' SARDAR MUHAMMAD NAWAZ KHAN, J.--- The above titled appeals arise out of judgment and order of Additional District Criminal Court, Muzaffarabad, dated 4-9-1997 whereby the appellants were awarded 14 years' R.I. By the said Court.
2. The facts of the case are that a F.I.R. Was lodged at Police Station Muzaffarabad by one Sain Muhammad (complainant) wherein it was alleged that his real brother named Shahzaman was murdered by someone while he (deceased) was sleeping at his residence with his family members. The complainant stated in the F.I.R. That on receiving this information, reached the house of the deceased where he found the dead body of his brother Shahzaman soaked in blood. On inquiry it was told to him by his sister-in-law (brother's wife) Mst. Zatoon Bibi that some unidentified persons entered into the house by breaking the bolt of the door and assassinated her husband Shahzaman while they were sleeping in their bedroom alongwith two minor daughters. This report was lodged at police station on 11-3-1988. The concerned police authorities on receiving this report, registered a case under section 5 of Islamic Penal Laws Enforcement Act, 1974 read with section 302, A.P.C. The convicts-appellants were arrested during the investigation and after completion of investigation, they were sent up before the District Criminal Court, Muzaffarabad to face the trial.
Subsequently the case was transferred to the Additional District Criminal Court, Muzaffarabad through an order of Shariat Court for hearing and disposal.
3. The appellants were examined under section 242, Cr.P.C. On 4-9-1988, wherein they denied the allegations levelled against them and prosecution was directed to produce evidence in support of the prosecution story. The prosecution produced as many as 24 P.Ws. After conclusion of trial, the Court below found the appellants guilty of offences for which they were charged and awarded them with the sentence of 14 years' R.I. Vide its order, dated 4-9-1997. It is the aforesaid order, the legality and validity of which has now been challenged through the instant appeals.
4. The learned counsel appearing on behalf of both the appellants while challenging the judgment and order of the trial Court submitted that the said Court fell in error while delivering the impugned judgment. The case against the appellants was not proved beyond reasonable doubt as the prosecution story was full of material contradictions and discrepancies, the learned counsel argued. They further maintained that the appellants were to be acquitted by giving them the benefit of doubt. It was also argued that the motive behind the murder was also not proved and the version given by Mst. Zahida Bibi (minor daughter of the deceased) was not trustworthy as she was minor at the time of commission of offence and furthermore, her statement stood uncorroborated by the other evidence on record. As per estimation of learned defence counsel, the very fact that different persons including real brother of the deceased named Suleman were also arrested and their release during the investigation cast a serious doubt upon the prosecution story.
The learned counsel contended that keeping in view the overall circumstances of the case it was wrong to convict the appellants. It was also the argument of defence that the recovery of rifle (the weapon of offence) was also doubtful and it was another factor to make the story as doubtful.
5. The learned Assistant Advocate-General and the counsel for the complainant while supporting the impugned judgment contended that the prosecution story was proved beyond any doubt and the Court below committed no illegality while delivering the judgment under appeal.
6. The case of the prosecution is that Mr. Abdul Hamid who is son of real sister of the deceased developed illicit relations with the wife of the deceased and this very fact came into the knowledge of Mr. Shahzaman (deceased) and other inhabitants of the vicinity named Lumianpattian.
According to prosecution, different "Jirgas" were held in this connection and Abdul Hamid (appellant) was asked not to visit the house of deceased Shahzaman. The deceased obstructed him (Hamid) to visit his home and due to reported illicit relations between Mst. Zatoon Bibi (wife of deceased) and Abdul Hamid, the relations between spouses also became strained. With this background, both the appellants joined hands to get rid of Shahzaman (deceased). Mr. Abdul Hamid was serving in the Army in those days and on 3rd of March, 1988 he came from his Unit, met Mst. Zatoon Bibi and after having prepared a plan to murder Shahzaman went back to join his duty in his Unit. He obtained a leave for two days i,e, for 10/11th March, 1988, came to the vicinity known as Lumianpattian where Shahzaman was living with Mst. Zatoon Bibi and his two minor daughters. The appellant Abdul Hamid on 10th of March, 1988, secretly entered into the house of deceased and the fact of his entry in the house was known to the appellant Mst. Zatoon Bibi. At midnight, Abdul Hamid with the connivance of Mst. Zatoon Bibi entered into the bedroom of deceased. According to the story put forward by prosecution, the deceased and his two minor daughters were sleeping in the said bedroom while appellant Mst. Zatoon Bibi was also present there. The appellant Abdul Hamid caught hold of Shahzaman deceased and Mst. Zatoon Bibi fired by a .12 bore rifle twice at her husband Shahzaman. Mst. Zahida Bibi, a minor daughter of Shahzaman rouse from sleep on account of echo caused by first fire made by Mst. Zatoon Bibi and the second fire was witnessed by Mst. Zahida Bibi. The second fire which was made in the presence of Mst. Zahida Bibi also hit the person of Shahzaman deceased. The deceased on account of fire-arm injuries expired on spot. The convict appellants after commission of murder, went outside the house and made a plan to side track the investigation. Mst. Zatoon Bibi came back inside the house, took a Chhuri and inflicted injuries on the face of the deceased. Thereafter, she torn her clothes she was wearing at the time of incident and thrown out one brief case and two attache cases out of the house. She raised hue and cry by saying that some dacoits had murdered her husband and had taken away some house-holdings. She went to the house of his neighbourer Muhammad Asghar and narrated the same story to him. On this, Muhammad Asgar came alongwith her to the house of the deceased where he found the dead body of Shahzaman soaked in blood. Muhammad Asgar (P.W.) also found some empties of cartridges lying near the dead body. On queries made by Muhammad Asgar she told him that at midnight she alongwith her husband and daughters were sleeping, some body knocked at the door and her husband went outside the house but found none outside their house. Her husband came back and after a short while some unidentified person entered the house by breaking bolt of the door. A few of them caught hold of her and other murdered her husband. The decoit who caught hold of her torn her clothes also during scuffling and took a brief case and two attache-cases out of the house. According to prosecution, this all was done to conceal the actual incident and thus she attempted to side track the investigation. On the other hand, Abdul Hamid who also received an injury on the left ankle during the incident went back to his Unit and made a false excuse to the military authorities by pretending that he was injured at Thatta (Sindh) while he was on leave. He remained in the Hospital on account of this injury. In this way, according to prosecution, both the convict appellants dodged the police concerned and after a lengthy investigation they were taken into custody.
7. During investigation, the police recorded the statements of P. Ws. Took into custody the two cartridge empties, crime lead bullets wads of gutta and blood-stained clay from the place of occurrence. The .12 bore shot gun (weapon of offence) and Chhuri were also recovered at the instance of appellant Mst. Zatoon Bibi. Post-mortem report of the deceased and a medico-legal report on a reference made by the police were also obtained. The reports of Chemical Examiner and Forensic Expert were also filed with the challan. After the arrest of appellant Abdul Hamid his blood-stained shirt (Qameez), Shalwar (stitched at the left leg of trousers) were also taken into possession at the instance of appellant. The police also got the appellant Abdul Hamid medically examined and a report in this connection was also placed on record. The leave certificate and injury report of Abdul Hamid were obtained from Military Authorities and certified copies of documents are also placed on the file by Investigating Agency. Besides this, the documents showing the correspondence between police and military officials for handing over the culprit (Abdul Hamid) to police for investigation is also a part of the file.
8. Now let us see whether in the light of the evidence collected and produced before the trial Court, the convict appellants are connected with the commission of crime or not. To prove the appellants guilty of offence alleged against them the prosecution was under burden to prove:--
(a) The illicit relations between the appellants,
(b) The presence of Abdul Hamid at Muzaffarabad on 10th of March, 1988 and his participation in the said murder,
(c) The participation of Mst. Zatoon in assassination of her husband Shahzamn with the connivance of Abdul Hamid.
9. The star witness produced by the prosecution is Mst. Zahida Bibi, the minor daughter of the deceased and Mst. Zatoon Bibi. The learned counsel for the appellants raised an objection that as the said witness was minor at the time of recording of her statement in the Court, it was matter of care and caution for the Court while placing reliance on her statement. According to the learned counsel the trial Court did not apply its mind to this particular aspect of the case. We think the trial Court has rightly believed the testimony of the said witness. It is true that Article 3 of Qanun- eShahadat Act (10 of 1994) is a rule of caution. The question which a Court has to decide is whether a child witness appearing in the witness-box is intelligent enough to understand as to what evidence he or she is giving and to be able to understand the questions and to give rational answers. What the law requires isl not factor of age but the intelligence of a particular child witness in the circumstances of the case. This view finds support from a judgment of Honourable Supreme Court of Azad Jammu and Kashmir in a case titled Qadeer Hussain v. The State 1995 PCr.L1 803-809.
The relevant portion of the judgment is as under:-- "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."
In the instant case, the Trial Court initially but some questions in order to ascertain the quantum of intelligence of the said witness. After posing the necessary questions she was declared as fully competent to understand the questions and their rational answers. It clearly means that the Trial Court was aware of the requirement while recording the statement of a minor witness. The said witness categorically implicated her mother Mst. Zatoon and Abdul Hamid in the murder of her father. She while making statement in the trial Court deposed that her mother Mst. Zatoon after killing her father threatened her not to disclose the fact to any body otherwise she had to meet the same fate.
' According to her statement which was made on oath in the trial Court, her father was murdered by both the appellants in her presence. She also stated in the Court that initially she could not disclose the actual incident on account of influence of her mother but when her mother was arrested, she disclosed the fact of her father's murder. As per her evidence, the deceased was inflicted fire-arm injuries before his death and stab wounds after his death by her mother. She also stated before the Court that Abdul Hamid was identified by her and he caught hold of her father while her mother was firing at him in a close contact. It was also her statement that at the first stage of investigation she nominated her uncle's as culprits at the instance of her mother. This witness is a real daughter of Mst. Zatoon Bibi and despite lengthy cross-examination nothing could be brought out to discredit her testimony. Her statement also reveals the fact of relations between both the appellants. The post-mortem report and another medico-legal report on record corroborates the version given by the said witness. The cause of death as shown by the post- mortem report is due to fire-arm injuries. The other medico-legal report given in answer to a reference made by the police, shows that some of injuries on the face of the deceased were inflicted post-mortem. The very facts is also a corroborative piece of evidence.
11. The police during investigation took two licences of .12 bore rifle No,6046. The entries of licence shows that originally this rifle was owned by Sain Muhammad (real brother of the deceased) and subsequently it was transferred to Shahzaman deceased. The report of Arms Expert shows that the crime empties recovered from the place of occurrence were fired from the same rifle. It means that the rifle of Shahzaman deceased was used during the incident. It is true that the rifle was not recovered at the pointation of the appellant Mst. Zatoon Bibi but nevertheless the fact remains that it was the weapon of offence as per Arms Expert report and the evidence of the P.W. Mst. Zahida Bibi and Mst. Zareena wife of Gulzaman. According to statement of Mst. Zahida Bibi the rifle used in the murder of her father was initially owned by her uncle Sain Muhammad and subsequently it remained in the house of the deceased and it was seen by her prior to the assasination of her father. Another witness who arrived at the place of occurrence immediately after occurrence is Mst.
Zareena wife of Gul Zaman. The statement of this witness shows that the rifle and crime empties etc. Lying near the dead body were seen by her. It is also clear from the statement of Mst. Zahida Bibi and Major Abdul Hamid that the police took the rifle in their custody the very next day after reaching the place of occurrence. The crime empties, crime lead bullets and wads of Gutta were taken into custody by police immediately after reaching the spot. These articles were sealed in parcels in the presence of witnesses and were sent to Arms Expert. The bloodstained clay, Shalwar of the deceased and shirt of accused Abdul Hamid were taken into possession by the police. These articles were sealed in parcels in the presence of witnesses and were sent to Chemical Examiner.
According to the report of Chemical Examiner the above referred articles were found to be stained with human blood. The Arms Expert Report reveals that crime empties were fired from the rifle bearing No,6046 owned by the deceased which was takeninto custody by the police and was sent to the Arms Expert for opinion. The medical report about the injuries on the left ankle of the appellant Hamid reveals that he received this injury for about 3 months ago on account of which a scar is visible on left ankle of the appellant. The Shalwar of the accused Hamid which was taken into custody by the police after his arrest shows the stitching marks on the left leg of trousers. The extra-judicial confession made by the appellants before a respectable person Major retired Abdul Hamid also corroborates the prosecution story. The testimony of Major (retired) Abdul Hamid cannot be discredited as there appears no reason to disbelieve him. This witness was fully cross- examined but nothing came out so as to shake his credibility. The fact of illicit relation between the appellants is also established by the evidence of parents of the deceased, the brothers and other inhabitants of Lumianpattian who appeared as prosecution witnesses in the Court. The presence of Abdul Hamid at Muzaffarabad is also established through the evidence of P.Ws. Pervaiz and Ali Zaman whose testimony cannot be disbelieved as there appears no rivalry or enmity whatsoever between these witnesses and the convict appellants. Moreover, there is no relationship in between the deceased and the witnesses.. The certified copies of leave certificate and injury report of Abdul Hamid placed on record also support the prosecution version as the murder took place at the mid night of 10-3-1988 when he was on leave from his Unit. Another factor which lends support to the fact that the appellant Abdul Hamid participated in the murder of Shahzaman is that he failed to satisfy the Court as to how he received a bullet injury near Thata (Sindh) while he was not on military duty.
12. Besides the evidence which proves the prosecution story there are other attending circumstances which suggest involvement of the convict appellants in the murder of Shahzaman.
As per story narrated by the appellant Mst. Zatoon Bibi to different P.Ws. Such as Muhammad Asghar Suleman, Sain Muhammad etc. The decoits caught hold of her and during scuffling her clothes were also torn by them. This version leaves behind so many questions. Why she was left alive to become a witness whereas the fact of the matter is that she did not receive even a scratch mark on her body. It was not possible for decoits to straightaway take the rifle of the deceased in their hands and murder him. Moreover, why they left boxes outside the house. If it was a robbery or dacoity in the house during night, naturally the decoits were not supposed to be empty handed.
They would have used their own weapons. Moreover, it was not possible for outsiders to locate the rifle of deceased straightaway by entering into the house. The way in which the incident took place shows the involvement of inmates of the house. Why Shahzaman deceased was left alive when he went outside at the first knock. The nomination of brothers of the deceased as culprits by Mst.
Zahida Bibi at the initial stage of the investigation seems to be an afterthought of her mother Mst.
Zatoon Bibi. The reason being that if they could be identified by a minor girl why not by an adult lady who was fully acquainted ' with her brothers-in-law (husband's brothers). Had it been so, she would have nominated them by herself keeping in view their strained relations. These all logical questions which arise in the mind of a prudent person also suggest the involvement of the appellants in the murder of the deceased.
In the light of the above observations, we find no force in the appeals which are hereby dismissed.
The sentence recorded by the lower Court is upheld.