JAVED IQBAL, J. --- This appeal with leave of the Court is directed against judgment dated 20.10.2003 whereby the Criminal Appeal preferred on behalf of appellant has been dismissed, hence this appeal. Leave granting order dated 7.3.2006 is reproduced hereinbelow for ready reference:-- "After hearing the learned counsel for the petitioner and learned counsel for the State at some length and having gone through the entire case, we grant leave to appeal only to the extent of sentence for safe criminal administration of justice."
2. The facts of the case need not be reiterated as the same have been mentioned in extenso in the judgment impugned Faisal Aleem (appellant) along with Sameeullah -and Abid Hussain were tried in case F.I.R. No, 93, dated 11.2.1995 (Exh. PF/1) got lodged by Sher Zaman Kayani under Section 302/34, PPC alleging therein that Rizwan Kayani (deceased) was attacked by the above-named culprits and a specific role of infliction of Churri blows was attributed to the appellant as a result whereof Rizwan Kayani expired. The appellant was tried by the learned Additional Sessions Judge, Rawalpindi along with Samiullah and Abid Hussain who vide judgment dated 30.9.1997 convicted them under Section 302/34, PPC and sentenced Samiullah and Abid Hussain to imprisonment for life and to pay compensation of Rs, 20,000/- each to the legal heirs of deceased and in default whereof to undergo imprisonment for six months. Faisal Aleem (appellant) was convicted under Section 302/34, PPC and sentenced to death with direction to pay an amount of Rs, 50,000/- as compensation to the legal heirs of the deceased and in default of payment to undergo imprisonment for a period of six months. Being aggrieved an appeal was preferred by Faisal Aleem (appellant) which has been dismissed, hence this appeal.
3. Malik Waheed Anjum learned ASC entered appearance on behalf of appellant and mainly contended that occurrence took place on 11.2.1995, when the age of appellant was 17 years 9 months and 5 days according to the birth certificate issued by the Cantonment Board* Rawalpindi, School Leaving Certificate issued by School, Registration Form issued by the Directorate General of Registration, Ministry of Interior the date of birth is 6.5.1977 and accordingly the appellant was minor at. the time of occurrence, therefore, he should have been tried under the relevant provisions of Juvenile Justice System Ordinance, 2000 being Juvenile Offender, lt is next contended that in view on the tender age of appellant the penalty of death could have not been imposed which may be altered to that of life imprisonment which would surety meet the ends of justice. No other argument was advanced in view of the leave granting order which is indicative of the fact that leave has been granted only to examine the quantum of sentence, meaning thereby that guilt has been proved to the hilt by the prosecution.
4. Prosecutor General entered appearance en behalf of State and Raja Abdul Ghafoor, learned ASC represented the complainant; Mr. Muhammad Siddique Baloch, learned Deputy Prosecutor General has supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt beyond any shadow of doubt on the basis of cogent and concrete evidence which has rightly been appreciated by the learned Trial and Appellate Courts and judgment impugned being well-based does not warrant interference. The learned Deputy Prosecutor General in order to substantiate the said contention has referred the statements of Allah Nawaz, Constable (PW-1), Sana Ullah, AS1 (PW-2), Kh. Arshad Mehmood, (PW- 3), Munir Ahmad (PW-4), Dr. Munawar Hussian (PW-5), Dr. Tanvir Akhtar (PW-6), Zafar Iqbal, Constable (PW-7), Sher Zaman, complainant (PW-8), Muhammad Shabhir (PW-9), Malik Muhammad Akram, Draftsman (PW-10), Abdur Rauf, SI (PW-11), Raja Muhammad Khalid (PW-12), Muhammad Ramzan, SHO/Investigating Officer (PW-13). The learned Deputy Prosecutor General has argued that in view of the forthright and confidence inspiring evidence furnished by Sher Zaman, complainant (PW-8) who is eye-witness duly supported by Muhammad Shabhir (PW-9); who is also an eye-witness corroborated by medical evidence, reports of chemical examiner (Exh.
PM-Exh. PN), the reports of Serologist (Exh. PO. Exh. PP) and the motive, no exception can be taken to the conclusion as arrived at by the learned Trial Court and up-held by the learned Appellate Court without any lawful justification which is lacking in this same.
5. Raja Abdul Ghafoor, learned ASC while adopting the arguments of Mr. Muhammad Siddique Baloch, learned Deputy Prosecutor General has submitted that question of tender age was never raised before the learned Trial and Appellate Courts and hence it cannot be taken into consideration at this belated stage. Raja Abdul Ghafoor, learned ASC has expressed his doubt on the genuineness and authenticity of the certificates, photocopies whereof have been filed by means of Crl. M.A. No, 225/2009. Raja Abdul Ghafoor, learned ASC has supported the judgments of learned Trial and Appellate Courts, lt is argued that Rizwan Kayani was also a young person who was killed in a brutal and callous manner while he was making some purchase before Aftaari in the month of Ramazan and, therefore, in absence of any mitigating circumstances the sentence awarded by the learned Trial and Appellate Courts may be kept intact as it would be in the interest of justice.
6. We have carefully examined the respective contentions as agitated on behalf of appellant, for the State and for complainant in the light of entire record and perused the judgment of learned Trial and Appellate Courts carefully. Let we mention here at the outset that factum of age was never disputed before the police and more so no objection whatsoever was raised during the trial and besides that the question of age was never agitated before the High Court and no such ground was even incorporated in the memo, of appeal. Learned counsel was asked pointedly that why objection was not raised before learned Trial and Appellate Courts but no satisfactory answer could be given except that the statement of appellant got recorded under Section 342, Cr.P.C, wherein his age has been mentioned as 20 years which should have been taken into consideration by the learned Trial and Appellate Courts irrespective of the fact whether the point of age was urged or otherwise? We have perused the statement of appellant got recorded under Section 342, Cr.P.C, wherein the age of appellant has been mentioned as 22 years which was subsequently converted into 20 years by interpolation, responsibility whereof could not be fixed that by whom this interpolation was made. Even for the sake of argument if it is admitted that the appellant was 20 years of age even, then he could not be equated to that of a child and as such no benefit under Section 2(b) and Section 12 of the Juvenile Justice System Ordinance, 2000 could be extended in favour of appellant, lt may not be out of place to mention here that generally the Trial Court mentions the age of accused at the time of recording statement under Section 342, Cr.P.C, at random and in routine manner on the basis of appearance and thus it cannot be considered as gospel truth to determine the quantum'of sentence, ln this regard we are fortified by the dictum laid down in case titled Muhammad Saleern v. The State (2001 SCM R 536). Learned ASC on behalf of appellant has laid much stress on the factum of "tender age" in oblivion of the fact that tender age itself would not mean that an accused should not be awarded death penalty, ln this regard reference' can be made to the law laid down in the following cases>-- ' Din Muhammad v. The State (1985 SCM R 625), Abdullah v. Shaukat (1988 SCM R 370), Muhammad Hanif v. The State (1994 SCM R 1152); Hukamdin v. The State (1994 SCM R 2134), Noor Muhammad v.
The State (1988 SCM R 1640), Mushtaq Ahmed v. The State (1988 SCM R 165) and Muhammad Siddiq v. The State (PLD sic SC 1079) Zulfiqar v. State (1995 SCM R 1668).
7: There is no cavil to the proposition that "youth of accused alone does not constitute such an extenuating circumstance as .would justify imposition of lesser penalty prescribed by law"
Harnamun v. Emperor (AIR 1928 Lah. 555), Maghar Singh and others v. Emperor (AIR 1941 Lah. 220), The State v. Tasiruddin (PLD 1962 Dacca 46), Sher Hassan v. The State (PLD 1959 SC (Pak) 460), Ghulam Hyderv. The State (1970 P.Cr.L.J. 1052).
8. We have not persuaded that the penalty of death does not commensurate with the gravity of offence as it was not a premeditated murder and element of intention is lacking which is sine qua none for imposition of the capital punishment for the reason that three successive blows were inflicted by the appellant on the chest of the deceased and no other evidence is required to establish the factum of intention, lt may be kept in view that "intention does not imply or assume the existence of some previous design or fore thought, intention is proved from the acts of accused and the circumstances of the case Munawar Ali v. The State (2001 SCMR614).
9. This is not the first occasion when the question of mitigating circumstances is being examined but on various different occasions it was dilated upon and discussed, lt was held while discussing the question of mitigating circumstances in case titled Zafar v. State (PLJ 2000 SC 408) as follows:-- "lt has to be kept in mind while considering such reason as mitigating circumstances that the principle of proportionality is not lost sight of. If a person is slapped, the aggrieved person or a close relative of the aggrieved person does not get the right to come back after a week duly armed with the specific intention of killing and commit a cold-blooded murder. The person who had slapped him a week back cannot take a plea in the trial for reduction of sentence that this was natural reaction to the slap given to him or to his close relative a week back by the deceased.
There should be at least some semblance of proportion between the injury or insult given by the deceased and the "reaction" by the accused in killing the deceased and then the question of time lag between the so-called revocation and the reaction in the form of cold-blooded murder is also relevant. There is always a distinction of degree between a fight which leads to a murder on the spur of the moment or within a short time and a case where there is considerable time lag between the so-called provocation and the so-called re-action in the form of murder, ln the first category of cases, perhaps it might be possible to advance the argument that a case for lesser sentence is made out subject to proportionality between "provocation" and "reaction" but in the other category of cases, without there being other mitigating circumstances, no case would be made out for awarding the lesser sentences." "9. The other submission which was also advanced with great emphasis by the learned counsel for the appellant was that the appellants were young and, therefore, it was not a case for awarding capital sentence. We also find no merit in the submission. According to the learned counsel, appellant Zafar was 23 years and appellant Muhammad Nawaz was 24 years of age at the time of occurrence. The two appellants were of reasonably mature age. They cannot be described as of "tender ages". ln our view, their ages at the time of occurrence is no ground for reduction or alteration of the sentence to life imprisonment." (Emphasis provided).
' On the touch stone of the criterion as mentioned in case of Zafar v. State (supra), the case in- hand has been examined and we find no substance or the submission made by Malik Waheed Anjum, learned ASC or behalf of appellant, that he was subjected to maltreatment by Rizwan Kayani which may be considered as mitigating circumstances. The appellant was in our considered view reasonably matured person by no stretch of imagination can be equated to that of a minor or tender age hence the question of any reduction or alteration if death sentence to that of life imprisonment does not arise.
10.We have also not persuaded to agree with Malik Waheed Anjum, learned ASC that defence plea was never kept in juxtaposition by the learned Trial and Appellate Court as the said version in negated by record of the Trial Court by whom the defence version has been examined with diligent application of mind in the judgment impugned, relevant portion whereof is reproduced hereinabove for ready reference:-- "The defence plea agitated by the learned defence counsel is that Rizwan Kiani deceased wanted to commit sodomy with Faisal Aleem accused and first of all, Rizwan Kiani deceased had attacked upon Faisal Aleem accused and the exercising the right of self-defence caused injuries to the deceased with Churri. A critical analysis of the defence plea if placed in juxtaposition to the prosecution version would show that it is neither reasonable nor plausible and the same falls short of reality, lt is in the evidence produced by the prosecution that both the parties belong to one Mohallah and the place of occurrence is a bazaar surrounded by the shops and Faisal Aleem accused equipped with Churri along with his co- accused Sami Ullah and Abid Hussain came in the land which is near to the house of Rizwan Kiani deceased and how it is possible that Rizwan Kiani in a over crowded place will force Faisal Aleem accused for committing sodomy with him. ln addition to it, the leajmed counsel for the complainant has submitted that the place of occurrence is admitted between the parties as the blood-stained earth was taken from the place of occurrence and all the three accused who are friends inter se and they made a premeditated attack and after receiving the first Churri blow by Faisal Aleem accused, the deceased was overpowered by the remaining two accused who held the deceased by his arms and render him helpless to defend himself.
(36) lt was submitted by the learned counsel for the complainant that on putting question by the learned defence counsel about the first version of Faisal Aleem accused, Muhammad Ramzan (PW-13) replied that: "lt is correct that Faisal Aleem accused took the version before me that few days earlier he had a quarrel with Rizwan Kiani, due to that reason he had given three/four Churri blows to deceased Rizwan Kiani, who was seriously injured and that Ahid Hussain and Sami Ullah also reached at the spot."
(37) *The learned counsel for the complainant referring the aforesaid first version of Faisal Aleem accused has submitted that Faisal Aleem accused has admitted the motive for the occurrence and the defence plea taken by the defence falls to the ground.
11.The learned Division Bench of Lahore High Court, Lahore has also examined the defence version by keeping it in juxtaposition with that of prosecution case in the judgment impugned, relevant portion whereof is also reproduced hereinbelow for ready reference:-- "(17) On the contrary, the version of the appellant pleaded in his statement under Section 342, Cr.P.C, is highly improbable and preposterous. The occurrence took place in the Bazar at about 4.30 p.m. in the month of Ramzan on 11.2.1995. The time of Iftari was close by. lt would be highly improbable that the deceased while accosting the appellant in the Bazar at that time would compel him to submit to his unnatural desire. The appellant states that he picked a chhuri from a ^akora Rehri, meaning thereby that eatable vendors were also standing nearby when the deceased allegedly made the said demands on the appellant. This version does not appeal to; any reason and rather borders on absurdity and as such is not believable.
'(18)' lt is true that there was no fervid enmity between appellant and the deceased. They had only ran into a brawl 2 days ago and the insult rankled ir the mind of the appellant and when decease accosted the appellant the latter attached the deceased to avenge his insult in the earlier incident The occurrence is thus not a sudden flare up but has its origin in the brawl that preceded two days before The appellant inflicted three successive chhuri blows hitting the deceased on very vital parts. A person intends the natural consequence of his act. The infliction of three chhuri blows by the appellant On vital part of the deceased leads to the irresistible conclusion that he intended to cause his death. The youthful indiscretion or dander for causing three chhuri blows on vital part of the deceased cannot constitute a mitigating circumstance for awarding - lesser penalty, therefore, we are of the opinion that the appellant had been rightly awarded death penalty. His appeal is dismissed. The murder reference is answered in the affirmative.".
' No other argument whatsoever was made. Certificate as furnished on behalf of appellant cannot be considered as admittedly the appellant was more than 20 years of age and no objection qua factum of age whatsoever was raised before police, learned Trial Court as well as the High Court as mentioned hereinabove. Even no such point was incorporated in the memorandum of appeal preferred before the High Court which appears to be an after-thought which could not be substantiated and raised to frustrate the judgments of learned Trial and Appellate Courts which being well-based does not warrant interference, lt is worth mentioning that certificate issued by Directorate General of Registration, Ministry of Interior would be of no use to the. appellant wherein a futile attempt has been made to show the date of birth of appellant as 6.5.1977 to make him a 'child' for taking benefit as provided in Section 2(b) of the Juvenile Justice System Ordinance, 2000.
The contents of certificate would show that the.date of birth of Faisal Aleem (appellant) has been shown 6.5.1977 while his brother was born on 4.1.1978 and another brother on 2.11.f978 which does not Appeal to reason and logic and appears to be incorrect.
12.The upshot of the above-mentioned discussion is that no benefit can be extended in favour of appellant for tender age which does not constitute mitigating circumstances, Rizwan Kayani was killed in a brutal and callous manner and hence the question of any leniency does not arise. The Trial Court has examined the entire evidence with diligent application of mind, determination whereof has been kept intact by the learned Division Bench of Lahore High Court, Lahore winch being well-based does not warrant interference. The appeal being devoid of merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.