1995 P Cr (PLP)

6. The appellants when examined under section 342, Cr.P.C. denied the allegations and stated that they had been involved falsely on account of suspicion. Mst. Parveen, appellant, wife of the deceased stated: ‑ ?About three months prior to the occurrence, deceased Khadim Hussain, myself and our children shifted to Mubarikpur, the house of my parents. Khadim Hussain wanted to sell his house, hence he came to Gojra alone and was murdered in the house. The murderers could not be traced. When bad smell was felt outside the house, then the dead body was discovered. The story of the murdering and burying the deceased by the accused was concocted. False evidence was produced and we were falsely implicated on mere suspicion.? The appellants did not lead any evidence in their defence.

7. The learned trial Court believing the prosecution evidence convicted the appellants and sentenced them as mentioned above.????????

8. Learned counsel for the appellants has contended that this is a blind murder. The child on whose evidence the conviction is based was not mentioned in the F.I.R. as an eye‑witness but was later on smuggled by the prosecution with a view to procure the conviction of the appellants. It is further submitted that the solitary statement of this child who was three years old at the time of occurrence cannot be made the basis of conviction, particularly when the so‑called extra‑judicial confession of the appellants before the complainant and other P.Ws. was disbelieved by the learned trial Court. On a question whether the evidence of a child who was three years old at the time of occurrence is admissible in evidence, relying on Article 3 of the 0anun‑e‑Shahadat, he stated that no doubt it was admissible but, he argued that children were most untrustworthy class of witnesses and, therefore, they should not be believed, unless there was very strong corroboration evidence. State supported the judgment.

9. We have heard the arguments of both the sides and have also gone through the record with the assistance of both the learned counsel.

10. The only eye7witness in this case is Arshad Javed P.W.7, son of the deceased who at the time of occurrence was about 3‑1/2 years old. The arguments of the learned defence counsel that the solitary statement of the child witness cannot be made the basis for. conviction is not without force. It would be advantageous to reproduce Article 3 of the Oanun‑e‑Shahadat, 1984 which is as under: ‑? ?All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question 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 the same kind.?

11. A cursory look on the abovementioned provisions of law would show that a child is a competent witness before a Court of law, but certain guidelines have been provided by the great expounders of law and the judgments of the Superior Courts of Pakistan as well as from across the border. In Umar Jehan v. The State 1979 SCMR 186 it was observed that danger in basing a conviction on the evidence of a child was obvious. A child can easily be tutored. The Honourable Judges of the Supreme Court approved the case titled Sultan v. State PLD 1965 Kar. 615 in which it was held that it would be most unsafe to base a conviction upon the sole testimony of a child. Similar view was expressed in Abdul Hamid v. State PLD 1980 Pesh.

25. It was observed that the child witnesses are disinterested witnesses yet because of their tender age they were positively under the influence of Investigating Agency. A Division Bench of this Court have beautifully described the status of a child witness and the real tests to believe his statement. In the case of Haq Nawaz v. State 1987 PCr.LJ 1944, it was held: ‑? ?Children are dangerous witnesses. They have good memories but they cannot have conscience, for lack of understanding and sense of piety or impiety. They can be easily taught stories and sometimes after hearing stories they can have imaginary illusions that they have seen those things happening. Fear of punishment, hope of rewards, desire to be known or grown up ones, also can influence their mind. The real tests to believe their statements are consistency in the story and the fact as to how far it fits in with the rest of evidence and the circumstances of the case.? In addition to this we may observe that it is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. Dr. Kenny, Professor of the, Laws of England, Cambridge University in his book "The Outlines of Criminal Law", writes as follows:‑‑ "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 reward and by desire of notoriety." It was observed in Abbas Ali Shah v. Emperor AIR 1933 Lah. 667 that while considering the evidence of child witness, the Court should not lose sight of the abovementioned observations of Dr. Kenny. In Darpan Potdarin v. Emperor AIR 1938 Pat. 153, it was observed as follows: ‑‑ "Lastly, there is the evidence of boy Jiblal, and if the other points which I have mentioned are rejected, it would be unsafe to convict on the evidence of the child." It was further observed:‑‑ "The evidence of children unless immediately available and unless received before any possibility of couching is notoriously dangerous."

12. The position that emerges from the abovementioned references is that a child is a competent witness in law but rule of prudence requires very strong corroborative evidence in support of the statement of a child witness, which is lacking in the present case. The name of Arshad Javed P.W.7 was not mentioned in the F.I.R. His statement was recorded by the police after 10 days of the occurrence and during all this period he remained with the complainant who happened to be his paternal uncle. He was under the grip of the complainant even when he appeared in the Court. When asked to identify his mother, appellant Parveen he stated that she was his mother but now she had no relations of any sort whatsoever with him. This showed the deep‑rooted hatred that he had for his mother. This was obviously because of the fact that throughout this period, he was living in an atmosphere of hostility against the mother and maternal‑uncle, since he was all the lime under the influence of his paternal‑uncle. The possibility of being tutored by the uncle cannot be rule out. Even otherwise we find that he did not mention the time of incident in his statement. He just stated that he was keeping at the roof of his house and when woke up, came down the stairs he saw the appellants murdering his father. This statement is belied by the site plan where the staircase is not shown. We IC cannot believe this witness particularly when there is no evidence, worth the same, to corroborate his statement.

13. The evidence of extra‑judicial confession was rightly disbelieved by the trial Court because there was no occasion for the appellants to confess their guilt particularly when nobody had seen the occurrence nor anybody had any suspicion on the appellants. Even otherwise we find that evidence of none of these witnesses of extra‑judicial confession could be ‑of any help to the prosecution.

14. The medical evidence is at variance with the statement of P.Ws. P.W.10 stated that the appellants told him that they first strangulated the D deceased and then cut his throat. According to the post‑mortem report there is no legature mark on the neck of the deceased. Similarly in F.I.R. it was mentioned that the deceased was first given some intoxicant and then murdered but the report of the chemical examiner shows that poison was not detected in the visceres.

15. The recovery of Chhuris P.1 and P.2 is of no help to the prosecution as according to the prosecution, only one Chhuri was used but two Chhuris have been recovered and. strangely enough both the Chhuris were stained with human blood. This shows padding on the part of the Investigating Officer. The occurrence took place on 25th/26th of July, 1989 and the appellants were arrested on 7‑8‑1989, it cannot be believed that for about two weeks, the appellants will not wash the blood from the Chhuris and keep them stained with human blood. The irresistible inference is that these Chhuris have been planted on the appellants by the police in order to strengthen the prosecution case. Thus, the prosecution has not been able to prove it against the appellants beyond reasonable doubt.

16. For the foregoing discussion, we accept the appeals, set aside the conviction and sentence of the appellants and acquit them. They are directed to be set at liberty forthwith if not required to be detained in any other case. The reference is answered accordingly. N.H.O./S‑565/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted