1999SCMR983 (PLP)

SH. IJAZ NISAR, J.

The facts, in brief, are that on 15-8-1989, at 11-15 a.m. a case under section 302, P.P.C. was registered at Police Station Bhalwal, District Sargodha, at the behest of Muhammad Ali P.W.8. father of the deceased, against Haider Shah appellant and his co-accused, namely, Ghulam Abbas, Ghulam Shabbir, Hubdar Shah and Zafar Hussain Shah (since acquitted) for the murder of Muhammad Ashraf deceased. At 10-00 a.m. on the .day of occurrence Muhammad All complainant accompanied by Muhammad Ashraf deceased, Nasar Hussain P.W.9 and Manzar Hussain P.W. (given up), while engaged in cutting Sheesham trees growing on the ridge of Killa No.8, Square No. 146, Nabi Shah Bala adjoining the appellant's orchard, were confronted by Haider Shah appellant armed with a 7 MM rifle alongwith Ghulam Shabbir, Hubdar Shah armed with .12 bore guns and Ghulam Abbas armed with a stick. Responding to Ghulam Abbas's Lalkara to teach them a lesson for cutting Sheesham trees regarding which a suit was pending before Tehsildar Bhalwal. Haider Shah appellant fired a rifle shot at Muhammad Ashraf deceased which landed above his right hip, as a consequence whereof he collapsed, whereafter the assailants managed to escape. Muhammad Ashraf was removed to the hospital where he succumbed to the injuries.

2. The learned Additional Sessions Judge, Bhalwal, vide his judgment, dated 6-4-1991, had held that the prosecution had proved its case against the appellant. He was, accordingly, convicted and sentenced to death, plus fine.

3. The appellant preferred an appeal, which was dismissed by the Lahore High Court and his death sentence was confirmed.

4. Haider Shah appellant filed J. P. 63 of 1995 in this Court, wherein. leave to appeal was granted to consider propriety of the sentence of death confirmed by the High Court in the circumstances of the case.

5. We have heard the learned counsel for the parties at some length. It is contended that admittedly a dispute existed between the parties over the ownership of trees standing on the Banna of Killa No. 19 and Tehsildar Bhalwal had appointed an Arbitrator to settle the dispute between them, and before he submitted his report the complainant party including the deceased started cutting branches of the disputed trees. This fact by itself was sufficient to provoke the appellant entitling him to leniency in the matter of sentence. This plea, of course, is weighty and appeals to reason. The complainant-party should not have cut the disputed trees/branches till the decision of the Arbitrator. In the circumstances narrated above, we consider that the ends of justice will be met if the sentence of the appellant is reduced from death to imprisonment for life plus the payment of Rs.1,00,000 as fine to be paid as compensation to the legal heirs of the deceased with benefit of section 382-B, C.P.C. We order accordingly, and partly accept the appeal in the above terms. N.H/Q./H-27/S ?????????????????????????????????????????????????????????????????????????????????? Sentence reduced