' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No, 88-J- 1999 as well as Murder Reference No,248 of 1999, both arising out of the judgment, dated 15-6-1999, passed by the learned Additional Sessions Judge, Faisalabad whereby he had convicted the accused/ appellant under section 302 (b), P.P.C and had sentenced him to death. He had also directed him to pay an amount of Rs,1,00,000 as compensation under section 544-A, Cr.P.0 to the legal heirs of the deceased and in case of default in payment of compensation, to undergo R.I. For six months.
2. The case against the accused/ appellant is based on F.I.R. No,466 of 1997 registered on 30-5-1997 in Police Station Jaranwala District Faisalabad.
3. The F.I.R. Was lodged by one Muhammad Afzal, complainant/P.W-8 who had stated that he was running a Building Material Store on Chak Jhumra Road while his brother Muhammad Akram was running the business of sale and purchase of buffaloes. A day before the occurrence, around 6-00 p.m., his brother Muhammad Akram was coming back to his house from Jaranwala City. When he reached near the triangular square near kitchery (Court's compound), Ilyas accused who was sitting there armed with chhuri raised lalkara that he was going to teach a lesson to him for quarreling with his mother. Thereafter he gave 4 chhuri blows to Muhammad Akram, one after the other, and which hit him on his face towards the right side, on his chest towards the left side, on the left flank and on the abdomen towards the left side and he fell down after getting seriously injured and crying (with pain). In the meanwhile the complainant along with Muhammad Tufail and Muhammad Aslam P.Ws reached at the spot and the accused fled away while waiving the chhuri (weapon of offence). The complainant along with Muhammad Tufail and Muhammad Aslam P.Ws took his brother Muhammad Akram to Civil Hospital Jaranwala and from where he was referred to Civil Hospital Faisalabad.
4. In the F.I.R. It was also stated that 6/7 days prior to the occurrence Muhammad Akram deceased had a quarrel with the mother of Ilyas accused and on account of the said grievance the accused had seriously injured Muhammad Akram with the intention to kill him. The matter was reported by the complainant to the police a day later i.e, on 30-5-1997.
5. As the deceased expired subsequently on 28-6-19997 section 302, P.P.0 was substituted for section 324, P.P.C. On the conclusion of investigation the challan was submitted in the Court against the accused and was later sent up to the Court of Session for trial.
6. The accused was formally charged by the learned Additional Sessions Judge, Faisalabad on 12- 11-1997 under section 302, P.P.0 and to which he pleaded not guilty and the prosecution was thus asked to produce its evidence.
7. In this case the prosecution has examined as many as 10 P.Ws. Of them P.W-10 Muhammad Younas, A.S.-I., who on 30-5-1997 after receiving a copy of the F.I.R. From Parvez Akhtar Constable proceeded to the place of occurrence, inspected the place of occurrence, collected the blood- stained earth, took into possession last-worn clothes of the deceased and recorded the statements of P. Ws under section 161, Cr.P.C. On the same day, he arrested Muhammad Ilyas, accused and on the next day, he obtained his physical remand. He went to the hospital to record the statement of Muhammad Akram who was then in injured condition but he was not fit to make the statement. Subsequently he submitted another application for recording the statement of Muhammad Akram injured and the doctor declared him fit to make statement and hence he recorded his statement on 2-6-1997. According to him on 3-6-1997, the accused led to the recovery of chhuri (P.1) in the presence of witnesses and which he took into possession vide memo.
Exh.PJ. He took other formal steps in connection with the investigation of the case. On the completion of investigation, the accused was challaned in this case.
8. P.W-3 is Capt. Dr. Muhammad Akram, who on 29-5-1997 had medically examined Muhammad Akram deceased (who was then in injured condition) and had found 4 injuries on his person. Exh.PE is the copy of M.L.R while Exh.PE/1 is the diagram of injuries. On the same day, he had referred the injured to the D.H.Q Hospital, Faisalabad and who remained admitted there till 28-6-1997, when he expired (as per death certificate of the said hospital) which is Exh.PB.
9. On 29-6-1997, P.W-3 conducted post-mortem examination of the dead body of the deceased.
He had found 6 injuries on the dead body. In his opinion the cause of death was due to septicemic shock which was the result of secondary infection due to complications of injuries Nos.2, 3 and 4 which were likely to cause death in the ordinary course of nature. These injuries were corresponding to the injuries mentioned in the M.L.0 No,906/97, dated 29-5-1997. All the injuries were caused by sharp-edged weapon and were ante-mortem. Exh.PF is the copy of post-mortem report whereas Exh.PF/1 is the sketch of injuries. He had also received a copy of the death certificate, which is Exh.PB/1. Copy of the Bed Head Ticket is Exh. PG/2 and copies of operation notes are Exh.PG-3/1 to Exh. PG-3 /7 .
10. The eye-witness account in this case is furnished by P.W-8 Muhammad Afzal, complainant and P.W-9 Muhammad Tufail. Both of them deposed on the same lines as indicated in the F.I.R. P.W-8 also made a mention of the motive incident.
11. P.W-7 Bashir Ahmad is a witness of recovery of chhuri (P.1) which was effected at the instance of the accused/ appellant. On 19-8-1998 the Prosecutor tendered in evidence reports of Chemical Examiner Exh. PP and Exh.PP/1, reports of Serologist Exh.PQ and Exh.PQ/1. On the same day, he gave up the remaining P.Ws and closed the case for the prosecution.
12. On the conclusion of the prosecution evidence statement of the accused was recorded under section 342, Cr.P.0 and wherein he denied all the incriminating circumstances. In answer to a question as to why this case against him and why the P.Ws had deposed against him, the accused/appellant replied that it was an unseen occurrence and that Muhammad Tufail PAT owed him some money and he had falsely implicated him in this case. He stated that P.Ws had deposed against him because they were related to the complainant and the deceased had a common grudge against him. However the accused/appellant did not make statement on Oath under section 340(2), Cr.P.0 nor did he produce any evidence in defence.
13. On the conclusion of trial, the learned trial Court convicted and sentenced the accused as aforesaid. Aggrieved of the impugned judgment the accused/appellant has filed this appeal while the learned trial Court has sent a reference for confirmation of the death sentence.
14. The learned counsel for the appellant has argued that actually it was an unwitnessed occurrence and the prosecution has failed to establish the charge against the accused beyond reasonable doubt; that F.I.R. Was lodged after the medical examination of the deceased and which fact was enough to make the prosecution story doubtful; that P.W-8 had admitted in the course of cross-examination that the dispute between the deceased and the mother of accused was of ordinary nature; that the death of the deceased had occurred almost after 30 days of the alleged occurrence; that according to the medico-legal evidence septicemia was present in the entire abdomen and which had spread due to carelessness of the attendants, otherwise there was no chance of death of the deceased; that as per medical report all the wounds were incised and not penetrating, whereas the alleged weapon of offence was chhuri which could cause penetrating wound; that the eye-witnesses were interested persons, one of whom is the brother of the deceased while the other one is his maternal uncle. He has argued that the prosecution evidence is replete with inconsistencies and contradictions which do not inspire confidence and hence there was no lawful justification for conviction of the accused on the capital charge on the basis of the evidence of this nature. He has requested that the conviction recorded by the learned trial Court as well as the sentence awarded by it to the accused/ appellant be set aside and he be acquitted of the charge.
15. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record to warrant conviction and that it was a case of single accused and there was no possibility of substitution and that the ocular account is further corroborated by the medical evidence and the existence of motive was also fully proved. Furthermore nothing favourable to the accused had come on record during the course to investigation as is evident from the statement of P.W.10 and that dying declaration of the deceased was also recorded by P. W.10 as well which is on record as Exh.PR and wherein he had clearly named Ilyas accused/appellant as culprit who had caused injuries to him and the said declaration is fully corroborated by the statements of P.W.8 and P.W.9 and hence the learned trial Court had rightly convicted the accused/appellant and had correctly awarded him the capital punishment.
He has requested that the appeal filed by the accused be dismissed and the sentence of death the awarded to him by the learned trial Court be confirmed.
16. We have carefully considered the counsel for the appellant has pointed out arguments advanced from both sides. It is a case of single accused. There was also no question of mistaken identity as the accused and the eye-witnesses were known to each other. The deceased while in injured condition had made a statement before the Investigating Officer which is Exh.PR and which is the dying declaration in this case. The dying declaration is further corroborated by the statements of P.W.8 and P.W.9 who are the eye-witnesses of the occurrence. The ocular account of the occurrence is fully corroborated by the statement of P.W.3 i.e, Capt. Dr. Muhammad Akram who had medically examined the deceased on 29-5-1997 while he was in injured condition and had later conducted the post-mortem examination on his dead body on 29-6-1997. The recovery of chhuri (P.1) which was effected at the A instance of the accused on 3-6-1997 and was taken into possession by the Investigating Officer vide memo. Exh.PI, was sent to the Chemical Examiner and according to report of the Chemical Examiner Exh. PA it was found to be stained with blood while according to the report of the Serologist it was found to be stained with human blood. Thus the recovery of chhuri (P.1) further corroborates the ocular account. The version of the accused/appellant that it was an unseen occurrence and as Muhammad Tufail P.W owed some money to him, therefore he had. Falsely implicated him in this case does not inspire confidence.
There is no serious inconsistency or contradiction in the prosecution evidence and hence the learned trial Court had rightly convicted the accused/appellant under section 302(b), P.P.C.
17. So far as the quantum of punishment is concerned, the learned counsel for the appellant has pointed out that on 31-8-1999 the accused described his age as 22 years and hence on the day of occurrence he was about 20/21 years of age. Furthermore even according to the prosecution story, 6/7 days prior to the occurrence there was a quarrel between mother of the accused and the deceased. It is the case of the prosecution that aggrieved of the insult of his mother, the accused had subjected the deceased to murderous attack. We are also inclined to consider the said fact i.e, the insult of the mother of accused by the deceased to be a mitigating circumstance, in addition to the young age of the appellant. Therefore we feel that the sentence of imprisonment for life would serve the ends of justice.
18. In view of what has been stated above, we uphold the conviction of the accused/appellant under section 302(b), P.P.C. However we convert the sentence of C death awarded to him by the learned trial Court to life imprisonment. Accused will also pay an amount of Rs,1,00,000 as compensation to the legal heirs of the deceased or in case of default in payment of compensation, he will undergo further Si for 6 (six) months.
19. With the above modification in the sentence awarded to the accused/ appellant by the learned trial Court, we dismiss the appeal filed by the accused/ appellant. The accused/appellant is also given the benefit of section 382-B, Cr.P.C.
20. The sentence of death awarded to the accused by the learned trial Court is not confirmed.
Murder Reference (No,248/99) is answered in the negative.