Sayed Zahid Hussain, J.--Sharafat Ali Khan appellant was charged for the commission of offence u/S. 302(b) and S. 324 PPC for the murder of Muhammad Ishaq deceased. He pleaded not guilty, but after trial, was convicted by the learned Addl. Sessions Judge, Lahore vide judgment dated 17.9.1998 and sentenced to death u/S. 302 (b) PPC. He was also convicted u/S. 324 PPC and sentenced to seven years R.I. with a fine of Rs,5,000/- and was also ordered to pay compensation amounting to Rs,10,000/- u/S. 544-A Cr.P.C. to the legal heirs of the deceased. His appeal there against and Murder Reference No, 390 of 1998 came up before the learned Division Bench of the Lahore High Court, Lahore, who dismissed his appeal and answered the reference in-affirmative.
This was vide judgment dated 9.1.2003. On his Jail Petition No, 25 of 2003, leave was granted by this Court on 9.2.2005, which order reads as follows: The learned counsel for the petitioner states that he does not press this petition against conviction of the petitioner under Sections 302(b) and 324 PPC and would confine his submissions only to the conversion of death sentence to life imprisonment on the ground of minority of the petitioner who was 16 years of age at the time of commission of offence. Leave is granted to consider the question of quantum of sentence of the convict-petitioner."
2. The learned counsel for the appellant has though attempted to argue the matter on other aspects of the case yet, his main focal point was that the appellant being a minor (16 years of age at the time of commission of offence) his sentence of death was liable, to be converted into life imprisonment. In order to show that the appellant was indeed of the age of 16 years, he has made a reference to the judgment of the Trial Court and also of the High Court, where such an assertion was noted but had not duly been adverted to. He also makes reference to the age of the appellant mentioned by the Trial Court at the time of recording of his statement u/S. 342 Cr.P.C. He has cited Sohail Iqbal v. The State (1993 SCM R 2377), Muhammad Iqbal v. The State (1999 SCM R 403) and Muhammad Afzal v. State (PLJ 2000 SC 965) in support of his contention.
3. The learned Addl. Prosecutor General, Punjab, on the other hand supported the judgment of conviction passed by the Trial Court and maintained by the learned High Court. According to him, the question of minority of the appellant cannot be raised before this Court.
4. The occurrence that led to the conviction of the appellant as para phrased by the High Court was that:-- "According to Riaz Ahmad, he was resident of Walton and was running a General Store in R.A. Bazar.
His father Muhammad Ishaq and son Ejaz Ahmad also worked with him. According to complainant on 13.7.1994 Sharafat Ali Khan resident of village Manki, District Sawbi came to his shop and purchased a pistol cover for Rs,150/-. Sharafat Ali Khan returned next day, and wanted to give back pistol cover, he had purchased earlier. The complainant stated that he informed Sharafat Ali that pistol cover could be exchanged but price paid would not be refunded. Sharafat Ali insisted for return of sale price and thereafter left the shop. According to the complainant he alongwith his father and brother was present at his shop when at 8.15 a.m. Sharafat Ali came at the shop and fired thrice with 30 bore pistol at Ejaz Ahmad son of the -complainant. Two shots were hit on the person of Haji Muhammad Ishaq, father of the complainant. Several shopkeepers and others rushed to the spot. Sharafat Ali Khan escaped but was overpowered by Muhammad Younas.
Sharafat Ali was handed over to police. Haji Muhammad Ishaq died at the spot while Ejaz Ahmad P.
W. was removed to hospital."
5. Before the Trial Court, Abdul Latif PW-1, who identified the dead body of Muhammad Ishaq (deceased), Muhammad Ajmal PW-2, the witness of recovery of blood stained earth, five crime empties and last worn clothes, Sheikh Muhammad Munir PW-3, who saw the appellant running away after the crime, Abdul Shakoor SI PW-4, who recorded the FIR, Muhammad Akram ASI PW-5, who took crime property in custody, Ejaz Ahmad PW-6, who was injured in the same incident, Muhammad Sharif PW-7, who escorted the dead body of Muhammad Ishaq (deceased], Riaz Ahmad complainant PW-8, Muhammad Younas PW-9, who apprehended the accused, Dr. Muhammad Arif PW-10, who conducted Post Mortem and Ali Hassan Randhawa SI PW-11, who conducted the investigation, were produced by the prosecution in order to bring home the guilt to the accused.
6. The statement of Sharafat Ali appellant u/s. 342 Cr.P.C. was recorded thereafter. He denied the case set up against him by the prosecution and stated that he was apprehended from R.A. Bazar, while he was wandering in search of livelihood in poor condition and shabby dress and that he was innocent.
7. The unshaken testimony of the prosecution witnesses led to the conviction of the appellant. On perusal of the evidence the learned Division Bench of the High Court dismissed his appeal and confirmed the death sentence. We find no difficulty in reaching the conclusion about the involvement of the appellant in the Commission of offence with premeditation as a day before the occurrence, he had gone to the said shop and had manifested his intentions. It was a day time, occurrence supported by the eye-witnesses leaving no doubt whatsoever about his involvement in the commission of offence. Indeed before this Court at the time of grant of leave petition against conviction was not pressed and it was only sought to be urged that the sentence of death may be converted into life imprisonment on the ground of minority.
8. Adverting to the aspect of quantum of sentence on which the leave was granted, it may be observed that in Sohail Iqbal v. The State (1993 SCM R 2377) while considering the quantum of sentence in the context of age of the accused, the age recorded by the Court on its record at the time of recording statement u/S. 342 Cr.P.C. was taken note of and benefit of tender age was extended to the accused convict. Accordingly his death sentence was substituted by life imprisonment.
In Muhammad Afzal v. State (PLJ 2000 SC 965) though the conviction was upheld, the appellant/accused was given benefit of his tender age and it was observed that the appellant, owing to his young age appeared to have not considered the serious consequences of his act.
Accordingly, maintaining conviction, his sentence was converted from death to imprisonment of life and the appeal was partly allowed.
In Iftikhar-ul-Hassan versus Israr Bashir and another, (PLD 2007 SC 111), it was held that The difference of punishment for Qatl-iAmd as qisas and tazir provided under Section 302(a) and 302(b), PPC respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under Section 302(b), PPC and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-Amd', keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCM R 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCM R, 2203, Muhammad Akram v. State 2003 SCM R 855 and Abdus Salam v. State 2000 SCM R 338." Keeping in view the plea of minority of the offender, he was awarded imprisonment for life instead of death penalty.
In Muhammad Riaz and another v. The State (2007 SCM R 1413) while considering the penalty for an act of commission of Qatl-iAmd it was observed No doubt, normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCM R 502).
9. In the instant case, at the time of recording of statement of appellant u/S. 342 Cr.P.C, his age was recorded as twenty years. The said statement was recorded on 25.6.1998 whereas the incident in this case took place on 13.7.1994, the age of the appellant thus reckoning back to the date of occurrence was about 16 years. Before the Trial Court this aspect was pressed into service however no definite finding was given. Even before the High Court this point was once again urged but `did not receive serious consideration by the learned Division Bench. We find from the perusal of the petition sent by him from Jail addressed to the Registrar of this Court, wherein again he appealed for his plea of tender age to be kept in sight. Keeping all such aspects in view and the circumstances of the case, on due consideration, we find ourselves inclined to take the view that the sentence of the appellant should be converted into life imprisonment by keeping intact the conviction and other sentences. He will have the benefit of S.382-B Cr.P.C.
10. In view of the above the appeal is partly allowed to the extent of modification of sentence.