' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Neimat Ullah Khan appellant alongwith one Kaleem Ullah Khan was tried by the learned Special Judge, S.T.A. Court No,1, Mianwali for the murder of one Samee Ullah Khan in case bearing F.I.R. No,147 of 1997 dated 17-8-1997 under section 302/34, P.P.C.
Registered at Police Station Mochh, District Mianwali, who vide judgment, dated 8-10-1999 while acquitting Kaleem Ullah Khan (co-accused of the appellant) convicted appellant under section 302(b), P.P.C. And sentenced him to -death. The appellant was further directed to pay Rs,2,00,000 (Rupees two lacs) as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo R.I. For five years. It was further directed that in case of default in payment of compensation, the same would be liability against the person and property of the convict/appellant.
2. Being aggrieved by the conviction and sentence, appellant filed instant criminal appeal bearing Criminal Appeal No,1108 of 1999.
3. Story of the prosecution case as narrated in the F.I.R. Exh.P.F. By Hadayat Ullah Khan, complainant/uncle of the deceased/P.W.8, is that on 17-8-1997 at about 6-45 p.m. The complainant was sitting with his nephew Sami Ullah Khan in his house when someone knocked at the outer gate of the house. Statedly, Sami Ullah went out in response to the knock and was followed by his uncle Hidayat Ullah Khan. The complainant saw that Kaleem Ullah, co-accused of the appellant, was -taking Sami Ullah deceased towards the office of Union Council, Mochh. In the meantime. Neimat Ullah appellant armed with .30 bore pistol standing in ambush near the gate of the office of Union Council emerged and threw a challenge that he would evenge his insult, Neimat Ullah appellant fired with his .30 bore pistol striking Sami Ullah in the chest. Riaz Ahmad Khan and Sibghatullah Khan P.Ws. While coming in the street also witnessed the occurrence besides Hidayat Ullah complainant. The three eye-witnesses tried to apprehend the accused when Kaleem Ullah, co-accused of the appellant extended life threats. Statedly, thereafter the accused person fled away while waiving their .30 bore pistols. Sami Ullah Khan yielded to the injuries on the way to hospital.
' The motive for this occurrence was that 2/3 days before Nemat Ullah appellant and Sami Ullah deceased quarrelled in cricket ground and the deceased slapped the accused/appellant.
4. After the occurrence, matter was reported to Ghulam Murtaza, Inspector/P.W.10, who entered formal F.I.R. Exh.P.F.. And conducted formal investigation of this case. This witness after examining the dead body prepared injury statement. Exh.P.H.. Inquest report, Exh.P.K. And sent the same to the mortuary for post-mortem examination. The Investigating Officer during spot inspection collected blood-stained earth vide recovery memo. Exh.P.G. On 8-9-1999. Neimat Ullah Khan appellant was arrested, who on the same day led to the recovery of .30 bore pistol. P.1. Alongwith two live cartridges, P.2/1-2. From his residential house: these articles were taken into custody vide recovery memo. Exh.P.C. On 22-9-1997. Kaleem Ullah Khan (co-accused of the appellant) was arrested who also led to the recovery of his .12 bore pistol P.3 alongwith two live cartridges, P.4/1-2 from his residential house; these articles were also taken into custody vide recovery memo. Exh.P.D. After completing formal investigation, this witness submitted challan before the trial Court.
5. During the trial, prosecution produced ten witnesses in order to, prove the charge against the appellant and his co-accused. Dr. Muhammad Ishaq, P.W.1 conducted post-mortem examination on the dead body of Sami Ullah Khan deceased and observed following injuries on his person:-- "(1) A fire-arm wound of entry 1/2 x 1/2 c.m. On the front of right side of chest, 10 c.m. Below the right nipple at 4 O'Clock position.
(2) A fire-arm wound of exit 1 x 1 c.m. On the back of right side of chest. 15 c.m. Below the lower border of right scapula bone, and 9 c.m. From the mid-line.
' Cause of death in the opinion of the doctor was haemorrhage and shock as a result of injuries Nos.1 and 2 which damaged right lungs. Liver.
Muhammad Shafique, Draftsman/P.W.2. prepared scaled site plan Exh.P.B. And Exh.P.B./1 of the place of occurrence.
Ghulam Yaseen, P.W.3, and Muhammad Ashraf P.W.4, took the parcel of blood-stained earth to the office of Chemical Examiner and delivered the same intact.
Zafar Ullah Khan, S.-I./P.W.5, witnessed the recovery of crime weapons at the instance of the appellant and his co-accused. This witness also signed the recovery memos. Exh.P.C. And Exh.P.D. In this regard.
Hameed Ullah Khan, P.W.6, identified the dead body of Samee Ullah Khan deceased at the time of post-mortem examination.
Muhammad Aslam, F.C./P.W.7, took the dead body to the mortuary for post-mortem examination and after the same produced last-worn clothes of the deceased which were taken into custody vide recovery memo. Exh.P.E.
Hidayat Ullah Khan, P.W.8 and Sibghat Ullah Khan, P.W.9, were the eye-witnesses of this occurrence.
Both of them narrated the circumstances under which Samee Ullah Khan was done to death by the appellant and his co-accused and had supported the prosecution case in verbatim.
Ghulam Murtaza, Inspector/P.W.10, conducted the formal investigation of this case are narrated in the earlier part of this judgment.
6. Learned D.D.A. Tendered in evidence report of Chemical Examiner, Exh.P.M. And that of Serologist, Exh.P.N. And closed the case for the prosecution.
7. Learned trial Court after recording entire prosecution evidence, examined appellant and his Co- accused under section 342, Cr.P.C. Wherein the appellant while answering to the question "Why this case against you and why P.Ws. Have deposed against you?" replied as under:-- "It was an unwitnessed occurrence. The P.Ws. Did not see the occurrence. The deceased quarrelled with some boys while playing cricket and their fight was also joined by the spectators and in the melee someone struck the deceased resulting in his death. Anwar Khan, S.-I and Feroze Khan, A.S.-I.
Who are closely related to the deceased got registered this false case against myself and my co- accused on account of previous enmity. Arshad Jameel is my maternal-uncle. He contracted marriage with Mst. Aasia, paternal-aunt of myself. Arshad Jameel contracted this marriage after having divorced his first wife Mst. Razia, sister of the mother of the deceased. This family dispute persuaded and prompted the complainant party to involve myself in this case falsely.
' During the days of occurrence, I was a student of 9th class and was hardly aged about 17 years.
On the following day of the occurrence, I appeared before the S.H.O. Of my own and pleaded innocence. The S.H.O. Did not record my true version and kept me without showing my arrest in papers. Nothing was recovered at my instance. I have falsely been involved in this case."
' Neither the appellant nor his co-accused made statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence, however, the appellant tendered in evidence attested copy of his birth certificate (Exh.D.B.) issued from the office of Union Council Mochh.
8. Learned trial Court also examined Said Rasool, Secretary, Union Council, Mochh, as C.W.1 who had brought with him the original Birth Register of Union Council, Mochh which contained Birth Entry No,233 of Neimat Ullah Khan son of Atta Ullah Khan son of Fazal-ul-Rehman Khan, resident of Mochh on 15-4-1980. This witness also stated that Exh.D.B. (birth certificate relied upon by the defence) was a forged document as name of the grandfather of the appellant had been forged shown as Faiz Ullah Khan. Said Rasool, C.W.1, also placed on file photocopy of Original Birth Register showing Entry No,233 of 1980 Exh C W 1/A.
' At this stage, appellant was re-examined by the learned trial Court under section 342, Cr.P.C.
Wherein the appellant while answering to the question. It is in the statement of Said Rasool, C.W.1, that the copy of birth entry Exh.D.B. Produced by you in your defence was tampered with in the manner that the name of the grandfather of the born child was changed from Fazal-ur-Rehman Khan to Faiz Ullah Khan. What do you say about this claim of the C.W.? Replied as under:-- "In fact the C.W.1 himself issued the copy Exh.D.B. Containing correct particulars of myself and that of my father and grandfather. None tampered with the copy Exh.D.B. Or any of this entries. The fact of the matter is that the Secretary, Union Council in connivance with the other party issued incorrect copy of birth entry Exh.C.W.1/B. In the original register, a photostat copy of which is available on file as Exh.C.W.1/A itself reveals that my gtandfather's name against Entry No,233 has been recorded as Faiz Ullah Khan and not Fazal-ur-Rehman as claimed by the C.W."
9. Learned trial Court after appraisal of evidence available on record, vide judgment dated 8-10- 1999 convicted and sentenced the appellant as narrated in the earlier part of this judgment.
10. Learned counsel for the appellant submitted that it was an unseen occurrence, the witnesses were not present at the relevant time but were introduced later on to strengthen the prosecution case; that the discrepancies in the statement of the eye-witnesses discredit them and in the absence of any statement of independent witness it would be unsafe to rely upon the statement of these eye-witnesses; that the motive alleged by the prosecution had never been proved and that the evidence of recovery relied upon by the prosecution had no value in the circumstances of this case. In the alternate it was argued that in the circumstances it is a case of lesser sentence. The contentions raised by learned counsel for the appellant were opposed by learned counsel for the complainant as well as learned State Counsel.
11. Heard. Record perused.
12. The precise allegation against the appellant Is that on 17-8-1997 at about 6-45 p.m. He in connivance with his co-accused namely Kaleem Ullah Khan committed the murder of Samee Ullah Khan deceased. To prove its case, prosecution has mainly relied upon the statement of Hidayat Ullah Khan, P.W.8, and Sibghatullah Khan, P.W.9 and sought corroboration from the evidence of motive, recovery of crime weapons and medico-legal reports.
13. It is a case of promptly lodged F.I.R. In which all the necessary details have been given. The eye- witnesses i,e, Hidayat Ullah Khan P.W.8 and Sibghatullah Khan P.W.9, supported the prosecution case in verbatim. Statedly, Hidayat Ullah Khan, P.W.8, was the uncle of the deceased and at the relevant time was present in the house of the deceased. He followed Samce Ullah Khan deceased when he (deceased) was called by co-accused of the appellant and had witnessed the occurrence. The presence of this witness in the house of the deceased being uncle and then following the deceased to the place of occurrence is very natural and there is nothing to doubt the conduct of the witnesses. Similarly, Sibghatullah Khan, P.W.9, being the resident of the area was passing by when this occurrence took place. The place of occurrence is common, thoroughfare and presence of this witness at the spot is natural and free of doubts. Both the eye-witnesses were subjected lengthy cross-examination but we have observed that defence has failed to shatter the credibility of these witnesses nor the defence has succeeded to bring on record an iota of evidence to show that these witnesses had any malice to falsely implicate the appellant in this case. The ocular account narrated by these 'witnesses stand corroborated by the medical evidence which proves the fact that the deceased died of fire-arm injury. We see no reason as to why these witnesses who had no axe to grind would implicate the appellant falsely in this case. Learned counsel for the appellant had pointed out some discrepancies in the statements of eyewitnesses which occurred during the cross-examination, but we are not impressed by the arguments of the learned counsel for the appellant as the discrepancies highlighted are not of the nature to doubt the credibility of said witnesses. The statements of both these eye-witnesses have inspired our confidence for placing implicit reliance even in the absence of any corroborative piece of evidence.
14. The medical evidence brought on record by the prosecution provided full support to the ocular, account. The time of occurrence, weapons used and the receipt of injuries stated by the eye- witnesses were all confirmed by this piece of evidence.
15. As observed earlier, F.I.R. In this case was lodged with reasonable promptness and the same contains all necessary details of incident. The promptness in lodging the F.I.R. Eliminates all possibility of fabrication and false involvement thus this factor is another circumstance providing full support and corroboration to the prosecution case.
16. Motive for the commission of this offence as alleged by the prosecution was that 2/3 days prior to the instant occurrence, deceased and the appellant had quarrelled during a cricket match and the deceased gave slap to the appellant. During the trial, except .Hidayat Ullah Khan.
Complainant/P.W.8, none of the witnesses deposed about the motive part of the prosecution case.
Admittedly, Hidayat Ullah P.W.8/complainant at the time of quarrel which was statedly the motive part of this occurrence, was not present. In this view of the matter the statement of Hidayat Ullah Khan to this extent of the prosecution case is nothing but hearsay evidence and the same cannot, be taken into consideration. Similarly. During the investigation, no attempt was made by the Investigating Agency to collect evidence in support of the motive part of the prosecution ease. In these circumstances, it can easily be said that the prosecution had failed to prove the motive part of its case.
' Another important aspect of this case is the age of the appellant. Admittedly, during the trial prosecution had not placed on record any documentary evidence to show that at the time of occurrence appellant was not teenager. Contrary to this appellant had relied upon his birth certificate Exh.D.B. Issued by Union Council Mochh. According to this certificate dale of birth of the appellant is 15-4-1980 and after calculation, the age of the appellant on the day of occurrence was about 17 years and 4 months. No doubt, Said Rasool C.W 1, Secretary, Union Council, Mochh, while deposing before the trial. Court had stated that Exh D.B. Is a forged document, but the file, of this case reveals that according to the police record the age of the appellant at the time of his arrest is recorded as 18.119 years whereas according to the Court's observation while recording statement of the appellant 'under. Section 342. Cr.P.C. The age of the appellant is shown as 18 years. In this view of the matter possibility that the appellant was less than 18 years of age at the time of occurrence cannot be ruled out.
17. The crux of the above discussion: is that prosecution has proved its case to the hilt and this appeal has no force. As far the quantum of sentence of The appellant is concerned, since the prosecution has failed to prove the motive as set up in the F.I.R. And the appellant at the time of occurrence was teenager, we are persuaded to take lenient view with regard to the quantum of sentence. Accordingly, while discussing this appeal and maintaining the conviction of the appellant, his sentence is reduced to imprisonment for life. The appellant will also get the benefit of section 382-B, Cr.P.C. The amount of compensation payable by the appellant as fine imposed by the trial Court is maintained.
18. We have observed that the learned trial Court while fixing the amount of compensation has erroneously observed that in case of default in payment of amount of compensation, the appellant would suffer R.I. For five years. Under section 544-A, Cr.P.C. This period cannot exceed six months. In this view of the matter the impugned judgment also stands corrected to this extent and it is directed that in case of non-payment of compensation the appellant shall further undergo S.I. For six months. With these modifications, instant criminal appeal stand disposed of.