' ASIF SAEED KHAN KHOSA, J.-- Zahid alias Kaka appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 6-3-2003 handed down by the learned Sessions Judge, Gujranwala in his capacity as a Juvenile Court and was sentenced to imprisonment for life and to pay a sum of Rs,50,000 to the heirs of Muhammad Nauman deceased by way of compensation under section 544-A, Cr.P.C. Or in default Of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. Through the same judgment a co-accused of the appellant namely Muhammad Afzal was acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. The necessary facts giving rise to the present appeal are that according to the prosecution's case the appellant had fired at and injured Muhammad Nauman deceased inside the Pakistan Snooker Club situated within the area of Police Station Baghbanpura, Gujranwala at about 6-00 P.M. On 18-5-2001 and Muhammad Afzal acquitted co-accused had facilitated the appellant in that regard. F.I.R. No, 199 was lodged in respect of that incident by Muhammad Hanif complainant, father of Muhammad Nauman deceased, at Police Station Baghbanpura, Gujranwala at 7-30 P.M.
On the same day, i.e, 18-5-2001 for an offence under section 324, P.P.C. Read with section 34, P.P.C.
After the death of Muhammad Nauman deceased section 324, P.P.C. Was substituted in the F.I.R. By section 302, P.P.C. The motive set up in the F.I.R. Was that at about 12-00 noon on the same day, i.e, 18-5-2001 the appellant and Muhammad Nauman deceased had an altercation with each other and it was to avenge the same that the appellant and his co-accused had launched an assault upon the deceased at the time of the present incident. During the investigation the dead body of Muhammad Nauman deceased was got subject to post-mortem examination, the appellant and his co-accused were arrested, a pistol had been recovered from the possession of the appellant and after completion of investigation a challan was submitted before the learned trial Court which framed a charge against the appellant and his co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced thirteen witpesses in support of its case against the appellant and his co-accused. Ocular account of the incident in question was furnished by Muhammad Hanif complainant (P.W.10) and Rifaqat Ali (P.W.Ll). The complainant had also deposed about the motive. Muhammad Afzal (P.W.8) stated about the recovery of a pistol from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Shaukat Khurshid (P.W.l) and Dr. Ajmal Aqeeq (P.W.5). Asmat Ullah, S.-I. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. In their statements recorded under section 342, Cr.P.C. The appellant and his . Co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
However, while answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant had responded as follows ' " In fact, the occurrence took place all of a sudden. It was not premeditated. There was no ill will between me and the deceased. The motive incident never occurred. The pistol P.3 does not belong to me. I have been falsely implicated in this case. The P. Ws. Are related inter se."
' The appellant and his co-accused did not opt to make statements on oath under section 340(2), Cr.P.C. And they did not produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted Muhammad Afzal accused but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has half-heartedly been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt but, in view of the above mentioned statement made by the appellant under section 342, Cr.P.C., he has mainly contended that the case in hand was one of a sudden occurrence taking place without any premeditation on the part of the appellant and, thus, the appellant's conviction and sentence ought to have been recorded under section 302(c), P.P.C. Rather under section 302(b), P.P.C. He has further maintained that on account of minority of the appellant and in view of the peculiar circumstances of this case the appellant deserved a sympathetic treatment in the matter of sentence. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, thus, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by me that the occurrence in this case had taken place in daylight and the F.I.R. In respect of the same had been lodged with sufficient promptitude wherein the appellant had been duly nominated as the assailant who had caused, a firearm injury in the abdomen of Muhammad Nauman deceased. The F.I.R. Contained all the necessary details of the incident in issue. Apart from that the place and time of occurrence were such that it was well nigh impossible for the culprit to have gone unnoticed or unidentified at the spot. The eye-witnesses produced by the prosecution, i.e, Muhammad Hanif complainant (P.W.10) and Rifaqat Ali (P.W.Ll) despite their close relationship with Muhammad Nauman deceased, had absolutely no background of ill-will or animosity against the appellant so as to prompt them to falsely implicate the appellant in a case of this ijature. Both the said eye-witnesses had made consistent statements before the learned trial Court vis-k-vis the present appellant and the learned trial Court had found their statements to be worthy of implicit reliance. I too have found no reason for not believing the said eyewitnesses qua the appellant's culpability. The medical evidence had provided full support to the ocular account in respect of the date and time of occurrence, the weapon, used and the locale of the injury stated by the eye-witnesses. In these circumstances I have found the learned counsel for the appellant to be quite justified in not seriously challenging the culpability of the appellant for the murder of Muhammad Nauman deceased.
5. The alternate but main submission of the learned counsel for the appellant regarding attraction of section 302(c), P.P.C. To the case in hand has also received my serious consideration. In this context I have noticed that the motive set up by the prosecution regarding an altercation taking place between the appellant and Muhammad Nauman deceased at about 12-00 noon on the day of occurrence had not been established by the prosecution through any evidence at all. The only prosecution witness deposing about the said motive was none other than Muhammad Hanif complainant (P.W.10) himself who had never claimed to have himself witnessed the alleged incident forming the motive. Thus, there was no'evidence available on the record to establish any background of hostility between the appellant and Muhammad Nauman deceased prior to the present occurrence. According to both the eye-witnesses an altercation was taking place between the appellant and the deceased prior to reaching of the said eyewitnesses at the spot after covering a distance of about 300/350 meters. Nobody had deposed before the learned trial Court about the origin of that altercation between the appellant and Muhammad Nauman deceased at the spot. Rifaqat Ali (P.W.Ll) had stated before the learned trial Court in so many words that at the time of arrival of both the eye-witnesses at the place of occurrence Muhammad Nauman deceased and the present appellant were grappling with each other and it was in that situation that the appellant had fired at the deceased. This clearly showed that the altercation and grappling between the appellant and the deceased at the spot, which had started before receipt of information by the eyewitnesses in that regard and had continued during their proceeding to the place of occurrence and was still in progress at the time of arrival of the eye-witnesses, was a prolonged altercation and grappling between the appellant and the deceased. The record of this case shows that the appellant was about fifteen and a half years old at the time of the present occurrence and Muhammad Nauman deceased was about twenty years of age at that time. It is manifest from the contents of paragraph No, 16 of the judgment passed by the learned trial Court that according to the report submitted under section 173, Cr.P.C. In this case initially the appellant was not armed with any weapon and during the progress of the occurrence he had been supplied a pistol by his co-accused namely Muhammad Afzal at the spot which pistol was then used by the appellant for firing at the deceased. All these factors point towards a real possibility that the firing made by the appellant at the deceased was not premeditated and in the heat of passion during a sudden occurrence erupting without any premeditation the appellant had used a pistol supplied to him by his coaccused in order to get rid of a . Prolonged altercation and grappling with an adversary who was five years older to him. The appellant had never repeated the fire at the deceased. Keeping in view the tender age of the appellant and his being embroiled in a prolonged altercation and grappling with an older adversary at the spot firing of one shot by him at the deceased in that predicament has not appeared to me to be taking of undue advantage by him.
For all these reasons I have felt satisfied that the case against the appellant attracts the provisions of section 302(c), P.P.C. Rather than the provisions of section 302(b), P.P.C. I haye also felt persuaded to hold that on account of his minority and in view of the above mentioned peculiar circumstances of this case the appellant deserves a sympathetic treatment in' the matter of his sentence under section 302(c), P.P.C.
6. For what has been discussed above this appeal is partly allowed, the conviction of the appellant under section 302(b), P.P.C. Recorded by the learned trial Court is substituted by his conviction under section 302(c), P.P.C. And he is sentenced to rigorous imprisonment for ten years. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of Muhammad Nauman deceased as well as the sentence of imprisonment in lieu of payment thereof are, however, upheld and maintained. The benefit of under section 382-B, Cr.P.C.
Has already extended to the appellant by the learned trial Court. This appeal is disposed of in these terms.