' MIAN SHAKIRULLAH JAN, J.--- By way of this single judgment, we propose to dispose of Criminal Appeal No,98 of 1999 Muhammad Israr v. The State Criminal Revision No,38 of 1999, State through Advocate-General v. Hazrat Hussain and Criminal Revision No,58 of 1999 Said Kamal v. Muhammad Israr as they have arisen out of the same impugned judgment.
2. Through Appeal No,98 of 1999 the two appellants Muhammad Israr and Hazrat Hussain have challenged the impugned judgment, dated 13-4-1999 vide which they were convicted for the murder of one Aminul Haq, the former was sentenced to death while the latter was sentenced to life imprisonment with a fine of Rs,one lac to be paid to the legal heirs of the deceased as compensation or in default six months' S.I.
3. The facts, briefly stated, are that Said Kamal P.W.5, brother of the deceased Aminul Haq, after taking dead body of his brother to the District Headquarter Hospital has lodged a report on 12-8- 1997 at 15-40 to Abdul Nabi H.C. Present on duty, to the effect that his brother Aminul Haq deceased and Amir Kamal are running a shop known as Sarhad Interprises in Bano Market Ghanjo Khan Road, Mardan. On the day of occurrence he has also gone to their shop. When he was present with them, meanwhile, the two appellants Muhammad Israr and Hazrat Hussain armed with pistols appeared and started firing at Aminul Hag deceased as a result of which he got hit and expired on the spot. With the firing of the accused another person, name not known, also got injured. The motive for the occurrence was that little before the occurrence the accused has a quarrel with Aminul Haq over the late sending of tea to them. The accused decamped from the spot through a motor car bearing No,1116-S Karachi. Amir Kamal was cited as an eye-witness of the occurrence.
4. At the trial the prosecution has examined 14 witnesses. The accused were also examined under section 342, Cr.P.C. They have not opted for giving a statement under section 340(2), Cr.P.C. And they have also not produced any defence.
5. Akbar Shah Khan P.W.12, then S.H.O. Of Police Station "A" Division Mardan, .Received information about the occurrence and fleeing away of the accused in motor car. He passed on this information, through wireless, to the various police stations/police posts for the arrest of the accused. He went to the spot and took into possession blood through cotton, 4 empties of .30 bore from the spot and prepared the site plan at the instance of the eye-witnesses. He also took into possession the clothes of the deceased as well as of the injured persons named as Salim, and also a spent bullet recovered from the body of Salim by the doctor and sent it to him (S.-I.). In consequence of wireless message Ghaffar Ali Khan, S.-I. Police Post Toni P.W.4 laid a picket in Toni Chowk. The accused Hazrat Hussain came in a motor car No,857 which was stopped. He (witness) recovered a kalashnikov, 16 m.m. Rifle, and three pistols of different bore from his (accused) possession and he was arrested. He drafted a Murasila Exh.P.A./1 for registration of a separate case (under section 13, Arms Ordinance). Similarly, Awal Khan, A.S.-I. Police Station, Sheikh Multoon, Mardan P.W.8, in pursuance of the wireless message arrested accused Muhammad Israr and Tariq from Nowshera Mardan Road, while they were travelling in a Motor car bearing No,1116-S Karachi (the car referred to in the F.I.R.). He recovered .30 bore pistol alongwith 11 cartridges from the possession of accused Muhammad Israr. The barrel of pistol was giving the smell of freshly discharge. The licence copy of the pistol in the name of accused Muhammad Israr and the registration copy of the motor car in the name of Tariq accused were also taken into possession by the witness.
6. Dr. Fakhruddin P.W.13 conducted autopsy on the dead body of deceased Aminul Haq aged about 40/45 years and found the following:--
(1) One fire-arm entry wound size 1/2 x 1/2 c.m. On front of abdomen in the left illiac fosea.
(2) One corresponding fire-arm exit wound size 1 x 1 c.m. On back of abdomen right side about 4 c.m. Lateral to vertiberal colum.
(3) One fire-arm entry wound size 1/2 x 1/2 c.m. At left sub-. Mandbular area of neck.
(4) One corresponding fire-arm exit wound size 1 c.m. x 2 c.m. On left paritoal area of scalp.
(5) One fire-arm entry wound size 1/2 x 1/2 c.m. On front of chest at the mid-point of left clavical with fracture left clavicle bone.
' He has also examined Salim, the injured person on the same day (day of occurrence) at 3-40 p.m.
He found the patient as conscious oriented in time and space. He found the following wounds on the person of Salim:--
(1) One fire-arm entry wound size 1/2 x 1/2 c.m. On antrolater aspect of left thigh.
(2) One corresponding fire-arm exit wound size 1 x 1 c.m. On posterio medial aspect of left thigh.
(3) One fire-arm entry wound size 1/2 x 1/2 c.m. On medical aspect of right thigh midpoint.
(4) One foreign body palpable in lateral aspect of right thigh. Foreign body removed after incision.
(5) One fire-arm entry wound size 1/2 x 1/2 c.m. On posterior aspect on left ring finger.
(6) One corresponding fire-arm exit wound size 1/2 x 1/2 c.m. On anterior aspect of right ring finger left hand.
(7) Fire-arm graze wound interior aspect of middle finger, of left hand.
' Injuries were declared as grievous and caused by fire-arm. The patient was admitted to male Orthopadic Ward. The foreign body, bullet, so recovered was handed over to the police.
7. Accused Muhammad Israr aged about 21/22 years, after his arrest on 12-8-1997 made a judicial confession on 16-8-1997 which was recorded by Qaisar Rahim, Judicial Magistrate, P. W.11. The gist of the confessional statement of the accused is as under wherein he has stated:-- "He is a student of first year in Government College, Mardan. Since last three years he was working as a Basta Bardar with Patwari Hazrat Hussain. On the day of occurrence at about 2 p.m. He alongwith Hazrat Hussain was sitting in the shop of his uncle Muhammad Nisar. He ordered tea from a nearby hotel but after a long time. The tea was not brought. After long wait he went to the hotel and threw his utensils in anger on which the owner of the hotel and his servant started quarrelling with him. Manager of the hotel came to his uncle alongwith the deceased and who (the latter deceased) slapped him on his face. On this Hazrat Hussain accused told him to bring his pistol to take the revage from the deceased. He did accordingly (brought the pistol) and Hazrat Hussain accused fired shots at Aminul Haq. They decamped from the spot in a motor car No,1116-S Karachi, driven by Tariq Zaman accused which was rented by them. On the way Hazrat Hussain deboarded the car."
8. The pistol recovered from the possession of Muhammad Israr accused and the empties recovered from the spot and the bullet recovered from the body of Salim were sent to the Arms Expert and the report is in the positive i,e, spent bullet and the empties have been fired from the pistol recovered from the possession of accused Muhammad Israr.
9. The ocular account has been furnished by Said Kamal P.W.5 and Amir Kamal P.W.6 who both are brothers of deceased Aminul Haq. They both have stated that the two accused duly armed with pistols have fired at the deceased as a result of which he sustained injuries and expired on the spot. They have also stated that one another person who was later on identified as Salim also suffered injuries as a result of firing of the accused. Amir Kamal has further stated that he has seen the accused while boarding the car bearing No,1116-S Karachi and decamped from the spot.
10. Learned counsel for the appellant while highlighting certain infirmities in the prosecution case, has contended that two eye-witnesses, in addition of being related to the deceased, are chance witnesses. The complainant who is a teacher has got nothing to do in the market/shop but after performing his Peshin prayer at 1-30 in his house situated at a distance of about one and a half kilometers from the spot has gone there. He has neither disclosed the purpose of his coming to the shop of his brother nor he has stated his coming as a usual routine. The eye-witness Amir Kamal though has stated that he was working with deceased brother in the shop but has improved his statement by stating to be a servant with his brother and showing an inclination to further strengthen the fact of his presence on the spot. Said Kamal P.W.5 has further made an improvement by disclosing the purpose of the visit of the complainant to the spot, as the purchasing of school uniform, which the complainant has not stated at all. The learned counsel for the appellant has also attacked the evidentiary value of the confession, as oath has been administered to the accused which is incurable illegality, the confession was recorded on the 4th day of the arrest of the accused showing its involuntariness and that the confessional statement is not true as it is not in line with the prosecution story and it is also exculpatory as the accused has exonerated, himself and, instead, shifted the burden to his other co-accused Hazrat Hussain.
Recoveries effected from the accused were attributed to the extra zeal in the case shown by the police by planting the recoveries on the accused as the deceased being a Sale Manager of the then I.-G. Police The motive was stated to be dubious one and does not fit in the circumstances of case. In addition to the above infirmities he has distinguished the case of Hazrat Hussain accused being stood on different footing for lack of any circumstantial evidence, rather the same negates the case against him, except the oral version of the two eye-witnesses and which is also not supported by other two natural witnesses i,e, Salim injured person and Jehan Badshah who (latter) is the real cause of the trouble, by not producing any of them by the prosecution.
11. The learned counsel for the complainant as well as for the State have controverted the contention made by the learned counsel for the appellant and have submitted that the prosecution has been able to prove its case beyond any reasonable doubt against the appellant. It is the quality of evidence and not the quantity which determine the fate of a case and notwithstanding the non-examination of the two witnesses Salim and Jehan Badshah, the rest of the evidence consisting oral and circumstantial sufficient to prove the case against the accused and according to them the learned trial Court has rightly convicted the accused and the sentence of Hazrat Hussain also deserve enhancement.
12. In the case two persons, Hazrat Hussain and Muhammad Israr have been charged for the murder of Aminul Haq deceased. As far as the ocular account is concerned, that charge both the accused equally and attributing them the role of firing at the deceased. However, the ocular account qua Muhammad Israr accused is supported by his (latter) confessional statement and other circumstantial evidence i,e, recoveries of empties and weapon of offence which is lacking qua Hazrat Hussain accused, hence, their case will be dealt with separately.
13. The main objection of the learned counsel for the appellant was over the presence of witnesses on the spot, as referred to above, and now their presence will be examined in the light of the above objection.
14. Complainant Said Kamal P.W.5 who was present at the relevant time as he has come from his house situated at a distance of one and a half kilometer from the spot to the shop of his brother.
His presence may be casual but not unusual as nothing has been brought on record to show his presence doubtful. The report was lodged so promptly, within half an hour mentioning the number of the car in which the accused have fled away from the spot and later on one of the accused i,e, Muhammad Israr was arrested while travelling in the said car. Similarly, the presence of Amir Kamal P.W.6 also cannot be doubted as he is working in the shop of his brother. The deceased whether in the capacity of a servant or otherwise and particularly when after chasing the accused he saw them while boarding a car the number of which was noted by him and mentioned by the complainant at the time of lodging of the report further lend support to his availability on the spot.
Resultantly, it can be said definitely that the two witnesses were present on the spot at the time of occurrence. Their testimony as to whether they are truthful witness or not qua the whole incident and also qua both the accused, it will be examined by scrutinizing their evidence in juxtaposition with other evidence on the record.
15. One of the other evidence in the line is the confessional statement of accused Muhammad Israr.
The gist of which has been given in para.7 above. Qaiser Rahim, Civil Judge/Judicial Magistrate, P.W.10, has recorded the confession on 16-8-1997. This witness in his Court statement has deposed in the first line of his cross-examination that "it is correct that I had recorded the statement of the accused Muhammad Israr on oath" but later on he has changed his version by stating that "oath was typed by the steno inadvertently. In fact, no oath was administered to the accused by me". He has further stated that he has "removed/defaced" the word on oath. He has further stated that 'it is correct that after recording of the confessional statement I obliterated word on oath". In view of this change position of the witnesses it cannot be said that the confessional statement was not recorded on oath and confessional statement so recorded, on oath, is inadmissible in evidence.
The Honourable 'Supreme Court in case Muhammad Bakhsh v. The State PLD 1956 SC (Pak.) 420, after considering the provision of sections 342, 164 and 364, Cr.P.C. Section 5 of the Oaths Act, 1873 and sections 24 and 132 of the Evidence Act and the common law in England has observed:-- "The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Criminal Procedure Code was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality."
' This judgment then was followed by the Courts in a number of cases, some of which are (1)
Manzur v. The State PLD 1973 Lah.
714. In this case, Lahore High Court while placing reliance on the judgment has disapproved the judgment in Karam Ilahi's case AIR 1947 Lah. 92, whereby such illegality was held cureable under section 537, Cr.P.C. If it did not prejudice the accused, it was observed:-- "We cannot see how an accused person can be said not to have been prejudiced when evidence which the law expressly says shall not be taken against him has been so taken, and the finding is influenced by that evidence. The law so jealously guards against inadmissible evidence that where a verdict or finding has been influenced by such evidence it enjoins the superior Courts to exclude it and to reweigh the remaining evidence in order to decide whether it can sustain the verdict of findings. We have, therefore, no hesitation in holding that the confession cannot be taken into consideration in deciding the question of the appellant's guilt.
' It was apparently the feeling that some element of inducement lurked through the terms of an oath that its administration to an accused person was considered opposed to public policy while recording his confessional statement. It is quite possible that in some cases, on account of the oath, an accused may think that he is bound to state the truth and he may accordingly come forward with the true story which he might not do if merely asked to state whatever he wishes to say about an occurrence. It was in view of this likely effect of the words used by a Magistrate (at the time of recording such statement) on the mind of an ordinary human being that a confessional statement was held inadmissible in evidence in a recent Karachi case, Gulab Khan v. The State PLD 1971 Kar.
299. The Magistrate in this case after having given the formal warning to the accused had just asked him to state what he believed to be true before God Almighty but although not a formal oath; these words were considered as an oath likely to influence the mind of the deponent. Their Lordships had ruled it (the statement) out of consideration. It was to guard against such an eventuality that section 5 appears to have been incorporated in the Oaths Act so the infringement of this prohibitory provisions would amount to an illegality which cannot be cured by any principle of consent, waiver or estoppel. Even the amendment of 1964 in section 537, Cr.P.C. Would not improve the prosecution case in view of the above dictum of their Lordships in Muhammad Bakhsh v. The State."
' The other cases where, the above rule was followed is (2) State through Advocate-General, N.- W.F.P. Peshawar v. Mumtaz and 2 others 1987 PCr:LJ 1796. (3) Tariq Pervaiz v. The State 1992 PCr.LJ 955.
16. The other legal formalities, though stated to have been fulfilled, yet do not seem to have been complied with as according to the statement of the Magistrate that before recording the confession he has put question to the accused which were recorded in the memo. Of enquiry "but today it is missing" and "the Certificate is also missing from the record". In case AIR 1959 All. 518 it was held that non-observance of provision under sections 164 and 364, Cr.P.C. Render the confession inadmissible and it was observed:-- "It is open to the Magistrate who is recording the statement of the accused to warn the accused at the stage when he finds that he is making a confessional statement. If he administers necessary caution to him and fulfils the requirements of section 164, Criminal Procedure Code, at that stage, the statement of the accused can be used against him. Where, however, the Magistrate administers no such caution and does not observe the procedure laid down in section 164, Criminal Procedure Code, and also gives the accused no time to think over the matter but records the statement in an unholy haste which speaks more for his zeal than for his judicial outlook, the so- called confession becomes inadmissible under the law.
' The provisions of sections 164 and 364, Criminal Procedure Code, are to be strictly followed by the Magistrates and unless they follow the provisions of these two sections, the statements recorded by them cannot be admitted in evidence and their own evidence in respect of the statements which they recorded also becomes inadmissible. It is only when the formalities prescribed are observed that the statement of the Magistrate and the record prepared by him can be used in evidence."
' In Manzoor's case (supra) the Lahore High Court, with regard to the non-compliance of formalities as prescribed in the relevant section of Cr.P.C. And the High Court Rules and Orders has observed:- - "The accused's prolonged detention in police custody was illegal on the face of it, but the Magistrate had not bothered to enquire from the appellant as to when in fact he was arrested, for how long and where and under what circumstances he had been kept by the police during this period or what had induced him to create such a serious situation for himself by making a confession, as prescribed in Chapter 13 of Volume III of the High Court Rules and Orders, and highlighted in the undernoted authority laying down a guideline for the Magistrates in discharging this solemn duty. It requires them to make a real endeavour to find out the voluntary nature of the confession by suggesting a number of questions other than those printed in the prescribed form for putting to such persons so that it is not performed in a mechanical manner. If any of these questions had been put to the appellant at the time of his production before the Magistrate it might have created in him a sense of free atmosphere and encouraged him to seek the protection of the Court against the highhandedness of the police and would perhaps have brought the cat out of the bag. The Magistrate had no doubt sent him to the judicial lock-up for a day to disabuse his mind of any extraneous influence before recording his statement under section 164, Cr.P.C. But he failed in his duty by omitting to put the necessary questions to him with that end in view which had left no sting in this confessional statement although it bore the stamp of all the legal formalities."
17. The confession is not voluntary as it has been recorded after four days police custody and in view of the extra zeal shown by the police, as the deceased was a Sale Managei of Police Officer. In cases Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394, this Court, after making reference to some cases i,e, Abid Hussain Shah v. The State 1983 PCr.LJ 882 and Hamza v. The State 1983 PCr.LJ 892, has held that confessional statement recorded after three/four days after the arrest of the accused need to be thrown out on the ground of involuntariness. The other additional important factor making the confession inadmissible is it being exculpatory. The accused has not admitted his guilt; rather he has shifted the burden of firing at the deceased to his co-accused Hazrat Hussain and completely exonerating himself from the liability which cannot be called as inculpatory. The confession has not been defined in the Evidence Act, however, it has been defined in the judgment AIR 1959 All. 518 to the effect that:-- "an admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime"...
' In order to distinguish between a confession and an admission a simple test can be applied. If the statement by itself is sufficient to prove the guilt of the maker, it is a confession."
' In the case Qazi Parvaiz Iqbal and 2 others v. The State PLD 1976 Kar.583, it was held that:-- "The confession by itself nowhere inculpates the maker---He has thrown the burden of Kazi Parvez lqbal and Tayab, but nowhere he has implicated himself---Therefore, it cannot be denied that the confession is self-explanatory and if that be so, then it cannot be regarded as a confession, for a confession essentially requires that the maker should also tar himself with the same brush, which is not the case here."
' Therefore, the confession is held not as inculpatory rather it is an exculpatory.
18. The confessional statement also does not stand the test of it being true as the facts narrated by the prosecution are different from the one stated in the confessional statement.
19. In case of Haq Nawaz and others v. The State and others 2000 SCM R 785, the Honourable Supreme Court has laid certain principles for the confessional statement to be admitted in evidence some of which are:--
(i) that it should not be exculpatory;
(ii) the same should be voluntary; and
(iii) true which in the instant case are lacking, hence, the confessional statement is kept out of consideration.
20: The next evidence is the recovery of empties from the spot and weapon of offence from Muhammad Israr accused. According to Akbar Shah Khan, Inspector, Investigating Officer 4 empties of .30 bore have been recovered from the spot and one bullet after recovery from the body of the injured person Salim by the doctor, was sent to him which was also taken into possession. Awal Khan, S.-I. Has recovered from possession of accused Muhammad Israr .30 bore pistol alongwith 11 cartridges with a licence copy in his name at the time of latter's while he was fleeing away in the motor car bearing No,1116-S Karachi, the one mentioned in F.I.R. The barrel of the pistol was giving the smell of freshly discharged. The Investigating Officer sent the pistol with the empties and bullet, already recovered, to the Arms Expert for opinion and which is in the positive i,e, that the empties and bullet have been fired at with the pistol recovered from the possession of Muhammad Israr.
21. According to the doctor there were three entry wounds on the person of the deceased and three entry wounds with a grazing wound on hand of the injured person Salim. Though the medical report shows about 7 injuries in all on both the deceased and injured but the eye-witnesses, in unambiguous words have stated that 4/5 shots have been fired. Leaving no doubt that there were fire shots not more than five. The number of injuries on the two persons not commensurate with the number of alleged fire shot as alleged by the eye-witness may be for the reason that the accused, the deceased and the injured person were in one straight line, with the deceased in the middle, as shown in the site plan, and some of the fire shots after hitting the deceased making their exit might have struck the injured person or that some of the bullets after hitting one part of the body hit another part, e.g. The injuries and grazing wounds on fingers of the injured person. When the number of shots are the same as number of empties recovered from the spot, one empty might have been remained in the chamber of the pistol, one may say definitely, keeping in view the ocular account in juxtaposition with circumstantial evidence, that there was no person other than accused Muhammad Israr who has fired and with which the two i,e, deceased and the injured persons were hit.
22. Regarding the case of Hazrat Hussain appellant, learned Sessions Judge while discussing his case, under para. 17 of the judgment, has believed his presence on the spot. He, however, while declaring the corroborative evidence as "scanty" has burdened him with vicarious liability by holding him as having common intention to commit the offence with his co-accused Muhammad Israr on the ground "because he knew that Muhammad Israr had brought the pistol with which he was going to fire at the deceased and thus the offence was committed in furtherance of his common intention" and thus helped the co-accused throughout.
23. Now it will be seen as to whether Hazrat Hussain was having a common intention or not certain facts of the case will have to be resorted to.
24. Starting from the motive, there is nothing on record that Hazrat Hussain was having any such motive of his own to murder the deceased, both earlier as well as the one developed at the spot.
According to the complainant's Court statement it was an altercation which had taken place between Aminul Haq deceased and Muhammad Israr accused a little before the occurrence over late sending of the tea, which fact negates the existence of any motive of Hazrat Hussain with the deceased to commit his murder.
25. Two important witnesses, Jehan Badshah who is the person over the beating of whom .The accused Muhammad Israr and deceased Aminul Haq have altercated with each other and the other is Salim, the injured person being a natural witness, have not been produced by the prosecution. The non-supporting of the prosecution case, by these two witnesses creates a doubt in one's mind about the truthfulness of the prosecution story. Had the story being true in toto they would have come to the Court to tell the truth. However, their non-examination may not be fatal to the ocular version of the two witnesses i,e, complainant and the other eye-witnesses qua the involvement of accused Muhammad Israr as their this version finds corroboration from the circumstances of the case, it may not be true qua involvement of Hazrat Hussain as it is not supported by the circumstantial evidence. Scrutinizing the whole prosecution evidence on the principle of grains to be sifted from the chaff, the prosecution version is believed qua Muhammad Israr regarding his firing at the deceased but is not worth reliance qua the firing of Hazrat Hussain at the deceased and also qua his common intention. Not to speak of any corroborative evidence regarding involvement Hazrat Hussain, even by considering the ocular as well as the circumstantial evidence together, the participation of Hazrat Hussain is negated as according to the statement of the two witnesses, only 4/5 shots have been fired and the four empties recovered from the spot match with the pistol recovered from Muhammad Israr indicative of fact that all the shots have been fired by Muhammad Israr accused.
26. The observations of the learned Sessions Judge by holding Hazrat Hussain accused is guilty of the offence on the ground having a common intention with his other co-accused Muhammad Israr on the basis that he knew that the latter would fire at the deceased and that he has helped him, both legally and factually are not correct. Similarly in case Hasan Din v. Muhammad Mushtaq and 2 others 1978 SCM R 49, it was held that:- "Vicarious liability cannot be visited unless some strong circumstances existing showing common intention---Mere presence of a person on spot, held, does not necessarily attract section 34."
27. After holding accused Muhammad Israr as guilty of the offence, now the question of quantum of sentence requires determination. In this context a reference may be made to the motive as set up by the prosecution. According to the complainant it was an altercation between accused Muhammad Israr and deceased Aminul Haq which has taken place a little before the occurrence over the late sending tea. However, this motive was a little explained by Amir Kamal by stating "that accused Muhammad Israr had altercated with P.W. Jehan Badshah due to delay in bringing of tea some time before the occurrence. The deceased was murdered because he had restrained the accused as to why they were altercating with P.W. Jehan Badshah and beating him". If the motive, as stated by Amir Kamal is taken into consideration then the same does not seem to ring true as only restraining some one from altercation or beating by itself not sufficient to motivate a person to take the life of anyone unless something serious, e.g. Provocation has taken place. The witnesses are concealing the true facts as to what had happened before the occurrence which made the accused to resort to firing at the deceased and hence, the motive can be termed as a dubious one and shrouded in mystery, which deserves the appellant Muhammad Israr to be awarded and lesser punishment, the imprisonment for life.
' Consequently, this criminal appeal is partially accepted. While setting aside the order of conviction and sentence qua Hazrat Hussain, appellant passed by the learned trial Court he is acquitted of the charges. He is released forthwith if not required in any other case. The conviction recorded by the learned trial Court qua Muhammad Israr appellant is upheld, however, his death sentence is altered to life imprisonment. The appellant Muhammad Israr shall pay a sum of Rs,one lac to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default to suffer six months' R.I. The appellant is extended the benefit of section 382-B, Cr.P.C. The murder reference is answered in the negative. Resultantly, Criminal Revisions Nos.38 of 1999 and 58 of 1999 are hereby dismissed.