Sunday 3 June 2012

When conviction is made under section 308 PPC

PLJ 2012 Cr.C. (Lahore) 315 (DB)
[Multan Bench Multan]

Present: Muhammad Anwaar-ul-Haq and Sardar Muhammad Shamim Khan, JJ.

AHSAN ALI alias SHANI--Appellant

versus

MALIK SAJJAD AHMED and another--Respondents

Crl. Appeals No. 379 of 2006 and 9 of 2011, heard on 27.9.2011.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 308--Conviction and sentence--Challenge to--Modification in conviction--Contention--It was a foggy night or at the time of occurrence tube lights were not lit on account of load shedding where occurrence took place--Prosecution had proved its case beyond reasonable doubt against appellant by ocular account, medical evidence and recovery of pistol from his possession--As appellant was Juvenile, trial Court had convicted him u/S. 308 PPC--Contention of counsel for the appellant was correct--Provisions of Sections 306, 307, & 308, PPC would only attract in the cases of Qatl-e-Amd which are liable to Qisas u/S. 302(a), PPC and not in the cases in which the sentence for Qatl-e-Amd has been awarded as Tazir. Section 306, PPC provides that Qatl-e-Amd shall be liable to Qisas in the cases when the offender is minor of insane and thus it is clear that in such cases punishment of Qisas will remain in operative--Therefore, provisions of Section 308, PPC are attracted only in the cases liable to Qisas in which by virtue of provisions of Sections 306 & 307, PPC punishment of Qisas can not be imposed or enforced and not in the cases in which punishment is awarded as Tazir--Conviction against appellant recorded by trial Court u/S. 308 PPC was not sustainable in the eyes of law and set aside but appellant was convicted u/S. 302(b)--Appeal partly accepted.           [Pp. 324, 326 & 327] A, B, C & D

M/s. Abdul Aziz Khan Niazi and Mian Mahmood Rasheed, Advocates for Appellant.

Rana Abdul Hameed, APG for State.

Mr. Muhammad Iftikhar-ul-Haq Khawar, Advocate assisted by Raja Sultan Khurram-uz-Zaman, Advocate for Complainant.

Date of hearing: 27.9.2011.

Judgment

Sardar Muhammad Shamim Khan, J.--Ahsan Ali, appellant was tried in a Complaint case titled "Malik Sajjad Ahmad Vs. Ahsan Ali" pertaining to case F.I.R No. 11 of 2004 dated 05.01.2004, registered at Police Station City, Sahiwal, in respect of offences under Sections 302, 324, 148 & 149 P.P.C. At the culmination of trial, the learned trial Court vide its judgment dated 31.05.2006 has convicted and sentenced Ahsan Ali, convict/appellant as under:--

UNDER SECTION 308 P.P.C.

14-years R.I. as Tazir, appellant was also directed to pay Diyat equal to the value of 30630 grams of Silver, to be paid to the legal heirs of the deceased and till the payment of Diyat he shall be kept in jail and dealt with in the same manner if sentenced to simple imprisonment until the Diyat is paid.

UNDER SECTION 324/34 P.P.C.

Four Years, R.I.

UNDER SECTION 337-F(v)/34 P.P.C.

One Year R.I. along with `daman' amounting to Rs. 10,000/- payable to Sh. Muhammad Arshad, victim and in default thereof, may be kept in jail and be dealt with in the same manner as if sentence to simple imprisonment until `daman' is paid.

The appellant was given the benefit of Section 382-B P.P.C. and all the sentences were to run concurrently.

2.  Feeling aggrieved by the impugned conviction and sentence, Ahsan Ali, appellant has filed the instant appeal, whereas initially the complainant had filed PSLA No. 38 of 2006 for altering the conviction of Ahsan Ali alias Shani under Section 302(b), PPC which was afterwards converted into Crl. Appeal No. 09 of 2011. Both these matters are being decided through this judgment.

3.  Initially report under Section 173 of Cr.P.C. against accused Ahsan Ali alias Shani along with co-accused Raashid etc. was submitted before the learned trial Court and when cognizance was taken by the learned trial Court, an application was moved by the Ahsan Ali accused for bifurcation/separation of his case from the case of his co-accused on the ground that he was juvenile and could not be tried jointly with co-accused who were adults. In consequence of the order, passed by learned trial Court medical board was constituted, who was of the unanimous opinion that Ahsan alias Shani was about 18-years of age. Upon receiving the report of the Medical Superintendent DHQ Hospital, Sahiwal, learned trial Court declared Ahsan alias Shani as juvenile. Consequently, separate report under Section 173 of Cr.P.C. regarding Ahsan alias Shani, appellant was submitted before the learned trial Court. Being dis-satisfied with the investigation of aforementioned case, complainant filed the private complaint before the learned trial Court. Learned trial Court after hearing learned counsel for parties and while observing that as in the private complaint and connected challan case, the accused and the set of witnesses were the same, therefore, in view of law laid down by the August Supreme Court in "Noor Elahi" case, there was no need for separate trial in both the cases, these cases were consolidated and the witnesses mentioned in the calendar of witnesses of the challan case and not cited by the complainant Malik Sajjad Ahmad in the private complaint were decided to be examined as CWs.

4.  Brief facts of prosecution story, according to the complainant, given in the private complaint are that on 05.01.2004 at about 07.25 pm he was proceeding to his home situated at Dosehra Ground on his Motorcycle No. SLH/4847 Yamaha. When he reached near New Al-Makka Engineering Works Railway Road, Sahiwal, he saw that his cousin (Chachazad) Bilal Ahmad, and Sh. Muhammad Arshad, PW were present in front of New Al-Makka Engineering Works and were talking. At that time tube lights were lit in front of Al-Makka Engineering Works and also inside the shop. In the meanwhile on three motorcycle Honda 125/cc, Yamaha and Suzuki, accused persons Nadeem, Rashid Mahmood, Abdul Rehman, Nasir, Muhammad Awais, Ahsan Ali and Moon Shah reached there, who were previously known to the complainant. The aforementioned accused persons after alighting from their motorcycles encircled Malik Bilal Ahmad and took out pistols .30-bore from the folds of their Shalwars. Raashid Mahmood and Nadeem raised Lalkara that let Malik Bilal Ahmad be taught a lesson for his earlier quarrel and kill him. Upon which Nadeem, accused fired at Malik Bilal Ahmad with his pistol hitting him near his right arm pit. Raashid Mahmood accused fired two successive pistol shots hitting Malik Bilal Ahmad on his left calf, whereas Nasir accused made a fire shot with pistol at Malik Bilal Ahmad, which hit him on the back of his right shoulder, thereafter Moon Shah fired with pistol at Malik Bilal Ahmad which hit him on the back of his right shoulder near the above mentioned injury. Ahsan alias Shani thereafter fired with pistol which hit Malik Bilal Ahmad on the back of his chest in between his two shoulders. Then Muhammad Awais fired with pistol which landed on right thigh of Malik Bilal Ahmad, who fell down on the ground. Sh. Muhammad Arshad PW, after stepping forward tried to stop the accused persons upon which Nadeem accused raised Lalkara that Sh. Muhammad Arshad be also killed, upon which Abdul Rehman, accused fired with pistol at him, which shot hit him on his right foot. The occurrence was also witnessed by Mushtaq Ahmad and Malik Babar. The accused persons decamped from the place of occurrence, while making aerial firing.

5.  Malik Bilal Ahmad and Sh. Muhammad Arshad were shifted to the hospital in injured condition by the complainant where in emergency ward Malik Bilal Ahmad succumbed to his injuries.

6.  Motive behind this occurrence was that Muhammad Shahid brother of accused persons Raashid Mahmood, Abdul Rehman and Nasir, had earlier got a case registered against Malik Bilal Ahmad vide F.I.R No. 420/2003, under Sections 452, 324 & 34 P.P.C. at Police Station City, Sahiwal, and due to this grudge the accused persons committed the murder of deceased Malik Bilal Ahmad and injured the PW Sh. Muhammad Arshad.

7.  After the completion of investigation, a separate report under Section 173 Cr.P.C. was submitted by the police before the learned trial Court as Ahsan Ali accused was declared Juvenile. Therefore, trial of Ahsan Ali appellant was conducted under Juvenile Justice System Ordinance, 2000 by the learned trial Court. Ahsan Ali alias Shani, appellant was formally charge sheeted to which, he pleaded not guilty and opted trial.

8.  In order to prove his case, the complainant produced as many as eleven (11)--witnesses.

PW-1. Malik Sajjad Ahmad, is the complainant of the case and he deposed the same story as narrated in his complaint.

PW-2. Sh. Muhammad Arshad is the injured witness of the occurrence who supported the prosecution story.

PW-3. Dr. Munir Ahmad Qadri conducted post-mortem examination on the dead body of Malik Bilal Ahmad deceased and found the following injuries on his person.

1-A      Lacerated wound 1cm X 1 cm x deep going blackening of margins present on posterio medial aspect middle part of left leg. Margins inverted, (wound of entry).

1-B      Lacerated wound with everted margin 1.5 cm X 1 cm X deep going present on posterio lateral aspect of middle part of left leg. This is exit wound.

2.         Lacerated wound 1cm X 1 cm X deep going with blackening of inverted edges present on posterio medial aspect of left leg 2.5 cm away from Injury No. 1-A.

3.         Lacerated wound 1 cm X 1.5 cm X deep going with blackening of inverted edges present on outer mid part of right thigh. (wound of entry).

4.         Lacerated wound 1 cm X 1 cm X deep going inverted margins blackening and burning of edges present at right axilla. (entry wound).

5.         Lacerated wound 1.5 cm X 1 cm X deep going blackening of margin which are inverted present on mid back of upper chest between two shoulders, (wound of entry).

6.         Lacerated wound 1 cm X 1 cm X deep going margins inverted burning and blackening present on back of right shoulder, (wound of entry.)

7.         Lacerated wound 1 cm X 1 cm X deep going blackening of margins present, on back of right shoulder just medial to the Injury No. 6. (wound of entry).

In his opinion Injuries No. 3, 4 & 5 collectively were sufficient to cause death of Malik Bilal Ahmad, in ordinary course of nature. The probable duration between injuries and death was about 1/2 to 1 hour and duration between the death and post-mortem examination was about three hours:

PW-4 Muhammad Saddique, 701/C, escorted the dead body of Malik Bilal Ahmad to mortuary for post-mortem examination.

PW-5 Dr. Arif Mehmood conduct X-ray of Sh. Arshad, PW of his right foot and found that there was fracture of the base of right first mata tarsal with metallic dust scattered around this area.

PW-6 Dr. Saeed Ahmad medically examined Malik Bilal Ahmad in an injured condition and found the following injuries on his person.

1-A      A Lacerated wound 1 cm X 1 cm with blackening of margins present on posterio medial aspect middle part of left leg. Margins inverted, (wound of entry).

1-B      A Lacerated wound with everted margin 1.5 cm X 1 cm present on posterio lateral aspect of middle part of left leg. (exit wound)

2.         A Lacerated wound 1 cm X 1 cm X deep going with blackening edges was present on posterio medial aspect of left leg 3 cm apart from Injury No. 1-A.

3.         A Lacerated wound 1.5 cm X 1 cm with blackening of edges X deep going was present on outer middle part of right thigh.

4.         A Lacerated wound 1cm X 1 cm with blackening of margins X deep going was present at right axilla.

5.         A Lacerated wound 1 X 1 cm with blackening » of margins was present on mid back of upper part of chest between the two shoulders.

6.         A Lacerated wound 1 cm X 1 cm with blackening of margins X deep going was present on back of right shoulder.

7.         A Lacerated wound with blackening of margins 1 cm X 1 cm deep going was present on back of right shoulder just medial to Injury No. 6.

PW-7  Saeed Akhtar, Draftsman deposed that on  the pointation of the PWs and on the direction of the Investigating Officer, he prepared site plan of the place of occurrence.

PW-8 Ghulam Abbas 289/C was a formal witness.

PW-9  Ghulam Abbas, S.I. on receipt of complaint Ex.PA, lodged the formal F.I.R Ex.PA/1.

PW-10  Khadim Hussain, SI was the Investigating Officer of this case, who deposed regarding the steps of investigation conducted by him.

PW-11  Muhammad Asif, 195/C was the witness of recovery of pistol from the possession of Muhammad Awais, accused.

9.  Malik Sajjad Ahmad, complainant gave up PW Muhammad Akram C/277 and closed his evidence in complaint case.

10.  Shahid Nazir, SI and Naeem Abbas, Inspector were examined by the learned trial Court as CWs.

11.  Learned ADA tendered in evidence the certified copy of the report of Chemical Examiner Ex.PP, the certified copy of report of Serologist Ex.PQ and the certified copy of report of Forensic Science Laboratory Ex.PR and closed the prosecution case.

12.  After closure of evidence of the complainant, the accused was examined under Section 342 of Cr.P.C. wherein he denied the allegations levelled against him by the prosecution. The accused/ appellant neither opted to produce defence evidence nor to depose on oath as required under Section 340(2) of Cr.PC. In reply to the question (Why this case was against you and why the PWs had deposed against you), Ahsan alias Shani, appellant replied as under:

"I am innocent in this case. I am Merasi by caste. I have not committed any offence. I am a poor person. I have been falsely involved in this case with the planning by Malik Sajjad Ahmad, PW, who is the Nazim of the area so that my poverty be exploited. During the investigation it is in the evidence that the complainant PW-1 Malik Sajjad Ahmad had been persuading me and offered me handsome amount to make a confessional statement and to become an approver against other under trial accused persons. As I was not willing to yield to any of such exploitation, therefore, the PWs who were interested and related with the deceased have deposed falsely against me. It was a blind murder. No PW was present. There was loadsheding of electricity at the time of occurrence and it was a dark foggy hours night. Two assailants, who were unknown, exchanged fires with Bilal deceased. I am also minor at the time of occurrence. I was child aging about 16-years. There was no litigation between me and Bilal deceased and I have no motive to kill him. The alleged recovery had been planted upon me to strengthen the prosecution evidence. I never led to re cover it and even otherwise there is no independent and partial PWs in this case. I never avoided arrest and on account of my poverty I had been made a escape goat with the influence of Malik Sajjad who is a political figure for refusing his offer. The F.I.R was lodged on the following day as the assailants were not known to any one. I have neither any economic nor political nor religious nor commercial nor any social community of activities with the other accused persons of this case so there was no reason to kill Malik Bilal Ahmad."

13.  After conclusion of the trial, above mentioned conviction and sentence was passed against the appellant by the learned trial Court.

14.  Ahsan Ali alias Shani, appellant through his appeal, has challenged the validity of judgment dated 31.05.2006 passed by the learned trial Court, whereas the complainant through Crl. Appeal No. 09 of 2011 has prayed for conviction of appellant Ahsan Ali under Section 302(b), PPC.

15.  Learned counsel for the appellant contends that Ahsan Ali appellant is not connected with the motive part of the prosecution story, therefore, there was no reason for the appellant to commit the murder of Malik Bilal Ahmad; that occurrence took place at night time which was a foggy night and tube lights were not lit at the time of occurrence on account of load shedding; that it was an unseen occurrence and both the eye-witnesses were not present at the place of occurrence at the relevant time; that in order to prove its case prosecution produced Malik Sajjad Ahmad (P.W-1) who is cousin as well as brother-in-law of Malik Bilal Ahmad deceased whereas P.W-2 Sh. Muhammad Arshad is a close friend of Malik Bilal Ahmad deceased; that no independent person from the vicinity was produced by the prosecution in order to establish its case despite the fact that occurrence took place in a thickly populated area; that Sh. Muhammad Arshad (P.W-2) did not receive any injury during this occurrence rather this injury was fabricated on his person in order to establish his presence at the time of occurrence; that learned trial Court acquitted co-accused of the appellant Muhammad Nadeem, Abdul Rehman, Nasir Hussain, Muhammad Awais and Muzaffar Shah alias Moon Shah in this case who were tried separately, therefore, prosecution evidence disbelieved by the learned trial Court to the extent of five acquitted co-accused, can not be made basis for conviction of the appellant without independent corroboration which is lacking in this case; that prosecution did not prove its case beyond reasonable doubt against the appellant; that recovery of pistol .30-bore was also planted against the appellant and positive report of Forensic Science Laboratory against the appellant was also managed by the prosecution; It has lastly been contended that by accepting this appeal appellant is liable to be acquitted.

16.  Learned counsel for the complainant as well as learned A.P.G for the State have opposed this appeal on the grounds that FIR in the instant case was promptly lodged; that name of the appellant, weapon used by him and specific role of causing injury on the back of chest of Malik Bilal Ahmad deceased between his two shoulders has been specifically attributed to Ahsan Ali appellant; that injury attributed to Ahsan Ali appellant finds corroboration from the post-mortem examination of Malik Bilal Ahmad deceased and during post-mortem examination Doctor Munir Ahmad Qadari (P.W-3) observed Injury No. 5 on the back of chest between two shoulders of deceased and this injury attributed to the appellant was declared cause of death of the deceased; that  learned trial Court wrongly acquitted five co-accused in this case by accepting their plea of alibi, therefore, the acquittal of co-accused of the appellant would not adversely effect the case of the prosecution to the extent of appellant; that complainant has filed the appeal against the acquittal of co-accused of the appellant; that although motive is not attributed to Ahsan Ali appellant but motive is always in the mind of the accused; that recovery of pistol .30-bore from the possession of Ahsan Ali appellant and positive report of Forensic Science Laboratory is also a corroborative piece of evidence against the appellant; that prosecution has proved its case against the appellant beyond reasonable doubt. It has further been submitted by learned counsel for the complainant and learned D.P.G that learned trial Court has convicted Ahsan Ali appellant under Section 308 PPC illegally and that complainant has filed Criminal Appeal 09 of 2011 for altering the conviction the appellant under Section 302(b) PPC. It has been submitted that provisions of Section 308, PPC are attracted only in the cases liable to "Qisas" in which by virtue of provisions of Section 306, PPC and Section 307, PPC the punishment of "Qisas" can not be imposed or enforced and not in the cases in which punishment is awarded as Ta'zir, therefore, by setting aside the conviction of the appellant under Section 308, PPC and by accepting the Crl. Appeal No. 09 of 2011 filed by the complainant the conviction of the appellant be recorded under Section 302, PPC.

17.  We have heard the arguments advanced by learned counsel for the parties and perused the record with care.

18.  This occurrence took place on 05.01.2004 at about 7:30 p.m. whereas Malik Sajjad Ahmad complainant (P.W-1) got his statement (EX.PA) recorded before the police at 7:50 p.m. at Civil Hospital Sahiwal after twenty minutes of the occurrence. Even formal FIR (EX.PA/1) was chalked out at 8:15 p.m., therefore, in our view it was a promptly lodged FIR which contains the name of Ahsan Ali appellant, his specific role in the occurrence, weapon used by him and names of the P.Ws.

19.  Motive behind this occurrence was that Muhammad Shahid brother of co-accused Rashid Mehmood, Abdul Rehman and Muhammad Nasir earlier got a case registered against Malik Bilal Ahmad deceased vide FIR No. 420/2003 offences under Section 452, 324 & 34, PPC at Police Station City Sahiwal and on account of that grudge the accused persons committed the murder of Malik Bilal Ahmad deceased and injured Sheikh Muhammad Arshad. Ahsan Ali appellant has no connection with the aforementioned motive part of the prosecution story. Appellant is neither related nor belonged to brother-hood of Muhammad Shahid who lodged the aforementioned case against Malik Bilal Ahmad deceased, therefore, prosecution did not prove the motive of this occurrence against Ahsan Ali appellant.

20.  Ocular account in this case has been furnished by Malik Sajjad Ahmad, complainant (P.W-1) and Sheikh Muhammad Arshad (P.W-2). Both these eye-witnesses have corroborated the prosecution story as narrated by Malik Sajjad Ahmad, (complainant) in FIR as well as in private complaint filed by him against Ahsan Ali appellant. Both these eye-witnesses have categorically stated that Ahsan Ali appellant fired with pistol .30-bore which landed on the person of Malik Bilal Ahmad deceased on the back of his chest between his shoulders. Although Malik Sajjad Ahmad (complainant) is cousin as well as brother-in-law of Malik Bilal Ahmad deceased whereas Sheikh Muhammad Arshad (P.W-2) is close friend of Malik Bilal Ahmad deceased but their relation with the deceased is not a ground itself to discard their testimony. In this respect, we respectfully refer the case of Khizar Hayat vs. The State (2011 SCMR 429) wherein the Hon'ble Supreme Court has observed as under:

"The statement of witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness can not be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."

21.  Both these eye-witnesses can not be termed as interested witnesses as they had no enmity or ill-will against Ahsan Ali appellant to falsely implicate him in this case. This occurrence took place at 7:30 p.m. in the month of January but prosecution has given source of identification in the FIR and they have categorically stated that Ahsan Ali appellant was identified as tube lights were lit in front of "New Al-Makkah Engineering Works" where the occurrence took place. The contention of learned counsel for the appellant that it was a foggy night and that at the time of occurrence tube lights were not lit as it was load shedding at that time, can not be believed as it was not proved by the appellant that it was a foggy night or at the time of occurrence tube lights were not lit on account of load shedding where the occurrence took place. Perusal of site-plan EX.PN/1 reveals that presence of tube lights at the place of occurrence has been mentioned therein.

22.  Both these eye-witnesses remained consistent on all material aspect of the case to the extent of Ahsan Ali appellant. Although there were minor contradictions in the evidence of both these witnesses but those were not fatal, at least to the extent of Ahsan Ali appellant. Both these eye-witnesses were cross-examined by the defence at length but their evidence could not be shattered to the extent of involvement of the appellant. Malik Sajjad Ahmad (P.W-1) has sufficiently explained the reason of his presence at the time of occurrence whereas P.W-2 Sheikh Muhammad Arshad sustained injury during this occurrence and his presence at the time of occurrence has been established by the evidence of Dr. Saeed Ahmad (P.W-6) who found lacerated wound of entry 1cm X 1 cm with blackening present on medial aspect of sole of his right foot. P.W-2 Sheikh Muhammad Arshad is also not related with the complainant party rather he was only friend of the deceased, therefore, evidence of both these eye-witnesses is natural, straightforward and trust worthy.

23.  Learned counsel for the appellant contended that injury on the person of Sheikh Muhammad Arshad (P.W-2) was fabricated and that he did not sustain any injury during the occurrence can not be believed as during the cross-examination Dr. Saeed Ahmad (P.W-6) denied the suggestion that injuries on the person of Sheikh Muhammad Arshad can be the result of any friendly act. Learned trial Court acquitted co-accused of the appellant Nasir Hussain, Muhammad Nadeem, Abdul Rehman, Muhammad Awais and Muzaffar Shah alias Moon Shah but their acquittal would not effect the case of the appellant as the Court has to sift grain from chaff. In this respect we refer the case reported as "Khadim Hussain Vs. The State" (PLJ 2011 SC 327).

24.  The medical evidence which was furnished by Dr. Munir Ahmad Qadri (P.W-3) and Dr. Saeed Ahmad (P.W-6) is inconformity with the eye-witness account and has provided necessary corroboration thereto. According to prosecution story Ahsan Ali appellant fired on the person of Malik Bilal Ahmad deceased with pistol .30-bore which landed on the back of his chest between his shoulders which fact is fully born out from the statement made by Dr. Munir Ahmad Qadri (P.W-3). This injury attributed to the appellant was observed by the doctor as Injury No. 5 which is noted as under:

"Lacerated wound 1.5 cm X 1 cm X deep going blackening of margin which are inverted present on mid back of upper chest between two shoulders ( wound of entry)"

This injury was also observed by Dr. Saeed Ahmad (P.W-6) who medically examined Malik Bilal Ahmad deceased in an injured condition. Injury attributed to Ahsan Ali appellant was caused by fire-arm and was anti-mortem in nature and was cause of death of the deceased. The probable duration as given by Dr. Munir Ahmad Qadari (P.W-3) between the injuries and death was about 1/2 to 1-hour and duration between death and post-mortem examination was about three hours which also corroborates the time of occurrence as narrated by the witnesses.

25.  The other incriminating evidence against Ahsan Ali appellant is recovery of pistol .30-bore. According to the evidence of Malik Sajjad Ahmad (P.W-1), on 05.01.2004 Investigating Officer secured two crime empties from the spot (P-5/1-2) and took the same into possession vide recovery memo. Ex.PD after making it into a sealed parcel. This P.W. further deposed that on 28.01.2004 Ahsan Ali, appellant while in police custody led to the recovery of pistol .30-bore
(P-9) alongwith three live bullets (P-10/1-3) which were made into a sealed parcel and were taken into possession vide recovery. Memo. Ex.P.G. The empties were received in the office of Forensic Science Laboratory on 21.01.2004 before the recovery of pistol .30-bore from the possession of the appellant. Perusal of report of said laboratory EX.P.R reveals that crime empty of pistol .30-bore was fired from the pistol .30-bore recovered from the possession of the appellant. Therefore, prosecution has proved the recovery of pistol from the possession of the appellant which is also a corroborative piece of evidence against him.

26.  In view of what has been discussed above, we have no hesitation in holding that prosecution has proved its case beyond reasonable doubt against Ahsan Ali appellant by ocular account, medical evidence and recovery of pistol from his possession. As appellant Ahsan Ali was juvenile therefore, learned trial Court has convicted Ahsan Ali appellant under Section 308, PPC and sentenced him to 14-years R.I alongwith payment of Diyat.

27.  Malik Sajjad Ahmad (complainant) has filed Criminal Appeal No. 09 of 2011 contending therein that conviction of the appellant Ahsan Ali under Section 308, PPC recorded by the learned trial Court was not sustainable in the eyes of law as provisions of Section 308, PPC are attracted only in cases liable to Qisas and not in the cases in which punishment is awarded as Tazir.

28.  The contention of learned counsel for the appellant is correct. Provisions of Sections 306, 307, & 308, PPC would only attract in the cases of Qatl-e-Amd which are liable to Qisas under Section 302(a), PPC and not in the cases in which the sentence for Qatl-e-Amd has been awarded as Tazir. Section 306, PPC provides that Qatl-e-Amd shall not be liable to Qisas in the cases when the offender is minor or insane and thus it is clear that in such cases punishment of Qisas will remain in operative. Therefore, provisions of Section 308, PPC are attracted only in the cases liable to Qisas in which by virtue of provisions of Sections 306 & 307, PPC punishment of Qisas can not be imposed or enforced and not in the cases in which punishment is awarded as Tazir. In this regard, we respectfully refer to the case reported as Tauqeer Ahmad Khan vs. Zaheer Ahmad and others (2009 SCMR 420) wherein the Hon'ble Supreme Court has observed as under:--

--Ss. 302(b) & 308--Constitution of Pakistan (1973), Art. 185(3)--Leave to appeal was granted by Supreme Court to consider; whether observation of High Court to the effect that accused, at the time of occurrence was less than 18 years of age and judgment based thereon was sustainable.

--S. 308--Qatl-e-Amd not liable to Qisas--Scope--Provision of S. 308 P.P.C. is attracted only in case liable to Qisas in which by virtue of provisions of Ss. 306 and 307 P.P.C., the punishment of Qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as Tazir.

--Ss. 302 & 308--Re-appraisal of evidence--Age of accused--Determination of--Onus to prove--Accused was convicted by Trial Court and sentenced to imprisonment for life--High Court held the accused to be less than 18-years of age and by exercising powers under the provisions of S. 308 P.P.C., reduced the sentence from life imprisonment to seven years of imprisonment as "Tazir"--Validity--Inquiry was conducted by Trial Court regarding age of accused and had found that accused was not minor at the time of commission of offence--Such inquiry conducted by Trial Court culminating into a proper order which was not challenged during trial by accused, was conclusive and final for the determination of age--Plea of minor age of accused was nothing but an after-thought, onus to prove such plea was heavily placed on the shoulders of accused but he failed to discharge the same by producing cogent and convincing evidence--Evidence produced by accused was discrepant and fell short of required standard--Mere assertion of accused that at the time of occurrence he was below the age of 18 years and was entitled to benefit under S. 308 P.P.C., without positive attempt on his part to substantiate the same, was of no consequence--Judgment passed by High Court was set aside and that of Trial Court was restored--Appeal was allowed."

29.  Therefore, in our view the conviction recorded by the learned trial Court against the appellant Ahsan Ali under Section 308, PPC is not sustainable in the eyes of law. Therefore, Criminal Appeal No. 09 of 2011 filed on behalf of Malik Sajjad Ahmad appellant/ complainant is accepted. The conviction of appellant Ahsan Ali under Section 308, PPC recorded by the learned trial Court vide judgment dated 31.05.2006 is set aside and appellant is convicted under Section 302(b), PPC and sentenced to imprisonment for life. The extreme penalty of death is not awarded to the appellant as he is juvenile. Ahsan Ali appellant shall also pay the compensation amounting to Rs. 1,00,000/- (one lac) under Section 544-A Cr.P.C. payable to the legal heirs of the deceased and this amount shall be recoverable as arrears of land revenue. In default of payment of compensation he would further undergo S.I for six months.

30.  The conviction recorded by the learned trial Court under Sections 324/34 PPC, and 337-F(v)/34 PPC against the appellant is set aside as according to the evidence of Sheikh Muhammad Arshad (P.W-2) injury on his person was not caused by Ahsan Ali appellant.

31.  With aforementioned modification in the conviction of the appellant, Criminal Appeal No. 379 of 2006 filed on behalf of the appellant Ahsan Ali is partly accepted as his conviction under Sections 324/34, PPC and 337-F(v)/ 34, PPC has been set aside by us.

(A.S.)   Appeal partly accepted

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