2007 PLP 654 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.77 of 2001 filed by Muhammad Iqbal, appellant. He was convicted and sentenced by learned Additional Sessions lodge, Faisalabad vide judgment dated 1-2001 as under:-- "Death and to pay compensation to the tune of Rs.50,000 as compensation in default six months' S.I. under section 302(b). Murder Reference No.123 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

3. Occurrence in this case had taken place at 3-00 p.m. on 13-6-1998 within Revenue Estate of Chak No.37/GB which is at a distance of 2-1/2 Kilometers from Police Station, Satiana, Faisalabad while the matter was reported to the police by Muhammad Aslam through written complaint Exh.P.H. at 4-30 p.m., the same day at Adda Satiana and the formal F.I.R. Exh.P.H./1 was recorded by Muhammad Yaqoob, Head Constable at 4-40 p.m., on the same day.

4. Briefly stated the facts of the case as disclosed in the complaint Exh.P.H. are that on 13-6-1998 at about 3-00 p.m. a quarrel had taken place between the children of Bashir Ahmad and Muhammad. Iqbal over food being distributed at the shrine of Godar Shah but the matter was patched up. The son of Muhammad Iqbal went to his house and later on Muhammad Iqbal armed with a Churri while Muhanunad Yasin and Muhammad Kashif, both empty handed, emerged at the scene. Muhammad Iqbal raised Lalkara for beating his son and simultaneously gave a dagger blow, which landed on the chest of Bashir Ahmad. Muhammad Yasin and Kashif were ascribed the role of taking Bashir Ahmad into Jhappa. Muhammad Iqbal decamped from the spot while the injured in his way to hospital succumbed to the injury.

5. Muhammad Aslam, A.S.-I. P.W.4 took over the investigation. He after sending the complaint to the police station for registration of a formal F.I.R. went to Civil Hospital; examined the dead body of Bashir Ahmad, prepared injury statement Exh.P.B., inquest report Exh.P.C.; he then visited the spot and from there took into possession the blood-stained earth vide memo. Exh.P.G. Muhammad Iqbal accused was arrested on 21-6-1998 and during interrogation he got recovered Churri P.4 which was taken into possession vide memo. Exh.P.E. After completion of necessary investigation, accused was sent to face the trial.

6. At the trial prosecution in order to prove its case produced 10 witnesses in all. Muhammad Aslam and Muhammad Munsha P.Ws.6 and 7 furnished the eye-witness account respectively. The learned ADA tendered in evidence reports of the Chemical Examiner Exh.P.K., Exh.P.M., reports of the Serologist Exh.P.L. and Exh.P.N. and closed the case of prosecution. The accused in their 'statements under section 342, Cr. P. C. pleaded false implication. After conclusion of the trial, Muhammad Yasin and Kashif accused were acquitted while Muhammad Iqbal was convicted and sentenced as stated above.

7. Learned counsel for the appellant submits that occurrence had taken place at the spur of the moment: there was no previous background of enmity between the parties and that it has been admitted by the eye-witnesses and the Investigating Officer that just prior to the main occurrence of murder, a quarrel had taken place between children of the deceased as also the appellant and in that quarrel, son of Muhammad Iqbal, the present appellant was given beating. According to learned counsel all these facts if taken .together are mitigating circumstances in favour of the appellant and as such the death penalty is not called for in the instant case.

8. Both the learned counsel for the State; one in appeal and other in reference submit that the appellant is named in the F.I.R. with role of causing. Churri blow on the chest of the deceased and that the appellant having admitted his guilt before the trial Court he is not entitled to any concession of even lesser sentence.

9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance.

10. After appraisal of the evidence on record and attending to the submissions made by learned counsel for the parties we are satisfied in our mind that it was the appellant who had committed the murder of Bashir Ahmad rather the appellant Muhammad Iqbal had, admitted the grappling with deceased Bashir but alleged that during the grappling, the deceased fell on a heap and got the injury. However, it has come on record that there was no previous background of enmity between the parties. Just before the actual occurrence of murder of Bashir, a quarrel had taken place between children of Bashir deceased and Muhammad Iqbal, appellant in which son of Muhammad Iqbal, appellant was given beating. Muhammad Munsha P.W.7 in cross-examination deposed. In the fight among the children a son of Iqbal accused had received a head injury". Muhammad Asfam, complainant while appearing as P.W.6 in cross-examination stated "Occurrence was finished with seconds, during which period Iqbal accused and Bashir deceased had grappled each other. When they got separated I saw that Bashir deceased was injured, volunteered Bashir deceased also told me that Iqbal accused had caused him a Churri blow. "Muhammad Aslam A.S.-I., P.W.4 (Investigating Officer) in cross-examination deposed" younger brother of Kashif accused had appeared before me as an accused who had a sign of injury on his head which was shown to me." Dr. Anwar Saood Saqib P.W.1 conducted post-mortem examination on the dead body of Muhammad Ashraf deceased and found only one injury that is a stab wound on the left side of chest. The accused appellant did not repeat the injury. Even otherwise it was not premeditated murder. The same had taken at the spur of moment in the 'heat of passion without taking undue advantage. Taking the. above said facts as extenuating circumstances, we though maintain conviction of the appellant under section 302(b), P.P.C. but convert the sentence of death into imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence of compensation and in default thereof as awarded by the trial Court is maintained in toto. The sentence of death awarded to appellant Muhammad Iqbal by the trial Court is not confirmed and murder reference is answered in the negative. M.H./M-571/L Order accordingly.