' KHAWAJAMUHAMMAD SHARIF, J.---The appellant Hafeez Ullah, along with his co-accused Irshad Hussain, Faiz Muhammad and Abdul Karim, was tried by the learned Sessions Judge, Rajanpur, for offence under sections 302/109/34 P.P.C. Vide judgment dated 20-3-2001, the learned trial Judge, while acquitting the co-accused, convicted and sentenced the appellant for offence under section 302(b) P.P.C. To death plus payment of Rs,50,000 as compensation to the legal heirs of Ashraf deceased, in default thereof to undergo R.I. For six months.
2. Aggrieved by his above said conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made reference bearing Murder Reference No,268 to 2001, seeking confirmation or otherwise of death sentence imposed upon the appellant. Both these matters are being decided through this single judgment.
3. Briefly, the facts of the case, as narrated by Khadim Hussain-complainant in Exh.PE/1, are that on 27-5-1998 at 11-45 a.m. The complaint along with his brother Haji Ahmed went to Fazilpur in connection with the repair of their tractor, where they met Muhammad Iqbal, Nasar Ullah and Muhammad Ashraf and they all sat in a hotel oncots to take tea. They all were chatting each other.
They saw Hafeez Ullah-appellant firing with a pistol, which hit Muhammad Ashraf on his back.
Hafeez Ullah ran away towards south, being accompanied by Irshad Hussain and Faiz Muhammad and Irshad Hussain said that the task had been done so they should go. Irshad and Faiz Muhammad went towards south on motorcycle. Muhammad Ashraf succumbed to the injuries on the spot. Ten minutes earlier to the occurrence, Abdul Karim came and seeing Muhammad Ashraf at the spot went back, whereafter the aforesaid accused came and in furtherance of their common intention committed the murder of the deceased.
4. As to the motive, it was alleged that Muhammad Ashraf had given the hand of his sister Mst.
Kaneez to Muhammad Shafi and in exchange had taken the hand of Mst. Amna, daughter of Shafi.
Nikah had been performed but Muhammad Shafi was not allowing Rukhsati of his daughter, whereupon Muhammad Ashraf had abducted her and for that reason, the accused had committed the murder of the deceased Muhammad Ashraf. When the complainant was on his way to police station, he came across Mazhar Hussain, S.-I./P.W.8, near the hotel of Salamoon and recorded his statement Exh.PE/1, on the basis of which formal F.I.R. Exh.PE was registered.
5. Mazhar Hussain, S.-I. Took over the investigation of the caseand proceeded to the place of occurrence, prepared injury statement Exh. PC and inquest report Exh.PB of the deceased and sent the dead body for post-mortem examination. On spot inspection, he took into possession blood stained earth and made a sealed parcel through memo Exh.PG. He also took into possession empty P-5 from the place of occurrence through memo Exh. PH and then recorded the statement of the P.Ws. Under section 161 Cr.P.C. After post-mortem examination, he took into possession the last-worn blood stained clothes of the deceased (P-1 to P-3), sealed phial containing pellets P-4 and a blood cot P-6 through memo Exh.PF. Hafeez Ullah,accused/appellant, was arrested on 5-6- 1998. On 9-6-1998, while in custody, the accused led to the recovery of .12-bore pistol P-7, which was taken into possession vide memo Exh.PJ. After completion of investigation, the accused were challaned to face trial.
6. To prove its case at the trial, the prosecution examined nine P.Ws., in all, and after tendering in evidence the reports of Chemical Examiner Exh.PM. Serologist Exh. PN and that of Forensic Science Laboratory Exh. PP closed its side. The statement of Riaz Ahmad, SST, Higher Secondary School, Fazilpur, was also recorded as CW-1. Thereafter, the appellant in his statement under section 342 Cr.P.C. Pleaded his innocence and false implication. He however, placed on record his primary School Certificate as Mark 'A'.
7. Learned counsel for the appellant, in support of this appeal, submits that it was an unwitnessed occurrence; that the eye-witnesses are closely related to the deceased; that the F.I.R. Was recorded after due deliberations and consultations; that it was a case of family honour; that the appellant was minor at the time of occurrence; that according to Allah Bakhsh Constable/P.W.-5, when he along with the police party reached the place of occurrence, many persons had gathered and the accused Hafeez Ullah produced crime empty and that no pistol was recovered from him in his presence; that no case is made out against the appellant. Lastly, the learned counsel submits that according to the entry in Exh.C-I, the appellant was minor at the time of occurrence, so death penalty was not warranted.
8. Conversely, learned counsel for the State submits that it was a broad-daylight occurrence; that appellant was the only accused; that the ocular account is fully corroborated by medical evidence; that the appellant failed to prove his minority and, thus, does not deserve any leniency in case of conviction and sentence. Learned counsel supports the impugned judgment.
9. We have heard the learned counsel for the parties at a great length and have gone through the record with their assistance.
10. The occurrence took place on 27-5-1998 at 11.45 a.m. The matter was reported to the police at 12.20 the same day and the formal F.I.R. Was registered at the police station at 12.35 p.m. The same day, so it was a case of promptly lodged F.I.R. The complainant Khadim Hussain is maternal nephew of the deceased. Two eye-witnesses, namely, Khadim Hussain and Muhammad Nasarullah were produced before the trial Court as P.Ws.6 and 8, who fully supported the prosecution version. The ocular account furnished by the aforesaid two witnesses is fully corroborated by the medical evidence, coupled with the fact that post-mortem examination was conducted on the very same day at 5.30 p.m. And the duration given by the doctor P.W.-1 between the injury and the death was 3 to 5 hours, which also fits in with the time of occurrence. It is a case of single accused. Parties were known to each other there is no question of substitution or false implication of the appellant because in such-like situation false implication or substitution is a rare phenomenon. However, the appellant had claimed to be below eighteen years of age at the time of occurrence and in order to ascertain his minority, Riaz Ahmad, SST/CW-1 appeared before the learned trial Court. According to the statement of P.W.-1, appellant was admitted in the School Class VI on 5-5-1992 and was discharged on 9-9-1993. His date of birth mentioned in Register of Entry and Discharge, copy whereof has been placed on record as Exh.C-1, is 1-8-1980. As far as proving the case against the appellant by the prosecution is concerned,we have not even a slightest doubt in our mind that it was the appellant, who had committed the murder of the deceased. There are following three factors, which made out mitigating circumstances in favour of the appellant:--
(i) That his date of birth is 1-8-1980.
(ii) That the occurrence took place on 27-5-1998 when the appellant was less than eighteen years of age; and
(iii) That it was a case of single shot, without any repetition.
11. Taking into consideration all these facts, we maintain the conviction of the appellant for offence under section 302 (b) P.P.C. But convert his death sentence to life imprisonment with benefit of section 382-B Cr.P.C. As far as the payment of Rs,50,000 as compensation to the legal heirs of the deceased is concerned, we maintain the same but in default thereof, the appellant would further undergo S.I. For six months instead of R.I.
12. With the above modification in the sentence, this appeal, over and above, is dismissed. The death sentence is NOT confirmed. The Murder Reference stands answered accordingly.
13. Before parting with this judgment, we may note that this case was conducted by the learned Sessions Judge but it is painful to say that he has not given the age of the appellant while recording his statement under section 342 Cr.P.C., although the duty is cast upon every Sessions Judge or Additional Sessions Judge not only to mention the age of the accused while recording his statement under section 342 Cr.P.C. But also in the charge-sheet as well as the final judgment and even if any dispute arises as to the age of the accused, then the matter should be inquired into as per the procedure laid down in the Juvenile Justice System Ordinance.