' SYED IFTIKHAR HUSSAIN SHAH, J.---Zafar Hussain, who. Is complainant of case F.I.R. No, 368 dated 22-7-1968 registered under sections 302/34 PPC at Police Station, City Ahmedpur East District Bahawalpur, has preferred this appeal under section 417 (2-A), Cr.P.C. Against the acquittal of Ayaz Ahmed-respondent from the offence under section 302/34, P.P.C, by the learned Additional Sessions Judge, Hasilpur Camp at Bahawalpur vide judgment dated 13-7-2000.
2. Ayaz Ahmed alias Kaka respondent along with his co-accused Abdul Wajid was tried under sections 302/34, P.P.C. For committing intentional murder of Pervaiz Akhtar. Abdul Wajid co- accused was acquitted whereas Ayaz Ahmed, respondent was convicted under section 308, P.P.C.
And was sentenced to diyat of Rs, 2,70,493 and R.I. Of 14 years as tazeer. He was further directed to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. And in default thereof to undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
3. Learned counsel for the appellant has contended that the prosecution has fully established the guilt of the respondent beyond any shadow of doubt but the learned trial Court instead of convicting the respondent Ayez Ahmed under section 302(b), P.P.C. Has convicted him under section 308, P.P.C. Erroneously on the basis of his, alleged minority based, on birth certificate (Exh.DC/1). When an offender is found guilty of "Qatl-e-amd" then he is always liable to be convicted under section 302, P.P.C. And not under section 308, P.P.C. The respondent had not produced any cogent evidence regarding his minority during the trial. He produced, copy of the register of birth entries Exh.DC/1. According to which he was born on 13-2-1981. The learned trial Court has blindly relied on the said document and considered him juvenile and has illegally convicted him under section 308, P.P.C. Instead of section 302, P.P.C. The respondent No,1 is liable to be convicted under section 302, P.P.C. He be convicted accordingly. Learned counsel for the appellant has relied upon Iftikhar ul Hassan v. Israr Bashir and another (PLD 2007 SC 111), Ghulam Murtaza v. The State (2004 SCMR 4), Samiullah and another v. Jamil Ahmed and another (2008 SCMR 1623), Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), Muhammad Akram v. The State (2003 SCMR 855), Ghulam Haider v. The State (2010 MLD 1535), Muhammad Saleem v. The State (PLD 2003 SC' 512), Khalil uz Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885) and Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203).
4. On the other hand, learned counsel for the respondent No,1 Ayaz Ahmed has contended that the respondent was below the age of 18 years at the time of commission of the intentional murder of Pervaiz Akhtar therefore, he has rightly been sentenced under section 308, P.P.C. He has already undergone the sentence of imprisonment and has also deposited the amount of diyat and he cannot be vexed twice for the same offence. The learned trial Court has rightly relied upon the birth entries Exh.DC/1 and has rightly convicted the respondent under section 308, P.P.C. The respondent has deposited a sum of Rs,2,70,493 as diyat money and has also withdrawn Criminal Appeal No, 94 of 2000 (BWP). Therefore, the matter cannot be reopened at this stage. Learned counsel for respondent No,1 has relied on Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758).
5. We have heard the learned counsel for the appellant as well as the respondent and learned D.P.- G. And have also perused the record very minutely.
6. On 22-7-1998 at about 9-30 a.m. When Pervaiz Akhtar deceased along with his brother Zafar Hussain was going to their shop, Ayaz Ahmed respondent and Abdul Wajid his maternal uncle co- accused (since acquitted) came in front of Sapna Cloth House Kanaun Road, Mohallah Noor Shah Bukhari where Abdul Wajid raised lalkara and Ayaz Ahmed respondent gave khanjar blows on the person of Pervaiz Akhtar, who succumbed to the injuries on his way to the-hospital.
7. The prosecution has examined Zafar Hussain (P.W.5) (complainant), Muhammad Naseem (P.W.6) and Allaha Bakhsh (P. W.10) as eye-witnesses of the occurrence, Dr. Rana lftikhar (P.W.8) furnished the medical account. P. W . 12 Sh. Abdul Hameed Inspector conducted the investigation of this case and the remaining witnesses are almost the formal witnesses.
8. Learned trial Court after the conclusion of the trial and hearing the parties has observed in paragraph 26 of the judgment that after thorough scrutiny of the record, the Court is satisfied that prosecution has fully proved beyond reasonable doubt that accused Ayyaz Ahmed alias Kaka committed Qatl-e-amd of Pervaiz Akhtar deceased. So Ayaz Ahmed alias Kaka is held guilty of offence of Qatle-amd. It was further observed that according to the defence version, Ayaz Ahmed alias Kaka was minor at the time of occurrence. Therefore, he is not liable to be convicted under section 302, P.P.C.
9. In paragraph No, 28 of the judgment it has been mentioned that there is nothing on the record to show that Ayyaz Ahmed alias Kaka has not attained the maturity. Record shows that although he has not attained the statutory age of majority yet he has attained sufficient maturity, so as to realize the consequences of his act. Therefore, the case of Ayyaz Ahmed alias Kaka falls within the second proviso to section 308, P.P.C. And convicted him accordingly and sentenced him to diyat of Rs,2,70,493 and R.I. Of 14 years as tazeer.
10. The Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Akram v. The State" (2003 SCMR 855) has held that provisions of sections 306, 307 and 308, P.P.C. Would only attract in the case of Qatl-e-Amd liable..To Qisas under section 302(a), P.P.C. And not in the cases in which sentence for Qatl-e-Amd had been awarded as Tazir under section 302(b) & (c), P. P. C .
11. In the instant case the accused-respondent No,1/offender was not liable to Qatl-e-Amd under section 302(a), P.P.C. Therefore, the provisions of section 308 P.P.C. Were not attracted. In the case titled "Samiullah v. Jamil Ahmed and another" (2008 SCMR 1623) it was observed by the August Court that minute study of section 308, P.P.C. Reveals that it attracts only in the case liable to "Qisas" in which by virtue of provisions of sections 306 and P.P.C. The punishment of "Qisas" cannot be imposed or enforced and not in 'the cases in which punishment is awarded as "Ta'zir. In the case titled Ghulam Murtaza v. The State (2004 SCMR 4), the august Supreme Court has clearly held that the provisions of sections 306, 307 and P.P.C. Would only attract in the cases of Qatl-e-Amd liable to Qisas under section 302(a), P.P.C.
12. The sole question for determination in the present appeal relates to the scope of section 308, P.P.C. In the case titled "Iftikhar ul Hassan v. Israr Bashir and another" (PLD 2007 SC 111), it has been observed by the August Court that minor offender of Qatl-e-Amd may in case of punishment of Ta'zir, avail the benefit of minority in the matter of sentence under section 302(b), P.P.C. But cannot claim the benefit of section 308 P.P.C. In the case titled "Muhammad Aslant and others v. The State and another" (PLD 2009 SC 777) the Hon'ble Supreme Court has observed that if a convict, wishes to avoid death on account of being less than 18 years of age, then the onus would be on him to prove his minority for the purpose. Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the courts at the fag end of the trials or at the appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner. The Hon'ble Supreme Court further observed that the Court would have ordinarily remanded the matter to the trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh.
13. Coming to the present case the respondent No,1/convict had not taken the plea of his minority during the trial. He has only produced the copy of register of birth entries Exh.DC/1 in his defence and relying on the same, the learned trial Court treated him as minor and convicted him under section 308, P.P.C. Vide impugned judgment dated 13-7-2000. The occurrence in this case had taken place on 22-71998 and the Juvenile Justice System Ordinance, 2000 was promulgated on 1- 7-2000 and under section 4(4) of the said Act, on commencement of this Ordinance, all cases pending before trial Court in which a child is accused of an offence shall stand transferred to the Juvenile Court having jurisdiction.
14. The Juvenile Courts came into being when the trial of the respondent was in progress and when the convict produced a copy of register of birth entries claiming himself to be a minor then it was the duty of the learned trial Court to get the age of the convict ascertained in accordance with the provisions of Juvenile Justice System Ordinance, 2000 and should have provided an opportunity to the prosecution to rebut his claim but the learned trial Court neither observed the formalities contained in the Juvenile Justice System Ordinance, 2000 nor provided any opportunity to the prosecution to rebut the claim of the convict/respondent No,1.
15. The plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same. Whenever such a question of age is raised or arises at the trial, the Courts should not deal with the same in a cursory or in a slipshod manner but must proceed to hold an inquiry into the matter as commanded by the provisions of section 7 of the Juvenile Justice System 'Ordinance including medical examination for the purpose from a duly constituted Medical Board.
16. As observed earlier the learned trial Court has neither ascertained the question of minority of respondent No,1 in accordance with law nor has provided -an opportunity to the prosecution to rebut the claim of respondent No,1 and has not proceeded with the case in accordance with the provisions of Juvenile Justice System Ordinance, 2000. Therefore, the remand, of this case is inevitable.
17. Learned counsel for respondent No,1 has alleged that respondent No,1 has already undergone the sentenced, awarded to him by the impugned judgment and has also deposited the amount of diyat before the trial Court. Therefore, his de novo trial will be hit by the provisions of double jeopardy but it is a settled law that when the conviction or acquittal of a person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy and an' appeal or revision is continuous of trial and any alteration of sentence would not amount to double jeopardy.
18. In view of the above discussion, this appeal is hereby accepted. The conviction of respondent No,1 under section 308, P.P.C. Is hereby set aside and the case is remanded to the learned trial Court with the direction to ascertain the claim of minority of respondent No,1 after holding in inquiry strictly in terms of 7 of the Juvenile Justice System Ordinance, 2000. In case the learned trial Court after holding the inquiry comes to the conclusion that accused was juvenile at the time of occurrence, will refer the matter to Juvenile court and if the conclusion is otherwise then the learned trial Court will itself decide the case afresh on the basis of evidence available on record in the light of observations made above.