Muhammad Tariq Abbasi). This judgment shall decide the above captioned criminal appeal as well as the criminal revision, as both are out come of single judgment dated 18.3.2013, passed by the learned Additional Sessions judge, Kabirwala, District Khanewal, whereby in case FIR No. 75, dated 17.4.2006, registered under sections 302/148/149 PPC at Police Station Nawan Shehar, Kabirwala, District Khanewal, Abdullah (appellant in the above captioned appeal whereas the respondent No. 2 in the above mentioned criminal revision, hereinafter referred to as the appellant) has been convicted under section 302(c) PPC and sentenced to ten years R.I. and Dfrat amounting to Rs.7,54,430/, with benefit of section 382-B Cr.P.C.
2. The facts are that Yasirimran, complainant (PW.8) had got recorded the above captioned FIR with the contention that on receipt of an information that the appellant who was involved in case FIR No. 31./2006, registered under sections 324/34 PPC at Police Station Nawan Shehar, Kabirwala, District Khanewal, was avalia.ble at the Dera of Muhammad Nawaz (co-accused), he alongwith' his brother' Ahsan Ulan (deceased), BaShir Ahmed' and Muhammad Amjad, PWs reached at the spot, so that after inquiry the police may be informed; when the Complainant party reached near the Dera of Muhammad Nawaz, Abdullah (appellant.) armed with 222 bore rifle, Allah Ditta, labal, Muhammad Nawaz and Nazar Hussain (co-accused), all armed with fire arms, alongwith an unknown armed perSon were found there, their watching from a distance was started and through telephone police was also informed; in the meanwhile-the above named accused came out of the Dera and started firing at the complainant party; Abdullah (appellant) with. his rifle made direct fire at the complainant but he saved himself while lying on the around; the second fire made by Abdullah (appellant) hit at the chest of Ahsan Utah (deceased), who became seriously injured and fell down; all the accused while firing fled away on foot and on motorcycles; Ahsan Llliah when was attended found dead; the motive was that the appellant was suspecting illicit relations of his wife Mst. Parveen Bibi with the complainant; previously the appellant and others fired at the complainant but he was saved and above mentioned case was registered; the appellant alongwith his co-accused wile making firing and causing murder of Ahsan Ullah had committed highhandedness. The appeflantalongWith his above named co accused was tried and ultimately through the impugned judgment, he was convicted and sentenced in the above mentioned terms.
Consequently, the matters in hand.
3. The learned counsel for the appellant has not objected to the conviction recorded by the learned trial court against the appellant but has sought attention of the court towards the Diyat imposed to the appellant, with the contention that the same being not prescribed under section 302(c) PPC, could not be imposed.
4. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for its dismissal but have also sought enhancement of sentence to the appellant, with the contentions that sufficient material in shape of oral as well as documentary evidence in proof of charge against the appellant was available on the record, hence he was entitled for major penalty under section 302(b) PPC.
5. Arguments heard and record perused.
6. The record shows that the learned trial court. for convicting the appellant under section 302(c)
PPC and awarding..him the.above mentioned sentence, under paras 20 & 21 of the impugned judgment, has given the following reasons:- "20- The motive for commission of offence could not belied by the accused rather in reply to the question No. 11 in his statement u/s 342 Cr.P.0 the accused Abdullah acimitted previous enmity with the complainant as well as grudge between them over criminal case No. 31/06 u/s .324 PPC, but he did not make any conscious effort to avenge the same. Likewisc, the accused Abdullah has also admitted his presence at the Dere of Muhammad Nawaz Ojla at the time of occurrence, but rest of his claim regarding raid of police or presence of police at the time of place of occurrence could not be proved through independent evidence. PW 10 Muhammad Amjad and PW 11 Habib-ullah claimed that they had witnessed the accused Abdullah armed with fire arm present at the Dere of Muhammad Nawaz is in fact corroborated by the admission of accused Abdullah himself to the extent of his presence at the said Dora, though has denied to be armed with fire arm."
"21. Recovery fire arm empties of rifle 44 bore and rifle 22 bore, coupled with statements of recovery witnesses and medical evidence sufficiently connects the accused Abdullah with the occurrence.
The report of forensic science laboratory is also positive. In the light of aforegoing circumstances, I am of the considered view that the presence as well as role of accused Abdullah in the commission of offence has been proved but there are mitigating circumstances also admission on the part of complainant in Ex.PM as well as his examination in chief corroborated by PW 10 and PW 11 that they reached at the Vera of Muhammad Nawaz Ojla in order to trace out the accused Abdullah and their presence at the said Dere without informing the police or without legally obtaining assistance of police is sufficient to believe that the complainant and witnesses went at the Vera of Muhammad Nawaz with some ulterior design and they had themselves invited the trouble. A careful analysis of prosecution evidence shows that the accused Abdullah had never pre-empted assault or revenge with intention to cause of death of any one including the complainant or witnesses rather he was compelled to use force in order to save his life apprehending threat at the hand of complainant/witnesses. No direct motive has been attributed to the accused Abdullah to cause the death of Ehsan-ullah as the actual enmity was between complainant and the said accused. After evaluation of prosecution evidence itself it was also clear that the accused Abdullah. had no intention to cause death rather he was compelled by the prevailing circumstances to use the force in his own defence. The act of accused Abdullah is covered by Sec, 100 and 102 of PPC. Thus, although the guilt of accused Abdullah is proved yet under the circumstances discussed above under which he caused death of one of the assailants while exercising his right of self defence entitles him to some relief under the existing law. Thus, while maintaining that the accused had committed the QatI-I-Amd this court of the view that the offence falls within the definition of Sec. 302-C. Hence, accused Abdullah is convicted and sentenced for offente u/s 302-C of PPC for a period of 10 (ten) years Ror and he shall also be liable to pay Diyat valuing of which shall be determined in terms of Sec, 323 and notification S.R.O.
706(1)/2007, (amounting to Rs.7511430/-). The convict is also given benefit of Sec, 382-13 Cr.P.C."
The above mentioned is the correct extract of the evidence available on the record of learned trial court. The learned counsel for the revision petitioner has failed to rebutt the above mentioned findings, made by the learned trial court towards imposition of the above said sentence to the appellant.
7. The learned trial court besides sentence of ten years R.I. to the appellant, under section 302(c)
PPC, also imposed against him the above mentioned amount of Diyat. It would be seen herein- below whether imposition of Diyat under the above mentioned provision is justified and valid or otherwise. For convenience section 302 PPC is reproduced herein below:- 302 Punishment of qatl-i-amd. Whoever commits qati-i-and shall, subject to the provisions of this Chapter be;
(a) punished with death as qiasas;.
(b) Punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of ciisas is not applicable; [Provided that nothing in this clause shall apply to offence to qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.]
8. From the above mentioned provision, it is crystal clear that penalty of Diyat is not provided under it. It is well settled principle of law that for an offence a penalty, prescribed for it should only be imposed. The Diyat is always considered primary/substantive sentence and could only be imposed under the provisions, wherein it is provided. When as stated 1 and noted above, payment of Diyat is not prescribed for offence under section 302(c) PPC, hence. its imposition under the said provision could. not be termed justified and valid. Reference in this respect may be made to the law, laid down in the case of "Azmat Matt Versus The State" (2014 SCMR /178). Therefore, the .impugned judgment to the extent of above said Diyat amount is set-aside.
9. Under Section 544-A Cr.,P,C, it is provided that When an accused is convicted and sentenced for commission of an offence of death, hurt, injury, mental anguish or psychological damage, then the court shall also direct him to pay compensation to the victim or his legal heirs, which shall be determined by the court on the basis of all the attending facts and circumstances. The said provision reads as under:- (544-A. Compensation to the heirs of the person killed, etc. [(1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or psychological damage to, any person is caused or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case',.] and (2)
(3)
(4)
(5) An order under this section may also be made by an appellant Court or by a Court when exercising its powers of revision.
From -bare reading of the above mentioned section, it is evident that it is mandatory in nature and compensation under it could not be withheld, unless there are strong reasons for refusal, which must be specifically highlighted.' in this regard, reliance may be placed. to the cases "The State Vs. Rah Nawaz and another" (PLD 1974 Supreme. Court 87) and "Khalid and others Vs. The State" (1975 SCM R 500).
10. We have noticed that the .learned trial court under above said provision has not awarded any compensation. Even no reason for non imposition of it has been assigned. As per the dictum laid down in case "Saeed Shah and others Versus The State and other" (2005 M LD 389), if the learned Trial Court has not awarded the compensation, even then . this Court is fully empowered to award the same. As there is no reason, cause or justification not to impose compensation as provided under section 544-A Cr.PC, hence it is directed that the appellant shall also be liable to pay compensation of Rs.10,000,00/-- to the legal heirs of the deceased, failing which he shall further undergo 5.1. for six months.
11. Resultantly, with the above mentioned modification in the impugned judgment, the Criminal Appeal No.179 of 2013 is dismissed. The above mentioned reasons have also made the above said Criminal Revision No. 140 of 2013 meritless, hence dismissed.