(Competency of witness case laws)

Case Law # (01)

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:
Mr. Justice Asif Saeed Khan Khosa, CJ
Mr. Justice Syed Mansoor Ali Shah

Criminal Miscellaneous Application No. 183 of 2019 in

Criminal Appeal No. 259 of 2018

Notice in compliance with the order dated 12.02.2019 passed in Criminal Appeal No. 259 of 2018 to
Mr. Kanwar Anwaar Ali, Special Judicial Magistrate on account of dereliction of duty and lack of
sufficient legal knowledge

In attendance: Mr. Kanwar Anwaar Ali, Special

Judicial Magistrate, in person.
Mr. Ahmed Raza Gillani, Additional
Prosecutor-General, Punjab

Date of hearing: 22.02.2019

ORDER

Asif Saeed Khan Khosa, CJ.: While disposing of Criminal Appeal No. 259 of 2018 (Asfand Yar Khan
v The State, etc.) this Court had passed the following judgment on 12.02.2019:

“Asfand Yar Khan appellant and some others had allegedly abducted one Adil Butt on 01.09.2009 for
the purpose of extracting ransom and had later on done him to death and for commission of the said
offences they were booked in case FIR No. 370 registered at Police Station Model Town, Lahore on
02.09.2009 for an offence under section 365-A, PPC. After a regular trial the appellant’s co-accused
were acquitted of the charge by the trial court whereas the appellant was convicted and sentenced for
offences under section 302(b), PPC read with section 34, PPC, section 347, PPC read with section 34,
PPC and section 7(a) of the Anti-Terrorism Act, 1997. The appellant was, however, acquitted of the
charge as far as the offences under sections 365-A and 201, PPC were concerned. For the offences of
murder and terrorism the appellant was sentenced by the trial court to death on each such count. The
appellant challenged his convictions and sentences before the High Court through an appeal which
was partly allowed, the convictions and sentences of the appellant for the offences under section 347,
PPC and section 7(a) of the Anti-Terrorism Act, 1997 were set aside, his conviction for the offence
under section 302(b), PPC was upheld and his sentence of death for the offence of murder was
reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court
granted on 12.04.2018.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the
assistance of the learned counsel for the parties we have undertaken that exercise.

3. The case in hand is a case of an alleged abduction for ransom and murder and admittedly the
case hinges upon some pieces of circumstantial evidence. It is not denied that nobody had seen the
appellant forcibly or deceitfully abducting Adil Butt deceased, no demand of ransom was attributed to
the appellant or any connection of the appellant with such demand was established, no ransom was
paid to the appellant or to anybody else for release of Adil Butt and the murder of Adil Butt had not
been seen by anybody. The prosecution had produced Tabassum Saeed (PW6) and Mian Muhammad
Yasin (PW7) so as to establish that they had seen the appellant and his co-accused in the company of
Adil Butt deceased late in the evening on 01.09.2009 but we have found that the said piece of
evidence produced by the above mentioned witnesses suffered from lack of proximity between death
and last-seen. The said witnesses had claimed to have seen the deceased in the company of the
appellant and his co-accused on 01.09.2009 but the medical evidence brought on the record showed
that Adil Butt had died some time between 02.09.2009 and 05.09.2009 and, thus, the all-important
consideration of proximity was not available in this case so as to make the last-seen evidence worth
any serious consideration. Apart from that the above mentioned witnesses were chance witnesses and
the stated reason for their availability at the relevant spot at the relevant time had not been established
through any independent evidence. The next piece of circumstantial evidence relied upon by the
prosecution was the statement of Sanaullah (PW15) who had allegedly seen the appellant and another
throwing a sack in a canal on 07.09.2009 but the medical evidence did not support that stance of
PW15 inasmuch as according to the medical evidence Adil Butt deceased lost his life latest by
05.09.2009 and, thus, throwing away of a sack by an appellant and another in a canal on 07.09.2009
could not positively establish that it were the appellant and another who had done the deceased to
death themselves and all that it could show was that some effort was made by the appellant and
another to make the deadbody disappear. Such action attributed to the appellant and another attracted
an offence under section 201, PPC but admittedly the appellant had been acquitted of the said charge
framed against him. The prosecution had claimed that the deadbody of the deceased had been
recovered from a canal and admittedly such recovery of the deadbody had not been brought about at
the instance of the appellant. It was maintained by the prosecution that two days prior to recovery of
the deadbody the appellant had pointed out the place where he had thrown the deadbody in a canal.
Such pointing out of the place of throwing of the deadbody attributed to the appellant could not
qualify as evidence or confession because during such pointing out no recovery of any incriminating
article had taken place. The last-seen evidence provided by Tabassum Saeed (PW6) and Mian
Muhammad Yasin (PW7) and the Waj-takkar evidence provided by Sana Ullah (PW15) showed that
at the relevant time the said witnesses had not identified the persons who were seen last in the
company of the deceased and even the persons throwing a sack in a canal had not been identified by
the Waj-takkar witness. These pieces of evidence could have some relevance to this case against the
appellant if the appellant had been lawfully or properly identified during a test identification parade.
In the case in hand the test identification parade conducted for identification of the appellant and his
co-accused by the relevant prosecution witnesses suffered from a serious legal defect inasmuch as in
one and the same parade three accused persons including the appellant had statedly been identified by
three separate prosecution witnesses. Such identification of three accused persons in one go amounted
to a joint identification and an identification parade which is joint has consistently been disapproved
by this Court through many a judgment and a reference in this respect may be made to the cases of
Kamal Din alias Kamala v The State (2018 SCMR 577), Gulfam and another v. The State (2017
SCMR 1189), Hakeem and others v The State (2017 SCMR 1546), Shafqat Mehmood and others v
The State (2011 SCMR 537), Bacha Zeb v The State (2010 SCMR 1189), Ziaullah alias Jajj v The
State (2008 SCMR 1210), Imran Ashraf and 7 others v The State (2001 SCMR 424) and Lal Pasand v
The State (PLD 1981 SC 142). It is unfortunate that the Magistrate conducting the test identification
parade in this case was completely oblivious of such judgments holding the field. The only piece of
evidence remaining in the field was in the shape of some recoveries affected in this case which
included a Danda¸ a rope, a wallet, a copy of the Computerized National Identity Card, some
cheques, visiting card, receipts and a copy of the Matriculation Result Card of the deceased which
had statedly been recovered from the house of the appellant during the investigation. Some
reservations have already been expressed by the High Court in the impugned judgment passed by it
regarding veracity of the alleged recoveries and upon our own independent evaluation we have found
such recoveries to be nothing but fabricated. It was unthinkable that the culprits who had taken every
precaution to conceal their crimes would keep such articles at their home so as to furnish evidence of
their crimes later on.

4. For what has been discussed above a conclusion is inescapable and irresistible that the
prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is,
therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the
charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not
required to be detained in connection with any other case.
5. Before parting with this judgment we may observe that competence and capability of Mr.
Kanwar Anwaar Ali, Special Judicial Magistrate appearing before the trial court as PW8 have been
found by us to be quite doubtful and deficient inasmuch as while conducting a test identification
parade on 19.09.2009 in connection with this criminal case in Central Jail, Kot Lakhpat, Lahore he
had paid no heed or regard whatsoever to the law declared by this Court in the precedent cases
holding the field wherein it had clearly been laid down that a test identification parade qua many
accused persons cannot be conducted in one go. Through his disregard of the law declared by this
Court he had made a very important piece of evidence reduced in worth or eliminated as an
admissible piece of evidence and the prosecution had to suffer on that score irretrievably. Let Mr.
Kanwar Anwaar Ali appear before this Court on 22.02.2019 in person so as to show as to why
appropriate proceedings may not be initiated against him on account of dereliction of duty and lack of
sufficient legal knowledge and also to show as to why some adverse recommendations may not be
made to the concerned authorities regarding his suitability to hold a judicial or executive office. The
Registrar of the Lahore High Court, Lahore is directed to trace the said Mr. Kanwar Anwaar Ali and
to make sure that he appears before the Court in person on the appointed date. ”

2. In compliance with the direction issued by this Court on 12.02.2019 Mr. Kanwar Anwaar Ali,
the then Special Judicial Magistrate appearing before the trial court as PW8 has appeared before this
Court in person along with his written statement which reads as follows:

“I most humbly submit that I was inducted as a Provincial Management Service (PMS) Officer (BS-
17) on 15.05.2006 and my academic qualification at the time of induction was simple graduation
(B.A). I received training at Management & Professional Development Department (MPDD),
Government of the Punjab in a 32 weeks course on Administration & Development from 15.05.2006
to 23.12.2006. Except for few orientation lectures on CPC, PPC, Cr.PC and Constitutional Law, no
extensive legal education or training was being imparted by the MPDD after abolition of Executive
Magistracy and main focus was and still is on planning & Development, Public Administration,
Public Policy, Management and Revenue.

2. It is further submitted that after 03-years of government service while I was working as Tehsil
Municipal Officer, Okara, I was transferred by S&GAD on 18.08.2009, after concurrence of Hon’ble
Lahore High Court, Lahore and posted as Special Judicial Magistrate, at Model Town Courts, Lahore
against one of the vacant posts where erstwhile Executive Magistrates of PCS cadre would serve and
decide petty offences pertaining to local & special laws. I was not a law graduate yet I served there as
Special Judicial Magistrate in District Judiciary w.e.f. 01.09.2009 to 11.10.2012. in absence of any
institutional setup and formal legal training arrangement or practical demonstrations pertaining to
assignments like test identification parades, raids, inquests and exhumations, the only opportunity
available to me was day to day on-job learning or study of case laws of Superior Courts and
commentaries. For a non-law-graduate like me, there was no institutional arrangement for capacity
building and throughout I had to be self taught.
3. I beg to state that it was the 10th day of my duty as Special Judicial Magistrate when I
conducted my maiden test identification parade in the subject case. I had given bare reading of
instructions on the subject contained in volume-III of High Court Rules & Orders and Police Rules
1934. During the conduct of my ever first identification Parade, I used commonsensical learning that
I had gathered from reading of bare instructions, pattern and guidance of my colleagues in judiciary.
In my humble understanding, a joint identification parade meant a parade in which more than one
accused had been made to stand in a single row with many other dummies for identification by a
witness, therefore I took care not to mix more than one accused person with 09 almost identical
dummies in a separate row. Each row was separately presented before a witness for identification.
The witness was told that he would be presented three rows; one after the other and in each row of 10
inmates, one person could be a suspect. A row would appear on site, the witness could identify or
otherwise, the identified person would be separated and then the left over row of the dummies would
depart. The second important learning was identification of accused with description of role in front
of the identified suspects.

4. It is my most humble submission that I have conducted said identification proceedings in good
faith as a judicial officer to the best of my ability and knowledge without any malafide intention. It is
my humble understanding that the crux of the statements made by witnesses while describing
respective roles of accused person in the occurrence could hardly substantiate the offence under
sections 365-A or 302, PPC. It was responsibility of the prosecution to collect corroborating
circumstantial evidence for proving charges against the accused person. I most humbly submit that
my role as a judicial officer was restricted only to the extent of recording witnesses and their
description of respective roles of the accused persons in the occurrence.

Prayer:
It is most humbly prayed that I am a career civil servant and father of three school going kids and a
sole breadwinner of a large family consisting of elderly parents and unmarried sisters. In good faith, I
tried to perform my duty whereever I was posted by the Government. I place myself at the mercy of
the Hon’ble Court and invoke its compassion of taking a lenient view and humbly request that I may
not be punished in any manner which may jeopardize my career as a civil servant and future lives of
my innocent kids and dependents.”

The explanation put forward by Mr. Kanwar Anwaar Ali who is presently posted as Deputy Secretary
(P&D Department) Government of the Punjab, Lahore and the peculiar circumstances mentioned
therein have been found by us to be plausible and, thus, no occasion has been found by us for
proceeding against him in any manner or for passing any adverse remark against his conduct. The
notice issued to him is, therefore, discharged.

3. Before parting with this order we would like to point out that the matter of taking of different
steps in holding of a proper test identification parade in connection with a criminal case has
developed over many decades and the requirements of such a parade as well as the safeguards to be
ensured during such a parade so as to make it a meaningful exercise and providing material in a
criminal case to be considered in a trial have elaborately been detailed in the landmark judgment
passed by a learned Division Bench of the Lahore High Court, Lahore in the case of Muhammd
Yaqoob and another v The State (1989 P.Cr.L.J. 2227) and in the said judgment Mr. Justice Khalil-ur-
Rehman Ramday (as his lordship then was a Judge of the Lahore High Court, Lahore) had observed
as follows:

“16. But before we undertake a deeper analysis of the evidentiary value of the test identification
proceedings held in the present case, it would be of advantage to first appreciate the object and the
value of such an evidence as also to recapitulate the standards required to be met before such like
identification parades could be credited with reliance.

17. The evidence offered through identification proceedings is not a substantive piece of evidence
but is only corroborative of the evidence given by the witnesses at the trial Muhammad Bashir v. The
State PLD 1958 SC (Pak.) 1. It has no independent value of its own Muhammad Afzal and another v.
The State 1982 SCMR 129 and cannot as a rule, form a sufficient basis for conviction though the
same may add some weight to the other evidence available on record Sudhindranath v. The State AIR
1952 Cal.
423.

18. The identification parades (as they are normally called) are necessary only where the offender
was a complete stranger to the witnesses Ismail and another v. The State 1974 SCMR 175. And the
whole object of the identification proceedings is to find out whether the suspect was or was not the
real offender Satya Narain v. The State AIR 1953 All. 385 and Kind v. Christle 1914 AC 545.

19. Such-like identification proceedings are not the testimony of a witness but the testimony of the
senses of the witness. It is essentially a test of his power of observation and perception, a test of his
power to recognize strangers and a test of his memory. These gifts of God may vary from man to
man. A witness may be honest, independent and truthful but then his memory may be faulty. And then
the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man.
When mistakes are possible in the recognition of a man known from before, then the possibility of
such mistakes in identifying strangers is definitely greater. And more so when the witnesses have seen
the offender for the first time during the occurrence and that also briefly and not with a calm but in an
excited, confused and terrorised state of mind.

20. It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the
Courts to beware of the dangers inherent in the identification of strangers and quoting from the
Criminal Law Revision Committee Report (1972), observed in Lal Pasand's case PLD 1981 SC 142
that mistaken identifications were:-

"……..by far the greatest cause of actual or possible wrong convictions…."

A similar note of caution was given by Monir in his Evidence Act
Pak. Edition, Vol. 1 where the advice is that:-

" .... the evidence as to identification ought in each case, to be subjected to a close and careful
scrutiny."

21. What then are the standards required to be satisfied by such an evidence before the same could
be accepted by a Court of law?

22. The answer is that the vital factor determinative of the worth and value of identification
proceedings is the effectiveness of the precautions taken, before and during the course of such
proceedings which are designed to eliminate the possibility of unjustified convictions.

23. Although there is no law, which prescribes any such precautions yet the necessary guidelines
are available in the form of executive instructions and judicial pronouncements. Some of them are
summarised as under:-

(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where
an unexplained and unreasonably long period has intervened between the occurrence and the
identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to
inspire confidence, must be held at the earliest possible opportunity after the occurrence;

(b) a test identification, where the possibility of the witness having seen the accused persons after
their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such
possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as
early as possible. Such suspects should preferably, not be remanded to police custody in the first
instance and should be kept in judicial custody till the identification proceedings are held. This is to
avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in
police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand
etc. they must be warned to cover their faces if they so choose so that no witness could see them;

(c) identification parades should never be held at police

stations;

(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for
which the accused persons have remained in police custody after their arrest and before the test
identification and must incorporate
this fact in his report about the proceedings;

(e) in order to guard against the possibility of a witness identifying an accused person by chance,
the number of persons (dummies) to be intermingled with the accused persons should be as much as
possible. But then there is also the need to ensure that the number of such persons is not increased to
an extent which could have the effect of confusing the identifying witness. The superior Courts have,
through their wisdom and long experience, prescribed that ordinarily the ratio between the accused
persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some
special justifiable circumstances warranting a deviation from it;

(f) if there are more accused persons than one who have to be subjected to test identification, then
the rule of prudence laid down by the superior Courts is that separate identification parades should
ordinarily be held in respect of each accused person;

(g) it must be ensured that before a witness has participated in the identification proceedings, he is
stationed at a place from where he cannot observe the proceedings and that after his participation he
is lodged at a place from where it is not possible for him to communicate with those who have yet to
take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the
members of the jail staff etc., is able to communicate with the identifying witnesses;

(h) the Magistrate conducting the proceedings must take an intelligent interest in the proceedings
and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of
some one depends only upon his vigilance and caution;

(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the
line-up at the parade
alongwith their parentage, occupation and addresses;

(j) the Magistrate must faithfully record all the objections and statements, if any, made either by
the accused persons or by the identifying witnesses before, during or after the proceedings;

(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness
about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a
culprit of an offence etc. and then incorporate this statement in his report;

(l) and where a witness identifies a person wrongly, the Magistrate must so record in his report
and should also state the number of persons wrongly picked by the witness;

(m) the Magistrate is required to record in his report all the precautions taken by him for a fair
conduct of the
proceedings and

(n) the Magistrate has to give a certificate at the end of his report in the form prescribed by
C.H.II.C. of Vol. III of Lahore High Court Rules and Orders.
24. The measures above listed should, however, not be taken as exhaustive of the steps which are
required to be taken before, during and after the identification proceedings. All these requirements are
no doubt mandatory but at the same time they are only illustrative of the precautions which the Courts
of law demand before some respect can be shown to the evidence offered through the test
identification proceedings.

25. In enunciating the above principles governing the proceedings in question and in enumerating
the above measures
and requirements, we have sought guidance from the following:-

(i) Rules and Orders of the Lahore High Court, Chapter

11-C of Vol. III; (ii) Punjab Government Circular Letter No. 6091J-36/39829 (H-Judl.) dated 19-12-
1936; (iii) Punjab Government
Circular Letter No. 6546-J-43/83844 (H-Judl.), dated 17-121943; (iv) Punjab Government Circular
Letter No. Judl.I-(13)/61, dated 26-7-1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal
Pasand v. The State PLD 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 SCMR 129, (viii)
Ismail v. The State 1974 SCMR 175, (ix) Khadim Hussain v. The State 1985 SCMR 721, (x)
Muhammad Bashir Aslam v. The State PLD 1958 SC (Pak.), (xi) Gul Baig v. The State PLD 1964
Kar. 275, (xii) Musharrif Hussain v. The State PLD 1970 Dacca 686, (xiii) Sadu v. The State 1972
PCr.LJ 10, (xiv) Qabil Shah v. The State PLD 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969
PCr.LJ 137, (xvi) Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v. The State AIR
1972 SC 102 (xviii) Parbhu v. Emp. AIR 1943 Lah. 946, (xix) Emp. v. Debi Charan AIR 1942 All.
339, (xx) Sataya Naryan v. The
State AIR 1953 All. 385, (xxi) Gajadher v. Emp. AIR 1932 Oudh.
99 and (xxii) Ramzan v. Emp. AIR 1929 Sindh 149.”

We have failed to find a more elaborate illustration of the requirements and the safeguards necessary
for holding a test identification parade than found in the above mentioned portion of the judgment
passed in the said precedent case. We wholeheartedly approve the said requirements and safeguards
which are to be meticulously followed and observed in all the test identification parades held in
connection with criminal cases.

4. It may also be observed that during a test identification parade the requirement regarding
specifying by a witness the role of an individual accused person in commission of an offence had also
been identified and emphasized by this Court in the cases of Ismail and another v The State (1974
SCMR 175), Khadim Hussain v The State (1985 SCMR 721), Ghulam Rasul and 3 others v The State
(1988 SCMR 557), Asghar Ali alias Sabah and others v The State and others (1992 SCMR 2088),
State/Government of Sindh through Advocate-General, Sindh, Karachi v Sobharo (1993 SCMR 585),
Mehmood Ahmad and 3 others v The State and another (1995 SCMR 127), Siraj-ul-Haq and another
v The State (2008 SCMR 302), Ghulam Qadir and 2 others v The State (2008 SCMR 1221),
Muhammad Afzal alias Abdullah and another v State and others (PLJ 2009 SC 333), Shafqat
Mehmood and others v The State (2011 SCMR 537), Sabir Ali alias Fauji v The State (2011 SCMR
563), Muhammad Fayyaz v The State (2012 SCMR 522), Azhar Mehmood and others v The State
(2017 SCMR 135), Hakeem and others v The State (2017 SCMR 1546) and Kamal Din alias Kamala
v The State (2018 SCMR 577).

5. Identification of many accused persons in one line in one go during a test identification parade
has also repeatedly been held by this Court to be improper and it has been clarified by this Court on a
number of occasions that every accused person is to be put to a separate test identification parade and
a reference in this respect may be made to the cases of Lal Pasand v The State (PLD 1981 SC
142), Imran Ashraf and 7 others v The State (2001 SCMR 424),
Ziaullah alias Jajj v The State (2008 SCMR 1210), Bacha Zeb v The State (2010 SCMR 1189),
Shafqat Mehmood and others v The State (2011 SCMR 537), Gulfam and another v The State (2017
SCMR 1189), Hakeem and others v The State (2017 SCMR 1546) and Kamal Din alias Kamala v
The State (2018 SCMR 577).

6. Identification of an accused person by eyewitnesses before the trial court during a trial is
generally considered to be quite unsafe because before such identification before the trial court during
the trial the eyewitnesses get may opportunities to see the accused persons appearing before the court
in connection with their remand, distribution of copies of statement of prosecution witnesses recorded
under section 161, Cr.P.C., framing of the charge and recording of statements of other prosecution
witnesses. Even in such identification before the trial court during the trial it is imperative that a
witness must point towards a particular accused person present before the trial court and must also
specify the role allegedly played by him in the incident in issue. The unsafe nature of identification of
an accused person before the trial court during the trial has already been commented upon by this
Court in the cases of Asghar Ali alias Sabah and others v The State and others (1992 SCMR 2088),
Muhammad Afzal alias Abdullah and another v The State and others (PLJ 2009 SC 333), Nazir
Ahmad v Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v The State (2011
SCMR 537), Ghulam Shabbir Ahmed and another v The State (2011 SCMR 683) and Azhar
Mehmood and others v The State (2017 SCMR 135).

7. It may also be mentioned here that a test identification parade and correct pointing out of an
accused person by an eyewitness therein is not a substantive piece of evidence and failure to hold a
test identification parade is not always fatal to the prosecution’s case and a reference in this respect
may be made to the cases of Muhammad Akram Rahi and others v The State and others (2011 SCMR
877) and Ghazanfar Ali alias Pappu and another v The State (2012 SCMR 215).

8. The above mentioned precedent cases and the best practices mentioned therein have been
consolidated by us in the present order so that any confusion regarding the legal position in respect of
a test identification parade may be removed and all concerned may stand instructed and guided in that
regard in future. A serious exception may henceforth be taken to any non-compliance or disregard of
the requirements and safeguards mentioned above.
9. The office of this Court is directed to send a copy of this order to the Registrars of all the High
Courts in the country with a direction to send a copy of the same to every Judge and Magistrate
within the jurisdiction of each High Court handling criminal cases at all levels for their information
and guidance.

Chief Justice

Judge
Islamabad
22.02.2019
Approved for reporting.
Arif.

Case Law # (02)

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

MR. JUSTICE QAZI FAEZ ISA

MR. JUSTICE YAHYA AFRIDI

Civil Petition No. 962 of 2016

(Against the order dated 11.01.2016 passed by the Lahore High Court, Lahore in Regular

Second Appeal No. 104 of 2010)

Sheikh Muhammad Muneer …Petitioner

Versus

Mst. Feezan …Respondent

For the petitioners: Mr. Muhammad Munir Piracha, ASC

Mr. Mehmood A. Sheikh, AOR

For the respondent: N.R.

Date of hearing: 25.02.2021

ORDER
Qazi Faez Isa, J. The learned Mr. Munir Piracha submits that the petitioner had filed a suit on 8
March 1999 seeking specific performance of an agreement dated 3 August 1998 through which he
had agreed to buy the respondent’s house for three hundred and fifty thousand rupees, of which an
amount of one hundred and fifty thousand rupees was paid, but since the respondent refused to
receive the balance sale consideration and to convey the house to the petitioner the suit was filed. The
agreement is shown to be witnessed by three persons, namely, Muhammad Ali, the husband of the
respondent, Allah Ditta and Muhammad Nawaz.

2. The learned counsel states that Muhammad Ali was not produced as a witness because the
petitioner apprehended that he would not admit witnessing the execution of the agreement because he
was the respondent’s husband. Another witness Allah Ditta was not produced because he could not be
found. However, Muhammad Nawaz (PW-8) was produced and so too the scribe of the agreement,
namely, Muhammad Iqbal (PW7). The learned counsel submits that a scribe can be an attesting
witness and in support of his contention refers to Article 79 of the Qanun-eShahadat, 1984 (‘Qanun-
e-Shahadat’) and section 3 of the Transfer of Property Act, 1882 (‘Act’). He says that reading these
two provisions together permits a scribe to be an attesting witness. Therefore, since two persons in
their testimony had said that the agreement was signed before them the requirement of Article 79 of
the Qanun-e-Shahdat had been met and the agreement stood proved. Learned counsel submits that
neither the learned Judges of the Subordinate Courts nor the learned Judge of the High Court
appreciated this point and dismissed the petitioner’s suit by holding that two attesting witnesses of the
agreement had not been produced to confirm its execution.

3. To appreciate the learned counsel’s point it would be appropriate to reproduce hereunder the
cited provisions:

Article 79 of the Qanun-e-Shahadat, 1984:

79. Proof of execution of document required by law to be attested. If a document is required by law
to be attested, it shall not be used as evidence until two attesting witnesses at least have been called
for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the
process of the Court and capable of given Evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a will, which has been registered in accordance with the provisions of the
Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have
been executed is specifically denied.

Section 3 of the Transfer of Property Act, 1882 :

3. Interpretation clause.

“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by
two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument,
or has seen some other person sign the instrument in the presence and by the direction of the
executant, or has received from the executant a personal acknowledgment of his signature of mark or
of the signature of such other person, and each of whom has signed the instrument in the presence of
the executant; but it shall not be necessary that more than one of such witnesses shall have been
present at the same time, and no particular form of attestation shall be necessary.

4. The respondent-defendant denied the execution of the agreement and denied agreeing to sell
her house. Therefore, the said agreement was required to be proved as mandated by Article 79 of the
Qanun-e-Shahadat. If precedent is required for this trite contention reference may be made to the
decision in the case of Nazir Ahmed v Muzaffar Hussain3 which held, that:

… in case of denial of execution of document, the party relying on such document must prove its
execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat Order, 1984 and
the party is required to observe rule of production of best evidence.
The aforesaid was also stated in the case of Maqsood Ahmad v

Salman Ali.

5. The learned counsel says that the scribe who wrote the agreement was an attesting witness of
its execution. A scribe may be an attesting witness provided the agreement itself mentions/nominates
him as such. The agreement mentioned three attesting witnesses by name and the scribe (Muhammad
Iqbal) was not one of them. In the case of Tassaduq Hussain v Muhammad Din this Court had held
that a scribe is not an attesting witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat:

Therefore, in my considered view a scribe of a document can only be a competent witness in terms of
Article 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting
witness of the document and not otherwise; his signing the document in the capacity of a writer does
not fulfill and meet the mandatory requirement of attestation by him separately, however, he may be
examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or
in the eventuality those are conceived by Article 79 itself not as a substitute.

To state that the scribe (Muhammad Iqbal) was an attesting witness is contrary to the contents of the
said agreement.

6. Oral evidence in contradiction of the contents of a document cannot be led as stated by Article
70 of the Qanun-e-Shahadat, which is reproduced hereunder:

70. Proof of facts by oral evidence. All facts, except the contents of documents, may be proved by
oral evidence.

However, oral evidence to the contents of a document may be lead in certain limited cases and then
strict compliance is required to made with Article 35 of the Qanun-Shahadat, reproduced hereunder:

35. When oral admissions as to contents of documents are relevant. Oral admissions as to the contents
of a document are not relevant, unless and until the party proposing to prove them shows that he is
entitled to give secondary evidence of the contents of such document under the rules hereinafter
contained, or unless the genuineness of a document produced is in question.
Permission was not sought, let alone given, to lead secondary evidence. Therefore, evidence contrary
to the contents of the said agreement could not be led; the said agreement had to be proved by
producing two attesting witnesses. However, only one out of three attesting witnesses was produced.

7. The question of the requisite number of witnesses to prove the execution of a document and the
role of a scribe may also be considered from the perspective of Article 17 of the Qanun-eShahadat,
which is reproduced hereunder:

Competence and number of witnesses. (1) The competence of a person to testify, and the number of
witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid
down in the Holy Qur’an and Sunnah:

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special
law, -

(a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument
shall be attested by two men or one man and two women, so that one may remind the other, if
necessary, and evidence shall be led accordingly; and

(b) In all other matters, the Court may accept, or act on the testimony of one man or one woman or
such other evidence as the circumstances of the case may warrant.

8. The agreement was with a lady (the respondent) and under the agreement a certain amount was
stated to have already been paid and the remainder was to be paid in the future and she was supposed
to convey and deliver possession of her house to the petitioner upon receipt of the balance payment.
Therefore, the agreement was in respect of ‘matters pertaining to financial or future obligations’ in
terms of Article 17(2)(a) of the Qanun-e-Shahadat and required that such an agreement to be attested
‘by two men, or one man and two women, so that one may remind the other’. However, only one
attesting witness was produced. For proving a document Article 17(1) of the Qanun-e-Shahadat
states that, ‘The competence of a person to testify, and the number of witnesses required in any case
shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and
Sunnah.’ Therefore, we turn to the Holy Qur’an to seek guidance.

9. Verse 282 of the second chapter, Al-Baqarah, of the Holy Qur’an comprehensively deals with
agreements, including the kind under consideration:

O ye who believe! When you deal with each other, in transactions involving future obligations in a
fixed period of time, reduce them to writing. Let a scribe (katibun) write down faithfully as between
the parties: let not the scribe refuse to write: as Allah has taught him, so let him write. Let him who
incurs the liability dictate, but let him fear his Lord Allah. And not diminish aught of what he owes. If
the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate
faithfully. And get two witnesses, out of your own men, and if there are not two men, then a man and
two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.
The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to
writing (your contract) for a future period, whether it be small or big: it is more just in the sight of
Allah, more suitable as evidence and more convenient to prevent doubts among yourselves. But if it
be a transaction which you carry out on the spot among yourselves, there is no blame on you if you
reduce it not to writing. But take witnesses whenever you make a commercial contract; and let neither
scribe nor witness suffer harm. If you do (such harm), it would be wickedness in you. So fear Allah;
for it is Allah that teaches you. And Allah is well acquainted with all things. [the words scribe and
witness/es have been highlighted]

The Holy Qur’an requires that the number of witnesses should be not less than two men or a man and
two women (so that the one may remind the other if she forgets). However, in the present case only
one attesting witness was produced. Therefore, compliance was also not made with Article 17(1) and
(2) of the Qanun-eShahadat and with the injunctions of Islam.

10. The translator and exegete Abdullah Yusuf Ali explaining the above verse writes the following
under his translation of it:
Commercial morality is here taught on the highest plane and yet in the most practical manner, both as
regards the bargains to be made, the evidence to be provided, the doubts to be avoided, and the duties
and rights of scribes and witnesses. Probity even in worldly matters is to be, not a mere matter of
convenience or policy, but a matter of conscience and religious duty.

Even our everyday transactions are to be carried out as in the presence of Allah.

11. Radical awakening was brought about by the Holy Qur’an and hitherto before unfamiliar
women’s rights were established for the first time in scripture. A woman’s right to own and dispose of
her property; her right to retain, both before and after her marriage, her income and property; her
ability to do business without permission of her father or husband and keep and spend what she earns.
‘Men shall have the benefit of what they earn and women shall have the benefit of what they earn.’
Her entitlement to inherit from her parents and husband is also precisely ordained in the fourth
chapter (an-Nisa) of the Holy Qur’an. A woman also does not need permission to acquire or dispose
of property; what she inherits is hers and hers alone; neither her husband, father, brother or son has
any entitlement to it; ‘Do not eat up (consume) one another’s property’. The bridal gifts given at the
time of marriage are the wife’s property, and remains hers. They can be added to but not taken away.
It is also recommended that husbands make wills to provide for their wives. Her right to enter into
contracts and to witness contracts the Holy Qur’an mentions in great detail. In this case the
respondent lady denied having entered into the said agreement which the petitioner, an attesting
witness and the scribe testified that she had, however, her solitary testimony was to be accepted
because this is what the law and the injunctions of the Holy Qur’an mandate.

12. It is of concern that in the Islamic Republic of Pakistan Qur’anic injunctions are at times
relegated in favour of retrogressive practices; we have criticized this in the case of Fawad Ishaq v
Mehreen Mansoor. We noted that, ‘A chasm existed between a woman’s position in Islam to that
which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived
of her property, which became that of her husband to do with it as he pleased.’ It may be useful to
reproduce the following three paragraphs from the judgement as well:

10. We however find that the old European and American concepts at times permeate into the
thinking even of judges in Pakistan. The doctrine of ‘coverture’ subsumed a married woman’s
identity. Sir William Blackstone described the doctrine of coverture: “By marriage, the husband and
wife are one person in law: that is, the very being or legal existence of the woman is suspended
during the marriage, or at least is incorporated and consolidated into that of the husband: under whose
wing, protection, and cover, she performs everything; and is therefore called in our law-French a
feme covert…”. In her comprehensively researched book Amy Louise Erickson writes, “Under
common law a woman’s legal identity during marriage was eclipsed – literally covered – by her
husband. As a ‘feme covert’, she could not contract, neither could she sue nor be sued independently
of her husband. … The property a woman brought to marriage – her dowry or portion – all came
under the immediate control of her husband”. It was only on the passing of the Married Women’s
Property Act, 1882 that in England a married woman became, “capable of acquiring, holding, and
disposing by will or otherwise, of any real or personal property as her separate property, in the same
manner as if she were a feme sole, without the intervention of any trustee”.

11. The situation in the United States of America of married women was no better, they had no
legal existence apart from their husbands. The reason for a married woman’s servile status was sought
to be explained by the Supreme Court of Illinois, “It is simply impossible that a married woman
should be able to control and enjoy her property as if she were sole, without practically leaving her at
liberty to annul the marriage”. The unjustness of the laws was severely criticized. Elizabeth Cady
Stanton listed in the Declaration of Sentiments “the injuries and usurpations on the part of man
toward woman” – “He has made her, if married, in the eye of the law, civilly dead. He has taken from
her all right in property, even to the wages she earns… the law, in all cases, going upon a false
supposition of the supremacy of a man, and giving all power into his hands”. Harriet Beecher Stowe
was another campaigner for women’s rights, observing that, “[T]he position of a married woman… is,
in many respects, precisely similar to that of the negro slave. She can make no contract and hold no
property; whatever she inherits or earns becomes at that moment the property of her husband. … [I]n
English common law a married woman is nothing at all. She passes out of legal existence.”

12. Discrimination against women pervaded in other areas too. It was only in 1960 that women in
America could open bank accounts without their husband’s permission and this right was acquired by
women in the United Kingdom as late as 1975. The professions were also barred to women. Mrs.
Myra Colby Bradwell had passed the bar examinations but was not allowed to practice law; she
asserted her right to practice but in 1873 the United States Supreme Court held, that denying Mrs.
Bradwell the right to practice law violated no provision of the federal Constitution and added, “That
God designed the sexes to occupy different spheres of action, and that it belonged to men to make,
apply, and execute the laws, was regarded as an almost axiomatic truth”.
13. The learned Mr. Piracha says that prudence dictated that the petitioner should not produce or
summon Muhammad Ali, who was an attesting witness, because he was the husband of the
respondent and it was apprehended that he will deny witnessing his wife signing the said agreement.
Merely because a witness is related to either party does mean he/she stops being a witness nor that
he/she should not be produced/summoned as a witness. The above quoted verse of the Holy Qur’an
states that it is the religious duty of a Muslim to come forward to testify when called upon to do so –
‘The witnesses should not refuse when they are called on’ (for evidence). An attesting witness
remains a witness irrespective of his or her relationship to the parties to an agreement. If a witness
does not agree to testify he/she can be summoned through the court. In the present case two attesting
witnesses namely, Muhammad Ali and Muhammad Nawaz, were not produced nor compelled to give
evidence by being summoned through the court.

14. As regards the scribe he was not shown or described as a witness in the said agreement,
therefore, he could not be categorised as an attesting witness. The cited verse of the Holy Qur’an
mentions three times the word scribe (katib) and five times the witness/es (shahid) but does not use
these words interchangeably, instead separately and distinctively. Therefore, a scribe and a witness
cannot be the same. In Tassaduq Hussain v

Muhammad Din this Court considered Article 17 of the Qanun-eShahadat and held, that:

7. … the provisions of Article 17(2)(a) encompasses in its scope twofold objects (i) regarding the
validity of the instruments, meaning thereby, that if it is not attested by the required number of
witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise
contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments
in term of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because
the said Article in very clear terms prescribes “If a document is required by law to be attested, it shall
not be used as evidence until two attesting witnesses at least have been called for the purpose of
proving its execution, if there be two attesting witnesses alive and subject to the process of the Court
and capable of giving evidence”.

8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an
instrument which by law is required to be attested, it has to be proved by two attesting witness, if they
are alive and otherwise are not incapacitated and are subject to the process of the Court and capable
of giving evidence. The powerful expression “shall not be used as evidence” until the requisite
number of attesting witnesses have been examined to prove its execution is couched in the negative,
which depicts the clear and unquestionable intention of the legislature, barring and placing a complete
prohibition for using in evidence any such document, which is either not attested as mandated by the
law and/or if the required number of attesting witnesses are not produced to prove it. As the
consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory
provision of law and should be given due effect by the Courts in letter and spirit. The provisions of
this Article are most uncompromising, so long as there is an attesting witness alive capable of giving
evidence and subject to the process of the Court, no document which is required by law to be attested
can be used in evidence until such witness has been called, the omission to call the requisite number
of attesting witnesses is fatal to the admissibility of the document. … And for the purpose of proof of
such a document, the attesting witnesses have to be compulsorily examined as per the requirement of
Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in
line with the principle that where the law requires an act to be done in a particular manner, it has to be
done in that way and not otherwise. [emphasis has been added]

9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the
document can be a substitute for the attesting witnesses … It may be held that if such witness is
allowed to be considered as the attesting witness it shall be against the very concept, the purpose,
object and the mandatory command of the law highlighted above.

And, in an earlier case, Nazir Ahmad v Muzaffar Hussain, it was held, that:

Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, provides that “in matters pertaining to
financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or
one man and two women, so that one may remind the other, if necessary and evidence shall be led
accordingly”.’

15. The petitioner presumably was not able to locate a witness (Allah Ditta). The burden to
produce or summon him lay upon the petitioner, which is not alleviated merely by saying he could
not be found. Article 80 of the Qanun-e-Shahadat provides, that:

80. Proof where no attesting witness found. If no such attesting witness can be found, it must be
proved that the witnesses have either died or cannot be found and that the document was executed by
the person who purports to have done so.
The Article states that it must be proved that the witness had either died or could not be found.
Simply alleging that a witness cannot be found did not assuage the burden to locate and produce him.
The petitioner did not lead evidence either to establish his death or disappearance, let alone seek
permission to lead secondary evidence.

16. Therefore, for the reasons mentioned above we are of the considered opinion that the learned
Judge of the High Court and the learned Judges of the Subordinate Courts correctly dismissed the
petitioner’s suit as the petitioner had failed to establish that the said agreement had been executed by
the respondent and/or that she had agreed to sell her house to the petitioner. Consequently, leave to
appeal is declined and this petition is dismissed.

Judge

Judge Islamabad,

25 February 2021.

Arif Approved for reporting.

Case Law # (03)

JUDGMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
JUDICIAL DEPARTMENT
R.F.A. No.47 of 2006
Syed Nisar Hussain Bukhari
Versus
Mehmood Akhter and others
Date of Hearing : 02.03.2022
Appellant by : Raja Muhammad Anwar-ul-Haq,
Advocate.
Respondent by : Mr. Zulfiqar Ali Abbas, Advocate.
_________________________________________________________________
ARBAB MUHAMMAD TAHIR, J. This Regular First Appeal is directed
against the judgment and decree dated 10.06.2005, passed by the Court
of the learned Civil Judge, Islamabad, whereby the suit for specific
performance, declaration, permanent injunction, etc., instituted by the
appellant, was dismissed.
2. The facts leading to the filing of the present appeal are that
respondents No.1 to 14 as per the revenue record were the owners in
possession of the land situated in Khasra No.259, Mouza Jandala,
Tehsil and District Islamabad. On 17.09.1995, respondent No.1
(Mehmood Akthar) and respondent No.5 (Sher Ahmed) entered into an
agreement to sell with the appellant for a sale consideration of
Rs.5000/- per kanal. Since the suit property was in the nature of a joint
property, thus, the said respondents took the responsibility of the
remaining co-owners to the effect that they would also transfer the suit
land in the appellant’s favour. The appellant paid an amount of
Rs.50,000/- as earnest money through a receipt to the said respondents
viz respondents No.1 and 5. Furthermore, an amount of Rs.5,20,000/-
was paid to the said respondents through one Muhammad Fazil. The
said respondents are also said to have witnessed the transaction. It is
pleaded that after purchase of the suit land, the appellant spent a huge
amount for leveling the suit land and planted around 6000 saplings in
the suit land. It was asserted in the plaint that now respondents No.1 to
14 are trying to deprive the appellant by re-selling the suit land to
respondent No.15 (Aurangzeb Khan). The inaction on the part of
respondents No.1 and 5 to perform their part of obligation under the2 R.F.A. No. 47 of 2006
said agreement to sell dated 17.09.1995 caused the appellant to
institute a suit for specific performance (supra). The said suit was
dismissed by the learned Court below vide impugned judgment and
decree dated 10.06.2005. Hence the present appeal.
3. Learned counsel for the appellant, after narrating the facts leading
to the filing of the present appeal, contended that after the purchase of
the said land, the appellant is now the absolute owner of the suit
property; that in pursuance of the said agreement to sell, the appellant
had paid the entire sale consideration to the respondents, which sums
up to Rs.5,20,000/-; that the learned trial Court did not give due
credence to the documents and cash receipts produced by the appellant;
that the suit was contested only by respondent No.8 (Ali Anwar) whereas
rest of the respondents did not contest the suit; that the learned trial
Court had not decided the appellant’s application with respect to
handwriting expert; that the learned trial Court did not requisition the
record from the revenue authorities nor verified from Halqa Patwari in
order to ascertain the ownership of the suit land; that the impugned
judgment is not sustainable in the eye of law; that the learned trial
Court did not appreciate the appellant’s oral as well as documentary
evidence. Furthermore, it was contended that the learned Court below
did not resolve the substantial and controversial issue involved in the
matter; that the learned trial Court was under an obligation to give its
issue-wise findings separately. Finally, it was contended that the
impugned judgment and decree passed by the learned Court below
suffer from material irregularity. Learned counsel for the appellant
prayed for the present appeal to be allowed in terms of the relief sought
therein.
4. On the contrary, learned counsel for respondents No.1 to 14 has
vehemently opposed the present appeal by contending that no bargain
in respect of the suit land was ever struck between the appellant and
respondents No.1 to 14; that at no material stage, was any oral or
written agreement to sell executed between the appellant and
respondents No.1 to 14; that the suit of the appellant was not
proceedable under the provisions of the law governing the subject; that
the appellant had no cause of action to institute the said suit; that the
learned trial Court has rightly dismissed the appellant’s suit; that the
learned trial Court did not commit any illegality in dismissing the3 R.F.A. No. 47 of 2006
appellant’s suit; and that the judgment and decree passed by the
learned Court below do not suffer from any illegality calling for
interference by this Court. Learned counsel for respondents No.1 to 14
while supporting the impugned judgment and decree prayed for the
present appeal to be dismissed with costs.
5. I have heard the contentions of the learned counsel for the
contesting parties and have perused the record with their able
assistance. The facts necessitating the filing of this appeal have already
been discussed in paragraph No.02 above and need not be reiterated.
6. The record shows that on 17.09.1995, a purported sale agreement
bearing No.4421 (Exh.P/3) was executed between the appellant and
respondents No.1 and 5 in respect of the land bearing khasra No.259
(1956-57 bandobasti) situated in Mauza Jandala, Tehsil and District
Islamabad (hereinafter referred to as the “suit land”). A sale
consideration of Rs.5,000/- per kanal was agreed upon by the parties. It
is apt to mention that the said land is not only owned by respondents
No.1 and 5 rather it is a joint property having twelve other co-owners
including respondents No.1 and 5. The appellant asserts that out of
total 2857 kanals of land, he purchased 1122 kanals of land from the
predecessors in interest of Maqbool Khan and in this regard, he had
paid Rs.50,000/- as earnest money to respondents No.1 and 5 through
a receipt (Exh. P/1), whereas 5,20,000/- was paid through Fazil and at
the time of the said transaction, respondents No.1 and 5 were also
present. Perusal of the said receipt reflects that earlier the name of the
recipient had been typed as Zafar Mahmood, whereafter the word “Zafar”
had been cut off and was replaced by “Mahmood Ali”, who put his
signatures on the said document. Furthermore, there are two witnesses
to the said receipt, but the same has only been attested by one witness
i.e. Raja Muhammad Fazil. As per the version of the appellant, the
respondents are trying to sell the suit land to a third party thus
transgressing upon his legal rights. The appellant being aggrieved by the
inaction on the part of the respondents, instituted a suit for specific
performance of the said agreement to sell. The respondents contested
the said suit by filing a written statement. The stance taken by the
respondents was that they are the real owners of the suit land; that they
did not enter into a sale agreement with the appellant; that no oral or
written agreement was ever executed between the appellant and the4 R.F.A. No. 47 of 2006
respondents. Out of the divergent pleadings, the learned trial Court
framed the following issues:
i. Whether the plaintiff has no cause of action to file
this suit? OPD.
ii. Whether the plaintiff has come to the Court with
unclean hands ? OPD.
iii. Whether the suit is not proceed able under the law?
OPD.
iv. Whether the suit is false, frivolous baseless and as
such the defendants are entitled to special costs
U/S 35-A of CPC? OPD.
v. Whether the plaintiff has been estopped by his own
words and conduct to file this suit? OPD-15.
vi. Whether the suit is bad due to mis-joinder of
necessary parties? OPD.
Vii. Whether the plaintiff is entitled to decree for
specific performance, declaration and permanent
injunction as prayed for? OPP.
8. Relief.
7. The record further shows that the appellant appeared as PW-2 and
in his examination-in-chief, he deposed that at the time of the alleged
execution of the said agreement, only respondents No.1 and 5 were
present on the occasion. However, during the course of crossexamination, he deposed that
respondents No.1 and 5 had shown him
the power of attorney on behalf of the other co-owners authorizing the
formers to enter into an agreement to sell with the latter. The alleged
sale agreement has been tendered in evidence as Ex.P/3, which is said
to have been witnessed by Muhammad Fazil and Abdul Rahim. Out of
the said two witnesses, only Muhammad Fazil had appeared as PW-1
and produced in evidence the payment receipt (Exh.P/1). The said
agreement to sell (Exh.P/3) is an un-registered document and two
individuals are cited to be marginal witnesses of the said agreement.
Out of the two marginal witnesses, only one Muhammad Fazil s/o
Muhammad Yousaf appeared as PW-1. However, the second marginal
witness had not been produced. The respondents denied the execution
of the said agreement and also denied agreeing to sell the suit land.
Therefore, the said agreement was required to be proved as mandated by
Article 79 of the Qanoon-e-Shahadat Order, 1984. In case of denial of
execution of document, the party relying on such document must prove
its execution in accordance with the modes of proof as laid down in
Qanun-e-Shahadat Order, 1984 and the party is required to observe5 R.F.A. No. 47 of 2006
rule of production of best evidence. The execution of Exh.P/3 had not
been proved in accordance with Article 79 of the Qanoon-e-Shahadat
Order, 1984 (herein after referred to as the “the 1984 Order”). Article
79 of the 1984 Order provides that if a document is required by law to
be attested, it shall not be used as evidence unless at least two attesting
witnesses thereto have been called for the purpose of proving the
execution of the said document, if there be two attesting witnesses alive,
and subject to the process of the Court and capable of giving evidence.
8. Similarly, Article 17(2) (a) of the 1984 Order provides that in matters
pertaining to financial or future obligations, if reduced to writing, the
instrument/document shall be attested by two men or one man and two
women so that one may remind the other, if necessary, and evidence
shall be led accordingly. Article 79 of the 1984 Order reads thus:-
“79. Proof of execution of document required by law
to be attested: If a document is required by law to be
attested, it shall not be used as evidence until two
attesting witnesses at least have been called for the
purpose of proving its execution, if there be two
attesting witnesses alive, and subject to the process
of the Court and capable of given Evidence. Provided
that it shall not be necessary to call an attesting
witness in proof of the execution of any document,
not being a will, which has been registered in
accordance with the provisions of the Registration
Act, 1908 (XVI of 1908), unless its execution by the
person by whom it purports to have been executed is
specifically denied.”
9. Furthermore, the said agreement to sell is also not registered in
accordance with the provisions of the Registration Act, 1908. In the
case of Sheikh Muhammad Muneer versus Mst. Feezan (P L D 2021
Supreme Court 538), the Hon’ble Supreme Court of Pakistan has
inter-alia held as follows:-
“The question of the requisite number of witnesses
to prove the execution of a document and the role
of a scribe may also be considered from the
perspective of Article 17 of the Qanun-e-Shahadat,
which is reproduced hereunder:
Competence and number of witnesses. (1) The
competence of a person to testify, and the number
of witnesses required in any case shall be
determined in accordance with the injunctions of
Islam as laid down in the Holy Qur'an and6 R.F.A. No. 47 of 2006
Sunnah:
(2) Unless otherwise provided in any law relating
to the enforcement of Hudood or any other special
law, -
(a) in matters pertaining to financial or future
obligations, if reduced to writing, the instrument
shall be attested by two men or one man and
two women, so that one may remind the other, if
necessary, and evidence shall be led accordingly;
and
(b) in all other matters, the Court may accept, or act
on the testimony of one man or one woman or such
other evidence as the circumstances of the case
may warrant”.
10. Furthermore, it was held that “the agreement was in respect of
'matters pertaining to financial or future obligations' in terms of Article
17(2)(a) of the Qanun-e-Shahadat and required that such an agreement
to be attested 'by two men, or one man and two women, so that one may
remind the other'. However, only one attesting witness was produced. For
proving a document,t Article 17(1) of the Qanun-e-Shahadat states that,
'The competence of a person to testify, and the number of witnesses
required in any case shall be determined in accordance with the
injunctions of Islam as laid down in the Holy Quran and Sunnah.'”.
11. Additionally, in the case of Muhammad Qasim Tareen Versus
Abdul Karim Baryalai and 3 others (P L D 2021 Balochistan 116), it
was held as under:-
“Mere annexing document with the plaint does not
ipso facto the proof of execution of document
tendered in evidence without producing two
attesting witnesses would not stand. For proving
the document attesting witnesses have to be
compulsory examined as per requirement of
above referred to Article, otherwise such
document is not to be taken as proved. The
petitioner/ plaintiff was duty bound to prove
the sale deed in case of denial by the
respondent/ defendant. The petitioner/
plaintiff neither produced a single witness
nor any reason thereof for non-production of
attesting witnesses.
Reliance is placed on case Hafiz Tassaduq
Hussain v. Muhammad Din through Legal
Heirs PLD 2011 SC 241, wherein it was held:
"8. The command of the Article 79 is vividly
discernible which elucidates that in order to prove
an instrument which by law is required to be
attested, it has to be proved by two attesting7 R.F.A. No. 47 of 2006
witnesses, if they are alive and otherwise are not
incapacitated and are subject to the process of the
Court and capable of giving evidence. The
powerful expression "shall not be used as
evidence" until the requisite number of attesting
witnesses have been examined to prove its
execution is couched in the negative, which
depicts the clear and unquestionable intention of
the legislature, barring and placing a complete
prohibition for using in evidence any such
document, which is either not attested as
mandated by the law and/or if the required
number of attesting witnesses are not produced to
prove it. As the consequence of the failure in this
behalf are provided by the Article itself, therefore,
it is a mandatory provision of law and should be
given due effect by the Courts in letter and spirit.
The provisions of this Article are most
uncompromising, so long as there is an attesting
witness alive capable of giving evidence and
subject to the process of the Court, no document
which is required by law to be attested can be
used in evidence until such witness has been
called, the omission to call the requisite number of
attesting witnesses is fatal to the admissibility of
the document. See Sheikh Karimullah v. Gudar
Koeri and others (AIR 1925 Allahabad 56).
The purpose and object of the attestation of a
document by a certain number of witnesses and
its proof through them is also meant to eliminate
the possibility of fraud and purported attempt to
create and fabricate false evidence for the proof
thereof and for this the legislature in its wisdom
has established a class of documents which are
specified, inter alia, in Article 17 of the Order,
1984. (See Ram Samujh Singh v. Mst. Mainath
Kuer and others (AIR 1925 Oudh 737). The
resume of the above discussion leads us to an
irresistible conclusion that for the validity of the
instruments falling within Article 17 the
attestation as required therein is absolute and
imperative. And for the purpose of proof of such a
document, the attesting witnesses have to be
compulsorily examined as per the requirement of
Article 79, otherwise, it shall not be considered
and taken as proved and used in evidence. This is
in line with the principle that where the law
requires an act to be done in a particular manner,
it has to be done in that way and not otherwise."
12. Reliance is also placed on case Sheikh
Muhammad Muneer v. Mst. Feezan PLD 2021
SC 538. It was held therein:
"13. The learned Mr. Piracha says that prudence
dictated that the petitioner should not produce or
summon Muhammad Ali, who was an attesting8 R.F.A. No. 47 of 2006
witness, because he was the husband of the
respondent and it was apprehended that he will
deny witnessing his wife signing the said
agreement. Merely because a witness is related to
either party does not mean he/ she stops being a
witness nor that he/she should not be produced/
summoned as a witness. The above quoted verse
of the Holy Qur'an states that it is the religious
duty of a Muslim to come forward to testify when
called upon to do so. - 'The witnesses should not
refuse when they are called on' (for evidence). An
attesting witness remains a witness irrespective
of his or her relationship to the parties to an
agreement. If a witness does not agree to testify
he/she can be summoned through the court. In the
present case two attesting witnesses namely,
Muhammad Ali and Muhammad Nawaz, were not
produced nor compelled to give evidence by being
summoned through the court.
14. As regards the scribe he was not shown or
described as a witness in the said agreement,
therefore, he could not categorize as an attesting
witness. The cited verse of the Holy Qur'an
mentions three times the word scribe (Katib) and
five times the witness/es (Shahid) but does not
use these words interchangeably, instead
separately and distinctively. Therefore, a scribe
and a witness cannot be the same. In Tassaduq
Hussain v. Muhammad Din this Court
considered Article 17 of the Qanun-e-Shahadat
and held, that:
7. ---the provisions of Article 17(2)(a) encompasses
in its scope two fold objects (i) regarding the
validity of the instruments, meaning thereby, that
if it is not attested by the required number of
witnesses the instrument shall be invalid and
therefore if not admitted by the executant or
otherwise contested by him, it shall not be
enforceable in law (ii) it is relatable to the proof of
such instruments in terms of mandatory spirit of
Article 79 of The Order, 1984 when it is read with
the later. Because the said Article in very clear
terms prescribes "If a document is required by law
to be attested, it shall not be used as evidence
until two attesting witnesses at least have been
called for the purpose of proving its execution, if
there be two attesting witnesses alive and subject
to the process of the Court and capable of giving
evidence".
8. The command of the Article 79 is vividly
discernible which elucidates that in order to
prove an instrument which by law is required
to be attested, it has to be proved by two
attesting witnesses, if they are alive and
otherwise are not incapacitated and are9 R.F.A. No. 47 of 2006
subject to the process of the Court and
capable of giving evidence. The powerful
expression "shall not be used as evidence" until
the requisite number of attesting witnesses have
been examined to prove its execution is couched in
the negative, which depicts the clear and
unquestionable intention of the legislature, barring
and placing a complete prohibition for using in
evidence any such document, which is either not
attested as mandated by the law and/or if the
required number of attesting witnesses are not
produced to prove it. As the consequences of the
failure in this behalf are provided by the Article
itself, therefore, it is a mandatory provision of law
and should be given due effect by the Courts in
letter and spirit. The provisions of this Article are
most uncompromising, so long as there is an
attesting witness alive capable of giving evidence
and subject to the process of the Court, no
document which is required by law to be attested
can be used in evidence until such witness has
been called, the omission to call the requisite
number of attesting witnesses is fatal to the
admissibility of the document. See Sheikh
Karimullah v. Gudar Koeri and others (AIR
1925 Allahabad 56). The purpose and object of
the attestation of a document by a certain number
of witnesses and its proof through them is also
meant to eliminate the possibility of fraud and
purported attempt to create and fabricate false
evidence for the proof thereof and for this the
legislature in its wisdom has established a class
of documents which are specified, inter alia, in
Article 17 of the Order, 1984. (See Ram Samujh
Singh v. Mst. Mainath Kuer and others (AIR
1925 Oudh 737). The resume of the above
discussion leads us to an irresistible conclusion
that for the validity of the instruments falling
within Article 17 the attestation as required
therein is absolute and imperative. And for the
purpose of proof of such a document, the attesting
witnesses have to be compulsorily examined as
per the requirement of Article 79, otherwise, it
shall not be considered and taken as proved and
used in evidence. This is in line with the principle
that where the law requires an act to be done in a
particular manner, it has to be done in that way
and not otherwise.”
12. This Court in the case reported as 2021 CLC 2031 Islamabad has
held as follows:-
“Under section 17 of the Order an agreement
pertaining to financial or future obligations, if10 R.F.A. No. 47 of 2006
reduced to writing, must be attested by two men
and under section 79 of the Order such agreement
cannot be used as evidence until two attesting
witnesses have been called for the purpose of
proving its execution. The Agreement was not a
registered document and consequently the proviso
of section 79 is not relevant. It was held by the
august Supreme Court in Hafiz Tassaduq
Hussain v. Muhammad Din [PLD 2011 SC 241]
that even a scribe of the document could not be a
substitute for testimony of witnesses to such
document for purposes of Article 79 of the Order
even though he could be examined by a concerned
party for corroboration of evidence of marginal
witnesses, as when law required an act to be in a
particular manner and it had to be done in such
manner and not otherwise. In Farzand Ali and
another v. Khuda Bakhsh and others [PLD
2015 SC 187], the august Supreme Court held
that "an agreement to sell an immovable property
squarely falls within the purview of the provisions
of Article 17(2) of the Qanun-e-Shahadat Order,
1984 and has to be compulsorily attested by the
two witnesses and this is sine qua non for the
validity of the agreement. For purposes of proof of
such agreement it is mandatory that two attesting
witnesses must be examined by the party to the lis
as per Article 79 of the Order". In Muhammad
Iqbal Khan v. Mst. Farhat Nisa [PLD 2017
Lahore 727], the learned Lahore High Court held
that Article 79 of the Order does not envisage
admission of execution of a document by
implication in relation to a defendant who is not
before the court and has made no statement with
regard to the validity and execution of such
document and that a court can make no
assumption regarding the execution of the
document only because the defendant if not before
the court and has not controverted assertions in
the plaint.
12. In view of the provisions of the Order and
settled principles of law, the appellants have
failed to establish the execution of the Agreement
to the extent of respondent No.8 or that
respondent No.8 owes any legal obligation to the
appellants the performance of which should have
been ordered by the learned trial court”.
13. Law to the said effect has also been laid down in the judgments
reported as 2020 SCMR 197 Supreme Court, 2021 CLC 54 Karachi
and 2020 CLC 756 Peshawar. 11 R.F.A. No. 47 of 2006
14. In view of what has been discussed above, the impugned judgment
and decree dated 10.06.2005 having been based on sound reasons, do not
call for any interference by this Court, the instant appeal stands
dismissed with no order as to costs.
(ARBAB MUHAMMAD TAHIR)
JUDGE

Case Law # (04)

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 370 of 2020

Appellant :

Naseeb-ur-Rehman through M/s.

Burhan Latif Khaisori and Muhammad

Asghar Malik, Advocates

Respondent :

The State through Mr. Siraj Ali Khan Chandio, Addl. P.G

Date of hearing :

15.02.2021

Date of decision :

15.02.2021

JUDGMENT

SALAHUDDIN PANHWAR J.- Naseebur Rehman appellant/accused

Was tried by learned VIII-Additional District & Sessions Judge/Addl. Model Criminal Trial Court,
Karachi West in Sessions Case No.1634 of 2016 arising out of FIR No.178/2016, under sections 302,
PPC, PS Organi Town Karachi. After full-dressed trial, vide judgment dated 21.07.2020, appellant
was convicted under Section 302(b) PPC and sentenced for imprisonment for life as Ta’zir. Appellant
was ordered to pay compensation of Rs.5,00,000/- (Five Lacs) under Section 544-A Cr.P.C to the
legal heirs of the deceased. In case of default in payment of compensation to suffer S.I. of six months
more. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Relevant facts of the prosecution case are that on 14.05.2016 at 1535 hours, ASI Rizwan
Ahmed received information on 15 Madadgar that at Kali Pahari one person murdered his step
mother. ASI went to the place of incident where he was informed that accused Naseeb-ur-Rehman
had caused injuries to his step mother Mst. Shaheen and injured was shifted to the Abbasi Shaheed
Hospital by people. ASI went to the hospital where he came to know that injured succumbed to her
injuries. He inspected the dead body of deceased and prepared memo and inquest report.

Thereafter, ASI went to the place of incident and came to know that accused Naseeb-ur-Rehman was
arrested by police and taken away to PS. ASI went to PS and lodged such FIR under Section 302
PPC. Thereafter, ASI arrested the accused in presence of mashirs and prepared such memo. He
inspected the site, secured a piece of plastic and one brown color chadar and handkerchief of accused.
On the pointation of accused, I.O also recovered scissor and danda, which were used in the
commission of offence. I.O received positive report of chemical examiner. After completing the
investigation, challan was submitted against accused under Section 302 PPC.

3. After usual investigation, challan was submitted and accused were sent up to face the trial

4. Charge was framed to which accused did not plead guilty and claimed to be tried.

5. In order to prove its case, prosecution examined PW-1 ASI Rizwan as Ex.3, PW-2 PC Naseem
Baig as Ex.4, PW-3 SIP Muhammad Bashir Jut as Ex.6, PW-4 Imran Ahmed as Ex.7, PW-5 Naveed
as Ex.08, PW-10 Dr. Rubina Hassan (WMLO) as Ex.10, PW-7 Zar Ali as Ex.11, PW-8 Mst. Shabana
as Ex.12, PW-9 Nadir Khan as Ex.13, PW-1 PC Vingus as Ex.14, W-01 Inspector Gulzar Ahmed as
Ex. 15. PW-16 Inspector Gulzar Ahmed as Ex.16. Thereafter, prosecution side was closed vide
statement at Ex.17.

6. Statement of appellant/accused under section 342, Cr.P.C. was recorded wherein he denied the
allegations leveled against him by the prosecution. He neithered examined himself on Oath under
Section 340(2) Cr.P.C nor adduced any evidence in his defence.

7. Thereafter, learned trial Court after hearing the learned counsel for respective parties, convicted
and sentenced appellant as mentioned above. Appellant being aggrieved and dissatisfied with the
judgment has filed the aforesaid appeal.

8. The evidence produced before the Trial Court finds an elaborate mention in the judgment dated
21.07.2020 passed by the Trial Court and therefore, the same may not be reproduced here so as to
avoid duplication and unnecessary repetition.

9. Learned counsel for the appellant, inter alia, has contended that the case of the prosecution is
fraught with material contradictions; that no recovery has been effected on the pointation of appellant
and the alleged crime weapons have been foisted upon him; that even postmortem was not conducted;
that there is delay in sending crime weapon to FSL; that doctor in cross examination has admitted that
such type of injuries can be caused by road accident; that though there were several persons were
available at the time of alleged incident but prosecution has produced the evidence of a single eye
witness, thus, on solitary eye witness conviction cannot be based unless corroborated by evidence of
other independent persons; that prosecution has failed to make a case against the appellant. Lastly, he
prayed for acquittal of the appellant. In support of his contentions he relied upon case law reported as
2010 SCMR 846, 2010 P.Cr.L J 1646, 2018 SCMR 772, PLJ 2019 SC (Cr.C) 265 and 2020 P.CrL.J.
Note 129.
10. Conversely, learned Additional Prosecutor General Sindh argued that prosecution has proved
charge against accused beyond any shadow of reasonable doubt; all the PWs have supported the
prosecution case; that evidence of eye witness Mst. Shabana is natural and confidence inspiring; that
the ocular evidence is corroborated by the medical evidence coupled with recovery of the crime
weapons. He further submitted that trial Court has already taken lenient view in the sentence of the
appellant therefore, appellant does not deserve any leniency; that non-examination of postmortem is
immaterial. He lastly prayed for dismissal of the instant appeal. In support of his contentions he has
relied upon case law reported as Abdur Rehman vs. The State [1998 SCMR 1778].

11. Heard and perused record.

12. Firstly, I discuss medical evidence. In order to prove unnatural death of deceased Mst.
Shaheen, the prosecution examined PW-1 Dr.

Rohina Hassan (Senior Medical Legal Officer), who deposed that “On 145-2016, I was posted as Sr.
WMLO at Abbasi Shaheed hospital. On that day injured Shaheen wife of Bakhati Rehman aged about
45 years was brought by Cheepa ambulance driver Nisar, She was unstable condition. The
injuressustained on her body were sharp edge as follows.

Her genial condition was semi conscious, her condition was serious with GCS level 9/15.

1. Incise wound 3 cm x 0.1 cm over left side of forehead. Skin deep.

2. Incise wound 3 cm x 4 cm left angle of the mouth, angel cut into two

Pieces.

3. Incise wound 3 cm x 0.1 cm over left side face standing towards left ear structure was deep.
Profuse bleeding noted.
 4. Swelling on right hand, tenderness was positive. The injuries were reserved of X-ray and
treatment record. Patient expired after half an hour of medical treatment. The injuries were
fresh and kind of weapon was sharp edge.”

The cause of death was opined as cardio respiratory paly trama (cause of Assault as alleged)

It is clear from medical evidence that deceased Mst. Shaheen died her unnatural death.

13. An affirmative answer to a question regarding death of the deceased to be unnatural or

otherwise shall burden the prosecution to establish only that it were the sent up accused only who
caused unnatural death. I would further add that in matter (s) of single culprit / accused in murder
case (s) the presumption of charge normally carries weight unless proved otherwise or the witnesses
are shown to be inimical and interested. The ‘interested witness’ is one, who has motive to falsely
implicate or has previous enmity with the person, involved. Reference is made to the case of Farooq
Khan v. The State 2008 SCMR 917 as:-

11. PW.8 complainant is real brother of the deceased who is a natural witness but not an interested
witness. An interested witness is one, who has motive, falsely implicates an accused or has previous
enmity with the person involved. There is a rule that the statement of an interested witness can be
taken into consideration for corroboration and mere relationship with the deceased is not “sufficient’
to discredit the witness particularly when there is no motive to falsely involve the accused. The
principles for accepting the testimony of interested witness are set out in Nazir v. The State PLD 1962
SC 269 and Sheruddin v. Allhaj Rakhio 1989 SCMR 1461.

14. In the instant matter, the convict is charged to have killed his ‘stepmother’ inside the house
hence logically the house-inmate (s) and neigbourers are most natural witnesses. On undisputed
unnatural death of the deceased, it is now the ‘ocular account’ which is to be examined as to whether
the same is convincing and believable or otherwise?. The ocular account was furnished by star
witness Mst. Shabana (PW-08), neighbor of deceased, deposed that:

“The deceased of this case was my neighbor. On 14-5-2016 at about 2:45 p.m. sister of accused
namely Asma came out of her house by raising hue and cry on which me and other women came out
our houses and went inside the house of deceased saw (accused) brother of Asma was beating his
mother with Danda on her; when we tried to stop the accused who also threatened us to get out
otherwise, he will also kill us. I came out and called on 15 Madadgar. Police came there, meanwhile
¾ boys of mohalla apprehended the accused and brought him outside the house where they tied him
with a poll. Thereafter, police took the accused whereas deceased shifted to the hospital but in the
way she expired. My statement under Section 161 Cr.P.C was recorded by the police. Accused
Naseebullah present in Court is same.

15. Prima facie, there came nothing sufficient enough to discard the claim of said witness as
‘neighbour’ except mere suggestion which, alone, can’t be taken as a proof. She, being a neighbour, is
a natural witness hence her direct testimony, if finding support from medical and other corroborative
evidence (s), was rightly given due weight. Guidance is taken from the case of Nadeem Ramzan v.
State 2018 SCMR 149 wherein it is held as:-

3. A bare look at the site-plan of the place of occurrence shows that the incident in issue had taken
place inside the house of the complainant party in a thickly populated area. The occurrence had taken
place in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude
wherein the appellant was nominated as the sole perpetrator of the alleged murder. The ocular
account of the incident in question had been furnished before the trial court by two eye-witnesses
namely Zubair Iqbal complainant (PW7) and Muhammad Ramzan (PW8) who were the husband and
a brother-in-law of the deceased who resided in the same house with the deceased. The said
eyewitnesses were inmates of the houses wherein the occurrence had taken place and, thus, were
nothing but natural witnesses. The record of the case shows that the present appellant was also closely
related to the above mentioned eye-witnesses as well as to the deceased and, thus, the case in hand
could not be a case of a mistaken identity. The consistent ocular account furnished by the above
mentioned eye witness had received full support from the medical evidence inasmuch the date and
time of occurrence, the weapon used and the locale of the injuries stated by the eye-witnesses had all
been confirmed by the medical evidence..

Though defence counsel cross examined her at length but nothing favourable to the accused could be
brought on record. However, she denied that she was not eye witness and she was deposing falsely.
The evidence of Mst. Shabana is natural and confidence inspiring. She was neighbor of the deceased
and defence has failed to bring on record anything to suggest that P.W Shabana was not residing in
the neighbourhood of the deceased and that she has an enmity against the convict/ appellant to falsely
implicate the convict / appellant. The evidence of above star-witness does find support from evidence
(s) of Nadir Khan as well PW SIP Muhammad Bashir with regard to his presence at spot as well
arrest; there is also recovery which further has advanced the case against the appellant / convict.

16. Nadir Khan P.W has deposed that on 14-05-2016, he was coming at home from his job for
taking meal. In the way, he saw a little baby who was crying and saying that her brother was beating
her mother and she was asking for help. He further deposed that when he reached at her house, he
saw so many people were also gathered and holding accused. He saw injured mother of said girl who
was being shifted in ambulance.

In his cross-examination he denied the suggestion that he was deposing falsely.

17. PW-3 SIP Muhammad Bashir after receiving information of incident, went to the place of
incident and found that people were beating a person who was saved by him. People informed him
that accused had caused scissor and danda blows to his own mother who was shifted to Abbasi
Shaheed Hospital in injured condition. Accused produced scissor and danda, which were sealed at the
spot and such memo was prepared in presence of mashirs.

18. In this case I have found the evidence of eye witness Mst. Shabana confidence inspiring and
trustworthy and her presence being neighbor at the time of incident was not disputed. It is observed
that in such like criminal cases, the whole fate depends on the authenticity of the ocular account and
in the instant case, Mst. Shabana has given a straightforward account of the occurrence which took
place in a daytime. Furthermore, it is not expected from an independent person/ neighbor of the
deceased to involve appellant falsely and let the real culprit to go scot-free. During her statement
before the learned trial court, she remained stuck to her statement and she firmly and successfully
faced rigor of cross-examination made by the defence. P.W Mst. Shabana is sufficiently reliable
witness and her evidence cannot be discredited in any manner as she remained firm during the
crossexamination after making a straightforward and crystal clear statement against the appellant
having no malice prior to the occurrence against him which is fully trustworthy, cogent and
confidence inspiring. There are neither any glaring contradictions in her statement nor any dishonest
exaggeration, omission or concealment could be found. Further her evidence is corroborated by the
medical evidence as well as recovery of crime weapons on the pointation of appellant.

19. I would add that once the prosecution discharges initial burden then the accused, if takes a
special plea in his defence, then it is him to prove the same or least possibility of his defence plea
being true.

Reference is made to the case of Muhammad Mumtaz Qadri v. State PLD 2016 SC 17 wherein at
relevant Page-35 it is observed as:-

“Grave and sudden provocation offered by a victim to the assailant is surely one of the exceptions
within the contemplation of the above mentioned Article 121 which exception was previously
recognized by Exception No.1 to the erstwhile section 300, PPC and is now covered by the provisions
of section 302(c), PPC. The law is quite settled by now that if an accused person wants the court to
believe that some words or actions of the victim had provided him and on the basis of such
provocation he had killed the victim then in all such cases the court is to presume the absence of the
circumstances being asserted by the accused person in support of his plea and it is for the accused to
prove through positive and legally admissible evident that some provocation was actually offered to
him by the victim and such provocation was grave and sudden. …”

20. The perusal of the record shows that that the evidence (s) of PW Shabana and Nadir Khan did
contain referral to house inmate (s) of the appellant / convict i.e his own sister and brother whose
presence at spot was never challenged therefore if said witnesses were not speaking the truth then it
was always easy for the appellant / convict to have brought his own blood-relations (brother and
sister) before the Court to prove otherwise which he (appellant / convict) never opted. The legal
presumption in such a situation would be against the appellant / convict within permissible meaning
of Article 129(g) of Qanun-e-Shahadat Order, 1984.

21. As regard non-examination of other claimed present person (s), it would suffice to say that it is
always prerogative of the prosecution to choose witnesses as well examination of material witnesses
out of them because the defence always enjoys full right and opportunity to call / name anybody, if
finds necessary for bringing the truth on surface. I am guided in such view with the case of Farman
Ali v. The State & another 2020 SCMR 597 wherein it is held as:-

“4. …. Non-examination of Jamshed PW is not fatal to the prosecution because it is prerogative of

prosecution to produce the witnesses of its own choice. In the case prosecution had produced two
witnesses of ocular account, who had been found reliable by the Courts below. Even otherwise, the
requirement for proving the case is quality and not quantity.”

22. With regard to conviction on the evidence of solitary eye witness, by now, it is settled
proposition of law that the conviction can be based upon the statement of even a solitary witness if it
inspires confidence and carries unimpeachable character. Reliance is placed in a case reported as
Muhammad Mansha v. The State (2001 SCMR 199) wherein, at page 204, it was enunciated as
under:-

“6. …The question as formulated hereinabove as to whether conviction could have been awarded on
the basis of solitary statement of a witness has been examined at first instance in the light of Article
17 of the Qanun-e-Shahadat Order, 1984, (section 134 of the Evidence Act, 1872). The said Article is
reproduced herein below for ready reference:--
“17. Competence and number of witnesses.---(1) The competence of a person to testify and the
number of witnesses required in any case shall be determined in accordance with the Injunctions of
Islam as laid down in the Holy Qur’an and Sunnah.

(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special
law—

(a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument
shall be attested by two men, or one man and two women, so that one may remind the other, if
necessary, and evidence

Shall be led accordingly; and

(b) In all other matters, the Court may accept, or act on, the testimony of one man or one woman,
or such other evidence as the

Circumstances of the case may warrant.”

7. A bare perusal would reveal that the language as employed in the said Article 17(1)(b) is free from
any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove
of the said Article would make it abundant clear that particular number of witnesses shall not be
required for the proof of any fact meaning thereby that a fact can be proved only by a single witness
“it is not seldom that a crime has been committed in the presence of only one witness, leaving aside
those cases which are not of uncommon occurrence, where determination of guilt depends entirely on
circumstantial evidence. If the Legislature were to insist upon plurality witnesses, case where the
testimony of a single witness only could be available in proof of the crime, would go unpunished. It is
here that the discretion of Presiding Judge comes into play. The matter thus must depend upon the
circumstances of each case and the quality of the evidence of the single witness whose testimony has
to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable,
there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt
of an accused person may be proved by the testimony of a single witness, the innocence of an accused
person may be established on the testimony of a single witness, even though considerable number of
witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is
concerned with the quality and not with the quantity of the evidence necessary for proving or
disproving a fact”. (Principles and Digest of the Law of Evidence by M. Monir, page 1458).”

23. I am further fortified by another pronouncement of the Hon’ble Supreme Court of Pakistan in
the case of Niaz-ud-Din and another v. The State and another (2011 SCMR 725) wherein, the Hon’ble
Supreme Court was pleased to observe as under:

“11. …There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC
225) that “even in a murder case conviction can be based on the testimony of a single witness, if the
Court is satisfied that he is reliable.” The reason being that it is the quality of evidence and not the

Quantity which matters…”

24. With regard to the plea of learned counsel for the appellant that in this case postmortem was
not conducted, hence, appellant is entitled for acquittal, suffice to say that mere non-examination of
postmortem can’t be sole ground for acquittal. Reference can be made to the case ABDUR REHMAN
vs. THE STATE [1998 SCMR 1778], relevant paragraph whereof are reproduced as under.

15. It may be seen that case-law relied upon by learned counsel for parties has been discussed above.
We have thoroughly compared and scrutinized the ratio decidendi in afore-quoted reported judgments
and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct
post mortem would demolish the prosecution case. Obviously there would be numerous situations
when post-mortem may not even be conducted. In various parts of the country on account of long-
standing customs and established traditions tribesmen do not allow post-mortem of the deceased.
Thus, keeping in view all the relevant factors and law, we are pursuaded to hold that in cases where
prosecution through convincing evidence can establish that death was immediate, proximate and
direct cause of injuries sustained without being any element of negligence or other intervention, the
non-performance of post mortem would not be fatal.

25. For what has been discussed above, I have come to irresistible conclusion that the learned trial
Court passed the well-reasoned judgment which does not require any interference by this Court.
Consequently, this appeal is dismissed and the conviction and sentence awarded to him by the learned
trial court are maintained. These are the reasons for the short order announced on 15.02.2021.
JUDGE
SAJID

Case Law # (05)

IN THE PESHAWAR HIGH COURT,

BANNU BENCH
(Judicial Department) Cr.R No.60-B /2023.

Umer Farooq
-vsThe State & another.

JUDGEMENT/ORDER.

Date of hearing26.10.2023

Petitioner(s) by: Mr. Qaid Ullah Khan Khattak, Advocate.

For State: Mr. Habib Ullah Khan, AAG.

Respondent (s) by: Mr. Masood Iqbal Khattak, Advocate.

FAZAL SUBHAN J.--- The Instant revision petition under section 439 of the Criminal Procedure Cod read with 561-A Cr.P.C is

filed by the petitioner against the order dated

19.9.2023, passed by the learned Additional Sessions Judge, Banda Daud Shah vide which application of the respondent was

allowed and PW Saad Ullah Khan was re-summoned under section 540 Cr.P.C.

2. Relevant facts of the case are that case FIR No. 114 dated 07.6.2022 under sections 302/324/449/34 PPC of police station

Teri District Karak was registered by the respondent Zafar Ali Khan in respect of the murder of deceased Mst. Bibi Sakina, wife

and Mst. Sadaf, daughter of Muhammad Yousaf, against Zeeshan and Farooq sons of Mumtaz Khan, residents of Kot Banda.

After necessary investigation in the case challan was submitted and after observing legal formalities trial in the case

commenced. On 05.9.2023 statement of PW-I I Saad Ullah was recorded, who was identifier of the dead bodies of the 2

deceased. After recording his statement in respect of the identification of both the dead bodies before the police as well as

before the doctor at THQ Hospital Banda Daud Shah, his cross-examination was conducted and the prosecution abandoned the
other witness Muhammad Naeem and closed its evidence. On the same date the complainant filed an application for declaring

PW Saad Ullah as hostile witness on the ground that he has deposed against the facts of the case during crossexamination and

has extended concession to the respondent Umer Farooq, hence the said witness may be declared hostile and complainant be

allowed to cross-examine him. The learned trial Court after hearing arguments through impugned order dated 19.9.2023,

declared PW Saad Ullah as hostile witness and issued summon to him for cross-examination by the prosecution. Aggrieved from

the said order the petitioner has challenged the same before this Court.

3. Arguments of learned counsel for petitioner and that of learned counsel for respondent assisted by leaned AAG for the

State heard and record gone through.

4. From the record it is clear that PW Saad Ullah was only identifier of the dead bodies of the 2 deceased named above and

his examination-in-chief reveals that he has supported the prosecution case and deposed the same facts of identification of the

dead bodies in his examination-in-chief. After completion of the examination-in-chief the defence had all the rights to put any

question to the witness and in that way the witness is bound to answer the question put to him. Article 150 of the Qanun-e-

Shahadat Order, 1984 (Order) relates to the matter pertaining to the putting of question by a party to his own witness but the right

to cross-examine a witness by the party who called the said witness for evidence would only apply when the witness deposed

inconsistently in his statement/ examination-in-chief, however, when the witness has not stated against the prosecution version

and his cross-examination is completed then the only right available to the prosecution was to re-examine the witness under

Article 132(3) of the said order, however, in the instant case the prosecution seems to be satisfied with the statement

as well as cross-examination and has not availed the opportunity of re-examining the witness and even closed its evidence by

abandoning the last witness namely Muhammad Naeem. Though under section 540 Cr.P.C the Court has the ample powers to

summon any person as a witness, examine any person in attendance though not summoned as a witness or recall and re-examine

any person already examined, if his evidence appears to be essential for just decision of the case, however, in the instant case PW

Saad Ullah has not deposed against the interest of the prosecution in his statement and after recording his cross-examination and

closing of evidence by the prosecution a valid and legal right has accrued to the petitioner which cannot be taken away on the

mere assertion that the witness has given certain answers during cross-examination or extended concessions to the accused. PWI

I Saad Ullah is not a material witness of the case and has only identified the dead bodies of the deceased and, therefore, his

statement has no direct bearing on the final result of the case. In fact the respondent has also not shown any cogent or convincing

reason for recalling the witness on the ground of being hostile to his stance/version and hence in the absence of any solid reason
prosecution cannot be allowed to impeach his credibility by declaring as hostile witness. In the case of Chairman NAB-Vs-

Muhammad Usman and others reported in PLD 2018 Supreme Court 28, the august Court has held

that:-

"The discretion so vested in the Trial Court ordinarily cannot be questioned and that too in extraordinary
constitutional jurisdiction unless it is shown and established that exercise of such powers by the Trial Court or
by not exercising the same, has resulted into a grave miscarriage of justice, therefore, calling the witness of
the other party as its own witness, even in criminal trials, already examined, is not acknowledged by the law
on the subject, therefore, it is neither desirable nor such a practice can be approved. In exceptional cases,
where material witness has been dropped by the prosecution in the circumstances discussed above, the Court
may exercise powers with due care and caution. However, in that case too, the prosecution witness/witnesses
cannot be examined as defence witnesses but court witness/witnesses and for that, a written request is made
to the Court showing cogent and convincing reasons for calling and examining any witness of the
prosecution, not examined or has already been examined to be re-examined as court witness."

Similarly, this Court in the case of Faisal Khan-Vs-the State reported in

in para

"Therefore, the law is very clear and straightforward on the subject that a witness of prosecution can be
declared hostile only when he in examination-in-chief does not support the prosecution case and record a
statement contrary to his earlier statement recorded before the police under section 161, Cr.P.C. which is not a
case in hand. In the present case, the statement of Muhammad Shareef was recorded on 02.10.2021 and the
application to the Court was filed on 27.11.2021 after 33 days when he has left the dock as well as the Court.
Thus, the request of the prosecution for declaring him a hostile witness was contrary to the established law on
the subject which has been referred above. Hence, the Trial Court has erred by allowing the said request
through the impugned order."

Reliance in this respect can also be placed on the case law reported in 2021 P.Cr.L.J Lahroe 1026 2022 P.Cr.L.J

Peshawar 1472 and PLD 2023 Peshawar 133.

5. Thus in the light of the facts and circumstances of the present case and while relying on the aforesaid judgments, it is held that

once a witness has recorded his examination-inchief and no objection on the said statement is raised by the prosecution nor any

request for declaring the witness as hostile to his interest was made and the defence thereafter completed its cross-examination on

the witness and has succeeded in impeaching his credibility then the said witness cannot be declared hostile. In this view of the

matter it is held that the impugned order is not legally correct, hence is not sustainable in the eyes of law. Resultantly this

criminal revision is accepted and the impugned order dated 19.9.2023 is hereby set aside.

Announced.
26.10.2023
lhsan
 JUDGE
lhsan (S.B) Hon'blle Mr. Justice Fazal Subhan.

2012 P.Cr.R. 545

2012 P.Cr.R. 545

Case Law # (06)

 2012 P.Cr.R. 545
[Lahore]
Present: MANZOOR AHMAD MALIK and MALIK SHAHZAD AHMAD
KHAN, JJ. The State
Versus
Muhammad Boota
Murder Reference No. 778 of 2006, decided on 19th January, 2012.
CONCLUSION
(1) No age limit of a child witness is prescribed. 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) Criminal Procedure Code (V of 1898)---
---S. 410---Pakistan Penal Code, 1860, Ss. 302/34---Murder---Non-proof of motive---
Mitigation of sentence---Held: Prosecution had alleged a specific motive in F.I.R. but
same was not proved during trial---Co-accused had been acquitted by Trial Court by
extending benefit of doubt and the same had attained finality---It was not determinable
in instant case as to how occurrence had started and what had actually happened
between deceased woman and convict-appellant immediately before occurrence which
had resulted into death of the said deceased---Impugned sentence of death was
converted into life imprisonment---Sentence reduced.
(Para 19)
Ref. 2001 SCMR 593.
(b) Child Witness---
---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. (Para 14)
(c) Qanun-e-Shahadat Order (P.O. 10 of 1984)---
---Art. 3---Child witness---Competency---Age limit---Held: No age limit of a witness has
been prescribed under the said provision---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---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.
(Para 14)
Ref. 2009 SCMR 1428, 2006 PSC Crl. (SC Pak.) 193 = 2007 SCMR 1247, 1997 SCMR
1595.
 
 
[In instant case motive of murder could not be proved. Impugned death sentence was
converted into life imprisonment].
For the Convict: Maqbool Ahmad Qureshi and Ijaz Bajwa, Advocates/Defence
counsel.
For the State: Chaudhary Muhammad Mustafa, Deputy Prosecutor-General.
For the Complainant: Chaudhary Riaz Ahmad Kataria, Advocate.
Date of hearing: 19th January, 2012.
JUDGMENT
MALIK SHAHZAD AHMAD KHAN, J. --- Muhammad Boota, convict
his co-accused
alongwithMuhammad Sharif was tried by the learned Additional Sessions Judge,
Ferozewala, District Sheikhupura, in case F.I.R. No. 140, dated 02.03.2005, 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.l.
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. (Ex.PB/1) which was
recorded on the basis of complaint (Ex.PB) made by the complainant namely, Nawab
Ali (PW.4), are that on the fateful day of occurrence, he (the complainant) alongwith
Manzoor Hussain (PW.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
came 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 PWs 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 alongwith PWs 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 its case examined as many as 9 PWs and also
tendered documentary evidence. The ocular account of occurrence was furnished by
Mst. Gul Bano PW-7 whereas circumstantial evidence was rendered by Nawab Ali PW-
4 and Manzoor Hussain PW-5.
(PW.9) Lady Doctor Nuzhat Aziz, on 02.03.2005, at 06:15 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 1½ 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 post-mortem
was 12 hours.
(PW.8) Umar Saeed, Sub-Inspector is the Investigating Officer of this case, who
completed the investigation and submitted the challan.
PW.1 Abdul Aziz C-712, PW.2 Muhammad Nawaz, S.I., PW.3 Rabnawaz Shah,
Draftsman, PW.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 PWs 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. PWs 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 (PW.4) is not an eye-witness of the incidence; that the
statements of the complainant and the other witness Manzoor Hussain (PW.5) is only to
the extent of information provided by Gull Bano (PW.7) to the effect that her mother is
being strangulated; that Manzoor Hussain (PW.5) had allegedly seen the accused
running from the distance of 2 acres; that only material statement is of Gull Bano, who
appeared before the Trial Court as PW.7 and she made a lot of dishonest
improvements in her statement and moreover she is so young; that Gull Bano (PW.7)
was a minor girl at the time of occurrence and her statement is not worthy of
consideration; that admittedly PW.7 is under the influence of her maternal grand-father;
that the statement of Mst. Gull Bano (PW.7) under Section 161 of Cr.P.C. was recorded
by the Investigating Officer on 26.07.2005, whereas, the occurrence took place on
02.03.2005, therefore, the delay in recording her statement has made her statement
doubtful; that the learned Trial Court has fallen into error by not putting the questions to
the witness in writing form; that the complainant (PW.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 (PW.4) are true, because had there been any enmity with the convict, he
could have claimed himself to be an eye-witness; that Gull Bano (PW.7) is a natural
witness as she is resident of the same house, where this incident took place; that PW.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 PW.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. (Ex.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 02.03.2005, at 11:00 a.m. The
F.I.R. (Ex.PB/1) was lodged on the same day at 1:05 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 (PW.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 (PW.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 (PW.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 (PW-4) and Manzoor Hussain (PW-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 (PW.9), who
conducted the post-mortem examination on the dead-body of Mst. Abida Parveen
(deceased) through post-mortem report (Ex.PK) and pictorial diagram (Ex.PK/2). The
post-mortem of Mst. Abida Parveen (deceased) was conducted on 02.03.2005, at 06:15
p.m., and the following injury was found on her person:---
(1) 22 x 1½ 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 (PW.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 (PW.7) was supported by the medical
evidence furnished by Lady Doctor Nuzhat Aziz (PW.9). The case of the prosecution
was further corroborated by the circumstantial evidence rendered by the complainant
Nawab Ali (PW.4) and Manzoor Hussain (PW.5). The complainant Nawab Ali (PW.4) is
father of Mst. Abida Parveen (deceased) and maternal grand-father of Gull Bano
(PW.7). He was present at his house, when he was informed about the occurrence by
Gull Bano (PW.7). He alongwith Manzoor Hussain (PW.5) and Sadiq (given up PW)
rushed towards the house of occurrence. They saw the convict Muhammad Boota and
co-accused Muhammad Sharif 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 (PW.4) and Manzoor Hussain (PW.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 (PW.4) and Gull
Bano (PW.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 earlier,
Gull Bano (PW.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
grand-father (PW.4). There is no reason for the complainant Nawab Ali (PW.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 (PW.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. (Ex.PB/1), which was promptly lodged on the
same day within 2 hours 5 minutes, from the occurrence. Gull Bano (PW.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
(PW.7) was minor at the time of occurrence, therefore, her statement may be brushed
aside of consideration, is misconceived. The age of Gull Bano (PW.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 (PW.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-e-
Shahadat Order, 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'bIe Supreme Court of Pakistan in the case of "Mst. Razia alias JIA v. The
State" (2009 SCMR 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
PW3 and Naheed Akhtar PW4 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 SCMR 1595) the judgments of
conviction and sentence of the accused which were recorded on the basis of child
witnesses of the age of 5½ and 6 years respectively, were upheld by the Hon‟bIe
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 (PW-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 PW-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 P.Cr.L.J. 41), while discussing the above preposition 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 P.Cr.L.J. 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 of Qadeer Hussain v. The State through
Advocate General, Azad Jammu and Kashmir Government, Muzaffarabad (1995
P.Cr.L.J. 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 (PW.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 (PW.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.
(Ex.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 (PW.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. (Ex.PB/1) was not stated by the
complainant Nawab Ali (PW.4), Manzoor Hussain (PW.5) and Gull Bano (PW.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 (PW.7) and circumstantial
evidence given by Nawab Ali (PW.4) and Manzoor Hussain (PW.5). The ocular account
and circumstantial evidence of the prosecution witnesses was fully supported by the
medical evidence of Lady Doctor Nuzhat Aziz (PW.9), as well as; by post-mortem report
(Ex.PK) and pictorial diagram (Ex.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 (PW.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. (Ex.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'bIe Supreme Court of
Pakistan reported in the case of Ahmad Nawaz and another v. The State (2011 SCMR
593), wherein, at page 604, the Hon'ble apex 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 Iftikhar-ul-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. attracts only in the cases of Qatl-i-Amd
liable to Qisas under Section 302(a), P.P.C. and not in the cases in which
sentence for Qatl-i-Amd has been awarded as Tazir under Section 302(b), P.P.C.
The difference of punishment for Qatl-i-Amd as Qisas and Tazir provided under
Section 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-i-Amd provided wider 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 principals 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.