1992 P Cr (PLP)

4. To prove its case, the prosecution produced eight witnesses in all. The ocular evidence is provided by three witnesses i.e. Muhammad Amir' P.W 5 Muhammad Din P.W.6 and Mst. Fateh Bibi P.W.7. Ghulam Muhammad P.W.1 prepared the site plan and its duplicate in a scale of 10 feet to an inch. . Ghulam Hussain F.C. No. 117 appeared as P. W.2 and deposed that he escorted the dead body of Karam Ding deceased, from the spot to the mortuary at Bhalwal for the post‑mortem examination. The doctor handed over to him the last worn clothes of the deceased and then he handed over the same to the Investigating Officer who took the same into possession vide memo. Exh.P.B. Muhammad Hayat, Moharrir Head Constable, Y.W.3 drafted the formal F.I.R. Exh.P.C,/1 on the receipt of the complaint Exh.P.C. Muhammad Amir P.W.5 is an eye‑witness. He stated that on the day of occurrence, he was present in his house enjoying Ukka alongwith Muhammad Din P.W.5. At about 6‑30 p.m. on hearing the alarm they were attracted to the place of occurrence, when they reached at spot they saw Azam, accused, giving a blow on the head and two blows on the abdomen with brickbat to Karam Din, deceased while Mst, Sultana, accused, the mother of Azam, accused was catching hold of Karam Din deceased, from his leg and Karam Din succumbed to the injuries there and then. During the cross-examination, he refuted the suggestion that he was present in the house of Khushi Muhammad playing his loudspeaker at the time of occurrence. But he stated that he went to the house of Khushi Muhammad on that day after having seen the occurrence. He admitted that the statement of Mst. Fateh Bibi, complainant, was recorded at the spot in his presence. He also refuted the suggestion that the mother of Azam, accused namely, Mst. Sultana, was falsely implicated for providing Azam accused maximum relief. Muhammad Din P.W.6 also corroborated the version of Muhammad Amir P.W.5. During cross‑examination he stated that he used to visit the house of Karam Din, deceased, and his mother to see them. He further stated that the deceased was lying on the ground before their arrival. He refuted the suggestion that he had falsely implicated Mst. Sultana, accused. Mst. Fateh Bibi, complainant, appeared as P.W.7. She supported her version given in the F.I.R. narrated above. During cross‑examination she stated that the occurrence‑took place in the manner that she and the two accused started exchanging abuses over an issue of fracture of cock's leg and then started grappling with each other. In that process, when her husband Karam Din deceased tried to intervene physically, he was given blows by Azam, accused with brickbat. There was a heep of brickbats lying near the place of occurrence and Azam, accused, picked up one brickbat from there. In cross‑examination, she admitted that courtyard was pacca where the deceased, Karam Din, fell. She further stated that when the deceased, Karam Din, fell on the back side of his head, thereafter he was given blows by Azam, accused. Dr. Muhammad Rafiq P.W.4, who conducted the autopsy of the dead body, admitted, during the cross‑examination that head injury No.1 could be caused by a blunt weapon or by a fall or by crushing and pressing. He further stated that the possibility of the head injury No.1 as a result of fall could not be excluded. Injury No.2 had been caused by blunt weapon causing the fracture of three ribs which in turn ruptured the spleen. Muhammad Amir P.W.5 stated that he joined the police investigation: The Investigating Officer collected brickbat P.8 from the spot. It was not tainted with blood: Muhammad Amir and Muhammad Din P.Ws. stated that when they reached the spot they rescued the deceased from the clutches of the accused and the accused fled away. Zulfiqar Ah Shah S.I./S.H.O. stated that he took into possession the brickbat P.8 from the spot. The motive as alleged by the prosecution is that Azam, accused, alongwith his mother Mst. Sultana went to the house of Karam Din, deceased, in order to complain for fracturing the leg of the cock. Muhammad Amir P.W.5 stated that there was no enmity or ill‑will between the accused persons and the family of the deceased. They were living like brothers in the common courtyard. The present occurrence took place on account of an altercation resulting from the damage to the leg of the cock as he learnt on reaching at the spot Muhammad Din P.W.6 also stated that there was no ill will between the parties. The present occurrence took place on the allegation of fracture of the leg of cock resulting in altercation between the deceased and the accused party. Mst. Fateh Bibi P.W.7 stated that this occurrence also took place when the accused came to her house to complain for fracturing the leg of the‑cock.

5. The recovery effected was that of a brickbat P,8 on 2‑1‑1984, from the spot vide memo. Exh.P.E. attested by Muhammad Amir P.W.5, Muhammad Din P.W.6 and Zulfiqar Ali Shah P.W.8.

6. The accused was arrested on 7‑1‑1984 by the Investigating Officer, Zulfiqar Ali Shah S.I./S.H.O. P.W.8.

7. The accused denied the charge in their respective statements under section 342, Cr.P.C. and had further stated that the‑deceased, Karam Din, died instantly.

8. At the very outset, the learned counsel for the appellant submitted that he shall only contend for the reduction of sentence and for setting aside of the fine imposed. In this respect he submitted that the parties were close neighbours, resided in the same Ihata and that it is on the record that there was no previous enmity between them. Further submitted that the occurrence had been 'held to be the result of sudden flare up between the parties with no premeditation on the part of the appellant. Further submitted that the injury caused on the head has been stated to be possible because of fall and that the only other injury was on the chest that had broken three ribs resulting rupture of the spleen and that, therefore, it cannot be said that the appellant, 12/13 years of age at the time of occurrence had intention or the knowledge to kill the deceased. Further submitted, that the appellant almost a child has already undergone the agony of protracted trial and has further suffered imprisonment of over one year. Further submitted that the appellant is a very poor person hardly able to make both ends meet and has no property whatsoever.,

9. Therefore, in view of the submission, stated above, the learned counsel contended that under the facts and circumstances of the case, it shall meet the ends of justice if the sentence awarded is reduced to the period already undergone and the fine imposed is set aside.

10. On the other hand, the learned counsel for the State submitted that the appellant has already been dealt with leniently and opposed the contention for reduction of sentence and setting aside of the fine imposed.

11. However, as the appellant was only 12/13 years of age at the time, of occurrence, and as he has already suffered imprisonment for over one year and has further undergone the agony of protracted trial, and as the case is over seven years old, therefore, taking into consideration the facts and circumstances of the case, as highlighted by the learned counsel for the appellant, while maintaining the conviction of the appellant, the sentence imposed is hereby reduced to the period already undergone by him and the fine imposed is hereby set aside. The appellant is on bail. His bail bonds stand discharged.

12. In accordance with the terms stated above, the present criminal appeal is hereby dismissed. N.H.Q./M‑394/L Sentence reduced.