' Rehmat Ail convict-appellant has filed this criminal appeal against his conviction and sentence, whereby he has been sentenced to life imprisonment for the murder. Of Shah Hussain deceased, with a fine of Rs,50,000 as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default to suffer six months' S.I. Benefit under section 382-B, Cr.P.C. Was also extended to the appellant.
2. In this case the prosecution machinery was set in motion when on 29-1-1996 at 18-15 hours, Said Wahab, Additional S.H.O., Police Station Rahimabad, on information, reached Casualty of the Hospital and found Shah Hussain (deceased) unconscious, while the other injured Sadiq Ali reported the occurrence to him to the effect that on the day of occurrence he alongwith Shah Hussain (then injured), Rehmat Ali, Farman Ali residents of Rehmanabad and other boys were playing football in the ground near `Chongi'. At the end of the match, Farman Ali and Rehmat Ali abused the complainant and Shah Hussain and simultaneously Farman Ali stabbed the complainant with his knife hitting him on his left side of head and injured, while Shah Hussain was stabbed by Rehmat Ali with his knife, with which he was hit on front of his belly, injured and fell down. Rehmat Ali accused was apprehended on the spot and the knife was snatched from him, which was later on handed over to the police. The other accused fled away alongwith the knife.
Motive for the offence was stated to be abuses after the match. Later on the `Murasila' was incorporated into F.I.R. No,20 on the same day. On the death of Shah Hussain, the section of law was altered from 324/34, P.P.C. To 302/34, P.P.C.
3. Dr. Asadullah P.W.11, on 29-1-1996 at 6-45 p.m. Examined Shah Hussain (then injured) and found the following:-- Remark: The patient was in state of shock, the B.P. And pulse not recordable. Bleeding excessively Detail of injuries;
(1) A peneterating incised stab wound, 2 c.m. In length with neatly cut inverted margins which are bleeding, wedge shaped with pointed edge facing downward, passing through the whole thickness of skin, on entrolatral surface of thoraxic cage, at level of 8th intercatral space.
(2) Another peneterating incised stab wound 2 c.m. In length with neatly cut inverted margins wedge shape passing through whole thickness of skin, anteriorly over 8th intercostral space, 1 c.m.
To mid clavicular line. I call for help of visiting surgeon.
Nature 9f injuries: Dangerous, caused by sharp-pointed weapon.
' Duration between injuries: Within 2 hours.
' The said doctor on 29-1-1996 at 6-45 p.m. Examined Sadiq Ali injured and found the following:-- (1). Incised wound 1 c.m. In length with irregular margins which are bleeding of left parietal region.
Nature of injuries: Simple.
Caused by: Blunt weapon.
' Probable duration of injury: Within 2 hours.
' After the death of Shah Hussain, Dr. Najibullah on 30-1-1996 at 10-15 hours conducted autopsy on his dead body and found:-- ' Two stitched wounds (penetrating) each about 2 c.m. Long, one at the 8th intercostals space and the other at the 9th intercostal space, situated at left aide of the chest below the left nipple.
' Rigor mortis was not properly developed. Abdominal and thoracic cavity full of blood. No prominent trauma to abdominal viscera. Left ventrical of the heart was cut about 1.5 c.Ms. Long with profuse bleeding.
' Cause of death: Trauma to heart.
' Kind of weapon used: Sharp object like a knife.
' Probable duration of injury between death and p.m. 12-14 hours.
4. Wajid Ali P.W.2 deposed that on the day of occurrence he alongwith Shah Hussain deceased, Sadiq Ali injured, Sajid Ali P.W., Nosherwan P.W. Farman Ali and Rehmat Ali accused and other boys were playing football. During the match an altercation took place between Rehmat Ali, Farman Ali accused and. Sadiq Ali and Sajid Ali.
' At the end of the match they left for their houses. On the way again there was altercation between the parties. Separation was being made by Shah Hussain between the parties. Accused Rehmat Ali (appellant) asked Shah Hussain not to do so. In the meantime Rehmat Ali gave two stab blows to Shah Hussain with which he was hit on his chest and belly, injured and fell down. Accused fled away from the spot and Shah Hussain, then injured, was carried by them to hospital. The witness also stated that during the scuffle Farman Ali accused gave stab blow to Sadiq 'Ali on his head, with which he was injured. Sajid Ali, brother of Sadiq Ali snatched the weapon of offence i,e, knife from Rehmat Ali and handed it over to the police at the hospital.
5. Nowsherwan P.W.8 deposed that on the day of occurrence after 'Am' time, in the ground behind the `Chongi' he was playing football alongwith other players. At the end of play there was an altercation between Rehmat Ali, Farman Ali accused and Sadiq Ali and Sajid Ali P.Ws. In the meantime, the other boys started scuffle with each other, but he separated them. Rehmat Ali accused was having a knife in his hand. The witness snatched the knife from him, but Rehmat Ali took the knife back from the witness. It was 'Sham' prayers time, therefore, the witness went towards the mosque and after prayers he returned to his house. His brother Muhammad Siraj did not come to his house for `Aftari'. The witness inquired about him from his other brother's house, where he was told by his nephews that Rehmat Ali accused had injured Shah Hussain and Muhammad Siraj had accompanied him to the hospital.
6. Statements of accused under section 342, Cr.P.C. Were recorded, wherein they denied the allegations and claimed innocence. After hearing the learned counsel for the parties and perusal of the record, the learned trial Court acquitted Farman Ali accused of the charges levelled against him, while convicted and sentenced Rehmat Ali appellant as stated in para.1 of this judgment.
7. The learned counsel for the appellant after making submissions on the merits of the case, has confined his arguments to the sentence awarded to the appellant and did not assail either his conviction or the ocular and the circumstantial evidence on which it was' based. It was contended that it was a fit case for taking a lenient view in the matter of sentence, because at the time of occurrence the appellant was minor and the offence also took place at the spur of moment. There was no previous blood fued between the parties and during playing of football there was an altercation between them.
8. At the time of occurrence, Qisas and Diyat Ordinance was not extended to Malakand Division. In PLD 1990 Supreme Court 1172, the Shariat Appellate Bench, in .Federation of Pakistan and another v.
N.-W.F.P. Government and others has observed:-- "It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411AH, the said provisions would nevertheless cease to have effect on 12th Rabi-ul- Awwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabiul-Awwal and the same lapses otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the afore visualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable."
' To further clarify the point, it will not be out of place to refer to PLD 1998 Peshawar 101 (Sambali Khan v. The State), wherein it has been observed:-- "No doubt the Qisas and Diyat Ordinance/Act II of 1997 have not been extended to the Malakand Division but in view of the observations with regard to state of vacuum made in Federation of Pakistan and another v.. N.-W.F.P. Government and others (PLD 1990 SC 1172) the Courts functioning in the Malakand Division must seek guidance from the Criminal Law (Amendment) Act, 1997 (Act H of 1997) in force in rest of the country."
9. Coming to the contention raised by the learned counsel for the appellant that at the time of occurrence the appellant was minor, we find that a case for taking a lenient view in the matter of sentence is made out. On 16-4-1998, the date on which the statement under section 342, Cr.P.C. For the appellant Rehmat Ali was recorded, his age was recorded as 18 years, while the occurrence had taken place on A 29-1-1996, meaning thereby that at the time of occurrence the appellant was aged about 16 years and 2-1/2 months. In Muhammad Afzal v. The State (PLD 1976 SC 568, while determining the age of the accused, preference was given to the age mentioned at the time of recording statement under section 342, Cr.P.C. In addition to the other relevant factors. In section 299(i) "minor" has been defined that "minor" means a person who is not an adult and "adult" has been defined in the said section under clause (a) that "adult" means a person who has attained the age of eighteen years. Section 308, P.P.C. Provides punishment in Qatl-i-Amd not liable to Qisas, where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat, with a further provision that where at the time of committing Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for term which may extend to fourteen years as Ta'zir, in addition to Diyat. We find in our support 1999 M LD 2282 (Mahmood Alam alias Mithu v. The State), wherein the appellant was found to be seventeen years of age at the time of occurrence, his conviction was maintained and the sentence was reduced from life imprisonment to ten years with a further direction to pay Diyat amount.
For what has been discussed above, this criminal appeal is partially accepted, while holding the appellant guilty of the offence under section 302(c) read with section 308, P.P.C., his conviction is maintained, but the sentence of life imprisonment awarded to him is altered to ten years' R.I. With a further direction to pay Rs,1,90,000 as Diyat, notified by S.R.O. No,601(1)/95, dated 2-7-1995, to the L.Rs, of the deceased. Benefit under section 382-B, Cr.P.C. Is also extended to the appellant.
Sentence reduced.