MUHAMMAD MONIR FARUKBE, J.-Muhammad Aslam alias- Ganju son of Karam Bakhsh, case Jat, aged 18 years, was convicted under section 302, P. P. C. With a sentence of death and a fine of Rs.
2000 by the learned Additional Sessions Judge, Lyallpur, vide his judgment dated the 19th May 1973, forming the subject-matter of this appeal and the reference under section 374, Cr. P. C., both of which are being disposed of by this judgment.
2. The incident involving the murder of Abdur Ghafur (deceased) took place on 30th May 1970, at 5- 30 p.m. In his shop situate in Chowk Rabshah as reported by his brother Manzur Ahmad (P. W. 7) vide his statement (Exh. P. A.) recorded at 6-15 p.m., the same day, by Sub-Inspector Abdul Ghafur (P. W. 10) in Police Post Ghulamabad.
3. It was alleged that Muhammad Aslam appellant had borrowed Rs. 50 from Abdul Ghafur (deceased), who demanded this amount from him when he visited his shop on the eventful evening leading to an exchange of abuse between them. Manzur Ahmad (P. W. 7) was also present there at that time alongwith Rana Nasir Ahmad (P. W. 8), Muhammad Iqbal (P. W. 9) and one Muhammad Aslam (not produced), who hushed up the matter, but Muhammad Aslam appellant while leaving the place threatened to avenge his insult by Abdul Ghafur (deceased). Shortly thereafter he returned with a dagger in his hand and before any of the aforesaid witnesses could intervene he plunged the same in his left flank and as he was about to give the second blow Muhammad Iqbal (P. W. 9) intercepted the same clasping him from behind when Manzur Ahmad (P. W. 7) snatched the dagger (P. 1) with the assistance of Rana Nasir Abmad (P. W. 8). Abdul Ghafur however, expired there and then.
4. Leaving Muhammad Iqbal P. W. With the dead body Manzur Ahmad and Rana Nasir Ahmad P.
Ws. Carried Muhammad Aslam appellant to the police post and produced him before Sub- Inspector Abdul Ghafur P. W., alongwith this dagger, who recorded the above statement (Exh. P. A.) and taking the dagger (P. 1) in his possession sealed it into a parcel vide Exh. P. E.
5. The Sub-Inspector forwarding the statement (Exh. P. A) to the police station for the formal registration of the case went to the spot and securing the blood-stained earth vide Exh. P. C. From underneath the dead body despatched the same to the mortuary after the necessary- inquest vide Exh. P. F. And the injury sheet (Exh. P. G.). He got prepared the site plan (Exh. P. D.) with its duplicate (Exh. P. D./1) from Aurangzeb (P. W. 2) and the putting his notes in red ink thereon signed it in token of its correctness.
6. On 31st May 1972, at 9 a.m., Dr. A. A. Khan (P. W. 1) held autopsy on the dead body of Abdul Ghafur and found an incised wound 1 " x 1' on the left chest, chest cavity deep vide Exh. P. F. On opening the chest he found that the fifth rib of the deceased was fractured. Lung and heart were punctured.
Death was due to excessive shock and haemorrhage into the pleural cavity caused by stab wound with rupture of left lung and heart and was sufficient to cause death in the ordinary course of nature. Probable time between Injury and death was instantaneous and that between death and post-mortem was about 12 hours.
7. In addition to the above detailed medical evidence and that of the recoveries the prosecution had relied for case on the testimony of Manzur Ahmad (P. W. 7), Rana Nasir Ahmad (P. W. 8) and Muhammad Iqbal (P. W. 9) about the ocular account of the occurrence, who had lent unstilted support to the above narration.
8. The appellant pleading not guilty to the charge denied all these allegations and attributed his false Implication to the enmity of the relations of Abdul Ghafur (deceased) and a few years earlier he had given evidence in a criminal case against the latter resulting in his conviction, which was admitted to be correct by Muhammad Sharif (P. W. 3) another brother of the deceased. He, however, led no evidence in his defence.
9. The learned trial Judge held him guilty of this charge on the strength of the direct evidence supplied by the above named prosecution witnesses, which finding has been assailed before us as incredible due to the absence from the witness of any occupant of the shops in the vicinity of the crime, but on going through the record with care and caution required in such serious cases we are not inclined to agree with this contention of his learned counsel.
10. Abdul Ghafur (deceased) and his brother Manzur Ahmad P. W. Were running shoe-making business in this shop situate in Chowk Rabshah while Rana Nasir Ahmad and Muhammad Iqbal P.
Ws., who also resided in the same chowk, had come to visit them and were sitting on a char p.I spread in front of their shop at the time of this occurrence. Even Muhammad Aslam appellant also lived just across the road and had likewise come there from his close by house when Abdul Ghafur (deceased) demanded the amount of Rs. 50 taken by him as a loan leading to the verbal wrangle which is said to have motivated this murder. They were thus no strangers to the locality and could not be dubbed as chance witnesses. This being a matron practice that the residents of such localities come into the bazaar in the evening time to while away their leisure in gossips sitting on one of the nearby shops and they will certainly be natural witnesses of any occurrence taking place In the bazaar during their presence. We are, therefore', not persuaded to discard the evidence of Rana Nasir Ahmad and Muhammad Iqbal P. Ws. As that of chance witnesses. Reliance is placed on Ghulam Muhammad's case (PLD 1969 SC 398) as the authority on the point. They had no interest in the deceased or enormous against the appellant to falsely implicate him in this case by joining hands with his enemy Manzur Ahmad (P. W. 7). Rana Nasar Ahmad and Muhammad Iqbal P. Ws. Had assisted in catching hold of the appellant and disarming him at the spot. The latter had even `' escorted him to the police post alongwith Manzur Ahmad where they produced him before the Sub-Inspector with all promptitude in loading this report giving the names of these eye-witnesses and the preceding' incident as a motive which showed that they had no chance of deliberations between them about it, so we cannot conclude that they were later imported from a distance locality to join in this chorus with them. The argument that none of the occupants of the neighbouring shops had entered the witness box in support of the complainant had lost all force as the appellant had also failed to examine any one of them, if they had any other tale to tell, while the prosecution was not bound to produce all of them, nor had placed any hurdle in the way of the appellant to adduce them in his defence. He had failed to bring on record any material to discredit the testimony of Rana Nasir Ahmad and Muhammad Iqbal P. Ws., who had given such a consistent account of this deadly assault on Abdul Ghafur (deceased) although it was over in the twinkling of an eye that it left no room for doubt that they had not witnessed it from close quarters as claimed by them. We, therefore, feel no hesitation in placing our implicit reliance on their deposition as true and correct account of this tragedy and holding him responsible for this murder maintain his conviction under section 302, P. P. C.
11. We are then left with the question of sentence which in view of his extreme youth and the attending circumstances of the case was a matter of grave concern for us.
12. The appellant had given his age as eighteen years when examined under section 342, Cr. P. C.
By the learned trial Judge who had not ques--tioned its correctness so he was a young boy of about seventeen years at the time of this occurrence with no prior motive to kill Abdul Ghafur deceased. He appears to have fallen a prey to the heat of the moment ignited by the filthy abuses exchanged between them during the altercation over the petty amount and rushing back to his closely house returned with a dagger within a few moments and smarting under that impulse of violence plunged it into his left flank resulting in the death of Abdul Ghafur which In these circumstances was certainly an extenuating factor justifying the imposition of lesser penalty as held in Abdur Rehman's case (PLD 1960 SC 401). We, there fore decline to confirm the sentence of death and dismissing his appeal substitute it with transportation for life I.e. Life imprisonment. In view of his extreme youth we do not propose to bourdon him with compensation under section 544-A, Cr. P. C.