KHAWAJA MUHAMMAD SAEED, J.---Supra titled two appeals, one for acquittal filed by the convict- appellant Muhammad Ilyas and the other for the enhancement of sentence, filed by Kabir Hussain complainant, have arisen out of the same occurrence and are directed against the same judgment passed by the Shariat Court on 30-3-2002, therefore, these shall be disposed of through this consolidated judgment.
2. Facts giving rise to these appeals, briefly stated, are that on 11-4-1995 at 5-00 a.m. Kabir Hussain complainant, made a report at Police Station Dadyal, Tehsil Mirpur that he was at his home, which is located in village Bhalote, when he came to know that his sister Mst. Shamim has been murdered by her husband Muhammad Ilyas convict-appellant at 3-30 a.m. He rushed to village Thub where he found his sister lying soaked in blood. Sher was killed by her husband with an axe on account of strained relations between them. On the basis of this report the convict-appellant was arrested by the police on 11-4-1995. On the same day the Police recovered the blood-stained soil and apparels of deceased Mst. Shamim. The blood-stained axe and clothes of the said accused-appellant on his pointation were recovered from the room of his house and after making complete investigation the convict-appellant was sent to face trial for the offence of murder of his were before the District Court of Criminal Jurisdiction, Mirpur. At the end of the trial the convict --appellant, Muhammad Ilyas, was awarded 10 years' rigorous imprisonment in offences under section 5 of the Islamic Penal Laws Act and section 313, A.P.C. This judgment was challenged through separate appeals before the Shariat Court by the convict-appellant. Muhammad Ilyas and Kabir Hussain, complainant. After taking the necessary proceedings the learned Chief Justice of the Shariat Court vide his consolidated order dated 30-3-2002, dismissed the appeal of the convict-appellant and allowed the appeal of the complainant, Kabir Hussain and awarded life imprisonment to the convict- appellant in the offence under section 5 of the Islamic Penal Laws Act and 6 months' imprisonment for the offence under section 313, A.P.C. And directed that these sentences shall run one after the other, however, the period spent by the convict-appellant in detention from 11-4-1995 to 13-6-1997 shall be commuted towards his imprisonment awarded to him under section 5 of the Islamic Penal Laws Act. This judgment of the Shariat Court is the subject-matter of present appeal.
3. Raja Tariq Pervez Nawabi, the learned counsel for the convict-appellant, argued that in fact there is no eye-witness of the occurrence. According to him, one minor girl aged 7 years, namely Irem, who is daughter of the deceased Mst. Shamim as well as of the convict-appellant has deposed that she is the eye-witness of the occurrence. On the statement of this minor girl both the Courts below have placed reliance in convicting his client. The learned counsel further argued that Tika Khan and Rashid were cited as eye-witnesses of the occurrence but both of them were not produced in the Court. In the statement of these witnesses recorded by the police under section 161, Cr.P.C. The minor girl Irem was not disclosed as eye-witness of the occurrence. He further argued that from the statement of Irem, the minor girl, it is proved that she was turtored by her uncle Kabir Hussain complainant, and whatever she deposed in the Court was not the correct account of the occurrence but in fact whatever she was told to her by the complainant she deposed in the Court.
The learned counsel further argued that there are glaring contradictions in the prosecution case. In support of this argument he argued that Muhammad Rafique, Head Constable, Police Station Dadyal, has stated that all blood--stained articles including the blood-stained axe purportedly used in the occurrence by the convict-appellant were recovered by the police on 11-4-1995 and were given in his custody on the same day whereas according to Exh. PE/3, the weapon of offence allegedly used by the convict-appellant in the murder of Mst. Shamim was recovered by the police at his pointation on 12-4-1995, how this axe could be given in the custody of Muhammad Rafique, Head Constable on 11-4-1995 when the same was recovered on 12-4-1995. The learned counsel for the convict-appellant further argued that all recoveries are immaterial because the Chemical Examiner who found the human blood upon these recovered articles was not produced in the Court nor it is proved that these articles were stained with the blood of deceased Mst. Shamim, as there is no report of blood grouping available on the record, therefore, all these recoveries lack supporting proof to the statement of minor girl Irem. The learned counsel further argued that whatever was deposed by witness Muhammad Khalil like the complainant Kabir Hussain is based on hearsay information. Both of them were not eye-witnesses of the occurrence, therefore, both the Courts below fell in error in relying upon the statement of these witnesses. Muhammad Khalil deposed in his statement that he was sleeping in his house when Tika Khan and Rashid came and told him that Muhammad Ilyas, the convict-appellant, has murdered his were Mst. Shamim. On receiving this information he accompanied by these two persons went on the spot and found the dead body of Mst. Shamim lying and other inmates of the house weeping there. He also stated that on hearing the hue and cry the people of the village gathered at the place of occurrence. The learned counsel also criticised the site plan which was prepared by the police during the investigation and tendered in the evidence of Raja Ejaz Ahmed Khan, Girdawar. According to him, it is not proved from the site plan that who furnished the information which stood incorporated in it.
The learned counsel for the convict appellant also criticised that the recoveries made in the case cannot be read against his client because these recoveries were not made in presence of the independent witnesses whose presence at the time of recoveries is established on the record. He further argued that except the complainant nobody has stated that parties had strained relations, therefore, motive in this case is not proved. The learned counsel further submitted that the Courts below, therefore, should have extended the full benefit of doubt to his client and acquitted him from the charges. Alternatively he argued that all the period which was spent in the prosecution of this case should be deducted from the sentence awarded to his client by extending him the benefit of section 382-B of Criminal Procedure Code.
4. On the other hand Ch. Muhammad Anwar, the learned counsel for the complainant, Kabir Hussain supported the judgments of the Courts below. According to him, as both the Courts below have concurrently held that the convict-appellant committed murder of his were Mst. Shamim, therefore, there was no justification for the Courts below to award him lesser punishment than death. The learned counsel further argued that whatever was stated by Irem, a minor daughter of the unfortunate couple, was on account of the reason that she had herself seen the occurrence.
Her presence in the house is admitted to the convict-appellant as is apparent from the trend of cross---examination made on his behalf. The learned counsel further argued that Irem is the natural witness of the occurrence. She has directly implicated her father, the convict-appellant, with the commission of murder of her mother. He placed reliance upon a case titled Qadeer Hussain v. The State (1994 PCr.LJ 788(2)), wherein it is laid down that reliance can be placed upon the statement of minor witness if such witness is capable of understanding the questions and answering them. He stated that in the lengthy cross---examination the minor Item deposed whatever. Was seen by her. He further argued that the defence cannot criticize the recoveries because by the trend of cross-examination it is proved that these recoveries are admitted. He further argued that the statement of Muhammad Khalil tends full support to the prosecution case wherein he stated that Tika Khan, the husband of her aunt and Rashid, his real brother, told him that Muhammad Ilyas has killed his were. This statement directly connected the convict-appellant with the murder of his were Mst. Shamim. According to the learned counsel for the complainant, the convict-appellant in his statement recorded under section 342, deposed that he will produce the defence witnesses but he could not produce any one out of his parents, sisters, brothers or any other relative before the Court. Even he has not produced Tika Khan and Rashid to deny whatever was attributed by Muhammad Khalil witness to them in his Court statement. According to the learned counsel the statement given by minor witness Irem finds support from the post-mortem report which was prepared by Dr. Allah Rehm Khokhar as in the post-mortem report the cause of death of Mst. Shamim is shown the injuries on her neck and head resulting in excessive bleeding.
The learned counsel further argued that in the light of this evidence, the offence of murder was proved beyond any shadow of doubt, therefore, the Courts below under law were obliged to award maximum sentence of death to the convict-appellant. The reliance was placed upon the cases titled Muhammad Ramzan v. The State (1997 PCr. L1 376j and Muhammad Mumtaz Hussain and another v. Muhammad Arshad and 2 others (2001 PCr.LJ 225).
5. We have considered the respective arguments of the learned counsel for the parties in the light of the evidence available on the record alongwith the record of the case. In this case admittedly only minor girl Irem is the eye-witness of the occurrence which is proved from the cross- examination of this witness. A suggestion was put to this witness during her cross-examination that on the day of occurrence except her and her deceased mother none other awoke in the house as they awoke due to 'Chuk' of their father who demanded from his were to chain buffalo. This proves the presence of minor Item in the house where the occurrence took place. Her statement was recorded in the Court on 7-12-1996. At that time her age was recorded as eleven years. No doubt the Court did not give any opinion about her competency as witness however from her statement it becomes quite clear that she was understanding the questions which were put to her and answered them which proves that she is a competent witness. Mere the fact that preliminary inquiry was not conducted by the trial Court for determining the fitness of said minor girl to depose as a witness cannot be given so importance to rule out her statement from consideration. Holding of the preliminary inquiry by the trial Court is a rule of prudence and not a legal obligation upon the Court, therefore, omission to conduct preliminary inquiry in this regard does not render the evidence of minor girl inadmissible in evidence. In this case we have noticed that the minor girl has given her evidence as a competent witness. Our view finds support from the authority cited by Ch. Muhammad Anwar, the learned counsel for the complainant, wherein it is laid down that reliance can be placed upon the statement of a minor witness. If it is proved that such witness was capable of understanding and answering the questions. In this case minor Irem as said earlier is a very important witness. According to her she alongwith her minor brother was sleeping with her mother when her father the convict-appellant gave a 'Chuk' to her mother as well as to her and asked her mother to chain the buffaloe According to her on the direction of her father, her mother went out of the room to chain the buffalo. She followed her. Her father gave axe blow to her mother on which she fell down on the ground and then he gave another blow of axe on which she died. According to her she saw this occurrence in the bulb light. She admitted in the cross---examination that in the house, on the night of occurrence, her grandmother, grandfather, uncle Rashid and her aunts were present. She also disclosed that in the morning she also saw her uncle Kabir there, who is complainant in the case. She owned the suggestions put to her by the defence that on the night of occurrence she was present in the house and besides her mother she alone were up when occurrence took place.
It cannot be ignored that the convict-appellant could not produce even his father, mother, uncle, brothers and sisters who were present in the home when this occurrence took place to prove that the occurrence did not occur in the manner as is suggested by the prosecution. This leads to the conclusion that even the parents, brothers, uncle and sisters, were not ready to support him.
Muhammad Khalil, a witness of the prosecution told that he was sleeping in his house when tie was awaken by Tika Khan and Rashid, the brother of the convict-appellant who told him that Muhammad Ilyas, the convict-appellant, has killed his were. None out of them was produced in the Court to contradict the statement of Muhammad Khalil. In the absence of any contradictory statement, the statement of Muhammad Khalil witness, is a factor which connects the convict- appellant with the commission of the murder of his were and furnishes full support to the evidence of minor Item. The post-mortem was conducted by Doctor Allah Rehm Khokhar in which he deposed that the cause of death of Mst. Shamim were injuries on her nick and head and excessive bleeding. From the post-mortem report and the statement of said Doctor it becomes clear that two injuries were caused on the person of deceased Mst. Shamim. One upon her neck and the other one on her head. The medico-legal report, therefore, proves the statement of minor Irem that two blows with axe were given by her father to her mother. Motive is not always material. Because some times murders are committed without any motive. In this case the complainant has stated that the convict---appellant had strained relations with her were. On account of maltreatment of her husband, convict-appellant, his sister Mst. Shamim used co come to his house from where she was being sent back to the house of her husband on the intervention of the elders of the family.
Only this much was stated in the F.I.R. Which was deposed by the complainant in his Court statement. This part of the statement is un-rebutted. The last objection which was raised by the learned counsel for the defence was about the recoveries that these were not witnessed by the independent witnesses, therefore, the same cannot be relied upon in support of the prosecution. An explanation was tendered by Sub-Inspector Munshi Khan that why in the presence of other witnesses at the time of such recoveries, none out of them were cited as recovery witnesses. While conducting the cross--examination of Muhammad Munshi Khan, Sub-Inspector of Police, it was brought on the record by the defence counsel that the persons of the vicinity did not agree to become the witnesses of the recoveries, therefore, he cited Kabir and Ejaz as recovery witnesses.
This explanation was not criticized in the cross-examination of the said witnesses that the same is not true or that the recoveries were not made at the pointation of the convict-appellant. From the trend of cross--examination, it becomes clear that defence admitted the recoveries made in this case. In this case only these witnesses are material and the remaining witnesses are formal witnesses. The Patwari has prepared the site plan of the occurrence in which he has disclosed the place where deceased Mst. Shamim was murdered by her husband and her body was lying and other collateral details. The other witnesses are Police Constables and D.S.P. Ch. Sabir Hussain who recorded his satisfaction about the investigation conducted in the case, therefore, their statement need not be discussed in this judgment.
6. In the light of above facts we are convinced that whatever was deposed by minor Irem was the true account of the occurrence witnessed by her. From her statement it is proved that she is not a tutored witness. Her mother was killed. It could trot be expected from her to tell lie against her father in respect of the charge of murder of her mother. The Courts below, therefore, have rightly concluded that the murder of Mst. Shamim was committed by the convict-appellant.
7. The convict-appellant has also been convicted for the offence under section 313, A.P.C. Mst.
Shamim had the pregnancy of two months when she was murdered by the convict-appellant. Her murder also resulted in the miscarriage, therefore, the convict--appellant beside her murder was also made answerable for the offence under section 313, A. P. C. The convict-appellant was the husband of Mst. Shamim, therefore, it cannot be said that he had no knowledge that his were was pregnant in those days. In view of this fact the sentence awarded to him for this offence is also maintained.
8. In view of the above, the appeal filed by the convict-appellant Muhammad Ilyas having no force is hereby dismissed.
9. So far the other appeal filed by the complainant Kabir Hussain for the enhancement of sentence is concerned. In the light of the pecular facts of the case this appeal has got no merit in it. As rightly pointed out by the Courts below the punishment of 'Qisas' can be awarded if two 'Adil' male Muslims or one male and two female Muslims are witnesses of the occurrence. In this case only one minor girl Irem is the eye-witness of the occurrence. The 'Nisab' of evidence is, therefore, not available in this case. The convict-respondent on account of this reason cannot be awarded the sentence of 'Qisas'. However, under section 3 read with section 24 of the Islamic Penal Laws Act, 1974, the Court can award other sentences which include the sentence of death. The learned counsel for the complainant, Ch. Muhammad Anwar, during his arguments strenuously pressed this point that as the murder of Mst. Shamim by the convict-respondent is proved, therefore, there was no justification for the Courts below to pass any sentence other than the death. All sentences which are provided under the aforementioned provisions of law can be awarded by the Court after due care and caution. The learned Shariat Court has not awarded death sentence as in its wisdom death sentence is equal to 'Qisas' as in both the cases the accused of murder is to be killed. In this case the unfortunate couple have got one minor daughter and a minor son. The convict-- respondent has no doubt brutally murdered his were, however, he deserves concession in the sentence for the sake of two minor children, one daughter and a son who unfortunately are members of a very poor family. They will suffer if the major punishment is awarded to the convict-- respondent. In our view the Shariat Court has rightly awarded to the convict-respondent the sentence of life imprisonment which is kept intact. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.