' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,311 of 2001 filed by Muhammad Akram, who was convicted and sentenced by the learned Sessions Judge, Khanewal, vide his judgment, dated 21-2-2001 as under:-- ' Death with compensation of Rs,50,000 or in default thereof six months' R.I. Under section 302(b), P.P.C.
' Murder Reference No,310 of 2001 for confirmation or otherwise of death sentence of appellant shall also be answered through this single judgment.
2. Precisely, the facts of the case are that Hakim Ali, father of the deceased, accompanied by Siddique, on 4-5-1998 at 8-00 a.m., reported the matter at police station that he is barber by profession and resides in Chak No,19/8-R. On the day of occurrence i,e, 4-5-1998 at about 6-30 a.m.
He along with his son Altaf and Ishfaq was present in his house. Muhammad Akram son of Babu Caste Jaulaha, who resides in front of their house, came at their door and called his son Mushtaq who was not present in the house so his son Muhammad Altaf went out on the call of said Muhammad Akram. On hearing the altercation between his son Altaf and Akram he came out of his house, the alarm also attracted Mushtaq and Muhammad Shafi. Muhammad Akram asked his son Altaf that he will teach him lesson for restraining.Him from standing in front of his door. In their view Muhammad Akram drawn knife from folder of his Shalwar and inflicted injury on the right side of the chest of Altaf, who fell on the ground. On challenge of Mushtaq and Muhammad Shafi,accused escaped from the scene of occurrence, leaving his knife at the spot.
3. The motive behind the occurrence is that Akram was a boy of vagabond type who always used to make indecent gestures while standing outside of their door. His son Altaf had already restrained him from doing so; due to that grievance the accused had committed murder of Altaf.
4. After registration of formal F.I.R. Investigation of the case was taken over by Ghulam Raza S.- I./P.W.7. He proceeded to Civil Hospital, Tulamba, took over the dead body of the deceased, prepared injury statement Exh.P.G. And inquest report Exh.P.H. He took into possession blood- stained earth from the place of murder of Altaf deceased vide memo. Exh.P.B. On 24-5-1998 the Investigating Officer arrested Muhammad Akram-accused, who on the same day led to the recovery of blood-stained knife P.3 from his house, which was taken into possession vide memo.
Exh.P.E. After completion of investigation the accused was sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 8 witnesses in all. The learned D.A.
After tendering reports of Chemical Examiner Exh.P.K. And that of Serologist. Exh.P.L. Closed the prosecution case. The accused in his statement recorded under section 342, Cr.P.C. Has taken the plea of self-defence. After conclusion of the trial, the accused was convicted and sentenced as mentioned above.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support. Of this appeal submits that Hakim Ali and Mushtaq Ahmad P.W.2 are not only related inter se to the deceased but are interested witnesses; that it was an unwitnessed occurrence; that according to birth certificate the age of the accused at the time of occurrence was 17 years and 14 days; that the learned Sessions Judge when recorded the statement of the appellant under section 324, Cr.P.C. Did not record his age; that the impugned judgment is dated 27-2-2001 after promulgation of Juvenile Justice System Ordinance, 2000. He relies upon the cases reported in PLD 2004 SC 758 and 2002 YLR 3553. He finally submits that it is not a case of death sentence, as at the time of occurrence the appellant was juvenile.
7. The learned counsel appearing on behalf of the State by submitting that the Investigating Officer at the time of arrest has given his age as 18/19 years supports the judgment of the trial Court.
8. We have heard the learned counsel for the parties at length and scanned the entire record minutely. It has been noticed that at the time of occurrence both deceased and the appellant were minors. They were residing in front of each other. There is no background of enmity between the parties. The occurrence had been admitted by the appellant by giving reasons. The moot point in this case is whether the appellant was minor at the time of occurrence. We have gone through the Saza Slip (URDU TEXT). The age of the appellant on the date of arrest i,e, 24-5-1998 has been mentioned as 16/17 years. We are sorry to note that the full-fledged learned Sessions Judge having a District recorded the statement of the appellant under section 342, Cr.P.C. Leaving the space blank for his age and did not mention the same. We have also checked the Urdu Chitha of the judicial file; even therein he has left the space for age. The Juvenile Justice System Ordinance has come into field on 1-7-2000 while the judgment was recorded on 21-2-2001 and the benefit of the same has not been given to the appellant, who was minor at the time of occurrence. In our considered view the learned Sessions Judge, concerned, failed to perform his duty, which cast on his shoulders. It appears that he was sitting in the Chambers and in his absence the statement of the accused was being recorded by the stenographer. It is very sad state of affair. The learned counsel for the appellant has also relied upon PLD 2004 SC 758 and submits that it is the duty of the trial Court to fill entry of age of the accused so as to avoid any dispute regarding age. Though we accept the eye-witness account, medical evidence and the admission of the appellant but for two reasons it is not a case of death sentence: (i) it is a case of single injury, (ii) the appellant, according to prosecution itself (as mentioned in the judicial file), and as we have already mentioned, the age of the appellant at the time of arrest was 16/17 years. So while maintaining the c conviction of the appellant under section 302(b), P.P.C. We convert his sentence to life imprisonment with benefit of section 382-B, Cr.P.C. The amount of compensation and in default thereof will remain intact. However, in default of payment of compensation the trial Court has mentioned six months' R.I., which is not permissible under the law. So the same would be considered as six months' S.I. This appeal is dismissed, death sentence is not confirmed and the murder reference is replied in the negative.
9. Copy of this judgment be sent to the learned Sessions Judge, concerned, who was holding the trial at District Khanewal. He is directed to be careful in future.