GHULAM MUJADDID MIRZA, J. --- Abdul Ghaffar, his son Zafar lqbal and Mohammad Ayub were tried for the murder of Zulfiqar Ali alias Manna, by the Additional Sessions Judge, Sheikhupura. The trial Judge by judgment dated 10 June, 1980, convicted Zafar Iqbal under section 302, P.P.C. He was sentenced to death and a fine of Rs. 5,000 or, in default to suffer one year R. I. The rest were acquitted.
The convict has appealed to this Court. Reference for the confir--mation of death sentence is also before us. Both the matters shall be decided by this judgment.
2. The occurrence in which Zulfiqar was murdered took place on 5th August, 1977 at 6-30 p. 'in. In the premises of Shabnum Cinema situated at Nankana Sahib. Report Exh. P. M. Was lodged by Ijaz Ahmad. It was recorded by S. H. O. Abdul Mateen at Police Station Nankana Sahib.
3. Ijaz Ahmad (P. W. 11), Talib Hussain (P. W. 12) and Abbas (P. W: 13) appeared as eye-witnesses. In addition to the ocular evidence reliance was placed on the recovery of dagger Exh. P. 3 taken into possession vide memo. Exh. P. K. At the instance of Zafar Iqbal, which according to the Serologist's report (Exh. P. Q.) was stained with human blood. Pqst-mortem report of the deceased was also pressed into service.
4. The appellant denied the charge. When questioned "Why this case against you", his answer was as follows :- "My plea is as of my father, which has been recovered today by the Court in my presence. I am innocent."
His father (Abdul Ghaffar) was acquitted by the trial Court. His version was as under :-th "On 5th August, 1977, at about 7.30 p.m. I was present in Shabnum Cinema, Nankana Sahib, when the electricity failed and cinema viewers raised commotion in the Hall and started damag--ing the furniture. On this Ejaz P. W. Alias Goga had quarrel with the Cinema staff and Zafar Iqbal accused and he was injured in -this scuffle. After about half an hour Zulfiqar deceased came in a car alongwith Rashid P. W. The deceased had a sota with him. The picture was again on with the help of a private generator. I was sitting outside the Cinema hall in the lawn: The deceased came to me and started abusing me as to why his brother Ejaz has been beaten. He felled me down and put his foot on my head and started beating me with danda. My son Zafar Iqbal, who was present nearby took a small chhurri from a Rary and caused injuries to save my life. On my appearance before the police, I pleaded this version andit was supported by many viewers of the cinema."
The father said that the case had been registered at the instance of one Maula Baksh who was inimical towards him.
5. Learned counsel appearing on behalf of the, appellant took us through the ocular evidence. His main contention was that the version of the eye witnesses is not to be believed because the actual incident took place in the manner in which Abdul Ghaffar stated in his statement under section 342, Cr: P. C.
Learned counsel submitted that the prosecution concealed the factum of injuries of Abdul Ghaffar father of the appellant. This was not disclosed by Ijaz Ahmad in the F. I. R. Nevertheless, before the trial Court he had to admit that he had caught hold of a. Danda with which he hit the appellant's father. Similarly, testimony of the other two witnesses was also challenged. For instance, Talib Hussain real brother of Bashir was examined as a witness of the recovery of dagger but Bashir stated that he did not know whether Talib Hussain was an eye, witness in this case. With regard to Abbas, learned counsel submitted that though he was not a relative of the deceased but was an interested witness because he was servant of Zulfiqar deceased. In this connection our attention was invited to the cross-examination where the aforesaid position was admitted in Exh. D. C.
6. Recovery was challenged on the ground of delay and that the recovery witnesses were interested persons. We are not impressed by the evidence pertaining to the recovery. It is accordingly discarded.
7. The main contention of the learned counsel was that the statement of the appellant be believed and preference should be given to it over the prosecution version. We have examined the ocular evidence side-by-side the statement of the appellant keeping in view the stand taken by the father of the appellant. Four injuries were caused to the deceased. He was empty handed. Nature of the injuries on the person of appellant's father shows that those were of minor type. After taking all the relevant facts into consideration, we don't think that the appellant could go to the extent of killing the deceased. There is no evidence about grave and sudden provocation: Yet, there are certain factors which go in favour of the appellant. Those are. Abdul Rashid an injured eye-witness was not produced by the prose--cution. He was given up on the pretext that he had been won over by the accused.
The complainant, real brother of the deceased, never mentioned that he had hit Abdul Ghaffar father of the appellant. The suppression of injuries on Abdul Ghaffar shows that the prosecution was purposely withholding an important and relevant fact. The prosecution must suffer for it and the defence must get its benefit.
All that we can do for the appellant is to commute the death sentence. A Learned counsel cited the State v. Akbar (PLD 1061 Lah. 24), Anwar and another v. The State (PLD 1965 Lab. 378) and Mir Afzal v. The State (1972 P Cr. L J 1025) and submitted that a short sentence would meet the ends of justice. We don't agree with this. Even, the case law referred to above is not applicable to the facts of this case. Hence the capital sentence is commuted to life imprisonment.
8. The fine awarded by the trial Court is not adequate. Compen--sation to be paid to the legal heirs must be proper and reasonable. We accordingly gave notice to the learned counsel to show cause why the amount be not enhanced. Notice was duly accepted. So while keeping in view the circumstances of the case, the amount of fine is enhanced to the extent of Rs. 30,000 (thirty thousand). The entire amount shall be paid as compensation to the legal heirs of the deceased.
9. The Collector concerned is directed to take necessary steps for its early realization and payment. .