' SH. ABDUR RAZZAQ, J.---On 19-9-1992 at about 7-15 p.m. When the complainant Muhammad Siddique (P.W.8) was proceeding towards his house from his shop alongwith his two brothers namely Hafiz Abdul Hamid and Muhammad Nazir alongwith his cousin Muhammad Sarfraz (P.W.9); the accused-appellant (Mehmood alias Mithu) armed with pistol alongwith Kamran alias Kami, Tausif alias Bava and Muhammad Boota armed with pistol confronted them. Kamran alias Kami raised Lalkara whereupon all the aforementioned persons resorted to firing. The shot fired by Kamran alias Kami hit Hafiz Abdul Hamid (deceased) on the left side of his chest, while fire shot of Mehmood Alam alias Mithu hit Sadiq Masih on his left shoulder who was also present near the complainant at the time of occurrence. The fire shot of Muhammad Boota and Tausif alias Bava accused hit Muhammad Shabbir P.W. On his legs.
2. The motive for the occurrence was that Hafiz Abdul Hamid (deceased) had demanded outstanding amount from Kamran alias Kami accused which was due from him, at which altercation and exchange of abuses took place between them. Kamran alias Kami accused threatened Hafiz Abdul Hamid (deceased) to teach him a lesson and consequently brought his co- accused with him and committed the instant occurrence resulting into the death of Hafiz Abdul Hamid and Sadiq Masih.
3. Both Hafiz Abdul Hamid and Sadiq Masih alongwith Muhammad Shabbir were removed to Civil Hospital, Kamoke where Hafiz Abdul Hamid and Sadiq Masih succumbed to the injuries before any medical aid could be provided to them. Muhammad Shabbir injured was admitted in hospital.
4. Hameed Ahmad Alvi, Inspector (P.W. 11) was posted as S.H.O., Police Station, Kamoke on 19-9- 1992. He received the information about this occurrence while he was patrolling at G.T. Road.
Accordingly he proceeded to Civil Hospital, Kamoke where on the statement of Muhammad Siddique prepared complaint Exh.P-B/1 and sent the same to the police station for formal registration of F.I.R. Through Ghulam Rasool, Constable. He examined the dead bodies of Hafit Abdul Hameed and Sadiq Masih, prepared their statement of injuries Exh.PK and Exh.PL and inquest reports Exh.PK/1 and Exh.PL-1 respectively. Moved applications for conducting their post-mortem examinations 'Exh.PM and Exh.PN, despatched the dead bodies for post-mortem examinations through Muhammad Ashiq and Muhammad Saleem, Constables. He thereafter proceeded to the place of occurrence, secured blood-stained earth from the place of occurrence pertaining to Hafiz Abdul Hamid and prepared memo. Exh.PG. He also secured blood-stained earth pertaining to the murder of Sadiq Masih and made into a sealed parcel vide memo. Exh.PH. He prepared a rough site plan of the place of occurrence Exh.PO and recorded the statements of witnesses. On 20-9-1992 Muhammad Aslam, Constable produced last-worn clothes P-1 to P4 of Sadiq Masih which he secured vide memo. Exh.PA. Last-worn clothes P-5 to P-7 of Hafiz Abdul Hamid deceased were also produced which he secured vide memo. Exh.PF. He handed over the parcels to Moharrir on 21-9- 1992. He got the site plans Exh.PC and Exh.PC/1 prepared from Arif Hussain Ayyaz, Draftsman P.W.5 who delivered the same to him on 24-9-1992. On 25-9-1992 he recorded the statement of Muhammad Shabbir injured in the hospital. On 30-9-1992 he arrested accused Kamran alias Kami, Tausif alias Bava, Mehmood Alam alis Mithu and Muhammad Boota. He continued investigation till 1-11-1992 and thereafter it was transferred from him and was entrusted to Riaz Mehmood, Inspector (P.W.12). On 13-11-1992 Kamran alias Kami accused led to the recovery of pistol P 8 from the graveyard which was secured vide memo. Exh.PI. The accused Mehmood Alam alias Mithu also led to the recovery of pistol .30 bore P-9 which was secured vide memo. Exh.PJ. Thereafter, the investigation was transferred from him. After completion of investigation the challan was submitted in the trial Court.
5. A charge under section 302/324/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
6. To bring home guilt to the accused prosecution examined P.W.1 Siddique Masih who deposed that Sadiq Masih was his father and he identified his dead body at the time of his post-mortem examination. After the postmortem examination his last worn clothes P-1 to P-3 and a sealed phial was given to Muhammad Aslam, Constable who produced the same before the Investigating Officer and who secured it vide memo. Exh.PA. Muhammad Ali P.W.2 identified dead body of Hafiz Abdul Hamid at the time of post-mortem examination. Muhammad Asghar, Constable P.W.3 deposed that on 6-10-1992 he was given two sealed parcels containing blood-stained earth by Abdul Rahim Moharrir for its delivery in the Office of Chemical Examiner, Lahore. Abdul Rashim, A.S.I., P.W.4 deposed that on 19-9-1992 on the basis of complaint he drafted the formal F.I.R. Exh.PB which bears his signature. He further deposed that on 6-10-1992, he delivered two parcels to Muhammad Asghar, Constable (P.W.3) for onward transmission to the Office of Chemical Examiner, Lahore. On 2-12-1992 he was given two parcels containing pistols for keeping the same in the Malkhana. Arif Hussain Ayas P.W.5 is the draftsman who visited the place of occurrence on 21-9-1992, prepared site plans Exh.P-C and P-C/1 and delivered the same to the Investigating Officer. Dr. Amjad Iqbal Burq P.W.6 deposed that on 20-9-1992 he conducted the post-mortem examination of Sadiq Masih and found the following three injuries on his person:
(1) A fire-arm wound of entry 0.5 c.m. x 0.5 c.m. x D.N.P. With balckened and inverted margins on lateral side of left arm in middle;
(2) A fire-arm wound of entry 0.75 c.m. x 0.75 c.m. x D.N.P. With everted margins on medial side of left arm in middle.
(3) A fire-arm wound of entry 0.75 c.m. x 0.75 c.m. x D.N.P. With inverted and blackened margins on front of left chest 10 c.m. Inferolateral to left nipple.
' In his opinion death was due to injury No,3 which was sufficient in the ordinary course of nature to cause death. He gave probable time between injury and death as immediate whereas between death and post-mortem examination between 12 to 24 hours. He produced true carbon copy of post-mortem examination report Exh. P-D and its diagram Exh.P-D/1. He further deposed that on the same day he conducted the post-mortem examination of Hafiz Abdul Hamid son of Haji Muhammad Iqbal which was identified by Muhammad Shabbir and Muhammad Jamil. He found the following injuries on his person:--
(1) A fire-arm wound of entry 0.75 c.m. x 0.75 c.m. Chest cavity deep circular inverted and blackened margins on front of left chest 8 c.m. Superomadial to left nipple 10 c.m. Lateral to medial plane of sterna.
(2) A fire-arm wound of exit 1.5 c.m. x 1.5 c.m. x chest cavity deep everted margins on back of left chest 5 c.m. Below the inferior angle of left scapula.
' In his opinion death was due to injuries to vital organs, haemorrhage and shock as a result of both injuries which proved fatal and were sufficient to cause death in the ordinary course of nature.
Probable time which elapsed between injuries and death was immediate whereas between death and postmortem examination was between 12 to 24 hours. He produced carbon copy of post- mortem examination report and sketch of injuries Exhs.P-E and P-E/1 respectively. Muhammad Saleem, Constable P.W.7 deposed that he escorted the dead body of Hafiz Abdul Hamid for post- mortem examination which was conducted on 20-9-1992. He was given last-worn clothes of deceased P-5 to P-7 which were secured by the Investigating Officer vide memo. Exh.P-F. He was also given last-worn clothes of Sadiq Masih deceased P-1 to P-3 and phial P-4 which was secured by the Investigating Office vide memo. Exh.P-A. Muhammad Siddique complainant P.W.8 corroborated his version appearing in complaint Exh.P-B/1. Sarfraz P.W.9 is an eye-witness of this occurrence and corroborated prosecution version appearing in complaint Exh.P-B/1 as well as in the statement of Muhammad Siddique (P.W.8). Muhammad Ilyas P.W.1 deposed about attesting memo. Exh.P-I pertaining to the recovery of .30 bor pistol P-8 at the instance of Kamranalias Kami accused. He is also witness of recovery of .30 bore pistol P-9 which was produced by Mehmood Alam alias Mithu accused and was secured vide memo. Exh.PJ. Hameed Ahmad Alvi, Inspector P.W.11 and Riaz Mehmood P.W.12 are the Investigating Officers whose evidence has already been discussed above. Learned D.D.A. Produced reports of Chemical Examiner Exhs.P and PQ, reports of Serologist Exhs.PR and PS and report of Forensic Science Laboratory Exh.PP and closed the prosecution case vide his statement dated 2-11-1995.
7. When examined under section 342, Cr.P.C. Accused Kamran alias Kami denied the prosecution version as well as the factum of recovery of pistol P-8. He stated that deceased met his fate at the hands of some unknown person as he had illicit affair and that he had been involved in this case at the instance of Wakil Khan, the then M.P.A. Who was inimical towards his co-accused Tausif alias Bava, a first cousin of his father. The accused Tausif alias Bava also denied the prosecution version and stated that on account of his innocence he was placed in column No,2 in report under section 173, Cr.P.C. The accused Mehmood Alam alias Mithu also denied the prosecution version including the factum of recovery of pistol .30 bore P-9. He further stated that he had been involved in this case due to suspicion. The accused Muhammad Boota also denied the prosecution version and stated that he had been involved in this case falsely which fact is evident as he was declared innocent and his name was placed in column No,2 of Report under section 173, Cr.P.C. None of the accused chose to produce any defence evidence or to record statement under section 340(2), Cr.P.C.
8. After going through the evidence produced by the prosecution the trial Court convicted Kamran alias Kami accused under section 302(b), P.P.C. And sentenced him to death subject to confirmation by the Lahore High Court Lahore. He further convicted Mehmood Alam alias Mithu accused under section 301, P.P.C. Read with section 302, P.P.C. And sentenced him to R.I. For 25 years. However, the accused Tausif alias Bava and Muhammad Boota were acquitted extending them benefit of doubt.
9. Criminal Appeal No,874 of 1995 has been filed by accused Mehmood Alam alias Mithu whereas Criminal Revision No,123 of 1996 has been filed by Muhammad Siddique complainant/petitioner for the enhancement of sentence awarded to Mehmood Alam alias Mithu accused. A Murder Reference under section 374, Cr.P.C. Has also been forwarded by the Court of Session, Gujranwala.
10. Both the Criminal Appeal No,874 of 1995 and Criminal Revision No,123 of 1996 are being disposed of by this order as no criminal appeal has been filed by Kamran alias Kami accused who has been awarded death sentence.
11. We have heard the learned counsel for the parties and have gone through the record.
12. Learned counsel for Mehmood Alam alias Mithu appellant has not challenged the vires of the impugned judgment, whereby the appellant has been sentenced to R.I. For 25 years. His contention is that case of appellant does not fall under section 301, P.P.C. But it falls under section 308, P.P.C. His contention is that occurrence took place on 19-9-1992 whereas judgment was announced on 30- 11-1995 . That statement of accused-appellant Mehmood Alam alias Mithu was recorded on 6-11- 1995 wherein his age has been described as 20 years. He argued that even if it is presumed that Mehmood Alam alias Mithu was of 20 years on 6-11-1995, he was less than 17 years on 19-9-1992 when the alleged occurrence took place. He, thus, submitted that accused-appellant could not be convicted under section 301 read with 302, P.P.C. He, thus, submitted that sentence awarded to the accused/appellant be reduced accordingly.
13. Conversely the impugned judgment has been supported by the learned counsel for the State assisted by learned counsel for the complainant. His \ contention is that mere disclosing the age of Mehmood Alam alias Mithu accused/appellant in his statement under section 342, Cr.P.C.
Recorded on 6-11-1995 as 20 years does not prove that he was of that age on that date. He argued tha no explicit reliance can be placed on the age as disclosed at the time of recording statement under section 342, Cr.P.C. As no documentary proof is available to substantiate his stand. He, thus, submitted that no credence can be placed upon such statement of accused. He next urged that if the accused-appellant wanted to bring his case within the ambit of section 308, P.P.C., he must have adduced some documentary evidence on record. That in absence of such evidence, trial Court has rightly passed the impugned judgment holding him major at that time.
14. Be that as it may the age of Mehmood Alam alias Mithu accused appellant has been shown as 20 years in his statemtn recorded under section 324, Cr.P.C. On 6-11-1995. Admittedly occurrence took place on 19-9-1992. If the age of Mehmood Alam alias Mithu accused-appellant is taken as 20 years on 6-11-1995 then his age comes to about 17 years at the time of occurrence. The prosecution never controverted the stance of accused-appellant, qua his age, and thus, he has to be accepted as a minor at the time of alleged occurrence. This being the factual and legal position his conviction under section 301, P.P.C. Read with section 302, P.P.0 is not sustainable in the eyes of law.
The case of the appellant squarely falls within the purview of section 308, P.PC. The conviction of appellant is altered from one under section 302, P.P.C. To section 308, P.P.C. And the sentence awarded to him under section 301 read with section 302, P.P.C. Is also altered and he is sentenced under section 308, P.P.C. To R.I. For 10 years and is further directed to pay the amount of Diyat amounting to Rs,98,743.62. However, he is extended benefit of section 382-B, Cr.P.C. With this modification in conviction and sentence, the appeal is dismissed.
15. Revision petition has been found to be without substance and is dismissed.
16. Kamran alias Kami, the condemned accused absconded after the incident and did not prefer appeal. The Murder Reference, consequently, has been heard with assistance of learned counsel for the State and we answer the same in affirmative. Perpetual warrants of arrest of Kamran alias Kami shall issue and District Magistrate, Gujranwala shall take necessary steps for its execution.