2007 PLP 811 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.294-J of 2001 filed by Allah Ditta, who was convicted and sentenced by the learned Additional Sessions Judge, Sheikhupura, in case F.I.R. No.172, registered at Police Station Syedwala, District Sheikhupura, on 8-7-1998, for offences under sections 302/ 109, P.P.C., vide his judgment dated 30-11-2000 as under: Death with compensation of Rs.25,000 or in default six months' S.I. under section 302(b). P.P.C. Murder Reference No.463 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

2. Brief facts of the case as narrated in F.T.R. by Muhammad Ali/complainant (P.W.2) are that he was resident of Dhari situated in his agricultural land. He had also taken the land on the basis of share (Battai) owned by Sardar Khan Gujjar, which was adjacent to his land. On 8-7-1998 at about 5-00 p.m. the complainant along with his real brothers Falak Sher and Muhammad Tufail were going towards Tubewell of Sardar .Khan, while his brother Hussain Khan was already present there, Allah Ditta armed with Rifle came there and raised Lalkara that Hussain Khan should be done to death. Thereafter he fired upon Hussain Khan which hit him on his abdomen, who fell down. The accused fled away from the spot while brandishing his rifle. Hussain Khan died at the spot. The motive behind the occurrence was that the said Tubewell Was joint one, which became out of order and was got repaired. The expenses were borne by Hussain Khan and on demand of share of expenses Allah Ditta quarrelled with Hussain Khan and nursed grudge. For that reason on instigation of his son Khan Bahadur and brother Alam Sher, Allah Ditta committed the murder of Hussain Khan.

3. After registration of formal F.I.R., the investigation of the case was taken over by Hassan Mehmood Kazmi, S.I./P.W.8. He proceeded to the place of occurrence, took over the dead body, prepared inquest report Exh. P. F. and injury statement Exh.P.F./2. He took into possession blood-stained earth from the spot vide memo. Exh.P.B. On 5-10-1998 Allah Ditta-accused appeared before Arshad Mehmood Sahi, Inspector/P.W.11 along with his .303-bore rifle P.3 and licence P.4. P.W.11 formally arrested Allah Ditta and took into possession rifle and its licence vide memo. Exh.P.D. After completion of investigation, the accused was sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the report of Chemical Examiner Exh.P.K. closed its case. The accused in his statement recorded under section 342, Cr.P.C. pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellant in support of this appeal at the very outset has prayed for lesser sentence in the circumstances of the case. In order to substantiate his prayer he has argued that it was a sudden affair; that no previous enmity existed between the parties; and that the altercation took place over the use of Tube-well, which was jointly owned by the appellant and the deceased.

6. The learned counsel appearing on behalf of the complainant submits that the appellant has taken life of an innocent person for trivial reason and thus deserves no leniency; that no mitigating circumstance exists in favour of the appellant; and that the learned trial Court has rightly inflicted normal penalty of death on the appellant.

7. The learned counsel for the State have frankly conceded that it was not a case of capital sentence.

8. We have heard the learned counsel for the parties and gone through the record. The occurrence took place at 5-00 p.m. on 8-7-1998 while the matter was reported to the police at Police Station, which was at a distance of eight miles, at 6-30 p.m. i.e. within one and half hours of the occurrence. F.I.R. was lodged promptly, which leads to the logical conclusion that the P.Ws. were present at the time of occurrence. The occurrence was committed when daylight was available so the question of non-identification does not arise. Both the P.Ws. had no serious enmity or ill-will against the appellant so as to involve him in a false case. They have given trustworthy account of the occurrence. They have corroborated each other on all the material points. Their statements are fully supported by the medical evidence and corroborated by the recovery of licensed rifle of the appellant. The prosecution has also successfully proved motive against the appellant. Even the appellant has admitted the motive. In these circumstances, the prosecution has successfully proved its case beyond doubt against the appellant. In these circumstances, the learned counsel for the appellant has very wisely not prayed for acquittal of the appellant and has prayed for lesser sentence.

9. Having come to the conclusion that the prosecution has proved its case against the appellant we have given our considerate thought to the quantum of sentence. It has been noticed by us that admittedly no previous ill-will or enmity existed between the deceased and the appellant. The deceased and the appellant jointly owned the Tube-well for the last 8/9 years. Tube-well was repaired 15/20 days prior to the occurrence. It was the deceased, who had paid for the repair of the. Tube-well, so he did not allow the appellant to use Tube-well till payment of his share of the repair bill. The appellant was being consistently deprived of the use of Tube-well and had legitimate fears that agricultural land owned by him would become barren. Unfortunately situation worsened on the fateful day when the appellant was again refused to use Tube-well. This provoked the appellant, who fired with his licensed rifle upon the deceased. However, he did not repeat the fire. In these circumstances, we feel that it was not a case of extreme penalty. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we reduce his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. However, order passed by the learned trial Court under section 544-A, Cr.P.C. is maintained.

10. This appeal is partly allowed. Murder Reference is answered in the negative. Death sentence is not confirmed. H.B.T./A-179/L Appeal partly allowed.