' TARIQ PARVEZ KHAN, J.--- Atif Zaman son of Haider Zaman a resident of Jadoon Colony, Abbottabad when awarded sentence of death on 24-7-2002 by learned trial Judge (Anti-Terrorism Court at Abbottabad) has assailed his conviction and sentence by filing Appeal No,269 of 2002.
Murder Reference No,12 of 2002 has also been sent up for answer.
2. Brief facts of the case are that on 16-4-2002 at unknown time within the limits of village Narian situated in territorial jurisdiction of Police Station Cantt., Abbottabad a lad aging 9/10 years by the name of Wajahat Ali was kidnapped by the appellant for commission of unnatural offence (sodomy) whereafter in order to screen-off the offence of sodomy, was inflicted brick blows, ultimately causing the death of Wajahat Ali and for all such offences appellant was charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under section 377, P.P.C.
Read with section 302(b), P.P.C. And section 7 of the Anti-Terrorism Act, 1997.
' To the aforesaid allegations and charges which were framed on 12-7-2002 by the Judge, Anti- Terrorism Court, the appellant claimed trial.
3. Muhammad Shokaib (P.W.4) who is uncle of deceased Wajahat Ali informed the local police through Daily Diary No,19, dated 16-4-2002 that his deceased nephew had left the house but as he has not returned back and despite search in the vicinity his whereabouts could not be known, the report was, therefore, made regarding his missing.
' On 18-4-2002 when inquiries were undertaken under section 156(2), Cr.P.C. The dead body of Wajahat Ali (deceased) was found lying in an under-constructed house of one Abdur Razaq.
Therefore, a case was registered vide F.I.R. No,275, dated 18-4-2002 in Police Station Cantt., Abbottabad.
' From near the dead body, besides blood-stained earth a brick was also taken into possession which had blood stains on it and a condom with faecal matter thereon.
' A shirt and Shalwar with blood stains and with faecal matter's stains were taken into possession belonging to the deceased vide memo. Exh. P. C .
' Accused Atif Zaman was arrested on 25-4-2002 by P.W.13 Asif Gohar and on the same date accused while in handcuffs had led the police party and has pointed out the place of commission.
Of sodomy and where ultimately he has committed the offence of Qatl-e-Amd. He also admitted before the police that another piece of brick with blood stains he has concealed in his own house.
Therefore, he further led the police party to his house and on his pointation the piece of blood- stained brick was recovered. He has also pointed out the unused three condoms which were recovered from a Nalla and pointation memo. Exh.P.G. Was prepared in this behalt in the presence of marginal witnesses.
' Accused Atif Zaman was produced before the doctor on 25-4-2002 for seeking opinion if he was capable of performing sexual intercourse and for opinion regarding his age.
' On 27-4-2002, appellant Atif Zaman was produced before Syed , Moamber Jan (P. W.12), a Judicial Magistrate who recorded the judicial confession of Atif Zaman appellant which is Exh.P.N./1.
4. Blood-stained shirt and Shalwar containing faecal stains and the brick recovered from the scene of crime were sent to the Chemical Examiner and it confirmed that the faecal matters on Shalwar and the faecal matters on condom used at the time of sodomy was of the same human origin. The blood-stained shirt and blood-stains on the brick was also opined to be human blood.
' Similarly the suspected semen stains on condom and the bloodstained brick recovered from the spot were also sent to the laboratory and the opinion was that there was human blood on the brick and that the semen was of human origin.
5. Dr. Tahir Habib (P.W.1) has conducted autopsy on the dead body of Wajahat All (deceased) and remarked that in his opinion sodomy was done with the victim whereafter he was hit on his skull with some blunt object causing fracture of the skull with vital injury to the brain and the same has led to the death due to severe trauma to the brain.
6. In this case admittedly there is no ocular account against the appellant except that P.W.4 Muhammad Shokaib complainant of the case has levelled the charge of sodomy and then commission of offence of Qatl-e-Amd against the appellant.
' The entire prosecution case is based and rested on judicial confession Exh.P.N./1 made by appellant, pointation memo. Through which certain articles were recovered on the pointation of the accused coupled with report of the Chemical Examiner.
7. On the conclusion of the trial. Learned trial Judge has found the above mentioned pieces of evidence as sufficient and therefore, has convicted Atif Zaman appellant under section 302(b), P.P.C. With sentence of death as Tazir read with section 7 of Anti-Terrorism Act with a fine of Rs,1,00,000 (Rupees one lac) as compensation payable to the legal heirs of the deceased.
' Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 he has been imprisoned to 25 years' R.I. With a fine of Rs,20,000 and under section 377, P.P.C. To seven years' R.I.
With a fine of Rs,10,000 with benefit of section 382-B, Cr.P.C.
8. Learned counsel appearing for the appellant at the very outset argued that age of the appellant at the time of commission of the crime was less than 18 years. Therefore, he was not an "adult" within the meaning of section 299, P.P.C. And that his trial held before Anti-Terrorism Court would be coram non judice because a person who is not adult is to be tried by Juvenile Courts specially notified by the Provincial Government under section 4 of the Juvenile Justice System Ordinance, 2000. However, on the basis of osification test where age of the appellant has been recorded as 19 years, learned counsel for the appellant did not strongly press the point of jurisdiction regarding taking of cognizance by the Anti-Terrorism Court. He, however, maintained that there is preponderance of evidence suggesting that appellant is below the age of 18 years. Therefore, in view of provisions as contained in section 306, P.P.C. Read with section 308, P.P.C. Even if offence is proved against the appellant he cannot be awarded sentence of death.
9. On merits it is argued on behalf of the appellant that there is no direct evidence against the appellant. The offence was allegedly committed on 16-4-2002, reported through Daily Diary No, 19, converted into F.I.R. No,275 on 18-4-2002 but neither in the Daily Diary nor in the F.I.R. Appellant is named as assailant nor even suspected. It is argued that the date of arrest of appellant has been shown as 25-4-2002 but in view of statement of Atif Zaman recorded as confession, he was arrested by the police two days after the burial of the dead body of Wajahat Ali which means that appellant was in the custody of the police somewhere on 21st or 22nd April, 2002 and until he was for the first time produced before the Magistrate for remand on 26-4-2002, his custody with the police was illegal.
' It is argued that the confession is neither voluntary nor true because if the date of arrest as given by the appellant is taken and when his confession was recorded on 27-4-2002 such confession was definitely obtained atter using third degree methods on the appellant and after illegal custody by the police.
' It is argued that the confession is not true because according to the contents of the confession neither a young boy by the name of Sanni in whose company the deceased was allegedly playing at the time of his alleged kidnapping, has been examined by the police and similarly in the tail end of confessional statement he has referred to one Banaras who was pointed out the place of crime by the appellant who is also not examined by the police. It is argued that as all the material facts regarding place of recovery of dead body including the recovery of blood-stained brick and the condom containing faecal stains were in the knowledge of the police, all such facts are tutored in a coerced confession and they cannot be said to be adding towards the truth of the confession.
10. Learned counsel stated that the faecal matters found on the Shalwar of the deceased, found on the condom recovered from the spot would identify the deceased and not the culprit and that there is no evidence in the shape of Chemical Examiner's Report which through semen or through any other means would connect the appellant with the commission of the crime.
' It is argued that because of strained relations between the elders of the appellant and the complainant the appellant has been made a scapegoat.
11. Learned counsel for the appellant has laid much stress on the factum that appellant at the time of commission of the offence was not adult as defined in section 299, P.P.C. He in this regard submitted that Exh.D.A. Is a certificate from the Principal, Rising Star Public School, Abbottabad according to which date of birth of the appellant is 20-5-1985 and thus he will be aging 16 years, 10 months and 26 days on 16-4-2002 i,e, date of commission of crime. He has referred to Exh.P.W.10/D1 report of Radiologist showing the age of the appellant as 19 years but he has taken strong exception to the word "N" and argued that there is tampering done by the Radiologist but to favor the prosecution. Reference is made to Exh.P.W.10/D-2, on its reverse the age has been recorded as 17/18 years by the Radiologist.
' It is argued that even in the arrest card police recorded the age as 17/18 years (Exh.P.F.). Learned counsel has referred to Exh.P.L./1 which is the report of Dr. Tahir Habib when appellant was produced for his medical examination and his age there too has been recorded as 17/18 years.
' The upshot of the submissions of the learned counsel for the appellant was that except one document namely Exh.P.W.10/D-1 all official record confirms that on the date of commission of the crime the appellant was not an adult as he was below 18 years of age.
12. Learned counsel appearing for the complainant and learned counsel representing the State, however, argued that admittedly the appellant and the deceased are closely related inter se because mother of the appellant and grandmother of the deceased are real sisters. Therefore, there was no question for false charge. They also argued that a clean-breast voluntary and true statement recorded by Syed Moamber Jan, Judicial Magistrate though restracted but sufficiently corroborated is sufficient for conviction and that keeping in view the gruesome nature of the crime appellant does not deserve any leniency.
13. As learned counsel for the appellant also mostly insisted on the quantum of sentence on the ground of age of the appellant, we will first record our finding on this issue.
14. According to the record appellant was arrested on 25-4-2002 and S.H.O: Cantt prepared his arrest card Exh.P.F. Where his age has been recorded as 17/18 years. The same S.H.O. Produced the appellant through injury sheet Exh.P.L. And specifically asked the doctor about age of the appellant and on the reverse of Exh.P.L. We find that approximate age recorded by the doctor is 17/18 years.
During investigation accused was produced before the doctor as a medico-legal case and as shown on the reverse of Exh.P.W.10/D-2 an out door patient Radiology Department, his age has been recorded as 17/18 years. The column for National Identity Card number is left blank, would mean that appellant is not possessed of National Identity Card because National Identity Card is issued to a person above age of 18 years.
' The only document showing age of the appellant as 19 years does contain overwriting on the word "N" as is in the photo copy Exh.P.W.10/D-1. Strangely enough, at the trial the prosecution has exhibited the same document as Exh.P.Q. (original). The handwriting on the two documents is exactly similar but the original does not contain any overwriting. We have no iota of doubt that the column of final opinion is Exh.P.Q. And Exh.P.W.10/1 are recorded in and hand. In Exh.P.Q. It is recorded "Radiological age is about 19 (nineteen years)" while in Exh.P.W.10/1 it is recorded that his Radiological age is 19 (Ninteen years).
' Because of the irreconcilable two documents, mentioned above and because of bulk of official documents mostly prepared by the prosecution including the school certificate, we hold that age of the appellant is below 18 years. Our such finding is also based on our personal observation when after hearing the learned counsel for the appellant and the State we reserved the judgment on 28- 8-2002, summoned the appellant on 29-8-2002 and are of the opinion that on our own personal observation as well as the opinion of learned Deputy Advocate-General is that appellant is 17/18 years and not 19 years of age.
15. We will revert back to the proposition that whether the appellant was an adult or not and if so its effect but at present we take up the evidence of the prosecution on the basis of which learned Anti-Terrorism Court came to the conclusion that appellant is guilty of the offence he is charged with.
' There is no enmity between the parties. A young lad of age of 9/10 years has been murdered who was medically found to be subjected to sodomy. From the place where his dead body was recovered a used condom was recovered besides a blood-stained brick. The blood stains recovered on the said brick were found to be human blood and the blood stains found on the clothes of the deceased were of the same human, origin.
' Accused while in custody has led the police party and on his pointation through memo.. Exh.P.G. a piece of brick Exh.P.5 was recovered having blood stains thereon which was taken into possession through memo. Exh.P.K.
' Exh.P.N./1 is the judicial confession recorded on the third day of his arrest and all details of the occurrence which details have later been confirmed through circumstantial evidence like taking into possession of brick, the faecal matters and the condom are strong corroborative evidence connecting the appellant with the crime ' The statement of Syed Moamber Jan (P. W.12) who recorded the confession has proved beyond doubts that the confession was voluntarily made.
' Mere fact that the confession has been retracted would not mean that the confession was not made and when it is supported by circumstantial evidence and when it appears to be a straightforward confession which is voluntarily made, such would be sufficient by itself for recording conviction.
16. Now coming to the question of sentence, not in this case but also in number of other cases and after the amendment is brought about in the Pakistan Penal Code a point is raised that if person accused of an offence of Qatl-e-Amd is not adult he will not be awarded death sentence and can only be awarded the sentence of Diyat which can be added with sentence of imprisonment as Tazir which may extend to fourteen years.
17. We have given our anxious thought to the proposition that ("Cr Cam' whether or not a person who is not adult cannot be awarded sentence of death at all where he is accused of offence of Qatl-e-Amd.
18. Section 299 to section 338, P.P.C. Were substituted by Criminal Law (Amendment) Act, No,II of 1997 on 11-4-1997. The "adult" has been defined which means a person who has attained the age of eighteen years.
' Section 300, P.P.C., as amended, defines the offence of Qatl-eAmd whereas section 302, P.P.C.
Provides punishment for the offence of Qatl-e-Amd. We would here reproduce the provisions of section 302, P.P.C. For ready reference:-- "302. Punishment of Qatl-e-Amd.--- Whoever commits Qatl-e-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
' Section 304, P.P.C. Provides that what would be proof of Qatl-eAmd liable to Qisas and this section is also reproduced as below:-- "Section 304. Proof of Qatl-i-Amd liable to Qisas etc.--- (1) Proof of Qatl-i-Amd liable to Qisas shall be in any of the following forms, namely:-- (a). The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence, or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984).
(2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas."
' Therefore. Where offence of Qatl-e-Amd is committed. The punishment provided for the offence is death as Qisas, death or imprisonment for life as Tazir where proof as required under section 304, P.P.C. Is not available or punishment with imprisonment of either description for a term which may extend to twenty-five years where according to the Injunctions of Islam the punishment of Qisas is not applicable.
' Under Article 17 of Qanun-e-Shahadat Order, 1984 a Court may accept, or act on the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.
This latter part of the Article obviously refers to circumstantial evidence or evidence other than ocular account.
' Offence of Qatl-e-Amd is not liable to Qisas under section 306, P.P.C. Condition precedent is where the offender is minor or insane. The provisions of section 306, P.P.C. Are also reproduced as below:- "306 Qatl-i-Amd not liable to Qisas.--- Qatl-i-Amd shall not be liable to Qisas in the following cases, namely:---
(a) When an offender is a minor or insane: ' Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;
(b) when an offender causes death of his child or grandchild, howlowsoever; and
(c) when any Wali of the victim is a direct descendant, howlowsoever, of the offender."
Section 308, P.P.C. Prescribes punishment for when Qatl-e-Amd is not liable to Qisas and the statutory provisions are as under:-- "308. Punishment in Qatl-e-Amd not liable to Qisas etc.--- (1) Where an offender guilty of Qatl-e- 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: ' Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court: ' Provided further that, where at the time of committing Qatl-eAmd 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 a term which may extend to fourteen years as Tazir: ' Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either lescription for a term which may extend to fourteen years, as Tazir."
19. Before we record our finding regarding interpretation of above given statutory provisions, we would here refer to section 53 of the Pakistan Penal Code which is under Chapter III and the heading of the Chapter is "of punishments". Under this section punishment to which an offender is liable for an offence committed under Pakistan Penal Code have been enlisted. Qisas is punishment No,1 followed by Diyat, Arsh, Daman, Tazir, sixthly is "death" while seventhly provides imprisonment for life and so on so forth.
20. In view of Pakistan Penal Code as it now stands amended, Qisas by itself is a punishment and so is Diyat. Similarly, sentence of death is other than Qisas and it is, therefore, that in section 302, P.P.C. Which provides punishment for Qatl-e-Amd, first punishment is death as Qisas and second is death or life imprisonment as Tazir. A plain reading of section 53, P.P.C. Read with section 302, P.P.C.
Would show that offence of Qatl-e-Amd is punishable with death which can be either by way of Qisas or by way of Tazir. The two sentences of death are independent of each other.
21. We now revert to the provisions of section 306, P.P.C. Its very heading provides that Qatl-e-Amd will not be liable to Qisas where the same is committed by an offender who is minor i,e, not adult.
' Section 308, P.P.C. Also contained the heading that punishment of Qatl-e-Amd will not be liable to Qisas where the offender guilty of the offence is not liable to Qisas under section 306, P.P.C. And if so he shall be liable to Diyat. However, if at the time of commission of Qatl-e-Amd the offender though minor but attained sufficient maturity so as to be able to realize the consequences of his act,, he may be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
22. We are clear in our mind that exception as provided in section 306, P.P.C. That a minor shall not be awarded punishment of Qatl-e-Amd as Qisas is dependent on if there is proof of Qatl-e-Amd liable to Qisas but because of minority, an offender will not be awarded the sentence of death.
23. Where a person accused of offence of Qatl-e-Amd is not adult and where there is evidence as required under section 304, P.P.C. And it is proved that he has committed the offence of Qatl-e- Amd but because of exception as contained in section 306, P.P.C. He will be only punished with sentence of Diyat with further discretion of the Court to award him a sentence of imprisonment which may extend to fourteen years. This exception will not be applicable where there is evidence that a person though not adult but against whom there is no evidence as required under section 304, P.P.C. Who can still be awarded sentence of death under section 302(b), P.P.C. As Tazir.
24. We are conscious of the fact that there appears to be an anomaly that where a person who is minor but against whom there is evidence of a degree as required under section 304, P.P.C. Would be benefited by section 306, P.P.C. But the same person guilty of offence of Qatl-e-Amd cannot be similarly treated if evidence of Qisas as required under section 304, P.P.C. Is not forthcoming against him, will still be getting sentence of death. This anomaly is to be resorted by the legislation which is not the job of the Courts.
' Courts are required to apply the law as it is enacted and it is not the job of the Courts to interpret the law which in their opinion should have been so framed. They can, however, refer the matter through concerned quarters to be placed before the Legislature to consider the anomaly and find out the ways and means to remove such inconsistency in the Statute if they so desire.
25. What we have held above we have been guided by judgment of the august Supreme Court reported in 1999 'SCMR 2203 titled Faqirullah v. Khalil-uz-Zaman and others. Their Lordships of the august Supreme Court after considerable discussion had concluded and the relevant para. To our above decision is para. 19 of the judgment (supra) where it is ruled:-- "19. In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances."
' In another reported judgment Muhammad Saleem v. State 2001 SCM R 536 the august Supreme Court of Pakistan while seized of a criminal appeal where a person was given sentence of death for the offence of Qatl-e-Amd committed before the amendment of Pakistan Penal Code, his sentence of death was maintained on the ground that it was within the competence of the trial Judge to award death sentence to a person, not adult not as Qisas but as Tazir.
26. The upshot of our above discussion is that where an offender is not an adult and has committed the offence of Qatl-e-Amd and the case is proved against him otherwise and there is no evidence as required under section 304, P.P.C., he can still 3e awarded sentence of death not as Qisas but as Tazir which is the legal sentence under section 302(b), P . P. C .
27. In view of our finding, recorded above, we are convinced that prosecution has successfully brought home the charge of Qatl-e-Amd of sodomy and the offence under section 12 of the Zina Ordinance against the appellant. The conviction has been rightly recorded by the Judge Anti- Terrorism Court. As for sentences are concerned, we maintain the conviction and sentence under section 12 of the Zina Ordinance, also under section 377, P.P.C. Alongwith fines but keeping in view the dictum aid down by the august Supreme Court of Pakistan in the judgment reported in 2002 SCM R 629 where age of the appellant was considered and sentence of death awarded was commuted to life. Following such principle, we maintain the conviction of the appellant under section 302(b), P.P.C. But award him sentence of life imprisonment instead of death as Tazir. Fine as imposed and is payable as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Is left intact. The murder reference is answered in negative.
Sentence reduced.