M. BURHANUDDIN KHAN, J.--Appellant Maqsood Khan, son of Ghulam Muhammad, aged 21 years, was tried by the Addl. Sessions Judge, Mianwali, for the murder of a young girl Mst. Hamida by strangulating her to death as well as robbing her ornaments on 18-5-1976 at digerwela in the area of Chah Hayat Khanwala. He was convicted by the trial Judge under sec--tion 302/392. Under section 302 he was sentenced to death and a fine of Rs, 500, which on recovery, was to be paid to the heirs of the deceased by way of compensation under section 544-A, Cr. P. C. Under section 392 he was sentenced to undergo 2 years' R. I. And in case his death sentence was not confirmed and is altered to imprisonment for life, then the two sentences shall run concurrently. The petitioner filed an appeal against his death sentence which came up before the Lahore High Court but the learned Judges vide their judgment dated 9-4-1978, dismissed the same and confirmed his death sentence.
2. The appellant then filed a petition for special leave to appeal against the judgment of the High Court and leave was granted by this Court on 17-2-1979 to examine the contention raised by the learned counsel for the appellant to the effect that Maqsood Khan, appellant petitioner was residing close to the village Paikhal and was already known to the parties and if he had actually been seen committing the murder he would have been named in the F. I. R. As Mehr Khan P. W. 4 admitted that Maqsood Khan and his brothers lived at a dera, riot far from the limits of Paikhal and that the family of the accused was known to him since long. Therefore, the identification parade had no value. In addition to this, Muqarrab Khan, P. W. Had improved upon his version given in the F.
I. R. By Mehr Khan wherein it was stated that Muqarrab saw a man engaging Mst. Hamida in a small talk and taking her to a ditch, and suddenly he beard a scream whereupon he ran and not that he had actually seen the accused putting dopatta around the neck of the deceased and started twisting it. The recoveries were also challenged before the Court and it was contended that the factum of recovery was not covered by section 27 of the Evidence Act and lastly to examine the fact that the prosecution witnesses were closely related inter se and to the deceased and as such their evidence was tainted and could not be implicitly relied upon.
3. At the trial the learned Sessions Judge examined Dr. Ashiq Ali Chowdhry who had performed the post-mortem examination on the dead body. The doctor found the following injuries on the dead body ;
(i) A ligature mark 4.1/2' x 1/2' on the neck starting from a point slightly on right side of mid-line and going to left side up to the lateral side of the neck. The base of ligature mark was slightly pale and edges were slightly congested. On dissection slight congestion was present subcutaneously below the ligature mark. Muscles were congested and the trachea was also congested. The thyroid cartilage was broken on left side.
(ii) An incised wound 1' x 1/4' x skin deep only on right side of neck starting from mid, line and going to right side transversely. Slight clotted blood was present around the wound.
In the opinion of the doctor, death was due to asphyxia caused by strangula--tion due to injury (i) which was sufficient to cause death in the ordinary course of life. He proved the post-mortem report Exh. P. A. And the sketch of injuries Exh. P. A./1.
4. Ghulam Ahmad, P. C., P. W. 3 escorted the dead body for post--mortem examination and thereafter brought clothes of the deceased dopatta P. 7, shirt P. 8 and shalwar P. 9 and a pair of her shoes P. 10/1-2 which he handed over to the S. 1. (S. H. O.) Ghulam Muhammad who took them into possession vide Memo. Exh. P. G. And he signed the Memo. As a witness.
5. Mehr Khan P. W. 4, father of the deceased, was examined at the trial. According to his statement, he along with his 3 brothers, was present at the thrashing floor of Chah Hayatwala: He asked the deceased and Muqarrab, P. W. To take the cattle for showing water to them. Both the deceased and Muqarrab took the cattle to a nearby syphon on the Thal Project Canal lying at a distance of about 1.1/2 furlongs from his dera. About half an hour of their departure Muqarrab, P. W. 6 came running and informed him that while he and Mst. Hamida, deceased were present on the southern bank of the syphon, a young well-built man blackish in colour wearing black clothes and carrying three sickles in hand, one of which was broken, asked the deceased to accompany him for cutting jharu straws for her. Mst. Hamida, deceased accompanied the man to the other side of the syphon and when they reached in a ditch the man snatched the dopatta of Mst. Hamida and put it around her neck, twisted the same. On this Mst. Hamida deceased screemed and he, therefore, out of fear, ran back and informed the witness about what had happened. Muqarrab also informed Mehr Khan that the deceased had already collected some straws from the reeds for making a jharu and that before strangulating the deceased the accused had cut some reeds for making a jharu with the help of a sickle.
6. Getting this information from Muqarrab, Mehr Khan alongwith his 3 brothers, rushed in the direction. Where the deceased was taken by the accused. On reaching there, they were looking for the accused when they spotted Sher Muhammad and Faizullah Khan, P. Ws. Grazing their cattle, who, on inquiry, informed them that they had seen a person wearing militia clothes and carrying something in his hand and putting a dabbi dhoti on his shoulder, running towards the north. They further told Mohr Khan and his brothers, that the said person, on seeing them, changed his route by the canal bank ; and that they had seen the man in the first instance, coming out of the reeds. After getting this information, Mehr Khan and his brothers, proceeded in the direction pointed out by the witnesses and found the deceased lying dead with a piece of cloth around her neck. They also discovered that the silver kangans and golden ear-rings were missing which the deceased had on her person before she left with Muqarrab. He further told that in the meantime Karam Dad and Nur Khan P. Ws. Also arrived, whereupon he leaving his 3 brothers with the dead body, and accompanied by Karam Dad and Nur Khan, left for the police station. While on way, he met the S. I.
At the junction of Mochh-Paikhal and Kala-bagh-Mianwali Road, and narrated the occurrence which the S. I. Recorded vide Exh. P. F. And he thumb impressed it after admitting the same to be correct. The S. I. Accompanied him to the spot where his brother Muhammad Khan told him (Mehr Khan) that he had come to know from Abdur Rahman and Ghulam Muhammad P. Ws. About their having seen Maqsood Khan accused going on the canal bank with sickles in his hands and dressed in militia clothes. He passed the information to the S. I. Who recorded his supplementary statement. He also informed the police that the ornaments, which the deceased was wearing, were got prepared by him and his wife Mgt. Adam Khatun from Ghulam Muhammad, P. Ws. He identified those ornaments after the same were recovered from the possession of the accused.
6-A. Muqarrab, P. W. 6, when examined at the trial, stated that at deeger--wela on the day of occurrence his father Jehangir asked him and Mst. Hamida, deceased on the threshing floor to take the cattle to the syphon for showing water to them. Accompanied by Mst. Hamida he took the cattle and while proceeding in that direction Mst. Hamida deceased started breaking the jharu- reeds on the way for making a jharu. On reaching near the syphon they showed water to the cattle and left them grazing in the nearby field. Then he and Mst. Hamida stated playing when in the meantime a person, whorl he later on identified as Maqsood, dressed in militia clothes and a dirty dubby dhoti carrying three sickles one of which was broken, offered to cut jharu-reeds for him and the deceased. At this Mst. Hamida accompanied him to the other side of syphon into a ditch and he (Muqarrab) followed them. After cutting about three reeds from the ditch, the accused suddenly snatched the dupatta of Mst. Hamida and put it around her neck and started twisting it. Mst.
Hamida screamed and hearing her scream he (P. W. 6) ran towards his threshing floor to inform his father and uncles. On reaching there he narrated the incident to them and they immediately rushed towards the spot leaving him behind. 3/4 days after the occurrence he correctly identified the accused Maqsood in the identification parade held in the Central Jail Miarwali as the parson who .Gad strangulated Mst. Hamida. He further stated that Mst. Hamida deceased was wearing silver bangles in both of her hands and golden ear-rings in her ears.
6-B. Rana Abdul Hamid, P. W. 7 held the identification parade of the accused inside the premises of tire Central Jail, Mianwali at 11 a.m. Before summoning the accused. He kept all the witnesses outside the, premises of the jail and then called the accused and asked Nina to stand in the line-up with other line-up under trial prisoners after giving him the option to put on the dregs of his choice and stand at a place with the other under trial prisoners wherever he liked. After completing all the legal formalities he called Muqarrab P. W. "and asked him to identify the accused who correctly pointed out the accused telling that he was the person who had taken Mst. Hamida deceased and murdered her. He then sent out Muqarrab and summoned the next witness after giving time to the accused to change his dress and his position in the line. The accused changed his position and occupied the place at No. 6 whereas earlier he was standing at place No. 4. Thereafter Faizullah Khan, P. W. Was summoned to identify the culprit who too correctly picked out Maqsood accused.
Following the same procedure Rana Abdul Hamid then called Sher Muhammad P. W. To identify the accused and he also correctly identified accused Maqsood. He then prepared the Identi--fication Certificate vide Memo. Exh. P. W. 7/E.
7. Abdullah Khan P. W. 8 Lambardar of Mauza Paikhel joined the investigation and he stated that in his presence the police took into posses--sion from the scene of crime Jharu P. 1, four jharu-reeds (chhinkis) P. 2/1-4 vide Memos Exh. P. B. And Exh. P. C. And he signed the Memos. On 25-4-1974 he was again called by the police in his presence the accused, while in custody, led the police to the recovery of a pair of golden ear-rings P. 3/1-2 and a pair of chhan kangans of silver P. 4/1.2 which were lying in a cement pipe P. 5 across the bridge on the canal in front of the abadi of Paikhel town.
The police took these articles into possession vide Memo. Exh. P. O. At the same time, the further stated, Maqsood Khan accused led the police to the recovery of three sickles P. 6/1.3 one of which was broken and the same were lying hidden under a bundle of cut-reeds. The police also took them into possession vide Memo. Exh. P. R.
8. Ghulam Muhammad P. W. 9 stated at the trial that on his way to his fields at the relevant time at deegarwela when he reached a bridge on the Thal Project Canal near Paikhel, he met Maqsood Khan, accused who was coming by the canal bank from the southern side. At that time Abdur Rahman, P. W. Was also accompanying Ghulam Muhammad. Maqsood, accused was wearing militia clothes and had three sickles in his hand one of which was broken. He had put on a dabbi dhoti on his shoulder. After crossing the bridge they proceeded to their fields while Maqsood proceeded in the northern direction through reeds and bushes. After spending about an hour or so in his field he alongwith Abdur Rahman returned and after crossing the bridge on the canal on way back to their homes they heard hue and cry and saw many people going. Towards the south. On his enquiry Mehr Khan, P. W. Told him that his daughter Mst. Hamida had been murdered. At this he and Abdur Rahman went to the spot and found Muhammad Khan, P. W. And some other persons sitting with the dead body of Mst. Hamida. On his enquiry Muhammad Khan told him that Muqarrab P. W. Had informed him that a person wearing dirty clothes and carrying sickles committed the murder. Hearing this he immediately came to the conclusion that this was the act of Maqsood Khan who had met them shortly before. He accordingly informed Muhammad Khan about Maqsood having come across them near about the scene of occurrence. Later on he identified Maqsood accused in the identification parade.
9. Sher Muhammad P. W. 10 also stated at the trial that he was present in the syphon grazing his cattle and Faizullah P. W. Was with him. At about deegurwela he saw a person of blackish colour wearing militia clothes, putting something on his shoulder and carrying something in his hand, going towards the north through the reeds. The said person on getting closer to him took a turn towards the north by the canal side. After a short while Muhammad Khan and Mehr Khan P. Ws.
Came and asked him if he had seen any person going that way and he informed him that they had seen a person of the description going towards the north. Muhammad Khan and Mehr Khan told him that they were searching for Mst. Hamida who had disappeared and on getting this information from him, they turned back. On the same day at khuftanwela Jehangir Khan came to him and informed him that he was wanted by the police. Later on, he identified the accused in identification parade in the Central Jail, Mianwali.
10. Jehangir Khan P. W. 11 was produced to prove the extra-judicial confession of the accused appellant regarding the murder of Mst. Hamida and removal of her kangan and ear-rings and that he should plead mercy for him from the relatives of the deceased and further asked him to take Karam Dad, who was a B. D. Member, to get forgiveness from the relatives of the deceased. He told the accused to go and see Karam Dad and that he will follow him. The accused left and he followed him and saw him standing in the lane in front of his house. He asked the accused whether he had dis--closed the purpose of his visit to Karam Dad and he replied in the affirmative. So he alongwith Karam Dad went to the house of Aslam Khan in Wandhi Sunaran Wali where the police was present and they handed over the accused to the police.
11. Ghulam Muhammad, P. W. 12 stated that the police showed him ear-rings P. 3/1.2 and chhan kangans P. 4/1.2 and asked him whether he could identify the ornaments. On seeing these ornaments he said that these were the same which he had made for Mehr Khan, P. W. And his wife for Mst. Hamida.
12. Ghulam Muhammad, P. W. 14 investigated the case. He was S. H. O., police station Mochh. He stated that on 18-5-1974 he was present at Chowk Railway Station Paikhel when Mehr Khan, P. W.
Came and lodged the report Exh. P. F. He correctly recorded the report and got his thumb impression. He then sent this report to the Police Station for the formal registration of the case. Then he proceeded to the spot and found the dead body of Mst. Hamida lying there. He prepared the inquest report Exh. P. H. And injury statement Exh. P. U. And sent the body for mortuary under the custody of Ghulam Ahmed, F. C. He also recovered from the spot jharu P. 1 tied in a piece of cloth and four chhaneks (jharu, reeds) P. 2/1.4 and took them into possession vide Memo Exh. P. C. These were lying near the body of the deceased ; and that since it was raining he put off the further investigation till the following morning. As it was raining and no transport was available Ghulam Ahmed, F. C. Could not carry the dead body of Mst. Hamida to the mortuary 'which was sent the next morning. The said F. C. Brought back dopatta P. 7, shirt P. 8, shalwar P. 6 and a pair of chappals P. 10/1.2 from the mortuary which he took into possession vide Memo. Exh. P. G. On 20-5-1974 he summoned Nur Khan Ahmed (Patwari) and got the site plans prepared Exh. P. K. And Exh. P. K/l. On 22-5-1974 he incorporated his own notes on the site Plans in red ink correctly. On 22-5-1974 he was present in the house of Aslam Khan in Wandhi Sunaran Wali Paikhal town where Karam Dad and Jehangir Khan P. Ws. Produced Maqsood Khan accused. He interrogated him and formally arrested him at 7 a.m. The same day. Immediately after his arrest he (P. W. 14) asked the accused to cover his face as he will be made to be identified in a parade by the witnesses ; and sent him the same night to the police station for his onward transmission to the Central Jail Mianwali on the following day. On 23-5-1974 he obtained judicial remand of the accused. On 24-5-1974 he made an application to the Duty Magistrate for identification parade which was held in the Central Jail, Mianwali by Rana Abdul Hamid, Magistrate, P. W. On 24-5-1974 be obtained personal remand of the accused for the recovery of ornaments and on 25-5-1974 Maqsood, accused, while in custody, led to the recovery of ear-rings P. 3/1.2 and chhan kangans P. 4/1.2 of the deceased from near the land of Muhammad Akbar Khan where these articles were concealed in a cement pipe near the canal.
He took them into possession vide Memo. Exh. P. D. Cement Pipe P. 5 was vertically buried in the ground. At the same time the accused led to the recovery of 3 sickles P. 6/1.3 one of which was broken, lying under bundle of cut reed and he took them into possession vide Memo. Exh. P. R. And prepared sketch of the place (Exh. P.L.) of this recovery. He got these ornaments identified by Ghulam Muhammad P. W. s/o Gulaya and Mst. Aslam Khatun mother of the deceased.
13. The accused, when examined, denied the allegation and said that he was innocent. He also denied his extra-judicial confession before Jehangir Khan and Karam Dad and denied the recovery of various articles by the police at his instance ; He stated that he had appeared before the police himself. Regarding the identification parade he stated that these witnesses remained with him during the investigation by the police.
14. The learned trial Court convicted the accused on the testimony of Muqarrab and believed that he had accompanied the deceased at the crucial time when the accused arrived there and saw him taking the deceased towards a ditch on the pretext of cutting jharu-reeds for her. His statement was found to be of great importance in the case as the witness had made a very straightforward and truthful deposition. It was observed by the trial Court "We cannot ignore the fact, this witness is a boy of very tender age having his mental faculties not fully matured. So, he is not expected to observe the minutest details of the occurrence and commit them t his memory for a long time. However, the fact remains that this witness remembered the face of this accused and few days after the occurrence he correctly picked him out in the identification parade as the same person who strangulated Mst. Hamida to death. I find no reason as to why this witness would not be believed on this point. There is nothing on the record to suggest any previous enmity of serious nature between the complainant party and the accused which might have prompted the former to implicate the latter in this case falsely by availing this opportunity."
We agree with this observation. In a case of a child witness it is immaterial whether he can understand and answer in a rational manner the questions put to him. No general rule of universal application can be laid down that in no case should the evidence of a child witness be believed.
Each case depends upon its particular facts and circumstances. The evidence of a child witness, before it is acted upon should, however, be subjected to a close and careful scrutiny. The mere fact that the evidence of the only eye witness of a crime is that of a child of 10 years of age is not a ground for no relying upon it especially when the evidence was given without hesitation and without slightest suggestion of tutoring anything of the sort and there is corroboration of the evidence in so far as it narrates the actual facts or the child's subsequent conduct immediately afterwards. The real tests are ; how consistent the story is with itself ; how it stands the test of cross-examination and how far it fits with the evidence and circumstances of the case.
15. The learned counsel contends that in the F. I. R. Mehr Khan has stated : "After the deceased and Muqarrab, P. W. Left to show water to the cattle Muqarrab came running and weaping and told him that a well-built man of blackish complexion wearing militia shalwar and qamiz, bare headed, holding a sickle came to them when they were watering the cattle ; sat down, engaged Mst. Hamida deceased in a talk and told her that he will cut reeds for her to make a jharu ; she accompanied him towards a ditch and suddenly she screamed. On seeing the occurrence he ran."
At the trial Muqarrab has given the same version and exception is taken only to one sentence in his examination-in-chief which I quote : "After cutting about three reeds Maqsood accused suddenly snatched the dupatta of Mst. Hamida and putting the same around her neck, started twisting it tightly. Mst. Hamida Screamed. On hearing the scream of Mst. Hamida deceased I ran towards our threshing floor to inform my father and uncles about the incident."
This is the statement of Muqarrab witness at the trial and he cannot be confronted with the statement of Mehr Khan what he said in the F. I. R. o at the trial. Statement of Muqarrab remained unshattered and does no suffer from any infirmity as suggested by the learned counsel.
16. Regarding the identification, the learned counsel emphasised the fact that the accused was in custody of the police and must have been shown to the witnesses before identification parade was held but this does not find support from the record. The Magistrate was examined and no such objection was got registered by the accused appellant at the time of identifica--tion parade.
Besides this, the recoveries of chars-kangans and golden car-rings at the instance of the accused appellant are established and believed by the two Courts as a strong piece of corroborative evidence against the appellant. After the arrest of the accused, it is on the record that he led the police, in the presence of the witnesses, to a place where he had concealed these two articles under a cement pipe. The factum of recovery is covered by section 27 of the Evidence Act and the learned counsel has not been able to point out any reason to exclude this evidence from consideration. Two other witness who are in no manner inimical to the accused nor have any personal motive to implicate him are Ghulam Muhammad, P. W. 9 and Sher Muhammad, P. W. 10.
Ghulam Muhammad, P. W. 9 had seen the accused while coming from the canal bank from the south and shortly thereafter he heard an uproar. He proceeded in that direction while the accused proceeded towards the north through reeds and bushes. On crossing the bridge he met some people. On his enquiry, they told him that Mst. Hamida daughter of Mehr Khan, P. W. Had been murdered. On having this information he, alongwith Abdur Rahman (not produced) went to the spot and found Muhammad Khan, P. W. And some other persons sitting with the dead body of Mst.
Hamida. On their enquiry from Muhammad Khan, P. W. As to how it had happened they were told that a person putting on dirty clothes and carrying three sickles committed the murder. On hearing this he informed him that Maqsood Khan accused was seen by him a short while ago and he had put on similar clothes as well as carrying sickles coming from the direction of the spot.
17. Sher Muhammad, P. W. 10 had also seen the accused. After seeing him he met Muhammad Khan and Mehr Khan, P. Ws. And on their enquiry, he told them that a person of the description was seen by him a little while ago crossing the bridge and proceeding towards the north and that at about Khuftan time he was called by the police and examined in this case.
18. Extra judicial confession of the accused appellant was made before Jehangir Khan, P. W. 11 and this witness had also been relied upon by the Courts below and we also find no reason to discard his evidence. He has no enimosity towards the accused nor is be in any way, interested in giving false statement.
19. This being the entire prosecution evidence we hold that the prosecu--tion case has been proved against the accused appellant beyond any reasonable doubt. No interference is called for and the appeal is, consequently, dismissed.