MAZHAR ABBAS vs THE STATE

ORDER

' Mazhar Abbas, petitioner (named as Mazhar Hussain in the F.I.R.) seeks bail in a case registered against him and three others vide F.I.R. No,273, dated 26-7-1996 for offence under section 302/34/452 of the Cr.P.C. At Police Station Kot Moman, District Sargodha.

2. According to the allegations made in the F.I.R. The petitioner was armed with a gun, forcibly entered the complainant's house along with the co-accused and fired at Safdar Hussain causing injuries on his right flank who died at the spot. He also gave injuries to Mst. Sardaran Bibi with the butt of the gun. Ammer co-accused fired at Akhtar Hussain, as a result of which, he also died at the spot.

3. The petitioner's learned counsel contends that as per the findings recorded by the D.S.P. Vide Zimni, dated 20-11-1996, the petitioner was not armed and did not cause any injury to anybody; that the petitioner was about 13 years old at the time of commission of the offence; that even in case of conviction, he can be sentenced to payment of Diyat alone and that the case is one of further inquiry. On the other hand, learned State Counsel opposes bail on the ground that the petitioner has been named in the F.I.R.; that the specific role has been attributed to him that he fired at Safdar Hussain, as a result of which he died at the spot and that the petitioner as per the police record is 16 years old.

4. As regards the finding recorded by the D.S.P. In favour of the petitioner that he was neither armed nor caused injuries to anybody does not appear to be based on sound material. He has primarily based his opinion on failure of the complainant party to state on oath or Qasam/Niyan that the petitioner was armed and had fired at Safdar Hussain and had also given butt blows to Mst.

Sardaran. This mode of investigation and recording of a finding in favour of an accused person was depreciated by this Court in a number of cases but the Investigating Officers are blindly resorting to the same method. The conventional mode of Qasam/Niyan may be helpful only for moral certainty regarding participation or non-participation of the accused in the occurrence but cannot form the sole basis for a finding of guilt or innocence in his favour unless substantiated by some other evidence on the record. In the present case, the finding recorded by the D.S.P. Does not seem to be based on any sound material and cannot be preferred over the eye-witness account furnished by Muhammad Sharif, complainant, Mst. Sardaran. Muhammad Akram, Abrar and Baqar Khan, therefore, the petitioner cannot take advantage of the finding of innocence recorded by the D.S.P. In his favour.

5. The second contention raised by the petitioner's learned counsel that the petitioner is entitled to bail on the ground of minority appears to have weight. As per the petitioner's school leaving certificate his date of birth is 21-7-1983. Counted from the said date, his age at the time of occurrence (which took place on 26-7-1996) was 13 years and 5 days. The school leaving certificate was issued on 30-3-1991, long before the present occurrence and can be relied upon.

6. By virtue of the provisions of section 306 of the P.P.C. Qatl-e-Amd is not liable to Qisas in the following three cases:--

(a) When an offender is minor or insane; ' Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;

(b) When an offender causes death of his child or grandchild, how howsoever; and

(c) When any Wali of the victim is a direct descendant, how low sever, of the offender."

' Under section 299(1) of the P.P.C. a "minor" means a person who is not an "adult". The definition of "adult" originally contained in Qisas and Diyat Ordinance (Ordinance VII of 1990), enforced on 5-9- 1990, was as under:-- "Adult means a person, being a male who has attained the age of 18 years, or being a female the age of 16 years, or has attained puberty whichever is earlier."

' The above definition remained unchanged in three subsequent Ordinances i,e, Ordinance No,1 of 1991, enforced on 4-1-1991, PLD 1991 Central Statutes page 208, Ordinance No,XVIII of 1991, enforced on 27-4-1991 PLD 1991 Central Statutes page 277, Ordinance No,XXX of 1991, enforced on 24-8-1991, PLD 1991 Central Statutes page 521. The last mentioned Ordinance, lapsed and was substituted by Ordinance No,IV of 1992, enforced on 22-4-1992 PLD 1992 Central Statutes page 176. For the first time the definition of the word "adult" under section 299(a) of the P.P.C. Was modified as under:-- "Adult means a person who has attained the age of 18 years."

' Thus, the remaining part of the definition embodied in the original Ordinance (VII of 1990) and the subsequent three Ordinances was omitted. The new definition of "adult" remained unchanged in the following Ordinance enforced from time to time:-- ' Ordinance X of 1992, enforced on 30-7-1992, PLD 1992 Central Statutes 262.

' Ordinance XVII of 1992 enforced on 19-11-1992, PLD 1993 Central Statutes 70.

' Ordinance IV of 1993 enforced on 17-3-1993, PLD 1993 Central Statutes 226.

' Ordinance XII of 1993 enforced on 15-7-1993, PLD 1993 Central Statutes 334.

' Ordinance XXXIX of 1993, enforced on 10-11-1993 , PLD 1994 Central Statutes 2ii ' Ordinance XVII of 1994, enforced on 8-3-1994, PLD 1994 Central Statutes 229.

' Ordinance LXIII of 1994, enforced on 25-10-1994, PLD 1995 Central Statutes 175.

' Ordinance LVI of 1995, enforced on 31-5-1995, PLD 1996 Central Statutes page 387.

' Ordinance XCIX of 1995, enforced on 12-9-1995, PLD 1996 Central Statutes 798.

' Ordinance V of 1996, enforced on 11-1-1996, PLD 1996 Central Statutes 965.

' Ordinance LII of 1996, enforced on 2-5-1996, PLD 1996 Central Statutes 1391.

' Ordinance LXXX of 1996, enforced on 12-8-1996, PLD 1996 Central Statutes 1870.

6-A. In the present case the occurrence had taken place on 26-7-1996 when Ordinance No,LII of 1996 held the field. Therefore, the question of the petitioner's penal liability and the sentence had to be determined on the basis of provisions of sections 299, 302, 306 and 308 of the said Ordinance.

7. As per the School Leaving Certificate the petitioner was 13 years old at the time of commission of offence, hence he was a minor under section 299(1) read with section 299(a) of the P.P.C. By virtue of section 306 of the Penal Code the petitioner being a minor was not liable to Qisas for Qatl-e- Amd. However, he can be awarded imprisonment for a period of 14 years after a finding by the trial Court that he had attained sufficient maturity and was able to realise the consequences of his act, it is so provided under the second proviso to section 308 of the Code which reads as under:-- "Provided further that, where at the time of committing Qatl-e-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be pitinshed with imprisonment of either description for a term which may extend to fourteen years as Tazir."

The question whether the petitioner had attained sufficient maturity at the relevant time is a question of fact which can be suitably determined by the trial Court after recording evidence.

Therefore, the matter qua the petitioner's guilt in the light of the second proviso to section 308 of the Code requires further probe and inquiry. Hence, at this stage the petitioner deserves concession of bail under the provisions of section 497(2) of the Cr.P.C. In this connection I am fortified by a Full Bench judgment of this Court in the case of Muhammad Ashraf v. The State PLD 1991 Lah.

347. Prima facie, on a finding of guilt for Qatl-e-Amd, the petitioner can be awarded the sentence of payment of Diyat as laid down under section 308 of the P.P.C., therefore, the offence will not fall under the prohibition of section 497 of the Cr.P.C. This view finds support from the judgment in the case of Usman Ali v. The State 1996 PCr.LJ 166 passed by my learned brother Muhammad Aqil Mirza, J. The relevant part of the judgment reads as under:-- "Respectfully following the dictum laid down in the aforequoted judgment of the Supreme Court, I am of the view that the petitioner in the present case being 16 years and a few months of age is a minor and he cannot be awarded capital punishment. Whether or not he had attained sufficient maturity so as to be able to understand the consequences of his act and thus liable to Ta'zir, is a matter of further inquiry which shall be decided by the trial Court after recording the evidence at the trial. Therefore, his case does not fall within the mischief of the prohibitory clause of section 497, Cr.P.C. Till such time that it is held that he was sufficiently mature to understand the consequences of his act and hence liable to Ta'zir, he will be deemed to be liable to the punishment of Diyat only."

8. For the foregoing discussion the petition is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs,50,000 (rupees fifty thousand) with two sureties, each in the like amount to the satisfaction of Judicial Magistrate, Bhalwal.