' MUSARRAT HILALI, J.---The appellant stood trial in case F.I.R. No,301 dated 10-10-2006 under section 302, P.P.C. Police Station Mathra Peshawar and after having been found guilty by learned Additional Sessions Judge-XIII, Peshawar vide judgment dated 14-11-2012, he was convicted and sentenced to death with a fine of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased or in default thereof to undergo six months' S.I.
2. The complainant Inamullah while in injured condition at Casualty Ward of Lady Reading Hospital, Peshawar alleged that the accused had a quarrel with one Ibrar son of Naimatullah on the main road near the house of Taus Khan situated at Tirai Bala and when he reached there to patch up the matter, the appellant fired at him with which he sustained injuries on his epigastrium and left lower side of his chest. Another person was also got injured in the incident. Qazi Bashir and Abdul Hanan along with others were stated to have witnessed the crime. The complainant subsequently succumbed to the injuries and died, hence the case was registered.
3. After completion of investigation, charge-sheet was filed against the appellant in the court, wherein, he did not plead guilty and claimed trial.
4. At the trial, the prosecution in order to substantiate its case produced 11 P. Ws. In all where after statement of the appellant was recorded under section 342, Cr.P.C., wherein, he professed innocence and claimed false implication. However, he did not wish to be examined on oath nor produced evidence in his defence as required under section 340(2), Cr.P.C. On conclusion of trial, the appellant was convicted and sentenced as stated above. The appellant has questioned his conviction and sentence through instant appeal whereas the learned Additional Sessions Judge- XIII, Peshawar has sent Murder Reference bearing No,22-P/2012 for confirmation of the sentence.
5. Learned counsel for the appellant chose not to contest the conviction of the appellant, however, he argued with vehemence that sentence of death was not warranted in law as the occurrence took place in the spur of a moment without premeditation and intention, therefore, the appellant may be awarded lesser punishment.
6. Conversely, learned counsel for the complainant contended that it was a daylight occurrence and the appellant was charged by the deceased in the F.I.R.; that sufficient material is available on record to connect the appellant with the commission of alleged crime; that the appellant has remained absconder for sufficient long time, which prima facie, links the appellant with the commission of offence; that the prosecution has established the guilt of the appellant through overwhelming and reliable evidence, therefore, the appellant was rightly convicted and sentenced.
7. The learned DAG also adopted the arguments of learned counsel for the complainant.
' We have heard learned counsel for the parties and gone through the record available before us.
8. In this case; the deceased Inamullah then injured reported to the police, in terms, that accused/appellant had a quarrel with one Ibrar son. Of Niamatullah and when the deceased reached to the place of occurrence in order to separate them and pacify the matter, the accused fired at him with the intention to kill, who was hit on epigastrium and left lower chest.
9. The sole question, which requires determination, is that whether the appellant can be held guilty of intentional murder or not. The prosecution in this case has examined as many as 11 witnesses to prove the guilt of the appellant. P.W.9 is stated to be the eye-witness, whose availability at the place of occurrence is {disputed by defence because he was not shown present by the deceased during his statement before the police. The said witness has admitted in his statement before the trial court that he had no enmity or animosity with the appellant. This witness further deposed that he along with his deceased brother were present at home and on hearing hue and cry, they rushed to the place of occurrence where there was a quarrel between one Ibrar his relative and the appellant. The deceased went there to pacify the matter when in the meanwhile accused started firing at the deceased, who was hit and later on succumbed to the injuries and died.
10. The guilt of appellant is proved beyond reasonable doubt, however, from the statement mentioned hereinabove, it is established A that the incident has taken place on the spur of moment where there was no motive or premeditation. The deceased was not an intended victim of the appellant as he was hit only when he intercepted the appellant, who was enraged in anger.
11. The circumstances of the case show that the act was done in a heat of moment without an intention or motive to kill the deceased, therefore, we are of the considered opinion that the sentence recorded by learned trial Court through the impugned judgment dated 14-11-2012 requires to be altered with as there exists mitigating circumstances.
12. Accordingly, this appeal is partially allowed. Conviction of the appellant under section 302(b), P.P.C. Is maintained, however, keeping in view the peculiar circumstances, surrounding in enacting the tragedy, the sentence is reduced to life imprisonment from death with benefit of section 382-B, Cr.P.C. In addition thereto, the appellant shall pay Rs,6,00,000 (Rupees six lac) as compensation to the legal heirs of the deceased within the meaning of section 544-A, Cr.P.C. Or in default thereof to suffer six (6) months' S.I.
13. The Murder Reference bearing No,22-P of 2012 sent by the learned trial Court, is not confirmed thus, answered in the negative.
' These are the detailed reasons for our short order of even date.
Sentence reduced.