MUHAMMAD FARRUKH MAHMUD, J.---Through this appeal Muzammil Hussain Shah alias Billo Shah appellate has challenged the judgment dated 11-1-2001 handed down by Mr. Riaz-ulHassan Alvi, Judge, Special Court No,II (Anti-Terrorism). Multan in case F.I.R. No,26 registered at Police Station Fateh Sher, District Sahiwal on 24-1-1999 for offences under sections 394/324, P.P.C.
Subsequently, sections 302/459, P.P.C. were added. Vide afore-referred judgment the appellant was convicted and sentenced as follows: Under section 302 (b), P.P.C.Sentenced to- death.
Compensation under section 544-A, Cr.P.C. Rs,1,00,000 to be paid to the legal heirs of the deceased Mst.
Nasim Iqbal. In default whereof to undergo further 6 months' S.I.
Under section 459, P.P.CImprisonment for life.
Under section 324, P.P.C.10 years' R.I. Fine Rs,50.000. In default to undergo further R.I. for 3 years. Fine if recovered was to be paid to Rabia Iqbal injured (P.W.I0).
Under section 337- F(ii). P.P.C. 3 years' R.I. plus daman of Rs,2,000 to be paid to injured Motashem (P.W. 9)
However the appellant was acquitted of the charge under section 394, P.P.C.
2. Crimimal Appeal No,38 of 2001 filed by Muzammil Hussain Shah appellant and Murder Reference No,3 of 2001 are being decided by this single judgment as the two arise out of the same matter.
3. The occurrence took place inside' the house of the complainant-P.W.9 situated in Fateh Sher Colony within the area in jurisdiction of Police Station Fateh Sher.
4. The law was set in motion on the statement of Mohtashem Iqbal, P.W.9 when he reported the matter to Imdad Ali, S.I. P.W.11 on 24-1-1999 vide complaint Exh.P.M. when the latter reached the Civil Hospital at 6-20 a.m. after knowing about the occurrence. On the basis of the complaint formal F.I.R. No,26 Exh. P.M./1 was registered at Police Station Fateh Sher by Naseer, H.C.. P.W.S.
5. Briefly, the facts as stated in the F.I.R. were that the complainant was student of first year and lived in 28-Fateh Sher Colony alongwith his parents. On the night in between 23/24-1-1999 the complainant was sleeping in the house alongwith his brother Ihtesham, mother Nasim Iqbal, sisters Rabia Iqbal and Aysha Iqbal, Israr Iqbal brother and father Muhammad Iqbal in three different residential rooms with an entrance in T.V. lounge. At about 3/4-00 a.m. Mst. Rabia Iqbal sister of the complainant heard some movement and came out of the room and saw Muzammil Shah appellant inside the room looking for some articles. Mst. Rabia raised alarm which awoke the inmates of the house who tried to apprehend the appellant who had a dagger in his hand and caused injuries on the abdomen of father of the complainant. He also inflicted injuries on the person of Mst. Rabia and Mst. Ayisha with the dagger when they: stepped forward to apprehend the appellant_ He also inflicted a dagger blow on the left wrist of the complainant when the complainant tried to apprehend him. After pushing the complainant aside the accused ran away through the drawing room. The accused/appellant was duly identified in the light of electric bulb which was on in the T.V. lounge. Neighbours Professor Asif Tanvir and Kashif Riaz took the injured P.Ws. to the hospital in their cars. It was further stated that at the time of recording of statement the complainant did not know whether any article was stolen or not but the accused had trespassed into the house with an intention to commit theft. On the intervention of the inmates of the house he injured five occupants of the house.
6. On the same date P.W.11, Imdad Ali, S.I. reached the place of occurrence and lifted blood sports from two places from inside the T.V. lounge. Blood spots from a place where the complainant was injured were taken into possession vide memo. Exh. P.B while the blood spots from a place where P.Ws. Rabia and Ayisha and Mst. Nasim Iqbal received injuries was taken into possession vide memo. Exh. P.C. The memos were attested by Irshad Ahmad who appeared as P.W.2 and Imdad Ali, S.I. P.W.11. However, Zafar Ali another attestee of the memos. was given up.
7. The accused was arrested on 25-1-1999 and led to the recovery of bloodstained Chhuri, P.1 which he had dug inside his house near the eastern wall. The same was taken into possession vide memo. Exh. P. E attested by Irshad Ahmad, P.W.2 and Imdad Ali, P.W.11.
8. Since the appellant denied the charges. the trial commenced. During the commencement of trial the prosecution produced eleven witnesses to prove its case. P.W.9. Mohtashem complainant, P.W.10, Mst. Rabia, both injured furnished the ocular account. P.W.3, Dr. Nusrat stated about the examination of injured, P.Ws. Ayisha and Rabia. She also conducted the post-mortem of dead body of Mst. Nasim Iqbal P.W.6, Dr. Muhammad Farooq stated about the examination of P.W.9 and Muhammad Iqbal P.W. who was given up. Irshad Ahmad, P.W.2. stated about the recovery at the instance of the appellant. Imdad Ali, S.I. stated about the investigation of the case. Rest of the witnesses were formal in nature. Mr.Nasir Jamal Khan. Magistrate 1st Class who had recorded the statement of Mst. Rabia, P.W.10 under section 164, Cr.P.C. appeared as C.W.I. After tendering the reports of Chemical Examiner Exh. P..0. and Bacteriologist Exh. P.V, the prosecution closed its case.
9. Statement of the appellant was recorded under section 342, Cr.P.C. who denied the allegations levelled against him and stated that in fact the inmates of the house were divided on the question of marriage of Mst. Rabia, P.W.10 Who allegedly was in love with one Waseem Asghar. He further stated as the family was divided on the fateful night there was a quarrel among them and they caused injuries to each other. He further stated that he was nominated in the case as scapegoat.
However, he refused to appear as a witness in his own defence as contemplated under section 340(2), Cr.P.C. and produced two witnesses in his defence namely: Inayat llah Khan, Press Reporter as D.W.1 and Shamim Hussain, Maternal uncle of the appellant as D.W.2. A personal diary allegedly belonging to Mst. Rabia mark 'A' and clippings of newspaper were introduced in defence.
10.The learned counsel for the appellant has argued that the witnesses were related inter se with the deceased and had a motive to falsely implicate the appellant. Their statements were discrepant and could not be relied upon on the simple ground that they were injured; the recovery was fake and planted and finally it was argued that in any case the appellant was a juvenile on the date of occurrence according to age recorded by the learned trial Court. in statement under section 342, Cr.P.C. of the appellant. Conversely the learned counsel for the State has argued that the witnesses were natural and trustworthy; the appellant had caused injuries to four persons and taken life of another and, therefore, he deserved no sympathy and has rightly been sentenced to death.
10. We have heard the learned counsel for the parties at length, have perused the entire evidence, the impugned judgment and have also gone through the record of the case. We have noticed that the time of occurrence and the place of occurrence have not been challenged. P.Ws. 9 and 10 both received injuries at the time of the occurrence. Their presence at the scene of occurrence cannot be denied. They are inmates of the house and, therefore, natural witnesses. Despite lengthy cross- examination nothing could be brought against these two P.Ws. as to why they should involve the appellant falsely. Admittedly the injuries on the person of P.Ws. 9 and 10 were not self-inflicted. The objection raised by the learned counsel for the appellant that father of P.Ws. 9 and 10 and husband of the deceased Mst. Nasim Iqbal who also received injuries did not appear as a witness is of no substance as the prosecution is not bound to produce all the witnesses..
11. The ocular account is fully supported by the medical evidence. Lady Doctor Nusrat appeared as P.W. 3 and she stated that Mst. Nasim Iqbal deceased received three stab wounds on her person which were all ante-motem in nature and were caused by sharp-edged weapon. She further stated that Injuries Nos,1 and 2 caused the death of Mst. Nasim Igbal. P.W.3 also examined Mst.
Rabia P.W.10 and according to her statement P.W.10 received four stab wounds on her person and corresponding cut was present on shirt and jersey of P.W.10. P.W.6, Dr. Muhammad Farooq examined P.W.9 and stated about the injury received by him. The occurrence took place at about 3/4-00 a.m. on 24-1-1999.The injured P.Ws. and the deceased were examined on the same date by the Medical Officers. The case was also registered on the same date and the appellant was mentioned in the F.I.R. as single accused.
12.After his arrest the appellant led to the recovery of blood-stained chhuri, P.1 and C the recovery was duly proved during the trial.
13. We have gone through the evidence of D.W.1 and D.W.2 as well as Mr.Nasir Jamal, Magistrate 1st Class, C.W.1. D.W.1 is a Press Reporter who never appeared before the police and whose statement was never recorded. His evidence is nothing but hearsay. Similarly, D.W.2, who is maternal uncle of the appellant produced a diary allegedly belonging to Mst. Rabia, P.W.10 and tried to develop a story of substitution of accused. This P.W. also . never appeared before the police and his statement is not confidence inspiring at all. The evidence of, C.W.1 relates only to the fact that statement of Mst. Rabia, P.W.10 was recorded by him' under section 164, Cr.P.C. According to the appellant the family of the deceased was divided on the point of marriage of Mst. Rabia and, therefore, on the fateful night a quarrel took place among the inmates of the house and they caused injuries to each other. To say the least this defence is totally preposterous and not supported by an evidence. Substitution of the accused is very rare phenomenon. In the instant case the injured P.Ws. who had lost their mother had appeared and testified. There is no reason as to why they should substitute the real culprit for the appellant. The prosecution has proved its case beyond doubt against the appellant and the learned trial Court has rightly convicted the appellant.
14.Therefore we maintain the conviction of the appellant on all charges as rendered by the learned trial Court. However, the quantum of sentence under section 302(b), P..P.C. passed by the learned trial Court against the appellant has engaged our serious attention.
15.The motive as narrated in the F.I.R. was that the appellant had trespassed into the house with an intention to commit theft but the same could not be established during the trial as no article of the house was found missing or stolen by the appellant. The age of the appellant has been recorded as 16/17 years by the learned trial Court while recording his statement under section 342, Cr.P.C. For the purposes of sentence we have to believe the age as recorded by the learned trial Court. Reliance is placed on the case of Sohail Iqbal v. The State (1993 SCM R 2377). The judgment was recorded in this case on 11-1-2001. On that date Juvenile Justice System. Ordinance, 2000 had already been enforced. The appellant being of the age of 16/17 years was a child/juvenile as he had no attained the age of 18 years at the time of commission of offence as defined in clauses (b) of section 2 of the afore-referred Ordinance. According to clause (a) of section 12 of the above mentioned Ordinance capital punishment could not be awarded to he juvenile. The appeal is continuation of the proceedings of the trial. Therefore, while we maintain the conviction under section 302(b), P.P.C. we alter the sentence of death to imprisonment for life. The amount of compensation is maintained. The convictions and sentences passed by the learned trial Court under sections 459/324/337-F(ii), P.P.C. are also maintained. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is extended to the appellant. With these modifications, the present appeal is dismissed.The death sentence is not confirmed.
16. Murder Reference is answered in the negative.