' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.--- Appellants, Abdul Qayyum son of Abdul Rashid and Muhammad Pervaiz son of Asghar Ali were tried for the murder of one Muhammad Ishaque and for causing injuries to Muhammad Naeem P.W.4 in case F.I.R. No,75 of 1996 dated 12-4-1996 registered under sections 302/324/34, P.P.C. At Police Station Raja Jang by the Additional Sessions Judge, Kasur who vide judgment dated 14-6-1997 convicted Abdul Qayyum appellant under section 302(a), P.P.C. Read with section 34, P.P.C. And sentenced him to death as well as to pay Rs,30,000 as compensation to the legal heirs of the deceased Muhammad Ishaq. Appellant Muhammad Pervaiz was convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life as well as to pay Rs,30,000 as compensation to the legal heirs of the deceased. Both the appellants were also convicted under section 324, P.P.C. Read with section 34, P.P.C. And sentenced to ten years' R.I. Each with a fine of Rs,5,000 each. They were also convicted under section 337-F(ii)/34, P.P.C. And sentenced to three years' R.I. As Tazir as well as to pay Rs,5,000 each as Daman to Muhammad Naeem injured (P.W.4). It was further directed that in case of non-payment of fine each of the accused/appellant would further undergo one year's R.I. All the sentences so pronounced upon Muhammad Pervaiz appellant were ordered to run concurrently. Benefit of section 382-B, Cr.P.C.
Was also given to Muhammad Pervaiz appellant. Similarly sentences of Abdul Qayum appellant under sections 324/337-F(ii), P.P.C. Were also ordered to run concurrently.
2. Challenging their conviction and sentence appellant Abdul Qayum filed Criminal Appeal No,323 of 1997. Whereas Muhammad Pervaiz appellant filed Criminal Appeal bearing No, Criminal Appeal.
No,353 of 1997 while the trial Court has made a reference (Murder Reference No,475 of 1998) seeking confirmation of death sentence awarded to Abdul Qayum appellant. All these matters are being disposed of together by this judgment.
3. This occurrence took place within the area of village Buck in Mauza Meer Muhammad falling within the jurisdiction of Police Station Raja Jang and matter was reported to the police by Muhammad Omar son of Nawab Din P.W.3 brother of the deceased.
4. Succinctly the prosecution case as narrated in the F.I.R. Exh.P.C./1 is that on 12-4-1996 Muhammad Umar complainant (P.W.3) was present in his house after Magrab prayers. On hearing alarm from the shop of his younger brother Muhammad Ishaq, complainant went there and saw Abdul Qayum appellant armed with .12 bore gun. Pervaiz appellant armed with carbine, who while raising Lalkara started firing. Fire made by Abdul Qayum hit Muhammad Ishaq on the right side of chest and right, hand who fell down. Pervaiz fired with his carbine which hit Muhammad Naeem P.W.4 on the left side of his abdomen, who also fell down. Occurrence was witnessed by HO Noor Muhammad, Khushi Muhammad and Muhammad Yaqoob. The appellants while raising Lalkara that whosoever would come forward will not be spared, fled away with their weapons. The injured were shifted to District Hospital, Kasur but Ishaq succumbed to his injuries whereas Muhammad Naeem after first aid was referred to General Hospital, Lahore.
' Motive behind the occurrence was that few days prior to the occurrence Muhammad Ishaq deceased had a quarrel with the appellants on account of some money dispute and in order to wreck the vengeance both the appellants launched pre-concerted attack upon Ishaque deceased and Muhammad Naeem injured and caused injuries to them.
5. After the occurrence Muhammad Umar P.W.3 reported the matter to Muhammad Rashid, Inspector P.W.6 through a written complaint Exh.P.C. On the basis of which formal F.I.R. Exh.P.C./1 was entered at the police station. The formal investigation in this case was conducted by the same Police Officer. On 22-4-1996 both the appellants were arrested and on 24-4-1996. Abdul Qayum appellant while in police custody led to the recovery of gun P.4 alongwith seven live cartridges P.4/1-7. These articles were taken into possession vide memo. Exh.P.E. On the same day Muhammad Pervaiz appellant also led to the recovery of carbine P.5 alongwith five live cartridges P.6/1-5 and the same were taken into possession vide memo. Exh.P.F. The Investigating Officer after complying with all legal formalities submitted the challan before the trial Court.
6. In order to prove the charge against the appellant the prosecution produced eight witnesses before the trial Court.
7. Muhammad Umar P.W.3 and Muhammad Naeem P.W.4 being the eye-witnesses of this occurrence while supporting the prosecution case narrated the circumstances under which both the appellants committed the murder of Muhammad Ishaq and caused fire-arm injuries to Muhammad Naeem P.W.4. The post-mortem examination on the dead body of Muhammad Ishaq deceased was conducted by Dr. Mian Abdul Rauf P.W.8 who observed the following injuries thereon:--
(1) Circular penetrating wounds on outer side of right arm 1 x 1 c.m. 9 c.m. Below to shoulder joint.
(2) Three circular penetrating wounds on outer side of right arm each measuring 1 x 1 c.m. Present in an area 6 x 4 c.m.
(3) Circular wound 1 x 1 c.m. On front of right arm 4 c.m. Above right elbow.
(4) Four lacerated wound margins everted on right arm in an area 4 x 5 c.m. 6 c.m. Below right axilla.
(5) Circular wound 1-1/2 x 1 c.m. Back of right arm 4 c.m. Below right axilla.
(6) Circular wound 1 x 1 c.m. 2 c.m. From interior auxiliary line.
(7) Three circular wounds on right chest laterally 13 c.m. Below right nipple.
(8) Circular wound 1 x 1 c.m. On lower right chest 5 c.m. Below injury No,7.
' In the opinion of doctor death occurred due to shock, haemorrhage and injuries to vital organs i,e, heart and both lungs by injuries Nos.6 and 7 which were sufficient to cause death in the ordinary course of nature.
' The said doctor also medically examined Muhammad Naeem P.W.4 and observed the following injury on his person: "Circular penetrating wound on left lower chest front 1 x 1 c.m. (D.N.P.) margins inverted.
' The rest of witnesses being of formal nature need not be discussed.
8. The trial Court also examined the appellants under section 342, Cr.P.C. While answering to the question "why this case against you and why the P.Ws. Have deposed .Against you?" Abdul Qayyum appellant replied as under:- "The real fact is that I purchased some articles from Ishaq deceased and I paid some of the amount while the some was outstanding. .A short while ago from the occurrence I and Pervaiz passed in front of the shop of Ishaq deceased. At that time Imtiaz son of the deceased aged 12/13 years student of 7th class was present at the shop who stopped me and also started abusing me and also gave slaps. Imtiaz also demanded amount. At this I and Pervaiz gave fist blows and slaps to Imtiaz who became semi-unconscious then we ran away towards our house which was very close to the house of one Fateh Muhammad. After some time Ishaq deceased armed with gun and Naeem P.W. Armed with pistol .12 bore attacked on our house while abusing and raising Lalkaras.
They started firing and due to this the fire hit on the planks of the outer door. Then in order to save ourselves as the deceased and his companion opened the door by pushing the same, so I picked up the licensed gun of father of Pervaiz accused. At that time deceased and Naeem were just at thrash-hold of the outer door of the house. They were just going to fire on us after taking the aim then Pervaiz took the gun from me and fired which hit Ishaq and Naeem. They fell down there. The complainant party removed them from there and then afterwards they concocted the occurrence as in front of the shop of Muhammad Ishaq. The width of my thrashhold is 4-1/2 feet. The witnesses are inter se related to the deceased and injured P.W."
' Similarly while answering to the same question. Muhammad Pervaiz appellant replied in the same manner as that of his co-accused Abdul Qayum appellant.
' None of the appellants made any statement under section 340(2), Cr.P.C: nor produced any evidence in their defence. However, Abdul Qayum appellant placed on. Record his school leaving certificate Exh.D.B. To prove that on the day of occurrence he was less than 18 years of age.
9. The trial Court vide judgment, dated 14-6-1997 convicted and sentenced the appellant as narrated in the earlier part of the judgment.
10. At the very outset, learned counsel appearing on behalf of Abdul Qayum appellant did not challenge the conviction of the appellant and had prayed for reduction in his sentence on the ground that the motive for this occurrence was never proved by the prosecution during the trial and that at the time of occurrence appellant was minor.
' Learned counsel appearing on behalf of Muhammad Pervaiz appellant while challenging the legality of the impugned judgment submitted that appellant had been falsely implicated in this case; that the presence of the P.Ws. On the spot at the relevant time was doubtful; that the injury on the person of Muhammad Naeem was fabricated just to strengthen the prosecution case; that the Investigating Officer had planted fake recovery on the appellant to create a corroborative piece of evidence; that the motive for the commission of this offence was never proved before the trial Court. Conversely, learned counsel for the State as well as the complainant while supporting the impugned judgment, vehemently opposed these appeals.
11. After going through the record of this case minutely, with the assistance of the learned counsel for the appellants we are of the view that presence of both the eye-witnesses namely Muhammad Umar P.W.3 and Muhammad Naeem P.W.4 is beyond any shadow of doubt. The duration of fire- arm injury on the person of Muhammad Naeem tally with B the time of occurrence and his presence at the spot cannot be doubted. Both the eye-witnesses have deposed in a very natural manner. The evidence of both the witnesses rings true, inspires confidence and we are persuaded to rely upon the same to uphold the conviction of the appellants.
12. The motive for this occurrence as alleged by the prosecution was that few days prior to the occurrence a quarrel took place between deceased and the appellants over some money dispute and to wreck the vengeance the appellants made a preconcert attack on the complainant party and caused fire-arm injuries to Muhammad Ishaq and Muhammad Naeem as a result of which Muhammad Ishaq died later on. A careful examination of statement of both the eye-witnesses reveals that none of them was present when the quarrel between deceased Ishaq and the appellant which was the cause of this occurrence, took place and whatever has been said by the witnesses about the motive part of the prosecution case is nothing but hearsay evidence. In this view of the matter we find force in the arguments of learned counsel for. The appellant that the prosecution has failed to prove the motive part of its case and the immediate cause for the murder of Ishaq is shrouded in mystery. Another factor of this case which has persuaded us to take a lenient view about the quantum of sentence of Abdul Qayum appellant is the 'age of the appellant.
According to school leaving certificate i,e, Exh.D.B. Placed on record, the date of birth of Abdul Qayum is 16-6-1983 and on the day of occurrence he was about 13/14 years of age. Trial Court while recording the statement of Abdul Qayum appellant under section 342, Cr.P.C. Has also observed his age as 16 years. This statement was also recorded on 12-6-1997 i,e, almost one year after the occurrence In this view of the matter, it is very much clear that on the day of occurrence Abdul Qayum appellant was a minor and award of capital sentence to him in the circumstances of the case is not appropriate.
13. The crux of the above discussion is that both the appeals have no merits and same stand dismissed but while maintaining the conviction of Abdul Qayum appellant his sentence is reduced from death to imprisonment for life with the benefit of section 382-B, Cr.P.C.
' Death sentence of Abdul Qayum appellant is not confirmed and murder reference is answered in the negative.