' Through this appeal, the appellant has called in question the validity of the judgment of the District Criminal Court, Kotli, dated December 7, 1994, whereby the death sentence was awarded to the appellant, while diverting towards section 3 of the Islami (Tazeerati) Qawaneen Nafaz Act, 1974.
A reference for the confirmation of the death sentence has also been made by the District Criminal Court, Kotli. As both appeal and reference pertain to one and the same case, thus both shall be disposed of through this single judgment.
2. The prosecution case as unfolded in the F.I.R., is that on August 7, 1992, the complainant P.W.1, .Aftab Ahmed alongwith Nadeem Aslam (now deceased) went with the Barrat of Quammar son of Farzand to Village Parrati. After taking the meal approximately at 3 p.m. Nadeem and Bashrat went to Nallah Bahan situated in Sari for taking bath. While the complainant alongwith his some other friends went to the garden of Muhammad Nazeer for photography. Meanwhile, Bashrat son of Muhammad Younus came running from side of Nallah Bahan to garden and told the complainant that, Muhammad Iftikhar son of Anayatullah inflicted grievous injuries to Muhammad Nadeem with the knife. The complainant reached on the place of occurrence. Muhammad Arif son of Abdul Lateef also reached there and saw Nadeem lying naked on the bank of Nallah. He found the injuries on his chest and left thigh. The blood was oozing. He provided Shalwar which was lying near the injured Nadeem for wearing. On asking Nadeem told, that he was taking bath, the accused Iftikhar reached there and compelled him for unnatural offence. He jibbed to bow before his unnatural lust and threatened him, that he will tell it to his parents. On which the accused infuriated and inflicted an injury with the knife on the chest of Nadeem. He fell down, then the accused caused another injury on his thigh and ran away from the place of occurrence alongwith the knife. The complainant moved an application Exh.PA. Before the S.H.O. Police Station, Khuiratta. P.W.17, Sardar Galib Hussain, A.S.I. Prepared the injuries sheet Exh.P.H. And referred the injured person to Medical Officer, Khuiratta. The Medical Officer, Khuiratta examined the injured person and prepared the medical report. He found the following injuries on the person of Nadeem Aslam:-
(1) Incised penetrating wound on the lt. Side of the chest 1/2" x 1/4".
(2) Incised penetrating wound on the It. Leg. 1/2" x 1" x 1/4".
' The doctor considered the condition of injured person serious and referred him to District Headquarters Hospital, Kotli. In the way the injured Nadeem succumbed to the injuries.
Subsequently, the dead body was sent to Medical Officer, Khuiratta for post-mortem. Dr. Ejaz Butt, C.M.O., Khuiratta conducted the post-mortem and found the same injuries on the dead body. Post- mortem report Exh.P.L. Contains that the deceased died due to injury in the heart, blood has fused outside and has collected in the chest and patient died due to the hypovalium shock.
3. Syed Arif Hussain Kazmi, S.H.O., Police Station, Khuiratta recovered the blood-stained Shalwar of the deceased in the presence of the P.W.8, Lal Hussain, Karamat Hussain P.W.9. He prepared the recovery memo. Exh.P.D. S.H.O. Arif Hussain Shah also recovered the blood-stained shirt of the complainant, which sustained the blood, when the complainant picked up the injured person from the place of occurrence in the presence of P.W.10, Khadim Hussain, P.W.11, Adalat Hussain. P.W.19, Arif Hussain Shah, S.H.O. Recovered the alleged weapon of offence (knife) at the instance of the accused in the presence of P.W.6, Nazeer, Javeed Iqbal and prepared the recovery memo. Exh.D.C.
He also prepared the map of the place, from where the recovery was made Exh.P.M. Patwari Muhammad Zaman P.W.12, prepared the site plan Exh.P.A. And recorded the explanation of the map Exh.P.E./1. The S.H.O. And Sardar Galib Hussain, A.S.I. Recorded the statements of witnesses under section 161 of the Cr.P.C. After completing the investigation, the police forwarded the accused before the District Criminal Court, Kotli, for facing the trial under section 5 of the Islami (Tazeerati)
Qawaneen Nafaz Act, 1974. The District Criminal Court, Kotli, after concluding the trial, found the accused guilty and awarded him the death sentence while diverting towards the section 3 of the Islami (Tazirati) Qawaneen Nafaz Act, 1974. Feeling aggrieved from the judgment of the District Criminal Court, Kotli, the instant appeal has been filed by the appellant.
4. The learned counsel for the appellant, Mallick Muhammad Yousuf Khan argued, that in the instant case, the judgment of the lower Court is illegal and liable to be set aside. The, evidence of the prosecution is agglomeration of contradictions. The prosecution has failed to bring home the guilt against the accused appellant. The lower Court has awarded the sentence of death to the appellant on the basis of desultory, doubtful and contradictory evidence. While emphasising on this point, he referred towards the statement of Aftab Ahmed complainant and argued, that in the very outset of his statement, he stated that Basharat came to him in the garden at 1 p.m. And told that Iftikhar injured Nadeem with the knife. While according to the F.I.R. The occurrence took place at 3 p.m. He submitted that according to the statement of complainant, the occurrence took place at 1-30 p.m. The F.I.R. Was lodged at 4-40 p.m. In this way, there is delay of more than three hours in the F.I.R., which makes the case of the prosecution doubtful. It was further maintained by the learned counsel that all the witnesses of the prosecution are relatives of deceased and belong to the same tribe. They were interested witnesses. No reliance can be placed on such like interested witnesses. The lower Court has wrongly relied on the evidence of interested witnesses. It was further contended by the learned counsel that Aftab P.W.1, complainant in his statement deposed that Barrat went on foot, while Bashrat stated that Barrat went on the bus and Aftab was driving the bus.
He submitted that this clearly indicate that neither Bashrat, nor Aftab went with Barrat and witnessed the occurrence. It was further argued, that Aftab in his statement stated that after the occurrence the bus was sent for from Sari Bazar, while Arif witness in his statement under section 161 of the Cr.P.C. Stated that the bus was standing near the place of occurrence. It was also contended by the learned counsel that Bashrat in his statement stated, that he saw Ghulam Qadar while coming towards the place of occurrence, but he did not utter a single word about the Zahoor.
According to the version of the prosecution, both Zahoor and Ghulam Qadar came on the place of occurrence together and saw the occurrence. It was also contended that in the site plan no point was shown, from where the Bashrat witnessed the occurrence. This clearly indicates that Bashrat did not witness the occurrence. It was also maintained by the learned counsel that the blood- stained clay, stones or blood was not recovered from the place of the occurrence, which clearly lends support to the version, that the occurrence did not take place as alleged by the prosecution.
Further it was argued, that the witnesses of the recovery do not belong to the locality, while witnesses from the locality were shown present at the time of recovery. He further submitted that whole the evidence of prosecution is replete with the contradictions, which cast a serious doubt on the manner of occurrence as alleged 'by the prosecution. Alternatively, it was contended by the learned counsel for the appellant, that the age of the accused appellant at the time of the occurrence was nearly about ten years. He was not sufficiently matured. He drew my attention towards the accused, who was also present in the Court and stated that he is a young boy, he is not having any beard and moustaches. He even now hardly seems of 12/13 years old. It was further maintained that even according to the story of the prosecution, it was not a pre-planned murder.
The accused appellant and the deceased were young coeval boys. There was no enmity between them. The occurrence took place suddenly, thus this was not the case of death penalty. The lower Court has wrongly awarded the death sentence to the appellant. He referred the following authorities in support of his contentions:-- ' 1985 PCr.LJ 2276; 1991 PCr.LJ Note 305 at p.207; 1993 PCr.LJ 2427; 1985 PCr.LJ 2958 and 1991 PCr.LJ Note 253 at p.180.
5. While controverting the arguments of the learned counsel for the appellant, the learned Advocate-General and the learned counsel for the complainant, vehemently argued, that contradictions pointed out by the learned counsel for the appellant have been explained by the witnesses satisfactorily in their statements. Even otherwise, these are minor contradictions and no major and serious contradictions was pointed out by the learned counsel for the appellant. It was next contended by the learned counsel for the complainant Mr. Reaz Naveed Butt, that both the witnesses of the recovery of the knife belong to same locality. The learned counsel has wrongly submitted that the witnesses of the recovery do not belong to the locality. It was further maintained by the learned counsel for the complainant that there is complete unison among the witnesses of the prosecution. Evidence of the eyewitnesses cannot be discarded merely on the basis of relationship. It was further argued by the learned counsel that at the time of occurrence, the accused appellant was of 13 years old. He was matured enough. It was also maintained by the learned counsel 'for the complainant that the lower Court has rightly awarded the death sentence to the appellant. Normal penalty for the offence is death. Such a debolic nature of person does not deserve for any leniency, who in the dotage of unnatural lust converted the life of jocund family into vapid one. He referred PLD 1966 Pesh. 99, PLD 1978 SC (AJ&K) 96 and PLD 1980 Pesh. 193 (251). He craved that the appeal may be dismissed.
6. I have heard the learned counsel for the parties and perused the record of the case.
7. As this contention of the learned counsel for the appellant is concerned, that there is a delay of three hours in the F.I.R., as the complainant stated that Bashrat came to him and told about the occurrence at 1-30 p.m. Carried no substance. The perusal of the statement of Aftab Ahmed shows, that he clearly stated in his examination-in-chief that the occurrence took place in between 3-0 and. 3-30 p.m. Although he also stated in examination-in-chief that Bashrat came to him at 1-30 p.m., but he may have stated as such inadvertently, but at the same time, it has been clarified by the witness in his statement that the occurrence took place in-between 3-00 and 3-30 p.m.
8. Assuming for the sake of arguments that there would have been delay of 3 hours, even then such delay would have not been so much material. One has to keep in mind that atmosphere, and the way of living and the habit prevailing in the society, in which he is living. It is notable, that the society in which we are living if some unfortunate incident like present one takes place, then it is quite natural that before lodging the F.I.R., the people reaching on the place of occurrence, would like to approach and inform the legal heirs of the deceased, so such a delay is quite natural. It also cannot be ignored that the distance of the police station was six miles, from the place of occurrence. There is nothing on the record from which it can be said that there was a road link between the place of occurrence and police station and the facility of the transport was immediately available, therefore, this delay was not so much important.
9. It is also pertinent to note, that the delay per se would not give rise to any adverse presumption against the prosecution in all cases, but it depends upon the circumstances of each case. The Court has to see that why the delay was caused or whether the delay was caused for consulting some one for roping into the innocent persons. Only the delay coupled with the possibility of fabrication or exaggeration of facts will be considered a fatal one, but nothing like such was agitated by the learned counsel for the appellant, nor any such was found in this case.
10. As this contention of the learned counsel for the appellant is concerned, that Aftab in his statement deposed that Barrat went on foot, while Bashrat stated Barrat went on bus, carries no substance. It has been clarified by Javeed Iqbal P.W.7, in cross-examination. He stated Barrat went on bus but the children and women were sitting in the bus, while they went on foot. This statement of Javeed Iqbal lends support to both the version that children and women went on the bus with the Barrat, while the men went on foot so it has been rightly stated by Aftab and Bashrat.
11. As the next contention of the learned counsel for the appellant is concerned, that all the witnesses of the prosecution are relatives of the deceased and belong to same tribe. They were interested witnesses, so no reliance should be placed on their statements, carries no substance.
The mere fact that a witness is relative of the deceased or he belongs to the same tribe is not per se enough to discredit the witness, unless it is established that the witness was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied then his evidence could not be discarded. Similarly the evidence of an eyewitness cannot be rejected outrightly, merely because such a witness belongs to one party or the other involved in a factional dispute. If otherwise such a witness has established his veracity. Of course these factors may alert the Court for close scrutiny of evidence of such a witness, and this by itself is not sufficient to disbelieve his evidence if he is found to be a witness of truth. In the instant case, nothing like such has been brought on the record on the basis of which it can be said that the witnesses were inimical towards the accused or they have any personal grudge against the accused.
12. It is also notable, that no enmity was suggested to Aftab Ahmed, Bashrat, Zahoor Ahmed and Ghulam Qadar. It was the basic duty of the accused to suggest the enmity to the witnesses prevailing against him, but when nothing like such was suggested to the witnesses, then it cannot be said that the witnesses were inimical towards the accused.
13. As the next contention of the learned counsel for the appellant is concerned, that Bashrat in his statement deposed that he saw Ghulam Qadar while coming towards the place of occurrence, but he did not state about Zahoor Ahmed carries no substance. The statement of Bashrat contains that when Aftab asked from Nadeem (now deceased) about the occurrence at that time Ghulam Qadar, Zahoor Ahmed and Arif were also there. In this way it cannot be said that Bashrat did not state about the presence of Zahoor Ahmed at the place of occurrence, but he in his statement clearly narrated about the presence of Zahoor Ahmed on the place of occurrence.
14. As the contention of the learned counsel for the appellant is concerned, that in site plan no point was shown from where Bashrat witnessed the occurrence, carries no substance. In the explanation No,2 of the site plan it has been clearly stated that Bashrat Hussain, the witness of occurrence was standing near the point No,2.
15. As the contention of the learned counsel for the appellant is that blood-stained clay, stones were not recovered from the place of occurrence, so the occurrence did not take place in the manner alleged by the prosecution carries no substance. The recovery of the blood-stained clay stones or blood is a corroborative piece of evidence and corroboration can be from any circumstance. In the instant case, the occurrence took place on the bank of stream. It is quite obvious that the blood may not have, fallen on the ground but it should have fallen in the stream.
16. The next contention of the learned counsel for the appellant is that witnesses of the recovery do not belong to the locality, while witnesses from the locality were available and the recovery has not been made in accordance with the section 103 of the Criminal Procedure ode. The occurrence took place in village Sari at Nallah Bahan. The witnesses of the recovery of knife are Javeed Iqbal and Nazeer Ahmed. Javeed Iqbal P.W.7, belongs to village Sari and Nazeer Ahmed to Chowki Khutta. It cannot be said about Javeed Iqbal that he does not belong to the locality. He was the witness of the locality. Chowki Khutta is also situated near the place of occurrence therefore, this contention of the learned counsel for the appellant that the witnesses of the recovery of the knife do not belong to the locality is without any substance. Even otherwise the expression inhabitants of the locality used in section 103 of the Cr.P.C. Has to be taken into account in conformity with the prevailing conditions. A difference has to be made between a thickly populated locality with the residential and commercial areas and a desolated place. In thickly populated locality a witness can be available easily and witness can be cited from the locality, whereas in a desolated place the witness cannot be available from the locality, but the witness has to be called upon from some nearing residential areas, so where an occurrence takes place on a desolated place or the recovery is made from a. House near which no other house or shop is situated then naturally the wide meaning shall be given to the term inhabitant of locality.
' The other contradictions pointed out by the learned counsel for the appellant are of minor nature and such contradictions are quite natural.
' The case referred by, the learned counsel for the appellant 1985 PCr.LJ 2276, is distinguishable and has no bearing on the fact of the present case.
' In this case the fact that the deceased died at the hands of the accused appellant was admitted one. The question for consideration and determination was, as to who was the aggressor and whether the accused appellant had acted in exercise of the right of self-defence of his person or not. The fire-arm injury was found on his right cheek in front of the right ear of the accused appellant. It was a grievous injury. His injury was neither explained by the complainant in the F.I.R., nor it was explained by the three eye-witnesses in their statements before the trial Court. They have rather suppressed the injury. It appears that they have given evidence with a motive other than of telling the truth. Since the accused appellant was found injured on the day of occurrence, therefore, it was the deceased who injured him. The witnesses instead of explaining the injury of the appellant suppressed the same, so those witnesses were disbelieved. This case has no relevancy with the present case.
17. The next case Ghaus Bakhsh v. State, reported in 1985 PCr.LJ 2958, referred by the learned counsel for the appellant has no relevancy with the present case. The witness was disbelieved as he was involved in theft of tractor, which makes the testimony of the witness questionable. Nothing like such is in the instant case. The case-law 1993 PCr.LJ 2427, 1991 PCr.LJ 228, 1991 PCr.LJ Note 305 at p.207 and 1985 NLR Cr.C. 295 (sic) have no relevancy with the facts of the present case.
18. In this case, the occurrence was witnessed by Bashrat, Ghulam Qadar, Zahoor Ahmed and Muhammad Arif. Bashrat was taking bath alongwith the deceased and in his presence the accused came on the place of occurrence and committed the occurrence, thus he was an important witness. He stated in his statement that on August 7, 1992, he went to Parrati alongwith Barrat of Qammar. After taking meal, he and Nadeem went to the stream for taking bath. Iftikhar accused appellant also came there. He compelled Nadeem for fulfilling his unnatural lust, but Nadeeni refused to bow before his unnatural lust. He resisted and said that he will tell it to his parents, upon which Iftikhar inflicted injuries with the knife on the chest and thigh of the deceased.
Zahoor and Ghulam Qadar were coming from other side of Nallah Bahan. When they reached on the eastern bank of the stream they saw Iftikhar inflicting injuries with the knife on the chest and thigh of the deceased.
' When Aftab and Muhammad Arif reached on the place of the occurrence, at that time the deceased Nadeem was alive. They found him lying naked in the injured condition. Aftab asked from Nadeem and Nadeem told him that Iftikhar accused came there and forced him for unnatural offence. He refused and threatened him that he will tell this to his parents. Upon which the accused inflicted the injuries with the knife to the deceased. When this dying declaration was made by the deceased to Aftab Ahmed at that time Muhammad Arif, Zahoor Ahmed and Ghulam Qadar were also present there. This dying declaration was made by the deceased in the presence of aforesaid witnesses.
19. Now the question emerges, whether the oral statement of the (deceased) injured can be termed as dying declaration or not. The provisions of section 164 of the Cr.P.C. Do not in any way affect the admissibility of statement made by a person if it falls within the terms stated in section 32 of the Evidence Act. It is not necessary that the dying declaration should be in writing. Under section 32 of the Evidence Act, a dying declaration is admissible even if orally made. This view finds support from 1993 PCr.LJ 1547.
' There is a difference between the oral dying declaration and one recorded under section 164 of the Cr.P.C. The declaration which has been recorded by a Magistrate accompanying the certificate of Doctor, about the fitness of person to state as such is on much higher footing than a declaration which has been based on the oral testimony, which may suffer from all infirmities of human memory. It is well-celebrated principle of law, that a close scrutiny of dying declaration like the statement of interested witness is necessary, but in the case of oral dying declaration the more closer scrutiny than the scrutiny of dying declaration recorded under section 164 of the Cr.P.C. Is required. The Court should be vigilant and more conscious while acting upon an oral dying declaration than the declaration recorded under section 164 of the Cr.P.C. This view also finds support from 1993 PCr.LJ 1547 (1552) which reads as under:-- "The difference between the oral dying declaration and the one recorded under section 164 of the Cr.P.C. Is that the declaration which has been recorded by a Magistrate containing the certificates of Doctor about the fitness of a person to state as such is on much higher footing than a dying declaration which is based on oral testimony, which may suffer from all infirmities of human memory. As stated above that a close scrutiny of dying declaration like the statements of interested witnesses is necessary, but in the case of oral dying declaration the more close scrutiny than the scrutiny of the dying declaration recorded under section 164 of the Cr.P.C. Is required. The Court should be more cautious while acting upon an oral dying declaration, than the declaration recorded under section 164 of the Cr.P.C. In case of the oral dying declaration, the Court has to engage itself in dual process. Firstly testing the credentials of the source of dying declaration.
Secondly in scrutinizing the contents of the dying declaration more consciousness is required than the recorded dying declaration. As in the instant case, the dying declaration is oral so it required the more close scrutiny."
20. In the instant case, the dying declaration was made by the deceased in the presence of Ghulam Qadar, Zahoor Ahmed and Muhammad Arif. All the witnesses support the version adopted by Aftab Ahmed. This dying declaration is supported by the evidence of Bashrat, Ghulam Qadar who are eye-witnesses and saw the accused while inflicting the injuries to the deceased.
' The blood-stained knife was also recovered from the accused in the presence of Muhammad Nazir and Javeed Iqbal. The blood-stained clothes of the deceased were also recovered. The blood-stained clothes of the deceased alongwith the knife recovered from the accused were sent to the Chemical Examiner and the Serologist. According to the report of the Serologist, the blood- stained clothes of the deceased and the knife recovered from the accused contain the one and the same blood group "A". The aforesaid evidence lends the support to the dying declaration made by the deceased.
' From the statement of the eye-witnesses, dying declaration, recovery of weapon of offence, report of Serologist, the prosecution has proved the guilt against the accused appellant beyond any reasonable doubt.
21. In the instant case, the important question pertains to the quantum of the sentence. The accused appellant was present before the Court at the time of arguments. He hardly seems to be a boy of 14 years old. Even according to the version of the learned counsel for the complainant at the time of the offence, he was of 13 years old. It seems that the accused was less than 13 years old, at the time of the occurrence. According to the evidence, the accused was younger than the deceased. He did not commit the occurrence with the planning but the occurrence was committed on the spur of moment. The question of sentence demands utmost care. The sentence must be weighed in golden scale and should be properly balanced to deter the rest of the society from committing the crime, without being unnecessarily harsh.
22. As stated above, that the accused-appellant was of 12 years old at the time of occurrence and according to the version of the prosecution, he was of 13 years old. There is nothing on the record, on the basis of which it can be said, that the accused-appellant committed the murder with a preparation or pre-planning and he was having any enmity with the accused.
23. In a murder committed on the spur of moment without any preplanning and enmity, the life imprisonment will be sufficient to meet the ends of justice. This view finds support from PLD 1975 Lah. 619 and 1974 PCr.LJ 1088.
24. Keeping in view the age of the accused-appellant and the circumstances in which the murder was committed, as stated above, the life imprisonment shall be sufficient to meet the ends of justice. Thus, the sentence of death is converted into life imprisonment. As the sentence has been converted into the life imprisonment, thus no need to confirm the death sentence. Both, the appeal and the reference stand disposed of in the terms indicated above.