' KHALIL-UR-REHMAN RAMDAY, J.---One Muhammad Arshad was tried by a learned Additional Sessions Judge at Samundri for the murder of one Muhammad Zafar and having been found guilty of the said charge, through a judgment, dated 31-1-1994 of the said learned trial Judge, he was convicted under section 302 of the P.P.C. And was punished with death.
2. Murder Reference No,24 of 1994 seeks confirmation of this sentence of death while Arshad convict approached this Court through Criminal Appeal No,70 of 1994, calling in question the above mentioned conviction and sentence against him.
3. Gulzar complainant brought Criminal Revision No,418 of 1994 and inter alia prayed for an order under section 544-A of the Cr.P.C. Directing payment of compensation to the heirs of Zafar deceased. All these matters are being disposed of together through this single judgment.
4. The occurrence in question had taken place on 2-7-1992 at about 10-30 p.m. In front of the house of the deceased in Chak No,193-GB about 8 miles from Police Station Mamun Kanjan of District Faisalabad and the said occurrence had been reported at the said police station at about 6-00 a.m. By Muhammad Gulzar complainant.
5. Narrating the occurrence and the background leading thereto, Gulzar complainant mentioned that he was a resident of Chak No,193-GB; that his brother Zafar (deceased) and another brother namely Bilal lived with him while his third brother namely, Siddiq lived in a separate house. He had added that a daughter of their sister namely, Mst. Farzana was staying with them as house guest having come from village Mahmood Kot of Garh Maharaja. He had further mentioned that the said Mst. Farzana had told them that Muhammad Arsand (accused) was a person of bad character.
The complainant had further alleged that Zafar deceased went out of their house at 10-30 p.m. On 2-7-1992 and found Arshad (accused) standing there; that Zafar and Arshad exchanged hot words whereafter they started grappling with each other; that on hearing the alarm he went out of his house where Ashraf (P.W.10) and Sarwar (given up) also reached; that Arsand accused then took out a pistol and fired a shot at Zafar hitting him on his front chest. Then Arshad accused ran away from the place of occurrence and that after a short while Zafar succumbed to the injury received by him.
6. Disclosing the motive for this murder, Gulzar complainant had divulged that Arshad accused used to tease Mst. Farzana and wanted to abduct her and that it was for this reason that he had murdered Zafar (deceased).
7. Allah Bakhsh I./S.H.O. W11) visited the place of occurrence where he found blood-stained earth which he collected vide memo. Exh.P.B. He arrested Arshad accused on 2-7-1992 who then led to the recovery of a revolver P.5 which was seized vide memo. Exh.P.D.
8. When confronted with the prosecution case under section 342 of the Cr.P.C., Arshad appellant submitted that the complainant party suspected his illicit relations with their niece Mst. Farzana and even used to extend threats to him whenever he passed from near their house. He had added that at the time of occurrence, he was going through the bazar and when he reached near the house of Gulzar complainant, Zafar deceased suddenly emerged there out of his house; clasped the appellant and tried to take him into their house; that the deceased also called out his brothers namely Bilal and Gulzar complainant and asked them to bring Churris; that while the deceased was forcibly taking the appellant towards the door o their house, the appellant saw Gulzar complainant and Bilal rushing towards them with Churris in their hands; that the appellant struggled hard and managed to liberate himself from Zafar (deceased); that seeing Bilal and Gulzar complainant with Churris in their hands and apprehending his death at their hands, the appellant in order to save himself fired a shot at Zafar (deceased) who fell down injured.
9. It is true that Gulzar complainant is a brother of the deceased but then he is a natural witness of the occurrence in question as the said occurrence had taken place immediately outside his house.
He had no reason A or motive to falsely substitute the appellant for the actual offender. He is, thus, a natural and independent witness of the occurrence whose presence at the place of occurrence at the relevant time had even been admitted by the appellant himself.
10. On a suggestion put to Allah Bakhsh S.H.O.(P.W.11), he had admitted that the first version of the appellant before him was that the appellant had illicit relations with the above mentioned niece of the complainant namely Mst. Farzana who had asked the appellant to come to her house at 10-00 p.m.; that when the appellant reached the complainant's house, the deceased saw him there and as he already suspected the appellant's immoral relationship with Mst. Farzana, the deceased grappled with the appellant; caught hold of him and started dragging the appellant into their house and that apprehending his death at the hand of Zafar deceased the appellant pulled out his revolver and fired at the deceased who consequently died.
11. Almost similar was the appellant's plea at the trial who tried to make out a case of self defence.
12. The defence plea that deceased having been done to death in defence of the appellant's own life, does not appear to be reasonable or plausible. The appellant had claimed that the deceased had clasped him and had then started dragging him into the house of the deceased party and it was only when the appellant had been dragged upto the door of the house of the deceased that he took out his revolver and killed Zafar deceased. The appellant had never had himself medically examined although he had remained at large for more than two weeks which indicates that there were no marks of dragging on his person, the absence of which medical evidence negates the appellant's claim of having been clasped and having been dragged to the house of the deceased party. In this view of the matter, we do not feel persuaded that any right of self-defence had accrued to the appellant before he had fired the fatal shot.
13. The prosecution story, as has been noticed above, was supported by Gulzar complainant who was a natural and independent witness of the occurrence and no exception could be taken to the testimony offered by him.
14. Consequently, we conclude and hold that the appellant had been rightly convicted for causing Qatl-e-Amd of Zafar (deceased).
15. This then brings us to the question of confirmation or otherwise of the sentence of death awarded to Arsand (appellant).
16. He had developed illicit relations with the niece of the complainant party and had wanted to meet her at 10-00 p.m. Which is a rather late hours of the night in the rural areas. He had armed himself with a revolver which is indication of the designs and having then been checked by the maternal uncle of Mst. Farzana, the appellant shot him dead. He, thus, evokes no sympathy or mercy.
17. Relying upon the provisions of sections 306 and 308 of the P.P.C., learned counsel for the appellant finally submitted that the appellant was a minor on the date of occurrence and, thus, could not be punished with death. Referring to the provisions of section 299 of the P.P.C., learned counsel for the appellant had added that since the appellant was not of 18 years of age, therefore, was a minor.
18. If the appellant was less than 18 years of age then the said fact could have been very conveniently established on record by producing a copy of the birth register or by producing some other evidence in support of this claim. This was, however, not done. His learned counsel then submitted that according to the statement of the appellant recorded under section 342 of the Cr.P.C. The appellant was 20 years of age and this statement had been recorded by the learned trial Court more than two years after the occurrence which brought the appellant under the age of 18 years. Whatever age is stated by an accused person in his examination is his claim and is not a proven fact. However, even going by the age that the appellant had disclosed at the time of making his statement, he is well over 18 years of age. His statement was recorded by the learned trial Judge on 30-1-1994 on which date he claimed himself to be of 20 years old while the occurrence had taken place on 2-7-1992. This means that according to this calculation the appellant was at least 18 years and 5 months old and, thus, did not qualify to be treated as a minor.
19. In view of what has been noticed above, Criminal Appeal No,70 of 1994 filed by Arshad appellant is dismissed and the sentence of death awarded to Muhammad Arshad appellant is confirmed.
20. Murder Reference No,24 of 994 is answered in the affirmative.
21. Realising that the learned trial Judge had not awarded compensation to the heirs of the deceased under section 544-A of the Cr.P.C. Nor had given any reason for not passing such an order, we issued notice to the appellant to show cause why he should not be directed to pay compensation to the heirs of the deceased. This notice was accepted by Kh. Sultan Ahmad, Advocate. Having heard the parties, we direct Muhammad Arshad appellant to pay Rs.50,000 to heirs of the deceased as compensation or to suffer 6 months S.I. In default of payment of the same.
Criminal Revision No,418 of 1994 is disposed of as having been allowed in the above terms.