P L D 2009 Supreme Court 777 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

Shaukat Abbas was the solitary accused burdened with the "Qatal-e-Amd" of one Muhammad Akbar on 20-12-2000 at about 2-30 p.m., in the area of Police Station Darya Khan of District Bhakkar. On being sent up to the Court of Session, the said Shaukat accused was, on 7-5-2001, charged with the said murder by a learned Additional Sessions Judge at Bhakkar. The prosecution evidence was examined. It was during the course of his examination under section 342, Cr. P. C that the said Shaukat Abbas accused claimed, for the first time, that he was 17-1/2 years of age at the time of making the said statement on 27-6-2001 i.e. about six months after the occurrence. On a question whether he would like to lead any defence evidence, the said accused produced a School Leaving Certificate, according to which certificate the appellant was born on 12-12-1983 meaning thereby that he was seventeen years and seven days old on the day of occurrence.

2. The learned Assistant District Attorney then submitted an application seeking permission to produce a copy of the birth register of Shaukat accused which was allowed to be placed on record as Exh.P.M. and according to which entry the appellant was born on -15-9-1980 indicating that the said accused w9" more than twenty years of age at the time of occurrence.

3. The learned trial Judge examined the question of the appellant's juvenility and placed reliance on the above-mentioned copy of the Register of Births as also on the Identification Slip prepared by the Investigating Officer. Where the said accused was mentioned as being eighteen years old. The said learned trial Judge concluded that the petitioner was not less than eighteen years' of age at the time of occurrence and consequently punished him with a sentence of death.

4. On an appeal filed before the Lahore High Court, the conviction recorded against Shaukat accused was maintained' but the sentence of death awarded to him by the trial Court was converted to a punishment of imprisonment for life as a result of the finding of the High Court that the appellant was less than eighteen years of age at the time of the occurrence in question.

5. Muhammad Aslam complainant approached this Court through Criminal Petition No.214-L of 2006 seeking imposition of the normal penalty of death on Shaukat convict. This petition was allowed and leave was consequently granted through an order of this Court, dated 7-4-2006. The operative part of the said order reads as under:-- "(2) On an appeal filed by him the learned High Court maintained the conviction recorded against the said convict but refused to confirm the said sentence of death and reduced it to a punishment of imprisonment for life on the ground that the copy of the birth register produced by the prosecutor had been produced late; had not been put to the accused person during his statement under section 342, Cr.P.C. and thus it had to be ruled out of consideration. (3) The question is as to what was the option left for the persecution to rebut the claim of the convict when such a claim had been made, for the first, time, during the statement under section 342, Cr.P.C. and by producing the said school leaving certificate during the course of the said statement. Needless to mention here that it had been held by this Court that an accused person was obliged to take the plea of minority at the earliest possible stage preferably during the course of investigation. Reference may be made to Sultan Ahmed v. Additional Sessions Judge and others reported as PLD 2004 SC 758. (4) The question requires consideration. Therefore, this petition is allowed and leave granted for the purpose."

6. Shuakat Abbas convict also followed suit and filed Criminal Petition No.269-L of 2006 seeking his acquittal of the charge. The said petition was also allowed by this Court on 2-5-2006 with the following order:-- "Since we have already granted leave after allowing Criminal Petition No. 214-L of 2006 seeking enhancement of the punishment awarded to Shaukat Abbas convict, therefore; it would be appropriate if this petition filed by the said convict is also allowed and leave granted so that both these matters could be examined together. Consequently, Criminal Petition No.269-L of 2006 is allowed and leave granted for the said reason and for the said purpose."

7. The learned Advocate Supreme Court for Shaukat Abbas convict, the learned Advocate Supreme Court for Muhammad Aslam complainant and the learned Additional Prosecutor-General have been heard and we have also perused the record with the assistance of the said learned counsel.

8. Determining the quantum of punishment deserved by a convict, especially in the matter of offences which are punishable also with death, should not be taken lightly as a mere triviality. And we need to keep reminding ourselves that the normal punishment for such-like offences was death and death alone. And it was for the said reason that the provisions of subsection (5) of section 367 of the Cr.P.C. commanded that where:-- "(5) ???? The accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why sentence of death was not passed." (Emphasis has been provided).??????????? The rule in such-like cases, therefore was, imposition of the sentence of death and a punishment other than death could, thus, be awarded only in exceptional cases and that also on strict proof of facts and circumstances justifying a deviation from the said normal rule. If a convict, for example, wishes to avoid death penalty on account of being less than 18 years of age, then the onus would be on him to prove his minority for the purpose. It was held by this Court in Sultan Ahmed v. Additional Sessions Judge and others (PLD 2004 SC 758) that where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the Courts at the fag end of the trials or at the appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner. It may be added that whenever such, a plea is raised, the Courts of law could fall into error by accepting the same only because some school leaving certificate so said. The provisions of section 7 of the Juvenile Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein the Courts should require production of evidence for proof of age in accordance with the manner and the procedure prescribed the Qanun-e-Shahadat Order, 1984 and wherein the other side is also afforded opportunities which are envisaged and guaranteed by the said Order. Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with the danger of the Courts being misled into passing un?warranted orders. Such-like documents should never be accepted without being tested for their authenticity and genuineness which would be possible only if the procedure prescribed by the said Order of 1984 was followed and where the accused was also put through the requisite medical examination.

9. In the present case, it was only after the prosecution had closed its case and while Shaukat accused was being examined under section 342, Cr.P.C. that he shot out a School Leaving Certificate into the trial, claiming that he was less than 18 years of age at the time of occurrence. Left with no other option, the learned Prosecutor placed on record, a copy of the Register of Births (Exh. P.M.) relating to the birth of the said accused to controvert his claim of minority as according to the said entry, the said accused was more than 20 years of age at the relevant time. The trial Court did not accept the said claim of the accused and while convicting him under section 302(b), P.P.C.; punished him with death. But, while hearing his appeal, the High Court declared the said convict to be a "child" after ruling out of consideration, the said copy of the Register of Births, on the ground:

(a) that the defence had objected to the admissibility of the said copy of the Register of Births but the said objection had not been decided by the Trial Court; and (b) that the said document had not been put to the said accused during the course of his examination under section 342, Cr.P.C. and that any piece of evidence not so put to the accused, could E no-t be used against him.

10. As has been mentioned above, it was the convict himself who had chosen a rather late stage of the trial i.e. during the course of his examination under section 342, Cr.P.C., to lay claim to minority. Where was, in the circumstances, an occasion or opportunity for the Prosecutor or even for the court to put, the entry of his birth in the relevant Register, to him during the said statement? Punishing the prosecution in such a situation would be giving premium to a party for his own follies which could not be approved. Secondly, the special plea of minority, in order to escape death penalty, had been taken by the accused. Onus thus, lay on him to prove the said fact beyond all doubts. The accused could not be deemed to have discharged the said burden by merely placing a School Leaving Certificate on record and moreso when no opportunity had been provided to the other side to test the veracity or the genuineness of the said document or the contents thereof. Thirdly, the accused, might well be a favourite child of law but then this favouritism could not be permitted to be extended to an extent where the legal requirements had to be ignored and sacrificed.

11. While we are on the subject, we consider it necessary to re-iterate the principles regulating the determination of age of accused persons vis-a-vis their claim of minority and the procedure to be followed for the purpose. The same are summarized as under:

(a) The normal penalty for an offence punishable with death, is death, and in view of the provisions of section 367(5), Cr.P.C., special reasons must exist to impose, on the convict, a punishment other than a sentence of death; (b), the plea of minority by an accused is a special plea intended to' take the accused off the noose and onus is thus on him to prove the same; (c) such a plea of minority must be taken by the accused at the earlier possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise of collection of evidence and any delayed claim on the said account should be met by adverse inferences;, (d) whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose; (e) the said inquiry should not be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice needs not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and unscrutinised documents was a dangerous path to tread; (f) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence -- oral or documentary in accordance with the provisions of Qanun-e-Shahadat Order of 1984 with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof; (g) a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to; and finally, (h) we must always keep in mind that while it is important, being a legal command, that a "child" should not be sent to the gallows, it is equally important that the one who deserves death must not be allowed to escape the same on the strength of 'false and fabricated material.

12. In the light of the principles of law and those of the procedure and also in the light of .the rules of caution enunciated above, we say with great respect, that we cannot approve of the exercise undertaken by the trial Court as also by the High Court to resolve the issue in question in the present case. Nor could the consequent findings about the minority of the convict be resultantly sustained. We would have ordinarily remanded the matter back to the trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh but since some other material is available on record which offers a valid ground to sustain a sentence of imprisonment for life and not to award the normal penalty of death to Shaukat convict in case his conviction was maintained, therefore, in order to avoid an avoidable further delay, we have decided to dispose of the matter on its present record.

13. It is in evidence that the occurrence in question had taken place in broad daylight and the venue thereof was the shop of the deceased-party. It is also in evidence that there was no background of any previous enmity or animosity between the two sides. It is true that both the eye-witnesses of the present occurrence, namely, Aslam complainant (P.W.6) and Ghulam Abbas (P.W.7) were real brothers of Akbar deceased but then they had no reason or motive to falsely implicate Shaukat accused in the murder in question. They were thus independent witnesses of the said occurrence. It is also on record that the place of occurrence was one of the two adjacent shops of the deceased party and both these eye-witnesses used to be working on the said shops. The time of occurrence was 2-30 p.m. The said eye-witnesses were thus not only independent but even natural witnesses to the crime and their testimony inspired confidence.

14. In the circumstances, no exception could be taken to the finding of guilt recorded against Shaukat convict by the trial Court as maintained by the High Court. Consequently, Criminal Appeal No.356 of 2006 filed by the said Shaukat convict is dismissed.

15. The motive alleged for the murder in question was a trivial altercation between Akbar deceased and Shaukat convict about 3/4 hours before the actual occurrence. Had it been so and if Shaukat convict was to return to the place of occurrence after the said period of time only to do the deceased to death, then he would not have come armed only with a Churri knowing fully well that the deceased-party Were four young brothers working and available at the said place of occurrence and a mere Churri could not have served the purpose and would have in fact landed the convict himself into trouble. What, therefore, appears is that it was during the course of the said altercation at the shop of the deceased-party that the convict had picked up a Churri therefrom and had dealt a solitary blow to the deceased therewith. Needless to add that according to the two eye-witnesses, they ran a vegetable shop and a poultry meat shop at the place of occurrence where instruments like Churris were readily available. The occurrence thus being one which had cropped up at the spur of the moment where the convict had picked-up a weapon available at the spot and had given a single blow to the deceased, certainly offered valid reasons for not imposing the normal penalty of death on the said convict who was thus entitled to the lesser of the two penalties i.e. a punishment of imprisonment for life.

16. Consequently, no case of awarding a punishment of death to Shaukat convict was made out wherefor Criminal Appeal No.229 of 2006 filed for the purpose by Aslam complainant is also dismissed. M.B.A./M-75/S?????????????????????????????????????????????????????????????????????????????????? Order accordingly.