1. This appeal has been directed against an order and judgment of Tehsil Court of Criminal Jurisdiction, Muzaffarabad dated 16-2-2002, whereby the accused/respondents were acquitted of the charge.
2. The brief facts leading to the present appeal are; that the complainant lodged an F.I.R. On 8-6- 2000 at 8-10 p.m. At Police Station Kahori, District Muzaffarabad alleging therein that on 6th June, 2000 at 11-30 a.m. His niece Mst. Rifat Shaheen aged 12 years was proceeding towards her house Naka Soneri from village Bayan Dakhli Soneri. When she reached near Kayan Nala, Mst. Nagina Bibi, Amreen and Samina Bibi waylaid and tried to snatch away her hair clips. They also launched an attack upon her with fists and kicks. Mst. Amreen pelted a stone upon Rifat Shaheen which hit on her left eye and she has lost her eye-sight. Mst. Rifat Shaheen and a boy Waseem aged about 7/8 years were going ahead of the complainant and his companion Muhammad Saeed. On hearing the noise, the complainant saw that the accused/persons were beating Mst. Rifat Shaheen whereas Mst. Rakhima Bibi was inciting and encouraging the accused/persons. When the complainant reached at the spot, the accused/persons fled away. It was further stated that the occurrence was done on behest of Ghulam Murtaza. The complainant got admitted the injured Mst. Rifat Shaheen in C.M.H., Muzaffarabad and because of emergency of looking after the injured, the F.I.R. Could not be lodged within time. On this report, a case under sections 341, 336, 337 and 109, A.P.C. Was registered.
3. Muhammad Haroon Constable Police (P. W.6) started the investigation, who proceeded on the spot and prepared the site plan on 10-6-2000. He arrested the accused/persons on 11-6-2000 and on the same day the weapon of offence, a stone, was also taken into possession vide recovery memo.
4. Exh.P.C. In the presence of Mir Muhammad Farid (P.W.1) and Mir Muhammad Younis (P. W.4).
5. During the investigation Samina, being a minor girl, was released and an offence under section 109, A.P.C. Was also deleted.
6. The accused/persons were challaned in the trial Court and their statements were recorded under section 242, Cr.P.C. Who denied the guilt and claimed the trial. The prosecution produced Muhammad Farid (P.W.I), Mst. Rifat Shaheen (P.W.2), Muhammad Saeed (P.W.3), Muhammad Younis (P.W.4), Muhammad Haroon, Head Constable Police (P.W.6), Manzoor Ahmad Khan, S.-I.
7. Police (P.W.7) and Amjad Hussain, Junior Clerk of District Health Office instead of Dr. Hafeez Usmani (P.W.5) to prove its case.
8. On the conclusion of the trial, the Court below after hearing the arguments of the learned counsel for the parties acquitted the accused/persons of the charge vide its order and judgment dated 16th February, 2002. It is the aforesaid order and judgment, which has been assailed through the instant appeal.
9. Arguing on behalf of the appellant, Abdul Latif, Advocate, has zealously argued that the trial Court has committed an illegality while acquitting the accused/respondents of the charge. He has further contended that it has been proved on record that Mst. Amreen has sufficient maturity of understanding to judge the nature and consequences of the act done by her because she has denied the guilt in her statement recorded under section 242, Cr.P.C. In this manner, the trial Court was not justified to extend the benefit of section 83, A.P.C. In favour of Mst. Amreen, respondent. The learned counsel has also submitted that the prosecution has proved its case beyond any reasonable doubt, therefore, the impugned judgment is liable to be set aside.
10. Syed Ajaz Ali Gillani, the learned Assistant A.-G. Appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the appellant.
11. While controverting the arguments raised by the learned counsel for the appellant, Muzaffar Hussain Mughal, Advocate, the learned counsel for the accused/respondents has submitted that the F.I. R. Has been lodged after delay of two days and no sufficient explanation has been given for the delay. The learned counsel has argued that the prosecution witnesses have miserably failed to implicate the accused/ respondents in the case. The learned counsel has pointed out that it is admitted on the part of the prosecution that Mst. Amreen, accused/respondent, is younger to Mst.
12. Rifat Shaheen, the victim. The learned counsel has further contended that using the investigation benefit of section 169, Cr.P.C. Was extended in favour of Samina Bibi. Furthermore Mst. Rifat Shaheen has also not nominated Samina as an accused in her statement. The learned counsel has laid much stress on the point that all the P. Ws. Are closely related to Mst. Rifat Shaheen even Amjad Hussain, Junior clerk who appeared on behalf of Dr. Hafeez Usmani (P.W.5) is a friend of Muhammad Younis (P.W.4), the uncle of injured P.W., therefore, the aforesaid evidence cannot be relied upon. The learned counsel has further argued that Muhammad Farid (P. W.1) has not supported the factum of recovery According to him, the prosecution evidence is vague and self--- contradictory, therefore, cannot be taken into consideration. In alternative, the learned counsel for the respondents has argued that in case the prosecution evidence is taken to be trustworthy even though Mst. Amreen who is admittedly a mina and less that 12 years of age has not attained sufficient maturity of understanding to judge the nature and consequences of her act, therefore, her case falls under section 83, A.P.C. And thus she cannot be convicted. The learned counsel has maintained that the facts and peculiar circumstances of the case also support the defence version. He has supported the impugned judgment on all counts.
13. I have given my due consideration to the arguments advanced at the Bar and perused the record with utmost care.
14. Let me first deal with the prosecution evidence. Prosecution's case as disclosed in the F.I.R. Is that respondents Nagina, Amreen and Samina Waylaid Mst. Rifat Shaheen, tried to take away her clips and assaulted her with fists and kicks. Meanwhile, Mst. Amreen pelted a stone upon Mst. Rifat Shaheen, which hit on her left eye. Mst. Rakhima incited and encouraged the above mentioned accused/respondents whereas the occurrence was done on behest of Ghulam Murtaza, respondent. In support of the above stated allegation Mst. Rifat Shaheen aged about 12 years deposed before the Court that she was assaulted by Nagina and Amreen, and Amreeen also pelted a stone upon her which hit on her eye but Mst. Rakhima instead intervening, incited the accused/respondents to launch an attack upon her. She also stated that Ghulam Murtaza, respondent was present there who also provoked the other respondents to launch an attack upon her. The perusal of the deposition shows that Mst. Rifat Shaheen did not involve Mst. Samina (not before me) in the occurrence.
15. Muhammad Farid (P.W.1) has admitted in the cross-examination that Amreen, respondent, did not attack upon Mst. Rifat Shaheen with stone in his presence. He has further deposed that Ghulam Murtaza, respondent has himself told him that the occurrence was done on his behest.
16. Muhammad Farid has also admitted that he, Muhammad Saeed and Muhammad Younis are closely related and animus to Ghulam Murtaza, respondent, father of Mst. Amreen.
17. Muhammad Saeed, another eye--witness, has submitted that he alongwith Muhammad Farid was proceeding towards Basari whereas Rifat Shaheen alongwith Waseem was going ahead of them.
18. He has further deposed that he could not intervene because at the time of occurrence they were not near to the respondents and the victim. He has also admitted that at the time of occurrence nobody else was present at the spot. He has further stated that Mst. Rifat Shaheen and Waseem had told him that Mst. Rakhima was inciting the respondents at the time of occurrence.
19. Muhammad Younis (P.W.4) has testified the recovery of stone, weapon of offence, which according to the prosecution was produced by the accused from her house vide recovery memo. Exh.P.C. But Muhammad Farid another witness of the recovery memo. Did not state anything about the above stated recovery.
20. Muhammad Haroon Head Constable Police, the Investigating Officer has admitted the fact that Mst. Amreen is aged about 10/14 years but he failed to depose whether she is a major or minor.
21. Raja Manzoor Ahmad Khan, Sub---Inspector Police has deposed that he did not examine the spot, however, he agreed with the investigation proceedings.
22. Amjad Hussain, Junior Clerk, District Health Office, was produced to recognize the signature of Dr. Hafeez Usmani (P.W.5), who deposed that he has been dealing record in years 1997-98 and nowadays record is not in his possession and he is not a concerned clerk. However, he has admitted that Muhammad Younis (P.W.4) is also serving in District. Health Office.
23. A close scrutiny of the above stated prosecution evidence shows that the prosecution has miserably failed to bring guilt home to the accused/respondents. According to the prosecution story, Muhammad Farid and Muhammad Seed witnessed the occurrence but Muhammad Farid has categorically stated that occurrence took place before his arrival on the scene and Mst.
24. Amreen did not launch an attack with stone in his presence. It is also admitted on the part of the prosecution that Muhammad Farid and Muhammad Saeed eye-witnesses were proceeding together towards the place of occurrence. Muhammad Saeed has also not supported the prosecution version, who has deposed that he and Muhammad Farid could, not intervene because they were away from the spot. It is further admitted on the part of the prosecution that at the time of occurrence nobody else was present at the spot. It is also on the record that Rifat Shaheen, injured (P.W.) is about 12 years old whereas Mst. Amreen, respondent, is younger than her. The stone, weapon of offence, was not recovered from the place of occurrence, which was allegedly recovered from a temporary hilly house () consisting of one room only. No prudent mind can accept such type of recovery and it is not possible for an eight years old girl that utter causing an injury to someone with a stone she will pick it up and carry to her home. Furthermore, Muhammad Farid (P.W.1) has, not supported the recovery proceedings. Documents Exhs.P.A. And P.C. Have also not been signed by the Presiding Officer. The animosity due to dispute of land and path between the parties is also admitted on the Dart of the prosecution. In such state of affairs, the prosecution evidence being vague, artificial, inconsistent and self-contradictory is not worthy of any credence, therefore, Court below has rightly discarded the same.
25. Now, I advert to another aspect of the case, which deals with the evidence of child witness. Mst.
26. Rifat Shaheen, the victim, has only supported the prosecution story to some extent. She has deposed her age 12 years at the time of recording of her statement before the trial Court, therefore, the question arises as to whether Mst. Rifat Shaheen is a competent witness and is capable to understand the questions put to her and is competent to give rational answers of the same. There is no precise age which determines the question of competency, and it depends upon the capacity and intelligence of the child, his/her appreciating of the difference between false and true as well as his/her duty to tell latter. Therefore, no hard and fast rule can be made to ascertain whether a child is competent witness or not but it depends on the facts and circumstances of each case. The Courts have always accepted such evidence with great care and caution because a child of tender age is a dangerous witness who can easily repeat glibly a story put into his mind and do not possess the discretion to distinguish between what he/she has seen and what they have heard. As a matter of prudence, therefore, Courts were generally chary of putting absolute reliance on the evidence of child witness and look for corroboration of the same from other circumstances in the case. My this view stands fortified by a case reported as Manni v. Emperor (AIR 1930 Oudh 406), wherein the following principle was enunciated:-- "There is no more dangerous witness than a young child. Any mistakes or discrepancies .In their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well-taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make-believe so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate."
27. The same view was affirmed in a case reported as Abbas Ali v. Emperor (AIR 1933 Lahore 667) wherein the learned Judges have quoted a passage from "The Outlines of Criminal Law," p.386 by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University:--- "Children are a most untrustworthy class of witnesses, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward, and by desire of notoriety."
28. The same view was reaffirmed in cases titled as Jalwanti Lodhin v. The State (AIR 1953 Patna 246) and Ouseph Varkey v. State of Kerala (AIR 1957 Kerala 153).
29. The observations in the afore-stated judgments hold the view that the evidence of a child witness before being acted upon should however, be subjected to a close and careful scrutiny and should not be relied upon until and unless it is corroborated by some strong circumstances in the case.
30. The next question which requires consideration is, whether the concession under section 83, A.P.C.
31. Was extended to the accused/respondents in a legal fashion or not. It will be pertinent to note here that it is admitted between the parties that the accused/respondent, Mst. Amreen, at the time of alleged incident was younger than the victim. It is further admitted on the part of the prosecution that the occurrence took place on account of snatching away the hair clips of the victim. The very act of throwing a stone by a child (Mst. Amreen) upon another child coupled with the facts and surrounding circumstances of the case by itself sufficient to hold that the accused/respondent (Mst. Amreen) had not attained sufficient maturity of understanding to judge the nature and consequences of her act at the time of occurrence which is necessary to be proved by the prosecution for conviction of an offence attributed to a child above 7 and under 12 years of age.
32. Therefore, the instant case would fall under section 83, A.P.C.
33. The prosecution evidence has already been discussed in detail and it has also been held that prosecution has miserably failed to prove the case against the accused/respondents. On this account, the Court below has extended the benefit of doubt to the accused/respondents in a lawful manner and no glaring defect, material irregularity or legal infirmity could be pointed out in the findings of the Court below, thus, the judgment order of the trial Court dated 16th February, 2002 is maintained.
34. For the reasons listed above, I see no force in this appeal which is hereby dismissed.