' MUHAMMAD FARRUKH MAHMUD, J.--- Vide judgment, dated 15-1-1997 rendered by Muhammad Aslam Khan, Additional Sessions Judge, Khanpur, Mujahid Hussain son of Allah Bakhshappellant was, convicted under section 302(b), P.P.C. For causing murders of Mst. Hajiran Bibi and Mst.
Shahzadi and was sentenced to life imprisonment. A fine of Rs,25,000 was also imposed upon the appellant, which, if recovered, was to be paid to the legal heirs of the deceased as compensation, in default of payment of fine, the appellant was to undergo further rigorous imprisonment for six months.
2. Feeling aggrieved, Mujahid Hussain-appellant challenged his conviction and sentence by filing the - instant appeal, while Khadim Hussain-complainant filed Criminal Revision No,13 of 1997 seeking enhancement of sentence awarded to Mujahid Hussain-appellant. As both the matters arise out of the same occurrence, we propose to dispose of the same through this single judgment.
3. F.I.R. No,259 of 1994 was registered at Police Station City Khanpur; on 18-7-1994 for offence under section 302, P.P.C. On the statement of Khadim Hussain, brother of deceased Mst. Hajiran Bibi, who appeared as P.W.3. The F.I.R. Was recorded by Munir Afzal, S.-I./ S.H.O., who appeared as P.W.11.
4. The relevant facts, as given in the F.I.R., are that Mst."Hajiran Bibi deceased wife of Fayyaz Ahmed and sister of complainant lived with her husband and daughters Mst. Munnaza alias Munni aged 14/15 years Mst. Shahzadi aged 8 years and Mst. Zahran aged 4/5 years, in Mohallah Saddiwal. On 17-7-1994 Fayyaz Ahmad received information at 6-00 p.m. That his brother had committed theft, therefore, he left for Tranda Muhammad Panah and on the night of occurrence only Mst. Hajiran Bibi and her daughters Mst. Shahzadi and Mst. Zahran were present in the house, as elder daughters Mst. Munnaza has gone to visit her grandmother Mst. Aisha, who lived at Tranda Muhammad Panah. On 18-7-1994 at 8-00 a.m. The complainant was informed by Mushtaq Ahmad P.W.8 that his sister Mst. Hajiran and her minor daughter Mst. Shahzadi were lying dead in their house. The complainant reached the house of her sister alongwith Abdul Qadir; Tariq Mahmood and Khalid Mahmood P.Ws., when he entered the house, he saw that the dead body of Mst.
Shahzadi was lying in the Veranda of the house, while the dead body of Mst. Hajiran Bibi was lying on the cot. He also noticed injuries on the throat of Mst. Hajiran and on the neck and arms of Mst.
Shahzadi. Thereafter he reported the matter to the police.
5. After completion of investigation, the appellant was sent up to face trial. The learned trial Court framed the charges for offences under sections 302/394/411, P.P.C. The appellant denied the charges and the trial commenced.
6. During trial, the prosecution produced 11 P.Ws. In support of its case. Dr. Jam Jamil Akhtar, appeared as P.W.1 and according to his observations there were three injuries on the dead body of Mst. Hajiran, who was aged about 45 years. The injuries were around the neck and on both the arms. According to this P.W. Mst. Hajiran died due to asphyxia, coma and shock. The asphyxia was caused by throttling and suffocation. This P.W. Also conducted the post-mortem on the dead body of Mst. Shahzadi, who was aged about 7/8 years at the time of occurrence. He noticed four injuries on the dead body of Mst. Shahzadi. Injuries Nos.1 and 2 were around the neck while injuries Nos.3 and 4 were on waist back and chest. He opined that the deceased lost her life due to asphyxia and rupture of liver, which was the result of throttling, suffocation and pressure on the chest. Khadim Hussain complainant P.W.3 and Mushtaq Ahmed P.W.8 stated in accordance with the story given in the F.I.R. However, Mushtaq. Ahmad also stated about the recoveries of ornaments belonging to Mst. Hajiran, towel and purse, which were recovered from the house of the appellant. Muhammad Iqbal P.W.4 stated that he had seen the appellant on the night of occurrence near the house of Fayyaz Ahmad (husband and father of the deceased). P.W.5 Haji Ata Ullah stated about the confession made by the appellant before him. Fayyaz Ahmad, husband of Mst. Hajiran deceased, appeared as P.W.6 and stated Mujahid Hussain was his apprentice for the last 8/9 years and while he was going to Tranda Muhammad Panah, he had directed Mujahid Hussain to sleep at his house.
This witness also stated the appellant had confessed his guilt before him and sought pardon in the presence of Haji Atta Ullah P.W.5 who had brought him. Abdul Qadir P.W.7 stated about the recoveries effected from the place of occurrence and according to this P.W. Broken bangles P.6 and Identity Card P.5 (photocopy) of the appellant were taken into possession by the Police Officer vide recovery memo. Exh.P.E. He also stated about the confession of the accused made in his presence. P.W.11 S.-I./S.H.O. Stated about the registration of case, recoveries and investigation.
7. After the closure of prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. Wherein he denied the charges and stated that he had attended the funeral of the deceased and according to him it was Fayyaz Ahmad P.W. Who murdered his wife and daughter, as he had strained relations with his deceased wife, as there was no male issue. However, the appellant did not lead any defence.
8. The learned counsel for the appellant, at the very outset, has submitted that he would not press this appeal on merits and would pray that the benefit of section 382-B, Cr.P.C. May be given to the appellant.
9. The learned counsel for the State has candidly conceded to the prayer of the learned counsel for the appellant.
10. The learned counsel for the complainant in support of his revision has argued that the appellant had taken two lives, therefore, normal penalty of death should have been imposed upon him; and that no mitigating circumstance is available so as to justify the lesser punishment of imprisonment for life.
11. We have heard the learned counsel for the parties at length and gone through the entire record of the case minutely. The learned trial Court has rightly convicted the appellant on the basis of evidence of extra-judicial confession and recovery of photocopy of the Identity Card of the appellant on the very first day from the place of occurrence. As far as the conviction and sentence of the appellant is concerned, we have noticed that admittedly it is not the case of direct evidence, that the statement of the accused was recorded under section 342, Cr.P.C. On 2-1-1997 and in that statement he has given his age as 18 years, A which was not challenged at all. The occurrence took place on the night in between 17/18-7-1994, in other words the appellant was less than 16 years on the date of occurrence and was a juvenile. According to Juvenile Justice System Ordinance, 2000, capital punishment cannot be imposed on the juvenile. The appeal being continuation of trial, we are of the opinion that the benefit of provisions of the afore-referred Ordinance should be extended to the appellant. In these circumstances, we do not find any occasion to enhance the sentence of the appellant. Resultantly, criminal revision filed by Khadim Hussain complainant (Criminal Revision No,13 of 1997) is dismissed. The provisions of section 382-B, Cr.P.C. Are mandatory, therefore, we extend the benefit of section 382-B, Cr.P.C. To the appellant on each count.
12. We have also noticed that the learned trial Court inadvertently while passing the sentence failed to mention the words "on two counts". The words "on two counts" would be deemed to be integral part of the judgment.
13. The upshot of the whole discussion is that we dismiss the appeal and maintain the conviction of the appellant under section 302(b), P.P.C. For causing murders of Mst. Hajiran Bibi and Mst.
Shahzadi and the sentence of life imprisonment imposed upon the appellant on two counts is also maintained. However, both the sentences would run concurrently. No fine could be imposed upon the appellant under section 302(b), P.P.C., therefore, the sentence of fine is set aside. However, the appellant is directed to pay compensation of Rs,10,000 on each count under section 544-A, Cr.P.C.
In case of realization of the amount of compensation, the same would be paid to the legal heirs of the deceased. In default of payment of compensation, the appellant would suffer S.I. For three months on each count.
Appealssed.