' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No,1145 of 2001 filed by Muhammad Ameer and Nazar Muhammad alias Nazra appellants against their convictions and sentences and Criminal Revision No,607 of 2001 filed by Sher Muhammad complainant along with 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 Nazra appellant was convicted under section 302(b), P.P.C. And 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.I. Muhammad Ameer appellant was convicted under section 324, P.P.C. 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 P.W. Namely Ijaz or in default of payment thereof the appellant shall have to further undergo S.I. For six months. The appellant was also convicted under section 337-A(ii), P.P.C. And sentenced to undergo two years' R.I. Along with Arsh amounting to Rs,10,000 to be paid to the injured P.W. Ijaz.
' Muhammad A:nir and Nazar Muhammad alias Nazra appellants were also convicted under section 337-F(i), P.P.C. 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-B, 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 kilometers away from the Police Station Kirrana District Sargodha and on the statement of Sher Muhammad (P.W.10) F.I.R. No,96 was registered, which is Exh.P.I. And was recorded by Manzoor Hussain A.S.-I. (P.W.12) the same night at 8-00 p.m.
3. The brief facts as unfolded in the F.I.R. (Exh.P.I.) recorded on the statement of Sher Muhammad complainant by Manzoor Ahmad, A.S.-I. (P.W.12) on 26-5-2000 are that he was labourer by profession and his son Ijaz Hussain was married with Mst. Munawaran Bibi and in exchange his daughter Mst. Rubina was married with Muhammad Amir. On 26-5-2000 at about 7-15 p.m. He (complainant) along with 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 Surkandas (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 him 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 mouth. 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 along with 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 F.I.R. (Exh.P.I.) was recorded.
5. Manzoor Ahmad, A.S.-I. (P.W.12) after recording the F.I.R. Proceeded to the spot and prepared the inquest report as well as the 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. Exh.P.J., prepared the rough site plan which is Exh.P.N. He also arrested Nazar Muhammad alias Nazra and Muhammad Amir appellants on 6-6-2000. On the same day Muhammad Amir appellant led to the recovery of wooden Bala (Exh.P.3) from the ceiling of his residential Kotha which was taken into possession vide memo. Exh.P.K. On the same day Nazar Muhammad alias Nazra appellant also led to the recovery of wooden Bala P.4 which was taken into possession vide memo. Exh.P.L.
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 witnesses.
The ocular account was furnished by Sher Muhammad (P.W.10) and Ijaz Hussain injured (P.W.11).
The medical evidence was produced through the statements of Dr. Israr Haider (P.W.1), Dr. Iftikhar Ahmad (P.W.6) and Dr. Muhammad Jafar Malik (P.W.7). The investigation was conducted by Manzoor Ahmad, A.S.-I. (P.W.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 P.Ws. Have deposed against you?"
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 P.W. Made false allegation against my sister Mst. Munawaran Bibi that she had illicit relations with Umar Hayat son of Inayat Mochi, a neighbour of Ijaz P.W. 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 Hayat. Thereafter, I was going to the house of Sher Muhammad P.W. To complain about the misconduct of Ijaz P.W. With his wife and when I reached the road where the occurrence took place, Ijaz P.W. And Nawaz deceased armed with Sotas attacked me, Nawaz aimed Sota blow on my head but I saved myself by bowing and grappled with Nawaz deceased to avert further blows 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 P.W. Attacked me with a Sota and I again averred his blow by going down and picked up the Sota of Nawaz deceased which had fallen on the ground and myself defence I gave a Sota blow to Ijaz when he was still attacking me with his Sota. Sher Muhammad, Shahbaz and Jehangir P.Ws. Were not present at that time and Sher Muhammad got a false medical certificate on the basis of fabricated injuries."
' Nazar Muhammad alias Nazra appellant denied his participation in the occurrence and to a question that "why this case against you and why the P.Ws. Have deposed against you?" had, replied as under:-- "I have been falsely implicated in this case on account of my relationship with Amir accused. P.Ws.
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 P.W.
About the misconduct of Ijaz P.W. And when he reached the road near the house of Sher Muhammad P.W. He was attacked by Nawaz deceased and Ijaz P.W."
' 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 (P.W.10), injured Ijaz Hussain (P.W.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 (P.W.10) and Tiaz Hussain (P.W.11) are present in person, whose statements have been recorded on separate sheets, wherein they have confirmed effecting of compromise with both the appellants and raised no objection to their acquittal. They have also placed on record their affidavits (Mark "A" and Mark "C") along with 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 spur of moment and not in a pre-planned manner; that both the parties are closely related to each other and due to untowards 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 especially 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 Nazra appellant on the, person of the deceased while Muhammad Amir appellant was also attributed single blow on the person of Ijaz Hussain (P.W.11) and the injuries on the person of Sher Muhammad complainant (P.W.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 Nazra appellant, who has already undergone about six years in jail which will meet the ends of justice.
11. Learned counsel for the complainant and the learned counsel appearing on behalf of the petitioner in Criminal 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 P. Ws. 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 along with the four minor children has not entered into a compromise with the appellants. However, the learned counsel does not press Criminal Revision No,607 of 2001.
12. Learned counsels for the State also have raised no objection to the acquittal of the appellants Nazar Muhammad alias Nazra and Muhammad Amir from the charges of causing injuries to Sher Muhammad (P.W.10) and Ijaz Hussain (P.W.11). However, it is contended that since Nazra appellant had been convicted under section 302(b), P.P.C. And all the legal heirs of Muhammad Nawaz deceased have not entered into a compromise, the conviction and sentence of Nazar Muhammad alias Nazra 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 (P.W.10) on the same night at 8-00 p.m. At Police Station Kirrana. The names of the accused/appellants along with the weapons used by them and the manner in which the occurrence had taken place was got duly incorporated in the F.I.R. The complainant (P.W.10) and Ijaz Hussain (P.W.11) were the eye-witnesses who had received injuries during the incident as well. They were medically examined by Dr. Israr Haider (P.W.1) and Dr. Iftikhar Ahmad (P.W.6) while Dr. Muhammad Jafar Malik (P.W.7) had conducted the postmortem examination of the deceased Muhammad Nawaz. The locale of the injuries on the persons of deceased and both the injured P.Ws. Supports the ocular account. The duration of the injuries 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 (P.W.11) and daughter of Sher Muhammad (P.W.10) was married with Muhammad Amir appellant and in Watta Munawaran Bibi sister of Muhammad Amir and Nazra appellants was married with Ijaz Hussain (P.W.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 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 P.Ws. 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 daylight, which discards the question of misidentify 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 P.Ws.10 and 11 is trustworthy and confidence-inspiring.
15. The recovery of wooden Balas from the appellants is unconsequential 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 (P.W.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 P.Ws. And discarded with 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 (P. W.10) and Ijaz Hussain(P.W.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), P.P.C. And sentences awarded to them thereunder are set aside. Criminal 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 Nazra appellant who was sentenced to death under section 302(b), P.P.C. 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 Nazra 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 effected compromise with the appellants. However, it is admitted position that Mst. Shahnaz Bibi, widow of the deceased along with four minor children of the deceased has so far not effected compromise and pardoned Nazar Muhammad alias Nazra appellant the offence of Qatl-i-Amd of her husband. It is thus, obvious that compromise regarding offence under section 302(b), P.P.C. Is not complete. In Muhammad Arshad alias Papu v. Additional Sessions Judge and others PLD 1993 SC 547 it was held by the Honourable Supreme Court that death sentence not awarded by way of Qisas, but as Tazir cannot be waived on account of Badl-i- 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 Nazra appellant from the charge under section 302(b), P.P.C.
19. On merits we have considered that Nazar Muhammad alias Nazra 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(c), P.P.C. By converting it from section 302(b), P.P.C. 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 by her husband Ijaz Hussain (P.W.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 finding 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 qua 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 up to the level of Honourable Supreme Court and on account of subsequent development that partial compromise had been effected between the parties the Honourable 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 Honourable 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 Honourable Supreme Court. Thus, coupled with the other circumstances of the case, we consider that the partial compromise effected by the parents of the deceased, who are also major legal heirs of the deceased can be a mitigating circumstance for 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 Nazra 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, P.P.C., 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 Nazra 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 Nazra appellant Criminal Appeal No,1145 of 2001 to his extent is partly dismissed.
21. Criminal Revision No,607 of 2001 filed by Sher 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 of compromise with the injured P.Ws.
And 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 Nazra appellant by the learned trial Court is Not confirmed and Murder I Reference No,423 of 2001 is replied in the negative.