JUDGMENT

RAJA SAEED AKRAM KHAN, C.J.—The appellant, represented by his next friend Nazim, has filed the appeal (supra) seeking to overturn the judgment of the Shariat Appellate Bench of the High Court (High Court) dated 24.12.2019, wherein, the appellant’s appeal was dismissed.

2.    The background of the appeal is as follows: On 26.07.2001, Muhammad Matloob, the complainant, presented a written application, at Khuiratta, at 7:10 p.m. stating therein that he is the resident of Seore. On the fateful day at 6:00 pm, while he and his son, Waqas were mowing grass near their house when they heard a quarrel coming from the house of Maqsoom Begum, the wife of Muhammad Arif. Upon hearing the noise, the complainant and his son went to Maqsoom Begum’s house and found Muhammad Ghazanfar (convict-appellant) inflicting blow with a hatchet on the head of Muhammad Ayub, the complainant’s brother, with the intent to kill him. Muhammad Ghazanfar (convict) inflicted a second blow at Muhammad Ayub’s neck. Meanwhile, the complainant’s father, Havaldar Muhammad arrived at the scene, but Muhammad Ghazanfar, convict, continued to inflict hatchet blow on the head of Maqsoom Begum, causing serious injuries. Muhammad Ayub fell to the ground and died on the spot. Ghazanfar fled away from the scene. The motive behind the occurrence is that the convict had murdered his wife, Zahida Bibi, five to six years ago. Zahida Bibi was the maternal aunt of complainant and Muhammad Ayub, and Ayub used to support Zahida Bibi’s parents, which caused distress to the convict. The complainant, his son, Muhammad Waqas, and Shan Muhammad claimed to have witnessed the whole incident. Based on this report, FIR No. 96/2001 was registered at Police Station, Khuiratta on 26.07.2001, in the offenses under sections 302/324 and 337, A.P.C. After conducting a formal investigation, the police presented the challan before the District Criminal Court, Kotli on 11.09.2001. The convict’s statement under section 265-D of Criminal Procedure Code (Cr.P.C) was recorded on 08.11.2001, wherein he pleaded not guilty. Consequently, the prosecution was asked to lead evidence supporting the charge. After the prosecution evidence, the accused’s statement under section 342, Cr.P.C. was recorded on 03.12.2004. Once again, the convict pleaded not guilty and maintained his innocence.

3.    The District Criminal Court Kotli, at the conclusion of the trial, vide judgment dated 12.02.2005, convicted the appellant and sentenced him to death as Qisas under section 302-(a), A.P.C.; 10 years’ rigorous imprisonment under section 342, fine of Rs.5,000/- as compensation under section 337-A(i), a sentence of Arsh to the tune of Rs.60,000/- under section 337-A(iv), and fine of Rs.5,000/- as compensation under section 337-F(i), A.P.C. was also imposed upon the appellant. Additionally, he was granted the benefit of section 382-B, Cr.P.C. The convict filed an appeal before the High Court challenging therein the sentence imposed on him, whereas, for confirmation of the death sentence a reference was also sent to the High Court. The learned High Court answered the reference in affirmative, while dismissing the appeal filed by the convict through the impugned judgment.

4.    It may be stated here that during the pendency of the titled appeal, an application for examination of the convict was filed on the ground of insanity. In pursuance of the said application, we had summoned the convict-appellant. A number of questions were put to him to which he responded satisfactorily. We found no violence in his conduct and he appeared to be quite fit, hence, the application was turned down and the case was heard on merit.

5.    Kh. Imtiaz Ahmed, Advocate, the learned counsel representing the convict-appellant, has argued that the conviction rendered by the lower Courts is not in accordance with the evidence produced in the case. He emphasized that based on the standard of evidence produced by the prosecution, the imposition of the death penalty is unwarranted. He contended that Muhammad Waqas, a witness in the occurrence, was a minor at the time of the incident, thus, his statement should not be relied upon for the appellant’s conviction, particularly when the trial court excluded the testimonies of Maqsoom Begum and Shan Muhammad. With reference to Maqsoom Begum’s statement, the learned counsel pointed out that the witness explicitly stated that when the convict-appellant struck the head of Muhammad Ayub (victim) with hatchet nobody was present there. According to the learned counsel it raises a serious doubt about the guilt of the convict. Furthermore, the counsel argued that the convict had been continuously incarcerated since 2001, and as a result, he should be released taking into account the duration of his detention and humanitarian considerations.

6.    The learned Advocate General stated that the case against the convict-appellant is proved beyond any shadow of doubt. The evidence of a minor is admissible under law. The portion of the statement of Maqsoom Begum referred to by the learned counsel for the convict goes against him because according to her statement the act of hatchet blow on the head of Muhammad Ayub is proved. He further submitted that the convict has brutally murdered an innocent person, hence, he has rightly been convicted by both the Courts below.

7.    We have heard the learned counsel for the parties and gone through the record. The incident in question occurred on 26.07.2001. Muhammad Matloob, the complainant, presented a written report at Police Station Khuiratta at 7:10 p.m., stating therein that he is resident of Seore. On the unfortunate day, at 18:00 hours, Muhammad Matloob and his son, Muhammad Waqas, were mowing grass near their house when they heard a commotion at the residence of Maqsoom Begum, the wife of Muhammad Arif. Being concerned, they went to Maqsoom Begum’s house and witnessed the convict armed with a hatchet attacking Muhammad Ayub, the complainant’s brother. The convict struck Muhammad Ayub on the head with the intent to kill him and subsequently inflicted a blow at his neck. Havaldar Muhammad Shan, the complainant’s father, also arrived at the scene, and convict continued his assault by inflicting hatchet blow at the head of Maqsoom Begum, causing severe injuries to her. Muhammad Ayub fell to the ground and succumbed to the injuries. The convict fled away from the scene. The reason for the animosity is that the convict had murdered his wife, Zahida Bibi, five to six years ago. Zahida Bibi was the maternal aunt of complainant and Muhammad Ayub, who used to support Zahida Bibi’s parents, which caused distress to the convict. The complainant, Muhammad Waqas, and Shan Muhammad claimed to have witnessed the incident.

8.    This is a case of promptly lodged FIR. The crime report clearly nominates the accused along with a specific role. The report clearly indicates that the convict inflicted a hatchet blow at the head of Muhammad Ayub and the second blow at his neck, which resulted into severe injuries and consequent death. Even the crime report also clearly mentions the names of persons who witnessed the incident. Additionally, the convict also struck Maqsoom Begum on her head with hatchet. The ocular account in the case has been furnished by Muhammad Matloob, Muhammad Shan, Muhammad Waqas and Maqsoom Begum. All of these witnesses fully supported the prosecution version. Muhammad Matloob, complainant, deposed in his statement that:-

“مظہر ملزم غضنفر کو جانتا ہے۔مورخہ 26.07.2001 6 بجے شام  مظہر اور مظہر کا بیٹا محمد وقاص  مقصوم بیگم کے گھر کے نزدیک اپنی اراضی سے گھاس کاٹ رہے تھے۔ مقصوم بیگم کے گھر سے شور اور جھگڑا فساد کی آواز آئی۔ مظہر اور وقاص  مقصوم بیگم کے گھر کے اندر گئے تو دیکھا کہ وہاں ایوب چارپائی پر بیٹھا ہوا تھا اور غضنفر ایوب کی پچھلی طرف کھڑا تھا۔ مظہر اور پسرم کے سامنےملزم نے ایوب کے سر کی پچھلی جانب کلہاڑی ماری۔ ایوب گر پڑا۔ ملزم نے ایوب کے گلے پر سامنے کلہاڑی کا دوسرا وار کیا اور ملزم اندر کمرہ کی طرف بھاگ گیا۔  مظہر نے اُسے  پکڑنے کی کوشش کی مگر اسے مظہر پکڑ نہ سکا۔ مظہر نے واپس آ کر ایوب کو سہا را دیا ۔ پھر حوالدار شان محمد بھی آگیا۔ مظہر نے بر اور م ایوب کو اپنی گود میں رکھا  ۔ ایوب وہیں دم توڑ گیا۔ پر ملزم نے کمرہ میں جا کر مقصوم بیگم کو کلہاڑی کے تین وار مارے۔ ملزم، مقصوم بیگم کو سٹور والے کمرہ میں مضروب کر کے پچھلے دروازہ سے بھاگ گیا۔ مقصوم کو آنکھ کے اوپر، ماتھے پر، پیچھے سر اور پشت پرضربات آئیں۔”

The other witness Shan Muhammad, came to the place of occurrence on listening hue and cry. He also witnessed the incident and imparted the same story as narrated by the complainant. The third eye-witness, Muhammad Waqas, is son of the complainant who was cutting grass with his father and went to the house of Maqsoom Begum along with him. He also witnessed the incident and deposed the same in his statement. The fourth eye-witness is Maqsoom Begum, who is not only the eye-witness but also sustained the injuries in the incident. All the prosecution witnesses were subjected to lengthy cross- examination but they remained consistent in their statements. The medico-legal evidence fully corroborates the ocular account. The recovery of the crime weapon is also proved beyond any shadow of doubt. Thus, in our considered view, the Courts below righty convicted the appellant.

9.    The learned counsel for the convict-appellant focused on the lesser punishment of the convict. His stance is that the statement of Muhammad Waqas, who was minor at the time of alleged occurrence, is not admissible for awarding the capital punishment to the convict- appellant. Article 3 of the Qanun-e-Shahadat, 1984 postulates that 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 same kind. Thus, the evidence of tender age/minor is inadmissible if he has understanding of the questions put to him and able to answer them rationally. A bare reading of the statement of Muhammad Waqas shows that he was intelligent enough and able to understand what he was and his presence at the place of occurrence is also not doubtful, hence, his statement cannot be discarded mere on the ground of tender age: This Court in the case reported as State v. Muhammad Akram and others [1987 PCr.LJ 1728] held that:-

“We have closely perused the evidence of Mst. Irshad Bibi and Mst. Gulshad Begum. They have been subjected to very long cross-examination and evidence could be shattered on the material particulars of the prosecution story. In fact there are no material contradictions in their statements and they fully corroborate the statements of Mst. Taseem Akhtar and Gulbahar the other two eye-witnesses. The mere fact that aforesaid two witnesses are of tender age, does not render their testimony as doubtful, specially so when their presence on the spot is not doubtful.”

The view in the case (supra) was reiterated by this Court in the case reported as Qadeer Hussain v. The State [1995 PCr.LJ 803], in the following manner:-

“Article 3 is a rule of caution. The question in each case which a Court has to decide is whether a particular child who has appeared in the witness-box is intelligent enough to be able to understand as to what evidence he or she is giving and to be able to understand the questions and to be able to give rational answers. A child of tender years is not by reason of his youth, as a matter of law, absolutely disqualified as a witness. There is no precise age which determines the question of competency. This depends upon the capacity and intelligence of the child, his appreciation of the difference between falsehood and truth, as well as his duty to tell the latter. Our aforesaid view finds support from the principle laid down in PLD 1968 Pesh 1.

There are also numerous authorities on the point that a child of 12 years is not a child of tender years within the meaning of this section and is, therefore, competent to give evidence. Similarly a child of 8 to 9 years of age or 10 years of age or even a child of 6 or 7 years is a competent witness, if it appears from his deposition that he can understand questions put to him and give rational answers thereto. Our aforesaid view is fortified by the authorities 1968 PCr.LJ 1526, PLD 1965 Pesh. 134, 1968 PCr.LJ 569 and AIR 1953 Pat. 246.

So what is required by law is not the factor of age but the important criteria has always been the intelligence that a particular child witness has in the circumstances of the case. It may also be pointed out that in the instant case, the child witnesses who were produced by the prosecution in support of their case, were of the age of 14 and 12 years respectively. They were not of the age so as not to understand the nature of questions put to them. Yet there is another criteria that is the evidence of the child witnesses itself.

From the perusal of the evidence of the child witnesses we find them as intelligent witnesses because they gave rational replies to the question put to them by the learned counsel for the defence and they in fact understood the nature of questions posed to them. So after careful analysis of the case-law, and the provisions of Article 3 of Qanun-e-Shahadat we are of the view that the rule enunciated in Article 3 is not an absolute or inflexible rule. Therefore, the objection of learned counsel for the appellant is hereby repelled.”

The Supreme Court of Pakistan in the case reported as Mst. Razia alias Jia v. The State [2009 SCMR 1428] has held that:-

“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 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.”

In this regard, the learned High Court has also rightly relied upon the case reported as Abdul Majeed v. The State [2002 PCr.LJ 41]. The principle of law laid down in all the cases referred to above, can be summarized as follows:-

(i)    The age of a witness, particularly a child witness, is not the sole determining factor for his competency to give evidence. The crucial criterion is the intelligence and capacity of the child to understand the questions and provide rational answers;

(ii)   A child of tender years is not automatically disqualified as a witness. Competency depends on the child’s understanding of the difference between falsehood and truth and his duty to tell the truth;

(iii) There is no specific age that determines competency, and each case must be assessed individually based on the child’s ability to comprehend and respond appropriately;

(iv)  Previous judgments have established that even children as young as 6 or 7 years old can be competent witnesses if he demonstrates understanding and rationality in his testimony;

(v)   The determination of competency should consider the intelligence and comprehension displayed by the child witness during cross-examination, as well as his ability to comprehend the nature of the questions asked;

(vi) The age of the child witness is not an absolute or inflexible rule; what matters is his intelligence and understanding in the given circumstances of the case; and

(vii) The evidence of child witnesses should be subjected to close and careful scrutiny, and the trial court should record its satisfaction regarding the credibility and reliability of his testimony.

In the instant case, a careful scrutiny of the statement of Muhammad Waqas shows that he had the intelligence and the capacity to understand the questions and provide rational answers, thus, the Courts below have committed no illegality while relying upon his statement. The objection of the learned counsel for the convict-appellant has no weight and the same is hereby repelled.

10.  The other objection of the learned counsel for the convict is regarding the statement of Maqsoom Begum. The portion of her statement referred to by the learned counsel reads as under:-

“جس وقت ملزم نے ایوب کے سر میں کلہاڑی سے وار کیا تو اس وقت اور کوئی بھی موجود نہ تھا۔”

The learned counsel for the convict has only focused on the fact of non-presence of anybody at the time of infliction of hatchet blow at the head of the deceased but he has not disputed the infliction of hatchet blow, thus, even from this statement it is proved that the convict-appellant inflicted hatchet blow on the head of victim. In this state of affairs, the argument the learned counsel for the convict is not helpful to the defence.

11.  So far as the other argument that he is behind the bars since 2001, hence, he is entitled for lesser punishment, is concerned, it may be stated here that the mere fact of the convict being incarcerated for a certain period does not automatically qualify as a mitigating circumstance for converting a death sentence into a lesser punishment. Instead, the court should assess the gravity of the offense and the overall circumstances of the case when determining the appropriate punishment. Mere incarceration duration cannot be a sole basis for reduction of sentence. In the present case, the argument that the convict has been behind bars since 2001 does not meet the threshold for mitigating the death sentence. The Court has to primarily consider the nature of the offense, the evidence produced, and the circumstances before reaching a decision on the appropriate punishment.

12.  Now, we would like to deal with the question as to what should be the quantum of punishment in the instant case. It may be stated here that when an offence is proved beyond any shadow of doubt, it has to be met with the maximum sentence provided therefor. When prosecution proves its case beyond any shadow of doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and warning to the like-minded people. In case of application of section 302(a), A.P.C., no discretion is left with the Court while awarding sentence, whereas, in the event of application of section 302(b), A.P.C., the Court is left with option to award either death sentence or imprisonment for life as Ta’zir, keeping in view the mitigating or extenuating circumstances. We would like to refer here the case reported as Ghazanfar Ali v. The State [2015 SCR 1042], wherein, it was held that:-

“It may be observed here that it is recognized phenomenon of law that when the prosecution proved its case beyond reasonable doubt then it is paramount duty of the Courts to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people. The apex Court of Pakistan in a case reported as Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others [2001 SCMR 988], while dealing with the proposition observed as under:-

‘6.    It is obvious from the above-cited case-law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty-bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigation or circumstances warranting lesser punishment. The Courts while awarding lesser punishment have to record reasons justifying the same.’

In the light of above discussion, we are of the unanimous view that the trial Court as well as the learned Shariat Court has rightly appreciated the evidence brought on record and has not committed any illegality or infirmity while passing the impugned judgments. Resultantly, both the appeals having no substance stand dismissed.”

In the case in hand the convict-appellant remained unsuccessful to point out any mitigating or extenuating circumstances, thus, he failed to make out a case of lesser punishment.

In our opinion, the learned High Court has rightly appreciated matter in detail and passed a well-reasoned and speaking judgment, which is not open for interference by this Court. Resultantly, finding no force this appeal is hereby dismissed.

Appeal dismissed.