' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,1671 of 2001 filed by Rashid, who was convicted and sentenced by the learned Additional Sessions Judge, Faisalabad, vide his judgment, dated 18-10-2001 as under:-- ' Death with compensation of Rs,20,000 or in default six months' S.I. Under section 302(b), P.P.C.
' Murder Reference No,776 of 2001 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.
2. Brief facts of the case, as narrated in F.I.R. Exh.P.F./1, are that on 28-7-1999 Muhammad Tufail real brother of the complainant passed away. Qulkhawani held on 29-7-1999 and attended by the relatives in large number. Khushi Muhammad son of Sher Muhammad had come from Liaqatpur District Rahim Yar Khan. Muhammad Hafeez, Saqib Waheed sons of the complainant and Nazir Ahmad went to General Bus-stand, Dijkot, on their cycles to bid farewell to Khushi Muhammad.
After getting a bus for him Muhammad Hafeez, Saqib Waheed and Nazir Ahmad were returning on their cycles at 10-30 p.m. All the three reached the graveyard of Lumman Pind Bypass, when all 9f a sudden Rashid emerged from sugarcane field. He was armed with .30 bore pistol and raised Lalkara for teaching a lesson to Hafeez for insulting him. Upon this all the three speeded up their cycles. In the meantime, Rashid fired at Hafeez, who was legging behind of them, which hit on the left side of his waist, as a result whereon Muhammad Hafeez fell down and died at the spot.
Thereafter Rashid fled away from the scene of occurrence, while extending threats and brandishing his pistol. It is also added in the F.I.R. That Nazir and Saqib identified the accused in the street light and Rashid had committed the murder of Muhammad Hafeez on the abetment of Muhammad Ashraf.
' It is pertinent to note here that Muhammad Ashraf real brother of the appellant, who was implicated in this case as abettor, died before commencement of trial.
' The motive behind the occurrence was that a few days back Hafeez and Rashid had a brawl and exchange of invectives inter se, while bathing in the canal, thereafter Rashid extended threats that it would not bear good result for him and as he found opportunity, he killed Muhammad Hafeez.
3. After registration of formal F.I.R., the investigation of the case was taken over by Zafar Abbas, S.- I./P.W.12. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.C./2 and inquest report Exh.P.C./3. He took into possession blood-stained earth from the spot vide memo. Exh.P.E. He collected crime-empties from the spot and took the same into possession vide memo. Exh.P.D. He also secured bicycle P.3 vide memo. Exh.P.F. On 5-8-1999 he arrested Rashid appellant and recovered .30 bore pistol P.4 and six bullets P.5/1-6 from his possession and secured the same vide memo. Exh.P.G. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.J. And that of Serologist Exh.P.J./1 closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that it was a night time's occurrence; that there was no source of light and the prosecution could not explain as to how the assailant was identified; that the prosecution case rests upon the sole testimony of Nazir Ahmad P.W.9, who was cousin of the deceased; that for unknown reasons Saqib Waheed, real brother of the deceased, was given up by stating that he was not a necessary witness; that the prosecution has miserably failed to prove its case; that the mere fact that Muhammad Ashraf brother of the appellant was implicated in this case as abettor, belies the story of motive; that the recoveries were fake and were planted, and the prosecution could not prove the recoveries to the judicial satisfaction; that D.W.1, who is police constable, was an independent witness and his testimony found support from the statement of the Investigating Officer; that after going through the evidence it appears that it was an unwitnessed occurrence; and that the prosecution case was not free from doubts.
6. The learned counsel for the complainant has argued that D.W.1 Ali Asghar, constable, was a won- over witness and his statement does not find support from the circumstances of the case. He has referred to the fact that according to D.W.1 when he attended to the deceased he was lying unconscious and then he took the injured to the hospital, while according to the doctor, Muhammad Hafeez lost his life within five minutes after receipt of injuries. Further submits that the Investigating Officer had been dishonestly giving concession to the appellant during cross- examination and said concession could not benefit the appellant at all; that it is quality of the evidence which is to be considered and not the quantity; that Nazir Ahmad had no previous or grudge against the appellant to depose falsely against him; that Nazir Ahmad was a natural witness as he had accompanied the deceased; that it was not necessary for the prosecution to produce all the witnesses; that the ocular account is fully supported by the medical evidence as well as corroborated by the recovery of weapon and empty from the spot, which tallied with the recovered weapon; and that the appellant did not deserve any leniency as he took the life of a young boy of 22 years.
7. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at length and gone through the record. The sole eye-witness produced by the prosecution is Nazir Ahmad P.W.9 (cousin of the deceased), whose house was at a distance of 2-1/2 Kms. From the place of occurrence. However, it is in evidence that Muhammad Tufail, brother of the complainant, died on 28-7-1999 and his Qullkhawani was held on 29-7-1999, which was attended to by many of, the relatives. Nazir Ahmad P.W., Muhammad Hafeez deceased and his brother Saqib went to Adda Larian, Dajkot, to say goodbye to Khushi Muhammad, who was going back to his house situated in Liaqatpur. All the three were returning from the Bus-stand on cycles, when they were surprised by the appellant, who fired at the deceased. In these circumstances, it cannot be said that Nazir Ahmad was a chance witness, who could not be present at the time of occurrence.
9. The argument of the learned counsel for the appellant that the culprit could not be identified as the occurrence took place at 10-30 p.m. During night and no source of light was available, is devoid of any force. It is mentioned in F.I.R. Itself that the appellant was identified in the street light. The occurrence took place on the road and perusal of the site plan Exh.P.B. Reveals that just across the place of occurrence, street light was available on point No,4. The appellant was previously known to the P. Ws. Thus, he could easily be identified.
10. The learned counsel for the appellant has vehemently argued that the statement of Nazir Ahmad remained uncorroborated by any other P.W. And according to him for mala fide reasons Saqib Waheed, brother of the deceased, who allegedly was along with him, was not produced, has also no substance for the reasons, firstly that it is not necessary for the prosecution to produce each and every witness and secondly it is the quality of evidence which matters and not quantity of evidence. In the instant case Nazir Ahmad has given a straightforward account of the occurrence. His statement is confidence-inspiring and worthy of trust. No or previous enmity existed between Nazir Ahmad and the appellant, so as to involve the appellant in a false case. Nazir Ahmad has successfully stood the acid test of cross-examination. The statement of Nazir Ahmad is fully supported by the medical evidence and is also corroborated by the factum of matching of empty recovered from the spot with the weapon recovered from the possession of the appellant.
11. The learned counsel has referred to the statement of Irshad Ahmad/P.W.1 and Muhammad Arshad/P.W.6 and submitted that the prosecution has failed to prove that the crime-empty was sent to Forensic Science Laboratory but the fact remains that according to the report of Forensic Science Laboratory (Exh.P.K.), which is per se admissible in evidence, the empty was received on 3- 8-1999, while the pistol was received on 18-8-1999. The report further reveals that the empty wedded with the pistol recovered. It is very significant that the empty and the recovered weapon were not sent together. According to unchallenged evidence the appellant was arrested on 5-8- 1999 while the empty was received at the office of Forensic Science Laboratory on 3-8-1999. No objection was levelled against the report of Forensic Science Laboratory, which was per se admissible in evidence. The appellant never requested the learned trial Court to summon and examine the person by whom the report was prepared. Hence the recovery provides corroborative evidence.
12. As far as the argument of the learned counsel for the appellant that the empty was not mentioned in the inquest report is concerned, it is negligence on the part of the Investigating Officer and the prosecution would not suffer for the same.
13. The appellant took the plea that it was an unwitnessed occurrence, which took place in the dark of night. In support thereof he produced Ali Asghar, Constable No,977, Police Station Dajkot, as.
D.W.1. This witness stated that he and Muhammad Afzal, Constable, while on patrol duty spotted a person lying on the road near Graveyard More, who was unconscious and in injured condition. He stayed with the dead body while Muhammad Afzal, constable was sent to Chak to inform the inhabitants about the incident. After some time Muhammad Afzal returned with Muhammad Ashraf, Councillor (brother of the appellant) and thereafter a Pick-up was arranged and the said person was shifted to Dajkot Hospital. The statement of D.W.1 is not worthy of any credence for the following reasons, that:--
(i) he never mentioned the name of the person, who was lying unconscious in his examination-in- chief;
(ii) according to him Muhammad Afzal, constable, returned with Muhammad Ashraf, Councillor, still the injured person could not be identified although Muhammad Ashraf very well knew the deceased;
(iii) Muhammad Afzal, constable, was never produced;
(iv) he admitted that he did not join the investigation and also he did not know the name of Thanedar, who registered the case;
(v) Dr. Liaqat Ali Chaudhry, who conducted the post-mortem examination on the dead body of Muhammad Hafeez has stated that the dead body was brought by Liaqat Ali constable and not by Ali Asghar, D.W.1 or his companion Muhammad Afzal, constable, and the dead body was identified by Muhammad Abbas and not by Muhammad Ashraf Councillor; and
(vi) According to the opinion of doctor, the deceased, who had received injury on his back, died within five minutes, while according to this D.W. He remained unconscious and alive for considerable time.
14. The argument of the learned counsel for the appellant that it was admitted by the Investigating Officer that Muhammad Hussain, Tracker, was summoned, which meant that the culprit was not known, also lacks force, as the Investigating Officer explained that Muhammad Hussain was a police employee and was meant for chasing the footprints. It makes it clear that the tracker was summoned in order to chase the culprit and to arrest him.
15. In the above noted circumstances, we have concluded that the prosecution has successfully proved its case against the appellant.##TE#
16. Having come to this conclusion, we have given our anxious and considerate thought to the quantum of sentence in the instant case. It has been noticed by us that statement under section 342, Cr.P.C. Of the appellant was recorded on 29-9-2001. In his statement his age has, been given as 22 years. The occurrence took place on 29-7-1999, which means that the appellant was less than 18 years on the date of occurrence. The age of the appellant mentioned in the above noted statement was not challenged at all by the prosecution. The case of the appellant is covered by the provisions of Juvenile Justice System Ordinance, 2000, thus, death penalty could not be inflicted upon him. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we alter his sentence to imprisonment for life, as the same would meet the ends of justice in the circumstances of the case. The order of the learned trial Court relating to compensation is maintained. Benefit of section 382-B, Cr.P.C. Is extended to the appellant.
17. With the above modification in sentence, this appeal is dismissed. Murder Reference is answered in the negative. Death sentence is not confirmed. /sentence altered.