' HAMID ALI MIRZA, J.---We intend to dispose of all the abovesaid three criminal petitions by this common order since they involve common questions of fact and law arising out of the common judgment, dated 17-4-2000 passed by the learned Division Bench of Lahore High Court in Criminal Appeal No,201 of 1995, Criminal Appeal No,21 of 1996 and Murder Reference No,279 of 1995.
2. Criminal Petitions Nos.110 and 1,11 of 2000 have been filed by complainant Ehsan Ellahi for enhancement of sentence of respondent Muhammad Arif (Cr.P.110 of 2000) from life imprisonment to death and against the acquittal of respondents Nazir Ahmed and Javed Iqbal (Cr.P. 111 of 2000), while Criminal Petition No,144 of 2000 has been preferred by convict Muhammad Arif against his conviction and sentence. The trial Court acquitted respondents (Cr.P.111 of 2000) Nazir Ahmed and Javed Iqbal, but convicted Muhammad Arif respondent (Cr.P.110 of 2000) petitioner (Cr.P.144 of 2000) under section 302, P.P.C. And sentenced him to death. The High Court by its common judgment, dated 17-4-2000 in abovementioned criminal appeals and murder reference maintained the acquittal of respondents Nazir Ahmed and Javed Iqbal and conviction of respondent Muhammad Arif but modified his sentence from death to imprisonment for life.
3. The brief facts of the case are that on 25-1-1993 at about 11-00 a.m. Ehsan Ellahi, the complainant/petitioner in Criminal Petitions Nos.110 and 111 of 2000, came to know that respondent Nazir Ahmed wanted to occupy forcibly land owned by former by digging foundations thereon.
Therefore, he alongwith his paternal cousins, namely, Muhammad Riaz (deceased) and Muhammad Bakhsh proceeded to the said land and stopped labour from digging foundation, consequently, labour left the place and the petitioner got the foundations portions filled up.
Thereafter, the petitioner alongwith Muhammad Riaz (deceased) and Muhammad Bakhsh was going towards Cement Company Morr in a Suzuki car and reached near Dhoke Nazar Khan, accused/respondent Nazir Ahmed and Javed Iqbal, both empty-handed, and convict/respondent Muhammad Arif, armed with a pistol, signalled them to stop, and it was stopped, Ehsan Ellahi complained to the respondents against their digging of foundations on their land, on which the respondents flared up when Nazir Ahmed, accused/respondent, raised Lalkara that the complainant party would not be spared, thereafter the accused/petitioner Muhammad Arif fired straight at Muhammad Riaz (deceased) which hit his abdomen. Complainant/petitioner Ehsan Ellahi and Muhammad Bakhsh snatched pistol from accused Muhammad Arif in order to stop him from repeating the fire shots and respondents Nazir Ahmed and Javed Iqbal made their level best to snatch pistol from them but could not succeed. Then, Muhammad Riaz (deceased) was removed in injured condition to the police station in the Suzuki car, who subsequently died in the hospital.
4. Respondents Nazir Ahmed, Javed Iqbal and Muhammad Arif were tried by the Additional District Judge, Rawalpindi, who, after recording evidence and hearing the learned counsel for the parties, convicted respondent Muhammad Arif under section 302, P.P.C. And, finding no mitigating circumstance, sentenced him to death, and acquitted respondents Nazir Ahmed and Javed Iqbal of the charge giving them the benefit of doubt. Criminal Appeal No,201 of 1995 filed by convict/respondent Muhammad Arif, Criminal Appeal No,21 of 1996 filed by complainant Ehsan Ellahi against acquittal of Nazir Ahmed and Java. Iqbal and Murder Reference No,279 of 1995 came up for hearing before the Lahore High Court, Rawalpindi Bench when the learned Division Bench maintained the acquittal of respondents Nazir Ahmed and Javed Iqbal dismissing appeal against them, but so far convict/respondent Muhammad Arif, his conviction was maintained and the sentence was converted from death to life imprisonment and the murder reference was not confirmed.
5. We have heard the learned counsel for the parties and perused the record. The learned counsel for convict/petitioner Muhammad Arif (in Cr.P.144/2000) has only urged that the petitioner being entitled to the benefit of section 382-B, Cr.P.C. Has not been granted and said entitlement was not considered by the High Court while converting his sentence of death into life imprisonment, therefore, benefit of same by granted to him. He has placed reliance upon (i) Muhammad Asif v.
State (1999 SCM R 2489) and (ii) Ghulam Murtaza v. State (PLD 1998 SC 152).
6. The learned counsel for complainant/petitioner in Cr.Ps. Nos.110 and 111 of 2000 and respondent in Cr.P.144 of 2000, who waived the notice for the said petition, has submitted that Cr.P.144 of 2000 is barred by 11 days and further that the prosecution has proved the case against respondents Nazir Ahmed and Javed Iqbal and convict/petitioner Muhammad Arif beyond reasonable doubt keeping in view the ocular evidence and the strong motive, and further that the High Court gave no reasons, whatsoever, for the finding that it was not a case of pre-planned murder for converting sentence. In the end he submitted that in case the conviction and sentence of Muhammad Arif is maintained, he would not press Criminal Petitions 110 and 111 of 2000.
7. On scrutiny of the evidence we find that the trial Court has observed that respondents/accused Nazir Ahmed had raised Lalkara and respondent Javed Iqbal had also made an attempt to get back the pistol from the complainant party snatched by them from convict/petitioner Muhammad Arif and in consequence of said role attributed the said respondents were acquitted by giving them benefit of doubt. We, in the circumstances, find no justification to interfere with the well-reasoned judgment of acquittal of respondents Nazir Ahmed and Javed Iqbal passed by the trial Court and affirmed by the High Court, considering that no infirmity was pointed out in the judgment, consequently, leave to appeal in Criminal Petition 111 of 2000 is refused and the same is dismissed.
8. So far Criminal Petition No,144 of 2000 filed by convict/petitioner Muhammad Arif, there is delay of 11 days in filing the same which is hereby condoned in view of the sufficient cause shown in the application and the affidavit. The only plea raised before us is that the learned Division Bench of Lahore High Court has failed to consider that entitlement of the petitioner under section 382-B, Cr.P.C. For the reduction of period of his detention in custody during the trial of the case towards the sentence of imprisonment passed against him. We have gone through the cases cited by the learned counsel for the petitioner and also the decisions of this Court (i) Javed Iqbal v. State (1998 SCM R 1539), (ii) Bashir v. State (1998 SCM R 1794), (iii) Mukhtiar-ud-Din v. State (1997 SCM R 55), (iv)
Muhammad Rafiq v. State (1995 SCM R 1525), and (v) Liaqat Ali v. State (PLD 1995 SC 485). In all the above-cited cases decided by this Court, the guiding principles for the application of the provisions of section 382-B, Cr.P.C. Have been held to be (i) that section 382-B, Cr.P.C. Is attracted when a Court decides to pass a sentence of imprisonment either in the trial or appellate or revisional proceedings against an accused for the offence charged with and in case the sentence is already passed, there would be no legal bar for the appellate or revisional Court to the grant of benefit of the said provisions to convict who would be entitled to agitate said plea before the Appellate Court in case the trial Court had failed to consider the said provisions of law while imposing the sentence or was wrongly denied the benefit of the same and the Appellate Court would be bound to examine the above question and to rectify the error, mistake, if any, committed by the Court below, (ii) that in case the Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it would be obligatory on its part to take into consideration the provisions of section 382-B, Cr.P.C., (iii) that the Court has discretion not to grant the benefit of section 382-B, Cr.P.C. To a convict but the said discretion is to be exercised judiciously on sound judicial principles, and (iv) that the provisions of section 382-B, Cr.P.C. Is mandatory, in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provisions at the time of imposing the sentence on the convict concerned, no presumption can be raised in favour of the Court having adverted to the same.
9. Admittedly, in the instant case the learned trial Court had awarded the sentence of death to convict/petitioner Muhammad Arif with the observation in paragraph 23 as follows:- ' "This brings me to the quantum of sentence to be awarded to the accused Muhammad Arif.
' In view of the plea of motive, prompt lodgment of F.I.R., recovery of pistol P.4, medical evidence, other related recoveries and the absconsion which have been duly proved as discussed above the prosecution version to the extent of the charge of 'Qatl-e-Amd' of Muhammad Riaz against the accused Muhammad Arif stands proved beyond doubt and holding him guilty of the same I convict him under section 302, P.P.C. It was a broad daylight murder and there being no mitigating circumstance, I am of the considered view that only the extreme penalty of death shall meet the ends of justice in this case."
' In view of the discussion stated above the trial Court passed the sentence of death under section 302, P.P.C. Against the convict/petitioner Muhammad Arif. The High Court in its turn in paragraphs 13 and 14 of its judgment, dated 17-4-2000 has observed:-- "13. A perusal of F.I.R. Exh.P.K. Reveals that on the day of occurrence, while the complainant and others were returning after restraining the Pathan (labourers) from digging their land, they met the accused party who were coming from the opposite side. It is on account of signal of the accused party that complainant party stopped and then the complainant complained to the accused for digging their land. It is at this juncture that not only hot words were exchanged between the parties but they resorted to firing as a result of which Muhammad Riaz deceased received injuries which culminated into his death and at the same time Muhammad Arif accused/appellant also received injuries. Thus it is clear that it was not a pre-planned attack, but the incident took place on the spur of moment. Again it is also not evident from record as to who initiated this unfortunate incident as the record reveals that as soon as both the parties encountered with each other, the fight started.
What is spelt out from the facts stated above is that as soon as the parties met each other on the road, they complained to each other and it was on the spur of moment that occurrence took place on the road side but (not) at the disputed land.
"14. The narration of facts leads us to an irresistible conclusion that it was not a pre-planned attack on the part of accused/appellant and it happened on the spur of moment. Thus under these circumstances, we feel that facts of this case do not call for imposition of capital punishment.
Accordingly, while maintaining the conviction, we modify the sentence of death to imprisonment for life. However, the sentence of compensation is maintained."
10. This Court has held in the above-cited case (Mukhtiar-ud-Din v. State, 1997 SCM R 55 at 61) that the Court is bound to take into consideration the question whether the benefit of section 382-B.
Cr.P.C. Is to be granted or not but it is not mandatory to grant the same. In other words the Court has discretion to decline the same. However, this discretion is not to be exercised arbitrarily or capriciously but should be exercised judiciously on sound judicial principles reviewable by the higher forum in appeal or revision, prompted with the desire to do complete justice between the parties keeping in view rule of consistency and reasonableness. In the instant case it would be observed from the record that the petitioner/accused party had taken the law into their own hands by forcibly encroaching upon the land of the complainant party and got the foundations dug through Pathans, which when was stopped by the complainant party who got the foundation filled up were returning they were waylaid and by giving them signal were stopped by the petitioner/accused party and the petitioner who came armed with a pistol,fired at the deceased hitting him on his abdomen, the vital part of the body, and when the complainant party succeeded in snatching pistol from petitioner Muhammad Arif so that he could not reuse it, the petitioner again made an attempt to snatch the said pistol. The learned trial Court held that charge of Qatl- e-Amd was proved beyond reasonable doubt, consequently passed death sentence against the petitioner, whereas the learned Division Bench of the High Court, having been persuaded by the submissions of the learned counsel for the petitioner that the conviction was not being challenged but the evidence did not warrant capital sentence, came to the conclusion that the occurrence was not pre-planned but happened at the spur of moment (to which we would not subscribe modified the sentence of death to imprisonment for life, when it was day time heinous offence of murder. All the above evidence, circumstances and the conduct of the petitioners/convict that when complainant party was returning empty-handed having got removed the encroachment of their land were waylaid, wantonly attacked by petitioner who came armed with pistol and committed heinous offence of murder and further that the learned Division Bench of the High Court already took lenient view when the learned counsel for the petitioner made submission that the conviction was not being challenged but sentence required to be modified, converted the sentence of death to imprisonment for life, therefore, the petitioner would not be entitled to the benefit under section 382-B, Cr.P.C. In the circumstances. We do not find any justification for extending the benefit under section 382-B, Cr.P.C. To the convict/petitioner. Resultantly, Criminal Petition No,144 of 2000 having no merit and substance is dismissed. So also Criminal Petition No,110 of 2000 filed by the compalainant having not been pressed is dismissed.