' MUHAMMAD FARRUKH MAHMUD, J.---Muhammad Ashfaq appellant alongwith his brother Muhammad Riaz were sent up to face trial in case F.I.R. No.132 of 1998 registered at Police Station Islam Garh on 22-11-1998 for an offence under sections 302/34, P.P.C. For causing the murder of Munir Ahmad. Vide judgment dated 29-8-2000 the learned trial Court acquitted Muhammad Riaz but convicted Muhammad Ashfaq appellant for an offence under section 302(b), P.P.C. And sentenced him to death. A fine of Rs.50,000 was also imposed upon the convict which in case of recovery was to be paid to the legal heirs of Munir Ahmad deceased and in default whereof the convict was to undergo R.I. For a period of two years. Feeling aggrieved Muhammad Ashfaq appellant has challenged his conviction and sentence by filing the instant appeal before this Court.
Murder Reference No.23 of 2000 seeking confirmation of death sentence has also been placed before us.
2. The complainant Taj Din who felt unsatisfied about the acquittal of Muhammad Riaz has also challenged the judgment of the learned trial Court by filing an appeal (Criminal Appeal No.126 of 2000). We propose to decide all these matters by this single judgment as they arise out of the same F.I.R.
3. The law was set in motion by Taj Din P.W.1 when he reported the matter at Police Station Islam Garh on 22-11-1998 and on the basis of his statement F.I.R. No.132 of 1998 Exh.P.A. Was registered at 1-00 p.m. For offences under sections 324/34, P.P.C. After the death of Munir Ahmad son of the complainant section 324, P.P.C. Was substituted by section 302, P . P. C .
4. The relevant facts as given in the F.I.R. Are; that the complainant who is cultivator also owned goats. Munir Ahmad deceased son of the complainant used to take goats for grazing. Muhammad Ashfaq and Muhammad Riaz sons of Muhammad Ishaq also used to take their goats for grazing. 1- 1/2 months prior to the occurrence an altercation took place between Munir Ahmad deceased and Ashfaq appellant. Allegedly, Munir Ahmad gave beating to Ashfaq, therefore, Ashfaq and Riaz turned inimical towards Munir Ahmad. The complainant sought pardon from them but the two made it clear that they would not spare Munir Ahmad. For that reason the complainant did not allow Munir Ahmad to go alone for grazing goats. On the fateful day the complainant went to attend the Jinaza of the daughter of Muhammad Shafi Awan and sent Munir Ahmad to graze goats. At about 11-00 a.m. After attending the Jinaza the complainant proceeded towards Munir Ahmad who was grazing goats at a distance of one square from the Dera of the complainant.
Ashfaq and Riaz also reached there alongwith their goats. Suddenly, Ashfaq appellant who was armed with hatchet and Muhammad Riaz who was empty-handed raised Lalkara that they would not leave Munir Ahmad and that they would take revenge. Muhammad Riaz accused caught hold of Munir Ahmad while Ashfaq gave a hatchet blow on his head who fell down and became unconscious. The complainant raised alarm which attracted the P.Ws. Muhammad Ismail, Muhammad Boota and Riaz 'Ahmad to the scene of occurrence. Ashfaq and Riaz succeeded in running away from the spot.
5. After registration of case Sher Muhammad, S.-I., P.W.7 reached the scene of occurrence and collected blood-stained earth which was taken into possession vide memo. Exh,P.J. Attested by Noor Muhammad and Boota witnesses who were not produced during trial. Muhammad Ashfaq was arrested on 1-12-1998 by Noor Muhammad P.W.8/S.H.O. On 8-12-1998 while the appellant was in police custody he led to the recovery of blood-stained hatchet, P.1 which was taken into possession by Sher Muhammad, S.-I. P.W.7 vide memo. Exh.P.B. The memo. Was attested by Riaz Ahmad, P.W.2 and one Noor Muhammad who was not produced during trial.
6. During trial the prosecution produced nine witnesses to prove its case. Taj Din, father of the deceased and Riaz Ahmad who is nephew of Taj Din and sister's husband of the deceased furnished the ocular account. They stated in accordance with the story given in the F.I.R. Taj Din also stated about the motive while Riaz stated about the recovery effected from the appellant. Dr. Imtiaz Hussain appeared as P.W.5. He stated that he has examined Munir Ahmad on 22-11-1998 who had suffered an incised wound on his head on perital area. He further stated that Munir Ahmad who was brought in the hospital at 2-25 p.m. Expired on the same date at 2-45 p.m. Thereafter, post- mortem was conducted on the dead body of Munir Ahmad. According to opinion of the doctor the deceased lost his life due to the injury caused on his head by a sharp-edged weapon. Sher Muhammad appeared as P.W.7 and stated about registration of case and the investigation. Noor Muhammad, A.S.-I. Appeared as P.W.8 and he stated that he had arrested appellant. He also stated about the partial investigation of the case. The rest of the witnesses being formal in nature need not be discussed.
7. The prosecution after bringing on record the report of the Chemical Examiner P.N. And that of Serologist P.N.1 which was in positive closed its case.
8. Statements of Muhammad Ashfaq appellant and Muhammad Riaz acquitted co-accused were recorded under section 342, Cr.P.C. Both denied the charges and stated that the P.Ws. Were related inter se and that they had been roped in this case due to enmity and suspicion however, the accused neither appeared as a witness in their defence under section 340(2), Cr.P.C. Nor they led any defence evidence.
9. The learned counsel for the appellant has, at the very outset, submitted that he would not contest this appeal on merits and would only pray for reduction of sentence in the circumstances of the case. Conversely, the learned counsel for the complainant has argued that the prosecution has successfully proved its case not only against Muhammad Ashfaq appellant but also against Riaz co-accused and that the appellant who has taken the life of an innocent person did not deserve any leniency. The learned counsel for the State has argued in support of the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the record of the case. It is a daylight occurrence; the question of identity is not involved. Both the P.Ws. Namely Taj Din and Riaz have stated that appellant Ashfaq had given hatchet blow on the head of the deceased, Their statements are supported by the medical evidence as well as by the evidence of recovery of blood-stained hatchet which was found to be stained with human blood. In the circumstances we are of the opinion that the prosecution has successfully proved its case against the appellant and the learned counsel for the appellant has rightly not contested this appeal on merits. However, we have given our anxious thought to the quantum of sentence in the instant case. We have noticed that the place of occurrence is open fields where inhabitants of the locality used to take their cattle for the purposes of grazing as is evident from the statement of Taj Din P.W.1 who admitted that Ghannu Lar, Hashir Lar and Siraj used to graze their cattle at the same place. It is also admitted in the F.I.R. That Muhammad Ashfaq appellant and Muhammad Riaz had gone to the place of occurrence alongwith their goats. This fact leads to a logical conclusion that the appellant and his brother had not gone to the place of occurrence with premeditation to cause murder. Taj Din stated that he heard the alarm raised by the deceased from a distance of four Kanals and saw the occurrence from a distance of ten Karams. On the same point P.W.2 stated that he rushed to the scene of occurrence after hearing the hue and cry raised by P.W. I Taj Din. This means that both the P.Ws. Did not know as to what went between the deceased and the appellant which led to this unfortunate occurrence. As per F.I.R. And statements of witnesses the deceased had given beating to Muhammad Ashfaq appellant 1-1/2 months prior to the occurrence; nothing happened during this 1-1/2 months. On the fateful day as noted above, the appellant alongwith his brother had gone to the scene of occurrence alongwith their goats, that means that some untowards incident took place between the deceased and the appellant prior to causing of fatal injury. Admittedly, the appellant did not repeat the injury. In the circumstances, we are of the opinion that the appellant does not deserve the penalty of death. Thus, while maintaining the conviction of the appellant for an offence under section 302(b), P.P.C. We reduce his sentence from death to imprisonment for life. Fine could not be imposed under section 302(b), P.P.C. Thus, the sentence of fine is set aside. However, the appellant is directed to pay Rs.50,000 under section 544- A, Cr.P.C. As compensation to the heirs of the deceased. In default whereof the appellant would suffer further S.I. For six months. The benefit of section 382-B, Cr.P.C. Is extended to the appellant.
The death sentence is not confirmed. Murder Reference is answered in the negative. With the above noted modification in sentence this appeal is dismissed.
11. Muhammad Riaz, the acquitted accused who is real brother of convict Muhammad Ashfaq had admittedly gone to the place of occurrence empty-handed. We have already held that it was not a pre meditated affair, thus, we are of the opinion that the co-accused Riaz had rightly been acquitted by the learned trial Court. The appeal filed by the complainant Taj Din has no merit and the same is dismissed.
Sentence reduced.