'IJAZ-UL-HASSAN KHAN, J.--- Zaheer Ahmed respondent herein and his father Muhammad Rafique co-accused, were tried by learned Sessions Judge, Jhelum for the charge of committing "Qatl- iAmd" of Khalid Mehmud, sister's son of complainant Tauqeer Ahmed Khan. On the conclusion of trial, learned trial Judge, vide judgment, dated 12-6-2002 extended benefit of doubt to co-accused Muhammad Rafique and acquitted him, while Zaheer Ahmad was convicted under section 302(b), P.P.C. And sentenced to life imprisonment. He was also directed to pay an amount of Rs,1,00,000 as compensation to legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default whereof, to undergo further simple' imprisonment for six months. Benefit of section 382-B, Cr.P.C., was also granted.
2. Zaheer Ahmed respondent, challenged his conviction and sentence in the Lahore High Court, Rawalpindi Bench Rawalpindi through Criminal Appeal No,357 of 2002. A learned Single Judge in Chambers, vide judgment, dated 18-9-2003, while deciding the appeal, holding the respondent to be less than 18 years of age and by exercising powers under the provision of section 308, P.P.C., reduced the sentence from life imprisonment to seven years' rigorous imprisonment as "Tazir".
3. Complainant Tauqeer Ahmed Khan, appellant herein, feeling aggrieved, has filed instant Appeal No,219 of 2009 with leave of the Court, to call in question impugned judgment, dated 18-9-2003 passed by learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi.
4. On 23-9-2004, this Court granted leave to appeal in the following terms:- "After hearing the learned counsel for the petitioner at length and going through the record carefully, we grant leave to appeal only to ascertain as to whether the observation of the learned Single Judge to the effect that the respondent at the time of occurrence was less than 18 years of age and impugned judgment is sustainable."##TE#
5. Succinctly, the prosecution story, as disclosed by complainant Tauqeer Ahmed Khan in his statement (Exh.P.G.), is to the effect that on the fateful day i,e, 28-8-2001, Khalid Mehmood deceased was grazing cattle near a place known as "Neroly Fountain", when at about 9-00 a.m., accused Zaheer Ahmed armed with hatchet, appeared there and at the instigation of his father Muhammad Rafique, co-accused, inflicted hatchet blow on various parts of the body of Khalid Mehmood, resulting in his death. On raising hue and cry by complainant, P.Ws. Faiz Ahmed and Amjad Farooq, grazing cattles near the place of occurrence, were attracted to the spot and witnessed the incident. After accomplishing the mission, respondent made good his escape. A dispute over street between Muhammad Sharif, father of deceased and his brother Muhammad Rafique co-accused, was stated to be the motive, leading to the incident.
6. A.S.-I. Amin Beg, (P.W.12) recorded the statement (Exh.P.G./i) of Tauqeer Ahmed Khan complainant near Raja Hotel Pind Dadan Khan, same day and H.C. Muhammad Khan (P.W.3) recorded F.I.R. No,118, dated 28-8-2001 under sections 302/109, P.P.C. After usual investigation, both the accused were challaned and sent up to the Court of Sessions to face trial. The prosecution in order to prove its case produced as many as 12 witnesses including the eye-witnesses namely complainant Tauqeer Ahmed Khan (P.W.7) and Faiz Muhammad (P.W.9), who reiterated the contents of F.I.R. Dr. Khalid Mehmud Farooqi, (P.W.1) Medical Officer, T.. H.Q. Hospital, Pind Dadan Khan, conducted the post-mortem examination of the deceased on 28-8-2001 and noted a number of injuries on the person of the deceased, caused by sharp-edge weapon. Accused Zaheer Ahmed and co-accused Muhammad Rafique in their statements under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. Zaheer Ahmed produced his birth certificate (Exh.P.B.) showing his date of birth as 20-3-1984. However, no evidence was produced in defence. Upon consideration of material placed before him, learned trial Judge convicted and sentenced Zaheer Ahmed, as stated and mentioned above.
7. In support of the appeal, Ch. Afrasiab Khan, Advocate contended that impugned judgment is patently against law and the weight of evidence on record; that there was no cogent and convincing evidence on the file in proof of the fact that at the time of occurrence, respondent was below the age of 18 years and that in case of "Qatl-i-Amd" if the punishment of life imprisonment is awarded as "Tazir" under section 302(b), P.P.C. Section 308, P.P.C. Is not attracted. Concluding the arguments, learned counsel submitted that respondent committed the murder of his real cousin, young man of 21/22 years of age, in a brutal manner and he deserved major penalty of death.
8. Syed Zafar Abbas Naqvi, Advocate, for the respondent and Ch. Munir Sadiq, learned. Deputy Prosecutor-General for the State, on the other hand, while controverting the arguments of learned counsel for the appellant, supported the impugned judgment maintaining that at the time of occurrence respondent was minor and a juvenile offender, thus, his case would be covered under section 7 of the Juvenile Ordinance, 2000 and plea of minority was rightly taken into consideration and believed by learned High Court for the purpose of giving him the benefit under section 308, P.P.C. To reinforce the contention our attention was invited to the birth certificate (Exh.P.B.) of accused Zaheer Ahmed, "Nikahnama" of his parents and statement of Secretary, Union Council Bawaal.
9. We have heard at length the arguments of--the learned counsel for parties in the light of the material on record.,
10. A careful examination of the different provisions of law would show that section 308, P.P.C. Is attracted only in the cases liable to "Qisas" in which by virtue of the provisions of sections 306 and 307, B P.P.C., the punishment of "Qisas" cannot be imposed or enforced and not in the cases in which punishment is awarded as "Tazir".##TE# In the light of law laid down by this Court, we are of the view that in the facts of the present case, section 308, P.P.C. Is not attracted as respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and liable to punish provided under section 308, P.P.C., rather the true concept is that section 308, P.P.C. Will operate only in the cases which fall within the ambit of sections 306 and 307, P.P.C. In which either offender is not liable to "Qisas" is not enforceable.
11. On the reappraisal of evidence and circumstances of the case, we find that respondent having not taken the plea of minority throughout cross-examination on the prosecution witnesses and taken up this position for the first time in the statement under section 342, Cr.P.C., plea was liable to be rejected. According to identification slip appended with the record, which was prepared on 9-9- 2001, the age of respondent was mentioned as 21/22 years. It may be pertinently mentioned here that an inquiry was conducted by learned Sessions Judge, Jhelum, regarding age of respondent and it was found vide order, dated 18-5-2002 that respondent was not minor and he was 21/22 years of age at the time of commission of offence. The said inquiry as conducted by trial Court, culminating into a proper order which was not challenged during trial by respondent, was conclusive and final as to determination of age. An analysis of the evidence would lead to no other result except holding that at the time of occurrence respondent was not minor and the plea of minority was nothing but an afterthought. The onus to prove the plea of minority was heavily placed on the shoulders of respondent but he has failed to discharge the, same by producing cogent and convincing evidence. The evidence produced by the respondent in this regard is discrepant and falls short of the required standard. The mere assertion of the respondent that at the time of occurrence he was below the age of 18 years and thus, entitled to the benefit under section 308, P.P.C. Without a positive attempt on his part to substantiate the same, is of no consequence. Jehanzeb and another v. The State and others 2003 SCM R 98, Muhammad Akram v.
The State 2003 SCM R 855, Muhammad Ajmal v. The State PLD 2003 SC 1, Ziaullah v. Najeebullah and others PLD 2003 SC 656, Ghulam Murtaza v. The State 2004 SCM R 4, Iftikhar-ulHassan v. Israr Bashir and another PLD 2007 SC 111.
13. In view of the above, this appeal is allowed, impugned judgment, dated 18-9-2003 passed by learned Lahore High Court, Rawalpindi Bench, in Criminal Appeal No,357 of 2002 is set aside and judgment of the trial Court dated 12-6-2002, is restored. Benefit of section 382-B, Cr.P.C. Shall remain available to respondent:##TE#
14. Above are the detailed reasons of our short order, dated 29-10-2008 announced in open Court.