' ASSADULLAH KHAN CHAMKANI, J.--Appellant Muhammad Ali Jan, was tried for crime under section 302, P.P.C. And at the conclusion of trial, learned Additional Sessions Judge-I, Swabi vide judgment dated 7-10-2010, convicted and sentenced him under section 302(b), P.P.C. To undergo life imprisonment as Ta'azir and to pay Rs,1,00,000, as compensation within the meaning of section 544-A, Cr.P.C. To legal heirs of deceased Mst. Hamida or in default thereof to undergo 6 months' SI.
Further, in case F.I.R. No,179 dated 22-2-2009 under section 302, P.P.C., registered at Police Station Swabi. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. The appellant has questioned his conviction and sentence through the instant appeal while Criminal Revision No,202-P/2010, has been filed by petitioner Muhammad Umeer, seeking enhancement of sentence of convict/respondent from life imprisonment to penalty of death.
3. As both are the outcome of same judgment dated 7-10-2010, therefore, we are going to dispose of the same, through this common judgment.
4. Briefly, the prosecution case is that on 22-2-2009, Muhammad Ali Jan complainant (now appellant/convict), in company of dead body of his wife Mst. Hamida deceased and in presence of his daughter Mst. Shamim Akhtar, reported to Amir Hamza Khan ASI in casualty of DHQ hospital Swabi, that his marriage was solemnized with the deceased some 13/14 years before and from their wedlock a daughter, namely, Mst.Shamim Akhtar was born, who is 12/13 years old now; that on that day at evening time, on return of his wife from her parent's house, she told him about taking of some medicine due to pain in her tooth; that then he went outside home and on his return at 20-00 hours, she told him that she was not feeling well because of taking medicine brought from "Hamza Dawakhana Gulo Dheri Swabi" for treatment of infertility; that he brought said "Hakeem" who had provided medicine to the deceased, who on examination of the deceased, advised the appellant/convict to shift her to hospital; that he was shifting the deceased, but she died on the way to hospital. He desired for conducting Postmortem examination of the deceased. The report of appellant/convict then complainant was incorporated in Daily Diary No,5 dated 22-2-2009, which was signed him as well as his daughter Mst. Shamim Akhtar.
5. Postmortem examination of the deceased was conducted by Lady Doctor Nasreen WMO DHQ Hospital Swabi (PW.12), who observed the following:-- ' Middle aged women with soft and fresh body. Brown printed Qameez and Shalwar.
External wounds: ' Irregular bruised marks all over her face, shoulder and neck. All thoraxes organs as well as stomach were found healthy. Piece from the stomach and liver were taken for chemical analysis.
' According to her opinion the cause of death was suspected poisoning.
6. On the report of complainant (appellant/convict), inquiry under section 174, Cr.P.C. Was initiated.
On the following day i,e, 23-2-2009, Mst. Shamim Akhtar recorded her statement under section 164, Cr.P.C. Wherein she charged her father/appellant Muhammad Ali Jan for committing murder of her mother Mst. Hamida by administering her poison, as such the appellant was arrayed as an accused.
7. On completion of investigation, Challan was submitted against the appellant before the Trial Court, where he was charge sheeted to which he pleaded not guilty and claimed trial. In order to bring home the guilt of appellant, prosecution examined as many as twelve witnesses. After closure of the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations, professed his innocence and reiterated the same version as set forth by him in his Daily Diary Report. He, however, declined to be examined on oath as his own witness under section 340(2), Cr.P.C. Or to produce defence evidence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above.
8. Learned counsel for the appellant argued that it is a case of no eye-witness while PW Mst.
Shamim Akhtar is a tutored witness who resiled from her earlier version being under the influence of her maternal uncles; that her version about murder of the deceased by the appellant by administering her poison is just a cock and bull story, finding no corroboration from any independent piece of evidence; that the conduct of the appellant at the crucial time to save the life of his wife is quite natural; that not an iota of evidence has been brought on record to prove strained relation of the appellant and deceased prior to the occurrence; that medical evidence totally negates the version of prosecution. He contended that all these aspects of the case, which create serious doubts in the prosecution case, escaped notice of the Trial Court, and thereby wrongly held the appellant guilty of the offence, therefore, the impugned judgment being bad in law is liable to be set at naught.
9. Conversely, learned counsel for the respondent contended that prosecution has fully proved the guilt of the appellant up to the hilt through overwhelming evidence, as such the learned Trial Court has rightly held him guilty of the offence. He further contended that when the guilt of the appellant was proved, the learned Trial Court ought to have awarded him maximum penalty of death as provided for the offence. He sought dismissal of the appeal and requested, for enhancement of sentence of the convict.
10. Learned A.A.-G. Adopted the arguments of learned counsel for the respondent and supported the impugned judgment.
11. We have given our anxious consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.
12. The learned Trial Court while recording conviction and sentence of the appellant relied upon the testimony of Mst. Shamim Akhtar (PW.11), medical evidence and conduct/abscondence of the appellant.
13. On the face Daily Diary No,5 dated 22-9-2009, it was appellant himself who shifted the dead body of his deceased wife to hospital and lodged report in presence of his daughter Mst. Shamim Akhtar (PW.11), which besides him, was also signed by her as verifier. But on the following day on 23- 9-2009, Mst. Shamim Akhtar denied the report of the appellant and recorded her statement .Under section 164, Cr.P.C. Charging therein her father/appellant for committing murder of her mother by administering her poison.
14. During trial Mst. Shamim Akhtar appeared as PW.11. She is a child witness because as manifest from the record, at the time of occurrence her age has been shown as 12/13 years. Record divulges that on one hand, the learned Trial Court while recording her statement has not complied with the mandates of Article 3 of the Qanun-Shahadat Order, 1984 to determine her competency to testify by putting her questions. If the Trial Judge, who examined her, recorded a note that he was satisfied that she was intelligent and capable of understanding the question which was likely to be put to her, nothing was in law to prevent the Court from accepting that note as sufficient proof of the capacity of the child to be a witness under Qanun-e-Shahadat Order, 1984, because what the law requires, is not the factor of age, but the intelligence of a particular child witness in the circumstances of the case. On the other hand, no hard and fast rule can be made to ascertain that child is a competent witness or not, but it depends on facts and circumstances of each case. Court has to accept such evidence with great care and caution because a child of tender age is a dangerous witness who can easily repeat glibly a story put into his/her mind and does not possess discretion to distinguish between what he/she has seen and what he/she has heard. Courts as a matter of prudence are generally chary of putting absolute reliance on evidence of child witness and look for corroboration of same from other circumstances in the case. Evidence of a child witness before being acted upon should be subjected to a close and careful scrutiny and should not be relied upon until and unless it is corroborated by some strong circumstances in case, because children are most untrustworthy class of witnesses, because of their tender age they often mistake dreams of reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and desire of notoriety.
While considering the evidence of child witness these observations should not be lost sight of.
Thus, while taking the case in hand at the touchstone of the principles referred to above, we would like to scrutinize the testimony of Mst. Shamim Akhtar. For convenience we would like to reproduce her examination-in-chief which read as under:- "Deceased Mst. Hamida was my mother. Accused Muhammad Jan facing trial is my father. On the day of occurrence i,e, 22-2-2009, I along with my mother Mst. Hamida and my father Muhammad Ali Jan accused were present in our house at Gulo Dheri at evening time. 1 and my father Muhammad Ali Jan took evening meal while my mother was engaged in other works. I then went to the house of my uncle namely Umar Farooq. After some time, my father came behind me and asked me to come to the house. I told that I was coming. When I came out from the house of my uncle there in the thoroughfare my father Muhammad Ali Jan was two paces ahead of me. When I entered the house and went straight to the room, there I saw my mother vomiting. I inquired from my mother and she replied that my father had administered her poison due to which her condition had deteriorated. Thereafter I called my neighbour who came and they started reciting Qur'an. My father went behind the doctor. My mother died in the house. Thereafter 1 contacted my maternal uncle. When I went to other room of the house there we found medicine scattered on the grounds which I collected. My cousin namely Nasir came and took it from me. In the meanwhile my father also came to the house and asked me not to tell anything about it to anybody. I am fully satisfied that my mother Mst. Hamida was murdered by my father Muhammad Ali Jan, therefore, I charge him. I pointed out the spot to the I.O. And have made statement before the police and in the Court".
' She was subjected to cross-examination by the defence. In her cross-examination she categorically denied her presence with her father/appellant at the time of making report in the hospital by deposing that "I have not accompanied my mother and father to the hospital, however, later I was called on telephone by nay cousins. I was in the house of my maternal uncle when my statement was recorded by the on 'the following, morning. At the time of recording my statement, my maternal uncles were present with me." Daily Diary No,5 dated 22-2-2009 falsify the above statement of PW.11 wherein she has signed the report of the appellant as a verifier. From her statement and peculiar facts and circumstances of the case, (PW.11) is a tutored witness who resiled from her earlier version due to influence of her maternal uncles because her statement was recorded in presence of her maternal uncles, and that too in their house, which means that she was totally under the command of her maternal uncles. Perusal of her further cross-examination reflects that she has supported the version of her father/appellant by deposing that, "on the day of occurrence my mother had gone to the house of my maternal uncle in the morning and returned at evening". Same fact has been advanced by the appellant qua visit of his deceased wife to the house of her parents at morning and her return at evening. In Daily Diary report, the appellant has stated that when his wife told him about taking of medicine of "Hakeem" he went behind him and brought him for her treatment. The same fact has been admitted by PW.11 in her cross-examination by stating that "it is correct that at the time of vomiting of my mother, my father had brought a "Hakim" namely Sohail for her treatment". Moreover, the story of administering poison to the deceased seems to be a cooked and fabricated story because PW.11 in her examination in chief deposed that when she entered the house and went straight to the room, there she saw her mother vomiting; that she inquired from her and she replied that her father had administered her poison due to which her condition deteriorated, so she call her neighbours and they started reciting the Holy Quran while her father went after the doctor, because if the accused/appellant was intending to commit murder of the deceased, then he would not have called her daughter PW.11 from the house of her uncles rather he would wait till her death and may hide from the spot as no one was there with him in the house and the deceased was squarely on his mercy. As against that, he run from pillar to post to save the life of his wife by calling the said Hakim from whom the medicine were purchased and on his direction the deceased was shifted to the hospital.
No shred of evidence has been brought on record to show previous strained relation or any oral altercation between the deceased and appellant. Had there been any previous altercations, PW.11 could tell about the same. As evident from his report, the appellant himself has requested for postmortem examination of the deceased. Had there anything black in the bottom, then he would have never made such request. He remained with the deceased right from the time when she reached home at evening and her condition started worse till hospital. It is on record that except Mst. Shamim Akhtar, deceased and appellant had no other issue from the last 12/13 years and the deceased was taking herbal medicine of fertility.
15. Zarif Khan SI, who conducted investigation in the case has been examined as PW.10. His statement particularly cross-examination substantiate the version of the appellant by deposing that "I recorded statement of Muhammad Sohail Hakim. It is correctly mentioned in the statement of Muhammad Sohail that Mst. Hamida had visited the shop/clinic for her illness and according to her disease the said Muhammad Sohail had given her medicines. In the said statement he has also stated that on 22-2-2009 Muhammad Ali Jan accused along with Ansar All visited him and stated that condition of Mst. Hamida is not well and that he should visit their home with whom he went and found Mst. Hamida vomiting and that said Muhammad Sohail told him to take her to hospital". Again, the version of Mst. Shamim Akhtar (PW.11) also does not find support from medical evidence. She has not stated a single word about thrashing of the deceased by the appellant nor has stated anything that her deceased mother told her that she was beaten by her father whereas irregular bruised marks all over her face, shoulder and neck have been observed during her postmortem. If the deceased could tell PW.11 about administration of poison by her father/appellant, she could also tell her about her beating by the appellant.
16. Neither the medicine allegedly thrown in room of house of the appellant and taken into possession by PW.11 have been produced before the I.O. Nor exhibited before the Court. In this regard I.O. Deposed that Mst. Shamim Akhtar did not hand over any poison material to him nor it is mentioned in the explanation of point A and Point 2-A of the site plan". Similarly, the vomiting of the deceased, which was the best available evidence has not been taken into possession for chemical analysis by the FSL.
17. Lady Doctor Nasreen has been examined as PW.12, who conducted autopsy on the dead body of the deceased, during which course she obtained piece of stomach and that of liver from the body of the deceased for chemical analysis, but these were not sufficient for conducting the analysis, as per report of the Chemical Examiner (Bio-Chemist), Department of Forensic Medicines and Toxicology, Khyber Medical College, Peshawar, therefore, exhumation of the dead body of the deceased was conducted on 26-5-2009 wherein, plucked hair, two fingers nails, whole stomach, intestine, liver, earth specimen were taken and sent to the FSL for chemical analysis. In cross- examination PW.12 deposed that she has given her last findings in Postmortem report, in column of remarks on 4-6-2009, which are based on FSL report wherein methamphetamine (+ + +) is written with a pen; that she does not know whether methamphetamine is a kind of poison or not.
18. So far as abscondence of the appellant is concerned, prosecution cannot seek support from factum of abscondence of the appellant when the other material evidence of the prosecution has been disbelieved being pregnant of doubts and suffering from material contradictions. Moreover, bscosion alone is not a conclusive proof of guilt of accused person. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. Reliance can be placed on case titled "Rohtas Khan v. The State" (2010 SCM R 566), "Rahimullah Ian v. Kashif and another" (PLD 2008 SC 298).
19. In wake of the above discussion, we have reached to an irresistible conclusion that the.
Prosecution has failed to prove the guilt of appellant through cogent and confidence inspiring evidence. Rather the prosecution case is pregnant of doubts benefit of which is to be extended to the appellant in light of the cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt and if any reasonable doubt arises in the prosecution case, benefit of the same must be extended to the accused J not as a grace or concession, but as a matter of right. Reliance placed on case titled, "Tariq Pervaz v. The State" (1995 SCM R 1345) and Muhammad Akram's case (2009 SCM R 230).
20. Resultantly, we allow this appeal, set aside the conviction and sentence of the appellant recorded by the trial Court and hereby acquit him of the charge levelled against him. He be set at liberty forthwith, if not required in any other case.
' These are reasons of our short order of even date, which is reproduced below:- ' For reasons to be recorded later, we allow this appeal, set aside the conviction and sentence of appellant, namely Muhammad Ali Jan, recorded by learned Trial Court/Additional Sessions Judge- I, Swabi vide impugned judgment dated 7-10-2010, in case FIR No, 179, dated 22-2-2009, registered under section 302, P.P.C., at Police Station Swabi, and hereby acquit him of the charge in the aforementioned case. He be set at liberty forthwith, if not required in any other case. On acquittal of the appellant, connected Criminal Revision No,202-P/2010, titled, "Muhammad Umeer v.
Muhammad Ali Jan" has become infructuous, which stands dismissed.