2003 P Cr (PLP)

4. Adalat Khan, Moharrir of police station had formally recorded F.I.R. Exh.P.E.

5. Dr. Nawazish Ali P.W.1 had medically examined Muhammad Ishaq on 12‑7‑2000 and found five injuries on his body. The post‑mortem examination on the dead body of Ishaq was also conducted when he died in the hospital.

6. Copy of post‑mortem examination report Exh.P.B. was tendered in evidence by the Medical Officer.

7. Muhammad Akhtar P.W.8 reaffirmed the narrative contained in the F.I.R. Shaukat Ali P.W.9 supported the prosecution case given in the F.I.R. He had also witnessed the recovery of blood‑stained earth vide memo. Exh.P.J. and recovery of dagger P.3 at the instance of Nasar accused vide memo. Exh.P.K.

8. Mushtaq S.‑I. P.W.10 has given the details of investigation conducted by him.

9. The accused in their statement recorded under section 342, Cr.P.C. denied the prosecution case against them. Muhammad Nasir accused took the following stand:‑‑ "During the days of occurrence I and my father Muhammad Abdullah cultivated agricultural fields situated in Square No.28 of Chak No.325/JB. On the day of occurrence dated 12‑7‑2001 1 and my father Muhammad Abdullah accused were working in Killa No. 13 of Square No.28 mentioned above which was owned by my father and was under our cultivation. At about 7 a.m. on that day, suddenly Muhammad Ishaq deceased, came in above mentioned Killa No.13, started giving shoe blows to him, abused and humiliated him. He felled him on the ground and fastened him. Finding himself helpless my father Muhammad Abdullah accused shouted and sought my help. I rushed to the spot, in such a situation I lost my self‑control and caused injuries on the person of Muhammad Ishaq deceased. My father Muhammad Abdullah was empty‑handed, so he did not cause any injury to the deceased. None of the P. Ws. was preset at the place of occurrence at the time of occurrence and did not witness the occurrence. P. Ws. are interested and inimical. 1 was minor at the time of occurrence."

10. Trial Court believed the prosecution case and convicted Nasar accused as stated above.

11. The convict appealed. The complainant filed criminal revision petition for enhancement of sentence awarded to Nasar. convict. which was directed to be heard alongwith criminal appeal filed by the convict.

12. Learned counsel for the appellant submitted that the appellant convict. was a young boy and had acted in the manner he did on account of damage caused to his crop by the cattle belonging to the deceased who was elder brother of father of the appellant. It was submitted that land in which the incident had taken place admittedly belonged to the appellant and the appellant had a right to defend crops sown in the land, and also his father who was belaboured by the deceased, and in the facts and circumstances of the case, the appellant deserved to be treated leniently in the matter of sentence on account of his age and also by taking into account the background in which the incident had taken place. Learned counsel for the complainant and State on the other hand argued that the appellant had inflicted knife blows to his old uncle and the manner in which the offence was committed showed the appellant to be a dangerous and desperate person and he deserved the maximum penalty to be awarded.

13. The incident in this case has been admitted. Awarding of lesser sentence to the appellant has been prayed for on his behalf. Scrutiny of record reveals that Nasar was aged 18 years or so at the time of trial. He was less than 18 at the time of occurrence and could have been convicted under section 302, P.P.C. read with section 308, P.P.C., only. The sentence awarded to the appellant was not the legal sentence. The appellant could have been convicted under section 302(c), P.P.C. and sentenced under section 308, P.P.C. It has been argued on behalf of learned counsel for the appellant that basic sentence provided by provisions of section 308, P.P.C. was payment of Diyat only and sentence of imprisonment was a discretionary punishment and should not be awarded to the appellant as he was a young person. The plea raised by defence is not without force but in this case the appellant‑convict had done to death his real uncle and inflicted a number of injuries on his person. It was not a case of infliction of a single blow. The death was caused with vengeance and that showed that appellant had attained sufficient maturity at the relevant time, therefore, in this case the appellant deserved to be awarded sentence of imprisonment, as well.

14. As the appellant was minor at the time of incident, he is convicted under section 302(c), P.P.C. read with section 308, P.P.C. ands sentenced to payment of Diyat amounting to Rs.2,69,

176. The appellant is also sentenced to 14 years' R.I. as Tazir. Benefit of provisions of section 382‑B, Cr.P.C. shall be extended to the appellant‑convict, as well. The appellant can seek his release from prison from the trial Court under section 331, Pakistan Penal Code.

15. The conviction and sentence awarded to the appellant by the trial Court is modified accordingly.

16. The appeal with above modification in conviction and sentence awarded to the appellant, is dismissed. 17.' The appellant was minor at the time of incident, and maximum sentence provided by the law on the subject has been awarded to him. Therefore, revision petition, is dismissed. N.H.Q./M‑1645/L????? Order accordingly. ?