JUDGMENT MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeals filed by Ghulam Rasool viz: one filed through private counsel and the other through Superintendent Jail, as well as above captioned Murder Reference for confirmation of his death sentence or otherwise being emanated from same impugned judgment, who was convicted and sentenced by learned Addl. Sessions Judge, Bahawalnagar in case vide F.I.R. No.322, dated 11-7- 2008 under section 302, P.P.C. Registered at Police Station. Minchanabad, Distt. Bahawalnagar vide impugned judgment dated 3-6-2009. Following conviction and sentence was imposed on the appellant:-- GHULAM RASOOL, APPEL-. LANT Death sentence under section 302(b), P.P.C. As Tazir and to pay Rs.1,00,000 as compensation to the legal heirs of deceased Binyameen under section 544-A of Cr.P.C. Or in default thereof to further undergo S.I. For a period of six months.
2. The facts in brief as disclosed by complainant Noor Nabi (P.W.1) in F.I.R. (Exh.PA/1) are that he resides in "Khushaal Singh" and cultivator by profession. He has four sons and two daughters whereas Binyameen (deceased) is at No.2 among his sons who used to graze goats. Today i.e. 10- 7-2008 as per routine his on Binyameen went to graze the goats and one of those goats went into Jantar crop, which was taken out by his sod. In the meanwhile, Ghulam Rasool (appellant) hit with his stick at the lower part of abdomen of his son Binyameen and while strangulating him pushed down towards earth with force. The witnesses namely Jameel, Maqbool Ahmad also witnessed the occurrence and they by raising a Lalkara took care of Binyameen deceased who became unconscious. Afterwards, he took him in a private vehicle to THQ, Hospital Minchanabad where doctor told him that child is in a severe pain and the same be taken to DHQ Hospital, Bahawalnagar whereupon he took his son to DHQ Hospital, Bahawalnagar where his son Binyameen deceased succumbed to the injuries. Hence, this case.
3. After receipt of information about the occurrence, Shahid Rasool S.-I. (P.W.5) on 11-7-2008 recorded the statement of Noor Nabi Exh.PA and sent the same to the Police Station for registration of the case. Thereafter, he proceeded to the place of occurrence, inspected the place of occurrence and prepared the rough site plan of the place of occurrence Exh.PF. He also prepared the injury statement of the deceased Exh.PG and inquest report Exh.PG/1 and sent the dead body for post mortem examination. After post mortem examination the doctor handed over to him last worn clothes of the deceased Qameez P-2, Shalwar P-3 which he took into possession vide recovery memo. Exh.PC attested by the P.Ws. On 18-7-2008, he arrested the appellant, obtained physical remand who on 22-7-2008 while in police custody after making disclosure led to the recovery of Soti P-1 which was recovered from the crop of Jantar near the place of occurrence which was taken into possession vide recovery memo. Exh.PB, attested by the P.Ws. He also prepared site plan of the place of recovery Exh.PH. He also recorded the statements of the P.Ws.
Stage-were. He deposited the case property with the Moharrar/HC for its safe custody in the Maal Khana. He also got prepared scaled site plan from the Draftsman Exh.PD and Exh.PD/1. He during his investigation found the appellant as guilty. After completion of investigation, challan was submitted against the appellant to face the trial.
3(sic) Learned trial Court after observing all the pre-trial codal formalities, indicated the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was asked to lead evidence in order to prove its case.
4. At the trial, the prosecution in order to prove its case produced 6 witnesses in all.
The medical evidence was adduced through the statement of Dr. Jamil Ahmad. (P.W.4) who conducted post mortem examination on the dead body of Binyameen deceased on 11-7-2008 at 11-00 a.m. And observed as under:-- INJURIES.
(i) A contusion mark on back of neck and lower part of skull size 4 x 3 cm.
(ii) An abrasion with swelling on lower part of abdomen above right side of pubic region.
(Remarks) In his opinion, the cause of death in this case was due to Injury No.1 which may cause damage to blood vessels of brain led to haemorrhage, formation of blood clot in the brain with compression and death. However, hyoid bone was taken and sent to Bacteriologist for ruling out the injury at neck. The Injury No.1 was ante mortem and caused by blunt weapon and was sufficient to cause death in ordinary course of nature.
The probable time between the injuries and death was within 24 hours and between the death and post mortem was also within 24 hours.
After the post mortem examination, dead body along with last worn clothes and post-mortem report along with police papers, he handed over to Shahid Rasool S.-I. Exh.PE is the correct carbon copy of the post mortem report which bore his signature. Exh.PE/1 and Ex.PE/2 are diagrams which show the locale of injuries, also bore his signatures. He also endorsed the injury statement, inquest report and Forensic histopathologist report.
Learned DDPP renounced P.Ws. Namely Maqbool Ahmad, Ghulam Mustafa and Munir Ahmad as being unnecessary, thereafter; he by tendering in evidence report of Bacteriologist Exh:PI, closed the prosecution case. Then the statement of the appellant was recorded under section 342, Cr.P.C.
Wherein he negated the charge, and professed his innocence. However, after conclusion of the trial, appellant was convicted and sentenced as mentioned above by the learned trial court.
5. At the very outset, learned counsel for the appellant has not challenged the conviction of the appellant. However, he has struck on the quantum of the sentence that in the given circumstances of the case, the same is very harsh. It has been argued that there was no previous enmity between the deceased and the appellant. Occurrence has taken place at the Super of moment. No conventional weapon has been used in this case and the weapon allegedly recovered from the petitioner has not supported the prosecution version. Therefore, in these circumstances, it is a fit case for the reduction of quantum of sentence.
6. Learned D.P.-G. Assisted by the learned counsel for the complainant has opposed the submissions of the learned counsel for the appellant on the ground that the deceased was a by of 10/11 years and on a very petty matter the appellant has acted brutally and extinguished hope of the old parents of the deceased by committing his murder, it has further been argued that the appellant has admitted the commission of murder in his statement recorded under section 342, Cr.P.C, therefore, he does not deserve any concession and the appeal may be dismissed.
7. We have heard the learned counsel for the parties and have also gone through the record.
Occurrence allegedly took place when she-goat of the deceased entered in Chari Crop' of the appellant, the same was taken out by the deceased. In the meanwhile, appellant came there having held a Soti in his hand and caused its "Hujj" on the Paidu of deceased and after pressing his throat threw him on the ground. Consequently, the deceased died to the injuries. Perusal of the record reveals that there was no previous enmity between the appellant and the deceased.
Occurrence has taken place at the spur of the moment and no conventional weapon has been used in this case and the injury having allegedly been caused with Soti by the appellant by itself has not declared to be the cause of death of the deceased. The same has been mentioned as (an abrasion with swelling on lower part of abdomen above the right side of pubic region). The facts and circumstances of the case manifestly emerged that there was no previous enmity between the parties, occurrence took place at the spur of moment and no conventional weapon of offence has been used in this occurrence.
8. After discussing above facts and circumstances, the epitome of the -case is that prosecution has fully proved its case against the appellant beyond any shadow of doubt but sustaining of capital punishment in this case is uncalled for in the circumstances of the case, the same is commuted to imprisonment for life by extending him the benefit of section 382-B, Cr.P.C. However, the amount of compensation Rs.1,00,000- shall be paid by him to the legal heirs of the deceased in default thereof to further undergo S.I. For six months.
8. With this modification, the instant appeal is dismissed. However, the answer of Murder Reference replied in the negative.
9. As far as Criminal Appeal No.192-J of 2009 filed through Superintendent Jail is concerned, the same has become redundant and is disposed of accordingly.
10. Case property shall be disposed of in accordance with law but after the afflux of period of appeal, if any. The record of the trial. Court shall be remitted immediately.