' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,749 of 1995 filed by Agha Farakh Sultan and Agha Waheed-ur-Rehman, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment dated 7-11-1995 as under:
1. Agha Farakh Sultan, appellant under section 302/34, P.P.C. To death with the further direction to pay Rs,50,000 (Rupees fifty thousand) as fine, or in default two years' R.I.
2 Agha Waheed-ur-Rehman, appellant, under section 302/34, P.P.C. To-undergo imprisonment for life with a fine of Rs,50,000 and in default two years' R.I. With the benefit of section 382-B, Cr.P.C.
' Murder Reference No,304 of 1995 for confirmation of death sentence of Agha Farakh Sultan, appellant or otherwise and Criminal Revision No,79 of 2000 filed by Latif Ahmad against Agha Waheed-urRehman, appellant for the enhancement of sentence shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on 11-5-1994 at 9-35 p.m. Within the jurisdiction of Police Station Old Anarkali, Lahore at a distance of 11/2 furlongs away while the matter was reported to the police on the same day at 11-30 p.m. By Latif Ahmad complainant and the formal F.I.R. Exh.P.D/1 was recorded by Shakeel Ahmad, S.I.
3. According to the F.I.R. Exh.P.D/1 the facts of the prosecution case are that Latif Ahmad complainant along with his parents and brothers was residing at 32-Risala Bazar at Old Anarkali, Lahore and was an employee of the Telephone Department as Lineman. The deceased brother of the complainant, namely Majeed Ahmad alias Javed was married to Nasreen Gul, daughter of Agha Muhammad Waris resident of 22-Nabha Road, Old Anarkali, Lahore Initially, the parents of Mst. Nasreen Gul and her brothers were not agreed to this marriage, but subsequently, they accepted the proposal. However, Agha Waheed-ur-Rehman and Agha Sultan Farakh both real brothers of Mst. Nasreen Gul entertained a grudge in their heart, and apparently, they kept on visiting the house of the deceased and complainant. On the day of occurrence at about 8-30 p.m., the complainant left his house for Bazar and he came across Agha Waheed-ur-Rehman and Agha Farakh Sultan in the street and they enquired about Majeed Ahmad alias Javed, whereupon, the complainant replied them that, Majeed Ahmad alias Javed was having his meal in the house, therefore, they should go and see him there. The complainant having noticed the gestures on their faces did not go to bazar and instead returned to his house. Both Agha Waheed-ur-Rehman and Agha Farakh Sultan went away from there without meeting Majeed Ahmad alias Javed. Thereafter, Waqar Mirza son of Mirza Afzal Baig, caste Mughal resident of Islamia Park House No,3 Kamal Street Police Station Lytton Road, Lahore also arrived as per his daily routine, and called out Majeed Ahmad alias Javed from his house. Thereafter, both of them went away towards bazar. The first informant suspecting some foul play also started following them. When Majeed Ahmad and Waqar Mirza: reached Chowk Anarkali, Agha Farakh Sultan son of Muhammad Waris, who happened to be the brother-in-law of Majeed Ahmad alias Javed, coming from Nabha Road side also reached there and asked Majeed Ahmad to wait for him in: front of Habib Bank, so as to discuss an important thing with him and that he (Agha Farakh Sultan) would be coming thereafter fetching cigaretes, thus, both Majeed Ahmad alias Javed and Waqar Mirza started going towards Habib Bank, and on reaching there noticed Agha Waheed-urRehman, the elder brother-in-law of Majeed Ahmad already sitting on the footpath in front of Habib Bank Branch, at Nabha Road, Lahore.
Complainant following Majeed Ahmad and Waqar Mirza at some distance also stopped at the footpath outside Irshad Hotel at Nabha Road, Lahore. At about 9-30 p.m. Agha Farakh Sultan also arrived and joined them there. Farakh Sultan and Agha Waheed-ur-Rehman started conversing their grievances with Majeed Ahmad which gradually gave rise to the exchange of hot words; whereupon, Agha Waheed-ur-Rehman took Majeed Ahmad in his Japhha, and Agha Farakh Sultan took out a churri from the Nefa of his Shalwar and started inflicting successive blows therewith on the back of neck, below the right ear, on the front of left thigh and on the back of left thigh of Majeed Ahmad alias Javed. As a result of these injuries Majeed Ahmad alias Javed fell on the ground. Complainant thereupon rushed to the scene of. Occurrence and with the help of Waqar Mirza tried to apprehend Agha Farakh Sultan and Agha Waheed-ur-Rehman but the later fled away from the spot. In the meanwhile, four armed constables from the police motorcycle squat on two different motorcycles also arrived at the, scene of occurrence, and they apprehended Farakh Sultan with the blood-stained Chhuri. Two of the Police Constables took Farakh Sultan to the Police Station. Hue and cry raised by the complainant and Waqar Mirza attracted one Muhammad Bashir son of Haji Ghulam Ali with a taxi to the scene of occurrence. So, they put the injured in the taxi car, and rushed to the Emergency of Ganga Ram Hospital for his medical treatment. Two police motorcylists also accompanied them to Hospital where the injured brother of the first informant succumbed to the injuries during his medical treatment.
' After registration of the formal F.I.R. Exh.P.D/1 Ghulam Abid, S.1 P.W.10 visited the spot, inspected the spot, prepared without scale sketch of the place of occurrence Exh.P.G, secured blood through cotton which was taken into possession vide memo. Exh.P.E, recorded the statements of the witnesses under section 161, Cr.P,C., thereafter, went to the Police Station, Old Anarkali and arrested Agha Faralch Sultan along with blood-stained Chhuri. P.4 which was taken into possession Vide memo. Exh.P.B. On 27-5-1994 he arrested Agha. Waheed-ur-Rehman and after completion of necessary investigation the accused were challaned to face the trial.
5. At the trial, prosecution in Order to prove its case produced .12 witnesses in all; thereafter, learned S.P.P. Tendered in evidence the reports of Chemical Examiner Exh.B.H and Exh.P.H/1 and closed the prosecution case then the statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication.
6. Learned counsel for the appellants submits that both the appellants are real brothers inter se, that as Tar as, Agha Faraukh Sultan, appellant is concerned, according to the prosecution case he had caused injuries on the person of Majeed Ahmad alias Javed deceased, who was his brother- in-law, i,e, sister's husband, that sister of both the appellants namely Nasreen Gul has compounded the offence as far' as both the appellants are concerned, that now it is not a case of death sentence as far as Agha Farakh Sultan appellant is concerned, that as far as, Agha Waheed- ur-Rehman, appellant is concerned, according to the prosecution case he had held the deceased in his clasp (kappa) when his co-accused Agha Farakh Sultan, caused injuries on the person of deceased with '/Chhuri, that place of injuries would show that these injuries could not have been caused to the deceased. Had Agha Waheed-ur-Rehman, appellant held the deceased in his clasp (Jhappa) and in that process in fact Agha Waheed-ur-Rehman should have been the first person to have received the injuries. He has relied upon 1997 SCM R 1307.
7. On the other hand, learned Addl. A-G., who is present on Court call submits, that he has gone through the whole of the judgment cited above which has been replied upon not only by learned counsel for the appellant but also by learned counsel for the complainant. He further- submits that "ratio" of the said judgment was that if one of the legal heirs of the deceased entered into a compromise and compounded the offence then the death sentence carnot be awarded. He further submits that in that judgment, appellant was awarded death sentence under section 302, P.P.C., on an appeal filed by the appellant before this Court, altered the sentence of death of the appellant into life imprisonment, it was not mentioned by the learned trial Court whether the sentence of death was awarded under section 302(a), P.P.C. Or under section 302(b), P.P.C.. When petition for Special Leave to Appeal was filed before the Honourable Supreme Court of Pakistan against the said judgment the sentence, of the appellant of the said accused was maintained i,e, imprisonment for life which was converted by High Court into imprisonment for life. Learned Addl.-.
A-G. Further submits that the nutshell of the above said judgment was that as the High Court had converted the death sentence into imprisonment for life and the case had come under "Tazir" and before the Honourable Supreme Court of Pakistan all the legal heirs of the deceased except i,e, mother of the deceased had filed compromise deed and the Honourable Supreme Court of Pakistan had remarked that already death has been converted into imprisonment for life by the High Court under the Tazir so no further concession can be granted in the sentence and no compromise can be effected, Learned Addl. A-G. Further submits that present case is a fit case in which death sentence can be converted into Life imprisonment. He was specifically referred to sub-clause (2) of "section 314, P.P.C.
8. On the other hand, learned counsel for the complainant submits that in a case in which the death sentence has been awarded as a "Qisas" and one of the legal heirs of the deceased entered into compromise with an accused person that death sentence can be converted into life imprisonment but in a case where death sentence has been awarded under section 302(b), P.P.C.
As a Tazir and one of the legal heirs of the deceased entered into compromise and compounded the offence then the death sentence cannot be altered into Imprisonment for life. He has read before us firstly section 302. P.P.C. To distinguish between death as a "Qisas" and death as a Tazir, thereafter, he has read before us section 304, P.P.C. He submits that in the instant case, the condition laid down under section 304, P.P.C. Death as "Qisas" has not been fulfilled by the learned trial Court so the case of the present appellants is not covered under the definition of death as "Qisas". He further submits that Agha Farakh Sultan appellant was not awarded death as "Qisas".
Further submits that sections .306, 307, 308 and 309, P.P.C. Also relate to death as "Qisas", that if some accused have been convicted under section 302 (b), P.P.C. And the conviction is death as Tazir then section 345 (2), P.P.C. Can come into operation. He has also read before us section 345, P.P.C. He lastly submits that had Agha Waheed-urRehman not taken the deceased in his clasp (Jhappa) then Agha Farakh Sultan, who has been awarded death sentence could not have caused 'so many injuries on the person of the deceased, that ocular account is corroborated by medical evidence, that both the appellants shared common intention and committed the murder of the deceased with premeditation.
9. On the other hand, learned counsel for the State supports the submissions made by learned Addl. A-G.
10. We have heard learned counsel for the parties and have also gone through the record, first of all we would like to deal with the case of Agha Waheed-ur-Rehman, appellant real brother of Agha Farakh Sultan appellant. According to the prosecution case he held the deceased' in his clasp (Jhappa) while his co-accused Agha Farakh Sultan gave the successive injuries on the person of the deceased with Chhuri. According to the F.I.R., Agha Waheed-ur-Rehman held the deceased in his clasp (Jhappa) while his co-accused took out the Chhuri from the Nefa of his Shalwar and caused successive injuries on the person of the deceased which hit him on the back of neck, right ear, on the front of left thigh and on the back of left thigh and then he fell down. In our considered view, had Agha Waheed-ur-Rehman held the deceased in his clasp then in tthat process in fact he himself should have been the first person to have received the injuries so the role of Agha WahePd- ur-Rehman in our view is unnatural and possibility of his false implication, being real brother of Agha Farakh Sultan, cannot be ruled out. We are not satisfied with the prosecution case as far as, Agha Waheed-ur-Rehman, appellant is concerned, while extending him the benefit of doubt we acquit Agha Waheed-ur-Rehman from the charge. He is on bail and he shall be discharged from his bail bonds.
'Now we take up the question of sentence of Agha Farakh Sultan. We have gone through the judgment of learned trial Court in which learned trial Court has not given any findings to the effect whether the appellant has been convicted under section 302(a), P.P.C. Or under section 302(b), P.P.C. Only section 302, P.P.C. Has been mentioned there. It is a settled law that when two views are available on record then the view in favour of the accused should be taken into consideration by the Court. Even the learned Addl. A-G. Has verified and conceded the submissions made by learned counsel for the appellant about the quantum of sentence. In the instant case, Nasreen Gul wife of the deceased has compounded the offence, entered into compromise with the appellants and forgiven him in the name of Almighty Allah without any compensation. We would also like to refer here section 314,.P.P.C. And specially sub-clause (2) of the said section as under: "314 Execution of Qisas in Qatl-eAmd. ---(1) Qisas in Qatl-I-Amd shall be executed by a functionary of the Government by causing death of the convict as the Court may direct.
(2) Qisas shall not be executed until all the Walis are present at the time of execution, either personally or through their representatives authorised by them in writing in this behalf.
(the underlining is our s)
' It has been specially stated in the , said section that Qisas shall not be executed until all the Walis are present at the time of execution either personally or through their representative authorised by them in writing in this behalf. In the instant case as mentioned above by learned Addl.. A-G. That in the case cited by both the parties death sentence was already converted into life imprisonment by way of Taz'ir by the High Court but when the parties went to the Honourable Supreme Court of Pakistan and filed compromise deed in which except the mother of the deceased all the legal heirs of the deceased entered into compromise but Honourable Supreme Court of Pakistan did not acquit the appellant in that case but maintain the conviction of the appellant as imprisonment for life. Reliance has been placed on 2001 SCM R 232 titled as Dil Bagh. Hussain v. The State.
' After having heard the learned counsel for the parties, going through the submissions made by them, and the judgment cited by learned counsel for the parties we are of the considered opinion that case of the present appellant Agha Farukh Sultan is not of death sentence brut of life imprisonment, as one of the legal heirs, who was wife of the deceased had entered into compromise, compounded the offence and forgiven the appellants in the name of Almighty Allah without any compensation, therefore, we maintaining conviction but convert' the sentence of Agha Farakh Sultan appellant from death to imprisonment for life. Murder reference is replied in negative.
Death sentence is not confirmed.
' Criminal Revision 79 of 2000 is dismissed.