KHALIL UR REHMAN RAMDAY, J.--Tariq Mehmood his brother Muhammad Khalid and their father Faqir Muhammad were charged by the learned Judge, Punjab Special Court No.IX of Speedy Trials at Gujranwala under section 302/307/365/353/34, P.P.C, for having launched an assault on the Forest Guards and the BAILDARS of the Forest Department in furtherance of their common intention and having, in the process, killed Abdul Ghafoor BAILDAJR and having thereafter abducted Muhammad Aslam, Forest Guard.
2. Through his judgment dated 20-9-1988, the said learned trial Court extended the benefit of doubt to Faqir Muhammad accused who was accordingly acquitted but found Tariq and Khalid guilty of the charges levelled against them.
3. Both. Of them were convicted under section 353/34, P.P.C. And each one of them wes sentenced to one year R.I. Therefor. They were also convicted under section 365/34, P.P.C. And each one of them was punished with five years' R.I. On the said charge.
4. They were also found guilty under section 307/34, P.P.C. For having fired at Sarwar Butt complainant which had however, gone amiss and each one of them was directed to suffer five years, R.I. On the said count. Both of them were also convicted under section 302/34, P.P.C. And while each one of them was sentenced to pay a fine of Rs.20,000 or two years' R.I. In default thereof, Tariq was sentenced to death while Khalid was punished with imprisonment for fife on the said charge. The entire amount of fine was directed to be paid to the heirs of the deceased.
5. Tariq appellant who was allegedly armed with a .12 bore gun at the time of occurrence had led to the recovery of the said gun along with four five cartridges but had not been able to produce any valid licence for the possession thereof.
6. He was tried also for an offence punishable under section 13 of the Arms Ordinance NoXX of 1965 by the above-mentioned ' learned Court and having found him guilty of the said charge, through a separate judgment, dated 20-9-1988, sentenced him to five years' R.I. With a fine of Rs.2,000 or one year R.I. In default of payment of the said fine.
7. Tariq and Khalid appellants have filed Criminal Appeal No.980/88 to impugn the convictions and the sentences recorded against them under sections 302/34, 307/34, 365/34 and 353/34, P.P.C.
While Tariq appellant has also impugned his conviction under section 13 of the Arms Ordinance of 1965 but through a separate Criminal Appeal No.991/88.
8. Both these matters are being disposed of together through this single judgment.
9. It was Muhammad Sarwar Butt, a Block Officer of the Forest Department of the Government of the Punjab, posted at Forest Punj Grain who had reported to Muhammad Anwar A.S.I. (P.W.9) on 11- 8-1987 that he was present *in compartment No.173 of Forest Panj Grain along with some Forest Guards and BAILDARS of the Forest Department for tree plantation when Faqir accused and Khalid and Tariq appellants while armed with BALLAM and rifles respectively, reached there and on a LALKARA raised by Faqir Muhammad accused, Khalid appellant fired at Sarwar Butt complainant which, however, missed whereafter, Tariq appellant fired a shot which hit the front chest of Abdul Ghafoor BAILDAR, who fell down and later died.
10. He had disclosed that Faqir Muhammad accused and others had trespassed into the State land in Forest Punj Grain which land had been got vacated from them by the department and that it was on account of this grievance that Faqir Muhammad, Tariq and Khalid had launched the attack in question on the complainant and his companions which had resulted, in the death of Abdul Ghafoor, BAILDAR, and after which occurrence the assailants had even forcibly lifted and taken away Muhammad Aslam, Forest Guard.
11. Faqir Muhammad. Accused made a detailed statement unde section 342, Cr.P.C. And having claimed that he had purchased eighty-five acres of land in village Punj Grain in the year 1980, admitted that the Fores Department at Slalkot had laid claim to the entire land of the said village Punj Grain, including the land allegedly purchased by him, under orders of Special Military Court No.28 at Sialkot against which claim of the Forest Department a writ bearing W.P. No.168/R-86 had been preferred in the Lahore High Court. He further claimed that status quo had been issued by the High Court in the said writ petition and alleged that on 2-8-1987, Muhammad Sarwar Butt complainant came to the land in question, along with some officials of the Forest Department and the Ilaqa Magistrate, for the purpose of taking forcible possession of the said land when Sarwar Butt complainant set Faqir Muhammad's JHUGGI and household articles on fire and burnt the same.
12. Faqir Muhammad farther claimed that he, thereafter, rushed to the Lahore High Court and filed another writ petition bearing No3574/87 which, however, could not be heard till the day of occurrence and that it was during this period that he learnt that his son Tariq (the appellant) had fired a shot at Sarwar Butt complainant in order to deter him and his companions from taking forcible possession of the land in question and that it was a pellet fired from this shot which had hit Abdul Ghafoor deceased who died as a result thereof.
13. During the pendency Of the present appeals before us, an application bearing Criminal Miscellaneous No3/91 was moved praying for the acquittal of the appellants on the ground that one Siraj Din who was the only surviving heir of Abdul Ghafoor deceased had compounded the murder in question after granting AFW to them.
14. In pursuance of an order dated 27-10-1991 passed by us on the said application, the said Siraj Din is present in Court today. He is accompanied by one Muhammad Akbar who is the Chairman of Union Council No34 of Tehsil and District Sialkot in which Union Council, village Khundha Chak which was the place of residence of Abdul Ghafoor deceased, falls.
15. Both of them offered to make their statements on Oath, which have been separately recorded after the two had been identified by Rana Altaf Hussain Khan, Advocate.
16. The said Siraj Din claimed before us that he was a consanguine brother of Abdul Ghafoor deceased; that their father had died in the year 1971; that the mother of Abdul Ghafoor had also died before the present occurrence-, that the deceased had never contracted any marriage and had thus left behind no widow or issues, that the deceased had no brother or sister, either from his own mother or from the mother of the said Siraj Din; that the maternal-grand--parents of the deceased had also died before his murder; that he was the only heir left by Abdul Ghafoor deceased; that the entire land of the deceased had been mutated in his name and finally that he had granted AM to the appellants in the name of ALL6H and consequently prayed that the appellants be acquitted of Abdul Ghafoor's murder.
17. Muhamamd Akbar, Chairman, verified the above-noticed information conveyed to us by the above-mentioned Siraj Din.
18. Having recorded the statements of the said Siraj Din and Muhammad Akbar, Chairman we are satisfied that Siraj Din is the only surviving heir of Abdul Ghafoor deceased and that he has granted AM to Tariq and Khalid appellants, voluntarily and of his own, free will.
19. As has been noticed above, besides having been convicted under section 302/34, P.P.C., the appellants had also been convicted and sentenced under sections 353/34, 365/34 and 307/34, P.P.C. Ncedless to mention that Tariq appellant had been further convicted and punished under section 13 of the Arms Ordinance of 1%5 also.
20. The offence under section 353, P.P.C. Is not com pundable. Similar is the position of the offence punishable under section 36.5, P.P.C. And of the offence under section 13 of the Arms Ordinance of 1965. The offence under section 307, P.P.C. Is compoundable but Sarwar Butt complainant against whom the said offence had been committed, has not compounded the same.
21. In the circumstances, the grant of AFW by Siraj Din above-mentioned shall not affect the convictions and the sentences recorded against the two I A appellants under the above noticed provisions of law Le. Under sections 353/34, 365/34 and 307/34, P.P.C. as also under section 13 of the Arms Ordinance of 1965.
22. As has been noticed above, the assault in question had been launched by the appellants on the complainant party not because of any grievance against the persons of the victims of this aggression but because the said victims had attempted to defend the State property being employees of the Provincial Government and thus, having acted as agents of the State.
123, Despite lengthy cross-examination, the appellants could not succeed in demonstrating that Abdul Ghafoor deceased was not a BAILDAR of the Forest Department.
24. The murder of Abdul Ghafoor deceased was thus not the murder of just an individual but was murder of an agent of the State.
25. It is true that Siraj Din, the WALT of Abdul Ghafoor deceased has compounded the murder in question but in view of what has been noticed above, this composition of the murder in question would have the effect only to the extent of relieving the appellants of their liability to the execution of OISAS as we consider that the case in hand is one to which the provisions of the newly-added section of 311, P.P.C. Are attracted.
26. The provisions of the said section 311, P.P-Cprovide as under:-- Ta'zir after waiver or compounding of right of Qisas in Qatl-i-amd Notwithstanding anything contained in section 309 or section 310 the Court - may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with imprisonment of either description for a term which may extend to ten years as tazir: Provided that the Court may punish an offender who is previous convict, habitual or professional criminal, with imprisonment of either description for a term which may extend to fourteen years as ta'zir.
27. It may be mentioned here that in view of these provisions, composition of an offence of murder does not automatically entitle an accused/convict to a clean acquittal and that despite such a composition of the offence of murder, it is the obligation of the Court to determine and to give a finding that the accused person or the convict in question did not fall within the purview of section 311, P.P.C.
28. As has been mentioned above, the two appellants had assaulted and killed an agent of the State whose only fault was the discharge of his obligations as such an agent.
29. In the circumstances despite the composition of the murder in question, as above noticed, and despite the waiver of QISAS by the WALI of the deceased, we find it a fit case where the appellants should be punished by way of TA'ZlR
30. Consequently, the sentence of death imposed on Tariq appellant and the sentence of imprisonment for life awarded to Khalid appellant are setaside but each one of them is punished to suffer five years' RJ. As envisaged by the said section 311, P.P.C.
31. Since section 311, P.P.C. Does not authorise imposition of any fine, therefore, the sentence of fine of Rs.20,000 or sufferance of two years' R.I. In default thereof awarded to each appellant is set aside.
32. As has been mentioned above, the convictions and sentences recorded against the two appellants under sections 353/34, 365/34 and 307/34, P.P.C. Are maintained.
33. It is however, directed that the sentences of imprisonment awarded to the said appellants under section 311, P.P.C. As also under the above-mentioned offences, shall run concurrently.
34. The appellants are also allowed the benefit of the provisions of section 382-B, Cr.P.C.
35. Khalid appellant is on bail. He shall be arrested forthwith and committed to prison to undergo the unsuffered above-punishment of imprisonment.
36. The learned counsel for Tariq appellant has elected not to press Crl. Appeal No.991/88 which impugns his conviction and sentence recorded under section 13 of the Arms Ordinance of 1965.
37. Criminal Appeal No.991/88 is, therefore, dismissed as not pressed. It is however, directed that the sentence of imprisonment awarded to Tariq appellant under section 13 of the Arms Ordinance of 1965 shall also run concurrently with the above-mentioned punishments of imprisonment.
38. Both these appeals are disposed of in the above terms.
N.H.Q./T-8/L