SHAH ZAMAN BABAR, J.-Bashir (aged 40/45 years) son of Faqir, of village Wahid Garhi, was tried under section 302, P. P. C. On the allegation that he on 1-9-1972 at Peshin Qaza' time on the path between Wahid Garhi and village Toda committed the murder of his sister's daughter Mst. Lai Zari.
He was tried by Mr. Abdul Karim Khan Kundi, Additional Sessions Judge, Peshawar and convicted under section 302, P. P. C. He was sentenced to a penalty of death subject to the confirmation by the High Court. Bashir has appealed. Reference for the confirmation of the death sentence is also before us. This judgment will dispose of the appeal as well as the reference.
2. One Faqir was a resident of village Wahid Gharhi. Bashir appellant is the son of Faqir while P. W.
Mst. Benazira wife of Ahmad Khan of village Toda, is the daughter of Faqir and she resides in the house of her husband. Mst. Lalzari (deceased) and Mst. Gulaba P.W. Are the daughters of Mst.
Benazira. Wahab Khan (P. W.) of village Toda is the brother of Ahmad Khan. Lai Zari at the time of her death was aged 20/22 years. About three years prior to the, murder of Lai Zari, she had eloped with one Shamsul Qamar of village Babuzai. Shamsul Qamar was tried for the offence of kidnapping and sentenced to seven months' R. I. Shamsul Qamar had come out from Jail sometime before the murder of Lal Zari. After the kidnapping, Lal Zari was married to P. W.
Asmatullah of village Nachapa and during the days of the occurrence she had two children from Asmatullah. The distance between village Toda and Wahid Garhi would be six furlongs. The site of occurrence is situated about three furlongs from both Toda and Wahid Garhi. Machapa is situated at a distance of about 1-- miles from village Toda. Wahid Garhi lies to the east of the spot while Toda lies to the west of the spot. Nachapa is situated to the north-west of the spot and to the north of village Toda. The distance between the site of occurrence and Police Station Daud Zai is 2-- miles. Faqir mentioned above had died. On 1-9-1972 at about Peshin Qaza time, Mst. Benazira daughter of Faqir, Mst: Lal Zari and Gulaba were returning from Wahid Garhi to village Toda after the funeral ceremony and burial of Faqir. Lai Zari and Gulaba were going ahead of their mother while their mother Mst. Benazira was following them and going slowly because Mst. Benazira was allegedly ill with fever. Near the Jhangi of one Ghulam, Bashir appellant came out of the `Jawar' field. Bashir was armed with a Tamancha. He fired two shots at Mst. Lai Zari. The first shot missed Lai Zari while the second shot hit her on the face. Lai Zari fell dead while the appellant ran away. It may be noted that the maize crop in the field near about the site of occurrence was about three feet high in those days. Gulaba went to village Toda and informed her uncle Wahab Khan P. W. About the occurrence. Wahab Khan after visiting the spot went to Police Station Daud Zai and lodged his report Exh. P. A. At 4-40 p, m, the same day. The report was scribed by P. W. Shamroz Khan S.H.O. Of Police Station Daud Zai Shamroz Khan left for the spot and reached there at 6 p.m. The dead body of Lai Zari was lying there. The S. I. Prepared the injury sheet and inquest report of the dead body and sent the dead body to the mortuary. At the time of inspecting the dead body, the S. I.
Recovered one lead bullet Exh. P. 5 of 303 bore from the blood-stained burqa of the deceased. The S. I. Also took into possession the tooth Exh. P. 6 from the clothes of the dead body. The S. I.
Inspected the spot and prepared the site plan Exh. P. G. At the instance of P. W. Gulaba. The S. I.
Picked up blood-stained earth from point No. 1, where Lai Zari had fallen dead as a result of the fire shot at her. Point No. 3 in the site plan depicts the place where Golaba was present. Distance between points Nos. 1 and 3 is eight paces. Mst. Benazira was shown at point 4 distant 45 paces from point No. 1. The accused was allegedly present at point No. 5 present to the occurrence and came out to point No. 1. According to an observation note on the site plan point No. 5 is visible from points Nos. 3 and 4. The maize crop at point No. 5 was about three feet high. The S. I. Searched the accused but could not arrest him, search warrant under section 204, Cr. P. C. Exh. P. Y. And proclamation under section 87, Cr. P. C. Exh.Y./1 were issued against the accused appellant. The S. I.
Had submitted the challan under section 512, Cr. P. C. However the accused was produced before the S. I. On 3-10-1972 by one Mohammad Hassan Khan of village Warsak Koroona a hamlet of village Umarzai. The accused was arrested. He produced no evidence of alibi before the investigating officer.
3. Lady Doctor S. M. Jan held the autopsy on the dead body of Lalzari aged 20/22 years on 2-9-1972 at 7-45 a. m. And found the following:- External Examination:
(1) An entrance of bullet wound ----- x ----- on the left side of the upper gum, left upper lateral incisor tooth was fallen. Left upper jawbone was fractured. No charring present.
(2) An exit of bullet wound 1' x 1' on the left side of the lower part of the back of the scalp half inch to the left of the mid-line. Occipital bone was fractured, in this injury. Hole in the burqa correspond to the injury on the body, which was handed over .To the police.
Internal Examination: Membraneous matter of left occipital lobe was lacerated. Stomach contained semi-digested food.
Probable time between last meal and death was about 1 to 2 hours. Occipital and left upper jawbones were fractured.
Cause of death.---Shock and haemorrhage as a result of injury to the brain caused with fire-arm, fired from far distance. Probable time between injury and death was about 15 minutes and between death and post mortem were about 18-- hours. The post-mortem examination report Exh.
P. K. Is in his handwriting and bears his signature correctly. The injury sheet Exh. P. E. And inquest report Exh. P. F. Were correct and signed by him. By the shot having been fired from far distance, he meant that the shot was fired from beyond four feet that is charring distance. The blood-stained clothes of the deceased were also handed over to the F. C, who had escorted the 494 body."
4. Before the committing Magistrate, the appellant had denied the charge and stated that he had not absconded but was arrested in Umerzai where the Police came and he surrendered. At the trial also the appellant denied the charge. He admitted that Lalzari deceased had eloped with Shamsul Qamar, that Shamsul. Qamar was prosecuted, convicted and sentenced to seven months R. I. And that after her elopement she was married to Asmatullah. He denied having been annoyed over the elopment of Lalzari. Explaining his absence from 1.9-1972, till his arrest on 2-10-1972, he stated:- "I am a labourer. I am living for the last 15/20 years in village Warsak and the brick-kilns, of Muhammad Hussain Khan. I was working there in those days when the police arrived at the brick- kiln and informed me about the charge and I surrendered myself to the police for arrest, I had not absconded."
To a question as to why P. W. Mst. Benazira, Mst. Gulaba and Wahab have deposed against him, he stated:--- "I cannot say why Mst. Benazira, or her daughter Mst. Gulaba P. W. And Abdul Wahab P. W. Have deposed against me. But this much I can say that Mst. Lalzari had eloped after Shamsul Qamar at the instance and connivance of her mother, Mst. Benazira, P. W. And Wahab. Mst. Gulaba P. W. Has been tutored by Mst. Benazira her mother, to depose against me."
Explaining the charge against him, he stated:-- "I am innocent and falsely charged. I make a further statement of the facts that Mst. Lalzari, deceased, had eloped after Shamsul Qamar, who was their neighbour, at the connivance of her mother Mst. Benazira P. W. Over which I and Mst. Benazira P. W. Were annoyed with each other. Later on Shamsul Qamar has been released from prison. I cannot say that how I have been falsely charged for the murder of the deceased. My father, Faqir had died a day prior to the occurrence.
We had buried him. I went to my village Warsak, near Umarzai. I do not further know that how the incident had taken place."
He produced no evidence in defence.
5. The prosecution relied on the ocular testimony of Mst. Gulaba and her mother Mst. Benazira P.
Ws. Mst. Gulaba had informed her uncle Wahab about the occurrence who had lodged the F. I. R. As earlier stated, Mst. Benazira is the sister of the appellant while Mst. Gulaba is the daughter of Mst.
Benazira. It is admitted by the appellant in his statement that on account of the elopement of Lalzari with Shamsul Qamar, the appellant and Mst. Benazira were annoyed with each other although the appellant has denied his annoyance with Mst. Lalzari and bearing any grudge with Mst. Lalzari deceased on that account. There is no direct enmity between Mst. Benazira and her brother, the appellant, It would be un--natural to presume that a sister' falsely implicates her brother for the murder of her daughter. There are some minor contradictions and discrepancies in the testimony of P. Ws. Wahab and Mst. Benazira but these discrepancies or contradictions would not in our view materially affect the testimony of Mst. Benazira which otherwise ate be true and genuine. P. W. Wahab is the uncle of Lalzari deceased. He lodged the F. I. R. Promptly after being informed of the occurrence by Mst. Gulaba at village Toda. Wahab Khan first went to the spot and then to the police station. Wahab Khan has deposed that Mst. Gulaba had told him that she and her mother Mst. Benazira were accompanying Mst. Lalzari at the time of occurrence while they were returning from Wahid Garhi. Wahab Khan has not mentioned the name of Mst. Benazira in the F. I. R.
The defence has not confronted Wahab Khan with this aspect of the case. The F. I. R. In itself is not a substantial evidence in the case. Wahab Khan himself is not an eye-witness of the occurrence. The non-mentioning of the name of Mst. Benazira in the F. I. R. Would in our view not affect the evidence of Wahab Khan P. W. Mst. Benazira has testified that she was following Mst. Lalzari and Mst. Gulaba at a distance of about 20 paces on the path from Wahid Garhi to village Toda. She alleged that she was suffering from fever and, therefore could not keep her pace with her two daughters. However, she deposed that she saw her brother Bashir coming out of Jawar field armed with his Tamancha in his hand. Bashir fired a shot at Lal Zari, which went amiss. The second shot of Bashir at Mst. Lalzari was effective and Mst. Lalzari was injured fatally and fell on the ground. Mst. Benazira alleged that she remained with the dead body while Gulaba went to village Toda to inform her uncle Wahab.
Khan. It may not be out of place to mention here that Ahmad Khan husband of Mst. Benazira was at Nowshera during the days of occurrence. Mst. Benazira further alleges that she remained with the dead body till the arrival of the police to the spot. The presence of Mst. Benazira with the dead body at the time of the arrival of the investigating officer on the scene of occurrence is not supported by the latter. The S. I. Shamroz Khan has deposed that when he came to the spot, he found Gulaba, Mst. Subbania and one Sharif present with the dead body and that Mst. Benazira was not present at the spot. The investigating officer, therefore, examined Mst. Benazira at her house. Mst. Gulaba has stated in cross-examination that as soon as the accused had fired the first shot her mother had not seen him. This piece of statement would not materially affect the testimony of Mst. Benazira as it was for her to depose that she had seen the appellant while firing first shot or not.
6. Mst. Gulaba is other ocular witness of the case. Wahab Khah while lodging the F. I. R. Has shown the age of Gulaba to be eight/nine years while the trial Judge has recorded her age about six years. The trial Judge had put some questions to Mst. Gulaba to test her competency and to find out whether she understood the questions put to her or not. The trial Judge was satisfied that Mat.
Gulaba was capable of understanding the questions put to her and that she could give correct replies. Mst. Gulaba testified that when she, Lalzari and Mst. Benazira reached near Jhangi of Ghulam, her maternal uncle Bashir appellant came out of Jawar, armed with Tamancha. Bashir fired two shots at Lalzari. The second shot was effective and had hit Lalzari. She stood the test of cross-examination and gave intelligent answers. The manner in which Gulaba has testified and gave intelligent answers to cross-examination by the defence, gives the least no 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 sister. Section 118 of the Evidence Act lays down: "118. 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, disuse, whether of body or mind, or any other cause of the same kind.--- M. Munir, in his book "Principles and Digest of the Law of Evidence" (1969-Pakistan-Edition) at p. 409, under a title "Competency and credit of a child witness", has observed.
"At one time the age of a child was considered as the criterion of his competency, and it was a general rule that none could be admitted under the age of 9 years, very few under ten. But of late years no particular age is required fir practice to render the evidence of a child admissible. A more reasonable rule has been adopted and the competency of children is now regulated not by their age, but by the degree of understanding, which they appear to possess. A child may be a competent witness to give evidence in Court if it appears that she can understand the questions" put to her and give a rational answer thereto. No precise age is fixed by law, within which children are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. Neither can any precise rule be laid down respecting the degree of intelli--gence and knowledge, which will render a child a competent witness in all questions of this kind such must ever depend upon the good sense and discretion of the Judge. In practice, it is not unusual to receive the testimony of children of eight or nine years of age, when they appear to possess sufficient under--standing; and in Brasier's case an infant, who was certainly under seven years of age, and perhaps only five, all the Judges held that she might have been examined upon oath, if, on strict examina--petition by the Court, she had been found to comprehend the danger and impiety of falsehood. No fixed rule can be laid down as to the credit that should be assigned to the evidence of a child witness. . . ."
7. As a result of the above discussion, we find no merits in the appeal and the same is, therefore, dismissed.
8. The death sentence is confirmed.