1. ' DR. RANA MUHAMMAD SHAMIM, J.-This judgment will disposed of, (i) Criminal Jail Appeal No.124 of 2004 challenging the impugned jgdgment, dated 30-11-2004 passed by the 2nd Additional Sessions Judge Khairpur in Sessions Case No.202 of 1996 in Crime No.23 of 1996 Police Station Sorah registered for an offence under section 302, P.P.C.; whereby on proving guilt the appellant was convicted and awarded death penalty, (ii) The Confirmation Case No.11 of 2004 sent by the learned trial Court for the confirmation of death sentence awarded to appellant, and (iii) Criminal Jail Appeal No.125 of 2004 challenged the sentence awarded to him in Sessions Case No.259 of 1996 registered against him vide F.I.R. No. 26 of 1996 at Police Station Sorah under section 13-E of the Arms Ordinance whereby he was sentenced R.I. For three years and to pay fine of Rs. 5000 or in default he has to further undergo S.I. Six months more. Both the appeals and Confirmation Reference would be disposed of by a single judgment.
2. ' Brief facts of the prosecutions case as narrated in the F.I.R. Are that on 23-9-1996 at 1910 hours, complainant Rab Dino lodged the F.I.R. Against accused Atta Hussain. The complainant stated in the F.I.R. That Qadir Bux Daidano was his hari and also related to him. On 13-9-1996, the complainant and his hari Atta Hussain, his brother Rab Dino, Shahbaz Dino and his related Saeed Khan were sitting in the otaq of complainant. Accused Atta Hussain and brother of complainant Shahbaz Dino exchanged hot words over the money matter. Accused Atta Hussain was annoyed very much and he left the otaq of the complainant. The complainant, and his brother Shahbaz Dino went to the house of Abdul Raliim who is the maternal cousin of the complainant. It was about 6- 00 p.m. When accused Atta Hussain came there duly armed with gun and fired upon Shahbaz Dino from the window of house of Abdul Rahim. Accused Atta Hussain made his escape good from the place of wardat, whereas, on the gun-shot reports P.W. Saeed Khan and others came and they saw accused Atta Hussain running after firing upon Shahbaz Dino who died on the spot.
3. ' Thereafter the complainant went to police station and lodged the F.I.R.
4. ' The motive behind the offence was that on 23-9-1996 at about 5-00 p.m. The appellant went in the otaq of complainant Rab Dino and Shahbaz Dino hot words were exchanged on the dispute of payment of money with the appellant by the complainant and his brother Shahbaz. Dino (deceased). Further the deceased Shahbaz Dino used abusive language against the, appellant hurriedly left for his house adjacent to the house of the complainant and the house of Abdul Raheem. The complainant and Shahbaz Dino (deceased) went to the house of their maternal cousin Abdul Raheem adjacent to the house of appellant Atta Hussain. Both the brothers were sitting on cot in the otaq of the house of in Abdul Raheem. On' the back of said otaq there was window in street where appellant duly armed with gun suddenly appeared gave lalkara and from window directly fired upon Shahbaz Dino who died at the spot. The appellant made his escape good, who was subsequently arrested on 240-1996 after 9 days of the incident. After registration of the formal F.I.R. The investigation of the case was conducted and after completion of the investigation the challan was submitted in the competent Court of law and the accused was sent up to face trial.
5. ' At the trial, the prosecution in order to prove its case produced six witnesses in all. The prosecution after examination of all witnesses and in tendering evidence submitted inquest report, postmortem report and chemical examiner report and closed its side. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appeaf on oath as witness under section 340(2), Cr.P.C. After conclusion of trial the learned trial Court held that the ocular evidence has been corroborated by medical evidence. The evidence so produced by the prosecution indicates that the involvement of the accused in the murder of the deceased Shahbaz Dino remained unshaken. The eye-witnesses have fully supported the prosecution case and their evidence was remained consistent with the version of the complainant. The crime weapons have been recovered on the pointation of the appellant while chemical and ballistic reports were also positive. The prosecution has produced sufficient, strong, cogent and unambiguous evidence inspiring confidence regarding the involvement of appellant in the murder of deceased Shahbaz Dino. To prove the motive, the prosecution brought the guilt of the appellant at home successfully.
6. The appellant was responsible for murder of deceased Shahbaz Dino. The prosecution successfully proved its case beyond doubts. All the eye-witnesses have corroborated each other on all material particulars of the case and the medical evidence has fully supported the ocular version which was inter alia consistent and coherent.
7. ' The learned counsel for the petitioner submits that since the appellant was unable to engage a lawyer, the learned trial Court has provided advocate on government expenses which has not properly conducted the case. He further submits that at the time of commission of the offence by the appellant he was hardly 15 to 16 years old and he being of tender age had not been pointed out to the learned trial Court. The appellant was juvenile at the time of commission of offence. He would not have been awarded death penalty under Juvenile Justice, System Ordinance, 2000.
8. Since the jail appeal was filed by the appellant himself subsequently the learned advocate voluntarily appeared who provided legal assistance to the juvenile and to assist this Court properly. During the pendency of appeal on his application the appellant was referred to the Chandka Medical College Larkana with the request to constitute a Board for ossification test to determine the age of the appellant. The Board was accordingly constituted on 14-11-2007 and Special Medical Board was convened with the following members:-- Prof. Sikandar Ali Shaik-Chairman Dr. Moula Bux Senior Dental Surgeon-Member Dr. Jugdesh Kumar Asstt: Prof of Orthopaedics-Member Prof. Abdul Haleem Shaikh Prof. Of Radiology-Member Dr. Ghulam Qadir Kheri Associate of Forensic Medicine- Member Secretary/Convener Dr. Aijaz Ahmed Shaikh-Member ' After examination unanimous opinion of the Board was that the age on 14-11-2007 of appellant Atta Hussain son of Qadir Bux Daidano, appears to be between 22 to 25 years. The report is available in case file. From the said Medial Board it appears that at the time of commission of the offence the appellant was hardly about 15/16 years of age. He further submits that the Juvenile Justice System Ordinance, 2000 had been enforced before conclusion of the trial and the appellant being a juvenile could not be deprived of the benefit of the said Ordinance. The death penalty cannot be awarded to juvenile.
9. ' The learned counsel for the appellant at the very outset submits that he would not press for acquittal of the appellant and he prays for alteration of sentence alone on the ground that the appellant at the time of commission of offence was of tender age and he committed the offence in mitigating circumstances. In such age he could not bear his insult in presence of other persons. He further submits that his death sentence be altered into an imprisonment for life as provided under section 12 of the Juvenile Justice System Ordinance, 2000.
10. ' Learned A.A.-G. Submits that in view of the appellant being of tender age who committed offence in mitigating, circumstances, his death sentence be converted into life imprisonment while saying so he relied upon a case of Abdul Khaliq v. The State (1989 SCM R 2002) and. a case of Muhammad Akram v. The State (1999 SCM R 52).
11. ' Learned D.A.G. As Amicus Curiae submits that in view of the case of Imtiaz Ahmed alias Kaji and other v. The State (2008 PCr.LJ 441) and report of the Medical Board the appellant was of tender age at that time who committed the offence in mitigating circumstances. He being juvenile the sentence of death penalty awarded to him be altered to life imprisonment.
12. ' We have heard the learned Advocate for the appellant, learned A.A.-G and learned Amicus Curiae, gone through the material available in case file and gone through the case-laws. As per report of Medical Board the appellant is hardly between 14 to 16 years of age at the time of commission of offence. In our considered view the occurrence was the result of an abusive language and hot words exchanged between the complainant, his brother Shahbaz Dino (deceased) and appellant over the some amount and the offence of murder committed by appellant is considered as a mitigating circumstances for withholding the penalty of death. The appeal is dismissed. Conviction is maintained the sentence of death penalty awarded to the appellant is withheld and the same is altered to imprisonment for life. The benefit of section 382-B, Cr.P.C. Would also be extended to him.
13. ' In view of the above, the Criminal Confirmation Case No.11 of 2004 is answered in negative. The sentence of death is not confirmed. The Criminal Jail Appeal No.124 of 2004, the same is dismissed.
14. As regards the conviction in Sessions Case No. 259 of 1996 under section 13-E of Arms Ordinance is maintained. The benefit of section 382-B, Cr.P.0 is also extended to him. The sentences awarded to the appellant in both the cases would run concurrently.