FAYYAZ alias FIAZI vs The STATE

MANZOOR AHMAD MALIK, J.---Appellant faced trial before the learned Sessions Judge Sialkot in case FIR No.27/1999 dated 20.02.1999 offence under section 302, P.P.C. registered at Police Station Head Marala, District Sialkot for the murder of Muhammad Asif (deceased) brother of the complainant. Vide judgment dated 23.07.2002, he was convicted and sentenced as under:- "...Resultantly, accused Fayyaz alias Fiazi is convicted under section 302(b), P.P.C. and punished with Death as "Tazir" having regard to the facts and circumstances of this case. He shall be hanged by neck till he is dead. He is directed to pay a sum of Rs.2,00,000/- (two lacs) as compensation to the legal heirs of the deceased as per provisions of section 544-A, Cr. P. C. The compensation shall be recoverable through Arrears of Land Revenue and in case of default in payment of compensation or non recovery of same through Arrears of Land Revenue the accused shall suffer six months' S.I.

2. Aggrieved of the judgment passed by the learned trial court, the appellant preferred Criminal Appeal No.295-J of 2002 which was heard along with Murder Reference No.668 of 2002 sent by the learned trial court and a learned Division Bench of Lahore High Court through the impugned judgment dismissed the appeal filed by the appellant and confirmed his sentence of death. Being still dissatisfied with the judgment of the learned appellate court, Fayyaz alias Fiazi convict preferred Criminal Petition No.416-L of 2008 wherein leave was granted vide order dated 27.09.2009 hence this appeal.

3. We have heard learned counsel for the appellant as well as learned Additional Prosecutor General for the State and have gone through the available record with their able assistance.

4. This is a case of single accused wherein the appellant has been nominated with the specific allegation of causing firearm injury in the left side of chest near armpit of Muhammad Asif (deceased). The occurrence took place in a grocery shop. Ocular account was furnished by Zafar Iqbal/complainant (PW.2) brother of the deceased and Muhammad Riaz (PW.3), owner of the shop.

The ocular account is fully A supported by the medical evidence furnished by Dr. Muhammad Aslam (PW.5), who conducted autopsy on the dead body of Muhammad Asif (deceased).

Therefore, we are of the view that the prosecution case stood proved against the appellant beyond any shadow of doubt and his conviction under section 302(b), P.P.C. recorded by the learned trial court and maintained by the learned Division Bench of Lahore High Court was fully justified.

However, we hold that it is not a case of capital punishment because only a single fire-shot was attributed to the appellant and there was no allegation of repetition of firing against him. Moreover, the learned High Court observed in the impugned judgment that 'the improved part of the motive cannot be relied upon'. Therefore, while maintaining conviction of the appellant under section 302(b), P.P.C., his sentence of death is altered to imprisonment for life. The amount of compensation i.e. Rs.2,00,000/- (two lakh only) payable to the legal heirs of Muhammad Asif (deceased) and the sentence of six months simple imprisonment in default as ordered by the learned trial court and maintained by the learned appellate court is upheld. Benefit of section 382- B, Code of Criminal Procedure is extended to the appellant. With this modification in the quantum of sentence of Fayyaz alias Fiazi (appellant), this appeal is partly allowed.