1983 PLP 1169 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Muhammad Tahir Khan was tried by the learned Sessions Judge, Malakand for committing the murder of Baroz Khan, and was sentenced to death under section 302, P. P. C. plus a fine of Rs. 5,000 payable as compensation to the heirs of the deceased, and in default, to undergo six months' R.

1. He was also convicted under section 323, P. P. C. for causing simple hurt to Mst. Husan Pari, widow of the deceased and was sentenced to three months' R. I.

2. According to the prosecution on 24‑11‑1978 at 11 a.m. in the limits of Dheri Alladand, Bacha son of Umbali went to the Levy Post where he lodged the report Exh. P. A. with Muhammad Nawaz, Muharrir to the effect that Bahroz Khan was ploughing in the orchard of Muhammad Tahir Khan appellant when the latter appeared and asked the deceased Bahroz Khan to stop ploughing. On the reply of the deceased that he was lessee of the said orchard, the appellant flared up and fired at him three shots with pistol resulting in the instantaneous death of Bahroz Khan deceased. Mst. Husan Pari, widow of the deceased was helping her husband in the ploughing, came forward to the help of her husband but the accused gave her a blow with a stick injuring her on the head.

3. Prosecution, in support of its case, examined Mst. Husan Pari, P. W.

3. She gave ocular account of the occurrence and charged the accused for causing her injury with a stick and Fateh Khan P. W. 4 also supported the prosecution case by giving eye‑witness .account of the occurrence. Azizur Rahman, P. W. 5 witnessed the recovery of empties of '32 bore pistol P. 1, P. 2 and P. 3 from the spot, and signed the Recovery Memos. Nos. Exh. P. D. Exh. P. E. and Exh. P. F. as attesting witness.

4. Muhammad Nawaz, Muharrir, P. W. 6 registered the case vide F. I. R. Exh. P. A. on 24‑11‑1978 at 11‑25 a.m. at the instance of Bacha, P. W.

1. He visited the spot, took into possession three empties P. 1, P. 2 P. 3, and also some blood‑stained earth. The dead body of the deceased was lying in the house. He prepared inquest report Exh. P. G. and sent the dead body for external examination to the hospital because in this part of the country, post‑mortem examination is not in vogue on account of the refusal of the families of the deceased to permit this. He also prepared the site plan Exh. P. D. and took into possession blood‑stained clothes of deceased and Mst. Husan Pari.

5. The learned Sessions Judge, vide his judgment, dated 5‑5‑1979, convicted and sentenced the appellant as stated above. The accused/ appellant filed an appeal in the Peshawar High Court where Murder Reference was also placed before the same learned Bench for confirmation of his death sentence. Appeal filed by the accused/appellant was dismissed and the Murder Reference was ultimately affirmed. Thereafter, leave was granted by this Court vide order, dated 13‑11‑1982 to consider the question of sentence in view of the fact that there was no evidence on record to show that the deceased was in possession of the orchard as a lessee or tenant though it was verbally asserted so by Bacha Khan, P. W. 1, and Mst. Husan Pari, P. W. 3 and Fateh Khan, P. W.

4. On the other .hand the accused/appellant has stated in his statement under section 342, Cr. P. C. recorded during the trial that :‑‑ "I am innocent and falsely charged. In fact, the deceased had already been ejected from my land in due course of law. The deceased P. W. Fateh Khan and Azizur Rahman and Bacha are members of the Kissan Party, and during the days of occurrence, this Party was forcibly occupying the lands of the real owners which were `Khudkashts' . . . . ." Thus, the balance is to be struck between the two versions. The prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. In the instant case we find that Bacha, P. W. 1 brother of the deceased has stated in the F. I. R. as under: "on the day of occurrence at 11 a.m. my deceased brother Bahroz Khan was ploughing in the orchard of Muhammad Tahir when Tahir Khan came and‑asked my brother (the deceased) as Jo why he was ploughing in his orchard. In reply my brother said that he was paying the lease motley fort‑ the orchard. Muhammad Tahir Khan got infuriated and fired' three shots at my, brother and killed him." In this report, appellant's ,ownership of the orchard is admittedly by Bacha, P. W.

1. But the complainant: Badha has not been able .to show that any lease document regarding the orchard was executed between the parties, nor there is any evidence that the deceased was in possession of the orchard as a tenant. As a matter of fact, in an orchard, ploughing is not allowed in order to avoid damage to the fruit trees. Normally orchards belong to the owners' and a tenant or lessee. can only plant fruit trees, if permitted by the landowner.

6. Thus, we consider that this is a case where life imprisonment would meet the ends of justice. We however impose the amount of: fine Rs. 50,000 (rupees fifty thousand only) under section 545, Cr R` C. and in default in payment of fine, the appellant shall undergo fester R. L " for five years. The entire amount of the fine, if recovered, shall be paid to the heirs of the deceased+ as compensation under section 545, Cr. P. C. We further direct that the appellant shall pay compensation of Rs. 5,000 (Rupees five thousand only) to the heirs of the deceased under section 544‑A, Cr: P. C. or in default, the accused/appellant shall undergo further R. I. for five years. S. Q. Sentence reduced.