' SYED SAJJAD HUSSAIN SHAH, J.-This appeal is directed against the judgment dated 3-12-2003 passed by the learned Additional Sessions Judge, Lahore in a case F.I.R. No,366 of 2002 under Sections 302/392, P.P.C. Registered at Police Station Baghbanpura, Lahore. Appellant Abdul Qadeer was convicted under section 302(b), P.P.C. And sentenced to life imprisonment on two counts. He was also convicted under section 392, P.P.C. And sentenced to seven years rigorous imprisonment with fine of Rs,5000, in default whereof to undergo simple imprisonment for two months. He was also ordered to pay an amount of Rs,50,000 to the legal heirs of each deceased as required under section 544-A, Cr.P.C. All the sentences were ordered to run concurrently with benefit of section 382-B,. Cr.P.C.
2. The case of the prosecution is that the daughter of complainant Muhammad Nazir, namely Mst.
Asia Bibi was married with his sister's son namely Muhammad Jehangir about 18/19 years prior to the occurrence and out of the said wedlock two sons and two daughters were bom. Muhammad Jehangir proceeded to Saudi Arabia. On 9-6-2002 at about 10-30 night complainant's maternal son informed him telephonically that the doors of his house were closed and mother was not traceable when he returned from tuition at 6-00 p.m. The complainant when reached at the spot with his wife Mst. Razia Begum and son Qadeer found the dead body of his daughter Mst. Asia Bibi and Faizan in separate rooms and their belongings from the Attache case were found scattered.
On asking, Noman (maternal grand son of the complainant) disclosed that he was searching his mother since 6-00 p.m. As the doors of the house were closed. The complainant showed his suspicion that some unknown persons have murdered his daughter and maternal son Faizan. The matter when reported to the police Muhammad Qadeer and Mst. Nazia were joined in the investigation where they disclosed about the murder of Mst. Asia Bibi and Faizan and got recovered golden ornaments, watches and weapon of offence whereupon the police after thorough investigation submitted challan against them under section 173, Cr.P.C. Charge was accordingly framed to which the appellant pleaded not guilty and claimed trial.
3. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant produced 14 witnesses in all. They were:-
(i) Muhammad Aslam, A.S.-I. (P.W.l) who recorded formal F.I.R. Exh. PB signed by him.
(ii) Naveed Rasool 12689-C (C.W.l) was deputed to effect service upon the complainant Muhammad Nazir who was reported to have died whose report is Exh.CW 1/2 signed by him.
(iii) Muhammad Tufail H.C No,5536 Muharrer (P.W.2) kept sealed parcels in his safe custody and thereafter, handed over the same to Muhammad Arshad 9010-C for its onward transmission to the Chemical Examiner.
(iv) Muhammad Arshad 9010-C (P.W.3) handed over the sealed parcels to the Forensic Science Laboratory.
(v) Abdul Hameed 12122/C (P.W.4) escorted the dead bodies of the deceased to the mortuary for post-mortem examination and attested the memos.. Exh.PC and Exh.PD.
(vi) Muhammad Amin (P.W.5) had seen the appellant and his coaccused just after the occurrence having bags in their hands while coming from the house of the deceased.
(vii) Syed Rizwan Raza (P.W.6) also saw the appellant and his coaccused just after the occurrence having bags in their hands while coming from the house of the deceased.
(viii) Dr. Nasreen Ishaq (P.W.7) conducted the post-mortem of Mst. Asia Bibi deceased.
(ix) Faqir Ahmad, S.-I. (P.W.8) received complaint Exh.PA from the complainant and recorded formal police karvai Exh.PA/2 at the spot.
(x) Lai Din, S.-I. (P.W.9) I.O. Of the case took into possession crime empties from the place of occurrence, blood-stained swa bs of both the deceased and escorted the dead bodies to the mortuary and thereafter recorded the statements of the P.Ws. Arrested the appellant and recovered the crime weapon i.e, pistol and other robed articles.
(xi) Hameed-ud-Din Chishti, Draftsman (P.W. 10) visited the place of occurrence and prepared site plans Exh.PR and Exh.PR/1.
(xii) Dr. Khalid Hussain Khalid (P.W. 11) conducted autopsy on the dead body of Muhammad Faizan deceased.
(xiii) Muhammad Jehangir (P.W.12) witnessed the recovery effected from the appellant attested by him vide memo. Exh.PT.
(xiv)Hina Jehangir (P.W. 13) deposed the last seen evidence.
(xv) Shafqat Ali (P.W. 14) witnessed and attested the recovery memos. Exh.PN, Exh.PO and Exh.PQ.
' The prosecution also tendered in evidence report of Chemical Examiner, Punjab, Lahore Exh.PX, Report of Chemical Examiner, Punjab, Lahore Exh.PY, Report of Serologist Exh.PZ, Report of Serologist Exh.PA A and that of Report of Forensic Science Laboratory, Punjab, Lahore Exh.PBB.
4. On the conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. While answering a question why this case is against you and why the P.Ws. Have deposed against you, he deposed as under:- ' "P.Ws. Have admitted in their statements that they are closely related to Jahangir (My brother-in- law), it is also the fact that they are close friends of Jahangir, The other P.W., namely, Miss Hina was tutored against us by her father as at the time of her statement she was in the custody of her father Jahangir. As stated above at the time of occurrence she was with us (in the house of their maternal grand mother). The remaining witnesses are police officials and they have deposed against us on the asking of the1' I.O. In connivance with Jahangir.
' In fact, Jahangir, our brother-in- law is a man of bad character. He contracted second marriage in the life time of our sister Mst. Asia (deceased). Our sister Mst. Asia Bibi (deceased) and our other family members were against this marriage. Our sister (Mst. Asia Bibi (deceased) and our other family members had been condemned Jahangir for his this Anti-social act as he was already a married man, having wife and grown up children. Shakil is younger brother of Jahangir. He is a jobless, vagabond and also a man of bad reputation and character. Jahangir demanded hand of our younger sister, namely, Mst. Fouzia for Shakil. I and my other family members including Nazia refused to accept this offer, whereupon, Jahangir and Shakil had nourished grudge against our family members and against myslf and my co-accused Nazia. On the day of occurrence, it was rumour that Shakil had committed murder of Mst. Asia and Faizan but as basically it was a blind murder, therefore, my father (complainant) did not nominate Shakil in this case. Later on Jahangir came from Saudi Arabia and he with consultation of Shakil and in connivance with the police involved us in this case and in this way they hurt two birds with one arrow to take revenge from us. "
' He did not opt to appear as his own witness as required under section 340(2), Cr.P.C. However, he produced Mst. Fouzia Bibi in defence evidence as D.W.l and also adduced documentary evidence.
5. The learned trial Court after recording the evidence and hearing the learned counsel for the parties, convicted the appellant as mentioned above whereas acquitted his co-accused Mst. Nazia by extending her benefit of non-recovery of pistol.
6. I have heard the learned counsel for the appellant as well as the State and perused the record with their assistance.
7. It has been mainly contended by the learned counsel for the convict- appellant that the occurrence being unseen and prosecution's case being based on circumstantial evidence, it could not have been concluded with certainty by the trial Judge that the appellant was responsible for commission of offence. Reliance is placed upon Gulzar alias Gulla v. The State (PLD 1996 SC 263), Abdul Ghaffar v. The State (1993 Law Notes (Lahore) (537), Gul Muhammad alias Guloo v. The State (2004 YLR 216), Habib alias Habib-ur-Rhman v. The State (2004 YLR 206), Nazir Ahmad v. The State (1996 MLD 635), Javed Iqbal alias Akhtar Shah v. The State (PLD 1995 Lahore 498), Saifal Khan and another v. The State (2003 YLR 1227), Zafar Iqbal and another v. The State (2003 YLR 1364), Muhammad Froze v. The State (PLD 2003 Karachi 355), Abdullah Shah alias Babar Ali and other's case (1998 PCr.LJ 1236), Muhammad Alam alias Shin v. The State (2001 PCr.LJ 86), Nazir Ahmad v.
The State (1996 MLD 635), Abdul Ghaffar v. The State (1993 Law Notes Lahore 537) and Zafar Iqbal and another v. The State (2003 YLR 1364).
8. The learned counsel for the State on the other hand while controverting the contentions raised by the learned counsel for the appellant has submitted that the prosecution has successfully brought home the guilt of the appellant through circumstantial evidence. According to him, Hina Jahangir (P.W. 13), who is the real niece of the appellant has proved the prosecution case beyond doubt that both the deceased were seen last alive in the company of the appellant and his sister Mst. Nazia. Muhammad Amin (P.W.5) and Syed Rizwan Raza (P.W.6) proved that the appellant along with his sister Nazia was seen by them coming out of the house of the deceased i.e, place of occurrence at the relevant time in perturb condition. It is further argued that Mst. Asia deceased and her husband Muhammad Jahangir had no enmity with the appellant, therefore, if he or his relative witnessed the recovery of pistol and of robed articles at the instance of the convict- appellant, it shall make no difference. According to him, it is proved that the convict-appellant himself led the police party to the place wherefrom pistol, and other robed articles were recovered.
It is further argued that fire-arms expert has confirmed this view that crime empties recovered from the place of occurrence were fired with .30 bore pistol, which was recovered at the instance of the convict- appellant, therefore, he was rightly convicted for the offence.
9. As regards, first contention of the learned counsel for the appellant that since prosecution case is based solely on circumstantial evidence, therefore, it could not have been concluded with certainty that the appellant was responsible for the offence: it may be pointed out here that, no doubt, the occurrence, in the instant case in unseen but there is no rule that conviction cannot be based on circumstantial evidence alone. Absence of direct evidence does not mean that guilt cannot be fixed. It may be noted here that circumstantial evidence is the evidence of basic facts wherefrom, further fact has inferred or natural conclusion, according to reason and logic may be deduced. However, its strength, as per circumstances of the case, may vary from case to case.
Often it is stronger and more satisfactory than direct evidence because it is not liable to delusion or fraud and, therefore, in some cases, where direct evidence is either not available or witnesses are not deemed wholly credible, circumstantial evidence, may be more convincing. The test is that it should not only be relevant but Consistent and conclusive as well and should be so convincing that circumstances or facts proved on record must lead to a single conclusion. In order to carry conviction, however, it must be incompatible with any reasonable hypothesis of innocence of the accused. In the case reported as Khuda Bakhsh v, The State (2004 SCMR 331), the prosecution was depending completely on circumstantial evidence; The conviction of sentence of death inflicted on the appellant by the trial Court and confirmed by the Federal Shariat Court was upheld by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan. In the case of Daulat Ali v.
Muhammad Aslam and others (1999 SCMR 845) none had seen the occurrence. Dead body of the girl was found in the house of the accused for which ne lodged a misguiding report at the police station. Accused had himself pointed to the blood-stained Chhuri, buried by him in the courtyard of his house. Accused persons were acquitted by trial Court, however, on appeal to the Federal Shariat Court, they were convicted. The conviction and sentences of both the male accused persons including the sentence of death were maintained by the Honourable Supreme Court the case purely resting on circumstantial evidence. In the wake of above, it thus, follows that in a case where either direct evidence is not available or has not been found trustworthy conviction can be recorded on the basis of circumstantial evidence alone subject to the condition that all the circumstances must lead to the guilt of the accused and no link in the chain should be missing. In this view this Court is fortified by the following reported judgments as well The State v. Manzoor Ahmad (PLD 1966 SC 664) and Karamat Hussain v. The State (1977 SCMR 15). In the present case there is strong circumstantial evidence, which leads to the inference that occurrence, in the instant case, has taken place in the manner as suggested by the prosecution. Prosecution case is based on the medical as well as circumstantial evidence. Dn Nasreen Ishaq who conducted the autopsy on Mst. Asia Bibi deceased found following injuries on her dead body:- l. a. 1 x 1.5 c.m. Lacerated wound of entry was present at the back of pinna of left ear punching the over lying pinna with it with beveling inward and margins of the wound were black.
1-b. 22 x 7 c.m. Lacerated wound of exit was occupying half of the scalp starting from middle of fore head extending to towards right of scalp up till 4 c.m. Above the right ear, and the brain matter was coming out.
' According to her opinion said injuries were ante-mortem and caused by fire-arm weapon. The cause of death was injury to skull and brain leading to death and this injury was sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem was 10 to 24 hours.
10. Dr. Khalid Hussain Khalid, Medical Officer (P.W.Ll) conducted the autopsy on the dead body of Muhammad Faizan and found the following injuries on his dead body:- 1-a. A lacerated wound 1 x 1 c.m. With inverted margins and collar of abrasion on the left cheek and 5.5 c.m. In front of left ear and 2.5 c.m. Below the outer angle of left eye.
1-b. A star shaped wound 8x7 c.m. Area with irregular margins on the back of head, 9.5 c.m. Inner to the left ear and 11 c.m. Inner to the right ear, 4 c.m. Below the top of head.
' In his opinion injuries (1-a and 1-b) mentioned above were ante-mortem and caused by fire-arm.
The cause of death was extensive damage to the skull and brain under Injury No, 1, leading to comma and death. This injury was sufficient to cause death in an ordinary course of nature. The time between injuries and death was immediate and between death and post-mortem was 10 to 24 hours.
11. The prosecution has set up its case on the following grounds. Firstly, both the deceased were last seen alive in the company of the convict-appellant and his co-accused i.e, sister Mst. Nazia.
According to the prosecution version Mst. Hina Jahangir (P.W. 13)'who ' is the real niece of present appellant deposed that on the day of occurrence she had gone for tuition along with his brother and sister and at about 4-00 p.m. She came back to her house to take a notebook and saw the convict-appellant Qadeer and Mst. Nazia sitting with her mother. Her mother gave her Rs,10 to purchase a copy. After purchasing the notebook, she left for tuition. When she came back from tuition at about 6-00 p.m. Her house was locked. The locks were broken and saw the dead bodies of her brother lying in a room and that of her mother in another room. She further deposed that household articles were lying scattered. It is argued that Hina Jehangir, witness being 11 years of age was not competent to depose and the trial Court had not recorded the question, if any, which he had asked to satisfy himself, if she was intelligent enough to understand what she was deposing about. After recording the name, parentage and address of Mst. Hina Jahangir, the learned Judge of the trial Court made a note to the effect that certain questions have been put to the P.W. To ascertain her capacity to appear and depose as a P.W. And the witness had replied those questions properly. The learned counsel for the appellant could not point out any provision of law which required that before recording the statement of child witness, the Judge must record the questions asked from the witness to test if he/she was intelligent enough to understand all what he/she was deposing about. It is now well settled that if a Judge who examined a child witness records a note that he is satisfied that the witness is intelligent and capable to understanding the question which are likely to be asked to it, there is nothing in the law to prevent the appellate Court from accepting that note as sufficient proof of the capacity of the child to be a witness under Qanun-e-Shahadat Order. Such a note having been made during the course of trial should be presumed to represent the truth. The presumption with regard to its correctness is somehow displaced. Reliance in this regard is placed upon the law laid down by the Honourable Supreme Court in the case reported as Ameer Umar v. The State (1976 SCMR 338) it was held by the Honourable Supreme Court that:- ' "As regards the competence of Muhammad Khan to give evidence at the trial' we find that the learned Magistrate had put certain question to the boy to ascertain the place where he was being examined and the nature of the employment of his father, and he was satisfied that the boy was sensible enough to give evidence in a Court of law. Section 118 of the Evidence Act does not prescribe any set of questions to be put in this behalf. All that is required is that the Court must satisfy itself that the child witness is capable of giving rational answers to the questions being put to him. The learned Magistrate has recorded his satisfaction on this point, and we do not see how we can go behind his opinion"
' In another case reported as Muhammad Ismail and another v. The State (1995 SCMR 1615). It was laid down that:- ' "It may be further observed that evidence of child witness possessing sufficient understanding can be believed and relied upon for conviction. (1968 SCMR 852) may also be referred in this regard.
' The contention raised by the learned counsel for the appellant in this regard has no force.
12. The contention that Mst. Hina Jehangir being tutored deposed falsely because at the relevant time she was present in the house of her maternal grandfather and grandmother has no force in it as there is nothing on the record to show that she was in the house of her maternal grandfather/grandmother. The complaint was lodged by the complainant (maternal grandfather of the witness and father of the appellant) .Wherein it was stated that on receipt of telephone call, he along with the convict-appellant and his mother i.e, maternal grandmother of Mst. Hina Jehangir came at the place of occurrence. Had she (Mst. Hina Jahangir P.W.) been there, the complainant must have stated this fact in the complaint Exh.PA.
13. The manner in which Mst. Hina Jahangir has testified and gave intelligent answers to cross- examination by the defence, gives a least idea that she is a tutored witness. Her testimony is intrinsically true and worth credit. She could not be even presumed to falsely implicate her maternal uncle for the murder of her mother and brother.
14. Secondly, the appellant along with his acquitted co-accused was seen by the P.Ws. Coming out of the house of the deceased in a perturb condition. In this regard prosecution produced Muhammad Amin (P.W.5) and Syed Rizwan Raza (P.W.6) who proved that on the day of occurrence at about 5/6 p.m. They had seen the convict-appellant along with his coaccused Mst. Nazia coming out of the house of Muhammad Jahangir i.e, place of occurrence in perturb condition having bags in their hands. Both the. Witnesses are independent and residents of the same locality where the occurrence took place having no relation with the complainant party or ill-will against the convict- appellant. It is the prosecution case that after this, Noman son of Mst.. Asia deceased informed the complainant that the house is locked and mother is not traceable upon which the complainant reached there and found the dead bodies of both the deceased in the house of Muhammad Jahangir, (his son-in-law). Thirdly, the recovery of pistol on the pointation of the convict-appellant and the recovery of articles belonging to Mst. Asia deceased and also the recoveries of two empties from the place of occurrence. To prove the recovery of pistol, prosecution produced Lai Din, S.I. (P.W.9) and Shafqat Ali (P.W. 14). There appears no defect in their statements rendering the same as untrustworthy. Shafqat Ali while appearing as (P.W. 14) stated in his statement that on joining his investigation on 9-6-2002 at the place of occurrence, the I.O.
Collected blood-stained swa bs of both the deceased from different places and also taken into possession two crime empties P^33/l-2 vide recovery memo. Exh.PO. He further deposed that on 11- 6-2002 appellant Qadeer after making disclosure led to the recovery of pistol .30 bore from a room of residential house of his brother-in-law namely Pervaiz. The pistol was lying under the bed on the Northern side of the wall of the said room which was taken into possession and sealed into a parcel vide memo. Exh.PQ which was attested by him and Muhammad Khalid P.W. The contention of the learned counsel for the convict-appellant that recovery of pistol is highly doubtful as no witness from the locality was associated at the time of recovery has no force. The weapon of offence as said earlier was recovered at the instance of the convict-appellant on 11-6-2002. Shafqat Ali (P.W.
14) further deposed that said recovery was made at the instance of the appellant by the I.O. Who had categorically stated in his cross- examination that he requested the people to join the investigation but nobody was willing to do so. In these circumstances, the trial Court has rightly relied upon the recovery of pistol effected from the convict-appellant by the I.O. The pistol recovered from the convict-appellant and the empties recovered from the place of occurrence were sent to the fire-arm expert who in his report vide Exh.PBB confirmed that empties recovered from the place of occurrence were fired from .30 bore pistol recovered from the appellant. The prosecution has also proved the recovery of Rado Watch bearing No,636.0313.3 Golden Colour P-11, one ladies Golden Ring P-12, Gold hand bracelet two in number P-13/1-2, a Gani black coloured along with locket gold P-14 and a locket pendulum along with gold chain P-15 which were taken into possession vide memo. Exh.PT attested by Muhammad Jahangir (P.W. 12), Muhammad Sagheer and the I.O. On the disclosure of the convict-appellant who led to the recovery of the said articles from his residential House No,2, St. No,21 Jinazgah Harbanspura.
15. Both the deceased were last seen alive in the company of the convict- appellant and his sister Mst. Nazia (coaccused since acquitted) by Mst. Hina Jahangir (P.W. 13) at 4-00 p.m. And the appellant along with his sister was seen coming out of the house of the deceased by Muhammad Amin (P.W.5) and Syed Rizwan Raza (P.W.6) at about 5/6 p.m. And as per complaint, son of the deceased reached at the house at about 6-00 p.m. And found it locked who thereafter informed the other family members. Meaning thereby the occurrence had taken place in between 4-00 p.m.
To 6-00 p.m. Which was confirmed by the medical evidence also and in view of the above circumstances it was rightly inferred by the trial Court that the appellant was responsible for the commission of the offence.
16. Another aspect of this case is that the complaint was lodged by the father of the appellant against unknown person and in his presence investigation was conducted and soon after the registration of the case, the statements of the P.Ws., including the statement of Mst. Hina Jahangir were recorded by the I.O. And thereafter draftsman had taken the notes on the pointation of the complainant on 11-6-2002 but the father of the convict-appellant who is also the complainant of this case did not raise any objection on the investigation even in his life time and the appellant also did not raise any objection upon the investigation conducted by the I.O. It is also pertinent to mention here that Mst. Hina Jahangir is the niece of the appellant who got recorded her statement under section 161, Cr.P.C. On the very date of occurrence when her father was in Saudi Arabia and reached Pakistan on 11-6-2002 after two days of the occurrence and in absence of her father she deposed the instant facts before her real maternal grandfather which lends support to the prosecution case, therefore, she was a trustworthy and confidence inspiring witness and the objection raised by the learned counsel for the appellant that Mst. Hina Jahangir (P.W.13) made statement before the trial Court on the dictation of her father is absolutely without any force.
17. The case law referred by the learned counsel for the parties have been considered by this Court, the facts of these cases are distinguishable so far as the facts of the present case are concerned, it is rightly said that the facts of two criminal cases cannot be identical, therefore, it is repeatedly held by the Honourable Supreme Court that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case. In this context the judgment of Safdar Abbas and 2 others v. The State (PLD 1987 SC 467) may be referred in which it was laid down:- ' "It may be noted that principles laid down in all the cases are always different on the facts and circumstances of each case and cannot be loosely applied".
' In another case reported as The State v. Rabnawaz and others (PLD 1974 SC 87) it was laid down that:~ ' "But the argument in my opinion proceeds on a superficial reading of the precedent cases in which the facts were materially different. It also overlooks the general principle, that every thing said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case."
18. For the above reasons, this Court holds that both the deceased were last seen alive in the company of the appellant and his sister/co-accused Mst. Nazia and the convict-appellant had the knowledge of the place where he had kept pistol after the occurrence and recovery of articles belonging to Mst. Asia deceased, which were recovered at his instance in the presence of P.Ws.
Further that the crime empties found at the place of the occurrence were matched with the pistol recovered from the convict-appellant. The trial Court has rightly held him responsible for the offence. Resultantly, this appeal has no force, hence, the same is dismissed.