KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,60-J of 1998 filed by Muhammad Latif, appellant through jail who was convicted under section 302 (B), P.P.C. and sentenced to death with further direction to pay Rs,20.000 as tine and in default of payment thereof to undergo rigorous imprisonment for six months. The convict was also sentenced to pay compensation of Rs,20,000 as required under section 544-A, Cr.P.C. and in default six months' simple imprisonment by learned Additional Sessions Judge, Toba Tek Singh vide judgment dated 14-1-1998.
Murder Reference No,46 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 10-30 a.m. on 2-5-1995 within the revenue estate of Mauza Langah at a distance of 5 miles from Police Station Sadar Kamalia District T.T.Singh while the matter was reported to the Police by Muhammad Afzal at 6-30 p.m. on 2-5-1995 through written complaint Exh. P.E and formal F.I.R. Exh. P.El 1 was recorded by Muhammad Naseeb Inspector/S.H.O.
3. Briefly stated the facts of the case are that on 2-5-1995 at about 9-45 am Muhammad Afzal, complainant, Muhammad Aslam and Zulifqar Ali were talking with each other at the corner of the drawing room of the house of Noor-ul-Ain when Muhammad Aamir aged 10 years was seen returning to his home from Government Primary School Mauza Qadir Shah and when Muhammad Aamir deceased reached in front of the door of the house of Nazir Ahmad, Muhammad Latif came in the street and captured Muhammad Aamir and started striking him on the soling road headlong.
Muhammad Afzal, the complainant, Zulifqar Ali and Muhammad Aslam witnessed the occurrence and attended Muhammad Aamir who by then was unconscious. The accused on seeing the P.Ws. fled away from the spot. The injured was taken to Civil Hospital, Kamalia and from there was referred to Nishtar Hospital, Mikan. In the way to hospital, he succumbed to his injures.
4. Investigation of the case was taken over by Muhammad Naseeb, Inspector (P.W.8). He after registration of the case, reached at the spot, inspected the dead body, prepared injury statement Exh.P.B, inquest report Exh.P.0 regarding the dead body of Muhammad Aamir, prepared the site plan Exh. P.H and on the same day arrested Muhammad Latif. After completion of the formal investigation, the 'accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 8 witnesses in all. Thereafter, the learned AAP closed the prosecution case. Statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded innocence and false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant submits that there is delay of 8 hours in lodging the F.I.R., it was an un-witnessed occurrence, there was no motive on the part of the appellant to commit the murder of the deceased, two eye-witnesses produced by the prosecution are related to the deceased in as much Muhammad Afzal P.W.5 is father of the deceased while Zulifqar Ali P.W.6 is maternal uncle of the deceased and is resident of a place which is 2/3 Kilometers from the place of occurrence, in spite of this close relations, the P.Ws. did not make any effort to save the deceased, statements of the P.Ws. were recorded at the house of the complainant, the school normally does not close at 10-30 a.m. while the time of occurrence is given as 10-30 a.m., the Investigating Officer did not check the record of the school and that the prosecution has miserably failed to prove its case against the appellant.
7. On the other hand, teamed counsel for the State submits that it was a broad day light occurrence, it is a case of single accused so there was no question of substitution because substitution is a rare phenomenon and that mere relationship of the P.Ws. with the deceased is no criteria to discard their evidence. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. The deceased in this case was Muhammad Aamir. Though no motive was given in the F.I.R. but during the cross- examination, motive has been brought on record and that is that there was a quarrel between the deceased and son of the appellant in which son of the appellant was given beating by Muhammad Aamir, the deceased. The occurrence had taken place in broad-daylight, so it cannot be said that it was an un-witnessed occurrence. There is not an iota of evidence on record to show that there was any enmity whatsoever between the parties. The delay in the F.I.R. has been properly explained. It has been brought on record by the defence himself that firstly the deceased when he was in injured condition was taken to Civil Hospital, Kamalia from where he was referred to Nishtar Hospital, Multan because there were multiple fractures of skull bone. Mere relationship of the P.Ws. with the deceasd or the complainant is no criteria to discard weir evidence because the interested witnesses are those who apart from being related are inimical. In these circumstances, we are satisfied in our mind that the prosecution has been successful in proving its case against the appellant.
9. The only question begging determination is as to whether it is a case of death sentence or imprisonment for life. It is admitted that no lethal weapon like fire-arm, knife, dagger or hatchet has been used rather it was the story of the prosecution that the deceased was thrown twice or thrice on the ground. Moreover, no motive was given in the F.I.R., so, for the safe dispensation of criminal justice, we though maintain the conviction of the appellant under section 302(B), P.P.C. but convert his sentence from death to imprisonment for life. Benefit of section 382-B, Cr.P.C. is granted to the appellant. The sentence of fine and compensation is maintained. The death sentence of appellant is not confirmed. Murder Reference is replied in the negative.