1994 PLP 1733 (SCMR)

SAAD SAOOD JAN, J.‑‑‑The petitioner was convicted alongwith three others on charges under sections 302 and 307 (two counts) read with section 34, Pakistan Penal Code, for causing the death of Muhammad Yousaf, deceased, and making murderous assault upon two persons, namely, Abdur Rasheed (P.W.6) and Maqbool Ahmad (P.W.7). The learned trial Court sentenced the petitioner to death and the others to imprisonment for life in respect of the offence under section 302, ibid. In respect of the offences under section 307, it sentenced all of them to rigorous imprisonment for a period of one year. In addition it also directed them to pay fines in respect of the offences of which they had been convicted. On appeal and reference, the High Court acquitted two of the convicts but upheld the convictions and sentences of the petitioner and co‑convict Bashir Ahmad on the charges under section

302. The petitioner seeks leave to appeal from this Court.

2. The occurrence took place on 18‑5‑1988 at 11‑30 a.m. in the village Abadi of Chak No. 6/8‑A.R. At the relevant time, the deceased and some others were passing by the house of Muneer, brother‑in‑law of the petitioner, after taking mid‑day meal in the house of Abdur Rasheed (P.W.6). Suddenly, the petitioner and the co‑accused came out. The petitioner was armed with a carbine while the others were carrying Sotas. After raising some Lalkaras the petitioner fired twice. As a result the deceased was killed and Muhammad Bashir Noel, Bashir Ahmad, Abdur Rasheed (P.W.6) and Maqbool Ahmad (P.W.7) were hurt.

3. The motive for the occurrence was stated to be a dispute between the parties over the lease of the agricultural land belonging to one Haji Waryam.

4. At the trial, the petitioner did not deny that he was responsible for causing the death of the deceased. He, however, took the plea of self‑defence alleging that he had fired at the deceased in order to save his life.

5. The petitioner did not produce any evidence of his own in his defence. Nevertheless, he was entitled to support his plea of right of private defence from the circumstances appearing from the evidence of the prosecution itself. On our inquiry from the learned counsel if he could refer to any such circumstance he pointed to the fact that the occurrence took place in front of the house of the accused party and the finding of the trial Court that the motive set up by the prosecution had not been established. Now, the mere fact that the occurrence took place in front of the house of the accused party would not necessarily imply that the petitioner was under attack at the relevant time. It was not the case of the petitioner that at the relevant time the deceased and his companions had made a detour and purposely passed in front of the house of the accused party. Further, the failure of the prosecution to establish the motive has no direct bearing on the plea of the petitioner. Thus, the circumstances to which the learned counsel has referred in support of the petitioner's plea are not of any assistance to him. We should, therefore, think that the petitioner was rightly convicted of the offence under section 302, Pakistan Penal Code.

6. As regards the sentence it appears that the witnesses of the prosecution had not come out with the entire truth they concealed the reason why the petitioner and his companions attacked the complainant party. In the circumstances, we do not think that this is a fit case where the sentence of death should have been imposed upon the petitioner. Accordingly, we convert this petition into appeal and after hearing Mr. Irfan Qadir, Additional Advocate‑General, we alter his sentence in respect of the offence under section 302 by reducing it from death to imprisonment for life. The sentence of fine shall however remain unaltered. In the computation of his sentence he shall be given the benefit of the provisions of section 382‑B, Criminal Procedure Code. N.H.Q./M‑2033/S Sentence reduced.