' .AUF AHMAD SHEIKH, J.---Mudassar Ali Shah appellant has assailed' the judgment dated 8-2-2007 passed by learned Additional Sessions Judge, Rawalpindi, in case F.I.R. No,130 dated 1-3-2005 under section 302, P.P.C., Police Station Ganjmandi, Rawalpindi (Sessions Trial No,2 of 2006), whereby he was convicted under section 302(b), P.P.C. And was sentenced to death. He was further ordered to pay a sum of Rs,2,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default to undergo S.I. For six months. The learned trial Court has also submitted Murder Reference No,13 of 2007 under section 374, Cr.P.C. Seeking confirmation or otherwise of the capital punishment awarded to the appellant. As both these matters are inter- connected and inter-linked so are being decided through this single judgment.
2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PG) recorded on the statement (Exh.PA) of Qaiser Mehmood son of Talib Hussain, Caste Awan, aged about 29 years, resident of House No,487-ZA, Street No,16, Mohallah Mazharabad, Rawalpindi; is that the complainant's mother's father Muhammad Akbar, mother's sister Mst. Parveen, father Talib Hussain, brother Khalid Mehmood and sister Sobia wife of Mudassar Hussain Shah live with him at the above mentioned address. Mst. Sobia was married to Mudassar Hussain Shah son of Abid Hussain Shah, Caste Syed, resident of Tarnol and lived with the above mentioned persons and her daughters Taskeen ,aged about 7/8 years and Arbab aged about 2/3 years. On 1-3-2005 i.e, date of occurrence the complainant came to his house at about 6-00 p.m. And heard the noise arising from the room of Mst. Sobia. He went there and saw that Mst. Sobia was lying on the floor in an injured condition. The mother's sister of the complainant and Mudassar Hussain Shah with a Pistol in his hand were standing nearby. He asked his sister Sobia as to who had made fire on her. She pointed towards her husband i.e, appellant. The maternal aunt of the complainant Mst. Parveen told him that she was present in the other room when she heard report of fire arising from room of Sobia and when she was coming out of her room, Taskeen daughter of Mudassar Hussain Shah came to her, while running and said that her 'Papa' has shot her 'Mama'. He took Sobia in injured condition to the hospital. The motive was stated to be non-payment of maintenance by the appellant to Mst. Sobia and her shifting to the house of the complainant for this reason. It was also alleged that few days back Mudassar Hussain Shah came to take Mst. Taskeen with him but Sobia said that she would keep Taskeen with her and for this reason a quarrel had taken place 2/3 times also. It was alleged that for this reason Mudassar Hussain Shah has caused injury to Sobia with Pistol in order to commit her murder. Initially the case was registered under section 324, P.P.C. But after demise of Mst.. Sobia on 9-3-2005, section 302, P.P.C. Was added.
3. The appellant/accused was arrested on 10-3-2005. After investigation, he was sent up to face the trial. He was charged under section 302, P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution has examined 14 witnesses in support of its allegations. The medical evidence is adduced through Dr. Masooma Ishtiaq, WMO (P.W.3), Dr. Kokab Sultana, WMO (P.W.4), Dr.Naseerud- Din (P.W.8) and Dr. Muhammad Iqbal (P.W.9). Dr. Masooma Ishtiaq (P.W.3) stated that she examined Mst. Sobia on 1-3-2005 and made following observations:-- "G/C serious. She is in state of shock. Not able to give statement. Pulse very feeble 120/min. Pallor positive + BP not recordable."
' She found one lacerated wound .5 x .5 cm on left angle of mandible, bleeding profusely.
Blackening positive. She advised X-Ray of skull and neck. The probable duration of injury was within four hours. She has proved her report (Exh.PC). Dr. Kokab Sultana (P.W.4) had conducted the autopsy of the dead body of Mst. Sobia on 9-3-2005 at about 5-30 a.m. She found following, injuries on her person:--
(1) A stitched wound on left side of the neck and lower left jaw total 38 stitches, 9 cm in length.
(2) A stitched wound in the centre of the neck (5 stitches) 2-1/2 cm in length.
' She opined that injury No,1 caused damage to vital organs and was the caused of death. The time between injury and death was 7 to 8 days . While death and postmortem was within 2 to 4 hours.
She has proved the postmortem report (Exh.PD) and pictorial diagram (Exh.PD/1). Dr. Naseer-ud- Din (P.W.8) has proved his reports (Exhs.PH/1, PRI and Pakistani) on the applications (Exhs.PH, P3 and PK respectively), whereby he had opined that Mst. Sobia was not fit to make statement. \ ' Dr. Muhammad Iqbal (P.W.9) stated that he conducted the operation of Mst. Sobia on 1-3-2005.
She had one entry wound on her angle of mandible on theleft side. There was no exit wound. He has proved the report (Exh.PC/1).
5. The complainant appeared as P.W.10 and almost reiterated the contents of the F.I.R. He has also proved the memo regarding recovery of the blood-stained earth (Exh.PL) and memo of recovery (Exh.PM) regarding securing of empty of .30 bore Pistol P.B. He also stated that the accused while in Police custody made disclosure and led to the recovery of Pistol P.9, which was secured by the I.O.
Through memo of recovery (Exh.PN). Mst. Parveen Akhtar (P.W.12) stated that on 1-3-2005 at about 6-00 p.m. She was in her room, while Sobia was present in the Baithak. On the report of fire, she came out of her room and came across Taskeen Zohra daughter of the deceased, who was running towards her. She asked Taskeen as to what had happened and she informed that 'Papa' had shot 'Mama'. She reached in the room of Sobia, where she saw that she was lying on the floor while soaked in blood and the appellant was standing near her with Pistol in his hand. Qaiser (P.W.10) also arrived there. They asked Sobia as to who had shot her upon which she pointed towards her husband, the appellant. Qaiser Mehmood shifted Sobia to the hospital. It was stated that Mudassar Shah appellant, a Police employee was dismissed from service. He was not providing maintenance to Sobia, therefore, she left his house and shifted to the house of her parents. Due to non-provision of maintenance and desire of appellant to take Taskeen Zohra with him,, a quarrel had taken place between the two and for the grudge over it, he made fire at Sobia, who later on succumbed to the injuries. Taskeen Zohra aged about 7/8 years daughter of the deceased and appellant appeared as P.W.11. After examining her, the learned trial court declared that she is well-oriented, understands things properly and is capable to make statement. She stated on oath that 'Papa' had shot 'Mama' with Pistol and that her 'Mama' was quarrelling with 'Papa'. She told this fact to Parveen, 'Nani'.
6. Muhammad Ashraf, S.-I. (P.W.2) has stated that he recorded the statement (Exh.PA) of Qaiser Mehmood in the Emergency Ward of DHQs Hospital, Rawalpindi on 1-3-2005. He has also proved the injury statement (Exh.PB). Muhammad Aqeel 251/C (P.W.6) has stated that the memo of recovery (Exh.PF) regarding securing of last worn clothes of the deceased viz Shirt P.3, Shalwar P.4, Dopatha P.5, Banyan P.6 and Sweeter P.7 was signed by him. Khurram Shahzad (P.W.5) has proved the site plan (Exhs.PE and PE/1). Muhammad Bashir, S.-I. (P.W.7) has proved the F.I.R. (Exh.PG).
Muhammad Akbar (P.W.13) has proved the memo of recovery (Exh.P1) regarding securing of bloodstained earth. He further added that the Police secured an empty of .30 bore Pistol and he has signed the memo of recovery.
7. The investigation of this, case was conducted by Gulistan Khan, Inspector/S.H.O. (P.W.14), who stated that on receipt of information about the occurrence, he went to the hospital where Muhammad Ashraf, S.-I. Produced before him, the injury statement and complaint (Exh.PA). He has proved the site plan (Exh.PP), memo of recovery (Exh.PL) regarding securing of blood-stained earth, memo of recovery (Exh.PM) regarding securing of. Empty P.8, memo of recovery (Exh.PF) regarding securing of last worn clothes of the deceased and notes in red ink on the site plan (Exhs.PE and PE/1). He has also proved the applications (Exhs.PH, PJ and Pakistan(sic)) whereby he sought permission of the doctor to record statement of Sobia. It is stated that on 10-3-2005 he arrested the accused, who made a disclosure on 17-3-2005 and led to the recovery of 'Pistol .30 bore P.9, which was secured through memo of recovery (Exh.PN).
8. The appellant/accused in his statement under section 342 Cr.P.C. Denied the allegations of the prosecution and truthfulness of the witnesses produced by it. He contended that false recoveries were planted against him. According to him, the complainant and Mst. Parveen have grudge against him as they were annoyed over love marriage between him and the deceased. He further added that there was a serious dispute/quarrel between the complainant and Sobia. However, he opted neither to produce the defence evidence nor to appear as witness under section 340(2), Cr.P.C.
9. After conclusion of the trial, the learned trial court vide impugned judgment proceeded on to convict and sentence the appellant as above.
10. The learned counsel for the appellant at the outset has contended that the motive is not proved and presence of P.Ws.10 and 12 at the place of occurrence is not established so what had happened immediately before the occurrence is not known to anyone. It is urged that the F.I.R. Was lodged with inordinate delay and report of the FS,L, shows that false recovery has been planted against' the appellant. It is stated that the appellant himself had removed Mst. Sobia in an injured condition to the hospital so the capital punishment was not warranted. It is urged that the learned trial court has ignored this strong mitigating circumstances. In support of these arguments, reliance is placed on Hasnain Shah v. The State (1999 SCMR 1937), Abbas Hussain and another v.
The State and another (1992 SCMR 320), Ghulam Sikandar and another v. Mamaraz Khan and others. (PLD 1985 SC 11), Munawar Hussain v. 'The State (1983 SCMR 1165), Sajid and another v. The State and another (1998 PCr.L.J 114), Muhammad Salim v. Muhammad Aslam and others (1983 SCMR 53) and judgment dated 28-10-2010 in Criminal Appeal No,166 of 2008.
11. On the other hand the learned counsel for the complainant has contended that there is no mitigating circumstance. It is urged that it is a cool-blooded murder committed due to matrimonial dispute over demand for payment of maintenance and the rift over an effort to take minor daughter, namely Taskeen from the house of the deceased. It is urged that the deceased while in an injured condition pointed her finger towards the appellant when asked as to who had made fire by her. It is contended that Taskeen Zohra minor daughter of the appellant has categorically stated that he had made tire on the deceased. In support of these arguments, reliance is placed on Abdul Rashid alias Sheda Mota and another v. The State (2003 SCMR 799), Ellahi Bakhsh v. Rab Nawaz and another (2002 SCMR 1842), Mandoos Khan v. The State (2003 SCMR 884), Abdur Rauf v. The State and another (2003 SCMR 522), Raja Sarfraz Azam Khan and others v.
The State and another (2005 YLR 584), Noor Muhammad v. The State and another (2005 SCMR 1958), Muhammad Tariq and others v. The State (2000 PCr.LJ 47), Mst. Shah Azizan and another v.
The. State (1997 PCr.LJ 1563) and Muhammad Akram v. The State (2003 SCMR 855).
12. Taskeen Zohra (P.W.11) is minor daughter of the appellant and the deceased. She is 7/8 years old.
The' earned trial Court put certain questions in order to ascertain if she understands the same and gives proper answers. The questions put and answers given by her reveal that she not only correctly understood the questions but also gave rational answers to the same. No doubt she is in her tender age but the questions put and the answers given by her prove that she was sensible enough to testify and her tender age was not a hurdle in this regard. She is a competent witness.
Under Article 3 of the Qanun-e-Shahadat Order, 1984 a child in the age of '8/9 years, if gives statement which indicates that the witness understands the questions and gives answers intelligently and rationally then the testimony cannot be ignored merely due to tender B age. In this respect, reliance is placed on Nazir Hussain v. The State (PLD 1984 Lahore 509), Muhammad Din and 2 others v. The State (1989 PCr.LJ 238) and Muhammad Ilyas v. Kabir Hussain and another (2003 YLR 806). She has categorically stated that her 'Papa' had fired at her 'Mama'. Mst. Parveen Akhtar (P.W.12) is also a natural witness. The occurrence took place in the 'Baithak' of the house, where she resides. The contention that she was inimical towards the appellant due to love marriage between him and the deceased and, therefore, deposed falsely has no weight in the eyes of law. She has categorically stated that after hearing report of fire, she came out of her room, met Mst. Taskeen Zohra, who told her that the appellant had shot the deceased, she rushed to the room and saw the deceased then injured, lying on the ground while soaked in blood and the appellant was standing nearby with Pistol in his hand. She stated that the deceased on a query pointed towards him. Qaiser Mehmood (P.W.10) has also stated similar facts. The strong I ocular account is furnished by Taskeen Zohra, is duly corroborated by P.Ws. 10 and 12, who had seen the appellant standing while armed with Pistol near the deceased, then injured and the pointation of the deceased in an injured condition towards him as the person who had made fire on her proved that the appellant was the person,'who had made fire on her and caused the injury, which ultimately resulted into her demise. It is true that the report of FSL, is in the negative as pointed out by learned counsel for the appellant but it is merely a corroborative piece of evidence and would not by any stretch of imagination be sufficient to D ignore the strong ocular account furnished by Taskeen Zohra, pointation of the deceased while in injured condition to the appellant, who was seen standing near the deceased then in an injured condition by P.Ws.10 and 12 immediately after the occurrence.
13. There is another important aspect of the matter. An application (Criminal Miscellaneous No,512- M/10) was submitted for permission to compound the offence. The father and brother of the deceased had forgiven him in the name of Allah Almighty but she had left behind her two minor daughters also. The appellant did not deposit their share in Diyat. On 2-11-2010 a request for adjournment was made by learned counsel for the appellant in order to enable his father to deposit the share of the minors in Diyat after selling the plot. The amount was not deposited rather some plots were statedly transferred in the name of the minors but the complainant did not accept this offer with the contention that these plots were disputed and the minors would not get any benefit from the same. On this he was directed to deposit an amount of Rs,7,35,120 in the names of the minors but the same was not deposited so it is obvious that the offence is not validly compounded and Criminal Miscellaneous No,512-M/10 is without merits and the same is dismissed.
14. The all important witness Taskeen Zohra (P.W.11).Has stated that her mother and father used to live in the 'Baithak' of the house prior to occurrence. The complainant has also admitted that they along with Sobia deceased and Mudassar Shah appellant used to live in a rented house and whereafter they shifted to the house of Mst. Parveen. In the second thought it is stated that except Mudassar they had shifted there.. The statement of Mst. Taskeen Zohra inspires confidence as discussed above so her statement would be given same credence for all intents and purposes. She has categorically stated that parents used to live in the 'Baithak'. P.Ws.10 and 12 had not stated the date and time of alleged attempt of the appellant to take minor Taskeen Zohra with him, which resulted into a quarrel so the contention that he wanted to take Taskeen Zohra does not appear to be correct. Taskeen Zohra has not stated that her parents used to quarrel or any attempt was made to take her rather stated that 'Mama' was quarrelling with 'Papa'. The motive, therefore, is not proved. What happened immediately before the occurrence is not unveiled. P.W.11 has stated that her father had shifted her mother to the hospital by carrying her on his shoulders. This shows that after the occurrence he did repent and tried to save her life. It is also obvious that the occurrence took place in heat of passions for the reasons, which are not explicitly brought on the record. These are strong mitigating circumstances. We are of the considered view that the sentence awarded to the appellant is on the higher side and harsh although he is responsible for causing Qatal-e-Amd Of the deceased. Under the circumstances and for the reasons elaborated above, to our considered view the imprisonment for life would meet the ends of justice.
15. For the reasons supra, the appeal is accepted to the extent of sentence only. While maintaining the conviction under section 302(b), P.P.C., we convert the death penalty awarded to the appellant to the sentence for life imprisonment. He would be entitled to benefit under section 382-B, Cr.P.C.
However, as ordered by the learned trial Court, he will pay a sum of Rs,2,00,000 as compensation to the legal heirs of the deceased under section 544-A, C.P.C. This amount would be recoverable as arrears of land revenue if not paid by the appellant. In case of default in payment or non-recovery as arrears of land revenue, he will undergo S.I. For six months. Murder Reference No,13 of 2007 is answered in the negative.
Sentence reduced.