1. ' The above-titled reference and the appeal arise out of a single judgment therefore, the following order shall decide both of them.
2. ' A Crime No,8 of 1992 for offences under sections 5/15, IPL, 307/34, A.P.C., 17, EHA (property) and 10,.
3. ZHA was registered at Police Station Dheer-Kote on 1-2-1992 at about 10, a.m. The complainant Muhammad Arif son of Abdullah Khan resident of village Dhak lodged a report on the aforesaid Police Station wherein it was stated that his cousin Muhammad Hanif son of Muhammad Akbar was serving abroad then. His wife Aashia Begum, three minors daughters namely Naheeda Begum aged 12/13 years, Faheem Begum aged 8/9, years, Naheem Begum aged 5/6 years and a minor son were living in his house. On the aforesaid date, early in the morning, the complainant received an information through Sufi Abdul Aziz son of Pahlwan resident of the same village that the wife and daughters of Muhammad Hanif had been slaughtered by some one. On this information, the complainant alongwith his family rushed to the house of Muhammad Hanif. He found three minors daughters of Muhammad Hanif Khan lying on Charpayees in injured position in the ground floor of his house. He searched the house and found the dead body of Mst. Aashia Begum (wife of Muhammad Hanif Khan) from the middle-room of the upper-storey of the house in a nude- position. When he checked the house in details, he found different house-holdings (articles) in a scattered position. According to him, some person/persons, after committing robbery, -murdered the wife of Muhammad Hanif Khan and injured his daughters seriously. The culprits thought the minors to be dead after sustaining injuries and left them. They took away different articles including ornaments, clothes and cash etc. The complainant could not furnish the details of stolen property as it might be known to the injured girls or Muhammad Hanif Khan himself. According to the report, when the complainant visited the house of Muhammad Hanif Khan, he was accompanied by Muhammad Altaf, Muhammad Hanif Khan sons of Gul Shair Khan and different other inhabitants of the vicinity.
4. ' The police after registration of the case made the necessary investigation. During investigation, different blood-stained articles from the house of Muhammad Khan were taken into custody by the police in presence of witnesses. The injured daughters of Muhammad Hanif Khan were shifted to hospital at Rawalpindi whereas post-mortem report of deceased Mst. Aashia Begum was also obtained. The statements of injured girls were recorded in the hospital after obtaining a certificate from the concerned doctor about their capability of making statements. Through their statements, it became known that the convict-appellants (appellants herein) were the culprits. Therefore, they were taken into custody by the police. Different stolen articles, and the blood-stained clothes the culprits were wearing then, were also taken into possession at their pointation from the house of P.W. Muhammad Siddique Mirrasi alias Toto. A register showing their stay in a hotel after commission of offence was also taken into custody by the police. The blood-stained clothes recovered from the house of prosecution witness Muhammad Siddiqui and different article stained with blood and semen recovered from the house of Muhammad Hanif Khan were sent to Chemical Examiner. The appellants allegedly confessed their guilt through statements under section 164, Cr.P.C. The medico-legal reports of injured daughters of Muhammad Hanif Khan were also collected. The autopsy report of the deceased was also placed on record. Finally the police found the appellants guilty of the offence of murder, attempt to murder, robbery and rape. They were sent to face the trial before District Court of Criminal Jurisdiction Bagh from where on account of establishment of Additional District Court of Criminal Jursidiction at Kohata Camp Dheer-Kote, the case against the appellants stood transferred to the said Court and the impugned judgment was recorded by the Additional District Court of Criminal Jurisdiction Kohata Camp Dheer-Kote on 28- 7-2001. The trial Court sentenced both the appellants to death for commission of murder. They were also imprisoned for 30 years' R.I. Alongwith 60 stripes and fine Rupees ten thousand each for commission of offence of attempt to murder, robbery and Zina. In case of default in payment of fine, they are ordered to undergo a further imprisonment of one year simple imprisonment. The trial Court extended benefit under section 382-B of Cr.P.C. To the appellants.
5. ' The learned counsel for the appellants contended that in absence of direct evidence and doubtful circumstantial evidence, it was not safe to convict the appellants. According to him, the recoveries were not made in accordance with law. The prosecution witnesses, who allegedly testified the fact of recoveries, were interested and inter-related therefore, their evidence could not be relied upon.
6. The trial Court recorded the statements of injured witnesses jointly whereas the same were to be recorded separately. This act of the trial Court was a clear violation of law as settled by the apex Court of the State, the learned counsel maintained. It was further submitted that while recording the statements of injured witnesses, the trial Court failed to determine the status of the witnesses.
7. According to him they were minors then as such the trial Court was under legal obligation to make preliminary inquiry about their capability before recording their statements failing which their evidence could not be acted upon under law. The statements under section 164, Cr.P.C. Were also recorded in violation of the relevant law and moreover, the photocopies of the statements by the appellants were placed on record. Therefore, according to him, this piece of evidence was to be excluded. Briefly, the entire evidence, according to the learned defence counsel, brought on record was suggestive to acquit the appellants by giving them the benefit of doubt.
8. ' The learned Assistant Advocate-General controverted the arguments on the defence side and contended that the case of prosecution was satisfactorily proved in the light of evidence rather it stood admitted by the appellants themselves. Therefore, in absence of anything suggesting any doubt in the prosecution story, the impugned judgment and order merited no interference by this Court, the learned counsel submitted.
9. ' The material evidence in this case consists of the statements of the injured witnesses, recoveries of blood-stained clothes of the appellants they were then wearing, the recoveries of different bloodstained articles including the semen-stained clothes of the deceased, the recovery of stolen property at the pointation of appellants, the register showing stay of the appellants in a hotel after commission of offence, the statement of 3 prosecution witnesses Muhammad Siddique Mirrasi alias Toto and confessional statements of appellants themselves. Before arriving at some conclusion, it is felt proper to meet the objections raised by the defence.
10. ' The learned counsel for the appellants laid much emphasis on the point that as the statements of injured witnesses were recorded simultaneously therefore, such statements, being violative of settled law, were not to be relied upon. Therefore, according to the learned counsel, the impugned judgment and order was to be re-called and the case was to be remanded to the trial Court for recording the evidence of injured witnesses in accordance with law. This objection was considered in the light of the dictum of the Supreme Court of Azad Jammu and Kashmir. It is correct that the statements of these witnesses were to be recorded separately, but at the same time this act of the trial Court does not suggest to remand the case for retrial. At the most it cannot be accepted as the statements of three females and there is no legal bar to accept the same as the statement of a single witness Mst. Naheeda Begum. The statement of P.W. Naheeda Begum was examined carefully. She is a natural witness and her statement inspire confidence. The appellants as confessed by them in their confessional statements, are relative of the complainant party.They were already known to Mst. Naheeds Begum. They disclosed their name on inquiry by her deceased mother at the time when they knocked at the door. They were served with meals and thereafter the deceased took them on the upper-storey of the house as they wanted to stay there at night. The minors had been waiting in the ground-floor and when the deceased did not come back after lapse of considerable time, they went up and saw their mother in nude position lying on the ground. They also saw the appellants while they were engaged in putting her to death by strangulation. The minor girls out of fear and threat came down but they were chased by the appellants and were seriously injured on the fateful night. This witness does not nurse any grudge against the appellants therefore, her statement inspires full confidence.
11. ' The second objection by the defence is about the admissibility of confessional statements. The statements are placed on record in shape of certified copies therefore, under law, these are admissible in evidence. Their statements do not suffer with any legal flaw or defect and are found to have been recorded in accordance with law. Therefore, the objection to this extent stands brushed aside.
12. ' The objection raised by the learned defence counsel about the competency of the evidence of Mst. Naheeda Begum was also considered. No doubt her age at the time of recording her Court statement was disclosed as 13 years but her statement shows that she is fully competent to understand questions and their rational answers, The evidence of a tender age person or a minor, in absence of preliminary inquiry, if found otherwise reliable and competent, it cannot be rendered inadmissible merely on the basis his/her age. The Court is competent to adjudge the capability of the witness from the manner in which he has given the evidence as well from the recorded evidence. Therefore, the statement of Mst. Naheeda Begum is accepted to be a Statement of a competent witness.
13. ' No other material objection was raised by the defence therefore, let us look into the evidence brought on record by the prosecution to establish its claim. As stated earlier, the direct evidence in shape of the statement Mst. Naheeda Begum injured daughter of the deceased being a natural witness inspires full confidence. She was cross-examined at length but the defence failed to show anything suggesting to discredit her statement. Her stand is fully supported by the circumstantial evidence like recoveries, autopsy report of the deceased, the medico-legal reports of the injured persons and the Chemical Examiner's report. The recoveries in the case are of worth-mentioning.
14. The statement P.W. Muhammad Siddique Mirrasi alias Toto and confessional statements of the appellants are highly important corroborating the prosecution case.
15. ' Before parting with the case, it may be observed that though no allegation about commission of Zina is there in the First Information Report but the confessional statement of the appellants, the statement of Mst. Naheeda. Begum, the recoveries of semen-stained clothes of the deceased when seen in the light of autopsy report of the deceased, the guilt of Zina is satisfactorily established.
16. ' The result is that the direct evidence i,e, statement of Mst. Naheeda Begum, the recoveries of different articles, the postmottem report and the medico-legal reports showing the injuries on the persons of minor girls, the confessional statements of the appellants alongwith the statement of P.W. Muhammad Siddique Mirrasi alias Toto, fully corroborate the prosecution case and the impugned order, when seen in the light of above-stated position,. Warrants no interference by this Court as the prosecution case has been proved above suspicion. The sentence of death of penalty recorded by the Court below stands confirmed and the appeal by the appellant is dismissed.
17. ' Reference and appeal stand answered accordingly. /Order accordingly.