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Criminal Appeal No.267 of 1983 and Murder Reference No.94 of 1984, decided on 18th May, 1987.

---S.302--Occurrence taking place in broad daylight and reported to police without any delay--Ocular account not smacking of any fabrication and eye-witnesses having no animus or motive to falsely substitute accused for real culprit--Recoveries corroborated by ocular version--Conviction maintained.

---S.302--Sentence--Accused less than sixteen years of age at time of occurrence, committing offence out of juvenile delinquency as a reaction to scuffle which he had with deceased a day earlier--Extreme penalty of death, held, was not called for in circumstances--Sentence of death reduced to imprisonment for life.--[ Sentence].

Talib H. Rizvi for Appellant.

Dil Muhammad Tarar for the State.

Dates of hearing: 17th and 18th May, 1917.

.--Riaz Hussain, aged 17 years, was tried for the murder of Ahmad Bakhsh, aged 20 years, by the Addl. Sessions Judge, II, Muzaffargarh who vide his judgment dated 22nd of November, 1983 convicted him under section 302, PPC and sentenced him to death and to pay a fine of Rs.25,000/- or in default to suffer R.I. for one year. It was directed that the fine, if realized, be paid to the heirs of the deceased as compensation. The convict has filed an appeal against his conviction and sentence. The trial Court has submitted a reference under section 374, Cr.P. C. for confirmation of the sentence of death. This judgment shall dispose of the appeal as well as the reference.

2. The occurrence took place on 15th of June, 1982 at Dopeherwela in the area of village Gurmani Sharqi, about 10 miles away from Police Station Mahmood Kot, District Muzaffargarh. It was reported at the Police Station by Allah Wasaya P.W.6, father of the deceased, on the same date at 2 p.m. vide F.I.R. Ex.P.E. which was recorded by A.S.I. Amir-ud-Din P.W.10.

3. The prosecution case briefly is that on 15th of June, 1982 at Dopeherwela, the deceased in the company of Allah Wasaya P.W.6, his father, Ghulam Farid P.W.7, Abdul Ghafar P.W.8 and Ghulam Hussain P.W. (given up at the trial as unnecessary) was going from his house situate at Chak Jhandewala to villageg Gurmani Sharqi in order to attend the marriage of son of one Ghulam Haider. He was ahead of the others. When he reached Imam Bargah mosque, the appellant emerged from behind a wall carrying knife P.1. He attacked the deceased raising a lalkara that he would teach him a lesson for the insult of the previous day. After inflicting repeated knife blows on the deceased, the appellant made good his escape with the knife. The deceased succumbed to the injuries at the spot.

4. The motive for the attack was that a day prior to the occurrence, Nazir Ahmad, younger brother of the deceased and Ijaz Hussain, younger brother of the appellant quarrelled with each other. The deceased and the appellant in support of their respective brothers intervened and had an altercation. It was as a sequel of this altercation that the appellant on the next day attacked the deceased.

4-A. Leaving the dead body at the spot in the custody of the eye-witnesses, Allah Wasaya P. W .6 proceeded to the Police Station Mahmood Kot and on reaching there on the same day at 2-00 p. m. lodged F.I.R. Ex.P.E. which was recorded by A.S.I. Amir-ud-Din P.W.10. The A.S.I. visited the spot on the same day. He prepared injury statement Ex.P.J. and inquest report Ex.P.K. in respect of the deceased and despatched his dead body to the mortuary for post-mortem examination. He collected blood-stained earth from the spot vide memo. Ex. P. C. and made it into a sealed parcel. He arrested the appellant on 16th of June, 1982 at Bus Stand Gurmani Sharqi and on his pesonal search recovered knife P.1 from the right dub of his chadar and made it into a sealed parcel vide memo Ex.PD in the presence of Allah Bakhsh P.W.5 and Abdur Razzaq P.W. (given up at the trial as unnecessary). On 18th of June, 1982, he got prepared from Jamal-ud-Din Nazir P.W.9, a draftsman, site plan Ex.P.H., PH/1 and PH/2 of the place of occurrence. According to the reports Ex.P.L. of the Chemical Examiner and Ex.PM of the Serologist, the earth and the knife recovered in this case were stained with human blood. On completion of the investigation, the appellant was challaned.

5. On 16th of June, 1982 at 7-00 a.m. Dr. Saeed Ullah Khan P.W.1, Senior Medical Officer, Tehsil Headquarters Hospital, Kot Addu conducted the autopsy on the dead body of the deceased and observed the following injuries: -

(1) A horizontal stab wound 2J cm x 1 cm x going deep on the front of left side of chest in the eighth inter-costal space about 8 cm from the mid-line. It was directed medically and upwards.

(2) A oblique stab wound 2 cm x 1 cm x omentum coming out on the left mid-axillary line in the tenth inter-costal space.

(3) One stab wound 2 cm x 1 cm x going deep op the left side of abdomen about 71 cm from the umblicus at the level of it.

(4) One oblique stab wound 7 cm x 5 cm x intestines coming out at about 3 cm below the umblicus at the abdomen. It started from the mid-line and went downwards to the right side.

In the opinion of the Medical Officer, the death of the deceased occurred due to bleeding from vital organs like heart, lung, spleen, intestines etc. and shock. All the injuries which were ante mortem and had been caused by sharp-edged weapon were sufficient to cause death in the ordinary course of nature even individually. The probable interval between the injuries and the death was instantaneous and between the death and the post-mortem examination 16 to 24 hours. Ex.P.A. is the post-mortem examination report and Exs.PA/1 and PA/2 are the diagrams showing the locale of the injuries.

6. The appellant pleaded not guilty to the charge framed against him under section 302, PPC. When examined under section 342, Cr.P.C., he denied the prosecution case and the recovery of knife P.1 attributed to him. According to him, he was innocent and had been falsely implicated by the prosecution witnesses on account of their relationship with the deceased. He tendered in his defence a written statement Ex.DH and also examined three witnesses.

7. The trial Court in order to resolve controversy regarding the age of the appellant got him medically examined by Dr. Hafeez-ur Rehman, C.W.1, a Radiologist of D.H.Q. Hospital, Muzaffargarh who after X-ray examination of the appellant on 29th of October, 1983 opined that on that date his bony age was around 17 years.

8. Allah Wasaya P.W.6 who as already, mentioned above, is the father of the deceased as well as the complainant in this case, deposed to the motive for the crime. According to him, a day prior to the occurrence the appellant and the deceased had a scuffle over an altercation between their younger brothers and having felt incensed on that account, the appellant attacked the deceased on the day of occurrence. His statement on the motive was not assailed in his cross examination.

9. Allah Wasaya P.W.6, Ghulam Farid P.W.7 and Abdul Ghafar P.W.8 furnished ocular account of the occurrence. They deposed that on the day of occurrence at about 12 L0 noon they alongwith the deceased were going to attend the marriage ceremony of the son of Ghulam Haider in Qasba Gurmani. The deceased was walking ahead of them. On the way when the deceased reached near Imam Bargah, the appellant suddenly appeared from behind the wall thereof and attacked the deceased inflicting on him four blows with a knife. The deceased fell to the ground and expired instantenously.

10. Besides Allah Wasaya P.W.6, Ghulam Farid P.W.7 also is related to the deceased. However, they are not ascribed any animus against the appellant. Abdul Ghafar P.W.8 is an independent witness. They were cross-examined. However, nothing was elicited which could recoil on their veracity.

11. Learned counsel for the appellant has contended that there is one fact which militates against the prosecution case and that is that the place of occurrence did not fall on the way to the house of Ghulam Haider where the eye-witnesses were, according to them, going to attend the marriage of his son. In this connection he has referred to the statement of Allah Wasaya P.W.6 in his cross-examination where he said that his house was situate towards the west of the place of occurrence and the house of Ghulam Haider also was located towards the west of his house. Similar statement was made by Ghulam Farid P.W.7 in his cross-examination. These statements do not ex facie support the contention. No clarification was sought from them as to the venue where the marriage ceremony was being held and whether there existed only one route directly connecting the place from where they started and the house of Ghulam Haider, both lying on the west, without any circuit touching the place of occurrence. In the absence of this clarification, the contention raised by learned counsel for the appellant loses its significance.

12. The occurrence took place in broad daylight. It was reported to the police without any delay. The eye-witnesses had no animus or motive to falsely substitute the appellant for the real culprit. In view of these facts,- the ocular account does not smack of any fabrication.

13. Allah Bakhsh P.W.5 and A.S.I. Amir-ud-Din P.W.10 testified to the recovery of blood-stained knife P.1 from the appellant at the time of his arrest. This recovery corroborates the ocular version.

14. In view of the above evidence, the learned trial Court was perfectly justified in holding the appellant guilty of the murder of the deceased and invoking his conviction under section 302, PPC. We, therefore, maintain his conviction.

15. As regards the sentence imposed on' the appellant, his learned counsel has vehemently argued that the same is harsh. According to the school leaving certificate Ex.DG of the appellant, he was born on 9th of November, 1967. Dr. Hafeez-ur-Rehman, Radiologist, D.H.Q. Hospital, Muzaffargarh who was examined as C.W.1 deposed that according to the X-ray examination of the appellant on 29th of October, 1983, his bony-age was around 17 years. According to that evidence, the appellant was less than sixteen years of age at the time of occurrence. There was no feud or hostility between the parties. The appellant committed the offence out of juvenile delinquency as a reaction to the scuffle which he had with the deceased a day earlier. In these circumstances, the extreme penalty of death is not called for. Therefore, we reduce the sentence from death to imprisonment for life. However, we maintain the sentence of fine already awarded to him by the trial Court.

16.With the above reduction in the sentence, this appeal is dismissed.

17. The sentence of death is not confirmed.

M.Y.H./R-30/L Order accordingly.

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