1. NASIM HASAN SHAH, J.-- Ejaz Ahmad alias Jaja (appellant in Criminal Appeal No.4 of 1985) and Iftikhar Ahmad alias Khara (appellant in Criminal Appeal No. 5 of 1985), both real brothers, were tried alongwith the acquitted accused, Mushtaq Ahmad (their father), Mst. Ferozan (their mother) and yet another brother, Imtiaz, by a learned Additional Sessions Judge, Gujrat, for the murder of their co-villager Abdul Rashid (deceased) and for the attempted murder of Abdul Ghani, Judge vide judgment announced on 7-6-1980 found both of them guilty and convicted--
(1) Ejaz Ahmad alias Jaja (appellant in Cr.A. No.4 of 1985.-- (i) Under section 302 34, P.P. . And sentenced him to death for the murder of Abdur Rashid and a fine of Rs.3,000 or one year R.I., and
(ii) Under section 307/34, P.P.C and sentenced him to 5 years' R.I. For the attempted murder of Abdul Ghani and a fine of. Rs.1,500 or six months' R.I.,
(2) Iftikhar Ahmad alias Khara(appellant in Cr.A.No.5 of 1985.--- (i) Under section 302/34, P. P. C.
2. And sentenced him to imprisonment for life for the murder of Abdur Rashid and a fine of Rs.3,000 or one year R.I. And
(ii) Under section 307/34, P.P.C. And sentenced him to five years' R. I. For the attempted murder of Abdul Ghani and a fine of Rs.1,500 or six months' R. I.
3. On appeal (Cr.A. No.746 of 1980) and the reference (M.R. No.209 of 1980) under section 374, Cr.P.C.
4. Which came up together with the revision (Cr.R. No.751 of 1980), filed by Abdul Ghani P.W., father of the deceased, for enhancement of the sentence of Iftikhar Ahmad alias Khara from life imprisonment to that of death, a Division Bench of the Lahore High Court, Lahore vide judgment, dated 11-1-1983, confirmed the sentence of death awarded to Ejaz Ahmad alias Jaja and also maintained the sentence of imprisonment for life to Iftikhar Ahmad alias Khara while giving him the benefit of the provisions of section 382-B, Cr.P.C. In computing the further period of his sentence of imprisonment for life. The revision for enhancement of his sentence was dismissed.
5. Feeling aggrieved by the above judgment of the High Court, the convicts moved this Court by filing separate leave petitions through Jail (J.P. Nos.12-R and 13-R of 1983). These were heard by us on 21- 1-1985 and were converted into appeals to consider mainly the effect of the compromise which, in the meanwhile, had been entered into between the parties.
6. The occurrence in the case took place on 26-2-1975 at 8-30 p.m. In the street in front of the house of Abdul Ghani P.W. In Mohallah Maqbra Pandi Shah, Gujrat City. The First Information Report was recorded at 7-10 p.m. On the day on the basis of the statement of Mst. Inayat Begilm (Exh.P.F.), which was to the following effect:- "Today at 4-00 p.m. I was present in the house of my brother Abdul Ghani in Mohallah Maqbra Pandi Shah, Guddo aged 10-12 years, daughter of accused Mushtaq Ahmad Rathor Kashmiri who resides in front of the house of my brother, gave beating to Naveed, a minro son of my brother Abdul Ghani. On hearing her son weeping, Mst. Gulzar Bibi (P.W.10), wife of .Abdul Ghani, came out in the lane and complained to Mst. Ferozan, wife of the accused at which Mst. Ferozan abused her. I went ahead and separated them but immediately thereafter Mst. Ferozan alongwith her younger son Imtiaz came and started altercation with my sister-in-law, Mst. Gulzar Bibi and then grappled her. I again cenaratarl them Atabout 6-30 P. M my brother Abdul Ghani and his son Abdul Rashid came to their house from their work. Iftikhar Ahmad alias Khara, Ejaz Ahmad alias Jaja, armed with knives and Imtiaz, empty handed, came raising Lalkara from the street in front of our house and entered our house with pre-consultation. Mst. Ferozan and Mushtaq while standing in the lane had been asking their sons to finish them. The accused caught hold of Abdul Ghani and Abdul Rashid from their neck and took them outside in the lane. Ejaz alias Jaja gave to knife blows to my nephew, Abdul Rashid, by holding him from his neck which landed on the right side of the chest and on the right thigh of my nephew. Irotiaz had been holding my nephew in Japha during their period. Abdul Ghani tried to rescue his son at which Imtiaz and Ejaz alias Jaja caught hold of Abdul Ghani and lftikhar alias Khara gave to knife blows to my brother Abdul Ghani which hit him in front of the chest and on the abdomen. Abdul Ghani received injuries on the thumb of the right hand and on the face in an effort to rescue himself. On account of serious injuries Abdul Ghani and Abdul Rashid were besmeared with blood. I and Mst. Gulzar Bibi raised alarm at which Muhammad Siddique, son of Alam Din Kashmiri of Mohallah Maqbra Pandi Shah and Muhammad Aslam, son of Hassan Din Kashmiri Mohallah Dakki Gate, Gujrat, arrived at the spot. We beseached the accused and rescued the injured from them. Shortly after the occurrence Muhammad Shafi Saraf, M.L.A. Of Azad Kashmir arrived at the spot who, in view of the serious condition of the injured, lifted them to the hospital in his car. I was about to go for lodging the report, when you arrived at the spot. Action be taken against the accused."
7. Abdur Rashid and Abdul Gnani were got admitted in the hospital in a serious injured condition and the dying declaration of Abdul Rashid was duly recorded, after the doctor had certified that he was fit to make it. The Magistrate had also recorded the dying declaration (Exh.P.C./7) of Abdul Ghani, P.W. After obtaining the certificate from the doctor regarding his fitness, in the presence of the doctor.
8. On the same night Abdul Rashid expired. However, Abdul Ghani fortunately survived and later on appeared at the trial as a P. W.
9. Dr. Nazir Ahmad (P.W.1) medically examined Abdur Rashid and found to stab wounds; one on the chest and one on the right thigh of Abdur Rashid. The same injuries were detected by Dr. Muhammad Sami Tariq (P.W.2) at the the of post-mortem examination.
10. Abdul Ghani was also examined by Dr. Nazir Ahmad who found three stab wounds, to of them on the right side of the chest and one on the abdominal cavity above the umbilicus. Abdul Ghani was found to have suffered another incised wound on the left lower jaw.
11. According to the opinion of the doctor, injuries on both the injured persons were caused by a sharp-edged pointed weapon.
12. Appellant Ejaz Ahmad alias Jaja was arrested on 1-3-1975. He led to the recovery of blood-stained knife (P.4) by digging out the same from a place in the graveyard on 10-3-1975. Iftikhar appellant could not be arrested as he had made himself scarce and the proceedings under section 87, Cr.P.C. Were taken against him. He was ultimately arrested on 23-7-1975.
13. The case against the appellants has been fully established by the account of the eye-witnesses coupled with the dying declaration of Abdur Rashid who stated that his father was talking to him in his house about the dispute of the children when Jaja (Ejaz Ahmad) and Khara (Iftikhar Ahmad) accompanied by a third person, who he did not know but could identify, came there. All the three were armed with knives. Khara (Iftikhar Ahmad) gave him fist blows and Jaja (Ejaz Ahmad) gave him knife blows while the third person had held him.
14. The evidence of the recovery of knife (P.4) at the instance of Ejaz Ahmad was established and, in fact, he did not challenge his conviction under section 302, P.P.C. Before us but only prayed for reduction of sentence on the basis of the compromise between the parties. In this connection, we note that Abdul Ghani, father of Abdur Rashid deceased, has submitted an application duly supported by his affidavit to the effect that the parties have now reached a compromise as a result of which the complainants including the wife of the deceased, Mst. Gulzar Begum (whose affidavit is also attached) have forgiven both the appellants "in the interest of peace, better family relations and for future generations". It is also submitted in the application that "the applicant and his family members have now no grouse against the aggrieved party".
15. Learned counsel for the appellants prayed that the compromise be accepted and the appellants be awarded the lesser penalty alongwith the benefit of section 382-B, Cr.P.C. In the matter of computation of sentence.
16. Rao Muhammad Yusuf Khan, learned counsel for the State has not opposed this prayer.
17. We to are inclined to accept it and would, therefore, while maintaining the conviction of the appellant Ijaz alias Jaja under section 302, P.P.C. Reduce his sentence from death to life imprisonment and also allow him the benefit of section 382-B, Cr.P.C. In the matter of computation of sentence.
18. As regards Iftikhar Ahmad alias Khara his learned counsel frankly submitted that he could urge nothing in support of his appeal.
19. We to, after having gone through the record, are satisfied that his conviction is well-merited. He has already been given the lesser penalty of imprisonment for life. No interference in his conviction and sentence is called for. His appeal, accordingly, stands dismissed.
20. Both the appeals are disposed of in the above terms.