claimed trial.
4. Learned counsel for the appellants in support of this appeal contended that the motive was between father of the deceased, namely, Nazir Ahmad and Allah Ditta appellant but he was not caused any damage; that even Muhammad Aslam was not caused any harm to whom threat was extended by the accused in the morning of the day of occurrence; that the motive was fabricated by the prosecution; that even otherwise, it is a case of single blow attributed to each appellant i.e, one hatchet blow was attributed to Noor Ahmad appellant on the ear of the deceased while appellant Allah Ditta caused a water hand-pump handle blow on the right "daula" of the deceased; that none of the appellants repeated the blow; that the appellant Noor Ahmad acted in self-defence and the said stand was specifically taken by him in reply to Question No,3 in his statement recorded under section 342, Cr.P.C. And that these are the mitigating circumstances in favour of the appellants especially in favour of appellant Noor Muhammad.
5. On the other hand, learned counsel for the State submits that it is abroad-daylight occurrence; that both the appellants are named in the F.I.R., and specific roles of causing injuries on the person of the deceased have been attributed to them; that the presence of eye-witnesses at the place of occurrence has been established on the record; that the ocular account is corroborated by the medical evidence; that recoveries have been effected for both the appellants; that the motive is established; that the prosecution has proved its case against the appellants to the hit and that the appeals filed by the appellants against the captioned conviction and sentences are liable to be dismissed by this Court.
6. The occurrence in this case had taken place on 11-7-1995 at 8.30 a.m., the matter was reported to the police outside the police station on the same day at 10.00 a.m and the formal F.I.R. Was recorded at 10.30 a.m.
The prosecution, in order to prove its case, produced two eyewitnesses, namely, Muhammad Saeed (P.W.6) who is the real brother of the deceased and Ahmad Din (P.W.7) who is real uncle of the deceased. Although they are closely related to the deceased yet they cannot be termed as interested witnesses because it is settled by now that until and unless any strong motive or enmity is connected to such-like eyewitnesses their testimony cannot be discarded.
' In all there were four accused persons named in the case amongst whom two accused, namely.
Zahoor Ahmad and Dur Muhammad were acquitted from the case. Neither the complainant nor the State have filed appeal to assail acquittal of the said accused persons.
' As far as case of both the present appellants is concerned, the occurrence has almost been admitted by the defence during trial in their statements made by the appellants under section 342 Cr.P.C. But a specific stand was taken especially by Noor Ahmad appellant that he acted in his self- defence and inflicted a hatchet blow on the person of the deceased.
' It is pertinent to mention here that the motive was between father of the deceased, namely, Nazir Ahmad and Allah Ditta appellant over the dispute of a watch but he was not caused any damage.
Moreso, even Muhammad Aslam was not caused any harm to whom threat was extended by the accused in the morning of the day of occurrence. The said Aslam was not even an eye-witness in this case.
Coming to the role attributed to Allh Ditta appellant, we would like to mention here that he was not armed with any weapon of offence when he came at the place of occurrence and it has come on record that he picked up a water hand-pump handle and caused a simple injury on the arm "daula" of the deceased which was not fatal, meaning thereby that he had no intention at all to commit the murder of the deceased. Moreso, he did not repeat the blow. It is on record that he is behind the bar since 23-7-1995. He has faced the agony of protracted trial and appeal for a period of more than ten years. We are of the considered view that the sentence which he has already served is sufficient to meet the ends of justice. The amount of compensation awarded to him is set aside and he shall be released forthwith if not required to be detained in any other case. Criminal Appeal No,639/2000 filed by Allah Ditta appellant is disposed of in the above noted terms, his sentence of death is not confirmed and this Murder Reference is answered in the negative of his extent.
Now we are left with the case of Noor Ahmad appellant. He is attributed a single hatchet blow on the person of the deceased which proved fatal. Notwithstanding the fact that there was nothing to stop him from causing further injuries on the person of the deceased but he did not repeat the same coupled with the fact that the motive is not attributed to him.
He has admitted the occurrence but had taken a different stand. He took a specific plea to have acted in a self-defence but surprisingly this appellant did not receive even a scratch at the hands of the deceased, so, the defence has failed to substantiate the said defence plea as required under Article 121 of the Qanun-e-Shahadat Order, 1984 which was mandatory provision on the subject.
Even statement of DW-1 Mehran son of Sadiq is of no avail to this appellant because the same appears to be an abortive attempt to corroborate the said defence plea but failed. In the afore- referred circumstances, this Court is of the affirmed view that it is not a case of capital punishment to the extent of Noor Ahmad appellant. Accordingly, sentence of death of Noor Ahmad appellant is converted into imprisonment for life. He is extended benefit of section 382-B Cr.P.C. The amount of compensation and imprisonment in default whereof shall remain the same. Criminal Appeal No,642/2000 filed by Noor Ahmad appellant is disposed of in the above noted terms, his sentence of death is not confirmed and this Murder Reference is answered in the negative to his extent as well.