1. LIAQAT ALI SHAH, J.---Appellant Sardar Hafeez has questioned the judgment of the learned Sessions Judge/Zilla Qazi, Chitral, dated 3-8-2009 vide which the learned Sessions Judge acting as Juvenile Court, has convicted the appellant under section 302, P.P.C. and sentenced him to life imprisonment and compensation of Rs,07,00,000 under section 544-A, Cr.P.C. or in default six months' S.I. The appellant was also convicted for an offence under section 13 Arms Ordinance and sentenced to six months' S.I.
2. The learned counsel for complainant raised preliminary objection that vide order dated 7-7- 2008 the learned trial Court has framed charge against the appellant as a Sessions Judge, wherein his age is recorded as 18/19 years and that it was vide order dated 13-8-2008 that the learned Judge, on the basis of his own observations, deemed it appropriate to determine the age of the appellant in order to ascertain as to whether he was to be tried under Juvenile Justice System Ordinance, 2000. Vide said order M.S. DHQ Hospital, Chitral, was directed to constitute a Medical Board for determination of the age of the appellant; that on 29-8-2008 the learned trial Judge declared him child in terms of section 7 of Juvenile Justice System Ordinance, 2000, as the report of Medical Board was received, wherein the age of the appellant was shown as 17 years. The learned counsel further contended that the said order was questioned before this court through Criminal Revision No,134 of 2008 and a new Board was constituted and that this court had directed the trial Court not to conclude the trial till the examination of the appellant by the second Medical Board.
2. ' This court vide order dated 6-4-2010 had directed the AAG to interact with the concerned authorities to ensure compliance of the order passed in Criminal Revision No, 134 of 2008.
3. Thereafter, vide No,1251/MS/SMB dated Peshawar 25-5-2010, the Chairman Standing Medical Board, Peshawar, conveyed the report of the Medical Board dated 19-5-2010 and according to the said report, the appellant was found to be about 18 years of age.
4. ' The learned counsel for the appellant as well as the learned AAG were asked as to how the learned trial Court has concluded the trial despite the restraining order, both the learned counsel for the appellant as well as the learned AAG submitted that because of the law and order situation, as it was in these days in the area, the order of this court might have not reached the trial Court.
5. 3.We have perused the order sheets of the learned trial Court and could not find anything to suggest that the order of this court passed in Criminal Miscellaneous No, 347 of 2008 in Criminal Revision No, 134 of 2008 was delivered/received by the learned trial Court, vide which the learned trial Court was directed not to conclude the trial before the disposal of the Criminal Revision.
6. ' Anyhow, the appellant was examined by a Standing Medical Board, opinion referred to above, as such we decided to hear the case.
7. 4.The occurrence was reported to the police by Durdana Khan (P.W.26) father of decd Ibadur Rehman on 16-5-2008 at 20-30 hours. His report was taken in the shape of murasila Exh. PA.
8. According to the report, S.H.O. (P.W.17) received information about the occurrence. When he reached the house of complainant, the dead body of decd Ibadur Raman as lying on a cot: His father Durdana Khan (P.W.26) reported that he was present at his home when a boy namely Naeem informed him that some one was quarreling with decd Ibadur Rehman. When he reached the spot, he found that his son was killed by the appellant by firing at him with shotgun.
9. Hameedullah (P.W.1), Sharafuddin (P.W.3), and Zar Murad (P.W.4) are mentioned eye-witnesses of the occurrence. The appellant was arrested on 17-5-2008. On 20-5-2008 he made confession Exh.
10. P.W. 22/2 to 22/5, before (P.W.22) Abdul Qadar, Judicial Magistrate. Post mortem examination report Exh. P.W. 20/1 to Exh. P.W.20/4 shows that there was entry wound on upper left lib, upper teeth, part of tongue, upper maxilla (left), blowing into the cranial cavity with corresponding single exit wound 1 x 1 cm over the skull vertex. Whole maxilla perital bone, left eye orbit were fractured. Brain matter was oozing out of the wound. Left eye was closed externally and erniated (sic.) posteriorly due to multiple fracture of maxillary and orbital bone. According to the opinion of the doctor, the decd died due to direct contact fire-arm injury to the vital organ. Three pellets, one single piece of plastic of cartridge was recovered from the brain tissue. The eye account was furnished by Sharaffuddin (P.W.3), the shotgun i.e, the weapon of defence was taken into possession on 17-5- 2008. The complainant was examined as (P.W.26). The shotgun was produced to the A.S.-I.
11. Muhammad Yaqoob by Sardar Rasheed, father of the appellant. Motive for the offence as emerged from the evidence is that the decd had made abuses about the mother of the appellant.
12. 5.Learned counsel for the appellant at the very outset confined his arguments to the point that as the appellant being juvenile and has committed the offence, as the decd had called names to his mother, therefore, he shall be released on probation in terms of section 11 of Juvenile Justice System Ordinance, 2000.
13. 6.Learned counsel for complainant on the other hand argued that in view of his preliminary objection, the accused shall not be considered as Juvenile and keeping in view the facts and circumstances of the case, he shall be awarded normal penalty of death. Learned AAG, submitted that in view of the two medical reports, it cannot be said that the appellant is not Juvenile.
14. ' We have considered the arguments of the learned counsel for the appellant.
15. 7.Keeping in view the confessional statement of the appellant, the eye account and medical evidence, the case against the appellant have proved, which is not even controverted by the learned counsel for the appellant. As far the objection of the learned counsel for the complainant is concerned, we have death with the same in the preceding para of this judgment. In view of the facts and circumstances of the case, when the appellant first went to his house, took shotgun and return did not find the decd went to the shop of Baig and still he was looking for the decd and when came across the appellant killed him.
16. In view of the above stated circumstances, we were not inclined to release the appellant on probation. The impugned judgment of the learned trial Court needs no interference, both on legal and factual sides. We while dismissing this appeal, maintain the conviction and sentence as recorded by the trial Court under section 302, P.P.C. However, conviction under section 13, A.O. is concerned, the same is set aside because the shotgun has not been recovered from the possession of the appellant rather, it was produced by his father. Benefit of section 382-B, Cr.P.C. is also extended to the appellant.
17. ' As Criminal Appeal No, 399 of 2009 filed by the appellant is dismissed, this Criminal Revision No, 123 of 2009 filed by Durdana Khan for enhancement of sentence of the accused-respondent Sardar Hafeez, is also dismissed.
18. ' Criminal Revision No, 134 of 2008 having become infructuous also stands disposed of.