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Petitioner: AMIR KHAN AND 3 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Abdul Shakurul Salam, Zia Mahmood Mirza Title: AMIR KHAN AND 3 OTHERS vs THE STATE Case No.: Criminal Appeal No 133 and Murder Refereno No 128 of 1981 Date of Judgment:1984-10-08 Reported As: PLD 1985 Lahore 18 Result: Appeal allowed
JUDGMENT
JUDGMENT ' ABDUL SHAKURUL SALAM, J.-Four appellants, Amir Khan and Muhammad Khan sons of Rehmat, their sister's husband Suba Khan son of Ahmad Khan and cousin Fateh Khan son of Lal Khan were convicted of the murders of Mst. Nur Begum and her two daughters Mst. Shah Jahan and Mst. Nur Jehan and sentenced to death, fine of Rs, 5,000, in detault 3 years' R. I. And ordered to pay compensation to the heirs of the deceased a sum of Rs, 5,000, in default 2 years' R. I. Each by Mr. Manzoor Ahmad Kamboh, Additional Sessions Jadge, Attock vide order dated 18-6-1981. The learned trial Court referred the case for confirmation of sentences of de the under section 374, Cr. P. C. It was registered as Murder Reference No, 128 of t981. The convicts filed appeal vide Criminal Appeal No, 133 of 1981. The complainant filed Criminal Revision No, 165 of 1981 for enhancement of the amount of compensation. A learned Judge ordered it to be heard along with the appeal. All these matters were disposed of together-resulting in acquittal of the appellants vide short order dated 8-10-1980, detailed reasons being as under : 2. Mehr Khan, P. W. 11, husband of one and father of the other two deceased, lodged F. I. R. No, 91 at Police Station Fateh Jang, District Attock at 12-30 noon on 14-9-1980 saying that his behak (accommodation on the land) was at a distance of 200 yards from Gadda (the nearby village). Nearly at a distance of 100 yards, is the behak of . His brother's son Suba Khan. He had gone there Kuftanwela (Isha time). It would be about 8-00 p.m., leaving his wife Nur Begum, daughters Shah Jahan and Noor Jahan, Aurangzeb aged 8 years, maternal grandson and Reshman aged 7/8 years, maternal grand-daughter. At about Sehriwela (about 3/4 a.m.), he and his nephew Suba Khan heard the sound of fire and they ran to'hia behak and saw (1) Lal Khan with gun, (2) Noor Muhammad with pistol, sons of Summandar Khan, (3) Sher Gul son. Of Gulab with gun, (4) Ahmad
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Khan with hatchet and (5) Akbar Khan with Danda entering in the courtyard of the house. His wife and daughters ran into the house (room). His grandson and daughter hid under the cot. The accused with their respective weapons of fire, hatchet and danda were injuring the room his wife Nur Begurn, and daughters Shah Jahan and Noor Jahan. On noise and his nephew's raising alarm, all the five accused with loud lalkaras said that if (they) came near (they) too would be killed. He and his nephew out of fear hid in the maize (field). We on the accused's lalkaras recognized them. When the accused had killed they ran away towards the east. He and his nephew went and saw his wife Nur Begum, daughters Shah Jahan and Nur Jahan lying dead smeared with blood. After the occurrence, leaving the nephew with the corpses, he went to the behak of Atta Muhammad Khan of Kot Fateh Khan to inform him in his Kothi and told him the entire occurrence, who sent him to the Police Station for lodging report. Tne motive was that Akbar Khan accused s daughter Mst. Noor Bhari in liaison was abducted by one Muhammad Ashraf son of Muhammad, in which his daughter Shah Jahan was also an accused. This case was to be heard on 17-9-1980 at the Rest Houst Fateh Jang by the Sessions Judge Attock. On account of this grievance, all the accused in concert had murdered his wife, Nur Begum, daughters Shah Jahan and Nur Jahan. Action be taken. 3. The above F. I. R. Exh. P. H. Was recorded by Muhammad Aksar, Muharrir H. C. On 14-9-1960. Thereafter, Abdul Ghafoor S. I./S. H. 0. P. W. 13 reached the spot. He prepared inquest reports of Mst. Shah Jahan, Mst. Nur Begum and Mst. Nur Jahan, Exh. P. K., P. L. And P. M. And also injury statements, Exh. P. N., Exh. P. 0. And Exh. P. P. Respectively. He sent the dead bodies for post-mortem examinations. He collected blood-stained earth from the spot vide memo. Exh. P. I. He also collected one empty cartridge .12 bore (Exh. P. 13), one cartridge of .32 bore (Exh. P. 14), one empty cartridge of 7 mm (Exh. P. 15) and three dead cartridges '32 bore (Exh. P. 16/1-3) vide Memo. P. J. He also got site plans, Exh. P. D./1 and P. D./2 prepared and recorded red notes thereon. 4. At the trial, Mehr Khan, P. W. 11 said that "I came back from mela at about sehriwela time. I saw in my house that my wife Ms:. Nur Begum and my daughters Mst. Shah Jahan and Mst. Nur Jahan were put to death. Mst. Reshman and Aurangzeb P. Ws were in the state of coma, therefore, they could not narrate the story of occurrence to me at that time". When he went to report the matter to Malik Atta Muhammad and was met on the way by Fateh Khan and Amir Khan, they told him that murderers were Akbar Khan, Lal Khan, Ahmad Khan, Noor Muhammad and Gulzar. But he had said, they were not. However, when he met Malik Atta Muhammad, the latter "pressurised" him about the aforesaid persons and sent his own servant Muhammad Khan alongwith him to the P. S. For registration of the case according to the wishes of Malik Atta Muhammad". Then, he gave the motive as follows : "Amir Khan used to come in my house alongwith Fateh Khan accused for the hand of my daughter Mst. Shah Jahan. I alongwith Mst. Shah Jahan were not willing for the said relation. Due to the above-mentioned motive all the accused persons with their common intentions caused the murders of my wife and daughters. Fateh Khan is the maternal-cousin of Amir Khan accused. Muhammad Khan accused is the brother of Amir Khan accused. Suba Khan is the husband of the sister of Amir Khan and Muhammad accused." 5. Mehr Khan, P. W. 11 was duly confronted with the F. I. R. And his supplementary statement, Exh. D. Q. Learned counsel for the defence submitted that the complainant has repudiated the F. I. R. Thus exculpating the first set of accused, implicated different set of accused in the supplementary statement i,e, Baba Haider etc. (called second set) and has now implicated the appellants in Court. He has ceased to be an eyewitness as alleged in the F. 1. R. And has said that Mat. Reshman and Aurangzeb "were in the state of coma", and, "therefore, they could not narrate the story of occurrence to him at that time". This was to explain away the non-naming of the accused appellants in the F. I. R. In his supplementary statement, he had said
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that on his asking, Aurangzeb had told him that there were six (assailants). One of them was Baba Haider with long hair and beard. Rest he (Aurangzeb) could not identify. Learned counsel submitted that the complainant also changed the motive from abduction of Mst. Noor Bhari daughter of Akbar simpliclior, first to the asking of land by Jahana and then, to the asking of the hand of Mst. Shah Jahan by Amir Khan and Fateh Khan appellants. 6. Shah Nawaz, brother of Mehr Khan, appeared as P. W. 7. He had identified the dead bodies. He was confronted with his statement under section i61, Cr. P. C. Exh. D. A. Recorded on 18-9-1980 which was in the same strain as that of Mehr Khan that when he came from mell, he found the three women dead ; Aurangzeb said that one of the five assailants was Baba Haider and others he could not identify, the second set of accused as called by the learned counsel for the appellants, and details about the earlier murder, abduction etc. 7. It may, however, be noted that both Mehr Khan P. W. 11 and his brother Shah Nawaz, P. W. 7 denied the making of the aforesaid statements Exh. D. C. & D. A. Though they were duly confronted with the same and relevant portions thereof. Second point noted may be that according to the statement of the Investigating Officer, Abdul Ghatoor S. I./S. H. O., P. W. 13, notwithstanding that the statements under section 161, Cr. P. C. Showed that the complainant had ceased to be the eye-witness and was saying that about the murders, he was told by Aurangzeb that the latter had seen Baba Haider and five others being armed and committing murders, the Investigating Officer did not record the statement of Aurangzeb. This he should have. The learned Assistant Advocate-General submitted that the Investigating Officer did not consider this important because Aurangzeb was a minor. The third point worth noticing is that Aurangzeb when he appeared as P. W. 9 said that ' the S. 1. Of Fateh Jang had come to the spot on the following day of the occurrence. I had then got recorded my statement before the S. I. After that my statement was not recorded by any other Police dicer. After that I never appeared before any Police Officer. ' But the Officer, S. 1. Of Fateh Jang Abdul Ghafoor P. W. 13 denied having recorded the statements of Aurangzeb and Reshman. Riaz Ahmad (P. W. 12), Inspector C. I. A. Staff took over the investigation on 25-9-1980. The latter said that he recorded the statements of Aurangzeb and Reshman under section 161, Cr. P. C. On 29-9-1980. Aurangzeb has denied making such a statement on 29-9-1980, though he had said that his statement was recorded the day following the occurrence which fact was denied by the then Investigating Officer Abdul Ghafoor, P. W. 13. Mst. Reshman had denied making statement before the Police ever, though she was duly confronted with her statement Exh. D. B. Recorded by Riaz Ahmad, Inspector C. I. A. P. W. 12. 8. A word may be said about all these statements. Mehr Khan, complainant P. W. 11 contrary to the contents of F. I. R. Got recorded by A him, has ceased to be an eye-witness. This is his position in Court as well. Shah Nawaz, his brother P, W. 7 was - never" an eye-witness. Regards motive deposed to by Mehr Khan, P. W. 11, he has shifted hit position at different stages of the case. In the F. I. R. It was in relation to abduction of one Mst. Noor Bhari in which his daughter Shah Jahan (deceased) was a co-accused. Later on, it was said to be the desire of his second son-in-law Jahan Khan to be given land like the other son-in-law, Ahmad than. Lastly, it is that Fateh Khan and Amir Khan, two of the appellants, wanted the hand of his daughter Mst. Shah Jahan (deceased). This is in addition to his denial of the statement made before the Police with.' which he was duly confronted. In these circumstances no reliance can be placed on the testimony of the witness at all nor about the motive. So is the position of his brother Shah Nawaz. Absence of motive or its proof in B Court may not be fatal to the prosecution case if it is otherwise proved beyond reasonable doubt. Therefore, attention at this stage may be adverted to the eye-witness account. 9. It is furnished by Aurangzeb P. W. 9 and Mst. Reshman, P. W.
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10. The former stated to be aged 10 years at the time of recording of his statement in Court i,e, on 9- 6-1981. The occurrence had taken place in the night between 13/14-9-1980 i,e, some nine months earlier. The witness then would be about 9 and a quarter years old Mst. Reshman P. W. 10 gave her age in Court as 4 years. The learned trial Judge observed that "Apparently she looks to be six years old". At the time of occurrence, she would be anything from three and quarter to 5 and quarter years of age. Thus both of them were minor at the time of the occurrence. The learned trial Judge took precaution, as required by section 118 of the Evidence Act, 1872, to find out as to whether the children were competent to understand questions and give rational answers. He asked pertinent questions and having received right answers, held the children to be competent witnesses and then examined them. 10. Before judging their veracity and weight to be attached, reference to principles enunciated by Courts over the years may be made. More so because the learned counsel for the appellants has laid much emphasis on these. - The first case quoted by him is Abbas All Shah v. Emperor (1), wherein the learned Judges quoted with approval a passage from "The Outlines of Criminal Law" by Dr. Kenny, Dowsing Professor of the Laws of England, Cambridge University : "Children are a most untrustworthy class of witnesses, 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". The learned Division Bench held "When considering the evidence of child-witnesses these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances." The age of the sole child witness is not given in the case. But her testimony was not relied upon and the convict of double murder under section 302, P. P. C. And sentenced to death was acquitted. In the second case of Darpan Potdarin v. Emperor (2), the learned Judges observed as follows :- "Lastly, there is the evidence of the boy Jiblal; and if the other points which I have mentioned are rejected, it would be unsafe to convict on the evidence of a child ten years old, more especially as he does not seem to have told anyone of his experience until the day time when he (1) AIR 1933 Lah. 667 (2) AIR. 1938 Pat. 153, had said something to his father. The evidence of children unlessiv immediately available and unless received before any possibility of, coaching is eliminated is notoriously dangerous." ' The convict sentenced to death on murder charge was acquitted. Learned counsel for the appellants pointed out that in the present case, no mention was made of the cnildren being witnesses by the father, the complainant Mehr Khan P W. 11, even by the time F. I. R. Was lodged at 12-30 noon on 14-9-1980 about the occurrence having taken place in the night and he having reached there and met the children. Moreover, the Investigating Officer Abdul Ghafoor P. W. 13 denied that he recorded the statement of Aurangzeb on the day following the occurrence or thereafter. The statements alleged to have been recorded by Riaz Ahmad, Inspector, P. W. 12 on 29- 9-1980, much after the occurrence dated 13/14-9-1980 i,e, after a fortnight, which the children have denied having made, the learned counsel for the appellants . Submitted, do not fall in the permissive proviso of the aforesaid judgment. The third case mentioned was Sultan and another v. State (1). In paragraph 14 at page 620, the learned Judges observed as under :- "There thus remains the solitary oral testimony of the young child aged 7 Mst. Rehmat. Although the learned Additional Sessions Judge has taken the precaution of putting questions to her and of satisfying F himself as to her intelligence and ability to understand questions and, give coherent answers, we feel it would be most unsafe to base the conviction on these two appellants upon the sole testimony of this young child. We are not even satisfied that she saw the occurrence."
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' The two convicts sentenced to death on murder charge were acquitted. The last and the fourth case referred by the learned counsel for the appellants was Muhammad Ramzan alias Jana v. The State (2). In this case there were two eye-witnesses, Younus aged 10 years and Nazir about 12 years. The learned Judge observed that "In any case the rule of prudence requires that the testimony of a child witness should not be relied upon unless it isle, corroborated by some other evidence on the record, because such children often mistake dreams for reality, repeat glibly as their own knowledge of what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward etc. In the 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 aforementioned child witnesses." The accused was acquitted." Le Learned counsel for the appellants contended that in the case in hand, there is no corroboration of the testimony of the child witnesses, Medical evidence and recoveries of weapons do not furnish corroboration of the occurrence. ' More he would submit when he would come to deal wish these. 10 A. Learned counsel for the State submitted that the witnesses, though minor, were the natural witnesses being asleep with their respective mothers when the two ladies along with their mother were done to death. There is no justification to discard their testimony. He submitted that in the case of Abdullah v. The State (3), conviction on the basis of evade rice of a child of 7 or 8 years old was upheld by the learned Supreme Court. We carefully read the judgment and also looked for the judgment of the High Court against which leave was refused. The High Court judgment is reported as Abdullah (1) PLD 1965 Kar. 615 (2) 1968 P Cr. L C 392 (3) 1968 SCMR 852 Shah v. State (1). The facts were that 7/8 years old child's mother was done to death at morning tea time by the father and the child had straightaway run to the maternal grandmother's house and informed her. Father of the deceased was immediately informed who came to the deceased's house and then went to lodge the report which was recorded at 7-40 a.m. Not only report was prompt but all the facts about the occurrence were corroborated by the circumstantial evidence. In these circumstances the accused was convicted under section 302, P. P. C. And sentenced to life imprisonment by the learned Additional Sessions Judge. The entire evidence was reappraised in the High Court on appeal. Conviction and sentence were upheld. On Petition for Special Leave to Appeal, the learned Supreme Court had observed that "whether she was to be believed or not, was for the Courts below to consider. Both the Courts below have believed her testimony because she was a natural witness and her version found corroboration from the medical evidence and the other circumstances of the case." A perusal of the two judgments of the High Court and the Supreme Court will show that the child witness was deposing against her own father, had informed her maternal grandmother immediately and the report had been lodged promptly, Circumstantial evidence supported the prosecution case fully. The second case referred to is Bashir v. State (2) wherein testimony of a child witness aged eight or nine years . Was relied upon and sentence of death upheld. In this case, besides the child, her mother Ms/. Benazira was also an eye-witness and was deposing against her own brother. Their testimony was found to have been corroborated by the accused's absconsion. The third case referred to was Ameer Umar v. The State (3) in which testimony of the victim of sodomy, aged 8 to 10 years was relied upon and accused sentenced to R. I. For one year and a half. His appeal. And revision were dismissed by the Sessions Court and the High Court. The learned Supreme Court declined leave to appeal. The conviction was based besides on the testimony of the victim, his mother Ms/. Noor Bhari. 11. A passage and a sentence from a decision of House of Lords in Director of Public Prosecutions v. Hester (4) may be quoted as these enunciate principles governing evaluation of testimony of a
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single witness, in sexual offences, children witnesses, and the central principle of criminal law that a person can "only" be convicted if the Court is "sure that the guilt has been established"- These are at pages 1059-1060 of the report and are as follows : "The accumulated experience of Courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. There ate some suggestions which can readily be made but which are only with more difficulty rebutted. There may in some cases be motives of self-interest ; or of self-exculpation ; or of vindictiveness. In some situations the straight line of truth is diverted by the influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood. It must, therefore, he sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilty may be insecurely based. So it has come about that certain statutory enactments impose the necessity in some instances of having (1) PLD 1968 Pesh. 1 (2) PLD 1974 Pesh. 113 (3) 1976 SC M R8.338 (4) (1972) 3 All E R 1056 more than one witness before there can be a conviction. So also has it come about that in other instances the Courts have given guidance in terms which have become rules. Included in such cases are those in which charges of sexual offences are made. It has long been recognised that juries should in such cases be toll that there are dangers in convicting on the uncorroborated testimony of a complainant although they may convict if they are satisfied that the testimony is true. As this is no mere idle process it follows that there are no set words which must be adopted to express the warning. Rather must the good sense of the matter be expounded with clarity and in the setting of a particular case. Also included in the types of cases above referred to are those in which children are witnesses. The common sense and the common experience of men and women on a jury will guide them when they have to decide what measure of credence and dependence they should accord to evidence that they have heard. ' All the rules which have been evolved are in accord with central principle -of criminal law that a person should only be convicted of a crime if those in whose hands decision rests are sure that guilt has been established." 12. Now, the testimony, of the two witnesses may be weighed. The first is Aurangzeb P. W. 9 who would be, it may be recapitulated, around nine years of age at the time of occurrence. He said that "8 months ago the accused Amir Khan, Muhammad Khan, Suba Khan, Fateh Khan, at about sehriwela came to our house and awoke my mother Mst. Shah Jahan and Mst. Nur Jahan. The accused took them into the room. At that time the accused Amir Khan was armed with gun, Muhammad Khan with hatchet, Fateh Khan with hatchet and Suba Khan with a lathi. A harridan lamp was burning at that time. The accused started inflicting injuries to Mst. Shah Jahan and Mst. Nur Jahan and Mst. Nur Begum in the said room and all three were murdered by the accused persons. My maternal grandfather Mehar Khan had gone to mela. ' I. Knew the accused persons because they used to come in our house prior to the occurrence. 111st. Rashman P. W. Also woke up at the hue and cry. She also made shouting with me. Thereafter the accused persons ran away towards their houses. I alongwith Mst. Rashaman went to the said room and saw that all the above-mentioned three ladies were murdered by the accused." 13. Before analizing this testimony, it may be recalled that Mehr Khan, grandfather of the witness, had come to the spot in the night and lodged the F. I. R. Exh. P. H. At 12.30 noon. He claimed to be an eye-witness. About Aurangzeb and Mst. Rashman, the child witnesses, he said that these had hid themselves under the cot. In other words, he did not say that these children had seen the occurrence. It is true that Mehr Khan had repudiated the F. I. R. But the conduct of the children
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would be what he described that they had hid themselves under the cots. When in the dead of night, assailants come in a house armed with gun, hatchets and Lathi for committing murders and children are awoken from the sleep, they would naturally be frightened and try to hid themselves. They would hardly have the nerve or with about them to see and observe. Night was "dark" too, per statement of Mst. Rashman. According to the calendar, it was third of the moon -month. There will be no moon therefore, at the time of occurrence. About lantern, something will be said later. Identification of assailants and observation of weapons in their hands in the circumstances would require superhuman composure and intelligence to see the right person and right weapon-not one but four persons and four different arms and weapons, in their respective hands for children of 9 or 5 years of age. Then, according to Aurangzeb, he had "got" his statement "recorded" by the S. I. Of Fateh Jang the following day of occurrence. But the Officer had denied having done so. If the child is right, the statement recorded on 14-9-1980, following the recording of F. I. R., would be likely to be in consonance with the contents of the F. I. R. And therefore, being of no use for the prosecution case as put in Court, it has been suppressed…
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