Difference of opinion emerged against the members of a Division Bench consisting of Dr. Javid Iqbal and Rustam S. Sidhwa, JJ. While disposing of Murder Reference No. 152 of 1980. Criminal Appeal No. 691 of 1980 and Criminal Revision No. 632 of 1980. Muhammad Azam Advocate, aged 28 years was murdered. The appellants were tried and convicted by the Additional Sessions Judge, Sargodha on 19th May, 1980. Both the learned Judges upheld the conviction of Muhammad Nazeer appellant under section 302, P. P. C. The learned senior puisne Judge confirmed the sentence of death having found that there was no mitigating circumstances for lesser penalty, while Rustam S. Sidhwa J. Awarded the lesser penalty and fine of Rs. 5.000 which was to be aid as compensa--tion to the heirs of the deceased was kept intact Ghulam Rasul and Arshad were acquitted from the charge under section 302/34 P. P. C. While the conviction of Muhammad Ashraf and Muhammad Aslam under section 302/109, P. P. C. Was set aside. So far as Ghulam Rasul and Arshad are concerned, Dr. Javid Iqba1, J. Upheld their conviction under section 307/34 P. P. C. While Rustam S. Sidhwa, J. Agreed with the sentence of three years' rigorous imprisonment and a fine of Rs. 200 but altered the conviction from section 307/34, P. P. C. To one under section 325/34, P. P. C.
2. The occurrence took place near the kinno garden of one Ghulam within the area of Chak No. 2/SB Dhori on the soling road at 2-30 p. m. Ton 31st July, 1979. F. I. R. (Exh. P. L.) was recorded at the statement of Shan Muhammad (P. W. 11) father of the deceased at Police Station Bhalwal at 4-30 p. m. On the same day by Masood Aziz S. 1. (P. W. 14). The distance between the place of occurrence and the police station is fourteen miles. According to the F. I. R. About two and a half months before the occurrence one Mukhtar Ahmad (P. W. 8) brother of the deceased was standing near the house of the accused which was objected by Muhammad Afzal, brother of appellants Nos.4 and 5, since their ladies had to pass that way. An altercation arose and hot words were exchanged. The deceased is said to have arrived and gave a slap and fist blows to Muhammad Afzal. 4/5 days before the present occurrence Mukhtar Ahmad P. W. Got information that Muhammad Afzal and the present appellants were likely to way-lay him on his way back to the village. He changed his route and informed Shan Muhammad, his father, about the information which he had received. The father approached appellant No. 4 and complained. His complaint was not adhered to. On the other hand, hot words were exchanged between appellant No. 4 and Shan Muhammad P. W.
Appellant No. 4 declared that Mukhtar Ahmad had escaped earlier but they are going to take revenge of the insult from sons of Shan Muhammad. On the day of occurrence the accused who were hiding in the garden emerged. Muhammad Nazeer was armed with a .12 bore gun. He stopped the cycling deceased and fired a shot which hit him on his chest. Ghulam Rasul alias Sain and Arshad were armed with sticks. They gave blows to Muhammad Amir (P. W. 12). The other eye- witness in the case is Muhammad Aslam Advocate (P. W. 13).
3. It is now well-settled law that when the matter is placed before the third Judge to resolve the difference of opinion of the Judge s constituting the Division Bench, he is entitled to give his-own find in after perusal of the evidence in the case. Muhammad Sharif v. The State (PLD 1971 Lab. 708) paragraphs 10 and 11, is referred.
4. Learned counsel for Muhammad Nazeer appellant supported the view of Rustam S. Sidhwa. J.
Expressed by him at page 43 of the judgment. He referred to the Matriculation certificate (Exh. D. J.) which shows the date of birth of the appellant as 15th February, 1962. The learned Advocate- General and Mr. A. Basit, counsel for the complainant, referred to Exh. D. O. At page 115 of the printed paper book, an application of Muhammad Ashraf presented to the Chairman, Union Council No. 51 Dhori, in order to get the certificate of date of birth of Muhammad Nazeer son of Muhammad Ashraf. The Chairman looked into the record and did not find the name of the appellant in the register of births and deaths of Union Council No. 51. The learned Additional Sessions Judge observed at the time of trial the age of accused Muhammad Nazeer by appearance 20 years.
5. I have heard the learned counsel for parties and the learned Advocate-General at length They have cited case law for and against the proposition regarding sentence on the basis of minority of the accused, Muhammad Afzal v. The State (PLD 1976 SC 568) and Dosa v. The State (P L D1976 SC 1) are referred. It was not only the age but while dealing with the case of Ghulam Rasul and Arshad, Rustam S. Sidhwa, J. Observed that it was a sudden quarrel and nothing appears to show that these two appellants wanted to kill Muhammad Amir P. W.
6. After going through the evidence and hearing the arguments 1 am of the view that the facts and circumstances of this case somewhat show the attitude of one of the relations of the complainant party by standing in front of the house of the accused where the women folk bad; to pass does reflect to a certain extent involvement of the respect and honour of their womenfolk, which in the village atmosphere is surely of greater importance than the modern cities. This background is also one of the factors which has weighed with me in awarding the lesser penalty. Umar Hayat v. The State (P L D1966 SC 602) is referred.
7. Exh. D. J. Should have been rebutted by positive medical evidence. Exh. D. O. Is of no consequence and it looks strange that the birth entry of the accused, who belongs to a well-to-do family, was not available in the Birth and Death Register of the Union Council. No doubt a school leaving certificate is not a positive proof of the age of the accused but when such situation had arisen in the absence of evidence to the contrary, mere observation of the learned Additional Sessions Judge that the accused by appearance was 20 years of age, in my opinion, cannot be considered to be a sound opinion. Since one member of the Division Bench has awarded lesser penalty to the accused, I am inclined to award him the same punishment. However, there is sufficient force in the submission of Dr. A. Basit Advocate that the compensation of Rs. 5,000 in this case is not compatible to its circumst--ances when a young lawyer has been killed and according to him he has left a widow and some children. Section 544-A, Criminal Procedure Code provides that compensation should be in accordance with the circumstances of the case. In the instant case this is not the position. Mr. R. A. Awan Advocate got up and stated that he has instructions from his client than he will have no objection to the enhancement of compensation. His statement was recorded. In this situation when there is no objection to, the increase of the amount of compensation I think a sum of Rs. 1,00,004 (Rupees one lac) shall meet the ends of justice if the amount is paid to the heirs of the deceased and the lesser penalty is awarded. Death sentence is the normal sentence for murder but to my mind it is not deterrent in Indo-Pakistan Sub-Continent.
Salutary punishment is the award of higher amount of compensation to the heirs of the deceased which is both mandatory and salutary to deter the commission of the crime of murder. I am fortified in this view by the judgment of the Supreme Court in State v. Rab Nawaz (PLD 1974 SC 87).
In Amanat Ali v. The State (PLD 1979 Lab. 551) I have already expressed this view. Ghulam Qadir, maternal grandfather of Muhammad Nazeer appellant is present in Court and he submitted in writing that he is prepared to deposit the said amount within two months on behalf of Muhammad Nazeer appellant. This document has been placed on record. The amount when deposited shall be paid to the heirs of the deceased. In case there is some difficulty or default in payment of the amount, appellant Muhammad Nazeer shall suffer further consecutive imprisonment as provided under section 65, P. P. C. The sentence of death of this appellant shall not be confirmed.
8. Mr. M. B. Zaman submitted that the conviction of his clients Ghulam Rasul and Arshad under section 325/34, P. P. C. Is proper as held by Rustam S. Sidhwa, J. The question is merely academic, for, the sentence in any case is the same. I am afraid I cannot agree with the view expressed, for, one of the injuries on Muhammad Amir P. W. Is on his head and the author of this injury is one of these two accused who were armed with dangs since it is on the vital part of the body I feel inclined to agree with the learned senior puisne J. In this behalf and the conviction of these appellants under section 307/34 P. P. C. Is proper. Mr. M. B. E Zaman further submitted that these two appellants be given benefit of section 382-B, Criminal Procedure Code, as they have already undergone more than the period of their sentence. The section being mandatory the appellants may be released. This submission may be made before the Division Bench by a proper application.