' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,657 of 2002 filed by Shahzad, Sheraz and Ijaz sons of Muhammad Amin-appellants, who along with Muhammad Amin faced trial in case F.I.R. No,292, registered at Police Station Sambrial, District Sialkot, on 3-6-2000, for offences under sections 302/324/452/34, P.P.C. Before learned Additional Sessions Judge, Daska, who after conclusion of trial, vide his judgment dated 2-4-2002, while acquitting Muhammad Amin, convicted and sentenced the appellants as under:--- 1 SHAHZAD
(1) Death on two counts under section 302(b)/34, P.P.C. With fine of Rs,50,000 on each count or in default six months' S.-I. On each count.
(2) Ten years' R.I. under section 324/ 34 P.P.C. With fine of Rs,10,000 or in default 2 months' S.-I. For causing murderous assault on Muhammad Naeem.
(3) Five years' R. I. under section 337-D/34, P.P.C. With Arsh amounting to Rs,96,000 which was to be paid to Muhammad Naeem/ P.W. Or in default 2 months' S.-I.
(4) Five years' R.I. under section 452/34, P.P.C. With fine of Rs,10,000 or in default 2 months' S.-I.
2 SHERAZ AND IJAZ
(1) Imprisonment for life each under sections 302(b)/34, P.P.C. On two counts with compensation of Rs,50,000 each on two counts or in default six months' S.-I. On two counts each.
(2) Ten years' R.I. each under section 324/34, P.P.C. With fine of Rs, 10,000. Each or in default 2 months' S.-I. Each for causing murderous assault on Muhammad Naeem/P.W.
(3) Five years' R.I. each under section 337-D/34, P.P.C. With Arsh amounting to Rs,96,000 each to be paid to Muhammad Naeem/P.W. Or in default 2 months' S.-I, each.
(4) Five years' R.I. each under section 452/34 P.P.C. With fine of Rs, 10,000 each or in default 2 months' S.-I. Each.
2. Murder Reference No,292 of 2002 for confirmation or otherwise of death sentence awarded to Shahzad appellant and Criminal Revision No,493 of 2002 filed by Muhammad Akram and others seeking enhancement of sentences awarded to the respondents therein, shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated in F.I.R. Exh.P.A./l recorded on the statement of Muhammad Akram, complainant/P.W.2, are that he along with his son Muhammad Ijaz went to the house of Safia Bibi to fetch milk. Khuram Shahzad son of Safia Bibi along with Ijaz went on the roof top of the house to bring down the bundle of dung cakes. In the meantime, Muhammad Munir Muhammad Aslam and Muhammad Naeem also came there. All of a sudden, Muhammad Aminarmed with danda came inside the house and raised Lalkara that today they would take revenge of their insult and gave danda blow to Safia Bibi. Resultantly, she fell down. The complainant party also heard noise from the roof top of the house, so the complainant along with Aslam, Munir and Naeem rushed to the roof top and saw Ijaz armed with Chhurri, Sheraz armed with Chhurri and Shahzad armed with dagger. Within the view of the P.Ws. Ijaz gave Chhurri blow to Khuram, which hit on his right side of chest. Sheraz inflicted Chhurri blow to Khuram on his waist, while Ijaz again caused Chhurri blow on the buttock of Khuram. Shahzad raised Lalkara that today Ijaz Mughal will not be spared and gave dagger blow on the waist of Ijaz. Ijaz Mughal after receipt of injuries fell down.
When Muhammad Naeem asked the accused not to do so, Shehzad gave dagger blow to Naeem, which landed on his belly. Muhammad Naeem also fell down. Thereafter Muhammad Amin while raising Lalkara that today they have taken the revenge from Mistries, fled away from the spot along with other accused. The injured were shifted to Civil Hospital, Daska and due to their precarious condition they were referred to Civil Hospital, Gujranwala, where Ijaz son of the complainant succumbed to the injuries.
4. Regarding motive it is stated in the F.I.R. That Khuram and Ijaz used to forbid the accused not to tease the daughter of Safia Bibi. For that revenge the accused committed the instant occurrence.
5. After registration of formal F.I.R. The investigation of the case was taken over by Muhammad Ilyas, A.S.-I./P.W.
15. He proceeded to the Civil Hospital, Daska, where dead body of Ijaz was lying. He took over the dead body, prepared injury statement Exh.P.U. And inquest report Exh.P.T. Thereafter he sent the dead body for post-mortem examination. He inspected the place of occurrence and collected bloodstained earth from the spot vide memo. Exh.P.B. And also recorded the statement of the witnesses under section 161 Cr.p,C. On 25-6-2000 he arrested all the three accused persons. On 30- 6-2000 he recovered danda P-1 at the instance of Muhammad Amin from his house vide memo.
Exh.P.E. Shahzad led to the recovery of blood-stained Chhurri P.2 from his house, which was taken into possession vide memo. Exh.P.F. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 15 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.A.A. And Exh.P.B.B. And that of Serologist Exh.P.C.C. Closed its case. The accused in their statements recorded under section 342 Cr.P.C. Pleaded their innocence and false implication. However, Shahzad in reply to question No,7 answered as under:- ' "The fact of the matter is that Imran, Pervaiz and Ijaz were nephews of Safia Bibi P.W. Who were not of good character. They had abducted a young girl from City Daska and there was a case of abduction registered against them. The aforesaid nephews of Safia Bibi P.W. Along with abducted girl were present in the house of Safia Bibi at the time of alleged occurrence. There was a wind storm and darkness, due to failure of electricity and it was night time.
' My sister Naureen, a young girl and a student, was called out through the said abducted' girl on some pretext. The two deceased persons Khuram Shahzad and Ijaz Mughal as well as Muhammad Naeem injured P.W. Were present in the thoroughfare street with a motorcycle. It was kept in starting position by Naeem P.W. When Khuram Shahzad and Ijaz forcibly caught hold of Noureen and attempted to put her on the seat of the motorcycle with intent to abduct her away for immoral purpose because they had been off- late used to cast enormous glance upon her from the roof top of Haveli of Safia Bibi P.W. When Naureen was being abducted in this fashion, she and my mother raised hue and cry attracting myself from my house top. I picked up a Chhurri from kitchen and instinctively intervened out of Ghairat grave and sudden provocation and right of private defence and to save my sister and in that attempt, I caused injuries to two deceased and the said injured P.W. Naeem. My coaccused were not present at the spot nor they have participated in the occurrence. The story of F.I.R. Was subsequently fabricated and falsely involved all the male family members."
' The accused did not appear as witness under section 340(2) Cr.P.C. However, Nourin appeared as D.W.l. The accused after tendering in defence their birth certificates closed their defence. After conclusion of trial, the learned trial Court, while acquitting Muhammad Amin, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants after having read the entire prosecution evidence, statement of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that Muhammad Akram was a chance witness and could not justify his presence at the time of occurrence; furthermore if he would have been present there he would have taken his son to the hospital but instead according to Doctor Ijaz was brought by Arshad Hussain and not by Muhammad Akram; that Safia Bibi in whose house occurrence took place did not state anything about the role of the appellants; that as far as Muhammad Naeem is concerned, his statement was recorded 6/7 days after his discharge from the hospital, after more than a month of the occurrence, and he gave a tutored statement to be in line with the statement of Muhammad Akram complainant; that the prosecution failed to prove motive through any independent evidence; that Safia Bibi stated that she did not produce her daughters before the Investigating Officer in support of the motive; that the defence plea was more plausible and was borne out from the circumstances of the case and the defence plea also supported by the admission of the Investigating Officer that 28 persons appeared before him during investigation and stated that Sheraz and Ijaz were empty handed and had only grappled with the complainant party and they did not cause any injury; that all the appellants' were less than 18 years of age at the time of occurrence; and that in any case as far as, Shahzad-appellant is concerned, he was wrongly sentenced to death.
8. The learned Additional Prosecutor General, while supporting the judgment passed by the learned trial Court, submits that presence of Safia Bibi and Muhammad Naeem P.Ws. Could not be denied as the occurrence took place in the house of Safia Bibi and Muhammad Naeem received injuries at the hands of the appellants; that it was not unusual circumstance for Muhammad Akram to visit the house of Safia Bibi, as he was brother of Safia Bibi; and that the ocular account is fully supported by the medical evidence and corroborated by the recoveries and circumstances of the case. However, he concedes that Shahzad being younger brother of Ijaz did not deserve that extreme penalty of death.
9. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General at great length and gone through the entire evidence minutely with their able assistance.
10. It is a case of two versions, as Shehzad appellant while admitting the occurrence claimed that he did so under grave and sudden provocation and in order to save his sister Nourin from abduction. Both the versions are to be put in juxtaposition to find out which of the two is true or nearer to the truth.
11. Undeniably the occurrence took place in the house of Safia Bibi, so her presence in the house was natural. Not only the presence of Muhammad Naeem was admitted but his presence was also established by the fact that he received very serious injury during occurrence. As far as Muhammad Akram P.W. Is concerned, his visit to the house of his sister Safia Bibi, could hardly be termed as unusual, as he had explained that he had come to the Haveli of Safia Bibi in order to fetch milk. Muhammad Naeem injured/P.W. And Muhammad Akram have given very consistent account of the occurrence. Their statements are convincing, coherent and natural. They have corroborated each other on almost all the material points. Both of them successfully stood the test of lengthy cross-examination. Both these witness had no previous enmity or ill-will against the appellants so as to depose falsely against them. Their statements are fully supported by the medical evidence and corroborated by the factum of lifting of blood-stained earth from the roof of the house of Haveli of Safia Bibi. According to prosecution case, Ijaz and Khuram Shehzad deceased had gone to the roof to collect bundle of dung-cakes from there. Perusal of unsealed map Exh.P.V. And scaled map Exh.P.Q./l reveals that the existence of heap of dung-cakes under plastic cover has been mentioned on the roof.
12. Dr. Muhammad Asif appeared as P.W.6 and stated that on 2-6-2000 i.e, on the date of occurrence he examined Khuram Shehzad at 8-00 p.m. And he observed three injuries on his person, which were caused by sharp edged weapon. Injury No,l was on the front of right chest; injury No,2 was on the back of lower lumber region and injury No,3 was on the right thigh. On the same date and same time, he also examined Muhammad Ijaz while injured and observed one injury caused by sharp edged weapon on the left lumber region. He also examined Muhammad Naeem on the same date and observed one injury on the front of right lower abdomen, which was caused by sharp edged weapon. Due to the said injury abdominal viscera was coming out. All the three injured were in critical condition, so after giving emergent treatment they were referred to D.H.Q. Hospital, Gujranwala. The seat of injuries and their gravity fully support the ocular version and the statements of all the P.Ws. That soon after examination the injured were taken to D.H.Q. Hospital, Gujranwala.
13. As far as the motive is concerned, Safia Bibi has given a detailed statement on oath. She is truthful witness, as she never tried to be an eyewitness as against the appellant, which she could easily do.
14. Now coming to the defence plea, according to Shehzad appellant, Ijaz deceased along with Imran and Pervez had abducted a young girl from City Daska, who was present in the house of Safia Bibi at the time of occurrence. His sister Nourin, who was a young girl and student, was called out through the said abducted girl on some pretext. Thereafter the accused, who were present in the street and had a motorcycle in running condition forcibly caught hold of Nourin and tried to abduct her. Not a single witness from the locality has been produced in support of defence plea.
The defence plea is also not supported by the circumstances of the case, as the bloodstained earth was lifted from the roof of the house of Safia Bibi and not from the street. It would not be possible for Shehzad, who was teenager at the time of occurrence to cause serious injuries to three adult persons alone and escaped unhurt. The defence plea was not first version of Shehzad when he was arrested by Muhammad Ilyas, A.S.-I./P.W.5, as it was suggested to him during cross- examination that he intentionally avoided to record the statement of Nourin and the correct version of Shehzad. Nourin appeared before -the learned trial Court in support of defence plea. Her statement is not worthy of any credence for various reasons, as according to her, the street in front of her house was a thoroughfare but none except Shahzad came in response to her cries. The reason advanced by her was that it was dark and wind storm, so it was Shahzad alone. In the same breath she stated that shops were opened but there was dark. However, the shopkeepers were present. According to her, she appeared before the police at Police Station Sambrial but there is no record that she joined the investigation or her statement was recorded. It is obvious that she appeared before the learned trial Court due to her sisterly love and in order to save her brothers and father. In these circumstances the defence plea is rejected.
15. In our considered opinion the prosecution has successfully proved its case through reliable direct evidence, which is fully supported by the medical evidence'and corroborated by the circumstances of the case. No benefit can be given to Sheraz and Ijaz appellants on the basis of police opinion.
16. Now coming to the quantum of sentence as far as Shehzad appellant is concerned, according to evidence Ijaz inflicted two injuries, one on the chest and other on the thigh of Khuram Shahzad deceased. The learned trial Court has not inflicted the normal penalty of death on him considering his age. Shahzad appellant also inflicted two injuries, one on the back of Ijaz, which proved fatal and one on the abdomen of Muhammad Naeem P.W, who luckily survived but he was awarded death sentence. Birth certificates of Shahazad Exh.D.B. And Ijaz Exh.D.C. Are available at pages 144 and 145 of the paper book. Form-B relating to the age of Muhammad Sheraz is also available as Exh.D,D. At page 146 of the paper book. According to birth certificate Ijaz was eldest son, who v/as born on 22-11-1982, and was less than 18 years of age at the time of occurrence. His birth was entered in the register oh 27-11-1982. Birth certificate of Shehzad reveals that he was born on 28-4- 1984 and was younger than Ijaz. His birth was entered in the relevant register on 2-5-1984. The observation of the learned trial Court that Shehzad was fully grown up young man is not based on any evidence. The learned trial Court in para 38 of the judgment, while awarding lesser penalty to Ijaz, has referred to his birth certificate Exh.D.C. However, the learned trial Court in its own wisdom despite availability of birth certificate of Shahzad Exh.D.B. Did not mention the same in its judgment.
Shehzad has been dealt with discrimination by the learned trial Court and in our opinion benefit of the provisions of Juvenile Justice System Ordinance could not be denied to him.
17. The upshot of the whole discussion is that while maintaining conviction of Shehzad under sections 302(b)/34, P.P.C. We alter the sentences to imprisonment for life on two counts. With the above noted modification in the sentences to the extent of Shehzad, the other convictions and sentences recorded by the learned trial Court against all the three appellants are maintained. All the sentences would run concurrently. Benefit of section 382-B Cr.P.C. Already extended in favour of Ijaz and Sheraz appellant is also given to Shehzad appellant.
18. Consequently, sentences of death awarded to Shehzad appellant is not confirmed. Murder Reference is answered in the negative.
19. No one has put in appearance to press the revision, which otherwise is devoid of any force.
Hence the same is dismissed.