1995 PLP 1668 (SCMR)

SALEEM AKHTAR, J: This appeal with the leave of the Court challenges the judgment of the learned Judges of the High Court, whereby the appellant was sentenced to death with a fine of Rs.20,000 in default of payment of fine 3 years' R.I. and in the event of realization compensation to be paid to the legal heirs of the deceased.

2. On 16‑6‑1988 at 9‑30 a.m. the statement of Abdul Hameed, brother‑ in‑law of deceased Abdul Samad was recorded ii the Civil Hospital by Ahmed Yar Khan S.I. P.W.12 on the basis of which a formal F.I.R was registered at 9‑45 a.m. at P.S. Kotwali, Jhang. It was alleged that on that day at about 9 a.m. complainant alongwith Muhammad Riaz, Muhammad Bashir, Abdul Sattar and Abdul Samad deceased were returning home from the slaughter house. Abdul Samad was on his cycle 10 to 15 Karams ahead of them. When he reached at Chungi No.6 Zulfiqar alias Bhutto, the appellant, armed with a dagger suddenly appeared from the right side and attacked Abdul Samad from the back. He inflicted several injuries on the left side of the waist and the right side of the back and the neck. Abdul Samad fell down from the cycle and on his cries they ran towards him but the appellant succeeded in escaping. They then took.Abdul Samad to Civil Hospital, Jhang, where the died. The motive alleged in the F.I.R. was that in the year 1957.one Babu, a close relative of the petitioner had murdered the cousin of Abdul Samad deceased and in 1966 Abdul Samad deceased had murdered Muhammad Hanif, real brother of the father of appellant for which he was convicted and was released in 1973 after having undergone the sentence. It was alleged that to avenge the said murder ' the appellant had murdered Abdul Samad. At the trial Abdul Hameed P.W.8 the brother of the wife of deceased and Abdul Sattar P.W.11 husband of the sister of complainant's wife (Humzulf) supported the prosecution case but other eye‑witness namely Muhammad Bashir was declared hostile and he was cross‑examined by the prosecution counsel while Muhammad Riaz another eye‑witness was given up as having been won over by the appellant. The appellant pleaded not guilty and denied the prosecution allegation against him. He stated that the deceased was murdered in the early hours of the morning by some unknown persons and he was falsely implicated due to family enmity. He also stated that the alleged murders which are cause of enmity had occurred before his birth. Leave was granted to consider the contention that the Courts below have failed to appreciate the evidence in its true perspective resulting in miscarriage of justice and that it is an admitted fact that there was enmity between the parties and in that view of the matter the uncorroborated testimony of relation‑cum‑inimical witnesses was not sufficient to warrant the conviction.

3. The learned counsel for the appellant contended that the whole story of the prosecution is doubtful and that the statement of the prosecution witnesses particularly the eye‑witnesses cannot be believed. Abdul Hameed P.W.8 and Abdul Sattar P.W.11 who are closely related to the deceased and the complainant are the only eye‑witnesses who where examined by the ‑prosecution. The learned counsel vehemently argued that the presence of these witnesses at the time of occurrence is doubtful. The deceased as well as P.Ws. 8 and 11 are butchers and they were returning from the slaughter house. The incident occurred at 8. a.m. and Abdul Hameed P.W.8 brought the deceased to Civil Hospital, Jhang where his statement was recorded at 9‑30 a.m. while the formal F.I.R. was registered at 9‑45 a.m. The time spent between the incident and recording of the statement is so short that it is not possible that after the incident had happened P.W.8 may have been called who then started proceedings as stated above. The fact that his statement was recorded in the hospital at 9‑30 a.m. conclusively leads to the conclusion that he was present at the time of incident and had take, Abdul Samad to the hospital. So far Abdul Sattar P.W.11 is concerned, he had accompanied P.W.8 to the hospital. He had also stated that he was coming alongwith the deceased and P.W.8 and saw the incident. It is true that' they are closely related and have enmity with the family of the appellant but this very fact may not be sufficient to discard their evidence. Their testimony is fully corroborated by the fact that they took the deceased to the hospital immediately and within no time the statement was recorded and report was lodged. The medical evidence as regards bringing Abdul Samad at the hospital in injured condition by Abdul Hameed, the time at which he was brought over there, time of death and the duration between injuries and death stated to be 2 hours corroborate the testimony of P.Ws. 8 and

11. Both the Courts below have, therefore, properly appreciated and appraised their testimony and accepted it on correct, principle of law.

4. The learned counsel contended that the slaughter house was about 400 yards away from the place of incident and the cries must have attracted on which. P.Ws. would have reached there but the possibility of seeing the occurrence does not arise. This is conjectural as P.Ws. 8 and 11 have stated that they were accompanying the deceased who was ahead of them on cycle. Their statement is consistent and their presence at the place of incident is not unnatural. No inconsistency had been pointed out to discard their testimony He further contended that there is a contradiction in their statement when one says that they remained standing while the other says that they tried to catch the accused. This is not a contradiction of such material nature, which may affect the very root of the prosecution case or may discredit the testimony of the witnesses. Such minor varying statements of the incident cannot be treated as contradiction to affect the veracity of the P.Ws.

5. The learned counsel then contended that the appellant is of tender age and was born on 17‑10‑1973, therefore, death sentence 'should not ‑ be imposed. The learned counsel referred to a birth certificate which was produced by the appellant in a statement recorded on 15‑1‑1990 after the appellant's statement under section ' 342, Cr.P,C. had been recorded on 23‑12‑1989 and he had refused to make statement under section 340 (2), . CrY.C. The learned Judges have not accepted it mainly on the ground that the appellant resided at Jhang while the certificate was issued from Municipal Committee, Sargodha. On the record there is no authentic evidence about the age of the appellant as in his statement under section 342, Cr.P.C. his age has not been recorded and further the prosecution has given the age as 22 years', without any basis: It may however be noted that in his statement under section 342 Cr.P.C. when question was put about the previous murders in the years 1966 and 1973 which were the cause of enmity, the appellant had stated that those were committed before his birth. This may help in assessing the age of the appellant and it can be said that he is of a tender age. But merely because he is of a tender age does not mean that he should not be given capital punishment. The learned counsel referred to Din Muhammad v. The State (1985 SCMR 625) where it was observed that: "In this state of the record we are left with no exact data to determine the real age of the appellant at the time of the commission of the offence. However, on an overall consideration of the circumstances of the case, it appears to us that the appellant on account of his inexperience and young age acted in an emotional manner to take upon himself the indiscretion of taking revenge for the murder of his uncle with which the cousin of the deceased was charged. In the circumstances, in our view the ends of justice would be fully met if he is awarded the lesser penalty provided by the law". The death sentence was altered to life imprisonment.

6. In Abdullah v. Shaukat (1988 SCMR 370) the accused was of 16 years of age` and the High Court exercising its discretion awarded. life imprisonment instead of death. This Court did not interfere with the discretion and leave was refused. In Muhammad Hanif v. The State (1994 SCMR 1152) the accused was aged 16 years at the time of occurrence and death sentence was awarded to him. However, before the appeal was taken up by the Supreme Court, amnesty under the Presidential Order was granted and sentence of death was reduced to life imprisonment. This Court, however, considering the tender age and perhaps due to the amnesty already awarded reduced the sentence of death to that of life imprisonment. Similar view in similar circumstances was taken in Hukamdin v. The State (1994 SCMR 2134). In NQOr Muhammad v. The State (1988 SCMR 1640), the High Court had converted the death sentence awarded to Manzoor Ahmed alias Nazir into life imprisonment on the ground that at the time of occurrence he was 14 years of age and further that he acted under the influence of his father Noor Muhammad. The petition for special leave to appeal was dismissed.

7. On the other hand in Mushtaq Ahmed v. The State (1988 SCMR 165) the accused was aged 17/18'years and a student of Metric Class. The trial Court convicted him under section 304, Part II, P.P.C. but the High Court enhanced the sentence and convicted him under section 302/34, P.P.C. and awarded death sentence. This Court while considering the question whether tender age could be a ground or mitigating circumstance to impose lesser penalty held asunder :‑‑ "At this stage learned counsel attempted to argue that at the time of the commission of crime Zahoor Ahmed alias Billi appellant was aged 17/18 years and was a student of. Metric Class, and that furthermore, he was arrested in 1973, was first convicted and sentenced by the trial Court in the same year and thereafter his conviction and sentence were altered in 1976. In other words it is now about 15 years that he had been implicated in this case. It was also submitted that he had not caused injuries to Rehmat Ali deceased on a vital part. It was, therefore, submitted that a case was made out for the awarding of lesser penalty to him even if his conviction under section 302/34, P.P.C. was to be maintained. We do not agree with the learned counsel, for in our view there is no mitigating circumstance in the instant case. Zahoor Ahmed alias Billi appellant tried to develop friendship with Muhammad Salim P.W. who was a school boy and when he refused or complained to his father about it, Zahoor Ahmed alias Billi appellant who carried a special type of Khanjar did not hesitate to attack the father of the boy namely Rehmat Ali deceased when he reproached him for his behaviour. In these circumstances he deserves no leniency." 8.In Muhammad Siddiq v. The State (PLD 1990 SC 1079), the Federal Shariat Court taking into consideration the tender age of the accused awarded lesser penalty in a case under the Offence of Zina (Enforcement of Hudood) Ordinance. In appeal though this Court did not enhance the penalty imposed by the appellate Court, the ground on which the sentence was reduced was not considered to be proper.

9. A perusal of all these judgments will show that while awarding, sentence to a young person up to the age of 16 years, such tender age has been taken into consideration leaning towards leniency. However, the ground of tender age alone may not be the firm rule applicable in cases where the offence is heinous, premeditated, brutal and cruel. In cases where a young person of tender age commits a crime under the influence of his elders, the Courts have taken a lenient view and as a mitigating circumstances for a reduced punishment. While dealing with cases of accused of tender age, besides this fact overall circumstances of the case have to be considered.

10. In Mushtaq Ahmed v. The State the uncle of the accused had been murdered about 20 days prior to the occurrence by the cousin of the deceased. So, at that time the feelings between the parties would have been at a high pitch. But in the present case the alleged enmity which has not been denied by either party is stated to be from the years 1966 and 1973 which according to the appellant happened before his birth. In cases of such old enmity in which the accused is not directly involved relating to his immediate and close relations like father, mother, brother, sister or uncle, and the rival parties have lived peacefully without any incident of revenge for about two decades then unless there are other mitigating circumstances it would not be proper to take lenient view of the offence committed by a person of tender age. In certain circumstances tender age has been taken into consideration for lesser sentence. But such course of action is possible only after examining the nature of offence, the manner and circumstance in which it was committed and also the enmity and rivalries which had sparked of the incident. In the present case merely on the question of age it is difficult to reduce the sentence.

11. The learned counsel then contended that the motive for the offence is not strong and seems to be shrouded in mystery. No doubt the enmity which is alleged to be the motive occurred before the birth of the appellant. The parties were living in proximity but nothing happened during past 15/16 years. Therefore, there must have been some other reason which has not been disclosed by either side particularly the prosecution. Furthermore, the P.Ws. had witnessed the incident from some distance but what happened immediately before the appellant attacked, is not clear. No Lalkara has been alleged to the appellant to show that what was the motive for which he committed the murder. In these circumstances, we partly allow the appeal, convert the death sentence into life imprisonment with benefit of section 382‑B, Cr.P.C. The sentence of fine of Rs.20,000, in default of payment 3 years' R.I. and in the event of realization compensation to be paid to the legal heirs of the deceased is maintained. M.BA./Z‑199/S Order accordingly.