' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Murder Reference No,289 of 2001 sent by the learned trial Court for the confirmation of death sentence of Muhammad Imran and Criminal Appeal No,724 of 2001 filed by Muhammad Imran appellant, who has been convicted under section 302(b), P.P.C. And sentenced to death with a direction for payment of Rs,30,000 as compensation to the legal heirs of the deceased Muhammad Abbas or in default of payment thereof to further undergo S.I. For six months, vide judgment dated 7-5-2001 passed by the learned Additional Sessions Judge, Lahore.
2. The occurrence in the present case had taken place at 9-30 a.m. At a shop while F.I.R. No,268 (Exh.P.B.) was recorded on the statement of Muhammad Sharif (P.W.4) father of the deceased Muhammad Abbas at 9-50 a.m. On 8-10-1997 by Ulfat Hussain, A.S.-I. (P.W.9) at Police Station Ghazi Abad, Lahore, which was 1-1/2 kilometre away from the place of occurrence.
3. The brief facts narrated in the F.I.R. (Exh.P.B.) are that the accused Muhammad Imran while armed with a pistol came to the shop of Muhammad Abbas deceased and raised a Lalkara to teach a lesson to the deceased for restraining him to sit at the shop. He fired two shots hitting on the head of the deceased. The appellant was tried to be apprehended, who threatened the P. Ws.
With dire consequences.
4. The motive behind the occurrence was alleged to be that a quarrel had taken place between the deceased and the appellant Muhammad Imran a few days before the occurrence as the deceased had restrained the appellant sitting in his shop.
5. Ulfat Hussain A.S.-I. (P.W.9) after recording the F.I.R. Reached the place of occurrence, prepared the site plan Exh.P.H., collected two empties P.1/1-2 from the spot which were taken into possession vide memo. Exh.P.D., collected the blood-stained earth from the spot which was taken into possession vide memo. Exh.P.C., recorded the statement of the witnesses and went to the hospital, prepared the inquest report and injury statement and sent the dead body to the mortuary. On 14- 10-1997 Imran appellant was arrested and he led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.P.F. And after the completion of the investigation report under section 173, Cr.P.C. Was submitted. The learned trial Court supplied copies required under section 265(c), Cr.P.C., charge was framed against the appellant which was denied by him and in order to prove the guilt of the appellant the prosecution produced ten witnesses. Hamid Javed constable (P.W.1) is a formal witness who took the parcels to the relevant office while Mukhtar Ahmad (P.W.2) took the dead body to the mortuary. Dr. Muhammad Khalid (P.W.3) conducted the post-mortem examination on 9-10-1997 at 11-55 a.m. And the ocular account has been furnished by Muhammad Sharif (P.W.4) and Muhammad Hafeez (P.W.5). The remaining witnesses are of formal nature.
6. The appellant when examined under section 342, Cr.P.C. Denied the allegations and on a question that "have you anything else to say" replied as under:- "At the time of occurrence I was below the age of 16 and this Court is not competent to try me. In fact that the deceased had developed illicit relations with my sister and due to that fact and my family were defamed. Even the said my sister was engaged or married with some of our relatives and due to that fact of illicit relations they refused to contract marriage with my said sister. On the day of occurrence I was also told that my sister was present in the shop of the deceased. When I went there, I saw that the deceased was embracing and kissing her upon which I took a pistol P.4 from the shop of the deceased which he used to keep there and exhorted Lalkara to kill the deceased and I started firing on him under sudden and grave provocation, thereafter I turned toward my sister, who made her escape from the spot otherwise I would kill her also."
' The trial Court also examined Muhammad Sagheer, Record Keeper, Statistics Branch, Metropolitan Corporation, Lahore as C.W.1 Dr. Muhammad Nawaz Anjum, Professor of Radiology, Post-Graduate Medical Institute and Services Hospital, Lahore as C.W.2 and Dr. Zahid Ahmad Khan, Senior Radiologist, Services Hospital, Lahore as C.W.3. The appellant produced in his defence Riasat Ali, Head Constable (D.W.1), Muhammad Sagheer, Record Keeper M.C.L. (D.W.2) and Mst. Sadia (D.W.3).
However, he did not opt to make statement under section 342(2), Cr.P.C. The learned trial Court after hearing arguments of the learned counsel for the parties has passed the impugned judgment of conviction and sentence. Hence these matters.
7. Learned counsel for the appellant contends that the appellant was 16/17 years of age according to Ulfat Hussain (P.W.9) when he was arrested. It is further contended that Dr. Zahid Ahmad Khan, C.W.3 gave an opinion that the age of the appellant was 17 to 22 years while Dr. Muhammad Nawaz Anjum C.W.2 also on the basis of ossification test came to the conclusion that the appellant was aged about 22 years with plus or minus one year hence the appellant at any rate was of youth age.
Who raised the specific plea to have committed this offence due to family honour as the deceased had developed illicit relations with Mst. Sadia (D.W.3) sister of the appellant and she was teased by him. It is next contended that even according to the news items published on the next day of the occurrence in the Daily Newspaper Nawa-i-Waqat mark "B", Jang mark "C" and Khabrain mark "D" this occurrence had taken place due to the family honour as the deceased had illicit relations with Mst. Sadia sister of the appellant. It is also contended that the motive could not be proved by the prosecution as Muhammad Sharif (P.W.4) father of the deceased who stated about the same during cross-examination admitted that at the time of earlier incident he was not present.
According to the learned counsel in the presence of the factors i,e, sudden flare up, non-proving of motive, youth age and defence plea the death sentence is not warranted, which may be reduced.
8. On the other hand learned counsel for the complainant opposes the appeal on the ground that the prosecution had been able to prove the case against the appellant beyond any shadow of doubt, who fired twice at the deceased and was more than 22 years but failed to produce any documentary evidence to prove him of tender age. It is also contended that the motive is even borne out from the record and the occurrence had not taken place due to family honour, which plea being afterthought is. Not believable as this was not the first version of the appellant raised before Ulfat Hussain A.S.-I. (P.W.9) at the time of his arrest. It is also contended that the deceased and the appellant were friends having family terms, who used to meet each other occasionally and family members of the appellant including Mst. Sadia and other women-folk had gone to Jalo Park with the deceased, hence there was no reason for commission of the murder by the appellant due to this reason as they had been meeting with each other even in the presence of the appellant and his father prior to the occurrence. It is also contended that the Press Clippings cannot be taken into consideration as piece of evidence. It is also contended that Mst. Sadia (.D.W.3) being sister to save the skin of the appellant has concocted false story which is not borne out from the record as the site plan Exh.P.G. Shows that there was no partition in the shop and no such obscene act could be committed in the open shop. It is lastly contended that both the eye-witnesses are natural witnesses, who have fully established their presence at the spot and their statements are further supported by the medical evidence which shows that it was a cold-blooded murder committed in a pre-planned manner, therefore, the sentence of death is liable to be confirmed.
9. Learned counsels for the State have supported the arguments of the learned counsel for the complainant.
10. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. The occurrence in the present case had taken place at 9-30 a.m. And according to the prosecution version F.I.R. Was lodged at 9-50 a.m., twenty minutes after the incident at the police station on the statement of Muhammad Sharif (P.W.4) in which the appellant was nominated to have fired twice at the deceased while coming at his shop. P.W.4 Muhammad Sharif and P.W.5 Muhammad Hafeez furnished the ocular account, who had no previous enmity or grudge to falsely implicate the appellant in the present case.
11. The place of occurrence, time of occurrence and commission of the offence with pistol by the appellant had not been denied by the appellant but he has taken the plea of grave and sudden provocation during the cross-examination on P.Ws.4 and 5 and also in his statement got recorded under section 342, Cr.P.C. When put in juxtaposition the defence plea is not borne out from the record as according to the version IA of the appellant at the time of incident her sister Mst. Sadia was also present at the spot, who was kissed by the deceased resulting into sudden provocation to the appellant but no injury was received by her in spite of that the appellant fired twice and according to Jhe site plan there was no partition in the shop, where the deceased had embraced her when the appellant arrived there and provoked. It has come on the record that both Mst. Sadia (.D.W.3) and deceased had been meeting with each other even prior to the occurrence with the consent of the appellant and other family members. Hence, we have no hesitation in holding that the prosecution has been able to bring home guilt to the appellant beyond any shadow of doubt.
12. So far as quantum of sentence is concerned, we have taken into consideration the factum of non-proving of the motive by the prosecution. To prove the motive only. Muhammad Sharif (P.W.4) father of the deceased was produced who during cross-examination admitted that he was not present at the time of incident alleged to be motive and no other person was produced. Hence we find that the prosecution has IC failed to prove the motive again the appellant.
13. The appellant is claimed to be minor at the time of incident, who according to Ulfat Hussain A.S.- I. (P.W.9) was about 16/17 years of age when he was arrested by the police. Then medical examination of the appellant was conducted by Dr. Zahid Ahmad Khan (C.W.3) who came to the conclusion on the basis of ossification test that the appellant was aged about 17 to 22 years but the second opinion was obtained by the police and Dr. Muhammad Nawaz Anjum (C.W.2) gave a different report that he was 22 years of age or above. However, no documentary evidence has been produced in support of the age of the appellant as a conclusive proof, hence we are not inclined to declare the appellant as juvenile but at the same time we cannot ignore the fact that the appellant was aged about 16/17 years according to (P.W.9) and he was also declared 17 to 22 years by (C.W.3) Dr. Zahid Ahmad Khan and (D.W.3) Mst. Sadia real sister of the appellant at the time of recording of her statement as D.W.3 on 21-3-2001 about 4-1/2 years after the incident claimed her to be 22 years of age. The accumulative effect of these facts are that the appellant was of youth age at, the time of incident.
14. We have also noticed that both the appellant and the deceased had friendship prior to the occurrence. We have disbelieved the motive and also rejected the defence plea. What had happened immediately before the occurrence resulting into commission of the same has remained in mystery. However, we cannot ignore that the appellant also produced in his defence the press clippings published in daily Nawa-iWaqat mark "B", Jang mark "C" and Khabrain mark "D" on the next day of occurrence. Though the defence had not produced Press Reporters, who got published these news items yet we have just a glance on these press clippings, which are to the effect that the occurrence had taken place due to suspicion that the deceased had illicit relations with Mst. Sadia sister of the appellant. The mother of the appellant also moved an application mark "A" to S.P. Cantt. On 3-9-1998 with the same plea that the deceased had developed illicit relations with Mst. Sadia, whose engagement with someone due to the illicit relations with Abbas deceased was broken, who was not subsequently engaged anywhere else and the appellant due to the family honour and "Ghairat" had committed the offence. The appellant has also taken the plea that his version was not correctly recorded by (P.W.9). Hence the possibility of commission of this occurrence due to family honour cannot be ruled out. The Supreme Court of Pakistan in Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 has held that "culpable homicide shall not amount to murder if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation. Supposing in a given case the condition of suddenness is not established but that of the provocation being grave is satisfied the accused shall not be entitled to the benefit under section 302, P.P.C. Might be given lesser sentence on account of one of the conditions of the exception having been satisfied. Similar example can be cited regarding Exception No,2 which relates to exceeding the right of private defence. In a given case if the conditions of Exception No,2 are satisfied the offence shall be altered to section 302, Part I, P.P.C. But in case some of the conditions are satisfied and the others are not satisfied, while maintaining the conviction under section 302, P.P.C. The sentence could be reduced to the lesser penalty. These principles could apply mutatis mutandis to the cases wherein an element or revenge is inherent in all these exceptions".
15. In the present case though the appellant has been able to prove that it was grave provocation but has not been able to prove that it was sudden.
' Following the above said dictum laid down by the august Supreme Court of Pakistan, the discretion can be exercised by reducing the sentence of death to imprisonment for life. Therefore, while maintaining conviction under section 302(b), P.P.C. We alter the death sentence awarded to the appellant by the learned trial Court to imprisonment for life with benefit of section 382-B, Cr.P.C.
The direction regarding payment of compensation or in default of payment thereof to further undergo S.I. For six months is maintained.
16. With the above modification in the quantum of sentence only, the impugned judgment is maintained and the appeal is dismissed. Consequently, Murder Reference No,289 of 2001 is replied in negative.