1. ' NASIM HASAN SHAH, J.-Yaqub Ali Shah and his son Sabir Hussain were done to death on 2-7-1977 at about 4.00 p.m. In Katchi Abadi, Loco Shed near Railway General Store, Lahore. The appellants, herein, were tried alongwith Anwar Ali (acquitted accused) under section 302/34, P. P. C. Appellant No. 1 (Naazir Hussain) was awarded the maximum penalty of death while appellant No, 2 (Muhammad Nawaz) and appellant No, 3 (Irshad Ali) were sentenced to imprisonment for life by a learned Additional Sessions Judge, Lahore, vide judgment, dated 25-11-1978.
2. ' On appeal and reference which came up alongwith the revision petition filed by the complainant, Mst. Kaniz Fatima, a Division Bench of the Lahore High Court, Lahore vide judgment, dated 14-9-1981 upheld the convictions and sentences of appellants Nos. 2 and 3 and also confirmed the death sentence awarded to appellant No. 1. The revision petition which was later on pressed only for enhancement of the sentences of appellants Nos. 2 and 3 was dismissed in limine.
3. ' The appellants are dissatisfied with the judgment of the High Court aforesaid. Hence this appeal by leave of this Court.
4. ' The prosecution case in brief is that Yaqub Ali Shah (deceased) was living in Quarter No, 5, near Railway General Store, Lahore alongwith his son, Sabir Hussain (deceased) and other members of his family. The adjoining quarter i,e, Quarter No, 4, was occupied by one Aziz who was living with his wife, Mst. Fazeelat, a young woman of about 15 years old while Aziz himself was an aged man. The family of Yaqub Ali Shah expressed doubts about her moral conduct and character on the ground that strangers used to visit her house. Both the deceased, namely, Yaqub Ali Shah and Sabir Hussain asked the said Aziz to prevent the visits of the strangers to his house and accused Mst.
5. Fazeelat of immorality. Aziz was offended by these allegations considering them to be baseless accusations against his wife.
6. ' Aggrieved by the remarks of the deceased, the aforesaid Aziz, Mehr, Naazir Hussain (appellant No. 1), Irshad Ali (appellant No, 3), who are the uterine brothers of Mst. Fazeelat, Anwar Ali (acquitted accused) and Muhammad Nawaz (appellant No, 2), a cousin of Mst. Fazeelat, came to the quarter of Yaqub Ali Shah (deceased) at about 8-00 p.m. a day prior to the occurrence and started abusing the deceased and their family members and used vulgar language. Mst. Kaniz Fatima (widow of Yaqub Ali Shah, deceased, and mother of Sabir Hussain, deceased) was also present in her quarter at the time and it was pursuant to her advice that both the deceased kept quiet and did not retaliate. In the meantime Murad Ali (P. W. 5) came there and requested the above- mentioned six persons to stop abusing and using filthy language in the mohallah. He also promised to call a meeting of the residents of the mohallah and get the dispute settled among them and thus was able to persuade them to leave the place.
7. ' On the following day, which was the fateful day, Mst. Kaniz Fatima was standing at the door of her quarter at about 4-00 p.m. When she saw her husband, Yaqub Ali Shah and her son, Sabir Hussain coming towards the house. On a bicycle. When they reached near the wall of the Railway General Store, at a distance of about 200 ft. From her house, she saw that Naazir Hussain (appellant No. 1), Irshad Ali (appellant No, 3), Anwar Ali (acquitted accused) and Muhammad Nawaz (appellant No, 2), armed with chhuris, appearing at the spot and attacked Yaqub Ali Shah (deceased) and Sabir Hussain (deceased). She rushed towards them ruising an alarm. Muhammad Nawaz (appellant No, 2) raised lalkara that Yaqub Ali Shah and Sabir Hassain should not be spared. When Mst. Kaniz Fatima reached near them, she saw Naazir Hussain (appellant No. 1) giving chhuri blows to Yaqub Ali Shah as a result of which he fell down. At the same time she saw Muhammad Nawaz (appellant No, 2), Irshad Ali (appellant No, 3) and Anwar Ali (acquitted accused) inflicting chhuri blows on Sabir Hussain (deceased), who also fell down. The alarm raised by Mst. Kaniz Fatima attracted Safdar and Sajjad to the place of occurrence. The appellants then ran away from the spot while waving chhuris in their hands.
8. ' Both the injured persons were taken to the Mayo Hospital. Yaqub Ali Shah expired before any medical aid could be given to him. Sabir Hussain also breathed his last after short while in the Ward, where he had been taken for medical treatment. Mst. Raniz Fatima then went to the Police Station and got a case registered under section 302/34, P. P. C. The same evening at 5-40 p.m. Vide F. I. R. (Exh. P. K.) which was recorded by Muhammad Abbas, S. H.
0. (P. W. 9).
9. ' The case of the prosecution rested on the testimony of Mst. Kaniz Fatima, an eye-witness. Murad Ali (P. W. 5) who alongwith Mst. Kaniz Fatima deposed about the incident of the prior evening. The various recoveries made during investigation were also relied upon.
10. ' Except Nazir Hussain (appellant No. 1), the other three accused, namely, Muhammad Nawaz (appellant No, 2), Irshad Ali (appellant No, 3) and Anwar Ali (acquitted accused), denied their participation in the occurrence and attributed their involvement on account of relationship. Naazir Hussain (appellant No. 1), however, took up the plea of self-defence.
11. The Courts below after careful examination of all the relevant facts held the appellants to be guilty.
12. In doing so they placed reliance on the eye-witness account given by Mst. Kaniz Fatima (P. W. 8), which stood fully corroborated by the recovery of incriminating articles, motive and the medical evidence. Hence they convicted the appellants under section 302/34, P. P. C. And sentenced them as already stated above.
13. After having heard the learned counsel for the appellants and the State, we are satisfied that the conclusions reached by the High Court regarding the guilt of the appellants are well-founded and based on proper appreciation of the evidence.
14. ' We, therefore, agree that the appellants have been rightly convicted under section 302/34, P. P. C.
15. ' However, we consider that the Courts below while awarding Naazir Hussain (appellant No. 1), the sentence of death have omitted from consideration a very important aspect of the case. It is to be noted that even according to the case of the prosecution the appellants had no personal animus against the deceased and the motive for murdering them was the accusations of immorality levelled by them against Mst. Fazeelat, who was the uterine sister of the said Naazir Hussain and Irshad Ali (appellants) and the cousin of Muhammad Nawaz (appellant). These accusations were denied by Aziz, the husband of Mst. Fazeelat and the appellants, convinced that they were false, got enraged and provoked on account of the filthy and dishonourable accusations being levelled against their sister. This was an extenuating circumstance which should have been taken into account by the Courts below and we consider that the imposition of the maximum sentence of death was not justified, in the circumstances of the case. Accordingly we feel that the ends of justice will be satisfied if the sentence of the death imposed upon Naazir Hussain (appellant) is reduced to imprisonment for life.
16. ' In the result the sentence passed against Naazir Hussain (appellant No. 1) is set aside and we reduce the same to imprisonment for life. However, we feel that the sentence of fine amounting to Rs, 2,000 imposed upon him is inadequate. We would increase the sentence of fine to Rs, 10,000, in default of payment of which Naazir Hussain (appellant) will undergo further rigorous imprisonment for 4 years. In case of realisation of fine, the entire amount will be paid to the heirs of Yaqub Ali Shah (deceased). No compensation under section 544-A, Cr. P. C. Is being allowed because the entire amount of fine has already been ordered to be paid to the heirs of Yaqub Ali Shah (deceased).
17. ' The overall result is that the appeal of appellant No. 1 (Naazir Hussain) succeeds to the above extent, but the appeal in respect of the other appellants is dismissed hereby.