P L D 1956 (W (PLP)

SHABIR AHMAD, J.‑

Khalil, son of Sher Zaman, an Awan, of village Bhagwal Dargahi in the district of Rawalpindi, has appealed against a sentence of death imposed on him for an offence of murder and a sentence of five years' rigorous imprisonment imposed for an offence of attempted rape, the latter of which sentence was directed by Mr. Bashir‑ud‑Din Ahmad, who passed the above sentences to come into force only in the event of the death sentence not being confirmed by this Court. In addition there is a reference made by the learned trial judge under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death. The appeal and the reference will be disposed of by this order. The occurrence which resulted in the death of Mst. Zebun Nisa, a thirteen or fourteen years old girl, occurred in the afternoon on the 6th of September 1955 in a field in village Bhagwal Dargahi where the victim and the appellant resided and a report with regard thereto was made the same day by Sher Khan, an uncle of the deceased, to Allah Nawaz Khan, Sub‑Inspector of Police. The report was made to the Sub‑Inspector at 4 p.m. in village Kalim Awan and on being sent to Police Station Mandra, was registered as the first information report. The report said inter alia, that the appellant had tried to rape Mst. Zebun Nisa and had there after strangled her to death and that the informant had, on receiving information gone to the scene of the occurrence and there found the dead body lying in a field. In the report .it was said that the witnesses to the occurrence were Mst. Fariqun Nisa, a sister of the victim, and a boy named Muhammad Anwar. At the trial, the prosecution produced Mst. Fariqun Nisa, a girl aged nine years (P. W. 5) Muhammad Anwar, a boy aged ten years (P. W, 6) and Karam Dad (P. W. 7) as eye‑witnesses of the occurrence. Mst. Fariqun Nisa stated that on the day of the occurrence she returned home from her school where she studies in the fourth class at about noon and had her food. She asked her mother where her sister Mst. Zebun Nisa was and was told that she had gone to buy some pears. She herself went to the field of Faiz Alam to cut grass. She was cutting grass when she heard a scream and running in the direction from which the scream came saw that Khalil appellant had felled her sister in the bajra field of Amir Alam and had one of his hands on the mouth of the prostrate girl. She added that she ran from the place to her own house and informed her grandmother about what she had seen. The old lady who was too weak to move about, directed her to go and inform her father and uncle. She ran to the place where her father and her uncle were ploughing and mentioned to them what she had seen. They accompanied her to the spot where they reached a little ahead of her. Muhammad Anwar (P. W. 6) who appeared to be distantly related to the victim, said that he was grazing his sheep in a field of the appellant when the animals ran into a near‑by field. He ran after his sheep to prevent them from damaging the crop and just then beard the scream of someone from a near‑by field. He went and stood on the boundary of that field and saw that the appellant had felled Mst. Zebun Nisa on the ground and that the shalwar of Mst. Zebun Nisa had been removed to her feet and the shalwar of the appellant was also removed. On seeing him the appellant tied the shalwar of the girl and his own and wound the dopatta of the girl round her neck just as the appellant was getting up, Karam Dad came there who abused the appellant for his misdeed. The appellant ran away and Karam Dad going to the girl touched her body and declared that she was dead. Karam Dad (F. W. 7) who is a resident of the same village, corroborated the statement of Muhammad Anwar (P. W. 6) in all material details All the three witnesses were subjected to a pretty lengthy and searching cross‑examination which resulted in nothing useful to the appellant being elicited from them. When questioned by the committing Magistrate to explain the evidence against him, the appellant said that .he had been falsely implicated, but gave no reason why that should have been done. In the trial Court he said that he had been implicated falsely by Sher Khan, the uncle of the deceased, because he had declined to marry the sister of his wife, to whom he was betrothed, Mst. Fatima from whom the deceased had bought some pears at about noon on the day of the occurrence, was produced as the solitary witness in defence. This witness stated that the deceased had bought some pears from her that day and that Ayyub and Zahur, sons of Hashmat, were called by the police during the course of investigation. It is obvious that the defence evidence can be of no avail to the appellant and it is perhaps for that reason that the learned counsel for the appellant did not even refer to it during his arguments. The learned judge of the trial Court placed no reliance on the statement of Mst. Fatima (D. W. 1) and I do not see what else he could have done. The main point to consider is if the prosecution evidence had established beyond all reasonable doubt that the heinous crime which resulted in the death of Mst. Zebun Nisa was committed by the appellant. As mentioned above, the reliance of the prosecution in this regard is on the statements of three witnesses, namely, Mst. Fariqun Nisa (P. W. 5), Muhammad Anwar (P. W. 6) and Karam Dad (P. W. 7), with regard to Karam Dad (P. W. 7) the learned counsel for the appellant urged that as his name did not figure in the first information report as an eye‑witness in spite of the fact that Sher Khan (P. W. 4) who made the report had been to the scene of the occurrence and learnt details before he left for the police station, the witness could not be accepted as a witness of truth. I have carefully considered the statement of the witness and am inclined to con sider it truthful, but it appears to me that in view of A the fact that his name found no place in the first information report the safer course would be to keep his statement out of consideration. It was pointed out with regard to the two child witnesses that the learned judge of the trial Court had not recorded the question, if any, which he had asked to satisfy himself if they were intelligent enough to understand what they were deposing about. The relevant provision of law is contained in section 118 of the Evidence Act which is in the following terms:‑ "All persons shall be competent to testify unless the Court considers that they are prevented from understand ing the questions put to them or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. "Explanation.‑A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them". After recording the name, parentage and address of, each of the child witnesses, who were both examined on solemn affirmation, the learned judge of the trial Court made a note to the effect that the witness appeared to him to be fairly intelligent and capable of making a rational statement. The learned counsel for the appellant pointed to no provision of law (and I know of none) which required that before record ing the statement of child witness, the judge must record the questions asked from the witness to test if he was, intelligent enough to understand what he was deposing about, but reliance was placed on some remarks, made by/ Agha Haider, J. in Tulsi v. Emperor (A I R 1928 Lah, 903). The learned judge who was dealing with the statement of a child, aged about five years said in the judgment that it would be desirable when examining a child of tender years as a witness if the Court before examining it tests its intellectual capacity by putting a few simple and ordinary questions to it and to record a brief proceedings so that tire Appellate Court should feel satisfied as to the capacity of the child . . . . . to give evidence. I am in respectful agreement with the learned judge that such a course is desirable, but I am not prepared to accept the argument of the learned counsel for the appellant that if such a course is not followed the evidence of the child witness becomes defective. Moreover, as there is no statutory provision dealing with the subject, it is hardly open to a judge to fix the age till which the questioning of the child witness to test its intellectual capacity should be resorted to. If the judge who examined the child witness records a note that he is satisfied that the witness is intelligent and capable of understanding the questions that are likely to be asked of it, there is nothing in law to prevent the Appellate Court from accepting that note is sufficient proof of the capacity of the child to be a witness under section 118 of the Evidence Act. Such a note having been made during the course of the trial should be presumed to represent the truth unless the presumption with regard to its correctness is somehow displaced. It was next urged by the learned counsel for the appellant that as Mst. Fariqun Nisa (P. W. 5) and Muhammad Anwar (P. W. 6) were children they were unreliable and the con viction cannot be based on their depositions. In support of this contention the learned counsel for the appellant placed reliance on Abbas Ali Shah v. Emperor (A I R 1933 Lah. 667). In the course of his judgment in that case, with which Sir Shadi Lal, the then Chief justice, agreed, Agha Haider, J., who delivered the judg ment, made the following observations:‑ "It may be that Mst. Fazlan was after all speaking .the truth when she stated that Abbas Ali Shah was one of the four assailants of the deceased woman, but her evidence, as it stands, is not calculated to inspire confidence in my mind, and I do not consider that it would be safe to uphold the conviction of the appellant upon her evidence. In this connection I would quote a passage from The Outline of Criminal Law', page 386, by Dr. Kenny Downing, Professor of the Laws of England, Cambridge University:‑ "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 own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of E reward and by desire of notoriety." If the learned judges intended to lay down as a principle of law that a child witness was in no case to be belied, I would, with utmost respect, declined to follow their view because the course they suggested‑if they suggested it was contrary to the law and the principles applicable. What weight the statement of a witness is entitled to is in each case to be determined by the Tribunal called upon to consider it and as far as I know, except in the case of an accomplice, the law does not lay down that any witness should be considered to be unreliable unless corroborated by other evidence on the record. It appears that the law in England is different as an oath cannot be administered to children and their statements cannot be accepted without corrobora tion. My knowledge of English, Law on the subject is not derived from the relevant statute but from the observations made by Lord Goddard in Alalah v. The King (AIR 1946 PC3) and if the law of England be as stated above‑which in view of the authority which mentions that it is so can hardly be doubted‑it is obvious that legal considerations which apply in England will be confined to that country alone and beg inapplicable here unless there were similar provision applicable to this country, which is not the case. But the general observations made by Professor Kenny Downing, will still remain and the question to consider is to what weight those observations are entitled. I have already indicated that no judge can lay down a rule with regard to the weight to be attached to the statement of a particular type of witness, and what I have said above about the powers of a Judge applies equally to the opinion of anyone else. Moreover, it is not mentioned in the passage quoted in their judgment by Sir Shadi Lal C, J. and Agha Haider, J. what the eminent Professor meant by the words "child of tender age." The judgment in Abbas Ali Shah v. Emperor does not show what the age of the child, who appeared as a witness in that case, was, but assuming that she was about ten years of age, as the two witnesses in the present case, I am of the view that for the reasons that I have already recorded the opinion of the learned judges in that case cannot be applied to the evidence of the witnesses in the present case whose state ments have to be judged in the light of the circumstances of this case and not in those of any other. The learned counsel for the appellant relied also on some observations made in Alalah v. The King with regard to child witnesses, but as a sentence of death based mainly on the evidence of such a witness, was not disturbed by their Lordships of the Privy Council, the case can be of but little, if any, assistance to the appellant. I now proceed to consider whether the statement of Mst. Fariqun Nisa (P. W. 5) and Muhammad Anwar (P. W. 6) are reliable enough to justify the conviction of the appellant thereon. There is no reason to doubt, that it was on receiving information given by Mst. Fariqun Nisa that her uncle Sher Khan (P. W. 4) reached the scene of the occurrence where he came across Muhammad Anwar (P. W. 6) and thereafter left for the police station. In these circumstances, can there be any reasonable ground for believ ing that the child witnesses had not seen the occurrence and had been prevailed upon to pose as eyewitnesses? In view of the fact that there is absolutely no enmity between the appellant and anyone connected with the deceased, one fails to see why anyone should have asked the child witnesses to falsely name the appellant as a culprit and I am of the view, therefore, that the statements of the two child witnesses cannot be brushed aside on any valid ground. In this case there are two child witnesses who corroborate each other with regard to all material details of the occurrence, but even if there were only one its state ment could by itself have been accepted as sufficient proof of the facts it deposed about because it is laid down in section 134 of the Evidence Act that no particular number of witnesses shall, in any case, be required for the proof of any fact. I have, therefore, no hesitation in holding that the facts mentioned in the statements of the two child witnesses were proved against the appellant beyond all reason able doubt. I now come to the question what offence or offences the appellant had been proved to have committed. It is established that the appellant who is a young man of twenty‑six years of age, had felled down a girl, aged fourteen years, who screamed to save herself, in a lonely place which circumstance would by itself, have been sufficient to prove that his object was to satisfy his sexual lust. There is, however, in addition, the statement of Muhammad Anwar (P. W. 6) that the appellant had removed the shalwar of the girl and his own. The conviction of the appellant under section 376/511 P. P. C., was, therefore, entirely justified and is maintained as is the sentences imposed for that offence. Coming now to the charge of murder, one finds that the death of the girl occurred because of strangulation resulting from her own dopatta being wound round her neck. That the appellant, who is proved to have wound the dopatta round her neck was responsible for causing the death of the victim can hardly be doubted, but it appears to me that on the material on the record it is difficult to hold that he intended to cause death because his intention may only have been to smother the screams of the girl when he was satisfying his lust without her consent. But even if his intention was merely to smother the cries of the girl, the case will not be taken out of the definition of murder because the act was so imminently dangerous that the appellant must be presumed to have known that he will, in all probability, cause death and the fourth clause of section 300 P. P. C. will be applicable. The conviction of the appellant under section 302 P. P. C. is, therefore, also maintained. This leaves only the question of sentence for the offence of murder to be dealt with. As I have held that it is doubtful if the appellant intended to cause the death of the victim, it appears to me that the exaction of the extreme penalty from the appellant may well be avoided. I would, therefore while upholding the conviction of the appellant under section 302 P. P. C. decline to confirm the sentence of death and replace it by one of transportation for life. The two sentences imposed upon the appellant shall run concurrently. ABDUL AZIZ KHAN, J.‑

I agree with my learned brother that the convictions of the appellant under sections 376/511 and 302 of the P. P. C. must be upheld and for the reasons stated by him, the sentence of death under section 302 of the P. P. C. be reduced to one of transportation for life. I would, however, add an observation of mine with regard to the necessity for the recording of questions put to and answers given by child witnesses in order to test their capacity to testify. It is true that there is no definite legal provision requiring a Court to record such questions and answers. But if this is not done the Appellate Court will be left completely in the dark as to the capacity of a child witness to testify and will have to depend entirely on the judgment of the trial Court in the matter however erroneous that judgment may be. On the other hand, if such questions and answers are briefly recorded, the Appellate Court will have ample opportunity to judge for itself whether the trial Court was in fact justified in accepting or rejecting the evidence of a child witness. Hence the rule of prudence enunciated by Agha Haider J., which has been affirmed in a series of judgments, should be followed by Courts examining children as witnesses. I have based this opinion on Krishna Kahar v Emperor (A I R 1940 Cal. 182), Ah Phut and others v. The King (A I R 1939 Rang. 402), Mst. Ram Sakhia v. Emperor (A I R 1934 Pat. 651) and Ghulam Hussain v. Emperor (A I R 1930 Lah. 337). K. A. B. Appeal rejected. Sentence reduced.