1. ' MUHAMAMD NAWAZ ABBASI, J.---The appellant was convicted under section 302(b), P.P.C. For the charge of murder of Rab Nawaz alias Heera in an occurrence which took place on 16-9-1995 in the area of Police Station Chinot City, District Jhang. The report of the occurrence was lodged by Haq Nawaz, real brother of the deceased wherein it was stated that the appellant being armed with knife while raising Lalkara inflicted successive Churri blows to the deceased on his sensitive part of the body. The motive behind the occurrence as stated in the F.I.R. Was that the appellant was reputed a bad character and a few days prior to occurrence deceased raised objection of his passing through the street in front of his house which was felt insulted by the appellant. In the occurrence deceased had sustained nine injuries on his person and as per opinion expressed by doctor, who conducted post-mortem on the dead body of the deceased, death was the result of stab wounds caused on the chest of the deceased. The remaining injuries were found simple in nature Haq Nawaz (P.W.8) and Qaiser Iqbal (P.W.9) having furnished ocular account of the occurrence supported the prosecution story as set up in the F.I.R. In each material detail and the learned trial Judge at the conclusion of the trial having found the appellant guilty of the charge convicted him vide judgment dated 25-11-1996 under section 302(b), P.P.C. And sentenced him to death with direction to pay compensation of Rs,10,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of non-payment of compensation to suffer imprisonment for six months. The learned Judges of the Division Bench of the Lahore High Court Lahore, having made detailed scrutiny of the evidence while dismissing the appeal of appellant, confirmed the sentence of death awarded to the appellant with the observation that there was no extenuating circumstance for lesser penalty.
2. ' Leave was granted in this appeal vide order dated 24-8-2000 only to consider the question of sentence. Learned counsel for the appellant his firstly, contended that age of the appellant given in his statement under section 342, Cr.P.C. Was 16 years and this statement was recorded on 19-11- 1996 whereas the occurrence had taken place on 6-9-1995, therefore, the age of appellant at the time of occurrence was definitely less than 15 years. Learned counsel submitted that under Juvenile Justice System Ordinance, 2000 which was promulgated after the occurrence in the present case, an accused of less than 18 years of age, has been defined as 'child' and trial of such an accused was to be conducted by the Special Court established under the said Ordinance. The learned counsel argued that although the said Ordinance for the purpose of trial would not be applicable in the present case but the benefit of age made available under the Juvenile Justice System Ordinance, 2000 can conveniently be extended to the appellant. The learned counsel argued that the findings of the learned trial Judge that appellant by appearance was about 25 years of age, was in conflict to that of the age of the appellant recorded in his statement under section 342, Cr.P.C. And the conclusion that the age mentioned in the statement under section 342, Cr.P.C. Would not be relevant to determine the question of minority was not correct as there was no evidence in rebuttal available on record. Learned counsel thus concluded that in such situation the age of an accused given in his statement under section 342, Cr.P.C. Would be deemed to be his correct age and that in case of any doubt it was the duty of Court to determine the correct age of appellant failing which no contrary view could be taken. Learned counsel submitted that in the given facts, it would be not proper to ignore the statement of appellant to show that at the time of occurrence he was minor and strong presumption of correctness would be attached to the statement under section 342, Cr.P.C. Which is part of judicial record.
3. ' The prosecution after close of its case, made an attempt to place on record copies of- the birth certificate of the appellant issued by Municipal Committee, Chiniot and a school leaving certificate wherein the date of birth of the appellant was shown as 19-4-1970. However, the learned trial Judge neither allowed to place on record these documents nor took notice of the same for the purpose of determination of age of the appellant. Ijaz Hussain S.-I. Who investigated the case and submitted challan against the appellant was examined as prosecution witness, he denied the suggestion in his cross examination that at the time of occurrence accused was of the age of 15/16 years and stated that as per police record he was of the age of 25/26 years.
4. There is no cavil to the proposition that the special plea of minority if is taken by the accused, the burden shall be on the accused to establish his minority but in the present case the age of the accused mentioned in his statement under section 342, Cr.P.C. Remained unrebutted as neither the prosecution nor the defence has brought any evidence on record to determine the correct age of the appellant, therefore, the age available on the judicial record would not be ignorable. The next contention of the learned counsel was that appellant was suffering from mental ailment before the occurrence and in support thereof he placed on record, the papers relating to the treatment of the appellant by doctor Muhammad Rashid Chaudhry, Shah Jamal Colony, Lahore and the report of the medical officer, Central Jail, Faisalabad relating to the mental disorder of the appellant during the trial. The learned counsel thus submitted that this Court may while considering the minority of the appellant at the time of occurrence and his mental ailment as relevant factors for the purpose of quantum of punishment, reduce the sentence of appellant from death to life imprisonment.
5. ' Learned counsel appearing on behalf of the State, on the other hand, has contended that the appellant as per school leaving certificate and birth certificate issued by Municipal Committee, Chiniot was about 25 years of the age at the time of occurrence and that the special plea of minority taken by the appellant was not established on record through any evidence, therefore, he would not be entitled to claim minority only on the basis of age mentioned in his statement under section 342, Cr.P.C. And in any case the age of the appellant given in the prescription produced by him before' this Court was noted as 22 years on the date of its issue in the year 1994. Learned counsel next argued that the mental ailment of the appellant if any, was prior to the occurrence which would not be relevant to be taken into consideration.
6. The occurrence in the present case had taken place before the promulgation of Juvenile Justice System Ordinance, 2000 under which the trial of a person less than the age of 18 years is held by the Special Court established under the said Ordinance but a juvenile offender is not entitled to claim lesser penalty on a capital charge as of right under said Ordinance. In any case, the trial in the present case was conducted before the promulgation of the above said Ordinance, therefore, the procedure under the said Ordinance for determination of age of an accused would not be relevant but the age of an accused mentioned in his statement under section 342, Cr.P.C. If remained unrebutted, the presumption of correctness would be attached to the age given in the statement under section 342, Cr.P.C. Which is a part of judicial record.
7. This Court in Umar Hayat v. Jahangir (2002 SCM R 629) held that in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted.
8. There being no evidence on record in rebuttal to show that appellant was major, therefore, the doubt in the matter of age would be resolved in this favour and the age of appellant given in his statement under section 342, Cr.P.C. Would be accepted.
9. ' We having considered the ground of age and ailment of the appellant for lesser penalty are of the view that mere fact that accused was less than eighteen years of age at the time of occurrence, was not sufficient to withhold the normal penalty of death under section 302(b), P.P.C. And similarly, unless it is specifically established on record that accused was suffering from mental ailment at the time of occurrence, it would not be a valid ground for lesser punishment.
10. ' The appellant in an answer to a question put to him under section 342, Cr.P.C. Replied as under:-- ' "Deceased passed a waivered life who was head strong man. On the day of occurrence, he wanted to take a boy for sodomy to the deserted 'Haveli' after dragging him but aforementioned boy for saving his honour, picked 'Churri', which had fallen down from the possession of deceased, inflicted injuries on the deceased in his self-defence and honour. Place of occurrence is situated in a narrow and dark street and none witnessed that occurrence. Deceased also used to tease me earlier to the incident. As the occurrence was not witnessed by anyone, so I was falsely involved in this case out of guess. Time of occurrence was also changed from 8-00 p.m. 6-00 p.m. With the connivance of police."
11. ' A suggestion was also put to Haq Nawaz, P.W.8 the first informant, that the deceased with a view to commit sodomy with the appellant armed with Churri tried to drag him to a deserted Havelly in the dark and during this process the appellant having got an opportunity of snatching Churri inflicted blows to the deceased in his protection. However, due to the contradiction in the defence plea put to the first informant and taken by the appellant in his statement under section 342, Cr.P.C., the trial Court excluded the same from consideration. The motive behind the occurrence as set up by the prosecution was a quarrel taken place between the appellant and the accused in the Mohallah prior to the occurrence and Muhammad Idrees (P.W.5) was produced to prove the motive who claimed to halve witnessed the quarrel in question but this witness had not disclosed the reason behind the said quarrel and stated in the cross-examination that neither it was in the notice of any other person nor was reported to the police. Haq Nawaz (P.W.8) the first informant had no direct knowledge of the quarrel in question and his evidence relating to the motive would be hearsay.
12. While visualizing the situation, an inference can be drawn from the circumstances of the case under which the occurrence had taken place that shortly before the occurrence something unpleasant happened as a result of which appellant was provoked and while loosing self-control, he reacted and inflicted injuries on the sensitive part of the body of deceased.
13. ' The appellant has put the defence plea taken in his statement under section 342, Cr.P.C. To the witnesses in a different manner but the possibility of its correctness cannot be outrightly rejected.
14. The manner in which the occurrence took place would make the motive given by the prosecution doubtful to be the actual cause of murder and we while keeping in view the possibility of element of provocation and suddenness, deem it proper in the safe administration of justice, to reduce the sentence of appellant from death to imprisonment for life. However, we do not consider it a fit case for grant of benefit of section 382-B, Cr.P.C.
15. ' With the above modification in quantum of punishment, we while maintaining the conviction of the appellant under section 302(b), P.P.C. Reduce his sentence from death to life imprisonment.
16. This appeal is disposed of accordingly.