1984 P Cr (PLP)

SARDAR MUHAMMAD, J.-The appellant Muhammad Iqbal (20 years) son of Abdul Hakim was tried by Ch. Taj Muhammad, Additional Sessions Judge, Multan vide orders dated 14th January, 1978. He was convicted under section 302, 34, P. P. C. for the murder of Muhammad Idrees (deceased) and sentenced to death and a fine of Rs. 3,000 in default whereof he was ordered to undergo 2 years' R.

1. He was further Convicted under section 302, 34, P. P. C. for the murder of Yamin (deceased) and sentenced to life imprisonment and a fine of Rs. 1,500 in default where of to undergo further R. I. for one year. The fine, if realised was ordered to be paid to the legal heirs of both the deceased persons, as compen sation.

2. The learned Additional Sessions Judge has made Murder Reference No. 43 of 1978 for confirmation of death sentence. The appellant has filed Criminal Appeal No. 99 of 1978 against his convictions and sentences. Both the matters are disposed of by the same judgment.

3. The occurrence took place at 5-15 p. m. on the 8th August, 1971 in the fields within the area of village Balawalpur at a distance of 5 miles from Police Station, Kabirwala. The F. I. R. Exh. P. K. was lodged by Muhammad Sadiq P. W. 13 at 7.00 p. m. on the same day at Police Station Kabirwala, District Multan which was recorded by P. W. 17 Dur Muhammad A. S. I. According to the first information report the prosecution case, briefly is that on the 8th of August, 1971 at about 5.00 p. m. Muhammad Idrees deceased took the turn of water from Muhammad Sadiq P. W. 13 at the end of his turn and started watering` his land at Chah Kharranwala. His brother Yamin deceased was also with him. In the meantime one Farid son of Rajab, a tenant of Bashir alias Leela (co-accused) came there and told Muhammad Idrees deceased that Bashir alias Leela had given him a message that 'you should not cut the water and that he is coming'. In the meantime, Bashir alias Leela and the appellant came on the spot armed with guns. Sattar son of Abdul Ghani (acquitted co-accused) armed with a danda was also with them. All the three started diverting the water. When Muhammad Idrees (deceased) stopped them, the appellant Muhammad Iqbal fired his gun, which hit Muhammad Idrees on his chest. He fell down. When Muhammad Yamin deceased came near Idrees deceased, Bashir alias Leela co-accused fired at him which struck him on his shoulder. Bashir's second fire hit Yamin deceased on his chest. On the noise raised, Muhammad Azam P. W. 14 and Fajar Ali P. W. 16 came there and saw the occurrence. While Azam P. W. 14 was making noise, Sattar co-accused gave a soti blow op his shoulder in order to stop him from making noise. Muhammad Idrees and Yamin died on the spot. All the three accused ran away.

4. The motive for occurrence as stated is that co-accused Bashir alias Leela wanted to purchase the land of Raft at Chah Kharranwala, which was contiguous to his land but Muhammad Idrees and Yamin (deceased) got their land exchanged with that land in village Mubarakpur, which annoyed Bashir alias Leela co-accused. He wanted to have this land at any cost. He started creating hindrances in the irrigation of this land by the deceased but they got the pacca warabandi sanctioned from the Autho rities against the wish and efforts of Bashir alias Leela co-accused. Thus, he harboured a grudge against the deceased, as a result of which the present occurrence is stated to have taken place.

5. The appellant absconded: His co-accused Bashir Ahmad alias Leela and Abdul Sattar were arrested. The appellant was declared as an absconder. The challan was put in Court against his co-accused Bashir alias Leela and Abdul Sattar. They were convicted by the learned Additio nal Sessions Judge, Multan under section 302/34, P. P. C. and sentenced to death and imprisonment for life respectively. Both of them filed appeals in the High Court. The complainant also filed a revision petition for enhancement of the sentence of Abdul Sattar. A reference for confirmation of death sentence was also made by the trial Court. The appeal of Abdul Sattar co-accused was accepted, and the revision petition of the complain ant was rejected, and he was acquitted. The, appeal of Bashir alias Leela co-accused was rejected. The reference was accepted, and his sentence of death was confirmed. (According to the statement. of the learned counsel for the. appellant the appeal of the co-accused Bashir alias Leela is .now pending in the Supreme Court).

6. The appellant Muhammad Iqbal was arrested by Muhammad Afzal, S. I. P. W. 3 on 19th July, 1973. After necessary investigation the challan was put in Court. After the trial he was convicted and sentenced as aforesaid. At the time of arrest a gun was recovered from the appellant. It was a licensed gun of someone else. A case under section 411, P. P. C., and a case under section 13, 20, 65 of the Arms Act were registered against him.

7. The prosecution examined eighteen P. Ws. On the 9th August, 1971 at 7 a. m. Dr. Muhammad Afzal Mian (P. W. 2) conducted the post- mortem examination on the dead body of Yamin (40-45 years) and found five injuries on his person. Injuries Nos. 1-3 were gunshot wounds, were grievous and fatal. Injuries Nos. 4 & 5 were found to be the result of some blunt object and were declared simple. The death was opined to be instantaneous due to shock, profuse bleeding due to injuries Nos. 1-3, which individually as well as collectively were sufficient to cause death in the ordinary course of nature. Exh. P. D. is the correct carbon copy of the post-mortem report and Exh. P. D./1 is the diagram showing location of injuries. The same day, Dr. Muhammad Afzal Mian P. W. 2 conducted the post-mortem examination on the dead body of Muhammad Idrees deceased (aged 27-28 years). He observed two injuries on the dead body (one was a wound of entrance while the other was exit wound) both were grievous and fatal. The death was opined to be immediate, due to shock and profuse haemorrhage caused by these injuries. The injuries were individually as well as collectively sufficient to cause death in the ordinary course of nature. Exh. P. E. is the correct carbon copy of the post-mortem report and Exh. P: E./1 is the diagram, showing the location of injuries. Dr. M. A. Rauf Bhatti (P. W. 1) had examined Muhammad Azam P. W. 14 and found one contusion mark 2 " x " on the outer and upper part of the left arm, bluish red in colour. The injury was found to be simple and to have been caused by a blunt weapon.

8. The complainant Muhammad Sadiq was examined as P. W. 13 on the 3rd January, 1978. He corroborated the first information report Exh. P. K. He has stated that about 6 years and 5 months ago he was irriga ting his land. His turn of water was to end at 5.00 p. m. Muhammad Idrees and Yamin (both deceased) had to take the turn of water from him at 5-00 p. m. He has stated that both the deceased arrived there and after taking over the turn of water from him started irrigating their land. In the meantime, Farid, a tenant of Bashir alias Leela co-accused came there with a message of Bashir co-accused for Yamin and. Muhammad Yasin that they should not take the turn of water as he was coming there. There after, the appellant, Bashir alias Leela and Abdul Sattar co-accused came on the spot. At that time the appellant Muhammad Iqbal and Bashir co-accused were armed with guns while Sattar co-accused was armed with a danda. ;They diverted the water to the fields of Bashir alias Leela. When Idrees deceased tried to stop them, Muhammad Iqbal appellant fired at him with his gun, which hit him on the chest. When Yamin deceased went forward to help Muhammad Idrees deceased, Bashir alias Leela co-accused fired at him which hit him on his upper part of the arm. Bashir alias Leela co-accused fired the second shot which hit him on the chest. In the meantime, Muhammad Azam P. W. 14 and Fajar Ali P. W. 16 arrived there. Muhammad Azam P. W. 14 started raising alarm, Sattar co-accused gave a soti blow on his shoulder. Muhammad Idrees and Yamin both had fallen down. The appellant and his co-accused ran away while Muhammad Idrees and Yamin died on the spot. He has also made statement about the motive. According to him Muhammad Idrees and Yamin deceased had exchanged their land situated in village Mubarakpur with one Rafi who had land in village Balawalpur. Bashir alias Leela co-accused was annoyed with the deceased Muhammad Idrees and Yamin for having obtained the land which he wanted to pur chase. He became inimical and started creating hindrances in the irriga tion of land by the deceased Muhammad Idrees and Yamin. P. W. 13 Muhammad Sadiq has also stated that Muhammad Iqbal appellant is a cousin of Bashir alias Leela co-accused. P. W. 14 Muhammad Azam and P. W. 16 Fajar Ali have been examined as eye witnesses. They have corroborated the statement of P. W. 13 Muhammad Sadiq. Sohrab Khan, A. S.-I. (P. W. 7) has stated that Muhammad Iqbal appellant had absconded after the occurrence, and he was handed over 3 copies of the proclamation for service on Muhammad Iqbal appellant. He pasted one copy of the proclamation on the door of residential house of Muhammad Iqbal appellant, one in the chowk of the village and the 3rd on the door of the Court room of the Assistant Com missioner, Kabirwala. He has further stated that in spite of search, he failed to arrest Muhammad lqbal appellant. Shah Alam, S. I. P. W. 15 has stated that he was posted as Station House Officer. P. S. Kabirwala on 20th July, 1973. Muhammad Iqbal appellant was declared a proclaimed offender. Muhammad Afzal S: I. P. W. 3, Incharge of Police Post Abdul Hakim arrested the appellant in some other case on 19th July, 1973 and he formally arrested the appellant in this case on 20th July, 1973. P. W. 8 Muhammad Adil has stated that he remained posted as Patwari Halqa Masatpur and Mauza Balawalpur from 1968-71. The deceased Muhammad Idrees had submitted application Exh. PJ/1, that some big. persons are not allowing him to take his full turn of water. The application Exh. PJ/1 was under section 68 of the Canal Act for pacca warabandi. The application was granted and the Canal Authorities sanctioned the warabandi (Exh. PJ/3). Bashir alias Leela co-accused submitted an application Exh. PJ/4 in this regard to the Canal Authorities, which was rejected. He has also stated that the turn of water of Karam P. W. 10 came after the turn of water of Muhammad Idrees deceased. P. W. 9 Ali Muhammad Reclamation Patwari has stated that there was a sanctioned warabandi regarding land at Chah Kharranwala. P. W. 12 Khushi Muhammad has stated that in his presence blood stained earth was taken from the place of occurrence from two places, vide memos. Exh. P. A. and P. B. The other attesting witness to the memos. Aish Muhammad was not produced. The case was investigated by Dur Muhammad, S. I. P. W. 17 and Fazal Hussain Shah, S. I. P. W.

18. Shah Alam S. I. P. W. 15 partly investigated the case and after arresting the appellant he had submitted the challan against him. The other witnesses are, more or less, of formal nature.

9. The case of the appellant is of bare denial. In his statement under section 342 of the Code of Criminal Procedure he has stated that he was not present at the spot and has been falsely implicated because of enmity with one Farzand Ali. ex-M. P. A. and Aish Muhammad P. W. (not produced). He has further stated that prior to this occurrence Inamul Haq, a relation of Farzand Ali, ex-M. P. A. was murdered. Farzand Ali had also received injuries in that occurrence, and that his father, his uncle and his cousin were challaned in that case but were acquitted. He has stated that Aish Muhammad and Farzand Ali, ex-M. P. A. have got him involved in this case. He has also produced some documents to prove his enmity with Farzand Ali and his family. 10, The case of the prosecution mainly rests on the ocular evidence. We have considered the argument of the learned counsel for the appellant that the appellant has been involved in this case because of the enmity of his family with Farzand Ali, ex-M, p. A. We do not find anything on the record which would show that Farzand Ali was in any way connected or related either to the deceased or the prosecution witnesses, The P. Ws, In this ease are not related to the deceased. The mere fact of their having migrated from the same village in India, is no ground to disbelieve them Their relations with the appellant or his family were never strained. There is not even a suggestion to that effect. The presence of Muhammad, Sadiq P, W, 13 on the spot is quite natural. The deceased had to take the turn of water from him. The occurrence has taken place near the water course wherefrom the deceased had taken the turn of water from the complainant, therefore P. W: 13 Muhammad Sadiq complainant would be h more natural witness. He has no relationship with the deceased, no enmity with the appellant, or his co-accused. The presence of other two witnesses may not look to be so natural but considered in the light of the fact that both of them did not have their land near about, the possibility of one of them for grazing goats or for cutting the grass from near their place: of residences would not be unnatural. A person who is only to cut the grass and whose land is away from his house would normally try to cut the grass from the nearby fields or the khaals. So far as the question of grazing of goats is concerned, it is common knowledge that normally the goats are not grazed in only one's own fields unless there is a regular farm. In view of the fact that no enmity of the appellant has been suggested to the P. Ws. nor are they in any way related to the deceased, we feel that there is no ostensible reason to rule out their evidence.

11. Learned counsel for the appellant has vehemently argued that Muhammad Sadiq P. W. 13 could not have identified Muhammad lqbal appellant-. According to him he did not know him. He has referred to the cross-examination of this witness wherein it is recorded, -I do not remember whether I stated in my previous statement that I had not seen Muhammad lqbal accused prior to the occurrence (confronted with statement dated 17th May, 1973 before the Addl. Sessions Judge, wherein it is so recorded)." Learned counsel for the appellant has failed to take into account the first sentence preceding this sentence where the witness had stated that, `I had already seen Iqbal accused'. In the first information report also this witness had claimed to have seen Muhammad Iqbal appellant and he had named him. As already mentioned above, this witness is neither inimical to the appellant nor related to the deceased, there is no reason for him to have made a false statement against the appellant. The possibility of the appellant being not know to P. W. 13 Muhammad Sadiq complainant is non-existent. We do not know in what context the question was asked to the witness during the previous trial and what explanations he gave about the sentence so recorded. As such we do not find any force in this argument of the learned counsel for the appellant. The plea of the appellant that Aish Muhammad P. W. (not produced) and Farzand Ali, ex- M. P. A. got him named in the first information report, is also contradicted by the fact that while giving the address of Muhammad Iqbal appellant in the F. I. R. it was stated that he resides in Chak No. 12 though in fact he was a resident of Chak No.

11. Had the F. I. R. been lodged after consultations with Farzand Ali or Aish Muhammad and at their instance, this mistake would not have occurred because Farzand Ali would be knowing fully well the address of Muhammad Iqbal appellant. Aish Muhammad P. W. has not been produced. No relationship between Farzand Ali and Aish Muhammad has been proved. The complainant has denied the suggestion that the first information report was lodged in consultation with Farzand Ali, ex-M. P. A. The presence of Aish Muhammad being Lambardar,, alongwith the complainant in the Police Station is natural in the circumstances of this case. The complainant was trot related to both the deceased. Their father was an incapacitated person who could not go to the Police Station, as such it was the natural conduct of the complainant to have informed Aish Muhammad who was' a Lambardar, and taken him to the Police Station, therefore, the there presence of Aish Muhammad P. W. (not produced) in such circumstances cannot cast any doubt that he had gone there to involve any of his enemies.

12. The appellant after the occurrence had absconded. He was arrested on the 19th May, 1973 about two years after the occurrence. No doubt his absconsion has not been proved by producing the warrants and the proclamations issued under section 87/88 of the Code of Criminal Procedure but the fact Cannot be lost sight of that he was a resident of a nearby village, he was named in the first information report and was not available to the Police for 2 years. Independently this abscon sion may not have much value but his this conduct does lend support to the evidence against him, even though the case against -the appellant is established on ocular account alone also.

13. Lastly, learned counsel for the appellant has taken up the plea that the appellant was a minor at the time of alleged occurrence, According to him, his age recorded at the time of the trial is 20 years. The trial was held in January, 1978. The occurrence had taken place in August, 1971, calculating therefrom the appellant would be about 13-14 years. He contended that in view of his tender age at the time of commission of the alleged offence, extreme penalty of death awarded to him is excessive and not called for.

14. Learned counsel appearing on behalf of the State, however, controverted this and stated that the age recorded during the trial was the one given by the appellant and that in fact he was much more than that and was more than 18 years of age at the time of commission of offence.

15. In the light of the contentions raised with regard to 'age by the learned counsel, we thought, it proper that the appellant be got examined through a Board with regard to his age. We, therefore, directed that he be got examined through a Board of Directors to be constituted by the Medical Superintendent, Nishtar Hospital, Multan, and the case was adjourned. A report from the Board of Directors has been received. According to the opinion of the Board, `the age of Muhammad Iqbal son of Abdul Hakeem, after physical verification and X-Ray Examination is not less than twenty-two years and varies between twenty-two to twenty-five years'. More than ten years have passed since this occurrence took place. In view of the Expert opinion of the Medical Board, the appellant would be 12/15 years at the time of occurrence. This lends support to the contention of the learned counsel for the appellant that the appellant was of a tender age.

16. Summing up, we are of the view that the prosecution has prove its case against the appellant beyond reasonable doubt. We uphold the conviction of the appellant on both the counts and the sentence in the case of murder of Yamin deceased. With regard to the sentence of death on the other count vis-a-vis the murder of Muhammad Idrees deceased, we feel that the extreme penalty of death awarded' to the appellant in view of the fact that he was of a tender age at the time of occurrence is excessive, may be he was led away under the influence of his co-accused or may have just acted in chivalry. The normal sentence in murder cases is death but lesser sentence, i.e. imprisonment for life can be imposed if there are some mitigating circumstances. The fact of the petitioner's minority is an extenuating circumstance. We, therefore, reduce his sentence from death to life imprisonment. As a result, the sentence of death is not confirmed, and the appeal accepted to that extent only. The sentences on both the counts shall run concurrently. The appellant shall, however, be given the benefit of the provisions of section 382-B of the Code of Criminal Procedure. His period of detention during the trial shall be counted towards the sentence already undergone. M. Y. H. Death sentence not confirmed.