' MUHAMMAD NAWAZ ABBASI, J.---This criminal appeal by leave of the Court has been directed against the judgment dated 19-11-2001 passed by the Lahore High Court, whereby criminal appeal filed by Israr Bashir, respondent herein, against the conviction and sentence of death awarded to him by learned Sessions Judge, Sheikhupura, under section 302(b), P.P.C. With direction to pay Rs,20,000 as compensation to the legal heirs of Sohail Ahsan, deceased, under section 544-A, Cr.P.C. Vide judgment dated 22-3-1997 was disposed of with conversion of the sentence of death into rigorous imprisonment for 14 years with direction to pay diyat to the legal heirs of the deceased under section 308, P.P.C.
2. The appellant being dissatisfied with the judgment of High Court has filed this appeal before this Court, in which leave was granted vide order dated 8-3-2002 as under:-- "Respondent Israt Bashir was tried by Sessions Judge, Sheikhupura for having committed the murder of Sohail Ahsan and vide judgment dated 22-3-1997 was convicted and sentenced to death. While hearing the appeal of the respondent the learned Judges of the High Court determined the question of adulthood of the respondent and held that at the time of the commission of offence, he was a minor and therefore, the extreme penalty of death was withheld.
Learned counsel for the petitioner-complainant has seriously disputed this aspect of the case and contends that learned Judges of the High Court have fallen into grave error while relying on the assertion of the respondent in his statement under section 342, Criminal Procedure coupled with "Saza slip" prepared by the Investigating Officer to determine the age of the respondent. Relying on 1995 SCM R 1668 and 1993 SCMR 219, learned counsel argued that provisions of section 308 read with section 299 Pakistan Penal Code have been misconstrued by learned Judge to reduce the sentence of death to 14 years R.I.
After hearing the learned counsel for the petitioner and considering the case from all angles, we are of the view that the points raised need consideration and to determine the limited question as to the quantum of sentence in this case, we are inclined to grant leave to appeal. . Let liable warrants in the sum of Rs,1,00,000 with one surety in the like amount returnable to the District and Sessions Judge, Sheikhupura be issued against respondent Israr Bashir."
3. In consequence to a quarrel taken place between the appellant and deceased while playing badminton in the evening of 16-8-1995 in the playground of Government High School, Kot Nazim Din, situated within the area of Police Station, Sialkot, the respondent Israr Bashir being annoyed on the fateful day, by way of firing with .30 bore pistol at Sohail Ahsan (deceased), caused him injuries on various parts of his body which proved fatal to his life. Learned trial Judge in the light of evidence produced by the prosecution, having found the respondent guilty of the charge of murder, convicted and sentenced him to death under section 302(b), P.P.C. Whereas the High Court in appeal filed by him, converted the sentence of death awarded to him under section 302(b), P.P.C. As Tazir into the payment of Diyat with rigorous imprisonment for 14 years under section 308, P.P.C. On the ground that the respondent at the time of occurrence, being minor, was not liable to the punishment of Qisas. In support thereof, the reliance was placed on Sarfraz v. - State 2000 SCM R 1758 wherein it was held that a minor offender of Qatl-i-Amd is not liable to the punishment of Qisas under section 302(a), P.P.C.
4. The learned counsel for the appellant having challenged the correctness of the finding of the High Court regarding the age of the respondent has contended that there was no cogent and convincing evidence available on the record in proof of the fact that at the time of occurrence, respondent was below the age of 18 years and vehemently argued that in a case of Qatl-i-Amd in which the punishment of death is awarded as Tazir under section 302(b). P.P.C. Section 308, P.P.C. Is not attracted. The learned counsel submitted that the statement under section 342, Cr.P.C. Or saza-slip prepared by the police is not a legal evidence to prove the age and in absence of any documentary evidence in the form of birth certificate or school leaving certificate, the assertion of the respondent that he was below the age of 18 years at the time of occurrence, was without any substance. Learned counsel argued that the plea of minority raised by the respondent for the first time before the High Court in appeal on the basis of saza-slip and his own statement under section 342, Cr.P.C. In absence of any other evidence, was .Without any foundation, therefore, the finding of the High Court in this behalf would be of no significance and even otherwise, the minority factor of the offender in the present case at the most, would be relevant to determine the question relating to the quantum of sentence under section 302(b), P.P.C. And would not bring the case within the ambit of section 308, P.P.C. For the purpose of punishment.
5. Learned counsel for the respondent on the other hand, in the light of observation made by the learned Judges in the High Court, submitted that in the police record the age of respondent was shown as 17 years whereas the trial Court has recorded his age as 18 years in his statement under section 342, Cr.P.C. Therefore, notwithstanding the failure of respondent to bring on record any other evidence oral or documentary, the prosecution having noted the age of respondent below 18 years at the time of occurrence, has conceded his plea of minority, therefore, the High Court has rightly given him the benefit of section 308, P.P.C.
6. The sole question for determination in the present appeal, relates to the scope of section 308, P.P.C. And for better appreciation of the proposition, we deem it proper to examine the relevant provisions in Chapter XVI of P.P.C., along with the definition of "Adult", "Qatl-e- Amd", "Qisas" and "Tazir" to ascertain correct legal position regarding the application of sections 306 and 307, P.P.C. In respect of the punishment of Qisas and Tazir for Qatl-i-Amd under section 302, P.P.C.
"299 (a) "Adult" means a person who has attained the age of eighteen years;
(k) "Qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-i-amd in exercise of the right of the victim or a Wali.
(1) "Tazir" means punishment other than qisas diyat, arsh or daman."
Qatl-i-Amd has been defined in section 300, P.P.C. As under:-- "300 Qatl-i-Amd.--whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd."
' The punishment of Qatl-i-Amd liable to qisas is provided in section 302(a), P.P.C. Whereas Tazir under section 302(b) and (c), P.P.C. As under:-- "302. Punishment of Qatl-i-Amd.--whoever commits Qatl-i-Amd shall subject to the provisions of this chapter, be---
(a) Punished with death as qisas;
(b) Punished with death or imprisonment for life as tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) Punished with imprisonment of either description for a term which may extend to twenty five years, where according to the Injunctions of Islam the punishment of qisas is not applicable."
7. In sections 306 and 307, P.P.C. Certain exceptions have been created to deal with the cases in which Qatl-i--Aind is not liable to qisas or the punishment of qisas is not enforceable. In the cases falling within the purview of sections 306 and 307, P.P.C., the offender is liable to the punishment of diyat under section 308, P.P.C. And having regard to the facts and circumstances of the case, the Court may in addition to the punishment of diyat, also punish him with imprisonment of either description which may extend to 14 years as tazir. Sections 306 to 308, P.P.C. Provide as under:-- "306. Qatl-i-Amd not liable to qisas.--Qatl-i-Amd shall not be liable to qisas in the following cases, namely:--
(a) When an offender is a minor or insane: Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas;
(b) when an offender causes death of his child or grandchild, how lows over; and
(c) when any wali of the victim is a direct desendant, how lows over, of the offender.
307. Cases in which qisas for Qatl-i-Amd shall not be enforced.-qisas for Qatl-i-Amd shall not be enforced in the following cases, namely:--
(a) when the offender dies before the enforcement of qisas;
(b) when any wali voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under section 309 or compounds under section 310; and
(c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender.
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 or the qisas is not enforceable under clauses (c) 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 Qatl-i-Amd the offender being minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir: ' Provided further that, where the qisas is not enforceable under clause (c) of section 307, the offender shall be liable to diyat 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 years as tazir.
(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as tazir."
' Section 338-F, P.P.C. Provides that in the matter df interpretation and application of provisions of The Chapter XVI, P.P.C.. Of the offences relating to the human body and qisas and diyat, the Court shall be guided by the Injunctions of Islam as laid down in the holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.).
8. The punishment for Qatl-i-Amd as qisas in the command of Holy. Qur'an is prescribed in section 302(a), P.P.C. Whereas the sentence of death as tazir is provided under section 302(b) and combined study of the provisions of law referred above, would clearly show that section 308, P.P.C.
Has limited scope to the extent of cases falling within the ambit of section 306, P.P.C. And 307, P.P.C.
In which either an offender of Qatli-Amd is not liable to qisas or the punishment of qisas is not enforceable under law. The punishment of qisas is different to the punishment of tazir and the two kinds of punishments cannot be mixed together for the pUrpose of sections 306 and 307, P.P.C. To attract the provisions of section 308, P.P.C. The punishment of death for Qatl-i-Amd liable to qisas as provided under section 302(a), P.P.C. Can only be awarded if the evidence in terms of section 304, P.P.C. Is available and in a case of Qatl-i-Amd in which such evidence is not available, the Court may, having regard to the facts and circumstances of the case, convict an offender of Qatl- i-Amd under section 302(b), P.P.C. And award him the sentence of death as tazir. In a case of Qatl- i-Amd in which the offender is liable to qisas but by virtue of prohibition contained in section 306, P.P.C. He cannot be awarded punishment of death under section 302(a), P.P.C. As qisas or the punishment of qisas is not enforceable under section 307(c), P.P.C. He shall be liable to the punishment of diyat under section 308, P.P.C. And may also be awarded the punishment of imprisonment as provided therein but in a case in which the offender is awarded punishment under section 302(b), P.P.C. As tazir, the provision of section 308, P.P.C. Cannot be pressed into service for the purpose of punishment. Section 304, P.P.C. Provides as under:-- "304. Proof of Qatl-i-Amd liable to qisas, etc.--(1) Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-- Shahadat, 1984 (P.O. No,10 of 1984).
2. The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas."
9. The ambiguity regarding the application of section 308, P.P.C. In all cases of Qatl-i-Amd in which the offender cannot be awarded the punishment under section 302(a), P.P.C. Is removed in the light of above discussion as careful examination of the different provisions of law referred hereinbefore, would clearly show that in the cases in which the offender is not liable to qisas for the reasons given in section 306, P.P.C. Or the punishment of qisas cannot be enforced under section 307(c), P.P.C. Section 308, P.P.C. Is attracted but in the cases in which the punishment of death is awarded under section 302(b), P.P.C. As tazir this section is not applicable. The right of qisas means the right of causing similar heart on the same part of body and in case of death, the offender will be done to death in the manner he committed death of his fellow person and thus the punishment of death as qisas provided under section 302(a), P.P.C. Cannot be awarded unless the evidence in terms of section 304, P.P.C. Is available and in a case of Qatl-i-Amd in which the punishment of qisas cannot be awarded, the Court may on proving charge against the offender, having regard to the facts and circumstances of the case, award him the punishment of death or life imprisonment as tazir under section 302(b), P.P.C. In view of the above distinction, a minor offender of Qatl-i-Amd may in case of punishment of tazir, avail the benefit of minority in the matter of sentence under section 302(b), P.P.C. But cannot claim the benefit of section 308, P.P.C.
10. This Court in Sarfraz v. State, referred hereinbefore, has held that a minor accused who has committed an offence of Qatl-i-Amd under influence of others cannot be awarded sentence of death as qisas under section 302(a), P.P.C. This is settled law that provisions of sections 306 to 308, P.P.C. Attract only in the cases of Qatl-i-Amd liable to qisas under section 302(a), P.P.C. And not in the cases in which sentence for Qatl-i-Amd has been awarded as tazir under section 302(b),P.P.C.
The difference of punishment for Qatl-i-Amd as qisas and tazir provided under sections 302(a) and 302(b), P.P.C. Respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under section 302(b), P.P.C. And exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-Amd, keeping in view the circumstances of the case, may award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCM R 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCM R 2203, Muhammad Akram v. State 2003 SCM R 855 and Abdus Salam v. State 2000 SCM R 338.
11. The careful examination of the provisions referred above, would clearly show that section 308, P.P.C. Is attracted only in the cases liable to qisas in which by virtue of the provisions of sections 306 and 307, P.P.C., the punishment of qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as tazir. In the light of law laid down by this Court in the judgments referred above, we are of the considered view that in the facts of the present case, section 308, P.P.C. Is not attracted for the reasons firstly that respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and secondly, in absence of the evidence in terms of section 304, P.P.C. To bring the case within the ambit of section 302(a), P.P.C. For the purpose of punishment of qisas, the respondent was awarded sentence of death by the trial Court under section 302(b), P.P.C. As tazir. There is misconception of law that the provision of section 308, P.P.C. Is also applicable in the cases in which punishment of death is awarded as tazir whereas the correct legal position is that this special provision is in sociable only in the cases in which either offender is not liable to qisas or qisas is not enforceable. This is against the spirit of law that in all cases of Qat-i-Amd in which sentence of death is awarded either as qisas under section 302(a) or as tazir under section 302(b), P.P.C., an offender who at the time of committing the offence, was less than 18 years of age shall be liable to the punishment provided under section 308, P.P.C. Rather the true concept is that section 308, P.P.C. Will operate only in the cases which fall within the ambit of sections 306 and 307, P.P.C. In which either offender is not liable to qisas or Qasis is not enforceable.
12. In the light of foregoing reasons, we while maintaining the conviction of respondent awarded to him by the learned trial Judge under section 302(b), P.P.C. And setting aside the judgment of the High Court award him sentence of life imprisonment under section 302(b), P.P.C. And also grant him the benefit of section 382-B, Cr.P.C. Learned counsel for the respondent has informed us that amount of diyat has already been deposited whereas learned counsel for the appellant states that this amount has not been withdrawn by the appellant. Be that as it may, with the deduction of amount of compensation of Rs,20,000, the amount of diyat deposited by the respondent will be refunded to him. With the above modification in the judgment of High Court and sentence awarded to the respondent, we partly allow this appeal. The respondent who is on bail, shall be taken into custody and shall be sent to jail to serve out remaining sentence.
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