' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,1202 of 2000 filed by Niaz Muhammad, who was convicted and sentenced by the learned Sessions Judge, Mianwali, vide his judgment dated 29-7-2000 as under:-- ' Death with compensation of Rs,1,00,000 or in default six months' R.I. Under section 302(b), P.P.C.
Murder Reference No,541 of 2000 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Karim Dad-complainant are that on 20-10-1994 at 5:30 PM his brother Shah Nawaz and Muhammad Azam (cousin) were proceeding towards the house of Muhammad Khan (relative), who was employed in the Army to look after his house. They also took Saqib Nawaz aged 19/20 years, who was playing volleyball from the playground, with them. When they reached near the vacant plot of Aziz ud Din in front of the house of Salamat Ullah Khan, Niaz Muhammad, who was standing there armed with Chhurri, attacked upon Saqib Nawaz by raising Lalkara that he will teach lesson to Saqib Nawaz for his insult. After causing one Churri blow on the neck of Saqib Nawaz, Niaz Muhammad fled away from the spot. Saqib Nawaz succumbed to the injuries while he was on the way to hospital.
' The motive behind the occurrence was that 3/4 days prior to the occurrence Saqib Nawaz- deceased, who used to play volleyball, had exchanged abuses with Niaz Muhammad, as Niaz Muhammad used to hoot the players of volleyball and Saqib Nawaz asked the accused to restrain from his act. Niaz Muhammad threatened Saqib Nawas that he will take revenge for his insult.
2. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Mumtaz, S.I./P.W.14. He proceeded to THQ Hospital, Isakhel, where the dead body of Sagib Nawaz was lying. He took over the dead body, prepared injury statement EX. PF, inquest report Exh. PG and recorded the statements of the witnesses. Thereafter he proceeded to the spot and took into possession blood-stained earth from the spot vide memo Exh.PK. On 26-7-1999 Hashmat Ali, S.I./P.W.17 arrested Niaz Muhammad, who was proclaimed offender. At the time of arrest, Niaz Muhammad accused was in possession of pistol and one cartridge. Niaz Muhammad, while in custody, led to the recovery of blood-stained Churri P-4 from a box lying in his residential house, which was secured vide memo Exh.PO. After completion of investigation, the accused was sent up to face trial.
3. At the trial, the prosecution in order to prove its case produced 17 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PQ & Exh.PR and that of Serologist Exh.PS & Exh. PT and birth certificate of the accused Exh. PU closed its case. The appellant 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 recorded 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 P.Ws. 11 and 12 are related to the deceased as well as chance witnesses; that their presence at the time of occurrence is doubtful as none of them tried to save the life of the deceased nor their clothes were stained with blood nor they administered any first aid to the deceased after receipt of injury; that they could not reasonably explain their presence at the time of occurrence; that according to F.I.R. The deceased and the P.Ws were going to the house of Muhammad Khan but the house of Muhammad Khan has not been shown in the site plan; that there was no occasion for the deceased and the P.Ws. To go to the house of Muhammad Khan together, especially when the deceased was playing volleyball; the learned counsel while referring to the statement of P.W.6 argued that the body of deceased was not in the hospital at the time of reporting the matter to the police rather it was lifted from the spot where it was lying unattended; that mere ascendance would not be enough to warrant conviction of the appellant; that the learned trial Court has rightly disbelieved the recovery evidence; that no independent witness regarding the motive was produced during trial; that it is not in evidence that any altercation took place between the deceased and the appellant 3/4 days prior to the occurrence, while the witnesses were also present there; that factum of ascendance was not proved according to the judicial standard; that P.Ws. 11 and 12 have not been mentioned in the post-mortem report as well as in the inquest report and a different set of witnesses identified the dead body of Saqib Nawaz deceased at the time of post-mortem, which shows that both these witnesses were not present in the hospital; and that in any case it was not a case of capital punishment.
6. The learned counsel for the complainant has argued that P.Ws.11 and 12 gave consistent account of the occurrence, as they had no previous enmity or against the appellant so as to involve him in a false case; that it was a daylight murder and identification of the assailant was not in question; that the ocular account is supported by the factum of ascendance of the appellant; that the appellant deserves no leniency on the point of motive, as it has been held by the apex, Court that weakness or absence of motive would not be enough to record lesser punishment; and that the appellant caused injury on the vital part of the deceased, who was a young boy of 19/20 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 entire record carefully. The prosecution case revolves around the statements of Shah Nawaz P.W.11 and Muhammad Azam P.W.12 (Phopphizad of the deceased). It is true that both the P.Ws are related to the deceased but at the same hand their statements cannot be discarded merely on the basis of relationship. It is a case of single accused and daylight occurrence. Both the P.Ws had no previous enmity or ill will against the appellant, so as to involve him in a false case. Both the witnesses have given a very consistent account of the occurrence and have corroborated each other on almost all the material points and the objection of the learned counsel for the appellant that there was no occasion for the P.Ws and the deceased to go the house of Muhammad Khan has no force, as it is mentioned in the F.I.R. Itself that Muhammad Khan, who was related to the complainant party, was an army personnel and his house was looked after by the complainant party as per routine. The occurrence .Took place at 5-30 p.m., matter was reported to the police by Karim Dad-complainant within an hour and it is also noteworthy that Karim Dad-complainant never attempted to become an eye-witness. Minor discrepancies pointed out by the learned counsel for the appellant are of no consequence as the same crop up naturally when the evidence is recorded after delay of more than 51/2 years. The learned counsel has laid much stress on the statement of Sher Rasool, Constable/P.W.6, according to whom, the dead body was entrusted to him from the spot while according to prosecution case the dead body was lying in the Hospital when the matter was reported to the police. It is, at the most, a dishonest concession given by the Constable at the instance of defence, which is not supported by any other independent evidence. Hence is not worthy of consideration at all. Reliance is placed on the case of Muhammad Sharif v. Muhammad Javed alias Jedda alias Tedy (PLD 1976 SC 452).
9. The ocular account is fully supported by the medical evidence. It is also corroborated by the factum of ascendance of the appellant. The occurrence took place on 20-10-1994 while the appellant, who was proclaimed offender, was arrested by Hashmat Ali S.I./P.W.17 on 26-7-1999 after more than 41/2 years. To prove abscondence the prosecution has brought on record proclamation (Exh. PC) under section 87, Cr.P.C., report of the process server Exh.PC/1, application dated 17-11-1994 submitted by Muhammad Mumtaz Akbar, S.H.O., seeking issuance of non-bailable warrants of the appellant Exh. PM, another application Exh.PN dated 27-11-2004 submitted by the S.H.O. For initiation of proceedings under section 87, Cr.P.C. In addition to that Hashmat Ali, S.I./P.W.17 clearly stated that he arrested the appellant, who was proclaimed offender, on 26-7-1999. The appellant, who was resident of the same City, remained totally unable to explain his absence for such a long time.However, we agree with the findings of the learned trial Court qua recovery of blood-stained Chhurri as it was clearly a case of padding and nonsensical overplay on the part of P.W.17. In our opinion the prosecution has successfully proved its case against the appellant through ocular account, which is supported by medical evidence and corroborated by the abscondence of the appellant.
10. Having come to this conclusion we have given our serious thought to the quantum of sentence in the circumstances of the case. In our opinion it is not a case of capital sentence and following mitigating circumstances exist in favour of the appellant:--
(a) according to birth certificate Exh. PU, which was brought on record by the prosecution itself on 26-6-2000, the appellant was born on 4-4-1965 and was less than 20 years of age on the date of occurrence;
(b) no serious or enmity existed between the deceased and the appellant, who were almost of the same ages, prior to the occurrence;
(c) the motive as set down in the F.I.R. Was trivial in nature and was not supported by any independent evidence; and
(d) the appellant was not armed with any firearm and left the scene of occurrence after giving solitary blow with Chhurri on the person of the deceased.
11. In the above noted circumstances, while maintaining the conviction of the appellant for offence under section 302 (b) PPC we reduce his sentence to imprisonment for life. The amount of compensation inflicted by the trial Court is maintained with slight modification that in case of non- realization or non-payment of compensation the appellant would suffer six months' SA. Benefit of section 382-B, Cr.P.C., being mandatory, is extended to the appellant.
12. This appeal is disposed of with the above noted modification in the sentence. Murder Reference is answered in the negative and the death sentence is not confirmed.