1968 P Cr (PLP)

Major Waheed‑ud‑Din Ahmad for A,‑G. for the State. Muhammad Ramzan alias Jana and Muhammad Sharif appel lants were convicted under section 304 Part II read with section 34, P. P. C. and sentenced to seven years' rigorous imprisonment each by the learned Sessions Judge, Lahore. Both the appellants, against their convictions and sentences, have preferred separate appeals (Criminal Appeal No. 702 of 1965 and Criminal Appeal No. 441 of 1966), through Jail. Since both the appeals arise out of the same judgment, they will be disposed of together by this order.

2. On the day of occurrence, i.e., the 18th of May 1964, at about peshiwela, Ramzan, deceased was grazing his cattle in a field within the area of village Dauke, eight miles from Police Station, Kanganpur, District Lahore. Younis (P. W. 4), aged about 10 years, and Nazir (P. W. 5), aged about 12 years, were also grazing cattle near the bank of Dauke Minor. Both the appellants too were grazing cattle, there. A cow belonging to the deceased strayed into the sugar‑cane field of one Ibrahim, maternal‑uncle of Muhammad Sharif appellant. The appellants came to the place where ‑ the deceased was present and after catching hold of him, felled him down on the bank of the canal minor. Sharif appellant sat on his shoulder, while Ramzan alias Jana appellant thrust stick Exh. P. 1 into the anus of the deceased and pushed it inside and outside many times. Younis and Nazir P. Ws. raised an alarm, which brought Nizam Din (P. W. 2), Manna (P. W. 6), and Siddique (not examined) to the spot. When they were still at some distance, the appellants ran away taking the stick with them, towards a well situated in the area of village Dauke. Both Nizam Din and Manna P. Ws. are related to the deceased. Manna P. W. is the son of one Moula Bakhsh, who is a real nephew of Nizam Din P. W. The deceased was the son of one Khan Muhammad, another nephew of Nizam Din P. W. The aforementioned Siddique is the real brother of the deceased. After that the deceased was brought to his house and later relations of the appellants came to the father of the deceased and asked him for a compromise. The father of the deceased and the P. Ws. told him that if the deceased survived, no report would be lodged, On the following day, i.e., the 19th of May 1964, the condition of the deceased deteriorated and he was taken to Civil Hospital at Kasur, where he was medically examined and subsequently at 3‑30 p.m. he breathed his last. After the death of the deceased Nizam Din P. W. went to Kasur Railway Station in order to catch a train for Khudian, where he intended to lodge a report, but he missed the train. After that he proceeded on foot to Police Station Khudian, where he reached the same evening. He went to the police station for making a report, but as the Sub‑Inspector, Assistant Sub‑Inspector and Moharrir Head Constable were absent, nobody recorded his statement. A Police Constable how ever, was on duty and he refused to record his statement. Nizam Din P. W. spent the night at Railway Station Khudian and on the following morning, i.e. the 20th of May 1964, at 8‑25 a.m. he again went to Police Station Khudian and made statement Exh. P. B. which was recorded at his dictation by A. S. I. Sher Muhammad (P. W. l0). Since the occurrence fell within the jurisdiction of Police Station Kanganpur, the state ment was sent to that Police Station, where M. H. C. Safdar Hussain (P. W. 2) drew up formal first information report Exh. P. B/1 on the same day at 2 p.m. and registered the case against the appellants. Assistant Sub‑Inspector Sher Muhammad P. W. went to Civil Hospital and after preparing inquest report Exh. P. C. of the dead body of Ramzan deceased, sent it to the mortuary for post‑mortem examination. Assistant Sub‑Inspector Muhammad Sharif (P. W. 15) reached the scene of offence on the 20th of May 1964, at about 4‑30 p.m., and remained there till 22nd of May 1964. The appellants were not found in the village. On the 22nd of May 1964, the A. S. I. learnt that the appellants were present at a well about 6,j acres away from village Bagh Ali Wala. He, accordingly, went there and arrested the appellants on that very day. Ramzan appellant, as a result of interrogation, led the A. S. I. to a sugar‑cane field belonging to one Abdul Sattar and from there produced stick Exh. P. 1, which the A. S. I. took into his possession vide memo. Exh. P. D. and made it into a sealed parcel. The above recovery was witnessed by Muhammad Din (P. W. 3). The stick was found covered with some faecal matter.

3. Doctor Muhammad Azhar Khan (P. W. 1) on the 20th of May 1964, at about 3 p.m., performed post‑mortem examination of the dead body of the deceased and found an abrasion on the inner side of his anus on the right side, 1/4' x 1/6'. On opening the abdomen he found that there was a tear 2' x 1/2" longitudinally directed at the junction of rectum with signoid colon. In his opinion the death of the deceased was clue to shock and peritonitus as a result of perforation of the intestines. He also opined that stick Exh. P. 1 if pushed in the anus and moved in and out, could have caused the aforementioned injury. When the deceased was alive the doctor did not examine him because nobody informed him as to how he was injured. There was no external mark of injury found on his body.

4. The appellants denied their guilt and declined to produce any defence.

5. The prosecution case against the appellants rests on the testimony of Nizam Din (P. W. 2), Younis (P. W.' 4), Nazir (P. W. 5) and Manna (P. W. 6), the alleged eye‑witnesses in this case, coupled with the recovery of stick Exh. P. 1 at the instance of Ramzan appellant. The learned Sessions Judge placed no reliance on the testimony of Manna and Nizam Din P. Ws. for various reasons given out in his judgment. The view taken by him regarding their evidence has riot been disputed by the learned counsel for the State. I see no reason to disagree from the learned Sessions Judge as regards his appreciation of their evidence. He, however, placed reliance on the testimony of Younis and Nazir P. Ws. and the evidence regarding the recovery of stick Exh. P. I and convicted the appellants,

6. In the first place I find that there has been an inordinate delay in the lodging of the first information report. Nizam Din P. W. did not mention before the police that the relations of the appellant had come to the father of he deceased and asked him not to report the matter to the police, and that he and the father of the deceased told them that if the deceased survived, they would not report the matter. He also did not mention before the police that after the death of the deceased he went to Railway Station Kasur, in order to catch a train for Khudian, but missed it, and that when he eventually reached there, nobody recorded his statement. He also did not mention to the police that he had spent the night of 19th May 1964, at Railway Station Khudian. He admitted that he did not disclose to the doctor that a soti had been thrust into the anus of the deceased. Thus the explanation for the delay in the lodging of the first information report was mentioned by him for the first time at the trial and not before. In view of the above I find that the delay in the lodging of the first information report has not been satisfactorily explained.

7. The evidence regarding the recovery of stick Exh. P. 1 covered with faecal matter at the instance of Ramzan appellant is not very satisfactory. Muhammad Din (P. W. 3), who witnessed the above recovery at the trial stated that the stick was covered with faecal matter, but before the committing Magistrate he did not mention this fact, but instead stated that it was covered with blood. A. S. I. Muhammad Sharif (P. W‑ 15), who actually effected the recovery, stated that the stick was covered with faecal matter and did not mention that it was also Further according to the A. S. I. he had reached the scene of offence on the 20th of May 1964, and on the 22nd of May 1964, he had arrested the appellant and effected the aforementioned recovery and that the eye‑witnesses came to him shortly after his arrival there, but according to Nazir P. W. the police had arrived at the village on the 3rd day of the occurrence, i.e. the 21st of May

104. Nazir P. W. before the Committing Magistrate stated that on that day both the appellants as well as stick Exh. P. 1 were already with the police. In view of the above this evidence regarding the recovery of stick Exh. P. 1 has become doubtful and as such no reliance can be placed on it.

8. Now I am left with the testimony of the two eye witnesses, namely, Younis and Nazir. Younis P. W. was about 10 years old when he was examined at the trial. The learned Sessions Judge only made a note that on putting question to him he was satisfied that Younis was capable of understanding the questions and giving answers. 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 this rule of prudence which has been armed by this Court as well as by other High Courts in this continent should have been followed. In this connection reliance is placed 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). Regarding Nazir P. W. who is also a child witness, 12 years old, there is no note by the learned Sessions Judge that any question was put to him. Younis P. W. admitted that he had seen the appellants for the first time at the time of the occurrence. Regarding Nazir P. W. there is a finding of the learned Sessions Judge that he too had seen the appellants for the first time when the occurrence took place. Under these circum stances it was essential that a parade for the identification of the appellants by these two P. Ws. should have been held. In any case the rule of prudence requires that the testimony of a child witness should not be relied upon unless it is corroborated by some other evidence on the record, because such children often mistake dream for reality, repeat glibly as their own knowledge of what they had heard from others and are greatly influenced by fear of punishment, by hope of reward, etc. In present case there is no such corroboration forthcoming on the record and under these circumstances I think it will not be safe to base conviction solely on the testimony of the two aforemen tioned child witnesses.

9. In the result giving benefit of doubt to both the appellants. I accept their appeals, set aside their convictions and sentences and acquit them. They should be released forthwith, if not wanted in any other case. Appeal accepted.