' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,387 of 2002 filed by Imtiaz Ahmad alias Taji and Fayyaz Ahmad, who along with Riaz Ahmad and Muhammad Amin faced trial in case F.I.R. No,208, registered at Police Station Alipur Chatha, District Gujranwala,'on 22-7-1996, for offences under section 302/34, P.P.C., before learned Sessions Judge, Gujranwala, who after conclusion of trial, vide his judgment, dated 28-2-2002, while acquitting Riaz Ahmad and Muhammad Amin, convicted both the appellants under section 302(b), P.P.C. And sentenced them to death with compensation of Rs,3,00,000 each or in default six months' S.I. Each.
2. Murder Reference No,240 of 2002 for confirmation or otherwise of death sentence of appellants shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.A. Are that the complainant and his step- brother Muhammad Aslam being agriculturists did their jobs at the same Dera. On the fateful day at about 6-30 p.m. When the complainant was present along with his brother Muhammad Aslam, one Allah Ditta and Muhammad Akbar were present at the Dera, Fayyaz Ahmad and Mumtaz Ahmad alias Taji armed with Chhuris riding on a motorcycle reached the Dera. While Riaz Ahmad and Muhammad Amin armed with .12 bore guns were also coming towards Dera on foot. Fayyaz Ahmad and Mumtaz Ahmad launched attack on Muhammad Aslam. Fayyaz Ahmad gave a Chhuri blow which landed at the belly of Muhammad Aslam. Chhuri blow caused by Taji landed on the chest of Muhammad Aslam, who fell down. While Muhammad Aslam was lying on the ground, both the accused inflicted repeated blows with Chhuris and during this course Fayyaz Ahmad slaughtered Muhammad Aslam by his neck. When the complainant and the P. Ws. Tried to rescue Muhammad Aslam, Muhammad Riaz and Muhammad Amin extended threats, so the complainant in order to save his life ran away from the spot. The accused after full satisfaction that Muhammad Aslam is no more alive left the scene of occurrence.
4. The motive behind the occurrence was that two days prior to the occurrence there was a quarrel between Muhammad Aslam and Fayyaz Ahmad and Mumtaz Ahmad alias Taji. Muhammad Aslam reprimanded them for which they felt insulted in the village and due to said grievance the accused with consultation had committed the offence.
5. After registration of formal F.I.R., the investigation of the case was taken over by Fazal Hussain, S.- I./P.W.12. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.H. And inquest report Exh.P.J. He secured blood-stained earth from the spot vide memo. Exh.P.E. On 30-7-1996 he arrested Fayyaz Ahmad.Accused, who led to the recovery of blood- stained Chhuri P.2 from underneath the railway track on 31-7-1996, which was taken into possession vide memo. Exh.P.F. On 17-8-1996 he arrested Imtiaz Ahmad accused. After completion of investigation, the accused was sent up to face trial.
6. 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.M. And that of Serologist Exh.P.N. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. However, Muhammad Asif appeared as D.W.1. After conclusion of trial, the learned trial Court, while acquitting Riaz Ahmad and Muhammad Amin, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants at the very outset submits that he would not press for acquittal of the appellants and would pray for reduction of sentence alone. In support of his prayer the learned counsel has submitted that both the appellants were of tender age at the time of occurrence; that the prosecution miserably failed to prove the motive; that Fayyaz Ahmad was about 15 years of age at the time of occurrence while Imtiaz Ahmad was about 19 years of age; and that in his statement recorded under section 161, Cr.P.C. Anah Ditta did not specify the injury to either of the two appellants.
8. The learned Additional Prosecutor-General submits that as far as the conviction was being maintained he felt satisfied. However while conceding that Fayyaz Ahmad was juvenile at the time of occurrence, he submits that no mitigating circumstance exists in favour of Imtiaz Ahmad for reduction of sentence.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
10. The occurrence took place in the Dera of Allah Ditta P.W. At A 6-30 p.m. On 22-7-1996 when light was available. Both the appellants were known to the P.Ws. And their identity was not in question.
The presence of Allah Ditta and Muhammad Afzal stands plausibly explained. Both the witnesses had gone to their Dera as per routine in pursuit of their day to day jobs, like attending of land and taking care of cattle. It stands established that there were two wooden mangers in the Dera. One was used by Muhammad Aslam deceased while the other was used by Muhammad Afzal. Both of them had cattle has also been established. Allah Ditta P.W. Had gone to the Dera as per routine in the morning to look after his land and related affairs. Both these P.Ws. Were extensively cross- examined. They stood the acid test of cross-examination and intrinsic value of their evidence could not be shaken. Both the P.Ws. Have corroborated each other on all the material particulars of the case. From the evidence it appears that the deceased was taken by surprise by the appellants, therefore, he could not take any defensive action. According to evidence, both the appellants while entering Dera had hidden the Chhuris, so the P.Ws. Neither felt threatened nor sensed danger at the hands of the appellants. It is also in evidence that the P.Ws. Were quite at a distance from Aslam deceased and were attracted at the time when both the appellants had launched assault on the deceased with Chhuris and were causing injuries to him. Allah Ditta P.W. Was about 70/75 years of age having no previous enmity or against the appellants, so as to depose falsely against them.,The non-interference of the P.Ws. In order to save Muhammad Aslam is also understandable as Allah Ditta P.W. Was an old person of 70/75 years of age. Muhammad Akbar, who was not produced, was also an old person while the complainant sensing danger in order to save his life fled away.
Reaction of a person in such-like situations cannot be uniformed in nature and would vary from individual to individual. The statements of both the P.Ws. Are fully supported by the medical evidence, as the deceased received 16 injuries caused with sharp-edged weapon, which could not be caused by a single person of tender age. The direct evidence, which had come through natural source, is worthy of credence being consistent and coherent. It is also corroborated by the circumstances of the case.
11. Non-recovery of weapon from Imtiaz appellant and infirmity of evidence of the recovery at the instance of Fayyaz appellant would not weaken the prosecution case.
12. As far as the plea of alibi of Imtiaz is concerned, suffice it to say that in his statement recorded under section 342, Cr.P.C. He never mentioned that at the time of occurrence he was in the house of Mian Khan. In our considered opinion the prosecution has successfully proved its case against the appellant and the learned counsel for the appellants has rightly and wisely not pressed for acquittal.
12-A. Now coming to the sentence of Fayyaz Ahmad, it has been noticed by us that the learned trial Court while recording the statement of Fayyaz Ahmad appellant under section 342, Cr.P.C. Has mentioned his, age as 20 years. The statement was recorded on 30-1-2002. It means that at the time of occurrence, which took place on 22-7-1996, the appellant was hardly of 15 years of age. The age mentioned by the learned trial Court was never challenged by the prosecution. The Juvenile Justice System Ordinance, 2000 had come into existence before conclusion of trial. Hence, Fayyaz Ahmad appellant could not be deprived of benefit of provisions of the Ordinance. So in view of section 12 of the Juvenile Justice System Ordinance, 2000, while maintaining conviction we alter the sentence of Fayyaz Ahmad appellant to imprisonment for life.
13. So far as the sentence of Imtiaz Ahmad appellant is concerned, the learned trial Court on 30-1- 2002 recorded the age of Imtiaz Ahmad as 25 years, which means that he was about 19 years of age at the time of occurrence. According to statement of Allah Ditta recorded by the police under section 161, Cr.P.C. Exh.D.G., which is available at page 138 of the paper book, no specific injury was attributed to Imtiaz Ahmed appellant, while specific injury on the neck of the deceased was attributed to Fayyaz Ahmad. During trial Allah Ditta improved his statement by specifying that second blow was given by Imtiaz Ahmad, which hit on the chest of the deceased. He was duly confronted with his earlier statement (Exh.D.G.). According to prosecution case itself that due to conduct of the deceased the appellant felt humiliated in the eyes of co-villagers.
14. Considering the above noted facts and circumstances of the case, while maintaining conviction we reduce the sentence of Imtiaz Ahmad as well to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to both the appellants.
15. This appeal is partly allowed. Murder Reference is answered in the negative. The sentences of death are not confirmed.