1. MUHAMMAD AFZAL ZULLAH J.-This appeal through special leave calls in question judgment, dated 9-12-1974 of the Lahore High Court whereby while maintaining the conviction of Jahangir respondent under section 302, P. P. C. The sentence of death awarded to him by the trial Court, was reduced to imprisonment for life. Muhammad Shafiq respondent co-accused of Jehangir who had also been convicted and sentenced to death for the same offence was however, acquitted on extension of benefit of doubt. Leave to appeal was granted to examine whether there was enough justification for reduction of the sentence of death awarded to Jehangir respondent and also to examine whether on re-appraisal of the evidence, the guilt of Muhammad Shafiq was established.
2. Muhammad Shafiq, respondent has not been served nor there is any independent evidence that he is aware of this appeal. We have accordingly separated his case. The appeal against his acquittal will be taken up when it is mature for hearing.
3. The facts, necessary for disposal of appeal against Jehangir respondent are, ~ that he was involved in a case under section 354/452, P. P. C. And Muhammad Ishaq deceased in this case was an eye-witness againsthim. Jahangir was making efforts to win over this witness but without any success. The last attempt made by Jahangir in this behalf two days prior to the occurrence, which took place on 16-6-1972 at the evening prayer time, had also failed. At the time of the occurrence the deceased was standing outside his house in a street when Jahangir armed with a chhuri and Shafiq who was then empty-handed reached there. Shafiq caught hold of the deceased while Jehangir stabbed him in the chest. The deceased Muhammad Ishaq fell down. Jehangir gave more blows on the fallen man (fourteen in number). The occurrence was witnessed by MA Razia Begum, wife of Muhammad Ishaq and his daughter Yassmeen. A part of the occurrence was also witne3sed by Iftikhar, son-in-law of the deceased. During the investigation, the police recovered the crime weapon (chhuri) from Jahangir. It was found to have been stained with human blood. At the trial Mst. Razia Begum and Iftikhar P. Ws. Furnished the ocular evidence and also made statement about the motive. Jahangir respondent did admit the motive part of the prosecution case but denied that be attacked the deceased. He produced copies of some orders and judgments showing that the deceased was a bad character, history-sheerer, goonda and a previous convict. The learned trial Court relied upon the ocular evidence and convicted both the accused sentencing each one of them to death. On appeal, a learned Division Bench of the High Court reduced the sentence awarded to Jahangir respondent with the following observations :- "In the light of the above discussion we are of the considered view that so far as Jahangir appellant is concerned, his conviction under section 302, P. P. C. Was well deserved and it is accordingly maintained. As for the question of sentence, it may be pointed out that he had visited the deceased earlier on numerons occasions according to the prosecution for making a request to him for not deposing against him in the criminal case, but the deceased had refused to do so. On this occasion also Jahangir appellant may have come along with Muhammad Shafiq appellant do the deceased in order to persuade him for not desposing against Jehangir appellant in the criminal matter. But then his mere refusal at this time as on the past occasion to oblige him could have not resulted in the occurrence, but there must have been something more than that i.e. An altercation or taunts or exchange of abuses which led Jehangir appellant to take out his chhuri and attack the deceased. The prosecution has not produced any evidence to show as to what was the immediate cause of occurrence or what transpired immediately before the occurrence. Since the immediate cause of occurrence remains shrouded in mystery in this case, we are of the considered opinion that the awarding of lesser penalty would have been sufficient to meet the ends of justice."
4. With the help of the learned counsel, we have gone through the entire evidence. One eye-witness out of the two examined at the trial (Yasmin was not examined) had seen the occurrence from the very start. Razia Begum stated that she was spreading washed clothes on the roof of her house when she saw that her husband Muhammad Ishaq deceased was standing out of her house.
5. Jahangir and Shafiq accused came there. One of them i. e. Shafiq caught hold of the deceased while the other (Jehangir) A gave him chhuri blows. According to her statement, there was nothing which might have happened between the arrival of the two accused and the attack on the deceased not even an altercation. Throughout there is nothing in her cross-examination to indicate that this time also respondent had come to ask Muh ammad Ishaq not to appear as a witness. There is not even a suggestion that something verbal or otherwise transpired between the accused and the deceased immediately before the occurrence which might have been considered as of mitigating effect. Therefore, with respect, it is pointed out that the learned Judges in the High Court were not correct in assuming that something might have preceded the actual attack on the deceased. It is not a case of that category where the commencement of the attack is not witnessed and the origin thereof remains shrouded in mystery. Here it is in evidence that two days prior to the occurrence, the deceased had for the last time, refused to oblige the respondent regarding his testimony in the previous case, as a result of which the respondent had hurled out a threat to the deceased. The attack at the time of occurrence obviously was motivated by the afore-noted circumstances. That being so, there was no use looking for any other immediate cause which would have triggered the attack. It appears that the evidence on the relevant point was not correctly read. That being so, we reverse the finding of the High Court on the question of sentence. The next question arises whether Jahangir respondent should now be awarded death sentence the other alternative on a capital charge. It is not a case of an illegal sentence because the High Court could when maintaining the conviction under Section 302, P. P. C. Award the lesser sentence namely, imprisonment for life. According to our finding, however, in the circumstances of this case, the exercise of discretion for awarding the lesser sentence is not based on material on the record. This distinction has been mentioned in 'order to appreciate the argument advanced on behalf of Jahangir respondent, namely, that he -has already served the sentence of imprisonment for life, therefore, he should not be sentenced to death. The effect of awarding the latter sentence in such a situation would be that the accused having served a legal sentence for ,the same offence, contrary to the demand of justice, would be punished again for the same offence. On factual side, the statement made by the learned counsel for jahangir respondent that he has served the sentence, is supported by a certificate which has been placed on record. We accordingly following the rule laid down in Muhammad Sharif v. Muhammad Javed- alias Jeda Ted! And S others PLD 1976 SC 452in the circumstances afore-noted, refrain from awarding the sentence of death to the respondent, although he deserved it ! And, instead, impose a fine Rs. 25,000 as enhancement of sentence. On realization, this amount shall be paid as compensation to the heirs of Muhammad Ishaq deceased under section 544-A, Cr. P. C. In default of payment of fine, Jehangir respondent shall suffer five years' R. I. The learned counsel for the respondent on announcement of judgment bad sought time to produce Jehangir respondent for giving an undertaking that he would pay the fine within a specified time. During the preparation of this judgment, an application was submitted for extension of time for appearance of Jehangir. Finding the request unreasonable, we have already refused it. As a result of the above discussion, this appeal is partly allowed. Jahangir respondent shall be taken into custody forthwith unless, of course, the payment of fine is made prior to the due execution of process in this behalf in accordance with law.