' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,277 of 1998 filed by Muhammad Ashraf appellant, Criminal Appeal No,291 of 1998 filed by Mst. Kalsoom Bibi appellant and Criminal Revision No,195 of 1998 passed by Muhammad Younas complainant directed against the judgment, dated 27-3-1998 passed by the learned Additional Sessions Judge, Sheikhupura whereby he convicted Muhammad Ashraf appellant under section 302(a), P.P.C. And sentenced him to death with fine of Rs,20,000 or in default six months R.I. And convicted Mst.
Kalsoom Bibi appellant under section 302(b), P.P.C. And sentenced her tb undergo life imprisonment.
2. Brief facts of the case narrated by the complainant Muhammad Younas are that on 22-8-1996 at about 10 a.m. He along with his son Farrukh Mehmood, Saifullah and Asif Abdullah was standing in front of the main door of their house, that Kalsoom Bibi wife of Khizar Hayat Caste Wattu and Muhammad Ashraf appellant armed with 7 mm rifle came there. Kalsoom Bibi raised a lalkara that Muhammad Younis etc. Be murdered as they used to torture them daily for vacating the house.
She, further enunciated that 'Nan Rahay Bans, Nan Bajay Bansri (URDU TEXT). Upon this said Muhammad Ashraf fired with his rifle which hit on the left side on the back of Farrukh Mahmood who fell down. Thereafter, the accused fled away from the spot. The deceased succumbed to the injuries in the Hospital.
3. Matter was reported to the police on 22-8-1996 at 2-00 p.m. About the occurrence which had taken place on the same day at 10 a.m. In the area of village Feroze-Watwan situated at a distance of 8 miles towards West from Police Station, Bhikhi.
4. After receiving information about the occurrence the local police completed all the necessary formalities and then Mushtaq Ahmad, A.S.-I. Proceeded to the Hospital and the place of occurrence. He prepared injury statement Exh.P.G. And inquest report Exh.P.H. He secured blood- stained earth vide memo. Exh.P.L. Last-worn clothes were also received by him vide memo. Exh.P.A.
On 28-6-1996 he arrested Muhammad Ashraf who on 5-9-1996 led to the recovery of rifle P.3 vide memo. Exh.P.B. Mst. Kalsoom Bibi was arrested on 22-9-1996 after refusal of her bail. After thorough investigation both the accused were challaned and were sent to judicial lock-up to face the trial.
After trial they both were sentenced as mentioned above.
5. Prosecution in order to prove its case has produced as many as 9 witnesses in all including Doctor, Investigating Officers, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner, Exh.P.M. And that of Serologist Exh.P.O., learned S.P.P. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence.
6. Learned counsel for the appellants in support of their respective appeals submit that the appellant has been falsely implicated in this case, that motive is shrouded in mystery and that immediate cause of murder is not known, that the motive, if any is on the part of Khizar Hayat and not on the part of Muhammad Ashraf appellant. He further submits that appellant was minor at the time of occurrence and he has given his age as 17 years while recording his statement under section 342, Cr.P.C. Also adds that it is a case of single shot and the same was not repeated. He submits that both the eye-witnesses produced by the prosecution are closely related to the deceased, that no independent witness has been produced by the prosecution. He submits that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt.
7. On the other hand learned counsel for the complainant submits that appellant is named in the F.I.R. He was armed with .7 mm rifle. He caused injury on the person of the deceased which proved fatal, that he was not minor at the time of occurrence and that no document was produced by the appellant in this regard, that it is a case of two versions, one taken up by the prosecution and the other put forward by the appellant, that version of the prosecution is more plausible and convincing and appeals to reasons. He submits that not only motive has been proved but ocular account is also corroborated by medical evidence. He supports the judgment of the learned trial Court.
8. Learned State Counsel on the other hand being a fair State counsel, submits that immediate cause of murder is not known in this case. He submits that as far as Mst. Kalsoom Bibi appellant is concerned, there was no need of raising Lalkara on her part. He further submits that as the motive in this case has not been proved by the prosecution so her case is distinguished from her co- convict.
9. We have heard the learned counsel for the parties and also have gone through the record available on the file. We may state here that Mst. Kalsoom Bibi is wife of Khizar Hayat, the brother of Muhammad Younas complainant. Occurrence had taken place at 10 a.m. On 22-8-1996 and the matter was reported to the police at Civil Hospital at 1-15 p.m., formal F.I.R. Was lodged at 2 p.m.
Three eye-witnesses were mentioned in the F.I.R. i,e, Muhammad Younas, complainant, Saif Ullah (not produced) and Asif Abdullah P.W.6. Muhammad Younas is father of the deceased while Asif Abdullah is nephew of the complainant. After the occurrence none of the eye-witness went to the police station to lodge the F.I.R. It is correct that the deceased was in serious condition and his father according to the F.I.R. Took the deceased to the Hospital but someone from the eye- witnesses could have gone to the police station to lodge the F.I.R. Neither from the eye-witnesses or anybody informed the police about the present occurrence nor there do any evidence that the Doctor informed the police about the occurrence.
10. Motive mentioned in the F.I.R. According to Muhammad Younas complainant was that Mst.
Kalsoom Bibi raised Lalkara that Muhammad Younas etc. Should be murdered because they had been threatening/pressuring them to vacate the house. According to the F.I.R., Mst. Kalsoom further stated that "Nan Rahay Bans, Nan Bajay Bansri" (URDU TEXT) on which Muhammad Ashraf fired a shot on the back of Farukh Mehmood deceased which resulted to his death.
11. We may state here that Muhammad Ashraf appellant had nothing to do with the vacation of that house although, he was real brother of Mst. Kalsoom Bibi. If there was any motive to commit murder of anybody from the side of the complainant party then Muhammad Younas should have been murdered who had asked to vacate the house. Even otherwise Mst. Kalsoom Bibi who is real sister of Muhammad Ashraf appellant was not required to raise Lalkara in order to cause the murder of the deceased. Even the deceased and Muhammad Ashraf appellant had no previous enmity and there was no quarrel even between them prior to the present occurrence. During the cross-examination Muhammad Younas complainant had admitted that he had purchased the house from Khizar Hayat, husband of Mst. Kalsoom Bibi in the year 1986 and so on. Although, we are of the considered view that there is no question of false implication of the appellant in this case because he was related to the complainant party but we are also of the considered opinion that something had happened prior to the present occurrence which has been suppressed by the prosecution. The motive of the murder as has been stated by the two P.Ws. Before the learned trial Court or in the F.I.R. Is not proved in the instant case. So we are not going to believe the motive which has been set up by the prosecution though, we believe the presence of the eye-witnesses.
This is the reason that the legislators have mentioned two sentences in section 302(b), P.P.C. Death or life imprisonment. In such-like cases the second sentence would come into operation. Moreover, it is a case of single shot and the same was not repeated. As far as present appellant Muhammad Ashraf is concerned, he had taken the plea of provocation before the trial Court during the cross- examination of the eye-witnesses and the Investigating Officer. The same did not find favor with the learned trial Court and we also do not accept the same because under Article 121 of the Qanun-eShahadat, 1984 when an accused person raises a special plea to bring his case within the ambit of one of the exceptions of section 300, P.P.C. Present before the promulgation of Qisas and Diyat Ordinance, 1999 then onus lies on him to prove the same. The appellant has failed to prove the said plea which he had raised before the trial Court so we reject the same.
12. As far as minority is concerned, as stated before the learned trial Court while recording his statement under section 342, Cr.P.C. He had given his age as 17 years but he failed to produce any documentary evidence in this regard in the shape of School Leaving Certificate, birth certificate or any application submitted before the learned trial Court for his ossification test in order to prove his minority. We have also seen from the record that at the time of his arrest ,which took place on 29- 8-1996 his age was shown as 25/26 years so he is not a minor. Even the learned State Counsel who represents the State and has got no interest either with the defence or with the prosecution, has rightly submitted that this is a case a lesser sentence as the motive in this case is shrouded in mystery and immediate cause of death is not known and this is also our considered opinion about the submission which has been made before us and we are in agreement with it.
13. In this view of the matter though we maintain the conviction of appellant under section 302(b), P.P.C. But set aside the death sentence and convert the same into life imprisonment under the said section with the benefit of section 382-B, Cr.P.C. Learned trial Court has awarded Rs,20,000 fine to the appellant which is illegal as no fine under section 302(b), P.P.C. Can be awarded and there is also clear violation of section 544-A, Cr.P.C. We also set aside the same and appellant is ordered to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased or in default six months' S.I. Death sentence awarded to Muhammad Ashraf appellant is not confirmed and the Murder Reference is replied in the negative.
14. As far as Mst. Kalsoom Bibi is concerned, only Lalkara is attributed to her, even it was a case of single shot so while granting benefit of doubt we accept her appeal and set aside the conviction and sentence awarded to her. She is on bail and she is discharged from her bail bonds.
15. While dealing with murder cases and Criminal Appeals we have observed already in many cases that some of the accused at the time of framing of the charge or while making their statements under section 342, Cr.P.C. Give lesser age in order to save themselves from capital punishment. What the accused state before the learned Sessions Judge or before the learned Additional Sessions Judge, they record the same and do not receive any documentary proof in this regard in the shape of School Leaving Certificate, birth certificate or any other document of similar nature which can prove their minority. We direct Registrar of this Court to convey the order of this Court to all the learned Sessions Judges, learned Additional Sessions Judges and also Special Judges of Anti-Terrorist Courts who will go through the same and at the time of recording the statements of the accused under section 342, Cr.P.C. Or framing the charge, they may record what the accused say but the trial Court should make a tentative assessment or observation about the age of the accused in this regard and give the same also. Copies of this judgment are sent to all concerned in Punjab. With these observations this appeal stands disposed of.