RUSTAM S. SIDEIWA, J.---Sultan Ahmad and Akbar sons of Baqari and Umar Hayat son of Tahir were tried by the learned Sessions Judge, Sargodha under section 302/307/34, P. P. C. For the murder of Sultan Ahmad son of Khuda Bakhsh deceased and attempt on the life of Fazal Ahmad P.
W. The learned trial Judge, by his judgment dated 31st August, 1978, convicted Sultan Ahmad accused under section 302, P. P. C. And sentenced him to death, subject to confirmation by this Court, and convicted Akbar and Umar Hayat accused under section 323134, P. P. C. And sentenced them to 3 months' R. I each. The joint appeal of the convicts (Crl. App. No. 854/78), the revision (Crl.
Rev. No. 935/78) filed by Manzoor Ahmad complainant for the enhancement of the sentences of Akbar and Umar Hayat accused and for award of compensation for the murder of Sultan Ahmad deceased and the reference (M. R No. 248/ 78) submitted by the learned Sessions Judge for the confirmation of the death sentence, are all now before us for disposal.
2. The brief facts of the case are that on 7th July, 1976 when Manzoor Ahmad P. W. 8, his distant relative Fazal Ahmad P. W. And his real cousin Sultan Ahmad deceased were going from their house to their dera at about 8-30 p.m. They heard noise inside the house of Sohni P. W. They entered the house and in the light of a lantern noticed the three accused Sultan Ahmad armed with a balam, Akbar with a sota and Umar Hayat also with a sota, sitting on the cots. The house in fact belonged to the deceased Sultan Ahmad, while Sohni P. W. Was simply putting up in it as his licensee. The deceased asked the accused Sultan Ahmad as to why he had come to his house when earlier he had been bringing against him and his relations false cases of theft etc. The accused Sultan Ahmad retorted to the deceased abusively that though he had been let of in his case of theft, he would not be spared that day. The accused thereupon struck the balam (spear) on the chest of the deceased, whereupon he fell down. Fazal Ahmad P. W. Went forward to help the deceased, but was given a sota blow by the accused Akbar on his back. The third accused Umer Hayat also gage a sota blow to Fazal Ahmad P. W. Hitting him oil his left upper arm. On the alaram of the Sohni P. W. And the other witnesses, Muhammad and Hussain reached the spot and saw the occur--occurrence. The accused were able to run away. Sultan Ahmad passed away instantaneously. Leaving his dead body in the care of the other P. Ws, Manzoor Ahmad left for P. S. Midh Ranjha where he lodged F. I. R. Exh. P. H. At 10.30 p.m.
3. After recording the F. I. R. Mohammad Saleem Khan, S. I. P. W. 11 proceeded to the spot and, after preparing the necessary papers, he sent the dead body for post-mortem examination. He also recovered blood--stained earth and lantern P. 2 from the spot, vide recovery memos Exh. P. C. And P. D. Respectively.
4. On 8th July, 1976 Dr. Muhammad Rahim Piracha, P. W. 7 conducted the post-mortem examination on the dead body of Sultan Ahmad deceased and found an incised-cum-penetrating wound on the right side or its chest cutting the sternum. The injury was ante-mortem and sufficient to cause death in the ordinary course of nature. The injury was opined to be caused by a sharp penetrating weapon. The said doctor also exa--mined Fazal Ahmad P. W, 9 and found two simple contusion marks on the back of his chest and left upper arm, which were declared to be caused by blunt weapon within 24 hours.
5. On the same day, i.e. 8th July, 1976, Akbar and Umar Hayat accused were arrested by Mohammad Saleem Khan, S. I., P. W.
11. Akbar accused led to the recovery of a sota P. 4 from his house, which was taken into possession by the police, vide memo Exh. P. M. Umar Hayat accused led to the recovery of a sota P. 5 from the house of Akbar accused, which was taken into possession vide memo Exh. P. N. Both the said recoveries were witnessed by Mohammad Saleem Khan, S. I, P.
W. 11 and Mohammad and Hussain (given up P. Ws.).
6. On 9th July, 1976 Sultan accused was arrested by Mohammad Saleem Khan, S. 1. P. W.
11. He led to the recovery of a blood-stained spear P. 3 from the field of one Ahmad, which was taken into possession by the police, vide memo Exh. P. E. This recovery was witnessed by Gahra P. W. 4, Mohammad Saleem Khan, S. I. P. W. 11 and Anara (given up P. W.).
7. After securing the necessary reports from the Chemical Examiner and the Serologist, which showed that the blood on spear P. 3 was of human origin, and after completing the investigation, the police sent up the challan against the three accused.
8. The learned trial Judge, relying upon the motive, the ocular testimony, the recovery and the medical evidence, convicted and sentenced the three accused, as stated in para. 1 above.
9. We have heard the arguments of the learned counsel for the appel--lants the complainant and the State and have also perused the record. The occurrence is admitted by Sultan Ahmad appellant, though not by Akbar and Umar Hayat appellants. According to the statement of Sultan Ahmad appellant, he went alone empty handed to the haveli in which the occur--occurrence took place, to ask Chakari, Muslim Sheikh, who used to reside there. To help him in ploughing his land for wages on the following day. At that time, the were of Sohni P. W. 10 informed Sultan Ahmad deceased about his presence, who alongwith his partymen, armed with hatchets, spears and lathis, came there and abused, assaulted and attacked him. He tried to run away, but his way was blocked and finding himself in dire consequences and in a natural and urgent urge for self- preservation, he snatched a spear from one of the assailants and wielded it aimlessly in the dark from its sharp and blunt sides and thereby succeeded in escaping from there, leaving the spear which had fallen in the meantime. Accor--ding to Sultan Ahmad appellant, the complainant party had influenced the police and thus succeeded in twisting the actual facts and thus falsely got him challaned alongwith his brother and nephew. The ocular testi--mony in the case is furnished by Manzoor Ahmad P. W. 8, Fazal Ahmad P. W. 9 and Sohni P. W.
10. The first two are the cousin and nephew respectively of the deceased, whereas the last is not related to the deceased but happens to be the licensee of the premises owned by the deceased, where the occurrence took place. Fazal Ahmad P. W. 9 is injured and his presence at the spot cannot be doubted. Sohni P. W. 10 is the licen- -see of the premises where the occurrence took place and is a natural and independent witness.
Their testimony, which is consistent, has already been detailed in para. 2 above and need not be repeated. The said testi--mony finds corroboration from the evidence of Dr. Muhammad Rahim Piracha, P. W.
7. In view of Sohni P. W. 10 being a natural and indepen--dent witness and Fazal Ahmed P. W. 9 being injured in the occurrence itself, the ocular testimony inspires the fullest confidence and can be accepted without any corroboration. Learned counsel for the appellants did not seriously contest the participation of the appellants in the crime. The participation of the three appellants stands clearly established. The appellants, therefore, appear to have been properly convicted for the offences as found by the learned Sessions Judge in his judgment in question.
10. Learned counsel for the appellants pleaded for the imposition of the lesser penalty on Sultan Ahmad appellant in view of the fact that Sultan Ahmad deceased had provoked him by taunt which led to this appellant inflicting a spear blow on the deceased. It was also submitted that this appellant did not inflict any further injury other than the one solitary blow which he inflicted on the deceased. We agree with the learned counsel for the appellants in this respect. The ocular testimony confirms the fact that Sultan deceased told Sultan Ahmad appellant by enquiring as to why the latter alongwith his co-accused was present in his place when they had enmity with him arising out of the theft of their buffaloes and they had-always reported to the police against him.
This statement it appears provoked Sultan Ahmed appellant, considering that at an earlier stage the appellant suspected the deceased of stealing his buffaloes. The spear blow, therefore, given by Sultan Ahmad appellant appears to have been given in the heat of passion as a result of the provocation offered by Sultan deceased. Considering that Sultan Ahmad appellant did not inflict any further spear blow to either the deceased or any of the witnes--ses, we are of the view that the said appellant has made out a case for the imposition of the lesser penalty.
11. Sultan Ahmad appellant has already undergone detention as an under-trial prisoner for about three years and Akbar and Umar Hayat appellants have also undergone short periods of similar detention. Under section 382-B, Cr. P. C., where a Court decides to pass a sentence of imprisonment on an accused for an offence, it mandatorily must take into consideration the period, if any, during which such accused has been detained in custody for such offence. The words "detained in custody for such offence" obviously refer to the period of detention spent by the accused as an under-trial prisoner and not to the period spent by him as a convict for the latter obviously is taken into consideration by the jail authorities when calculating the period of sentence undergone by an accused. The object of this new provision of law is to grant to the accused the benefit of a concession by treating, in appropriate cases, the period of detention undergone by him as an under-trial prisoner as that spent by him as a convict, so as to relieve him from the burden of undue incarceration to which he may have been subject as a result of any delay in the trial. In view of the mandatory language of this section, the Court is duty bound in each case to apply its mind to this question, but this does not mean that it is mandatorily bound in all cases to grant the concession. The trial Court should, therefore, in each case record its reasons for granting or withholding the said concession. Since the provi--sion is founded in equity, this section should be liberally applied, unless for certain strong or special reasons, to be expressly recorded, the Court considers otherwise. In Fazal Hussain v. State (1979 P Cr. L J 238) where the accused had suffered an appreciable period of detention as an under-trial prisoner and the trial Court had not applied the provision of section 382-B, Cr. P. C. To his case, this Court, in its appellate jurisdiction, granted the benefit of the said concession to the appellant. In the instant case, Sultan Ahmad appellant was sentenced to death by the trial Judge and, therefore, the question of applying section 382-B, Cr. P. C. To his case did not arise. We have, however, reduced his sentence from death to imprisonment for life. Though section 382-B, Cr. P. C. Only applies to a case where a trial Court has imposed a sentence of imprisonment yet, as held by the Supreme Court in Ali Sher v. State (PLD 1980 SC 317), this provision can be liberally construed and applied to a case where the appellate Court sets aside the acquittal and restores the judgment of the trial Court. This Court, as a Court of appeal, under section 418, Cr. P. C. Is a Court of law and of fact and a fortiori can apply section 382- B, Cr. P. C. To a case where it itself converts a sentence of death to life imprisonment. Section 382-B, Cr. P. C. Can, therefore, be taken into consideration by us in Sultan Ahmad appellant's case. Since the trial Judge has not taken into consideration the provision of sec--tion 383-B, Cr. P. C. To the case of Akbar and Umar Hayat appellants, which is an error of law, we proceed to do so in their case as well. Taking into consideration the fact that all three appellants have suffered detention as under-trial prisoners for periods which, in the context of the sentences which we desire to impose on them, are appreciable, we see no special reason why the benefit of the said provision should not be granted to all three appellants. We, therefore, grant all three appellants the benefit of the said concession, as stated in the following paragraph,
12. For the foregoing reasons, whilst upholding the conviction of Sultan Ahmad appellant under section 302, P. P. C. And that of Akbar and Umar Hayat appellants under sections 323/34, P. P. C. We reduce the sentence of Sultan Ahmad appellant to life imprisonment with a fine of Rs. 10,000 or, in default thereof, to further R. I. For two years and that of Akbar and Umar Hayat appellants to the periods of detention already undergone by them. The period of detention undergone by Sultan Ahmad appellant as an under-trial prisoner shall be treated as period of detention undergone by him as a convict. The fine, if realized from Sultan Ahmad appellant, shall be paid to the legal heirs of Sultan Ahmad deceased as compensation under section 544-A, Cr. P. C. Akbar and Umar Hayat appellants are on bail. Their bail bonds shall stand discharged. The appeal (Cr. A. 854/78) therefore, partly succeeds, in terms of reduction of the sentences of the three appellants, as stated above.
13. As regard the revision petition (Crl. Rev. No. 935/78) filed by Manzoor Ahmad P. W. 8, no good grounds appear for the enhancement of the sentences of Akbar and Umar Hayat appellants.
However, the petitioner has made out a case for the award of compensation to the heirs of Sultan Ahmad deceased. We have accordingly imposed a fine of Rs. 10,000 on Sultan Ahmad appellant, which we have directed should be paid to the heirs of Sultan Ahmad deceased as compensation under section 544-A, Cr. P. C. This revision petition, therefore, partly succeeds, in terms of the award of compensation, as provided in the para last aforementioned.