' MUHAMMAD FARRUKH MAHMUD, J.---Naseem Akhtar alias Asghar and Muhammad Arshad were tried by the learned Sessions Judge, Okara, in case F.I.R. No,167 registered at Police Station, Hujra Shah Muqeem on 17-4-1997 for offences under sections 302/109/34, P.P.C. For having committed quadruple murder of Burhan, Mst. Khurshid Bibi, Mst. Nazira Bibi and Mst. Sakina Bibi. Vide judgment dated 26-9-2001, the learned trial Court convicted both Naseem Akhtar and Muhammad Arshad for offence under section 302(b) read with section 34, P.P.C. On each count and sentenced each of them to death on each count. They were further directed to pay Rs,50;000 each on each count to the legal heirs of the deceased, in default in payment whereof to undergo S.I. For six months' each on each count.
2. Naseem Akhtar alias Asghar and Muhammad Arshad have challenged their conviction and sentence by filing Criminal Appeal No,1514 of 2001. Murder Reference No,630 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellants has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. It may be mentioned here that about the same occurrence, Mst. Hameedan Bibi daughter of Nawab Din filed a private complaint against the appellants and five others including Muhammad Anwar, eye witness in the challan case. Vide judgment of even date, i.e, 26-9-2001, handed down by the learned Sessions Judge, Okara, the rest of the accused were acquitted, while the complaint against the appellants was disposed of, as they had been convicted in the challan case. No findings were recorded against the appellants. The appellants, however, as abundant caution (para.2 of the appeal) filed Criminal. Appeal No,1644 of 2001 against the judgment recorded in complaint case as well. The said appeal has also been fixed for hearing today. In view of the judgment passed by the learned trial Court in challan case dated 26-9-2001 whereby the appellants were convicted and in the presence of Criminal Appeal No,1514 of 2001 filed-by the appellants against their conviction in the challan case, we dispose of Criminal Appeal No,1644 of 2001 arising out of complaint case as having become infructuous.
4. The brief facts of the prosecution case per F.I.R. Exh.PN recorded by. Muhammad Javed Raza, S.- I./P.W.14, at the instance of Muhammad Anwar, complainant/P.W.12, are that Burhan (deceased) was maternal grandfather of the complainant and had two daughters Mst. Nazira Bibi and Mst.
Sakina Bibi. The deceased Burhan owned four Acres of land which was being cultivated by him.
Muhammad Ihsan, younger brother of Burhan, demanded the hand of Mst. Nazira Bibi (deceased) for his son Naseem Akhtar alias Asghar (appellant), which demand was declined by I3urhan. Then Ihsan asked Burhan that if he was not willing to marry his daughter with Naseem Akhtar, he should transfer his land in favour of Naseem Akhtar. Burhan also refused to do so. On the night in between 16/17-4-1997, Burhan and his family members were sleeping on cots in their courtyard. At. About 2- 00 a.m. On hearing the sound of fire shots, the complainant along with his brother Muhammad Yaseen, Muhammad Aslam/P.W.13 and others went into the compound of the house of Burhan and saw in the light of lantern and moon that Naseem Akhtar armed with .44 bore rifle and Muhammad Arshad armed with hatchet were standing near the cots of Burhan etc. Naseem Akhtar fired shots from his rifle at Burhan, Mst. Khurshid Bibi, Mst. Nazira Bibi and Mst. Sakina Bibi, whereas Muhammad Arshad caused hatchet blows on different parts of their bodies. As a result thereof all of them succumbed to the injuries at the spot. The complainant and the P.Ws., while raising hue and cry, tried to apprehend the accused, who, while brandishing their weapons, threatened the P.Ws. With dire consequences and fled away from the scene of occurrence. It was further alleged in the F.I.R. That both the accused had committed the murders on the abetment of Ihsan.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Javed Raza, S.-I./P .W.14. He proceeded to the place of occurrence. He prepared inquest report Exh.PS and injury statement Exh.PS/1 of Mst. Nazira Bibi, inquest report Exh.PT and injury statement Exh.PT/1 of Mst. Khurshid Bibi, inquest report Exh.PU and injury statement Exh.PU/1 of Mst. Sakina Bibi and inquest report Exh.PV and injury statement Exh.PV/1 of Burhan; and sent the dead bodies for post-mortem examinations. He then collected blood-stained earth from underneath the cots of the deceased and sealed the same into parcel vide memos. Exhs.PN, PP, PQ and PR. He prepared the rough site-plan Exh.PC/1 of the place of occurrence. He got prepared scaled site-plan Exhs.PG and PG/1 from the draftsman. He arrested Naseem Akhtar and Muhammad Arshad, appellants on 5-5-1997. On 9-5-1997 Naseem Akhtarappellant led to the recovery of .44 bore rifle P-8 which was taken into possession vide memo. Exh.PC. On the same date, Muhammad Arshad appellant led to the recovery of blood-stained hatchet P-9 which was taken into possession vide memo. Ehx.PD.
After completion of investigation, both the appellants were sent up to face trial.
6. To substantiate its version at the trial, the prosecution produced fourteen witnesses in all. Ocular account was furnished by Muhammad Anwar/P.W.12 and Muhammad Aslam/P.W.13. In addition to that, they also stated about the motive. Farooq Ahmad, Constable/P.W.2 stated about the recovery of rifle and bloodstained hatchet at the instance of the appellants. Dr. Muhammad Yahya/P.W.8, who conducted post-mortem examination on the dead body of Burhan on 17-4-1997, while observing four incised wounds and nine fire-arm wounds on the person of the deceased, opined that the cause of death was haemorrhage and damage to vital organs, i.e, skull, lung, spleen, due to injuries Nos.1, 2, 3, 4, 5 and 11, which were quite sufficient to cause death in the ordinary course of nature. According to the doctor, the death was immediate, while the duration between the death and postmortem examination was within 24 to 36 hours. On 18-4-1997, Lady Dr. Nadra Jabeen Qureshi/P.W.9 conducted postmortem examination on the dead body of Mst. Nazira Bibi deceased.
She, while observing seventeen injuries (1 to 12-B) on her person, opined that injuries Nos.1 to 7 were caused by sharp-edged weapon and Injuries Nos.8 to 12-B by fire-arm weapon. The cause of death was Injury No,1 leading to damage to vital structure (brain) and Injuries Nos.10 and 11 leading to damage to the vital organs and liver and also haemorrhage shock. According to her Injuries Nos.1, 10 and 11 individually and collectively were sufficient to cause death in the ordinary course of 'nature. According to her, death was immediate, while the time which elapsed between death and postmortem examination was about 32 hours. On the same date, she also conducted autopsy on the dead body of Mst. Sakina Bibi and found eleven injuries (1 to 8-B) on her person. According to her, Injuries Nos.1 to 5 were caused by sharp-edged weapon, while Injuries Nos.6 to 8 were caused by fire-arm weapon. In her opinion, the cause of death was Injuries Nos.1 and 2 leading to damage to vital structure (brain) and Injuries Nos.6 and 7 leading to damage to lungs and liver and also haemorrhage shock. According to her, Injuries Nos.1, 2, 6 and 7 were individually and collectively sufficient to cause death in ordinary course of nature. The duration between injuries and death was immediate, while it was about 32 hours between death and postmortem examination. On the same date, she conducted post-mortem examination the dead body of Mst. Khurshid Bibi. The lady Doctor, while observing eleven injuries (1 to 5-A) on the person of the deceased, opined that Injuries Nos.1 to 5 were caused by fire-arm weapon, while Injury No,6 was caused by sharp-edged weapon.
According to her, cause of death was Injury No,1 leading to damage to brain and Injuries Nos.2 to 5 leading to damage to lung, liver and heart and haemorrhagic shock. The duration between injuries and death was immediate, while the time which elapsed between death and post-mortem examination was about 34 hours, Muhammad Javed Raza, S.-I./P.W.14, stated about the registration of the case and the investigation thereafter.
7. In their statements recorded under section 342, Cr.P.C., both the appellants pleaded their innocence and false implication due to previous enmity. According to Naseem Akhtar, appellant, it was an unwitnessed occurrence. Some unkown persons committed dacoity in the house of the deceased and during that process, the accused committed the murders of the four deceased and also took away household articles. According to Muhammad Arshad appellant, one day prior to the occurrence, an altercation, between him and the complainant took place and the complainant had threatened him to teach a lesson therefor. So on account of that, the complainant had involved him falsely in this case. However, none of the appellants appeared as their own witnesses under section 340(2), Cr.P.C. Nor they produced any witness in their defence.
8. Learned counsel for the appellants contends that the occurrence took place in the dark of the night; that the matter was reported to the police after 7 1/2 hours of the occurrence, which means that the P.Ws. Were not present at the time of occurrence; that the P.Ws. Did not say anything about the crime empties and no crime empty was recovered from the scene of occurrence; that there is conflict between ocular account and the medical evidence. The learned counsel has referred to injuries inflicted upon Mst. Nazira Bibi. Further contends that the story of the prosecution is not plausible, as the injuries with gun and hatchet could not be caused simultaneously; that if the P.Ws.
Had been present at the time of occurrence; they would have met the same fate and would not have been spared by the assailants; that it was not mentioned in the F.I.R. That the complainant went to the house of Aslam and from there Aslam and complainant went to the compound of Burhan and saw the occurrence; that both the P.Ws. Have contradicted each other on material points; that P.W.12 was a chance witness who had no occasion 'to be present at the time of occurrence; that the P.Ws. Firstly implicated Ihsan father of Naseem Akhtar and then submitted affidavits to the I0 exonerating Ihsan; that unexplained delay in F.I.R. Makes it manifest that none of the P.Ws. Was present at the time of occurrence; that the prosecution failed to prove motive as set down in the F.I.R. By exonerating Ishan; that in the absence of motive, there was no occasion for the appellants to cause the murders of their near relatives; that the P.Ws. Have implicated both the appellants merely on suspicion due to previous enmity; that a case under Hudood laws was got registered against Muhammad Rafi, brother of Muhammad Aslam/PW. 13, at the instance of Ihsan father of Naseem Akhtar that the ocular account is not supported by any corroborative evidence; that the recovery was planted upon the appellants. The learned counsel has referred to the cross- examination of P.W.2 at page 63 of the Paper Book, wherein it is mentioned that the witness did not remember the time of recoveries nor he remembered when he left the police station to reach the place of recoveries; and that the provisions of section 103, Cr.P.C. Were violated with impunity.
9. Conversely, the learned counsel appearing on behalf of the State have submitted that the P.Ws.
Were not unnatural witnesses, as P.W.13 was next door neighboured while P.W.12 lives at a distance of two houses; that the ocular account was fully supported by medical evidence; that both the witnesses had no previous ill-will or enmity whatsoever to involve the appellants in a false case; that P.W.12 was related to both the parties; that he would not have involved his close relatives in a false case; that the prosecution successfully proved the motive set down in the F.I.R.; that four persons have been murdered ruthlessly and it was not a case of substitution at all. They support the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties and have also scanned the entire record with their assistance.
11. The prosecution case rests on the statements of Muhammad Anwar, complainant/P.W.12, and Muhammad Aslam/P.W.
13. Muhammad Anwar is equally related to both Burhan deceased and Ihsan/father of Naseem Akhtar appellant, who is younger brother of Burhan deceased. In between house of Muhammad Anwar and the place of occurrence there were two houses, while the house of P.W.13 was adjacent to the house of deceased Burhan. Both of these witnesses had no ill-will or any serious enmity against the appellants so as to involve them in a false case. It was suggested to P.W.12 that Burhan was willing to marry his daughter Mst. Nazira Bibi deceased with Naseem Akhtar appellant. He opposed that match and demanded the hand of Mst. Sakina Bibi for his brother Yasin. Though the suggestion was denied but even if it is accepted for the sake of argument, the fact remains that Anwar was seeking the hand of Mst. Sakina Bibi for his brother Yasin and not the hand of Mst. Nazira Bibi. Hence, there was no occasion for Muhammad Anwar to feel aggrieved over the fact that Burhan deceased wanted to marry his daughter Mst. Nazira Bibi with Naseem Akhtar. Knowing fully well that no dispute existed between Arshad appellant and Muhammad Anwar, a bald suggestion was made to Muhammad Anwar that a day prior to the occurrence he had an altercation with Muhammad Arshad at Adda Morook Kalan and threatened him with dire consequences. The suggestion was denied and is not supported by any evidence. Even otherwise for minor altercations, the witness would not. Have involved an innocent man in a case of quadruple.Murder of his near ones. The argument of the learned counsel that P.W.13 was inimical towards the appellants is also without any force. According to cross-examination, 6/7 years prior to-this occurrence, Ihsan father of Naseem Akhtar appellant got registered a Hudood case against Muhammad Rafi brother of Muhammad Aslam. The story ends here. What happened in the case is not available on the record. However, it was Ihsan father of Naseem who got the case registered against brother of Muhammad Aslam. What is available on the record is that during investigation, Muhammad Aslam and Muhammad Anwar, P.Ws., gave affidavits in favour of Ihsan who did not face trial in the instant case. Both these witnesses have given consistent account of the occurrence. They were subjected to very lengthy cross-examination but no material contradiction could be brought on record between the statements of the two eye-witnesses. Both the witnesses have stated that as the outer gate of the house of Burhan was locked from inside, they went to the house of Burhan through the intervening wall in between the houses Muhammad Aslam and Burhan, as the same was demolished. The minor contradictions pointed out by the learned counsel for the appellants are in fact explanations relating to the details of the occurrence. It was observed by the apex Court in the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758) as follows:- "However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions."
' Both the witnesses stated that at the time of occurrence a lantern was on and this fact was never challenged. Even otherwise, Naseem Akhtar was closely related to both the P.Ws. And his identification -was never in doubt. Similarly, it is nobody's case that Arshad appellant- was not previously known to the P.Ws. The learned counsel has vehemently- argued that it was not plausible that injuries were caused to the deceased simultaneously by the fire' arms and hatchet.
The argument of the learned counsel is attractive but has no force, as it was not stated by the P.Ws.
That injuries were inflicted upon the deceased simultaneously. The version of the P.Ws. Was that the deceased received fire- arm injuries caused by Naseem Akhtar with his rifle and the injuries caused by Arshad appellant with hatchet. They were not further cross-examined on this point. It cannot be presumed that the injuries were inflicted simultaneously. The fact remains that the deceased received injuries with two different types of weapons. The four deceased received about fifty two injuries with different weapons during the occurrence and the assailants spend considerable time in the house of the deceased. Hence, the arrival of the P.Ws. After hearing the report of fires was not unnatural.
12. According to the learned counsel, the ocular account was in conflict with medical evidence. He has referred to the statement of Lady Dr. Nadra Jabeen Qureshi/P.W.9, who conducted postmortem examination on the dead.Bodies of Mst. Nazira Bibi, Mst. Sakina Bibi and C Mst. Khurshid Bibi, wherein injuries have been described as "lacerated wounds"-. So according to the learned counsel, the version of the P.Ws. That Arshad caused injuries with hatchet was belied by the medical evidence. Perusal of the statement of the lady doctor reveals that after conducting the post- mortem examination of D Mst. Nazira, she opined that all the injuries were ante-mortem. Injuries Nos. l to 7 were caused by sharp-edged weapon and injuries Nos.8 to 12 by fire-arm weapon. She also mentioned in the repot that Injuries Nos.8, 9, 9-A, 9-B, 10, 10-A, 11, 12, 12-A and 12 were caused by a bullet like thing. She also mentioned in the report that nasal bone was cut down and ulna was also cut down. Similarly, after conducting postmortem examination of Mst. Sakina Bibi, she opined that all the injuries were ante mortem. Injuries Nos.l to 5 were caused by sharp-edged weapon and Injuries Nos.6 to 8 were caused by fire-arm weapon. She further mentioned that the fire-arm injuries were caused by a bullet like thing and also mentioned that mandible was cut down.
Likewise, the lady doctor after conducting post-mortem examination of Mst. Khurshid Bibi opined that all the injuries were ante mortem. Injuries Nos.l to 5 were caused by fire-arm weapon and Injury No,6 was caused by sharp-edged weapon. The lady doctor was not cross-examined at all and her statement remained unchallenged. In the circumstances, it cannot be said that injuries were not caused by a sharp-edged weapon. It appears that the lady doctor inadvertently mentioned the incised wounds as "lacerated wounds". Furthermore, Dr. Muhammad Yahya/P.W.8, who had conducted post-mortem examination on the dead body of Burhan, clearly stated that Injuries Nos.l to 4 were incised wounds, while Injuries Nos.5 to 13 were caused by fire-arm weapon.
Hence, the statements of the P.Ws. That the deceased received injuries by fire-arms and hatchet have been fully supported by the medical evidence.
13.
13. Both the P.Ws. Muhammad Anwar and Muhammad Aslam have also stated about the motive as set down in the F.I.R. As against that, no other motive is available on the record. As already discussed above, Muhammad Anwar, according to defence, was interested in the marriage of his brother Yasin with Mst. Sakina Bibi and not with Mst. Nazira Bibi. The defence plea that some dacoits had committed the occurrence is confined to suggestions alone and is not supported by any evidence. It was not even suggested to the 10 that some theft was committed. It was suggested to the P.Ws. That Mst. Hameedan had filed a complaint, which, according to defence plea, was supported by P.Ws. Haji Muhammad Afzal and Muhammad Ashfaq but neither Mst. Hameedan nor the aforesaid two witnesses were produced in defence in the instant case. The number of injuries on the persons of the deceased makes it manifest that it was act of the assailants who had deep- rooted grudge against the deceased. It is common knowledge that thieves and robbers are interested in the booty and leave the place of occurrence as soon as possible. They use their weapons only when there is,fear of apprehension.
14. According to the learned counsel, the recoveries were not worthy of any credence. He has referred to the statement of P.W.2/Constable, who admitted during cross-examination that he did not remember the time of recovery and also did not remember when he left the police station for the place of recoveries. We agree with the learned counsel that the evidence of recovery of weapons is not worthy of credence, as no one from the inhabitants of locality was associated with the recovery proceedings and the rifle recovered was not sent to the Forensic Science Laboratory.
The learned counsel also argued that nonrecovery of crime empties from the spot casts doubt on the statements of the eyewitnesses. We fail to agree with the learned counsel, as neither the place of occurrence was challenged nor the fact that all the deceased received fire-arms injuries was challenged. P.W.12 stated that empties were recovered from the spot. If the same were not sealed into parcel, it was lapse on the part of the I.O. And would not benefit the defence in any manner.
15. The upshot of the whole discussion is that P.Ws. Muhammad Anwar and Muhammad Aslam, who were equally related to appellant Naseem Akhtar and had no motive to falsely implicate Arshad in the case, have given a consistent, coherent, natural and trustworthy account of the I occurrence which was free from any exaggerations, as in view of the number of injuries, more persons could easily be implicated. The incriminating evidence furnished by the two witnesses could not be shaken during the very lengthy cross- examination. Their statements are fully supported by medical evidence and corroborated by the circumstances of the case. No mitigating circumstances exist in favour of the appellants who acted in a brutal and barbaric manner. The prosecution has successfully proved its case against the appellants. Hence, the appeal is dismissed and the judgment passed by the learned trial Court is maintained. The death sentence is confirmed. The Murder Reference is answered in the affirmative.