' MAZHARUL HAQ, J.-- Muhammad Feroze (17) was tried for the murder of his co-villager Mahla by Malik Akhtar Hassan, Sessions Judge, Sargodha. On 2-12-1978 he was convicted under section 302, P.P.C. And sentenced to death. The appeal of the convict and the connected murder reference are before us.
2. About three and a half years before the occurrence in this case Said Amir, brother of the appellant, was murdered for which Bashir Ahmad (informant), his father Mahla and his brother Nazir alongwith some others were tried; but acquitted in May, 1975. In the cross-case registered under sections 326 and 148/149, P.P.C. Arising out of the same incident, the appellant, his uncle Ghulam Nabi and his cousin Umar Hayat were convicted. Later security proceedings were drawn up against both the parties and they were bound down to keep peace.
3. At about 11 a.m. On 20-12-1976, Mahla, his son Bashir Ahmad (informant) were waiting at Bus stand, Mauza Khan Muhammad Wale for a bus to go to Bhera because Mahla had to draw some money from the bank. They sat in waiting on a Charpai placed in front of the hotel of one Bashir which was closed that day. P.W.8 Ghulam Muhammad alias Gulla and P.W. Raja (not produced), residents of the same village also arrived there and sat on the ground near the Charpai waiting for the bus. In the meantime Feroze (appellant) armed with a hatchet suddenly appeared behind the deceased and gave a hatchet blow on the back of his head. Mahla fell on the Charpai; Feroze gave another hatchet blow on the left side of his neck. As the witnesses intervened the appellant left behind his hatchet and fled away towards the village. Mahla died at the spot. Bashir Ahmad rushed to Police Station, Bhera situated at a distance of five miles from the place of occurrence. He made the report Exh.P.A. To P.W.9 Muhammad Waris Khan, S.H.O. At 11-45 a.m. The same day. After registering the case, the S.H.O. Went to the spot. On reaching there at 1 p.m. He prepared the necessary documents and sent the dead body for its post-mortem examination. After collecting the blood-stained earth which was made into a sealed parcel vide memo. Exh.P.F., the S.I. Also picked up blood-stained hatchet (P.6) of the accused from the place of occurrence, it was sealed into a parcel vide memo. Exh.P.G. Through memo. Exh.P.H. He took into possession blood-stained Charpai Exh.P.5. The recoveries made from the spot were attested by P.W. 8 Ghulam Muhammad, Raja and Anara (given up as being unnecessary). By the Serologist's report Exh.P.N. The hatchet was found to be stained with human blood. The appellant was arrested the same day.
4. P.W.1 Dr. Muhammad Afzal held the autopsy at 4-15 p.m. On 20-12-1976 and found the following injuries on the dead body of Mahla:
(1) an incised wound 12 c.m. x bone cut on the back of head right side at a distance of 5 c.m. From right ear;
(2) an incised wound 8 c.m. x 6 c.m. x 5 c.m. On the right side of neck front side;
(3) a bruise 10 c.m. x 2 c.m. On the front side of right shoulder; and
(4) a bruise 5 c.m. x 2 c.m. On the front side of chest.
' Deceased's skull was fractured corresponding to injury No,1. The brain was cut and lacerated, right jugular vein and right corated artery, trachea, and oesophagus were cut through and through. The cervical vertebrae were fractured. Injuries Nos.1 and 2 were caused by a sharp-edged weapon and were sufficient to cause death in the ordinary course of nature. The remaining injuries were found to be simple, caused by a blunt weapon.
5. At trial, appellant admitted the details relating to the earlier murder of his brother but denied the subsequent security proceedings against him. Denying the prosecution case he ascribed the case to enmity and led no evidence in defence.
6. Trial Court relied on the evidence of the two eye-witnesses, recovery of the blood-stained hatchet of the appellant from the spot and came to the conclusion that the prosecution case was satisfactorily proved against the appellant.
7. Criticising trial Court's finding learned counsel for the appellant contended that it was difficult to accept that in broad daylight the appellant could have made a surprise attack on the deceased in the presence of others. Had the eye-witnesses been there, they could have easily checked the appellant or at least warned the deceased of appellant's arrival. We have considered this aspect of the matter. There is no doubt about the place of occurrence. The blood-stained articles including the blood-stained earth collected from there satisfactorily proved that the deceased was done to death at the Bus stand. As to the presence of the eye-witnesses there, P.W.7 Bashir Ahmad son of the deceased explained that he accompanied his father for going to Bhera to draw money from a bank. Had his assertion been false the defence could have proved by showing that Bashir was elsewhere or that the deceased had no bank account but there is no evidence in defence nor has any such suggestion been put to the informant. On the contrary Bashir was suggested that some unknown assailants had assaulted his father and he had falsely accused the appellant on account of previous enmity. However, this suggestion was also denied by him. P.W.7 Bashir Ahmad promptly made the F.I.R. And mentioned therein the names of the witnesses who also saw the occurrence. In his statement at the trial he fully supported the facts mentioned by him in the F.I.R. True, out of the two witnesses named in the F.I.R. Prosecution has produced only P.W.8 Ghulam Muhammad at the trial. But by giving up the other eye-witness namely, Raja as unnecessary the prosecution case did not suffer. Ghulam Muhammad (P.W.8) fully corroborated the testimony of Bashir Ahmad informant. Ghulam Muhammad was also to go to Bhera as he had to get some money from a goldsmith and was thus waiting for the Bus. He claimed to have sat on the ground near the Charpai on which the deceased and his son were sitting. This was exactly what the informant said in the F.I.R. Explaining why he sat on the ground Ghulam Muhammad said that as it was cold and he wanted to sit in the sun, therefore, he sat there facing the East. He gave the same detailed description of the attack as the informant did in the F.I.R. Again at the trial the eye-witnesses explained that as they tried to intervene, the appellant fled away leaving his hatchet behind. The prosecution story of the attack was not unnatural, because the witnesses were looking forward for the bus to arrive and were unmindful of who appeared behind them. Under these circumstances the attack was sudden and the accused gave two blows in quick succession before the witnesses could do somthing about it the accused left the weapon and decamped. No doubt, P.W. Ghulam Muhammad admitted under cross-examination that his first cousin Sultan was murdered but he did not know if one Muhammad was accused for the murder and he also did not know whether the murderer of his said cousin was sentenced to death and later acquitted on appeal. Though it seems rather strange that the witness would not know the name of his cousins murderer, yet at the same time it cannot be said with certainty that the witness was concealing the name of his cousin's assault because he was not suggested when his cousin was murdered. It might have been a very old occurrence. However, the witness denied the suggestion that the murderer of his cousin was the first cousin of appellant's grandfather. True P.W. Ghulam Muhammad is the first cousin of the deceased, but we find that he is also related to the accused, because his cousin's wife is a Phuphi of the appellant. We do not find any circumstance in this case to suggest that P.Ws. Bashir Ahmad and Ghulam Muhammad were not present at the spot. There evidence is consistent and we have no reason to disbelieve them. It is in evidence that the hotel in front of which the witnesses sat waiting for the Bus was closed that day and the house of its owner Shabbir Ahmad was at the back of the hotel. Under these circumstances there was no one present near the place of occurrence except those who have sworn their presence at the spot. An attempt was made to show that the deceased had other enemies. Had anyone out of them been the assailant then the witnesses would have named them and not substituted the appellant because substitution is a rare phenomenon. In view of the prompt report we have no doubt that the appellant was the assailant and the witnesses produced by the prosecution saw the occurrence.
8. In the alternative, appellant's youth for mitigation was pressed because he was about 15 years of age at the time of the commission of the offence and this aspect of the case has not been adverted to by the trial Court. In view of appellant's youth, while maintaining his conviction we reduce his sentence to imprisonment for life. Death sentence is not confirmed.
Death sentence reduced.