1987 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, J.--Haq Nawaz (30) son of Muhammad Nawaz was tried by the Sessions Judge, Khushab for having murdered Mst. Ghulam Fatima, in her house m Mohallah Islampura, Khushab Town, at a distance of two furlongs from Police Station Khushab, on 18-7-1982 at 11-30 a.m.

2. F.I.R. Exh.P.C. was recorded at the police station, on the same day at 12-00 noon by Munir Hussain, Inspector/S.H.O. P.W.12, on the statement of Muhammad Elahi P.W.5, son of the deceased. 3 Learned trial Judge convicted Haq Nawaz under sections 302 and 452, P.P.C., and awarded sentences as follows:- U/s 302, P.P.C.--sentenced to death plus a fine Rs.30,000 in default whereof to suffer R.I. for 5 years. A sum of Rs.20,000 out of fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. U/s 452, P.P.C.--to undergo R.I. for 5 years plus a fine of Rs.2,000 in default whereof to suffer further R.I. for 2 years.

4. The convict has filed appeal. The Sessions Judge has made a reference for confirmation of death sentence. Since both the matters arise out of the same judgment-they are being disposed of together.

5. According to F.I.R. Nur Elahi, father of the complainant who was a tenant of the appellant, had died 3 years before the occurrence. After the death of Nur Elahi, the appellant developed illicit relations with Mst. Ghulam Fatima, mother of the complainant. A year before the occurrence, the family shifted from village Boala, Police Station Mitha Tiwana to Mohallah Islampura, Khushab. Haq Nawaz continued visiting Mst. Ghulam Fatima. The grand-father of the complainant had got annoyed, as mother of the complainant would not listen to him. Some 5-6 months prior to the occurrence, Mst. Ghulam Fatima entered into Nikah with one Mian Muhammad, an employee of Shalipur Bank. Mst. Ghulam Fatima did not listen to Haq Nawaz appellant for not entering into Nikah, as a result of which he was feeling aggrieved. On the day of occurrence, Mst. Ghulam Fatima was sitting in the room of her house, alongwith her sons. Muhammad Elahi (complainant), Zahoor Elahi P.W.7 and Ramzan aged 5 years. The boys were having their meals. Haq Nawaz appellant came there at about 11-30 a.m. holding a pistol. He fired a shot at Mst. Ghulam Fatima after raising a Lalkara to Mst. Ghulam Fatima that he will teach her a lesson for having entered into Nikah. The fire missed. Mst. Ghulam Fatima went ahead and caught the pistol. Failing to have the pistol released, he left the pistol and picked up a Kassi lying there. The pistol fell down. Mst. Ghulam Fatima who had fallen on the ground while trying to snatch the pistol, still had not risen when he gave successive blows to her. The cries and noise raised by the sons of the deceased, attracted Mubarik and Ata Muhammad to the spot, who also witnessed the occurrence. The accused then ran away after picking up his pistol. Mst. Ghulam Fatima died on the spot.

6. The S.I. after recording the F.I.R. reached the spot and despatched the dead body for post-mortem examination, after preparing inquest report and injury statement. Blood-stained earth and blood-stained Kassi P.7 were also taken into possession by him vide memos Exhs. P.E. and P.F., respectively. The accused was arrested by him on the same day. On 25-7-1982, the accused while in custody led to the recovery of pistol P.4 alongwith three live cartridges P.5/1-3 and five empty cartridges P.6/1-5 from near a telephone poll, on the railway track Khushab. These articles were taken into possession vide memo. Exh.P.B.

7. At the trial prosecution examined twelve witnesses--Dr Muhammad Riaz Ali, who had conducted autopsy, appeared as P.W.

6. He noted following injuries on her person:- (1) A big incised wound, 7" x 2-1/2" x bone deep, on back of neck, obliquely. (2) A contused wound, 1-1/4" x 1/3" x skin deep on outer angle of mouth on right side. (3) A contused wound, 1/2" x 1/4" x skin deep on right temporal region. (4) A contused wound, 1" x 1/4" x bone deep on left cheek. (5) An abrasion 3/4" x 1/4"below right eye. (6) A contused wound, 1" x 1/3" x skin deep below and outer left eye. On opening skull, the vertebrae, spinal cord and blood vessels were found cut. Stomach contained some undigested food. The doctor opined that death had occurred due to haemorrhage and shock, resulting from injury No. 1.

8. The ocular account was deposed to by Muhammad Elahi (P.W.5), Zahur Elahi (P.W.7) and Ata Muhammad (P.W.9). Mubarak named as eye?witness in the F.I.R. was given up as having been won over. Muhammad Elahi (P.W.5) renarrated the facts given by him in the F.I.R. However, he added that in the struggle for release of pistol by the accused from his mother, she was dragged to the courtyard and it was there that the accused had given Kassi blows to her. During cross? examination, he stated that his grandfather did not like illicit intimacy of his mother with the deceased and used to advise her to sever her connection with the accused. He stated that his step-father Mian Muhammad used to visit them every Friday and take meals with them. He denied that Mian Muhammad had ever advised his mother to stop love affairs with others. He did not deny that the appellant used to visit hip mother even after her Nikah with Mian Muhammad sometimes after two days, sometimes after a week and sometimes after a month. According to him, the appellant had visited their house 3-4 days before the occurrence also. In answer to another question, he stated that Mian Muhammad and his grand-father had reached the spot after the occurrence but had not gone to lodge the report. Ire admitted that his paternal grand-father and step-father used to reprimand his mother because of her bad character, While giving the account of injuries he stated that after receipt of first Kassi blow on the neck, she had fallen down with face downwards and the appellant had given the other Kassi blows, while she was lying in that posture.???????? Zahoor Elahi P.W.7 stated that the appellant while holding a pistol had dragged his mother down from the cot and thereafter had fired a shot which struck her on the right cheek. He stated that the pistol was caught by her mother and thereafter the appellant had given blows to his mother on the neck and other parts of the body. In cross-examination he stated that the appellant had fired 2 shots from the pistol. He did not reply the questions whether he knew, what is `Iman' and what were `Jannat aur Dozakh' In answer to another question, he stated "It is correct that Mian Muhammad and my brother Muhammad Elahi told me today's statement, today, outside the Court"?? Ata Muhammad son of Muzaffar, caste Awan, who appeared as P.W.9, stated about having attested the taking into possession of blood?stained earth and Kassi P.7 from the spot. While giving explanation about his presence at the time of recoveries, he stated that he was going to contact the person to whom he had supplied sand. He, however: failed to give the name of that customer. In the latter part of cross-examination he stated that he was coming back after meeting the sand customer, when he joined investigation. He denied that he knew Mian Muhammad P.W. Abdul Ghani who appeared as P.W.10, stated of having witnessed the recovery of pistol P.4 alongwith live cartridges and missed bullets. He admitted in cross-examination that he was a P.W. in 12-13 cases under the Arms Ordinance of Police Station Khushab. Munir Hussain, Inspector of Police/Investigating Officer, P.W.12 in cross-examination stated that he had not found any bullet or empty or mark of a pellet inside the Kotha, though he had looked for these things.

9. The evidence of recovery of Kassi P.7 from the spot is of no consequence for determining the guilt of the appellant, the reason being that the Kassi was found lying on the spot. It was neither recovered at the instance of the appellant nor it belonged to him and so it cannot be assumed that it was the appellant alone who had used the Kassi for inflicting the injuries. The recovery of pistol also does not advance the case of the prosecution in any manner. Neither the deceased was found to have suffered any firearm injury, nor any empty was recovered from the spot which could connect the pistol with the empty. ?????????

10. Zahoor Elahi P.W.7 was 8 years old at the time of deposition at the trial. Thus, he would be slightly less than seven at the time of occurrence. The witness, admittedly, being of tender age, the trial Judge was bound to record a note after putting questions to the witness that in his opinion the boy was intelligent and mature enough to understand the implication of the statement, he was making, and was competent enough to understand the import of questions and answering the same. Not only, the trial Judge did not make any such note, the boy himself while answering to a question, stated that he had made the statement as tutored to him by his brother Muhammad Elahi and his step-father Mian Muhammad. Even otherwise he made a different statement from the prosecution case by stating that the appellant had fired 2 shots. In these circumstances, his evidence cannot be taken into account while determining the guilt of the appellant.

11. The only evidence, which can be considered for determining the guilt or otherwise, of the appellant, is the statement made by Muhammad Ealhi P.W.5, including motive for the occurrence given by him and the medical evidence. Learned counsel for the appellant while criticising his testimony, contended that it would not be safe to rely upon his statement keeping in view his age and the fact that he must have acted under the influence of others. In support of his contention, learned counsel cited Sultan and another v. The State P L D 1965 (W.P.) Kar. 615 and Abdul Hamid v. The State P L D 1980 Pesh

25. In the former case, statement of a witness, aged 7 years was not considered worth reliance in spite of the fact that the trial Judge had satisfied himself about her intelligence and ability to understand questions, before recording her statement. In the latter case also, the statement of the child-witness was not considered worth reliance observing that though the child-witness was a disinterested one, but in view of the tender age influence of elders upon him and the possibility of his being, tutored, cannot be ruled out. Learned counsel for the appellant further contended that his testimony was contradictory to the medical evidence and on that account also, no reliance can be placed on his testimony. Lastly, learned counsel submitted that the exposition of the occurrence given by him, does not inspire confidence.

12. It is nobody's case that the deceased was a chaste woman. It is not the case of the appellant even that he was an innocent being. Both the prosecution and defence are at one, about the bad character reputation of the deceased. The appellant did not deny specifically that he had no illicit intimacy with the deceased. The question, however, to be decided is whether the appellant was really annoyed over the deceased for having entered into marriage with Mian Muhammad? Frankly we feel, this was not so. At least it does not appear after reading the statement of Muhammad Elahi. ??????????? The deceased had entered into marriage with Mian Muhammad some time a year before the occurrence but during this time the appellant had been freely visiting the deceased. He would sometimes, pay visit after 2-3 days, and sometimes after a week too, In fact he had visited the deceased last, 2-3 days before the occurrence also. It is not the case of the prosecution that the deceased ever stopped him visiting her. He was having his liaison with the deceased as usual, even after marriage with Mian Muhammad. Nobody stated at the trial that Mian Muhammad ever had tried to stop the appellant from visiting the deceased. If the appellant was having all freedom in carrying on with the deceased, even after her having performed Nikah with Mian Muhammad, why after all should he have taken that to his heart. Had he taken that to heart, he would not have waited for a year to settle this matter with the deceased? Taking stock of situation, we do not feel inclined to agree with learned counsel for the State that the appellant would have murdered the deceased on her having entered into Nikah with Mian Muhammad.

13. The argument of learned counsel for the appellant that the medical evidence is contradictory to the ocular account, finds support from the statement made by Muhammad Elahi P.W. that after the first injury inflicted by the appellant on the neck of the deceased, she had fallen with face downwards and the remaining injuries were given by the appellant in that position. Excepting injury No.1 on the neck, the other five injuries were on the facial side of the deceased. If she was lying with face downwards, at the time of receipt of injuries, how could the appellant have caused injuries on the facial side. Yet the other aspect which calls for attention in this connection, is that the dimensions of injuries Nos. 2 to 6 are such that there is a very remote possibility of the same having been suffered with Kassi. In fact, to be more precise, they do not appear to have been the result of Kassi blows. The statement of Muhammad Elahi P.W. that the shot fired by the appellant at the deceased from a distance of one foot, had not struck her, again seems to be incongruous.

15. The narration that the deceased was dragged outside the room (some 20 feet) in the courtyard when she had caught the pistol and that after fall of pistol the appellant had picked up the Kassi and given blows, again does not inspire confidence. There should have been no difficulty for the appellant to have pulled the trigger even when the pistol was caught by the deceased, but if there was some difficulty in that, he could have picked up the pistol after it had fallen on the ground and fired again instead of picking up the Kassi. In fact it would have been dangerous for him to have left the pistol on the ground as the same could have been picked up by the deceased or somebody else and used against him.

16. 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 are 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. We have noted above that the exposition of the occurrence given bye Muhammad Elahi is not consistent with the medical evidence and does not appear to be reasonably true. The other thing which has weighed with us to come to that conclusion is that in Exh. P.C. (F.I.R.), recorded on his statement, the names of Ata Muhammad P.W. 9 and given up P.W. Mubarik have been mentioned to have witnessed the occurrence. Not only their names have been given in the F.I.R. but their parentage, caste and addresses have also been mentioned therein. At the trial, he did not mention them at all. Ata Muhammad while appearing as P.W. 9 deposed about having witnessed the recovery of blood-stained earth and Kassi P.7 from the spot but did not say anything about the occurrence itself. The non-mentioning of his presence at the spot as eye-witness by Muhammad Elahi P.W. and non-advertence of Ata Muhammad P.W, to ocular narration of the occurrence, speaks of the fact that inclusion of the name of Ata Muhammad as eye-witness in the F.I.R. was not at the instance of Muhammad Elahi. Had that been so, P.W. Muhammad Elahi would not have forgotten to mention him. What appears is; that somebody other than Muhammad Elahi had also played role in the drafting of F.I.R. because it looks improbable that the complainant would have known the parentage and caste of the two witnesses, named in the F.I.R. In fact Ata Muhammad P.W. in cross-examination stated that he did not know Mian Muhammad (step-father of the complainant). If he did not know the husband of the deceased, how would he have known the minor son of the deceased. For all the reasons noted above, doubts have arisen in our mind, and we feel that it would not be safe to maintain conviction of the appellant. This appeal is, therefore, accepted and the appellant is acquitted by way of grant of benefit of doubt. He shall be released forthwith if not required in any other case. S.G.D./H-20/L???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.