1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leave of the Court has arisen out of a murder case. The brief facts and points for grant of leave to appeal are as under:- `Umar Hayat, Falak Sher, Mst. Bakhan, Adil and Muhammad Iqbal, the present respondents, were sent up for trial under section 148, P.P.C. For rioting, under section 302/149, P.P.C. For the double murder of Nanik and Sarfraz deceased and under section 307/149, P.P.C. For attempt on the lives of Haq Nawaz, Allah Yar, Mst. Saban, Mst. Zubaida and Allah Bakhsh PWs. `The learned trial Judge, by his judgment dated 17-2-1988, convicted all the five respondents under section 148, P.P.C. And sentenced them to R.I. For one year each. He also convicted all the respondents under section 302/149, P.P.C. On two counts for the murder of Nanik and Sarfraz deceased. Whilst he sentenced Umar Hayat and Falak Sher respondents to death with a fine of Rs.5,000 or in default thereof to six months's R.I. On each count, he sentenced the remaining three respondents to imprisonment for life with a fine of Rs.5,000 or in default thereof to six months' R.I. On each count. He also convicted all the three respondents under section 307/149, P.P.C. For attempt on the lives of Allah Yar, Mst. Saban and Mst. Zubaida and sentenced them to five years' R.I. Each with a fine of Rs.1,000 or in default thereof to undergo further R.I. For three months on each of the three counts. He also convicted all the five respondents under section 324/149, P.P.C. And sentenced each of them to six months' R.I. On each count, though it is not clear from the judgment for whose injuries and on how many counts the said respondents were being convicted. All the sentences were ordered to run concurrently. `The learned Judges of the High Court, by their judgment dated ,11-8-1990, held that initially some verbal encounter took place between Umer Hayat respondent and Allah Yar PW wherein they exchanged abuses and during which course Umer Hayat respondent tried to assault Allah Yar PW, which commotion attracted family members of both the parties and whilst members of the accused party were armed, that of the complainant party were not so and that therefore there was no pre-concert. Consequently, the learned Judges convicted Umer Hayat under section 302; P.P.C.
2. For the murder of Sarfraz deceased and under section 307, P.P.C. For attempt on the life of Allah Yar and maintained the sentences which had been awarded by the trial Judge in that behalf. The learned Judges also convicted Falak Sher and Mst. Bakhan respondents under section 302, P.P.C.
3. For the murder of Manik deceased and under section 324, P.P.C. For injuries to Allah Yar PW and reduced the sentence from death to imprisonment for life of Falak Sher respondent, maintaining the other sentences of Falak Sher and Mst. Bakhan under sections 302 and 324, P.P.C. As awarded by the learned trial Judge. The learned Judges of the High Court maintained the conviction of Adil respondent under section 307, P.P.C., but reduced his sentence to that already undergone. The conviction and sentence of Muhammad Iqbal and Adil respondents under section 324/149, P.P.C.
4. For causing hurt to Mst. Saban, Mst. Zubaida and Haq Nawaz PWs was altered to one under section 323, P.P.C. (three counts) and they maintained the sentences awarded by the trial Judge.
5. Though in the present petition the petitioner seeks leave to appeal against the judgment of the Lahore High Court in order to secure the conviction and sentence of the respondents as originally found and ordered by the learned trial Judge. In particular, with reference to Falak Sher respondent it is submitted that though the learned Judges of the High Court found him guilty under section 302, P.P.C. For the murder of Manik deceased, his sentence was reduced from death to imprisonment for life on the erroneous ground that his case was at par with that of Mst. Bakhan respondent who had been awarded lesser penalty on this count, whereas the said respondent had been awarded the lesser penalty because she was a woman, which did not place his case at par with that of the said lady. `We have given our anxious consideration to this case. So far as the question of general leave is concerned in order to examine the case whether we should set aside the acquittal of the respondents for the various offences for which they were found guilty by the learned trial Judge below, we see no ground to interfere in the said matter as the learned Judges of the High Court examined the case at length and gave cogent reasons for holding that all the respondents had not acted with preconcert and that they appeared to have been attracted individually to the scene of assault and quarrel between Umer Hayat respondent and Allah Yar PW. However, as regards the lesser sentence awarded to Falak Sher respondent in respect of his conviction under section 302, P.P.C. For the death of Manik deceased, we would grant leave to consider the limited question whether the lesser penalty was legally called for on the ground that his case was that par with that of Mst. Bakhan respondent without apparently realising that she had been awarded the lesser penalty because she was a lady."
6. The question as noted in the last part of the afore re-produced order for consideration now against Falak Sher only, regarding which leave to appeal was granted, is; whether, the reasoning in the impugned judgment for reduction of sentence of death awarded to him, can be upheld. The relevant part of the impugned judgment reads as follows:- "Falak Sher and Mst. Bakhan, appellant, caused fatal injuries to Manik, deceased, and one simple hurt each on the face of Allah Yar PW with hatchets, therefore, the conviction of Falak Sher under section 302, P.P.C. (one count) is maintained but his sentence is commuted to imprisonment for life as his case is at par with that of Mst. Bakhan who has been awarded lesser penalty on this count.
7. However, the amount of fine and the sentence of imprisonment awarded in default thereof is .Maintained. The conviction and sentence of Falak Sher under section 324, P.P.C. And that ofMst.
8. Bakhan under section 302 (one count) and 324, P.P.C. Are maintained. Their conviction and sentence under section 302/149, P.P.C. Qua the murder of Sarfraz, deceased, is hereby set aside and they are accordingly acquitted."
9. Mst. Bakhan was awarded lesser sentence by the trial Court; which, in its judgment, observed thus: "lenient view is taken in regard to Mst. Bakhan accused for the reason that she is woman and in regard to-------."
10. After some discussion at the Bar both the learned counsel agreed that the point for mitigation in favour of Mst. Bakhan, assumed to be available toher by the trial Court was based on her sex alone.
11. Whether or not this could be made a ground for her for mitigation in the facts and circumstances of this case, the question is not before us. The fact, however remains that this ground could not be available to Falak Sher by the High Court when reducing his sentence. The next question arises; whether on account of this reasoning which furnishes a distinguishing feature between the case of Falak Sher and Mst. Bakhan on the question of sentence, the sentence of Falak Sher should not been enhanced to death. After some arguments on this point also learned counsel for the appellant/complainant side agreed that in the facts and circumstances of this case without going into the other merits if instead of enhancing the sentence now against Falak Sher to death, an Islamic principle of compensation as propounded in the case of Mohammad Bashir v. The State PLD 1982 SC 139 which also stands confirmed in the form of Qisas and Diyyat Ordinance, may be applied. According to him if Falak Sher is made to pay the full Diyyat the sentence may not then, be enhanced.
12. It is doubtful; whether, in the background of the precedent and legislative law it would be fair to accept the full Diyyat from Falak Sher as also 'a full sentence of imprisonment for life for murder.
13. This might contravene the principle of bar against double jeopardy. Accordingly, again following the rule laid down in the case of Muhammad Bashir in this case which is otherwise of a period prior to the change in the law, we deem it fit to enhance the sentence only of fine, to Rs.85,000. The whole of it shall be paid as compensation to the heirs of Manik deceased. If the amount is not so paid the respondent shall suffer further rigorous imprisonment of 6-1/2 years. The other sentences are maintained. This appeal is partly allowed, accordingly.