' RAJA MUHAMMAD KHURSHID, J.--- The brief facts are that on the night between 5th and 6th of March, 1990, Dil Khurshid was done to death in the area of Village Khairpur at a distance of 6 miles from Police Station Kallar Kahaar, District Chakwal. The report about the occurrence was lodged by Khaki Jan, son of the deceased on 6-3-1990 at 11-30 a.m. It was contended in the report by the complainant that his mother Anwaran Begum had died about three years prior to the occurrence.
He married Shah Azizan accused about two months prior to the present murder. Mst. Shah Azizan was daughter of his paternal-uncle Ajaib Khan who had since died. The aforesaid Shah Azizan was living with the complainant in a house in which the deceased Dil Khurshid was also residing along with his other children. The complainant was working as a loader at a truck in those days. He came to his village after about ten days and learnt about the murder of his father at about 10-00 a.m. On that day. He went to the spot and saw the dead body of the deceased lying in the field of Ghulam Murtaza of the same village. The blood was coming out from the left temporal region of the dead body. He left Muhammad Afsar son of Anaar Khan of his village at the place of occurrence and started for lodging the report to the police station, but at Karooli More, he came across the Inspector/S.H.O. Of Police Station Kallar Kahaar. He narrated the occurrence to the Inspector in which he contended that Mst. Shah Azizan was not keeping good character and had illicit liaison with Ajaib Gul accused who was related to him as his paternal-uncle. Ajaib Gul accused had also allegedly beaten the deceased one year back on account of those illicit relations but due to close relationship, no report was lodged with the police station about such beating. The complainant expressed his strong suspicion that the deceased was murdered by both the accused namely Ajaib Gul i,e,; his paternal-uncle and Mst. Shah Azizan i,e,; his wife.
2. Both the accused were charged under section 302/34, P.P.C. For committing the murder of the deceased and were further charged under section 201, P.P.C. For deliberately causing the disappearance of the evidence regarding the murder of the deceased with intention to screening themselves from the legal punishment. They were tried by Mr. Azhar Hafeez Sheikh, learned Sessions Judge, Chakwal, who vide his judgment, dated 15-9-1992 convicted both the accused/appellants under section 302/34, P.P.C. And sentenced Ajaib Gul appellant to death and a fine of Rs,50,000 or five years' R.I. In default of payment of such fine and that Mst. Shah Azizan appellant was sentenced to imprisonment for life and a fine of Rs,10,000 or one year's R.I. In default of payment of such fine. Both the accused/appellants were further convicted under section 201, P.P.C. And sentenced to seven years' R.I. And a fine of Rs,10,000 each or in default of payment of such fine to suffer one year's R.I. Each. The fine imposed upon them under section 302/34, P.P.C., if recovered, was directed to be paid to the heirs of the deceased Dil Khurshid as compensation under section 544-A, Cr.P.C.
3. Both the appellants have challenged their convictions and sentences passed by the learned trial Court on the ground that reliance was wrongly placed on the eye-witnesses namely Umar Sultan who was never named in the F.I.R. As a witness besides being a 'child witness' having no capacity to enter the witness-box being at the threshold of his youth. Another objection was raised against the aforesaid only eye-witness that since he was a young child, therefore, his evidence was not only tutored but also manoeuvred to implicate both the accused falsely in this case; that the recoveries of the "Wahola" and other articles such as blood-stained earth from the alleged place of occurrence i,e,; house of the deceased and also from the wheat field showed that the occurrence had taken in some different manner as some unknown killer had finished the life of the deceased but the present story was later on invented to trap both the appellants with ulterior motive. The medical evidence was also stated to be contradictory to the ocular account of the occurrence and as such, the case of the prosecution was highly doubtful and smacked mala fide action on the part of the complainant and the police.
4. Learned counsel for the appellant while pressing the aforementioned points referred to the statement of the solitary eye-witness namely Umar Sultan whose age was about 10 years at di/ time when he entered the witness-box. The occurrence had taken place 2-1/2 years prior to his evidence in the Court and as such mathematical calculation will show that he was hardly 7-1/2 years of age when he allegedly happened to see the occurrence. It was, therefore, urged that such type of young boy cannot make a rational statement regarding the occurrence nor he would be considered as competent witness under the law. In this connection, it was alleged that the learned trial Judge did not satisfy himself to find out that the witness was actually intelligent enough to testify as conditioned by section 3 of the Qanun-e-Shahadat Order, 1984. In this regard, it was alleged that the learned trial Judge should have put few questions and obtained answers from the witness to find out that he understood the questions put to him and had given rational answers to those questions and that he was aware of the sanctity of his evidence as attached to it by the Holy Qur'an and Sunnah; and that his statement shall be true and not false; and that he (the witness) knew about difference between truthfulness and falsehood. Only after satisfying on those points, the learned trial Judge should have proceeded to record the statement of Umar Sultan. Since no such questions were put nor the answers were obtained, therefore, the evidence of Umar Sultan was liable to be excluded. Likewise, it was contended that the recovery of "Wahola" was doubtful as no independent person of the locality was associated with its recovery nor it got determined that the blood found on it belonged to the deceased by sending it for analysis with the blood recovered from the place of occurrence that both the bloods had the same grouping. The medical evidence was allegedly lacking in this case because Dr. Khalid Mehmood who had conducted the post- mortem examination was not available at the time of trial as he had gone abroad and there was no prospect of his early return to Pakistan. As such, Arshad Saleem, Dispenser, D.H.Q. Hospital, Chakwal entered the witness-box as P.W.10, who deposed that he had been working with Dr. Khalid Mehmood and was in a position to identify the handwriting and signatures of the aforesaid doctor.
He had been seeing the aforesaid doctor's writing and signing the documents while being posted with him. He identified that the injury statement Exh.P.J. And the inquest report Exh.P.K. Were signed by him (doctor) and that the post-mortem examination report Exh.P.N. And its pictorial diagram of the injury Exh.P.N./1 were in the hand of the aforesaid doctor who had signed the same. It was, therefore, contended that since the Medical Officer was not available and cross-examination could not be conducted upon him, therefore, the accused were prejudiced in their case in hand. Lastly, it was contended that no overt act was attributed to Mst. Shah Azizan for the murder of the deceased nor did she play any active role in such a heartless occurrence, therefore, there was no justification for her conviction under section 302, P.P.C. Finally, it was contended that in fact the deceased was done to death by some unknown assailants and his dead body was discovered from a field after the announcement from the mosque on the loudspeaker. As such, the case of the prosecution was allegedly doubtful from its very inception but the police had wrongly roped both the accused in order to cover up a blind murder to save their own skin.
5. Learned State counsel contended that the evidence of the "child - witness" cannot be ignored if it inspires confidence about its truthfulness, or even if otherwise appears to be rationally and intelligently given at the trial. The deceased was the real brother of Ajaib Gul, whereas, his co- accused Mst. Shah Azizan was his paternal-niece and was also married to his son Khaki Jan i,e,; the complainant. In such a situation, there was no likelihood that Umar Sultan, though a son of the deceased, would falsely implicate his real paternal-uncle and his real cousin Mst. Shah Azizan who also happens to be his sister-in-law being wedded to his brother Khaki Jan. The motive is also there as was deposed by Khaki Jan P.W. That the deceased restrained Ajaib Gul accused to discontinue having illicit liaison with Mst. Shah Azizan who was not only his niece being sister of his deceased brother but also a family honour. This led to some beating by Ajaib Gul to the deceased but the matter was not reported to the police being a family affair. This motive has allegedly been proved by Khaki Jan P.W. The evidence of Umar Sultan (P.W.6) was supported by the circumstantial evidence such as motive, recovery of blood-stained "Wahola" at the instance of Ajaib Gul, and that there was no other hypothesis showing the innocence of the accused or that they have been substituted; or that the murder was committed by some unknown offenders. It was, therefore, alleged that the prosecution has been successful to prove its case at the trial and as such, the convictions of the appellants were rightly made by the learned trial Court.
6. We have considered the foregoing submissions and find that there was only one eye-witness namely Umar Sultan who was about 7-1/2 years of age at the time of occurrence, though he had attained 10 years of age when he entered the witness-box. It is true that his name is not given in the F.I.R. As a witness but the same is not an exhaustive document so as to contain the minutest details. The aforesaid witness was a child at the time of occurrence. Perhaps nobody would have thought if to name him as a witness nor he himself had come up immediately to say that he had seen the occurrence, may be out of fear or shock following the tragic killing of his father. However, when the grief subsided to some extent and he found himself secure, he came up with the statement that his father was done to death by the accused persons during the unfortunate night; and to that horrible spectacle he had unfortunately seen. The mere fact that the learned trial Judge did not put questions nor did' he bring them on record alongwith answers of the witness would not make the evidence of Umar Sultan unworthy of reliance particularly after going through the statement, he had made in the Court and the way he patiently stood up to the cross- examination conducted upon him. There is nothing in the statement, recorded in the Court which may suggest that either he was not understanding the questions or that he had given in-elevant replies or that he had made incoherent statement about the occurrence. On the contrary, it appears that he entered the witness-box with full responsibility and exhibited normal intelligence and demeanour while in the witness-box. In such a situation, the mere fact that there is nothing on record to show that the questions were put to him to find out whether he could give proper answers to them, would not disqualify him as a witness, particularly when there is a note of learned Judge that the witness seemed to be quite intelligent and competent to give evidence. That note would be enough in the given situation to come to the conclusion that Umar Sultan (P.W.6) was not only a competent witness but also a natural witness as he was residing in the same house where the murder had taken place and was sleeping in the same room where the ghastly tragedy was enacted. He clearly deposed that he had seen Ajaib Gul accused AI giving "Wahola" blow on the left temple of his father who started writhing and died at the spot. This occurrence was seen by him while a lamp was burning in the room and as such there was no problem of identification of the accused persons who were also the family members. Although the witness got frightened on seeing the bloody scene but it would not be unusual because any one of that age would get scared on seeing such cruel act being committed by one brother against the other brother to take his life. The transitory silence on the part of this witness could be understandable because he was threatened by the accused that he would be given similar treatment as was given to his father if he tried to raise the alarm. It is true that if the evidence of a child witness inspires confidence then there is no need to seek any corroboration but the rule of prudence still insists that such corroboration should be sought to rule out any chance of miscarriage of justice. In this case, the corroboration is provided by the motive given by Khaki Jan who is also a most relevant witness in the case. He is closely related to both the accused and it is not possible for him to state falsely against them nor there is anything on record to show that there was any enmity or ill-will between the two sides so as to substitute the appellants for the actual killers. The recovery of Wahola is also a very firm and reliable piece of evidence to support the statement of Umar Sultan P.W. Who clearly deposed that Wahola was used by Ajaib Gul to take the life of the deceased. The aforesaid Wahola was blood-stained having human blood on it as determined by the report of the Chemical Examiner and the Serologist. It is thus, clear that Umar Sultan, though a child, could be relied upon because the evidence given by him is supported by the circumstances of the case. The recovery of blood-stained Wahola and the locale of injuries given in the post-mortem examination report which correctly tally with the seat of the injuries given by the only eye-witness namely Umar Sultan.
Hence there is a genuine ring of truth in the evidence given by Umar Sultan which could not be shaken by intelligently conducted cross-examination to which he was subjected. Under this situation, it is to be seen whether the evidence of Umar Sultan should be accepted or not. There is no general rule of universal application that in no case should the evidence of child witness be believed. Each case depends upon its particular facts and circumstances. The e evidence of a child witness before it is acted upon should, however, be subjected to a close and careful scrutiny.
The boys of the age group between 7 to 10 are considered to be the best witnesses for the advantages which are; love and hatred, ambition and hypocrisy, considerations of religion and rank, of social position and fortune, as yet unknown to them; it is impossible that preconceived opinions, nervous irritation or long experience should lead them to form erroneous impressions; the mind of the child is but a mirror that reflects accurately and clearly what is found before it. The brain of a child is very sensitive, clear and pure so as to imprint any event, impression and incident succinctly, simply and truely like a pure and bright ripple over a clear and transparent surface of water. Though these imprints may sometime get abjured through external influence whether designed or accidental but those are not likely to lose the value of truth. As such, a child witness becomes a very strong and reliable witness if supported by other circumstances of the case. In the case in hand, Umar Sultan is supported by the circumstances that he being a resident of the same house where the murder took place, was a natural witness to the event; that there was no ground that he would falsely implicate any of the two accused who are not only his blood relations but being closely associated with him; admittedly there is no enmity between the two sides; that the recovery of blood-stained Wahola at the instance of Ajaib Gul accused carrying human blood on it provides a circumstance to support the ocular account of the occurrence of Umar Sultan that the murder was committed with the said Wahola; that the seat of injury indicated by the witness substantially tallies with the injury given by the Medical Officer in the post-mortem report; and that the motive of the occurrence which has been given by disinterested witness namely Khaki Jan (P.W.5) who too had no enmity with the accused side nor he had any reason to falsely implicate them in the case. It, therefore, follows that the statement of Umar Sultan i,e,; the only eye-witness of the case, though a child, can be accepted to advance the interest of justice. As such, the prosecution has successfully proved the case against both the accused from the evidence on record.
7. The defence version of total denial is not convincing in any manner. Ajaib Gul accused has deposed in his statement upon oath under section 340(2), I Cr.P.C. That he had no dispute or enmity with Umar Sultan or Khaki Jan P.Ws. Which further shows that those witnesses had no occasion to involve him falsely in this case. Earlier to that, the accused Ajaib Gul had stated in his statement under section 342, Cr.P.C. That the deceased was involved in many criminal cases. The complainants in those cases in order to save their skins allegedly got him falsely involved in this case. This explanation of the accused is in no way convincing because he had not brought anything on record about details of those cases or the complainants of such cases. Even otherwise, the eye-witnesses namely Umar Sultan and P.W. Khaki Jan are not likely to become instrumental in involving him in a false case particularly when he admitted that he had no dispute or enmity with them. Naturally, such persons would not like to become tools in the hands of others to involve their own close relatives in a case of murder., The accused examined Lal Khan as D.W.1 but his statement in no way advances the defence version because, for the first time he was introduced at the trial and had never been produced before the police nor he had volunteered to join the investigation to depose in favour of the innocence of the accused persons. As such, there is no substance in the defence version to create any loophole in the case of the prosecution which stands established beyond any reasonable doubt
8. Before we finally part with the judgment, it is to be seen as to what offence is actually committed by Mst. Shah Azizan accused. It is in the evidence of the eye-witness that though she was present but she did not participate in the murder of the deceased. However, she helped her co-accused i,e,; Ajaib Gul in removing the dead body from the place of occurrence to a field in order to screen his offence. As such, her case alongwith her co-accused will fall under section 201, P.P.C. But she cannot be held responsible nor it can be safely said that she had a common intention with Ajaib Gul accused to murder the deceased. As such, Mst. Shah Azizan is acquitted of the charge of murder of the deceased. Her conviction and sentence under section 302, P.P.C. Awarded to her by the learned trial Court is set aside and her appeal to that extent is accepted. However, she is equally responsible for the commission of offence under section 201, P.P.C. And her conviction alongwith conviction of her co-accused under the aforesaid section is maintained but their sentences are reduced to a periotl which they have already undergone. The sentence of fine awarded to both the accused/appellants is also reduced from Rs,10,000 to Rs,1,000 each and in default of the payment of the reduced fine, they shall further suffer R.I. For one month each. Their appeal is dismissed qua the charge under section 201, P.P.C. With the above modification in the sentences.
9. The conviction of Ajaib Gul accused/appellant is maintained under section 302, P.P.C. But his sentence is modified and reduced from death to imprisonment for life. The sentence of fine as awarded to him by the learned trial Court shall be maintained and fine, if realized, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. As directed in the impugned judgment. The benefit of section 382-B, Cr.P.C. Is extended to the appellant/accused Ajaib Gul. His appeal is accordingly dismissed with the above modification in the sentence.
10, The death sentence is not confirmed.
11. The Murder Reference No,376 of 1992 is disposed of accordingly.