MUHAMMAD JAMIL Versus STATE

BASHIR A. MUJAHID, J. Muhammad Jamil has challenged judgment dated 29‑6‑1996 passed by learned Addition Sessions Judge, Sargodha whereby the appellant alongwith Muhammad Ashfaq Muhammad Rafiq and Muhammad Nazir was tried under sections 302/364/34, P.P.C. foe commission of murder of Babar Hussain in case F.I.R. No.235, dated 5‑9‑1994 registered with Police Station City, Sargodha and was convicted under section 302‑B, P.P.C. and sentenced to death. He was also directed to pay Rs.50,000 as compensation under section 544‑A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo 6 months' R.I. Through the same judgment co‑accused Muhammad Ashfaq was convicted under section 337‑E(ii), P.P.C. and was sentenced to 2 years' R. I. as Tazir and was ordered to pay Rs.2,000 as Daman to the legal heirs of the deceased. He was also given benefit of section 382‑B, Cr.P.C. while Muhammad Rafiq and Muhammad Nazir alias Jeera were acquitted from the charge.

2. The occurrence which resulted into murder of Babar Hussain son of Muhammad Iqbal brother of complainant Sabir Hussain P.W.7 took place at 11‑30 a.m. on 5‑9‑1994 in Block No.22, Sargodha City at a distance of 5 furlongs from the Police Station and F.I.R. No.395 of 1994 Exh.P.J. was recorded on the statement of Sabir Hussain P.W.7 on the same day at 1‑45 p.m. with Abdur Rehman, S.H.O. P.W.10, wherein it was alleged that on the day of occurrence the complainant was present in his house in Block No.25, Sargodha when Muhammad Rafiq and Muhammad Nazir accused came to his house and took away Babar Hussain deceased who was their friend. He did not return for some time on which complainant alongwith Muhammad Mushtaq P. W.8 and Muhammad Aslam went out in search of Babar Hussain. They arrived near Saif Karyana Store in Block No.22 and saw Muhammad Rafiq and Muhammad Nazir alongwith Babar Hussain present near the store. Muhammad Jamil and Muhammad Ashfaq accused .armed with daggers were also present there. Muhammad Rafiq and Muhammad Nazir accused asked Babar Hussain deceased that he will be taught lesson for abusing and having altercation with Muhammad Jamil. Muhammad Rafiq and Muhammad Nazir both caught hold of Babar Hussain while Muhammad Jamil inflicted dagger blow hitting on right side of chest of Babar Hussain who fell down when second blow with dagger was caused by Muhammad Ashfaq alias Bhani co‑accused hitting his left palm. On seeing the complainant and the witnesses the accused ran away from the place of occurrence. Babar Hussain was taken to Civil Hospital, Sargodha in injured condition but he succumbed to the injuries.

The motive for this occurrence was alleged that 2/3 days before an altercation had taken place between Babar Hussain deceased and Muhammad Jamil accused.

3. Abdur Rehman, S.H.O./P.W.10 after recording the F.I.R. arrived at Civil Hospital, Sargodha and took into possession the dead body of Babar Hussain. He prepared the injury statement Exh.P.B. and inquest report Exh.P.E. and handed over the dead body to Muhammad Nazir, F.C. for post-mortem examination. Thereafter, he arrived at the place of occurrence and took into possession blood‑stained earth vide memo. Exh.P.F. He recorded the statements of the prosecution witnesses.

4. On 26‑9‑1994 the investigation of the case was entrusted to Muhammad Sadiq Alavi P.W.9 who on 29‑9‑1994 arrested all the four accused. On 1‑10‑1994 Muhammad Jamil accused while in police custody led to the recovery of blood‑stained dagger P.4, pistol .30 bore alongwith a bullet P.6 (belonging to the deceased) vide memo. Exh.P.H. On the same day he also recovered blood‑stained dagger P.7 from the possession of Muhammad Ashfaq co‑accused vide memo. Exh.P.I. Thereafter, the investigation was entrusted to Malik Naseem‑ul‑Haq, S.P., C.I.A. and after completion of investigation, Muhammad Iqbal, S.‑I. C.W.1 submitted report under section 173, Cr.P.C.

5. The appellant/accused denied the allegation and claimed trial.

6. During the trial prosecution examined as many as 10 witnesses to prove the guilt of the accused. Muhammad Iqbal, S.‑I. who submitted report under section 173, Cr.P.C. was examined as C.W.1.

7. Medical evidence was furnished by Dr. Zulfiqar Ali Ch. P.W.5 who conducted post‑mortem examination on the dead body of Babar Hussain and found the following injuries:‑‑

(1) An incised wound 4 x 1 /2 c. m. on front of right side of chest 6 c.m. below and left to right nipple 15 c.m. below right clavical.

(2) An incised wound 1/1‑2 x 1/2 c.m. on the palmer aspect of left hand against the head of second metacarpal bone 1 c.m. distal to proximal, transfer creas.

(3) An incised wound 1‑1/2 x 1/2 c. m. spinal shape of the medial aspect of right knee joint just medial to medial border of right patelia.

8. The ocular account was furnished by Sabir Hussain P.W.7 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive of the occurrence. Muhammad Mushtaq was also eye‑witness of the occurrence. He was examined as P.W.8. He supported the prosecution case and his statement is in line with the statement of the complainant. He also identified the dead body of the deceased at the time of post-mortem examination. Muhammad Riaz P.W.6 attested the recovery memo. Exh.P.G. The remaining witnesses are of formal in nature and need not be discussed. The prosecution evidence was closed by tendering in evidence report of Chemical Examiners Exhs. P. L. P.M. and that of Serologist Exhs.P.N. and P.O.

9. Statement of the accused appellant was recorded under section 342, Cr.P.C. He denied the charge and claimed innocence and false implication. He also examined Naseer Ahmad D. W.1, in his defence to prove that the pistol taken into possession by the Investigating Officer from the place of occurrence was a licensed one in the name of Babar Hussain deceased.

10. The trial culminated into conviction of the appellant and Muhammad Ashfaq co accused as mentioned above. Hence the instant appeal.

11. Muhammad Ashfaq has not challenged his conviction. The complainant has filed Criminal Revision No.443 of 1996 against acquittal of Muhammad Rafiq and Nazir and Muhammad Ashfaq under section 302, P.P.C. and the trial Court has sent up Murder Reference No.3 of 1997 for confirmation of death sentence of Muhammad Jamil. All these matters are being decided by this judgment.

12. Learned counsel for the appellant at the very outset argued that he will not challenge the conviction recorded against Muhammad Jamil appellant but prays for reduction in sentence on the ground that the appellant was minor at the time of occurrence; that the alleged motive has not been proved during the trial; that the same evidence has been disbelieved qua the co‑accused, therefore, it was not proper to award capital punishment to the appellant; that the plea of accused was very reasonable as deceased arrived at the place of occurrence armed with licensed pistol and was aggressor as the said pistol belonging to the deceased was recovered from the appellant.

13. Conversely the appeal has been opposed by the learned State Counsel who supported the impugned judgment. None appeared to pursue the criminal revision.

14. Heard. Record perused,

15. It was a broad daylight occurrence which took place at 11‑30 a.m. and F.I.R. was lodged at Police Station at 1‑45 p.m. which was at a distance of five furlongs from the place of occurrence, therefore, the appellant was nominated accused in promptly recorded. F.I.R. Mere relationship of the prosecution witness inter se or with the deceased is not a ground to discard their testimony as they had no previous enmity against the appellant for his false implication or substitution by letting off the real culprits. The ocular account furnished by P. W.7 and P. W.8 has been fully corroborated by the medical evidence and recovery of blood‑stained dagger from the accused/appellant.

16. After deep reappraisal of evidence we are convinced that the prosecution has successfully established its case against the appellant and we do not find any reason to interfere in the conviction recorded against him.

17. As far as sentence is concerned, we consider that the learned counsel for the appellant is justified by not challenging the conviction and requesting for reduction of sentence. As per prosecution case the appellant was aged 16/17 years at the time of commission of crime. The appellant has given his age as 16/17 years in the statement recorded under section 342, Cr.P.C. on 30‑7‑1996, and the occurrence took place on 5‑9‑1994 which leads us to believe that the appellant was less than 18 years of age at the time of commission of offence. Co‑accused have been acquitted by the trial Court by disbelieving the same evidence. The appellant inflicted only one injury to the deceased and not repeated the same although he was at the mercy of the accused, that the pistol P.5 belonging to the deceased was also got recovered by the appellant which shows that the deceased might have come at the spot while armed with pistol and the prosecution story as narrated by the complainant is not gospel truth. The alleged motive has also not been proved during the trial. Therefore, keeping all the circumstances of the case in view, we consider that it is not a case of capital punishment and the same is reduced to life imprisonment which will meet the ends of justice. However, punishment of compensation is maintained. The benefit of section 382‑B, Cr.P.C. will also be available to the appellant. This appeal is dismissed with the above modification. The death sentence awarded to the appellant is not confirmed.

The Murder Reference is answered in the negative.

Criminal Revision filed by the complainant is also dismissed.

H.B.T./M‑830/L Appeal dismissed.