JUDGMENTMISS TALLAT YAQUB, J.- Shaukat Ali alias Bagga (29 years), Mrt.Parveen alias Abida Parveen (27\28 years) and Munir Ahmad (28 years), appellants were tried under sections 302\34, 404\411 PPC by a learned Addl: Sessions Judge, Toba Tek Singh for the murder of Khadim Hussain.
Vide his judgment dated 23.5.1991, the learned trial court convicted and sentenced them under Sections 302\34 PPC to death and a fine of Rs.20,000\: each, in default whereof they were to suffer further R.I. For two years. They were, however, acquitted of the charges u\ss 404\441 PPC. All the three appellants have .Filed appeals while the learned trial court has sent a reference under section 374 Cr.P.P.C for confirmation of their death sentence. This judgment shall dispose of both, the appeals as well as the murder reference.
2. Briefly, the prosecution story as narrated in the FIR Ex.PG recorded on the statement of Amjad Ali PW-6, brother of the deceased, is that on 25.7.1989 at about deyarwela. He went to the house of his brother Khadim Hussain deceased and was the appellants present there. After meeting the brother, he came back to his house. Next day he again went to see the deceased and found that the appellants were present in the house but the deceased was not there. When asked Msf.Parveen appellant told the complainant that he had gone to Faisalabad for earning his livelihood. The complainant came back to his house. On the next day Abdul Qayum PW-8, who was a neighbour of the deceased told the complainant that the appellants had tak^p away the house hold articles of Khadim Hussain' in a Wagon. After receiving this information, when the complainant went to the house of his brother, it was locked. He looked for his brother in Faisalabad and Gojra but did not get nay clue about him. On 24.8.1989, he went to the in laws of his brother in Mubarik Para, Police Station Kabirwala along with Abdu! Qayyum PW- 8, Muhammad Mushtaq PW-9, Safdar Ali and Amanat Ali (since given up). All the appellants were present in the house of Inayat Ali (father in law of the deceased). When he asked about the whereabouts of his brother, they reluctantly confessed that they had murdered the deceased after giving him some intoxicants and had buried him in the court yard of the house of the deceased. They even offered to any compensation for the murder of the deceased. The complainant along with his companions came back and on opening the lock of the house of the deceased they found the dead body of the deceased buried in a deep ditch. The throat of the deceased was cut. Amjad Ali, complainant then went to lodge the first information report with the police leaving behind Abdul Qayum PW, Muhammad Mushtaqa PW.9, Amanat Ali and Safdar Ali (Since given up), to guard the dead body of the deceased.
3. The motive for the occurrence is that Shaukat Ali, appellant had developed illicit liaison with Mst.Parveen, were of the deceased. The deceased reprimanded Shaukat Ali, appellant in the presence of Abdul Qayyum PW-8 and asked him to refrain from having illicit relations with her and on account of this grudge, he was murdered.
4. After recording the FIR Ex.PG, -Muhammad Nawaz ASI (PW-11) visited the spot, prepared injury statement Ex.PC, inquest report Ex.PD of the deceased, site plan without scale Ex.PL, site plan of the places of theft of household articles Ex.PN and sent the dead body under the escort of Maqsood Ahmad PW, for post mortem examination to Civil Hospital, Gojra, recorded the statements of the witnesses u/s 161 Cr.P.C, on completion of the investigation, he submitted the challan in the court.
5. On 5.8.1989 at 9.20 A.M Dr.Saeed Ahmad conducted post mortem examination on the dead body of the deceased and found the following injury:- "An incised wound 14 cm x 8 cm on front of neck deep upto vertebra ligaments. Both sides vessels were cut. Neck was in extension condition. There was cut of laryngeal cartilages. Wound was across the throat." In the opinion of the doctor, the death occurred due to shock and haemorrhage due to the above injury which was caused by a sharp-edged weapon and was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was immediate while between death and post mortem examination was 10 to 15 days.
6. The appellants when examined under section 342 Cr.P.C denied the allegations and stated that they had been involved falsely on account of suspicion. Mrt.Parveen, appellant, were of the deceased stated:- "About three months prior to the occurrence, deceased Khadim Hussain, myself and our children shifted to Mubarikpur, the house or my parents. Khadim Hussain wanted to sell his house, hence he came to Gojra alone and was murdered in the house. The murderers could not be traced. When had smell was felt outside the house, then the dead body was discovered. The story of the murdering and burying the deceased by the accused was concocted. False evidence was procured and we were falsely implicated on mere suspicion." The appellants did not lead any evidence in their defence.
7. The Learned trial court believing the prosecution evidence convicted the appellants and sentenced them as mentioned above.
8. Learned counsel for the appellants has contended that this is a blind murder. The child on whose evidence the conviction is based was not mentioned in the FIR as an eye witness but was later on smuggled by the prosecution with a view to procure the conviction of the appellants. It is further submitted that the solitary statement of this child who was three years old at the time of occurrence cannot be made the basis of cqpviction, particularly when the so-called extra judicial confession of the appellants before the complainant and other PWS was disbelieved by the learned trial court. On a question whether the evidence of a child who was three years old at the time of occurrence is admissible in evidence, relying on Article-3 of the Qanune-Shahadat, he stated that no doubt it was admissible but, he argued that children were most untrustworthy class of witnesses and, therefore, they should not be believed, unless there was very strong corroborative evidence.
State supported the judgments.
9. We have heard the arguments of both the sides and have also gone through the record with the assistance of both the learned counsel.
10. The only eye witness in this case is Arshad Javed PW-7, son of the deceased who - at the time occurrence was bout 3 years old. The arguments of learned defence counsel that the solitary statement of the child witness cannot be made the basis for conviction is not without force. It would be advantageous to reproduce Article-3 of the Qanune-Shahadat, Order 1984 which is as under:- "All persons shall be'competent to testify unless the Court considers that they are prevented from understanding the question 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".
11. A cursory look on the above mentioned provisions of law would show that a child is a competent witness before a court of law, but certain guide lines have been provided by the great expounders of law and the judgments of the superior courts of Pakistan as well as from across the border. In Umar Jehan Vs.State (1979 SCM R 186) it, was observed that danger in basing a conviction on the evidence of a child was obvious. A child can easily be tutored. The Hon'ble Judges of the Supreme Court approved the case titled Sultan Vs.State (P.L.D. 1965 Karachi 615) in which it was held that it would be most unsafe to base a conviction upon the sole testimoney of a child. Similar view was expressed in Abdul Hamid Vs.State (P11) 1980 Peshawar 25). It was observed that the child witnesses are disinterested witnesses yet because of their tender age they were positively under the influence of Investigation Agency. A Division Bench of this Court have beautifully described the status of a child witness and the real tests to believe his statement. In the case of Haq Nawaz Vs.State (P.Cr.L.J. 1987 page 1944), it was held:- "Children are dangerous witnesses. They have good memories' but they cannot have conscience, for lack of understanding and sense of piety or impiety. They can be easily taught stories and sometimes after hearing stories they can have imaginary illusions that they have seen those things happening. Fear of punishment, hope of rewards, desire to be known or grown up ones, also can influence their mind. The real tests to believe their statements are consistency in the story and the fact as how far it fits in with the rest of evidence and the circumstances of the case." In addition to this we may observe that it is a sound rule is practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.Dr. Kenny Professor of the laws of England, Cambridge University in his book "The out-lines of Criminal Law", writes as follows:- "Children are a most untrustworthy class of witness, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their on knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety." It was observed in Abbas Ali Shah Vs.Emperor (AIR 1933 Lahore 667) that while considering the evidence of child witness, the court should not lose sight of the above mentioned observations of Dr .Kenny. In Darpan Potdarin Vs.Emperor (AIR 1938 Patna 153), it was observed as follows: - "Lastly, there is the evidence of by Jiblal, and if the other points which I have mentioned are rejected, it would be unsafe to convict on the evidence of the child." It was further observed:- "The evidence of children unless immediately available and unless received before any possibility of couching is notoriously dangerous."
12. The position that emerges from the above mentioned references is that a child is competent witness in law but rule of prudence requires very strong corroborative evidence in support of the statement of a child witness, which is lacking in the present case. The name of Arshad Javed PW.7 was not mentioned in the F.I.R. His statement was recorded by the police after 10 days of the occurrence and during all this period he remained with the complainant who happened to be his paternal unde. He was under the grip of the complainant even when he appeared in the court. When asked to identify his mother, appellant Parveen he stated that she was his mother but now she had no relations of any sort whatsoever with him. This showed the deep rooted hatred that he had for her mother. This was obviously because of the fact that throughout this period, he was living in an atmosphere of hostility againSt the mother and maternal uncle, since he was all the tune under the influence of his paternal uncle. The possibility of being tutored by the uncle cannot be ruled out. Even otherwise we find thathe did not mention the time of inddent in his statement. He just stated that he was sleeping at the roof of his house and when were up, came down the stairs he saw the appellants murdering his father. This statement is belied by the site plan where the stair case is not shown. We cannot believe this witness particularly when there is not evidence, worth the same, to corroborate his statement.
13. The evidence of extra judidal confession was rightly disbelieved by the trial court because there was no occasion for the appellants to confess their guilt particularly when nobody had seen the occurrence nor anybody had any suspidon on the appellants. Even otherwise we find that evidence of none of these witnesses of extra judidal confession could be of any help to the prosecution.
14. The medical evidence is at variance with the statement of PWS. PW.10 - stated that the appellants told him that they first strangulated the deceased and then cut his throat. According to the post-mortem report there is no legature mark on the neck of the deceased. Similarly in FIR it was mentioned that the deceased was first given some intoxicant and then murdered but the report of the chemical examiner shows that Piosion was not detected in the visceres.
15. The recovery of (hurries P.1 and P.2 is of no help to the prosecution as accordingly to the prosecution, only one Churri was used but two churries have been recovered and strangely enough both the churries were stained with human blood. This shows padding on the part of the Investigating Officer. The occurrence took place on 25th\26th of Jiily, 1989 and the appellants were arrested on 7.8.1989, it cannot be believed that for about two weeks, the appellants will not wash the blood from the churries and keep them stained with human blood. The irresistible inference is that these churries have been planted on I he appellants by the police in order to strengthen the prosecution case. Thus the prosecution has not been able to prove it against the appellants beyond reasonable doubt.
16. For the foregoing discussion, we accept the appeals, set aside the conviction and sentence of the appellants and acquit them. They are directed to be set at liberty forthwith if not required to be detained in any other case. The reference is answered accordingly.