KHALIL-UR-REHMAN RAMDAY, J.--- Zawar Hussain, Muhammad Ramzan and Kamal Nasir were tried by the learned Sessions Judge of Gujranwala for the murder of one Amjad Ali. Ramzan and Kamal were extended the benefit of doubt and were accordingly acquitted but Zawar Hussain was found guilty of the charge; was convicted under section 302, P.P.C. And was sentenced to death with a fine of Rs.2,000 or sufferance of two years' R.I. In default of payment of this fine. He was also directed to pay Rs.5,000 as compensation to the heirs of the deceased or to undergo six months'
R.I. In case of non-payment of this compensation. This was vide judgment dated 12-9-1988 of the said learned Sessions Judge at Gujranwala.
2. Murder Reference No.237 of 1988 seeks confirmation of the death sentence awarded to Zawar convict who, in turn, challenges the conviction and the sentences recorded against him through Criminal Appeal No. 1021 of 1988. Both these matters are being disposed of together through this single judgment.
3. The occurrence in this case had taken place at about 6-00 p.m. On 21-4-1987 near the Government tube-well adjacent to Mohallah Hajipura in Sukheke Mandi of District Gujranwala and had been reported at Police Station Sukheke where this information was recorded as F.I.R. No.150 on 22-4-1987 at 1-30 a.m.
4. Rafiq complainant had alleged through this F.I.R. That his nephew Amjad Ali deceased who was a student of twelfth class was sitting near the tube--well abovementioned alongwith his brother Asif and a friend Zakaullah P.W. At the time of occurrence and all three were studying together.
5. The complainant had further disclosed that Zawar convict armed with .12 bore gun and Ramzan and Kamal accused empty-handed, emerged at the place of occurrence and after raising Lalkara to teach a lesson to Amjad deceased for forbidding them from standing in the street, Zawar convict fired a shot which hit Amjad deceased on his back whereafter all the alleged assailants escaped from the place of occurrence.
6. The complainant who has a shop about two furlongs from the place of occurrence and who was available near the place of occurrence for the purposes of easing himself, claimed to have lifted Amjad deceased and to have rushed him to the Civil Hospital at Sheikhupura where under the doctor's advice, he took the deceased to Mayo Hospital at Lahore, arriving where the deceased breathed his last.
7. Rafiq complainant had reported that the convict and the two acquitted accused used to stand near the house of the deceased and used to indulge in improper activities and that Amjad deceased had repeatedly told the three not to stand near his house and that it was for this reason that the three had done the deceased to death.
8. At the trial Ramzan and Kamal accused had denied their presence at the place of occurrence at the relevant time or their participation in the same and had attributed their false implication to enmity with the P.Ws. And party-faction in the village.
9. Zawar appellant, however, did not deny his presence and involvement in the occurrence in question but had a different version to narrate about the same.
10. His claim was that he had gone to the tube-well in question for taking a bath where Amjad deceased was also present who wanted to have carnal intercourse with the appellant against the order of nature, to which the appellant did not agree.
11. The appellant further pleaded that the deceased thereupon caught hold of his carbine and commanded the appellant to accompany the deceased to the nearby field and even threatened to kill the appellant in case he refused to yield to the lust of the deceased.
12. The appellant claimed that in order to save himself, he grappled with the deceased and in the struggle that ensued the carbine, which the deceased was holding in his hand, got triggered of and the deceased got injured at his own hands and finally that he was thus not responsible for the death of the deceased.
13. We have examined the medical evidence and having noticed the seat of the injury, we find that there was no possibility at all of the injury in question having been caused by a weapon held by the deceased.
14. The appellant's plea is thus offensive of the medical evidence and the same, therefore, cannot be accepted as a reasonable explanation of the death of the deceased.
15. It is also not believable that the deceased would plan to commit sodomy with the appellant in broad daylight and that also in a public place and further that having commanded the appellant at gunpoint to give in to the desire of the deceased, he, while holding the gun would permit the appellant to grapple with him and then would manage to twist his own arm to an impossible angle and would then accidentally got shot to death at his own hands.
16: The defence version is thus not even plausible and has to be rejected.
17. Zakaullah P.W. Is a young boy who has no relationship whatsoever with the deceased party and has no ill-will or enmity against the appellant. His explanation of his presence at the place of occurrence inspires confidence and is believable beyond doubt.
18. Rafiq complainant is no doubt a paternal uncle of the deceased but he also has no motive or reason to falsely implicate Zawar appellant in the occurrence in question which occurrence obviously could not have gone unnoticed.
19. Although crime-empty (Exh.P.4) recovered from the spot was found to have been fired from the gun (Exh.P.5) recovered at the instance of the appellant yet on account of the confusion and contradiction amongst the P.Ws. Regarding the despatch and receipt of these two items to and at the Forensic Science Laboratory, no value can be attached to this piece of evidence which thus has to be kept out of consideration.
20. Even after excluding this piece of evidence from consideration, the ocular testimony is of the type which leaves no doubt in our mind that Amjad deceased had been killed by Zawar appellant as claimed by the eye-witnesses and we hold accordingly.
21. We, however, do not feel persuaded to confirm the sentence of death imposed on the appellant.
22. Rafiq P.W. Had admitted that the deceased were five brothers and had no sister. He had further admitted in the cross-examination that by improper conduct and misbehaviour of the appellant party he did not mean teasing of girls but the appellant in fact used to tease Amjad deceased.
23. It has come on record that the deceased was about 20/21 years of age whereas Zawar appellant is 15/16 years of age and in the circumstances it does not sound reasonable to us to believe that a young lad of 15/16 years of age would stand outside the house of the deceased who was 20/21 years of age only to tease him or to lure him into committing sodomy.
24. We thus find that the reason which prompted Zawar appellant to commit the murder of Amjad deceased remains hazy and we would in the circumstances find it unsafe to award capital punishment to the appellant.
25. In the circumstances, the sentence of death awarded to Zawar appellant is NOT. CONFIRMED who would instead suffer imprisonment for life under section 302, P.P.C.- He is also allowed the benefit of the provisions of section 382-B, Cr.P.C. And subject to this alteration the impugned judgment of the learned trial Court is maintained and Murder Reference No. 237 of 1988 and Criminal Appeal No.1021 of 1988 are accordingly answered.