1979 PLP 186 (SCMR)

DORAB PATEL, J. Mst. Gulab Zari, the wife of Shah Jehan, was shot dead on 1‑11‑1973. The appellant was tried by the Sessions Court, Peshawar for this murder and convicted and sentenced to death. He challenged his conviction in an appeal in the Peshawar High Court, but as the appeal was dismissed and the sentence of death confirmed by the High Court, he filed a petition for leave in this Court which was admitted by us on 8‑6‑1976. According to the prosecution, Mst. Gulab Zari, who lived with her husband in Peshawar, had gone on 1‑11‑1973 to her mother‑in‑law to give Eid greetings. She was accompanied by her daughter, Mst. Naz Begum, who was then a child of seven years only. As the deceased and her child were about to leave for Peshawar, the appellant, who was living with his mother, returned home armed with a step‑gun and fired at Mst. Gulab Zari, who succumbed to her injuries. Information of the murder was sent to Saifur Rehman, the brother of the deceased, who was working in a mill nearby. He rushed back to the house and meanwhile Amanullah Khan, A. S. I. had arrived at the spot because he had been informed of the murder, therefore, Amanullah Khan, A. S. I. recorded Saifur Rehman's F. I. R. and immediately commenced investigations. He prepared a site plan of the occurrence "at the instance of Mst. Naz Begum" and went to apprehend the appellant. But as the appellant could not be traced, he instituted proceedings under sections 87 and 88 of the Criminal Procedure Code and ultimately the appellant was arrested and tried by the Sessions Court, Peshawar. In order to prove the occurrence, the prosecution examined the child of the deceased, Mst. Naz Begum, and this child categorically stated in her evidence in the Sessions Court that her uncle, the appellant, had killed her mother with a sten‑gun. The prosecution produced corroboratory evidence, and Saifur Rehman proved the motive for the murder, which was that the appellant had a dispute about the land with his brother, the husband of the deceased. For reasons which will presently become apparent, the evidence of Amanullah Khan, A. S. I., who recorded the F. I. R. and conducted the investigations, is also relevant. The appellant denied in both Courts that he had fired at his sister‑in- law and in the Sessions Court, he also denied that he had any dispute with his brother Shah Jehan. As he had been arrested after the issue of a proclamation under sections 87 and 88, Cr. P. C. he was questioned about the reasons for his abscondence. He denied his abscondence and stated in the committal Court that he was away in Lahore at the time of the occurrence, and that on his return to his village, he had learnt of the charge against him, therefore he had surrendered himself to the Police. In the Sessions Court, on, the other hand, he said that he had tried to obtain bail before arrest but as he could not get it, he had surrendered to the Police. He did not however produce any evidence in his defence. The learned Sessions Judge, who had the advantage of examining Mst. Naz Begum and watching her demeanour, was impressed by her evidence, and he has recorded a note that he had first questioned her and was satisfied from her answers to his questions that the child was a competent witness. He also held that the corroboratory evidence of Saifur Rehman and Amanullah Khan supported Mst. Naz Begum's version of the occurrence and he was further of the view that the ocular evidence was corroborated by the abscondence of the appellant. Accordingly, by his judgment dated 23‑12‑1974 he convicted the appellant for murder and sentenced him to death. As the learned Judges of the Peshawar High Court agreed with the appreciation of evidence by the Sessions Court they dismissed the appellant's appeal and confirmed the sentence of death. Therefore, the appellant had filed a petition for leave, and we had granted leave in order to examine Mr. Zafar submission that as a rule of prudence the Courts had never based a conviction on the solitary evidence of a child." The danger in basing a conviction on the evidence of a child is obvious. A child can easily be tutored, and as it is prosecution case that there was enmity between Shah Jahan, the father of the child, and the appellant, Mr. Zafar submitted that it would not be safe to rely on Mst. Naz Begum's uncorroborated testimony. In further support of this plea, Mr. Zafar relied on the note of the committal Magistrate that in his opinion the child Naz Begum was not a `competent witness. But as the learned Sessions Judge has made a note to the contrary, the question is which of these two notes is to be preferred. Mr. Zafar invited us to prefer the note of the committal Magistrate because the committal Magistrate had very properly recorded the questions and answers on the basis of which he formed his opinion of the child's incapacity to be a competent witness whilst the learned Sessions Judge had omitted to record the questions put by him to Mst. Naz Begum on the basis of which he had formed his opinion. Now the failure of the learned Sessions Judge to record the questions he put to Mst. Naz Begum and her answers was most unfortunate. For the benefit of appellate Courts, when judges give a note giving their opinion of the competence of a child witness, they should record their questions to the child and his or her answers. Be this as it may, we fin that the examination of Mst. Naz Begum by the committal Magistrate was rather perfunctory, and we are not impressed by it. On the other hand. although the learned Sessions Judge has not recorded the questions and answers on the basis of which he formed his favourable opinion of the child witness, Mst. Naz Begum was subjected to a rather lengthy cross -examination which she stood very well. Therefore, we are not impressed by Mr. Zafar's submissions. Additionally, the danger to be guarded against is that a child can be easily tutored to give evidence, and there was an obvious danger in the instant case that Mst. Naz Begum could have been tutored by her father to give evidence against the appellant as her father was inimical to the appellant. Therefore, the statements made by Mst. Naz Begum about the manner of the occurrence before she met her father become very relevant. And as we indicated earlier, Saifur Rehman had rushed to the scene of occurrence on being informed of the murder. He said in his evidence "Naz my niece told me that her mother was fired at with a sten‑gun and killed by the accused who ran away". Similarly, as we pointed out Amanullah Khan, A. S. I. had said in his evidence that he had prepared a site plan "at the instance of Mst. Naz Begum". Now neither of these witnesses were cross‑examined on their statements that the details of the occurrence had been given to them by the child Mst. Naz Begum immediately on their arrival at the place of occurrence. It is also nobody's case that Mst. Naz Begum's father had reached the place of occurrence before the arrival of these two witnesses, therefore, their evidence furnishes strong, corroboration of Mst. Naz Begum's evidence in the Sessions Court. Further, apart from this corroboratory evidence, Mst. NT'G Begum's evidence is also supported by Saifur Rehman's evidence of the motive for the crime. Mr. Zafar, however submitted that an adverse inference should be drawn against the prosecution for not examining the child's father, because the motive for the crime was that the child's further had a dispute with his brother, the appellant. The argument overlooks the act that although Saifur Rehman categorically stated in his evidence that the appellant had a land dispute with his brother, he was not cross‑examined on this statement. In these circumstances, it was not necessary for the prosecution to examine Mst. Naz Begum's father, and no adverse inference can be drawn against the prosecution for not examining this witness. Mr. Zafar then submitted that we should draw an adverse inference against the prosecution for not examining the grandmother of Mst. Naz Begum, because she was admittedly in the house at the time of the murder. Now the prosecution's explanation for not examining Mst. Shah Pari, the grandmother of Mst. Naz Begum and the mother of the appellant, was that she had been won over, by her son, the appellant. As in the circumstances of this case we see no reason to doubt this explanation we do not think an adverse inference can be drawn against the prosecution for not examining Mst. Shah Pari and on the other hand if the appellant had so wished, he could either have examined his own mother as a defence witness or requested that should be examined as a Court witness, the more so, in view of his plea of alibi. Accordingly, in the circumstances, nothing turns on the failure of the prosecution to examine the appellant's mother. Mr. Zafar then referred us to the case‑law and relied in particularly on the judgment reported in Sultan v. The State (P L D 1965 Kar. 615). The view taken in this case was that it would not be safe to base a conviction on the solitary evidence of a child and we agree with this view. But it does not help Mr. Zafar's submissions, because the evidence of the child witness in the instant case is amply corroborated by the evidence of motive and by the corroboratory evidence of Saifur Rehman and Amanullah Khan. Mr. Zafar then submitted that the occurrence was shrouded ins` mystery, therefore, it was likely that the appellant had fired at the deceased after some altercation with her. Now Mst. Naz Begum appears to have been cross‑examined on this suggestion and she has merely said that the appellant had questioned her mother about the dispute between him, the appellant, and her father, therefore, there is no evidence to support the theory of a sudden quarrel. However, this plea was feebly pressed, but learned counsel referred us to another piece of evidence is the admission of Saifur Rehman that the father of the appellant was "a mental case" and learned counsel's submission was that the appellant's attack on the deceased must have been the result of some mental strain. The plea cannot be determined without the mental examination of the appellant therefore, this Court would not be justified in altering the sentence in view of this plea, but it would be open to the appellant to apply to the Government for his mental examination and to seek relief in respect of the question of the sentence passed against him if he so wishes: With these observations, the appeal is dismissed. Appeal dismissed.