' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant Muhammad Arshad along with his co- accused namely Muhammad Amjid, Nazir and Talib Hussain was tried in case F.I.R. No,228 of 1997 registered under section 302/34, P.P.C. At Police Station Saddar, Sialkot by the Addl. Sessions Judge, Sialkot who vide judgment dated 28-4-2000 while acquitting his co-accused convicted the appellant under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay compensation amounting to Rs,50,000 to the legal heirs of Muhammad Khalil deceased or in default whereof to undergo six months' R.I.
2. Calling in question the impugned judgment, the appellant filed Criminal Appeal No,651 of 2000 while the trial Court has made a reference (M.R. No,276 of 2006) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution story as narrated in F.I.R. Exh.PG/1 lodged on the complaint Exh.P.G.
Made by Nazir Ahmad accused, is that on the fateful day at 6-00 a.m. He along with his co- accused namely Amjid Ali, was going to Sialkot on the motorcycle from his village Jodhewali, and when reached near the Haveli of Shah Din, Mangu Gujjar stopped his motorbike, Ahmad Ali alias Kaku son of Munshi, Dilawar son of Ahmad Ali, Jamil son of Shah Din, all armed with hockeys and Azeem son of Shah Din armed with Sota emerged from the Haveli of Shah Din, Ahmad Ali raised Lalkara that they be taught a lesson for demanding advance money whereupon the other accused persons along with Mangu started inflicting injuries to Nazir Ahmad and Amjid Ali and also caused damage to motorbike. On the alarm raised by Nazir Ahmad and Amjid Ali, Muhammad Boota, Maqbool Ahmad attracted to the spot and beseeched them. When Nazir Ahmad and Amjid Ali reached their house, the above mentioned persons along with Abid armed with carbine, Ahmad Ali, Zulfiqar armed with rifle, Saleem armed with a piece of brick and Jameel armed with Sota trespassed into their house. The family members of Nazir Ahmad and Amjid Ali confined both of them in a room. The above said persons started firing. Saleem accused tried to break open the door with brick. A large number of people attracted to the spot and rescued Nazir Ahmad and Amjid Ali from the assailants. Talib Hussain took both of them to Civil Hospital Sialkot and obtained Medico-legal report of both the injured persons.
' The motive for offence was that Amjid Ali had advanced a sum of Rs,25,000 to Ahmad Ali and a sum of Rs,25,000 to Shah Din and Rs,10,000 to Mangu for purchase of milk from him but all the three persons stopped selling milk to Amjid Ali who asked for the return of said advance and the dispute was to be resolved by a Punchayat on the day of occurrence when above said persons caused injuries to Nazir Ahmad and Amjid Ali.
4. During the investigation conducted by Muhammad Tufail A.S.-I. P.W.9, one Abdul Majeed P.W.4 appeared and got recorded his statement Exh.PD which reads as under:-- "2/3 days prior to this occurrence, Muhammad Arsand and Muhammad Amjid sons of Talib Hussain abducted Mangu son of Muhammad Shafi to pressurize him for the hand of his sister, who was divorced 15/20 days prior to this occurrence. On 16-6-1997 at 6-30 a.m. Abdul Majeed was coming from his house when he reached near Haveli of Shah Din, Mangu was also standing there.
' Muhammad Amjid and Nazir accused came there on their motorcycle and stopped motorcycle near Mangu. Muhammad Amjid asked Mangu whether he had to give the hand of his sister or to face death. Mangu replied that he was ready to face death. He would not give the hand of his sister to them. Upon this Nazir and Amjid accused started quarreling with Mangu. Muhammad Khalil deceased on seeing both the parties quarrelling with each other, intervened to separate both the parties. Upon this, Muhammad Amjid raised a Lalkara that Muhammad Khalil be held and also be taught a lesson for demanding the price of sale of milk. Muhammad Amjid took Khalil into Japha.
Nazir Ahmad started slapping on his face and in the meantime, Muhammad Arshad armed with Danda emerged from the house of Muhammad Siddique and inflicted Danda blow on the head of Muhammad Khalil, who after receiving Danda blow fell on the ground. Mangu saved his life by requesting the accused to forgive him. Muhammad Khalil was taken to hospital in injured condition, from where he was referred to General Hospital, Lahore. Abdul Majeed also stated that this occurrence was abetted by Talib Hussain accused."
5. During the investigation the story narrated in the F.I.R. Was disbelieved by the agency and while accepting the facts mentioned by Abdul Majeed (P.W.4) the investigation was completed and challan was submitted against the appellant and his other co-accused. Before the trial Court fourteen witnesses were examined by the prosecution, the gist of their evidence is as under:-- ' Umar Hayat P.W.1 deposed that in his presence the police took into possession blood-stained earth from the place of Occurrence vide memo. Exh. P . A.
' Muhammad Jameel P.W.2 stated that in his presence Arshad appellant got recovered Danda P.1 from his house which was taken into possession vide memo. Exh.P.B. Abid Hussain P.W.3 produced the last-worn clothes of the deceased before the Investigating Officer which were taken into possession vide memo. Exh.P.C. Abdul Majeed P.W.4 and Munawar alias Mangu P.W.5 being the eye-witnesses narrated the circumstances under which the appellant and his co-accused committed the murder of Muhammad Khalil deceased, Akbar Ali P.W.6 narrated about the motive part of the occurrence Masood Ahmad Bhatti, Draftsman P.W.7 prepared site-plan Exh.P.E. And P.E.1 and delivered the same to the Investigating Officer. Dr. Ghafoor Hussain Medical Officer P.W.8 conducted post-mortem examination on the dead body of Muhammad Khalil and prepared report Exh.P.F. Dr. Asif Sajjad P.W.14 on the day of occurrence medically examined Muhammad Khalil and prepared Medico-legal report Exh.P.M. On the same day, this witness also examined Amjid Hussain and Nazir Ahmad (acquitted accused) and prepared reports Exhs.PN and PO respectively.
Muhammad Tufail A.S.-I. P.W.9 and Riaz Ahmad S.-I. P.W.10 conducted investigation in this case.
Muhammad Tufail A.S.-I. P.W.9 also recorded the said statement Exh.P.D. Of Abdul Majeed (P.W.4) on the day of occurrence. Fiaz Ahmad H.C. P.W.11 kept the sealed parcel containing bloodstained in the Malkhana and later on handed over the same to Mushtaq Ahmad Constable for onward transmission to the relevant office. Muhammad Yaseen Constable P.W.12 took the dead body to the mortuary for post-mortem examination. Mushtaq Ahmad Constable P.W.13 took the parcels to the office of Chemical Examiner and delivered the same intact.
6. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. While answering to the question why this case against you and why the P.Ws. Deposed against you? The appellant replied as under:-- "On 16-6-1997 at 6-00 a.m. Nazir Ahmad son of Nizam Din and Amjid son of Talib Hussain were going on motorcycle from village to Sialkot, when they reached near Haveli of Shah Din, Munawar alias Mangu stopped their motorcycle. From the Haveli of Shah Din, Ahmad Ali alias Kaku son of Munshi armed with Hockey, Dilawar Hussain son of Ahmad Ali armed with Hockey, Jamil armed with Hockey, Siddique armed with Sota sons of Shah Din emerge. Ahmad Ali raised Lalkara that they be taught a lesson for demanding the advance money from them. Upon this all the above mentioned accused along with Munawar alias Mangu started inflicting injuries to Nazir Ahmad and Amjid and damaged motorcycle. Their alarm attracted Muhammad Boota, Maqbool Ahmad who rescued them from the accused. Amjid and Nazir reached home in injured condition and the abovementioned accused along with Muhammad Abid armed with Carbine, Zulfiqar armed with rifle son of Ahmad Ali, Saleem armed with brick, Jamil armed with Sota sons of Shah Din, entered their house. The inmates of the house confined them in a room. Accused resorted to firing. Saleem accused broke opened the door with the brick. A large number of residents of village gathered at the spot and rescued them from the accused. Talib Hussain took both injured to hospital. Amjid Ali advanced a sum of Rs,25,000 to Ahmad Ali for the purchase of milk and a sum of Rs,25,000 to Shah Din for the same purpose and to Munawar alias Mangu a sum of Rs,10,000 for purchase of milk. All the three stopped selling milk to Amjad Ali. Amjid Ali demanded said money which he had advanced to them and in a Punchayat convened on 16-6-1997, a decision was taken. On 16-6-1997 early in the morning, Khalil was going to ease himself, when an unknown accused stopped him for the purpose of dacoity and caused injuries to him. Some one residents of the village saw Khalil in injured condition and informed family members of Khalil, who got admitted in hospital at 6-16 a.m.
Where he succumbed to those injuries later. Complainant party of this case in order to counter the criminal case of F.I.R. 228 of 1997 which was registered at Police Station Saddar and complainant of that case was Nazir Ahmad. After the death of Khalil, in connivance with police falsely got registered this case in order to get rid of advanced money. So far as disengagement of sister of Munawar alias Mangu is concerned, neither it was asked from him for the hand of his sister nor her in-laws were asked to divorce her. All this was a false story. All the P.Ws. Closely related to each other and were inimical towards us."
' Appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
7. After appraisal of evidence available on record, the trial Court vide judgment dated 28-4-2000, convicted and sentenced the appellant as narrated earlier.
8. In support of this appeal learned counsel submits that the version given in F.I.R. No,228 of 1997 was believed by the trial Court and the version of the complainant party was disbelieved qua the acquitted accused, thus there was no justification for the trial Court to convict and sentence the appellant; submits that medical evidence supports the defence plea and contradicts the ocular account of the prosecution; submits that according to the prosecution version appellant gave a single blow to Khalil deceased whereas the Medico-legal report reveals that deceased had three injuries on his head; the evidence of recovery of incriminating articles at the instance of appellant relied upon by the prosecution is of no value because Danda recovered at the instance of appellant was never sent to the office of Chemical Examiner; the presence of Abdul Majeed P.W.4 complainant is not free of doubts because the statement of Munawar alias Mangu P.W.5 before the trial Court is very much clear in this regard and that the statement of Abdul Majeed Exh.P.D. Was recorded after the death of Khalil which took place on 18-6-1997. Learned counsel submits that before the trial Court no independent witness was produced by the prosecution to prove the motive part of the case and lastly submits that in the circumstances conviction and sentence of the appellant is not sustainable. On the contrary, learned counsel for the complainant while supporting the impugned judgment vehemently opposed the arguments raised by the learned counsel for the appellant. He submits that Munawar alias Mangu P.W.5 was absolutely independent and disinterested witness who had deposed against the appellant and his statement finds corroboration from the medical evidence and other circumstances of the case.
' Learned counsel for the State while defending the impugned judgment supports the arguments made by learned counsel for the complainant. She has also pointed out that at the time of recording statement under section 342, Cr.P.C. Age of appellant as observed by the trial Court was 19 years. This statement was recorded on 21-4-2000 and in this way on the day of occurrence i.e, 16-6-1997 appellant seems to be minor and thus awarded of capital sentence in the circumstances of the case is not justifiable.
9. After hearing the learned counsel for the parties at some length and perusing the record, we have observed that it is a case of two versions, time, place of occurrence and the weapon used in the occurrence are almost the admitted facts. Initially the F.I.R. Was got registered by Nazir Ahmad acquitted accused but during the investigation this F.I.R. Was found false. The case of appellant party which was narrated by co-accused of the appellant while lodging the F.I.R. As well as while making statement under section 342, Cr.P.C. Was that on the day of occurrence near the Haveli of Shah Din (Chowk in the village) Nazir Ahmad and Muhammad Amjid had received injuries at the hands of Ahmad Ali, Dilawar, Muhammad Jameel and Azam etc., and when they managed to escape from their clutches they were followed by the said accused along with another set of accused i.e, Abid, Zulfiqar, Saleem and Jameel. Allegedly, when they (appellant party) concealed themselves in the room of their houses, the said accused while trespassing into their house attempted to break open the door of the room but due to the intervention of the inhabitants of the locality their lives were saved. Allegedly the accused party also made aerial firing at that time.
Statedly deceased Khalil had received injuries at some other place at the hands of some unknown dacoits. In support of the defence plea neither the appellant made any statement under section 340(2), Cr.P.C. Nor produced any witness from the locality.
' On the other hand the story set up in statement Exh.P.D. Made by Abdul Majeed P.W.4 reveals that on the day of occurrence, it was the appellant and his co-accused namely Talib Hussain, Nazir Ahmad and Muhammad Amjid who had launched attack in the chowk of the village. Muhammad Amjid accused held the deceased in his clasp when Muhammad Arshad appellant gave Danda blow on the head of the deceased as a result of which he died in the hospital later on.
10. After going through both the versions we have observed that both the parties while deposing before the Court had deliberately concealed the injuries of their adversaries whereas the medical evidence/ reports available on record reveals that the duration of injuries on the person of Khalil deceased and that of Nazeer and Muhammad Amjid acquitted accused tally with each other. All of them were examined C by Dr. Asif Sajjad P.W.14 on 16-7-1997 after few minutes of the occurrence and the observation of the doctor reveals that the injuries on their persons were fresh in nature. The said concealment on the part of both the parties reveals that some true facts were concealed by them while making statement before the trial Court and in such-like situation as observed by the apex Court of this country in case titled Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Court can form its own opinion to come to the right conclusion. In this regard after scanning the evidence available on record we have observed that data available on the record shows that before the injury was caused to Khalil deceased both the parties had quarrelled and gave slaps to each other and on hearing the commotion appellant brought Danda from a nearby house of Muhammad Siddique and caused a single blow on the head of Khalil as a result of which he died later on in the hospital it means that immediately before the occurrence something else had happened and the genesis of the occurrence is shrouded in mystery. In the circumstances we are of the view that everything had happened at the spur of moment and it was not a preplanned murder. We have also observed that at time of occurrence appellant was minor. The trial Court while recording the statement of appellant under section 342, Cr.P.C. Observed his age as nineteen
(19) years. This statement of the appellant was recorded on 21-4-2000, whereas the occurrence statedly had taken place on 16-6-1997. Thus the possibility that at the relevant time appellant was a minor could not be ruled out. In this view of the matter we find force in the arguments of learned counsel for the State that it is not a fit case for the award of capital sentence.
11. In the said circumstances of the case, finding no force in this appeal the same stands dismissed.
However, the sentence of appellant is reduced to imprisonment for life with benefit of section 382- B, Cr.P.C. The appellant shall pay the compensation on the same terms and conditions as fixed by the trial Court.
12. Death sentence of the appellant NOT CONFIRMED and the murder reference is answered in the negative.