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Criminal Appeal ‑No. 83, decided on 15th February, 1983.

(In Criminal Petition No. 391; 78 against Judgment, dated 29‑8‑1978 passed by Lahore High Court, Lahore).

‑‑ Ss. 302 & 307 ‑Murder‑Sentence‑Parties reaching compro mised‑Sentence of death imposed on accused reduced to imprisonment for life‑Sentence of fine set aside in view of payment of compensation made to heirs of deceased as a result of compromise.

Muhammad Bashir v. The Star,: P L D 1982 S C 139 ref.

Raja Muhammad Anwar, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Appellants.

M. A. Bajwa, Advocate Supreme Court for the State.

Date of hearing : 21st December, 1982. .

This appeal by Javed and Muhammad Ayyaz arising out of Criminal Petition for Leave to Appeal No. 391/78 is directed against the judgment of the Lahore High Court, dated 29‑8‑1978, dismissing their appeal and confirming the death sentence of laved.

2. The facts leading to the appeal, briefly, are that there was a dispute between the parties over the occupation of agricultural land. The accused party wanted to evict Abdul Majid (P. W. 9) from the said land. On the morning of 28th June, 1977, Abdul Majid and his nephew Dilnawaz (deceased) went to the land in question together with Zafar Iqbal (P. W. 12) for sowing Maize crop. Zafar Iqbal P. W, was ploughing the land while the other two were sitting on the boundary of the field. At about 6‑30 a. m., the two appellants, who were armed with '12 bore guns came there. Muhammad AYYAZ, appellant, fired at Abdul Majid (P. W. 9) and one of the pellets hit the latter's lip. Javed appellant fired an ineffective shot. Dilnawaz (deceased) tried to snatch the gun from Javed appellant, when the latter suddenly whipped out a revolver from the dub of his shalwar and fired at him in the chest resulting in his death. In the meanwhile Abdul Rashid (P. W. 10) and Poala (P. W. 11) also reached there and deprived the appellants of their weapons, where after the complainant beat them up causing 13 blunt weapon injuries to Javed and four blunt weapon injuries to Muhammad Ayyaz appellant all of which were simple in nature.

Report was lodged about the incident by Abdul Majid (P. W. 9) at Police Station Wah Cantt: which was recorded by Tajjamal Hussain Shah, S. I. (P. W. 15). The gun and the revolver snatched from the accused by the P. Ws. were handed over to the S. I. The appellants were sent up for trial before the Sessions Judge, Rawalpindi, who relying on the testimony of the eye‑witnesses, the aforementioned recoveries and the medical evidence, convicted them under section 302/307/447/34, P. P. C. and sentenced Javid to death with a fine of Rs. 4,000. Muhammad Ayyaz appellant was sentenced to imprisonment for life and a fine of Rs. 1,000 or in default to further undergo R. I. for one year. Under section 307, P. P. C. each of them was sentenced to 3 years' R. I. In addition to the above sentence Muhammad Ayyaz appellant was ordered to pay a fine of Rs. 1,000 or six months' R. I. in default. Under section 447, P. P. C. each of them was sentenced to 2 months' R. I. They filed a joint appeal challenging their conviction and sentences before the High Court, which was dismissed, and the death sentence of Javed appellant was confirmed.

Feeling aggrieved the appellants filed a Petition (No. 391 /78) for Leave to Appeal before this Court. The complainant party was also represented before us through a counsel who stated that the parties had reached a compromise and sought time to give effect to the same, in writing. We, therefore, adjourned the case and also issued notice to the State to the next date of hearing, it came up for hearing on 21‑12‑1982.

3. It was urged on behalf of the appellants that it was only Javed appellant who suddenly and unexpectedly took out a revolver from the dub of his shalwar and fired the fatal shot of the deceased in self‑defence. Muhammad Ayyaz appellant did not fire at the deceased at all, but fired a short only at Abdul Maid (P. W: 9), causing a minor lip injury. It is, therefore, contend ed that even according to the prosecution version only Javed appellant was guilty of an offence under section 302, P. P. C. it was also pleaded in defence that in fact the appellants had gone to their own land to ask Abdul Majid P. W. to vacate it. But on having been beaten up by the complainant Javed appellant had fired at the deceased only in self‑defence.

On going through the evidence on the record with help of the learned counsel we are inclined to agree with his submission, that only Javed appellant was guilty of offence under section 302, P. P. C. and that Muhammad Ayyaz appellant is merely guilty of offence under section 307, P. P.‑C. for an attack on Abdul Majid P. W. The land in question admittedly belonged to the appellants party. As such their conviction under section 447, P. P. C. is set aside. The conviction of Muhammad Ayyaz under section 302, P. P. C. is converted into 307, P. P. C. He has already undergone 12 years imprison ment, which is sufficient to meet the ends of justice, in view of the lesser role played by him. As for. Javed appellant, it was stated by the counsel for both sides that the parties had reached a compromise. As such in view of this Court"s judgment in Muhammad Bashir v. The State (P L D 1982 S C 139) his senesce is reduced from death to imprisonment for life. He shall also be given the benefit of section 382‑B, Cr. P. C. while computing the sentence he has still to undergo. The sentence of fine is set aside in view of the compensation already paid to the heirs of the deceased as a result of the compromise.

4. Before parting with this case it may be mentioned that the case was fixed for rehearing because it was felt that the sufficient consideration had not been given to the defence version put forward by the appellants, but after hearing their learned counsel on the question of plea of self‑defence raised on behalf of Javed appellant, we are not impressed by it and as such have not altered the view taken by us at the earlier hearing.

With the above observation and modifications the appeal stands disposed of. Muhammad Ayyaz appellant, shall be released forthwith if not required in any other case.

Order accordingly.

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