Anwar-ul-Haq Pannun, J.--We propose to decide Crl. Appeal No, 107/2004 (Muhammad Hanif Vs. The State), and Murder Reference No, 129/2004 sent by the learned trial Court under Section 374, Cr.P.C. for confirmation or otherwise of the sentence of death awarded to Muhammad Hanif son of Naseer, appellant through this judgment as both matters have arisen out of same judgment dated 19-3-2004 passed in case FIR No, 305, dated 15.8.2002, offence under Section 302, PPC, Police Station Harrapa, District Sahiwal by the learned Addl. Sessions Judge Sahiwal whereby he found Muhammad Hanif (appellant) guilty of the offence of Qatl-e-Amad of Noor Muhammad, thus convicted the appellant under Section 302(b), PPC sentenced him to death with a further direction to pay Rs,100,000/- as compensation to the legal heirs of deceased and in default, to undergo R.I. for six months.
2. The prbsecution version unfold through Ex.PA (Fard Bian of Mumtaz Ahmad complainant (PW.5) recorded by Haq Nawaz ASI (PW.8) on 15.8.2002 at 8.30 p.m. is to the effect that on same day at about 'Asar Waila' the complainant alongwith his other family members was present at his house, Muhammad Hanif (appellant) was cutting trees with his hatchet from the land owned by the complainant, situated near his house, Noor Muhammad father of the complainant sternly forbade Muhammad Hanif from cutting the trees, whereupon he stopped, the complainant alongwith his father started rolling towards their house, Muhammad Hanif was following them when they were crossing `barshon' Muhammad Hanif attacked Noor Muhammad, father of the complainant, with his hatchet hitting two blows on the back side of his neck and left temporal region also, Noor Muhammad fell down, on raising hue and cry Muhammad and Ali Sher PWs attracted to the spot, they all tried to apprehended the accused. However, the accused alongwith his hatchet succeeded to decamped. The injured was shifted to hospital Harrapa where he succumbed to the injuries on the same day. Thereafter the complainant made a statement Ex. PA before Haq Nawaz ASI (PW.9) at Hafiz Chowk and thumb marked the same as a token of correctness.
3. Haq Nawaz ASI (PW.9), the I.0 sent Ex.PA through Muhammad Younas 662-C. for registration of case, prepared injury statement Ex. PC after reaching hospital, thereafter visited the place of occurrence but due to darkness could not examine the spot, deputed a constable for guarding the spot, while still being on the spot received information about the death of the injured, added 302, PPC, arrested Muhammad Hanif accused on 21.8.2002, effected recovery of bloodstained hatchet (P.4) on his pointing out from the residential house of the case secured the same vide-recovery, memo Ex. PL, which was attested duly attested by the witness drafted site-plan of the place of recovery Ex.PL/1, deposited the same with the Mohrar, on 27.8.2002 while accompanying the Patwari got prepared scaled site-plan Ex.PH, Ex.PH/1 & Ex.PH/2 in triplicate, and thereafter the investigation was taken over by SHO Muhammad Bashir (PW.8), who also stated that he prepared injury statement Ex.PF, inquest report Ex.PE visited place of occurrence, took blood-stained earth vide recovery memo. Ex.PJ and sealed it into parcel, prepared rough site-plan Ex.PM, secured last worn clothes of the deceased after post-mortem, Chaddar (P.1), Shirt (P2), Safa (P.3) through Ex.PK, on completion of investigation, prepared the challan and submitted the same to the trial Court.
4. On taking cognizance of the case, learned trial Judge charged sheeted the accused on 02.9.2003 under Section 302, PPC to which the accused denied and claimed trial. In order to prove its case the prosecution has produced Dr. Tahir Mehmood (PW.3) SMO, RHC, Harapa, who on 15.8.2002 at 9,00 p.m medically examined Noor Muhammad in injured condition, brought by Muhammad Sharif 1170-C, observed following injuries:- "1. Incised wound 10 C.M x 5 C.M x muscle -exposed which were severely incisded along with profused bleeding on the left side of neck.
2. Incised wound 5 C.M x 1.5 C.M x muscle expose on the left side of face."
Issued MLC Ex.PB, referred the injured to DHQ Hospital, Sahiwal on the same day and thereafter on 16.8.2002 conducted post-mortem over the dead body of the deceased and issued, post-mortem report Ex.PD, diagram Ex.PD/1, besides attesting inquest report Ex.PE and injury statement Ex.PF. The ocular account in this case has been furnished by Mumtaz Ahmad complainant (PW.5), Ali Sher son of Noor Muhammad (PW.6), who also identified the dead body of the deceased at the time of autopsy, attested recovery memo. Ex.PJ of blood-stained earth, recovery memo of last worn clothes of the deceased Ex.PK and recovery of hatchet (P.4) through Ex PL. The other worth mentioning witnesses are PW.4 - Fazal Ahmad. Patwari Halqa, who prepared scaled site-plan Ex.PH/1 & Ex.PH/2 in triplicate on the direction and pointing out of the PWs, Abdul Ghafoor ASI (PW.2), who recorded the formal FIR (Ex. PA/1) on the basis of Ex. PA and kept the blood-stained earth and hatchet in Malkahan, handed over the same to Mumtaz Hussain 167-C (PW.1) for its onward transmission to the office of Chemical Examiner and Forensic Science Laboratory respectively.
Muhammad Bashir SHO/LO. appeared as PW.8 and Haq Nawaz ASI as PW.9. The prosecution after producing the above referred evidence alongwith ancillary document in evidence tendered reports of Chemical Examiner Ex.PN, report of Serologist Ex.PN/1, report of Chemical Examiner regarding blood-stained hatchet Ex.PO and report of Serologist Ex.PO/1 and closed the prosecution evidence.
5. When confronted with the prosecution evidence, the 'appellant in his deposition under Section 342 Cr.P.0 while replying to Question No, 7 (Whv this case against you and why the PWs have deposed against you?) has stated as under:-- "In fact there was a dispute between me and the complainant party over the Had Bran of agricultural land and due to that reason, the complainant and the PWs were inimical towards me. I have been falsely involved in this case. The PWs have deposed falsely being interested and related towards inter-se and with the deceased and inimical toward us."
He also refuted the remaining evidence of the prosecution. The appellant neither appeared as his own witness under Section 340(2), Cr.P.C. nor produced any defence evidence. Learned trial Court after conclusion of the trial convicted and sentenced the appellant as noted earlier.
6. Learned counsel for the appellant after arguing the case at some length on merits, craved for conversion of sentence of the appellant from death to life imprisonment with the submission that if the evidence -- of the prosecution is viewed in its totality, it appears that the occurrence in this case is result of sudden flare between the parties, no previous ill-will or motive for the commission of the offence has been alleged by the prosecution.
7. On the other hand, learned DPG, assisted by the learned counsel for the complainant, has offered resistance, towards the request made by the learned counsel for the appellant by contending that the prosecution has proved its case against the appellant, beyond any shadow of reasonable doubt, by producing ocular as well as recovery evidence, which is corroborative by medical evidence qua the guilt of appellant.
8. After hearing the learned counsel for the parties and perusing the record we have noticed that the conviction recorded by the learned trial Court against the appellant cannot be interfered with so far as guilt of the appellant for the commission of murder of Noor Muhammad is concerned.
However we find that there exist some mitigating circumstances for conversion of the death sentence of the appellant into life imprisonment as the same would meet the ends of justice.
Admittedly there was no long standing enmity between the deceased and the appellant. The appellant in his statement under Section 342, Cr.P.C. has pointed out existence of dispute between him and the complainant party over 'Had Barari' of agricultural land PW.8 Muhammad Bashir, Investigating. Officer of this case has admitted, during the cross-examination, conducted upon him by the accused that. It is correct that during investigation it transpired that there was a dispute between the parties over 'Had Barari' of agricultural land. It is correct that I have not shown any place in the site-plan Ex.PM where from a tree had been cut or any such tree was lying at the spot.
It is also correct that the PWs have not shown any such place where the deceased has stopped the accused from cutting the trees as the PWs did not point out to him any such place. I have not taken into possession any tree, which was cut by the accused. If the PWs had pointed out to me any such place I would have shown the same in the site-plan and I would have taken into possession the said tree."
Therefore, in such circumstances, the possibility of exchange of hot words, between the accused and the deceased, over the issue of 'Had Barari' could not be ruled out as the occurrence has admittedly taken place in the fields. Therefore, we feel that something unhealthy has taken place, immediately before the occurrence, which resulted into causing of injury by the accused to the deceased, which proved fatal and there might have been intention of the accused to commit the murder of the deceased. Any occurrence, which takes place as a result of sudden flare ignited by the complainant's side the extreme penalty of death is not required to be imposed upon the accused as the same has always been viewed a mitigating circumstances by the superior Courts of the Country unless the occurrence is shown to have taken place in a brutal or callous manner.
In this case we have noticed that although the motive part is not proved by the prosecution but one thing has been indicated that the deceased stopped sternly the accused from doing some act. Reliance is replaced on the cases of Zulfiqar alias Bhutto vs. The State (1995 SCM R 1668). Sher Daraz Khan vs. The State (1983 SCM R 266). Latif Ullah Vs. The State (2007 SCM R 994) and Muhammad Sharif vs. State (PLJ 2004 SC 23).
9. For what has been discussed hereinabove, while extending the benefit of mitigating elements referred to above in the peculiar circumstances of the case, we while dismissing the appeal maintain the conviction recorded by the learned trial Court through the impugned judgment dated 19.02.2004, however, convert his sentence of death into imprisonment for life with the extension of benefit under Section 382-B, Cr.P.C. The compensation will remain the same as recorded by the learned trial Court, however, in default whereof, the appellant to undergo S.I for six months. The appeal of the appellant Muhammad Hanif is dismissed with above modification in quantum of sentence. Mureter Reference No, 129/2004 is answered in the NEGATIVE, the sentence of death awarded by the trial Court to Muhammad Hanif, convict-appellant, is not confirmed.