2006 PLP 1821 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment shall dispose of Murder Reference No.308 of 2001 and Criminal Appeal No.367 of 2001 as they arise out of the same judgment, dated 28-4-2001 passed by the learned Sessions Judge, Vehari whereby appellant was convicted under section 302(b), P.P.C. and sentenced to death with a compensation of Rs.50,000 to be paid to the legal heirs of the deceased as provided under sections 544-A, Cr.P.C. in default hereof to further undergo six months' S.-I.

2. Brief facts of the case as disclosed by the complainant Faizul Hassan (P.W.3) are that on 21-6-2000 at 1-30 p.m. he along with his uncle Barkat Ali (P.W.4) and Suleman were present at his tubewell, his father Abdul Haqum was sleeping on a cot near the tubewell when appellant Allah Ditta came there while armed with a Khanjar and attacked his father and he caused injuries to his father who died at the spot. The motive that the appellant divorced his wife in front of deceased, the deceased got Fatwa on the request of the appellant, later on appellant claimed not to have divorced his wife and due to the above reason the appellant bore grudge against the deceased.

3. The investigation of the case was carried out by the police and after having completed legal formalities the accused was sent up-for trial before the learned trial Court where the prosecution, in order to prove its case produced thirteen prosecution witnesses whereas the accused in his statement recorded under section 342, Cr.P.C. pleaded not guilty and claimed trial.

4. Learned counsel for the appellant in support of this appeal contended that in fact that deceased who was a Zamindar and influential person wanted to marry the wife of the appellant and was falsely involved in the case; that both the witnesses of the occurrence, namely, Faizul Hassan (P.W.3) and Barkat Ali (P.W.4) are interested and chance witnesses and no independent witness was produced during the trial; that the F.I.R. was recorded after due deliberations and consultations; that the recovery has been planted and that if this Court finds that it is not a case of acquittal then appellant's minority is a mitigating circumstance being 16/17 years of age at the time of occurrence.

5. On the other hand, learned Assistant Advocate General submits that it is a broad-daylight occurrence, appellant the single accused, blows were repeated by him, no question of substitution or false implication arises, no proof of minority was produced by the appellant, the prosecution has proved its case against the appellant to the hilt and that the appeal filed by the appellant against the captioned conviction and sentence is liable to be dismissed by this Court.

6. Learned counsel for the complainant though appeared late yet, while making his submissions, vehemently contends that the appellant had tailed to prove his minority that he was major at the time of occurrence and that since the case has been proved against him so, no question of mitigation or lesser sentence arises and this appeal is liable to be dismissed by this Court.

7. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance coupled with perusal of the precedent case and the relevant provisions regarding minority of the appellant.

8. The occurrence in this case had taken place on 21-6-2000 at about 1-30 p.m., the matter was reported to the police at the, police station at 2-15 p.m. and the formal F.I.R. was recorded on the same day and the distance between the place of occurrence and the police station was 13 kilometers meaning thereby, that it is a case of promptly lodged F.I.R.

9. The prosecution to prove its case, produced Faizul Hassan as P.W.3 who is also complainant of this case. Although he is closely related to the deceased i.e. real son yet he has no enmity or strong motive to falsely implicate the appellant in this case. Moreso, it is rare phenomenon that a real son of the deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence because the venue of the occurrence is a Tubewell of the deceased and his presence at the said place was quite natural and we see no reason not to accept his statement. Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony.

10. There is yet another eye-witness of the case, namely, Barakat Ali (P.W.4) who appeared before the learned trial Judge in support of the prosecution case. He is real brother of the deceased yet he has also no animosity with the appellant to falsely depose against him. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court seems his testimony to be worthy of credence.

11. Now we would like to discuss the defence version taken by the appellant regarding his minor age. While making his statement under section 342, Cr.P.C. recorded on 28-4-2001 he has mentioned his age as 17/18 years of age while the occurrence had taken place on 21-6-2000. It has come on record that he made hectic efforts to get his Birth Certificate yet he could not arrange the same which is depicted in his statement, dated 27-4-2001 made before the learned Sessions Judge Vehari to the effect that "....he cannot arrange birth certificate and closed his defence..."

12. Notwithstanding the above position, even prosecution did not adduce anything to rebut the above claim of the appellant to show that he was not minor. To reach at a just decision of the case qua the minor or otherwise of the appellant, we ourselves have gone through the police record wherein the Investigating Officer, while making arrest of the appellant has, at first, mentioned his age 17/18 years which, later on, was over-written as 23/24 years. At the same time it is sorry state of affairs that in such-like sensitive issue, the learned Presiding Officers do not bother to ascertain the correct age of the accused, if any dispute qua the age of the accused arose before them during the trial.

13. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties and application of independent judicial mind would lead us to an irresistible conclusion that the prosecution has proved its case against the appellant through an independent and unimpeachable evidence. But at the same time, we note that the stand of minority taken by the appellant during the trial was not rebutted by the prosecution. It is settled law that when a case of an accused becomes of two views the view favouring the accused should be given preference. So, while maintaining the conviction of the appellant under section 302(b), P.P.C. we convert his sentence of death into imprisonment for life. The amount of compensation and imprisonment in default of the fine shall remain the same. Benefit of section 382-B, Cr.P.C. shall also be extended to him.

14. Murder Reference is answered in the Negative, Criminal Appeal No. 367 of 2001 is disposed of with the above modification in the quantum of sentence and the sentence of death awarded to appellant is not confirmed.

15. Before parting with this judgment we may observe here that the learned Presiding Officers of the learned trial Courts i.e. Sessions Judges or Additional Sessions Judges or Presiding Officers of the learned Special Courts in the Province of the Punjab do not bother to mention the age of the accused persons, firstly, in the Charge Sheet and, secondly, in the statements under section 342, Cr.P.C. Even when a dispute arose qua the age of the accused a duty is cast on the learned Presiding Officers to ascertain the correct age of the accused so that nobody should suffer due to an act of the Court. Therefore, whenever a Court is confronted with the question of age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which would help the Court in reaching at a just conclusion about the age of the concerned accused person and to take such other and further steps which would help the Court in reaching a just conclusion. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. In this regard it is imperative to quote section 7 of the Juvenile Justice System Ordinance, 2000 which reads as under:-- "(7) Determination of age.

If a question arises as to whether a person before it is a child for the purposes of the Ordinance, the Juvenile Court shall record a finding after such inquiry shall include a medical report for determination of the age of the Child."

16. The matter of determination of age of an accused, in a criminal trial, came up for consideration before the apex Court of the country in the judicial hierarchy in a recently delivered judgment reported in Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 Supreme Court 758), decided on 7-5-2004. Relevant portion of the said judgment is being reproduced for future guidance of the learned Presiding Officers of the trial Courts. At page 767; the august Supreme Court of Pakistan observed as under:-- "(24)

We know it by now from the judicial precedents that the purpose of holding an inquiry, amongst others, is to determine the existence or non-existence of a fact or the falsity or correctness thereof and further that an inquiry is a judicial proceeding in which evidence could be legally taken. Therefore, whenever a Court is confronted with the question of age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which could help the Court in reaching a just, conclusion about the age of the concerned accused person and to take such other and further steps which would help the Court in reaching a just conclusion about the said matter. As has been mentioned above, the issue about the age of an accused person at a trial which could result in a punishment of death, was now of vital significance and the learned Presiding Officers should never hasten to decide the said issue in summary or in a slipshod manner. (25) Medical report about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. The impression that an ossification test could be ordered only as a last resort, was not correct and thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever, a question of the age of an accused person is raised or arises, he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. Such is the only course which is in accord with the provisions of section 7 of Ordinance XXII of 2000 which command that"...such inquiry shall include a Medical Report for Determination of the age..." (Emphasis is ours).

17. A copy of this judgment shall be sent to the learned Registrar of this Court at the Principal Seat who shall transmit the same amongst all the learned Presiding Officers of the learned trial Courts in the Province of the Punjab including that of Special Courts constituted under the Anti-Terrorism Act, 1997 with a direction that any future lapse in this regard shall not be countenanced and shall be dealt with strictly. H.B.T./A-154/L Order accordingly.