' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 22-12-2003 passed by the learned Additional Session Judge, Gujranwala (as Juvenile Court constituted under the Juvenile Justice Systems Ordinance, 2000) whereby, after having tried the appellant, he was convicted and sentenced under section 302(b), P.P.C. And sentenced him to imprisonment for life with a further direction to pay a compensation of Rs,2,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo S.-I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Brief facts of the case, as given by the complainant Khalil Ahmad (P.W.9) in the F.I.R., are that on the fateful day and time he went to see his deceased son Shabbir in the factory of Asif Warriach where Boota and Aslam P.Ws. Were already present, he saw the deceased and appellant quarrelling with each other, then appellant inflicted a dagger blow on his chest, he along with the P.Ws. Tried to apprehend the accused but he decamped from the spot, due to his precarious condition the injured was referred to Lahore but he succumbed to the injury and motive stated was due to a previous quarrel between both of them the occurrence had taken place.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial where, the prosecution, in order to prove its case against the accused, produced thirteen witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that the appellant has falsely been implicated in this case; that complainant is father while P.Ws. Boota is brother-in-law of the deceased; that they were not present at the place of occurrence; that the appellant was seven years of age while deceased was 21 years; that there was no background of enmity; that it is not a case under section 302(b) and is of under section 302(b), P.P.C. And that he is entitled to acquittal.
5. On the other hand, learned counsel for the State submits that both the eyewitnesses have supported the prosecution-- case; that the ocular account is corroborated by the medical evidence; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence had taken place on 28-1-2003 at 2-45 p.m., the matter was reported to the police on 29-1-2003 at 3-00 a.m. And distance between the place of occurrence and the police station is one kilometer. After the occurrence, the deceased, due to his precarious condition, was taken to Mayo Hospital, Lahore but he died. The prosecution to prove its case produced Khalil Ahmad (P.W.9). Although he is closely related to the deceased i.e,, father yet he has no enmity or strong motive to falsely implicate the appellant in this case. Moreso, it is rare phenomenon that a real father of the deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence and .I see no reason not to accept his statement. Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony. There is yet another eye-witness of the case, namely, Muhammad Boota (P.W.8) who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main point.
Although he is also brother-in-law of the deceased yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court seems his testimony to be worthy of credence. The appellant is the single accused in this case. Both the eye-witnesses, although are related to the deceased yet they cannot be termed as interested and chance witnesses because there is no background or enmity between both the parties. In the case of Mst. Dur Naz and another v. Yousuf and another (2005 SCM R 1906), delivered on 25th April, 2005, the august Supreme Court of Pakistan while setting aside judgment of acquittal of the learned High Court and while maintaining the sentence of death awarded to .The respondent in the said case by the learned trial Court and while dilating upon the questions of interested and chance witnesses coupled of specific defence plea taken by the accused during the trial, at page 1911, observed as under:-- ' None of the eye-witnesses have stated that it was by chance that they came at the place of occurrence incidentally but on the contrary complainant Maula Bux and all other eye-witnesses have categorically stated during trial that on the day of incident they left their village together and went to Nawabshah for some private work and it was within their sight respondent Yousaf fired at the deceased. Accordingly, we are of the considered opinion that above mentioned witnesses are not chance witnesses but are natural witnesses of the incident which is sufficiently established on record. A chance witness is one who appears at the place of occurrence incidentally as per chance. This Court in the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89) while discussing about chance witnesses has held that when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time or there is otherwise any inherent weakness or contradiction in their testimony.
' It has been held that it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party. Such tendency, though important, has taken note of in a number of cases and condoned in view of the particular conditions prevailing in the country. The same view has also taken not of by this Court in the case of Alam Khan and another v. The State (1976 SCM R 128) "
(Emphasis supplied).
' Apart from the above, the ocular account is corroborated by the medical evidence. The stand taken by the appellant in his statement recorded under section 342, Cr.P.C. In answer to Question No,7 that the deceased tried to commit sodomy with him and the dagger incidentally hit the deceased in his chest, is not plausible. Under Article 121 of the Qanun-e-Shahadat Order, 1984 when an accused takes a specific plea to bring his case within exceptions, then the onus lies on him to prove the same but the appellant has failed to discharge the said onus. Article 121 ibid reads as under:-- "121. Burden of proving that case of accused comes within exception---When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code Act (XLV of 1860), or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution had proved its case against the appellant beyond a shadow of doubt to sustain conviction against the appellant. The learned trial Court has delivered a well-reasoned judgment to convict the appellant which does not call for interference by this Court in the appellant jurisdiction. No question of further leniency arises because the appellant, being juvenile, has already been awarded lesser sentence after having invoked the relevant provisions of the Justice Systems Ordinance, 2000 by the learned trial Court, resultantly, this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned trial Court vide the impugned judgment, in toto.