1. AFTAB AHMED GORAR, J.---Through this Cr. Appeal Appellant Bashir Ahmed son of Jumma Khan has impugned judgment dated 28.09.2011 passed by learned Ist Additional Sessions Judge, Karachi South in Sessions Case No, 722 of 2003, whereby he has been convicted under section 302, P.P.C.
2. And sentenced to death and to pay a fine of Rs,2,00,000/- (Rupees two lacs only) and in default to pay the fine, the accused has to undergo S.I. For one year. Appellant has also been directed to pay compensation of Rs,5,00,000/- (Rupees five lacs only) each to the LRs of deceased Mst. Shamim Akhtar and Mst. Shahida and in case of non-payment of the compensation amount, the accused has to undergo S.I. For two (2) years more. The death sentence has been made subject to confirmation by this Court.
3. Briefly, the facts of the prosecution case are that complainant Sabeel Ahmed lodged FIR No,135 of 2003 on 30.09.2003 at 1600 hours stating therein that he is residing at D-41, 5th floor, Azeem Plaza, Badshahi Road, Karachi with his parents and family members. On 30.09.2003 at about 0830 hours he and his brothers went to their jobs/works and his father Bashir Ahmed, mother Shamim Akhtar and sisin-law (Bhabi) were present in the house. At about 1130 hours, when he returned back to home and knocked the door, his father having churees in his hands and wearing bloodstained clothes, opened the door and with intention to kill the complainant, attacked him and warned him to leave his way otherwise he would also kill him. Thereafter, accused ran downwards from the staircase. Complainant went inside the flat and saw in the kitchen his mother Shamim Akhtar and Bhabi Shahida lying socked with blood in dead condition. On seeing this, the complainant informed his, brother and Police Emergency at "15". After about five minutes his brother also came and police also reached there and apprehended his father who was having churees in his hands and blood at his clothes.
4. After usual investigation, the police submitted challan against the accused showing him in custody.
5. In order to prove the charge against the accused, prosecution examined PW-01 Sabeel Ahmed (Ex.04) who produced memo of arrest of accused (Ex.04/A), statement under section 164, Cr.P.C.
6. (Ex.4/B), memo of place of incident (Ex.4/C), photocopy of statement under section 164, Cr.P.C.
7. (Ex.04/D), NIC (Ex.4/E), PW-02 Sarfaraz Ahmed Khan (Ex.05). PW-03 HC Shahmeer Ali (Ex.06) who produced memo of bloodstained clothes (Ex.6/A), PW-05 Ali Ahmed (Ex.08) who produced memo of corps in mortuary (Ex.08/A), inquest report (Ex.8/B), memo of dead body (Ex.8/C), inquest report of Shamim Akhtar (Ex.8/D), receipt of dead body (Ex.8/E) and his statement under section 164, Cr.P.C. (Ex.8/F), PW-06 Mujahid Iqbal (Ex.11), PW-07 S.I. Salam Gul (Ex.12) who produced letter for conducting chemical examination and report of 'chemical examiner (Ex.12/A and 12/B), PW-08 Dr. Rubina Hassan (Ex.13) who produced cause of death and postmortem report of deceased Shamim Akhtar (Ex.13/A and Ex.13/B), cause of death and postmortem report of deceased Shahida (Ex.13/C and Ex.13/D), PW-09 Mohammad Rashid (Ex.15) who produced his statement under section 164, Cr.P.C. (Ex.15/A), PW-10 ASI Touqeer Hussain (Ex.17) who produced carbon copy of FIR (Ex.17/A), PW-11 Mrs. Naseem Akhtar, Civil Judge and Judicial Magistrate (Ex.18) who produced copies of two letters (Ex.18/A and Ex.18/B), original statement under section 164, Cr.P.C. (Ex.18/C), letter dated 13.10.2003 (Ex.18/D). Learned DDPP gave up PWs Mohammad and HC Munawar, thereafter prosecution side was closed.
8. Statement of the accused under section 342, Cr.P.C. Was recorded at Ex.23 in which he denied the prosecution allegations leveled against him and claimed to be innocent. Appellant neither examined himself on oath nor produced any witness in his defence.
9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned Ist Additional Sessions Judge, Karachi South vide impugned judgment convicted and sentenced the accused as stated above. Against the said judgment appellant Bashir Ahmed has preferred the instant appeal.
10. We have heard learned counsel for the appellant as well as learned A.P.G. Appearing for the State and perused the evidence recorded by the trial Court.
11. Learned counsel for the appellant has contended that the appellant has been falsely involved in the present case; that the incident is unwitnessed; that there was delay in lodging of FIR and possibility of false implication of the accused could not be ruled out. It is further contended that prosecution witnesses are close relatives of the deceased hence they are interested witnesses therefore no reliance could be placed on their evidence particularly for awarding capital punishment and furthermore there are material contradictions in their evidence. It is .Argued that the prosecution has miserably failed to show any mens rea for committing the offence. It is submitted that the arrest and recovery of crime weapon is highly doubtful as the memo of arrest produced before the trial Court relates to a crime under section 13(d) Arms Ordinance and moreover no independent witness of the locality has been associated as mashir. According to learned counsel, there was previous enmity between the accused and complainant/P.Ws on account of the dispute over the flat. He further argued that there are contradictions in the memos regarding inspection of dead bodies of the two deceased ladies. He also submitted that the statements under section 164, Cr.P.C. Were recorded after delay of more than 13 days. He also contended that there were major defects in the investigation conducted by the I.O. He also argued that the motive is not available for commission of the alleged offence. In support of his contentions learned defence counsel relied upon the case-law reported as Mohammad Akram v. The State (2009 SCMR 230), Akhtar All and others v. The State (2008 SCMR 6), The State v. Abba Ali Shah alias Abba Umer and another (PLD 1988 Karachi 409), Hamzo and 2 others v. The State (1972 PCr.LJ 478 [Karachi]), Mohammad Jamil. v. Mohammad Akram and others (2009 SCMR 120), Mohammad Arif v. The State (2006 PCr.LJ 1827), Ashiq Hussain v. The State (1993 SCMR 417), Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others (1998 SCMR 25), Umar Said and 2 others v. The State (PLD 1994 SC 255), Dr. Ghulam Mustafa Solangi and 5 others v. The State (2005 PCr.LJ 1638 [Karachi]), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), Mohammad Khan and another v. The State (1999 SCMR 1220) and Abdul Sattar and others v. The State (2002 PCr.LJ 51 [Karachi])..
12. Conversely, learned A.P.G. Appearing for the State, while supporting the impugned judgment, contended that the accused is involved in double murder case having killed his wife and daughter-in-law; that the accused was arrested at the spot along with two bloodstained churries in his hands and wearing bloodstained clothes which were changed in the lockup. He submitted that although the prosecution witnesses are related to the deceased but they were natural .Witnesses and their evidence was confidence inspiring. However, he contended that the case did not warrant death penalty as Qisas and lesser punishment would meet the ends of justice. In support of his contentions he relied upon the case-law reported as Mohammad lqbal v. The State (1999 SCMR' 403), Mohammad Afzal and 3 others v. The State (1999 SCMR 1991) and Dil Bagh Hussain v. The State (2001 SCMR 232).
13. We have gone through the evidence of the prosecution witnesses recorded by the trial Court. P.W.
14. Sabeel Ahmed is the complainant and real son of the accused. He deposed that on 30.09.2003 he came at his house and found the door locked from inside. He knocked the door for 10 minutes continuously but the door was not opened. On hearing the knocking, his neighbourers Rashid and Zakir came out from their house. Thereafter, accused opened the door having two churries in his hands and wearing bloodstained clothes. Accused disclosed that he had committed murder of his wife and daughter-in-law and warned the complainant to go away else he would also kill him (complainant). The neighbourers pulled the complainant inside their house and locked the door from inside. The accused started kicking the door in order to break the door but could not succeed.
15. The complainant then informed Madadgar police as well as his elder brother Ali Ahmed and cousin Mujahid Iqbal on phone who reached there within 10 to 15 minutes. The accused tried to run away but was apprehended along with crime weapons. Thereafter, they entered the house and found dead bodies of the two deceased lying in kitchen. Police prepared mashirnama of arrest and recovery in presence of the complainant and then shifted dead bodies to Civil Hospital and recorded his statement under section 154, Cr.P.C. Police also inspected place of incident and collected blood from the place of incident and prepared such mashirnama. In his cross- examination he denied that quarrel took place between him and his father on his sitting on the roof of the house along with his friends. He also denied that he and his brother gave beating to his father and that the accused has been falsely implicated in the case due to enmity.
16. P.W. Sarfaraz Ahmed is the nephew as well as son-in-law of the accused. He deposed that on 30.09.2003 on the intimation of his brother-in-law on telephone about the incident, he reached at the place of incident and found accused having knife in his hand. Police arrested the accused and secured knife from him. The accused was wearing bloodstained clothes. The dead bodies were lying in the kitchen which were removed by the police to Civil Hospital. Thereafter police inspected the place of incident and secured blood from the place of incident and prepared such mashirnama. In his cross-examination this witness denied the suggestion that no such incident had taken place.
17. P.W. All Ahmed is also son of the accused. He deposed that on 30.9.2003 on receiving information about the incident he reached there and found his father holding churries in his hands and wearing bloodstained clothes. The accused tried to run away but was apprehended by the police.
18. Police secured churries and prepared such mashirnama. On entering the house, he found his mother and brother's wife lying dead in the kitchen.. They took dead bodies to Civil Hospital. Police prepared memo of corps and inquest report and recorded his statement. In his cross-examination he admitted that they had dispute over the house. He denied the suggestion that the murder was committed by him and his brother Shabbir.
19. P.W. Mohammad Rashid resides in the neighbourhood of the accused/complainant. He deposed that on 30.9.2003 he was present in his house and came out of the house on hearing knocking on the door. He saw that Sabeel Ahmed was knocking the door of his house, when door was opened father of Sabeel Ahmed came out having churries in his hands and his clothes were stained with blood. He ,warned Sabeel not to come near otherwise he would also kill him and told that he had committed murder of his wife and daughter-in-law. On this, this witness pulled Sabeel Ahmed inside his (Muhammad Rashid's) house and closed the door of his flat. Accused started knocking the door of his house. Sabeel Ahmed informed police and his relatives. Police came there and apprehended the accused and recovered churries from him. Thereafter people entered the house and found that dead bodies were lying in the kitchen. In his cross- examination he stated that the husband of deceased Shahida was residing abroad. He, however, denied that neither he nor his brother were present at the time of incident.
20. Evidence of P.W. Mujahid Iqbal, who is the cousin of the complainant, is also on the same line as stated above.
21. P.W. H.C. Shahmir Ali deposed to the effect that on 30.03.2003 ASI Afzal brought accused Bashir Ahmed at police station and arrested him in this case as well as in another case under section 13(d), Arms Ordinance. ASI Afzal got changed the bloodstained clothes of the accused and secured the same under mashirnama. In his cross-examination he stated that ASI told him that the accused had committed murder of his wife and daughter-in-law.
22. P.W. ASI Mohammad Afzal is the Investigating Officer of the case. He deposed that on 30.9.2003 on receiving information about the incident he reached at the spot where people had gathered. The accused tried to run away but he apprehended him along with churries. He prepared mashirnamas of arrest, recovery and bloodstained clothes of the