1. ' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Nasir Abbas son of Muhammad Ashraf, caste Raja, resident of Chak No.26/JB, Police Station Nishatabad, Faisalabad, appellant, was involved in case FIR No.537, dated 20-8-2009, offence under section 302, P.P.C., read with section 7 of the Anti- Terrorism Act, 1997 registered at Police Station Raza Abad, Faisalabad and was tried by Raja Muhammad Arshad, learned Judge, Anti-Terrorism Court, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 16-6-2010 convicted and sentenced the appellant as under:-- {{TABLE}} Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst.Kinza Bibi sentenced to death with direction to pay.. Rs.5,00,000 as compensation tote legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
2. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Kinza Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months.
3. Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst.
4. Wejiha Bibi sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
5. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Wajiha Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months.
6. ' Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst.
7. Rehena Bibi sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
8. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Rehana Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo S.I. For six months.
9. Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst.
10. Mehreen Bibi sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
11. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Mehreen Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo Si. For six months.
12. Under section 302(b), P.P.C, for committing Qatl-i-amd of Muhammad Yousaf sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
13. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muhammad Yousaf and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo SI for six months.
14. Under section 302(b), P.P.C., for committing Qatl-i-amd of Muhammad Shehzad sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
15. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muhammad Shehzad and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fire and in case of default in payment thereof, to undergo S.I. For six months.
16. Section 302(b), P.P.C., for committing Qatl-i-amd of Muzammil Ali sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
17. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muzammil Ali and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and, in case of default in payment thereof, to undergo S.I. For six months.
18. Under section 302(b), P.P.C., for committing Qatl-i-amd of Naveed sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
19. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Naveed and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo S.I. For six months.
20. Under section 302(b), P.P.C., for committing Qatl-i-amd of Tajammal Ali sentenced to death with, direction to . Pay Rs.50,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo Si. For six months.
21. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Tajammal and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months. {{TABLE}} ' Feeling aggrieved by the judgment of the learned trial court, the appellant impugned the same by way of filing Criminal Appeal No.1660/2010 while the learned trial court forwarded Capital Sentence Reference No.40-T/2010 for confirmation of death sentence inflicted upon Nasir Abbas/convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the FIR (Exh.PA) lodged on the statement (Exh.PA) of Asghar Ali son of Mehr Din caste Ansari, House No.842/D, Ghulam Muhammad Abad, Faisalabad (PW-12) is that he is resident of Makka Chowk and labourer by profession. On 19-8-2009 at about 10:00 p.m., the complainant along with Muhammad Tariq son of Muhammad Iqbal, caste Khilji, resident of Civil Quarters, Ghulam Muhammad Abad and Javed son of Abdul Rasheed, caste Rajput, resident of Noori Chowk, House No.1199/D, Ghulam Muhammad Abad, went to the house of his sister namely Shamshad Akhtar alias Rehana Chaudhry situated at Kaleem Shaheed Colony No.1 and remained busy in talking for some time. Subsequently the complainant along with Muhammad Tariq and Javed slept in the baithak while Mst. Rehana Chaudhry (sister of the complainant), Muhammad Yousaf (behnvai of the complainant), Tajammal, Muzammal (bhanjas of the complainant), Kinza and Wajeeha (bhanjees of the complainant) and Naveed (servant of the house) slept in their rooms. Mehreen Bibi (bhanji of the complainant) slept in another room and Shehzad (servant) slept at their rooftop of the house. On the morning of 20-8-2009 at 5:20 a.m. Someone knocked at the door on which the complainant along with Javed woke up and the complainant opened the door and Nasir Abbas son of Muhammad Ashraf, caste Raja, resident of Chak No.26/G.B. Nishat Abad, damad of sister of the complainant while brandishing pistols in his both hands entered the house and went towards the room and resorted to indiscriminate firing with his pistols due to which Mst. Rehana Chaudhry, Muhammad Yousaf, Tajummal, Muzammal, Naveed and Wajiha received serious injuries and succumbed to the same while Kinza Bibi was seriously injured. Nasir Abbas went to the other room of the house where while making firing he committed the murder of Mahreen Bibi, bhanji of the complainant. In the meanwhile Shehzad servant of the house on hearing the noise of firing stepped down the stairs and he too, on receipt of fire shots made by Nasir Abbas, died at the spot. As per contents of the FIR, besides the complainant the occurrence was witnessed by Javed and Muhammad Tariq in the light of bulb erected in the house. The accused Nasir Abbas while making firing and brandishing his pistols; thereby creating panic among the public at large, succeeded in fleeing away from the place of occurrence. Kinza Bibi injured was shifted at Allied Hospital for her medical treatment.
22. ' Motive behind the occurrence as disclosed in the FIR was that at the time of contracting Nikkah, the accused had promised to provide a house and maintenance allowance, which he didn't fulfil and due to this reason the spouses were not on good terms and on account of this grudge the accused Nasir Abbas committed the murder of Rehana Chaudhry, Muhammad Yousaf Tajammal, Muzammal, Wajiha, Naveed, Mehreen and Shehzad and inflicted severe injuries to Kinza.
4. On receipt of information regarding the occurrence, Shaukat Ali, S.I. (P.W.5) along with other police officials proceeded to the place of occurrence; where he recorded statement of the complainant and after endorsing police karvai transmitted the same to the Police Station for registration of formal FIR.
23. ' After lodging the case, investigation was entrusted to Hamid Javed Ali, S.I.(P.W.16), who visited the place of occurrence prepared injury statement (Exh.PH) and inquest report (Exh-PJ) of Mst. Wajiha Bibi, injury statement (Exh.PL) and inquest report (Exh.PM) of Mst. Rehana, injury statement (Exh.PO) and inquest report (Exh.PP) of Mst. Mahreen, injury statement (Exh.PR) and inquest report (Exh.PS) of Muhammad Yousaf, injury statement (Exh.PU) and inquest report (Exh.PV) of Shehzad, injury statement (Exh.PX) and inquest report (Exh.PY) of Muzammal, injury statement (Exh.PAA) and inquest report (Exh.PBB) of Naveed, injury statement (Exh.PDD) and inquest report (Exh.PEE) of Tajammal Ali. Thereafter, the Investigating Officer secured bloodstained earth from the place where Mst. Kinza received injuries (Exh.PFF), and also from the place of murders of Tajammal (Exh.PGG), Naveed (Exh.PHH), Muzammal (Exh.PJJ), Mst. Mahreen (Exh.PKK), Mst. Wajeeha (Exh.PLL), Mst. Rehana (Exh.PMM), Shehzad (Exh.PZZ) and Muhammad Yousaf (Exh.PAAA). The Investigating Officer dispatched the dead bodies to mortuary for autopsy. From the spot, the Investigating Officer also collected nineteen crime empties of pistol .30-bore (P-26/1-19) and took into possession vide recovery memo Exh.PWW. He also collected 5 mobile phones i.e. NOKIA (P-27), SIEMEN (P-28), SAMSUNG (P-29), NOKIA-6300 (P-30) and NOKIA-1110 (P-31) and took into possession vide recovery memo Exh.PXX. He also prepared rough site plan of the place of occurrence (Exh.PBB;.
24. ' Thereafter, the Investigating Officer received information that Mst. Kinza Bibi had died in the hospital on which he visited Allied Hospital, Faisalabad and prepared injury statement (Exh.PE), inquest report (Exh.PF) and handed over the dead body to constable for escorting the same to mortuary. On the same day on receipt of spy information the Investigating Officer. Arrested Nasir Abbas appellant and obtained his physical remand. On the direction of the Investigating Officer and pointing out of the P.Ws., on 21-8-2009, Aurangzeb draftsman (P.W.15) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PYY and Exh.PYY/1), which was made part of the file. During the course of interrogation the appellant after making disclosure led to the recovery of pistols (P-15 and P-16) three bullets (P-17/1-3) and two magazines (P-18/1-2) which the Investigating Officer took into possession vide recovery memo Exh.PSS attested by the P.Ws. He also prepared rough site plan of the place of recovery (Exh.PSS/1). After the postmortem examinations on the dead bodies of Muzammal and Naveed deceased their last worn clothes shirt (P-1), patloon (P-2) and shirt (P-3) and trouser (P-4) respectively were produced before the Investigating Officer, which he took into possession vide recovery memos Exh.PB and Exh.PC. On the same day Muhammad Yaqoob 3178/C also produced last worn clothes of Shehzad, vest (P-5), shalwar (P-6), last worn clothes of Mehreen Bibi shirt (P-7) shalwar (P-8), last worn clothes of Wajiha Bibi shirt (P-9), trouser (P-10) and last worn clothes of Rehana Chaudhry dopatta (P-11), qameez (P-12), shalwar (P-13) and brazier (P-14) before the Investigating Officer, which he took into possession vide recovery memos Exh.PNN, Exh.PPP, Exh.PQQ and Exh.PRR respectively. Thereafter, Rafi Ullah 1292/HC (P.W.11) produced before the Investigating Officer last worn clothes of Tajammal deceased shirt (P-19), patloon (P-20), belt (P-21), last worn clothes of Yousaf deceased shalwar (P- 22), bunyan (P-23) and last worn clothes of Kinza Bibi qameez (P-24) and shalwar (P-25), which he took into possession vide recovery memo Exh.PTT, Exh.PUU and Exh.P.W. Respectively. On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and recorded the statements of the prosecution witnesses in terms of section 161, Cr.P.C.
5. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. On 2-12-2009, the learned Judge, Anti Terrorism Court, Faisalabad, formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as sixteen (16) prosecution witnesses.
25. ' Occular account in this case has come out from the statement of Asghar Ali (P.W.12)/complainant.
26. Shaukat Ali, S.I. (P.W.5) had recorded statement of the complainant on the basis of which Muhammad Arshad Farooq Head constable/ Duty Officer (P.W.1) had chalked out formal FIR Aurangzeb draftsman (P.W.15) had drafted scaled site plan of the place of occurrence while investigation in this case was conducted by Hamid Javed Ali, S.I. (P.W.16).
27. ' Lady Dr. Humaira Parveen, (P.W.6) had conducted postmortem examination upon the dead body of Mst. Kinza Bibi and observed following injury on her person:-- "(1) A cut lacerated wound about 1/2 cm x 1 cm on the right side of the head, 7 cm away from the right eyebrow and 8 cm above the right ear. Right ear was also swollen and bruised. On deep dissection collection of blood under scalp in an area about 15 cm x 13 cm with depressed fracture of the right temporal and parital bones. Blood was collected under the menegies."
28. ' After conducting the postmortem examination, the doctor rendered the following opinion:- "Death occurred due to neurogenic shock caused by injury No.1, which was inflicted by blunt means. Injury was ante-mortem and sufficient to cause death in ordinary course of nature. Viscera were sent to office of Chemical Examiner, Lahore to rule out any intoxication.
29. ' Probable time that elapsed between injury and death was hospital death and between death and postmortem was within 12 hours."
30. ' On the same day, P.W.6 also conducted postmortem examination upon the deed body of Mst.
31. Wajeeha Bibi and observed following injuries on her person:-- "1.A) A firearm wound of entry measuring about 3 cm x 2 cm with inverted margins on the left side of the face, just one cm away from the left eye.
32. 1.B) A firearm wound of exit on the back of the head, 6 cm behind the right ear measuring about 6 cm x 5 cm with brain matter coming out from the wound along with multiple pieces of fractured skull bone.
(2) A lacerated (grazed) wound 6 cm x 3 cm on left forearm, muscle deep, 4 cm away from the wrist joint and 10 cm below the elbow joint.
(3) A lacerated wound about 3 cm x 1 cm on the centre of the middle finger of right hand with fracture of middle phalynx."
33. ' After the postmortem examination, the doctor rendered the following opinion:- "Death occurred due to extensive brain damage caused by injury Nos.1.A and 1.B, which were inflicted by firearm weapon. All injuries were ante-mortem and injuries Nos.1.A and 1.B were sufficient to cause death in ordinary course of nature. Visceras were sent to office of Chemical Examiner, Lahore to rule out any intoxication.
34. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 24 hours."
35. ' Lady Dr. Tanveer Zafar, Senior Demonstrator, Forensic Medicine Department (P.W.7) on 20-8-2009 had conducted postmortem examination upon the dead body of Mst. Rehana and observed following injuries on her person:-- (1.a) A firearm wound of entry 1 cm x 1 cm with blackening and tattooing and colour of abrasion lies on the left eyelid in the centre just below the left eye-brow, enters the skull cavity damaging face bones and skull bones were fractured in pieces and exit via injury No. 1 .b.
36. 1.B) A firearm wound of exit 2 cm x 2 cm with everted margins and brain matter and chip of bone present in the wound, lies on the back of head in the occipital bone in the centre and 10 cm away from back of right ear.
37. 2.a) A firearm wound of entry 1 cm x 1 cm in the centre of apigastric region lies 1 cm away from mid-line, more towards left side, enters the abdominal cavity damaging the skin, muscles, left lobe of liver, right lung and chest cavity was full with blood. Fracturing 3rd thoracic rib from the back and exit via injury No.2.b.
38. 2.b) A firearm wound of exit 1 cm x 1 cm with everted margins lies on the right back of chest.
39. 3.a) A firearm wound of entry 1 cm x 1 cm with inverted margins and colour of abrasion on the outer side of left chest walls leis 8 cm below left armpit and 6 cm away from left breast, enters the chest cavity and damaging the 5th, 6th intercostals spaces, left lung, diaphragm, enters in the abdominal cavity and damaging transverse part of colon and exit via injury No.3.b.
40. 3.b) A firearm wound of exit 1 cm x 1 cm with everted margins on the back lies 16 cm away from back bone." After conducting the postmortem examination, the doctor rendered the following opinion:- "In this case death occurred due to injuries Nos. 1.a, 1.b, 2.a, 2.b and 3.a, 3.b causing severe blood loss, leading to haemorrhagic shock. The injuries were ante-mortem, inflicted by firearm and sufficient to cause death in ordinary course of nature. Viscera were sent to office of Chemical Examiner, Lahore to rule out any intoxication.
41. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 24 hours."
42. ' On the same day P.W.7 also conducted postmortem examination upon the dead body of Mst.
43. Mehreen Bibi deceased and observed following injuries on her person:- "1.a, 1.b A firearm wound of exit and entry on the head entering from frontal bone and fracturing the skull, top of the skull bone was absent. Brain matter was seen."
44. ' The doctor, after conducting the postmortem examination, rendered the following opinion:- "In this case death occurred due to injuries Nos.1.a, 1.b, causing heavy bleeding and brain damage inflicted by firearm. Injuries were ante-mortem and sufficient to cause death in ordinary course of nature.
45. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 24 hours."
46. ' On the same day Dr. Javaid Iqbal (P.W.8) had conducted postmortem examination upon the dead body of Muhammad Yousaf and observed following injuries on his person- "1.a) A firearm wound of entry 1 cm 1 cm just on the lobule of right ear on upper part of right side of the neck.
47. 1.b) A firearm wound of exit 1 cm x 1 cm on the back of left ear on left side of the head.
48. 2.a) A firearm wound of entry 2 cm x 2 cm just on front of right ear with burning and blackening. It is 3 cm from right eye-brow on right temporal area.
49. 2.b) A firearm wound of exit 1-1/2 cm x 1-1/2 cm just in front of left ear, middle part on the left temporal area.
50. 3.a) A firearm wound of entry 2 cm x 2 cm, it was 10 cm from right ear on top of right side of the head with blackening and burning.
51. 3.b) A firearm wound of exit 2 cm x 1 cm, it was 5 cm from left ear on left side of the head. Skull was fractured in to many pieces.
52. 4.a) A firearm wound of entry 1 cm x 1 cm, it was 6 cm from midline and 13 cm from right nipple on right hypochondrium.
53. 4.b) A firearm wound of exit 2 cm x 1 cm, it was 6 cm from left nipple and 15 cm from midline on left side of the chest."
54. ' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion injuries Nos.1, 2 and 3 were fatal, inflicted by firearm, severely damaged the brain tissue, which lead to neurogenic shock and death. Thus the stated injuries Nos.1, 2 and 3 individually and collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem.
55. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours."
56. ' On the same day P.W.8 also conducted postmortem examination upon the dead body of Shehzad deceased and observed following injuries on his person:- "1.a) A firearm wound of entry 1 cm x 1 cm just in front of upper part of right ear on right temporal area with blackening and burning.
57. 1.b) A firearm wound of exit 2 cm x 1 cm, it is 3 cm back to the left ear on left back of head.
58. 2.a) A firearm wound of entry, 1 cm x 1/2 cm, it is 4 cm above the left eye-brow on left front of forehead. Skull is badly fractured.
59. 2.b) A firearm wound of exit 1 cm x 1 cm, it is 14 cm from left ear oft left side of back of the head."
60. ' After the postmortem examination, the doctor opined as under:-- "In my opinion, in this case death occurred due to injuries Nos.1 and 2, inflicted by firearm, badly damaged the brain tissue, which lead to neurogenic shock and death. Thus the stated injuries Nos.1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem.
61. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours."
62. ' Dr. Javed lqbal (P.W.8) had further conducted postmortem examination upon the dead body of Muzammal deceased and observed following injuries on his person:-- "1.a) A firearm wound of entry 1 cm x 1 cm, it is just in front of left ear with blackening and burning.
63. 1.b) A firearm wound of exit 1 cm x 1 cm, it is 3 cm from right eye and 4 cm in front of right ear on right temporal area.
64. 2.a) A firearm wound of entry 1 cm x 1/2 cm just on inner angle of right eye with blackening and burning around it.
65. 2.b) A firearm wound of exit 1 cm x 1 cm, it is 7 cm from left ear root of the left back of the head.
66. 3.a) A firearm wound of entry 1 cm x 1 cm, it was 5 cm from midline and 7 cm from umbilicus at left hypochondrium.
67. 3.b) A firearm wound of exit 2 cm x 1 cm, it was 10 cm from midline at same level on right hypochondrium.
68. ' After conducting the postmortem examination, the doctor rendered the following opinion:- "In my opinion, in this case death was occurred due to injuries Nos.1 and 2, inflicted by firearm, which severely damaged the brain tissue and lead to neurogenic shock and death. The stated injuries were ante-mortem and injuries Nos.1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature.
69. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours."
70. ' On the same day, the doctor conducted postmortem examination upon the dead body of Naveed deceased and observed following injuries on his person:- "1.a) A firearm wound of entry 1 cm x 1 cm, it was 4 cm from left eye;brow and 5 cm from left ear on left temporal area with blackening and burning. Left eye was also black due to the injury.
71. 1.b) A firearm wound of exit 1 cm x 1 cm, it was 5 cm back and above to the right ear on left back of the head.
72. 2) A firearm wound of entry 2 cm x 1 cm, it was 2 cm from root of right thumb on right half of the palm and exit wound 2 cm x 1/2 cm in between the index and middle finger of same hand."
73. ' After the postmortem examination, the doctor opined as under:-- "In my opinion, death in this case occurred due to injuries No.1, inflicted by firearm, which severely damaged the brain tissue and lead to neurogenic shock and death. Both the stated injuries were ante-mortem. Injury No.1 was sufficient to cause death in ordinary course of nature.
74. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours."
75. ' P.W.8 also conducted postmortem examination upon the dead body of Tajammal Ali deceased and observed following injuries on his person:- "1.a) A firearm wound of entry 3 cm x 2 cm, it was 4 cm above and back on left side of the head.
76. 1.b) A firearm wound of exit 2 cm x 1 cm, it was 1 cm above and in front of right ear on right temporal area.
77. 2.a) A firearm wound of entry 2 cm x 2 cm, it was 3 cm below and back on the left side of the neck.
78. 2.b) A firearm wound of exit 3 cm x 1/2 cm on and right side of upper lip, upper jaw was fractured and shattered. Tongue was also injured.
79. 3.a) A firearm wound of entry 1 cm x 1 cm just on the back of wrist joint.
80. 3.b) A firearm wound of exit 1 cm x 1 cm at the base of right palm."
81. ' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion, death in this case was occurred due to injuries Nos.1 and 2, inflicted by firearm, which severely damaged the brain tissue and lead to neurogenic shock and death. All the injuries were ante-mortem. Thus the stated injuries Nos.1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature.
82. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem examination was about 12 hours."
83. ' Statements of rest of the prosecution witnesses are formal in nature.
6. On 23-2-2010, learned Public Prosecutor gave up Muhammad Sarwar 2486/C being unnecessary and vide his separate statement recorded on 11-3-2010 learned Public Prosecutor gave up Safdar P.W. Being unnecessary while Yasin, Muhammad Hussain, Younas and Faisal P.Ws. Were given up being won over. On 24-3-2010 after tendering in evidence the reports of Chemical Examiner with regard to detection of poison and semen (Exh.PCCC , Exh. PDDD Exh.PEEE, Exh.PFFF, Exh. PGGG , Exh.PHHH, Exh. PJJJ , Exh.PKKK, Exh.PLLL , report of Chemical Examiner with regard to bloodstained articles (Exh.PMMM), report of Serologist (Exh.PNNN) in respect thereof and report of Forensic Science Laboratory (Exh.PPPP), learned Public Prosecutor closed the prosecution evidence.
7. The appellant was also examined under section 342, Cr.P.C, wherein he opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence nor opted to produce defence evidence. While replying to the question why this case against him and why the P.Ws. Deposed. Against him, Nasir Abbas appellant made the following deposition:- "It is a false case. I have been falsely roped in a blind occurrence committed by some unknown persons in dark hours of night within house. The story of prosecution is highly doubtful and unbelievable. P.Ws. Tariq and Javaid appeared before the court and negated the version of the complainant, who were declared hostile during the course of trial and eye-witnesses shattered the primary foundation of the prosecution. Evidence of sole witness/complainant Asghar is contradictory, doubtful and illogical. The complainant made improvements in his evidence. There is clear conflict between occular account and medical evidence. There is a difference between location, direction and seat of injuries on the parts of the deceased persons. There is doubt about time of occurrence, manner and mode of occurrence. All the P.Ws. Are interested, inimical and chance witnesses. Motive is false and unconvincing. Marriage was solemnized just two months prior to the occurrence. There was no dispute of house. The house, where the occurrence took place was owned by me. I produce photo-stat copies of two sale agreements Mark-A and Mark-B.
84. There was no claim of maintenance; I and my wife were leading prosperous matrimonial life. I had purchased 15 tolas gold ornaments, which were delivered to my wife at the time of marriage. I produce copy of "Nikkah Nama" Mark-C as well as original receipt Exh.DA of purchase of gold ornaments. Asghar complainant took away our gold ornaments and valuable articles from my house after the occurrence. Complainant with malice made me accused in a false case. Allegation of motive is absolutely wrong and weak. Recovery of alleged two pistols and empties are false and planted upon me. Alleged recovery was effected from the public place and no independent and impartial witness was associated in the recovery proceeding. No such sealed parcel was made at the time of recovery of the place of recovery. There are contradictions in the statements of the witnesses and time of recovery is different. I produce copy of FIR No.540/2009, under section 13/ 20/65 A.O. Police Station Razaabad as Mark-D. The report of office of Forensic Science Laboratory, Lahore is not supporting the prosecution story. According to opinion of the office of Forensic Science Laboratory, Lahore different kinds of weapons, having different bores, have been used during the occurrence.
85. ' All the witnesses of alleged recovery are police officials. Parcel of alleged pistol and crime empties was received by Forensic Science Laboratory, Lahore on 31-8-2009 but parcels were sent to Forensic Science Laboratory, Lahore on 4-9-2009 and statements of witnesses were recorded on 10-9-2009.
86. ' The P.Ws. Were not in position to see the occurrence according to the statements of the P.Ws. And site plan, prepared by the Investigating Officer as well as site plan drafted by the draftsman.
87. Direction and location of deceased, and assailant were in conflict with prosecution story.
88. ' The Investigating Officer made dishonest investigation in this case just to strengthen the prosecution case. Investigating Officer recorded the statement of Arshad constable, Abdul Sattar Moharrar on 4-9-2009 regarding bloodstained earth. Both the P.Ws. Appeared before the court and they got recorded their statements only regarding bloodstained earth. Both the P.Ws. Did not utter even a single word regarding pistol and crime empties. The Investigating Officer himself appeared before the court as P.W.16. He also did not depose about the pistol and crime empties regarding sending of articles to the office of Forensic Science Laboratory, Lahore. The Investigating Officer having mala fide intention recorded the statements of above said P.Ws. On 10-9-2009 regarding pistols and crime empties. The Investigating Officer made dishonest investigation to fill the lacuna of prosecution case in league with complainant. I made an application under section of the Anti- Terrorism Act, 1997 before the court about the dishonest investigation of the Investigating Officer.
89. ' Mst. Rehana deceased was a dancer, actress and stage drama producer. Different kinds of criminal cases were registered in different Police Stations in which she was complainant as well as accused. Deceased Yousaf was an Afghan Trained Boy (ATBs). Different kinds of religious organizations were behind him just to kill him. Different security agencies of Pakistan were chasing the deceased Yousaf. I produce photo copies of FIR No.986 of 2009, dated 29-7-2009, under section 376, P.P.C., Police Station Nishatabad, Faisalabad as Mark-E, photo-state copy of FIR No.633/2007, dated 1-8-2007, under sections 337-A (ii), 337-L(2), 337-F(iii), 148, 149, P.P.C., Police Station Ghulam Muhammad Abad, Faisalabad as Mark-F and a list of Afghan Trained Boys (ATBs) consisting of 6 pages as Mark-G.
90. ' I am innocent. I was not present at the place of occurrence at the time of occurrence. I raised my plea of alibi before the Investigating Officer during the course of investigation and produced my defence witnesses before the Investigating Officer but he did not record my version as well as the statements of my witnesses. I am constable in CID Police. Investigating Officer on the asking of high ups of the police, made me scapegoat in this case. Investigating Officer did not collect any convincing and independent evidence. Prosecution has failed to establish this case beyond the reasonable doubts. I am innocent,"
8. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against him, hence recorded conviction in the afore-stated terms.
9. Learned counsel for the appellant while advancing his arguments submitted that the story advanced in the crime report qua mode and manner of occurrence is not plausible/believable.
91. Learned counsel forcefully argued that presence of the complainant at the place of occurrence at the relevant time is doubtful particularly when being resident of nearby vicinity, he had no reason to stay overnight in the house of his sister especially when there was no special occasion in that house on the fateful day. Learned counsel agitated that at the most the complainant was a chance witness, who while appearing in the witness box made dishonest improvements. Learned counsel further contended that it does not appeal to reason that the appellant armed with two firearms had taken lives of as many as nine persons, however, he let the complainant and other witnesses scot-free nevertheless during the occurrence they remained raising hue and cry. It was next argued that except the complainant rest of. The P. Ws. Of occular account did not support the prosecution version. Learned counsel went on arguing that there is nothing on record to establish that who shifted Mst. Kinza Bibi to Allied Hospital in an injured condition and even death certificate issued in this regard discloses that neither name of the injured nor her parentage and address was incorporated therein, which reveals that it was not the complainant rather some unknown person had evacuated the injured to the hospital, who even did not know her name and parentage.
92. Learned counsel further agitated that the medical evidence does not corroborate the prosecution version particularly when injury on the person of Mst. Kinza Bibi was declared result of blunt weapon. Learned counsel further submitted that if the complainant had witnessed the occurrence what was fun to send the visceras and swabs to the office of Chemical Examiner for detection of poison and semen. Learned counsel next argued that as a matter of fact Muhammad Yousaf deceased was Afghanistan Trained Boy and Rehana Chaudhry was a renowned stage dancer and producer and both of them were having numerous disputes with others and there is possibility that some one else had eliminated them and the appellant was made scapegoat by the local police.
93. Learned counsel next contended that the crime empties were sent to the office of Forensic Science Laboratory along with crime weapons at a belated stage on the same day, therefore, positive report in respect thereof, is of no legal consequence. Learned counsel further argued that nevertheless a specific motive was set by the prosecution, however, the same remained unproved.
94. Learned counsel in the end stated that as the prosecution failed to lead cogent and confidence inspiring evidence, therefore, the learned trial court was not justified in recording conviction.
10. On the other hand, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that it was a heinous/brutal occurrence in which whole family was eliminated in a very reckless manner and the appellant is duly named as sole proprietor of the occurrence in promptly lodged FIR Learned counsel for the complainant agitated that the complainant was real brother of Rehana Chaudhry, therefore, his presence at the place of occurrence was but quite natural. It was next argued that nevertheless the complainant is the sole eye-witness, who supported the prosecution version: however, his statement being confidence inspiring the learned trial court was rightly justified in recording conviction against the appellant. Learned DDPP -stated that the medical evidence is in line with the occular account with regard to time of occurrence and the weapon used. Moreover, at the time of spot inspection the Investigating Officer had collected crime empties and after arrest of the appellant, crime weapons (pistols) were also recovered and report of Forensic Science Laboratory in this regard is positive. Learned counsel next argued that the Investigating Officer had also secured bloodstained earth from the place of occurrence, which were sent to the office of Chemical Examiner and Serologist and respective reports of the concerned quarters are also positive, which fully coincide with the prosecution version. Learned counsel further submitted that there was no reason with the complainant to have falsely substituted the appellant in the instant case in place of real culprits in such a heinous occurrence and even neither during the course of investigation nor during the course of trial, any piece of evidence in this regard was adduced by the defence. Learned DDPP contended that during the course of investigation, the appellant was found guilty as such his name was placed in column No.3 of the report prepared in terms of section 173, Cr.P.C. It was finally argued that in view of overwhelming evidence adduced by the prosecution, learned trial court was rightly justified in recording conviction and sentence against the appellant.
11. We have considered the arguments advanced by learned counsel for the appellant, learned counsel for the complainant, as well as, learned DDPP and gone through the record available on file.
12. Before recording our observations with regard to authenticity of the prosecution version there is no cavil to this proposition that it was a gruesome occurrence, which took place in odd hours resulting into death of whole family in a very brutal/reckless manner. As far as the incident, its severity, callousness and brutality is concerned, the same touches the peak of barbarism but at the same time this Court has to scrutinize the whole evidence available on the record on judicial parlance whether the same is sufficient to maintain conviction in the instant case. Otherwise this Court is conscious of the fact that on the basis of severity/brutality, no one can be saddled with the responsibility as a public policy, which is always deemed to be against the vires/dictates of justice.
13. In the instant case the prosecution has led evidence qua motive occular account, medical evidence, recovery of the crime weapon, report of Forensic Science Laboratory, reports of Chemical Examiner and Serologist, in order to substantiate its case.
95. ' As far as the motive in this particular case is concerned, it is an admitted fact that the appellant had married with Mst. Mehreen Bibi just two months prior to the occurrence and the deceased family was residing in the house purchased by the appellant and in this connection agreement regarding sale of the house was placed on record as 'Mark-A'. Moreover, golden ornaments valuing Rs.4,69,666 were also purchased by the appellant regarding which original receipt was also produced by him during the course of trial and the same was made part of the file as Exh.DA.
96. Keeping in view the short period elapsed from the marriage to the instant occurrence and non- production of any cogent evidence regarding the so-called dispute, compels this Court to arrive at the conclusion that the motive ascribed in this case is not substantiated by any cogent reasoning rather the same remained shrouded in mystery.
14. Occular account in this case is coming from the mouth of Asghar Ali (P.W.12), Muhammad Tariq (P.W.13) and Javaid (P.W.14). Out of three prosecution witnesses Muhammad Tariqe (P.W.13) and Javaid (P.W.14), the only independent witnesses, while appearing in the witness box made categorical statements; wherein they stated that they "know nothing about the occurrence" as such they were declared hostile and despite lengthy cross-examination, the prosecution failed to detect anything out of their statements favouring the prosecution case. As far as the statement of Asghar Ali complainant/(P.W.12) is concerned the same is pregnant with material lacunas. Close scrutiny of his statement reveals that in order to bring his case closer to the medical evidence, he made material improvements, which squarely shatter his 13 testimony. Moreover, he is also closely related to the deceased and also miserably failed to establish his presence at the place of occurrence at the relevant time especially when his house was situated 1-KM away from the place of occurrence and it has come on record that transportation facility was available round the clock.
97. Even otherwise his presence is repudiated by the fact that the appellant remained extra courteous towards him and even did not inflict a single scratch on his body when on the other hand he had eliminated the whole family including two house servants of sister of the complainant and while appearing in the witness box P.W.12 in categorical terms admitted that "The accused did not cause any injury to myself and other but we remained raising hue and cry constantly." This aspect is further strengthened from the admission made by the complainant that "At the time of firing Nasir Abbas was standing at the thresh-hold of room of Rehana whereas I along with other P. Ws. Was standing behind him at a distance of 2-3 feet." The act of the complainant qua opening the door of the house at odd hours on the fateful day also speaks volume when two servants were present in the house and the complainant at the most was enjoying the status of guest. In the case of Nadi Bakhsh v. The State (PLD 1963 [W.P.] Karachi 805), it was held that to rely upon the statement of a witness having dishonestly improved his statement subsequently was not safe. Moreover, while dealing this question, the august Supreme Court of Pakistan in the case of Farman Ahmed v.
98. Muhammad Inayat and others (2007 SCM R 1825) had held as under:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently mode cannot be relied upon as the witness, had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest ease serious doubt on the veracity of such witnesses,"
99. ' Moreover, in the dictum of law laid down by august Supreme Court of Pakistan in the case of Muhammad Rafique and others v, The State and others (2010 SCM R 385), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubts about its veracity and credibility.
15. The occular account is further belied by the medical evidence, as according to the statement of Lady Dr. Humaira Parveen (P.W.6), Kinza Bibi deceased had sustained blunt weapon injuries, which is contrary to the prosecution version. Another very important aspect of the case is that death certificate issued in respect of Kinza Bibi deceased placed on the record squarely reveals that she died of cardiopulmonary arrest. Moreover, according to the contents of the death certificate; name of the deceased, parentage and address were mentioned as unknown. She had died on 20-8-2009 at 11:00 a.m., whereas, according to the prosecution version the crime report was recorded at 7:20 a.m. Vide Rupt No.29. If the police would have recorded crime report well in time and was available at 11:00 a.m. When the death certificate was issued qua Kinza Bibi one of the deceased then the particulars of the deceased would have been incorporated in the death certificate whereas it is all blank qua name, parentage, caste and address etc, which further lends support to the conclusion that the prosecution witnesses were not present at the place of occurrence at the relevant time and even the FIR was recorded at a belated stage while keeping the rozenamcha in abeyance. So much so at the time of postmortem examination visceras were taken out of all the bodies and sent to the office of Chemical Examiner for detection of poison. Moreover, swabs were also taken from the bodies of the female deceased for detection of semen; meaning thereby that the prosecution was not sure about the mode and manner of occurrence, which straightway nullifies the prosecution story advanced by the occular account.
16. As far as the recovery of crime weapons is concerned, there is no second cavil to this proposition that though the empties were recovered from the place of occurrence on 20-8-2009 but the same were dispatched to the office of Forensic Science Laboratory on 5-9-2009 i.e. After recovery of crime weapon. It is repeatedly held by the superior courts that dispatching of crime empties at a belated stage though recovered on the date of occurrence and after arrest of the accused is of no avail. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ali Sher and others v. The State (2008 SCM R 707); wherein it was held as under:-- "---S. 302---Reappraisal evidence---Sending of crime empties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with the crime empties, 12 days after the recovery of alleged weapons--Effect---Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the occular testimony."
100. In the case of Muhammad Farooq and another v. The State (2005 SCMR 1707), the august Supreme Court of Pakistan had disbelieved the recovery of crime weapon. Moreover, this Court cannot lose sight of the fact that the occular account is always deemed to be principal evidence and all the Other material/evidence, which is recorded/collected at a belated stage, is considered as corroboration. This Court has to see whether the occular account in the instant case is of such calibre which could be termed sufficient to maintain conviction on capital charge. Moreover, it is established principle that when the occular account is not confidence inspiring and leaves room for suspicion, the other attending circumstances in the shape of corroboration have to be scrutinized with care and caution before giving due weight.
17. In the instant case the statement of the appellant recorded in terms of section 342, Cr.P.C. Is of much importance. The prosecution has not advanced this aspect that Muhammad Yousaf deceased was an Afghan Trained Boy (ATB) trained for committing terrorist activities and having nexus with the criminals and Mst. Rehana Chaudhry deceased was a well known stage drama producer and dancer and both were also involved in number of criminal cases. There is possibility that someone else had committed the occurrence, which is also apparent from the number of injuries on their person and possibility of false implication of the appellant in the instant case cannot be ruled out, who admittedly had contracted 'Love-Marriage' with Mst. Mehreen against the wishes of her other close relatives including the complainant being real uncle.
18. Before concluding we are also inclined to comment upon the contention raised by learned counsel for the complainant regarding promptness of the FIR. It goes without saying that the same is to be examined/scrutinized together with other features of the case. If this aspect of the prosecution case is taken as correct then admittedly the prosecution has squarely failed to satisfy this Court on number of other characteristics of the case. We are fortified in our opinion in view of dictums of law in the cases of Siraj v. The State (1984 SCM R 1238), Zafar Hayat v. The State (1995 SCM R 896), Mst. Dur Naz v. Yousaf and another (2005 SCM R 1906), Idris Ali and 7 others v. The State (PLD 1971 Dacca 254).z
19. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has not been able to establish its case against the appellant especially the unbelievable story set forth in the crime report, sketchy testimony of the complainant, which was not corroborated by any independent witness, the material improvements made by him coupled WW1 his unnatural conduct, the medical evidence contradicting the ocular Account particularly the fact that till the postmortem examination the prosecutin was not sure about the cause of death and for this reason the visceras and swa bs were sent to the office of Chemical Examiner for detection of poison and semen prompting this Court to arrive at the conclusion that the learned trial court was not justified in convicting him while basing upon such untrustworthy/ uncorroborated evidence deposed by interested witness, which even otherwise is full of material contradictions. Therefore, conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the discussed. Similar view was affirmed in the case of Muhammad Akram v. The State (2009 SCM R 230); wherein it was held as under:-- "---Benefit of doubt--=Principles--- ' For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
101. ' Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while adopting the principle of abundant caution in favour of the appellant, Criminal Appeal No.1660 of 2010 is ACCEPTED IN TOTO as a consequence whereof conviction and sentence recorded by the learned trial court vide judgment dated 16-6-2010 is set aside. Resultantly, Nasir Abbas/appellant is directed to be acquitted of the charge in case FIR No.537, dated 20-8-2009, offence under section 302, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 registered at Police Station Roza Abad, Faisalabad and he is directed to be released forthwith if not required in any other case.
20. Capital Sentence Reference No.40-T/2010 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Nasir Abbas/convict fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.