' MALIK SHAHZAD AHMAD KHAN, J.---Muhammad Boota, convict along with his co-accused Muhammad Sharif was tried by the learned Additional Sessions Judge, Ferozewala, District Sheikhupura, in case F.I.R. No. 140, dated 2-3-2005, registered under sections 302, 34, at Police Station, Factory Area, for the murder of Mst. Abida Parveen (deceased). The learned Trial Court vide judgment dated 29-11-2006 acquitted co-accused Muhammad Sharif of the charge framed against him, whereas the appellant was convicted under section 302(b), P.P.C. As Ta'zir and he was sentenced to death. He was further, directed to pay Rs.1,00,000 as compensation as envisaged under section 544-A of Cr.P.C. To the legal heirs of the deceased, and in default thereof, to further undergo 6 months' S.I.
2. The convict has not filed any appeal against his conviction and sentence, whereas, the learned trial Court has sent Murder Reference No. 778 of 2006 under section 374, Cr.P.C., to this Court for confirmation or otherwise of death sentence of the convict.
3. Succinctly stated facts as propounded. In the F.I.R. (Exh. PB/1) which was recorded on the basis of complaint (Exh. PB) made by the complainant namely, Nawab Ali' (P.W.4), are that on the fateful day of occurrence, he (the complainant) along with Manzoor Hussain (P.W.5) and Sadiq. Ali son of Sardar Muhammad was present at his house. In the meantime, the grand-daughter of the complainant namely, Mst. Gul Bano carob in his house and informed .That her uncle Muhammad Sharif had put her mother on the bed by holding her from her hands and her father Muhammad Boota (the convict) by putting the scarf around her neck was strangulating her. Upon this, the complainant and the P.Ws. Rushed towards the house of Muhammad Boota, and when they were about two acres away from the house of occurrence, they saw Muhammad Boota (convict) and co-accused Muhammad Sharif, fleeing away from the spot. The complainant along with P.Ws.
Entered the house of occurrence and witnessed her daughter, taking her last breath. They noticed a scarf around her neck and blood was oozing from her nostrils. There was a cut on her lower lip and she breathed her last, at the spot. The motive for the occurrence was alleged that Mst. Abida Parveen (deceased) was married with the convict, who used to beat her and kicked her out from his house and she was returned back through the intervention of 'Punchayat'.
4. After completion of ,investigation, the challan was submitted. The convict and his co-accused Muhammad Sharif were charge-sheeted, to which, they pleaded not guilty and claimed trial.
' The prosecution in order to prove ijs case examined as many as 9 P.Ws. And also tendered documentary evidence. The ocular account of occurrence was furnished by Mst. Gul Bano P.W.7 whereas circumstantial evidence was rendered by. Nawab Ali P.W.4 and Manzoor Hussain P.W.5.
(P.W.9) Lady Doctor Nuzhat Aziz, on 2-3-2005, at 6-15 p.m., conducted the _ post-mortem examination on the dead-body of Mst. Abida Parveen (deceased) vide Post-mortem Report Exh.PK and pictorial diagram Exh.PK/2 and found the following injury on her person:---
(1) 22 x 1-1/2 contused swelling on front of neck, left and right side of neck. Pale looking face.
' In her opinion, the above-mentioned injury was ante-mortem in nature. The cause of death in this case was by ligature around the neck. Probable time that elapsed between injury and death was not ascertained and between death and postmortem was 12 hours. (P.W.8) Umar Saeed, Sub- Inspector is the Investigating Officer of this case, who completed the investigation and submitted the challan.
' P.W.1 Abdul Aziz C-712, P.W.2 Muhammad Nawaz, S.1., P.W.3 Rabnawaz Shah, Draftsman, P.W.6 Muhammad Rafique, are the formal witnesses.
5. The statement of the convict was recorded under section 342 of Cr.P,C. He refuted the allegations levelled against him and professed his innocence. In answer to the question, why this case against you and why the P. Ws. Have deposed against you, the convict replied as under:--- "I have been implicated in this case falsely due to mala fide and I have nothing to do with this occurrence.. I was not present at the time and place of occurrence. My wife deceased Abida Parveen committed suicide due to harsh attitude of her parents. I am innocent. I am poor man.
Police challaned me wrongly with the connivance of complainant party. P. Ws. Are related to the deceased so they stated falsely against me".
' Neither the convict produced any defence evidence nor opted to make statement on oath as envisaged under section 340(2) of Cr.P.C. In disproof of the allegations levelled against him.
' After conclusion of the trial, the learned Trial Court, convicted Muhammad Boota (convict), as detailed above, whereas, co-accused Muhammad Sahrif was acquitted of the charge framed against him.
6. The learned Defence Counsel for the convict contends that there is no evidence available on record, which could connect the convict with the commission of the crime; that the complainant (P.W.4) is not an eye-witness of the incidence; that the statements of the complainant and the other witness Manzoor Hussain (P.W.5) is only to the extent of information provided by Gull Bano (P.W.7) to the effect that her mother is being strangulated; that Manzoor Hussain (P.W.5) had allegedly see% the accused running from the distance of 2 acres; that only material statement is of Gull Bano, who appeared before the Trial Court as P.W.7 and she made a lot of dishonest improvements in her statement and moreover she is so young; that Gull Bano (P.W.7) was a minor girl at the time of occurrence and her statement is not worthy of consideration; that admittedly P.W.7 is under the influence of her maternal grand-father; that the statement of Mst. Gull Bano (P.W.7) under section 161 of Cr.P.C. Was recorded by the Investigating Officer on 26-7-2005, whereas, the occurrence took place on 2-3-2005, therefore, the delay in recording her statement has made her statement doubtful; that the lethmed Trial Court has fallen into error by not putting the questions to the witness in writing, form; that the complainant (P.W.4) while lodging the F.I.R.
Stated that her daughter Mst. Abida Parveen (deceased) was married with the convict, who used to beat her and kicked her out from his house and she was returned back through the intervention of 'Punchayat', but in the Court he did not state so; that the motive alleged in the F.I.R. Has not been proved; that no recovery has been effected from 'the possession of the petitioner to corroborate prosecution case against the convict; that in fact Mst. Abida .Parveen (deceased) had committed suicide, therefore, Murder Reference be answered in the negative and the convict be acquitted from the charge.
7. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant has controverted the contentions of the learned Defence Counsel for the convict on the grounds that the witnesses have absolutely no malice to falsely depose against the convict and the facts narrated by the complainant (P.W.4) are true, because had there been any enmity with the convict, he could have claimed himself to be an eyewitness; that Gull Bano (P.W.7) is a natural witness as she is resident of the same house, where this incident took place; that P.W.7 is real daughter of the convict, as such, she cannot be expected to make incorrect statement against her father; that the questions put by the defence side were not relevant to this case and, as such, she could not be expected to answer the same; that the statement of Gull Bano P.W.7 is fully supported by the medical evidence; that "muffler" (P.4) with which the deceased was strangulated was taken into possession vide recovery memo. (Exh.PA) and that convict acted in a brutal manner, therefore, he deserves no leniency, and thus, Murder Reference may be answered in the affirmative.
8. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record.
9. The occurrence in this case took place on 2-3-2005, at 11-00 a.m. The F.I.R. (Exh.PB/1) was lodged on the same day at 1-5 p.m. The Police Station Factory Area was at the distance of 1-km from the place of occurrence, so there was no delay in reporting the matter to the police. It was a prompt F.I.R. Which rules out the chances of concoction and deliberation. The complainant Nawab Ali (P.W.4) is real father of Mst. Abida Parveen (deceased). The prosecution in order to prove the ocular account of the occurrence has examined Mst. Gull Bano (P.W.7). In this case, she is the star witness of the prosecution, who is real daughter of the convict Muhammad Boota, as well as, of Mst. Abida Parveen (deceased). According to her statement, on the day of occurrence, at about 10-30 a.m., her father Muhammad Boota (convict) and her paternal uncle Muhammad Sharif (acquitted co- accused) went to the room of her mother Mst. Abida Parveen (deceased). Co-accused Muhammad Sharif caught hold of Mst. Abida Parveen (deceased) by her hands, pushed her on the bed, whereas, her father Muhammad Boota (convict) put a scarf around her neck and strangulated her. As already observed Gull Bano (P.W.7) is real daughter of the convict Muhammad Boota and resident of the house where the occurrence took place, therefore, her presence at the spot is quite natural. She was cross-examined at length but her evidence could not be shattered during the process of cross-examination. Her evidence is further corroborated by the circumstantial evidence put forth by Nawab Ali (P.W.4) and Manzoor Hussain (P.W.5) who had seen the convict coming out of the house of occurrence immediately after the incident. The said witnesses were also cross-examined at length but the learned defence counsel could not bring on record any material favourable to the convict. The evidence of the above-mentioned prosecution witnesses is straightforward and confidence inspiring.
10. The prosecution has also produced Lady Doctor Nuzhat Aziz (P.W.9), who A conducted the post- mortem examination on the dead-body of Mst. Abida Parveen (deceased) through post-mortem report (Exh. I,K) and pictorial diagram (Exh.PK/2). The post-mortem of Mst. Abida Parveen (deceased) was conducted on 2-3-2005, at 6-15 p.m., and the following injury was found on her person:--
(1) 22 x 1-1/2 contused swelling on front of neck, left and right side of neck. Pale looking face.
' According to the statement of said witness, cause of death was by ligature around the neck.
Probable time that elapsed between injury and death was not ascertainable and between death and post-mortem was within 12 hours. The learned defence counsel did not opt to cross-examine Lady Doctor Nuzhat Aziz (P.W.9).
11. The manner in which Mst. Abida Parveen (deceased) was done to death and the time of her death as given by Gull Bano (P.W.7) was supported by the medical evidence furnished by Lady Doctor Nuzhat Aziz (P.W.9). The case of the prosecution was further corroborated by the circumstantial evidence rendered by the complainant Nawab Ali (P.W.4) and Manzoor Hussain (P.W.5). The complainant Nawab Ali (P.W.4) is father of Mst. Abida Parveen (deceased) and maternal grand-father of Gull Bano (P.W.7). He was present at his house, when he was informed about the occurrence by Gull Bano (P.W.7). He along with Manzoor Hussain (P.W.5) and Sadiq (given up P.W.) rushed towards the house of occurrence. They saw the convict Muhammad Boota and co-accused Muhammad Shard coming out of the house of occurrence and escaping from the spot. When they entered the house of the convict Muhammad Boota, they saw that a scarf was put around the neck of Mst. Abida Parveen (deceased), and she breathed her last, within their view.
Blood was oozing from her nose. The complainant Nawab Ali (P.W.4) and Manzoor Hussain (P.W.5) were also cross-examined at length, but the learned defence counsel could not bring on record any material favourable to the accused.
12. Although the prosecution witnesses namely, Nawab Ali (P.W.4) and Gull Bano (P.W.7) are relatives of Mst. Abida Parveen (deceased), but at the same time, they are also closely related to the convict Muhammad Boota, as well. As discussed C earlier, Gull Bano (P.W.7) is real daughter of the convict Muhammad Boota, and it is not possible that she will falsely implicate her real father under the influence of her maternal grandfather (P.W.4). There is no reason for the complainant Nawab Ali (P.W.4) to falsely implicate the convict in this case, therefore, their evidence cannot be discarded on the sole ground of their relationship with Mst. Abida Parveen (deceased).
13. The delay in recording the statement of Gull Bano (P.W.7) under section 161 of Cr.P.C. By the Investigating Officer is not significant in this case. The name of said witness was mentioned in the F.I.R. (Exh.PB/1), which was promptly lodged on the same day within 2 hours 5 minutes, from the occurrence. Gull Bano (P.W.7) is real daughter of Mst. Abida Parveen (deceased) and is resident of the house of occurrence. Her presence at the spot at the time of occurrence is quite natural, therefore, mere delay in recording her statement under section 161 of Cr.P:C. Is of no avail to the convict Muhammad Boota.
14. The contention of the learned counsel for the convict that Gull Bano (P.W.7) was minor at the time of occurrence, therefore, her statement may be brushed aside of consideration, is misconceived. The age of Gull Bano :(P.W.7) has been recorded as ten years at the time of recording of her statement by the learned Trial Court. Her statement was recorded on 23-11-2006, meaning thereby, she was of the age of more than seven years and three months at the time of occurrence. The learned Trial Court also put certain questions to Gull Bano (P.W.7), and after being satisfied that she was not prevented from understanding the questions or from giving rational answers due to her tender age, recorded her statement. She was cross-examined at length and it is evident from her cross-examination that she has given rational answers to the questions of the learned defence counsel. Her evidence is straightaway, confidence inspiring and trustworthy, therefore, the same can be safely relied upon in order to award punishment to the convict Muhammad Boota.
' No age limit of a witness has been prescribed under Article 3 of Qanun-eShahadat, 1984. The statement of a child witness is also admissible in evidence, unless the Court considers that a witness is prevented from understanding the questions put to him or from giving rational answers.
The above-mentioned Article reads as follows:--- "Art.
3. Who may testify: All 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 tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind".
' It is evident from the perusal of above-mentioned provision of law that any particular age of a witness was not mentioned in it. It is for the Trial Court to determine as to whether or not a witness is prevented from understanding questions put to him because of his tender age.
' A child witness is quite competent to give evidence in Court provided he or she understands the questions put to him and gives rational answers to the said questions. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Razia alias JIA v. The State" (2009 SCM R 1428) maintained the conviction of the accused on the basis of statements of the child witnesses. While discussing the evidence of child witnesses, it was observed in the said judgment at page 1433, in the following terms:--- "6. The careful perusal of the material on record leads us to the same conclusion as was reached by the learned High Court. The testimony of Naveed P. W.
3. And Naheed Akhtar P. W. 4 who made such confidence inspiring statements as to the events and occurrence that took place in the house before their eyes, cannot be brushed aside. As mentioned above, the Trial Court had taken all possible and due steps to judge the level of their intelligence and maturity before proceeding to record their statements. Naveed was 12 years of age whereas Naheed Akhtar was of the age of 10 years. 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 witness, close and careful scrutiny is required which in the instant case was duly adopted by the Trial Court and a note to the effect was also recorded by the Trial Court about his satisfaction. The two witnesses indeed had given a consisting account of the occurrence and the participants who were present at that time taking part in doing away with their father. This was not all, their ocular testimony derived strength and corroboration from the other evidence including the post-mortem report. The cause of death tallied with their testimony.
It cannot be lost sight, that these two eye-witnesses were related to the deceased (their father) and the appellant (their mother). They had no reason whatsoever for implicating their mother falsely. A very lengthy cross-examination was conducted which they faced but on all material aspects they remained consistent and undeterred. The learned Judges of the Division Bench of the High Court, were well justified in finding no fault with their testimony and reliance of the Trial Court upon their evidence. Some minor discrepancies or even contradictions having no material bearing do not result in vitiating the findings recorded by the two Courts on proper appreciation of the evidence. The contentions of the learned counsel thus, lose its significance."
' Similarly in the cases of "Amjad Javed v. The State" (2007 SCMR 1247) "Muhammad Jamal and others v. The ' State" (1997 SCM R 1595) the judgments of conviction and sentence of the accused which were recorded on the basis of child witnesses of the age of 5-1/2 and 6 years respectively, were upheld by the Hon'ble Supreme Court of Pakistan.
' The learned counsel for the convict has argued that the learned Trial Court did not check the intellect of the child witness Gull Bano (P.W.7) by putting questions and taking answers in written form. The said objection of the learned counsel is misconceived. There is no legal compulsion to check the intellect of a child witness in a written form. The only requirement is the satisfaction of the Court. In this case the Judge of the learned Trial Court after putting certain questions, was satisfied that Mst. Gull Bano P.W.7 was not prevented from understanding the questions or giving rational answers to those questions. A note to this effect was also given by the learned Trial Court before recording her statement. This Court in the case of Abdul Majeed v. The State (2002 PCr.LJ 41), while discussing the above proposition of law at page-49 came to the following conclusion:-- "The Honourable Judges of Azad Jammu and Kashmir Supreme Court in Qadeer Hussain v. State 1995 PCr.LJ 803 have 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".
' A similar view was taken in the case Qadeer Hussain v. The State through Advocate General, Azad Jammu and Kashmir Government, Muzaffarabad (1995 PCr.LJ 803).
' Therefore, the contention of the learned defence counsel for the convict that the Trial Court has erred in law by not taking into writing the questions put to the witness, having no force is repelled.
15. The learned counsel for the convict has contended that Mst. Abida Parveen (deceased) had committed suicide and the convict was falsely implicated in this case. The said argument of the learned counsel for the convict is not convincing. Lady Doctor Nuzhat Aziz (P.W.9) appeared in the Court. The learned defence counsel did not opt to cross-examine the said witness. Even, no suggestion was given to the said witness that the death of Mst. Abida Parveen (deceased) was result of the suicide. The convict Muhammad Boota had not taken the plea of suicide of Mst. Abida Parveen (deceased) during the investigation of this case before the Investigating Officer. A specific question was also put to the Investigating Officer Umar Saeed (P.W.8), who denied that the first version of the convict Muhammad Boota was to the effect that Mst. Abida Parveen had committed suicide, which shows that the plea of suicide was taken by the convict Muhammad Boota as an after-thought during the trial of this case. No evidence was brought on record by the convict Muhammad Boota to establish that there was any sign of suicide on the dead-body of Mst. Abida Parveen (deceased), or at the place of occurrence, therefore, we see no force in the above- mentioned argument of the learned defence counsel.
16. Insofar as the evidence of motive is concerned, it was alleged in the F.I.R. (Exh.PB/1) that the convict Muhammad Boota used to beat Mst. Abida Parveen (deceased) and kicked her out from his house, but the complainant Nawab Ali (P.W.4) used to send his daughter (Mst. Abida Parveen) to the house of the convict as a result of 'Punchayat'. The motive mentioned in the F.I.R. (Exh.PB/1) was not stated by the complainant Nawab All (P.W.4), Manzoor Hussain (P.W.5) and Gull Bano (P.W.7) while appearing in the Court. They did not utter even a single word regarding the motive part of the occurrence, therefore, without producing any evidence by the prosecution in this regard, we cannot believe the motive part of the prosecution case.
17. Nothing was recovered from the possession of the convict during his physical remand.
18. However, even if evidence of motive is excluded from consideration, there is sufficient incriminating evidence available on record against the convict Muhammad Boota in the shape of ocular account rendered by Gull Bano (P.W.7) and circumstantial evidence given by Nawab Ali (P.W.4) and Manzoor Hussain (P.W.5). The ocular account and circumstantial evidence of the prosecution witnesses was fully supported by the medical evidence of Lady Doctor Nuzhat Aziz (P.W.9), as well as, by post-mortem report (Exh.PK) and pictorial diagram (Exh.PK/2) of the deceased. The time of occurrence and manner in which the occurrence had taken place, the kind of weapon of offence used, seat of injury as given by Gull Bano (P.W.7) all the material points of ocular account have tallied with the above-mentioned medical evidence, therefore, we hold that the prosecution has proved its case against the convict beyond the shadow of any doubt.
19. Now coming to the quantum of sentence, we may observe that the prosecution has alleged a specific motive in the F.I.R. (Exh.PB/1), but the same was not proved during the trial. The prosecution witnesses did not utter a single word regarding the motive part of the prosecution. The prosecution also implicated in this case another accused namely, Muhammad Sharif son of Shah Muhammad, with the allegation that he had put Mst. Abida Parveen (deceased) on the bed by holding her from her hands and thereafter, the convict Muhammad Boota by putting the scarf around her neck strangulated her. The said co-accused Muhammad Sharif has been acquitted by the learned Trial Court by extending him the benefit of doubt. His acquittal has not been challenged either by the complainant or by the State any further, therefore, the same has attained finality. In view of the above, it is not determinable in this case as to how the occurrence had started and what had actually happened between Mst. Abida Parveen (deceased) and the convict Muhammad Boota, immediately before the occurrence, which had resulted into the unfortunate death of Mst. Abida Parveen, therefore, the sentence of death awarded to the convict is quite harsh. It has been held in a number of judgments of the Hon'ble Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive beyond any shadow of doubt and non-proof of motive may be considered a mitigating circumstance in favour of an accused. While treating it a case of mitigation, we have fortified our view by a judgment of the Hon'ble Supreme Court of Pakis reported in the case of Ahmad Nawaz another v.
The State (2011 SCM R 593 wherein, at page 604, the Hon'ble ape> Court of the country, has been pleased to lay emphasis as under:-- "10. The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikharul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. Attract only in the cases of Qatl-e-Amd liable to Qisas under section 302(a), P.P.C. And not in the cases in which sentence for Qatl-e-Amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C.
Respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Murtaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)". The Court while maintaining the conviction under section 302(b), P. P. C. Awarded him sentence of life imprisonment under the same provision and also granted him the benefit of section 382-B, Cr. P. C. In Muhammad Riaz and another v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-e-Amd it was observed that "No doubt, normal penalty for an act of commission of Qatl-e-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case".
' In Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that:- "In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course". (underlining, italic and bold supplied).
20. Keeping in view the above-mentioned facts and the principles of safe administration of justice, the conviction of Muhammad Boota (convict) under section 302(b) of P.P.C. Awarded by the learned Trial Court is maintained, but his sentence is altered from death to imprisonment for life.
The compensation awarded by the learned Trial Court or sentence in default thereof is, hereby, maintained and upheld. The benefit of section 382-B of Cr.P.C. Is also given to the convict.
21. Consequently, with the above-mentioned modification in the sentence, Murder Reference No. 778 of 2006 is answered in the negative and death sentence of the convict Muhammad Boota is not confirmed.
Sentence reduced.