1994 PLP 92 (SCMR)

RUSTAM S. SIDHWA, J.‑‑‑This is an appeal by Nazir Ahmad appellant against the judgment of a learned Division Bench of the Lahore High Court dated 13‑5‑1990 dismissing his appeal and confirming his death sentence.

2. The brief facts of the case are that Nazir Ahmad appellant, his brother Bashir Ahmad and his father Muhammad Shafi acquitted accused and Hifazat Ali deceased are co‑villagers. Two‑three days before the occurrence, on account of rainy water, mud plaster accumulated in the street in front of the house of Rehmat Ali complainant P.W.

10. Nazir Ahmad appellant took objection to it, which led to a quarrel between Hifazat Ali deceased and the appellant. Muhammad Boota P.W.7, maternal‑uncle of the deceased, and Nawab Din (given up P.W.), intervened and separated them. Nazir Ahmad appellant, while leaving, issued threats to the deceased that he would deal with him subsequently.

3. On the fateful day (6‑11‑1985) at about 6‑00 p.m. Rehmat Ali complainant P.W. 10 and Hifazat Ali deceased, whilst returning home, passed in front of the Baithak of Barkat Ali P.W. 6, their neighbour. Hifa7at Ali deceased seeing that some persons, including Nazir Ahmad appellant, were playing cards, stopped there to see it, while Rehmat Ali complainant went ahead. Nazir Ahmad appellant objected to the deceased's presence there, whereupon a quarrel ensued between them an they exchanged abuses and fist blows. Hearing the commotion, Rehmat Ali ctmplainant P.W. 10 came back and took the deceased with him towards his other house. They had hardly reached the chowk of Shah Muhammad Lambardar P.W. 11, when the appellant and the two acquitted accused, armed with hatchets, came from behind and attacked Hifazat Ali deceased. Nazir Ahm‑ad appellant inflicted a hatchet blow on left side of has head, as a result of which Hifazat Ali fell down. Bashir Ahmad acquitted accused then inflicted a hatchet blow on the back of the deceased, whilst he lay on the ground. Thereafter, ail the appellants and the two acquitted accused fled away. The occurrence, besides Rehmat Ali complainant P.W. 10, was witnessed by Shah Muhammad Lambardar P.W. 11 and Muhammad Shafi (PW not produced).

4. Leave was granted in this case to only consider the question as to whether in the surrounding circumstances, the appellant's guilt attracted the lesser penalty.

5. We have heard the arguments of the learned counsel for the appellant, and the State and have perused the record. The learned Judges of the High Court held that the quarrel which had taken place two/three days earlier did not serve as the immediate motive for the instant occurrence; that the motive which was common ground between the parties, namely, that the deceased and the appellant had quarreled in the Baithak of Barkat Ali, which culminated in the main occurrence, appeared to be true and correct; that when the deceased and the appellant were restrained from so fighting and were disengaged, Rehmat Ali complainant P.W. 10, the father of the deceased, took away the deceased from the Baithak and proceeded towards his other house, which was in the north; and that the appellant and the two acquitted accused, duly armed with hatchets, surprised the deceased near the house of Shah Muhammad P.W. and attacked and killed him. The learned Judges did not accept the defence version. These being the admitted findings, it would appear that the appellant, being provoked by the scuffle that took place at the Baithak of Barkat Ali immediately thereafter pursued and attacked the deceased near the house of Shah Muhammad P.W. In the circumstances, he is entitled to the lesser sentence.

6. For the foregoing reasons, we partly accept this appeal and convert I the sentence of Nazir Ahmad appellant awarded to him under section 302, P.P.C. from death to life imprisonment with fine of Rs.5,000 or in default thereof to undergo further R.I. for two years. Fine, if recovered, shall be paid as compensation to the heirs of Hifa7at Ali deceased. N.H.Q./N.353/S Sentence reduced.