1994 P Cr (PLP)

Date of hearing. 21st April, 1993. Faiz Muhammad (30) was tried by the Additional Sessions Judge, Mianwali, for having murdered Farooq (18) on 23‑3‑1988 at 5‑30 p.m. at the roof of the house of Haji Ghulam Yasin in Gali Khawajgan, Mohallah Mian Muhammad Akbar, at a distance of four furlongs from Police Station City Mianwali. Learned trial Judge vide judgment, dated 19‑12‑1990 held him guilty, under section 304, Part I, P.P.C. convicted him accordingly and punished him to undergo R.I. for ten years plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for six months.

2. The convict has filed appeal. The complainant has preferred revision petition whereby fresh trial of the respondent has been prayed after setting aside his acquittal under section 302, P.P.C. As both the matters have arisen from the same judgment, they are being disposed of together.

3. The prosecution case at the trial was that the appellant, after going on the roof of his house, had fired a shot at Farooq after raising a Lalkara. The shot had hit Farooq on the back of the chest. He was removed from the spot in injured state but he died in the hospital before any medical aid. The background for the murder was a quarrel that had taken place amongst the children of the two families, on the same day.

4. Statements of 10 P.Ws., including the eye‑witnesses, and the doctor, who had performed autopsy, were recorded at the trial. The eye‑witnesses had supported the prosecution case. The appellant had put up his own version and stated as follows while making statement under section 342, Cr.P.C.:‑‑ "A short time prior to the occurrence I and my brother Bashir had given slaps to Farooq deceased. He went to his house and returned duly armed with .12 bore pistol. He went upstairs and after crossing of the roof of Ghulam Yasin appeared from the roof of my house. He raised Lalkara and fired with pistol towards me but missed the target. My brother Bashir picked up the licensed gun of our father. The deceased was going to repeat the fire when Bashir fired at him and injured him. The pistol held by the deceased fell down on the ground in our courtyard and was picked up by my first cousin Muhammad Hayat and was produced before Ashiq Hussain, Inspector subsequently. This occurrence was witnessed by Ejaz Ahmad son of Yasin and Khuda Bakhsh son of Allah Diwaya. I had no motive to commit murder of Muhammad Farooq. The prosecution has twisted the story. All the P.Ws. are interested one."

5. Learned counsel for the appellant decided not to challenge the conviction of the appellant under section 304(I), P.P.C. He, however, strenuously argued for reduction of sentence of 10 years' R.I., as according to him, the same was absolutely disproportionate to the crime that he was found to have committed. While praying for reduction of sentence of imprisonment, he offered that the appellant would be willing to pay a reasonable sum, as compensation, to the heirs of the deceased. In fact, he stated so after seeking instructions from the brother of the appellant.

6. Notwithstanding the fact that the learned counsel for the appellant has not challenged the conviction of the appellant under section 304, Part I, P.P.C., I have gone through the record and perused the judgment also. I am, even otherwise, convinced that no interference is called for in the conviction of the appellant under section 304(1), P.P.C. The same is, therefore, maintained. However, his sentence of R.I. for ten years, in the circumstances of this case, appears to be excessive. The same is, therefore, reduced to R.I. for seven years. The sentence if fine of Rs.5,000 is, however, increased to A Rs.25,000, whole of which shall be paid, as compensation to the heirs of the deceased. In case of non‑payment of fine, the appellant shall undergo R.I. for three years. Before reaching the conclusion of maintaining the conviction of the appellant under section 304(1), P.P.C. I had considered the arguments of the learned counsel for the petitioner, in the revision petition for setting aside the acquittal under section 302, P.P.C. and for remanding the case for fresh trial. I am convinced that acquittal of Faiz Ahmad under section 302, P.P.C. was based on correct appreciation as the stance put forth by him about the manner in which the occurrence had taken place, appeared to be more probable and nearer the truth than the version put up by the prosecution. The revision petition is, therefore, dismissed being without merit. N.H.Q./F‑85/L Sentence reduced.