' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 705 of 1997 filed by Karamat Ali and Abdul Ghani appellants who were convicted and sentenced by the learned Additional Sessions Judge, Faisalabad vide his judgment, dated 29-11-1997 as under:-- ' Karamat Ali ' Death under section 302/34, P.P.C. With further direction to pay Rs,20,000 as compensation and in default thereof to further undergo R.I. For six months. The amount of compensation, if recovered was ordered to be distributed to the legal heirs of the deceased.
' Abdul Ghani ' Imprisonment for life under section 302/34, P.P.C. With further direction to pay Rs,20,000 as compensation and in default thereof to further undergo R.I. For six months. The amount of compensation, if recovered, was ordered to be paid to legal heirs of the deceased.
' Murder Reference No,131 of 1998 for confirmation of death sentence of Karamat Ali or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 9-30 a.m. On 3-11-1995 at a distants of 7 miles from Police Station Chak Jhumra, District Faisalabad while the matter was reported to the police through complaint Exh.P.C. At 12 noon on the same day by Mst. Bibi, the complainant and the formal F.I.R.
Exh.P.C./1 was recorded by Javed Iqbal, Head Constable at 12-30 p.m. On the same day.
3. Briefly stated the facts of the case are that Mst. Hameedan Bibi, the complainant in her statement Exh.P.C. Stated that she married Muhammad Maalik deceased about 16 years back and on the fateful day at 9-30 a.m., she alongwith the deceased, Noor Muhammad, Manzoor Ahmad and her children were present at her house when Abdul Ghani and Karamat Ali appellants armed with .12 bore guns arrived and Abdul Ghani, after raising Lalkara directed Karamat Ali to commit the murder of Muhammad Maalik deceased to revenge the insult offered by the deceased to women- folk and Karamat Ali accused fired a shot hitting the deceased at his chest, who fell down and expired there.
' The motive of the occurrence was that a quarrel had taken place between Mst. Hamidan Bibi the complainant, Abdul Ghani appellant and his women-folk on the morning of the same day in which the deceased had abused the women-folk of the accused persons and due to this grudge both the appellants with pre-concert committed the murder of Muhammad Maalik deceased.
4. The investigation of this case was taken over by. P.W.8 Sajwal Khan, S.-I. Who after registration of the case, inspected the place of occurrence, prepared injury statement and inquest report Exh.P.H.
And Exh.P.H./1 respectively, during spot inspection blood-stained earth and an empty P.3 were secured vide memos. Exh.P.E. And Exh.P.D. Respectively. Then he prepared visual site plan vide memo. Exh.P.1. Then he secured last-worn clothes of the deceased shirt P.1, Chaddar P.2 and a sealed phial vide memo. Exh. P.A. On 11- 1 I -1995 Karamat Ali appellant got recovered .12 bore gun and three' live cartridges P.5/1-03 vide memo. Exh.P. F. Ultimately the challan was prepared and was submitted for trial.
5. Prosecution produced as many as eight P.Ws. In order to prove its case after tendering in evidence report of Chemical Examiner Exh.P.K., report of Forensic Science Laboratory Exh.P.L and closed the prosecution case. Thereafter, statements of the appellants under section 342, Cr.P.C.
Were recorded in which they pleaded their false implication.
6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that the appellants have been falsely involved in the instant case and that Karamat Ali acted under grave and sudden provocation because the P.Ws. Had insulted his father and issued a single shot which hit the deceased. Further submits that the age of Karamat Ali, appellant was less than 18 years of age at the time of occurrence, so he cannot be convicted under section 302, P.P.C. And the conviction, if any can be under section 308, P.P.C.
Learned counsel for the complainant submits that Karamat Ali, appellant was 18 years of age at the time of occurrence. Further submits that the complainant had submitted an application under section 540, Cr.P.C.. But the trial Court dismissed the same without any cogent reasons vide order, dated 5-11-1997. He supports the judgment of the trial Court qua Karamat Ali and as against Abdul Ghani he submits that his sentence may be enhanced to death.
7.Learned counsel for the State submits that the prosecution has been successful in proving its case against the convicts but has not been able to controvert the submissions made by learned counsel for the appellants about the tender age of Karamat Ali, appellant.
8. We have heard learned counsel for the parties and ha've gone through the record. Abdul Ghani, appellant is father of Karamat Ali, convict appellant. He is an old man. No overt act is attributed to him,. So we set aside the conviction and sentence recorded against him by the trial Court. Abdul Ghani is in jail and shall be released forthwith, if not required to be detained in any other case.
9.Now, we 'take up the case of Karamat Ali, appellant. He, while giving reply to question No, i2 in his statement under section 342, Cr.P.C. Stated as under:-- "I am innocent. The prosecution story has been invented by the complainant in connivance with the Thanedar. In fact on the fateful day I after attending my daily routine work arrived at my house with a gun belonging to my father Abdul Ghani which I used to keep for my safety and found Noor Ahmad P.W.4, Muhammad Maalik deceased and Mst. Hamidan P.W.3 quarrelling with my, father Abdul Ghani accused and our women-folk to which I requested them, upon which Noor Ahmad P.W.i by putting off his lying cloth (Chadar) by showing his private parts challenged that he would take revenge of the insult of Muhammad Maalik his brother and attempted to attack upon Abdul Ghani my father. I intervened and in, that scuffle the gun P.4 which I was carrying went off hitting ' the deceased. I went to the police station to lodge the report, but the police who had already connived with the complainant party did not register the case at my instance. The motive part of the occurrence as canvassed by the prosecution is false. It was in fact to strengthen the prosecution case."
' Both the versions, that is, one put forward by the prosecution and the other introduced by appellant Karamat Ali, if are put in juxta position, the version of the prosecution seems to be more probable and near to the truth. The version of the appellant is absurd and incorrect because the blood-stained earth was not taken into possession from the house of the appellant but from point No,1 of the site plan Exh.P.B. The complainant had submitted an application under section 540, Cr.P.C. For summoning of the Secretary, Union Council who issued the birth certificate in .Respect of Karamat Ali. The said application after hearing both the sides was dismissed. The order of dismissal of the said application was not challanged any further, so it became final. So far as merits of the case are concerned, we are satisfied that the prosecution has been successful in proving its case against the appellant Karamat Ali to its hilt. The only question which requires consideration is as to whether Karamat Ali appellant at the time of occurrence was minor or not. Occurrence in this case had taken place on 3-11-1995. Statement of the convict appellant under section. 342, Cr.P.C. Was recorded on 15-11-1997 wherein he gave his age as 13-1/2 years. We have also gone through the antecedents slip placed on the judicial file of this case. Karamat Ali appellant was arrested on 8-11- 1995 and according to the aforesaid document the Investigating Officer has given his age as 14/15 years. Taking from any angle, we are satisfied that Karamat Ali was minor at the time of occurrence, so the conviction of the appellant under section 302, P.P.C. Is set aside and he is convicted under section 308, r. P.P.C. And sentenced to undergo R.I. For 1/4' 14 years with further direction to pay the Diyat amount at the rate as it was at the relevant time. The benefit of section 382-B, Cr.P.C. Is also granted to the appellant. Th death sentence of the appellant Karamat Ali i' not confirmed. Murder reference is replied I the negative.