1. ' MRS. QAISER IQBAL, J. Appellant Javed son of Qadirdad has resorted to file Cr. Jail Appeal under section 410, Cr.P.C. Assailing the judgment passed by IIIrd Additional Sessions Judge Karachi South in Sessions Case No,248/95, Crime No,78/95 under section 302, P.P.C. Registered at Police Sstation, Kalri, Karachi whereby he was sentenced and convicted to suffer imprisonment of life and to pay fine of Rs,50,000 and in default to under go R.I. For two years with benefit of section 382-B, Cr.P.C.
2. ' Precisely the facts leading, to the case are that F.I.R. Was registered on the basis of the statement of complainant Muhammad Akbar under section 154, Cr.P.C. Recorded at emergency ward Civil Hospital Karachi on 1-4-1995, the complainant disclosed that Javed is his stepson who used to live with him and on the fateful day he was available in his house whereas Javed was standing in gali, at about. 8-15 p.m. There was alarm Bachao Bachao to which complainant came out and saw one boy Jawad who used to live behind Ghafoor Hotel was armed with Chhuri and saying to his son that today he will not spare him (deceased Javed) in sight of complainant accused Jawad attacked on deceased Javed and caused Chhuri below which hit on left side of chest near heart of deceased, complainant rushed towards the place and many persons gathered. Accused Javed along with Chhuri made his escape good and the Mohallah people shifted victim Javed in serious injured-condition to Civil Hospital. The complainant reported that accused Javed on account of dispute over money attacked upon his step son Javed and injured him, died as a result of injury received by him, appellant was convicted under section 302, P.P.C.
3. ' On 2-4-1995 appellant was arrested by the police on the pointation of complainant and was booked in commission of the crime. After usual investigation the appellant was challaned to face the trial.
4. ' At the trial charge was framed and read over to the appellant, he pleaded not guilty and claimed to be tried.
5. ' The prosecution in support of the case examined P. W.1 complainant Muhammad Akbar exhibit 5, P.W.2 Abdul Khaliq as exhibit 10, P.W.3 Abdul Razzak as exhibit 13, P.W.4 Sultan as exhibit 14, P.W.5 Sultan Muhammad as exhibit 16, P.W.6 Inspector Ali Asghar as exhibit 18, P.W.7 Dr. Qarrar Ahmed as exhibit 20, P.W.8 Dr. Aftab Ahmed Channer as exhibit 21. The statement of the appellant was recorded under section 342, Cr.P.C. As exhibit 22 he denied to have committed the offence and pleaded his innocence. He however, declined to examine himself on oath in defence under section 340 (2), Cr.P.C. Or adduced evidence in defence. The trial Judge on appraisal of evidence produced by the prosecution convicted the appellant as stated above.
6. ' I have heard learned counsel appearing for the appellant for the State.
7. ' Learned counsel for appellant has contended that from the statement of the appellant recorded under section 342, Cr.P.C. The appellant was aged about 16 years on the date of incident viz. 1-4- 1995, his statement was recorded on 10-1-2001 after expiry of six years at the age of 22 years. The appellant was minor at the time of the commission of the crime. Capital punishment could not be awarded to him. It is urged that the motive for commission of the offence was the dispute over lending of money. No direct evidence is available on record except that complainant who is a father of the deceased is an eye-witness attracted on the place of occurrence after hearing cries, found that his son was injured. Knife was secured after 10 days of the occurrence which was not sent to serologist thus recovery was not exhibited. Even the mashir of the recovery was not examined. Learned counsel for the appellant has also produced an extract from the register of birth and death certificate to substantiate the case of the appellant in proof of his age. In support of the above contention reliance has been placed on the following case-law :
(1) 2004 YLR 2879; (2) 2002 YLR 3691 and (3) 2003 SCMR 608.
8. ' Learned counsel for State contended that the plea of minority was not raised before the trial Court which ought to have been proved by way of formulation of Medical Board for determination of his age on the basis of ossification test.
9. ' The rule enunciated in case of. Muhammad Akbar v. The State (2002 YLR Lahore 3691), while appreciating the evidence adduced by prosecution arrived at the conclusion that F.I.R. Was lodged promptly and there was sound reason to falsely implicate the accused. It is further observed that prosecution itself believed that the murder was committed because the accused persons were suspected that their sister had developed illicit relations with the deceased, the trial Court had not considered the fact that the accused was hardly aged about 16/17 years as reflected from the evidence on record. High Court can take into consideration the tender age of the accused therefore sentence from life imprisonment was reduced to five years R.I. Whereas the amount of compensation was maintained. In case of Amanat Ali v. Nazim Ali and another (2003 SCMR 608) while determining the question of enhancement of sentence it was found that the age of the accused was recorded as 17 years in his statement under section 342, Cr.P.C. Meaning thereby that he was 16 years of age at the time of commission of the offence accused in order to prove his minority has relied on two documents prepared by Headmaster of the School and doctor in their usual discharge of duty, the sentence was altered from life imprisonment to 14 years by the Lahore High Court was maintained.
10. ' I have considered the arguments advanced by learned counsel for appellant and have gone through the relevant provisions of law as well as judgments of the Honourable Supreme Court in cases of Muhammad Afzal alias Seema v. The State (1999 SCMR 2283) and Sarfraz alias Sappy and 2 others (2000 SCMR 1758), Muhammad Imran Khalid and 3 others v. The State (2004 YLR Lahore 2879). It is well settled law that if an accused is minor at the time of commission of the offence as the appellant was minor which is depicted from the statement recorded under section 342, Cr.P.C.
11. Though at the time of commission of the offence he was 16 years of age in addition to it the appellant has A produced extract from the birth register which could not be considered at this juncture on account of the objection raised from the other side. Even if the birth extract is not taken into consideration the question of age of the appellant recorded in his statement under section 342, Cr.P.C. Benefit is extended in his favour on the basis of case law cited herein above. In view of the above circumstances the sentence awarded to the appellant is hereby reduced from imprisonment for life recorded under section 302, P.P.C. To 14 years' R.I. Under section 306-A read with section 308, P.P.C. The sentence of fine is hereby maintained. For the foregoing reasons with alteration in the sentence, the appeal is partly allowed in above terms.