2003 P Cr (PLP)

14. According to the record appellant was arrested on 25‑4‑2002 and S.H.O. Cantt. prepared his arrest card Exh. P. F . where his age has been recorded as 17/18 years. The same S.H.O. produced the appellant through injury sheet Exh.P.L. and specifically asked the doctor about age of the appellant and on the reverse of Exh.P.L. we find that approximate age recorded by the doctor is 17/18 years. During investigation accused was produced before the doctor as a medico‑legal case and as shown on the reverse of Exh. P. W .10/D‑2 an out door patient Radiology Department, his age has been recorded as 17/18 years. The column for National Identity Card number is left blank, would mean that appellant is not possessed of National Identity Card because National Identity Card is issued to a person above age of 18 years. The only document showing age of the appellant as 19 years does contain overwriting on the word "N" as is in the photo copy Exh.P.W.10/D‑

1. Strangely enough, at the trial the prosecution has exhibited the same document as Exh.P.Q. (original). The handwriting on the two documents is exactly similar but the original does not contain any overwriting. We have no iota of doubt that the column of final opinion is Exh.P.Q. and Exh.P.W.10/1 are recorded in and hand. In Exh.P.Q. it is recorded "Radiological age is about 19 (nineteen years)" while in Exh.P.W.10/1 it is recorded that his Radiological age is 19 (Ninteen years). Because of the irreconcilable two documents. mentioned above and because of bulk of official documents mostly prepared by the prosecution including the school certificate, we hold that age of the appellant is below 18 years. Our such finding is also based on our personal observation when after hearing the learned counsel for the appellant and the State we reserved the judgment on 28‑8‑2002, summoned the appellant on 29‑8‑2002 and are of the opinion that on our own personal observation as well as the opinion of learned Deputy Advocate‑General is that appellant is 17/18 years and not 19 years of age.

15. We will revert back to the proposition that whether the appellant was an adult or not and if so its effect but at present we take up the evidence of the prosecution on the basis of which learned Anti‑Terrorism Court came to the conclusion that appellant is guilty of the offence he is charged with. There is no enmity between the parties. A young lad of age of 9/10 years has been murdered who was medically found to be subjected to sodomy. From the place where his dead body was recovered a used condom was recovered besides a blood‑stained brick. The blood stains recovered on the said brick were found to. be human blood and the blood stains found on the clothes of the deceased were of the same human origin. Accused while in custody has led the police party and on his pointation through memo. Exh.P.G. a piece of brick Exh.P.5 was recovered having blood stains thereon which was taken into possession through memo. Exh. P. K. Exh.P.N./1 is the judicial confession recorded on the third day of his arrest and all details of the occurrence which details have later been confirmed through circumstantial evidence like taking into possession of brick, the faecal matters and the condom are strong corroborative evidence connecting the appellant with the crime The statement of Syed Moamber Jan (P. W.12) who recorded the confession has proved beyond doubts that the confession was voluntarily made. Mere fact that the confession has been retracted would not mean that the confession was not made and when it is supported by circumstantial evidence and when it appears to be a straightforward confession which is voluntarily made, such would be sufficient by itself for recording conviction.

16. Now coming to the question of sentence. not in this case but also in number of other cases and after the amendment is brought about in the Pakistan Penal Code a point is raised that if person accused of an offence of Qatl‑e‑Amd is not adult he will not be awarded death sentence and can only be awarded the sentence of Diyat which can be added with sentence of imprisonment as Tazir which may extend to fourteen years.

17. We have given our anxious thought to the proposition that whether or not a person who is not adult cannot be awarded sentence of death at all where he is accused of offence of Qatl‑e‑Amd.

18. Section 299 to section 338, P.P.C. were substituted by Criminal Law (Amendment) Act, No.II of 1997 on 11‑4‑1997. The "adult" has been defined which means a person who has attained the age of eighteen years. Section 300, P.P.C., as amended, defines the offence of Qatl‑e Amd whereas section 302, P:P.C. provides punishment for the offence of Qatl‑e‑Amd. We would here reproduce the provisions of section 302, P.P.C. for ready reference:‑‑ "

302. Punishment of Qatl‑e‑Amd.‑‑‑ Whoever commits Qatl‑e‑Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as Qisas; (b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished 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 what would be proof of Qatl‑e-Amd liable to Qisas and this section is also reproduced as below:‑‑ "Section

304. Proof of Qatl‑i‑Amd liable to Qisas etc.‑‑‑ (1) Proof of Qatl‑i‑Amd liable to Qisas shall be in any of the following forms, namely:‑‑ (a) the accused makes before a Court competent tee try the offence a voluntary and true confession of the commission of the offence, or (b) by the evidence as provided in Article 17 of the Qanun‑e - Shahadat, 1984 (P.O. No. 10 of 1984). (2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas." Therefore, where offence of Qatl‑e‑Amd is committed. the punishment provided for the offence is death as Qisas, death or imprisonment for life as Tazir where proof as required under section 304, P.P.C. is not available or punishment 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. Under Article 17 of Qanun‑e‑Shahadat Order, 1984 a Court may accept, or act on the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant. This latter part of the Article obviously refers to circumstantial evidence or evidence other than ocular account. Offence of Qatl‑e‑Amd is not liable to Qisas under section 306, P.P.C. Condition precedent is where the offender is minor or insane. The provisions of section 306, P.P.C. are also reproduced as below:‑‑ ."306 Qatl‑i‑Amd not liable to Qisas.‑‑‑ Qatl‑i‑Amd shall not be liable to Qisas in the following cases, namely:‑‑‑ (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, howlowsoever; and (c) when any Wali of the victim is a direct descendant, howlowsoever, of the offender." Section 308, P.P.C. prescribes punishment for when Qatl‑e‑Amd is not liable to Qisas and the statutory provisions are as under:‑‑ "

308. Punishment in Qatl‑e‑Amd not liable to Qisas etc.‑‑‑ (1) Where an offender guilty of Qatl‑e‑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: Provided 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: , Provided further that, where at the time of committing Qatl‑e- 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 Tazir: Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir. (2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Tazir.

19. Before we record our finding regarding interpretation of above given statutory provisions, we would here refer to section 53 of the Pakistan Penal Code which is under Chapter III and the heading of the Chapter is "of punishments". Under this section punishment to which an offender is liable for an offence committed under Pakistan Penal Code have been enlisted. Qisas is punishment No. 1 followed by Diyat, Arsh, Daman, Tazir, sixthly is "death" while seventhly provides imprisonment for life and so on so forth.

20. In view of Pakistan Penal Code as it now stands amended, Qisas by itself is a punishment and so is Diyat. Similarly, sentence of death is other than Qisas and it is, therefore, that in section 302, P.P.C. which provides punishment for Qatl‑e‑Amd. first punishment is death as Qisas and second is death or life imprisonment as Tazir. A plain reading of section 53, P.P.C. read with section 302, P.P.C. would show that offence of Qatl‑e‑Amd is punishable with death which can be either by way of Qisas or by way of Tazir. The two sentences of death are independent of each other.

21. We now revert to the provisions of section 306, P.P.C. Its very heading provides that Qatl‑e‑Amd will not be liable to Qisas where the same is committed by an offender who is minor i.e. not adult. Section 308, P.P.C. also contained the heading that punishment of Qatl‑e‑Amd will not be liable to Qisas where the offender guilty of the offence is not liable to Qisas under section 306, P.P.C. and if so he shall be liable to Diyat. However, if at the time of commission of Qatl‑e‑Amd the offender though minor but attained sufficient maturity so as to be able to realize the consequences of his act, he may be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.

22. We are clear in our mind that exception as provided in section 306, P.P.C. that a minor shall not be awarded punishment of Qatl‑e‑Amd as Qisas is dependent on if there is, proof of Qatl‑e‑Amd liable to Qisas but because of minority, an offender will not be awarded the sentence of death.

23. Where a person accused of offence of Qatl‑e‑Amd is not adult and where there is evidence as required under section 304, P.P.C. and it is proved that he has committed the offence of Qatl‑e‑Amd but because of exception as contained in section 306, P.P.C. he will be only punished with sentence of Diyat with further discretion of the Court to award him a sentence of imprisonment which may extend to fourteen years. This exception will not be applicable where there is evidence that a person though not adult but against whom there is no evidence as required under section 304, P.P.C. who can still be awarded sentence of death under section 302(b), P.P.C. as Tazir.

24. We are conscious of the fact that there appears to be an anomaly that where a person who is minor but against whom there is evidence of a degree as required under section 304, P.P.C. would be benefited by section 306, P. P. C. but the same person guilty of offence of Qatl‑e‑Amd cannot be similarly treated if evidence of Qisas as required under section 304, P.P.C. is not forthcoming against 'him, will still be getting sentence of death. This anomaly is to be resorted by the legislation which is not the job of the Courts. ‑ . Courts are required to apply the law as it is enacted and it is not the job of the Courts to interpret the law which in their opinion should have been so framed. They can, however, refer the matter through concerned quarters to be placed before the Legislature to consider the anomaly and find out the ways and means to remove such inconsistency in the Statute if they so desire.

25. What we have held, above we have been guided by judgment of the august Supreme Court reported in 1999 SCMR 2203 titled Faqirullah v. Khalil‑uz‑Zaman and others. Their Lordships of the august Supreme Court after considerable discussion had concluded and the relevant para. to our above decision is para. 19 of the judgment (supra) where it is ruled:‑‑ "

19. In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances. In another reported judgment Muhammad Saleem v. State 2001 SCMR 536 the august Supreme Court of Pakistan while seized of a criminal appeal where a person was given sentence of death for the offence of Qatl‑e‑Amd committed before the amendment of Pakistan Penal Code, his sentence of death was maintained on the ground that it was within the competence of the trial Judge to award death sentence to a person not adult not as Qisas but as Tazir.

26. The upshot of our above discussion is that where an offender is not an adult and has committed the offence of Qatl‑e‑Amd and the case is proved against him otherwise and there is no evidence as required under 1 section 304, P. P. C. He can still be awarded 'sentence of death not as Qisas but as Tazir which is the legal sentence under section 302(b), P. P. C.

27. In view of our finding, recorded above, we are convinced that prosecution has successfully brought home the charge of Qatl‑e‑Amd of sodomy and the offence under section 12 of the Zina Ordinance against the appellant. The conviction has been rightly recorded by the Judge Anti‑Terrorism Court. As for sentences are concerned, we maintain the conviction and sentence under section 12 of the Zina Ordinance, also under section 377, P.P.C. alongwith fines but keeping in view the dictum laid down by the august Supreme Court of Pakistan in the judgment reported in 2002 SCMR 629 where age of the appellant was considered and sentence of death awarded was commuted to life. Following such principle, we maintain the conviction of the appellant under section 302(b), P.P.C. but award him sentence of life imprisonment instead of death as Tazir. Fine as imposed and is payable as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. is left intact. The murder reference is answered in negative. N.H.Q. /601 /P Sentence reduced.