' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,544 of 1999 filed by Hidayat Ullah. Appellant who was convicted under section 302(b), P.P.C. And sentencec to death and to pay compensation to the tune of Rs,1,50,000 in defaul R.I. For five years under section 302(b), P.P.C.
' Murder Reference No,205 of 1999 for confirmation or otherwise of death sentence shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 7 a.m. On 10-5-1998 at a distance of 9 kilometers from Police Station Sadar Mianwali while the matter was reported to the Police by Mst. Ghulam Fatima at 8-15 a.m. On the same day and formal F.I.R. Exh.P.F. Was recorded by Allah Dad, S.-I.
3. Briefly stated the facts of the case are that on 10-5-1998, Mst. Ghulam Fatima, complainant, her deceased husband Sohrab Khan and their sons Rab Nawaz and Ghulam were engaged in removing reaped wheat crop to the thrashing floor. At about 7 'a.m., Hidyat Ullah, accused emerged there while armed with a gun .12 bore and threw challenge to Sohrab and his sons. The accused fired with his gun striking Sohrab on the forehead, right shoulder and left elbow joint. On receipt of this fire shot, Sohrab fell down and the accused fled away with his gun.
' Motive alleged was that on 9-5-1998 there was a quarrel between Hidayat Ullah and Rab Nawaz upon which abuses were exchanged. Due to this insult, Hidayat Ullah committed the murder of the deceased.
4. Investigation of the case was taken over by Allah Dad, S.-I. (P.W.10). He after registration of the formal FIR., went to the place of occurrence where the dead body of the deceased was lying, prepared injury statement Exh.P.G., inquest report E:th.P.H., took into possession the blood-stained earth vide memo. Exh.P.E., also prepared rough sketch Exh.P.K. And then Muhammad Sher S.-I.
(P.W.11) on 8-6-1998 arrested the accused who on 28-6-1998 while in police custody led to the recovery of gun .12 bore P.4 which was taken into possession vide memo. Exh.P.D. After completion of the necessary investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.L., report of the Serologist Exh.P.M.
And closed the case of prosecution. After that Tariq Javed Khan and Dr. Tariq Masood Khan were examined as C.Ws. 1 and 2. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant submits that it has not been proved from the record that the deceased was tenant of the land where the occurrence had taken place which fact has further been admitted by Muhammad Zareen Shah, Patwari (P.W.2), so the presence of the complainant and her two sons at the place of occurrence is not plausible. Further submits that duration given by the doctor between the death and post-mortem was 5/7 hours, so the possibility of the occurrence having taken place at 3-30 a.m. Cannot be ruled out and the same was unwitnessed.
' Learned counsel submits that prosecution has failed to prove the motive against the appellant and that there is sufficient evidence on record that the appellant has been falsely implicated due to enmity with Faiz Muhammad. In this regard, learned counsel has drawn our attention to Exh.D.A.
And D.B. Which are F.I.R. And proceedings carried out by Assessment Officer, Khushab Division, Mianwali for closing the outlet of Faiz Muhammad Khan. Further submits that trial Court has recorded statement of the accused under section 342, Cr.P.C., thereafter recorded the statements of 2 C.Ws. And it was requirement of the law that the appellant should have been re-examined under section 342, Cr.P.C.
' It is submitted that the appellant was not adult as defined in section 299, P.P.C. According to statement of the appellant under section 342, Cr.P.C., he was 13 years of age at the time of occurrence while according to learned defence counsel, age of the appellant was 12 years at the relevant time. The appellant according to Public Prosecutor was 15/16 years of age while he was 20 years of age at the time of occurrence as submitted by learned counsel for the complainant before the trial Court. Elaborating his argument, learned counsel submits that according to Investigating Officer, the age of the appellant was 15/16 years while the eye-witness in his examination-in-chief stated before the trial Court that the appellant was 20 years of age when it was never so stated by Mst. Ghulam Fatima, the complainant in his statement under section 154, Cr.P.C. Or by the eye-witness namely Rab Nawaz (P.W.8) in his statement under section 161, Cr.P.C.
Learned counsel has drawn our attention to Exh.D.C. Which is school leaving certificate. According to this document the date of birth of the appellant is 2-3-1986, so the age of the appellant at the time of occurrence was 12/13 years. A reference has also been made by learned counsel to the statement of C.W.1 Secretary Union Council Shahbaz Khel wherein photo copy of the birth entry of the appellant was produced showing his date, of birth as 31-7-1980. According to learned counsel, if the date of birth of the appellant is taken as 31-7-1980 even then the appellant was less than 18 years at the time of occurrence. Dr. Tariq Masood Khan Niazi appeared as C.W.2. According to direction of the learned trial Court, a medical board was constituted to determine the age of the appellant. C.W.2 was Chairman of the said board. This witness stated that he was of the opinion that Hidayat Ullah was aged between 15/16 years on 8-5-1999. According to learned counsel, seen from any angle, the appellant was less than 18 years at the time of occurrence. Learned counsel submits that benefit of doubt with regard to age of the appellant should also be extended in favor of the convict.
' Concluding his submission, learned counsel submits that as far as merits of the case are concerned, since the prosecution has failed to prove the motive, so it is not a case of capital punishment.
7. On the other hand, learned counsel for the complainant submits that both the eye-witnesses are independent, they had no enmity whatsoever to depose falsely against the appellant, ocular account is fully corroborated by medical evidence and the motive, it is a case of single accused so there was no question of substitution, the age of the appellant was about 18 years at the time of occurrence but concedes that convict was not adult at the relevant time.
8. We have heard.Learned counsel for the parties at length and have gone through the record. The occurrence in the instant case had taken place at 7 a.m. On 10-5-1998. The matter was reported to the police in the Police Station within one hour and 15 minutes. The appellant is only accused in this case. He fired a shot on the person of the deceased which hit on the vital part of his body and the same proved fatal. The ocular account furnished by Mst. Ghulam Fatima and Rab Nawaz (P.Ws.7 and 8) is fully corroborated by medical evidence. The contention of learned counsel that the occurrence had taken place at 3-30 a.m. Has no legs to stand because time between the death and duration given by the doctor was 5/7 hours and the occurrence having taken place at 7 a.m.
And the post-mortem examination conducted at 11-30 a.m., the time given by the complainant and the eye-witness fits in with the prosecution story. The occurrence had taken place in the month of May, 1998, so at 7 a.m., it was broad-daylight. Both the eye-witnesses had no enmity whatsoever to depose falsely against the appellant. The reason for false implication given by the appellant in his statement under section 342, Cr.P.C. Is far fetched. The ocular account having been corroborated by medical evidence, we are fully satisfied that the trial Court was right in convicting the appellant.
' As to motive, no immediate cause of murder is known in this case. Even the trial Court in para.18 of the impugned judgment has observed: "It is true thet excepting the motive quarrel, there is no clear evidence as to what was the immediate cause for the accused, which persuaded him to fire upon the deceased."
' There is no independent evidence on record regarding quarrel having taken place one day prior to the occurrence and both the witnesses who have appeared are closely related to the deceased.
' As to age of the appellant, having seen it from all angles, that is school leaving certificate, certificate issued by the Secretary Union Council, statement of the Chairman of the Board constituted under the direction of the trial Court to determine the age of the appellant, the admission of learned counsel for the complainant that the appellant was not of 18 years at the time of occurrence, so while relying upon section 12 of the Juvenile Justice System Ordinance, 2000, we are of the view that it is not a case of capital punishment. Resultantly, holding the appellant to be less than 18 years of age at the time of occurrence, we though maintain his conviction under section 302(b), P.P.C. But reduce his sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence in default of payment of amount of compensation is also reduced from five years to six months S.-I. With this modification in the sentence of the appellant, we dispose of the appeal and reply the reference in negative. The death sentence of the convict appellant is not confirmed.