GHULAM MUJADDID MIRZA, J: Khalid Farooq son of Muhammad Siddiq, aged 16, was tried for the murder of Nasrullah, 14 years of age, as well as for attempt to murder his younger brother Ghulam Mustafa, aged 10 years. He was found guilty on both the counts by the trial Judge and sentenced to death for the murder and fire of Rs. 1000 or in default six months' R.I. He was further sentenced under section 307, P. P. C. To ten years' R. J. And fine of Rs. 1,000; in default six months' R. I.
The convict has filed appeal against the judgment of the trial Court. Reference for confirmation of death sentence is also before us. Both the matters shall be decided by this judgment.
2. The prosecution story is that at about 10 p.m. In the night between Ist and 2April, 1976, while the two brothers were sleeping on the same cot in their Dera in Chak No. 159/R.B. They were attacked by the appellant with a hatchet. Nasrullah was fatally injured. His brother Mustafa survived.
The motive for the alleged attack was that about seven years ago, Rafiq, Latif and Nawab had attacked and killed the father of the appellant. These three persons were tried and ultimately acquitted by the High Court about three years prior to this occurrence. This attack was in retaliation of his father's murder.
The first information report Exh. P. J. Was lodged by Muhammad Rafiq at Police Station Chak Jhumra on 2-4-1976. It was recorded by Akbar Hayat S. I. At 7 a.m.
3. The prosecution in support of its case relied on the testimony of the complainant, Muhammad Rafiq, and Ghulam Mustafa, father and younger brother of the deceased respectively. In addition to this reliance was placed on the recovery of hatchet, which according to the Serologist's report Exh.
P. O. Was found to be stained with human blood, post-mortem report of the deceased and the medico legal report of the injured.nd
4. The appellant denied all the allegations, pleaded not guilty, declined to produce any evidence in defence and said that the prosecution witnesses were related to the deceased and were inimical towards him.
When questioned "why this case against you", his answer was ass follows:---- "I and my brothers own three killas of land in Chak No. 159/R. B. Which is under the forcible possession of Rafiq P. W. Since 1970. When my father was murdered. Muhammad Rafiq wishes to prolong his possession. Therefore, he has implicated me falsely in this case."
5. Muhammad Rafiq complainant stuck to the same version before the trial Court which he had given in the first information report Exh. P. J. His statement was that he and his sons Nasrullah and Ghulam Mustafa were sleeping at his Dera in killa No. 15 Square No. 105. The time was 10 p.m. When he heard cries of his sons. He got up and saw the appellant causing injuries to both the boys -with hatchet. He raised hue and cry on which Abdul Latif came to the spot. Khalid, however, managed to escape. He also deposed about the motive which has been referred to above but clarified that Abdul Latif, his brother, had murdered the father of Khalid seven years ago for which he, his brother Latif and their father were challaned but were acquitted by the High Court.
Ghulam Musthfa when examined by Court supported his father and said that he was sleeping on the same cot with his deceased brother when they were attacked. According to this witness five blows were given to his brother and eight to him. He-identified the assailant to be Khalid in the light of the lantern. His father dame to the spot on hearing alarm.
6. Mr. Bajwa, learned counsel for the appellant, attacked the prosecution story on number of grounds. His first submission was that the first information report was lodged after considerable delay. The prosecution did not give any explanation for that. It was next contended that the night was dark, therefore, it could not be positively said that it was the appellant who had attacked Nasrullah and Ghulam Mustafa. It was further submitted that if at all the evidence of these two witnesses, who are closely related to the deceased, is to be believed then it must find corroboration from some other independent evidence of unimpeachable character.
7. We have also heard the learned counsel for the State who supported the impugned judgment and submitted that not only the appellant has been rightly convicted but also sentenced rightly.
8. After considering the arguments of both sides, we are of the view that it is not a case of acquittal.
There is no delay in lodging the first information report. The occurrence took place at about 10 p .m.
The Police Station was at a distance of five miles. The report was lodged on 2-4-1976 at 7 a.m. It is quite natural that the complainant must shave taken some time to compose himself after having seen his two sons being attacked, out of whom one died. Similarly, we find no reason to discard the evidence of the two witnesses because they were natural witnesses. Both have implicated the appellant. We are more impressed by the testimony of Ghulam Mustafa because of his tender age.
He stood the test of cross-examination very well and the defence did not succeed in discrediting hi testimony. Although the evidence of these two witnesses is sufficient t uphold the conviction of the appellant, nevertheless it finds support -fro the recovery of hatchet and the Medical evidence.
Dr. Iqbal Ahmad Javed who performed the post-mortem of Nasrullah found 6 incised wounds on his person. According to him, death was due to incised wound on the middle of left side of the head 1--' above the left ear, 2' x ----- fracture of the left parietal bone and incised wound on the middle of the back surface of the bead 2' x --` fracture of the occipital bone. The testimony of the two eye- witnesses stands corroborated by the aforesaid circumstantial evidence and we are of the view that the prosecution proved its case beyond any doubt. We, therefore, maintain the conviction of the appellant under section 302, P. P. C.
This leaves us to examine the question of sentence. After due consideration we are of the view that it is not a fit case where death sentence is to be confirmed. There are two reasons for that: one is age factor of the appellant and the other, according to the prosecution, the motive for the attack was that father of the appellant had been killed and the complainant, his brother and their father were accused in that case. In view of these two factors, we decline to confirm the death sentence and commute it to imprisonment for life.
The trial Judge while imposing capital sentence awarded Rs. 1,C00 as fine. It so seems that the punishment of fine, the Judge took mere as a formality but it is not so. In death/hurt cases, fine is imposed as compensation which is to be given to the deceased/injured persons legal heirs.
Therefore while awarding compensation the Courts must take into consideration all the relevant circumstances and the amount should also be reasonable keeping in view the gravity of the crime.
Hence, we gave notice to Mr. Bajwa as to why the fine of Rs. 1,000 awarded under section 302, P. P.
C. Be not enhanced. He accepted notice. We, therefore, enhance this amount to Rs. 30,000 (rupees thirty thousand which shall be paid as compensation to the father of the deceased.
As we have enhanced the fine under section 302, P. P. C., we don't think it is necessary to do so under the second count.
For the foregoing reasons, we decline to confirm the death sentence, which as already observed stands commuted to imprisonment for life. The conviction and sentence under section 307, P. P. C.
Is maintained. Both the sentences shall run concurrently.
The Collector concerned is hereby directed to take necessary steps for realisation of the aforesaid amount to be paid to the father of the deceased under intimation to the Registrar of this Court.