Rahmat Hussain Jafferi, J.--This judgment will dispose of Criminal Appeal Nos, 397 and 398 of 2006, as they arise out of a common judgment.
2. On 22.02.1999 at 8:30 p.m., the complainant Muhammad Hanif lodged the report at Police Station Pindi Gheb, District Attock alleging therein that on the said date at about 6:30 p.m., when he entered his house after coming from Pindi Gheb he saw the appellant; convict Muhammad Zubair armed with Churri standing in front of a room of his house. The complainant tried to catch hold of him but he ran away through stairs and by scaling over the wall. The complainant went inside the room where he saw his wife Zaitoon Bibi lying dead. He also saw his minor daughter Mst. Sudra Bibi present there with injuries on her person. She narrated the incident to her father, the complainant, to the effect that the appellant came in the house, caught hold of the deceased Zaitoon Bibi, who abused him and thereafter he (the appellant) gave Churri blows to her, which she received on the back of her neck, near ears and other parts of the body and that she (Mst. Sudra Bibi) also received injuries from the hands of the appellant.
3. The motive alleged was that on 20.02.1999 there was a quarrel between the complainant and the appellant over the coming of one Nawab Khan into his house and that because of the said quarrel the appellant had committed the murder of his wife and injured his daughter.
4. The case was investigated by PW.' 11 Zulfiqar Ali, SI. He collected the ocular evidence of Mst. Sudra Bihi arrested the appellant Analyst for examination who reported that Churn was stained with human blood. After completing the investigation, the appellant was challenged in the Court.
5. The learned Additional Sessions Judge, Attack tried the appellant and after relying upon the ocular testimony and recovery convicted him for the offence punishable under Section 302, PPC and sentenced him to death. He was directed to pay compensation of Rs,1,00,000/- to the legal heirs of the deceased or in default thereof to suffer SI for six months. He was also convicted for the offence punishable under Section 324, PPC and sentenced to RI for one year and fine of Rs, 5,000/- or in default thereof to suffer RI for three months with benefit of Section 382-B, Cr.PC, vide judgment dated 25.11.2000.
6. The appellant was dissatisfied with the said judgment, therefore, he challenged it before the Lahore High Court, Rawalpindi Bench, Rawalpindi. He also filed a Writ Petition Bearing No, 2665 of 2002 in the said Court for determination of his age. The appeal and writ petition were heard together. The learned High Court concurred with the finding of the trial Court on factual aspect of the case but after examining the School Leaving Certificate, Birth Certificate, Report of Medical Officer, Rawalpindi Jail and the age shown in police record formed the opinion that the appellant was not adult within the meaning of Section 299, PPC, therefore, while maintaining the conviction under Section 302(b), PPC reduced his sentence from death to imprisonment for life. The conviction and sentence awarded to the appellant for offence punishable under Section 324, PPC was also maintained with benefit of Section 382-B, Cr.PC and it was ordered that both the sentences should run concurrently under the impugned judgment dated 08.06.2005.
7. The appellant challenged the finding of the learned High Court by filing Criminal Petition No,265 of 2005, whereas the complainant filed Criminal Petition No,292 of 2005 for enhancement of sentence by taking the plea that the appellant was not minor but he was major at the time of incident and produced Birth Certificate showing the date of birth of the appellant as 26.10.1978. This Court, vide order dated 09.05.2006, granted leave in both the matters. Hence these appeals.
8. We have heard learned counsel for the appellant, the complainant Muhammad Hanif and the State. Learned counsel for the appellant Muhammad Zubair has argued that the ocular testimony rests upon minor witness PW-10 Mst. Sudra Bibi only which is not confidence inspiring; that the statement of Mst. Sudra Bibi is in conflict with medical evidence as she deposed that she received injuries with Churn but the Medical Officer did not find any incised injury on her person and that the recovery in the case is highly doubtful. As regards the sentence he has stated that the appellant was about 18 years of age at the time of incident, which fact has been, supported from the Birth Certificate, School Leaving Certificate, Report of Medical Officer, Rawalpindi Jail and police record; that the Birth Certificate produced by the complainant is in respect of some other person as it was regarding one Kumhar, whereas the appellant is Awan by caste. Alternatively, he has argued that if the Court believes the ocular evidence and recovery then the sentence may not be enhanced.
9.Conversely, learned counsel for the complainant Muhammad Hanif (appellant in Criminal Appeal No,398 of 2006) has stated that ocular evidence of minor girl Mst. Sudra Bibi is confidence inspiring; that she is a straightforward witness who specifically assigned the role of causing injuries to the appellant; that her evidence is supported and corroborated by the complainant who saw the appellant in the house, armed with Churri standing outside the room, just after the incident where the deceased was/lying dead; that the recovery of blood stained Churri further connects the appellant with the commission of crime; that the deceased was done to death in a cruel manner, therefore, he does not require any leniency. He has challenged the finding of the learned High Court concerning the age of the appellant by arguing that proper evidence was not produced before the High Court as no notice was given to him; that he has produced Birth Certificate of the appellant which shows that the appellant was 20 years of age at the time of incident; that no proper inquiry was conducted by the learned High Court, therefore, normal sentence of the offence should be awarded by enhancing it. The learned State counsel has adopted the arguments of learned counsel for the complainant and has supported the impugned judgment to the extent of finding with regard to the conviction. However, as regards sentence he has submitted that it may be enhanced.
10. Having heard the arguments of learned counsel for the parties as also for the State and after appraising the evidence available on record, we find that the case hinges upon three pieces of evidence, i.e. statement of Mst. Sudra Bibi, recovery of blood stained Churri and the motive. The ocular testimony consists of PW.10 Mst. Sudra Bibi, who was minor at the time of incident. The trial Court after putting preliminary questions to Mst. Sudra Bibi was satisfied that she was a competent witness, therefore, recorded her statement. She fully supported the prosecution case and specifically stated that the appellant caused Churri injuries to the deceased and also caused injuries to her. She was subjected to cross-examination but veracity of her evidence was not shaken and she successfully passed the test of cross-examination. Both the Courts below have relied upon her evidence. We also do not find any discrepancy or infirmity in her evidence. She is a natural witness, whose presence at the place of incident cannot be doubted and she has no reason to falsely implicate the appellant. Her evidence is further corroborated by the complainant, whose evidence reveals that he saw the appellant armed with Churri just after the incident standing outside the room of the house, where the deceased was lying dead and PW.10 Mst. Sudra Bibi was present in injured condition, who disclosed the facts of the incident. Her statement is further supported and corroborated by the medical evidence as the Doctor, who examined the dead body of the deceased, found three incised injuries and one abrasion on the person of the deceased. He also found injuries on the person of PW.10. Statement of PW.6 Dr. Raifeel Hashmi shows that PW Mst. Sudra Bibi had, "Lacerated wound measuring 3 cm X 1 cm just below left acceptably dominance 6 cm from the pinna of right ear. The wound was bone deep and Swelling on the right scapiuler region." Learned counsel for the appellant Muhammad Zubair challenged the statement of Mst. Sudra Bibi on the ground that she had disclored that the appellant gave her Churri blows, whereas the Doctor did not find any incised injury on her person. No doubt she had disclosed such fact but she did not specifically state that she received injuries with sharp side of the Churri. Even otherwise, this is a minor discrepancy which does not affect the evidence of Mst.
Sudra Bibi, whose evidence is confidence inspiring in the peculiar circumstances of the present case, therefore, the prosecution has proved the ocular testimony.
11. As regards the recovery of blood stained Churri, the same has been proved from the evidence of the Investigation Officer, Zulfiqar Ali (PW. 11) and corroborated by Noor Muhammad (PW.8) and Muhammad Afzal Kiani (PW.12). The Churri was sent to the Chemical C. Examiner for examination who reported that it was stained with human blood.
12. The motive of the incident as alleged by the complainant is that on 20.02.1999 there was a quarrel between him and the appellant over the coming of one Nawab Khan in his house. The complainant deposed the said facts but no further evidence was led in support of his contention.
The case of the appellant was that he complained the fact of 4 the coming of Nawab Khan in the house of the complainant to Muhammad Hanif and Manzoor Hussain, brothers of the complainant, and they committed murder of the deceased. From his statement, it appears that there were some issues in respect of visiting of Nawab Khan to the house of the complainant. However, none of the parties produced the required evidence to establish their respective pleas.
13. After considering the material available on record, we are of the considered view that the prosecution has proved its case against the appellant beyond any reasonable doubt. Therefore, we maintain the conviction awarded to the appellant by both the Courts below for the offence punishable under Sections 302 & 324 PPC 14. As regards the sentence, the learned High Court reduced the same by taking into consideration the age of the appellant. Before the High Court in the writ petition, the appellant produced Birth Certificate, which shows his date of birth as 8.6.1981. He also produced School Leaving Certificate with the same date of birth. He was referred to Medical Officer, Rawalpindi Jail for determination of his age, who examined him on 13.12.2001 and formed the opinion that he was of 23 years of age. The incident took place on 22.2.1999, therefore, he was of about 18 years of age at the time of incident as per Medical Officer. The police also reported his age as 18/19 years. After taking into consideration the said documents, the learned High Court formed the opinion that he was not adult within the meaning of Section 299 of PPC. The complainant Muhammad Hanif has produced a Birth Certificate which shows the date of birth of the appellant as 26.10.1978. According to this certificate, appellant's age was about 20 years at the time of incident. Surprisingly, the learned Additional Sessions Judge did not mention the age of the appellant in his statement recorded under Section 342, Cr.P.C. and thereby violated Paragraph 8 of the Rules and Orders of the Lahore High Court, Lahore (Volume-V of Chapter 22-A) laying down the following instructions to the Criminal Courts: All Criminal Courts should in future enter the ages of the convicts in the body of their judgments, with a view of being directly seized with the question of age when deciding the sentence to be imposed on a juvenile or adolescent.
15. Be that as it may, the fact remains that there is a doubt in respect of the age of the appellant because according to him he was about 18 years of age whereas according to the complainant he was 20 years of age at the time of incident. In such a situation, it is to be seen as to whether doubt is to be decided in favour of the accused or the complainant. A similar question was examined by this Court in the case of "Ijaz Hussain u. The State (2002 SCM R 1455) and it after relying upon the case of "Umar Hayat u. Jahangir (2002 SCM R 629)" held that, in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted," In the case of "Sohail Iqbal u. The State (1993 SCM R 2377)" it has been held as under: "In view of discrepancy in recording the age of the appellant it is only fair that the benefits should be extended to him particularly in view of the precedent of this Court quoted by the learned counsel for the appellant i.e. Javid lqbal v. The State (1982 SCM R 447)".
16. In the present case, the doubt, if any, regarding the age of the appellant is required to be resolved in his favour as such we maintain the finding of the learned High Court on the said aspect of the case, therefore, this is not a fit case where sentence should be enhanced. Consequently, both the appeals are dismissed.