On 10th May 1970, at 3-20 a.m. Sufaid Khan son of Chahat Khan, Moo, resident of Joodu Deer lodged first information report (Exh. P. C./1) at Police Station Kahna, District Lahore, with regard to an occurrence which took place on the same day at 7 a m. Sufaid Khan in the first information report stated that he was resident of Joodu Deer. He owned agricultural land at a distance of one and a half miles towards east from the village. He had constructed a haveli for the cattle. During day time he tethered the cattle there and in the evening they were brought back to the village.
On 10th May 1970, at about 6 a.m. The elder son of the complainant Umar Muhammad aged about 13/14 years along with his younger brother Noor Muhammad, aged about 8/9 years, drove the cattle as usual from the house towards the haveli, to tether them there. Approximately an hour after that wife of the complainant Mst. Noor Bibi followed the boys along with meals for them. At about 8 O'clock in the morning Noor Muhammad son of the complainant while coming from the fields to the house informed the complainant that Mauj Khan and Fauj Khan had come to their haveli to get some dry sticks of cotton. Umar Muhammad refused to give them the sticks, but in spite of that both Mauj Khan and Fauj Khan started picking up the sticks. Umar Muhammad abused them, on this Mauj Khan caught hold of Umar Muhammad from the neck and gave 2/3 blows on his neck and then twisted his face very severely with both hands. On account of this Umar Muhammad's neck bone was broken. Umar Muhammad had died on account of twisting of his neck by Mauj Khan. When Mauj Khan loosened his grip Umar Muhammad fell on the ground. Maui Khan then in consultation with his brother Fauj Khan tied Umar Muhammad with the rafter of the ceiling with jute rope. Noor Muhammad then ran out of the haveli raising hue and cry. On seeing the mother of Noor Muhammad these two persons ran away. The complainant then stated that on receipt of the information given by his son Noor Muhammad he reached the havell and found the dead body of Umar Muhammad hanging with the rafter. Wife of the complainant Mst. Noor Bibi also noticed Fauj Khan as well as Mauj Khan running out of the haveli. The first information report concluded that Mauj Khan had murdered the son of the complainant and in order to destroy the evidence Mauj Khan purposely with the connivance of his brother Fauj Khan hanged the dead body of Umar Muhammad with the rafter of the ceiling. Mauj Khan in the presence of respectables of the locality, namely, Ismail, Jaurmal and Kallu confessed his guilt and then sent these persons to the complainant to beg pardon from him.
2. On the above-mentioned first information report both Mauj Khan and Fauj Khan were challaned under sections 302/34 and 201, P. P. C. The Earned committing Magistrate-by his order dated 29th October 1971, found a prima facie against both Mauj Khan and Fauj Khan under section 302/34, P. P.
C. And committed them to stand their trial before the learned Sessions Judge.
The learned Additional Sessions Judge, Lahore, by his order dated 20th January 1972, acquitted Fauj Khan of the charge but convicted Mauj Khan under section 304, Part Il, P. P. C. And sentenced him to undergo ten years' rigorous imprisonment. Mauj Khan has filed this appeal against the order of the learned Additional Sessions Judge.
3. The prosecution in support of its case Relied on the testimony of Noor Muhammad P. W. 8, Mst.
Noor Bibi P. W. 9, mother of the deceased and Sufaid Khan P. W. 10, father of the deceased. The prosecution has also produced in evidence the extra-judicial confusion for which reliance was placed on the testimony of Jaur Mall P. W. 1 l and of course, there is medical evidence as well.
4. Mr. Riyasat A.I, learned counsel for the appellant contended that no oath was administered to Noor Muhammad P. W. Who is the only eye--witness with regard to the occurrence and, therefore, his evidence is inad--missible. In the alternative it was submitted that if this objection was to be overruled even then the evidence of Noor Muhammad P. W. Would not be sufficient in law to justify the conviction because it was incumbent on the part of the learned trial Court to record the exact questions put by the trials Court and the answers given by him because the witness was of a very tender age, and as such, not matured enough to understand what he was deposing and thus could not be relied upon. The fact that the trial Court did not record the exact questions and the answers given by the witness renders his testimony inadmissible. Finally, the learned counsel submitted that if at all Noor Muhammad's evidence and the rest of the evidence is believed and the case is proved against the appellant then conviction under section 304, Part II, P. P. C. And the sentence awarded is not legally maintainable. Learned counsel in support of his above contentions cited string of authorities, which r shall discuss later on.
5. I would like to deal with the legal objections raised by the learned counsel for the appellant, first being that oath having not been administered to Noor Muhammad P. W. His evidence as such is rendered inadmissible. Section 13 of the Oaths Act, 1873, reads as follows:- "13. No omission to take any oath or make any affirmation, no sub--stitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence what--ever, in or in respect pt which such omission, substitution or irregularity took place, or shall affect the obligation of it witness to state the truth."
6. Here I would like to refer to Muhammad Sugal Esa Mamasan Rer Alalah v. The King (AIR 1946 P C 3) which deals with the question of omission administer oath to a child witness. So far as section 13 of the Oath Act was concerned it was held that the section was unqualified in its terms and there was nothing to suggest that it was to apply only where the omission to administer the oath to a witness occurs per incuriam.
7. A plain reading of the above-mentioned provision makes it crystal clear that the mere omission to take oath shall not invalidate any proceeding or render any such evidence inadmissible. As such, the fact that Noor Muhammad P. W. Was not administered oath would not render his evidence. Inadmissible and, therefore, the objection of the learned counsel is over ruled.
8. The second point urged by the learned counsel was that failure on the part of the trial Court to record precise questions put to the witness and answers given by him rendered his evidence inadmissible and, therefore, the conviction is illegal, because if the evidence of this witness is excluded then it would be a case of no evidence. In order to determine this point section 118 of the Evidence Act is to be examined, which is to the following effect:-- "118. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
The explanation attached to this section is also very important, because according to this explanation even a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. This obvious means that even a lunatic could be examined provided he was in his lucid interval and was capable of understanding what he was deposing before the Court.
9. Learned counsel cited the following authorities which deal with section 118 of the Evidence Act:--
(1) Ghulam Hussain v. Emperor AIR 1930 Lah. 337.
(2) Mt. Ram Sakhla v. Emperor AIR 1934 Pat. 651.
(3) Ah Phut and others v. The King AIR 1939 Rang. 402.
(4) Krishna Kahar v. Emperor AIR 1940 Cal. 182.
(5) Khalil v. Tim State PLD 1956 Lah. 840.
(6) Muhammad Afzal v. The State PLD 1957 Lah. 788.
(7) Abdul Gant and others v. The State PLD 1959 Dams 944.
(8) Sultan and another v. The State PLD 1965 Kar, 615.
(9) Ata Muhammad Shah v. The State PLD 1969 Lah. 337.
(10) Hart Pada Debnath alias Haria and anon v. The State 1908 P Cr. L J 569,
(11) Abdul Hayee v. The State 1969 P Cr. L J 343.
"It is undoubtedly of very great importance that when the evidence of a child of tender years is adduced, the Judicial Officer should, for the sake of precaution, ascertain, as a preliminary measure, by means of a few simple questions, whether the intelligence of the child is such that (whether sworn or not) it is capable of giving testimony which is patent of credit; and it is certainly desirable that something should, at the commencement of the record of evidence of the witness of this character, be entered to show that such a test has been in fact made."
Ah Phut and others v. The King deals with the omission to administer oath as well as with regard to the testimony of a child witness and it was held that if a child deposed without oath having been administered his evidence would still be admissible although it would be for the Court to decide as to what weight may be given to such unworn testimony of the child whose evidence must always be received with great caution. With regard to section 118 it was observed that before a child is called as a witness the first step which a Judge or a Magistrate was to take was to satisfy himself by questioning a child that he was a competent witness within the meaning of section 118. So far as Krishna Kahar v. Emperor is concerned, it was held that it was the discretion of the Court to decide whether an infant of tender years possessed or was not qualified to be a witness by reason of under--standing or lack of understanding and this discretion the Court was to exercise in a judicial manner. In Khalil v. The State at page 847 it was observed by late Mr. Justice Abdul Aziz Khan that "it is true that there is no definite legal provision requiring a Court to record such questions and answers. But if this is not done the Appellate Court will be left completely in the dark as to the capacity of a child witness to testify and will have to depend entirely on the judgment of the trial Court in the matter however erroneous that judgment may be. On the other hand, if such questions and answers are briefly recorded, the Appellate Court will have ample opportunity to Judge for itself whether the trial Court was in fact justified in accepting or rejecting the evidence of a child witness." In Muhammad Afzal v. The State it was observed that the evidence of a child witness before it was acted upon should, however, be subjected to a close and careful scrutiny and that no general rule of universal application can be laid down that in no case should the evidence of a child witness be believed. In Abdul Gant and others v. The State, the Court observed that it was desirable for the Court to make preliminary investigation to decide with regard to the competency of the witness to give evidence. In Sultan and another v. The State it was held that although the learned Additional Sessions Judge bad taken the precaution of putting questions to the witness aged seven years and of satisfying himself with regard to her intelligence and ability to understand questions and give coherent answers, nevertheless the Court found that it was unsafe to base the conviction on the sole testimony of the young child and her evidence as such was not relied upon because the Court was satisfied that the witness had not seen the occurrence. In Ata Muhammad Shah v. The State, the learned Judge found that the trial Court had appended a note before recording the evidence that he was satisfied with regard to the com--petency of the witness and it was held that this duly complied with the requirements of section 118 of the Evidence Act. In Hari Pada Debnath alias Hatia and another v. The State it was observed that "there is no statutory provision of law that requires the Court to test the intelligence of a child witness at the initial stage to find out whether he is capable of under--standing questions and giving intelligible answers. It is, however, highly desirable that the intelligence of a child witness should be tested before commencement of his examination so that if he is found deficient in intelli--gence valuable time of the Court may be saved by not examining him." In Abdul Hayee v. The State an endorsement had been made by the learned Special Judge in the deposition sheet of P. W. 7 Lutaf Begum which was to the following effect:-- "The girl is aged about 9 years. She seems to be able to depose but not so much intelligent."
It was observed by the Court that it thus appeared that she was not able to give intelligible and intelligent answers to questions and that being so, her deposition was without any value. Her evidence was left out of consideration by the trial Judge and this was duly approved by the High Court.
10. In the instant case, I find a note given by the trial Court to the following effect before the examination-in-chief of Noor Muhammad P. W. Commenced:- "I have put many questions to the witness., It is capable of under--standing the nature of the questions and, answering them intelligently. Let his statement be recorded."
11. The note in my opinion duly complied with the provisions of section 118 of the Evidence Act, because the trial Court being fully satisfied that the witness was competent to testify and was not prevented by tender age to understand the questions which were put to him, rightly proceeded to record his evidence. I am, therefore, of the view that the fact that exact and precise questions and answers were not brought on the record, did not in any way, render his evidence inadmissible. The objection, therefore, is overruled being not legally maintainable.
12. I now proceed to examine whether in the light of the evidence of Noor Muhammad P. W. The prosecution has successfully proved its case against the appellant and if so what offence has been made out and whether the conviction and sentence of the appellant could be upheld or not. I would like to first deal with the evidence of Noor Muhammad P. W. Who is the solitary eye-witness in this case and was the real brother of the deceased. According to this witness he and his deceased brother Umar Muhammad took their cattle to their fields where they tethered them and put fodder before them. The buys then started playing about when Mauj Khan and the acquitted accused Fauj Khan turned up. They demanded fry sticks of cotton from the boys which were lying in their haveli.
The request was turned down but the appellant and the acquitted accused insisted to take the sticks and without the permission of the two boys they started picking up the sticks from their haveli. This was objected to by Noor Muhammad P. W. And his deceased brother Umar Muhammad, on this Mauj Khan appellant abused Umar Muhammad deceased but he was paid in the same coin. Fauj Khan then exorted Mauj Khan appellant to kill Umar Muhammad because he had abused them. According to Noor Muhammad P. W. Mauj Khan appellant then gave 2/3 fist blows on each side of the neck and threw Umar Muhammad on the ground by holding his head in his hands while one of his hands was over his head and the other under the chin. Mauj Khan appellant then entered inside the kotha of their haveli where there was a rope lying which was used for tying down the she-- donkey. Maui Khan caught hold of the rope and tied with the rafter of the kotha. Fauj Khan accused then brought Umar Muhammad inside the kotha and put the rope around his neck. It was when Umar Muhammad was being carried by Fauj Khan accused that the witness raised alarm. The witness saw his mother who was coming to the said kotha with meals which she had brought from the village Umar Muhammad had already been hanged with the rope and the witness then came out crying. Accord--ing to Noor Muhammad he narrated the entire incident to his mother, on hearing which she threw the meals on the ground and ran towards the kotha. The mother of the witness and the deceased was at a short distance from the kotha when both the accused came out and ran away. The mother of the witness then went inside the kotha and told the boy to bring his father who was present in the village and herself started crying. The boy then brought his father who went to the police post to lodge a report.
The witness I find was cross-examined at a tremendous length. Lot of questions were put to the witness which had no relevancy at all with regard to the occurrence. For instance in the first paragraph he was cross---examined with regard to number of brothers of the accused, about their sisters, names, of the views of both the accused, how many sons and daughters they had and whether they were married or not. The boy deposed that he had no knowledge about these particulars. I am inclined to accept his answers because a boy of this age is not expected to give these parti--culars. Another important thing which has impressed me very much is the answer given by the witness that he did not take the meal which was brought by his mother to the haveli as she had thrown it away on hearing the news of the death of his brother. This statement is very natural and accurate for this will be the natural reaction of a mother who was told all of a sudden about the murder of her son. The witness in cross-examination admitted that they had no enmity with the accused. On the other hand he said that they had lot of love and affection for each other but were not on visiting terms.
I have very carefully gone through the rest of the cross-examination which as already observed by me was very lengthy but has not come across anything substantial in favour of the defence. I am; therefore, of the view that the evidence of Noor Muhammad P. Fir, is trustworthy because be deposed what he actually saw.
13. The next witness examined was the mother of the deceased Mst. Noor Bibi, who said that after the two boys had left the house she prepared meals had had left for the fields with the meals. Her husband Sufaid Khan stayed behind and when she was at a distance of about one Killa from their haveli she heard Noor Muhammad crying and saw him coming out of the haveli. The witness enquired from the boy as to why was he crying and was informed that the appellant and his brother had hung his brother Umar Muhammad with the rafter after killing him. Hearing this Mat.
Noor Bibi threw the meals which she was carrying and rushed towards the haveli and saw both the accused coming out of the kotha of their haveli. She then entered the kotha of the haveli and found her son Umar Muhammad hanging with the rafter with his neck tied with the rope and the boy was dead. Mst. Noor Bibi then sent Noor Muhammad to inform his father. In cross-examination a suggestion was made to the witness that she had given beating to Umar Muhammad deceased 6/7 days prior to the occurrence because the boy had seen her in a compromising position with one Gaman and told this to Sufaid Khan, the husband of Mst. Noor Bibi. She was further asked "was it not a fact that the deceased had been put to death by Gamin?" Both these suggestions were repudiated by the witness. She also denied that the appellant has been falsely implicated in this case.
14. Sufaid Khan P. W. Stuck to the version which he gave in the first information report as to how was he informed about the occurrence by Noor Muhammad and also deposed about other details which he had mentioned in the first information report. I have not come across anything useful for the defence in the cross-examination. This witness was asked as to whether he knew one Gaman Gujjar to which he replied in the affirma--tive and said that Gaman Gujjar used to cultivate his land which was mortgaged to him, but later on the witness had redeemed it and Gaman Guhar had ceased to cultivate his land. The land, according to the witness, had been redeemed before the occurrence. The suggestion that it was Gaman Gujjar who had killed the boy was denied by this witness. He also denied that the deceased son of the witness complained regarding Mst. Noor Bibi's illicit relations with Gaman Gujjar and that the whole case had been concocted at the instance of Mst. Noor Bibi and it was on account of this that the accused was falsely involved in this case,. The witness denied that he beat his deceased son on the asking of Mst. Noor Bibi. When questioned by the defence as to whether Mauj Khan contested the election against one Arif, the witness said that he did not know whether Arif and gamin were friends. However, he did not support Arif in tile election but supported Mauj Khan appellant. He denied that his statement Exh. P. C. Was recorded at the spot after the investigation of the case and also said that he had no enmity with the appellant before the occurrence but had cordial relations.
15. The evidence of Mst. Noor Bibi provides sufficient corroboration to the testimony of Noor Muhammad P. W. For instance MO. Noor Bibi deposed that when she reached the spot she saw the two accused running away from the place of occurrence. Then there is medical evidence which also lends support to the version of Noor Muhammad P. W. With regard to the killing of the deceased. Even otherwise, I find that both Mst. Noor Bibi and Sufaid Khan P. Ws. Had no reason to falsely implicate the appellant especially when in the cross-examination of Sufaid Khan he deposed that an the election he was on the side of Maui Khan and their relation were cordial.
16.Jaur Mall P. W. 11 testified with regard to the extra judicial confession made by the appellant. This evidence was rejected by the trial Court and I am of the view that it was rightly done. I am not convinced about the testimony of this witness and would, therefore, exclude extra---judicial confession from consideration.
17. In his statement before the trial Court the appellant admitted that Fauj Khan was his real brother but denied to have visited the haveli of Sufaid Khan on the day of occurrence in order to obtain sticks because they had plenty of their own. He also denied to have insisted in the picking up the sticks in spite of no permission from Umar Muhammad deceased and Noor Muhammad P. W.
Appellant also denied to have abused the deceased and being abused by him and that his brother Fauj Khan exorted him to kill him. The appellant further denied to have given fist blows on both sides of the neck of the deceased and then threw him on the ground. When asked as to why was he involved in the present case, his answer was as follows:- "Gamin Gujjar was carrying on an affair with Noor Bibi P. W. He was seen with her 6/7 days before the occurrence in a compromising position by the deceased who informed his father about this fact. Noor Bibi gave a beating to Umar Muhammad deceased and later in conspiracy with her, Gaman Gujjar killed the boy. Noor Bibi being the step-mother of the deceased used to treat him cruelly and wanted to get rid of him. The witnesses who have appeared against me being to the party of Arif a B. D. Candidate against whom I had successfully contested the election. On this account they were inimical to me and as Gaman Gujjar was also of their party, they falsely implicated me in this case."
No evidence was produced in defence.
18. I may mention here that a suggestion with regard to the illicit intimacy of Mst. Noor Bibi with one Gaman Gujjar was also put to Noor Muhammad P. W., but the witness said that it was wrong that his mother gave beating to deceased Umar Muhammad 7/8 days before the occurrence and that Umar Muhammad had seen his mother and Gaman Gujjar in a compromising position a few days before the occurrence. Noor Muhammad also denied that his brother Umar Muhammad ever complained about this to his father and that on account of this his brother was beaten by Mat: Noor Bibi. Noor Muhammad emphatically denied the suggestion that he did not see the occurrence and that as a matter of fact Umar Muhammad was killed by Gaman and it was Gaman who hanged the dead body in the kotha.
19. Doctor Nusratullah performed the autopsy of Umar Muhammad deceased and as he had gone abroad, secondary evidence was led to prove his post-mortem report (Exh. P. G.), for which Abdul Sattar Dispenser Office of the Police Surgeon, Lahore appeared as P. W.
2. I have examined the post-mortem report and according to doctor's opinion it was the injury to bran which resulted its the death of Umar Muhammad.
20. Taking the entire prosecution evidence into consideration with special reference to that of Noor Muhammad P. W. I am convinced that Umar Muhammad died at the hands of the appellant in the manner and under the circumstances as deposed by Noor Muhammad P. W. And I am, therefore, of the view that the fact that Umar Muhammad was killed by the appellant has been duly proved by the prosecution.
21. The only question now to be considered is as to whether the con--viction and the sentence awarded by the trial Court is to be confirmed on it needs some modification or alteration. It was never the case of the prosecution right from the beginning that the appellant and the acquitted accused had come with the intention of killing the deceased. According to the prosecution story the alleged incident in which the unfortunate boy aged 12 years lost his life was the outcome of the demand made by the appellant for some dry cotton sticks. The request having been turned down and the appellant being abused by a boy of 12 years felt very much insulted and it was just to chastise the boy that the appellant caught hold of his neck and in sheer anger and resentment gave a few blows on his neck result--ing in an injury which ultimately caused his death. There is no motive. On the other hand, Sufaid Khan father of the deceased frankly admitted that the parties had cordial relations and in the election Sufaid Khan even voted for the appellant as against Arif.
Another important factor to be taken note of is that no weapon was used by the appellant for inflicting the injury, the appellant was empty-handed and he gave only fist blows. In view of the above, I am inclined to alter the conviction of the appellant from section 304, Part II, P. P. C. To one under section 325, P. P. C. And would sentence him to undergo five years' rigorous imprisonment and fine of Rs. 1,000 (rupees one thousand only) which, if realised, would be paid in full to the parents of the deceased and in case of default of payment of fine the appellant would undergo rigorous imprisonment for a period of on year. The appeal is accepted to this extent.
22. Sufaid Khan, father of the deceased, filed Criminal Revision No. 418 of 1972, for enhancement of sentence of the appellant. In view of above, I find no merit in this petition which is hereby dismissed in limine.