NISAR AHMED Versus State

ORDER

KHALIL-UR-REHMAN RAMDAY, J .---The claim of the prosecution that it was Nisar appellant who had done Fazil deceased to death had not been denied by the defence. The claim of the said appellant, however, was that it was the said deceased who had tress-passed into his house and had designs on him whereupon he acted in his defence and killed the deceased.

2. We have gone through the record in the light of the submissions made before us. We also juxta posed the two versions but could not find anything on record, besides a mere assertion of Nisar appellant, about the alleged tresspass by Fazil deceased into the house of the appellant or any attempt on the part of the deceased to kill the appellant which could have justified the death of the deceased at the hands of Nisar convict. The defence plea had thus been rightly rejected by the two learned Courts.

3. What is, however, conspicuous on record is that it was a brother of Fazil deceased, namely, Zahid who had caused fire-arm injuries on the person of the father of Nisar appellant. It was also admitted, inter alia, by Javed P.W. that after the said incident, the parties had reached a compromise as a result whereof the said Zahid had been allowed pre-arrest bail with the consent of the appellant-party whereafter the deceased-party had even handed over possession of some land to the father of the appellant. Despite such a compromise followed by some substantial steps by the complainant-party in the form of giving away land to the appellant- party, the allegation that Nisar appellant wanted to avenge the injuries caused to his father does not appeal to reason. What also sounds strange is that it was a brother of Fazil deceased, namely, Zahid who had caused injuries to the father of the appellant which Zahid was always available to Nisar appellant but he was not the one who was targetted by the convict and it was Fazil deceased who had been done to death. Since the circumstances which had led to the killing of Fazil deceased are not discernible and since the prosecution appears to be not willing to take the Court into confidence about the same, therefore, we find it unsafe to allow Nisar to be hanged to death. Consequently, while maintaining his conviction under section 302(b), P.P.C., we set aside the punishment of death awarded to him and instead direct him to suffer a sentence of imprisonment for life on the said charge. The benefit of the provisions of section 382-B, Cr.P.C. shall be allowed to him.

4. This appeal is disposed of in the above terms.

N.H.Q./N-24/SC Sentence reduced.