' QAZI MUHAMMAD RAFOOQ, J.---The appellant Ulfat Hussain alias Ulfat Nawaz, aged about 26 years, was tried by a learned Additional Sessions Judge, Rawalpindi alongwith his father Muhammad Ajaib under sections 302/34, P.P.C. For committing double murder of two real brothers Liaqat Ali and Allah Ditta in furtherance of their common intention. He was found guilty of the offence charged with and by judgment, dated 1-2-1994 was convicted under section 302,. P.P.C.
And sentenced to death on two counts and a fine of Rs,1,00,000 on each count or further two years'
R.I. In default. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. His father was, however, acquitted.
2. The appeal filed by the appellant was dismissed by a learned Division Bench of the Lahore High court, Rawalpindi Bench, Rawalpindi, vide judgment, dated 20-8-1997, with these modifications that the sentence of death on one count, namely, murder of Allah Ditta was altered to imprisonment for life with benefit of section 382-B, Cr.P.C. And the sentence of fine being not legal was converted to compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. The Murder Reference was answered in the affirmative to the extent of one count. Criminal Revision Petition filed by the complainant against the acquittal of Muhammad Ajaib was also dismissed.
3. Leave to appeal was declined in respect of conviction of the appellant but was granted in regard to the quantum of sentence.
4. The prosecution story in brief is that the complainant Muhammad Sabir and his four brothers Muhammad Hassan (since dead), Abdul Khaliq, Muhammad Fazil and Muhammad Ajaib (acquitted accused) jointly owned a piece of land measuring 9 Marlas located in front of the house of Muhammad Fazil. The complainant being eager to get the said land partitioned invited, on the fateful day, two elders, namely, Sardar Khan Councillor and Hawaldar Qurban Ali for the purpose. At the time of demarcation proceedings the complainant and his sons Liaqat Ali and Allah Ditta and wife Mst. Sohni Bi, Muhammad Ajaib, Abdul Khaliq, the appellant and the said two elders were present on the spot. Muhammad Ajaib and the appellant objected to the measurement of the land which resulted into an altercation between Muhammad Ajaib and the complainant. Muhammad Ajaib directed the appellant to kill the complainant party on which the appellant rushed to the house of his uncle and father-in-law Muhammad Fazil and brought a 12 bore double-barrel shotgun. Raising a Lalkara he fired at Mst. Sohni Bi but the shot went amiss. He fired a second shot at Liaqat Ali hitting him on his chest. He also fired a third shot at Allah Ditta which hit him on his head. Both the injured died on the spot. Muhammad Ajaib persistently exhorted the appellant to finish the entire family of the complainant.
5. The sentence of death awarded to the appellant for the murder of Liaqat Ali was confirmed by the High Court mainly for the reasons that he was the main target. A lenient view was taken in the matter of sentence of death awarded for the murder of Allah Ditta for the reason that 'two deaths could possibly be the result of one shot'. The observations in this context, contained in paragraph 17 of the judgment, read as under:- ' "The defence while putting suggestion to Muhammad Sabir P.W. That only two shots were fired has itself demolished its case that 'only one shot' was fired during the occurrence. However, this suggestion by itself is not an admission of the fact that the two deceased received injuries as a result of two independent shots. The position of the deceased and the appellant shown in the same direction in the site plan and the size of injury of Allah Ditta with, recovery of one pellet underneath the said injury, if judged together, the possibility of receiving injury by Allah Ditta with the fire which caused injuries to Liaqat Ali deceased cannot be ruled out. Liaqat Ali was fired at chest from a distance of 5 Karam and a pellet injury on front side of head of Allah Ditta from the same distance, could not possibly be of independent shot."
6. Assailing the sentence of death awarded to the appellant for the murder of Liaqat Ali the learned counsel for the appellant contended that the sentence of death was not sustainable as the appellant was about 23 years of age at the time of occurrence and had acted under the influence of his father, the occurrence was sudden and unpremeditated and the appellant had fired only one shot to rescue his father from the clutches of the complainant. He also contended that appellant's father was given a "Kassi" blow by the complainant party. Reliance was placed on Nazeer Ahmed v. The State (1999 SCM R 396) and Khuda Yar and 2 others v. The State (1992 SCM R 357). In those cases lesser sentence was awarded for the offence of murder on the ground that the killer had acted under the influence of his father/elder. The learned counsel for the respondent, on the other hand, submitted that the occurrence was premeditated, the appellant being more than 23 years of age and married was not under the influence of his father and had not only plenty of time for reflection but had also murdered his two cousins in cold blood on a petty matter. He also submitted that no harm was done to the appellant's father by the complainant party. Reliance was placed on Aurangzeb v. The State (1978 SCM R 255) and Muhammad Sharif v. The State (1991 SCM R 1622).
7. Notwithstanding the fact that it is the case of the prosecution itself that the appellant had made firing on the two deceased on the repeated exhortation of his father, we are not inclined to alter the sentence of death to imprisonment for life because the appellant was not of an impressionable age at the crucial time. The contention that the appellant's father had sustained an injury at the hands of the complainant is also without substance for want of proof. However, we are inclined to take a lenient view as the appellant and the two deceased were close relatives and there was no enmity between them; there was no premeditation because the appellant was empty-handed and on account of a sudden flare-up had fetched a shotgun post-haste from the house of his uncle and father-in-law located adjacent to the land being partitioned and both the deceased had lost their lives as a result of a single shot fired by the appellant but the sentences on two counts have become inconsistent on account of modification made by the High Court which has not been challenged by the complainant party.
' The result is that the appeal is partly accepted and the sentence of death awarded to the appellant for the murder of Liaqat Ali is altered to imprisonment for life with benefit of section 382- B, Cr.P.C. Both the sentences of imprisonment for life shall run concurrently.
Sentence Reduced