' KHAWAJA MUHAMMAD SHARIF, J.--- This appeal is directed against the judgment, dated 13-10-2001 passed by the learned Additional Sessions Judge, Gujranwala, whereby after having tried the appellant for the murder of his real brother Imran, he was convicted under section 308, P.P.C. Read with sections 307(b) and 307(c), P.P.C. And sentenced to pay Diyat of Rs,91,000 (share of mother) under section 308(2), P.P.C. To fourteen years' R.I. As Tazir with benefit of section 382-B, Cr.P.C.
Criminal Revision No,154 of 2002 was filed for enhancement of sentence of the appellant.
2. Brief facts of the case, as given by the complainant Muhammad Naaz in the F.I.R., are that on fateful day and time he along with his deceased brother Imran, another son Gulzar and one Maqsood was present at his Dera; that his son Zulfiqar came from village side armed with 12 bore double-barrel gun and made a straight shot at his son Imran who fell down; that the appellant fled away; that the said Imran died in the Civil Hospital, Noshera Virkan, and that the motive was refusal of more land to the appellant by the complainant.
3. After having completed, legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution in order to prove its case against the accused, produced thirteen prosecution witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that his main and sole argument is that since the father of the appellant, being his legal heir, had forgiven the appellants, therefore, he could not have been convicted under section 308, P.P.C. But should have been convicted under section 311, P.P.C. Or acquitted from the case.
5. On the other hand, learned counsel for the State supports the impugned judgment of conviction while learned counsel for the complainant submits that the appellant has killed his real brother, but two eye-witnesses have supported the prosecution case; that it is a brutal murder and the case is covered by section 311, P.P.C.; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The complainant in this case is Muhammad Nawaz P.W. Who is the real father of the appellant as also the deceased. Two eyewitnesses, namely, Maqsood Ahmad (P.W.5) and Gulzar Hussain (P.W.6) appeared before the learned trial Court and fully supported the prosecution case.
8. As far as Muhammad Nawaz (P.W.4) complainant is concerned, he is not the only legal heir of the deceased. Apart from the complainant father, the deceased also survived by his real mother Khurshid Bibi who had filed a revision petition before this Court for enhancement of sentence of the appellant. Therefore, since it is a case of partial compromise, so, the same cannot be accepted in view of the law laid down by the august Supreme Court of Pakistan in the judgments reported in Hamid v. The State 2003 SCM R 416 and Niaz Ahmad v. The State PLD 2003 SC 635.
9. So far as Criminal Revision No,154 of 2002 is concerned, which was filed by the mother of the deceased, who is also mother of the appellant, for enhancement of sentence of the appellant. I may observe here that maximum conviction and sentence under section 308, P.P.C., prevalent at the time of passing the impugned judgment, has been awarded to the appellant. Although the case was proved against the appellant to the hilt and the appellant should have been convicted under section 302(b), P.P.C. Yet I have noted that neither the State nor the complainant filed appeal against the acquittal of the appellant under section 302(b), P.P.C., so, this Court is left with no alternative but to maintain the conviction and sentence awarded to the appellant by the learned trial Court. In this regard reference is given to subsection (5) of section 439, Cr.P.C. Which mandates as under:-- "439(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed."
10. For afore-referred reasons this appeal as also the connected Criminal Revision No,154 of 2002 filed for enhancement of sentence of the appellant are dismissed.
Appeal and .