PLJ 2010 SC 1133
Child Witness--
----Witness was of tender age does not ipso facto make his evidence unreliable--Before acting upon the evidence of child witnesses, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court about his satisfaction--No merit in as much as there is no hard and fast rule that either all should be acquitted or all convicted. [P. 1137] A & B
----S. 308--Sentence of death to wife for committing qatl-e-amd of her hushand--Question of death sentence--Female accused was convicted for having committed `qatl-i-amd' (her husband) u/S. 302(b), PPC--Circumstances are such (five minor children having lost their father and mother facing death sentence) as would strongly call for the exercise of discretion by the Court to alter the sentence of accused--Thus having regard to the facts and circumstances of the case, while maintain the conviction death sentence was converted into sentence of life imprisonment. [Pp. 1137 & 1138] C & D
PLD 2007 SC 111, 2004 SCMR 4, 1999 SCMR 2203, 2003 SCMR 855 & 2000 SCMR 338, ref.
Mr. Aftab Ahmad Bajwa, ASC for Appellants.
Mian Asif Mumtaz, DPG,
Date of hearing: 17.4.2009.
PLJ 2010 SC 1133
[Appellate Jurisdiction]
Present: Javed Iqbal, Sarmad Jalal Osmany & Sayed Zahid Hussain, JJ.
Mst. RAZIA alias JIA and another--Appellants
versus
STATE--Respondent
Crl. Appeal Nos. 138, 602 and 139 of 2005, decided on 6.5.2009.
(On appeal from the judgment dated 3.7.2003 of the Lahore High Court, Lahore passed in Crl. A. 903/1998 and MR. No. 365 of 1998).
Judgment
Sayed Zahid Hussain, J.--Mst. Razia alias Jia and Manzoor Ahmad (appellants) alongwith two others namely Nemat Ullah Qazi and Pappu, were tried for the murder of Bashir Ahmad deceased under Section 302/34 PPC. The two appellants were convicted by the learned Trial Court, vide judgment dated 06.8.1998 under Section 302(b) PPC and were sentenced to death each and to pay a fine of Rs.25,000 each or in default of payment thereof to undergo simple imprisonment for one year each. The amount so recovered was ordered to be paid to the heirs of Bashir Ahmad deceased. Other two accused namely Nehmat Ullah Qazi and Pappu were acquitted. Mst. Razia and Manzoor Ahmad challenged their convictions through Criminal Appeal No. 903 of 1998, which was heard alongwith Murder Reference No. 365 of 1998. The learned Division Bench of the Lahore High Court, Lahore dismissed their appeal and confirmed the death sentence by answering the reference in affirmative vide judgment dated 03.7.2003. Mst Razia assailed the matter through C.P.L.A No. 638-L of 2003 and J.P. No. 367 of 2003 whereas Manzoor Ahmad filed J.P. 359 of 2003. Leave was granted by this Court on 23.5.2005 which order reads as follows:--
"We have heard Mr. Aftab Ahmad Bajwa, ASC for Mst. Razia alias Jia convict and Ch. Muhammad Anwar Khan, ASC for Manzoor Ahmad convict. Manzoor convict was alleged to be the paramour of Mst. Razia petitioner and the two were accused of having murdered the husband of Mst, Razia i.e. Bashir Ahmad deceased. The ocular testimony comprised the statements of two children of Mst. Razia petitioner and Bashir deceased i.e. Naveed (PW-3) and Naheed Akhtar (PW-4). There is a finding of the learned trial Judge affirmed by the Hon. High Court that both the children were mature persons and their testimony was thus reliable.
2. Two persons have been sentenced to death in these cases and we consider it appropriate to re-appraise the evidence to ensure that the conviction and punishments recorded against the said two petitioners had been validly recorded. Another question which would require examination would be the imposition of death penalty on Mst. Razia petitioner in view of the provisions of Section 308 of the Pakistan Penal Code.
3. In this view of the matter, all these petitions i.e. Crl. Petition No. 638-L, Jail Petitions Nos. 359 & 367 of 2003 are allowed and leave to appeal is granted in all these cases for the said purpose. The delay in the filing these petitions is condoned." These appeals have accordingly come up for hearing before this Court.
3. The background in which the same have arisen is that on 8.8.1996, Mumtaz Hussain ASI was on patrol duty alongwith Muhammad Rashid, Sher Ali and Akhtar Ali constables within the area of
According to PW.3 Naveed and PW.4 Naheed Akhtar their father Bashir Ahmad had fallen down due to the injuries suffered by him at the hands of the accused when Mst. Razia their mother placed the pillow on his mouth in order to choke his breathing system.
4. The trial Court before whom these two witnesses appeared took careful and cautious steps before recording their statements and even during the course of their examination it took note of their demeanor and emotions. It also found corroboration from the medical report and proceeded to convict Mst. Razia and her paramour Manzoor Ahmad under Section 302(b) PPC and sentenced them to death. The Court however, acquitted Pappu accused who was real brother of Mst. Razia as he had not been nominated by Taj Din (PW.1) and Muhammad Hanif (PW.2) in their statements under Section 161 Cr. P.C. nor was he so nominated initially by Naveed (PW.3) and Naheed Akhtar (PW.4). He had even been declared innocent during the course of investigation. It was observed that the prosecution had failed to prove its case against him beyond any shadow of doubt. Nehmat Ullah Qazi another accused was also acquitted as no convincing evidence had been produced qua his involvement in the commission of offence. While deciding the appeal filed by the convicts, which was heard alongwith murder reference, the learned Division Bench of the Lahore High Court, Lahore observed as follows:--
"5. After going through the record of this case, especially the statements made by Naveed (PW.3) and Naheed Akhtar (PW.4) we too have felt impressed by the statements of these child witnesses. The said statements were absolutely consistent, categorical and emphatic and the same inspired complete confidence. Through the said statements not only the motive nourished by the appellants had been proved but hatching of a conspiracy and then its cold-blooded execution had also been established to the hilt. The medical evidence had also provided complete support to these witnesses and, thus, we have found no reason for not placing a whole-hearted reliance upon their statements. In this view of the matter we have no other option but to conclude that active participation of the appellants and sharing of common, intention by them in respect of the murder in issue had been proved beyond reasonable doubt. The normal wages of a crime of murder is death and in the circumstances of this case the appellants deserved no less. This appeal, is, therefore, dismissed and the convictions and sentences of the appellants recorded by the learned trial Court are upheld and maintained with the slight modification that the sentences of fine shall be treated as directions regarding payment of compensation and in case of default in payment thereof the appellants shall undergo simple imprisonment for six months each instead of simple imprisonment for one year each ordered by the learned trial Court."
5. Mr. Aftab Ahmad Bajwa, Advocate the learned counsel for the appellant has endeavourd to point out contradictions, inconsistencies and improprieties in the case setup by the prosecution. According to him none of the convicts was nominated in the FIR nor there was any evidence about removal of the dead body of the deceased from the house. It is also contended that on the same set of evidence Nehmat Ullah Qazi and Pappu had been acquitted therefore no conviction could be ordered on the basis of the same evidence. He also makes reference to a Habeas Corpus petition (Criminal Misc. No. 1033-H/96) filed by Nehmat Ullah Qazi for the recovery of Mst. Razia as a factor for false involvement in the case. The said petition had been disposed of by the Lahore High Court,
6. The learned Deputy Prosecutor General,
7. 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 (PW.3) and Naheed Akhtar (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 ipsofacto make his evidence unreliable. It is true that before acting upon the evidence of child witnesses, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court about his satisfaction. The two witnesses indeed had given a consistent 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 postmortem 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 loose its significance.
8. The contention of the learned counsel as to the acquittal of Pappu and Nehmat Ullah Qazi by the trial Court has also no merit in as much as there is no hard and fast rule that either all should be acquitted or all convicted. As mentioned above Pappu was acquitted by the trial Court as he had not been nominated even by Taj Din (PW.1) and Muhammad Hanif (PW.2) initially. He had even been exonerated during the course of investigation as well. Moreover, he was real brother of Mst. Razia. The acquittal of Nehmat Ullah Qazi was also backed by valid justification. It may be observed that it is the quality of the evidence before the Court upon which the finding of guilt or otherwise are to be based. Whereas in the case of Mst. Razia and Manzoor Ahmad there was convincing and confidence inspiring evidence for recording their convictions; it was not so qua Pappu and Nehmat Ullah Qazi. About the conviction of the appellant Mst. Razia and Manzoor Ahmad, the learned Division Bench of the High Court observed that their statements "were absolutely consistent, categorical and emphatic and the same inspired complete confidence. Through the said statements not only the motive nourished by the appellants had been proved hut hatching of a conspiracy and then its cold-blooded execution had also been established to the hilt. The medical evidence had also provided complete support to these witnesses."
On due appreciation and appraisal of the evidence no exception can be taken to the view so taken by the High Court. Thus reverting to the first part of the leave granting order, we find that they were rightly convicted.
9. The other aspect of the matter as noted in the leave granting order is the imposition of death penalty on Mst. Razia in view of the provisions of Section 308 of PPC. It may be noted that from the record it transpires that as a result of their wedlock i.e Bashir Ahmad and Mst. Razia they had five children eldest being Naveed (12 years) all others are younger to him. They have lost their father whereas the mother has been convicted to death. Such an episode has unfortunately rendered them orphans. The question of death sentence of Mst. Razia, thus in the situation really deserves consideration. She was convicted for having committed `qatl-i-amd' of Bashir Ahmad (her husband) under Section 302(b) PPC. At this junctures some precedents of this Court akin to the circumstances need to be kept in view. In Iftikhar-ul-Hassan versus 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-i-amd liable to qisas under Section 302(A), PPC and not in the cases in which sentence for Qatl-i-Amd has been awarded as tazir under Section 302(b), PPC. The difference of punishment for Qatl-i-Amd as qisas and tazir provided under Sections 302(a) and 302(b), PPC 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), PPC and exercise of this discretion 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-i-Amd', keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment of 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) PPC awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B Cr.P.C.
10. In the above case the age of the convict persuaded the Court to alter the sentence whereas in the present case, the circumstances are such (five minor children having lost their father and mother facing death sentence) as would strongly call for the exercise of discretion by the Court to alter the sentence of Mst. Razia appellant. Thus having regard to the facts and circumstances of the case, while maintaining the conviction of Mst. Razia, we convert her death sentence into sentence of life imprisonment with benefit of Section 382-B Cr.P.C. Her appeal is partly allowed to that extent, whereas the appeal of Manzoor Ahmad is dismissed.
(M.S.A.) Order accordingly.
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