Ijaz Ahmad Chaudhry.--This judgment will dispose of Crl. Appeal No, 1145 of 2001 Med by Muhammad Ameer and Nazar Muhammad alias Nara appellants against their convictions and sentences and Crl. Revision No 607 of 2001 filed by Sher Muhammad complainant alongwith Murder Reference No 423 of 2001 which was sent by the learned trial Court under Section 544-A Cr.P.C. for confirmation of death sentence of Nazar Muhammad alias Nazra as all these matters have arisen from the judgment dated 9.7.2001 passed by the learned Additional Sessions Judge. Sargodha through which he has convicted and sentenced the appellants as under: 'Nazar Muhammad alias Nazara appellant was convicted under .Section 302(b) PPC-- anti sentenced to death with a fine of Rs, 1.00,000/- half of :which if recovered shall be paid to the legal heirs of the deceased. In case of default of payment of fine the appellant shall have to further undergo two years S.1. Muhammad Ameer. appellant was convicted under Section 324 PPC and sentenced to seven years R.I. with a fine of Rs, 20,000/- half of which. if recovered. Shall be paid to the injured PW namely Ijaz or in default of payment thereof the appellant shall have to further undergo Si. for six months. The appellant was also convicted under Section 337-A (ii) PPC and sentenced to undergo two years R.I. alongwith Arsh amounting to Rs, 10,000/- to be paid to the injured PW ljaz. Muhammad Amir and Nazar Muhammad alias Nana appellants were also Convicted Under Section 337-F(i) PPC and sentenced to six months each and also to pay Daman amounting to Rs, 5,000/- each to the injured Sher Muhammad complainant.. However, the benefit of Section 382-11 Cr.P.C. was also extended to the appellants. 2.The occurrence in the present case had taken place on 26.5.2000 at 7.15 p.m. within the area of Chak No, 53-Janoobi. 11 Kilo-meters away from the Police Station Kirrana District Sargodha and on the statement of Slier Muhammad (PW. 10) FIR No, 96 was registered, which is Ex. PI and was recorded Manzoor Hussain ASI (PW. 12) the same night at 8.00 p.m.
3. The brief facts as unfolded in the FIR (Ex. PI) recorded on the statement or Sher Muhammad complainant by Manzoor Ahmad ASI (PW. 12) on 26.5.2000 are that he as tabourer by profession and his son ljaz Hussain was married with Mst. Munawaran Bibi and in exchange his daughter Aist: .RuNna was married with Muhamniad Amir. On 26.5.2000 at about 7:15 p.m. he complainant) alongwith his sons namely Ijaz Hussain and Muhammad Nawaz was going towards the house of said Ijaz Hussain and when they reached near Middle School Chak No, 52/SB, suddenly Nazra and Ameer sons of Bakhsha armed with wooden Balas emerged from the Surkanda (bushes) by raising lalkaras. Nazra appellant gave a bala blow which hit his son Muhammad Nawaz on his head who fell down on the ground and became unconscious. Then Amir appellant gave bala blow which hit his son Ijaz Hussain on his head who also fell down. The complainant tried to rescue them when Nazra appellant gave his two bala blows on his right arm. Then Amir appellant also gave him bala blow which hit him on the right side of ribs and Nazra appellant also inflicted fist blow on his amount. On his hue and cry Shahbaz his son and Jehangir attracted to the spot who also witnessed the occurrence and rescued them while entreating the appellants., He alongwith his companions went near his sons Muhammad Nawaz and Ijaz Hussain and found that Muhammad Nawaz had succumbed to the injuries at the spot.
4. The motive behind the occurrence was that on the day of occurrence at morning time there took an altercation in between Muhammad Nawaz deceased and Ijaz Hussain and Mst. Munawaran Bibi due to some domestic problem and hot words were exchanged due to which Mst. Munawaran Bibi went to the house of her parents and due to that grudge the appellants with their common intention assaulted them and committed Qatl-i-Amd of his son Muhammad Nawaz. Leaving behind Jehangir and Shahbaz with the dead-body the complainant proceeded to report the incident to the police of Police Station Kirrana and got his statement recorded on the basis of which FIR (Ex.PI) was recorded.
5. Manzoor Ahmad ASI (PW.12) after recording the FIR proceeded to the spot and prepared the inquest report as well as they injury statement and sent the dead-body to the mortuary. He then inspected the spot, took into possession blood-stained earth from the place of murder of Muhammad Nawaz deceased vide memo Ex. PJ, prepared the rough site-plan which is, Ex. PN. He also arrested Nazar Muhammad alias Nazara and Muhammad Amir appellants on 6.6.2000. On the same day Muhammad Amir appellant led to the recovery of wooden Bala (Ex. P. 3) from the ceiling of his residential Kotha which was taken into possession vide momo Ex. PK. on the same day Nazar Muhammad alias Nazara appellant also led to the recovery of wooden Bala P. 4 which was taken into possession vide memo Ex. PL.
6. After the completion of the investigation report under Section 173 Cr.P.C. was 'submitted in the Court, copies as required under Section 265-C Cr.P.C. were supplied to the appellants and charge was framed against them which was denied by them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellants produced as many as 12 witnesss.
The ocular account was furnished by Sher Muhammad (PW. 10) and Ijaz Hussain injured (PW. 11).
The medical evidence was produced through the statements of Dr. Israr Haider (PW. 1), Dr. Iftikhar Ahmad (PW. 6) and Dr. Muhammad Jufar Malik (PW. 7). The investigation was conducted by Manzoor Ahmad ASI. (PW-12). The remaining witnesses are of formal nature and need not to discuss here.
8. After the close of the prosecution evidence the statements of the appellants were recorded under Section 342 Cr.P.C. in which they denied the allegations and professed their innocence. On a question that "why this case against you and why the PWs have deposed against yourr Muhammad Amir appellant made the following reply which is reproduced as under:-- "I have been falsely implicated in this case by twisting the actual facts. In fact Ijaz PW made false allegation against my sister. Mst. Munawaran that she had illicit relations with Umar' Hayat son of Inayat Mochi, a neighbour of Ijaz PW and he gave her shoe beating and thereafter Umar Hayat aforesaid sent a message to me about the said incident, while Mst. Munawaran took refuge in the house of Umar Hayyat. Thereafter, I was going to the house of Sher Muhammad PW to complain about the mis-conduct of Ijaz PW with his wife and when I reached the road where the occurrence took place, Ijaz PW and Nawaz deceased armed with sotas attacked me, Nawaz aimed sota blow on my head but I saved myself by going and grappled with Nawaz deceased to avert further belows from him and during the grappling Nawaz fell on the road and he sustained injuries when his head struck. against the metalled road. Thereafter Ijaz PW attacked me with a.sota and I again averted his blow by going down and picked up the sota of Nawaz deceased which had fallen on the ground and my self defence I gave a sota blow to Ijaz when he was still attacking 1110 with his sota. Sher Muhammad, Shahbaz and Jehangir PWs were not present at that time and Sher Muhammad got a false medical certificate on the basis of fabricated injuries."
Nazar Muhammad alias Nazara appellant denied his participation in the occurrence and to a question that "why this case against you and why the PWs have deposed against you?" had replied as under:-- "I have been falsely implicated in this case on account of my relationship with Amir, accused. Pws have made false statement by twisting the actual facts. As stated above I was not present at the spot and only my brother Amir accused had gone to make a complaint to Sher Muhammad PWs about the misconduct of Ijaz PW and when he reached the road near the house of Sher Muhammad PW she was attacked by Nawaz deceased and Ijaz PW."
However, they did not opt to make statements under Section 340(2) Cr.P.C. and also denied to produce any defence evidence.
9. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeal and revision petition.
10. Learned counsel for the appellants at the very outset of the arguments has pointed out that Sher Muhammad complainant (PW. 10), injured Ijaz Hussain (PW. 11) and Mst. Aisha Bibi wife of Sher Muhammad complainant .and mother of Muhammad. Nawaz deceased have effected 'compromise with the appellants and they have no objection if the appellants are acquitted. Sher Muhammad complainant (PW. 10) and ljaz Hussain (PW. 11) are present in person, whose statements have been recorded on separate sheets, wherein they have confirmed affecting of compromise with both the appellants and raised no objection to their acquittal. They have also piked on record their affidavits (Mark "A" and Mark "C'') alongwith the affidavit (Mark "B) sworn by Mst. Aisha Bibi wife of the complainant Sher Muhammad, who is not present today statedly due to illness. It is also admitted that Mst. Shahnaz Bibi is widow of Muhammad Nawaz deceased having four minor children from the wed-lock of Muhammad Nawaz deceased and she has not effected compromise with the appellants. On merits, contends that the occurrence had. taken place at the super of moment and not in a pre-planned manner; that both the parties are closely related to each other and due to untowords incident which had taken place in the morning, this occurrence had taken place as a result of chance meeting ,between the parties; that weapons allegedly used by the appellants are generally available and were not of such nature Specially brought by the appellants from their village in order to commit the murder in a pre-planned manner; that the prosecution failed to prove the motive: that only a single blow was attributed to Nazar Muhammad alias Nazara appellant on the person of the deceased while Muhammad Amir appellant was also attributed single blow on the person of Ijaz Hussain (PW. 11) and the injuries on the person of Sher Muhammad complainant (PW. 10) were simple in nature. It is lastly contended that at the most offence under Section 302(c) is made out against Nazar Muhammad alias Nazara appellant, who has already undergone about six years in jail which will meet the ends of justice.
11. Leaned counsel for the complainant and the learned counsel appearing on behalf of the petitioner in Crl. Revision No, 607 of 2001 has supported the learned counsel for the appellant about the factum of . compromise arrived at between the appellants and the injured PWs as well as partial compromise with regard to Muhammad Nawaz deceased by the father and mother of the deceased but Mst. Shahnaz Bibi widow of the `deceased alongwith the four minor children has not entered into a compromise with the appellants. However, the learned counsel does. Not - press. Crl.
Revision No, 607 of 2001.
12. Learned counsel for the State also have raised no objection to the acquittal of the appellants Nazar Muhammad alias Nazara and Muhammad Amir from the charges of causing injuries to Sher Muhammad (PW-10) and Ijaz Hussain (PW. 11). However, it is contended that since. Nazara appellant had been convicted under Section 302(b) PPC and all the legal heirs of Muhammad Nawaz deceased have not entered into a compromise the conviction and sentence of Nazar Muhammad alias Nazara appellant may be maintained.
13. We have heard the arguments of the learned counsel for the parties and also perused the record.
14. The occurrence in the present case had taken place on 26.5.2000 at 7.15 p.m. and the matter was reported to the police by Sher Muhammad complainant (PW. 10) on the same night at 8.00 p.m. at P.S. Kirrana. The names of the accused/appellants alongwith the weapons used by them and the manner in which the occurrence had taken place was got duly incorporated in the FIR. The complainant PW. 10) and ljaz Hussain (PW. 11) were the eye-witnesses who had received injuries during the incident as well. They were medically examined by Dr. Israr Haider (PW. 1) and Dr. Iftikhar Ahmad (PW. 6) while Dr. Muhammad Jafar Malik (PW. 7) had A conducted the post-mortem examination of the deceased Muhammad Nawaz. The locale of the injuries on the persons of the deceased and both the injured PWs supports the ocular account. The duration of the injures described by the doctors was also the same as narrated by the complainant in his statement recorded under Section 154 Cr.P.C. and in the statement made before the learned trial Court. The presence of both the eye-witnesses at the spot stood established beyond any shadow of doubt, who remained consistent regarding the time. place and the manner in which the occurrence had taken place. Both the eye-witnesses are closely related to the appellants as sister of Ijaz Hussain (PW. 11) and daughter of Sher Muhammad (PW. 10) was married with Muhammad Amir appellant and in Watta Munawaran Bibi sister of Muhammad Amir and Nazara appellants was married with Ijaz Hussain (PW. 11). It was admitted that till the morning on the day of incident both the women, who were married to Ijaz Hussain and Muhammad Amir had been residing. at the respective residences of their husbands and there was no previous ill-will or enmity between the parties.
Even otherwise it has been admitted by the witnesses that the father of the appellants was the first cousin of the complainant. Keeping in view of such a close relationship between the parties, we do not find any reason to declare both PWs 10 and 11 as interested witnesses being father and brother of the deceased. The occurrence was alleged to have taken place at 7.15 p.m. On 26th of May. 2000 when there was day-light which discards the question of mis-identity of the appellants. There does not appear any reason for false implication of the appellants by letting off the real culprits if they had not committed this occurrence. We have no hesitation in holding that the ocular account furnished by PWs 10 and 11 is trust-worthy and confidence inspiring.
15. The recovery of wooden Balas from the appellants is inconsequential as the said Balas were not stained with blood but this alone is not sufficient to exonerate the appellants from the commission of the crime.
16.Even the motive set up by the prosecution is found insufficient for committing the occurrence in a pre-planned manner, which appears to have taken place merely due to the arising of some matrimonial dispute between Ijaz Hussain (PW. 11) and his wife Mst. Munawaran Bibi, sister of the appellants in the morning. In such a situation the learned trial Court had already convicted and sentenced the appellants according to the injuries caused by them to the deceased and both the injured PWs and discarded the question of sharing common intention by both the appellants with each other for committing this occurrence. We do not find any illegality in this conclusion of the learned trial Court.
17. Since, both the injured namely Sher Muhammad (PW. 10) and Ijaz Hussain (PW. 11) while appearing in the Court have forgiven and pardoned the appellants for causing injuries to them, by accepting the said compromise, both the appellants are acquitted of the charges under Sections 324/337-A(ii)/337-F(i) PPC and sentences awarded to them thereunder are set aside. Crl. Appeal No, 1145 of 2001 to the extent of Muhammad Amir appellant is partly accepted and he is discharged of the liability of bail bonds as during the pendency of this appeal operation of his sentences was suspended.
18.Now we are left with the case of Nazar Muhammad alias Nazara appellant who was sentenced to death under Section 302(b) PPC for causing the death of Muhammad Nawaz deceased. He was survived by the widow, namely, Mst. Shahnaz Akhtar and four minor children besides the parents.
Only Sher Muhammad father of the deceased appeared and claimed effecting of compromise with Nazar Muhammad alias Nazara appellant and as regards Mst. Aisha Bibi, mother of the deceased Muhammad Nawaz, her affidavit (Mark "B") has been brought on the record and according to her husband Sher Muhammad and son Ijaz Hussain, she could not appear today due to illness, but she has also affected compromise with the appellants.
However, it is admitted position that Mst. Shahnaz Bibi, widow of the deceased alongwith four minor children of the deceased has so far not effected compromise and pardoned Nazar Muhammad alias Nazara appellant the offence of Qatl-i-Amd of her husband. It is thus obvious that compromise regarding offence under Section 302(b) PPC is not complete. In Muhammad Arhsad Alias Papu vs. Addl. Sessions Judge etc. (PLD 1993 SC 547) it was held by the Hon'ble Supreme Court that death sentence not awarded by way of Qisas, but as Tazir cannot be waived on account of Badli-Sulh, but compromise can be effected by all the legal heirs of the deceased under Section 345(2) Cr.P.C. with the permission of the Court. It was further held that partial compromise effected with only some of the legal heirs cannot be used and is not sufficient to hold that the offence has been compromised. As such partial compromise cannot be given effect to for the acquittal of Nazar Muhammad alias Nazara appellant from the charge under Section 302(b) PPC.
19. On merits we have considered that Nazar Muhammad alias Nazara appellant had caused single blow with Bala on the head of Muhammad Nawaz deceased which proved fatal. The intention of the accused can be gathered from the damage caused to the deceased and the locale of the injury. In the present case the injury was on the head, which is most vital part of the body. As such we do not find any reason to bring the conviction of the appellant under Section 302(b) PPC by converting it from Section 302(b) PPC recorded by the learned trial Court, which is maintained.
20. So far as quantum of sentence is concerned, we have considered that the circumstances of the case and even the evidence led by the prosecution show that the occurrence had taken place at the spur of moment and it was not a cold blooded murder. The possibility cannot be ruled out that the occurrence had taken place as a result of provocation offered to the accused party by the complainant party itself as Mst. Munawaran Bibi sister of the appellants was turned out of the house byher husband Ijaz Hussain (PW. 11) after levelling some allegations against her and retaliation on the part of the appellants was the result of impulsive reaction. Even otherwise, the appellant had only used a Bala for causing a single blow, which was not a lethal weapon and was easily available. Moreover, partial compromise has been effected as parents of Muhammad Nawaz deceased have pardoned the appellant. In the case reported as Muhammad Ali and others v. State and others (PLD 2004 Lah. 554), the learned trial Court had awarded life imprisonment to the convicts on account of murders of three persons as one of their heir had forgiven the said convicts, which findings was upheld by this Court while considering that though a partial compromise in a case of Ta'zir cannot enure to the benefit of a culprit yet in an appropriate case it. can validly be considered to be a mitigating factor quo the question of sentence. The cases reported as Bashir Ahmad v. The State and another (2004 SCMR 236) and Niaz Ahmad v. The State (PLD 2003 SC 635) were discussed in detail and facts thereof were found distinguishable as in the first case the death sentence had already been confirmed upto the level of Hon'ble Supreme Court and on account of subsequent development that. partial compromise had been effected between the parties the Hon'ble Supreme Court had refused to give effect to such partial compromise even in the matter of sentence at that stage of the case. And in the second case the Hon'ble Supreme Court keeping in view the brutality of the occurrence had refused to interfere with the quantum of sentence on the solitary ground of partial compromise. Then in a case reported as Muhammad Aslam v. Shaukat Ali alias Shauka (1997 SCMR 1307), the finding of this Court for awarding lesser sentence of life imprisonment on account of a partial compromise was not interfered with by the Hon'ble Supreme Court. Thus: coupled with the other circumstances of the case. we consider that the partial compromise effected by the parents of the deceased, ho are also major legal heirs of the deceased can be a mitigating circumstance awarding lesser sentence. We are of the view that in the peculiar facts and circumstances of the present case the death sentence awarded to Nazar Muhammad alias Nazara appellant is not warranted which is converted to imprisonment for life.
The learned trial Court had also burdened the appellant with fine amounting to Rs, 1,00,000/- and one-half thereof i,e, Rs, 50.000/. on realization were directed to be paid to the legal heirs of the deceased. Since the sentence of fine is not provided in the Statute for offence under Section 302 PPC, the same is set aside. but as half of the amount of fine was directed to be paid to the legal heirs of the deceased, it is 'directed that Rs, 50.000/- shall be paid by the appellant Nazar Muhammad alias. Nazara to the legal heirs of the deceased as required under Section 544-A Cr.P.C. and in default of payment thereof he shall further undergo S.I. for six months only instead of two years S.I. directed by the learned trial Court. With these modifications in the quantum of sentence regarding Nazar Muhammad alias Nazara appellant Crl. Appeal No, 1145 of 2001 to his extent is partly dismissed.
21. Crl. Revision No, 607 of 2001 filed by Shur Muhammad complainant/petitioner seeking enhancement of sentence of Muhammad Amir has become infructuous as the said respondent/accused has been acquitted by us on account or compromise with the injured PWs awl the learned counsel for the petitioner/complainant has also not. pressed the same on merits, which is dismissed accordingly.
22. The death sentence awarded to Nazar Muhammad alias Nazara appellant by the learned trial Court is not confirmed and Murder Reference No, 423 of 2001 is replied in the negative.