1. ' MUHAMMAD YOUNAS SURAKHVI, J.--- This appeal is directed against the judgment and order of the Shariat Court, dated June 22, 1993 whereby the appeal filed by the appellant herein was dismissed and the conviction order recorded by Additional District Criminal Court, Pallandri, dated February 28, 1990 was maintained.
2. ' Qadeer Hussain, appellant herein was sent to face his trial for the offences alleged to have been committed by him under section 5/15 of Islamic Penal Laws (Enforcement) Act read with section 307, A.P.C. Before District Criminal Court, Rawalakot. On the establishment of Additional District Criminal Court, Pallandri, the case was transferred to it for disposal. After conclusion of the trial, the trial Court vide its order and judgment, dated February 28, 1990 found the accused-appellant guilty for the murder of three persons and for attempt to commit murder of Sabir Hussain injured P.W. The trial Court awarded to appellant the sentence of imprisonment already undergone for offences under sections 307, A.P.C. And 15, Islamic Penal Laws (Enforcement) Act while under section 302, A.P.C. The sentence of death was imposed upon the appellant.
3. ' The appeal filed by the appellant against his conviction before Shariat Court failed vide Order of Shariat Court, dated June 22, 1993 and the reference filed by the trial Court for confirmation of death sentence was upheld by the Shariat Court. Hence this appeal to set aside the conviction recorded against the appellant by the trial Court as well as Shariat Court.
4. ' The facts forming the background of the unfortunate incident are that on December 11, 1981 at 9- 45 p.m. Muhammad Aslam P.W.1 lodged the First information Report at Police Station Pallandri stating therein that at the time of evening he was in his house when Muhammad Din son of Sultan Muhammad a neighbour called upon him and told that his sister-in-law Mst. Rashida Begum and her children Zakhira Begum and Ikhlaque Hussain have been murdered by Qadeer Hussain in their house. The First Informant reached at the place of occurrence and found the dead bodies lying inside the house and Sabir Hussain in an injured condition. Sabir Hussain the injured witness narrated to him that in the evening at about 6-30 p.m., his brother-in-law Qadeer Hussain entered their house. He was armed with rifle, dagger and a hatchet and called his mother Mst. Rashida Begum inside the room and caused a hatchet injury on her neck, resultantly she died at the spot.
5. The accused appellant herein caused hatchet injury to Zakhira Begum and she also expired on the spot. Ikhlaque Hussain his brother raised hue and cry in the Veranda. The appellant then inflicted a hatchet injury on his neck and murdered him. The accused thereafter caused a hatchet injury on the arm of Sabir Hussain. The blood was oozing out of it. According to the prosecution the occurrence was witnessed by Mst. Jamila Akhtar the sister of first informant. Upon the hue and cry Muhammad Din a neighbour was attracted at the place of occurrence who saw the accused running away. The motive of incident was that the appellant was suspecting that his mother-in- law Rashida Begum had effected an enchant through amulets from Sain Muhammad on account of which there was a dispute and hatred between the accused, his parents and other family members.
6. ' The First Information Report lodged by the first informant was recorded by Ghulam Nabi, Head Constable who was incharge of the police station at the relevant time. The Head Constable after recording the First Information Report proceeded towards the place of occurrence and found the dead bodies lying inside the house. He prepared inquest reports of dead bodies and injury-sheet of the injured witness. The dead bodies and P.W. Sabir Hussain were referred to Pallandri Hospital.
7. ' Ghulam Nabi, Head Constable recovered the blood-stained clay from near the dead bodies of Mst. Rashida Bcgum, Mst. Zakhira Begum and Ikhlaque Hussain and prepared the recovery memos.
8. In presence of Khadim Hussain P.W.2 and Muhammad Zaman P.W.3. Thereafter the Head Constable proceeded towards the Hospital where the post-mortem of the dead bodies was conducted. He recovered the blood-stained clothes from the dead bodies and prepared the recovery memos.
9. ' Syed Mushtaq Hussain Gardezi, the D.H.O., Poonch, Pallandri conducted the autopsy on all the three dead bodies and he also examined Sabir Hussain the injured witness. According to the opinion of doctor the cause of death of Mst. Rashida Begum was homicidal cut throat wounds resulting in severe haemorrhage, and shock. The cause of death of Ikhlaque !Hussain deceased was homicidal cut throat wound resulting in severe haemorrhage. The doctor also opined that Mst.
10. Zakhira Begum died of multiple homicidal incised wounds over the vital areas, haemorrhage, shock and death. On the body of Sabir Hussain injured P.W. The doctor found an incised wound 3" x 1" bone deep over the left arm and underlying fracture of the humerus. On December 13, 1981 the police recovered the weapon of offence on the pointation of the accused in presence of Muhammad Zaman P.W.3 and Muhammad Zaheer P.W.7. The police prepared the parcel of the crime weapon and sealed it. After the completion of the investigation the challan was presented before the Additional District Criminal Court, Pallandri. On the conclusion of the trial, the trial Court found the accused guilty of the aforesaid offences and awarded him the sentence as mentioned in the earlier part of this judgment.
11. ' The learned counsel for the accused-appellant Mr. M. Tabassum Aftab Alvi, vehemently contended that the instant case has been tried by the Additional District Criminal Court, Pallandri constituted under Islamic Penal Laws (Enforcement), Act. The appellant-accused was challenged under section 302, A.P.C. Read with sections 5 and 15 of Islamic Penal Laws (Enforcement) Act. So it was obligatory upon the trial Court to conduct the purgation of the witnesses and to reach the conclusion as to whether the witnesses were just and Aadil. Having ignored the mandatory provision of law with regard to purgation of the witnesses the trial Court and Shariat Court have committed a grave illegality rendering the conviction into a nullity. The learned counsel also maintained that the occurrence, as alleged by the prosecution, took place at 630 p.m. When there was a complete darkness and it was not possible for the witnesses to identify the real culprit. The learned counsel submitted that Mst. Jamila Akhtar and Khadam Hussain P.Ws. Were admittedly minors and no preliminary enquiry was conducted by the trial Court to satisfy itself as to whether the minor witnesses were capable of answering the questions put to them and deposing the evidence. In the estimation of the learned counsel for the appellant the evidence of minors was not admissible due to non-observance of the procedure laid down under section 3 of the Law of Evidence. This lapse on the part of trial Court has rendered the conviction into an illegality. The learned counsel also maintained that the eye-wtinesses are inter se related and also closely related to the deceased. So no explicit reliance could have been placed on their evidence. He also contended that there was no corroborative evidence supporting the version of the eye-witnesses.
12. The learned counsel maintained that in accordance with the version of the prosecution itself, although the incident took place inside the house; however, all the three persons were murdered at different places and their bodies were also lying on different places but the blood-stained clay was recovered only from one place; as such the prosecution version becomes' doubtful. Besides there are major discrepancies in the statements of prosecution witnesses which Take the prosecution version totally doubtful.
13. ' On the other hand Mr. Abdul Rashid Karnahi the learned Assistant Advocate-General, on behalf of State argued that in the circumstances of the case there was no need for purgation of the witnesses. The accused were convicted under provisions of the Penal Code so it was not enjoined upon trial Court to conduct the purgation of the witnesses. The learned counsel also maintained that at the time of occurrence there was no such darkness as it had been claimed by the defence rather it was the evening time and the inmates of the house were sitting near the cooking place where the fire was burning, in the light of which the accused-appellant was clearly identified by the prosecution witnesses. In the alternative the learned counsel emphasised that accused-appellant was also closely related to the witnesses. He was not a stranger to them. The witnesses identified the accused-appellant even by his voice. The learned Assistant Advocate-General maintained that holding of an inquiry before examining the minor witnesses was not a condition precedent as the minors were capable enough to understand the questions and they deposed their evidence in a rational way. The learned counsel maintained that case against the accused appellant was proved beyond any shadow of doubt and the circumstances under which the appellant committed the gruesome murder of 3 persons and seriously injured a prosecution witness deserves death sentence which is a normal penalty under law.
14. ' We have heard the respective contentions of the learned counsel for the parties. The points convassed by both the learned counsel for the parties were given deep thought and the record of the case was also examined with care.
15. ' It is no doubt correct that in cases of Hudood and Qisas it is mandatory requirement for the trial Court to conduct the purgation of the witnesses. The Additional District Criminal Court, Pallandri, which is itself the creation of Islamic Penal Laws Enforcement Act, it was enjoined upon it to conduct the purgation of the eye-witnesses in cases of Hudood and Qisas in order to ascertain the righteousness and truthfulness of the eye-witnesses but in the instant case the occurrence was witnessed by Mst. Jamila Akhtar and Sabir Hussain P.Ws., who both arc minors. Out of the above two witnesses Sabir Hussain P.W. Is an injured witness.
16. ' Section 26 of the Islamic Penal Laws Enforcement Act postulates that standard of evidence in cases of Qisas shall be two adult Muslim male witnesses. In absence of such standard sentence of Qisas could not be enforced. Subsection (2) of section 26 further postulates that in all cases of Hudood and Qisas Tazkia-Tush-Shahood of witnesses shall be essential. In the present case undoubtedly there are two minor witnesss namely Mst. Jamila Akhtar and Sabir Hussain. Therefore, the provisions of section 26 of Islamic Penal Laws (Enforcement) Act, in our considered view are not attracted in the case. So the trial Court by not conducting the purgation of eye-witnesses, committed no illegality, rendering the conviction into a nullity.
17. ' The learned counsel for the appellant maintained that point with regard to purgation of witnesses was urged and argued before the Shariat Court but it failed to give any finding on this aspect of the matter. We regret that the position taken by the learned counsel for the appellant is not factually correct. The Shariat Court in its order recorded in the order-sheet, dated February 2, 1992 expressed the view that the provisions of section 26 of Islamic Penal Laws Enforcement Act were not attracted in the present case, so there was hardly any need for the purgation of the eye- witnesses.
18. ' We have critically gone through the judgments recorded by the trial Court and Shariat Court. Both of them have not convicted the accused-appellant under section 5 of the Islamic Penal Laws Enforcement Act. On the contrary they have found the accused-appellant guilty under section 302, A.P.C. And section 307, A.P.C. Read with section 15 of Islamic Penal Laws Enforcement Act and awarded him a sentence of death and imprisonment already undergone respectively. In our considered view the conviction recorded simultaneously under section 307, A.P.C. And section 15 of Islamic Penal Laws Enforcement Act was not a correct exposition of law if the accused was found guilty of murderous attempt. His case was fully covered by section 307, A.P.C. And not section 15 of Islamic Penal Laws Enforcement Act. To the extent indicated above the trial Court as well as the Shariat Court have committed an illegality, we therefore, set aside the conviction of the accused- appellant under section 15 of Islamic Penal Laws Enforcement Act. So far as the conviction recorded under sections 302 and 307, A.P.C. Is concerned, that is perfectly valid and in accordance with the prevalent law.
19. ' The contention raised by the learned counsel for the appellant that keeping in view the time of occurrence, the accused-appellant could not have been identified by the eye-witnesses carries no substance for a simple reason that at the time of occurrence there was no such darkness as it had been claimed by the defence. It was approximately an evening time. Both Mst. Jamila Akhtar and Sabir Hussain P.Ws. Alongwith deceased were sitting near the cooking place where the fire was burning. Sabir Hussain P.W., when subjected to cross-examination by the defence counsel on the point replied in a positive way that at the time of occurrence deni-lamp was burning. He was sitting near the fire place and Mst. Zakhira Begum was baking the bread. Similar is the statement of Mst. Jamila Begum. Another important aspect of the matter is that the accused-appellant was not a stranger to the witnesses. He was their brother-in-law and P.Ws. Were in a position to identify the culprit from his voice. So the question of identification of the accused being doubtful in the circumstances of the case, carries no substance and is hereby repelled.
20. ' The learned counsel for the appellant strenuously argued that both the eye-witnesses Mst. Jamila Akhtar and Sabir Hussain were minors. They were of the age of 14 and 12 years respectively at the time of recording their evidence. According to the opinion of the learned counsel it was mandatory for the trial Court to take a note of their being of tender age and an enquiry should have been conducted before recording the statement of the minor witnesses.
21. "Article 3 of Law of Evidence postulates:-- ' 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 disease, whether of body or mind or any other cause of the same kind."
22. ' The aforesaid provision postulates that only those persons will be incompetent 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 infirmity.
23. ' Article 3 is a rule of caution. The question in each case which a Court has to decide is whether a particular child who has appeared in the witness-box is intelligent enough to be able to understand as to what evidence he or she is giving and to be able to understand the questions and to be able to give rational answers. A child of tender years is not by reason of his youth, as a matter of law, absolutely disqualified as a witness. There is no precise age which determines the question of competency. This depends upon the capacity and intelligence of the child, his appreciation of the difference between falsehood and truth, as well as his duty to tell the latter. Our aforesaid view finds support from the principle laid down in PLD 1968 Pesh.
24. 1.
25. ' There are also numerous authorities on the point that a child of 12 years is not a child of tender years within the meaning of this section and is, therefore, competent to give evidence. Similarly a child of 8 to 9 years of age or 10 years of age or even a child of 6 or 7 years is a competent witness, if it appears from his deposition that he can understand the questions put to him and give rational answers thereto. Our aforesaid view is fortified by the authorities 1968 PCr.LJ 1526, PLD 1965 Pesh. 134, 1968 PCr.LJ 569 and AIR 1953 Pat.
26. 246.
27. So what is required by law is not the factor of age but the important criteria has always been the intelligence that a particular child witness has in the circumstances of the case. It may also be pointed out that in the instant case, the child witnesses who were produced by the prosecution in support of their case, were of the age of 14 and 12 years respectively. They were not of the age so as not to understand the nature of questions put to them. Yet there is another criteria that is the evidence of the child witnesses itself. From the perusal of the evidence of the child witnesses we find them as intelligent witnesses because they gave rational replies to the questions put to them by the learned counsel for the defence and they in fact understood the nature of questions posed to them. So after careful analysis of the case-law, and the provisions of Article 3 of Qanun-e- Shahadat we are of the view that the rule enunciated in Article 3 is not an absolute or inflexible rule.
28. Therefore, the objection of learned counsel for the appellant is hereby repelled.
29. ' The next contention of the learned counsel for the appellant is as said earlier, that prosecution witnesses being related inter se and with the deceased, their testimony cannot be relied upon. It may usefully be pointed out that time and again it has been held by this Court that mere relationship is no ground for discarding the evidence of a witness. The relationship coupled with the enmity of the eye-witnesses with the accused is of course a ground which puts the Court at guard to closely scrutinize the evidence of a particular witness. In the present case no such enmity has been suggested from the side of defence so as to look the evidence of related witnesses with a great care and caution. Not a single question has been suggested to eye-witnesses that on account of some enmity with the accused they were implicating the accused-appellant in the case. There appears to be no case of the prosecution that the real culprit was substituted or that the appellant was falsely involved in the case. We also cannot remain oblivious of the fact that the eye-witnesses being the inmates of the house, where the occurrence took place, are natural witnesses and their evidence cannot be brushed aside merely on account of relationship. It may also be observed that one of the eye-witnesses namely Sabir Hussain is an injured witness, whose presence at the place of occurrence cannot be denied. We have looked into the evidence of these eye-witnesses. They are quite natural witnesses. There evidence is of quality and confidence inspiring. The ocular version of the prosecution is sufficiently corroborated by the recovery of crime weapon, post-mortem reports and medico-legal report of the injured witness. The Serologists report is also supportive to the case of the prosecution. The crime weapon recovered at the instance of the accused was stained with human blood. The blood-stained clay was recovered from the place of occurrence during the investigation. It is pertinent to point out that both the blood-stained clay and human blood on the hatchet, the weapon of offence, have the origin of group as group "B". The abovesaid piece of evidence is a strong incriminating circumstance connecting the accused-appellent with the commission of the offence alleged to have been committed by him.
30. ' The last contention of the learned counsel for the appellant is that the dead bodies of deceased persons were lying on the place of occurrence at different places, whereas the blood-stained clay was recovered only from one place is also found to be of no substance and is factually incorrect.
31. We have examined the site plan attached with the file of the trial Court and the perusal of which shows that the blood-stained clay was recovered from different places where the dead bodies were lying. So the argument of the learned counsel for the appellant being artificial and imaginary is devoid of any force.
32. The accused-appellant has committed gruesome murders of 3 innocent persons and made murderous attempt on the life of Sabir Hussain P.W. In our estimation the trial Court and the Shariat Court committed no illegality in awarding the sentence of death to the accused-appellant finding him guilty under section 302, A.P.C. And a sentence of imprisonment already undergone under section 307, A.P.C. The Supreme Court normally does not enter into a detailed appreciation of evidence unless the evidence is misappreciated or not interpreted in a judicial way. As the appellant was awarded the extreme penalty we have ourselves examined the evidence in the case. Our conclusion after examining the evidence is the same as has been arrived at by the trial Court and the Shariat Court. Finding no force in this appeal. It is, therefore, dismissed.