The way in which the instant appeal arises is this. Ehsanullah son of Nazir Ahmad was tried by learned Sessions Judge, Gujranwala for committing mactation of Khurram Shehzad son of Ghulam Muhammad-complainant. Learned trial Judge, by virtue of his judgment dated 30-9-2000, found him guilty of the said charge, convicted hire under section 302(b), P.P.C. As Tazir and sentenced him to imprisonment for life with further direction to pay a sum of Rs. 50,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. Or in default thereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. The convict by filing Criminal Appeal No. 1581 of 2000 has approached this Court to call in question conviction and sentence passed against him by the learned trial Judge. Ghulam Muhammad, complainant also instituted Criminal Revision No.784 of 2000 seeking enhancement of sentence to the maximum provided under the law, which was ordered to be heard alongwith the abovesaid appeal. I propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident had taken place on 18-3-1999 at 4-00 p.m. In the revenue estate of village Baddoki Gosayan, falling within the territorial jurisdiction of Police Station Cantt.
Gujranwala. Distance between the two places is about four kilometres. The said occurrence was reported by Ghulam Muhammad, complainant (P.W.5) to Safdar Hussain, S.-I. (P.W.10) on the same day at 5-00 p.m. When he alongwith other police officials was available at N.I.C. Chowk, Baddoki Gosayan on patrol duty. As per dictation of the complainant, he reduced into writing complaint (Exh.P.B.) and despatched the same to the police station through a constable for formal registration of a case. Upon receipt thereof at the police station, Muhammad Ashfaq, M.H.C. (P.W.2) drew up formal F.I.R. (Exh.P.B./1) on the same day at 5-30 p.m. Correctly without any addition or subtraction on his part.
4. A bird's eye view of the contents of the F.I.R. Reveals that the complainant is resident of village Boddoki Gosayan and is a shopkeeper. On the fateful day at about 4-00 p.m., he alongwith his son Khurram Shehzad, aged about 18/19 years, came out of the graveyard after being free from offering Fateha. Ehsanullah appellant was available there, who cut an indecent joke with Khurram Shehzad.
An altercation took place between the two. They not only grappled with each other but also exchanged abuses. The complainant separated them, whereupon the appellant went away while extending threats of dire consequence. After some time the complainant and his son Khurram Shahzad also left for the village. When they reached near Chowk Rajanwali Street, they came across Abdul Razzaq son of Ismail and Muhammad son of Abdul Rehman's, resident of the village.
They were 'busy in talking with each other when the appellant armed with a Chhurri came there and pounced upon Khurran Shehzad. He delivered two successive Chhurri bellows on the person of Khurram Shehzad, which landed on his chest. When witnesses stepped forward, the appellant levanted from the spot. Khurram Shehzad on receipt of injuries, started running and fell prone at some distance where he breathed his last.
5. Consequent upon registration of the abovesaid crime report Safdar Hussain, S.-I. (P.W.10) immediately rushed to the spot, inspected dead body of Khurram Shehzad, prepared injury statement (Exh.P.G.), inquest report, (Exh.P.H.) and despatched the dead body to the mortuary for autopsy purposes under the escort of Muhammad Aslam, constable (P.W.3) and Muhammad Munir, constable (not produced). Then he inspected the venue of occurrence, prepared rough site plan (Exh.P.K.) thereof and collected blood--stained soil which was made into a sealed parcel and taken into possession through memo. Exh.P.D., duly attested by Muhammad Ali (P.W.6) and Abdul Razzaq P. W. (not produced). He then called upon Masood Ahmad Bhatti, Draftsman (P.W.9) to inspect the spot in the presence of the witnesses and prepared the site plan as per their statements and pointation. Accordingly, he visited the spot and prepared site plans (Exhs.P.F. & P.
F./1) as per pointation of the witnesses, duly signed by him. Thereafter, he searched for the accused and became successful in arresting him on 27-3-1999. He subjected him to necessary interrogation, during course of which he got recovered blood-stained Chhurri (P.4) from his residential house. It was made into a sealed parcel and a seizure memo. (Exh.P.E.) was prepared in lieu thereof, which was duly attested by Muhammad Saleem (P.W.7) and Abdul Sattar P.W. (not produced). He recorded statements of the relevant. Witnesses under section 161, Cr.P.C. Case property was handed over by him to Moharrir of the police station for keeping the same into safe custody and its onward transmission to the relevant quarters. After, completion of investigation, challan was prepared against the accused and submitted before the Court for his trial in accordance with law.
6. The trial Court after completing all the legal formalities proceeded to frame charge against the accused, which was explained and read over to him. He pleaded not guilty to the same and claimed to be tried as such.
7. It was under these circumstances that the prosecution was called upon to adduce evidence to establish charge against the accused. In compliance of the said direction, the prosecution ventured to produce as many as ten witnesses.
8. Most prominent of all these witnesses are Dr. Muhammad Farooq (P.W.1), Ghulam Muhammad, complainant (P.W.5), Muhammad Ali (P.W.6). Muhammad Saleem (P.W.7) and Safdar Hussain, S.-I.
(P.W.10).
P.W.1 Dr. Muhammad Farooq conducted autopsy on dead body of Khurram Shehzad deceased and observed three injuries in all on his person. According to him, he died due to haemorrhage and shock resulting from injury No.1, which was declared sufficient to cause death in the ordinance course of nature. He prepared post-mortem examination report (Exh.P.A.) and pictorial diagram (Exh.P.A./1) showing locale of injuries.
Ghulam Muhammad, complainant (P.W.5) and Muhammad Ali (P.W.6) are eye-witnesses of the occurrence. They almost narrated the story of the F.I.R. They fully supported the prosecution story in their statements.
Muhammad Saleem (P.W.7) appeared to testify to the factum of recovery of Chhuri (P.4) at the instance of the appellant.
P.W.10, Safdar Hussain, S.-I. Is the Investigator. He stated about all acts done and duties performed by him during course of investigation.
Evidence of remaining witnesses is of formal nature, so their statements do not require to be brought under discussion.
9. Learned Prosecutor gave up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner (Exhs.P.K./1 and P.L.) declared the prosecution case close.
10. The appellant was then examined under section 342, Cr.P.C. To enable him to offer handsome explanation with regard to his involvement in the case. He proclaimed his absolute innocence in the matter. In answer to Question No.5 "Why this case is against you and why the P.Ws. Have deposed against you"? He stated as under:-- "The deceased was my class-fellow and fast friend. He was of my age group. At one time he decided to tease myself. The deceased used to tease me of and on but keeping in view my friendship with him, I always exercised a restraint. On 18-3-1999, I was returning home when on the way the deceased met me and taunted that 'Bhain Khan Kashmiri' was going. I inquired from the deceased as to why he gave abusive and indecent remarks and in response he gave fist blow on .My mouth. At that time he was armed with a Chhurri and he also intended to hit me. I proceeded towards my house, but the deceased followed me. Apprehending danger to my life at the hands of the deceased, I snatched Chhurri and struck him in self-defence of person. I raised this plea before the police at the time of my apprehension. The Investigator did not record my defence version correctly and in connivance with the complainant party reshaped the same. The Investigator did not inquire into my version honestly. "
He did not opt to make statement on oath under section 340(2), Cr.P.C., in disproof of accusations brought against him. He produced his birth entry (Exh.D.A) in his defence. The learned trial Judge called upon Muhammad Nawaz, Record Keeper, Cantonment Board, Gujranwala and examined him as C.W.1 in order to verify correctness of the birth- entries (Exh.D.A. And Exh.C.W.1/A).
11. After fullest evaluation of facts and circumstances revolving around this matter, the learned trial Judge pronounced verdict of guilt against the appellant and punished him as afore-mentioned.
12. Learned counsel for the appellant at the very outset submits that he does not press this appeal on merits and prays for reduction in sentence awarded to the appellant because he was below eighteen years of age at the relevant time of occurrence and as such his case squarely falls under the purview of section 308, P.P.C.
13. Learned counsel for the State assisted by learned counsel for the complainant submits that the learned trial Judge did not advert to the question of age while deciding this case and is not in a position to controvert it. Secondly, he submits that the appellant inflicted two injuries on the thorax region of Khurram Shehzad deceased by means of a formidable weapon like Chhurri, which caused extensive damage to internal organs and his case is not that of grave and sudden provocation. He adds that the appellant adopted conflicting pleas during trial and in his statement under section 342, Cr.P.C. And in view of his inconsistent stand of grave and sudden provocation falls like a house of cards. Learned counsel for the complainant adds that the appellant was rightly adjudged guilty and deserves to be sentenced to death.
14. I have consciously heard and soberly considered respective arguments of learned counsel for both the sides and have also gone through the evidence with their able assistance. Chief argument of learned counsel for the appellant is that the appellant was a minor on the day of occurrence and that the learned trial Judge has adopted an erroneous view of law. According to learned counsel, the appellant was minor according to definition of section 299, P.P.C., therefore, at the most he could be convicted under section 308, P.P.C., because the essential ingredients of section 306, P.P.C. Stood satisfied. To verify genuineness and correctness of this plea I have examined the record. The appellant was examined by the learned trial Judge under section 342, Cr.
P. C. On 25-9-2000. He gave his age as 18 years. The judgment was delivered on 30-9-2000. The learned trial. Judge has recorded this age from his own assessment.
His age was 17/18 years. The occurrence took place on 18-3-1999, about 18 months prior to the pronouncement of judgment. It means that at the time of alleged occurrence, the appellant was below 18 years of age and not an adult within the meaning of sub-sec--tion (1) of section 299, P.P.C. Section 306, P.P.C. Lays down that Qatl-i-Amd is not liable to Qisas, when the offender is a minor. According to birth certificate (Exh.D.A) issued by Cantonment Board, Gujranwala, age of the appellant was rightly below 18 years. Muhammad Nawaz, Record Keeper of Cantonment Board, Gujranwala was called by the learned trial Judge as C.W.1. According to him, Exh.D.A. Is the correct certified copy of the birch certificate of Ehsanullah. This entry was dated 31-3-1981 at Serial No.304.
He also deposed that birth entry (Exh.C.W.1/A) is the correct certified copy of the Birth Entry No.222, dated 12-3-1981. According to this, entry date of birth is 1981. Exh.D.A. Was got entered by one Abdul Rehman's, whereas Exh.C.W.1/A was got entered by Azeem Bakhsh. According to the latter entry, his age comes to eighteen years and seven days on the day of occurrence, it seems that two persons got entered date of birth of the appellant on different dates and such a minor discrepancy could arise because of a mistake. According to cardinal principles regarding appreciation of evidence, whenever two possibilities float on the surface of evidence, one favourable to the accused is to be given preference over the other. According to provisions of section 308, P.P.C., if an offender is guilty of Qalt-i-Amd not liable to Qisas under section 306, P.P.C. He shall be liable to Diyat. However, under first proviso, an offender being minor had attained sufficient maturity and was able to realize the nature of his act, consequences ensuing therefrom, he may also be punished with imprisonment of either description for a term which may extend to 14 years as Tazir.
15. The appellant committed the crime in question out of provocation resulting from exchange of hot words and grappling, which is usually treated as a mitigating circumstance. In my view, conviction of the appellant under section 302, P.P.C., is illegal and not sustainable in the eye of law.
I, therefore, proceed to set aside the same, convict him under section 308, P.P.C. And sentence him to undergo rigorous imprisonment for fourteen years and further direct him to pay Diyat amount to the legal heirs of the deceased as was prevalent during days of occurrence. Order accordingly. The appellant would be released from custody after payment of the Diyat amount or in the alternative on his furnishing surety of the said amount to the satisfaction of trial Court at Gujranwala.
16. With these variations, this appeal and Criminal Revision No.784 of 2000 stand disposed of.