' HAMID ALI MIRZA, J.--- These two Appeals Nos.98 of 2000 (Khan Naveed v. The State) and 99 of 2000 (Munawar Hussain v. Khan Naveed and another) with leave of this Court when former is filed by the appellant/convict/accused against his conviction while the latter has been filed by appellant/complainant Munawar Hussain for enhancement of sentence against the judgment, dated 4-10-1999 in Criminal Appeal No,32 of 1997 passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby trial Court judgment, dated 27-2-1997 passed by learned Additional Sessions Judge, Islamabad was maintained and the appeal filed by appellant Khan Naveed was dismissed so also Criminal Appeal No,70 of 1997 filed by the complainant Munawar Hussain.
2. Brief facts of the case are that F.I.R. No,115 of 1994, dated 22/23-8-1994 was registered at Police Station Bhara Kahu, Islamabad at the instance of complainant Munawar Hussain under section 302, P.P.C., for the murder of his son Qaiser Mehmood against unknown culprits. After usual investigation appellant/accused Khan Naveed was arrested and was challaned to face trial for the murder of Qaiser Mehmood. Charge was read over to the said appellant/accused who pleaded not guilty, therefore, prosecution examined as many as twelve witnesses. The appellant/ accused was also examined under section 342, Cr.P.C. Who denied the commission of offence, and recovery of gun Exh.P.3 at his instance and that the P.Ws. Have deposed due to intimidation and pressure of the police. The trial Court after recording evidence and hearing learned counsel for the parties, convicted Khan Naveed, appellant/accused under section 308, P.P.C. And sentenced him to seven years as Taazir and extended benefit of section 382-B, Cr.P.C. The appellant/convict accused preferred Criminal Appeal No,32 of 1997 and the complainant also preferred. Criminal Appeal No,70 of 1997 before the Lahore High Court, Rawalpindi Bench when both appeals were heard together and dismissed as per impugned judgment.
3. We have heard learned counsel for the parties in both criminal appeals and perused the record minutely.
4. Contention of learned counsel for the appellant/convict accused is that the petitioner was not named in the F.I.R. And further evidence of last-seen was week type of evidence and further gun so recovered belonged to the father of the appellant/convict accused and further medical evidence was inconsistent to the testimony of P.W.4 who deposed two fire shots whereas medical evidence mentioned only one fire shot injury and further there was no motive for the commission of murder of the deceased for the appellant/convict accused Khan Naveed, therefore, the appellant/convict, could not have been convicted under section 308, P.P.C. Which judgment was liable to be set aside.
Learned counsel for the appellant/complainant Munawar Hussain submitted that learned Judge in Chambers affirmed the finding of guilt of the appellant/ convict accused on the basis of unimpeachable and confidence inspiring evidence adduced by the prosecution and the evidence of last-seen coupled with recovery of gun when the empties so recovered also matched as per report of the Fire-arm Expert considering also that there was no enmity of the P.Ws. Against the appellant/convict accused and further that the statement under section 161, Cr.P.C. Of the P.Ws.
Were recorded on the same day. He further clarified that the medical evidence was not in conflict with the testimony of P.W. 4 Muhammad Anwar with regard to the fire to two shots considering that only one shot had hit the deceased while the other did not, therefore, it could not be said that medical evidence was in conflict with the testimony of P.W.4. Muhammad Anwar who deposed that he heard firing of two shots. He submitted that the circumstantial evidence on record being confidence inspiring and having been believed by two Courts, cannot be discarded when there has been no misreading or non-reading of evidence on record and further no miscarriage of justice has occasioned. He further submitted that both Courts came to the conclusion that the case of Qatl-eAmd was made out against the appellant/convict accused beyond reasonable doubt as per evidence on record, therefore, sentence of seven years imprisonment under section 308, P.P.C.
Cannot be sustained as the case fell under section 302(b), P.P.C. He has placed reliance upon the reported cases which he had cited at the time of grant of leave. In reply to the submission of Mr. Muhammad Ibrahim Satti, Advocate Supreme Court the learned counsel for the appellant in Criminal Appeal No,92 of 2000, Mr. Muhammad Munir Peracha, learned counsel for the appellant/ convict accused in Criminal Appeal No,96 of 2000 referred to sections 304, 306, 308 and 309, P.P.C.
Submitting that offence in this case would fall under section 308, P.P.C. And not under section 302(b), P.P.C. Hence both Courts were right in maintaining the sentence of seven years.
5. We find submissions made by learned counsel Mr. Muhammad Munir Peracha for the appellant/convict accused have no merit and substance while submissions made by learned counsel for the appellant/ complainant have merit and substance to the-extent that respondent Khan Naveed in Criminal Appeal No,99 of 2000 has been awarded lesser sentence even if it be assumed that the case against the appellant/convict accused Khan Naveed would fall under section 308, P.P.C.
6. There is no ocular testimony available against the appellant/ accused for committing murder of Qaiser Mehmood but prosecution had adduced circumstantial evidence of P. W.7 Aurangzeb who had seen the deceased Qaiser Mehmood and appellant/convict accused Khan Naveed standing on the roof of Qaiser Mehmood, deceased, when the former came to know in the evening that deceased Qaiser Mehmood was missing. He was cross-examined at length by the defence but his veracity and credibility could not be shaken with regard to his having seen the deceased in the company of the appellant/convict accused on the roof of the house of deceased Qaiser Mehmood.
His testimony is corroborated by P.W.4 Muhammad Anwar who deposed that while he was cutting grass in the field near the village Harno Thanda Pani he heard two fire reports when he saw the appellant/accused Khan Naveed armed with gun going towards Kassi hurriedly, later he came to know that deceased Qaiser Mehmood was missing and next day he came to know that his dead body was recovered from maize field belonging to P.W.4 Aurangzeb the place from where the appellant/convict accused had fired on the previous evening. His testimony with regard to having heard two fire shots and having seen appellant/convict accused armed with gun going hurriedly could not be shaken in the cross-examination by the defence. The testimony of said witness is also corroborated when empties were recovered from the said field and gun Exh.P.3 was recovered at his instance when the empties also matched with the gun. Mere fact that Exh.P.3 gun so recovered belonged to his father, would not negate the commission of murder by the appellant Khan Naveed or having used the gun by him in the commission of murder of deceased Qaiser Mehniood. Medical evidence also corroborated the testimony of above P. Ws. Which mentioned that the deceased was found to have sustained fire-arm injuries on his person and the said injuries were sufficient in ordinary course of nature to cause death. The appellant/convict accused has made denial of the commission of the offence and has also neither examined himself under section 340(2), Cr.P.C. Nor has produced any material to falsify what has been brought on record by the prosecution which appeared to be reliable and confidence-inspiring. It may also be borne in mind that the appellant/ accused has been only single person held to be liable in the commission of murder and no animus has been suggested to the P.Ws. For his false implication in the crime, therefore, there could not be any mistaken identity or substitution in place of the real culprit/assailant i.e, the appellant. The learned Judge in Chambers also after scrutiny, analysis and assessment of the entire evidence, on record has arrived at the conclusion that prosecution has proved the guilt of the appellant/convict accused beyond reasonable doubt and thus, has maintained the conviction and sentence passed by the trial Court.
7. We are convinced that the evidence brought on record by the prosecution established beyond any shadow of doubt, the case against the aPpellant/accused for commission of murder of deceased Qaiser Mehmood. In this case trial Court recorded the conviction of the appellant Khan Naveed under section 308,P.P.C. For Qatl-i-Amd not liable to Qisas and sentenced him to seven years as Taazir extending benefit of section 382-B, Cr.P.C. Holding the appellant to be minor at the time of commission of the offence and also sentenced him to pay Diyat amounting to Rs,1,70,000 to the legal heirs of the deceased Qaiser Mehmood which amount was to be paid by the appellant or his father and in case the said amount. Was not paid, the same was to be recovered as arrears of land revenue from the property of said appellant if owned by him or from the property of his father.
The learned Division Bench of the High Court also affirmed the said conviction and sentence. It has been contended before us that the sentence awarded against the appellant was inadequate and insufficient considering the nature of offence committed by him when Qatl-i-Amd stood proved beyond reasonable doubt in view of the evidence on record considering also that the finding with regard to the minority of the appellant was not based on the basis of reliable evidence. Admittedly offence committed by the appellant could not be said to be Qatl-i-Amd liable to Qisas but would fall Qatl-i-Amd not liable to Qisas considering that appellant's case would not fall under section 304(i), P.P.C. As proof required under the said provision of law being not available in the instant case and further there was no evidence as provided under Article 17 of the Qanun-e-Shahadat Ordinance, 1984. Having arrived at the conclusion, the trial Court with regard to the finding of minority observed in para. 34 as under:-- "Admittedly, the accused, as is evident from the police record, Sazza Slip, statement of C. W.3 Liaqat Hayat, Inspector and the copy of birth certificate placed on record and even on the physical appearance, at the time of occurrence was a minor of 15/16 years of age, but having attained the maturity so as to realize the consequences of his act. The only extenuating and mitigating circumstance justifying award of lesser penalty is the extreme youth of accused, which is not liable to Qisas and the case of the accused comes within the purview of section 306,P.P.C. Punishable under section 308, P.P.0 "
' The said finding was challenged before the High Court when the learned Division Bench affirmed the finding in para.12-13 in the following words:-- "(12) It may also be mentioned here that much stress has been laid down by the learned counsel for the complainant that trial Court has not acted in accordance with law while treating the appellant to be a minor placing reliance upon Sazza Slip wherein age of the appellant has been shown 15/16 years. His contention is that had there been any conclusive proof of the said age of the appellant only then and then trial Court could award punishment under section 308, P.P.C. As there was no documentary evidence available on the record, so the trial Court could not award punishment under section 308, P.P.C. And as such the punishment awarded to the appellant be enhanced and he be awarded normal punishment for the commission of murder.
(13) There is no doubt that trial Court has relied upon Sazza Slip while considering the accused/appellant to be a minor and convicting him under section 308, P.P.C. But there is also nothing on the record to hold that the accused/appellant was a major at the time of occurrence.
The trial Court had the opportunity to see the accused/'appellant and as such findings on that score cannot be interfered with lightly. Thus, finding of the trial Court on that score are maintained."
' The finding of the trial Court with regard to the fact of minority of the appellant/accused Khan Naveed which Court had opportunity of having seen the appellant/accused and other documentary evidence furnished before the trial Court made the said Court in a better position to arrive at the correct finding of fact with regard to the minority of the appellant/accused Khan Naveed which finding was also affirmed by the learned Division Bench of the High Court on the basis of finding of the trial Court. Mere statement on the part of the learned counsel for the complainant that the said finding of minority of the trial Court affirmed by the learned Division Bench of the High Court was not correct cannot be negated/discarded by this Court when there has been nothing before us to set aside/reverse the said finding of minority. We are also of the considered view that the such finding should not be disturbed by us in the Constitutional jurisdiction of this Court when the same has been appreciated, assessed and scrutinized properly by the two Courts having arrived at that the appellant was minor at the time of commission of offence and he had attained the sufficient maturity by now the punishment awarded under section 308 was legal and proper but at the same time we are of the considered opinion that the sentence of seven years awarded to the appellant/accused Khan Naveed was inadequate considering the murder of young person of sixteen years of age in such callous and cruel manner, therefore, we enhance the sentence of imprisonment of the appellant/accused Khan Naveed from seven years to fourteen years as Taazir and maintain the rest of the sentences awarded by the trial Court against the appellant. The case-law cited before us have been gone through by us. We find that facts of those case cited are quite different and distinguishable to the facts of this case and further this Court has time and again held that the cases that have already been decided can hardly be of any assistance on account of the diverse nature and distinguishable features of each case and in such situation rules or principles of general application cannot be laid down.
7. In the circumstances Criminal Appeal Ne.98 of 2000 filed by convict/accused Khan Naveed is dismissed while Criminal Appeal No,99 of 2000 filed by complainant Munawar Hussain is allowed with only modification enhancing the sentence of imprisonment from seven years to fourteen years' R.I. And maintaining the rest of the sentences passed by the trial Court.