' SAYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Shabbir alias Chairman son of Muhammad Younis was involved in case F.I.R. No, 67 of 2003, dated 3-5-2003, registered with Police Station Nur- Kot, District Narowal, under section 302, P.P.C., at the instance of Muhammad Arshad son of Niamat All with the allegation of causing death to Muhammad Irshad aged about 12 years, son of the complainant. During the course of investigation, the appellant was found involved in this case and was declared guilty. Resultantly, he was placed in column No,3 of the report prepared under section 173, Cr.P.C. The challan in this case was sent to the Court of Session en routed through learned Illaqa Magistrate under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Shakargarh, District Narowal, vide judgment, dated 12-10-2004, convicted the appellant under section 302(b), P.P.C. And sentenced him to death as Tazir. He was ordered to pay Rs,2,00,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. And in default whereof, to suffer further S.I. For six months.
2. The appellant being aggrieved by the judgment of the learned trial Court, impugned the same through Criminal Appeal No, 1700 of 2004 while the learned trial Court forwarded Murder Reference No,856 of 2004, seeking confirmation of the death in terms of section 374, Cr.P.C.
3. As both the matters are arising out of the same F.I.R., therefore, they are being disposed of through this single judgment.
4. Prosecution case narrated in the F.I.R. As stated by complainant Muhammad Arshad son of Niamat Ali who is resident of Rangrah, Police Station Nur-Kot, District Narowal and mason by profession is that his son Muhammad Irshad aged about 12 years was a student of 8th Class in Ittefaq Public Model School, Chak Qazian. Muhammad Shabbir alias Chairman son of Muhammad Younas/appellant resident of the same village was in a habit of teasing Muhammad Irshad deceased while going and coming from the school with an intent to commit unnatural intercourse.
On 30-4-2003, said Muhammad Irshad son of the complainant while coming from the school informed the complainant that the appellant used to tease him for illicit lust. The matter was reported to parents of the appellant who were told in clear terms that their son was teasing son of the complainant. On this complaint, the appellant infuriated and extended threat to the complainant that he would not let his son alive. Being under the threat, the complainant used to drop his son and bring him from the school at his own. Unfortunately on previous day of the occurrence, the complainant had gone to the house of his in-laws in Mouza Agu Munda and stayed overnight there. On 3-5-2003 Muhammad Irshad son of the complainant in the company of his sister aged about 8 years had proceeded to school. When they reached near Jamia Mosque Ghosia Chak Qazian, at about 7-30 a.m., the appellant who was standing there while armed with chhuri, dragged the son of the complainant and took him to the mosque and gave churri blow on the person of son of the complainant, which landed on the wrist of left hand of the deceased. The son of the complainant came out of the mosque in the street while in running position but he was followed by the appellant who gave him repeated blows with his chhuri, which landed on two spots of his back. Muhammad Tariq son of Niamat Ali, caste Lohar, resident of Rangrah and Muhammad Amin son of Sultan Ali, caste Lohar, resident of Agu Munda, who were proceeding towards Mouza Agu Munda for purchasing articles of daily-use, also witnessed the occurrence. The appellant while brandishing chhuri went on his heels. The son of the complainant died at the spot due to injuries he sustained.
5. The complainant Muhammad Arshad moved an application (Exh.PA), which was received by Muhammad Ashraf S.-I. (P.W.8) who after recording the police proceedings, dispatched the same to the Police Station through Abdul Rasheed 373/C. Thereafter the Investigating Officer drafted an application for postmortem examination (Exh.PE). The inquest report (Exh.PG) was also prepared by the Investigating Officer as well as rough site plan (Exh.PK) and injury statement (Exh.PF) at the spot. The dead body was handed over to Abdul Raheem 119/C along with the relevant papers for conducting post-mortem examination. The Investigating Officer also recorded his statement under section 161, Cr.P.C. The bloodstained earth was collected by the Investigating Officer through recovery memo. Exh.PB. The Investigating Officer received the copy of the F.I.R. At the spot i.e, Exh.PA/1. The last worn clothes of the deceased qamiz (P-1), shalwar (P-2), bunyan (P-3) and carbon copy of the Postmortem Examination Report (Exh.PD) were handed over to the Investigating Officer by Abdul Raheem constable. On 8-5-2003, the draftsman visited the place of occurrence in the company of the Investigating Officer for preparation of the site plan. He took rough notes and after preparation of the site plan Exh.PH and Exh.PH/1 handed over to the Investigating Officer on 9- 5-2003. The appellant was arrested on 5-3-2002. Weapon of offence i.e, chhuri was recovered on pointing out of the appellant from the nearby fields of shatala and taken into possession vide recovery memo. Exh.PJ. The Investigating Officer also prepared the site plan of the place of occurrence (Exh.PL). The appellant was placed in column No,3 of the report prepared under section 173, Cr.P.C. And the same was sent to the Court of Session. The learned Additional Sessions Judge, Shakargarh vide order, dated 23-6-2003 charge sheeted the appellant who denied the charge and claimed trial. The prosecution in order to substantiate its version produced as many as eight witnesses. The learned DDA after tendering in evidence the reports of Chemical Examiner (Exh.PM) and that of Serologist (Exh.PN), closed the prosecution evidence on 9-7-2004.
6. The appellant was examined under section 342, Cr.P.C. Who did not opt to appear as his own witness as provided under section 340(2), Cr.P.C., in disproof of allegations levelled against him. In reply to question why this case against him and why the P.Ws. Have deposed against him, the appellant made the following deposition:-- "I am also resident of the village of the complainant and there are two political groups in the village; the complainant belongs to the other political group and on the political rivalry complainant was against me and also engaged with me in the (Darghast Bazi) and litigation; due to this grudge complainant has falsely implicated me in this case. Neither the complainant nor P.Ws. Has seen the occurrence. I am innocent."
7. After hearing the arguments by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated supra.
8. Learned counsel for the appellant contends that in the F.I.R. The complainant is stated to be eye- witness of the occurrence and he has stated that the deceased had gone on that date along with his younger sister when the occurrence took place; whereas, learned trial Court has observed and relied on the statement of the complainant to the effect that the complainant had not seen the occurrence. It is further contended that in the F.I.R. It is stated that the complainant was not present at the place of occurrence and later on during trial he has changed his version along with other P.Ws. Learned counsel for the appellant went on arguing that even P.W.2. Who is uncle of the deceased has stated in his examination in chief that they were present at the place of occurrence but in cross-examination he has admitted that only deceased had gone to school on that date.
Learned counsel for the appellant further contended that even P.W.2. Has changed his version while appearing in Court whereas before the police he has made different statement but while appearing in Court he has become eye-witness of the main occurrence and such improvement in the statement makes the prosecution case highly doubtful. Learned counsel stated that there is material contradiction in the statements of P.W.1. And P.W.2 and the learned trial Court erred in law in convicting the appellant while appreciating their statements. Learned counsel further submitted that chhuri was allegedly recovered on the pointing out of the appellant but in the recovery memo.
It is nowhere mentioned that the same was stained with blood. Learned counsel contended that the medical evidence does not corroborate with the ocular account as in the F.I.R. It is mentioned that the deceased received three injuries whereas doctor has observed four injuries on his person and this contradiction further clarifies that the witnesses were not present at the place of occurrence. Learned counsel for the appellant urged that as the prosecution has failed to prove its case as such the appellant is entitled to benefit of doubt and ultimate acquittal. Lastly, learned counsel argued that the appellant was of 20 years of age at the relevant time, therefore he is entitled for lesser penalty.
9. As against above, the learned Law Officer contends that the deceased was only 12 years of age and the motive was unnatural lust; that the presence of witnesses is natural at the time of occurrence; that the occurrence took place at 7-30 a.m. And sufficient light was available for identification of accused/appellant; that ocular account corroborates the medical evidence; that the complainant is the father of the deceased and no or any reason to falsely implicate the appellant so the appellant is the sole accused with the specific allegation of causing fatal injury to the deceased; that chhuri was recovered on the pointing out of the appellant and in the recovery memo. It was stated that chhuri was found blood-stained. In the end learned Additional Prosecutor General has urged that as the prosecution has proved its case beyond any reasonable doubt, therefore, the appellant who is involved in a heinous crime is not entitled for any concession.
10. We have given our anxious considerations to the arguments advanced on behalf of both sides and perused the record with the able assistance of learned counsel for the appellant as well as learned Additional Prosecutor-General Punjab.
11. The occurrence in this case has taken place early in the morning i.e, 7-3Q a.m. On 3-5-2003 and the matter was reported to the police at 8-30 a.m. From Mouza Chak Qazian.. The application was furnished by Muhammad Arshad son of Niamat who happens to be an unfortunate father of deceased Muhammad Irshad aged about 12 years, The most apathetic aspect of this case is that student of 8th class aged about 12 years was done to death only because of his tender age and he was made victim by the appellant just to fulfil his lust for unnatural sexual intercourse. The ocular account in this case is coming from the source of P.Ws. 1 and 2. P.W.1. Muhammad Axshad while lodging the report with the police had stated that unfortunately he had gone to the house of his in- laws on the previous night and stayed there overnight and on the fateful day he let his son to proceed to school in the company of his daughter aged about 8 years and this lapse at the part of father of the complainant paved the way for such ugly and unfortunate incident. The father of the victim Irshad Ahmed was earlier appraised by the deceased on 30-4-2003 i.e, just four days prior to the occurrence that the appellant was passing indecent remarks while he was going and coming from the school. The father of the victim had taken note of it and the matter was reported to other family members of the appellant, however, they did not pay any heed to the complaint made by father of unfortunate Irshad Ahmed which ultimately culminated into the incident which would remind lapse to the father till last sigh of his life.
12. The time of occurrence, manner of occurrence and the number of injuries are duly substantiated by the prosecution. Recovery of chhuri from the fields of Shatala further lends support to the prosecution version. During the course of investigation, the appellant was duly found guilty and consequently his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. The age of the appellant as argued by learned counsel of 20 years could not be made basis for bringing his case Within the ambit of mitigation because it is settled principle of criminal law that each and every case has to be decided on its own peculiar facts and circumstances. In this case conduct of the appellant is so callous and ruthless that the sentence of death seems to be most appropriate in the given circumstances. The appellant under the garb of being an influential character had attempted to molest a child of tender age just with an intent to fulfil illicit lust, which has created such a loss to the family of the deceased, which cannot be compensated by any stretch of imagination. Even otherwise such like incidents of atrocities committed by bad people like the appellant who are hampering with the social life of certain families ought to be dealt with iron hands to keep the future of rest alive.
13. In sequel to what has been discussed above and while keeping in view the dictum of law laid down in the cases of Muhammad Javed and 2 others v. The State (1985 M LD 673) and Muhammad Mushtaq v. The State (1973 SCM R 219), Criminal Appeal No,1700 of 2004 filed by the appellant is dismissed in toto. Murder Reference No,856 of 2004 forwarded by the learned trial Court for confirmation of death sentence in answered in Affirmative. Death sentence is Confirmed.