2006 PLP 150 (MLD)

ALI NAWAZ CHOWHAN, J.

Muhammad Javed appellant was convicted under section 302(b), P.P.C. by the learned Additional Sessions Judge, Kasur vide judgment dated 19-4-2000 in case F.I.R. No.477 of 1997 registered at Police Station Saddar Kasur and sentenced to death with direction to Pay Rs.1,00,000 to the legal heirs of the deceased Babar Ali as compensation or in lieu thereof to undergo one year S.-I. The learned trial Court has also sent Murder Reference No.309 of 2000 for confirmation of death sentence. Both these matters are being disposed of through this single judgment.

2. Suba complainant while appearing as P.W.1 narrated the prosecution story as under:-- "About two years before, I along with Allah Ditta, Nukar Hussain and Babar Ali were present on the roof of the house. At about 5-00 a.m. at Fajar Wela we woke up for the prayer. Javaid accused present in the Court came from the stairs and he was armed with a pistol. He shot fired upon Babar Ali which hit on his chest. As of result, he was injured and accused fled away from the spot." The motive part of the story was narrated by him as under:-- "The motive behind the occurrence was that the accused had to give Rs.200 to the deceased. Two days prior to the occurrence, a quarrel took place between Babar Ali deceased and the accused Javaid." Nukar Hussain P.W.2 supported the complainant.

3. Dr. Saleem-ur-Rehman P.W.10 medically examined Babar Ali and found the following injuries on his person:-- "(1) A circular wound of entrance of fire-arm on the lateral surface of lower part of left chest. The margins were inverted. (2) A circular wound of exit of fire-arm on the middle of lateral surface of right chest. The injuries were kept under observations for X-Ray and due to the precarious condition he was referred to Lahore General Hospital. Exh.P.Q. is the Medico-legal certificate. On the same day the same doctor after the expiry of Babar Ali conducted post-mortem examination and observed the following injuries on his person:-- "(1) A circular wound of entrance of fire-arm. Edges inverted on the lower part of lateral surface of left chest. (2) A circular wound of exit of fire-arm on the middle of lateral surface of right chest. (3)Stitches wound 3.1/2 c.m. on the medial surface of the lower part of left leg, seems to be for vini puncture. According to the doctor death in this case occurred due to shock and hemorrhage which was caused by fire-arm and the injury was sufficient to cause death in the ordinary course of nature. The time between injuries and death was 3 to 4 hours and between death and post-mortem examination was about 6 to 8 hours. Exh.P.R. is the post-mortem report.

4. Nasrullah Draftsman P.W.3 prepared site-plan Exh.P.C. of the place of occurrence. Muhammad Amin H.C. P.W.4 recorded formal F.I.R. Exh.P.D. on the basis of complaint Exh.P.A. He also deposed about the safe custody of sealed parcels containing blood-stained earth and empties in the Malkhana of the police station. Shah Muhammad Iqbal P.W.S transmitted the sealed parcels said to contain blood-stained earth and empty to the office of Chemical Examiner and Forensic Science Laboratory. Abdul Khalid H.C. P.W.6 escorted the dead body of the deceased to the mortuary for autopsy. He produced before the Investigating Officer last-worn clothes of the deceased which he took into his possession vide memo. Exh.P.F. Amanat Ali P.W.7 is the witness of recovery of blood-stained earth from the place of occurrence vide Exh.P.G. and empty Exh.P.H. Muhammad Aslam P.W.8 is the witness of recovery of pistol along with five live bullets from Muhammad Javaid which were taken into possession by the Investigating Officer vide memo. Exh.PJ.

5. Bashir Ahmed Inspector P.W.9 recorded statement Exh.P.A. of Muhammad Suba complainant, prepared inquest report Exh.P.K. and injury statement Exh.P.L. Then he visited the place of occurrence, prepared rough site-plan Exh.P.O., took into possession blood-stained earth vide memo. Exh.P.G. He also took into his possession empty of 30 bore vide memo. Exh.P.H., arrested the accused and after formal investigation submitted the challan. Muhammad Zafar P.W.II identified the dead body of the deceased at the time of post-mortem examination.

6. The accused was examined under section 342, Cr.P.C. and he took the plea that the P.Ws. are inter-related and they have old enmity with his parents and due to this reason they got registered this false case against him. He neither opted to appeal as his own witness under section 340(2), Cr.P.C. nor produced any defence evidence.

7. The learned counsel for the appellant side focused mainly on his plea for mitigation. Some of the grounds which he took while arguing his case against this plea were:-- (a) That the appellant was in his early youth at the time of commission of the offence and, therefore, was impulsive; (b) That the motive set up was not cogent; (c) That a single fire was shot; and (d) Lastly that before the alleged motive the parties were living happily together without any previous prolonged enmity but for this episode;

8. That as to why later this incident took place? That the answer to this is that there was some provocation and something else must have happened which led to the occurrence and for which the motive was fabricated. The reference by him in this connection is made to the following case-law:--

1. Muhammad Sharif and 3 others v. The State (2004 PCr.LJ 1547). 8A. In paragraph 17 of the judgment the learned trial Court has discussed the issue of age. In fact this issue was raised before the learned trial Court and two certificates were also produced there but these were not accepted for various reasons given by the learned trial Court. However, the learned trial Court did not give us a clue about his age in arithmetical terms rather gave a vague statement that he was a young man while also stating that the police recorded his age at 21/22 years. It may be commented that the learned trial Court should not have mechanically accepted the age given by the police in the punishment slip rather, and when the appellant was asking for the determination of this fact and the Court was rejecting the certificates produced in this connection to have given its' own observation about the age as the accused was seen by the Court. The judgment impugned is destitute of any such independent observation.

9. Any way even if he was 21 years of age he was still in his early youth and because of lack of proper educational facilities and grooming people even at such an age do not always attain the required maturity and sense and, this factor under proper circumstances may be taken into consideration while determining the quantum of sentence.

10. This was a case of a single fire shot although the shot was devastating as its locale was the chest. Whether, he just took the gun and fired aimlessly which hit the deceased at his chest or he was like an aims-man targeting his chest is also a thing which is not cogently self evident. But surely he did not repeat the fire.

11. We have gone through the record and having heard both sides we are of the view that the prosecution in this case has fully established its case against the appellant and, therefore, we uphold the order of conviction. But what the learned counsel for the appellant was stating for mitigation has some weight. The possibility that the occurrence took place more for reason of human frailty rather than any wickedness is also there. These factors persuade us to accept the plea for a lesser sentence and we reduce the sentence to life imprisonment. The sentence of fine and in lieu thereof the sentence is however, maintained. The appeal is disposed of accordingly and murder reference is answered in the negative. N.H.Q./M-1 196/L????????????????????????????????????????????????????? Sentence reduced.