' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,99 of 2002 filed by Irfan Khan alias Fani, who faced trial in case F.I.R. No,251, registered at Police Station Sahiwal, District Sargodha, on 17-9-1998, for offences under sections 302/109, P.P.C., before learned Additional Sessions Judge, Sargodha, who after concluding the trial, vide his judgment, dated 26-1- 2002 convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,50,000 or in default six months' S.I.
2. Murder Reference No,76 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.F. Lodged by Khalid Hayat Khan complainant are that Muhammad Idrees Khan, his brother-in-law, was resident of Sahiwal and cultivated fodder crop in the land of the complainant. On the fateful day i.e. 17-9-1998 Muhammad Idrees Khan came to the house of the complainant and Muhammad Aslam had already come there. The complainant along with Muhammad Idrees and Muhammad Aslam left for Sahiwal. While they were on the way near the sugarcane crop of Munir Jhujh, Irfan Khan alias Fani armed with .12 bore gun emerged from the fields and raised Lalkara that he had come to take revenge of murder of Zahoor Khan and causing injuries to Iftikhar Khan. He fired at Muhammad Idrees, which hit on the right side of his chest. His second fire hit Muhammad Idrees on the left side of his chest.
Muhammad Idrees fell down. Thereafter Irfan again fired two successive shots, which landed on the right arm, neck and back of Muhammad Idrees and fled away from the spot. Muhammad Idrees succumbed to the injuries at the spot.
4. The motive behind the occurrence was that Muhammad Idrees had come after serving life imprisonment in the murder case of Zahoor Khan and injures to Iftikhar Khan, uncle and father of Irfan Khan respectively, and for this revenge Irfan Khan committed the offence. It is also stated in the F.I.R. That just after the occurrence the complainant was told by Mumtaz Khan and Muhammad Iqbal P.Ws. That Mazhar Hussain, Munir Khan, Ramzan Khan alias Ghulam Raza Khan at 9-00 a.m.
On 17-9-1998 at Adda Aaroowala were instigating Irfan to commit the murder of Muhammad Idrees. So Irfan Khan had committed the offence at their instance.
5. After registration of formal F.I.R., the investigation of the case was taken over by Ghulam Rasool, S.-I./P.W.11. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.H. And inquest report Exh.P.I. He secured bloodstained earth from the spot vide memo. Exh.P.C. He also took into possession four empty cartridges P.1/1-4 vide memo. Exh.P.D. On 29-8-1998 he arrested Irfan Khan alias Fani, who led to the recovery of .12 bore gun P.3 from his residential house, which was taken into possession vide memo. Exh.P.E. After completion of investigation, while placing Mazhar Hussain, Munir Khan and Ramzan Khan in column No,2 of report under section 173, Cr.P.C. The accused were 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.J., Serologist Exh.P.K.
And that of Forensic Science Laboratory Exh.P.L. Closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He has also taken plea of his being tender age at the time of occurrence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above, while Mazhar Hussain and Ramzan Khan alias Ghulam Raza Khan were declared proclaimed offenders and Munir Khan died during pendency of the case.
7. The learned counsel for the appellant at the very outset submits that instead of pressing for acquittal of appellant he would pray for reduction of sentence on the grounds that the appellant was of impressionable age at the time of commission of offence; that according to prosecution case itself the appellant acted under the influence of his elders and that earlier to this occurrence the appellant's father was injured by the deceased of this case, while his grand-father was murdered.
8. The learned Additional Prosecutor-General has not opposed the proposition as the conviction was being maintained.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. In order to prove its case the prosecution produced Khalid Hayat Khan P.W.7 and Muhammad Amir Khan P.W.B. Both the witnesses are related to the deceased and admit their enmity with the appellant over previous murder. However, mere enmity would not be enough to discard the statements of these witnesses if their statements rang true, wcrc natural, coherent and their presence at the spot was established.
10. In the instant case the occurrence took place at 11-30 a.m. While the matter was reported to the police at police station at 12-00 noon within half an hour. The distance between the spot and the police station was 4 Kms. F.I.R. Was lodged promptly, which rules out the possibility of fabrication. In case the complainant had not been present the matter could not be reported to the police within half an hour. The name of Muhammad Amir Khan is mentioned in the F.I.R. And his statement was also recorded soon after registration of the case. Khalid Hayat Khan and Muhammad Amir Khan both were cross-examined at depth but the intrinsic value of their evidence could not be shaken.
Both of them have corroborated each other on all the material particulars of the case relating to the appellant. There statements are fully supported by the medical evidence and corroborated by the circumstances of the case like promptly lodged F.I.R. And conduction of post-mortem on the same within 4-1/2 hours after registration of case. The motive, which was not seriously challenged, also stands proved. In addition to that the empties recovered from the spot wedded with the weapon used by the appellant. In these circumstances, we are of the opinion that the prosecution has proved its case against the appellant successfully and the learned counsel - for the appellant has very wisely not pressed for acquittal of Irfan Khan-appellant.
11. Having come to this conclusion we have attended to the prayer of the learned counsel for the appellant that it was not a case of capital punishment.
12. In the instant case the question of age of the appellant was hotly contested between the parties.
The appellant claimed to be about 16-1/2 years old at the time of occurrence and relied upon his birth certificate and school leaving certificate, while according to prosecution he was more than 18 years of age and at the insistence of prosecution the appellant was got examined by a Medical Board to determine his age. Dr. Muhammad Saeed Kuma/P.W.12, who was member of the Board, appeared before the learned trial Court. According to his statement, the appellant was examined by the Board on 9-4-2001 andaccording to opinion of the Board the age of the appellant at the time of examination was about 25 years. Even according to the opinion of the Board the appellant was about 22 years of age at the time of occurrence. Father of the appellant was wounded in year 1981 and right from childhood the appellant must have been listening about the incident. We would like to reproduce here the observation of the Honourable Supreme Court made in the case of Ajun Shah v. The State PLD 1967 SC 185 that "Since he was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a Tonga he lost his balance of mind." It was further observed that "A man is after all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty." In this case the sentence was reduced to life imprisonment.
13. It has been noticed by us that in year 1981 Zahoor Khan a relative of the appellant was murdered, while Iftikhar Khan father of the appellant also received injuries at the hands of Muhammad Idrees deceased and Amir Khan P.W. The father of appellant was subsequently murdered. Idrees deceased and Amir Khan had recently been released after completion of their sentence. It was stated in the F.I.R. That Munir Khan, Ramzan and Mazhar directed Irfan-appellant to commit the murder of Idrees. Munir and Ramzan co-accused are real paternal uncles of the appellant while Mazhar co-accused was cousin of the deceased father of Irfan-appellant. After death of his father Irfan was under the influence of his real uncles.
14. Khalid Hayat Khan-complainant, who appeared as P.W.7, stated before the learned trial Court that according to his case Munir, Ramzan and Mazhar influenced the appellant to commit the murder of the deceased. He reiterated that according to his case the appellant committed the murder under the influence of Munir, Ramzan and Mazhar accused persons. As already noted above Munir and Ramzan co-accused were real uncles of the appellant, whose father was murdered in year 1985 and hence the influence of the uncles over the appellant cannot be denied.
15. In the above noted circumstances of the case we place reliance on the case of Khuda Yar and 2 others v. The State and others 1992 SCM R 357, wherein the apex Court observed that "acting of accused under the influence of his elder is a mitigating circumstance of awarding lesser punishment." In the case of Muhammad Din v. The State 1985 SCM R 625 the Honourable Supreme Court reduced the sentence to life imprisonment after observing that "accused on account of inexperience and young age acted in an emotional manner to take upon himself indiscretion of taking revenge for murder of his uncle with which cousin of deceased was charged---Ends of justice, held, would be fully met if accused was awarded lesser penalty provided by law--- Sentence of death was, therefore, altered to one of imprisonment of life". The above noted view was followed by the Supreme Court in the cases of Faqir Hussain v. The State 2003 SCM R 1565, Mehmood Rashid and others v. The State 2003 SCM R 581 and Muhammad Latif v. The State PLD 2006 SC 273.
16. The upshot of the above discussion is that while maintaining conviction of the appellant for offence under section 302(b), P.P.C. We reduce his sentence to imprisonment for life. Benefit of section 382-B, Cr P.C. Is extended to the appellant. Order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained.
17. With the above modification in sentence, this appeal is partly allowed. Murder Reference is answered in the negative. Death sentence is not confirmed.