Arshad Mahmood, J.--This appeal is directed against the judgment dated 28.04.2004 passed by learned Additional Sessions Judge Bhalwal District Sargodha whereby having tried the appellant he was convicted under Section 302(b) PPC and sentenced to death. Murder Reference No, 285 of 2004 was sent by the learned trial Court for the confirmation of sentence. Criminal Appeal No, 108-J of 2005 was filed by the accused. Criminal Revision No, 555 of 2004 was filed by the complainant for awarding compensation to the legal heirs of the deceased Tariq Masood. All these matters are being disposed of through this single judgment as they arise out of the same judgment.
2. Brief facts of the case are that the appellant was servant of Tariq Masood deceased in poultry shed for five/six months prior to this occurrence. On 17.08.2003 at 3.00 p.m. the complainant along with Imtiaz Ahmad and Asif Mehmood went to supply lunch to his brother Tariq Masood on, poultry shed and saw his brother Tariq Masood lying-on a cot below Sukh Chain Tree. In their sight appellant Rahat Ali armed with pistol .30 bore from back side to Tariq Masood deceased made three consecutive fires out of which two hit on the back of the neck on right side while one on the back below his left shoulder. On his alarm complainant and others reached at the spot. When appellant saw the complainant and PWs he fled away towards garden by waving his pistol and Tariq Masood succumbed to injuries. Motive of the occurrence was that Tariq Masood deceased had caught appellant Rahat Ali red handed while stealing the chicks and he abused the appellant and also gave him slaps. On the basis of complainant's statement formal FIR Ex.P.B was registered.
Abdul Latif Khan ASI/I.O: (PW-8) inspected the dead-body of deceased and prepared injury statement Ex.P.J and inquest report Ex.P.K. He dispatched the dead-body of the deceased to mortuary for post-mortem examination. He collected blood stained earth vide recovery memo Ex.P.E. He also collected three crime empties P-5/1-3 from the place of occurrence which were sealed into parcel vide recovery memo Ex.P.F. He prepared rough site-plan of place of occurrence Ex.P.L. Then Aman Ullah 1255-C produced before him last worn clothes of the deceased shirt P-1, shalwar PW-2 both blood stained and a sealed phial which he took into possession vide recovery memo Ex.P.A. On 19.08.2003 he got prepared site-plan Ex.P.0 and Ex.P.C/1. He arrested the appellant Rahat Ali on 22.08.2003 and on his pointation on 25.08.2003 recovered pistol P-3 and five live bullets of .30 bore pistol P4/1-5 from his residential room which were sealed into-parcel and taken into possession vide recovery memo Ex.P.B. He also prepared thg rough sit-plan of place of recovery of pistol Ex.P.B-/1.
3. Medical evidence was furnished by Dr. Khalid Mehmood (PW-9). He stated that on 17.08.2004 he conducted post-mortem examination on the dead body of Tariq Masood deceased and upon examination he found the following injuries:- "1. A lacerated wound 1 CM x 1 CM on right side of neck. Posteriorly. Margins were inverted. The wound was entry one.
2-A. (Wound of entry)
A lacerated wound 1 CM x 1 CM with inverted margins on back right side of neck. Posterior to Injury No, 1, 3CM outer to spine.
2-B (Wound of exit) A lacerated wound 21/2 CM x 1 CM with everted margins below left shoulder on the back of left chest 4 CM outer to spine."
He tendered in evidence copy of post-mortem report Ex.P.M, and copy of sketch of injuries Exh.PM/1.
He also singed injury statement Ex.P.J and inquest report Ex.P.K.
4. After completing legal formalities, challan was submitted against the appellant before the Court of competent jurisdiction. Appellant was formally charge sheeted on 17.12.2004 under Section 302 PPC to which he pleaded not guilty and claimed trial. Therefore, the prosecution was called upon to produce its evidence. The prosecution in order to prove its case against the appellant produced 10 witnesses during the trial. After conclusion of prosecution evidence statement of the appellant under Section 342 Cr.P.0 was recorded on 29.01.2004. In defence Nazir Ahmad appeared as DW-1 whereas Dr. Muhammad Khan Radiologist DHQ Hospital appeared as CW-1. In answer to question as to why the case was against him and why the PWs had deposed against him, the appellant replied-- "I relinquished my private service at the poultary farm of Tariq Masood deceased and the complainant insisted that he should continue his service and I refused due to that complainant had borne grudge. I was falsely implicated and PWs have made false statement."
5. After conclusion of trial the appellant was convicted by the learned trial Court under Section 302(b) PPC and sentenced to death.
6. At the very outset learned counsel for the appellant has conceded the conviction under Section 302(b) PPC but questions the sentence of appellant on the ground that he was aged approximately 14 years at the time of incident and the pehalty of death is inappropriate which has resulted in miscarriage of justice and thus is unsustainable in law.
7. Conversely, it is argued on behalf of the State that plea of appellant that he was fourteen years of age at the time of incident pales into insignificance in view of the opinion of the Medical Board according to which at the time of his examination on 25.02.2004 he was aged about 22 years.
8. We have heard learned counsel for the parties and examined the record.
9. It is a case of single accused and real brother of the deceased has saddled appellant with responsibility of his murder. Ocular account in the case was furnished by Abdul Razzaq complainant (P.W.5) who stated that he along with Imtiaz (P.W.6) and Asif Mahmood went to supply food to Tariq Masood deceased and in their view the appellant fired three shots at Tariq Masood, which hit him on the right side of neck and as a result thereof Tariq Masood died at the spot. The occurrence took place at 03.00 p.m. and the matter was reported to the Police at 03.45 p.m. in the Police Station which was at a distance of six miles from the place of occurrence. Imtiaz (P.W.6) appeared for corroboration. He supported the statement of P.W. 5 on all material points and withstood the test of cross-examination. Dr. Khalid Mehmood conducted post-mortem examination of the deceased on the same day at 08.45 p.m and while appearing as P.W.9 he supported the ocular account on the point of seat of injuries and the weapon of offence. He stated that time between the injuries and death was immediate whereas time between the death and post-mortem examination was about five hours. Time of occurrence stated by the complainant was thus fully corroborated by the medical evidence. Therefore, it was a promptly lodged FIR registered without any deliberation and the appellant's plea that he has falsely implicated in this case falls to the ground.
10. Mere fact that eye-witnesses are related to the deceased ipso facto is not a legitimate reason to discard their version who had no previous ill-will animosity or motive to falsely implicate the appellant. They had satisfactorily established their presence at the crime scene at the relevant time and they can be safely relied upon whose testimony is credible and confidence inspiring. The stance of eye-witnesses was further corroborated by the Investigating Officer (P.W. 8) who during the course of investigation arrested the appellant, on his pointation recovered the weapon of offence along with five live bullets and found the appellant guilty for the murder of Tariq Masood.
11. Courts have to weight quality of evidence and not quantity and even in a murder case testimony of a single reliable witness is enough to base conviction. Furthermore, if ocular account is coherent, consistent, trustworthy and confidence inspiring, minor discrepancies cropping up in prosecution evidence without touching intrinsic value are of no avail to defence. Here ocular account is up to the required standards and no inherent defect is surfacing in prosecution evidence. Plea of substitution of appellant has no foundation. It is unimaginable that the real brother would spare the real culprit for murder of his brother and involve someone unconcerned. In case of single accused substitution is a rare phenomenon. Reference may be made to "Shaukat Javaid versus The State" (PLJ 1993 Cr.C. 232), "Muhammad Ayyub alias Nikka versus The State" (PLJ 1893 SC 19), "Mumtaz Khan versus The State" (NLR 1994 Criminal 411), "Siraj Din versus Kala and another" (PLD 1964 SC 26). The prosecution has successfully proved the charge against the appellant under Section 302(b) PPC beyond a reasonable doubt.
12. Now we take up the question of quantum of sentence. Occurrence in this case had taken place on 17.08.2003. Statement of the appellant under Section 342 Cr.P.C. was recorded on 29.01.2004 where in he stated his age as 16/17 years. He tendered in evidence his birth certificate, Ex.D.C, according two which he was born on 09.10.1989. In aid of plea of being of teenage, he examined Nazir Ahmad School Teacher of Government Primary School Madad Khail, Tehsil and District Mianwali as DW.1 who stated that the appellant had been a student of his school and tendered in evidence School Leaving Certificate Exh.DB, which reflects that he was admitted in School on 02.10.1996 born on 09.10.1989 and left school on 08.09.1999. The name of appellant appears at Serial No, 638 of the Register Dakhil Kharij Exh.DA which carries the same detail that date of birth of appellant is 09.10.1989 who left school on 08.09.1999. D.W.1 Nazir Ahmad has successfully withstood the test of lengthy cross-examination and his testimony -remained unshaken. On the other side, appellant was medically examined on 24.02.2004 for determination of his age by the Board who pointed vide Exh.C.W.1 that his age was 22 years. The opinion is based on the investigation conducted by Radiologist Dr. Muhammad Khalid who appeared as CW.1. In his cross-examination he admitted that his information is based on X-Ray report only. When cross-examined on other points he admitted "The third molar may appear at the age of 17 and sometime it may not appear in whole of life. I have not described the dental/X-Ray view in the report. Dentist was not made Member of the board." He further stated that facility of determination of age through `NMR' is not available in DHQ Hospital Sargodha or any Government Hospital. The determination of the age can be made by NMR." The other mode of age determination which is more advanced and recent is by means of MRI. NMR stands for Nuclear Magnetic Resonance. In the early days of introduction of technology for various medical investigations, when the machines were introduced, this expression was in vogue, which in the recent past has improved many steps and is commonly known as Magnetic Resonance Imaging (MRI). The lack of latest information about the technology is enough to demonstrate that the professional knowledge of the witness is not up-to-date who is still proceeding in the conventional ways. Although according to him he relied on X-Ray images but still he did not point out as to whether the X-Rays were simple or digital, which leaves room to doubt the reliability and authenticity of his source. Be that as it may, since a very important side relating to the determination of age through the opinion of a Dental Expert has not been resorted to which has very important bearing on the point in issue, it is highly unsafe to rely merely on the report of a Radiologist especially ,when benefit and advantage of the latest technology of investigation through MRI has also not been taken which in the circumstances of the case was essential as the appellant was facing the charge of a capital punishment. In the peculiar circumstances of the case when two views are possible, according to the law laid down by the Hon'ble Supreme Court of Pakistan, one favouring the accused is to be accepted and the controversy resolved in his favour. Reliance is placed on K "Umar Hayat versus Jahangir and another" (2002 SCM R 629), "Sarfraz alias Sappi and 2 others versus The State" (2000 SCM R 1758) and 'Muhammad Mumtaz Khan versus The State" (1999 SCM R 837). Here the prosecution was unable to shake the documentary evidence as also the testimony of the School Teacher Nazir Ahmad D.W.1 in support of stance of the appellant being of tender age.
13. For what has been discussed above a conclusion is irresistible that the learned trial Court was justified in convicting the appellant for an offence under Section 302(b), PPC and the conviction so recorded by the learned trial Court has appeared to us to be unassailable keeping in view the evidence available on the record. In these circumstances Crl. Appeal No, 108-J-2004 filed by Rahat Ali appellant is L dismissed to the extent of his conviction recorded by the learned trial Court for an offence under Section 302(b), PPC but keeping in view the prime youth of the appellant as discussed above, appeal is partly allowed to the extent of his sentence and the appellant's punishment of death is converted into imprisonment for life. Benefit of Section 382-B Cr.P.C. is also extended to the appellant.
14.During the hearing of this appeal we have noticed that the learned trial Court has omitted to award compensation to the legal heirs of deceased Tariq Masood which is mandatory and in case of refusal to grant compensation the Court has to impugned judgment. When confronted with the mandatory provisions of Section 544-A Cr.P.C. learned counsel for the appellant had no answer.
Therefore, invoking the provisions of Section 544-A Cr.P.C. we direct the appellant to pay a sum of Rs, 50,000/- (rupees fifty thousand only) as compensation to the legal heirs of Tariq Masood deceased. In default thereof he shall undergo six months Simple Imprisonment 15.The murder reference is answered in the NEGATIVE. The death sentence of appellant Rahat Ali is NOT CONFIRMED.