' HASNAT AHMAD KHAN, J.---Khadim Hussain, appellant has challenged his conviction and sentence, recorded by learned Additional Sessions Judge, Gujrat, Camp at Kharian, vide his judgment, dated 26-6-2002, in case F.I.R. No.503 of 2001, dated 9-7-2001 under sections 302/452/109, P.P.C. Registered with Police Station Kharian, District Gujrat, whereby he was sentenced to death under section 302(b), P.P.C. With a direction to pay Rs. 25,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased, or in default of payment thereof, he was ordered to undergo further imprisonment for six months. He was also awarded punishment for 4 years' R.I. Under section 452, P.P.C. Fazal, Hussain, Mst. Rashida Bibi and Asif, co-accused of the appellant were acquitted by the learned Addl. Sessions Judge, because, according to him, the offence of abetment and instigation was not proved against them.
2. Feeling dissatisfied with his conviction and sentence, the appellant has sent a Criminal Appeal No.272-J of 2002 through the concerned Superintendent Jail, while the trial Court has made a reference (Murder Reference No.519 of 2002) for confirmation or otherwise, of the death sentence, awarded to the appellant. Through this single judgment we intend to dispose of both, the said matters.
3. The prosecution's story in brief, as narrated by the complainant, Bashir Ahmad (P.W.5), in the F.I.R., was to the effect that on 9-7-2001 at 9-30 a.m., he along with his wife Mst. Fatima Bibi, daughter Mst. Rasheed Begum and grand-daughter Mst. Shameem, aged 3 years, was present in his house, when all of a sudden, Khadim Hussain-appellant, alias Khadu, armed with a machete/chhuri, came into sight and raised a lalkara that he would kill Mst. Rasheed Begum and her daughter Mst.
Shameem. Thereafter, he went to the bathroom, where Mst. Rasheed Begum and her daughter were present, and slit their throats open with his machete/chhuri. Both, mother and daughter, allegedly succumbed to their injuries at the spot.
' The motivating factor behind the occurrence, statedly, was that the complainant had refused to give her daughter Mst. Rasheed Begum (slain) in marriage to her ex-husband, Muhammad Asif/acquitted co-accused for the second time, and due to that the appellant, who is brother of the said Asif, butchered Mst. Rasheed Begum (slain) and her daughter Shamim (deceased).
4. After reaching the place of occurrence on 9-7-2001, the Investigating Officer Asif Hameed Joia, Inspector/S.H.O. (P.W.10) recorded the statement of the complainant (Exh.PD), which was, later culminated into a formal F.I.R., collected bloodstained earth vide recovery memos. Exh.PE and Exh.PF, respectively, which were attested by P.Ws., took into possession the last worn clothes of both the deceased vide recovery memos. Exh.PD and Exh.PC, respectively and prepared injury statements (Exh.PN) and Exh.PO, respectively, inquest report (Exh.PL), drafted applications for autopsy Exh.PQ and Exh.PR, prepared site plan (Exh.PK) and recorded the statements of P.Ws. Under section 161, Cr.P.C.
5. The Investigating Officer arrested the appellant on 25-7-2001 and got his physical remand.
During the investigation, on 5-8-2001, on the pointing out of the appellant, he recovered a chhuri (P.1) and took it into possession vide recovery memo. Exh.PA, which was attested by Hameed-ul- Rehman P.W.1 and Sajjad Ahmad given up P.W. He also prepared site plan of the place of recovery of chhuri, which is Exh.PA/1. On 13-8-2001, he also arrested the other three accused, namely, Fazal Hussain, Muhammad Asif and Mst. Rashidan Bibi, and after completing the investigation, challaned all the accused under sections 302, 452, 109, P. P. C .
6. The appellant was indicted on the charge of homicide of Mst. Rasheed Begum and her minor daughter/kid Shamim (slain). During the trial, the prosecution, in support of its case, produced as many as 10 witnesses. Hameed-ur-Rehman appeared an i".W.1 and deposed about recovery of chhuri (P.1) on the pointing out of the appellant from his house vide recovery memo. Exh.PA, which was attested by him and Sajjad Ahmed, given up P.W., besides the investigating officer. Allah Ditta appeared as P.W.2 and stated that he had identified the dead bodies of the deceased. Besides, he proved the fact of production of their last worn blood-stained clothes, i.e. Shirt (P.2), Brazzier (P.3), Shalwar (P.4) and underwear (P.5) by Abdul Shafat, Constable. The said clothes, according to P.W.2 were taken into possession by the I.O. Vide recovery memos. Exh.PB and PC. The said witnesses also gave ocular account of the occurrence and about relationship of the accused intense. Mazhar appeared as P.W.3 and briefly stated about the occurrence. P.Ws., 4, 6 and 7 are formal witnesses and need not be discussed here. ,Bashir Ahmad, who had triggered the criminal proceedings, stepped forward as P.W.5 and reiterated the story mentioned by him while putting the legal proceedings into the motion.
7. Dr. Robina Sajid, who had conducted the postmortem examination on the dead-bodies of Mst.
Rasheed Begum 21, and Mst. Shameem 3, appeared in the witness box as P.W.8 and gave the detail of the injuries on their dead-bodies as under:-- Injuries on the dead-body of Mst. Shameem:-- "(i) An incised wound on the neck extending from the right side just below a line drawn from the lobule of right ear to the left side of back of neck measuring 12 x 4 cm.
(ii) An incised wound on the right arm entrolaterally in the middle measuring 3 x 1 cm Hoid bone was broken in injury No. 1."
' In her opinion, all the injuries were ante-mortem and caused by sharp edged weapon, which lead to cross section of carotid artries leading to hemorrhage and shock and death in ordinary course of nature. The probable time between the injuries and death, according to the P.W.8, was 15 minutes.
' On the same day, the said lady doctor also conducted the postmortem examination on the corpse of Mst. Rasheed Begum and found the following injuries on the dead-body:- "(i) An incised wound extending from neck of right side of neck to the left side of neck in a line below the lobule of ear measuring 19 x 4 c.m.
(ii) Incised wound on the left distal phalanx of left three fingers except the little finger.
(iii) Incised wound on the left forearm on the flexer surface on lower 1/4 . "
' In her opinion, all the injuries were ante-mortem and caused by sharp edged weapon which lead to cross section of the carotid arteries leading to hemorrhage and shock and death occurred in ordinary course of nature. According to her, the 'time between the injuries and death was within 15 minutes. During her cross-examination, this witness stated as under:-- "It is also possible that injury on the neck of the deceased Shamim can be caused by taking her with grip of right hand and to cause injury by the left hand."
8. Akhtar Naqash, Draftsman, while appearing as P.W.9, deposed about preparation of site plan which is Exh.PJ and Exh.PJ/1. Asif Haneef Joia, Inspector/S.H.O., who had conducted the investigation of the case, appeared as P.W.10 and furnished the detail of the investigation conducted by him.
Abid Hussain, C-167 (C.W.1), being formal witness, needs not be discussed.
9. The learned A.D.A. Gave up Mst. Fatima Bibi, Munawar Hussain and Sajjad, P.Ws., being unnecessary and closed the prosecution's evidence, after tendering the reports of Chemical Examiner (Exh.PS) and Exh.PT and that of Serologist (Exh.PU) in evidence.
10. After the closure of the prosecution's evidence, the statements of the appellant Khadim Hussain as well as three of his co-accused were recorded under section 342, Cr.P.C. In answer to a question, as to why the case was registered against him, the appellant replied as under:-- "In fact Mst. Rasheed Begum deceased was married with my brother Muhammad Asif co-accused on 25-9-1997 and after marriage she gave birth to a bastard female healthy child Shameem on 2- 3-1998 Le., the period of about 4-1/2. Upon enquiry from her, she stated that it is the result of illicit relations with Muhammad Amin her behnoi and due to this reason Mst. Rashid Begum deceased was stopped to visit the house of the said Muhammad Amin and I along with my family members forbid her in the name of Almighty Allah. Though the people of the locality insulted us in this regard.
She was a woman of easy virtue and she did not stop her from illicit sexual intercourse with other people. Due to her this act with different people, persons of the locality became enemies of Mst.
Rasheed Begum deceased. When she did not stop her bad habits regarding sexual act my brother separated her gently after one year. Her father was also against her due to said illicit relations with different people and they always quarrelled with each other. I along with my family members involved falsely in this case by the complainant at the instance of a son-in-law Amin and his cousin because they had become enemies since the birth of bastard girl. The P.Ws. Have not got joined the investigation by the police intentionally and deliberately who had reached at the spot as per F.I.R. As they denied to support the whole prosecution story."
' In answer to question No.10, the appellant stated as under:- "The police had falsely involved me in this case with the connivance of Amin and his cousin P.Ws.
Because of continuous of previous enmity with us. In fact, Mst. Rashida Begum and Mst. Shamim were murdered any other place and they thrown the dead bodies in the compound of Noor Hussain and complainant. Amin and his cousin taking undue benefit of this occurrence involved me and my family members. I am innocent. Though I and my other co-accused are illiterate but being Muslims I and other co-accused cannot think of the murder of Shamim and Rashida because in my view the murder is equal to kufr. Because of bad character of Rashida Begum we cannot think of re-asking the hand of her for us."
11. The appellant, however, denied to appear as his own witness under section 340(2), Cr.P.C.
Nevertheless, all the accused, produced four witnesses in their defence. Mst. Bilquees Bibi, who is mother in law of the appellant, appeared in the witness box as D.W.1 and provided the evidence regarding the plea of alibi of the. Appellant. Allah Ditta, who is cousin (khalazad) of the appellant, stepped forward as D.W.2 and ventured to prove that the unfortunate incident was an unseen occurrence. However, during his examination-in-chief, he partly admitted the motive of the murder. During his cross-examination, he further conceded that he had not seen the occurrence with his own eyes. Besides, he admitted his relationship with the appellant. One Abid came forward as D.W.3 and toed the line of D.W.2. He, however, made clean his breast by stating that he had not seen the occurrence himself and according to him, when he reached at the place of occurrence, after hearing the commotion, he had found the mother and the daughter lying dead. To further strengthen the said defence version, the appellant produced Noor Hussain as D.W.4, according to whom, some unknown persons had killed both the deceased who were lying dead in the courtyard before 8 a.m. He too, however, did not claim himself to be the eye-witness.
12. After the closure of the evidence of both the sides and hearing the arguments of both the parties, the learned trial Court handed down its impugned judgment, dated 26-6-2002, whereby the appellant was ordered to be sent to the ropes, but, of course, subject to the confirmation of his death sentence by this Court. However, all his co-accused were acquitted of the charge by the learned trial Court. The said judgment has been assailed by the appellant through the appeal in hand.
13. Learned counsel for the appellant, after pulling the prosecution evidence to pieces, has sought the acquittal of the appellant on the basis of following arguments/points:--
(i) That the appellant was booked in this case on a baseless charge;
(ii) That while convicting and sentencing the appellant, the learned trial Court failed to appreciate the fact that the prosecution could not prove its case against the appellant beyond the shadow of doubt;
(iii) That the prosecution story is neither probable nor plausible;
(iv) That the prosecution remained completely unable to prove the motive, as set up by the complainant, while lodging the F.I.R;
(v) That all the eye-witnesses are inter-related and interested witnesses;
(vii) That on the basis of the same evidence, three co-accused of the appellant were acquitted after disbelieving the prosecution's evidence, therefore, a strong and independent corroboration was required to prove the guilt of the appellant to the hilt, whereas the prosecution miserably failed to furnish independent corroboration to the ocular evidence, which is based upon the eye- witnesses who are neither trust worthy nor reliable;
(vi) That the ocular evidence is self-contradictory;
(viii) That there is a seeming inconsistency between the ocular evidence and the medical evidence;
(ix) That the evidence furnished by the defence witnesses is nearer to the truth than the ocular testimony provided by the eyewitnesses;
(x) That the occurrence took place in the dead of the night and the F.I.R. Was registered at the spot after due deliberations;
(xi) That the evidence of Noor Hussain, D.W.4, who is the real brother of the complainant, clearly established that the occurrence was not seen by the eye witnesses;
(xii) That the appellant had no motive, whatsoever, to commit the double murder, as alleged by the prosecution; and (xiii)That Mst. Rasheed Begum (deceased) was a lady of easy virtue and was done to death along with her daughter by some unknown persons.
14, Conversely, the learned Deputy Prosecutor General has refuted the arguments put forth by the learned counsel for the appellant contending that the prosecution proved its case beyond any shadow of doubt through ocular evidence, strong motive, medical evidence and factum of recovery of bloodstained machete/(chhuri) on the pointing out of the appellant; that the prosecution witnesses are independent, trustworthy and reliable; that neither the complainant nor the other eyewitnesses had any motive or reason for falsely implicating the appellant; that the evidence produced by the appellant in his defence is a pack of lies and economical with truth; that the death sentence awarded to the appellant is liable to confirmation as two innocent people were brought down to the grave by the appellant without any rhyme or reason.
15. After picking the prosecution's evidence as well as the defence version, including the evidence provided by all the defence witnesses, to pieces, we have noticed that the gruesome and tragic crime of double murder was committed in broad-daylight at 9-30 a.m. The matter was reported to the police within two hours. The raison detre behind the gory crime of double murder was stated to be that Mst. Rasheed Begum (deceased) had tied the knot with Muhammad Asif, co-accused, who is the real brother of the appellant. However, the said Asif divorced Mst. Rasheed Begum (deceased). But a year before the occurrence, he again demanded the hand of Mst. Rasheed Begum, which was refused by the complainant. The fact of solemnization of marriage between Mst.
Rasheed Begum (slaughtered) and Asif, acquitted co-accused, is an admitted fact. It is also admitted on both the ends that said co-accused had divorced Rasheed Begum (demised).
However, the fact of the demand of hand of Mst. Rasheed Begum (deceased) by Asif, co-accused stands denied but while cross-examining the eye-witnesses and making the statement under section 342, Cr.P.C., the appellant claimed that after four months of the marriage with Asif, co- accused, Mst. Rasheed Begum had given birth to an illegitimate female babe, namely Shamim-the other deceased. It was further claimed by the appellant that Mst. Rasheed Begum (deceased) had extramarital relations with her brother-in-law, due to which the appellant used to forbid her from visiting the house of Muhammad Amin. He further claimed that he and his family members had been involved at the instance of Amin, brother-in-law of Mst. Rasheed Begum (deceased). The said statement and stance of the appellant gave a new dimensions to the causation of putting two innocent people to sleep. Instead of making the prosecution's version doubtful, the said plea has given a strength to the prosecutions' version regarding the motivating force behind the brutal and callous crime. The said facts admitted by, the appellant himself, have made us believe that since the birth of Shamim (deceased), the appellant and his brother had been breeding bad-blood against both the deceased. The claim of the appellant that he was falsely involved in this case, does not touch our judicious perception, inasmuch as, there was no occasion for falsely attributing the role of butchering two people to the appellant instead of Asif, his real B brother, who had married Mst. Rasheed Begum and was father of the toddler Mst. Shamim, who, according to the appellant, was fruit of an illicit love of Mst. Rasheed with her brother-in-law. Had it been a case of false implication, then Asif co-accused would have been the main culprit, according to the complainant. It is commonly known that the reaction of a certain happening/event varies from man to man. In the cross-examination conducted by the learned defence counsel and the statement made by the appellant under section 342, a lot of emphasis was laid on the fact that Mst. Shamim-the toddler (deceased) was an illegitimate child. It appears that the life of Mst.
Shamim Bibi was a constant thorn in the flesh of appellant and he wanted to wipe the said baby out. Therefore, in the said circumstances, we have reached an inescapable conclusion that the appellant had a strong motive to bump Shamim and her mother off. Besides, by now, it has been established that the absence and weakness of the motive cannot furnish a ground for the acquittal of the accused, if the prosecution's version, otherwise, stands established.
16. According to the prosecution, the occurrence took place in broad-daylight in the house of the complainant. Bashir Ahmed, who triggered the criminal proceedings against the appellant, being inmate of the said house, is a natural witness. Admittedly, the parties are closely related. The appellant is real nephew of Bashir Ahmed/complainant (P.W.5). Apart from the divorce, which was given by Asif, co-accused to the complainant's daughter, the complainant had no enmity against the appellant and his other family members. The said backdrop of the facts clearly indicates that if there was any between the parties that was mainly against Asif co-accused. But he was implicated in this case only on the allegations of hatching a conspiracy, while the role of butchering both the deceased was attributed to the appellant against whom the complainant had no enmity, whatsoever. Similarly, P.W.2 and P.W.3 had got no enmity to falsely implicate the appellant. Mazhar, P.W.2 is quite an independent witness. Admittedly, he has got no relationship with the complainant party. Besides, P.W.2 and P.W.3 are residents of the same vicinity, rather street. Therefore, their reaching at the place of occurrence-after hearing the commotion is quite natural. All the three witnesses successfully stood the test of lengthy and searching cross- examination. The cross-examination could not extract any noteworthy concession/favour from them. The suggestions put to the said witnesses during their cross-examination appear to be self- contradictory. On the one hand, it was claimed that both the deceased were killed at the dead of the night but during the cross-examination, P.W.5 was suggested that on the day of occurrence, Rasheed Begum (deceased), had returned at 6-30 a.m., after attending a marriage ceremony.
According to the defence version as narrated by the defence witnesses, both the deceased were worked to death by unknown assailants. According to them (defence witnesses), the occurrence was unseen one but their evidence appears to be economical with truth, inasmuch as, the mother and father of Mst. Rasheed Begum-deceased were living in the same house. It is not understandable that the said inmates of the house would not have noticed the murder of both the deceased till 9-30 a.m. Besides, none of the witnesses claimed themselves to be eye-witnesses of the occurrence. According to all of them, they had reached the place of occurrence after the occurrence was over. The plea of alibi as advanced by D.W.1, mother-in-law of the appellant being oral in nature and unsupported by any other source does not hold any water. Therefore, the said evidence is useless, and no reliance can be placed upon the same. Learned counsel laid much stress on the point that D.W.4 being real brother of the complainant, demands the acceptance of his evidence but while doing so, he lost the sight of the fact that the said witness is real brother of Fazal Hussain, co-accused and real uncle of the appellants. Instead of supporting the dead ones, he has tried to save the life of his nephew. Moreover, like other witnesses, he also does not claim to be an eyewitness. Mst. Bilquees Bibi, D.W.1 is mother-in-law of the appellant, while Allah Ditta, D.W.2 is cousin (khalazad) of the appellant. So the defence evidence does not advance the case of the appellant.
17. As far as the medical evidence is concerned, the same has given a solid strength to the prosecution evidence. The medical evidence provided by Dr. Rubina Sajid, P.W.8, indicates that the throats of both the deceased were slit open. As a matter of fact, they were butchered.
Learned counsel for the appellant has stressed that according to the doctor, the probable time between the injuries and death was 15 minutes. On the basis of the said opinion, he wants us to believe that the occurrence ws unseen. But the said contention is spurned on two-pronged reasons, firstly, the probable time between the injury and death was given by the doctor on the basis of her own opinion, which can be treated as indicative of the fact that the said time was given on the basis of the probabilities and it did not exclude the chance of instantaneous death of both the deceased. The said opinion cannot be conclusive proof regarding the duration between the injury and the death. Secondly, the nature of the injuries by itself indicates that after receiving such an injury, both the deceased could not have survived for such a time.
18. The recovery of bloodstained chhuri provided added corroboration to the ocular evidence. The recovery of said bloodstained chhuri was proved by the evidence of recovery witnesses, including the police officials. The report of Chemical Examiner (Exh.PS) is positive. During the cross- examination of Allah Ditta (D.W.2), the sealed parcel containing machete (chhuri) was desealed on the asking of learned defence counsel and handle of the chhuri was found bloodstained.
19. As far as acquittal of co-accused on the basis of this evidence is concerned, it is observed that the said accused were involved in the case on the allegation of hatching a conspiracy, therefore, failure of the prosecution to prove the said conspiracy would not adversely affect the prosecution case, as far as the appellant is concerned. Even otherwise, by now it has been settled that the Courts can sift the grain from the chaff.
20. For all that has been observed above, we have come to an inescapable conclusion that the prosecution did prove its case against the appellant beyond any shadow of doubt. Therefore, he does hot deserve acquittal.
21. As far as sentence is concerned, no mitigating or extenuating factors have been found in favour of the appellant, who butchered two innocent persons, including a baby of three years, in a cruel and ruthless manner, therefore, death sentence awarded to him by the learned trial Court is hereby confirmed. Consequently, the appeal filed by the appellant is dismissed. The Murder Reference stands answered in the positive.