1995SCMR359 (PLP)

MUHAMMAD RAFIQ TARAR, J.‑‑‑Maqsood Ahmad petitioner seeks leave to appeal from the judgment of a learned Division Bench of the Lahore High Court dated 18‑1‑1993 wherebv his conviction under sections 302 and 307 of the P.P.C. carrying death sentence and a fine of Rs.10,000 on two counts and R.I. for four years and a fine of Rs.10,000 was set aside and on being found guilty under section 304, Part I of the P.P.C. and section 308 of the P.P.C. he was sentenced thereunder to imprisonment for life and a fine of Rs.5,000 on two counts and R.I. for three years and a fine of Rs.2,000 respectively.

2. The petitioner and his brothers Mashooq Ahmad and Farooq Ahmad were tried on the allegation that on 5‑7‑1990 at 7‑30 p.m. they committed the murder of Shaukat Ali and Muhammad Amin and made murderous assault on Muhammad Saleem P.W.

3. The petitioner denied the prosecution's allegations. He admitted having caused injuries to both the deceased persons but gave a counter‑version of the same as under:‑‑ "In fact my sister Mst. Shamim Akhtar alias Sheman was married with Arif son of Ghulam but we got her divorce through Court some time before this occurrence and for this reason, Arif son of Ghulam became inimical towards us. Similarly, we had litigation and party faction with Asghar Ali P.W.11. Said Arif son of Ghulam is son of real maternal‑uncle of Shaukat deceased. Both Arif and Asghar P.W. were not happy over our relations with Mst. Arifan complainant and her husband. To our bad luck on 16‑6‑1990 Muhammad Amin deceased got registered a case under section 451, P.P.C. at P.S. Doonga Boonga against one Muhammad Yousaf Khand alleging that he had tried to outrage the modesty of Mst. Rani (our sister). I also in good faith supported Muhammad Amin deceased before the Police and as such I was also cited as witness in that case but the abovesaid Arif and Asghar P.W.11 induced and incited Muhammad Amin his father Shaukat Ali and Mst. Arifan Bibi complainant and as a result of it Muhammad Amin deceased turned out our sister Mst. Rani from his house but in spite of that my younger brother Mashooq Ali did not force his wife Mst. Arshan sister of Amin deceased to leave his house and she continued living with us till the day of occurrence. On 5‑7‑1990 i.e. the day of occurrence, while I was coming back to my house from my fields alongwith my licensed .12 bore gun which I had taken with me while going to the fields to kill wild‑bores, I went to the house of Shaukat deceased at about in‑between Maghrab and Isha time where. I requested Shaukat deceased and Muhammad Amin deceased that as our relation is very close my sister Mst. Rani has children from Amin deceased and similarly daughter of Shaukat deceased Mst. Arshan wife of Mashooq accused my brother has also one daughter and one and for this reason they should not spoil this relationship just at the instigation and incitement of Arif and Asghar Ali P.W. I also assured them of all possible good behaviour and character of Mst. Rani but Muhammad Amin deceased abused me saying that my sister is a Bitch and Kanjri and we all are Kanjars. Immediately thereafter, Amin deceased rushed to his Kotha and came back with a pistol and fired at me saying that you Kanjar get out of my house. Whereupon I also lost my temper and under sudden and grave provocation and also to save my person, I also fired at Muhammad Amin deceased. Shaukat Ali deceased also joined with Muhammad Amin and tried to apprehend and kill me with the help of Muhammad Saleem and Muhammad Amin deceased as a result of which they also received injuries of my second fire. Thereafter, I went to my house. The occurrence took place while I was all alone in the courtyard of the deceased Shaukat. My other co‑accused Mashooq and Farooq my brothers were not present at that time. They were watering our field at that time from `where I had come. After the occurrence, said Muhammad Arif went to the police station and brought the Police at the spot. Said Arif and P.W.11 Asghar concocted a false story and involved myself and my two brothers in connivance with the local police falsely. I alone without premeditation, on a sudden provocation committed the occurrence as narrated by me and on the following day of the occurrence, I myself appeared before the police alongwith my licensed gun. The complainant party concealed the .12 bore pistol used by Muhammad Amin deceased at the spot and produced the sane reluctantly after so many days of the occurrence which were planted against my brother Mashooq accused by the Police in connivance with Asghar Ali P.W.11."

4. Perusal of the impugned judgment reveals that the learned Judges of the High Court rejected they prosecution version in toto and relying on the above statement of the petitioner convicted and sentenced him as mentioned above. In para. 23 of the judgment they observed that "the version put forth by the prosecution was neither true nor worth acting upon, while the version put forth by Maqsood appellant was more probable and nearer the truth."

5. Learned counsel for the petitioner does not challenge the conviction but states that in the circumstances of the case the sentence awarded by the High Court is on much higher side. After, considering the submissions in the light of evidence available on the record we feel inclined to agree with him. We, therefore, convert this petition into appeal and allowing it reduce the sentence of the appellant under section 304, Part I of the P.P.C. from imprisonment for life to R.I. for seven years on each count while maintaining the sentence of fine as also the sentence under section 308 of the P.P.C. The substantive sentences of imprisonment shall run concurrently. The petitioner shall be given benefit of the provisions of section 382‑B of the Cr.P.C. as ordered by the High Court. N.H.Q./M‑2077/S?????????????????????????????????????????????????????????????????????????????? Order accordingly.