NASEER AHMED vs THE STATE

MUHAMMAD BASHIR JEHANGIRI, J.--This appeal by leave, is by Naseer Ahmad, appellant, who was convicted by the learned Sessions Judge, Khushab, under section 302, P.P.C. For committing Qatl-i- Amd' of Muhammad Ismail deceased and sentenced to imprisonment for life and a fine of Rs,20,000 or in default to undergo rigorous imprisonment for one year. He was also directed to pay a sum of Rs,25,000 as compensation under section 544-A, Cr.P.C. Which, if recovered, was to be paid to the legal heirs of the deceased or in default thereof he was to suffer rigorous imprisonment for six months.

2. In appeal, the learned Judge in Chambers of the Lahore High Court, Lahore, maintained the conviction of the appellant for committing 'Qatl-i-Amd' of Muhammad Ismail deceased, but since the convict-appellant was found minor, he could only have been convicted under section 302, P.P.C. Read with section 308, P.P.C. Therefore, he was sentenced to pay the amount of Rs,1,42,322.29 as Diyat to the legal heirs of the deceased. The convict-appellant filed the petition for leave to appeal.

3. Leave to appeal was 'granted by this Court to consider the proposition as to whether or not the appellant-convict had attained sufficient maturity at the time of commission of the crime in order to award him the prescribed sentence under second proviso to section 308, P.P.C. Where under he could be sentenced to rigorous imprisonment which may extend to 14 years as Ta'zir.

4. It appears that the convict-appellant having failed to pay the amount of Diyat is still lodged in Jail. Mr. Rafique Javed Butt, learned Advocate Supreme Court contended that the learned Single Judge of the High Court has ignored the mandatory provisions of first proviso to section 308(1), P.P.C. Which reads as under:-- "Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or by such person as may be determined by the Court."

5. In this context the learned counsel further submitted that the first proviso having been ignored, the convict-appellant has been prejudiced inasmuch as under the second proviso to subsection

(2) of section 331 of the P.P.C. Where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid in full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.

6. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court, appearing on behalf of the State, has controverted the contentions of the learned Advocate Supreme Court representing the appellant and invited our attention to the second proviso to section 308, P.P.C. Laying down that where at the time of committing 'Qatl-i-Amd' the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval so as to be able to realise the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir.

7. The learned counsel for the parties had conceded before us that neither the learned trial Judge nor the learned Judge in Chambers of the High Court had noticed this provision of law nor had adverted to determine whether at the time of commission of the offence the convict-appellant was in fact minor, if so how old he was. It may further be noticed that mere reliance on the School Leaving Certificate by the trial Judge as also by the learned Single Judge of the High Court was not enough to come to a definite conclusion as to the age of the minor at the time of the commission of the offence. Additionally for that purpose, the ossification test or any other medical test should have also been got conducted and the age of the convict-appellant determined in accordance therewith and then decided the case accordingly.

8. In this view of the matter, we are constrained to accept this appeal, set aside the sentence of the convict-appellant and remand the case to the learned trial Judge to determine the question as to what was the age of the convict-appellant at the time of occurrence and, if he is found to be minor, whether he had attained the sufficient maturity so as to be able to realize the consequences of his act and then award him proper and legal sentence. The trial shall be concluded within six months from today under intimation to the Registrar of this Court.