' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1007 of 1998 directed against the judgment dated 2-11-1998 passed by Special Judge, Anti-Terrorism Court, Sargodha, whereby he convicted both the appellants under sections 302/460, P.P.C. And sentenced them to death sentence with a fine of Rs,1,00,000 (One lac) each or in default 10 years' R.I. They were further convicted under section 392, P.P.C. And were sentenced 10 years' R.I each with fine of Rs,20,000 (Twenty thousand) each or in default 2 years' R.I each.
2. The occurrence in this case to place on the night between 8/9-8-1998 at i-10 mid-night and matter was reported to the police on 9-8-1998 at 2-15 a.m mid-night while the distance between police station and, place of occurrence was 3 k.m.
3. The facts in brief as narrated by the complainant Hamad Ahmad in the F.I.R. Are that on the above noted date and time within the area of Muradabad Colony, Sargodha, both the appellants while armed with pistols .30 bore each trespassed into the house of Hamood-ur-Rehman deceased, committed robbery and deprived him from golden ornaments and cash and thereafter they committed murder of Hamood-ur-Rehman by firing at him.
4. On receipt of information about the occurrence the local police completed all the necessary formalities and then a police party headed by Muhammad Anwar Khan, S.I proceeded to the spot, where the Investigating Officer prepared the injury statement Exh.P.D and inquest report Exh.P.E. He also collected blood-stained earth from the place of occurrence vide memo. Exh.P.H. He also took into possession an empty P-5 vide memo. Exh.P.J. Last-worn clothes i,e, blood-stained Shalwar P.1 and a phial containing bullet were also taken into possession by him vide memo. Exh.P.F. On 16-8- 1998 he arrested Muhammad Shakeel and Muhammad Nadeem appellants and on their personal search pistols .30 bore i,e, P10 and P-12 were recovered vide memos. Exh.P.N and Exh.P.O respectively. He after completing recoveries of stolen property vide memos. Exh.P.L and Exh.P.M.
Prepared the challan and submitted for trial.
5. Prosecution in order to prove its case has produced as many as J2 witnesses in all including Doctor, Investigating Officer, eyewitnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.T, report of Serologist Exh.P.0 and the report of Forensic Science Laboratory Exh.P.V learned P.P. Closed the prosecution evidence. Thereafter, statements of the appellants/accused were recorded under section 342, Cr.P.0 in which they pleaded not guilty and claimed to be tried.
6. Learned counsel for the appellants in support of the appeal submits that occurrence was unwitnessed one, that Hamad Ahmad complainant, the real brother of Hamood-urRehman, deceased was residing in the upper portion of the house while the occurrence had taken place in the lower portion of the house, that Sajjad Ahmad given up P.W. And Mohsin Raza examined P.W.10 were also not residents of the place of occurrence, that they are residents of a place 8/9 miles from the spot, that their presence at the spot is doubtful, that no conviction under section 392, P.P.C. Could have been awarded by the learned trial Court because there was no offence of robbery, that the recovery of pistols and that of golden ornaments along with cash amount have been planted on the appellants, that the occurrence had taken place between the night of 8/9-8- 1998, empty was recovered on 9-8-1998 by the police and appellants were arrested on 16-8-1998, pistols were recovered on the same day, i,e, 16-8-1998. P.W.2, Hafeez-ur-Rehman has stated before the learned trial Court that he got parcel of empty and admitted the same in the Forensic Science Laboratory on 15-8-1998 but according to the report of Firearm Expert which is Exh.P.V the said crime empty was received in his office on 20-8-1998 while pistols were received by the Fire Arm Expert on 24-8-1998. Learned counsel for the appellants also submits that there is clear violation of section 103, Cr.P.C. As far as recovery of currency notes and golden ornaments is concerned, he submits that no independent witness has been produced in this regard, that the appellants have been falsely implicated in this case. Lastly, both the learned counsel for the appellants submit that both the appellants were minor at the time of occurrence, that age of Shakeel appellant at the time of occurrence was 13 years while Nadeem appellant was about 12/13 years of age. Mr. Hussain Aziz Bhatti, Advocate, who was appointed at State expense to defend the appellants as the learned counsel for the appellants was not coming on the last four dates of hearing of this case. He has cited before us 2000 SCM R 1758 in this regard. He submits that if the case against the appellants is proved then the appellants can be sentenced under section 308, P.P.C. And not under section 302, P.P.C.
7. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that appellants were named in the F.I.R. Which was promptly lodged against them. They have criminally trespassed into the house of the complainant and they committed robbery there and they in prosecution of their common intention also committed the murder of Hamood-ur- Rehman brother of Hamad Ahmad complainant. As far as their minority is concerned, both the learned counsel submit that before the learned trial Court no documentary evidence was produced by the appellants to prove this fact of their minority. They both support the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties at a great length. The present occurrence had taken place in the house of the deceased who was living in the lower portion of the house while his brother Hamad Ahmad, complainant examined as P.W.9 was living on the upper portion of the house. On hearing hue and cry he came down and saw ,both the appellants and also saw that Shakeel appellant in his view fired a shot on the person of the deceased who died later on. As far as Sajjad Ahmad and Mohsin Raza P.Ws. Are concerned, they are closely related to the deceased and the complainant. They are not residents of the place of occurrence. They reside at a place 8/9 miles away from the place of occurrence. They could not give any specific reason for their stay in that house before the police while recording their statements under section 161, Cr.P.C. We disbelieve their evidence and eye-witness account. Now we are left with the statement of the complainant P.W.9. He is resident of that house. Court has to see quality of evidence and not the quantity of evidence. He has got no enmity with the accused persons/appellants. There is no reason to falsely implicate the appellants. Both the appellants shared with each other common intention. They while armed with weapons of offence came in the house of the complainant. They also took away currency notes and golden ornaments from the house of the deceased. Their names with parentage were also mentioned in the F.I.R. Parties were known to each other so there was no question of mistaken identity. Recoveries of looted money and the golden ornaments was also effected from both the appellants. We rely upon the statements of these recovery witnesses because they have got no enmity whatsoever against the appellants. Court has to see whether the witnesses were respectable or not and in this regard witnesses produced by the prosecution were respectable persons. No exception can be taken to that. Ocular account is corroborated by medical evidence. Crime empty was recovered on 9-8-1998 and according to P.W.2 it was sent to the Firearm Expert on 15-8-1998 but the same was received on 20-8-1998 through report Exh.P.V.
Appellants were arrested on 16-8-1998, recoveries of pistols were also effected on the same day but same were sent on 24-8-1998. It means that crime empty was sent after the recovery of pistol so we disbelieve the recoveries on this account. In our view prosecution has proved its case against the appellants through ocular account corroborated by medical evidence and recoveries of golden ornaments and that of cash amount. The point which was lastly urged before us is that appellants were minor at the time of occurrence. In this regard we would like to state here. That learned trial Court at the time of recording of statements of the appellants under section 342, Cr.P.C. Gave the age of Shakeel as 18/19 years while replying the question No,8 Shakeel had stated that he was minor boy of 13/14 years of age at the time of occurrence. Learned trial Court has not given age of Muhammad Nadeem. While replying to question No,8 he has given his age 13/14 years in his statement under section 342, Cr.P.C. Although, it was the duty of the learned defence counsel to make an application regarding Radiological/ossification test of the appellants or to submit birth certificates of the appellants and the School Leaving Certificates but he failed to, perform his duties. The question is that if any learned defence counsel fails to perform his duties whether Court should come to rescue of an accused to meet the ends of justice. In this regard we have also gone through the judgment of the learned trial Court and specifically page 62 of the paper book about this dispute. Learned Judge had stated in the following words:-- "Both Both the accused persons claimed that they are minor of 13/14 years but no proof in this behalf has been produced in the Court, including their birth certificates from the Authorities concerned. The accused persons while appearing in the Court were observed that they were young and moustaches of both the accused persons have been grown. Even otherwise teenagers or minors cannot be given a licence to commit dacoities or murders of innocent persons, as the offence is heinous, premeditated, brutal and cruel."
The above-said observation of the learned trial Court could not absolve him of his duty to do justice in this regard. We have gone through the judicial and police file. The Investigating Officer at the time of arrest of both the appellants has given their ages i,e, Shakeel was 18/19 years of age and Nadeem was 16/17 years of age on 30-8-1998. Learned trial Court after recording answer to questions Nos.7 and 8 of the appellants in their statements under section 342, Cr.P.C, should have referred the matter to some Radiologist about the determination of their ages but he failed to do so. We are of the-considered opinion that at the time of occurrence appellants were not adult as mentioned in section 299, P.P.C. We also follow the law laid down by the Honourable Supreme Court has enunciated in 2000 SCM R 1758 titled as Sarfraz alias Sappi and 2 others v. The State and relevant headnote is T while discussion was made at pages 1771 and 1772. Though, we maintain the conviction and sentence of the appellants but convert the same from section 302, P.P.C. To section 308, P.P.C. And sentence them to undergo 14 years' R.I. With further direction to pay Diyat amount each to the legal heirs of the deceased. As far as sentence under section 392, P.P.C. Is concerned the same is maintained. Both the sentences are ordered to run concurrently with the benefit of section 382-B, Cr.P.0 Death sentence awarded to the appellants is not confirmed and murder reference is replied in the negative. With these observations this murder reference and appeal are disposed of.