2006 PLP 994 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 31-10-2000, passed by the learned Additional Sessions Judge-I, Jhelum, whereby, after having tried the appellant, convicted him under section 302(b), P.P.C. and sentenced to death as Tazir with a fine of Rs.1,00,000 as required under section 544-A, Cr.P.C. out of which Rs.75,000, if recovered, was directed to be paid to the legal heirs of the deceased as compensation in default whereof to further undergo SI for six months. The appellant has assailed the above conviction and sentence through the titled appeal while the learned trial Court has sent the titled Murder Reference for confirmation of the sentence. Criminal Miscellaneous No.907-M of 2002 was also filed on behalf of the appellant regarding his tender age. All these matters are being disposed of through this singly judgment as they arise out of the same judgment.

2. Brief facts of the case, as given by the complainant Mehboob Alam in the F.I.R. are that on 24-2-2000 there was a Qur'an Khawani in the house, their family members gathered, at about 1-00 p.m. Bilal son of Mahfooz Alam aged 4-1/2 years went outside the house on hearing noise of beat of drum, did not come back till evening, on the next day they went out to search Bilal, when they reached near wheat crop of Master Inayat they found the dead body of the said Bilal lying in the drain whose throat was cut and case was registered against unknown assailants. During investigation, appellant was arrested, as interrogated and was found guilty of the offence.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced seventeen witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that the deceased and the appellants are real cousins; that appellant had no motive to kill the deceased; that all the three witnesses of the last seen, namely, Muhammad Bashir (P.W.9), Ahmad Raza (P.W.12) and Muhammad Sooban (P.W.14), who had seen the deceased minor in the company of the appellant, are distantly related to the deceased; that they did not tell the said factum to the complainant for a long period of about twelve days; that the place of dead body was a thoroughfare; that the deceased was not taken by the appellant; that the extra-judicial confession allegedly made before Allah Ditta (P.W.13) is a weak type of evidence; that the recovery of blood-stained Chhurri and the clothes of the appellant have no value; that it is an unseen occurrence; that the prosecution has failed to prove its case against the appellant; that the appellant is entitled to acquittal by this Court and that the appellant was minor at the time of occurrence which is subject-matter of Criminal Miscellaneous No.907-M of 2002 which is being heard along with this case.

5. On the other hand, the learned Assistant-Advocate General, Punjab, appearing on behalf of the State, submits that the deceased and the appellant are closely related, so, no question arises for false implication; that complainant (father of the appellant) was given up as won over; that Sooban (P. W,13) is an independent witness of the last seen to the effect that the deceased along with the appellant had purchased "Toffees" from his shop that there is an evidence of last seen, extra-judicial confession, recovery of blood stained "Chhurri" and blood-stained clothes of the appellant to connect him with the murder of minor Bilal deceased; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed and the Murder Reference may be answered in the affirmative.

6. We have heard learned counsel for the parties have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. In the instant case, complainant Mehboob Alam is the real father of the appellant while deceased is the first cousin of the appellant. There is an evidence of last seen furnished by Muhammad Bashir (P.W.9), Ahmad Raza (P.W.12) and Muhammad Sooban (P. W.14) who are though distantly related to the deceased yet they have no enmity with the appellant to falsely depose against him. Sooban (P. W .15) is the shopkeeper of the village who had stated that the deceased and the appellant had come to his shop, appellant bought "Toffees" and went away along with the deceased. After the arrest of the appellant, he got recovered blood-stained "Chhurri" and his blood-stained clothes. There is an evidence of extra-judicial confession which was furnished by Allah Ditta (P.W.13). All the details have been given in the extra-judicial-confession. Although there is no eye-witness in this case yet we are unable to understand the reason why the prosecution witnesses would falsely involve the appellant in the present case who are closely related to him, so, no question of substitution or false implication arises. They have no enmity with the appellant either. Appellant has filed Criminal Miscellaneous No.907-M of 2002 regarding tender age, which question, in our view, cannot be gone into at this stage because the said plea was not raised before the learned trial Court, so, this petition is dismissed. However, there is a question of mitigating circumstance because the prosecution has failed to state regarding the motive which is shrouded in mystery. So, while granting benefit of this aspect of the case to the appellant, maintaining his conviction under section 302(b), P.P.C. and while dismissing this appeal, we are inclined to convert the sentence of death to imprisonment for life and benefit of section 382-B, Cr.P.C. shall also be extended to him. We further note that instead of compensation, the learned trial Court has awarded fine, so, keeping in view the mandatory provision of section 544-A, Cr.P.C. the amount of fine of Rs.1,00,000 shall be treated as compensation to be paid to the legal heirs of the deceased in default whereof the appellant shall suffer SI for six months. Murder Reference is, answered in the Negative and death sentence awarded to the appellant is not confirmed. H.B.T./T- 114/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.