Muhammad Alam Khan, J.--This criminal appeal is directed against the judgment dated 8/2/2007 passed by the learned Judge Juvenile Court Bannu, constituted by the Juvenile Justice System Ordinance 2000, whereby the appellant, Ibrar Khan, son of Wali Muhammad, has been convicted under Section 302(C) PPC and - sentenced to ten years simple imprisonment and to pay compensation to the tune of rupees one lac (Rs, 1,00,000/-) to the legal heirs of the deceased in terms of Section 544-A Cr.P.C. with benefit under Section 382-B Cr.P.C. The complainant, Farmanullah, is also aggrieved of the same judgment of the learned trial Judge by challenging it through Criminal Revision No, 16/2007 and has prayed for enhancement of the conviction and sentence so awarded to the appellant adequately. Since both these matters are the outcome of one and the same judgment, therefore, we propose to disposal it off through this common judgment.
2. The prosecution story as narrated by the complainant Farmanullah in his first information report lodged on 4/2/2005 at 1010 hours in Civil Hospital Bannu, in brief, is that he and his brother Shahidullah were studying in Class 10th A of Government Higher Secondary School Bannu, situated on Bannu-Dera road. On the fateful day, i,e, 2/2/2005 at 0930 hours, he and Shahidullah who was the Class Monitor alongwith other students were present in the Class room when during the Urdu period Ibrar Khan demanded the `Tamizi Topi' from his brother Shahidullah which at that time was taken by another student. (It is important to note that this Tamizi Topi, i,e, Cap, is issued to the student who go outside the Class with the permission of the Teacher or Class Monitor for easing himself or other urgent work). No sooner the Class Teacher went out of the Classroom, Ibrar started kicks and fists blows to Shahidullah on his scrotum region with which he was hit, fell to the ground and breathed his last while on way to the hospital. Motive for the offence was stated to be the refusal of said (Tamizi Topi' by the deceased to the accused. Case FIR No, 56 dated 4/2/2005 under Section. 302 PPC was accordingly registered in Police Station Saddar Bannu.
3. After completion of investigation, complete challan was put in Court against the accused where he was formally charged but he did not plead guilty and claimed trial. However, neither he produced any defence nor opted to be examined on oath under Section 340(2) Cr.P.C.
4. In order to prove its case, the prosecution examined twelve witnesses in all whereafter the case of the prosecution was closed. The learned trial Judge, after hearing learned counsel for the parties and evaluating the evidence brought on record .found the accused guilty of the offence and on conviction sentenced him as mentioned above. Hence this appeal by the convict Ibrar Khan and criminal revision by the complainant Farmanullah referred earlier.
5. Mr. Anwar-ul-Haq, learned counsel for the appellant, has vociferously argued that the impugned conviction and sentence awarded to the appellant by the learned trial Judge through his impugned judgment are not sustainable under the law, because the medical examination of the deceased has materially contradicted the ocular account of the complainant as there was no mark of violence on the body of the deceased. He urged that even no mark of redness around the scrotum region was found during the post-mortem examination of the deceased. He urged that even the cause of death was not clear. His contention was that there was no previous enmity in between the deceased and the convict/appellant; that none of the students of the class or Teachers of the School was examined in support of the prosecution version; that there was no motive for the occurrence to commit murder of the deceased. He argued that the appellant was charged out of jealousy as he was a Topmost student of the class as is evident from his academic record and, therefore, the prosecution case was full of doubts, contradictions and unreliable, benefit whereof deserved to have been extended to the appellant. It was urged that the solitary eye-witness/complainant of the case is closely related to the deceased being his real brother and, therefore, his evidence required strong corroboration which is lacking herein. The last limb of his arguments was that the deceased was suffering from, epilepsy and as per opinion of the doctor, he might have died of vasovagul shock and, therefore, the prosecution had not been able to prove its case against the convict/appellant beyond any shadow of reasonable doubt. In support of his contentions, reliance was placed on the case law reported as Saleh Muhammad Vs. The State (2006 Cr.L.J. 861), Noor Alam Vs. The State (NLR 2004 Criminal 96), Nazim Khan Vs. The State (NLR 2004 Criminal 409), Muhammad Fazil Vs. The State (NLR 2005 Criminal 469), Ahmed Nawaz Vs. The State (2004 Cr.L.J. 618), Fida Hussain etc. Vs. The State (2005 Cr.L.J. 602) and Nasrullah Vs. The State etc. (2005 Cr.L.J.609).
6. Mr. Farooq Khan Sokari, learned counsel representing the complainant while opposing the criminal appeal and supporting the criminal revision, however, hotly criticized the impugned judgment of conviction and prayed for enhancement of the sentence of imprisonment awarded to the convict/respondent by the learned trial Court to that of normal penalty of death with adequate compensation on the grounds; Firstly, that he is directly charged in the promptly lodged report of the complainant for committing murder of the deceased in a broad-day light with positive knowledge of the fact that kicks and blows to the scrotum region was fatal for killing the deceased; that he after committing the crime had remained fugitive from law for a sufficiently long and noticeable period with no plausible explanation; that it is a single accused case fully supported by the eye-witness account of the complainant whose evidence remained unshattered at the trial coupled with medical evidence and thus his accusation is fully proved; that the absence of motive was not fatal to the case of the prosecution; that there was no extenuating circumstances for awarding lesser punishment to the convict/appellant, who has done to death the deceased having the age of 17/18 years in a very gruesome and callous manner and that in peculiar facts and circumstances of the case, the appellant deserves the normal penalty of death and, therefore, the impugned judgment is liable to be struck down. In support of his contentions, reliance was placed on the judgments reported as Abdur Rauf Vs. The State (2003 SCM R 522), Khan alias Khani and another Vs: The State (2006 SCM R 1744), Nasir Shah Vs. The State (2006 SCM R 1796), Dilbar Masih Vs. The State (2006 SCM R 1801), Abdur Rauf Vs. The State and another (2003 SCM R 522), Muhammad Sharif Vs. Muhammad Aslam and another (2003 SCM R 528), Liaqat Ali and another Vs. The State (1998 P.Cr.LJ. 216), and Nazir Muhammad Vs. The State (2004 P.Cr.L.J. 1684).
7. The learned Deputy Advocate General appearing on behalf of the State has also opposed the criminal appeal of the convict/appellant on the grounds mentioned in the impugned judgment and supported the criminal revision of the complainant on almost the same points agitated by the learned counsel for the complainant.
8. We have heard learned counsel for the parties at a considerable length and gone through the record thread barely with their valuable assistance.
9. Admittedly, it is a case of single accused where the convict/appellant Ibrar Khan has been directly charged by the complainant Farmanullah for committing the murder of the deceased Shahidullah in a broad-day light by giving him blows with kicks and fists on his scrotum region. The complainant, deceased and the accused were class-fellows and all of them were present in the class-room on the eventual day. Thus their presence on the day of occurrence and the venue of crime has been duly established from the record. Although there was no previous enmity between the deceased and the accused, but the dispute over the `Tamizi Topi' between them, which was demanded by the accused from the deceased, was the immediate cause of action which took the life of the deceased by giving him kicks and fists blows on the sensitive part of his body. There is nothing on the record to show that the complainant had any grudge, previous motive or ill will with the accused for his false implication. The accusation is further proved by the ocular account of the complainant Farmanullah whose evidence remained unshattered throughout. The medical evidence also supports the prosecution version as the Medical Officer has opined the cause of death of the deceased as "Vasovagul shock" because' of kicks and fists blows received by him on the scrotum region. The argument of the learned counsel for the appellant that the deceased being an old patient of epilepsy might have died due to said disease is negated by the fact that there is even no clue on the record to show that the deceased was earlier suffering from epilepsy.
10.The authorities cited and relied upon by the learned counsel for the appellant and learned counsel for the complainant are not attracted to the case in hand, as the facts and circumstances given therein are quite distinguished and not identical to the facts and circumstances of the present case.
11. Consequently, for what has been discussed above, the prosecution had successfully proved its case under Section 302 (C) PPC against the -convict/appellant and correctly appraised the evidence brought on record to which no exception could be taken by this Court.
12.Likewise, since the appellant is a youngster and was studying in 10th class, there was no previous enmity between the parties and the occurrence had taken place at the spur of moment due to emotions, we feel that the punishment awarded to him by the learned trial Judge is adequate and reasonable and, therefore, there are no circumstances to enhance the same to the normal penalty of death.
13. Consequently, we do not find any substance either in the appeal or revision and, as such, both are dismissed.