The above titled appeals have been directed against the order of District Court of Criminal Jurisdiction, Mirpur dated 30.5.2005, whereby Wahid Mehmood appellant was convicted and sentenced to Diyat along-with 14 years rigorous imprisonment under Section 308, A.P.C. and one year rigorous imprisonment under Section 13/20/65, A.A while Zulfiqar, Iftikhar, Zahid Imran Shahid Imran and Sardar Khan were acquitted of the charge.
2. Brief facts leading to the background of the appeals are that a case under Sections 324/337/34, A.P.C. was registered against the appellant and others at Police Station, Mirpur on the complaint of Ghulam Ghos. It was reported that on 23.6.1997 at about 8.15 p.m., the complainant, his father and other family members were present in the courtyard of their house. In the meantime the complainant's cousin Wahid Mehmood S/O Sardar Khan R/O Siray-Alamgir entered and asked them to switch off the light. The complainant's father stood up and asked him why? Upon this Wahid Mehmood fired with .12 bore carbine which hit him at his right shoulder and he fell down.
Wahid Mehmood ran away but he was caught by the complainant. The occurrence was stated to be witnessed by Sardar Bibi, Fareed, Asmat, Alia Bibi and the complainant. The accused told the complainant that Arshid Khan S/O Siddique was also with him who was standing out side of the door. The alleged motive behind the occurrence was a dispute over a piece of land between the deceased and the accused and others.
3. During investigation Maqbool Hussain succumbed to the injury and Section 302/A.P.C. was added. After completion of the investigation a challan under Sections 302/324/34/114, A.P.C. and 13/20/65, A.A. was submitted against the accused persons before the trial Court.
4. After completion of the trial, the Court convicted the appellant through the impugned order.
Hence the above titled appeals.
5. The learned counsel for the appellant argued that the appellant has been involved in a false case on account of enmity. The occurrence took place during dark hour of the night and the identification of the accused was doubtful. The prosecution witnesses were closely related to the deceased and where inimical towards the accused and his family members, therefore, their deposition was not worth consideration. The recovery of weapon of offence was also highly doubtful as it was made from a deserted place. No independent material in support of the ocular version was brought on record and there was no lawful justification to convict the appellant. The learned counsel further argued that accused appellant was below the age of 14 years at the time the offence was committed. Neither he was previous convict nor a hardened or desperate criminal, therefore, the maximum punishment provided under Section 308, A.P.C. was not warranted in the case. The learned counsel submitted that prosecution story being highly doubtful and unbelievable was not worth relying, therefore, by accepting the appeal the appellant may be acquitted of the charge.
6. On the other hand, the learned counsel for the complainant argued that prosecution has proved its case against the appellant beyond any doubt. The occurrence took place in the house of complainant. The presence of the witnesses at the place of occurrence was natural. The appellant was caught red handed while running away after commission of the offence. Weapon of offence was recovered at his instance on the same day. The alleged motive was also proved by the prosecution. The learned counsel further argued that Wahid Mehmood appellant was above the age of 14 years and was not a minor at the time of commission of offence. He has committed the offence on account of enmity. According to the learned counsel the trial Court fell into error while convicting the appellant under Section 308, A.P.C, therefore, by accepting the appeal he may be convicted under Section 302, A.P.C. and be awarded death sentence.
7. The learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
8. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
9. I have heard the learned counsel for the parties and gone through the record of the case.
10.The prosecution story as it appears from the record is that on 23.6.1997 at about 8.15, p.m the complainant, his father Maqbool Hussain, mother Sardar Bibi, brother Fareed and sister Alia were present in the courtyard of their house. In the meantime Wahid Mehmood came there and asked them to switch off the light. Maqbool Hussain stood up and asked him why? Upon this Wahid Mehmood fired with .12 bore carbine which hit him at his right shoulder and he fell down. Wahid Mehmood tried to run away but the complainant followed and caught him. Later on he was handed over to the .Police. Aslam, Aurang,zeb and Abdur Rashid were taking Maqbool Hussain to hospital but he succumbed to the injury in the way. It further appears that the accused appellant threw away the gun while running away from the place of occurrence and it was recovered at his instance vide recovery memo Exh. PD with an empty present in it The crime empty along with the weapon of offence was sent to Forensic Science Laboratory. The report of Forensic Science expert Exh. PML shows that it was fired from the short pistol of 12-bore recovered at the instance of accused appellant.
11. A perusal of the record shows that prosecution failed to prove the alleged motive, however, rest of the story was proved beyond any doubt.. FIR Exh. PL was lodged without any delay. The name of the accused, deceased and the prosecution witnesses were specially mentioned. During trial the allegation was proved through evidence, Despite lengthy cross-examination the defence failed to obtain anything in favour of the appellant and the witnesses gave a truthful version of the occurrence.
12. In light of the evidence on record it stands proved that on 23.6.1997 at 8.15, p.m. Wahid Mehmood appellant entered into the house of the complainant. He fired at Maqbool Hussain with 12 bore short pistol and killed him.
13. The only question Which needs consideration in the quantum of sentence. In my view the trial Court has rightly observed that the accused being a minor cannot be convicted under section 302, A.P.C. and his case A falls under Section 306; A.P.C. which provides that "Qatl-i-amd" shall not be liable to Visas' when the guilty is a minor. Resultantly he was convicted under Section 308, A.P.C.
The provisions of law are usefully reproduced:-- 308: Punishment in Qatl-i-amd not liable to Qisas', etc. (1) where an offender guilty of Qatl-i-amd is not liable to Qisas' under Section 306, A.P.C. of the Visas' is not enforceable under clause (e) of Section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or by such person as may be determined by the Court; Provided further that where at the time of committing of Qatl-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise the consequences of his act, he may also be punished with imprisonment of either description for a term which extend to fourteen years as' Ta'zir: Ta'zir: Provided further that where the 'Qisas' is not enforceable under clause (c) of Section 307 the offender shall be liable to diayat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen year as Ta'zir.
(2) Notwithstanding anything contained in sub-section (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of diayat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as; 14.Thus, it becomes clear that under this section an accused guilty of Qatl-i-amd, shall be punished with Diyat and can also be awarded imprisonment which may extend to 14 years.
15.In the present case, the appellant was a minor at the time of commission of offence and there was nothing on record to indicate that he attained sufficient maturity to realise the consequences of his act thus, there was no lawful justification to award him maximum punishment provided under Section 308, A.P.C., Therefore, I, am of the view that the judgment and order passed by District Court of Criminal Jurisdiction, Mirpur whereby sentence of 14 years rigorous imprisonment alongwith Diyat was awarded to the appellant shall remain maintained to the extent of Diyat, however, the under gone sentence shall meet the ends of justice, therefore, the order is passed accordingly. He shall be released from custody on payment of `Diyat' as determined by the trial Court. The appeal filed by the appellant is accepted in the aforesaid manner while the appeal filed by the complainant is dismissed.