Muhammad Sair Ali, J.--This Criminal Appeal No, 316 of 2006 through leave questions judgment dated 07.06.2005 of the Lahore High Court, Rawalpindi Bench maintaining appellant's conviction and punishment to death under Section 302(b) PPC and payment of Rs, 1,00,000/- as compensation to the legal heirs of the deceased or otherwise to undergo S.I. for 06 months as awarded by learned Additional District Judge, Islamabad through judgment dated 25.09.2000 and thus dismissing appellant's Criminal Appeal No, 407 of 2000.
2. Upon registration of FIR No, 227 dated 27.12.1996 under Section 302 PPC Police Station Sehala, Islamabad, appellant was sent up for trial under Sections 302/380 PPC before Additional District Judge, Islamabad. The allegation of the prosecution against the appellant Ulfat Hussain son of Akbar Hussain was that he stayed in the house of the complainant Syed Wasif Hussain Shah for the night whereafter the complainant had to go to Haripur. And that Ulfat Hussain though left with the complainant but came back to the house after complainant's departure for Haripur and stayed for two days in the complainant's house with his mother and nephew Syed Asif Ali Shah (aged 8/9 years). And that on Thursday, i,e, 27.12.1996 at Sehriwaila, the accused struck the complainant's mother Mst. Younis Bibi at the head with Ghotna, causing head injury that killed Mst. Younis Bibi at the spot. And that the entire episode was seen by Syed Asif Ali Shah in the electric light from under the cot where he had hidden himself because of the fear. On killing Mst. Younis Bibi, appellant Ulfat Hussain left the house whereafter Syed Asif Ali Shah shouted for help and gathered the vicinity people who informed the complainant as well as the police. Complainant on arriving back heard the entire story from his nephew and reported the incident to police and FIR No, 227 was registered at 8:40 a.m. against the appellant for killing Mst. Younis Bibi. Mushtaq Hussain, S.I. conducted the preliminary investigation, prepared the inquest report, sent the dead body for post-mortem examination, recovered Razai, Pillow and cap from the spot alongwith blood-stained earth.
Postmortem was conducted by lady doctor Iffat Khurshid, Medical Officer, PW. 11 on 27.12.1996 and found the following injuries on the dead body:-- "1. Head hair were blood stained all over.
2. A lacerated wound just lateral to the Injury No, 3 measuring 1/2 inch into, 3 cm on the right parietal region of the skull.
3. A wound deep to the bone exposing the underlying bone cutting it and was corresponding to the wound measuring 2x1/2 inch on right parietal region of the skull.
4. A lacerated wound inch into 5 cm on the right frontal region of the skull."
3. The appellant reportedly absconded after the incident and was a proclaimed offender but was later arrested and transferred on 30.06.1999 from Khushab Jail to Islamabad. The alleged weapon of offence i,e, Ghotna was recovered at the instance of the accused.
4. On completion of investigation, the appellant was challaned to face the trial. Formal charge sheet was framed under Section 302 PPC. Appellant pleading not guilty, claimed a trial. In the trial, the prosecution produced 11 PWs including formal witnesses i,e, Muhammad Anwar Constable, PW.1.
Muhammad Aslam H.C. P.W.2, Abdul Rehman A.S.I. PW.3, Rana Dilbar PW.4 and Muhammad Akram Draftman, PW.6. Investigating Officers deposing in the trial were Mushtaq Hussain, S.I., PW.8, Muhammad Bashir, S.I. PW.9, and Zawar Hussain, S.I. PW.10. The medical evidence came through the statement of Medical Officer Dr. Iffat Khurshid, PW.
11. The complainant, Syed Wasif Shah appeared as PW.5 while the only eye-witness i,e, Asif Ali Shah (minor) was produced as PW.7. Ghulam Mustafa, Muhammad Farooq, Sajid Mahmood and Shafique PWs, were given up as unnecessary.
5. The learned Additional District Judge, Islamabad through judgment dated 25.09.2000 held the prosecution to have proved charge under Section 302(b) PPC against the appellant Ulfat Hussain for committing Qatal-e-Amd of Mst. Younis Bibi. He was accordingly convicted and sentenced to death and was ordered to pay compensation of Rs, 1,00,000/ under Section 544-A Cr.P.C. to the legal heirs of the deceased or otherwise to undergo S.I. for six months.
6. The appeal filed by the appellant was dismissed by the High Court through judgment dated 07.06.2005 maintaining the conviction and punishment awarded by the learned Trial Judge.
7. Against the above judgment of High Court, appellant filed Jail Petition No, 142 of 2005 upon which leave was granted by this Court through order dated 10.05.2006.
8. In support of the present appeal, Malik Rab Nawaz Noon, learned counsel for the appellant contended that the weapon of offence i,e, Ghotna was recovered after 2-1/2 years from accused as per recovery memo and could not have retained the blood-stains where for it was not sent for report of the Chemical and Serologist Examiner. Further the prosecution story that the deceased died with Ghotna blow is belied by the medical evidence. And that as per the settled principles of law, it was not safe to rely on the sole tesfimony of a child witnesses. Further that no motive had been alleged against the appellant for killing the deceased and with whom he could have killed 9/10 year old child (Syed Asif Ali Shah, PW.7) as well to eliminate the evidence against himself. And that the prosecution story was neither credible nor believable. The case suffered from serious contradictions. Further that the prosecution wrongly alleged the appellant to have absconded. He was in Khushab Jail and was arrested and transferred therefrom for trial to Islamabad. In the contrary arguments, Syed Amanat Ali Bokhari, Dy. Prosecutor General, Punjab supported the impugned judgment. Admitting the arrest and transfer of the appellant from Khushab Jail to Islamabad, the learned Dy. Prosecutor General, Punjab contended that this proved the appellant to be habitual criminal.
9. With the help of the learned counsel for the parties, we have re-examined the entire evidence on record. The prosecution case has been founded upon the sole eye-witness account of the minor Syed Asif Ali Shah (PW.7), statement of Dr. Iffat Khurshid, Medical Officer, (PW. 11) and recovery of weapon of offence i,e, wooden Ghotna through recovery memo (Ex.P1).
10.In his complaint Ex.P.D and deposition as PW.5, the complainant Syed Wasif Ali Shah stated that it was on return from Haripur that he was narrated the story of the incident by his nephew i,e, PW.5 Syed Asif Ali Shah (minor) hence the complaint and registration of FIR. Syed Asif Ali Shah, (PW.7) minor was the only eye-witness of the occurrence. He through his statement as PW.7 provided the ocular account.
In his cross-examination, he stated that "From start of killing and ending, I remained under the cot".
The child's assertion to have remained under the cot from the start of killing till the end contradicts his statement in the examination-in-chief where he stated that "he (accused) woke up and gave a `Ghotna' blow on the head of my grand-mother. I woke up and started weeping. The accused threatened me to slaughter. Then I slipped down under the cot". From the sequence in the examination-in-chief, the child PW appears to have woken up after the Ghotna blow on the head of his grand-mother and then slipped under the cot on threat of the appellant. As per the cross examination, he remained under the cot from the start of killing till end.
11.No other witness appeared to corroborative or support the statement of PW.7. The trial Court as well as the High Court relied upon the sole testimony of PW.7 to return a guilty verdict.
12.We would like to *observe that though in principle conviction can be based upon the testimony of an intelligent and understanding child witness yet the Courts have generally preferred to adopt the settled principle of prudence and the rule of care attached to the sole testimony of a child witness despite child's intelligent disposition. We may however, reiterate that the measure of prudence or the level of care would depend upon facts of each case.
13. In the case of "Amjad Javed v. The State" (2002 SCMR 1247), this Court held that consistent credible, confidence inspiring and straight forward ring of truth and innocence statement of a child witness could safely become basis of conviction provided the same had been corroborated by other evidence i,e, circumstantial, medical, recovery and reports of Serologist etc. Similarly in the case of 'Muhammad Jamal vs. State" (1997 SCMR 1595) confidence inspiring testimony of a child supported by medical evidence, last seen evidence and etc. was relied upon to maintain the conviction. In "State through AG Sindh Karachi v. Farman Hussain and others" (PLD 1995 SC 1) it was held that evidence of a child witness was a delicate matter and normally it was not safe to rely upon it unless as a rule of prudence, it is corroborated. And great care be taken that element of coaching was not involved in the evidence of a child. This observation was reinforced by this Court with judgment of Division Bench of Lahore High Court in the case of 'Amir Khan and others v. The State"
(PLD 1985 Lahore 18). We would also like to benefit from this judgment by reproducing some of the extracts and conclusions arrived at after consideration of case-law on the subject. It was held that:-- "In the case of Abbas All Shah v. Emperor (AIR 1933 Lah. 667) the learned Judges quoted with approval a passage from .The Outlines of Criminal Law" by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University: "Children are a most untrustworthy class of witnesses, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge that they have heard from others, and are greatly influence by fear of punishment, by hope of reward and by desire of notoriety ". "when considering the evidence of child-witnesses these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances." In Sultan and another v. State (PLD 1965 (W.P.) Karachi 615), it was adjudged that " we feel it would be most unsafe to base the conviction on these two appellants upon the sole testimony of the young child. We are not even satisfied that she saw the occurrence." The two convicts sentenced to death on murder charge were acquitted.
14.In the present case also we do not find on record any evidence to corroborate the testimony of child witness i,e, PW.7. Medical evidence and recoveries of weapon do not furnish the required support.
15.Dr. Iffat Khurshid, (PW. 11) provided the medical evidence as to four injuries. She opined that "the injuries were ante-mortem and were due co a blunt weapon". In cross-examination she however, stated that the skull of the deceased had been cut but it was not a sharp weapon. In the same breath she self destructively admitted that "This injury could be of sharp edged weapon", thus casting serious doubt on the prosecution story based on sole statement of the child witness (PW.7) that the deceased was struck by a blunt weapon i,e, Ghotna and not by a sharp edged weapon.
The weapon of offence Ghotna (Ex.P.1) was recovered after over 2-1/2 years on 4.7.1999 vide recovery memo. Ex.P.A "from the roof of deserted house" (statement of PW.2) Ex.P.A, the Ghotna was neither reported to be blood-stained nor was it sent for Chemical Examination. The fact, that motive in this case was neither alleged nor proved, may be insignificant yet it could be a clue to the mind of the accused.
16.In the above perspective, we believe that prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, accept this appeal. The conviction and sentences awarded to the appellant Ulfat Hussain by the trial Court and maintained by the High Court, are set-aside. As directed in the short order, the appellant is acquitted of the charges and shall be released forthwith if not required in other case.