1999SCMR837 (PLP)

WAJIHUDDIN AHMED, J.

Muhammad Mumtaz Khan, appellant, was sentenced to death for the murder of one Fakhar-ud-Din by the Sessions Judge, Mianwali. Such sentence was confirmed by the High Court while disposing of the appeal of the appellant and the murder reference in the case. Leave to appeal was granted in this Court on 9-4-1995, solely, to consider the following:-- "However, keeping in view the fact that half an hour before the incident, the son of the deceased had injured the brother of the accused/petitioner, which might have provoked the petitioner, who "the of tender age of about 17/ 18 years at the time of the commission of offence, we grant leave to appeal to consider whether in such circumstances the capital punishment of death awarded to the petitioner was proper?" As to the age of the appellant, in juxtaposition with the date of the incident viz: 8-3-1989, we have been shown his school leaving certificate (Ex.DB), where his date of birth is shown as 10-11-1971. This implies that the accused was less than 18 years of age when the incident occurred. The High Court itself has opined his age to have been 17/18 years. Under the previous state of law, merely being green in years, unless the case fell within the prescribed exceptions, was not enough in itself to result in the reduction of sentence. In the present dispensation, while the bulk of the exceptions' have remained in place, some have disappeared and others have been added. Thus, Section 306, as substituted, now postulates that, inter alia, if the offender be a minor he, when tried for Qatl-i-Amd, shall not be liable to Qisas. Correspondingly, as to who is an "adult" currently stands defined in the substituted section 299, as meaning "a person, who has attained the age of eighteen years" and a minor, per clause (i) of the same section, as "a person who is not an adult". In this view of the matter, the appellant, having been a minor, and, thus, not liable to Qisas, the case would not be covered by clause (a) of the amended version of section 302, P.P.C. but by clause (c) thereof. Section 302 P. P. C., presently, stands on the statute book thus:

"

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 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. " Another aspect of the case, as indicated, is that half an hour before the incident son of the deceased, allegedly, on the exhortation of the latter, had injured a brother of the accused-appellant, which, in the given circumstances, ostensibly, provoked the appellant. While this may not exclusively qualify as a mitigating element, till lately recognized as grave and sudden provocation, under the erstwhile Exception 1 to section 300, P.P.C., the fact remains that there was a reasonable possibility of the existence of a palliative factor, indicating a degree of provocation, as construed by this Court (in Abdul Haque v. State. PLD 1996 SC 1- ); while taking recourse to section 302(b) P.P.C., currently standing inserted in the section. The reason why section 302(b) P.P.C. was applicable in the precedent case could, also, be extendible here. Such in the words of Aimal Mian, J., as he then was, is recorded as under:

"It will not be out of context to point out that Article 3 of the (Qanun-e- Shahadat) Order deals with the question as to 'who may testify'. Proviso 3 to above Article envisages that the Court shall determine the competence of a witness is accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Suring for a witness and where such witness is not forthcoming, the Court may take the evidence of a witness who may be available, In the case in hand, the Trial Court has not adverted to the above aspect while recording or accepting the testimony of the eye-witnesses. In this view of the matter, it can safely be concluded that the requirements of Article 17 read with Article 3 of the Order were not fully complied with. To elaborate, their lordships in the quoted case of Abdul Haque had excluded clause (a) of section 302, P.P.C. and applied clause (b) thereof, carrying an option to impose death or life imprisonment, instead. They, then, taking into consideration the mitigating circumstance of proven grave and sudden provocation, even though anything in the nature of Exception to section 300 was no longer available, proceeded to award the lesser punishment of life imprisonment in preference to death. The elements of the appellant's minority and provocation, the last ostensibly neither sudden nor grave, may thus come up for consideration, not cumulatively but alternatively. In other words, clause (a) in the current version section 302, P.P.C. would not apply because the offence does not qualify for Qisas. Clause (b) of that section is invocable, on the analogy of the case of Abdul Haque, (supra), since the competence of witnesses against the appellant has not been determined on the touchstone of Islamic Injunctions. Clause (c) is referable as well because the offender was a minor, as defined. The result leaves a discretion with the Court either to opt for death or imprisonment for life in terms of section 302(b), P.P.C. or imprisonment alone, which may extend to 25 years by virtue of 302(c), P.P.C. Because between the alternatives of 302(b) and 302(c), P.P.C. the latter provision visualises a lesser punishment, as also a discretion, such may preferably be resorted to on the basis of the fundamental principles of administration of criminal justice, making it more appropriate for the Court to impose the lesser punishment, where law provides two alternative punishments for the same offence. Reverting, 'even under the erstwhile state of law, pertaining to the youth of the accused and subsistence of a somewhat similar provocation, this Court in Javaid Iqbal v. State, 1982 SCMR 447, reduced the sentence from death to imprisonment for life. Not a dissimilar view was expressed in Muhammad Din v. State, 1985 SCMR

625. The extenuating aspect, as to youthful offenders. recognised in Re. Jawaid Iqbal, was followed in Suhail Iqbal v. State 1993 SCMR 2377. This is not to imply that youthful offenders, other than those, who satisfy the exceptions in the Code, are always entitled to leniency or that mere provocative behaviour would confer a predictable benefit as to punishment or that private revenge was ever condonable or anything less than the satisfaction of the requirements of law could be sufficient for a case to be covered by the recognized exceptions, standing incorporated in the Pakistan Penal Code. All that seems to be permissible under the present section 302(b) and (c) in the Code is that where more than one factors, just mentioned, are found present none in itself qualifying for any condonation but each carrying a degree of pursuasiveness, such cumulative circumstances of the case, calling for a lesser punishment, can, in appropriate cases, be resorted to. It is for this reason, section 302 (a) not applying and 302(b), P.P.C., having been found extendible, that, between the penalties of death and life imprisonment, this Court in Abdul Haque' case opted for the lesser punishment of the two. This case, of course, is specifically covered by section 302(c), P.P.C., the offender being, arguably, a minor, as defined. There, while the maximum of 25 years' punishment is envisaged, no lower ceiling is mandated, leaving the quantum of punishment to judicial discretion, governed by the circumstances of each case. In awarding punishment under clause (c) of section 302, .P.P.C; therefore, the Court may legitimately resort to the mitigating and extenuating circumstances, if any. Provocation, even though neither grave nor sudden, but subsisting as a fact, may be one of then. For the foregoing reasons, we, while dismissing the appeal, had converted, the capital punishment into one of life imprisonment. On further examination and applying section 302(c), P.P.C. to the case we find that the maximum punishment of either description thereunder is 25 years. Because the element of provocation also is involved, we would award simple 14 years, instead, to the accused. The benefit of section 382-B, Cr.P.C. would also be extended to the appellant. N.H.Q./M-270/S Order accordingly.