2020 P Cr (PLP)

RAZA ALI KHAN, J.

The captioned appeal has been filed against the judgment dated 12.02.2005 passed by the District Court of Criminal jurisdiction, Kotli whereby the convict appellant, has been convicted under sections 302, 324, 337-A(i), 337-A(iv), 337-F(i). Facts forming background of the captioned appeal as well as reference are that Muhammad Matloob complainant, made a written application "Exh.PA" at Police Station Khoiratta at 07:10 p.m. on 26.07.2001, stating therein that, he is resident of Sehwar. On 26.07.2001 at 6:00 p.m. he along-with his son Muhammad Waqas were cutting grass from land situated near their house that he heard the voice of quarrel from the house of Maqsood Begum wife of Muhammad Arif. Upon this, he along with his son reached at the house of Maqsoom Begum and saw that Muhammad Ghazanfar son of Muhammad Bashir resident of Dana hit with hatchet with the intention to kill at the head of Muhammad Ayoub, brother of the complainant and made second blow at his neck. In the meantime, father of complainant Hawaldar Muhammad Shan reached on spot and then Ghazanfar made repeated blows with hatchet on head of Maqsoom Begum, who was seriously injured. His brother namely Muhammad Ayoub fell down and died on spot. Accused Ghazanfar fled away from the place of occurrence. The motive behind the occurrence is that Ghazanfar had murdered his wife Zahida Bibi, six years ago and Muhammad Ayoub brother of the complainant was helping the parents of Zahida Bibi. The occurrence was stated to be witnessed by complainant and his son Muhammad Waqas and Shan Muhammad. On this report FIR No.96/2001, Exh "PB" was registered at Police Station Khoiratta on 26.07.2001 in the offences under sections 302/324 and 337, A.P.C. The police after formal investigation submitted challan before District Criminal Court Kotli on 11.09.2001. The statement of convict appellant under section 265-D was recorded on 08.11.2001, who pleaded not guilty, whereupon, the prosecution was asked to lead evidence in support of the allegation. At the completion of prosecution's evidence, the statement of the accused under section 342, Cr.P.C. was recorded on 03.12.2004, who again pleaded not guilty and claimed innocence. The learned District Criminal Court, Kotli at the conclusion of the trial vide impugned judgment dated 12.02.2005 convicted the accused and sentenced him in following manners:- (i) Under section 302(a), A.P.C., death sentence as Qisas; (ii) Under section 342, A.P.C., 10 years' rigorous imprisonment, (iii) Under section 337-A(i), Rs.5,000/- as Damam; (iv) Under section 337-A(iv), Rs.60,000/- as Arsh; (v) Under section 337-F(i), Rs.5,000/- as Daman. The benefit of 382-B, Cr.P.C. was also extended in favour of the convict-appellant. The convict/appellant Muhammad Ghazanfar has filed Appeal No.29/2017 for setting aside the sentence awarded to him, while Reference No.30/2017 has been sent by District Criminal Court for confirmation of death sentence. The learned Advocate appearing for the convict-appellant, inter alia, argued that this was not the case of maximum punishment because the Court below, as mentioned at page 17 of the judgment, has excluded the evidence of Maqsoom Begum being lady and evidence of Shan Muhammad being father of the deceased and after excluding their evidence, the requirement of evidence provided under Article 26 of the Qanun-e-Shahadat Order is not fulfilled because Muhammad Waqas at the time of occurrence was minor, therefore, maximum punishment could have not been awarded to convict-appellant. The learned Advocate further argued that the convict appellant at the most can be convicted under section 302(c), A.P.C. and he is behind the bars since, 2001, hence, by accepting the appeal the convict appellant may be released keeping in view his detention period. The learned Advocate in support of his submissions placed reliance on case titled Niamat Ali v. The State (1998 PCr.LJ 1072). In 1998 PCr.LJ 1072, referred to and relied upon by the learned counsel for the convict appellant, the death sentence of accused, therein, was set-aside in the circumstances of that case and the accused was convicted under section 302(c), A.P.C. and was awarded 10 years' R.I. The learned Advocate appearing for the complainant contended that under Article 17 of the Qanun- e-Shahadat Order, the evidence of a minor is acceptable. Therefore, the Court below rightly awarded the maximum punishment to the convict appellant who brutally murdered an innocent and injured other. The learned AAG, adopted the arguments advanced by the learned counsel for the complainant. We have heard the learned counsel for the parties as well as AAG and gone through the record of the case. At the very outset it may be stated that the learned counsel for the convict appellant during course of arguments stated that this is a case of lesser punishment on the ground that after excluding the evidence of Maqsoom Begum and Shan Muhammad the courseware of evidence mentioned in Article 26 of the IPL, is not fulfilled because Muhammad Waqas at the time of occurrence was minor. In this state of affairs only the question whether the statement of Muhammad Waqas, who was minor at the time of occurrence, is acceptable for awarding major punishment or not, required resolution by this Court and the whole evidence need not to be discussed. Article 3 of Qanun-e-Shahadat Order, 1984 defines the witnesses who shall be competent to testify. For appreciation Article 3 of Qanun-e-Shahadat Order, 1984 is reproduced as under:- "

3. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented for understating the questions put to then, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind." The above reproduced provision of law provides that the evidence of tender age/minor is acceptable if he has understanding of the questions put to him and able to answer them rationally. In case titled Mst. Razia alias Jia v. The State (2009 SCMR 1428) the Hon'ble Supreme Court of Pakistan observed that mere fact that a witness was of a tender age does not ipso facto make his evidence unreliable. The relevant observations recorded in para 7 of the report are reproduced as under - "It may be observed that mere fact that a witness was of tender age does not ipso facto make his evidence unreliable. It is true that before acting upon the evidence of child witnesses, close and carefully scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court about his satisfaction. In case titled Qadeer Hussain v. The State (1995 PCr.LJ 803) the Hon'ble Supreme Court of Azad Jammu and Kashmir observed that the child of 12 years is not a child of tender years within the meaning of Article 3 of Qanun-e- Shahadat Order, 1984 and even a child of 6 and 7 years is a competent witness. It was further held that the factor of age is not required by law rather important thing for consideration is the intelligence of minor witness. The relevant observations recorded at page 809 of the report are reproduced as under:- "There are also numerous authorities on the point that a child of 12 years is not a child of tender years within the meaning of this section and is, therefore, competent to give evidence. Similarly a child of 8 to 9 years of age or 10 years of age or even a child of 6 or 7 years is a competent witness, if it appears from his deposition that he can understand the question put to him and give rational answers thereto. Our aforesaid view is fortified by the authorities 1968 PCr.LJ 1526, PLD 1965 Pesh. 134, 1968 PCr.LJ 569 and AIR 1953 Pat.

246. So what is required by law is not the factor of age but the important criteria has always been the intelligence that a particular child witness has in the circumstances of the case." In case titled Abdul Majeed v The State (2002 PCr.LJ 41) the learned Lahore High Court Lahore, opined that inquiry required under Article 3 of Qanun-e-Shahadat Order, 1984 is not an absolute and inflexible rule and for observing intelligence of child witness the writing question and answer is not required by law. The relevant observations are reproduced as under:- "

16. The Honourable Judges of Azad Jammu and Kashmir Supreme Court in Qadeer Hussain v. State 1995 PCr.LJ 803 has observed that Rule enunciated in Article 3 of Qanun-e-Shahadat, 1984 is not an absolute or inflexible rule. It means that the observing intellect of a child in the shape of writing question and answer is not the requirement of law. The Court was quite competent to give its observation with regard to the intellect of the witness. It would mean that only requirement is the satisfaction of the Court.

17. Thus, the contention of the learned counsel for the appellant that the trial Court has erred in law by not taking into writing the questions put to the witness, having no force is repelled." In Criminal Appeal No 34/2001 titled Khushal Khan alias Bajo and another v. The State decided 06.11.2001, the same objection was raised before this Court that the evidence of a minor cannot be considered as reliable and competent. This Court observed that the evidence of a tender age person or a minor if found otherwise, reliable and competent cannot be rendered inadmissible merely on the basis of his/her age. The relevant observation recorded at page 8 of the judgment by this Court is as under:- The objection raised by the learned defense counsel about the competency of evidence of Mst. Naeeda Begum was also considered. No doubt her age at the time of recording her Court statement was disclosed as 13 years but her statement shows that she is fully competent to understand questions and their rational answers. The evidence of a tender age person or a minor, in absence of preliminary inquiry, if found otherwise reliable and competent, it cannot be rendered inadmissible merely on the basis of his/her age. The Court is competent to adjudge the capability of the witness from the manner in which he has given the evidence as well from the recorded evidence, therefore, the statement of Mst. Naeeda Begum is accepted to be a statement of a competent witness. We have gone through the statement Muhammad Waqas who at the time of recording his statement was 14 years old and was able to understand what he is saying, therefore, the Court below rightly considered him as competent witness. In the case in hand, the allegation against the convict appellant is fully supported from the statement of Muhammad Matloob and whose evidence has also not been challenged by the learned counsel for the appellant during course of arguments. Moreover, the statement of Muhammad Waqas, minor is also corroborated from the statement of Maqsoom Begum and Shan Muhammad. We do not agree with the observations of the Court below that the evidence of Maqsoom Begum being lady is not acceptable because statement of a female witness, who is able to understand the questions and answer them rationally, is a competent witness. As discussed above, under Article 3 of Qanun-e Shahadat Order, 1984 all the persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by any reason. The Words "all witnesses" used in the section denote that there is no difference between the testimony of a female or a male witness. Similarly, we also do not agree with the observation of the Court below that the statement of Shan Muhammad being father of the deceased is not acceptable. There is a plethora of judgments on the subject that statement of a witness cannot be discarded merely on the ground of relationship. It is well settled now that statement of a witness cannot be disbelieved mere on the ground that he is relative. Reliance can be placed on PLD 2004 Supreme Court 371, wherein the Hon'ble Supreme Court of Pakistan held as under:- "The trial Court was not justify to reject eye-witness account furnished by complainant Khan Amir P.W and Hakim Gul P.W. merely on the ground of being related and interested particularly when appellants had not been able to establish on record that the above mentioned witnesses had nourished any grudge or ill-will against them and deposed with a specific motive. On this aspect, reliance can be made on the case Saeed Akhtar and others v. The State (2000 SCMR 383) wherein this Court: has held that mere relationship of the witnesses with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused...... Conviction in a criminal case can be recorded even on the statement of the eye-witnesses alone without there being any corroboration provided their evidence inspires confidence." The same principle has been laid down by the Supreme Court of Azad Jammu and Kashmir in case titled "Maqsooda Begum and another v. Junaid and 6 others" (2014 SCR 1428). The relevant observations recorded at page 14 are reproduced as under:- "So far as in this case the point that the evidence of the prosecution witnesses cannot be discarded merely on the basis of relationship is concerned, we have no cavil with this principle of law but this principle is also subject to the conditions that if the statements of such witnesses are confidence inspiring, truthful and benefitting in the light of the prosecution story." The contention of the learned counsel for the convict appellant that he is behind the bars since 2001, hence, is entitled to lesser punishment, has no substance. This point came under consideration before the Supreme Court of Azad Jammu and Kashmir in case titled Muhammad Yaqoob v. The State and 2 others (2014 SCR 121) wherein the apex Court in para 17 observed as under:- "In the present case the occurrence took place in the year 2006. The appellant was convicted by the trial Court. His appeal remained pending in the Shariat Court and thereafter in this Court. He remained behind the bars for about seven years. This period cannot be considered a mitigating circumstance for converting the death sentence into lesser sentence. The judgment of the trial Court as well as the Shariat Court suffers from no legal infirmity." The same question also came under consideration before the Hon'ble Supreme Court of Pakistan in case titled Hassan and others v. The State and others (PLD 2013 Supreme Court 793). The Hon'ble Supreme Court of Pakistan interpreted the provisions contained in section 403, Cr.P.C. and observed that the principles of autrefois acquit and autrefois convict contained in section 403(1), Cr.P.C. have no relevance to a case wherein the question under consideration in an appeal is not as to whether a new trial of the convict should be held or not but the issue is as to which sentence would be the appropriate sentence for a convict. The Hon'ble Supreme Court of Pakistan at page 816 of the judgment concluded as under:- "We have, therefore, faced no difficulty in concluding that the provision of section 403, Cr.P.C. are not attracted to the situation posed by the present case. The concept of double jeopardy is inseparably linked with the principles of autrefois acquit and autrefois convict and, thus, the said concept may also have little relevance to the case in hand." In view of above discussion, we held that incarceration period of an accused cannot be treated as mitigating circumstance for awarding lesser punishment. As stated above, the statement of Muhammad Waqas is acceptable as a competent witness and the same cannot be disbelieved or excluded from the evidence mere on the ground that he was minor at the time of occurrence or at the time of recording his statement, therefore, courseware for recording major punishment as Qisas is complete in this case and the statements of the Muhammad Waqas and Muhammad Matloob are also corroborative by the statements of Maqsoom Begum and Shan Muhammad, therefore, the appeal filed by the convict appellant has no substance in it. In view of above, the appeal filed by convict appellant stands dismissed and reference sent by the District Court of Criminal Jurisdiction is answered in affirmative. JK/6/HC(AJ&K) Appeal dismissed.