' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,426 of 2001 filed by Muhammad Ajmal, who was convicted and sentenced by the learned Sessions Judge, Rajanpur, dated 4-5-2001 as under:-- ' Death with compensation of Rs,50,000 or in default six months' R.I. Under section 302(b), P.P.C.
Murder Reference No,376 of 2001 for confirmation or otherwise of death sentence of appellant shall also be answered through this single judgment.
2. Precisely, the facts of the instant case as mentioned in F.I.R. Exh.P.A. Lodged on the statement of Shakir Mehmood complainant/P.W.7 by Mazhar Hussain, S.-I./P.W.9 on 18-9-1997 at 8-00 a.m. Are that father of the complainant namely Ghulam Muhammad was running a cloth shop in the market of Dr. Khalid. His father has constructed three shops in front of his house. One of the shops was given by his father to Muhammad Ajmal, the accused wherein the accused was temporarily living. His father asked Muhammad Ajmal for many a time to vacate the shop, as he (father of the complainant) wanted to give it on rent but Muhammad Ajmal refused to do so. On 17-9-1997 at 5- 00 p.m. Shakir Mahmood-complainant along with Dilbar Hussain and Taj Mehmood P.Ws., as the latter had come to see them from Jampur, who was maternal uncle of Ghulam Muhammad, deceased was standing near the shop of Abdul Shakoor whereas Ghulam Muhammad came out of his house and was unlocking the 'shop wherein Muhammad Ajmal was living. In the meanwhile, Muhammad Ajmal came there from the northern side. He was having an iron tyre lever in his hand.
He gave three successive blows with that tyre lever to Ghulam Muhammad, who fell down. The complainant along with P.Ws. Tried to apprehend the accused, who ran away towards north along with the weapon of offence. They attended to Ghulam Muhammad, who was unconscious on receipt of the above said injuries. They took Ghulam Muhammad to the Civil Hospital, Rajanpur, for treatment and while they were shifting to Nishtar Hospital, Multan, he succumbed to the injuries on the way at 11-30 p.m. It is also mentioned in the F.I.R. That as the condition of the deceased at that time was precarious, therefore, he could not give the information to the police in time.
3. After registration of formal F.I.R. Investigation of the case was taken over by Mazhar Hussain, S.- I./P.W.9. As the complainant had brought the dead body at Police Post, Fazilpur, he took over the same and prepared injury statement Exh.P.E. As well as inquest report Exh.P.F. After sending the dead body for post-mortem examination, he proceeded to the place of occurrence and collected blood stained earth vide memo. Exh.P.G., tyre lever P.W.2, vide memo. Exh.P.H. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A. After tendering in evidence reports of Chemical Examiner Exh.P.J. And that of Serologist Exh.P.K. Closed the prosecution case.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant submits that the shop in question was in possession of the appellant and the deceased wanted to get the same so he asked many times to the appellant to vacate the same but he did not; that according to the contents of F.I.R., the appellant used to reside in that shop that on the day of occurrence the deceased was opening the lock of that shop, in the meanwhile, the appellant came there and he gave three injures with tyre-lever; that the deceased was taken to Civil Hospital, Rajanpur, thereafter, when he was being taken to Nishtar Hospital, Multan, he died during night in between 17/18-9-1997 at 11-30 p.m.; and that in view of the above circumstances it is not a case of death sentence, which may be converted into life imprisonment because the act of the deceased was illegal.
6. On the other hand, the learned counsel for the complainant submits that though the deceased and the appellant were real brothers yet if the deceased had committed an illegal act then the appellant also committed the same mistake; and that the appellant has killed his real brother, thus it is a case of death sentence; that no leniency can be shown in the matter of sentence of the appellant. He supports the judgment of the learned trial Court.
7. We have heard the learned counsel for the parties and gone through the record of the case carefully. The occurrence had taken place on 17-9-1997 at 5-00 p.m. And the matter was reported to the police on 18-9-1997 at 8-15 a.m. The distance between Police Station and the place of occurrence is 4 Kms. If the deceased wants to get his shop vacated from the appellant he should not have taken the law in, his own hand without approaching any Court or filing any ejectment petition or approaching Councillor or Nazim of the area, so the Punchayat could have decided the dispute amicably. The deceased also took the law in his own hand and started opening of the lock of the shop, where the appellant was also residing. In the circumstances of the case, we are of the opinion that on seeing this, the appellant, who was not armed with any fire-arm or sharp-edged weapon, caused injuries with tyre-lever on the person of the deceased, which, unfortunately, proved fatal. There are two sentences in section 302(b), P.P.C. In our considered opinion, in the circumstances of the case, it is a case of lesser punishment. Thus, while maintaining the conviction under section 302(b), P.P.C., we convert A the sentence of death of the appellant into imprisonment for life with benefit of section 382-B, Cr.P.C. The sentence of compensation and imprisonment in default thereof is, however, maintained in toto. This appeal is dismissed. Death sentence is not confirmed. Murder reference is answered in the negative.