' SYED SHAHBAZ ALI RIZVI, J.---The appellants namely Mst. Imam Sain and Khalil Ahmad alias Jumma were sent to court for facing trial in a case F.I.R. No.555 dated 1-12-2001 under sections 302/ 337-J/34, P.P.C. Police Station Basirpur, Okara and were convicted by learned Addl. Sessions Judge, Depalpur, Distt. Okara vide impugned judgment dated 17-11-2009 and sentenced as follows:--
(1) Death on two counts under section 302(b)/34 P.P.C. For committing murder of Muhammad Hanif and Basharat All (deceased). Appellant Khalil Ahmad alias Jumma was also burdened with compensation to the tune of Rs.100,000 under section 544-A, Cr.P.C. On two counts to be paid to the legal heirs of both the deceased and in default thereof, to further undergo six months' S.I. The appellants were ordered to be hanged by neck till death.
(ii) R.I for ten years under section 324/34 P.P.C. Each on five counts for attempting to commit Qatl-i-amd of five minor children namely Yasmeen, Amanat Ali, Liaqat Ali, Zahida Bibi and Shahida Bibi with fine to the tune of Rs.5,000 each on five counts and in default thereof, to further undergo two months each on five counts.
(iii) R.I for ten years under section 337-J/34 P.P.C. Each on five counts. Khalil Ahmed alias Jumma convict to pay Rs.10,000 as compensation under section 544-A, Cr.P.C. To each of five minor children namely Yasmeen, Amanat Ali, Liaqat Ali, Zahida Bibi and Shahida Bibi each on five counts and in default thereof, to further undergo two months each on five counts. The sentences of imprisonment under sections 324/34 and 337-J/34 P.P.C. Awarded to both the convicts, were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Extended to the appellants.
2. This single judgment will dispose of the above mentioned Murder Reference No.486 of 2009 along with Criminal Appeal No.290-J of 2011 filed by the appellants, through jail authorities.
3. Briefly the prosecution version, contained in an F . I . R. Exh. PA/1, registered on the basis of complaint Exh.PA, moved by the complainant Inayat son of Ali Muhammad (P.W.1), is that at about 12:30 nocturnal on 1-12-2001, Jumma (appellant) informed the complainant that complainant's brother Muhammad Hanif and all his children had fallen ill, on which his brother in law (Behnoi)
Saeed Ahmad, sister Rani and wife Shehnaz went to the house of Muhammad Hanif and after about one hour, Muhammad Boota (P.W.4) came to his house and told that Muhammad Hanif and nephew Basharat alias Babbi had died. On this information, the complainant along with Wali Muhammad (P.W.2), Haakim Ali and Murtaza alias Laddu went to the place of occurrence "Bhatta Ameer Wahgra" and noticed that his brother Muhammad Hanif and nephew Basharat had died whereas Liaqat aged 5 years, Amanat aged about 4 years, Yasmeen aged about 10/12 years (P.W.3), Shahida aged about 2-1/2 years and Zahid aged about 7 years were lying unconscious, who were shifted to RHC Hospital, Basirpur. It was alleged by the complainant that Jumma and Imam Sain (appellants), having illicit relations with each other, had administered poison to his brother Muhammad Hanif and his family resulting into death of Muhammad Hanif and his son Basharat.
4. After registration of formal F.I.R. Exh.PA/1, the case was investigated by Ali Muhammad SI/L0 (P.W.7) who-visited the place of occurrence, recorded statement of the complainant Exh.PA; inspected the spot and prepared rough site plan Exh. PF; took into possession Deghchi (pot) P.1 containing remaining cooked rice, vide memo Exh.PB, prepared inquest reports Exh.PG and Exh.PH; took into possession the last worn clothes of the deceased vide memos Exh. PC and Exh. PD; recorded statements of the witnesses under section 161, Cr.P.C. Including poisoned victim children at hospital; on 6-12-2001 arrested Mst. Imam Sain and on 7-12-2001 arrested Jumma (Khalil) and thereafter prepared the challan.
5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded not guilty and claimed to be tried. The prosecution was asked to lead its evidence, which produced as many as 12 P. Ws. To prove its case.
6. Dr. Shahid Farooq, Ex-Medical Officer, THQ Hospital, Depal pur (P.W.9) conducted post mortem examination on the dead body of Muhammad Hanif. Stomach, pieces of small intestine and large intestine, pieces of liver, piece of spleen and piece of kidney were taken out of the dead body, preserved in normal saline, sealed in three separate bottles and a bottle containing sample of the preservative i.e. Normal saline were sent to the office of Chemical Examiner for the detection of poison.
REMARKS ' The medical officer, on the basis of Chemical Examiner report/letter No.1727/PV dated 15-1-2002, was of the opinion that final cause of death in this case was insecticide poisoning belonging to the organo phosphorus group. Probable time between injuries and death was about two to three hours approximately and between death and post mortem was about 15 hours. The doctor presented the post mortem report as Exh.PJ.
' On the same day, he also conducted post mortem examination on the dead body of Basharat.
Pieces of small intestine and large intestine, liver, spleen and kidney and Stomach were taken out of the dead body, preserved in normal saline, sealed in three separate bottles and a bottle containing sample of the preservative i.e. Normal saline were sent to the office of Chemical Examiner for the detection of poison.
REMARKS ' The medical officer, on the basis of Chemical Examiner report/letter No.1727/PV dated 15-1-2002, was of the opinion that final cause of death in this case was insecticide poisoning belonging to the organo phosphorus group. Probable time between injuries and death was about two to three hours approximately and between death and post mortem was about sixteen hours. The doctor presented the post mortem report as Exh.PI.
' Similarly, Dr. Ghulam Farid M.0 DHQ Hospital, Pakpattan (P.W.11) medically examined Mst. Yasmeen vide Medico Legal Report Exh.PK, Amanat Ali vide Medico Legal Report Exh.PL, Liaqat Ali vide Medico Legal Report Exh.PM , Zahid Bibi vide Medico Legal Report Exh.PN and Shahida vide Medico Legal Report Exh.PP.
7. The prosecution gave up PWs Muhammad Boota, Murtaza, Zahida Bibi, Liaqat and Amanat and by tendering into evidence the reports of Chemical Examiner Exh.PQ, Exh.PR, Exh.PS, Exh.PT, Exh.PU, Exh.PV, Exh.PW and Exh.PX, closed the prosecution evidence.
8. Thereafter, statements of the appellants were recorded under section 342, Cr.P.C. Wherein they negated the allegations and professed their innocence. In reply to the question as to why the case against them and why the PWs deposed against them, both the appellants maintained as under:-- ' Khalil Ahmad alias Jumma (appellant)
"I was cultivating vegetables jointly with the deceased Muhammad Hanif. The complainant of this Inayat and his deceased brother Muhammad Hanif were not on talking terms. The complainant Inayat supposed me as companion of deceased Muhammad Hanif in dispute between both the brothers. As Inayat complainant prior to this occurrence when the deceased and complainant were residing in Mohalla Sheikhupura Basirpur, Inayat PW wanted to develop illicit relations with Mst. Imam Sain co-accused and he also grappled with Mst. Imam Sain, in those days. The complainant think so that I was also opponent of him due to my favour to his brother Muhammad Hanif deceased and for the said grudge I have been falsely involved in this case."
' Mst. Imam Sain (appellant)
"I was married with Muhammad Hanif deceased about 16/17 years ago and had performed marital obligations without any hesitation and quarrel between us. My husband was very happy and quite satisfied from me and my character. However, soon after my marriage complainant Inayat wanted to develop illicit relations with me which I refuted and told the same fact to my husband Muhammad Hanif deceased. Due to this fact my husband Muhammad Hanif was very angry with his brother Inayat complainant of this case and due to this fact, we used to reside separately. Prior to this occurrence, we were residing in one and same house with the complainant at Mohallah Sheikhupura Basirpur. Act of the complainant Inayat was very bad attempt and my husband take it very serious and from a long time there was much strained relations between both brothers. Due to this fact, the complainant of this falsely involved me in this case, as he supposed me responsible for the friction between both brothers. All it is result of falling of lizard (Kirli) or it was management of complainant Inayat, who wants to break through his brother due to this person tention. I love my husband and children and no mother can murder his children specially sons. Being a mother death of a deceased Basharat and being wife death of Muhammad Hanif deceased, there was a crucial time for me and a burning news."
' The appellants neither opted to lead evidence in their defence nor did they appear as their own witness to make statement on oath in disproof of allegations levelled against them, under section 340(2), Cr.P.C.
9. After conclusion of trial the appellants were convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
10. Learned counsel for the appellants argued that the appellants are innocent and have falsely been involved by the complainant; that actually it was an unseen occurrence; that in fact the appellant Khalil Ahmad alias Jumma was cultivating vegetables with the deceased and the complainant and the deceased were not on talking terms with each other; the complainant thought that Khalil Ahmad was good companion of the deceased in dispute between both the brothers; that the complainant wanted to develop illicit relations with the appellant Mst. Imam Sain, wife of his brother/deceased, failing which firstly he committed murder of Muhammad Hanif deceased and his son and also attempted to take lives of other children and then he has implicated both the appellants; that the instant case is based upon solitary witness of Yasmeen P.W.3 whose statement, by itself, is not reliable and worthy of credence as she was not a competent witness to understand the questions put to them by the defence and even otherwise her evidence got no corroboration from any other corner and such like weak and uncorroborated statement cannot be helpful for the prosecution in proving the guilt of the appellants; that the prosecution has miserably failed to perform its legal duty in proving the case beyond shadow of reasonable doubt and prayed for the acceptance of this appeal.
11. Conversely, learned D.P.-G. For the State vehemently opposed the contentions raised by learned counsel for the appellants and maintained that during the investigation, the appellants were found involved in this crime, which fact was further proved at the trial through confidence inspiring and unimpeachable evidence of P.W.3 Yasmin and the appellants are fully connected with the brutal murder of two innocent persons and attempt to take lives of minor children. The medical evidence has fully corroborated the prosecution case against the appellant, therefore, both the appellants do not deserve any leniency and the learned trial court has rightly convicted and sentenced the appellant, so the instant appeal merits dismissal.
12. We have heard the learned counsel for the appellants, learned Deputy Prosecutor General and gone through the record with their able assistance and observed that the instant case is based mainly upon the testimony of P.W.3 Yasmin, who is 10/11 years of age, the real daughter of appellant Mst. Imam Sain and deceased Muhammad Hanif, as she is the only witness who furnished the direct evidence of motive and the incident, committed by both the appellants. When she was produced before the learned trial court, the learned court satisfied itself as to the level of her understanding by putting questions to her in this regard and it is thereafter that her statement was recorded. She very clearly stated in her examination in chief as under: "About seven months ago before the evening fall, Khalil alias Jumma accused now present in court, came to our house and he handed over some thing wrapped in paper (Puri) to my mother and the contents of that were put into the rice/meal by my mother Imam Sain accused now present in court, while those were being prepared for night meal... Both the accused present in the court due to their mutual illicit relations have murdered my father and brother and also attempted to cause our death by administering poisonous substance in the rice prepared for our night meal."
She also explained taking of less quantity of food by the children, including herself, who survived, in her examination in chief. During cross-examination, she not only firmly faced the rigor of cross- examination but also remained stuck to her earlier statement recorded under section 161, Cr.P.C. As no material or noticeable improvement in and no deviation from her previous statement is available in her statement before the learned trial court. She remained persistent regarding her previous stance. The defence could not shake her confidence and she answered several material questions in a very straightway manner on each and every aspect of the occurrence, when cross examined, she explained her statement furnished by her in examination in chief. The following parts from her cross examination are sufficient to prove the motive of the occurrence:-- "...No one had told me any thing about illicit liaison of Khalil alias Jumma accused with my mother Imam Sain accused. Volunteered that I myself had perceived such fact. I had also once told the fact of illicit liaison of the accused interse to my father, prior to this occurrence and thereupon my father had quarrelled with my mother... Volunteered that the accused himself came to/used to come to our house in the absence of my father. My father Hanif deceased had for some time in the past cultivated the land in partnership with Khalil alias Jumma accused but the said partnership was also frustrated due to suspicious conduct of Khalil Ahmad alias Jumma accused, viz-a-viz my mother Imam Sain accused."
During cross examination her answers kept explaining and confirming her statement in examination in chief and despite best effort, nothing beneficial to any of the appellants, could be derived from her statement by the defence. Her relationship with the appellant Imam Sain makes her testimony more trustworthy. Her firmness and confidence while making statement reflect that she is the truthful witness of the nefarious activities of her mother, which resulted into death of her father and brother. From all aspects, her testimony is confidence inspiring being forthright. There is no doubt to this fact that she is the sole witness of the alleged occurrence of murder of both the deceased and in normal circumstances support from other witness is required to ensure the safer administration of justice but by now it is established proposition of law that conviction can be based upon the testimony of even a single witness, if it inspires confidence as it is the intrinsic value and worth of the testimony that weighs with the courts and not the number of the witnesses.
In criminal cases it is the quality and not the quantity of the evidence which settles the guilt or innocence of the accused and conviction can be based on testimony of a single witness even in a murder case. While holding so, we are fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Allah Bakhsh v. Shammi reported as PLD 1980 SC 225, it be held as under:-- "...In a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity."
' In the circumstances, the question before us is whether conviction on a capital charge can be maintained on solitary statement of Yasmeen P.W.3. Here we are also guided by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Mansha C The State" (2001 SCM R 199) wherein 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-eShahadat Order, 1984, (section 134 of the Evidence Act, 1872).
The said Article is reproduced hereinbelow 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)."
' Same view was reiterated by the Hon'ble Supreme Court in the case titled "Niaz-ud-Din and another v. The State and another" reported as 2011 SCM R 725.
So far as the contention, raised by learned counsel for the appellants, regarding the tender age and incompetency of Yasmeen P.W.3 is concerned; in our view, is not tenable because of the reason that Article 3 of Qanun-e-Shahadat Order, 1984 is very much clear in this regard, which is reproduced as under:-- "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."
' So, the supra provision of law suggests that only those persons are not competent to testify before the Court who are unable to understand the questions put to them to evaluate their tender age, old age or other infirmity.
' Article 3 of Qanun-e-Shahadat Order, 1984 is a rule of caution. The question in each case, which a Court is to testify is whether a particular child who has appeared in the witness box is intelligent enough to be able to understand as to what evidence he is giving and he should be able to give rational answers to the questions. No particular age is given by the legislature which determines the question of competency of a witness. This only depends upon the capacity of the child to understand. In the instant case, the child witness who has been produced by the prosecution was of the age of 10/11 years and she was not of the age who could not understand the questions put to her and after the perusal of the evidence of the said witness, we have found her an intelligent witness because she has given rational answers to the questions put to her by the defence. In this regard, light is sought from the judgment passed by the Hon'ble Federal Shariat Court in case titled "Muhammad Yaqoob v. The State" reported as 1993 PCr.LJ 1852, wherein the Hon'ble Court has held as under:-- "...It cannot, therefore, be said that Mst. Nusrat Bibi was of such a tender age that she could not make a coherent deposition. The words "tender age" as used in this Article, do not specify any particular age of a witness, it is only the capacity of a witness to understand things rationally and then to reply to them."
' So having guidance from Article 3 of Qanun-e-Shahadat Order, 1984 and the supra referred judgment, we are of the view that Yasmin P.W.3 was fully competent witness and, therefore, the contention raised by the learned counsel for the appellant is repelled.
13. Moreover, the evidence furnished by her, further finds corroboration from the medical evidence produced by the prosecution through P.W.9 Dr. Shahid Farooq who conduced autopsy of both the deceased persons Muhammad Hanif and Basharat and P.W.11 Dr. Ghulam Farid who examined all the five children including Yasmin P.W.3 aged 10/11 years, Amanat Ali aged 5 years, Zahida aged 8 years, Shahida aged 3 years and Liaqat Ali aged 7 years, all not examined due to their tender ages, supported by the reports of Chemical Examiner Exh.PQ, Exh.PR regarding viscera of Muhammad Hanif and Basharat deceased and Exh.PS, Exh. PT, Exh. PU, Exh.PV and Exh.PW regarding blood and urine samples of the survived victims including P.W.3 Yasmin and Exh.PX regarding the cooked rice, taken into possession from the place of occurrence available in the kettle P.1 through memo Exh.PB by the investigating officer. All the said reports are consistent regarding the detection of "insecticide belonging to organo phosphorus group" in all above mentioned articles, which became the cause of unnatural death of Muhammad Hanif and Basharat and unconsciousness of five victim children.
We have thrashed the complete evidence on record of this case and after considering all pros and cons of the matter, we have come to an irresistible conclusion that the statement of Yasmin P.W.3, the eye-witness of the occurrence is confidence inspiring, which stands substantiated from the circumstances and other evidence produced by the prosecution.
14. The appellant Mst. Imam Sain, with active participation of her co-appellant Khalid Ahmad alias Jumma, has inhumanly and ruthlessly choked the life out of her husband and real son and also attempted to deprive her other five children of their precious lives. It is a desperate and inhuman act on the part of so-called human beings, which has resulted into a shock to the society as no one can expect from a wife and from a mother to take life of her husband and real son just to breed amorous relationship and as such keeping in view the callousness of the appellants, they do not deserve any leniency or favour.
' In this case, we have come to an irresistible and unavoidable conclusion that the prosecution remained successful to prove its case beyond any shadow of doubt against the appellants. Hence, the instant Appeal No.290-J of 2011 is dismissed.
' The Murder Reference No.486 of 2009 is answered in the AFFIRMATIVE and the death sentence awarded in this case G is CONFIRMED.