' CH. EJAZ YOUSAF, J.--- This appeal with leave of the Court is directed against judgment, dated 28- 9-2004 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No,107/J of 1999 filed by the appellant was dismissed, conviction and sentence of death inflicted on him as Qisas under section 302(a), P.P.C. Was maintained and Murder Reference i,e, No,535 of 1999 sent for confirmation of the death sentence, was answered in the affirmative.
2. Facts of the case, in brief, are that the appellant along with two other accused persons, namely, Gulsher alias Puppu and Liaqat Ali were, in pursuance of F.I.R. No,305 of 1995, dated 21-5-1995 registered with Police Station Model Town, Gujranwala, under sections 302/392/324/34, P.P.C., charged for committing Qatl-i-Amd of one Sajid Sultan son of Meraj Din. In addition, they were also charged under section 324/34, P.P.C. For inflicting injuries to Javed son of Bashir Ahmad, Sabir Sultan, son of Meraj Din and Tanveer Anjum. Since the accused persons did not plead guilty to the charge, therefore, the prosecution in order to prove the allegations leveled against them examined 21 witnesses in all, besides tendering in evidence the reports of the Chemical Examiner and Serologist, as Exhs.P.U. And P.V. Respectively. Thereafter statements of the accused persons under section 342, Cr.P.C. Were recorded. In their above statements all the accused persons denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused persons and sentenced them to the punishments as detailed in the judgment of the trial Court.
Appellant Sajid Sohail was convicted under section 302(a), P.P.C. And was sentenced to death with the direction to pay a compensation of Rs,25,000 to the legal heirs of the deceased or in default thereof to undergo S.I. For six months. The judgment of the trial Court was assailed by the appellant before the High Court, vide Criminal Appeal No,107/J of 1999 which was dismissed through the impugned judgment, hence this appeal. It would be pertinent to mention here that no appeal was filed by the rest of the accused persons.
3. It has been mainly contended by the learned counsel for the appellant that sentence of death as Qisas could not have been inflicted on the appellant under section 302(a), P.P.C. Because none of the witnesses, particularly the eye-witnesses, were subjected to Tazkiayah-al-Shuhood. It is further his case that since the appellant at the time of occurrence was about 13-1/2 years of age, therefore, he being a minor, the sentence of death could not have been inflicted on him. In order to supplement his contention, he while referring to the school leaving certificate submitted that as per certificate in question date of birth of the appellant was 6-6-1981 and therefore, he was about 14 years old at the time of occurrence, which took place on 20-5-1995. He has added that as per ossification test result, which was got conducted by the Superintendent Central Jail, Gujranwala, his age was 22 years as on 4-1-2002, therefore, he, at the time of occurrence, was definitely a minor.
4. Mr. S. Saddique Khan Baloch, learned Deputy Prosecutor-General, Punjab, appearing on behalf of the State, at the very outset candidly conceded to the proposition and submitted that since proceedings of Tazkiayah-al-Shuhood were not conducted in pursuance of Article 17 of the Qanun- e-Shahadat Order, 1984, therefore, Hadd punishment of Qisas could not have been inflicted on the appellant, however, stated that since the appellant was found guilty on the basis of independent and reliable evidence, for committing murder, therefore, he was liable to Ta'zir punishment under section 302(b), P.P.C. Regarding age of the appellant he submitted that since it was not specifically pleaded at the trial that the appellant at the time of occurrence was a minor and the contention raised in this behalf was repelled by the learned Judges in the High Court after thorough scrutiny of evidence and the documents placed on record before this Court, regarding age of the appellant were not produced before the trial as well as Appellate Courts, therefore, the contention was devoid of force.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance, minutely.
6. As to the first contention of the learned counsel for the appellant that since process of Tazkiayah-al-Shuhood, in the instant case, was not resorted to, therefore, the appellant could not have been punished with sentence of death as Qisas on the basis of the statements of the P.Ws., it may be mentioned here that no doubt in recording Hadd punishment the sentence of death as Qisas cannot be inflicted unless requirements of Tazkiyah-al-Shuhood, are satisfied and proof of Qatl-e-Amd liable to Qisas as required by section 304, P.P.C. Is available. However, it is well-settled that in the absence of requisite proof under section 304, P.P.C. Ta'zir punishment can be inflicted on an accused because very Muslim is a competent witness as he is ordained to speak truth Mumtaz Ahmad and another v. The State PLD 1990 FSC 38, therefore his testimony, so far as Ta'zir punishment is concerned, cannot be discarded, if it is otherwise, believable. In a number of cases, where the requirements of Tazkiya-al-Shuhood, were not fulfilled statements of the witnesses were believed, by the Courts, to award Ta'zir punishment's. In the case of Arshad Ali v. The State 1993 PCr.LJ 2540, Shariat Appellate Bench of this Court, in a case of Harrabah liable to Hadd, in view of the fact that the requirements of Tazkiya-al-Shuhood, were not fulfilled, was pleased to inflict ten years' R.I., with fine on the appellants. In the case of Ghulam Ali v. The State PLD 1986 SC 741 too, the Shariat Appellate Bench of this Court, in the absence of requisite proof as required by section 7 of the Hudood Ordinance and the fact that the witnesses had not satisfied the requirements of Tazkiya-al-Shuhood, so as to be adjudged as truthful persons, was pleased to award a punishment of three years' R.I. For committing theft in a mosque. In the case of Riaz Ahmad v. The State 1998 SCM R 1729 too, it was laid down by this Court that the requirement of Tazkiya-al- Shuhood is obligatory only in cases punishable with Hadd and/or Qisas, but not in cases punishable with Ta'zir and the view was subsequently affirmed by this Court in the case reported as Abdul Salam v. The State 2000 SCM R 338. Reference in this regard may also be usefully made to the cases reported as (i) Muhammad Rafiq v. Muhammad Manzoor and others 2007 SCM R 216, (ii)
Muhammad Saleem and others v. The State 2006 SCMR 849 and (iii) Ghulam Ali v. The State PLD 1986 SC 741. The contention raised by the learned counsel for the appellant in this regard, therefore, has force in it.
7. As regards the next contention of the learned counsel for the appellant that since the appellant at the time of commission of the offence was a minor, therefore, sentence of death could not have been inflicted on him, it may be pointed out here that a similar contention was also raised before the High Court but it was, in view of the evidence available on record and after thorough consideration, was repelled. Findings contained in paras.23 and 24 of the impugned judgment are explicit in this regard. It is also true that the documents referred to and relied upon by the learned counsel for the appellant in support of the contention were also not produced before the trial as well as the Appellate Courts therefore, at this belated stage the appellant, by his conduct, is estopped to take a different stand. The contention, therefore, has no force.
8. In the instant case, since guilt of the appellant, was successfully brought home, at the trial, through reliable and tangible evidence and all the three eye-witnesses having the stamp of injuries on their persons corroborated each other in material particulars and their testimony was supported by the medical as well as other evidence, there was no previous enmity between the parties and it was also not a case of mistaken identity as both the parties knew each other well, therefore, concurrent findings of both the Courts below regarding commission of murder by the appellant in our view, are unquestionable.
9. Upshot of the above discussion is, that this appeal is partly accepted. Conviction recorded against the appellant is altered from under section 302(a), P.P.C. To that of under section 302(b), P.P.C. And the sentence of death inflicted on him is converted into life imprisonment. Benefit of section 382-B, Cr.P.C. Is also extended to him.
' These are the reasons for our short order of the even date announced in open Court.