2010 PLP 1776 (YLR)

SAHIB KHAN, J.

This Criminal Appeal under section 410, Cr.P.C., assail the impugned judgment/order dated 20-5-2006 passed by the Addl. Session Judge Ghizar, whereby the learned trial Judge convicted the convict/appellant under section 302(b) of P.P.C. and sentenced to life imprisonment.

2. Succinctly stating the facts, giving rise to instant appeal are that on 7-1-1998 at about 1600 hours Mst. Shabnum Bibi (deceased) w/o Syed Ghulam r/o Balthum Gupis holding a bucket went out of her house to draw water from the water channel running nearby her house. Her minor son namely Syed Kashif Hussain P.W.-3 was with her. When the deceased was filling water in bucket, Syed Ahmed Ali Shah (Convict/appellant) opened fire on her with .30 bore Pistol. The bullet hit her and she fell down. The incident was witnessed by Syed Kashif Hussain P.W.3 aged about four and half years. The injured Mst. Shabnum Bibi was taken to Aga Khan Health Centre at Singul Punial. F.I.R. No.1/98 Exh.P.W.1/A on the report of Syed Issa Madad Shah was lodged in the Police Station Gupis under section 324, P.P.C. by SIP/SHO P.W.13. The injured Mst. Shabnum Bibi could not survive in spite of medical treatment at medical centre and breathed her last, on 8-1-1998 at about 6 a.m. Therefore, the charge was converted into section 302, P.P.C. After the completion of investigation. Challan was sent up to Sessions Judge Ghizar for trial. The convict/appellant was formally charged on 29-8-1998, wherein he refused to admit the charge against him. The trial Court allowed prosecution to adduce their evidence in proof of charge against the accused. The prosecution produced 13 P.Ws. besides Exh.P.W.1/A, Exh. P. W.13/A, Exh. P. W.5/A, Exh. P. W.7/A, Exh. P. W.9/A, Exh.P.W.11/A, Exh.P.W.13/B, Exh. P. W.13/C, Exh. P. W.1/B, Exh. P. W.1/C, Exh. P.W.12/A, Exh.P.W.13/D, and Exh.P.W.8/A, as documentary evidence. On the close of evidence the accused was examined under section 342, Cr.P.C. and the learned trial Judge after being heard the parties recorded his finding whereby, the accused was convicted and sentenced for life imprisonment with a fine of Rs.30,000 in case of non-payment of fine amount he was further held to undergo for one year sentence by the trial Judge on 12-8-1999.

3. An appeal was preferred by the convict/appellant before this Court. The Division Bench of this court during hearing of the appeal observed that the trial Judge while examining the convict/appellant under section 342, Cr.P.C., had committed material illegality by not putting question regarding his willingness to appear as own witness as envisaged under section 340, Cr.P.C. Therefore, conviction/sentence was accordingly set aside and the case was remanded back to trial Court to meet the legal need vide judgment/order dated 29-9-2005. The trial Judge properly met the directions of this Court, but convict/ appellant did not opt to appear as his own witness or produce any evidence, (vide order sheet dated 13-4-2006). The trial Judge after hearing the District Attorney and Counsel for the convict/appellant passed impugned judgment/order dated 20-5-2006, hence this appeal before this Court.

4. We heard the counsel for convict/ appellant and learned Deputy Advocate General for the State and gone through the available record.

5. The learned counsel for the convict/appellant argued that the case against the convict/appellant is full of doubts, specially on the point of bullet entry and exit injuries caused to the deceased. The star witness of prosecution case, Kashif Hussain P.W.3 in his statement has stated that the convict/ appellant had opened fire on left back side of deceased while the Doctor P.W.12 in his report and statement before the Court mentioned that the bullet hit her from left side of abdomen and exited from the right side of deceased, therefore, appellant may be acquitted from the charge. He further submitted that if the plea of acquittal is not acceded. According to him admittedly, the appellant was minor at the time of commission of offence, therefore he was liable to be dealt under section 308, P.P.C., as has been provided under section 306 of P.P.C. instead of section 302(b), P.P.C. He referred 2000 SCMR 1758, 2003 SCMR 608 in support of his contention.

6. On the other hand the learned Deputy Advocate General defended the case with the contention that the prosecution has proved the charge against the appellant beyond any shadow of doubt. The trial Judge has accordingly sentenced the appellant under section 302(b), P.P.C., and the impugned order do not suffer due to lack of evidence or otherwise. He prayed for dismissal of appeal by upholding Judgment/older dated 20-5-2006.

7. We do not agree with the first point, raised by the learned counsel for the appellant as the record wholly, and specially the statement of P.W.3 Kashif Hussain left no doubt in mind about the murder of Mst. Shabnum Bibi (Deceased) committed by the appellant and the prosecution has successfully discharged its duty in this context. The entry and exit injuries of bullet mentioned in the medico legal report Exh.PA-12/A fully corroborate the statement of P.W.3. In his report Exh.P.W.12 (the doctor) stated that the bullet was entered from the left side of abdomen and exited from right side of abdomen. Likewise the P.W.3 in his statement had also pointed to left side of back, hence this contention of learned counsel for the convict/appellant is support-less point and have raised to confuse the case. The circumstantial evidence on record fully corroborates the story narrated by prosecution, and left no doubt regarding commission of offence and guilt of the appellant.

8. Coming to the second point agitated by the learned counsel regarding the sentencing the appellant under section 302(b), P.P.C., instead of 308, P.P.C. as has been provided under section 306, PPC. The learned trial Judge in his impugned judgment/order has held as under:

"The upshot of what has been discussed above is that Prosecution has proved its case beyond any doubt." As per School certificate accused was 12 -years and 2 months old at the time of commission of offence. Minor age of the accused is also not challenged by prosecution. Being a minor he was not mature enough to realize the consequences of his act of murder. Accused a young boy was deprived of maternal care of his mother from his childhood when his mother was divorced by his father, therefore, Capital sentence was not justified. Accused is proved guilty of Qatl-e-Amd of victim Mst. Shabnum Bibi punishable under section 302(b) as Tazir. Therefore, he is not entitled to the benefits of sections 306 and 308, P.P.C. as minor.

9. We took into consideration above findings by the learned trial Judge. The impugned judgment/order if considered in the light of other related record, it reveals that the appellant was a minor and his age was 12 years and 2 months at the time when he committed the offence. This fact has never been challenged neither before the trial Court nor before this Court by the prosecution. We too are compelled to hold that the convict/appellant was a minor at the time of commission of offence.

10. The learned Deputy Advocate General could not convince us that how and why a case of minor offender can be sentenced under section 302(b), of P.P.C., specially, in the presence of specific provisions in this regard. We just to understand the applicability, both the provisions of law i.e. 302(b) and 306 C reported wherein:

302(b).

"Punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified section 304 is not available" 306: Qatl-e-amd not liable to Qisas: -- Qatl-e-amd shall not be liable to Qisas in the following case namely: (a) When the offender is minor or insane. Thus the finding of the trial Judge regarding the nature of offence committed was not appreciated properly.

11. It is evident from the above two reproduced provisions that section 302(b) has been provided and made applicable for such classes of the cases not covered under the scope of section 302(a), P.P.C. due to lack of proof in either of forms specified in section 304, P.P.C. and the offender can only be sentenced under Ta'zir instead of Qisas under section 302(a), P.P.C. having regard to the facts and circumstances of the case, but it does include those cases, where a minor or insane person is guilty of Qatl-e -amd. The legislature has specially provided a special provision with the heading of 306, P.P.C. This provision clearly took away the cases of minors from the ambit of section 302(a), P.P.C. and the punishment of Qisas is made not enforceable to the offenders mentioned in the section 306, P.P.C., including the minors. Sections 306, 307 and 308, P.P.C. only attract in the cases of Qatl-e-amd liable to Qisas under section 302(x), P.P.C., but not in the cases of Qatl-e-amd covered under the scope and definition of section 302(b), P.P.C. Thus the finding of trial Judge upto the extent of commission of offence is found to be correct and needs no interference. However, the trial Judge had failed to appreciate and apply the proper provision of law while convicting and sentencing the appellant. In fact appellant being a minor was liable to be convicted under section 308, P.P.C., instead of section 302(b) of P.P.C., as the learned trial Judge himself has held there the proof was available to convict the accused.

12. Under subsection (1) of the section 308, P.P.C., a minor offender of Qatl-e-amd is liable to pay Diyat. According to 1st Proviso of this section, the Diyat amount is payable either from the property of offender or by such person as may be determined by the Court. In 2nd proviso of the same section, it has further been provided that, where at the time of Qatl-e-amd offender being a minor had attained sufficient maturity and be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may be extended to twenty five years as Ta'zir.

13. We have taken into account the findings of trial Judge vide above reproduced concluding para that, appellant was deprived from his basic needs, prior to his committing offence. His mother was divorced by his father by entering into second marriage. Appellant applied to trial Judge for appointment of pauper counsel, request was acceded by the fudge and his case was defended by the pauper counsel. According to the learned counsel that he is appearing on behalf of appellant without any professional fee just keeping in view his helplessness. In the circumstances appellant owned no property and none have come forward to attend him at any stage of his hard days till yet. The question of payment of Diyat by him or on his behalf seems un-executable punishment to the appellant, hence the imposition/enforcing of Diyat amount on the appellant is nothing except, to keep the appellant behind the bars for un-ending period.

14. The offence was committed by appellant in 1998 since then he is in judicial custody, the quantum of sentence at the time of commission of offence was provided Diyat with imprisonment of 14 years. Vide amendment introduced in 2005; the period of sentence for the cases has been enhanced to 25 years. Section 6 of General Clauses Act saves the right existed at the moment of repealment, enactment/statutes, hence the appellant is fully entitled to get the concession of section 6 of General Clauses Act.

15. We are of the considered opinion that appellant Syed Ahmad Ali Shah committed Qatl-e-amd of Mst. Shabnum Bibi to that extent findings of trial Judge up-held. However, as discussed above appellant is convicted and sentenced under section 308, P.P.C. to undergo simple imprisonment for 14 years with the benefits of 382(b), Cr.P.C. These are the reasons for our short order dated 1-12-2009. H.B.T./47/Glt. Order accordingly.