' KHAWAJA 'MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,569 of 1998 filed by Shahzad Qamar appellant, who was convicted and sentenced by Judge Special Court constituted under Anti-Terrorism Act, 1997, Gujranwala Division, Gujranwala on 4-6-1998 for the murder of Sikandar Javed under section 302(b), P.P.C. To death.
2. It may be noted here, that Muhammad Nawaz and Muhammad Baqir co-accused of the appellant were acquitted by the learned trial Court and against their acquittal State has also filed Criminal Appeal No,955 of 1998. Both these appeals and M.R. 193-T of 1998 shall be disposed of through this single judgment.
3. Occurrence in this case took place at 5-30 a.m. On 20-9-1997 within the revenue estate of Mouza Maiken which is at a distance of 4-1/2 miles away from Police Station, Phalia while the matter was reported to the police at 7-00 a.m. On the same day by Muhammad Iqbal complainant P.W.8 and the formal Exh.P.1 was recorded by Muhammad Rafique A.S.-I. P,W.15 at 7-15 a.m.
4. Brief facts of the case are that on 20-9-1997 at about 5-30 a.m. Sikandar Javed deceased was going towards his Dera to milk his buffaloes being followed by his brother Muhammad Iqbal and a cousin at a some distance. When Sikandar Javed deceased reached near the village Primary School, Iftikhar Ahmad armed with .30 bore pistol alongwith Shahzad also armed with pistol emerged from behind the trees. Iftikhar Ahmad suddenly opened fire at Sikandar which hit on the front of his abdomen. Shahzad fired second fire which also hit Sikandar on his right flank.
Meanwhile, Baqir armed with rifle and Muhammad Nawaz armed with gun also came there and exhorted Iftikhar and Shahzad to kill Sikandar Javed upon which both Iftikhar and Shahzad fired more shots at Sikandar hitting him on various parts of his body. Muhammad Iqbal and Riaz raised alarm and then all the four accused mentioned above made their escape good.
5. Motive behind the occurrence was that three months prior to the present occurrence Sikandar Javed had given fists blows to Iftikhar and Shahzad for which the accused nursed grudge against Sikandar Javed.
6. After registration of the formal F.I.R. Nasrullah Khan P.W,12 reached at the place of occurrence, inspected the spot, collected blood-stained earth and took the same into possession vide memo.
Exh.P.C., he also took into possession vide memo. Exh.P.D. Fire empty cartridges P.1/1-5 and investigated the case till 23-9-1997. Thereafter, the investigation was taken over by Hakim Ali, S.- I./S.H.O., P.W.13. He arrested Shahzad and Muhammad Nawaz accused on 9-10-1997 and Baqir alias Baqri accused or the following day. Shahzad Qamar while in police custody on 14-10-1997 led to the recovery of pistol P.3 which was taken into possession vide memo. Exh.P.F. Similarly, on 20-10-1997 Muhammad Nawaz led to the recovery of licensed gun P.4 alongwith licence P.4/1 which were taken into possession vide memo. Exh.P.G. Iftikhar accused was declared P.O. And, therefore, the challan was sent into the Court.
7. Prosecution in order to prove its case produced 15 witnesses in all, out of whom Muhammad Iqbal, P.W.8 and Riaz Ahmad, P.W.9 were eyewitnesses while the Dr. Shakeel Abbas Butt, who conducted the post-mortem examination on the dead body of the deceased was examined as P.W.11, thereafter, learned S.P.P. Tendered in evidence, report of the Chemical Examiner Exh.P.R. And that of the Serologist Exh.P.S. And closed the prosecution case, then statements of the appellants were recorded under section 342, .Cr.P.C. In which he pleaded innocence and claimed false implication.
8. It may be noted here that one of the accused namely Iftikhar alias Javed is P.O. And is still at large.
9. Learned counsel for the appellant after going through the prosecution evidence submits that it was an unwitnessed occurrence, that both the eye-witnesses are closely related to the deceased.
P.W.8 complainant is the real brother of the deceased while Muhammad Younas P.W.9 is cousin of the deceased. He further submits that it was the police who had taken the deceased Sikandar Javaid who was in an injured condition, to the hospital. Had the eye-witnesses been present, they must have carried the deceased in an injured condition to the hospital. He furthers submits that according to Doctor Muhammad Arshad examined as P.W.10, who had medically examined Sikandar Javaid deceased in an injured condition, according to him fresh injury means that the injured received injury within four hours; He submits that motive has not been proved by the prosecution, that there is no fire-arm expert report regarding the weapon recovered on the pointation of the appellant. He submits that birth certificate Exh.P.T. Of appellant tendered by the District Attorney while closing the case is illegal because under section 510, Cr.P.C. This type of document cannot be tendered except those documents which are mentioned in that section.
Lastly he submits that at the time of occurrence appellant was minor and he could not have been convicted under section 302, P.P.C., that if case against minor is proved then conviction under section 308, can be amended.
10. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that the appellant is named in the F.I.R., a specific role is attributed to him. He alongwith. His co-accused in prosecution of their common intention while armed with fire-arm caused death of Sikandar Javaid, recovery was effected from him and both the eyewitnesses are natural witnesses, that the prosecution has proved its case against the appellant beyond any shadow of doubt. Learned counsel for the complainant has drawn our attention to the birth certificate Exh.P.T., according to which date of birth is 31-1-1979. He has also drawn our attention to page 66 of paper book wherein it has been stated by the learned trial Court that on the application of the learned defence counsel to ascertain the age of appellant/accused through ossification test -and according to the report of the Medical Board of Doctors, the age of appellant/accused was found to be 18 years and plus as per their unanimous opinion on 4-6-1998. When he was examined in this regard, he further submitted that the appellant's case falls within the category of adult and no lesser sentence can be awarded to him.
11. We have heard the learned counsel for the parties and also have gone through the evidence recorded by the trial Court. In the instant case the occurrence took place on 20-9-1997 at 5-30 a.m.
And the matter was reported to the police at 7-00 a.m. In Tehsil Phalia, Hospital, formal F.I.R. Was lodged at 7-15 a.m. On the same day. Place pf occurrence was at a distance of 4-1/2 miles from the police station. Appellant was named in the F.I.R., he was armed with pistol and he caused injuries on the person of deceased Sikandar Javaid alongwith his absconder co-accused Iftikhar alias Javaid. The occurrence took place in the month of June when there is sufficient light at 5 a.m.
Because Fajjar prayer in those days taken place at 4-30 a.m. Matter was reported to the police promptly. According to the cross-examination conducted on the complainant by the learned defence counsel he stated that police reached the hospital 7 minutes after the arrival of the injured and the complainant and the mention of the police in the relevant column that police had brought the injured in the hospital is not fatal to the prosecution case. Moreover, police station was also adjacent to the hospital. The opinion of the doctor that by fresh injury he means that the same was received within 4 hours is merely a guesswork and cannot be relied upon. Motive has been proved by the defence counsel himself when during the cross-examination a question was put to P.W. That how he came to know about the earlier occurrence when a fight took place between the deceased on one side and appellant and his co-accused on other side. He replied that deceased told him about this fight. Both the eye witnesses are independent witnesses. It was a case of broad daylight occurrence. There was no previous back ground of enmity between the parties. There is no question of false implication. During the statement of the appellant recorded under section 342, Cr.P.C. He himself had admitted that he was present at the spot at the time of occurrence though he was not armed with any weapon and in fact his co-accused Iftikhar alias Javaid had fired at the deceased. When P.W.13 Hakim Ali, the Investigating Officer was cross-examined this version was put to him. Then a question was also put to the Investigating Officer about the first version of Baqir the acquitted accused who had stated that he was not present at the time of occurrence but added in his first plea that his brother i,e, appellant Shehzad alias Shadoo had fired at Sikandar Javaid alongwith Iftikhar now absconder. This fact finds mention at page 38 of the paper-book.
12. In our considered view ocular account in this case has come from an unimpeachable source corroborated by medical evidence and motive furnished by the complainant. The question for our consideration in this case is whether the appellant could have been awarded death sentence in this case, the answer would be in the negative for the reason that at the time of occurrence admittedly the appellant was below 18 years of age. According to School Leaving Certificate Exh.D.A. His date of birth is 15-4-1982 and according to Exh.P.T. His date of birth is 31-1-1979 but the same could not have been tendered by the prosecution side and it was an illegal act on the part of the District Attorney because the same cannot be tendered in evidence as required under section 510, Cr.P.C. It may be noted here that on the request of the learned counsel for defence, ossification test of the appellant was conducted by a Board of Doctors on 4-6-1998 and according to their report appellant was 18 years of age or below 18 years on 4-6-1998. The occurrence took place on 20-9-1997 i,e, 9 months prior to ossification test of the appellant. It means that appellant was below 18 years of age, then his case falls within the definition of section 299 according to which an adult person would be that who would be 18 years of age. Learned counsel for the appellant had relied upon 1999 SCM R 2652 titled as Muhammad Iqbal alias Seema v. The State. We are of the considered opinion that appellant was not adult as defined under section 299, P.P.C. Although we dismiss the appeal of the appellant but convert his conviction from section 302(b), P.P.C. To under section 308, P.P.C. Death sentence awarded to the appellant is not confirmed. He is awarded 14 years' R.I., under section 308, P.P.C. Alongwith full payment of amount of Diyat which was prevalent on the day of occurrence and notice in this regard has also been issued 'to the learned counsel for the appellant who accepts the same. So our decision in this case is that the appellant would undergo 14 years' R.I. And he would also pay the Diyat amount in lump sum as required under section 331, P.P.C. And till then he shall not be released. In case of non-payment of Diayt amount he will undergo S.I. As required under section 331, P.P.C. Benefit of section 382-B, Cr.P.C. Is also given to the appellant. Murder Reference is replied in the negative and Criminal Appeal filed by the State against the acquittal of Muhammad Nawaz and Baqir bearing No,955 of 1998 is also .Dismissed.
' Death sentence awarded to the appellant by the learned. Special Judge under Anti-Terrorism Act, 1997, Gujranwala is not confirmed.