1999SCMR2652 (PLP)

KHALIL-UR-REHMAN KHAN, J.

The facts forming background of this appeal by leave of the Court are that Muhammad Afzal alias Seema, appellant was tried by the learned Additional Sessions Judge, Gujranwala alongwith Bashir Ahmad and two others, under section 302/34, P.P.C. for the murder of Muhammad Hussain on 29-10-1990. Learned trial Court, vide judgment, dated 30-3-1994 held Bashir Ahmed guilty of the offence under clause (b), of the section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.25,000 or in default to undergo R.I. for 2 years. He was also sentenced to pay compensation to the tune of Rs.25,000 to the legal heirs of the deceased or in default to suffer S.I. for 6 months. Muhammad Afzal alias Seema, appellant, who had caused simple injuries as per prosecution version, was also convicted under section 302/34, P.P.C. observing that he had shared common intention with accused Bashir Ahmed as both of them were armed with daggers, sitting in ambush and had chased the victim. The two other co-accused were, however, acquitted because of lack of sufficient evidence. Relevant findings recorded by the trial Court may pertinently be reproduced:

"Accused Bashir Ahmed, and Muhammad Afzal are convicted under section 302/34, P.P.C. Muhammad Afzal as per his school leaving certificate which has been produced in his defence Exh.P.D. was born on 11-9-1977, therefore, at the time of occurrence he was a young lad of 13 years, therefore, provisions of sections 306 and 308, P.P.C. would apply to his case, but no evidence has been led that he was not mature enough to realize the consequences of the act. His case would be covered by mischief of Proviso-II of section 308, P.P.C. However, because of his minority he is sentenced to pay Diyat to the tune of Rs.1,75,000 in lump sum or in 10 equal instalments to the legal heirs of deceased. He shall also suffer imprisonment for 7 years' S.I. as Ta'zir. He shall remain in-Jail till whole amount of Diyat is paid or surety for the same is furnished." They were also given benefit of section 382-B, Cr.P.C. The appeals filed by them were dismissed by High Court vide impugned judgment, dated 21-7-1997. Leave to appeal was granted to Muhammad Afzal alias Seema, vide order, dated 4-1-1999, to consider the question whether he could be imprisoned 14 in jail for indefinite period till the payment of Diyat money under section 331, P. P. C. During hearing of the appeal a report was called for from the Jail Superintendent as to whether the appellant has served out the sentence of imprisonment awarded to him and it was reported that he has served out the sentence of imprisonment awarded to him on 8th of December, 1998 and thereafter he is being detained .in jail on account of non-payment of amount of Diyat as it is contained in the judgment of the Trial Court that he shall remain in jail till whole amount of Diyat is paid or surety for the same is furnished. Raja Muhammad Anwar, Senior Advocate, learned counsel for the appellant submitted that period of three years should have been allowed to the appellant to make the payment of Diyat from the date of passing of the final judgment i.e. the judgment to be passed by this Court in the present appeal and as such detention of the appellant in Jail is illegal and unauthorized. It was added that the detention in Jail is to be directed in case default is made in the payment 'of Diyat payable in lump sum or in instalments and that the default so occurring is also willful and mala fide. We have gone through the record minutely and have also considered the contentions noted in the leave granting order as well as those urged before us during arguments. The appellant as well as his co-accused were held guilty of the offence under section 302/34, P.P.C. Learned trial Court (Additional Sessions Judge, Gujranwala) while awarding sentence to Bashir Ahmed co- accused specifically mentioned that he is being sentenced to imprisonment for life under clause (b) of section 302, P.P.C., but while holding Muhammad Afzal alias Seema, appellant guilty for the offence as he shared common intention with Bashir Ahmed, he failed to mention clause (b) of section 302, P.P.C. Obviously the conviction is for the offence under section 302(b) read with section 34, P.P,C. and in that view of the matter no question arises of applying section 306 or 308, P.P.C and thereby awarding sentence to pay diyat or Ta,zir punishment under Proviso-II to section 308, P.P.C. It is pertinent to note that whoever commits Qati-i-Amd as defined in section 300, P.P.C is punishable under section 302, P.P.C as under:

(a) with death as Qisas. (b) with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case; or (c) 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 Qatl-i-Amd is punishable with death as Qisas on the basis of the proof, if available, in the following forms:-- (a) a voluntary and true confession of the commission of the offence made by the accused before a Court competent to try the offence; of (b) evidence as provided in Article 17, of the Qanune-e-Shahadat, 1984 (P.O.No.10 of 1984). If proof in either of the above stated forms is not available, the punishment as provided in clause (b) of section 302, P.P.C. is to be levied or awarded. Admittedly proof as is provided in section 304, P.P.C. was not produced and it was for that reason that conviction was recorded in the case of Bashir Ahmad co-accused specifically under clause (b) of section 302, P.P.C. and conviction of Muhammad Afzal alias Seema (appellant) is also to be taken to have been recorded under clause (b) of section 302, P.P.C. It may further be added that in a case where an offender who is sought to be punished with Qisas is a minor, section 306, P.P.C. intervenes as it provides that Qatl-i-Amd shall not be liable to Qisas in the following cases:-- (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, how low-so -ever; and (c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender. Section 308, P.P.C. provides that 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. The first Proviso to section 308, P.P.C. further provides 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. The second Proviso invoked by the learned trial Court in this case reads as under:

"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 realise 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 ta' zir. " Learned trial Court while awarding seven years' S.I. under this proviso observed that as per School Leaving Certificate, Muhammad Afzal alias Seema, appellant, was born on 11-9-1977, therefore, at the time of occurrence i.e. on 29-10-1990, he was a young lad of 13 years and provisions of sections 306 and 308, P.P.C. would apply to his case but as no evidence has been led that he was not mature enough to realize the consequences of the act his case would be covered by the mischief of the above quoted second Proviso to section

308. The mistake committed here by the learned trial Court is that the burden of proving that the appellant/offender was mature enough to realize the consequences of his act was placed on the accused/appellant. It may be pointed out that the burden to prove non-attainment of sufficient maturity of understanding to judge nature and consequences of the conduct lies on a child, accused of an offence, aged above 7 years and below 12 years, in view of the, negative nature of the provision contained in section 83, P.P.C.; which reads as under:-- "Nothing is offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. " It was because of the negative nature of this provisions that it has been held in Sheikh Hassan v. Bashir Ahmad and another (PLD 1966 Pesh. 97) by Full Bench that where the accused is above seven years of age and under twelve, "sufficient maturity of understanding" is to be presumed in case of such a child unless negative be proved on defence, i.e., the burden of proof lies on the accused above the age of seven and below twelve to show that he had not attained sufficient maturity. Again in Abdul Sattar and another v. The Crown (PLD 1949 Lahore 372) it was held that it is not necessary for the prosecution to lead positive evidence to show that accused person below twelve years of age had arrived at sufficient maturity of understanding. The same position, in our considered view, does not operate in the case of second Proviso to section 308, P.P.C. as the same is not couched in negative form. Rather it provides 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 a term which may extend to fourteen years as ta'zir". Moreover, though the term "minor" has not" been defined in Chapter XVI of P.P.C., the term "adult" has been defined in the said Chapter in section 299, P.P.C. to mean "a person who has attained the age of eighteen years". Again, Qisas, it is well-established, can be exacted from an adult, sane offender and not from a minor; as a minor is not liable to Qisas as is apparent from the provisions of section 306, P.P.C. and it is for that reason that section 308, P.P.C. provides punishment of diyat where the offender is a minor in the case of Qatl-i-Amd. It necessarily follows that if the offender is a minor and the prosecution seeks ta'zir punishment, it has to establish by producing evidence that the minor had attained sufficient maturity to realize the consequences of his act. Learned trial Court, as such, legally erred in placing onus of proof on the appellant and in invoking second proviso to section 308, P.P.C. to award sentence of 7 years' S.I. The said sentence is, therefore, set aside. As regards the liability to pay diyat in the sum of Rs.1,75,000, it is pertinent to note that the case in hand does not appear to be that of Qisas as the proof was not produced in the manner provided by section 304, P.P.C. Moreover, Bashir Ahmad co-accused has been convicted under clause (b) of section 302, P.P.C. and the appellant, Muhammad Afzal alias Seema has been held guilty of having shared common intention with Bashir Ahmed, the principal accused and by applying section 34, P.P.C. he has been held guilty under section 302, P.P.C. which conviction has been held to be under clause (b) of section 302, P.P.C. This being the position, the question of awarding Diyat by applying the provisions of section 306, P.P.C. and section 308, P.P.C. does not arise. The direction to pay Diyat, in the circumstances, is also illegal and is, therefore, set aside. In this view of the matter the question "whether the appellant/offender could be imprisoned in jail for indefinite period till the payment of diyat money under section 331, P.P.C.", really does not arise in this case. So, the said question for consideration of which question leave to appeal was granted in this case better be left to be dealt with in some appropriate occasion. We have also noted with concern that no thought Vas given by the learned trial Court as well as by the learned Judge of the High Court to the aforenoted aspects of the case and also to the fact that while making a direction to pay diyat in the case of a minor the Court has further to find out the source from which diyat has to be paid and the person who shall pay the diyat and then to pass appropriate direction. First Proviso to section 308, P.P.C. provides 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. This necessarily entails an inquiry as to whether the minor owns any property and, if so, who is the person in custody of that property so that direction be made to him to pay the diyat, or' there is any other person liable to make the payment e.g. any Insurance Company etc. The position that emerges in the instant case is that the appellant is an orphan. He does not hold any property. Neither he, nor any of his near relation is even in a position to furnish surety to secure his release. It was for these reasons that he is still confined in jail though he has served out the substantive sentence ion 8th December, 1998. It is also apparent that legal sentence had not been passed in the instant case. So, should the case be remanded for that purpose at this late stage. The occurrence took place on 29-10-1990; the appellant alongwith his co-accused was arrested on 18-11-1990 and as per report of the Superintendent Jail he (the appellant) having-served out the substantive sentence as on 8-12-1998 is still being detained in jail on account of non-payment of diyat. In our view, in these circumstances, remand would not be justified. The appellant, as per prosecution case itself had only caused simple injuries and he was held guilty of the offence by applying section 34, P.P.C. The question whether section 34, P.P.C. was rightly applied in the case of the appellant who was at the time of the occurrence a lad of only 13 years also requires a deeper consideration. Be that as it may, the appellant has suffered adequately for joining his elder in causing three simple injuries to the deceased. The sentence suffered is adequate. The sentence already undergone is, therefore, held to be sufficient and appropriate, and is modified accordingly. The order directing payment of diyat having been set aside and the sentence having been converted into one already undergone, the appellant is directed to be released forthwith if not required to be detained in any other case. In the above terms the appeal stands disposed of. N.H.Q./M-362/5 Order accordingly