' ASIF SAEED KHAN KHOSA, J.--- Muhammad Rafique appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 12-6-1999 rendered by the learned Additional Sessions Judge-I. Pakpattan Sharif and was sentenced to death and to pay a sum of Rs,50,000 to the heirs of Muhammad Asghar deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. Through the same judgment Nasir appellant was also convicted by the learned trial Court for an offence under section 302(b)/34, P.P.C. And was sentenced to rigorous imprisonment for ten years and to pay sum of Rs,25,000 to the heirs of Muhammad Asghar deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to Nasir appellant. Both the appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,228 of 1999 which has been heard by us alongwith Murder Reference No,312 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against Muhammad Rafique appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Haji Akbar complainant was a resident of Chak No,36/EB situated within the area of Police Station Sadar, Arifwala, District Pakpattan Sharif and was an agriculturist by profession. At about 5-00 p.m. On 24-7-1997 the complainant was putting fodder before his cattle-shed in the compound of his residential house and the complainant's younger brother namely Muhammad Asghar was sitting in front of the Baithak of that house. At that time Nasir appellant was also sitting in the street in front of the Baithak of his own house while hearing songs on a high volume by putting his cassette-player inside his Baithak and placing the speakers of that cassette-player outside the Baithak. Muhammad Asghar forbade Nasir appellant from hearing those songs in a high volume but Nasir appellant retorted by saying that he would keep on hearing the songs in that high volume. That verbal exchange then degenerated into an altercation between them wherein abuses were exchanged between the two of them. Upon hearing that exchange of abuses the complainant and his brother namely Muhammad Akhtar went out of their house into the street whereupon Nasir appellant went inside his own house and after a short while Nasir appellant, armed with a rifle 8MM, and his father namely Muhammad Rafique appellant, armed with a gun .12 bore, emerged from their house.
Muhammad Rafique appellant raised a Lalkara to the effect that Muhammad Asghar ought to be taught a lesson for asking Nasir appellant to shut the cassette player off. Nasir appellant then fired a shot from his riffle at Muhammad Asghar but he missed the target. The second shot was fired at Muhammad Asghar by Muhammad Rafique appellant which hit Muhammad Asghar at his left shoulder. Upon receipt of that injury Muhammad Asghar fell down and succumbed to that injury at the spot soon thereafter. According to the F.I.R. That incident had also been witnessed by Farzand Ali and Yaseen P. Ws. The motive set up in the F.I.R. Was that the complainant's brother namely Muhammad Asghar had forbidden Nasir appellant from hearing songs in a high volume of the cassette-player and aggrieved of the same the two appellants had murdered Muhammad Asghar.
Both the appellants decamped from the spot after the incident. Leaving the dead body of Muhammad Asghar deceased at the place of occurrence in the care of Abdul Sattar P.W. Haji Akbar complainant proceeded to report the matter to the police. Consequently F.I.R. No,429 was registered in respect of that incident at Police Station Sadar, Arifwala, District Pakpattan Sharif at 6- 30 p.m. On the same day, i,e, 24-7-1997 for an offence under section 302/34, P.P.C.
3. During the investigation of this case conducted by Mian Muhammad Athar Farooq, Inspector (P.W.9) the dead body of Muhammad Asghar deceased was got subjected to post-mortem examination, the two appellants were arrested, recoveries were effected from them and then, upon completion of the investigation, a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
During the trial the prosecution produced nine witnesses in support of its case against the appellants. Haji Akbar complainant (P.W.7) and Yaseen (P.W.8) furnished the ocular account of the incident in question and also deposed about the motive. Yaseen (P.W.8) also stated about the recovery of weapons of offence affected front both the appellants during the investigation of this case. Dr. Sagheer Ahmad Chaudhary (P.W.6) provided the medical evidence. Mian Muhammad Athar Farooq, Inspector (P.W.9) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
5. In their statements recorded under section 342, Cr.P.C. The appellants denied the controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
In the said statements both the appellants maintained that as a matter of fact it was Muhammad Akhtar, a brother of Muhammad Asghar deceased, who had fired at the accused party and one of his fires had accidentally hit Muhammad Asghar deceased. However, the appellants opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence.
6. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected murder reference before this Court.
7. During the pendency of this appeal Nasir appellant has already died while on bail and this appeal has, therefore, abated to his extent. His bail bonds and sureties are discharged.
8. We have heard the learned counsel for Muhammad Rafique appellant and the learned Assistant Advocate-General assisted by the learned counsel for the State and have gone through the record of this case with their assistance. At the outset the learned counsel for Muhammad Rafique appellant has stated that he does not press this appeal to the extent of the appellant's conviction and he prays only for reduction of the appellant's sentence keeping in view the peculiar circumstances of this case. As against that the learned Assistant Advocate-General assisted by the learned counsel for the State has maintained that as long as the conviction of Muhammad Rafique appellant is not disturbed by this Court they have nothing much to say on the matter of sentence as the same lies within the discretion of the Court.
9. After hearing the learned counsel for the parties and going through the record we have noticed that the prosecution's case was supported by Haji Akbar complainant (P.W.7) and Yaseen (P.W.8) who had made consistent statements before the learned trial Court qua culpability of Muhammad Rafique appellant and their statements had received ample corroboration from the motive and had also received sufficient support from the medical evidence. In these circumstances we have felt that the learned counsel for Muhammad Rafique appellant is quite justified in not challenging the conviction of the said appellant recorded by the learned trial Court.
10. Adverting to the question of sentence of Muhammad Rafique appellant we have noticed that according to the site-plan (Exh.P.B.) of the place of occurrence the residential houses of both the parties are situated in front of each other across the same street and, thus, the parties are immediate neighbours of each other. We have further observed that prior to the present occurrence there was absolutely no background of ill-will or bitterness between the parties and they had enjoyed good and cordial neighbourly relations with each other. It is also pertinent to mention here that even according to the F.I.R. Itself the occurrence in this case had erupted all of a sudden without any premeditation on the part of the accused party and from the prosecution's own case it appears that an otherwise innocent protest lodged by Muhammad Asghar deceased with Nasir appellant over the high volume and pitch of the songs being heard by the latter in the street had deteriorated in a verbal altercation and an exchange of abuses between them whereupon their elder relatives had emerged on the scene from their respective houses and the Whole affair had degenerated out of control leading to firing upon the complainant party and resulting in the death of Muhammad Asghar deceased. The case in hand is, therefore, clearly not a case of a cold-blooded murder after premeditation and planning and the circumstances of this case show that Muhammad Rafique appellant might well himself be a victim of his own impulsive over-reaction. Keeping in view all these aspects of the present case we have decided to exercise our discretion in the mater of sentence in favor of Muhammad Rafique appellant by suitably reducing the same.
11. For what has been discussed above Criminal Appeal No,228 of 1999 filed by Muhammad Rafique appellant is hereby dismissed to the extent of his conviction under section 302(b), P.P.C. Recorded by the learned trial Court but the same is partly allowed to the extent of his sentence which is reduced to one of imprisonment for life. The order passed by the learned trial Court regarding payment of compensation by him to the heirs of Muhammad Asghar deceased is hereby upheld and maintained but it is directed that in case of his failure to pay the said compensation he shall undergo simple imprisonment for six months instead of rigorous imprisonment ordered by the learned trial Court. The benefit under section 382-B, Cr.P.C. Shall be extended to Muhammad Rafique appellant. This appeal is disposed of in these terms.
12. Murder Reference No,312 of 1999 is answered 'in the negative and the sentence of death passed against Muhammad Rafique appellant by the learned trial Court is not confirmed.
13. Before parting with this judgment we may, however, add that we have been surprised by the fact that the learned trial Judge (Mr. Abdul Waheed Khan, the then Additional Sessions Judge-I, Pakpattan Sharif and presently reportedly posted as the District and Sessions Judge, Vehari) had convicted Nasir appellant for an offence under section 302(b)/34, P.P.C. And had sentenced him to rigorous imprisonment for ten years and payment of compensation to the heirs of the deceased without appreciating that under section 302(b), P.P.C. He could have sentenced the said appellant only to death or imprisonment for life. The said Presiding Officer ought to have known the law in that regard, and his casual and careless handling of the matter of sentence of Nasir appellant has not been appreciated by us. We hope and expect that the said Presiding Officer shall be careful in future in this regard. The office of this Court is directed to send a copy of this judgment to the said Presiding Officer for his information and instruction.