' KHALIL-UR-REHMAN RAMDAY, J.--- One Muhammad Ahmad was tried by a learned Additional Sessions Judge at Okara for the murder of one Dur Muhammad and having been found guilty of the said charge, the said Muhammad Ahmad was convicted under section 302(b), P.1 .C. And was punished with death.
2. Murder Reference No,242 of 1993 seeks confirmation of the said sentence of death awarded to Muhammad Ahmad convict who filed Criminal Appeal No,510 of 1993 to impugn the above-noticed .Conviction and punishment 'recorded against him. Gul Muhammad complainant approached this Court through Criminal Revision No,558 of 1993 and prayed for a direction to the convict to pay compensation to the legal , heirs of the deceased. All these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 30-8-1992 at about 1-30 p.m. In the shop of Dur Muhammad deceased in Adda Malik Shah in the area of Village Lale Wala about six kilometres from Police Station Hujra Shah Muqeem of District Okara and the said occurrence had been reported at the said police station by Gul Muhammad complainant at 2-30 p.m. The same day i,e, on 30-8-1992.
4. Narrating the occurrence and the background leading thereto GuI Muhammad complainant who was an elder brother of Dur Muhammad deceased, had mentioned that the said deceased had an Agency/shop for fertilizer and oil at the abovementioned Adda Malik Shah; that at the time of occurrence he was sitting in the said shop alongwith his deceased brother and were talking while their other brother, namely, Ali Muhammad (given up) and one Muhammad Ali (P.W.8) were standing outside the shop under a Keeker tree and were talking; that in the meantime Muhammad Ahmad accused armed with a .12 bore gun reached there and after entering the abovementioned shop fired a shot which hit the deceased on his chest, abdOmen and left arm and that Dur Muhammad deceased tried to rush into the store to save his life at which Muhammad Ahmad accused fired two further shots which hit the deceased at his left back and left armpit who consequently fell down injured. The complainant had added that they tried to apprehend Muhammad Ahmad accused but he ran away extending threats. The complainant had further disclosed that Dur Muhammad deceased had died at the spot.
5. The reason alleged for this murder was that about 1-1/2 months prior to the present occurrence, Dur Muhammad deceased and Muhammad Ahmad accused had had a quarrel on account of grant of way and it was for the said reason that Muhammad Ahmad accused had done Dur Muhammad deceased to death.
6. Khan Muhammad, Inspector/S.H.O. Visited the place of occurrence where he found blood- stained earth which he took into possession vide memo. Exh.P.F. And where he had also allegedly found three crime-empties (P.6 to P.8) which he had seized vide memo. Exh.P.G. The said Investigating Officer arrested Muhammad Ahmad accused on 6-9-1992 and it was on 10-9-1992 that he allegedly led to the recovery of a gun (P.5) which was secured vide memo. Exh.P.C.
7. Muhammad Safdar, F.C. (P.W.4) carried the three crime-empties to the Forensic Science Laboratory on 8-9-1992 and on 17-9-1992 the said P.W. Carried the gun (P.5) and deposited the same with the Forensic Science Laboratory on the said date. According to the report (Exh.P.M.) of the Forensic Science Laboratory all the three crime-empties had been found to have been fired from the gun (P.5) allegedly recovered at the instance of Muhammad Ahmad appellant.
8. When confronted with the prosecution case under section 342, Cr.P.C., Muhammad Ahmad appellant pleaded innocence and claimed that he had been falsely involved in the present case which was an unwitnessed occurrence, on account of enmity.
9. Canvassing acquittal for the appellant, his learned counsel inter alia argued that the two witnesses were closely connected with the deceased and were chance witnesses of the occurrence in question; that the medical evidence did not support the ocular testimony; that the evidence of recoveries was a fabrication; that the motive did not stand proved on record and that in the circumstances it could not be said that the prosecution had successfully proved its case against Muhammad Ahmad appellant.
10. Gul Muhammad P.W., as has been noticed above, was a brother of the deceased. Not even a suggestion had been made to him by the defence that he had no connection whatsoever with the agency/shop which is the place of occurrence or that he had any motive or reason to falsely implicate the appellant in the occurrence in question. Gul Muhammad complainant, thus, going to the Agency/shop in question which was the shop of his brother was not a claim which could be said to be unreasonable or implausible. It was on a question put by the defence that Muhammad Ali P.W. Declared that he was a tenant of Haji Muhammad Sabir P.W. He had explained his presence at the place of occurrence by submitting that he had gone to the place of occirrence to fetch fertilizer. As has been mentioned above this P.W. Is a tenant of Haji Muhammad Sabir P.W. And the said Haji Muhammad Sabir P.W. Is a brother of the widow of Dur Muhammad deceased. The purchase of fertilizer etc. By Haji Muhammad Sabir P.W. From the Agency/shop of his cousin/brother-in-law was a claim which was more than plausible and in the circumstances no serious exception could be taken to the presence of Muhammad Ali P.W. At the place of occurrence who had claimed that he had gone there to get fertilizer being a tenant of Haji Muhammad Sabir P.W. Even to this Muhammad Ali P.W. No question had been put which could even remotely suggest that this P.W. Or even his landlord namely, Haji Muhammad Sabir P.W. Had any animosity or against the appellant which could have prompted them to maliciously implicate Muhammad Ahmad appellant in the occurrence in question.
11. Both these eye-witnesses are thus, independent witnesses of the occurrence in question who have offered reasonable explanations for their presence at the place of occurrence at the relevant time. Their testimony inspires confidence.
12. It may be added here that the murder in question had been committed in a busy place in broad daylight. There was thus, no question of the occurrence in question having gone unwitnessed or the assailant having escaped unidentified. It had been suggested to the complainant that they had some kind of enmity with some other persons of the area also. This was obviously done to create an impression that the said murder had not been witnessed by any one and that the deceased could have been killed by one such enemy. This claim is without merit. If the occurrence had gone unwitnessed and if the complainant/prosecution was to involve some one as the culprit on the basis of mere suspicion then the real target of this suspicion would be the alleged enemies of the deceased and not the appellant with whom the complainant party had no background of any or animosity.
13. The occurrence in question had taken place at about 1-30 p.m. On 30-8-1992. The place of occurrence was about 6 Kms. From Police Station Hujra Shah Moqeem and the F.I.R. Of the present occurrence was recorded at the said police station at 2-30 p.m. i,e, within one hour of the occurrence. It may be added that according to Dr. Sagheer Ahmad (P.W.3), the postmortem examination of the dead body of Dur Muhammad deceased had been conducted at 4-30 p.m.
Within about three hours of the occurrence in question which is further evidence of the fact that the F.I.R. Of the present case would have been recorded well before 4-30 p.m. This was thus, a promptly recorded F.I.R. Which eliminates the possibility of any deliberations or fabrications in the said F.I.R.
14. Three crime-empties of .12 bore (Exhs.P.6 to P.8) had been found at the place of occurrence. The same had reached the Forensic Science Laboratory on 8-9-1992 as per Muhammad Afzal, F.C.
(P.W.4). The gun P.5 was recovered at the instance of Muhammad Ahmad appellant on 10-9-1992 which was sent to the Forensic Science Laboratory on 17-9-1992. According to the report of the Forensic Science Laboratory (Exh.P.M.) two of these empties had been found to have been fired from the right barrel of the said gun while the third crime-emtpy had been found to have been fired from the left barrel of the gun. This is a further piece of evidence which corroborates the prosecution case and establishes its veracity.
15. It was argued by the learned counsel for the appellant that the medical evidence ran counter to the ocular testimony. It had been claimed by the eye-witnesses that Muhammad Ahmad appellant fired a shot from a .12 bore gun on the deceased which caused injuries on his chest, abdomen and left arm; that the deceased then ran into the store to save his life when the appellant fired shots hitting the left back and the left armpit of the said deceased. According to the post-mortem examination report, wounds of entry had been found on the left front chest, left side of the abdomen,, on the back of chest and on the left fore-arm. To this extent the medical evidence corroborated the eye-witness account. It was only with respect to the injury allegedly received by the deceased in his left arm-pit that the doctor had found the same to be a wound of exit. This one discrepancy, in our view, cannot be declared to be fatal to the prosecution case because it would be unfair on our part to expect from an eye-witness to follow every pellet coming out of a cartridge and to give the precise spot where every such pellet had landed. As has been noticed above, most of the injuries alleged by the prosecution were found to exist on the body of the deceased as alleged. Consequently, we find that present was not the case where it could be said that the medical evidence had falsified the eye-witness account offered by the prosecution.
16. Having, thus, examined the entire evidence available on record and having heard the learned counsel for the parties; we find that no exception could be taken to the finding of guilt recorded by the learned trial Judge against Muhammad Ahmad appellant. His conviction under section 302(b), P.P.C. Is, therefore, maintained.
17. This brings us to the question of confirmation or otherwise of the sentence of death awarded to Muhammad Ahmad appellant.
18. The main emphasis of the learned counsel for the appellant in praying for lesser penalty for the appellant was his alleged minority and young age. While the present matters were still pending disposal, an application bearing Criminal Miscellaneous No,790/M of 1999 was submitted under section 428 of the Cr.P.C. Read with section 561-A of the same Code submitting therein that Muhammad Ahmad appellant was a minor; that his date of birth was 15-3-1975; that it was an elder brother by the name of Mehmood who was born in 1971 and not the appellant and that the case of the appellant thus, fell within the purview of section 308 of the P.P.C. It had consequently, been prayed that the appellant be allowed to produce a copy of the Register of Births carrying his date of birth and copy of Register of Deaths mentioning the death of the abovementioned alleged brother of the appellant namely, Mehmood. This application was filed on 13-5-1999 and we dismissed the same on 1-6-1999 on the ground that when the appellant had been examined at the trial under section 342 of the Cr.P.C. He had mentioned his age to be 23 years and was, thus, 22 years of age at the time of occurrence and that he had taken no exception to the recording of the said age during the course of his said statement; that the plea of minority had hot been taken by him during the course of investigation nor had any such plea been taken even during the course of trial; that the conviction of the appellant had been recorded by the learned trial Judge on 25-7- 1993; he had filed the appeal against the said judgment of conviction on 27-7-1993 and even in the memorandum of appal, no such plea had been taken; that it was after six years of his conviction and of his filing the present appeal that he had suddenly woken to realize that he was not 22 years of age at the time of occurrence and was only 17 years old at that time. The appellant did not challenge this order passed by this Court but at the time of arguments, the learned counsel for the appellant again started pressing the point and this time rather vehemently and forcefully that the appellant was 17 years of age at the time of occurrence and that this Court was falling in error in not permitting the appellant to prove this fact which could lead this Court to an unjust decision.
19. In spite of the fact that we had earlier dismissed this plea, as noticed above, we gave further thought to this matter and realized that the ultimate obligation to do justice to the parties lay on this Court and further that any negligence on the part of the appellant should not be permitted to let this Court reach a decision which might not be just. We also came to the conclusion that if the appellant was in fact less than eighteen years of age at the time of occurrence then the responsibility of wrongly punishing him under section 302 of the P.P.C. With death and not extending to him the concession which was allowed to him by law i,e, convicting and punishing him under section 308, P.P.C. Would be a grave fault on our part.
20. Consequently, we decided to undertake an exercise to determine the age of the appellant at the time of the present occurrence.
21. In reply to the abovementioned application bearing Criminal Miscellaneous No,790/M of 1999, it had been submitted by the complainant that the copy of the Register of Births relating to Muhammad Ahmad appellant which had been filed by the said appellant alongwith the abovementioned application showing the appellant to have born on 15-3-1975, was false. The complainant on the other hand submitted another attested copy of the birth entry relating to Muhammad Ahmad-appellant according to which the said appellant had been born on 30-1-1971.
22. Faced with this situation, where two different entries of the date of birth of the same Muhammad Ahmad-appellant were placed on record, we, through our order, dated 21-9-1999, directed the learned Additional Sessions Judge at Depalpur to seize the record relating to the said entry of birth and to send the same to this Court through a special messenger so as to be available before this Court on the next day and further directed him to bind the concerned Secretaries of the Union Council who had attested these copies, to appear before this Court the next day i,e, on 22-9- 1999, to confirm the issuance of the above-noticed certificates. The said learned Additional Sessions Judge submitted a written report dated 21-9-1999 that Muhammad Khalid was the Secretary of the Union Council who had attested the birth certificate produced by the appellant and that Muhammad Iqbal was the Secretary who had issued and attested the certificate in question produced by the complainant and further that this Muhammad Khalid, Secretary had disappeared and was not traceable either in his office or in his house and that even the relevant Registers of Births and Deaths were not available either in the said office of the Secretary of Union Council No,71 or even at his residence. We then adjourned the matter to 29-9-1999 and issued warrants for the arrest of Muhammad Khalid, Secretary and for his production before this Court on the said date of hearing. On 22-9-1999, the concerned Project Manager namely, Muhammad Azam and the former Secretary of the concerned Union Council namely Muhammad Iqbal had, however, entered appearance before us. The said Muhammad Iqbal submitted before us that he was the one who had supplied, to the complainant a copy of the Register of Births relating to Muhammad Ahmad-appellant according to which certificate of Muhammad Ahmad-appellant was born on 30-1-1971 and that this copy prepared by him was the correct and true reproduction of the original record and further that the copy of the said Register of Births produced by the appellant before this Court, according to which the appellant had born on 15-3-1975 was incorrect and false. This Muhammad Iqbal had added that the brother of Muhammad Ahmad appellant as also his Chachazad namely, Shah Behram Bodla, who happened to be a Member of Zila Council from the constituency in which Union Council No,71 fell, had exercised pressure on him to supply a certificate showing the appellant to be a minor and that he had refused to oblige them.
23. On 29-9-1999, the said Muhammad Khalid, Who was the Secretary, of the concerned Union Council No,71 appeared before us. Muhammad Azam, Project Manger, Hujra Shah Moqeem who was the supervisory officer of the said Union Council and Muhammad Iqbal abovementioned who was a former Secretary of Union Council No,71 were also present on the said date. We asked them to make statements about the matter in question on oath which statements were accordingly made by them and recorded by us on 29-9-1999. All these three persons were offered to the learned counsel for the parties for cross-examination and were in fact so cross-examined.
24. Muhammad Khalid, Secretary of Union Council No,71 stated that he was the one who had issued and attested a birth certificate of Muhammad Ahmad-appellant according to which he had been born on 15-3-1975. A copy of this certificate which was produced by the appellant and was on record, was marked by us as Exh.C./1. He admitted his signatures on the copy of the said certificate and added that a certificate relating to the death of one Mehmood Ahmad son of Ghulam Rasool who is stated to have died on 19-2-1971 was also issued by him. This certificate was marked as Exh.C./2. When questioned by the learned counsel for the complainant, this Muhammad Khalid admitted that he had been posted as Secretary of Union Council No,71 at the instance of a brother of Muhammad Ahmad appellant namely, Noor Muhammad and at the instance of their Chachazad namely Shah Behram, Member of the Zila Council because no other Secretary was willing to be posted to the said Union Council as that said Noor Muhammad and Shah Behram were desirous of getting a fake copy of birth entry of Muhammad Ahmad and about the death of his alleged brother namely, Mehmood Ahmad and no Secretary was ready to oblige; that the registers in question carrying the record of the abovementioned birth and death were not available either in his office or at his house as the same had been forcibly taken away by the said Noor Muhammad and Shah Behram; that the said certificates i,e, Exh.C./1 and Exh.C./2 were false; that he had issued these false certificates under coercion and threat from the abovementioned Noor Muhammad and Shah Behram, who asked him to issue the same on gun point; that he had intentionally omitted to put dates under his signatures on these certificates only to leave an indication that he had put his signatures on them under coercion; that on 21-9-1999 when this Court had passed orders for seizing of the Registers in question and for his appearance before this Court the next day, he was present in his house at about 11-30 a.m. When the abovesaid Noor Muhammad and Shah Behram came to his house-and told him that the learned Additional Sessions Judge of Depalpur was coming to conduct a raid and that he should slip away and accompany them to their Dera; that making an excuse he did not accompany them to their Dera and instead slipped away on his own and finally that the certificates in question issued by him were not genuine. He had further stated that he had filed a Writ Petition No,18072 of 1999 complaining of the conduct of the said Noor Muhammad and Shah Behram and seeking protection from this Court for his life. Muhammad Azam, Project Manager, who was the incharge of Union Council No,71, stated that he accompanied the learned Additional Sessions Judge on 21-9- 1999 and submitted how Muhammad Khalid, Secretary had disappeared on the said date and how the registers in question were not available anywhere despite a search made by them. He added that the complainant of this case namely, Gul Muhammad had submitted an application for the supply of birth certificates of the appellant and of all his brothers namely, Subah Sadiq, Noor Muhammad .And Ali Haider and that he had allowed this application on 15-3-1999 and had marked the same to the concerned Secretary of the Union Council for the grant of these certificates. A photo copy of this application was produced before us which was marked as Exh.C./7. Muhammad Iqbal, who remained the Secretary of the Union Council in question till the end of March, 1999 also made a statement before us on oath. He submitted that he was the one who had issued certificates relating to birth of Muhammad Ahmad appellant - appellant and relating to the birth of his brothers and his sister namely, Sardar Begum. These certificates were issued by him on 25-3- 1999 in pursuance of an order passed by the Project Manager on 15-3-1999. These certificates were marked by us as Exh.C./3, Exh.C./4, Exh.C./5 and Exh.C./6. He had added that since he had not obliged Noor Muhammad and Shah Behram with a false certificate relating to the birth of Muhammad Ahmad-appellant, therefore, the said Shah Behram had got him transferred from Union Council No,71 and he left the charge of the said Union Council sometimes after 25-3-1999. He had further stated that he had issued the abovementioned certificates of birth exactly in accordance with the entries which existed in the concerned registers and that because of the tussle between the two sides relating to the said matter of birth of the appellant, he had prepared photo copies of the said Register of Births and had kept the same with him to secure him against the foulplay. 'He produced photo copies of the said pages of the said register before this Court which were marked by us as Exh.C./8, Exh.C./9, Exh.C./10 and Exh.C./11.
25. From the above-narrated facts and circumstances, we are of the view that the certificate relating to the birth of Muhammad Ahmad appellant produced by the appellant before this (Exh.C./1), according to which certificate, the appellant had allegedly been born on 15-3-1975, was a false document 'and that the actual date of birth of the appellant was 30-1-1971.
26. The appellant was, thus, more than 21 years of age at the time of occurrence and this age of the appellant also corresponded with the age as disclosed by the appellant himself at the trial through the statement made by him under section 342 of the Cr.P.C.
27. Consequently, we hold that the appellant was not a minor at the time of occurrence and his case, thus, did not fall within the purview of section 308 of the P.P.C.
28. In view of the fact that the appellant had taken the life of an innocent person only on account of his vanity and ego because of the dispute between the appellant and the deceased regarding the giving of way, no case for showing any sympathy or leniency to the appellant is made out.
Therefore, the sentence of death awarded to the appellant by the learned trial Judge in pursuance of his conviction under section 302(b), P.P.C. Is confirmed.
29. As the learned trial Judge had passed no order under section 544-A of the Cr.P.C., we issued notice to the appellant to show cause why he should not be directed to pay compensation to the heirs of the deceased in terms of section 544-A of the Cr.P.C. Dr. Khalid Ranjha, Advocate appearing for the appellant accepted this notice. Having heard the parties, we direct Muhammad Ahmad-appellant to pay an amount of Rs,50,000 to the heirs of the deceased as compensation or to undergo six months' S.I. In default of payment of the same.
30. Since we have found that the certificate relating to birth of the appellant (Exh.C./1) was a false document and since such a forged and false document had not only been prepared but had in fact been used and since it had also come on record that Noor Muhammad and Shah Behram had stolen the registers in question, therefore, we direct the S.S.P. Of Okara to register or cause to-be registered a criminal case with respect to the commission of the above-noticed offences and others, if any, found committed and then to proceed with the same in accordance with law. A copy of this judgment, copies of the statements, dated 29-9-1999 made -by Muhammad Azam, Muhammad Iqbal and Muhammad Khalid above-referred and copies of Exhs.C.1/ to C./11 shall be sent to the said S.S.P. Who is further directed to send a fortnightly report about the progress made in the matter, to the Registrar of this Court.
31. Murder Reference No,242 of 1993, Criminal Appeal No,510 of 1993 and Criminal Revision No,558 of 1993 are disposed of in the above terms.
Sentence of death confirmed