1. MAZHAR ALAM KHAN MIANKHEL, J.---The instant appeal with the leave of the Court is directed against the judgment dated 14.11.2006 of the Lahore High Court, Lahore whereby it dismissed the criminal appeal of the appellant and answered the murder reference, sent by the trial Court, in the affirmative.
2. 2.The facts in brief of this case are that appellant-Zafar Iqbal alias Zafarullah Khan had allegedly committed the murder of one Matiullah son of Ghulam Muhammad on the allegation that some cattle had entered the wheat crop of the appellant and caused damage to the same. When Matiullah (decd.) went forward to round-up the cattle, the appellant, armed with Danda, reached there and gave some Danda blows to the said Matiullah (decd.) who, in retaliation, abused him, whereupon, the appellant went inside his but situated in his fields and came out with a .12 bore double barrel gun and fired a straight shot at Matiullah (decd.) hitting him on his left flank. The Complainant-Ghulam Muhammad (PW.8), Hamidullah (PW.9) and one Sher Muhammad, witnessing the occurrence at some distance, went forward towards the spot and the appellant, on seeing them, fled away from the scene of occurrence. Matiullah (decd.), then injured, was then shifted to the civil hospital. The complainant by leaving Hamidullah and Sher Muhammad with Matiullah (decd.), then injured, in the hospital, went to the Police Station, Saddar, Mianwali and lodged a report vide FIR No.331 dated 6.12.2000 against the appellant. Saifullah Khan, S.I., after recording the FIR, went to the hospital and, with the permission of the doctor concerned, recorded the statement of Matiullah (decd.), then injured, in presence of the Complainant, Ibrahim and Amanullah. After arrest of the appellant on 9.01.2001 and completion of the investigation, challan was submitted in the Court and after full fledged trial, the appellant was convicted under section 302(b), P.P.C. and sentenced to death by the Addl. Sessions Judge-I, Mianwali with further direction to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Matiullah.
3. 3.On his appeal before the High Court, the conviction and sentence of the appellant were maintained by the High Court and the Murder Reference, sent by the trial Court, was answered in the affirmative vide the impugned judgment.
4. 4.Since the matter in hand involves the death sentence of the appellant which was also confirmed by the High Court, therefore, for the safe administration of criminal justice, leave to appeal was granted in this case. Hence the present appeal by the leave of the Court.
5. 5.Learned counsel for the parties were heard and record of the case was perused. Perusal of the same would reveal that the occurrence in this case took place when the deceased Matiullah along with the complainant, Hamidullah and Sher Muhammad had gone there, in routine, for grazing their cattle and when their cattle entered the fields of appellant, Matiullah (decd.) went forward to round-up the cattle. In the meanwhile, the appellant, carrying Danda, reached there and started giving Danda blows to the deceased Matiullah and, in retaliation, Matiullah (decd.) abused him, he went in his but and while taking a .12 bore double barrel gun came out and fired at the deceased Matiullah. The incident was reported to the Police by the Complainant-Ghulam Muhammad and after recording of the FIR, the statement of Matiullah (decd.), then injured, was recorded in the hospital in presence of the complainant, Ibrahim and Amanullah which was thumb impressed by the witnesses and attested by the doctor concerned. The occurrence was witnessed by the Complainant, Hamidullah and Sher Muhammad, who in their statements, recorded in the Court, have narrated the same version as given in the FIR. In this case the appellant in his statement recorded under section 342, Cr.P.C. has admitted his presence at the spot and has also admitted the fire shot at the deceased but raised the plea of self-defence, however, he did not produce any evidence to support his plea of self-defence. Even he did not appear as a witness to record his statement on oath to establish his plea. The record of the case speaks about Qatl-iamd of the deceased at the hands of the appellant. The Courts below have exhaustively analyzed the evidence on the record and had concurred regarding guilt of the appellant and we too have no other opinion regarding guilt of the appellant different from that of the Courts below. Hence his conviction is maintained.
6. 6.As far as awarding of death sentence to the appellant by the Courts below is concerned, we have observed that the occurrence had taken place at the spur of the moment due to sudden provocation without any pre-planning and pre-mediation. The mode and manner of the occurrence would further reveal that there was a single shot fired at the deceased without repeating the same. There was no motive for the appellant to commit Qatl-i-amd of the deceased.
7. All these aspects compel us to exercise caution in the matter of appellant's sentence of death.
8. 7.Keeping in view the above aspects of the case, this appeal is dismissed to the extent of appellant's conviction for the offence under section 302(b), P.P.C. recorded and upheld by the Courts below but the same is partly allowed to the extent of appellant's sentence of death which is reduced to imprisonment for life. The benefit of section 382-B, Cr.P.C. shall be extended to the appellant. The order of payment of compensation to the legal heirs of the deceased passed by the trial Court is maintained but in case of default of payment of compensation the appellant shall undergo simple imprisonment for three months.