GHULAM MURTAZA vs THE STATE

' ABDULHAMtED DOGAR, J.---This appeal with the leave of the Court is directed against the judgment dated 30-4-2001 passed by a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal No,518 of 1996 filed by the appellant was dismissed and Murder Reference No,98 of 1996 was answered in affirmative.

2. Briefly stated, the facts leading to the filing of the instant appeal are that appellant GhulamMurtaza was tried alongwithGulzar, Ghulam Ahmad and Mahmoodul Hassan for having committed the murder of deceased Yasin by the learned Additional Sessions Judge, Faisalabad, who vide his judgment dated 17-6-1996 acquitted accused Gulzar, Ghulam Ahmad and Mahmoodul Hassan whereas convicted appellant under section 302(b), P.P.C. And sentenced him to death with fine of Rs,50,000 which, if recovered, was directed to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default whereof he was ordered to undergo R.I. For six months. Appellant assailed the judgment in appeal before the Lahore High Court, Lahore, which, was dismissed vide impugned judgment.

3. Precisely stating, the version of the case of the prosecution is that on 5-1-1995 at about 5-00 p.m.

While complainant Sultan Mahmood was present alongwith his son deceased Yasin outside their house, Gulzar alias Fazli (acquitted accused) armed with `Khanjar' and appellant GhulamMurtaza armed with Carbine accosted them. Gulzar alias Fazli raised Lalkara whereupon appellant fired at deceased Yasin which hit on his right side of head and chest who fell down and succumbed to the injuries there and then. On hue and cry, P.Ws. Ali Sher, Muhammad Mansha and Sanaullah got attracted to the spot and saw the incident.

4. Motive behind the occurrence was that the appellant and Gulzar (acquitted accused) wanted to commit sodomy with deceased Yasin but he refused. The deceased apprised his father who alongwith his brother Ali Sher went to acquitted accused Mahmood and Ghulam Muhammad and complained about their behaviour which infuriated and prompted them to commit the incident.

5. On 29-8-2001, this Court granted leave to appeal only to the extent of quantum of sentence to consider the aspect that at the time of incident, the appellant was minor aged 15/16 years, therefore, was not liable for death sentence in view of the provisions of section 306 read with section 308, P.P.C. And also discrepancy in the age as laid down by this Court in the case reported as Sarfraz alias Sappi and 2 others v. The State 2000 SCM R 1758.

6. We have heard Ch. Rayasat Ali, learned Advocate Supreme Court for the appellant and Messrs Malik AanulHaq for the State and Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court for the complainant and have gone through the record and the proceedings of the case in minute particulars.

7. Learned counsel for the appellant mainly contended that theappellant was about 15/16 years of age at the time of commission of offence, thus his case would fall under the provisions of sections 306 and 308, P.P.C. Which are punishable as Qatl-i-Amd not liable to Qisas and sentence of death cannot be awarded. According to him, this aspect of the matter has not been properly dealt with by the learned trial Court and the learned Appellate Court though the age of the appellant, in his statement, recorded under section 342, Cr.P.C. Was mentioned as 16 years. To further substantiate the same, he placed on record of this Court the copies of birth certificate and school leaving certificate whereby the appellant was born on 15-1-1980. In support of his contention, he placed reliance on the case of Sarfraz (supra) and contended that this Court while taking into consideration the discrepancy about the age of the accused being minor reduced his sentence from death to 14 years. Irrespective of the above, he also contended that it was the duty of the Court to have conducted the ossification test of the appellant by an expert, the moment he agitated that he was minor and not an adult. By not doing so, the Court has not fulfilled the requirements of law and justice. In support, he also referred the case of Ziaullah v. Najeebullah and others PLD 2003 SC 656 and claimed that in such circumstances, the appellant would have been tried under Juvenile Justice System Ordinance, 2000.

8. On the other hand, MessrsAanulHaq, learned Advocate Supreme Court for the State and Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court for the complainant have vehemently controverted the above contentions and argued that the appellant was in fact major at the time of incident. He did not raise the plea of his minority either before the trial Court or before Appellate Court. It was for the first time that he produced his birth certificate and school leaving certificate in this Court which too are fictitious and managed one and are false on the face of it.

The certificates referred to above relate to one Ghulam Mustafa alias Murtaza, as such, have got no sanctity. Learned counsel for the respondent urged that the above-referred cases are not applicable in this case as they pertain to the cases of Qatl-i-Amd not liable to Qisas whereas in the instant case, the appellant has been convicted and sentence under section 302(b), P.P.C. To death as Tazir. According to him, the appellant has miserably failed to. Establish that he was minor at the time of incident. In support he relied upon the case of Muhammad Akram v. The State 2003 SCM R 855.

9. We have given our anxious thought to the contentions raised at the bar and fully agree with the arguments advanced by learned counsel for the respondents. Admittedly, the appellant had not raised the plea of his being minor at the time of incident before the Courts below and it was for the first time, he took the same before this Court by producing two birth certificates which on perusal do not concern the appellant but relate to one Ghulam Mustafa alias Murtaza, whereas the appellant is named as GhulamMurtaza. It is not believed that at the time of birth, the appellant was named as Ghulam Mustafa alias Murtaza. The case of Sarfraz (supra) is of no help to the case of the appellant as the major factor which influenced the Court to reduce the sentence was that appellant Sarfraz was minor at the time of incident. On the other side,, the dictum laid down by this Court in the case of Muhammad Akram (supra), fully supports the case of the prosecution whereby. Petitioner Muhammad Akram was convicted and sentenced to death as Ta'zir under section 302(b), P.P.C. The provisions of sections 306, 307and 308, P.P.C. Would only be attracted in the cases of Qatl-i-Amd liable to Qisas under section 302(a), P.P.C. In the instant case, both the Courts below in its judgments have arrived at a correct conclusion that the appellant was major at the time of incident and, as such, was convicted and sentenced to death as Ta'zir under section 302(b), P.P.C.

10. For the foregoing reasons, we do not find it a fit case for interference and while maintaining the conviction and sentence awarded by the trial Court and upheld by the learned Appellate Court, dismiss the appeal.