2001 PLP 536 (SCMR)

ABDUR REHMAN KHAN; J.

Muhammad Sarwar, a student of 4th class was murdered near the gate of the school on 4-1-1989, at 1-00 p.m. This murder was reported to the Police by his brother Muhammad Yasin (P.W.2), the same day at 2-30 p.m. It was stated in the report that his deceased brother, a student of 4th class, aged about 16 years, was about to enter the gate of the school, when Muhammad Saleem accused (appellant) armed with Chhuri, stabbed him on his neck who fell down and while he was lying down the accused repeated blows with Chhuri. The complainant, Haqnawaz contractor and Bashir Ahmed tried to apprehend the accused, but he managed to escape.

1. On the conclusion of trial the learned Sessions Judge convicted the appellant under section 302, P.P.C. and sentenced him to death and to pay fine of Rs.20,000 or in default to undergo' R.I. for two years. A learned Divisional Bench in the High Court by the impugned judgment, dated 9-4-1997, dismissed the appeal preferred by the appellant and confirmed the

2. Leave to appeal was granted is this case in these terms:-- "After hearing the learned counsel at length, we do not find any merit in this case. As far as the question of sentence is concerned, the same requires consideration although specifically this point has not been urged, but in law death sentence cannot be awarded to the petitioner, who happens to be a minor, therefore, only on the limited question of sentence leave is granted. " It is thus clear that the leave was granted only on the limited question of sentence on the plea of minority of the appellant.

3. The learned counsel appearing for the appellant argued that the occurrence took place on 4-1-1989, and the statement of the appellant under section 342, Cr.P.C. was recorded on 23-11-1991, wherein he has been shown as 18 years of age, so calculating the age of the appellant on this basis his age at the time of occurrence would come to 15 years and two months and thus being minor he could not be awarded death sentence under the law.

4. This argument is misconceived. The provision of Criminal Law (Second Amendment) Ordinance, 1990; whereby, adult has been defined to mean a person who has attained the age of 18 years and such a person in term of section 308, P.P.C. is not liable to Qisas, was promulgated on 5-9-1990 and was enforced on 3-10-1990, whereas the offence in this case was committed on 4-1-1989 and as such the said law would not be applicable. Moreover, even otherwise the said provisions would not apply as the penalty of death in this case has not been imposed as Qisas but has been awarded as Ta'zir. The argument indicates that this point of minority has not been agitated, because it does not find any mention in the impugned judgments. There is no evidence on record to prove that the appellant at the time of occurrence was 15 years of age as he has not produced any evidence on this point. The trial Court usually records the age of the accused at the time of recording statement under section 342, Cr.P.C. at random and in routine manner, just by appearance, which cannot be made basis for finding on such an important matter. The post-mortem report indicates that the deceased suffered 13 incised wounds and most of them on vital part of the body. The deceased a young boy of 16 years, was done to death merely because he refused to surrender to the immoral lust of, the appellant. The murder has been committed in brutal and relentless manner and such an accused does nor deserve any leniency in matter of penalty. The learned trial Court, therefore, rightly, convicted and sentenced the appellant to death and the High Court was justified in dismissing the appeal and confirming the death sentence. Consequently, this appeal is without merit and is dismissed. N.H.Q./M-202/S Appeal dismissed.