1969 PLP 235 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 14th December 1967, in Confirmation Case No. 37 of 1966/Criminal Appeal No. J‑149 of 1966). --S.302‑Only eye‑witness: a child‑Statement disbelieved in respect of another co‑accused‑Nevertheless testimony being supported by other corroborative circumstantial evidence, conviction and sentence of principal accused held well founded. H. T. Raymond, Senior Advocate Supreme Court (Unman Ghani Rashid, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. JUDJMENT SAJJAD AHMAD, J.‑Muhammad Yakub, appellant, was convicted under section 302, P. P. C. and sentenced to death by the learned Sessions Judge, Khairpur, for the murder of Manzur Ahmad, husband of Mst. Zubeda, who was jointly tried with him for the same offence but acquitted. The conviction and sentence of death passed on the appellant have been confirmed by the High Court of West Pakistan, Karachi Bench. On a petition, submitted through jail, leave to appeal was granted to Muhammad Yakub to consider whether his conviction was safely based on the solitary ocular testimony supplied by Mst. Tasnim, a daughter of the deceased aged about 10 years, particularly as apart from the infirmities inherent in her statement as a child witness and also a daughter of the deceased, her statement regarding the complicity of her own mother in the crime had been disbelieved. The murder was committed at about 10‑00 p.m. on the 10th of January, 1965. The deceased was employed in a cotton ginning factory at Sanghar but his family consisting of his wife, Mst. Zubeda, aforesaid, and their three children, namely, Iftikhar aged about 12 years, Mst. Tasnim aged about 10 years and Mst. Shehnaz aged about 8 years, lived in the upper storey of a two‑storeyed house near Ehug jo‑Ghutto, Shahi Bazar, Khairpur. He used to come to visit his family occasionally as and when he got leave. In the ground floor of the same house one Munir Hussain Panjabi had installed a flour mill where the appellant was employed as a mistry and had taken upabode in a room there. Yakub developed illicit intimacy with Mst. Zubeda and used to visit her. In course of time, he got friendly with the deceased also and whenever the latter came to Khairpur, they got together for meals and drinks. According to the prosecution case, as unfolded in the statement of P. W., Mst. Tasnim, on the evening of the night of occurrence, the appellant went to Manzur's flat who had come from Sanghar and gave money to Iftikhar, son of the deceased, to fetch a bottle of liquor from the medical store. Mst. Zubeda prepared pakoras as snacks for them some with and others without bhang which she served respectively to her husband and Yakub. The deceased became intoxicated and there was an exchange of some hot words between him and the appellant, who was led down‑stairs and the deceased returned to his bed. Shortly thereafter the appellant came up again to the upper floor armed with a hatchet but returned down‑stairs and jingled the chain of the door of the main entrance and called Mst. Zubeda to come down and chain the door. The deceased, Mst. Zubeda and Mst.Tasnim went down and found the appellant pacing about in the courtyard. The deceased asked him to go to sleep but he refused. There was an altercation whereupon the appellant suddenly caught hold of the deceased by his arms and tied his hands with a string at his back ; Mst. Zubeda allegedly placed her hands on the mouth of the deceased. Yakub picked up his hatchet and gave blows to the deceased and struck him on the right side of his face and back of the neck. Mst. . Tasnim ran out in the street and raised cries that Yakub had killed her father. Mst. Zubeda also bewailed that her husband had been killed by Yakub. The cries attracted the neighbours, namely, P. Ws., Shakir Hussain, Dilawar Hussain, Akbar Hussain and Muhammad Hussain. Mst. Zubeda accompanied by Mst. Tasnim went to the Police Station where she lodged the First Information Report at about 11‑00 p.m. Mst. Zubeda bore injuries on her person which consisted of an incised wound 1 " x 1 " skin deep on right occipital region, another V" x 1/6" over the back of the right fore‑arm and a third 3/4" x 1/6" over the left side of the forehead. There was also a linear scratch 2 " x 1/8" over the front of the right hand. The autopsy on the deceased showed that he had received an incised wound 6" x " x bone deep over right face and muscle deep over neck and right side of face and neck. Mandible was fractured and the main vessels of neck were cut. There was anotherincised wound 3 " x 1" x bone deep over right occipital region with fracture of right occipital bone. The appellant was not found by the police in spite of search. Hewas arrested by Inspector, Anwar Hussain at Sukkar more than 2 months later on the 18th March, 1965. A bag containing his clothes, a cheque‑book issued by the United Bank Limited, Khairpur, a book‑let containing credit slips issued in his name and other sundry articles of daily use like safety‑razor and a pair of small scissors were recovered from inside his residential room in the premises where the occurrence had taken place. In the First Information Report Mst. Zubeda did not state the preliminary events which had taken place before the murder incident. She charged the appellant for giving hatchet blows to the deceased as well as to her. She stated that it was Yakub's first visit to the house venturing to conceal her immoral relation ship with Yakub which has to be accepted in view of the statement of her son and daughter. The First Information Report recorded at her instance, however, is of no value as instead of being an eye‑witness, the C. I. A. which took over the investigation, made her an accused on the basis of the statement of Mst. Tasnim which showed her complicity in the murder. She was arrested on the 23rd of January, 1965 and on the same day was produced before a Magistrate Class I of Khairpur who recorded her confessional statement Exh. "P/40". In this confession she admitted that she had a liaison with the appellant. She stated further that she and the appellant made a plan to murder the deceased. The learned trial Judge has ruled out this confession from consideration both against Zubeda and the appellant firstly because, as far as the actual killing of the deceased is concerned, it was exculpatory and was in conflict with the details of the occurrence contained in the testimony of Mst. Tasnim. Secondly, having been retracted at the trial, it lost its evidentiary value. The High Court has also totally ignored this piece of evidence for the guilt of the appellant. In confirming the appellant's conviction and sentence the learned Judges of the High . Court were conscious of the fact that prosecution case was primarily dependant on the statement of Mst. Tasnim who as a child witness could not be trusted without reservation. Children have good memory but undeveloped conscience and can be easily influenced by elders and persons who can dominate their will. The fact that she was disbelieved by the learned trial Judge about her mother's role in this crime has further weakened her evidence. It was pointed out that for charging her mother she had worked under the influence of one Mrs. Karim, the deceased's lister, with whom her mother's relations were very much strained. Mrs. Karim is a lady of influence being a lady Doctor and a Municipal Councillor and Mst. Tasnim had gone to live with her soon after the murder of her father. The High Court has observed :‑ "In view of the above patent infirmities in the evidence of Mst. Tasnim, the question arises in an acute form, how far it would be safe to rely upon her statement to sustain the conviction of Yakub for a capital offence ? It has answered this question by saying that :‑‑ "The mere fact that Mst. Tasnim has been found an untrust worthy witness against her own mother against whom certain influences were alleged to be in operation would not relieve us of the duty to sift her evidence in relation to the convict which the learned Sessions Judge, along with other confirmatory evidence in the case, found safe enough a peg to support the finding of guilty against Yakub." As far as the murder of the deceased is concerned, Mst. Tasnim had consistently maintained that the appellant was responsible for it. The trial Judge after cross questioning her found her to be an intelligent witness, capable of understanding the import of her statement in spite of her tender age. There was no need for her to implicate and substitute an innocent person for the real culprit for the murder of her father and there was no chance of a mistaken identity as she knew the appellant too well. Even assuming that she was tutored to rope in her mother by her aunt Mrs. Karim who was annoyed with the former, the tutoring could not have been extended to the appel lant, who, as stated by Mst. Tasnim was a partisan of Dada Shah, a friend and helper of Mrs. Karim. It was hinted in the cross -examination of the witnesses by the defence that one F. C. Khalid was also carrying on with Mst. Zubeda, the suggestion being that he may have done the deceased to death. If that were the case we do not see why Mst. Tasnim should have picked upon the appellant in stead of Khalid. One thing is clear, that she was not playing her mother's tune. The testimony of Mst. Tasnim also receives support from other quarters. Her brother, Iftikhar, who seems to have greatly impressed the learned trial Judge by the veracity of his statement corroborates her by stating that he had heard her naming the appellant as the murderer of their father, immediately after the occurrence. Iftikhar also gave evidence about the visits of the appellant to his mother in the absence of his father and also about his visit to their house on the evening before the occurrence and the drinking sessions between his father and the appellant. It is a merit of the prosecution case that Iftikhar is not introduced as an eye‑witness of the attack by the appellant which could easily be done. His statement was confined to what he had seen and heard without any false exaggerations. Mst. Tasnim was also supported by the evidence of the neighbours who had come to the spot on hearing the noise. They had seen the deceased in a pool of blood and had heard Mst. Tasnim and Zubeda crying and charging the appellant for the murder of the deceased. The learned counsel for the appellant contended that there was a possibility that Mst. Tasnim named the appellant getting the clue from Mst. Zubeda without having herself seen the assault. This argument is merely conjectural and ignores the statement of the neighbours who stated that they found Mst. Tasnim in the street making an outcry immediately after the occurrence and naming the appellant. There is not a word of suggestion that these witnesses are hostile to the appellant in any manner. There are two other items of circumstantial evidence which supported the prosecution case. The appellant alleged that he had left for Khairpur long before the occurrence and the charge against him was brought up at the instance of Zahur Ahmad his employer in the flour‑mill who had owed some money to him. This explanation of the charge against him is fantastic. His bag containing articles of daily use and cheque‑book recovered from a room in the crime house proves that he had not left Khairpur as alleged by him but had absconded after the occurrence, which as stated by the High Court is also a telling piece of circumstantial evidence against him. The conviction and sentence of the appellant are well founded. There is no ground to interfere. The appeal is dismissed. Appeal dismissed.