1994 P Cr (PLP)

According to the doctor, the cause of death was homicidal cut throat wound resulting in severe haemorrhage. On the dead body of Mst. Zakhira Begum, deceased (1) An incised wound 2" x 1" x 1" bone deep and fracture of upper and of humerus over the right upper arm. (2) An incised wound 1-1/2" x 1" x 2" over the right scapular region with fracture of bone. (3) An incised wound 4" x 2" x 1-1/2" over the right side of the skull 1" behind the right ear. Fracture of the skull present. Muscles and soft tissues divided. (4) An incised wound 4" x 1" x 1-1/2" parallel to and below the wound No.3, dividing all the soft tissues and reaching the cervical spine. (5) An incised wound 1" x 1/2" bone deep over the forehead to the right of medial line. According to the doctor, the cause of death was multiple, homicidal incised wounds over the vital areas, haemorrhage, shock and death. He also examined Sabir Hussain injured and found the following injury on his person:-- (1) An incised wound 3" x 1" x bone deep over the left arm and underlying fracture of the humerus. Stitching done in O.T Ghulam Nabi, Head Constable P.W.13 recovered the hatchet, the weapon of offence at the instance of the accused on 13-12-1981 in presence of Muhammad Zaman P.W3 and Muhammad Zaheer P.W.7. He prepared the parcel and sealed it and also prepared the recovery memo. Exh.P.H. After the completion of the investigation, the challan was presented before the Additional District Criminal Court, Pallandri. After the concluding of the trial, the Additional District Criminal Court found the accused guilty of the aforesaid offences and awarded him the sentence of already undergone imprisonment for the offence under section 307, A.P.C. and also awarded him the death sentence for the murders of the aforesaid three persons. Now the appeal has been filed by the convict and as stated above, the reference has been made by the Additional District Criminal Court for the confirmation of the death sentence awarded to the appellant. Mr, Farooque Hussain Kashmiri, the learned counsel for the appellant argued that as the occurrence took place at 6-30 p.m. and at that time, there was complete dark night and the accused could not be identified and the identification of the accused has not been proved. It was next contended by the learned counsel for the appellant that Sabir Hussain and Mst. Jamila P.Ws. mere minors and no preliminary inquiry was conducted by the trial Court, to satisfy itself that whether these minors were capable of deposing before the court or not, so, their evidence is not admissible and the lower Court was not competent to place reliance on these .witnesses. The learned Additional District Criminal Court has wrongly relied upon these witnesses. It was next contended by the learned counsel for the appellant that according to the version of the prosecution, all the three deceased have been murdered on different places and the dead bodies were also lying on the different places but the blood-stained clay has been recovered only from one place as it is evident from the map. While controverting the arguments of the learned counsel for the appellant, the learned Additional Advocate-General argued that when the accused went to the house of deceased Mst. Rashida Begum, at that time, there was no dark but it was the time of evening and they were sitting near the cooking place and the fire was burning, so; there was no question of darkness at the relevant time. Even otherwise, the accused was their brother-in-law who could be even identified by his voice because he was not a stranger to them. It was next contended by the Additional Advocate-General that all the three minors were capable of narrating the occurrence. They were not of such ages for which the preliminary inquiry was necessary. We have heard .the learned counsel for the parties and perused the relevant record of the case. As the point raised by the learned counsel for the appellant is concerned, that the accused could not be identified due to dark night, carried no substance for the following reasons:- When the accused went to the house of deceased at that time, there was no so much darkness that the accused could not be identified, because than was approximately the time of evening. Even otherwise, Mst. Jamila Begum and Sabir Hussain alongwith the deceased were sitting dear the cooking place where the fire was burning and it has been further clarified by the defence counsel, while conducting the cross-examination on Sabir Hussain witness. The question was asked and it was answered by Sabir Hussain that Deeni lamp was burning. He was sitting and Mst. Zakhira Begum was baking the bread. Mst. Jamila Begum also stated that they were sitting near the cooking place where the fire was burning and Deeni lamp was also litting. Apart from this, the accused was not a stranger but he was their brother-in-law, whom they can identify even in the dark night from his voice, so, the identification of the accused was not doubtful. This argument of the learned counsel for the appellant is based on no evidence and carries no substance. As the next contention raised by the learned counsel for the appellant is concerned that Mst. Jamila Begum and Sabir Hussain were child witnesses and they were of tender age and they were unable to understand the questions put to them. No separate inquiry was conducted by the Additional District Criminal Court for adjudging the capability of these witnesses, so, no reliance can be placed on these witnesses, carries no substance for the following reasons:-- Article 3 of the Law of Evidence contemplates that all the persons shall be competent to testify, unless the Court considers that they were prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of same kind. Article 3 of the Evidence Act stipulates that only those persons will not be competent to testify before the Court who are unable to understand the questions put to them by virtue of their tender age, old age or other illness. Here .in this very provision of law, it has not been laid down that all the persons of tender ages are not competent to testify before the Court, but a condition has been imposed only on those persons of the tender ages who could not understand the questions put to them. If a person of tender age is capable of understanding the questions and answering them, then, no doubt, he is a competent witness. Now the next question arises that whether a mandatory procedure has been prescribed for the trial Court for conducting the preliminary inquiry for determining the fitness of the child witness or not? Nowhere in the procedure, it is mandatory for the trial Court to conduct the preliminary inquiry before recording the statement of the child witness. Article 3 of the Law of Evidence does not prescribe any mode of preliminary inquiry or any set of questions to be put to the child witness. All that is required is that the Court must satisfy, itself that the child witness is capable of giving the rational answers to the questions being put to him. It has become a general practice and it is also safe for the Court to conduct the preliminary inquiry before recording the statement of the child witness, to ensure that the child witnesses are not unable to understand the questions put to them and are competent to answer rationally. The next question arises that where the preliminary inquiry has not been conducted by the trial Court, then, whether by this omission, the evidence of child witness has become inadmissible and no reliance can be placed on the child witness? The basic object of the preliminary inquiry is to satisfy itself that the child witness who is appearing before the Court is capable of understanding the questions and answering them and is also aware of the consequences of his statement. It is not obligatory upon the Court to ascertain such capabilities of the child witness by holding a preliminary inquiry, the Court can even form the opinion during the recording of his statement from the demeanour of child witness. The basic purpose of the preliminary inquiry is to save the time of the Court, so that during the examination of the child witness, the Court should not stop the recording of the statement on the ground, that the child is not capable .of deposing before the Court. The holding of the preliminary inquiry is a rule of prudence and is nowhere laid down as legal obligation upon the Court. The omission to hold preliminary inquiry does not render the evidence inadmissible. This view finds support from A I R 1942 Pat. 159 which reads as under:-- The object of putting questions to the witness is that the time of the Court may not be wasted if it is found, as the result of preliminary inquiry, that the child is neither intelligent nor can he give evidence which may be acceptable. But if that is the only object of the preliminary, enquiry, the accused is not at all prejudiced if the same result is obtained in the course of the examination of the witness during the trial. In a trial with the aid of jury, there is an additional advantage in allowing the Jury to form their own estimate from the demeanour of the child witness. The holding of a preliminary inquiry is merely a rule of prudence and is nowhere laid down as a legal obligation upon the Judge. It is not obligatory for the Court to subject a child witness to a preliminary examination before his evidence is recorded. The Court may satisfy itself during the recording of his statement, that he is capable of understanding the question put to him and is also competent to answer the questions rationally. It is, however, desirable that the Court should make such preliminary inquiry in order to save the time of the Court, so that the Court should not stop the recording of the evidence during the examination of child witness on the ground that he is not capable of understanding the questions and answering them rationally. But when once the evidence has been recorded without the preliminary inquiry, then, the best test of his capability to give the evidence, is his evidence itself. The Court can form the opinion about the capability of the witness from the manner in which the evidence was given by the witness. The Court can adjudge the capability of the witness from his recorded evidence. This view finds support from A I R 1942 Pat. 183 relevant page 184 which reads as under: -- The fact is that while there is no legal obligation to ask preliminary questions, it has been held to be a wise course in the case of very young children. The object of-such preliminary questioning however is not to legalise the evidence, but merely to save the time of the Court. A few questions may satisfy the Court that it would be useless to waste further time in examining and cross-examining the child. That is the real object of preliminary questioning. If the other course is followed, the evidence itself will very soon disclose whether the child is capable of giving intelligible testimony or not? Indeed, if the child is actually examined, the best test of his capacity to give evidence is the evidence itself and the manner in which it is given. If the Court satisfies itself in this way, rather than the preliminary questioning, there is nothing illegal in its procedure. In the instant case when the statements of Sabir Hussain and Mst. Jamila Begum were recorded, they were of 14 and 12 years old respectively. A lengthy cross-examination was conducted on both the witnesses by the defence counsel. Perusal of their statements shows that they were wise enough to understand the questions and answer them rationally. During their examination-in-chief and cross-examination, so many ticklish questions were asked from them. In answer to those questions, they gave coherent and intelligent answers. A perusal of their statements clearly indicates that the witnesses fully understood the questions and made the rational answers. They were competent witnesses to testify under Article 3 of the Law of Evidence and the lower Court has rightly placed the reliance upon these witnesses. Their statements cannot be discarded only for the reason that the preliminary inquiry has not been conducted by the trial Court. As the third contention raised by the learned counsel for the appellant is concerned that all the three dead bodies were lying on the different places, but the blood-stained clay has been recovered only from one place, carries no substance. According to the site plan, the blood-stained clay has been recovered from all the three points where the dead bodies were lying. Point No. 1 hag been shown in map where the dead body of Mst. Rashida Begum was found and the blood-stained clay had been recovered from this place and point No.2 has been shown in the map where the dead body of Zakhira Begurn was found. The blood-stained clay was recovered from this place. Point No.3 has been shown in the map where the dead body of Ikhlaque Hussain was lying and the blood-stained clay was also recovered from this place, so, the arguments advanced by the learned counsel for the appellant, is factually incorrect. In the instant case; Sabir Hussain is an injured witness. He received a grievous injury from the hand of the deceased. He appeared in the witness-box and stated that on 11-12-1981, at the time of evening, he alongwith his mother, Mst. Rashida Begum, sister Mst. Zakhira Begum, brother Ikhlaque Hussain and Mst. Jamila Begum were sitting in the Verandah. Meanwhile, the accused came there and said to his mother that the police of Rawalakot is chasing him, so, some place should be provided to him for the sleeping, on which the mother went inside the house and laid a bed on the cot. After laying the bed on the cot when she was returning on the back side, the accused caused a hatchet injury on her neck which hit her neck. She fell down and then, he called Mst. Zakhira Begum. The accused also caused hatchet injury on her. She ran towards another room and the accused followed her and murdered her in the other room. Then, the accused came out of the room where they were making noise. He caused the hatchet injury to his younger brother Ikhlaque Hussain and murdered him and then ran towards him. He ran away. The accused caused a hatchet injury on his loft arm. After receiving the injury, he jumped from the wall and on his hue and cry, Muhammad Din neighbour came there. He narrated the whole occurrence to him. After him, Muhammad Zaman and Muhammad Aslam also reached there. He also narrated the whole occurrence to them. The accused was armed with a rifle, hatchet and dagger. He identified the hatchet in the Court with which he was injured and others were murdered. He remained in the hospital for 2/3 months. His arm is not yet working properly. The presence of Sabir Hussain at the spot cannot be denied. He received the injury in the occurrence. Although a lengthy cross-examination has been conducted by the defence but he could not shatter the witness. Mst. Jamila Bi P.W. also appeared as witness and she also stated that on 1-12-1981, at the time of evening, she alongwith Sabir Hussain, Ikhlaque Hussain, Mst. Zakhira Begum and her mother Mst. Rashida Begum were sitting near the cooking place. Mgt. Zakhira Begum was baking the bread. Meanwhile, the accused came there and said to her mother Mst, Rashida Begum that the police of Rawalakot is chasing him, so, some place should be provided to him for sleeping.. Upon which, the mother went into the room and laid bed on the cot. Qadeer Hussain appellant also went into the room and caused a hatchet injury on the neck of her mother. She fell down and died there. Then, the accused called Mst. Zakhira Begum and also caused a hatchet injury to her. After this, the accused caused hatchet injury to Akhlaque Hussain on his neck who was in the verandah. Then, the accused followed Sabir Hussain and caused a hatchet injury on his arm. Then, she and Sabir Hussain jumped down from the wall and the accused ran, away. She and Sabir Hussain called Muhammad Din neighbourer and narrated the whole story to him. Then, he called Muhammad Aslam. and Muhammad Zaman P:Ws. On their enquiry, she and Sabir Hussain also narrated the occurrence to them. She identified the hatchet P.10 which was used by the accused in the occurrence. Mst. Jamila Bi fully supported the statement of Sabir Hussain and both the witnesses were quite natural witnesses. At the time of occurrence, their presence at their home was also quite natural. There is a complete unison among both the witnesses about the place of occurrence, time of occurrence and manner of the occurrence. There is no contradiction between these witnesses about the occurrence nor any fatal contradiction has been made by these witnesses, so, the lower Court has rightly placed reliance on both of these witnesses, as they were quite natural witnesses of the occurrence. Apart from both of the aforesaid witnesses, the other witnesses, namely, Muhammad Aslam, Muhammad Din and Muhammad Zaman who immediately arrived on the place of occurrence also saw the dead bodies lying on the place and also found the injuries on dead bodies. The hatchet has been recovered at the instance of the accused in the presence of Muhammad Zaman and Muhammad Zaheer P.Ws., Muhammad Zaman and Ghulam Nabi P.Ws. have fully corroborated the recovery memo. The hatchet recovered from the accused also contained human blood of the group B and the clay recovered from the place of occurrence and the clothes of the deceased also contained the human blood of group B . This is a strong incriminating piece of evidence against the convict Oadeer Hussain. The accused has committed gruesome murders of the aforesaid three persons and has ruined the whole family. He does not deserve any leniency. Thus, the sentence awarded to the convict appellant by the lower Court is perfectly legal and the death sentence awarded to the appellant by the lower Court is hereby confirmed. The appeal filed by the appellant is hereby dismissed. The reference also stands answered in the aforesaid terms. N.H.O./28/H.C.A. Appeal dismissed.