SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No.90-J of 2011 titled as Ahmad Ali v. The State filed by Ahmad Ali (appellant) against his conviction and sentence and Murder Reference No.73 of 2011 titled as The State v. Ahmad Ali transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Ahmad Ali (appellant), as both these matters have arisen out of the same judgment dated 13.11.2009 passed by the learned Addl. Sessions Judge, Pakpattan Sharif in case FIR No.47 dated 04.02.2009, offence under sections 302 and 109, P.P.C. registered at Police Station Malka Hans District Pakpattan Sharif whereby, the appellant was convicted under section 302(b), P.P.C. for the murder of his minor sons Faraz and Waqas and sentenced to death on two counts with the direction to pay Rs.50,000/- as compensation to the legal heirs of each deceased as envisaged under 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for four months each on each count.
The learned trial court, however, through the same judgment, acquitted Mst. Azizan Bibi, co-accused of the appellant while giving her the benefit of doubt.
2. Brief facts of the case, as disclosed by Muhammad Yasin, complainant (PW-1), in his statement (Exh-PA) on the basis of which formal FIR (Exh-PA/1) was registered, are that he is labourer by profession. His sister Mst.
Safia Bibi (given up PW) was married with Ahmad Ali (appellant) about 17/18 years ago and out of their wedlock, five children were born. Mst. Farah (given up PW) is the eldest daughter, Mst. Mamona (given up PW) is younger to her, Altaf (PW-3) was younger to Mst. Mamona, younger to Altaf is Faraz Ahmad (deceased) and then Waqas Ahmad (deceased). On 04.02.2009, Mst. Farah (given up PW) was present in their (complainant's) house as his sister, for the last ten days, had come there after having a quarrel whereas, at 08.30 a.m, remaining children were left at Jinnah Public School, Malka Hans. His brother-in-law Ahmad Ali (appellant) used to run a taxi car. At about 01.00 p.m., he (complainant) went to take the children from the school where he learnt that Ahmad Ali (appellant) had taken all the children including Mst. Farah with him whereas, Mst. Mamona did not accompany him who told that Farah (given up PW) and Ahmad Ali (appellant) came there and took away the children. She had not come out of school. He took Mst. Mamoona to his house. Remaining children did not come home till evening whereupon, he, his father Muhammad Siddique (PW-4), his sister Mst. Safia Bibi (given up PW) and Muhammad Arshad (PW-2) started the search and came to know that Ahmad Ali (appellant) had taken the children in his car bearing registration No. MNO-5559, red coloured, towards bypass Malka Hans girls school. When they, while searching, reached the girls school near the tube-well of one Jamil Akram, the car was found parked there but the children and Ahmad Ali (appellant) were not present. He along with his companions searched around in the light of battery when they heard the noise of children from the cotton crop of Rana Abdul Khaliq that the father was, killing them. They ran and reached the cotton crop. Ahmad Ali (appellant) who was armed with Chhuri, in their view, cut the throats of Waqas Ahmad and Faraz Ahmad whereas, Farah and Altaf were saved. Ahmad Ali (appellant), while taking the benefit of darkness, fled away from the spot. Mst. Farah (given up PW) told them that Ahmad Ali (appellant) since 01.00 p.m. was taking them on different places. They took care of Waqas Ahmad and Faraz Ahmad who succumbed to the injuries at the spot.
The motive behind the occurrence, as disclosed by Muhammad Yasin, complainant in the FIR, was that for the last about one year, Ahmad Ali (appellant) used to tease his sister (Mst. Safia Bibi) who, often, came to their house after quarrel and told that Ahmad Ali wanted to marry with Mst. Azizan Akhtar Hassan Phorr accused (since acquitted) after divorcing her. She had promised with Ahmad Ali that she will marry her if he gives divorce to his wife and kills his children. Due to this reason, on the instigation of Mst. Azizan Akhtar Hassan Phorr, Ahmad Ali (appellant) had committed the murder of his (complainant) maternal nephews Waqas Ahmad and Faraz Ahmad (deceased minors).
3. Ahmad Ali (appellant) was arrested on 16.02.2009 by Riaz Ahmad SI (PW-9) who, on 18.02.2009, while in police custody, after making disclosure, got recovered Chhuri (P-7) and a diary which were taken into possession vide recovery memos Exh-PN and Exh-PO, respectively. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898, framed charge against the appellant and his co-accused (since acquitted) on 03.07.2009, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as eleven witnesses, during the trial.
Muhammad Yasin (PW-1), Arshad (PW-2), Altaf (PW-3) and Muhammad Siddique (PW-4) furnished the ocular account. Bashir Ahmad 508/C (PW-7) is the witness of alleged recovery of Chhuri (P-7) and diary at the instance of the appellant.
Dr. Shahida Shafique appeared as PW-10 and furnished the secondary evidence on behalf of Dr. Shafique Ahmad, her husband since in abroad who conducted the post mortem examination on the dead bodies of Faraz Ahmad and Waqas Ahmad (deceased minors).
Muhammad Hanif, SI (PW-8) and Riaz Ahmad, SI (PW-9) are the Investigating Officers of this case and Ghulam Mustafa, Draftsman (PW-5) prepared scaled site plan (Exh-PG) of the place of occurrence whereas, rest of the witnesses are formal in nature.
5. Learned Deputy District Public Prosecutor gave up Farah Naz, Mamoona Naz, Mst. Safia Bibi, Talib Hussain, Munir Alunad 451/C and Muhammad Riaz 37/C' PWs being unnecessary and after tendering in evidence reports of Chemical Examiner (Exh-PS, Exh-PT and Exh-PU) and that of Serologist (Exh-PU/1), closed the case for prosecution.
6. The statement of the appellant, under section 342 of the Code of Criminal Procedure, was recorded on 12.11.2009. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why PWs have deposed against you?", the appellant replied as under:- "These were blind murders and occurrence of night. All the PWs are related inter se and they have enmity with me due to strained relation with my wife Mst: Safia Bibi who is the daughter of Muhammad Siddique PW. Due to this, PWs have deposed falsely against me."
7. The appellant neither opted to give evidence on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him nor did he produce evidence in his defence.
8. The learned trial court vide its judgment dated 13.11.2009, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
9. Learned counsel for the appellant argued that the appellant has falsely been implicated in this case by the complainant; that actually it was an unseen occurrence and the appellant was involved only on the basis of previous grudge nurtured by the PWs due to strained relations of the appellant with Mst. Safia Bibi; that Mst.
Safia Bibi, Mst. Farah Naz and Mst. Mamoona Naz were also allegedly present at the place of occurrence but they have not been produced by the prosecution; that the witnesses being closely related to the deceased are interested witnesses and they have made false deposition against the appellant; that the statement of Altaf (PW- 3), being child, is not reliable and worthy of credence as he was not a competent witness to understand the questions put to him by the defence; that there is no independent witness with the prosecution to support its version; that the prosecution witnesses have made dishonest improvements in their previous statements; that the medical evidence is in conflict with the ocular account; that the alleged recovery of Chhurri at the instance of the appellant is doubtful; that it is not believable that a father would murder his real sons and that too for nothing, as the motive alleged by the prosecution could not be established on record and that the prosecution has miserably failed to perform its legal duty in proving the case beyond shadow of reasonable doubt and prayed for the acceptance of this appeal; that the Murder Reference be answered in the negative.
10. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and maintained that the appellant has brutally murdered his real 'sons and there is no chance of misidentification or substitution as the parties are well-known to each other being close relatives; that the prosecution witnesses have not made any dishonest improvements rather they have explained the incident; that the ocular account is corroborated by the medical evidence; that the prosecution case against the appellant is further corroborated by the recovery of blood stained Chhurri at the instance of the appellant; that the motive has also been proved by the prosecution; that the prosecution has fully proved its case against the appellant beyond any reasonable doubt; that this appeal may be dismissed and Murder Reference be answered in the affirmative.
11. We have heard the learned defence counsel, learned Deputy Prosecutor General assisted by learned counsel for the complainant and gone through the record with their able assistance.
12. We have observed that the occurrence in this case took place at 7:30 p.m. on 04.02.2009, the matter was reported to the police at 09.15 p.m. i.e. one hour and forty-five minutes after the occurrence and the FIR was registered at 09.30 p.m. which reflects that the crime report, keeping in view the relationship between the deceased minors and the appellant, was got recorded without any conscious and deliberate delay. Even otherwise, it is a case of single nominated accused and no unchaste concession seems to have been derived by the complainant out of the two hours intervening time.
13. The prosecution, in order to prove its case, through the direct evidence, produced Muhammad Yasin, complainant (PW-1), Arshad (PW-2), Altaf (PW-3) and Muhammad Siddique (PW-4) to furnish the ocular account of the occurrence. Muhammad Yasin, complainant (PW-1) is the real maternal uncle, Altaf (PW-3) is real brother whereas, Muhammad Siddique (PW-4) is maternal grandfather of the deceased minors whereas, Arshad (PW-2) is also their relative, residing in the same vicinity at a distance of about 10/12 acres from the place of occurrence, so, keeping in view the relationship with the deceased and their residence in the vicinity, their presence at the scene of incident is self-explanatory. Muhammad Yasin, complainant (PW1) is brother-in- law and paternal cousin, Altaf (PW-3) is real son whereas, Muhammad Siddique (PW-4) is the maternal uncle of the appellant. The place of occurrence and time of occurrence is not denied by the defence. There is no cavil to the proposition that in such like criminal case, the whole fate depends on the authenticity of the ocular account and in the instant case, all the witnesses have given a clear and straightforward account of the occurrence of murder of both the deceased minors. Furthermore, it is not expected from such close relatives i.e. maternal uncle, real brother and maternal grandfather of the deceased that they would let the real murderer of their near and dear ones go scot-free and would falsely involve real father of the deceased minors in such case of heinous nature. During their statements before the learned trial court, all the witnesses remained stuck to their statements and they firmly and successfully faced rigor of cross-examination by the defence. It is very relevant to mention here that the defence has avoided to cross-examine all the witnesses regarding the actual occurrence of inflicting the fatal churri blows to the deceased minors by the appellant which confirms the veracity of ocular account of this case. Though, Muhammad Yasin, complainant (PW-1), Arshad (PW-2) and Muhammad Siddique (PW-3) are sufficiently reliable witnesses being consistent, coherent and having no motive, being closely related to the appellant, to falsely implicate him that is not even alleged by the defence, yet even if, by any stretch of imagination, we keep their evidence out of consideration, the statement of Altaf (PW-3) who is a minor child of the age of 12/13 years, student of 4th class, cannot be discredited in any manner as he remained firm during the cross-examination after making a straightforward and crystal clear statement against his own father having no malice prior to the occurrence against him which is fully trustworthy, cogent and confidence inspiring. The minor improvements in his statement are of explanatory nature not of the kind that could change the colour of the incident or the role ascribed to the appellant therein.
So far as the contention, raised by learned counsel for the appellant, regarding the tender age and incompetence of Altaf (PW-3) is concerned; in our view, is not tenable because of the reason that Article 3 of Qanun-e-Shahadat Order, 1984 is very much clear in this regard, which is reproduced as under: - "3. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
So, the supra provision of law suggests that only those persons are not competent to testify before the Court who are unable to understand the questions put to them due to their tender age, old age or any other infirmity.
Article 3 of Qanun-e-Shahadat Order, 1984 is a rule of caution. The question in each case, which a Court is to determine is whether a particular child who has appeared in the witness box is intelligent enough to be able to understand as to what evidence he is giving and he should be able enough to give rational answers to the questions. No particular age is given by the legislature which determines the question of competency of a witness. This only depends upon the capacity of the child to understand. In the instant case, the child witness who has been produced by the prosecution was of the age of 12/13 years, student of 4th class and he was not of the age who could not understand the questions put to him and after the perusal of the evidence of the said witness, we have found him an intelligent witness because he has given rational and coherent answers to the questions put to him by the defence. In this regard, light is sought from the judgment passed by the Hon'ble Federal Shariat Court in case titled Muhammad Yaqub v. The State reported as (1993 PCr.LJ 1852) wherein, the Hon'ble Court has held as under:- "6. ...It cannot, therefore, be said that Mst. Nusrat Bibi was of such a tender age that she could not make a coherent deposition. The words "tender age" as used in this Article, do not specify any particular age of a witness, it is only the capacity of a witness to understand things rationally and then to reply to them."
So having guidance from Article 3 of Qanun-e-Shahadat Order, 1984 and the supra referred judgment, we are of the view that Altaf (PW-3) was fully competent witness and, therefore, the contention raised by the learned counsel for the appellant is repelled.
As far as the contention of the learned counsel for the appellant regarding withholding the natural witnesses Mst. Safia Bibi, Mst. Farah Naz and Mst. Mamoona Naz, mother and sisters of the deceased, respectively is concerned, suffice to observe that it is the prerogative of the prosecution to produce as many witnesses as it thinks fit and it is the quality which weighs with the Courts and not the quantity. The prosecution has produced four eye-witnesses including maternal uncle, real brother and maternal grandfather of the deceased minors, who are related to the appellant too, as discussed supra. At the same time, it is also very important to consider that none of the given up witnesses being unnecessary has joined the investigation or the trial in defence of the appellant. Had he been innocent in this case, his wife and daughters would have definitely come forward for his rescue. Had he been innocent in this case, he would have been the complainant of this FIR for the brutal murder of his two sons. We have also noticed that he even did not file a private complaint or took any other step in this regard. So, in our view, their non-appearance, being unnecessary, to support the prosecution case does not reflect against its veracity in the peculiar circumstances of this case.
The ocular account is in line with the medical evidence as the injuries attributed to the appellant caused with sharp edged weapon are reflected in the postmortem examination reports (Exh-PQ and Exh-PR) of the deceased minors. Dr. Shafique Ahmad who conducted the post mortem examination on the dead bodies of Faraz Ahmad and Waqas Ahmad (deceased minors) was out of country being in Greece at the time of trial and his wife Dr. Shahida Shafique (PW-10) furnished secondary evidence on behalf of her husband. As per reports (Exh-PQ and Exh-PR) of Waqas Ahmad and Faraz Ahmad (deceased minors), the ante mortem injuries on the persons of deceased minors attributed to the appellant became the cause of unnatural death of the deceased as the same were sufficient to cause death in ordinary course of nature. In this view of the matter, the ocular account finds strong corroboration from the medical evidence in this case.
14. As regards the motive part of the occurrence, it is the case of the prosecution that the appellant wanted to marry Mst. Azizan Bibi, co-accused (since acquitted) and on her asking, the appellant wanted to divorce Mst.
Safia Bibi, his wife and committed the murder of Faraz Ahmad and Waqas Ahmad (deceased). In order to prove motive, the prosecution produced Muhammad Yasin, complainant (PW-1), Arshad (PW-2) and Altaf (PW-3).
Muhammad Yasin, complainant (PW-1) is the real brother of Mst. Safia Bibi wife of the appellant and after having a quarrel with her husband, Mst. Safia Bibi used to come to his house and tell him the reason of her quarrel with the husband. Similarly, Altaf (PW-3) son of the appellant is the most natural witness who had been living with his mother as well as the father and remained the witness of all the events which had been taking place in the family qua the dispute between husband and wife and the activities of the appellant regarding his affair with Mst. Azizan Bibi. He, being son of the appellant, by any stretch of imagination, has no motive to falsely implicate his real father for the murder of his real brothers. In this view of the matter, we are of the view that the prosecution remained successful to prove motive part of the occurrence.
15. The prosecution case is further corroborated by the evidence of recovery of Chhuri (P-7) at the instance of the appellant. The prosecution produced Bashir Ahmad 508/C (PW-7) and Riaz Ahmad, SI (PW-9). We have noticed that the appellant got recovered said Chhuri from underneath a 'Sheesham' (Dalbergia sissoo) after digging the earth. We are of the view that though the place from where the Chhuri was recovered is a field yet the tree underneath of which the Chhuri was buried was in the exclusive knowledge of the appellant. Even the said Chhuri was found stained with blood and as per reports of Chemical Examiner (Exh-PU) and that of Serologist (Exh-PU/1), the said blood was human.
16. For what has been discussed above and having considered all pros and cons of this case, we have come to an unavoidable and irresistible conclusion that the appellant has inhumanly and ruthlessly killed his two real sons, the phenomenon which seldom is seen in the ordinary life. It is a desperate act, which has resulted into a shock to the society and as such keeping in view the callousness of a father towards his sons, he does not deserve any leniency or favour and that the prosecution has successfully proved its case against the appellant beyond reasonable doubt through the ocular account furnished by Yasin, complainant (PW-1) Arshad (PW-2), Arshad (PW-3) and Muhammad Siddique (PW-4) fully corroborated by the medical evidence, evidence of recovery of Chhuri (P-7) and evidence of motive part of the occurrence, therefore, this appeal is dismissed and the conviction and sentence awarded to him by the learned trial court is maintained and Criminal Appeal No.904 of 2011 is hereby dismissed.
17. The Murder Reference No.73 of 2011 is answered in the AFFIRMATIVE and the death sentence awarded to Ahmad All (convict) is CONFIRMED.