' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,65 of 2001 filed by Sadaqat Hussain, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide his judgment dated 12-2-2001 to death under section 302(b), P.P.C.
With further direction to pay Rs,100,000 as compensation to the legal heirs of the deceased or in default six months' R. I.
' Murder Reference No,242 of 2001 for confirmation of death sentence or otherwise of Sadaqat Hussain appellant and Criminal Revision No,47 of 2001 shall also be disposed of through this single judgment.
2. Brief facts of the case, as disclosed by Masood Sarwar complainant, are that he was shop- keeper in Mohallah Kashmirian Adra, that his brother Mahmood Sarwar, who was serving in the office of Director-General Military. Land and Cantonment Rawalpindi, sits in the shop in the evening after his duty hours. His brother Mahmood Sarwar has lent an amount of Rs,5,000 to accused Sadaqat Hussain. Mahmood Sarwar asked many times for that amount but he did not pay on one pretext or the other. On 23-11-1997 at 5-00 p.m. Brother of the complainant asked Sadaqat accused to return the above said amount, on which an altercation took place between Sadaqat accused and Mahmood Sarwar brother of the complainant. Sadaqat accused called Mahmood Sarwar bad names, on which brother of the complainant gave him slaps. In the meanwhile, Sohail Shabbir Butt and Haroon Rashid Butt intervened there and patched up the matter. On going back, Sadaqat Hussain accused gave threats to the brother of the complainant. On the day of occurrence i.e. 25- 11-1997 Mahmood Sarwar as usual at about 5-30 p.m. Was sitting in the shop, complainant along with Muhammad Nasim and Muhammad Akram were standing before the shop in the street, the light was on the shop as well as in the street. In the meanwhile, Sadaqat Hussain accused armed with pistol came there and in the presence of the complainant and others made a Lalkara to Muhammad Sarwar that he would take taste him result of asking for money and fired with pistol which hit in front of chest on the left side, which went across. Brother of the complainant being seriously injured fell down and accused fled away from the spot along with his pistol. Muhammad Nasim and Muhammad Akram were taking Mahmood Sarwar to the hospital in an injured condition but he died in the way to hospital.
3. Investigation of the case was taken over by Sikandar Baig S.I. P. W.11. He after registration of complaint Exh.P.F., went to hospital, prepared injury statement Exh.P.H. And inquest report Exh.P.H./1, recorded the supplementary statement of complainant, also recorded the statements of Muhammad Nasim and Muhammad Akram under section 161, Cr.P.C., then, reached at the spot, collected blood through cotton vide memo. Exh.P.C., also collected a crime empty of .30 bore pistol from the spot, which was taken into possession vide recovery memo. Exh.P.D. On 1242-1997 he arrested the accused and on his pointation recovered pistol P.5 from underneath Pully of a drain, which was taken into possession vide memo. Exh.P.E. After completion of remaining formal investigation, the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned A.D.A. Tendered in evidence report of Chemical Examiner Exh.P.K., report of Serologist Exh.P.K./1, report of F.S.L. Exh.P.E. And closed the prosecution case, then, the statement of the appellant under section 342, Cr.P.C. Was recorded in which he pleaded innocence.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that occurrence had taken place in dark hours of night, that both the eyewitnesses were not present at the spot and there was no reason for their presence at the spot, that F.I.R. Was recorded after due deliberation and consultation, that there is a conflict between ocular account and medical evidence. Explaining this, he submits that according to the F.I.R., complainant had stated that fire was shot on the front side of chest of the dectased but according to post-mortem report on the front side of the chest, there is an exit wound while on the back side of chest, there is an entry wound. He submits that had the eye-witnesses been present at the spot, then, they would not had made such a mistake. As far as, supplementary statement is concerned, that is not admissible in evidence. He has relied upon PLD 2002 Lahore 110 and 2003 SCMR 1419 and submits that said supplementary statement was made after receiving the report of post-mortem.
As far as, Muharnmad Naseem P.W.8, is concerned, he is also brother-in-law (lad) of complainant and is resident of six miles away from the place of occurrence and his presence at the spot is highly doubtfull. Further submits that according to the F.I.R. Complainant had stated that he was standing before the shop in the street but before the learned trial Court he did not state a single word in this regard. Further submits that while going to hospital, police station falls in the way but nobody bothered to lodge a report in the police station and, the same was lodged in the hospital and moreover after the death of the deceased nobody was sent to police station in order to lodge the F.I.R. Learned counsel has drawn our attention at Page 117.Of the paper book and submits that between deceased and the present appellant there was showcase in side the shop, which was 3- 1/2 feet of height and the bullet could not hit the deceased without damaging the said showcase.
He submits that somebody had entered the shop, fired at the deceased and thereafter, disappeared from the spot. He has also drawn our attention at Page 14 of the paper book, the date of charging the accused i.e. 8-12-1999 where age of the appellant has been mentioned as 21 years.
He submits that in his statement recorded under section 342, Cr.P.C. No age has been mentioned.
He has relied upon PLD 1976 SC 568. He has referred to the case diary dated 2-12-1997 where his age has been mentioned 18-1/2 years but on the face of it interpolation has been made. At this stage, learned counsel has relied upon an unreported judgment passed in Criminal Appeal No,3567 of 2001 and Murder Reference No,308 of 2001. He lastly submits that if his submissions regarding the acquittal of the appellant are not accepted, then, it is not a case of capital punishment and it is a case of life imprisonment.
6. Learned A.A-G. Assisted by learned counsel for the complainant submits that appellant is the only accused, that both the eye-witnesses have supported the prosecution case, that there was no background of enmity between the parties, that it is case of single accused so there was no question of substitution because substitution is a rare phenomenon, that ocular account is fully corroborated by medical evidence, that as far as, age of the appellant, is concerned, birth certificate was produced but that was not accepted for the reasons that entry was made after the registration of F.I.R. And no benefit can be drawn by the appellant.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 25-11-1997 at 5-30 p.m. While the matter was reported to the police on the same day at 7-00 p.m. By Masood Sarwar brother of Mahmood Sarwar deceased and the formal F.I.R. Was recorded at 7-35 p.m. The same day although the distance between police station and place of occurrence was 1-1/2 K.M. There are two eye-witnesses, namely, Masood Sarwar complainant P.W.7 and A Muhammad Naseem P.W.8, who have supported the prosecution case
8. And we believe the eye-witness account in this case because there was no background of enmity between the parties even the appellant is the only accused so there was no question of substitution because substitution is a rare phenomenon and moreover, why the real brother of the deceased would leave the actual culprit and would involve the appellant in this case. As far as, conflict between ocular account and medical evidence, is concerned, the injury is on the back side of the chest of the deceased, though it was mentioned in the F.I.R. That shot was fired in front side of the chest but in this regard, we may state here that deceased was not a statute and on hearing the "Lalkara", he must have turned and received the injury from the back side of his chest, then, the' recovery was also effected from the appellant and report of fire-arm expert in this regard is positive in nature. Dr. Muhammad Imdad Assi P.W.3, who conducted post-mortem examination on the dead body of the deceased on 26-11-1997 at 9 a.m., had given the time between injury and death within half an hour and between death and post-mortem within 20 hours, which also coincide with the time of occurrence, so as far as, case of the prosecution from all the angles, is concerned, we are fully convinced in our mind, that prosecution has been successful in proving its case against the appellant beyond any shadow of doubt but the question is whether the deceased was minor at the time of occurrence or not and whether it is a case of capital punishment or imprisonment for life, we are of the view that it is not a case of capital punishment for the reasons that appellant has given his age at the time of charge, which took place on 8-12-1999, as 21 years but according to section 172, Cr.P.C. The Court in order to reach at a just conclusion can go through the case diaries. We have gone through the case diaries and according to the case diaries appellant was arrested on 2-12-1997 and at the time of arrest he had given his age as 17-1/2 years but his date has been converted from 17-1/2 to 18-1/2 years to make him adult or major, so that he could not get any benefit. While arguing the case, learned counsel for the appellant has relied upon an unreported judgment passed on 19-1-2006 in Criminal Appeal No,367 of ,,,2001 and Murder Reference No,308 of 2001 in which on this ground, death sentence was not confirmed and appellant was awarded imprisonment for life. Moreover, it is a case of single shot, and second shot was not fired. As far as, motive is concerned, we are of the view that prosecution failed to prove the motive even against the appellant and moreover, Muhammad Naseem P.W. Was not resident of the place of occurrence and he was residing 16 miles away and was brother-in-law ( {{URDU TEXT}}) of the complainant, so taking into considerations all the factors and especially the minority of the appellant, though we maintain the conviction of the appellant under section 302(b), P.P.C. But reduce his sentence of death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence in default of payment of compensation is altered from R.I. To S.I. Here we may rely upon the case of Muhammad Arshad and 2 others v. State PLD 1996 SC 122 wherein their Lordship of the Honourable Supreme Court of Pakistan converted the sentence of death into imprisonment for life by treating the facts that the case was one of single shot and there was no previous background of enmity or deep rooted hostility between the parties.
' The appeal filed by the convict appellant is disposed of in the above terms. The death sentence is not confirmed and murder reference is answered in the negative.