1999 PLP 52 (SCMR)

SH. IJAZ NISAR, J.

This appeal by the l6ve of Court is directed against the judgment of the Lahore High Court, Lahod dated 5-7-1993, passed in Criminal Appeal No.905/1990 and Murder Reference No.24/1991.

2. The facts, in brief, are that Muhammad Akram appellant alongwith his brothers Muhammad Ashraf and Muhammad Aslain was tried for the murder of Muhammad Arshad deceased with a dagger committed on 18-5-1988 at 9-15 a.m. near a mosque in the area of Police Station Samundari, District Faisalabad.

3. According to the prosecution story, two days prior to the occurrence, the accused were irrigating their land and wanted to take the share of Chappar water also, which was objected to by Muhammad Arshad deceased, resulting in an altercation between them. The deceased felled the appellant on the ground and caused fist blows to him. They were separated by Muhammad Ali Lambardar. On the day of occurrence the deceased, Shaukat Ali P.W.3, Muhammad Rafiq PWA and Lakhan P.W.5 were coming out of the Mosque after offering Eid prayers and had hardly covered a few steps when the accused surprised him. Muhammad Aslam accused (since acquitted) raised ^ a Lalkara, whereafter Muhammad Ashraf caught hold of the deceased while Muhammad Akram appellant inflicted dagger blows on him resulting in his instantaneous death.

4. During investigation the appellant led to the recovery of blood-stained daggar P. 1 from his house. His blood-stained clothes were also recovered. At the trial, - the appellant and his companions pleaded innocence and produced -some documents in their defence.

5. By judgment dated 13-12-1990, the learned trial Court convicted Muhammad Akram appellant under section 302, P.P.C., and sentenced him to death plus a fine of Rs. 15,000, or in default to undergo two years' R.I. Muhammad Aslarn and Muhammad Ashraf co-accused were, however, given the benefit of doubt and acquitted.

6. On appeal, the learned High Court by judgment, dated 5-7-1993, maintained the conviction and sentence of the appellant.

7. Leave was granted to consider whether on the evidence produced on record, death sentence awarded to the appellant could be confirmed.

8. Learned counsel for the appellant contends that the High Court had failed to consider the element of provocation and the possibility of chance confrontation. According to the prosecution, the appellant after exhausting his turn of water from the canal water started using water meant for the village pond. Muhammad Arshad deceased and Lakhan P.W. stopped him from using the pond water which led to an altercation between them. The deceased and Lakhan P.W. gave beating to the appellant and his brother Muhammad Aslam (since acquitted). In order to avenge that insult the appellant attacked and killed the deceased.

9. Since the occurrence was the result of a beating given to the appellant by the deceased over the utilization of pond water, we, in view of the observations made in Abdul Khaliq v. The State 1989 SCMR 2002) consider it as a mitigating circumstance for withholding the penalty of death, and while maintaining the conviction of the appellant alter his sentence of death to imprisonment for life plus a fine of Rs. One lac, or in default to undergo 3 year's R.I, which if recovered, shall be paid in full, as compensation, to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. shall also be given to the appellant. N. H. Q. /M-21 I /S Sentence reduced.