' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,754 of 2000 and Murder Reference No,50 of 2000 (submitted for confirmation of death sentence or otherwise), directed against the judgment dated 24-1-2000 passed by the learned Addl. Sessions Judge, Sheikhupura whereby he convicted Muhammad Akram appellant under section 302(a), P.P.C. And sentenced him to death while Muhammad Abbas appellant was convicted under section 302(c), P.P.C. And was sentenced to undergo 10 years' R.I. And under section 337-L (ii), P.P.C. He was sentenced to two years' R.I. Benefit of section 382-B, Cr.P.C. Was also granted to him.
2. The brief facts of the case as narrated by the complainant Sughran Bibi in the F.I.R. Are that on 1- 7-1997 at 4-30 p.m. The accused Abbas was irrigating his fields when the deceased Muhammad Ashraf stopped the water and diverted the same towards his fields on which resistence was created by Shahbaz accused which resulted into a quarrel between them which attracted the complainant and other P.Ws. When the deceased after a short while again tried to divert the course of water, Akram armed with .222 bore rifle Abbas and Nazar armed with Sotas and Ashraf as well as Shana empty handed came at the spot. In the mean while Akram fired at the deceased Ashraf hitting the thigh of the deceased. The complainant tried to save the deceased but Abbas and Nazar gave Sota blows on different parts of her body. The deceased succumbed to the injuries on the way to the Hospital.
3. The local police after getting information about the occurrence completed all the necessary formalities and thereafter Muhammad Ashraf S.I/S.H.O. In order to investigate the matter went to the spot along with his subordinates. He prepared the inquest report Exh.PG. And injury statement Exh.PF regarding deceased and injury statement of Mst. Sughran Bibi Exh.PE. He also took into possession the blood-stained earth vide memo Exh.PG. Last worn clothes were received by him vide memo Exh. P.A. On 20-7-1997 he arrested Muhammad Abbas and Nazar Muhammad.
Muhammad Akram accused was arrested on 5-5-1999 by Khuda Bakhsh S.I. And got recovered 7 mm rifle from him vide memo Exh.P.K. Noor Muhammad A.S.-I. Arrested Muhammad Ashraf, Shana and Abbas on 3-8-1997. Muhammad accused while in police custody got recovered a Sota vide memo Exh.PB. Ultimately all the above said accused were challaned.
4. The prosecution in order to prove its case has produced as many as 14 witnesses in all including Doctor, Investigating Officers, eye-witnesses and other formal witnesses. Thereafter, learned ADA after tendering in evidence report of Chemical Examiner Exh.PP and report of Serologist Exh.PQ.
Closed the prosecution evidence. Thereafter statements of the accused were recorded in which they pleaded their innocence. Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appeal submits that 5 accused were named in the F.I.R., two of them who were attributed lalkara i.e, Shama and Ashraf, were acquitted while allegation against Abbas and Nazar was that they were armed with Sota and they caused injuries on the person of the complainant. And Nazar has also been acquitted. Learned counsel submits that as far as present appellants are concerned, only one injury on the non-vital part of the body of the deceased is attributed to Akram appellants which was not repeated. Learned counsel submits that this is not a case of death sentence as there are mitigating circumstances in favour of the appellant.
6. Learned counsel for the State assisted by the learned counsel for the complainant submits that the appellant Muhammad Akram was armed with rifle. He caused injury on the person of the deceased which proved fatal, that the appellant had the intention to commit the murder of the deceased. They both submit that the death sentence awarded to Muhammad Akram appellant by the learned trial Court is legal and proper one. Learned counsel for the complainant submits that the deceased was the only son of the complainant, that the appellant also remained a P.O. For a period of more than 2 years which shows his guilty mind. When he was arrested after long absconsion 7 mm rifle was also recovered from him. They both support the judgment of the learned trial Court.
7. We have heard the learned counsel for the parties. In the instant case, five accused were named in the F.I.R. There was only injury on the person of the deceased. Two accused who raised lalkara namely Shama and Ashraf were acquitted by the learned trial Court. There are two other accused persons beside the appellant who were named in the F.I.R., i.e Abbas and Nazar. They were alleged to have caused injuries with Sotas on the person of the complainant Mst. Sughran. Nazar was acquitted by the learned trial Court by granting benefit of doubt while Abbas was awarded 10 years' R.I. Under section 302C/148, P.P.C. Read with section 149, P.P.C. He was also convicted under section 337-L (ii), P.P.C. To undergo 2 years for causing injuries to complainant (P.W.). On the same set of evidence three accused as mentioned by us above have been acquitted by the learned trial Court. No appeal against their acquittal either by the complainant or by the State has been filed. As far as Abbas is concerned, he has served out his sentence and has been released from Jail, so appeal to his extent has become infructuous.
8. Now we remain with the present appellant Muhammad Akram. He was armed with a fire-arm and he caused injury on the non-vital part of the body of the deceased and the deceased did not die immediately after the occurrence but he died after 1 1/2 to 2 hours as has been stated by the Doctor in his postmortem report, so A the death of the deceased was not instantaneous. No crime empty was recovered from the spot. There was no background of enmity between the parties so relying on PLD 1996 SC 122 Muhammad Arshad and two others v. The State, Head-note, I, which is reproduced below:-- ' "Murder--Reference--If conviction for--Challenge to--Appellant No,1 has been awarded death sentence on charge of Murder-Normal penalty for offence of murder, is death but in appropriate cases where some extenuating circumstances are available, Courts have discretion to award lesser punishment of imprisonment for life--It is an admitted position that there existed no background of any previous enmity or deep rooted hostility between the appelllant and deceased.
It is also significant that appellant No,1 fired only one shot and did not repeat it---Held: All these facts cumulatively make out a case for mitigation of sentence and lesser sentence of life imprisonment would meet the ends of justice."
' We though, maintain the sentence of the appellant under section 302(b), P.P.C. And not under section 302(a), P.P.C. As has been mentioned in the impugned judgment, but convert the death sentence into life imprisonment with benefit of section 382-B, Cr.P.C. No C compensation was awarded in the instant case which is illegal because section 544, Cr.P.C. Is a mandatory provision so we direct the appellant to pay Rs,1,00,000 to the legal heirs of the deceased or in default six months S.I. With this modification this appeal is disposed of. Murder reference is replied in the negative and death sentence is not confirmed.
9. Before parting with this judgment we may observe that unfortunately the learned Judge who had passed the impugned order do not know the basic principle of law. He had convicted the appellant under section 302-A, P.P.C. Which is totally incorrect because unless the trial Court adopts the Mode of Tazkia-tul-Shahud, no conviction under section 302-A, P.P.C. Can be awarded.
He did not award the compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Which is mandatory provision of law.
10. We may further observe that he while writing his judgment in paragraph 35 observed that accused Abbas (who has already released from jail) caused injury to the complainant which makes him responsible for conviction and sentence under section 337-L(2), P.P.C. And under sections 302/148 and 149, P.P.C. Which is totally incorrect because he had acquitted two persons.
Conviction under section 148/ 149, P.P.C. Can only be granted when there are more than four accused. He convicted Abbas under section 302(c), P.P.C. Which is also totally incorrect because section 302(c), P.P.C. Comes into field when there is case of grave and sudden provocation, case of right of self-defence of person of property and a case in which the occurrence had taken place without taking an undue advantage by the accused or an incident of sudden flare up. He has not even given any reason for convicting Abbas under section 302(c), P.P.C. And also read with section 148/149, P.P.C. As we have observed above there are only two accused who were convicted. There was no question of applying sections 148/149, P.P.C. Copy of this judgment shall be sent to the learned Judge for his perusal and also to be placed with his A.C.R. Dossier.
Sentence reduced