' NASIR ASLAM ZAHID, J.---Appellant in this case is convict Muhammad Hayat son of Faiz Muhammad. By the following order dated 15-5-1994. Leave was granted to the appellant against the impugned judgment dated 23-2-1993 of the Lahore High Court:- "The petitioners seek leave to appeal in these two petitions against the judgment of the High Court dated 23-2-1993.
(2). The facts to be noted are that Zulfiqar, Sarfraz and Muhammad Hayat were tried by the learned Additional Sessions Judge, Jhang, under section 302/307/34, P.P.C. For the murders of Ghulam Haider and Muhammad Bakhsh deceased, and causing injuries to Haq Nawaz and Murad P.Ws. The learned trial Court acquitted Sarfraz, Zulfiqar and Hayat of the charge under section 302/307, P.P.C., but convicted Hayat under section 304, Part I, P.P.C., and sentenced to undergo imprisonment for life and a fine of Rs,10,000 or in default thereof to suffer 2 years R.I. The State challenged the acquittal of Sarfraz, Zulfiqar and Hayat on the charges under section 302/307, P.P.C.. The complainant also preferred a Criminal Revision against their acquittal. The High Court by means of the impugned judgment maintained the acquittal of Sarfraz and Zulfiqar and convicted Muhammad Hayat under section 302, P.P.C. And sentenced him to death and fine of Rs,10,000 or in default thereof to suffer R.I. For two years. He was further directed to pay compensation amounting to Rs,20,000 to the heirs of both the deceased in equal sharers. He was also convicted under section 307, P.P.C. And sentenced to undergo R.I. For 7 years on two counts.
(3). The learned counsel for the petitioner (Ahmad) assailed the acquittal order passed in favour of Safraz and Zulfiqar. He stated that two persons had died and two were injured. All the three accused were present. Sarfraz raised Lalkara whereas Zulfiqar caused injuries by means of fire- arm. The High Court maintained the order of acquittal on the ground that Sarfraz is a disabled person and only a proverbial Lakara had been attributed to him. The presence of Zulfiqar at the scene of occurrence on the Eid day is not believable.
(4). According to the prosecution story, Hayat was armed with a .12 bore gun, Sarfraz and Zulfiqar empty handed came to the place of occurrence raising Lalkara. Muhammad Hayat fired a shot hitting Haq Nawaz on his chest who fell down. Hayat then shivered and, thus, Zulfiqar took the gun from the hand of his father Hayat and fired a shot hitting the abdomen of Murad. Admittedly, Sarfraz did not cause any injury and he was rightly acquitted, as there was only an allegation of raising Lalkara against him. According to the learned counsel, Hayat was 55 years old. There is no material on the file that Hayat was suffering from any disease. He had come to the place of occurrence with a specific purpose of taking the life of the deceased. The plea that he shivered appears to be introduced in order to involve his son Zulfiqar who allegedly came to the place of occurrence empty handed. If there was complicity between Hayat and his two sons all of them would have come to the place of occurrence duly armed. The acquittal of these persons is based on proper appreciation of evidence. The order is not perverse, therefore, we refuse to grant leave against Sarfraz and Zulfiqar.
(5). Muhammad Hayat petitioner seeks leave to appeal against his conviction. The learned counsel for the petitioner has submitted that he has a right to file an appeal under Article 185, sub-clause 2(a) of the Constitution, as the High Court on appeal reversed the order of acquittal made in favour of the petitioner under section 302, P.P.C. Leave is granted. Notice to the respondent."
We have heard Raja Muhammad Anwar, learned Senior Advocate Supreme Court for the appellant, who has pressed this appeal only on the question of sentence of death awarded to the appellant by the High Court while enhancing his sentence under section 302, P.P.C. From life imprisonment, and Ch. Ghulam Ahmad, learned Advocate Supreme Court for the State.
2. The judgment of the trial Court is dated 8-12-1985 whereby appellant Muhammad Hayat was acquitted of the charge under section 302/307, P.P.C. But was convicted under section 304, Part I, P.P.C. And was sentenced to undergo life imprisonment and also to pay fine. As noted in the ing order, the High Court, while dealing with the appeals of the convicts as well as the State appeal and the criminal revision preferred by the complainant, maintained the acquittal of co-accused Sarfraz and Zulfiqar but convicted appellant Muhammad Hayat under section 302, P.P.C. And sentenced him to death and fine and also directed him to pay compensation to the heirs of the two deceased. Appellant was also convicted under section 307, P.P.C. And sentenced to undergo R.
1. For 7 years on two counts.
3. As observed, this appeal is pressed by Raja Muhammad Anwar, learned counsel for the appellant, only against the sentence of death awarded to the appellant. It has been submitted by learned counsel for the appellant that in the trial the appellant was acquitted of the charge under section 302/307, P.P.C. But was convicted under section 304, Part I, P.P.C. And sentenced to life imprisonment by the Additional Sessions Judge, Jhang, on 8-12-1985. It is further submitted by learned counsel for the appellant that, by the General Amnesty dated 7-12-1988, the President had commuted all capital sentences to life imprisonment and, in the circumstances, if appellant Muhammad Hayat had been convicted under section 302, P.P.C. And awarded death sentence in this very case by the trial Court by judgment dated 8-12-1985, the sentence of death would have been committed to life imprisonment on account of the said General Amnesty and, therefore, the appellant could not be placed in a worse situation only for the reason that he had not been awarded death sentence by the trial Court and instead was awarded life imprisonment under section 304, Part I, P.P.C. According to learned counsel for the appellant, in view of the aforesaid General Amnesty dated 7-12-1988, the judgment of the trial Court having been passed on 8-12- 1985, that is prior to the date of the General Amnesty, the High Court erred in awarding death sentence to him while allowing the State appeal against the appellant.
' The contention advanced by learned counsel for the appellant appeals to reason and is also supported by a judgment of this Court dated 6-12-1998 in Criminal Appeal No, 15 of 1991 (Muhammad Afzal v. The State) where it was held as follows:- "We have heard all the learned counsel on this question and also perused the recent judgment of the Full Bench of this Court delivered in the case of Ghulam Muhammad etc. v. The State (Cr.A.No,49 of 1991).
' As a result of the consideration of all circumstances we are of the opinion that the benefit of the Amnesty can be availed of by all persons on trial for the murder wherein the trials were concluded and the judgment delivered before 6-12-1988. We are also of the opinion that the result of the rule laid down in the case of Ghulam Muhammad etc. Is that the benefit of the amnesty can be availed of by not only those accused who were convicted by the Sessions Court and sentenced to death before 6-12-1988 but even those accused whose sentences were still awaiting confirmation by the High Court or in further appeal before the Supreme Court or by way of mercy petition. As has been explained by this Court in earlier cases the order passed by the High Court of appeals against sentences of death and references made for their confirmation is in the nature of the substitutive order. Resultantly, the basic order in such cases is the order passed by the Sessions Court which only is substituted by the order passed in appeal and reference. Accordingly, the relevant date for determining when the accused is sentenced for the murder for which he has been tried is the date when Sessions Court passed the sentence. Now when in all cases wherein the accused who were convicted under section 302, P.P.C. And sentenced to death before 6-12-1988 can avail of the amnesty and obtain commutation in their sentences to imprisonment for life; It is only appropriate that the High Court and the Supreme Court should also not award sentences of death in such cases i.e, cases which were disposed of by the Sessions Court before 6-12-1988.
' In this view of the matter, we hold that the award of the sentence of death to the appellants whose trial had concluded much before 6-12-1988 was not appropriate even on being found guilty by the High Court of murder of one or the other deceased after 6-12-1988. Hence, the sentences and death awarded by the High Court on 19-11-1990 to the appellants are liable to be reduced to that of life imprisonment."
4. Confirming the above view, sentence of death awarded to appellant Muhammad Hayat is converted to life imprisonment and, to that extent only, c this appeal succeeds. The other convictions and other sentences awarded to the appellant by the High Court are maintained.
' Criminal Appeal No,327 of 1994 stands disposed of accordingly.
Sentence reduced.