1. ' BASHIR A. MUJAHID, J.--Bakhtawar alias Bakhu son of Muhammad Yar and Afzaal Shah alias Phalay Shah son of Hassan Shah, after having been tried by the learned Additional Sessions Judge, Okara under section 302/34, P.P.C. In case F.I.R. No. 483 of 1996, dated 1-12-1996 registered at Police Station Basirpur, Okara for murder of Muhammad Afzal alias Kali, vide the impugned judgment, dated 6-11-2000, were convicted and sentenced as under:-- ' Bakhtawar alias Bakhu sentenced to death under section 302(b), P.P.C. He was also ordered to pay compensation of Rs.50,000 under section 544-A, Cr.P,C. To the legal heirs of the deceased, in default thereof to undergo six months' S.I.
2. ' Afzaal Shah alias Phalay Shah sentenced to imprisonment for life under section 302(b), P.P.C. He was also ordered to pay compensation of Rs.50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default thereof to undergo six months' S.I.
3. ' The brief facts of the case are that F.I.R. Exh.PD was got registered by Muhammad Amin, P.W.S. At Police Station Basirpur at 2 a.m. On 1-12-1996 about the occurrence which took place at 8-30 p.m.
4. On 30-11-1996 alleging therein that on the day of occurrence at 8 p.m. The complainant was present at his shop along with Riaz Ahmad, P.W.6., and Muhammad Sarwar Shah and watching Television. Meanwhile, the appellants arrived there and they took Muhammad Afzal alias Kali (deceased) in order to have important conversation. The complainant after 15/20 minutes, when the deceased did not return became worried as some dispute had taken place between Muhammad Afzal alias Kali and Bakhtawar alias Bakhu prior to the occurrence. The complainant along with Muhammad Sarwar Shah and Riaz Ahmad, P.W.6 went in search of the deceased towards the graveyard situated at Hujra Shah Muqeem Road. When at about 8-30 p.m. They reached near the graveyard, they heard the hue and cry and saw in the torch light accused Bkahtawar was causing injuries on the person of the deceased with sota and caused three successive injuries on the head of Muhammad Afzal alias Kali while Afzaal Shah inflicted churri blow on the mouth of the deceased, who fell on the ground. The P.Ws. Did not come near due to fear of the accused. The accused fled away from the spot.
5. ' The motive behind the occurrence was that Nusrat Bibi resident of the village had illicit relations with Bakhtawar and Muhammad Afzal alias Kali also developed illicit relations with her and she refused to meet Bakhtawar appellant and there was a quarrel between the deceased and the appellant Bakhtawar.
6. ' After registration of the case Abdul Haq, S.H.O., Police Station Basirpur P.W.9 undertook the investigation and arrived at the spot, took into possession the dead body, prepared the injuries statement through memo. Exh.PI and inquest report Exh.PJ, and dispatched the dead body for post-mortem examination through Muhammad Ramzan and Muhammad Ashraf, FCs. He also secured blood-stained earth from the spot through memo. Exh.PE and a muffler P4 through memo.
7. Exh.PF. After post-mortem examination he took into possession last worn clothes of the deceased produced before him. Thereafter, the investigation of the case was entrusted to Mumzaffar Ali Shah Inspector, P.W.10. On 10-1-1996 he arrested Bakhtawar appellant who while in police custody led to the recovery of sota P.S. Which was taken into possession through memo. Exh.PG. On 10-3-1996 he arrested Afzaal Shah appellant who while in police custody led to the recovery of churri P.6. Which was taken into possession through memo. Exh.PH. After completion of investigation challan of the case was submitted in Court.
8. ' The trial Court framed the charge which was denied by the accused and they claimed trial.
9. ' The prosecution examined as many as 10 witnesses to prove the guilt of the accused.
10. ' The medical evidence was, furnished by Dr. Muhammad Sharif, P.W.1 who on 1-12-1996 at 3-30 p.m.
11. Conducted the post-mortem examination on the dead body of Muhammad Afzal alias Kali and found the following injuries on his body:---
(1) A lacerated wound 3 x 1 c.m. x cut through at mid of left ear pinna.
(2) Contused swelling 13 x 9 c.m. At left cheek.
(3) A lacerated wound 2 x 1 c.m. x muscle deep at the outer angle of left side of mouth.
(4) A lacerated wound 2 x 1 c.m. x bone deep with fracturing of left side of upper jaw and the left first and second incisor teeth were absent from their sockets.
(5) A lacerated wound 1 1/2 x 1 c.m. At inner and left side of upper lip.
(6) Contused swelling 7 x 5 c.m. At right eye.
(7) Contusing 6 x 5 c.m. At bridge of nose bony crepts present and nasal bone was fractured.
(8) Contusion 14 x 5 c.m. At left side of forehead with the depressed area 10 x 4 c.m.
(9) Contusion 7 x 5 c.m. At right temporal area.
12. ' The ocular account was furnished by Muhammad Amin, P.W.5. Who was paternal uncle of the deceased. He supported the version of the F.I.R. And narrated motive for the occurrence. Riaz Ahmad, P.W.6. Was `Phupha' of the deceased, he supported the prosecution story as narrated by the complainant.
13. ' Khadim Hussain GC, P.W.2 kept the sealed parcel of blood stained earth for safe custody in police Malkhana. Anwar Ali Patwari, P.W.4 prepared the site-plan Exh.P.C. Of the place of occurrence. Yasin, P.W.7 attested recovery memo. Exh.PG whereby sota P.5 was got recovered by Bakhtawar, appellant Khadim Hussain F.C., P.W.8 delivered the sealed parcel of blood-stained earth at the office of Chemical examiner.
14. ' After closing of the prosecution evidence statements of the appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement.
15. ' The trial culminated into conviction and sentence of the appellants as mentioned above.
16. Bakhtawar alias Bakhu has filed Criminal Appeal No. 278-J of 2000 while Afzaal Shah alias Phalay has filed Criminal Appeal No.1737 of 2000 against their conviction and sentence. The trial Court has sent up Murder Reference No. 769 of 2000 for confirmation of death sentence of Bakhtawar, appellant under section 374, Cr.P.C. All the matters are out come of the same judgment, therefore, are being decided by this single judgment.
17. ' Learned counsel for the appellants and for the State have been heard exhaustively and record has been thrashed out.
18. We find that Bakhtawar alias Bakhu, appellant was armed with sota and he caused fatal injuries to the deceased. The ocular account furnished by complainant Muhammad Amin, P.W.S. And Riaz Ahmad, P.W.6 has been fully corroborated by medical evidence. The weapon of offence was also recovered from his possession. The P.Ws and the appellants are resident of the same locality and knew each other, therefore, question of mistaken identity does not arise. The P.Ws. Have no previous enmity for false implication by letting of real culprit, therefore, the prosecution case has been established against him and we do not find any force in his appeal warranting interference in the A conviction recorded against him.
19. ' Regarding the sentence of Bakhtawar alias Bakhu admittedly his age as per his statement under section 342, Cr.P.0 was 15 years while according to the police record he was aged 15/16 years. He being minor and following the principle laid down in 2003 SCM R 608 (Amanat Ali v. Nazim Ali and another), we reduce his sentence from death to imprisonment for life with benefit of section 382-B, Cr.P.C. The punishment of compensation awarded by the trial Court is, however, maintained. His appeal (Criminal Appeal No.278-J/2000) stands dismissed with the above modification.
20. As far as case of Afzaal Shah alias Phalay Shah, appellant is concerned, although he was stated to be armed with churri, but no sharp weapon injury was noticed by the doctor at the deceased.
21. Muhammad Amin complainant, P.W.5 and Riaz Ahmad, P.W.6 improved their statements during the trial by stating that Afzaal Shah caused churri blows from the side of its handle which shows that they made dishonest improvement to bring the case in accord with medical evidence. The doctor had not found the sign of strangulation at the deceased as alleged by the P.Ws., therefore, in safe administration of justice, we extend the benefit of doubt towards him and allow his appeal (Criminal Appeal No.1737 of 2000), set aside his conviction and sentence and acquit him of the charge. He is ordered to be released forthwith if not required to be detained in any other case.
22. ' Murder Reference No.769 of 2000 is answered in the Negative.