' This appeal is directed against the judgment, dated 15-2-1994 passed by Hakim Syed Akhtar Irshad, Sessions Judge, Narowal whereby Naseer Ahmad appellant (aged 17 years at the time of occurrence) was convicted under section 302(b), P.P.C. For committing Qatl-i-Amd of Nazir Ahmad (aged about 45 years) and was sentenced to imprisonment for life and also directed to pay Rs,1,00,000 as compensation to the L.Rs, of the deceased and in default to undergo R.I. For 2 years.
Benefit under section 382-B, Cr.P.C. Was extended to him.
2. The prosecution case as reported by Rustam Ali (P.W.7) was that on 7-6-1992 at 3.00 p.m. Naseer Ahmad appellant inflicted a Chhuri blow in the left flank of the deceased who was present within the area of Dinpur Khurd, Police Station Shakargarh, District Narowal. The motive was stated to be that one year prior to the occurrence, one Zubair relation of Rustam complainant and Nadeem brother of Nazir Ahmad deceased had quarrel in-between themselves but the complainant and his son Zulfiqar got them separated. Out of the grievance, Naseer appellant on the next day i,e, 7-6- 1992 inflicted a Chhuri blow on the person of the deceased.
3. The matter was reported to the police by Rustam Ali (P.W.7) vide his statement Exh.PA on the same day which was recorded at 4-00 p.m. By Muhammad Iqbal, A.S.I. (P.W.9), on the basis whereof formal F.I.R. Exh.PA/1 was registered at Police Station Shakargarh.
4. Muhammad Iqbal, A.S.I. (P.W.9) after recording the statement Exh.PA, reached the hospital at about 4-45 p.m. Nazir injured was alive and after obtaining formal permission he recorded the statement of Nazir in presence of the witnesses and the doctor at about 5-00 p.m. The doctor of Civil Hospital, Sheikhupura directed the complainant to take the injured Nazir to Mayo Hospital, Lahore for his specialised treatment but unfortunately the injured while on his way to Mayo Hospital succumbed to the injury at 9-30 or 10-00 p.m. On the bridge of River Ravi.
5. Dr. Javed Iqbal (P.W.5) from Civil Hospital, Sheikhupura medically examined Nazir Ahmad on 7-6- 1992 at 4-00 p.m. And noted the following injury on his person:-- "A stab wound 3 c.m. x 1 c.m. Which was profusely bleeding in the left hipochandrim region (left side of the upper abdomen) was present in the mix-axillary line, 3-1/2 inches above the iliac.Crest."
' The injury had been caused with a sharp-pointed weapon within a duration of one hour. As noted above, Nazir Ahmad expired subsequently, therefore, on 8-6-1992 at 10-00 a.m. His autopsy was conducted. The injury as received and described by the Medical Officer was stated to be sufficient to cause death in the ordinary course of nature.
6. The prosecution in order to prove its case examined 10 P.Ws. Out of them Rustam Ali (P.W.7) and Sher Ali (P.W.8) furnished the eye-witness account. Both the witnesses stated that within their sight, Naseer appellant inflicted Chhuri blow on the person of Nazir Ahmad deceased. Both the P. Ws.
Made consistent statements without any significant contradiction. Zulfiqar Ali (P.W.6) stated about the previous dispute between the relations of the complainant and the deceased as noted above.
7. Initially the investigation was conducted by Muhammad Iqbal, A.S.I. (P.W.9). However, after the death of Nazir Ahmad, the investigation was taken up by Muhammad Asghar, S.I. (P.W.10) who after conducting the investigation and fulfilling the formalities found the appellant to be guilty and submitted challan against him who was tried, convicted . And sentenced as detailed above.
8. After close of the prosecution case, the appellant was examined under section 342, Cr.P.C. The appellant although admitted the quarrel between Faisal and Zubair but added that he got them separated, therefore, there was no grievance or grouse against Nazir deceased. Lie denied the allegation that he cause any injury on the person of the deceased. Further, he clarified the same by stating that it appears that the deceased died on account of the negligence of the Medical Officer and relatives of the deceased which materially contributed to his death. In answer to question as to why the case was registered against him, he stated that the P Ws. Are professional and stock witnesses. In fact they wanted to extract money from his parents, therefore, falsely implicated him.
It is significant to that he stated in his statement that he was teenager. In his statement in Urdu, he described himself as minor .
9. Learned counsel for the appellant in the first instance made an attempt to argue that the case in fact fell under section 302(c), P.P.C., therefore, imposition of sentence of imprisonment for life was unjust and not sustainable. However, after arguing the matter for some time, he submitted with vehemence that the learned trial Judge has committed illegality by recording the conviction under section 302, P.P.C. According to the learned counsel the appellant was minor and his case was covered by section 306, P.P.C., therefore, the conviction at the best could be recorded under section 308, P.P.C. Which prescribes the sentence of Diyat or imprisonment up to 14 years.
10. Learned counsel for the complainant assisted by learned counsel for State refuted the contention by raising the plea that no specific defence on the ground of minority was taken up before the learned trial Court and no documentary evidence was furnished in that behalf. Learned counsel for the appellant had produced copy of school leaving certificate of the appellant and prayed that the same may be placed on the record according to which the appellant was less than 18 years of age. The prayer was resisted by learned counsel for the complainant as the same amounted to production of additional. Evidence which in the circumstances of the case could not be permitted. Learned counsel for the appellant, therefore, did not insist on, placing the copy on the file. He further argued that there is ample material available on the record to show that the appellant was a minor at the time of occurrence which is irrefutable and can safely be relied upon.
Learned counsel, therefore. Did not adhere to his previous contention for recording the conviction under section 302. P.P.C. But prayed that the case was squarely covered by section 306, P.P.C. Read with section 308, P.P,C., therefore, the sentence of imprisonment for life as awarded by the learned trial Judge is absolutely illegal and not warranted by law.
11. I have gone through the record and the evidence with the assistance of learned counsel for the parties. To start with framing of the charge by the learned trial Judge, the age of the appellant had been mentioned as 17 years. Thereafter, when the appellant was examined under section 342, Cr.P.C., again his age was given as 17 years. Last of all, when the appellant was making reply to the queries made in the aforesaid question, he specifically stated that he was teen-ager and in Urdu version of the record, he mentioned himself as a minor (ti t:C). Although the age at the time of recording statement under section 342, Cr.P.C. Is given by the accused person but in case it is found to be visibly incorrect, the learned trial Judge is not to accept the same readily but has to record his note of dissent to the given age. The age of the appellant at the time of framing the charge is recorded by the learned trial Judge and he is supposed to record the same on the basis of the record available to him. There his age was mentioned as 17 years. Apart from the two aforestated facts, the appellant specifically pleaded to be teen-ager or When he had pleaded as such then it was incumbent on the prosecution to have taken note of the same and should have contradicted if the same was incorrect or had been falsely given. Nothing in that behalf was done.
12. It is to be noted that after enactment of Qisas and Diyat Ordinance, the age of the accused person has attained specific importance because if an accused is adult within the meaning of section 299(a), P.P.C. i,e, he is more than 18 years of age then the offence of Qatl-i-Amd committed by him is covered by three components of section 302, P.P.C, but if the offender has not attained the age of 18 years, then offence of Qatl-i-Amd A committed by him is not liable to Qisas as mandated by section 306(a), P.P.C. When section 306, P.P.C. Is read together with section 308, P.P.C., it turns out that when an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306, P.P.C., he shall be liable to Diyat. This section, however, has been qualified by three provisos. The second proviso lays down that where at the time of committing. Qatl-i-Amd, the offender being a minor had attained sufficient maturity and able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to 14 years as Tazir. In view of these two sections, it is abundantly clear that the appellant who was aged about 17 years' at the time of occurrence and claimed himself to be minor which remains uncontroverted, conviction cannot be recorded under any part of section 302, P.P.C. Therefore, the appellant's conviction under section 302, P.P.C. Along with sentence awarded by the learned trial Judge is set aside being violation and in contravention of section 306 read with section 308, P. P . C . The appellant, however, is liable to be convicted under section 308, P.P.C. Accordingly, he is convicted under section 308, P.P.C.
13. Coming to the question of sentence, there is no ambiguity with regard to payment of Diyat. The offender if minor has to pay Diyat to the L.Rs, of the deceased. However, the question regarding quantum of imprisonment requires determination. The maximum imprisonment prescribed is 14 years R.I, which of-course is qualified with the condition that the offender should have Attained sufficient maturity to realize the consequences of his act, According to the appellant himself, he was aged about 17 years at the time of occurrence, so he was nearing the adulthood. Nothing has been brought on the record to show or even indicate that the appellant had not attained sufficient maturity to realise or understand the consequence of his act. On the contrary as per prosecution case, there was a previous dispute in-between the parties and the murder (Qatl-i-Amd) was committed , as a sequel to the previous occurrence. The appellant, therefore, committed- the offence backed by mens rea in his mind. No mitigating or extenuating circumstance is available to impose any lesser sentence than the sentence prescribed by law. I am, therefore, of the view that the appellant is liable to be awarded the sentence of 14 years' R.I,
14. The nutshell of the above discussion is that the appeal is disposed of with the modification that the conviction of the appellant under section 302, P.P.C. And the sentence awarded thereunder by the learned trial Court is set aside. However, the appellant is convicted under section 308, P.P.C. And sentenced to pay Diyat to the L.Rs, of the deceased which according to the prevailing rate comes to Rs,2,51,625.40 to be paid to the L.Rs, of the deceased. Unless the same is paid the appellant will remain confined in jail as laid down by the law. He will also undergo R.I. For 14 years. However, benefit under section 382-B, Cr.P.C, will be extended to him.
15. Criminal Revision No,127 of 1994 fails and is hereby dismissed.