1984 PLP 848 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑This appeal through special leave of this Court is directed against judgment dated 19‑5‑1979 of the Peshawar High Court ; whereby a Criminal Appeal arising out of a case of murder was dismissed and the sentence of death awarded to the appellant was con, firmed. Leave to appeal was granted to examine the quantum of sentence in the following circumstances; In an occurrence which took place on 22nd of May, 1976, at 5.00. p.m. in the room of a rural hotel, Pervaiz appellant and Amanat his co- accused fired at Muhammad Sadiq with .12 bore gun and .32 bore pistol, respectively as a result of which Muhammad Sadiq received injuries on vari ous parts of the body including his mouth. He was taken to a Hospital where Dr. Rahimullah in the first instance recorded his dying declaration and then performed his medical examination. The dying declaration reads as follows: "On 22‑5‑1976 at about 5.00 p.m. Mr. Amanat son of Sher Ahmad Khan and Mr. Pervez son of Sarwar Khan, both resident of Mohr Maradoo armed with pistol and rifle (.12 bore), respectively fired at me in a hotel in village Jowlian. P. S. Khanpur I got injured and fell down. The cause of this dispute is an old enmity due to a murder case." The injured died on 25th of May, 1976. The eye‑witnesses were examin ed at the trial, namely, Ghulam Sarwar a brother of the deceased and Muhammad Aslam a disinterested witness. The motive was that the deceased had killed the mother of Pervaiz appellant in 1970 (Amanat accused is maternal‑cousin of Pervaiz). He was tried and convicted. In this behalf he had served sentence of imprisonment and had returned to the village some months prior to the occurrence. The medical evidence revealed that the injuries suffered by the deceased could have been caused with two firearms 12 bore gun and .32 bore pistol. The recoveries of the crime empties from the spot also confirmed this assumption. they were both of 12 bore shots and .3l bore cartridges. The defence plea was that of denial. The facts relating to motive were admitted. The learned trial Court relied on the eye‑witnesses and accepted the dying declaration as genuine and true. Accordingly, both the accused were convicted and sentenced to death and fine. On appeal, a Division Bench of the Peshawar High Court relied on the ocular evidence as also the dying declaration and maintained the conviction of both the accused under section 302, P. P. C. The sentence of death awarded to Pervaiz was con, firmed but that of Amanat Khan was reduced to imprisonment for life. The criminal petition for leave to Appeal No. 44‑R of 1979 was filed by Pervaiz and Amanat against their convictions and sentences while Criminal Petition No. 49-R of 1979 was moved from the complainant side for enhance ment of sentence of Amanat. The Court passed the following order on 24‑3‑1980 "Learned counsel for the convicts contended that the ocular evidence was not reliable and further that the dying declaration could not be considered as genuine because, according to him, Muhammad Sadiq had received such injuries on his mouth and both the jaws as also the tongue that he could not speak. Therefore, he was unable to make a dying declaration. The recovery of two types of empties from the spot and the nature of the injuries showed that there were two assailants. It was a daylight occurrence. The motive could be attributed to both the petitioners. Learned counsel has not been able to satisfy us on the point that the ocular evidence suffers from any infirmity. The point raised with regard to dying declaration is also without any force. There is nothing on the record to show that the Doctor who recorded the dying dec laration was influenced by the complainant side within a short period of about half an hour after the occurrence so as to prepare a false dying declaration. The version about weapons, given in the dying declaration gets confirmation from the medical evidence as also the recoveries from the spot. Although the Doctor other than the one who recorded the dying declaration opined that injuries to jaws, tongue (and brain) could have resulted in damage to speech faculties, it is not possible to hold in the circumstances of this case, as noted above that the Doctor who in fact dealt with the injured immediately on his arrival in the hospital and recorded his statement as also medi cally examined him was either under some misapprehension or was not acting honestly. After hearing the learned counsel we are satisfied that both the petitioners have rightly been convicted for offence of murder. Learned counsel for the convicts also raised the question of sentence awarded to Pervaiz and argued that he was a lad of tender age at the time his mother was murdered by Muhammad Sadiq deceased. He relied on Ajun Shah v. The State P L D 1967 S C 185 and Ghulam Rasul v. Ali Akbar and others P L D 1965 S C 363 to contend that Pervaiz should also have been awarded lesser sentence. Although leave is refused to both the petitioners insofar as their conviction under section 302, P. P. C. is concerned, we consider it a fit case for examination of sentence of death awarded to Pervaiz. Accordingly, we allow Criminal Petition No. 44‑R of 1979, and grant leave to appeal. The learned Judges of the High Court when reducing the sentence of Amanat noted that he was 18 years of age when the present trial took place (at the time of occurrence in 1976 he would be aged about 16 years) and that he was 12 years of age at the time of murder of his aunt. The considerations which weighed with the High Court are irrelevant, in the circumstances of this case, in so far as the question of extenuation, qua Amanat is concerned. Criminal Petition No. 49‑R of 1979 for enhancement of his sentence is accordingly without any force and is dismissed." Learned counsel for the appellant reiterated the same argument as was noted in the leave granting order regarding the reduction of sentence of the appellant. He relied on the cases of Ajun Shah and Ali Akbar. Learned Assistant Advocate‑General tried to distinguish this case and cited Mehr Muhammad and another v. The State (1970 S C M R 688), Nabu alias Nabi Bux and others v. The State (P L D 1975 S C 478), Muhammad Sharif v. Muhammad Javed and others (PLD1976SC452) and Mokha v. Zulfiqar and others (PLD1978SC10). After some arguments during which the learned Assistant Advocate General had not succeeded in satisfying us on the plea that this case is distinguishable from that of Ajun Shahs case, learned counsel for the appellant informed the Court that the appellant party having paid Rs. 50,00 as compensation to the heirs of deceased, they have reached a compro mise. He also placed on record documents in this behalf. After necessary questioning we felt satisfied that the compromise is genuine and that it is to the material advantage of the parties Compensation which is adequate has also been paid. Accordingly we relying on the Rule laid down in the case of Muhammad Bashir v. The State (P L D 1982 SC 139), allowed this appeal with the following order : . "For the reasons, to be recorded later, this appeal is partly allowed in the following terms :‑ "The sentence of death awarded to appellant Pervaiz son of Sarwar Khan is set aside and he is instead sentenced to imprisonment for life. The sentence of fine of Rs. 2,000 imposed on him is enhancad to fine of Rs. 50,

000. The entire amount of fine, it is further directed, shall be paid as compensation to the heirs of Muhammad Sadiq deceased. The amount of compensation of Rs. 50,000 according to the documents produced in the Court has been paid. It shall be treated as payment of the said fine of Rs. 50,

000. Accordingly no sentence of imprison ment in default of payment of fine has been imposed. Benefit under section 382‑B of Cr. P. C. is also allowed to the appel lant." S. Q. Appeal partly allowed.