2004 PLP 1404 (YLR)

This judgment will dispose of Criminal Appeal No.2 of 2002 filed by Muhammad Ali, appellant who was convicted under section 302(b), P.P.C. and sentence to imprisonment for life with further direction to pay fine of Rs.10,000, in default R.I. for two months. Compensation to the tune of Rs.10,000 was also ordered to be paid, in default R.I. for two months with the benefit of section 382‑B, Cr.P.C. The conviction and sentence was recorded by learned Sessions Judge, Jhang vide judgment dated 6‑12‑2001.

2. Briefly stated the facts of the case are that on 25‑6‑2000 at 7‑00 p.m., Jaffar Ali, complainant alongwith his brother Sultan Ahmad and Ghulam was returning to his village from the tube well of Absar Hussain Shah. Sarfraz son of the complainant was also going ahead: When the complainant alongwith Sultan and Ghulam reached near the Haveli of Yousaf Shah, there Muhammad Ali who was holding a Churri in his hand suddenly appeared, raised Lalkara and gave a Churri blow which landed on the left side of chest of Sarfraz. The accused repeated the blow, Sarfraz fell down and succumbed to the injuries at the spot. The motive alleged was that on the day of occurrence at 9‑00 a.m. a quarrel ensued between Muhammad Ali accused and Sarfraz deceased at the tube well of Munawar Shah resulting into grappling. Having nursed grudge, the accused committed the murder of the deceased.

3. Investigation of the case was taken up by Allah Ditta, A.S.‑I. (P.W.10). He, after registration of the formal F.I.R., proceeded towards the place of occurrence where the dead body of the deceased was lying, prepared injury statement Exh.P.D., inquest report Exh. P. E., took into possession the blood‑stained earth vide memo. Exh.P.F. and on 2‑7‑2000 arrested Muhammad Ali, accused who while in custody led to the recovery of Churri P.1 which was taken into possession vide memo. Exh.P.G. The accused was challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned A.P.P. tendered in evidence reports of the Chemical Examiner and that of the Serologist and closed the case of prosecution. Statement of the accused was recorded under section 342 Cr.P.C in which he stated that he committed the murder of the deceased as he wanted to commit sodomy with him. In defence the accused also produced school leaving certificate Exh.D.B. After conclusion of the trial, the accused was convicted and sentenced as stated as above.

5. Learned counsel for the appellant submits that appellant has been falsely implicated in this case; the eye‑witnesses were not present at the spot, they are closely related to the deceased, their conduct at the spot was unnatural because the appellant who was 12 years of age at the time of occurrence was having a Churri in his hand while father of the deceased alongwith others did not try to intervene or save the deceased; a suggestion was put to the complainant that in early part of the day, the deceased tried to molest the appellant and for that reason he has falsely implicated the appellant and that the appellant should have been tried by the Court created under the Juvenile Justice System Ordinance, 2000 and not by the learned Sessions Judge. Further submits that appellant produced school leaving certificate Exh.D.B. which was never rebutted by the prosecution. Adds that section 83, P.P.C. is fully applicable in the instant case and no conviction can be awarded to a child less than 12 years of age. In support of his submission, learned counsel has relied upon 2001 PCr. LJ 403.

6. Learned counsel for the State submits that Exh.D.B. shows that the appellant remained a student only for few months, in fact the admission was shown to have got for the purpose of showing the date of birth; referring to the examination- in‑chief of Jaffar P.W. who is father of the complainant, the deceased was 12/13 years of age, again stated that he was 13/14 years of age but this assertion has been rebutted by learned counsel for the appellant by submitting that during cross‑examination this witness stated that the deceased was 16/ 17 years of age; for determination of age section 7 of the Juvenile Justice System Ordinance, 2000 comes into play which has not been applied and even no application was moved in this regard before the trial Court; appellant had sufficient maturity at the lime of occurrence; the offence is not covered by the provisions of section 83, P.P.C. and that on merits the case of the prosecution stands fully proved.

7. I have heard learned counsel for the parties and have gone through the record. Though the appellant had produced Exh.D.B. school leaving certificate but the fact remains that he remained a student of the school for few months only. So far as merits of the case are concerned, it is a case of single accused. The eye‑witnesses are though related but independent. They have no reason to falsely implicate the appellant. From the evidence brought on record, I am fully satisfied that prosecution has been successful in proving its case against the appellant to its hilt. So far as minority is concerned, according to " " Age of the appellant at the time of occurrence was 11/12 years. Section 83, P.P.C. is not B applicable in the instant case because a person who holds Churri in hands and gave injuries with it, he shall be deemed to have got sufficient maturity. The case cannot be remanded for two fold reasons, firstly that both the parties will have to undergo the agony of trial again and secondly the trial Judge has sentenced the appellant to c imprisonment for life treating him to be juvenile. In my view section 11 of the Juvenile Justice System Ordinance is folly applicable in the facts of the instant case. For facility section 11 of the Ordinance is reproduced:‑‑ "

11. Release on probation.‑‑ Where on conclusion of an inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the Juvenile Court may, if it thinks fit‑‑‑ (a) direct the child offender to be released on probation for good conduct and place such child under the case of guardian or any suitable person executing a bond with or without surety as the Court may require, for the good behaviour and well being of the child for any period not exceeding the period of imprisonment awarded to such child; (b) make an order directing the child offender to be sent to a Borstal institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier; (c) reduce the period of imprisonment or probation in the case where the Court is satisfied that further imprisonment or probation shall be unnecessary. " In view of what has been observed above, while maintaining conviction and sentence, the appeal is disposed of with the direction that the appellant shall be sent to Borstal institution till he attains the age of 18 years. N.H.Q./M‑2074/L Appeal dismissed.