2006 PLP 1375 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment shall dispose of Murder Reference No.506 of 2001 and Criminal Appeal No.496 of 2002 (Muhammad Siddique v. The State) as they arise out of the same judgment dated 9-6-2001 passed by the learned Additional Sessions Judge, Kot Addu (Camp at Muzaffargarh), appellant was convicted under section 302(b), P.P.C. and sentenced to death as Qisas with a compensation of Rs.50,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. in default whereof to further undergo six months' S.I. For the injuries caused to Jalil injured P.W., which were directed to run concurrently, the appellant was further convicted under section 324, P.P.C. and sentenced to R.I. for ten years with a fine of Rs.25,000 in default whereof to further undergo S.I. for two years, under sections 337-B, 337-C and 337-D to R.I. for 10 years and Arsh of one third of Diyat to be paid to the said injured.

2. Brief facts of the case as disclosed by the complainant Ghulam Abbas (P.W.7) are that the complainant along with the eye-witnesses were present in their cotton crop while deceased Sajid Hussain and injured Jalil reached there and the appellant, who was armed with a knife, was chasing them -and was raising Lalkaras that he would teach a lesson to both of them for the insult; that the appellant gave a knife blow which landed on the right "Daula" of Sajid who fell down followed by another knife blow on the back of his shoulder; that thereafter the appellant gave a knife blow on Jalil on his back who fell down followed by another blow on the right side of his back; that the eye-witnesses tried to catch the appellant but due to threat of the appellant and fear they did not go near and that the appellant decamped from the spot along with the weapon of offence. Sajid died at the gate of the hospital while Jalil was admitted in the hospital for treatment. The motive stated to be an exchanged of hot words between appellant and deceased and the injured over "Wara Bandi" of water.

3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were set up for trial before the learned trial Court where the prosecution, in order to prove its case produced ten prosecution witnesses whereas the accused in their statements recorded under section 342, Cr.P.C. pleaded not guilty and claimed trial.

4. Learned counsel for the appellant in support of this appeal contended that it is a dark time occurrence which was not witnessed by any body; that the injuries of Jalil injured are self-suffered; that the F.I.R. was recorded after due deliberations and consultations and that if this Court is not convinced with the above arguments then it is a case of mitigation on account of minority of the appellant at the time of occurrence because his age was given 17/18 years at the time of his certificate of "Shanakhat Mulzim" by the Investigating Officer; that in appellant's statement under section 342, Cr.P.C. recorded in 2001 his age was given as 22 years while the occurrence had taken place in 1997 meaning thereby that he was less than 18 years at the time of occurrence.

5. On the other hand, learned counsel for the State assisted by complainant's learned counsel submits that the ocular account in this case corroborated by the medical evidence; that the appellant was major at the time of occurrence and has rightly been convicted as such; that even appellant himself has given his age as 22 years in his statement under section 342, Cr.P.C.; that the prosecution has proved its case against the appellants to the hilt and that the appeal filed by the appellant against the captioned conviction and sentences is liable to be dismissed by this Court.

6. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.

7. The occurrence in this case had taken place on 6-8-1997 at Maghrabwela and the matter was reported to the police whereafter formal F.I.R. was recorded at the Police Station at 9-30 p.m. and distance from the place of occurrence and the Police Station is 12 miles meaning thereby that it is a case of promptly lodged F.I.R. because such a short delay can happen due to shifting of the injured and the deceased to the hospital and to cover the distance of twelve miles coupled with the fact that at the "Maghrabwela" one can easily recognize the confronted person.

8. Appellant is the only accused in this case who caused death of deceased Sajid and caused injuries to Jalil injured P.W. The prosecution in order to prove its case produced three eye-witnesses, namely, Muhammad Jalil as P.W./5. Being injured of this case at the hands of the appellant he is a star witness of this case. Apart from him, Ghulam Abbas . complainant also appeared before the learned trial Court as P.W.6 and another eye-witness Saeed Ahmad as P.W.S. Their statements are corroborative to each other and nothing could be shaken from them despite lengthy cross-examination to which they were subjected during the trial. There was nothing on the record that either they had any strong motive or reason to falsely involve the appellant and no question of substitution or false implication arises in the peculiar facts and circumstances of this case.

9. Apart from above the ocular account in this case is fully corroborated by the medical evidence and the evidence of recovery of blood-stained knife at the pointation of the appellant coupled with the positive reports of the Chemical Examiner and the Serologist. So, the commission of the offence at the hands of the appellant cannot be doubted and we hold so.

10. Now we would like to discuss the defence version taken by the appellant regarding his minor age. In support of his above plea of tender age, firstly, in his statement recorded under section 342, Cr.P.C. recorded on 13-2-2001 he has given his age as 22 years while the occurrence had taken place in August, 1997 meaning thereby that he was about 18 years at the said time, secondly, according to School Leaving. Certificate (Exh.D.1) his date of birth has been given as 30-6-1981 according to which he was less than seventeen years of age at the time of the occurrence and, thirdly, in the certificate of "Shanakhat Mulzim" his age was mentioned by the Investigating Officer as 17/18 years.

11. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties and application of independent judicial mind would lead us to an irresistible conclusion that the prosecution has proved its case against the appellant beyond any shadow of doubt and we have no doubt in mind regarding commission of the offence by the appellant but at the same time, in our affirmed view, it is not a case of capital punishment because it has come on record that he was less than eighteen years of age at the time of occurrence and we are in agreement with the contention of the learned counsel for the appellant qua his tender age. Resultantly, while considering the said factor as a mitigating circumstances and while maintaining the conviction and sentence of the appellant under section 302(b), P.P.C. we convert his sentence of death into imprisonment for life with benefit of section 382-B, Cr.P.C. With a further direction that the amount of compensation and imprisonment in default whereof shall remain the same while the remaining convictions and sentenced awarded to him for the injuries caused to injured Jalil are hereby maintained in toto with a direction that both the convictions and sentences shall run concurrently.

12. For afore-referred reasons Murder Reference is answered in the negative, Criminal Appeal No.496 of 2002 filed by the appellant is dismissed and the sentence of death awarded to appellant Muhammad Siddique is not confirmed. H.B.T. /M-146/L Order accordingly.