1. MUHAMMAD AFZAL ZULLAH, J.-This appeal is directed against the judgment dated 23-6-1976 of the Lahore High Court whereby appellant's appeal from conviction under section 302, P. P. C. For the murder of Muhammad Rashid was dismissed and death sentence awarded to him, was confirmed.
2. The appellant and Muhammad Rashid deceased were studying in the same school. The appellant was in the 7th Class while the deceased was in the 4th class. On 6th of October, 1973, they and other students were returning from the school. Muhammad Rafiq and Muhammad Zamir P. Ws.
3. Were also with them. The appellant on the one side and the deceased together with the two P. Ws.
4. On the other had an altercation and the two sides abused each other. The appellant, according to the prosecution case then threatened the deceased and his two companions with dire consequences, ran off towards his nearby house, brought out a gun and after emerging from behind a stock of bajra while standing on a banna, fired at his opponents. Muhammad Rashid was hit and he fell down. The occurrence was witnessed by the two companions of Rashid as also Said his father and another witness Muhammad Younas. Muhammad Rashid later on died.
5. At the trial, the appellant took the plea of denial. The ocular evidence was, however, believed and he was convicted for murder and sentenced to death. On appeal, a Division Bench armed the finding of guilt and while maintaining the sentence of death, confirmed it. This Court on 11-2-1977 after scrutiny of the evidence refused to grant leave in so far as the finding of guilt under section 302, P. P. C. Is concerned. Leave, however was granted to consider the question of sentence with the following observa--tions:- "On the question of sentence, it appears that the Courts below have not given due consideration to the age of the petitioner. The school certificate produced on his behalf indicates that he was only 14 years and 9 months old at the time of occurrence. Prima facie there is no reason to reject this document in the absence of any proof to the contrary. The trial Judge's observation that the petitioner appeared "in the neighborhood of 18 years", fifteen months after the occurrence is not sufficient to displace the evidential value of the certificate. If the petitioner was less than 15 years of age at the time of occurrence then it requires consideration whether the extreme penalty of death should be exacted from him."
6. We have heard the learned counsel for the appellant in support of this appeal. There was no previous enmity between the parties. The only cause for the occurrence was the usual playful attitude of school fellows during which the appellant teased the three boys including the deceased of the complainant party while the latter in return gave him abuses. Zamir P. W explained that the act of teasing on the part of the appellant was: he kissed Muhammad Rashid deceased and snatched the satchel of Zamir. The allegation of kissing seems to be an improvement because in answer to a similar question before the committing Court, he had not mentioned this fact. The remaining aspect of teasing, namely, snatching of the satchel of Zamir by the appellant, by itself even if be treated as true and unprovoked, would not have led to retaliatory abuses by the three boys on the deceased side nor to such a serious reaction from the appellant that he would have gone to his house so as to bring the licensed gun of his father and would shoot at all the three of them. It appears that there was something more to what has been disclosed from the prosecution side. It is necessary to point out in this behalf that Zamir and Rafiq P. Ws. Were of the same age group as the appellant. In fact Muhammad Rafiq was his class-fellow Zamir might also have been his class-fellow as his age would show though there is nothing in his statement to indicate the class he was studying in. It is strange that the school teacher who appeared as P. W. Identified all others as school boys except Zamir and the defence plea was that he was even a student studying in the school. In this background, if the age of the appellant as would be presently shown was also between 14 and 15 years, a serious possibility cannot be excluded that the complainant side, in addition to the abuses, said or did something which gave rise to some provocation to the appellant. And it cannot be ignored that as against the appellant in the above context, his adversaries were three in numbers. It is also in evidence that the school from where both the sides were returning is at a distance of less than a mile from the appellant's village. One of the witnesses stated that it is only at fifteen minutes walk. If the incident of teasing/abusing as alleged by the prosecution, or any other incident as discussed above, involving something more happened during this time, the appellant might not have been able to shed off the emotional excitement created by these antecedent circumstances. No doubt, as observed by the learned trial Court, there is no evidence that the appellant was gravely provoked, but reasonable possibility cannot be excluded in the afore-analysed, circumstances that was acting under some amount of provocation other than grave. That very act of first running away from the three adversaries an then firing at them one shot, does not negate this assumption, it rather part affirms it.
7. He had enough time while going to his house and returning back to the banns from there he fired at his adversaries, therefore, the provocation can not be deemed as sudden. Moreover, as all the ingredients of Exception It section 300, P. P. C. Have not been established (because the provocation was neither sudden nor grave) the appellant cannot be allowed the benefit in the reduction of offence; but due benefit of the provocation which was short of grave and sudden can be extended to him in matter of sentence. The learned trial Judge while considering this aspect of the matter, rightly refused to reduce the offence from section 302, P. P. C. To section 304, Part 1, P. P. C., but on question of sentence, it seems he was under an impression that the abuses of whatever type cannot give rise to any provocation. This general view about abuses, with respect, it is pointed out, is not correct. It depends amongst other circumstances upon the abuse; the incident in which it is uttered; and, the parties thereto: In this case the complainant side has not disclosed as to what was the language of the abuses. It is thus not possible to give a finding that they were of innocuous type and the view can reasonably be taken that on account of all the circumstances leading up to the firing (details of some of which have not been disclosed by the eye-witness) the appellant a young boy, was under some amount of provoca--tion for which the sentence could be reduced.
8. On the question of age also, it needs to be pointed out with respect that the learned Judges of the High Court did not examine the evidence on the point. They only relied on the assumptions made by the learned trial court in this behalf. Had it been otherwise, they might have discovered a serious misreading of the evidence. According to the learned trial Judge, the school certificate produced by the defence indicated that the age of the appellant was 14 years (it was 14 years and 9 months).
9. It was also observed by the learned Judge that the said certificate was not proved "either by producing the Headmaster who issued it or through other documentary c evidence". It was ignored that Mushtaq Ahmad P. W. 10 a school teacher who taught the 7th Mass in which the appellant and Muhammad Rafi P. W. Used to study proved the aforementioned certificate (Exh. D/1) in cross examination). Barring this impression that the certificate had not been proved, the findings on the question of age might have been different. Be that as it may, as pointed out in the Leave Granting order, the learned Judge made an assessment of the age of the appellant after about 18 month of the occurrence. The observation made by the learned trial Judge also is in such a wide form- "in the neighborhood of 18 years" that further margin can legitimately be allowed so as to make it consistent with the age mentioned in the certificate. This is not all Muhammad Rafiq P. W. D who at the relevant time was a class-fellow of the appellant, when appeared in the Court gave his age as 14 years. The same is the age given by Zamir P. W. The age given by the appellant at the time of the examination under section 342, Cr. P. C., namely 14 years, does not seem to be an extra exaggera-- tion on the accused side when compared to the age of his class-mate. Thus there is no convincing material on record to show that the appellant was not 14 years and 9 months of age at the time of occurrence. He was facing three of his adversaries two of whom were in the same age group. The firing by him was not specifically at Muhammad Rashid. The eye--witnesses admitted this much that the appellant fired at all of them. It was ironically the selection of destiny that the youngest became the direct victim and one of the elders had received only some pellets hit on his satchel, but did not suffer any hurt. It is not, therefore, a case of a callous selection of the youngest adversary by the appellant.
10. The cumulative effect of all the four analysed circumstances together, with the fact that he fired one shot is enough to give benefit to the appellant in so far as the sentence is concerned. The learned trial Judge and the learned Judges in the High Court did not devote attention to these aspects of the question of sentence. We accordingly allow this appeal and while maintaining the conviction under section 302, P. P. C. Reduce the sentence of the appellant to imprisonment for life.
11. We also direct that the appellant shall pay Rs. 10,000 to the heirs of the deceased as compensation under section 544-A, Cr. P. C. The process warrants for the recovery of the said amount shall issue immediately. In default of voluntary payment of recovery of the compensation, as provided in section 544-A Cr. P. C., the appellant shall suffer rigorous imprisonment for six months. In the circumstances of the case, the appellant shall be allowed the benefit of section 382-B of the Cr. P.
12. C. For calculation of substantive period of rigorous imprisonment (i. e. Substantive sentence of imprisonment for life). 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.