1. ' RIAZ AKHTAR CHAUDHARY, J.--- This formidable unfortunate episode in which even the child of six years has also not been spared is reminiscence of the cruelty of the ancient days.
2. ' Qadeer Hussain aged 27 years was tried by the Additional District Criminal Court Pallandri under section 5/15 I.P.L read with section 302, A.P.C. For murder of Rashida Begum aged 35 years, Zakhira Begum aged 15 years and Ikhlaque Hussain aged 6 years and for the injury caused to Sabir Hussain. The Additional District Criminal Court Pallandri vide its judgment, dated 28-2-1990 found the accused guilty for the murder of the aforesaid three persons and for attempt to commit murder of Sabir Hussain. The Additional District Criminal Court awarded the sentence of already undergone imprisonment for the offence under section 307, A.P.C. And awarded the death sentence for murder of aforesaid three persons to Qadeer Hussain. The reference has been made by the Additional District Criminal Court Pallandri for the confirmation of the death sentence. An appeal has also been filed by the convict Qadeer Hussain. Both the appeal and the reference pertain to the same matter, so, both, shall be disposed of through this single judgment.
3. ' The succinct facts forming the background of the appeal as put forth by the prosecution are that on 11-12-1981 at the time of 9-45 p.m., Muhammad Aslam P.W.1 lodged the F.I.R. Exh.PA. At the Police Station Pallandri, stating therein that on 11-12-1981 at the time of evening, he was at his house, Muhammad Din son of Sultan Muhammad called him in a loud voice and told, that his sister-in- law Mst. Rashida Begum and her children Zakhira Begum and Ikhlaque Hussain have been murdered by Qadeer Hussain, who murdered them while entering in their house. Upon which, he reached on the place of occurrence and found the dead bodies of Mst. Rashida Begum, Zakhira Begum and Ikhlaque Hussain inside the house and Sabir Hussain in an injured condition. The blood was oozing from his right arm. Sabir Hussain told him that in the evening at about 6-30 p.m., his brother-in-law, Qadeer Hussain came into their house. He was armed with a rifle, dagger and a hatchet and called his mother inside the room and caused a hatchet injury on her neck. She died at the spot. After that, he caused the hatchet injury to Zakhira Begum. She ran towards the other room, but he also caused the hatchet injury and she also died. Ikhlaque Hussain brother was raising hue and cry in the Verandah. Qadeer Hussain accused also caused hatchet injury on his neck and murdered him. He raised hue and cry. The accused Qadeer Hussain caused a hatchet injury on his right arm and he ran away. This occurrence was also witnessed by Mst. Jamila Akhtar sister. Upon the noise, Muhammad Din neighbour reached there and saw the accused running away. The cause of incident was that Qadeer Hussain convict-appellant was suspecting that his mother-in-law. Rashida Begum had affected enchant and incantation through amulet from Sain Muhammad enchanter due to which there is a dispute betwen the accused and his parents.
4. ' Ghulam Nabi Head Constable who was the incharge of the police station at the relevant time, recorded the F.I.R. Exh.PA. After recording the F.I.R., Ghulam Nabi, Head Constable alongwith constables and complainant proceeded towards the place of occurrence and reached on the place of occurrence. He found the dead bodies lying inside the house. He prepared the injury sheets and inquest reports of the dead bodies. Early in the morning, he sent the dead bodies to Pallandri Hospital in the supervision of constables and also prepared the injury-sheet of the injured Sabir Hussain and referred him to the Pallandri Hospital.
5. ' In the morning on 12-12-1981, Ghulam Nabi, Head Constable recovered the blood-stained clay from the place where he found the dead body of Ikhlaque Hussain in presence of Khadim Hussain P.W.2 and Muhammad Zaman P.W.3 and prepared the parcel of the blood-stained clay and prepared the recovery memo. Exh.P.E. After this, he recovered the blood-stained clay from the place where he found the dead body of Mst. Zakhira Begum in presence of Khadim Hussain P.W.2 and Muhammad Zaman P.W.3. He prepared the parcel and recovery memo. Exh.P.E. After this, he recovered the blood-stained clay from the place where he found the dead body of Mst. Rashida Begum in presence of P.W.2 Khadim Hussain and Muhammad Zaman P.W.3. He prepared the parcel of the blood-stained clay and prepared the recovery memo. Exh.P.G.
6. ' After the recovery of blood-stained clay, Ghulam Nabi P.W.13 proceeded to the hospital where the post-mortem was conducted. He recovered the blood-stained clothes and shoes of Ikhlaque Hussain in presence of P.Ws.1 and 3 and prepared the parcel of clothes and shoes and sealed them and also prepared the recovery memo. Exh.P.D. After this, he recovered the blood-stained clothes of deceased Mst. Rashida Begum and prepared the parcel of the clothes of deceased Mst. Rashida Begum and sealed them in presence of P.Ws.1 and 3 and prepared the parcel of blood-stained clothes and the recovery memo. Exh.P.C. The doctor Syed Mushtaq Hussain Gardezi D.H.O. Poonch- Pallandri conducted the autopsy on all the three dead bodies and found the following injuries on their persons respectively:- "On the dead body of Mst. Rashida Begum: ' An incised wound on the left side 6" x 1" x 3" dividing the soft tissues of the neck extending down to the other side of spinal cord. Second cervical vertebra, spinal cord, osophagus, big vessels and trachea all divided, profuse bleeding from the wound seen over the clothes.
7. ' According to the doctor, the cause of death was homicidal and throat wounds resulting in severe haemorrhage, shock and death.
8. On the dead body of Ikhlaque Ahmed deceased: ' An incised wound 4" x 1-1/2" x 2" over the neck on the left side dividing the soft tissues and cervical spine at the level of 3rd cervical vertebra. Spinal cord divided. , ' According to the doctor, the cause of death was homicidal and cut throat wound resulting in severe haemorrhage.
9. On the dead body of Mst. Zakhira Begum. Deceased:
(1) An incised wound 2" x 1" x 1" bone deep and fracture of upper end of hurmerus over the right upper arm.
(2) An incised wound 1-1/2" x 1" x 2" over the right scapular region with fracture of hole.
(3) An incised wound 4" x 2" x 1-1/2" over the right side of the skull 1" behind the right ear. Fracture of the skull present. Muscles and soft tissues divided.
(4) An incised wound 4" x 1" x 1-1/2" parallel to and below the wound No,3, dividing all the soft tissues and reaching the cervical spine.
(5) An incised wound 1" x 1-1/2" x bone deep over the forehead to the right of medium line.
10. ' According to the doctor, the cause of death was multiple homicidal incised wounds over the vital areas, haemorrhage, shock and death."
11. ' He also examined Sabir Hussain injured and found the following injury on his person:--
(1) An incised wound 3" x 1" x bone deep over the left arm and underlying fracture of the humerus.
12. Stitching done in 0.T."
13. ' Ghulam Nabi, Head Constable P.W.13 recovered the hatchet, the weapon of offence at the instance of the accused on 13-12-1981 in presence of Muhammad Zaman P.W.3 and Muhammad Zaheer P.W.7. He prepared the parcel and sealed it and also prepared the recovery memo. Exh.P.H.
14. After the completion of the investigation, the challan was presented before the Additional District Criminal Court, Pallandri. After the concluding of the trial, the Additional District Criminal Court found the accused guilty of the aforesaid offences and awarded him the sentence of already undergone imprisonment for the offence under section 307, A.P.C. And also awarded him the death sentence for the murders of the aforesaid three persons.
15. ' Now the appeal has been filed by the convict and as stated above, the reference has been made by the Additional District Criminal Court for the confirmation of the death sentence awarded to the appellant.
16. ' Mr. Farooque Hussain Kashmiri, the learned counsel for the appellant argued that as the occurrence took place at 6-30 p.m., and at that time, there was complete dark night and the accused could not be identified and the identification of the accused has not been proved. It was next contended by the learned counsel for the appellant that Sabir Hussain and Mst. Jamila P.Ws.
17. Were minors and no preliminary inquiry was conducted by the trial Court, to satisfy itself that whether these minors were capable of deposing before the Court or not, so their evidence is not admissible and the lower Court was not competent to place reliance on these witnesses. The learned Additional District Criminal Court has wrongly relied upon these witnesses.
18. ' It was next contended by the learned counsel for the appellant that according to the version of the prosecution, all the three deceased have been murdered on different places and the dead bodies were also lying on the different places but the blood-stained clay has been recovered only from one place as it is evident from the map.
19. ' While controverting the arguments of the learned counsel for the appellant, the learned Additional Advocate-General argued that when the accused went to the house of deceased Mst. Rashida Begum, at that time, there was no dark but it was the time of evening and they were sitting near the cooking place and the fire was burning, so, there was no question of darkness at the relevant time.
20. Even otherwise, the accused was their brother-in-law who could be even identified by his voice because he was not a stranger to them. It was next contended by the Additional Advocate-General that all the three minors were capable of narrating the occurrence. They were not of such ages for which the preliminary inquiry was necessary.
21. ' We have heard the learned counsel for the parties and perused the relevant record of the case.
22. ' As the point raised by the learned counsel for the appellant is concerned, that the accused could not be identified due to dark night, carries no substance for the following reasons:-- ' When the accused went to the house of deceased at that time, there was no so much darkness that the accused could not be identified, because that was approximately the time of evening.
23. Even otherwise, Mst. Jamila Begum and Sabir Hussain alongwith the deceased were sitting near the cooking place where the fire was burning and it has been further clarified by the defence counsel, while conducting the cross-examination on Sabir Hussain witness. The question was asked and it was answered by Sabir Hussain that "Deeni lamp" was burning. He was sitting and Mst. Zakhira Begum was baking the bread. Mst. Jamila Begum also stated that they were sitting near the cooking place and the fire was burning and Deeni lamp was also litting. Apart from this, the accused was not a stranger but he was their brother-in-law, whom they can identify even in the dark night from his voice, so, the identification of the accused was not doubtful. This argument of the learned counsel for the appellant is based on no evidence and carries no substance.
24. ' As the next contention raised by the learned counsel for the appellant is concerned that Mst.
25. Jamila Begum and Sabir Hussain were child witnesses and they were of tender age and they were unable to understand the questions put to them, no separate inquiry was conducted by the Additional District Criminal Court, for adjudging the capability of these witnesses, so, no reliance can be placed on these witnesses, carries no substance for the following reasons:- ' Article 3 of the Law of Evidence contemplates that all the persons shall be competent to testify, unless the Court considers that they were prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether or body or mind or any other cause of same kind. Article 3 of the Evidence Act stipulates that only those persons will not be competent to testify before the Court who are unable to understand the questions put to them by virtue of their tender age, old age or other illness. Here in this very provision of law, it has not been laid down that all the persons of tender age are not competent to testify before the Court, but a condition has been imposed only on those persons of the tender age who could not understand the questions put to them. If a person of tender age is capable of understanding the questions and answering them, then, no doubt, he is a competent witness.
26. ' Now the next question arises that whether a mandatory procedure has been prescribed for the trial Court for conducting the preliminary inquiry for determining the fitness of the child witness or not?
27. ' Nowhere in the procedure, it is mandatory for the trial Court to conduct the preliminary inquiry before recording the statement of the child witness. Article 3 of the Law of the Evidence does not prescribe any mode of preliminary inquiry or any set of questions to be put to the child witnesses.
28. All that is required is that the Court must satisfy itself that the child witness is capable of giving the rational answers to the questions being put to him. It has become a general practice and it is also safe for the Court to conduct the preliminary inquiry before recording the statement of the child witness, to ensure that the child witnesses are not unable to understand the questions put to them and are competent to answer rationally.
29. ' The next question arises that where the preliminary inquiry has not been conducted by the trial Court, then, whether by this omission, the evidence of child witness has become inadmissible and no reliance can be placed on the child witness?
30. ' The basic object of the preliminary inquiry is to satisfy itself that the child witness who is appearing before the Court is capable of understanding the questions and answering them and is also aware of the consequences of his statement. It is not obligatory upon the Court to ascertain such capabilities of the child witness by holding a preliminary inquiry, the Court can even form the opinion during the recording of his statement from the demeanour of child witness. The basic purpose of the preliminary inquiry is to save the time of the Court, so that during the examination of the child witness, the Court should not stop the recording of the statement on the ground, that the child is not capable of deposing before the Court. The holding of the preliminary inquiry is a rule of prudence and is nowhere laid down as legal obligation upon the Court. The omission to hold preliminary inquiry does not render the evidence inadmissible. This view finds support from AIR 1942 Pat. 159 which reads as under:- "The object of putting questions to the witness is that the time of the Court may not be wasted if it is found, as the result of a preliminary inquiry, that the child is neither intelligent nor can he give evidence which may be acceptable. But if that is the only object of the preliminary enquiry, the accused is not at all prejudiced if the same result is obtained in the course of the examination of the witnesses during the trial. In a trial with the aid of jury, there is an additional advantage in allowing the jury to form their own estimate from the demeanour of the child witness. The holding of a preliminary inquiry is merely a rule of prudence and is nowhere laid down as a legal obligation upon the Judge."
31. ' It is not obligatory for the Court to subject a child witness to a preliminary examination before his evidence is recorded. The Court may satisfy itself during the recording of his statement, that he is capable of understanding the questions put to him and is also cmpetent to answer the questions rationally. It is, however, desirable that the Court should make such preliminary inquiry in order to save the time of the Court, so that the Court should not stop the recording of the evidence during the examination of child witness on the ground, that he is not capable of understanding the questions and answering them rationally. But when once the evidence has been recorded without the preliminary inquiry, then, the best test of his capability to give the evidence, is his evidence itself. The Court can form the opinion about the capability of the witness, from the manner in which the evidence was given by the witness. The Court can adjudge the capability of the witness from his recorded evidence. This view finds support from AIR 1942 Pat. 183 relevant page 184 which reads as under:-- "The fact is that while there is no legal obligation to ask preliminary questions, it has been held to be a wise course in the case of very young children. The object of such preliminary questioning, however, is not to legalise the evidence, but merely to save the time of the Court. A few questions may satisfy the Court that it would be useless to waste further time in examining and cross- examining the child. That is the real object of preliminary questioning. If the other course is followed, the evidence itself will very soon disclose whether the child is capable of giving intelligible testimony or not? Indeed, if the child is actually examined, the best test of his capacity to give evidence is the evidence itself and the manner in which it is given. If the Court satisfies itself in this way, rather than the preliminary questioning, there is nothing illegal in its procedure."
32. ' In the instant case when the statements of Sabir Hussain and Mst. Jamila Begum were recorded, they were of 14 and 12 years old respectively. A lengthy cross-examination was conducted on both the witnesses by the defence counsel. Perusal of their statements shows that they were wise enough to understand the questions and answer them rationally. During their examination-in-chief and cross-examination, so many ticklish questions were asked from them. In answer to those questions, they gave coherent and intelligent answers. A perusal of their statements clearly indicates that the witnesses fully understood the questions and made the rational answers. They were competent witnesses to testify under Article 3 of the Law of Evidence and the lower Court has rightly placed the reliance upon these witnesses. Their statements cannot be discarded only for the reason that the preliminary inquiry has not been conducted by the trial Court.
33. ' As the third contention raised by the learned counsel for the appellant is concerned that all the three dead bodies were lying on the different places, but the blood-stained clay has been recovered only from the one place, carries no substance. According to the site plan, the blood- stained clay has been recovered from all the three points where the dead bodies were lying. Point No,1 has been shown in map where the dead body of Rashida Begum was found and the blood- stained clay had been recovered from this place and point No,2 has been shown in the map where the dead body of Zakhira Begum was found. The blood-stained clay was recovered from this place.
34. Point No,3 has been shown in the map where the dead body of Ikhlaque Hussain was lying and the blood-stained clay was also recovered from this place, so, the argument advanced by the learned counsel for the appellant, is factually incorrect.
35. ' In the instant case, Sabir Hussain is an injured witness. He received a grievous injury from the hand of the accused. He appeared in the witness-box and stated that on 11-12-1981, at the time of evening, he alongwith his mother, Mst. Rashida Begum, sister Mst. Zakhira Begum, brother Ikhlaque Hussain and Mst. Jamila Begum were sitting in the Verandah. Meanwhile, the accused came there and said to his mother that the police of Rawalakot is chasing him, so, some place should be provided to him for the sleeping, on which the mother went inside the house and laid a bed on the cot. After laying the bed on the cot when she was returning on the back side, the accused caused a hatchet injury on her neck which hit her neck. She fell down and then, he called Mst. Zakhira Begum.
36. The accused also caused hatchet injury on her. She ran towards another room and the accused followed her and murdered her in the other room. Then, the accused came out of the room where they were making noise. He caused the hatchet injury to his younger brother Ikhlaque Hussain and murdered him and then ran towards him. He ran away. The accused caused a hatchet injury on his left arm. After receiving the injury, he jumped from the wall and on his hue and cry, Muhammad Din, neighbour came there. He narrated the whole occurrence to him. After him, Muhammad Zaman and Muhammad Aslam also reached there. He also narrated the whole occurrence to them. The accused was armed with a rifle, hatchet and dagger. He identified the hatchet in the Court with which he was injured and others were murdered.
37. ' He remained in the hospital for 2/3 months. His arm is not yet working properly. The presence of Sabir Hussain at the spot cannot be denied. He received the injury in the occurrence. Although a lengthy cross-examination has been conducted by the defence but he could not shatter the witness. Mst. Jamila Bi P.W. Also appeared as witness and she also stated that on 1-12-1981, at the time of evening, she alongwith Sabir Hussain, Ikhlaque Hussain, Mst. Zakhira Begum and her mother Mst. Rashida Begum were sitting near the cooking place. Mst. Zakhira Begum was baking the bread.
38. Meanwhile, the accused came there and said to her mother Mst. Rashida Begum that the Police of Rawalakot is chasing him, so, some place should be provided to him for sleeping. Upon which, the mother went into the room and laid bed on the cot. Qadeer Hussain appellant also went into the room and caused a hatchet injury on the neck of her mother. She fell down and died there. Then, the accused called Mst. Zakhira Begum and also caused a hatchet injury to her. After this, the accused caused hatchet injury to Ikhlaque Hussain on his neck who was in the Verandah. Then, the accused followed Sabir Hussain and caused a hatchet injury on his arm. Then, she and Sabir Hussain jumped down from the wall and the accused ran away. She and Sabir Hussain called Muhammad Din neighbour and narrated the whole story to him. Then, he called Muhammad Aslam and Muhammad Zaman P.Ws. On their enquiry, she and Sabir Hussain also narrated the occurrence to them. She identified the hatchet P.10 which was used by the accused in the occurrence. Mst. Jamila Bi fully supported the statement of Sabir Hussain and both the witnesses were the quite natural witnesses. At the time of occurrence, their presence at their home was also quite natural. There is a complete unison between both the witnesses about the places of occurrence, time of occurrence and manner of the occurrence. There is no contradiction between these witnesses about the occurrence nor any fatal contradiction has been made by these witnesses, so, the lower Court has rightly placed the reliance on both of these witnesses, as they were quite natural witnesses of the occurrence. Apart from both of the aforesaid witnesses, the other witnesses, namely, Muhammad Aslam, Muhammad Din and Muhammad Zaman who immediately arrived on the place of occurrence also saw the dead bodies lying on the place and also found the injuries on dead bodies. The hatchet has been recovered at the instance of the accused in presence of Muhammad Zaman and Muhammad Zaheer P.Ws. Muhammad Zaman and Ghulam Nabi P.Ws. Have fully corroborated the recovery memo. The hatchet recovered from the accused also contained human blood of the Group 'B' and the clay recovered from the place of occurrence and the clothes of the deceased also contained the human blood of Group 'B'. This is a strong incriminating piece of evidence against the convict Qadeer Hussain. The accused ' has committed gruesome murders of the aforesaid three persons and has ruined the whole family. He does not deserve any leniency. Thus, the sentence awarded to the convict-appellant by the lower Court is perfectly legal and the death sentence awarded to the appellant by the lower Court is hereby confirmed. The appeal filed by the appellant is hereby dismissed. The reference also stands answered in the aforesaid terms.