MUHAMMAD FEROZE Versus THE STATE

1. SHABBIR AHMED, J.-- -Muhammad Feroz, the appellant has been convicted for Qatl-i-Amd of his wife Mst. Naheed and sentenced to death with fine of Rs.50,000 in case of default in payment of fine further imprisonment for five years; he was further ordered to pay a sum of Rs.1,00,000 as compensation under section 544-A Cr.P.C., to the heirs of the deceased by judgment dated 27-12-1997 recorded by Mrs. Naseema Mansoor, VIth Additional Sessions Judge, Karachi South. The appellant has appealed against his conviction. The sentence is before us for confirmation.

2. This judgment will dispose of the appeal tiled by Muhammad Feroz, appellant and the connected murder reference.

3. The occurrence in this case had taken place at 15-6-1992 in Flat No.5/12, Top Floor, Wallace Street, Kamla Devi Building near Nargis Bakery at a distance of three furlongs from Police Station, Kharadar, District South. The First Information Report (Exh.22) was recorded at the Police Station Kharadar on the same day at about 11-30 hours on the basis of 154 statement (Exh:6) of P.W. Muhammad Javed, brother of the deceased, recorded by P.W. Chaudhry Bashir, wherein he stated that on the day of report he was present at his residence with his younger brothers P. Ws. Navaid, Pervaiz, and mother P.W. Mst. Jameela at about 9-00 O'clock in the morning when his sister's son Khurrum, aged about 6/7 years came there and started weeping and asked Navaid, his younger brother "that what happened to Mummi, go and see her". Thereafter, his mother Jameela took P."V. Khurrufn and went there followed by Navaid and the informant. He had hardly reached near Kamla Devi Building, when he was informed by F.W. Navaid that sister Naheed was lying under the bed in his house in death condition with injuries on face and head caused by knife and Churri, which were bleeding. Through Edhi Ambulance, deceased was brought to Civil Hospital. He claimed that his brother-in-law, (the appellant) killed their sister, who is his wife, by, inflicting Churri/knife blows.

4. The motive for the killing stated in the report was that the domestic relations of the appellant with the deceased from the very beginning were not cordial. Many a times, the deceased made complaints about the beating and torture at the hands of the appellant. About 3 or 4 years prior to the incident due to beating by appellant, his sister had come to their house to the extent that matter was also reported to the Police Station Kharadar. Thereafter, the matter was patched up due to intervention of appellant's brother, who had arrived from Saudi Arabia and arranged compromise between them. Master Khurrum and Miss Anam are from their wedlock. They were residing in the Kamla Devi Building for the last 3/4 years, at a short distance' from their own residence.

5. Above 154, Cr.P.C statement was recorded by P.W. Ch. Bashir Ahmed, S.-I, who reached the hospital in the following manner:--

6. On 15-6-1992 when he was standing near Police Station Kharadar, P. W. Navaid met him and informed him that his sister Mst. Naheed is lying unconscious in Karma Devi Building on the top floor, he went there, one Ambulance was at the Vardat. He noticed Mst. Naheed in unconscious condition and blood was oozing from her body. He asked them to take her to hospital. Thereafter he went on patrolling, while patrolling, he received message that a dead body of one lady Mst.Naheed wife of Feroz had been taken to the hospital in dead condition; then he returned back to the Police Station and thereafter he proceeded to the hospital. He prepared inquest report of dead body (Exh.7), He recorded 154 Cr.P.C. statement of Muhammad Javed. Then he requested Medical Officer for post-mortem examination to ascertain the cause of her death.

7. The autopsy on the dead body was conducted on 15-6-199 by P W. Dr. Ghulam Mustafa which was identified by Muhammad Saleed and Muhammad Javed. The post-mortem examination started at 11-30 a.m, and finished at 12-50 p.m. on the same day viz. 15-6-1992. On genera] appearance, the dead body was of female of average built, healthy, no sign of decomposition. Post-mortem lividity was available on dependent parts. On external examination, the following injuries were found:--

(1) Bruise on Rt. arm 1.5" x 1 ".

(2) Incised wound on Rt. forehead 1 c.m. x 1/2".

(3) Bruise on Rt., cheek 1 cm x 1 c.m.

(4) Incised wound below left eye 1 c.m, x 1/2 c.m.

(5) I/W .on left temporal region 1. 5 c. m x 1/2 c. m.

(6) I/W on end forehead 1 /2" x 1 /4''

(7) Multiple contusion 08 Nos. on left side of shoulder and chest laterally each of size 1/2 c.m. x 1/2 c.m.

(8) I/W above the both eyes upper lids, each in size 1 c.m. x 1/4 c.m.

(9) Scar of "Rassi" on neck on both sides internally but in front in light scar.

(10) Multiple contusion on pubic region each of size 1/2 c.m. x 1/2 c.m.

(11) Contusion on Rt. hand 1 /2 c.m. x 1 /2 c.m.

(12) Bruise on Rt. hip laterally 1" x 1"

8. On internal examination, the spleen was ruptured, fracture of 0.8 rib on left side laterally seen. On external as well as internal examination, the doctor was of the opinion that death was due to Cardid respiratory failure due to infra abdominal haemorrhage by rupture of spleen, caused by hard and blunt substances.

9. Chaudhry Bashir, S.-I. received the dead body after post-mortem with its clothes and then handed over it to the relatives for the burial as per Exh.38. Thereafter, he proceeded to the Police Station and report was incorporated in 154, Cr,P.C. book maintained at the police station. Thereafter, he proceeded to Vardat. It was found locked then he went to the house of the complainant and came in company of the complainant to Vardat and got the house opened and thereby inspected the place of Vardat, secured and sealed the blood lying at the Vardat, He secured the clothes of the appellant on production by P.W, laved. Thereafter, he recorded the statements of witnesses. In the evening, he arrested the appellant. On 16-6 1992, he recorded statement of Aneesa wife of Altaf Hussain, resident of the same building. He requested Tappedar for preparation of the sketch of the Vardat. On 24-6-1994, the statement of Mst. Razia and Parveen were recorded under section 161, Cr.P.C. On 26-6-1992, he produced Mst.Razia and Parveen as well as P.W. Khurrum before the A.C.M. for their 164, Cr.P.C. statements which were recorded, except of P.W. Khurrum. On 28-5 1992, the appellant while in custody, during investigation disclosed, the presence of crime weapon and he took the police and produced pointed Poker (Sowa) from the house, which was secured under memo. of recovery. After completion of the investigation, the appellant was sent up to face his trial.

10. During the trial, prosecution examined 13 witnesses, consisting of P.Ws. Javed, Navaid, Mst. Jameela and Parvaiz, brothers and mother of the deceased, who came to Vaidat after receiving information about incident from P.W. Khurrum and found Mst. Naheed lying dead at the Vardat; Muhammad Ismail, who also came there and found body of Mst.Naheed lying under the bed, arid one of the witnesses of inspection of Vardat; P.W. Abdul Saleem, the witness of arrest of appellant; P.W. Khurrum only eye witness of the occurrence; .P.W. Mst. Aneesa Altaf resident of the third floor of the same Building, who was informed by Khurrum that his mother had become unconscious, who had immediately informed the other inmates of the building who thereby advised her to inform thee relatives of the deceased, residing in the opposite building.

11. P.W. Ghulam Mustafa, Medical Officer, who had conducted the autopsy on the dead body, who also examined alongwith P.W. Muhammad Ali, the A.C.M, who had recorded the 164, Cr.P.C. statement, of Mst.Razia and Parveen but P.W. Khurrum's statement could not be recorded on account of his being of tender age and in the opinion of Magistrate, he was not able to give evidence. Exhibit 30 contains the Note recorded by the learned Magistrate in the following terms:--

12. "Note.--'The witness is also asked, about other questions as how many days in the week. The witness was not able to intimate or reply about his age, religion and caste, when witness was asked question in Urdu, he is of tender age about 5 years and he is not able to give reply. The question put to him in Urdu language which he understands." Thus he is not able to give the evidence.

ORDER

13. The witness Khurrum is of tender age and in my opinion he is not able to give evidence in this case. His statement under section 164, Cr.P.C is, therefore, not recorded."

14. Lastly, P. W. Ch. Bashir, the Investigating Officer, who came to the Vardat in company of P.W. Navaid and advised them to take her (deceased) to hospital and thereafter, he went on patrolling; then he proceeded to Civil Hospital after receiving message and prepared the inquest report of the dead body recorded under section 154 statement of P.W. Javed, got the post-mortem examination, inspected the Vardat, secured the clothes of the accused on production by P.W. Javed recorded his statement under 161, Cr.P.C, got 164, Cr.P.C statements of witnesses recorded and completed the investigation, dispatched the blood secured from the Vardat, clothes of the deceased and accused as well as crime weapon for chemical analysis as per Exh.40. The report is in positive.

15. The appellant met the prosecution case with bare denial and pleaded his innocence by stating that on the day of incident he had gone to his job when he returned from the job and was standing outside the house, waiting for wife and children, police came and arrested him in a false case.

16. He examined himself on Oath under the provisions of section 340(2), Cr.P.C, wherein he has stated that on 15-6-1992, he left the house at 6-00 a.m. in the early morning while his wife and children were in the house. He was employee of Nisar Brothers, Ranchore Line near Pakistan Masjid and remained at his job till 8-00 p.m.; he returned to his house with milk, rusk and other articles for breakfast, when he reached at the door it was found locked, he tried to open the lock but could not succeed. He kept waiting near water tank for his wife and children, and Police came and arrested him. The Police also took the said articles from him and told him that .his wife had been murdered. Police lodged false case against him. He denied the recovery of "Sowa" or any other article from his possession or on his pointation. He claimed himself to be innocent and his brothers-in-law have involved him falsely in this case because his marriage was a love marriage.

17. He examined in defence, two witnesses namely, Mushtaq and Muhammad Iqbal Farid. D.W. Mushtaq is his employer. His evidence on alibi, i.e. the presence of appellant in workshop from 7-30 a.m. to 6-30 p.m and during that period he was normal. Evidence of D.W. Muhammad Iqbal Farid is also to the same effect about the presence of the appellant on his duty, the day of occurrence from 7-30 a.m to 6-30 p.m.

18. The learned Additional Sessions Judge, on over all assessment of the evidence concluded that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned Judge accepted the ocular version furnished by P.W. Khurrum, a witness of tender years, and corroboration of his evidence furnished by P.Ws. Muhammad Javed, Mst. Jameela and Navaid, who reached the Vardat on receiving information about the incident from P. W. Khurrum. Further corroboration was found from motive, recovery of crime weapon, clothes of the appellant and the medical evidence.

19. The learned trial Court convicted the appellant and sentenced him as stated hereinabove by judgment dated 27-12-1997, which is impugned in the present appeal.

20. We have heard Mr. Mahmood A. Qureshi, learned counsel for the appellant and Mr. Habib Ahmed, learned Assistant Advocate-General for the State and with their assistance we have reappraised the entire evidence.

21. The death of the deceased caused by the injuries in the manner alleged by the prosecution has not been disputed; even otherwise the Medical 'Officer Ghulam Mustafa, who had conducted the autopsy on the dead body of Mst. Naheed, was examined at the trial. He was of the opinion that on external and internal examination of the dead body, death was due to infra abdominal haemorrhage by rupture of spleen, secondary to hard and blunt substances. His evidence is sufficient to establish death of the deceased Naheed in unnatural manner.

22. Next question is whether the appellant is the Author of the injuries on the person of the deceased, which has been disputed by the learned counsel for the appellant by assailing the impugned judgment on legal and factual plane. Though legal plea has been taken as alternate but we would like to address the same first.

23. The legal plea raised is as follows:--

24. Mr. Mahmood A. Qureshi, learned counsel for the appellant referred the provisions of sections 306(c) and 308; P.P.C to contend that the offence allegedly committed by the appellant was not punishable under section 302, P.P.C. Therefore, the conviction of the appellant under section 302, P.P.C. and sentence of death awarded to him by trial Court was coram non judice, for the reasons that Master Khurrum and Miss Anam are the son and daughter of the appellant from the deceased, and are admittedly the "Wali" of the victim. So Qatl-i-Amd committed by the appellant is not liable to Qisas and as such the trial Court had no legal authority to convict the appellant under section 302, P.P.C, and to award him with sentence of death. In the circumstances of the case, the offence allegedly committed by the appellant falls within the purview of section 306, PRC punishable under section 308, P.P.C with Diyat, and in no case for imprisonment exceeding 14 years. To support his contention, he has placed his reliance on following cases:--

(1) Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885), (2) Muhammad Ikram v. The State (1999 SCMR 406) and, (3) Dil Bagh Hussain v, The State (2001 SCMR 232).

25. In the first case, the apex Court after examining the provisions of section 306 and section 308 of the P.P.C. concluded as follows:--

26. "On our independent assessment of the facts, circumstances of the case and appreciation of the relevant provisions of law, we find that the F.I.R. and the prosecution evidence reveal that the deceased was the wife of the offender. A daughter namely, Mst. Amina was born from their wedlock. Mst. Amina is alive. She is a ' Wali' of the deceased and is also the direct descendant of the offender/petitioner. From the judgment of the trial Court and the Appellate Court it is very much obvious that both the learned Courts were fully aware of this aspect of the case. Yet, the offender has been sentenced to death as Qisas under section 302(a) of P.P.C: whereas provisions of section 306(c), P.P.C. clearly lay down that Qatl-i-Amd committed by the husband of his wife leaving behind child/children is not liable to Qisas, under section 308, P.P.C. which does not provide death penalty, so we are in no manner of doubt that the trial Court and also the learned Appellate Court had no lawful authority/jurisdiction/power whatsoever to convict the petitioner under section 302, P.P.C. or to impose penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the accused from the statute. If the statute does not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same, and, as such, the conviction and sentence of the petitioner recorded under section 302. P. P. C is coram non Judice."

27. The same view was reiterated by the apex Court in cases of Muhammad Ikram and Dilbagh Hussain (supra).

28. In Abdul Zahir v. State (Volume XXI Appeal Cases (2000 AC) 301), a larger Bench of the Supreme Court, consisting of seven Judges has pointed out the distinction between the cases of Qatl-i-Amd where the punishment of Qisas is not applicable and cases of Qatl-i-Amd which are not liable to Qisas as follows:--

29. "A bare reading of clause (c) reveals that section 306 is applicable to cases of Qatl-i-Amd which are not liable to Qisas, whereas, Qatl-i Amd not liable to Qisas is indeed punishable under section 308. There is distinction, albeit very slight, between Qatl-i-Amd to which punishment of Qisas is not applicable and that of Qatl-i-Amd which is not liable to Qisas. A bare reading of section 308, P.P.C. would show that where offender is guilty of Qatl-e-Amd not liable to Qisas under section 306 or Qisas is not enforceable under clause (c) of section 307, shall be liable to Diyat."

30. In the instant case, the facts are not disputed that the allegation against the appellant is of murder of his own wife master Khurrum and Miss Anam are direct descendants of the appellant being son and daughter and Wali' of the victim Mst. Naheed.

31. Mr. Habib Ahmed, learned A.A.-G. has frankly and rightly conceded to the contentions of the learned counsel for the appellant that the conviction of the appellant under section 302, P.P.C. and the sentence of death awarded to him by the trial Court are without justification, to award the same. 'Wali' (son and daughter) of the victim are direct descendants of A the appellant. Language of section 306 and 308, P.P.C. is plain enough to show that Qatl-i-Amd' committed by the appellant is not liable to Qisas, and therefore, Qatl-i-A md not liable to Qisas is punishable under, section 308 P.P.C, So, the appellant could be convicted under section 308, P.P.C. and not under section 302, P.P.C. as Qisas or Ta'zir. The Courts derive authority to punish the accused from the Statute. If the statute does not provide death penalty for the offence then obviously the Court would have no justification to award the same, and as such, the conviction and sentence of the appellant recorded under section 302 was coram non judice. We are not hesitant in observing that learned trial Court had awarded the appellant with a sentence not provided under the law, which is a sharp reflection of in competency, insufficiency and ignorance of law on the part of the trial Judge.

32. Adverting to merits, the learned counsel for the appellant, inter alia, raised the following points:--

33. (1)'That the F.I.R has been lodged with delay, which has not been explained. Therefore, possibility cannot be ruled out that report was lodged with deliberations and consultation to implicate the appellant.

(2) The learned trial Court has erred by passing the conviction on the testimony of P.W. Khurrum, a child witness. It is not safe to base conviction on such evidence particularly in a murder case.

34. Reverting to the ground of delay in lodging of the report, the learned counsel's contention was that the incident is of 9-00 a.m. the Investigating Officer reached at the Vardat in company of P.W. Javed. In his presence, the deceased was removed. to the hospital but F.I.R was not recorded and the Investigating Officer left the Vardat and reached the hospital and then he recorded the 154, Cr.P.C. statement of informant Javed, thus there is delay of about two hours which has not been explained as to why the F.I.R. was not recorded when the P.W. Javed was present at Vardat as well as the Investigating Officer, which creates doubt and possibility cannot be ruled out that the report was lodged after consultation and deliberations to implicate the appellant arid to support his contention, he has referred the case of Muhammad Ahmad v. The State (1995 SCMR 127) on following observations:--

35. "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution, may wish to implicate."

36. Secondly learned counsel for the appellant has vehemently contended that the learned trial Court has erred in accepting the ocular testimony furnished by the child witness Khurrum, who was admittedly aged about-four years and just after the incident was produced before the P.W. Muhammad Ali, A.C.M. and his statement was not recorded, as he was of tender age not able to give statement: The note arid observation recorded by the learned Magistrate have been reproduced in earlier part of the judgment, which supports this contention:

37. Mr. Mahmood A. Qureshi contended that the superior Court time and again have cautioned against acceptance of the testimony of child witnesses who are most untrustworthy class of witnesses, for being of a tender age, they 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. Elaborating this plea, it was pointed out by Mr. Mahmood A. Qureshi that Master Khurrum, just after the incident, had not named his father ors assailant. He was produced before Magistrate on 28-6-1992 for his statement but P.W. Khurrum was not able to give evidence; after the occurrence, he remained in the association of the maternal uncle and maternal grandmother, thus possibility cannot be ruled out that he has been tutored what stated before the Court after about two years. To support his contention, he referred the cases of (1) Abbas Ali Shah v. Emperor (AIR 1933 Lahore 667), (2) Sona Miah v. The State (PLD 1960-Dacca 396), (3) Sultan and another The State (PLD 1965 (W.P) Karachi 615) and (4) The State. v. Mahmood Ashraf Khan and another (1987 PCr.LJ 2144).

38. Article 3 of Chapter II of Qanun-e-Shahadat Order, 1984 contains the provisions, with regard to competency of the witnesses that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender year, extreme old-age, disease, whether of body or mind, or any other cause of the same kind.

39. The only incompetency that the Qanun-e-Shahadat Order recognizes is incompetency from immature or defective intellect. This may arise from (i) Infancy, (ii) Idiocy, deafness, dumbness, (iii) lunacy (iv) illness. No precise age limit can be given as the person of same age differ in mental growth and their ability to understand the questions and give rational answers. Sole test is whether the witness has sufficient intelligence to depose. In determining the question of competency, the Court under Article 3 of Qanun-e-Shahadat Order, 1984 has to test the capacity of a witness to depose by putting proper question. It has to ascertain in the best way it can whether from the extent of his intellectual capacity and understanding he is able to give rational account of what he has seen or heard on a particular occasion.

40. Celebrated Author of Sarkar's Law of Evidence (15th Edition, 1999) at page 1959, has cautioned the Court while accepting the testimony or "a child .witness" that Court should examine the evidence of child witness with care and caution bearing in mind the susceptibility and possible immaturity of the child. "A child witness may or may not be fully matured. By virtue of his tender years he is susceptible to tutoring by persons interested in the case by near relations. A child witness is susceptible to influence from such persons".

41. The testimony of child witness should only be accepted after greatest caution and circumspection. The rational for this is that it is common experience that a child witness is most susceptible to tutoring. Both on account of fear and inducement, he can be made to depose about a thing which he has not seen and once having been tutored, he goes on repeating in a parrot-like manner, what he has been tutored to state. Such witnesses are most dangerous witnesses.

42. In this connection, a passage may be quoted from Dr. Kenny Downing's (Profession of Laws of Englander, Cambridge University), book titled 'Outlines of Criminal Law' at page 386:--

43. "Children are most untrustworthy class of witnesses for when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeal glibly of the own knowledge what they have heard from others and greatly influenced by fear of punishment, by hope of reward and desire of notoriety."

44. In Manni v. Emperor (AIR 1930 Oudh 406), the Court commented on testimony of child witness as follows:--

45. "There is no more dangerous witness than young children. Any mistake or discrepancies in their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well-taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make believe so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate. The evidence of a child should therefore, be accepted with great caution".

46. In Jalwanti Lodhin v. The State (AIR 1953 Patna 246) the Division Bench of Patna High Court commented on the credibility of child evidence as follows:--

47. "Though according to section 118, Evidence Act, a child of 6 or 7 years is a competent. witness to give evidence in Court, as, it appears from her deposition, she could understand the question put to her and give rational answers thereto. It is well-settled that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. There should be closer scrutiny of the evidence of child witnesses before the same is accepted by a Court of law."

48. In Sultan v. The State (PLD 1965 Karachi 615), the Division Bench of this Court ruled that conviction cannot be based on sole testimony of child witness.

49. In Sona Miah v. The State (PLD 1960 Dacca 396), the Division Bench of Dacca High Court ruled that witness is a child who is capable of being tutored and it transpires that she has made a lot of improvements on her original story. In these circumstances, we do not think that it would be safe to accept her evidence on the point of recognition of the person who are implicated in the occurrence which is the subject-matter in this case.

50. The whole controversy centres around the evidence of Master Khurram, P.W.7 aged about four years at the time of incident, who came while crying and weeping and asked P.W. Navaid, the younger brother of the complainant "that what happened to Mummi, go and see her". He was, thereafter, produced on 28-6-1992 before the Magistrate, who after questioning him was of the view that he is not able to give evidence being of tender years. At the trial, he deposed that incident had taken place during the night time. It was 1 or 2 in the night he was sleeping when he woke-up on the cries of his mother. In electric light he saw his father attacking his mother on head and other parts of her body with, iron Sowa used for breaking ice. Thereafter, he strangulated his mother with Duppata. He became afraid, he closed his eyes and he got up in the morning. When he got up in the morning neither his mother was there nor his father, then he went to the house of P.W. Mst. Aneesa and inquired from her about his mother as to whether she had come. She informed him that his mother perhaps had Bone to get breakfast. Thereafter, he returned to his house where he started playing. His sister Anam demanded the ball from him. While playing, the ball had gone under the cot and his sister informed him that their mother was lying under the cot. He asked his sister to bring water, He threw water on face of his mother but she did not get up and he went again to P.W. Aneesa and informed that their mother was unconscious, who informed P.W. Ismail who came with him and after removing the Gudda (mattress) he told that she has died and he may inform his grandmother. He went and informed his grandmother that mother has died and on this his grandmother and his three maternal uncles came to their house.

51. We have reproduced the statement of P.W. Khurrum only to show that a child who was not able to understand the questions put to him and to give rational answers thereto before the Magistrate, has given a different story by improving the earlier version of the incident disclosed by him to P.W. Navaid in presence of P.Ws. Muhammad Javed and Mst. Jameela. He is admittedly residing with prosecution witnesses, Mst. Jameela, Javed and Navaid, thus his testimony appears to be a tutored one. It is also against the human conduct, particularly of a child, that a child of tender age after witnessing such incident will go for sleep and would wake-up in the morning finding mother and father absent from his house, goes for inquiring about whereabout his mother, thereafter, wi11 start playing with his sister and during play finds his mother in such condition. Therefore, we are of the view that P. W. Khurrum, a child of tender years cannot be teller of true story of the occurrence. Conviction for murder charge cannot be based on testimony of such witness.

52. Learned Assistant Advocate-General has frankly conceded that the witness Khurrum was not able to give rational reply to the question put to him by the Magistrate just after the incident and that subsequently at the trial after 2-1/2 years of the incident, what has been deposed by him could be the outcome of tutoring therefore, such testimony cannot be the basis of conviction in a murder case, when the said witness remained in the custody and care of grandmother and maternal uncle, which is fatal to the prosecution case.

53. When the prosecution case is solely resting on the evidence of a child i.e. P.W. Khurrum, apparently his testimony is tainted with infirmities pointed out above, and the version as given by him is nothing but an outcome of tutoring. It is unsafe to base conviction on such evidence particularly in murder case, when this witness has given a different story implicating his own father from the earliest version narrated by him to the prosecution witnesses" what happened to Mummi go and see her".

54. The next piece of evidence is of recovery of clothes and the crime weapon pointed poker (Swua) allegedly produced by the appellant and clothes of the appellant consisting of shirt and Shalwar produced by P.W. Javed. The articles were sent for Chemical Analysis. The reports in respect of these articles are positive but the memos. securing clothes (Exh.24) and recovery of crime weapon (Exh.12) are silent about the presence of blood on these articles. P.W. Muhammad laved had shown his suspicion that accused was wearing those clothes at the time of incident and might have washed the same in order to remove the blood from the clothes, the same will not furnish the corroboration, for the reasons that he is not an eye-witness of the occurrence nor the blood was noticed on the clothes at the time of seizure. His evidence is nothing but hearsay, in absence of blood on these articles at C the time of seizure, the chemical report which is positive will not connect these articles in the crime, thus of no evidentiary value.

55. The possibility cannot be ruled out that the incident is an unwitnessed crime. The report implicating the appellant in the crime has been lodged with delay, the time consumed in deliberation and consultation. The testimony of P.W. Khurrum, a Child witness who did not implicate the appellant at the earliest opportunity when he disclosed the occurrence to P.Ws. and subsequently at the trial he implicated his own father after' remaining in custody and care of prosecution witnesses, therefore, his testimony could not be made the basis 'of conviction. The appellant is, I therefore, entitled to the benefit of doubt which was withheld by the trial Court without support of sound reasons.

56. From the above reasons, we have not supported the conviction of the appellant. The appeal was allowed by short order dated 14-2-2003. The conviction and sentence were set aside and the appellant was acquitted of the charge. As a consequence thereof, the reference was answered in negative.

57. These are the reasons of short order announced on 14-2-2003.

58. N.H.Q./M-473/K. Appeal allowed.