' Muhammad Latif appellant aged 16 years has been convicted under section 302, P.P.C. For the murder of his real maternal-uncle Muhammad Ashraf deceased and sentenced to death with a fine of Rs,10,000 in default to serve six months' R.I., and the fine if realized is to be paid to the legal heirs of the deceased under section 554-A, Cr.P.C. Vide judgment dated 12-3-1986 by learned Additional Sessions Judge, Rawalpindi being the subject-matter of Criminal Appeal No, 39 of 1986 and Murder Reference No:116 of 1986, which are being disposed of together.
2. Abdur Rauf complainant aged 14 years, student of Class VI, son of the deceased lodged F.I.R.
Exh.P.F. At Police Station Gujjar Khan, recorded by Syed Fazil Hussain S.I./S.H.O. P.W.13 to the effect that his sister Mst. Kausar was betrothed to the appellant, first paternal-cousin, on which count the latter's mother had advanced Rs,400 to the deceased for meeting the engagement ceremony's expenses, but it did not mature into reality because the deceased changed his mind and married her to one Muhammad Bashir, which generated hostility between the parties; as a consequnce whereof on 14-2-1984 the complainant upon returning from the school learnt from the deceased, (night watchman of shops near veterinary Hospital, Gujjar Khan) that appellant's father Muhammad Hussain, called on him and insisted for return of the advanced sum, to which he responded with insult. With a view to avenging that, the appellant, after sun-set came to the complainant's residence at Bahi Khan in red colour car bearing registration mark 7376/AJK-A, and asked for the deceased, and upon being apprised that he is in Gujjar Khan, left in rage and fury, which put the complainant on alert, consequently getting a lift in a car he followed him. On reaching the deceased's place of abode he noticed the same car parked outside, while the appellant rushing out of the house with an iron-bonded stick in his hands, furiously stating that he has avenged the insult vanished away in the getaway car. Upon entering the precincts the complainant noticed the deceased soaked in blood oozing out of his head. The occurrence was witnessed by Muhammad Nazir P.W.9, son-in-law of the deceased who had come to visit him.
3. Syed Fazail Hussain S.I. P.W.13 after recording the F.I.R. Came to the spot, prepared injury statement Exh.P.K., inquest report Exh.P.J. And despatched the dead body to Tehsil Headquarters Hospital, Gujjar Khan for post-mortem examination through Safdar Ali Constable P.W.10 where it was identified by fractured under injury No,6 and nasal bone fractured under injury No,8. All other organs were found to be normal and healthy.
' In his opinion all the injuries were ante-mortem caused with blunt weapon. Injuries Nos.1, 2, 6, and 8 were grievous and fatal while rest were simple, and injury No,1 was sufficient to cause death in the ordinary course of nature. In cross-examination he stated that the deceased had taken food about 1 to 2 hours preceding death.
5. Learned trial Court keeping in sight age of the complainant, before recording his statement subjected him to questioning with a view to ascertaining intelligence and maturity of his mind, and upon due satisfaction recorded his testimony wherein he reiterated the prosecution story; Muhammad Nazir P.W.9 son-in-law of the deceased, shopkeeper by profession and resident of Chak Bhaali, testified that he had come to visit the deceased, where after taking dinner, at about 5/6 p.m. He retired for the night in a side room and at about 7 p.m upon hearing deceased's noise he came out and witnessed the appellant inflicting stick blows to the deceased, as a consequence whereof he collapsed on the ground. He attempted to intervene but was warned by the appellant that in case he came near he would also be done to death, and after inflicting two more injuries to the deceased he ran away. Soon thereafter, the complainant arrived and the deceased succumbed to the injuries. Replying a question he affirmed that the fight began soon after the appellant's arrival, and final blow was given in his presence and that it lasted for 2/3 minutes.
6. Muhammad Fayyaz P.W.5 first maternal-cousin of the appellant and maternal-nephew of the deceased who runs a shop on Railway Road, Gujjar Khan, furnished the immediate motive account, by deposing that on the day of occurrence at about 2-30 p.m. Appellant's father exchanged hot words with the deceased at a distance of about 25 yards from his shop, and in cross-examination, replied that the former upon inquiry divulged that there was dispute about recovery of Rs,400.
Further, stated that he narrated this incident to his mother and maternal-uncle Muhammad Rafiq P.W.7, brother of the deceased.
7. Muhammd Rafiq P.W.7 testified as to the recovery of the crime weapon Exh.P.5, which the appellant led from his house. The Investigating Officer P.W.13 tendered in evidence F.I.R. Exh.P.F.
Injury statement Exh.P.K. Inquest report Exh.PJ, recovery of lantern P.4 last-worn clothes of the deceased Shirt P.6, Shalwar P.7, Sweater P.8 and turban P.9, testified as to the recovery of weapon of offence, car bearing registration No,7376/AJK-A driving licence of Muhammad Khalid P.W.4, registration book P.2, insurance book P.3 and vouched as to handing over of the articles to the Muharrir and despatch of the dead body to the Tehsil Hospital for post-mortem examination. Dr. Ghaur Alam P.W.15 identified signatures of Capt. Dr. Muhammad Asghar P.W.16, on the post- mortem report Exh.P.L., with whom he was then working and had subsequently joined the Army, who later on appeared as P.W.16 and affirmed his observations. Reports of the Chemical Examiner and Serologist Exh.P.N. And Exh.P.M. Respectively, were tendered in evidence by the Assistant District Attorney.
8. Muhammad Khalid P.W.4 testified that on the day of occurrence the appellant hired his Cab No, 7376 AJK-A, at 5-30 p.m. From Sohawa, bus-stop for Gujjar Khan. He was carrying a stick. He stopped at Bhai Khan for seeing his maternal-uncle, who was not there, and came to Gujjar Khan, near Tehsil office, from where he returned to Sohawa after a while. Upon question as to the hurry he was told by the appellant that he had a quarrel with his uncle. He further deposed that his cab was taken into possession by Syed Fazal Hussain P.W.13 on 15-2-1984, vide Exh.P.B., along with the driving licence P.1, registration book P.2 and insurance book P.3. In cross-examination he stated that he could not see blood on the stick since it was night time.
' While the remaining evidence was of a formal nature.
9. The appellant in his statement under section 342, Cr.P.C. Denying the occurrence stated that he has been falsely involved on account of his participation in 'the day time quarrel', while on oath under section 340(2), Cr.P.C. Deposed that preceding the incident on the day of occurrence, his father and the deceased had a quarrel over the demand of the sum having been advanced by the former wherein he also participated. He, however, denied the factum of his betrothal with the deceased's daughter, Mst. Kausar, as well as its breach and hiring of the car No,7376 AJK-A.
10. On the basis of the afore-referred evidence learned trial Court convicted and sentenced the appellant vide the impugned judgment.
11. Learned counsel for the appellant contended that it is an unwitnessed occurrence, that the FIR', has been concocted after preliminary investigation, that presence of eye-witness Muhammad Nazir P.W.9 is doubtful, because had he been present, being the elder he should have lodged the complaint, that the medical evidence belies the latter's testimony viz. According to him the deceased was given only 3 blows, while the medico-legal report has revealed 10 injuries, that the complainant's statement is contradicted by the timing of the lodging of the F.I.R. Viz appellant had called on him at Bhai Khan at 7 p.m. Then he left for Gujjar Khan to whom he followed by getting a lift in a car after waiting for half an hour, while the F.I.R. Is stated to have been lodged at 7-30 p.m.
Which is irreconcilable. At the conclusion of the arguments learned counsel prayed that the death sentence be converted into life imprisonment. On the other hand learned A.A.-G. And learned counsel for the complainant supported the judgment.
12. We are not persuaded by the contentions urged by the learned counsel for the appellant because each one of the prosecution witnesses has truthfully' deposed to the extent of personal knowledge, their testimony is consistent and confidence inspiring. The complainant a young boy of 14 years student of Class VI with precision has narrated the prosecution story in a straightforward manner without any padding, the F.I.R. Was lodged at the police station with utmost promptitude i,e, within 15 minutes of the occurrence wherein presence of Muhammad Nazir P.W.9 has been categorically enshrined and, had he not been there then within the permitted time scheduled he could have not been imported from his village, whose testimony stands corroborated by the evidence of Capt. Dr. Muhammad Asghar P.W.16, viz. The deceased had taken dinner within 1 to 2 hours before death factum whereof is affirmed by the stomach contents i,e, semi-digested food.
Furthermore, testimony of Muhammad Khalid P.W.4, an absolutely independent witness, who has no motive to falsely implicate the appellant has furnished the unimpeachable corroboration.
Though the other witnesses are related to the deceased but nothing has been brought on the record to suggest their inimical disposition towards the appellants nor they have been B questioned in this behalf, therefore, mere relationship will not render them untrustworthy, their truthfulness is demonstrated by the fact that immediate motive of occurrence narrated by Muhammad Fayyaz P.W.5 had even been C admitted by the appellant.
13. Adverting to the alleged contradiction in the statement of Muhammad Nazir P.W.9 and the medical evidence as to the number of blows it may be observed that during tense moments of witnessing a murderous assault miscounting of blows is understandable and natural as well, because one is not watching a boxing bout with complete peace of mind and cameras on in a drawing room. Even otherwise the injuries include not only the wounds but also the contused areas, and abrasions etc. Which need not necessarily be the result of independent blows thus it does not adversely effect on the veracity of the evidence. Likewise keeping in view the age of the complainant, the calamity he E was confronted with and the promptitude with which the F.I.R. Was recorded, variations as to sequence time appeals to reason and does not discredit his testimony.
14. Having gone through the evidence minutely we are convinced that the prosecution has proved its case beyond any doubt against the appellant; however, in our opinion deprivation of the fiance coupled with wreaking of vengeance of insult hurled on the father of the appellant, and raw age constitutes mitigating factor not warranting capital punishment; consequently the sentence of death is converted to imprisonment for life which will sufficiently meet the ends of justice.
Maintaining the sentence of fine he is allowed benefit of section 382-B, Cr.P C.