2007 PLP 1019 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

The appellant was tried for the murder of Imran Yousaf (in case registered vide F.I.R. No.197, dated 7-5-1996) at Police Station "A" Division, District Sheikhupura. The learned trial Court, vide judgment, dated 6-8-1997, convicted him under section 302, P.P.C. and sentenced him to death. He was also convicted under section 324, P.P.C. and sentenced to four years' rigorous imprisonment and a fine of Rs.1,00,000 in default to suffer further one year's rigorous imprisonment for causing injury to Imran Yousaf brother of the deceased. He was also convicted under section 337-A, P.P.C. and sentenced to one year's rigorous imprisonment as also to pay Rs.200 as Daman. The amount of Daman, if recovered was directed to be given to the injured as compensation.

2. The learned High Court dismissed the appeal vide the impugned judgment dated 9-7-2002, leave was granted on the limited question of quantum of sentence.

3. The learned counsel for the appellant submits that the appellant was below 18 years of age on the date of occurrence (dated 7-5-1996) while in his statement under section 342(2), Cr.P.C. (on 26-7-1997), his age recorded was 18/19 years and this was never challenged. He added that the Police Officer, while arresting him had also mentioned his age as 16/17 years. He contends that according to the statement of doctor Muhammad Aslam Hameed, who appeared as D.W.1, the petitioner was 17 years of age when he had examined him on 13th May, 1996. Learned counsel added that the appellant was injured during the occurrence. His injuries were suppressed by the prosecution and he had moved Illaqa Magistrate to have him medically examined. This exercise was done pursuant to the order passed by the Illaqa Magistrate and the doctor noted seven injures on his person. With reference to precedent case-law of this Court, learned counsel submits that in similar circumstance, this Court extended indulgence and had reduced the sentence of death to life. Reliance was placed upon Sohail Iqbal v. The State 1993 SCMR 2377, Muhammad Afzal v. State 1999 SCMR 2851, Ijaz Hussain v. The State 2002 SCMR 1455 and Umar Hayat v. Jahangir and another 2002 SCMR 629.

4. Learned counsel for the complainant, on the other hand, opposed the appeal and submitted that it is not an inflexible rule that a young man should be awarded life imprisonment. Each case is to be decided according to its awn facts and circumstances. In this case, the appellant had caused the death of Imran Yousaf, a student, without any justifiable reason merely on account of the fact that the said Imran Yousaf had forbidden him from teasing the girls. He added that Irfan Yousaf, brother of Imran Yousaf, was also given a knife blow by the appellant. In support of his submissions, he relied upon Zulfiqar alias Bhutto v. The State 1995 SCMR 1668 and Muhammad Saleem v. State 2001 SCMR

536. Learned State counsel has, however, defended the impugned judgment. As according to him, a young age does not, ipso facto, entitle an accused for a lesser sentence.

5. We have considered the submissions of the learned counsel for the parties and gone through the record. While recording his statement under, section 342, Cr.P.C., the appellant had mentioned his age as 18/19 years and this was never challenged at any stage. This indicates that at the time of occurrence, his age was approximately 17/18 years. With such an age, this Court has ordinarily extended indulgence unless it is shown that the act was not worth of any indulgence or compassion. There is nothing on record to indicate that the appellant had acted in a brutal manner unworthy of indulgence. Even otherwise, his defence plea in the statement under section 342, Cr.P.C. was that there was an attempt to commit sodomy on him by Irfan Yousaf (deceased) and it was merely to protect his honour that he had caused a single blow. It is also on record that at investigation stage, on the application moved by the appellant, the Illaqa Magistrate had directed the Medical Officer concerned to examine him with regard to injuries received by him during the occurrence and as per his testimony, as D.W.1 following injuries were found on the person of the appellant:

"(1) Semi-healed abrasion 5 c.m. x 0.3 c.m. on right side of back of neck at lower end. (2) Semi-healed abrasion 1 c.m. x 0.3 c.m. on left side of neck. (3) Complain of pain on front of right side of chest increases on taking deep breaths. (4) Two small semi-healed abrasions in an area 2 c.m. x 1 c.m. on back and upper of right chest. (5) Abrasion 0.3 c.m. x 0.3 c.m. on back and mid of right hand, semi-healed. (6) Multiple healed abrasions with scab formation on back of right elbow joint in an area 4 c.m. x 0.6 c.m. (7) Complain of pain in the testicles. Also complain of retention of urine, dribbling of urine."

6. No doubt, it was suggested to the doctor during cross-examination that these injuries were self-suffered to which he replied that possibility of the injuries being caused by friendly hand could not be c ruled out. There is no categorical opinion and the expression "possibility" does not obviate the effect of the rule laid down in the precedent case-law qua mitigation of sentence. In Sohail Iqbal v. The State 1993 SCMR 2377, there were two views regarding the age of the convict and the Court tended to believe one favouring the convict and relying on his statement recorded under section 342(2), Cr.P.C. with regard to age (where he had mentioned the age as 16 years) the sentence of death was converted into life imprisonment. Similarly, in Muhammad Afzal (supra) a boy of 18 years of age was granted this relief and this view was reiterated in Ijaz Hussain (supra) and Umar Hayat (supra).

7. Learned counsel has not pressed the appeal on merit and even leave was granted only to consider the question of sentence. For what has been discussed above, we are inclined to partly allow appeal and while maintaining the finding of conviction, we reduce appellant's sentence from death-to life imprisonment. He is also extended the benefit of section 382-B, Cr.P.C. The conviction and sentences awarded under sections 324 and 337-A shall remain intact. However, all the sentences shall run concurrently. N.H.Q./M-192/SC Order accordingly.