2002 PLP 629 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 2‑12‑1998, passed in Criminal Appeal No. 180 and Murder Reference No.85 of 1993.

2. Briefly stated the facts of this case are that on 20‑9‑1992, at about 7‑00 a.m. appellant Umer Hayat alongwith deceased Pervez Akhar, his mother Mst. Ghulam Fatima and Raja (P.W.9) went out of the house towards main road for proceeding to village Ahmedaywala for condoling death of Mst. Ijjan widow of Ahmed. While they were passing near "Bajra" crop belonging to Muhammad Hayat Gondal, ‑suddenly respondent Jehangir armed with .12 bore shotgun emerged from 'Bajra' crop and fired shots at Pervez Akhtar hitting on his right shoulder, front side of chest and back portion of left ear. Pervez Akhtar fell down and succumbed to injuries at the spot. Mst. Ghulam Fatima shouting and wailing took injured son into her arms. The complainant and P.W. Raja raised alarm whereupon respondent Jehangir decamped brandishing his gun saying that he has engaged the disgrace caused to him by Pervez Akhtar.

3. The motive, as mentioned in the F.I.R. is that six or seven years back Zafar Iqbal, elder brother of deceased Pervez Akhtar, had divorced Mst. Razia, real aunt of respondent Jehangir, and contracted second marriage. A day prior to occurrence i.e. 19‑9‑1992, during evening time respondent Jehangir came and demanded partition of common ' Dera' , whereupon there was a quarrel between them. During altercation the deceased taunted the respondent saying that what he has done uptill then about divorce of his aunt. On this the respondent went away threatening to deal with them.

4. After the completion of investigation, respondent Jehangir was sent up for trial. Vide judgment dated 10‑3‑1993 the learned trial Court convicted the respondent under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay Rs.20,000 as compensation, to the legal heirs of the deceased and the same was to be recovered as arrears of land revenue.

5. Feeling aggrieved, the respondent filed al, which was accepted by the Lahore High Court, Lahore, vide impugned judgment dated 2‑12‑1998, whereby extending the benefit of doubt, the conviction and sentence awarded to him by the trial Court was set aside and he was acquitted of the charges.

6. Leave to appeal was granted for reappraisal of evidence and for determining whether principles relating to fair administration of justice were followed by the High Court.

7. Raja Muhammad Anwar, learned counsel for the appellant/complainant, inter alia, contended that the case against the respondent stood proved by the ocular evidence of natural and unimpeachable character, trustworthy coupled with the motive, medical evidence as well as evidence of recoveries; he was rightly convicted by the learned trial Court; that the parties were closely related and there was no possibility of false implication of the accused in the case; that the accused was not minor at the time of occurrence, therefore, he did not deserve any leniency in the matter of sentence; and that the learned Judges of the Lahore High Court were no justified in acquitting the sole accused on the‑basis of ,conjectures arid surmises.

8. On the other hand, Sheikh Khizar Hayat, learned counsel for the respondent‑accused, supporting the impugned judgment contended that the witnesses were chance witnesses and the medical evidence belied the ocular account qua time of death and the manner in which the occurrence had taken place; and that the prosecution failed to make out any case against the respondent. Referring to respondent's age he submitted that the sentence awarded by the trial Court was unwarranted.

9. We have heard the learned counsel for the parties at length and have gone through the material available on record minutely. Admittedly, the incident took place in broad daylight, and the prosecution evidence, which was natural, convincing trustworthy and of .unimpeachable character, was not shaken in cross‑examination and the trial Court with sound and cogent reasons appreciated the evidence in its proper perspective while convicting the respondent; whereas the learned High Court without considering the prosecution evidence in its true perspective, allowed the appeal on surmises and conjectures.

10. The important aspect of the case is age of the respondent at the time of the incident. In this context we will refer to section 299, P.P.C., which provides definition as under:‑‑ "

299. Definitions.‑‑In this Chapter, unless there is anything repugnant in the subject of context:‑‑ (a) 'adult' means a person who has attained the age of eighteen years." Section 302 presently provides as follows:‑‑ "

302. Whosoever, commits Qatl‑i‑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 a Ta'zir 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 306, P.P.C., as amended, provides as under:‑‑ "

306. Oatl‑i‑Amad not liable to 0isas.‑‑‑Qatl‑i‑Amd shall not be liable to Qisas in the following cases namely:‑‑ (a) When an offender is a minor or insane. (b) "

11. According to police record, the respondent was aged about 19/20 years, and the prosecution also produced birth entry (Exh.PF), according to which, his date of birth is recorded as 28‑8‑1973, whereas the accused respondent in his statement under section 342, Cr.P.C. has shown his age to be 16 years, and in support of his age he has produced College Certificate (Exh.DB) arid the Matriculation, Certificate (Exh.DC), which show his date of birth as, 24‑1‑1977. The respondent further stated that the birth entry Exh.PF reltates to his another brother namely Jehangir Hayat, who died in childhood, and due to love and affection with his brother, the respondent was also named as Jehangir Hayat. In any case, by now it is well‑settled law that where two views are possible, the view in favour of the accused is normally to be accepted.

12. Keeping in view the age of re respondent at the titter of incident supported by the Matriculation Certificate and College Certificate and the provisions of section 299, P.P.C. read with section 306, P.P.C. the case of the respondent is fully covered by the above provisions and he, in any case, is entitled to the benefit of the above provisions. We further find that the respondent at the time of occurrence was not adult, therefore, the death penalty awarded by the learned trial Court was not legal and proper. The High Court, as stated hereinabove, by ignoring natural and reliable evidence coupled with the motive and recoveries, on surmises and conjectures allowed the appeal of the respondent, which has resulted in miscarriage of justice. In our considered opinion, the impugned judgment is not sustainable, which is hereby set aside.

13. For the facts, circumstances and reasons stated hereinabove, we allow this appeal and sentence the respondent to life imprisonment. He is on bail. He should surrender to his bail bonds. In case of default, the trial Court shall issue non‑bailable warrants against him and he may be remanded to jail to serve the sentence awarded by this Court. The respondent will also be entitled to the benefit of section 382‑B, Cr.P.C. N.H.Q./U‑13/S Appeal allowed.