' ZAFAR PASHA CHAUDHRY, J.--- Shera son of Farid was convicted by Ch. Shabbir Hussain. Learned Additional Sessions Judge, Jhang vide his judgment. Dated 1-6-1994 for Qatl-i-Amd of Gul Sher, whereby, the case F.I.R. No,220 was registered under section 302, P.P.C. On 17-7-1992 with Police Station Mochiwala, District Jhang. He was convicted under section 302, P.P.C. And awarded sentence of death. Murder Reference No,156 of 1994 was therefore, submitted to this Court. The convict also filed Criminal Appeal No,300 of 1994. Both have been taken up together as they arise out of common judgment.
2. The prosecution case in brief as revealed from the statement Exh.P.F. Made by Nazar Muhammad P.W.5 on which the F.I.R. Exh.P.F./1 was registered. Is that on 19-7-1992 at 8-00 a.m., Gul Sher had brought milk on his motorcycle. When he reached near the graveyard he was intercepted and was inflicted a number of blows with knife on his vital parts who succumbed to the injuries. However, Shera appellant managed to escape.
' The motive was stated to be that appellant suspected that Gul Sher had developed illicit liaison with his sister-in-law (brother's wife).
' During the investigation the appellant was found to be guilty and was sent up to face trial under the aforesaid section.
3. The prosecution examined nine witnesses in its support. Dr. Allah Bakhsh conducted the post- mortem examination of the deceased and noted the following injuries on his person:--
(1) A stab wound 2 c.m. x 1 c.m. On front of left chest upper part near the mid line. The wound was deep to thorax cavity.
(2) A stab wound 2.5 c.m. x I c.m. On outer side of left chest lower part, deep to abdominal cavity.
(3) A stab wound 2 c.m. x 1 c.m. On the back side of left side of middle part of abdomen and was deep to abdominal cavity.
(4) An incised wound 2 c.m. x 1 c.m. On back of right shoulder blade and was muscle deep.
(5) A stab wound 2.5 c.m. x 1 c.m. On front of left thigh upper part muscle deep.
(6) An incised wound 1/2 c.m. x 1/2 c.m. On the middle of lower lip.
(7) Five stab wounds in an area of 4-0U c.m. x 1 c.m. All muscle deep on right thigh outer side of its middle part. Corresponding cuts were present on Shalwar and Qauneez.At the seats of injuries Nos.1 to 5 and 7 ' The injuries were found to be ante-mortem and were caused with sharp-edged weapon. The CAM: of death was injury No,1 .
4. Nazar Muhammad complainant P. W.5 and Ghulam Hussain P.W.6 furnished the eye-witness account of the occurrence. Both of the witnesses supported the prosecution case in its entirety.
They were subjected to lengthy cross-examination but nothing substantial could be brought on record to damage the prosecution case. The prosecution case rests on the testimony of eye- witness account, medical evidence given by Dr. Allah Bakhsh P.W.3, evidence of recovery of knife P.4 which was made on 27-7-1992 at the behest of the appellant from cattle shed plus the evidence of motive.
5. After the prosecution evidence was closed the appellant was examined under section 342, Cr.P.C. It was stated that the incident was a blind murder and he had been falsely implicated on account of enmity with the complainant party. However, no evidence in defence was produced nor the appellant appeared as his own witness as envisaged under section 340(2), Cr.P.C. The learned trial Judge on conclusion of the trial, as noted above, convicted and sentenced the appellant to death.
6. The learned counsel for the appellant argued that it was a blind murder which was committed during early hours of the day and the witnesses had not even seen the occurrence. Instead of canvassing his plea any further the learned counsel took up an alternate plea that even if the prosecution case is admitted as such, the learned trial Judge has gravely erred in convicting the appellant under section 302, P.P.C. According to the learned counsel the appellant was minor within the meaning of section 299, P.P.C., therefore, at the best he could be convicted under section 308, P.P.C. Because the relevant ingredients of section 306, P.P.C. Stand fulfilled. In that event the sentence of death could not be imposed on him.
7. To verify the plea raised by the learned counsel we have examined the record. The appellant when examined under section 342, Cr.P.C. On 12-4-1994 gave his age as 18 years. Similarly when the judgment was delivered on 1-6-1994 his age was again recorded as 18 years. The occurrence took place on 19-7-1992 about two years prior to the announcement of judgment, it means that at the time of alleged occurrence the appellant was about 16 years of age. When the appellant gave his age as 16 years at the time of statement, the State or the complainant did not controvert the same.
Similarly, the learned trial Judge did not make any observation that the appellant did not appear to be of the age which was given by him, rather while delivering the judgment he himself has recorded his age as 18 years. We, therefore, are convinced that at the time of alleged occurrence, the appellant was about 16 years of age, therefore, he was not an adult within the meaning of subsection (1) to section 299, P.P.C. And was a minor. Section 306, P.P.C. Laid down that Qatl-i-Amd is not liable to Qisas when the offender is a minor. Section 308, P.P.C. Mandates that if an offender is guilty of Qatl-i-Amd not liable to Qisas under section 306, P.P.C., he shall be liable to Diyat. However, under first proviso to this section i,e, 308, P.P.C., the offender being minor had attained sufficient maturity and was able to realize the consequences of his act, he may also be punished for imprisonment of either description for a term which may extend to 14 years as Ta'zir. This proviso has qualified that the Court having regard to the facts and circumstances of the case in addition to the punishment of Diyat the offender may be punished with imprisonment which may extend, as stated above, to 14 years. In view of the observations made supra we find that the conviction of the appellant under section 302, P.P.C. Is illegal and not maintainable. We, therefore, set aside the same and convict him under section 308, P.P.C. As regards quantum of punishment we are of the view that admittedly the offence was committed to vindicate the family honour, as the appellant, even according to the prosecution, suspected the deceased to have illicit relations with his brother's wife. Vindication of family honour has invariably been treated as an extenuating and mitigating circumstance in favour of an offender. We, therefore, consider that the sentence of award of Diyat has to be imposed as a mandatory sentence prescribed under section 308, P.P.C. Therefore, the appellant is ordered to pay Diyat to the heirs of the deceased Gul Sher which according to the Government Notification comes to Rs,98,743.62.
8. Payment of Diyat alone in our view would not be sufficient to meet the ends of justice, as the appellant being 16 years of age could realize the consequences of his act. He is liable to be punished with imprisonment as well. The appellant was arrested on 24-7-1992 and since then he is continuously in custody, as such has undergone a substantive imprisonment for more than seven years. By adding remissions which must have been granted, the period of imprisonment would be much more. We, therefore, sentence him to imprisonment for the period he has already undergone.
9. The appellant would be released from jail after he pays the aforesaid amount of Diyat or in the alternative he furnished security of the said amount to the satisfaction of learned trial Court/Sessions Judge, Jhang.
10. Appeal stands disposed of in above terms. Sentence of death is not confirmed.