SHAKEEL AHMED BALOCH, J.---This judgment disposes of Criminal Appeal No,351 of 2013 filed by the appellant Rehmat Ullah Son of Habib Ullah under section 410, Cr.P.C. Read with section 13 of Juvenile Justice System Ordinance, 2000, against the judgment dated 11th November, 2013 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge/Juvenile Court Lasbella at Hub (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. For committing murder of Akhtar Muhammad and sentenced to suffer for life imprisonment and to pay Rs,100,000 (Rupees One Lac) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof to further suffer Six (6) months' S.I., with the benefit of section 382-B, Cr.P.C. While the co-accused Khalid was acquitted of the charge.
2. Facts of the case are that on 12th January, 2010 the complainant Wajdad son of Noor Muhammad lodged FIR No,09/2010 at Police Station Hub City District Lasbella under sections 302, 109, 34, P.P.C., stating therein that he is permanent resident of Gishkore Awaran and for the last four years he along with his family is residing at Akram Colony Hub; that he had purchased a house and a shop from Habib Ullah Magsi and in the said shop he is running his grocery business. It is alleged that on the day of occurrence at about 6-00 p.m. He along with his son were sitting in the shop, when accused Rehmatullah and Khalid came there, the appellant Rehmatullah was having a pistol; that his son Akhtar Muhammad came out of the shop and was close to the gate of his house, when the appellant fired three shots upon his son, which hit on his chest, due to which his son became unconscious and fell down, who was taken to Jam Ghulam Qadir Hospital Hub in a Rickshaw, but he succumbed to the injuries on the way, whose dead body was brought to the hospital. The complainant further stated that his son was murdered by the appellant and co- accused Khalid with the consultation of their brother Jan Muhammad and father Habib Ullah due to business rivalry as the accused party was also having a grocery shop adjacent to the shop of complainant, but the customers were mostly attracted to his shop; that previously the accused had altercation with his son for the said reason.
3. In pursuance of the above FIR, investigation was conducted by P.W.8 Talib Hussain, IP, who inspected the place of occurrence; prepared site sketch; recovered one empty from the site; prepared the inquest report; took into possession the blood stained clothes of deceased; recorded the statements of witnesses under section 161, Cr.P.C.; arrested the nominated accused Rehmatullah and Khalid; recorded the disclosure of accused Rehmatullah; obtained death certificate of deceased; arrested co-accused Habib Ullah on 19th January, 2010 after rejection of his pre-arrest bail and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced eight witnesses. The appellant and co-accused were examined under section 342, Cr.P.C. They also recorded their statements on oath under section 340(2), Cr.P.C., but did not produce any witness in their defence. On conclusion of trial, the learned trial Court vide judgment dated 25th February, 2011 awarded death sentence to the appellant, whereas co-accused Khalid was awarded life imprisonment, while co-accused Habib Ullah was acquitted of the charge. Both the convicts filed Criminal Appeal No,33/2011 before this Court, which was accepted by this Court vide judgment dated 15th September, 2011 and after setting-aside the judgment dated 25th February, 2011 of trial Court, the matter was remanded to the trial Court with the directions to decide the case afresh after making discrete inquiry with regard to the age of the convicts being juvenile or otherwise.
5. In compliance of the remand order, the trial Court recorded the evidence of parties and also referred the accused to the Medical Board, who after conducting different medical tests/examination of the accused submitted the report. The ,trial Court rejected/declined the request of the accused to declare them as Juvenile. The accused filed Criminal Revision No,173 of 2012 before this Court, which was accepted, vide judgment dated 19th July, 2013 and both the accused were declared as Juvenile. The trial Court was directed to decide the case strictly on merits in accordance with law while considering the accused as Juvenile.
6. On conclusion of trial and hearing arguments the learned trial Court, vide impugned judgment convicted and sentenced the appellant as mentioned above in Para-1, whereafter, the instant appeal has been filed.
7. Learned counsel for the appellant stated that the impugned judgment is result of misreading of the evidence available on record; that the trial Court below has failed to distinct between the hearsay and the direct evidence; that the disclosure of appellant recorded during investigation is inadmissible, but the trial Court has wrongly taken the smile into consideration while awarding conviction to the appellant; that the prosecution evidence is full of discrepancies, dishonest improvements and false accusation, but the same was wrongly made a basis for awarding conviction to the appellant; that the trial Court has awarded a very harsh punishment to the appellant by ignoring the fact that the appellant is a juvenile.
8. Learned Deputy Prosecutor-General while supporting the conviction and sentence stated that sufficient incriminating evidence is available on record to connect the appellant with the commission of offence; that the evidence on record has rightly been appreciated by the trial Court while awarding conviction to the appellant; that the trial Court after duly considering the age of the appellant has awarded life imprisonment to the appellant instead of death penalty as such, the sentence cannot be termed as very harsh.
9. Heard the learned counsel for parties and perused the available record. As per prosecution, on 12th January, 2010 at about 6-00 p.m. The appellant along with co-accused Khalid and Habib Ullah in furtherance of their common intention made firing upon the appellant, due to which he sustained bullet injuries on his chest and he succumbed to the injures on the way to the hospital.
10. The unnatural death of deceased Akhtar Muhammad is not disputed rather the defence admitted the unnatural death of deceased, but pleaded false implication. P.W.6 Dr. Muhammad Ameen examined the deceased and confirmed that the cause of death of the deceased is due to bullet injuries on his chest. P.W.6 issued death certificate Exh.P/6-A, which confirms the unnatural death of deceased.
11. The complainant of the case appeared as P.W.1, who reiterated the contents of Fard-e-Bayan Exh.P/1-A. The complainant accurately stated the date, time, place of occurrence and the manner in which the occurrence took place. The complainant/P.W.1 categorically stated in his statement that the appellant Rehmatullah fired upon the deceased Akhtar Muhammad with pistol, which hit on his chest and he fell down and while taking him to hospital he succumbed to the injuries. The said witness was cross-examined at length, but nothing beneficial came on record in favour of defence. The witness remained firm in his deposition and defence has failed to give jolt or cause any dent in the statement of P. W.1
12. P.W.2 Sarwar Ahmed, Rickshaw Driver is the independent eyewitness of the occurrence, whose statement is in line with the statement of P. W.1. P.W.2 stated that he saw the deceased running towards his house followed by the appellant and co-accused Khalid and the appellant Rehmatullah was holding a pistol in his hand, from which he fired upon deceased, who received bullet injuries on his chest and while taking the deceased to hospital in his Rickshaw, the deceased expired. The defence has failed to bring on record any ill-will or element of false implication on the part of P.W.2. The defence has also failed to show any relation of P.W.2 with the complainant party.
The statement of P.W.2 cannot be ruled out of consideration as P.W.2 being independent witness has fully supported the prosecution version.
13. P.W.3 Muhammad Hasil is third independent eye-witness of the occurrence, who recorded his statement in line with the statement of P.W.1 and P.W.2. P.W.3 correctly narrated the date, time and place of occurrence as stated by P. W.1 and P.W.2 and further stated that he saw the deceased running towards his house followed by the appellant having pistol in his hand and as soon as the deceased reached near the gate of his house, the appellant made straight fires upon him, due to which the deceased received injuries and fell down, whereafter the accused escaped from the scene of occurrence. P.W.3 along with P.W.2 took the deceased to hospital, who on the way succumbed to injuries. The statement of P.W.3 is confidence inspiring and the defence has also failed to bring on record any mala fide or ulterior motive on the part of P.W.3 for false implication of the appellant.
14. P.W.4 Wahid Bakhsh and P.W.5 Bhutto have not seen the occurrence and they appear to be circumstantial witnesses, who after the occurrence accompanied the other witnesses to the hospital.
15. P.W.7 is the witness to the disclosure memo. Of the appellant. Perusal of disclosure memo. Of the appellant leads to discovery of new facts, which were not known earlier. Hence, the disclosure of the appellant is admissible piece of evidence and the same has further strengthened the case of prosecution.
16. The Investigating Officer/P.W.8 .Has given explanation that blood stained earth was not collected for the reason that the place of occurrence was pacca road and it was washed.
17. With regard to defence plea of false implication of the appellant by the complainant/P.W.1, suffice to observe that substitution is a rare phenomenon and it is not acceptable for a prudent mind to believe that the complainant whose son has been murdered would substitute the actual culprit(s) with the appellant. The parties were known to each other previously and the question of mistaken identity of the real culprit(s) does not arise. Reliance in this regard is placed on the case of Allah Ditta v. The State, reported in PLD 2002 SC 52 and the case of Hal All Shan v. The State reported in 2001 PCr.LJ 1320.
18. The prosecution has also successfully proved the motive of the occurrence as both the complainant and accused party had adjacent shops and were having business rivalry. Even otherwise, the Investigating Officer P.W.8 stated in cross examination that two days prior to the occurrence the appellant along with his brother had come to the police station and complained that they had a dispute with the deceased over water, but no written report or FIR was lodged.
19. With regard to quantum of sentence, it is to be appreciated that normal penalty for the offence under section 302(b), P.P.C., if proved, is death sentence, but the appellant being a Juvenile has been awarded sentence of imprisonment for life. Even otherwise, according to settled principles of law the age factor can only been seen in case of minor offences, but case of a heinous offence of murder cannot be treated at par with the minor offences. Though, the age, type and seriousness of offences and the past record of criminal activities of an accused, at the time of his conviction is a relevant factor, which shall also be adhered to Juvenile Justice System, which is certainly meant to treat a child accused with care offering him a chance to reform and settle into the mainstream of society but the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences. In view of the above, the contention of the learned counsel for the appellant is unpersuasive.
20. The evidence of three eye-witnesses, medical evidence coupled with the circumstantial evidence of two witnesses, disclosure of the appellant, the recovery of the crime empty of pistol and surrendering of the appellant to the police soon after commission of crime proves beyond any shadow of doubt that the deceased was murdered by the appellant E due to business rivalry. The prosecution evidence is confidence inspiring and same is not suffering from any contradictions or infirmity. The trial Court after properly appreciating the evidence available on record has rightly awarded conviction to the appellant vide impugned judgment which does not warrant interference by this Court.
For the above reasons, the appeal is dismissed.