1999SCMR2851 (PLP)

MAMOON KAZI, J.

This appeal, by leave of this Court, arises out of the judgment of the Lahore High Court, dated 15-8-1994, upholding the conviction of the appellant under sections 302 and 324, P.P.C. awarded by the learned Additional Sessions Judge, Sialkot. 2 According to the case of the prosecution against the appellant as disclosed in the F.I.R., on 12-9-1989 at about 10-30 a.m. P.W.7, Muhammad Yaqoob, approached a polio party which was present near old octroi post, Bhoth to inform them about commission of an offence which had taken place the same day at about 0900 a.m. within the areas of village Bhoth. According to the said information, the appellant being armed with a chhuri had inflicted chhuri blows to Muhammad Asif, deceased, with intention to cause his death as a result whereof the latter died at the spot. Mst. Kulsoom (P. W.5) who tried to intervene to save deceased was also said to have received injuries during the scuffle.

3. Motive for the said occurrence was stated to be a piece of land measuring four Marlas which was said to be in possession of the deceased, but the same was being claimed by the appellant for himself. Although, the said dispute had been settled on intervention of the respectables of the village, neverthless allegedly the appellant was bent upon taking the said land.

4. The appellant was arrested on 22-9-1989 and on 25-9-1989 he led to the recovery of blood-stained chhuri which, according to the Report of the Chemical Examiner, was stained with human blood. After completion of the investigation, the appellant was challaned before the Court of Additional Sessions Judge for trial.

5. The appellant in his statement recorded by the trial Court denied to have caused the said murder or to have inflicted injuries to P.W.5, Mst. Kulsoom Bibi. However, upon the evidence of the prosecution witnesses, the learned trial Court found him guilty and convicted him under section 302, P.P.C., for the said murder and sentenced him to death. The appellant was further sentenced to pay a fine of Rs.50,000 and in default to undergo R.I. for three years. On recovery of the fine from the appellant, the same was to be paid to the legal heirs of the deceased. The appellant was also convicted under section 324, P.P.C. for causing injuries to Mst. Kulsoom Bibi and sentenced to undergo R.I. for two years on the said count and to pay a fine of Rs.2,000 and in default thereof to undergo further R.I. for three months. The fine. If recovered, was to be paid to P.W.5, Mst. Kulsoom Bibi, as compensation. The appellant filed his appeal before the High Court, but his appeal was dismissed and both his conviction and sentence were maintained.

6. Leave was granted by this Court only on the question of sentence as it had been argued that motive for commission of the alleged crime could not be satisfactorily established by the prosecution and further, that the appellant was a young boy of eighteen years of age and as such he was entitled to the concession of lesser sentence of imprisonment for life.

7. On the question off motive not being satisfactorily established by the prosecution in this case, learned counsel for the appellant has contended that if, motive is alleged by the prosecution but the same cannot be established, it can be considered as a relevant factor to award lesser penalty of life imprisonment to the accused. It may, however, be pointed out at the very outset that, the contention of the learned counsel for the appellant is not tenable as in, our view, motive for commission of the said offence has been sufficiently established by the evidence of the prosecution witnesses. In the F.I.R., which appears to have been promptly lodged in this case by P. W.7, Muhammad Yaqoob, motive for commission of the said crime was stated to be a dispute between the appellant and the deceased over a piece of land situated in Village Bhoth which was in possession of the deceased and which had been claimed by the appellant to have been allotted to him. To the same effect was the evidence given by P.W.7 m the Court. There it was further explained by him that the said dispute had been settled by Punchayat and although, its decision had been accepted by the deceased, but the same was not accepted by the appellant. The evidence of P.W.7 was further supported by that of P.W.5 Mst. Kulsoom. The fact that there was a dispute between the deceased and the appellant over 4 Marlas of land is even supported by the evidence of P.W. Sardar Ahmed, who had given evidence on behalf of the appellant as D.W.1. It is pertinent to point out that both the learned trial Court as well as the High Court have placed reliance on the said evidence in coming to the conclusion that there was a dispute between the deceased and the appellant over the said piece of land. Consequently, we are unable to agree with the contention of the learned counsel that motive could not be successfully established by the prosecution in this case.

8. It only-remains to be considered, whether age of the appellant which is said to be about 18 years at the time of commission of the said offence, can be regarded as a material factor for reduction of his sentence from death to that of imprisonment for life.

9. Learned counsel for the appellant has taken us through a number of judgment on this point. In Sohail Iqbal v. The State (1993 SCMR 2377). although the record showed the accused to be over 21 years of age at the time of the alleged occurrence but his age was recorded by the trial Court as 16/17 year when his statement under sections 340 and 342, Cr.P.C., were being recorded Benefit of such discrepancy in recording of the age of the accused was extended to him by this Court and his sentence of death was substituted by that of. imprisonment for life in view of his young age at the time of commission of the offence. Similar appears to be the view taken by this Court in the case of Zulfiqar alias Bhutto v. The State (1995 SCMR 1668). However, in this case although, benefit of tender age was `given to the accused, but it was further observed that tender age of the accused may not be a firm rule applicable in cases where the offence is heinous, pre-meditated or brutal. In another judgment recently given by one of us in the case of Muhammad Ikram alias Billa v. The State (1999 SCMR 406), once again the accused was allowed such benefit on account of his tender age by conversion of his sentence of death to imprisonment for life. In this case evidence indicated that the accused who was a teen-tiger had got annoyed over failure of the deceased to return borrowed money and his use of foul tongue when the money was demanded from him by the accused.

10. The cases relied upon by the learned counsel for the appellant, therefore, clearly indicate that tender age of the accused at the time of commission of the offence has consistently been considered by this Court as a mitigating factor, resulting in conversion of his sentence from death to that of imprisonment for life. However, it would be erroneous to assume that this is an absolute rule which can be applied in every case irrespective of the circumstances in which the offence is alleged to have been committed by the accused. In this regard, reference may be made to the observations in Zulfiqar alias Bhutto (supra). However, in the present case there is nothing to indicate that the offence committed by the appellant was of a heinous or a desperate nature. The evidence, on the other hand, indicates that the appellant, believing to be deprived of his rightful ownership of land by the deceased, inflicted knife blows to him. The appellant who was a young man of eighteen years at that time appears to have been displeased by such circumstances and it is possible that owing to his young age he did not consider the serious consequences of his act. Consequently, in our view, this is not a kind of a case where benefit of reduction of sentence may be declined to the accused.

11. In the result, the appeal is partly allowed and although the conviction of the appellant under sections 302 and 324, P.P.C. is upheld, but his sentence is reduced from death to that of imprisonment for life. It may further be clarified a that only with this exception, the judgment of the Lahore High Court shall remain intact. M.B.A./M-349/S Sentence reduced.