' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment dated 28-5-2002 rendered by the learned Additional Sessions Judge Rawalpindi, whereby he convicted the appellant vide under section 302 (b), P.P.C. And sentenced to death. The learned trial Court vide the same judgment also directed the appellant to pay compensation of Rs,1,00,000 to the legal heirs of the deceased Gul Zaman as required under section 544-A, Cr.P.C. And in default whereof to under R.I. For six months.
' The learned trial Court also submitted Murder Reference No,30 of 2002 for confirmation of death or otherwise of the appellant. We propose to dispose of both the matters through this single judgment.
2. Briefly the facts of the prosecution case are that on 7-5-1998 at about 5-00 a.m. The complainant along with Tariq Mahmood was ready to go on work when Abdul Razzaq, brother of the complainant also came there and Gul Zaman, father of the complainant was ready to go inside after offering prayer in the courtyard and at that point of time, Pervaiz, appellant/accused, who was their neighbour, came on the roof of their house and threw brick, which hit father of the complainant on his head wha fell down and bleeding started from his head and he became senseless. The accused-appellant ran away from there.
'Motive behind this occurrence was that on 6-5-1998, Pervaiz appellant accused came on the roof of his house and the father of the complainant forbade him to stand on the roof, who threatened to kill him due to which the instant occurrence took place.
3. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court charge was framed against accused/appellant, who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under section 342, Cr.P.C. Neither he opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340 (2), Cr.P.C. Nor did he adduce defence evidence. The learned trial Court after hearing the learned counsel for the parties passed the above said conviction and sentence, which is being assailed herein.
5. The occurrence in this case took place on 7-5-1998 at 5-00 a.m. Whereas the F.I.R. Was lodged on the same day at 5/6 p.m. And it is very much mentioned in the F.I.R. That soon after the receipt of the injuries, the deceased being in an injured condition was taken to the Hospital by the complainant and P. Ws. And the explanation given by the complainant is quite plausible, hence the F.I.R. Was promptly lodged particularly this is a case of single accused .
6. Ocular account was furnished by Fraz Ahmad, P.W.4 (complainant) who reiterated the story of F.I.R, which was corroborated by Abdul Razzaq P.W.6, who is another eyewitness. The occurrence in this case took place in the house of the deceased so presence of the eyewitnesses at the scene was quite natural particularly B when they had no motive to falsely implicate the appellant- accused, who is single accused of this case and in such Like cases substitution is a rare phenomenon particularly when the complainant is son of the deceased and he would never let off the real culprit and substitute the appellant at his place. The appellant was well known to the complainant and was neighbour of the complainant. The ocular account is further C supported by medical evidence produced by the prosecution i.e, Dr. Muhammad Ashraf P.W.7, who conducted the postmortem examination and P.W.8 Dr. Muhammad Ijaz who examined Gulzaman deceased at 5-30 a.m. When he was brought in the hospital in an injured condition and the injuries on the person of the deceased were the result of using of blunt weapon. As far as the defence of the appellant that is not confidence inspiring that the deceased was hit by stone, which was thrown to kill birds. During the investigation the appellant was found guilty and recovery of brick/ weapon of offence was also taken into possession by the Investigating Officer from the place of occurrence vide recovery memo. Exh.PD by Shubat Hussain Inspector P.W.9 and same was proved through witness Abdul Razzaq P.W.6.
7. In view of the evidence of ocular accounts medical and recovery the prosecution has proved its case against the appellant beyond any shadow of doubt so the conviction awarded to the appellant is maintained.
8. As far as quantum of sentence is concerned, we have found from bare reading of F.I.R, there was no deep-rooted enmity existed between the parties, the weapon of offence (brick) which was used by the appellant, would show, that appellant had not come on the spot being armed with any formidable or lethal weapon. It further shows that the occurrence was not the result of any premeditated attack rather it was a result of sudden brawl or exchange of hot words between the parties and weapon of offence was common piece of brick, and that too was used from the roof and not from the close range and even the appellant did not repeat the blow; so in such situation if any extenuating circumstance is available this Court after considering the same has the discretion to award lesser punishment in this view of the matter the death sentence of the appellant is converted into imprisonment for life giving him benefit of section 382-B, Cr.P.C. However the sentence of compensation shall remain intact.
9. With the above modification this appeal is dismissed.
'Murder Reference is answered in negative.
Sentence reduced.