' MUHAMMAD AKRAM QURESHI, J.---The appellants Muhammad Shakeel and Muhammad Aqeel were tried in case F.I.R. No,27, dated 24-2-2002, under sections 302/34/109, P.P.C., registered at Police Station Chutiana, District Toba Tek Singh, by the learned Additional Sessions Judge, Toba Tek Singh, who vide judgment dated 31-7-2002, after finding them guilty for committing the murder of Muhammad Shahid, convicted Muhammad Shakeel appellant under section 302 (b) /34, P.P.C. And sentenced him to death. He was also directed to pay Rs,1,00,000 to the legal heirs of the deceased as compensation as envisaged under section 544-A, Cr.P.C. In default whereof R.I. For six months whereas Muhammad Aqeel appellant was convicted under section 306 read with section 308, P.P.C. And sentenced to pay an amount of Rs,5,00,000 as Diyat to the legal heirs of deceased. He was further sentenced to 14 years R.I as tazir under second proviso to subsection (1) read with subsection (2) of section 308, P.P.C. Benefit of section 382-B, C.P.C. Was also given to Muhammad Aqeel, appellant.
2. Brief facts of the case giving rise to the present appeal are that on 24-2-2002 at about 10 a.m.
Muhammad Rafique complainant along with his son Muhammad Shahid was proceeding towards his house on a cycle when they reached in front of shop of Muhammad Akram, Muhammad Shakeel and Muhammad Aqeel son of Muhammad Sharif armed with churris came in front of them and stopped them. They raised lalkara that they would not spare complainant's son as his wife had abused and slapped their mother. Muhammad Aqeel appellant inflicted Churri blow which Muhammad Shahid deceased received at his lest side of chest. Muhammad Shakeel accused inflicted Churri blows to Muhammad Shahid which he received at his neck. Muhammad Shahid fell down on the ground. Both the accused inflicted successively Churri blows and inflicted injuries at different parts of body of Muhammad Shahid. The complainant raised alarm which attracted Muhammad Siddique and Abdul Hameed P.Ws. Who had witnessed the occurrence but out of fear they did not come near the accused. Both the accused decamped after brandishing Churries.
Muhammad Shahid deceased was transported to Civil Hospital, Pir Mahal but he succumbed to the injuries on his ways to hospital.
3. During the trial the prosecution examined 13 witnesses in all whereafter the appellants were examined under section 342, Cr.P.C. In which they denied the allegations and claimed innocence.
They did not produce any defence evidence of opted to appear in rebuttal under section 340(2), Cr.P.C. However, the learned trial Court went on to convict them to suffer the above mentioned sentence, hence the present appeal.
4. Learned counsel for the appellants contends that Muhammad Aqeel appellant was minor at the time of alleged occurrence; that from the very beginning he took up the plea of childhood and the learned trial Court also admitted it in its judgment dated 31-7-2002 in the following words:-- "Muhammad Aqeel accused was a minor at the time of occurrence being less than 18 years of age there, he is convicted under section 306 read with section 308, P.P.C. And is sentenced to pay an amount of Rs,5,00,000 as Diyat to the legal heirs of Muhammad Shahid deceased. He is further sentenced to 14 years' R.I as Tazir under second proviso to subsection (1) read with subsection (2) of section 308, P.P.C. As he had attained sufficient maturity so as to be able to realize the consequence of his criminal act. Muhammad Aqeel accused is entitled to the benefit as required under section 382-B, Cr.P.C."
5. From this the learned counsel for the appellant submits that Juvenile Justice System Ordinance 2002 was promulgated on 14-10-1999. The occurrence in this case took place on 24-2-2002, therefore, any child falling within the definition of section 7 of the said Ordinance would be tried under the said Ordinance. He also states that the learned trial Court has committed serious illegality by conducting a joint trial of a child with Muhammad Shakeel major accused.
6. At this juncture section 304 a direct descendant, how low-so- P.P.C. Is reproduced as under:--
304. Proof of Qatl-i-Amd liable to Qisas, etc.---(1) Proof of Qatl-i- circumstances in which qatl-e- amd is not Amd liable to qisas shall be in any liable to Qisas. Section 307, P.P.C. Is of the following forms, namely:--
(a) the accused makes before 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-eShahadat, 1984 (P.O. No,10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to qisas.
7. If conditions laid in this section are fulfilled then an accused is convicted under section 302(a), P.P.C. Section 306 is reproduced 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 with himself in the commission of the offence 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 low-so-ever; and
(c) when any Wali of the victim is ever, of the offender.
8. This section lays down the reproduced as under:--
307. Cases in which Qisas for Qatl-iAmd 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.
'Section 307, P P.0 . Creates circumstances in which Qatl-i-Amd liable to Qisas cannot be enforced.
9. Section 308, P.P.C. Covers the circumstances in which an offence liable to Qisas covered by section 306 clause (c)/section 307 is punished as Tazir.
10. In the present case proof in the shape of conditions laid down by section, 304, P.P.C. Was not available. The accused did not plead guilty and two witnesses who fulfilled the standard to Tazkia- ul-Shahood were not available, therefore, the accused was not liable to be convicted under section 302(a), P.P.C. Hence, the learned trial Court had wrongly convicted and sentenced the appellant under section 308, P.P.C. In these circumstances the trial and punishment under section 308, P.P.C.
Are illegal and void. Learned counsel for the appellant contends that the trial having been conducted by the learned trial Court jointly with his co-accused was obviously illegal and the case of Aqeel appellant should have been conducted under Juvenile Justice System Ordinance, 1999.
11. Learned counsel for the complainant assisted by learned APG states that the conviction of Aqeel appellant has wrongly been mentioned under section 308, P.P.C. But states that Aqeel accused never pleaded his childhood before the learned trial Court at the initial stage and that on this juncture he cannot claim childhood and that his separate trial cannot be held. Learned counsel for the complainant further contends that the present case may be remanded back for re-writing of judgment.
12. At this juncture a query was put by this Court to the learned counsel for the parties as to the legality of trial of Shakeel appellant. Learned counsel for the appellant opted not to press his appeal provided that his sentence may be reduced from death to life imprisonment because injury No,8 which proved fatal to the life of Shahid deceased was not attributed to Shakeel appellant.
13. The prayer having been made by the learned counsel for the appellant has been vehemently opposed by the learned counsel for the complainant assisted by the learned APG on the score that 17 injuries were inflicted on the person of the deceased and that all the injuries were contributory to the cause of death. They also submit that all the injuries caused haemorrhage in the body of the deceased and consequently he succumbed to injuries.
14. After hearing the learned counsel for the parties and perusing the record we conclude that the trial of Shakeel appellant does not suffer from any illegality. His trial was conducted by the learned trial Court in accordance with the procedure provided by Chapter XXII-A of Cr.P.C. The prayer made by the learned counsel for the appellant for the reduction of his sentence is in accordance with law. The fatal injury caused on the person of Shahid deceased was not attributed to him, therefore, it would be not in the interest of justice to award major penalty to him. Consequently the prayer made by the learned counsel for the appellant is accepted and sentence awarded to him is reduced to life imprisonment. The benefit of section 382-B shall also be given to the appellant. With this modification his appeal stands dismissed. Murder reference to his extent is answered in the negative.
15. As observed above the learned trial Court has declared Aqeel appellant as child. It has been observed that at the time of alleged occurrence Aqeel appellant was below 18 years of age. The learned trial Court has concluded this after going through the record made available by Aqeel appellant and the learned counsel for the prosecution. The learned trial Court has also committed illegality by convicting him under section 308, P.P.C. It was not a case of Qisas punishable under section 308 P.P.C, therefore, the learned trial Court should not have resorted to sections 306/ 307/308, P.P.C, therefore, we declare that conviction of appellant under section 308, P.P.C. Is illegal and void. The circumstances discussed by this Court in the preceding paragraphs makes it clear that the trial and conviction of the appellant is void, therefore, we accept his appeal, set aside his sentence and remand his case to the learned trial Court for fresh trial under the Juvenile Justice System Ordinance, 2000. With this observation his appeal is accepted.
16. The learned trial Court is directed to secure report of police oiticer under section 173, Cr.P.C.
Within 15 days of the receipt of order of this Court.
17. The learned trial Court is further directed to conclude the trial of Aqeel appellant within two months of the receipt of report under section 173, Cr.P.C. Pending trial he will remain in custody.