GHULAM ABBAS Versus STATE
MIAN MUHAMMAD NAJUM‑UZ- ZAMAN, J. ‑‑‑Ghulam Abbas appellant alongwith his co‑accused namely Yaqeen Muhammad was tried by . the learned Additional Sessions Judge, Dera Ghazi Khan for the murder of one Maula Bakhsh, who vide judgment, dated 18‑12‑1995 acquitted Yaqeen Muhammad accused whereas convicted the appellant under section 302, P.P.C. and awarded him death sentence as Qisas. The appellant was further directed to pay a fine of Rs.30,000 or in default whereof to undergo S.I. for two years. It was further directed that the fine, if recovered, half of it would be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C.
2. Challenging his conviction and sentence the appellant has filed Criminal Appeal No.368 of 1995 while the learned trial Court has made a reference (M.R.35 of 1996) under section 374, Cr.P.C. for confirmation of sentence of death awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. A case F.I.R. No.9 of 1994 Exh.PC/1 was registered at Police Station Choti, District Dera Ghazi Khan upon the statement of Imam Bakhsh with regard to the murder of Maula Bakhsh which took place in the area of Village Kotla Ahmad Khan, Police Station Choti.
4. The story of the prosecution as narrated in the F.I.R. is that on 24‑1‑1994 the complainant Imam Bakhsh alongwith his wife Mst. Bachal and his son Gada Hussain was busy in picking cotton crop of one Mehr Bakhsh Khan Gormani situated in the area of Chah Tahliwala. Statedly in the said field the other son of the complainant namely Maula Bakhsh aged about 12/ 13 years was also collecting chaff. At about 11‑00 a.m. the complainant heard hue and cry of Maula Bakhsh whereupon the complainant alongwith his wife Mst. Bachal and his son Gada Hussain came to the place of occurrence and witnessed that Ghulam Abbas being armed with hatchet and Yaqeen Muhammad accused empty‑handed had encircled Maula Bakhsh and then within their view Ghulam Abbas inflicted hatchet blow to Maula Bakhsh which hit him on the right side of his head and he fell down. Ghulam Abbas appellant then gave repeated blows with his hatchet to Maula Bakhsh deceased, which hit on his right and left jaws and palm of his left hand. Yaqeen Muhammad accused, as stated, was exhorting Ghulam Abbas appellant that Maula Bakhsh deceased should not escape alive and that he should be taught a lesson for performing Nikah with Mst. Mahar. The complainant and other witnesses tried to go near whereupon Ghulam Abbas appellant threatened them not to come near, lest they would meet the same fate. After the occurrence the appellant and his co‑accused fled away from the spot.
5. The motive for the offence as disclosed in the F.I.R. is that about two years prior to the occurrence the complainant got married his son Fida with Mst. Mahar daughter of his real brother. Ghulam Abbas appellant also wanted to have the hand of Mst. Mahar in marriage. Thus, due to this grudge Ghulam Abbas appellant and Yaqeen Muhammad accused after preconcert and premeditation committed the murder of Maula Bakhsh.
6. After the occurrence the complainant while leaving his wife Mst. Bachal and his son Gada Hussian with the dead body of Maula Bakhsh proceeded to the Police Station for reporting the matter and on his way he met Muhammad Rafi Ullah, A.S.I. P.W.10 who was present at Adda Nawan Shahar, where he made his statement Exh.PC and the same was sent to the Police Station for registration of formal F.I.R Exh.PC/1. Muhammad Rafi Ullah, A.S.I., Investigating Officer after recording the statement of the complainant visited the spot alongwith the complainant and after inspecting the dead body prepared injury statement Exh. PD and inquest report Exh.PE and sent the dead body to the mortuary for post‑mortem examination through Faiz Muhammad Constable P.W.1. He also prepared rough site plan Exh.PJ of the place of occurrence. During the spot inspection blood‑stained earth was taken into possession vide memo. Exh.PH. After the post‑mortem examination Faiz Muhammad P.W.1 produced before the Investigating Officer the last worn clothes of the deceased which were taken into possession vide memo. Exh. PA.
7. Both the appellants were arrested on 28‑1‑1994 and on the same day the appellant Ghulam Abbas led to the recovery of blood stained hatchet P.4 from inside his residential house which was taken into possession vide memo. Exhs.PD. The Investigating Officer also prepared the site plan Exh.PD/1 of the place of recovery. On 2‑2‑1994 Muhammad Rafi Ullah, A.S.I. P.W.10 got prepared site plans Exh.PB, PB/1 and PB/2 through Aziz Muhammad P. W.3. After the completion of the investigation the challan was submitted before the trial Court.
8. In order to prove its case, the prosecution had produced ten witnesses in all before the trial Court.
9. Dr. Fayyaz Karim Lighari, P. W.7 conducted post‑mortem examination and observed the following injuries on the person of Maula Bakhsh deceased:‑‑
(1) An incised wound half moon shaped. 17 c.m. x 4 c.m. cutting the bone. Brain matter was cut situated vertically, on the right side of head starting from the top of head to inside of right ear.
(2) An incised wound 12 c.m. x 4 c.m. cutting the bones, teeth and jaw bone underneath starting from 2 c.m. inside right ear to the left angle of mouth.
(3) An incised wound 8 c.m. x 4 c.m. on left jaw, cutting the bone, below and inside left ear to chin.
(4) An incised wound 4 c.m. x 2 c.m. horizontally below the chin, deep up to structures underneath. ,
(5) An incised wound 5 c.m. x 1 c.m. on the lower part of left palm at the base on inner aspect.
In the opinion of doctor death occurred due to injury to brain matter, haemorrhage and shock consequent upon injury No. l which was sufficient to cause death in the ordinary course of nature.
10. The ocular account was narrated by Imam Bakhsh P. W.8 father of the deceased and Mst. Bachal P. W.9, mother of the deceased. Both these witnesses supported the prosecution case and had narrated the story of the prosecution in verbatim. Faiz Muhammad Constable P. W.1 escorted the dead body of Maula Bakhsh from the spot to the mortuary for the purpose of post‑mortem examination, and after the same produced before the Investigating Officer the last‑worn clothes of the deceased which were taken into possession vide memo. Exh.PA. Ashiq Hussain Constable P. W.2 took the parcels of blood‑stained earth and blood‑stained hatchet for onward transmission to the Office of Chemical Examiner which he delivered the same intact. Aziz Muhammad Patwari P. W.3 prepared the site plans Exhs.PB, PB/1 and PB/2 of the place of occurrence. Allah Diwaya H.C. P.W.4 drafted the formal F.I.R. Exh.PC/1. He also kept the parcels prepared by the Investigating Officer in this case in the Malkhana for safe custody. Khuda Bakhsh P.W.5 identified the dead body of Maula Bakhsh being the uncle of the deceased. Allah Bakhsh P. W.6 witnessed the recovery of blood‑stained hatchet P.4 at the instance of Ghulam Abbas appellant which was taken into possession vide memo. Exh.PD. Muhammad‑Rafi Ullah, A.S.I. P. W.10 conducted investigation in this case as stated in the earlier paras. of the judgment. Learned Special Public Prosecutor tendered in evidence the Report of Serologist Exh.PK and that of Chemical Examiner Exh.PL and closed the case of the prosecution.
11. After recording the evidence of prosecution the appellant was examined by the trial Court under section 342, Cr.P.C. where he took up the plea of sudden and grave provocation which is reproduced as under:
"The deceased was playing Gulli Danda with me at the place of occurrence who suddenly abused me and on my retaliation showed me a photograph of his brother with Mst. Mehar, my ex‑fiance and shouted upon me as ' Beghairat' as his brother Fida Hussain was sexually enjoying her. After hearing the abuses so extended I lost my self‑control and out of sudden and grave provocation inflicted hatchet blows on him while snatching hatchet from the deceased as a result of which he died."
The appellant neither made any statement under section 340(2), Cr.P.C. nor he produced any evidence in his defence.
12. The learned trial Court after hearing the arguments advanced by both the sides vide judgment, dated 18‑12‑1995 convicted the appellant as narrated in the earlier part of the judgment.
13. Learned counsel for the appellant submitted that Ghulam Abbas appellant was a minor at the time of commission of offence and the conviction by the trial Court under section 302, P.P.C. was a nullity in the eye of law. Asserted that the case of the appellant was covered under section 308, P.P.C. and the learned trial Court had erroneously convicted him under section 302, P.P.C. Learned counsel for the State has half- heartedly opposed the contentions raised by the learned counsel for the appellant.
14. We have heard the learned counsel for the appellant as well as the State Counsel and gone through the record with his assistance.
15. In the instant case, the occurrence is admitted by the defence. It is also admitted by the defence that deceased was done to death with hatchet. Time and place. of occurrence is also not disputed. The only question to be resolved is whether the appellant was a minor at the time of commission of offence and whether his case is covered under section 308, P.P.C. or not.
16. No doubt, the appellant had not placed on record any document to prove his minority at the time of the alleged occurrence. We have observed that according to the record the occurrence took place on 24‑1‑1994 and the age of the appellant which is recorded by the trial Court at the time of his examination under section 342, Cr.P.C. on 21‑11‑1995 i.e. after one year and ten months of the occurrence, is 16/17 years. This means the appellant was 14/15 years of age at the time of the alleged occurrence. Similarly the Investigating Officer Muhammad Rafi Ullah, A.S.I. P.W.10 had admitted during cross‑examination that Ghulam Abbas appellant was 17/18 years of age at the time of occurrence and he may be less or excess by a year or so. Since the prosecution has not placed on record any solid evidence to prove that the appellant was not a minor at the time of commission of offence, in the circumstances of this case the benefit of doubt tilts in favour of the appellant and it is held that the appellant was less than eighteen years of age, at the time of occurrence.
17. 1t is apparent from the record that the appellant was minor at the time of commission of offence, but was mature enough to realise the consequences of his act. Language of sections 306 and 308, P.P.C. is plain enough to show that Qatl‑i‑Amd if committed by a minor, the sentence of Qisas could not be awarded to him and the maximum punishment which could be awarded is Diyat and imprisonment for fourteen years as Taazir. Keeping in view the duty of a Court to administer justice within the four corners of the Code according to the canons of law and to punish the accused strictly in accordance with law, we hold that the conviction of the appellant under section 302, P.P.C. is not sustainable, as held in the case of Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885).
18. For what has been discussed above, the conviction of the appellant under section 302, P.P.C. is converted into section 306/308, P.P.C. and he is held to be liable to pay Diyat and is also sentenced to imprisonment for fourteen years' R.I. as Taazir. The maximum sentence of imprisonment provided by the law has been awarded by us to the appellant keeping in view the brutal and merciless manner in which he murdered a boy of tender age with a Kulhara, especially when the victim had no connection with the motive in this case. Benefit of section 382‑B, Cr.P.C. is also extended to him.
19. In the light of the foregoing observations the instant appeal with partial modification is dismissed.
20. Death sentence is Not Confirmed and the murder reference is answered in the negative.
Q.M.H./M.A.K./G‑122/L
Order accordingly.