A. REHMAN, J.----Din Muhammad son of Muhammad Bakhsh, aged 61 years and his son Asghar, aged 20 years were tried under section 302/307/34, P. P. C. By the learned Additional Sessions Judge, Multan. They were found guilty of having committed the murder of Hilal Ahmad Siddiqui and his wife Kist. Anis Begum and were accordingly sentenced to death and a fine of Rs. 5,000 each and in default of payment of fine to suffer rigorous imprisonment for two years. The amount of fine on realisation was ordered to be paid to the children of the deceased. Asghar appellant was found guilty of having caused injuries with a sharp-edged weapon to Rohail Ahmad for which be was convicted under section 324, P. P. C. And was sentenced to undergo three months' rigorous imprisonment. Both Din Muhammad and Asghar have challenged the order of their conviction passed by the learned Additional Sessions Judge on 27-9-1978 by filing the present appeal. The case has also been referred to this Court by the learned Additional Sessions Judge under section 374, P. P. C. For confirmation of the sentence of death awarded to the appellants. This judgment would dispose of both Criminal Appeal No. 951 of 1978 and Murder Reference No. 265 of 1978.
2. The prosecution case as revealed in the F. I. R. Exh. P. G. Which was lodged by Muhammad Sharif P. W. 10 on 12-12-1976 at 7-30 -a.m. At Police Station Multan Cantt. Was that on the previous night he had slept in the house of his employer Hilal Ahmad Siddiqui, Mst. Anis Begum wife of Hilal Ahmad Siddiqui and their three sons Sohail, aged 10 years, Rohail Ahmad, aged six years and Adnan, aged -three years bad also slept in the same room in which she and Hilal Ahmad Siddiqui had slept.
Sohail and Adrian got up early in the morning and opened the door of the room as they wanted to go to the toilet. The appellants who were armed with chhuris entered the room and started inflicting injuries on the person of Hilal Ahmad Siddiqui. On hearing the noise Mst. Anis Begum also got up and wanted to rescue her husband but she too was attacked by the appellants. The appellants threatened the complainant and the children of Hilal Ahmad Siddiqui that they would also be killed if they raised any alarm. After murdering Hilal Ahmad Siddiqui and his wife Mst. Anis Begum, the appellants ran away. Rohail Ahmad son of Hilai Ahmad Siddiqui who was sleeping on the same cot with his father also sustained injuries when his father was attacked by the appellants.
According to the complainant the appellants had committed the murder of Hilal Ahmad Siddiqui and his wife Mst. Anis Begum because 5 or 6 months prior to the occurrence Hilal Ahmad Siddiqui had abducted Mst. Shamim Akhtar daughter of Din Muhammad appellant and bad contracted marriage with her against the wishes of her parents.
3. After the registration of the case Ghazanfar Hussain Shah, S. I. Reached the place of occurrence at about 8-30 a.m. He found the dead bodies of Hilal Ahmad Siddiqui and Mst. Anis Begum in the room. After examining the dead bodies, he prepared inquest reports Exh. P. W/12/E and P. W/12/F. He despatched the dead bodies for post--mortem. Blood-stained earth was secured from the places where the dead bodies were lying and the same were taken into possession vide memos. Exh. P. A.
And Exh. P. B. He also took into possession blood-- stained Plung, bed-sheet, and Dari vide memo.
Exh. P. D. After preparing the injuries statement of Rohail Ahmad, he sent him for medical examination. His blood-stained shirt P. 11 was taken into possession vide Memo. P 1. A blood-stained curtain was also secured from the room where the occurrence had taken place and memo. Exh. P.
C. Was prepared in that behalf. Asghar appellant was arrested on the same day at about 4-30 p.m.
As some injuries were found on his person, injury statement, Exh. P. P/A. Was prepared. Blood-- stained Chaddar and Bushirt were got removed from his person and were taken into possession vide memo. Exh. P. 14/B. Sealed parcel of these clothes was also prepared, On the same day Asghar appellant, while in police custody, led to the recovery of blood-stained chhuri, P. 13 from the room of residential house. It was taken into possession vide Memo. Exh. P. 14/A. Sealed parcel of chhuri. P.
13 was also prepared.
4. On 3-12-1976 Bunyan, P. 6 and Golden Ring, P. 7 of Hilal Ahmad Siddiqui deceased were produced by Abdul Majid Foot Constable and the same were taken into possession vide memo. Exh. P. C. Last worn clothes of Mst. Anis Begum, Shalwar, P. 8, Shirt, P. 9 and Bunyan, P. 10 were taken into possession vide memo. Exh. P. F. Her Golden Koka which was also produced alongwith the clothes were taken into possession vide, memo. Exh. P. F.
5. On 14-12-1976 Din Muhammad appellant was taken into custody. He too had an injury on his person in respect of which injury statement, Exh. P. P. Was prepared. On 23-12-1976, Din Muhammad appellant, while in custody, led to the recovery of chchuri, A-12 from his residential Kotha. It was taken into possession vide memo. Exh. P. K. Site plans in triplicate, Exh. P. L/1 and Exh. P. L/2 were got prepared from Shaukat Hayat Draftsman and after completing the investigation of the case, the appellants were challaned and sent up for trial.
6. At the trial the appellants did not admit the charges brought out against them. The prosecution in order to prove the charges examined as many as 1 S witnesses. Muhammad Sharif, P. W. 10, Sohail Ahmad, P. W. 11 and Rohail Ahmad, P. W. 13 gave an ocular account of the occurrence while Abdul Qadir; P. W. 7 and Muhammad Ijaz, P. W. 14 were examined to prove the recovery of blood- stained chhuris on the pointing out of the appellants. Muhammad Ijaz, P. W.; 14 also deposed with regard to the recovery of blood-stained clothes of Asghar appellant. P. W. 12 doctor Allah Nawaz, Medical Officer, Civil Hospital, Multan, was produced to prove the post-mortem reports of Hilal Ahmad Siddiqui and Mst. Anis Begum. Ghazanfar Hussain Shah, P. W. 15 deposed with regard to the investigation of the case. Munir Akhtar Malik, P. W. 8 was examined by the prosecution to show that he had seen the appellants coming out of the house of Hilal Ahmad Siddiqui with blood-stained chhuris in their hands after committing the murder. Abdul Hamid, P. W. 2 had joined the investigation of the case and the Investigating Officer had taken into possession blood-stained earth and other blood-stained articles from the place of occurrence in his presence. The testimony of Niaz Muhammad, P. W. 1 who had identified the dead bodies of Hilal Ahmad Siddiqui and his wife Mst. Anis Begum at the time of post-mortem examination and that of Abdul Majid, Foot Constable, P. W. 3 who escorted the dead bodies to the mortuary for post-mortem examination was of formal nature. Subedar Khan, A. S. I., P. W. 4 Muhammad Jehan Khan F. C. P. W. 5, Dara Khan F. C. P. W. 6 and Shaukat Hayat, P. W. 9 were other formal witnesses in the case who were produced by the prosecution.
7. After the close of the prosecution evidence the appellants were examined under section 342, Cr.
P. C. They controverted the prosecution story and pleaded that they had been falsely implicated in the case. According to Din Muhammad appellant, Hilal Ahmad Siddiqui was a bad character. His wife Mst. Anis Begum used to procure young girls for him for which he was hated by the people. He had even abducted his daughter, though later on she was restored to him through the intervention of the people of the locality. According to Din Muhammad, Hilal Ahmad Siddiqui and his wife were murdered by their some unknown enemies. The learned Additional Sessions Judge after relying on the ocular evidence as supported by the medical evidence and the evidence of recovery of incriminating articles from. Asghar appellant came to the conclusion that the prosecution had succeeded in establishing the charges against the appellants. He accordingly convicted them and awarded the sentence as noticed earlier.
8. We have heard the learned counsel for the appellants at length and have also carefully perused the record of the case. We have also considered the arguments of the learned counsel for the State. The ocular evidence on which reliance has been placed by the prosecution in this case consists of the de depositions of Muhammad Sharif, P. W. 10, Sohail Ahmad, P. W. 11 and Rohail Ahmad, P. W. 13 who all are under the age of 12 years. Muhammad Shatif, P. W. 10, who is also the informant in the case, was found to be 10 or 11 years old by the learned Additional Sessions Judge on 21-5-1978 when his statement was recorded though he had given his age as 13/14 years. In the F.
I. R. Exh. P. G. His. Age was recorded as 12/13 years. Sohail Ahmad, P. W. 11 was about 7 and a half years old when the occurrence bad taken place while his brother Rohail Ahmad was only five and a half years old at that time. Keeping in view the tender age of Sohail Ahmad, P. W. 11 and Rohail Ahmad, P. W. 13 we have carefully scrutinised their statements. We have noticed that the learned Additional Sessions Judge bas recorded a note at the end of the deposition of Rohail Ahmad, P. W.
13 that the witness had been frequently nodding his head and answering the questions put to him in cross-examination in the affirmative even before the question was completed by the defence counsel. It was also observed that the witness did not properly understand the question when it was put to him in a changed form as he would dive different answer to the same question put to him in the changed form. Fro the above observation of the learned Additional Sessions Judge it is clear that Rohail Ahmad, P. W. 13, was incapable of understanding the question put to him on account of his tender age and. As such it is not safe to rely on his testimony. The fact that he gave rational answer to some of the question put to him by the Court to test his competence to appear as a witness cannot make him a competent and reliable witness because he found it difficult to give rational answers to the questions put to him during the cross-examination: The statement made by him during his examination-in-chief cannot be accepted as evidence in the case because his incompetence to testify was revealed when he was cross-examined by the defence counsel.
9. Sohail Ahmad, P. W. 11 has no doubt narrated the same prosecution story in his examination-in- chief as revealed by Muhammad Sharif, P. W. 10 in the F. I. R. But his testimony has been found deficient on a material point namely, the identification of the assailants. He has stated that there was complete darkness in the room though there was some light outside the room. He has further stated that Asghar appellant had muffed up his face .And his eyes only were visible while Din Muhammad appellant had not muffed 8 up his face. It is difficult to understand how he was able to identify the appellants in darkness particularly when he had concealed himself in the, blanket of Muhammad Sharif, P. W. 10 as soon as the appellants had entered the room. We, therefore, do not consider it safe to rely on the deposition of Sohail Ahmed, P. W. 11 as well.
10. Muhammad Shard, P. W. 10 was employed by Hilal Ahmad Siddiqui to work at his shop. He also used to work in his house. Accord--ing to him be had slept in the house of Hilal Ahmad Siddiqui on the night preceding the occurrence. It was for the first time that he had slept there and the reason given by him was that he had worked at the shop of Hilal Ahmad Siddiqui till 10-00 p.m. And thereafter had accompanied Hilal Ahmad Siddiqui to his house. According to him he did not go to his own house out of fear because it was dark. He has stated that the house in which his parents reside is situated at a distance of only 10 yards from the house of Hilal Ahmad Siddiqui: According to him his parents had not come to the house of Hilal Ahmad Siddiqui to enquire about him after he had failed to return to his house from the shop. He has stated that Munir Akhtar Malik, P. W. Had reached the house of Hilal Ahmad Siddiqui on hearing the alarm raised by him and that from there he had accompanied him, to the police station for reporting the matter to the police. In his cross- examination he has stated that after the occurrence he went to his house where he met Munir Akhtar Malik, P. W. 8 who took him to the Police Station. According to him Thanedar was not present in the Police Station and he was called by a constable from his quarter but in the latter part of his statement he has stated that when be had reached the Police Station he had found a police officer sitting in the chair. His statement was recorded by the aforementioned police officer. In his cross- examination he has also disclosed' that the police had taken him to the Police Station for the second time after visiting the spot and after interrogating him had recorded his statement again at .The Police Station. In addition to the above inconsistent statement made by Muhammad Sharif, P. W. 10 we have noticed that he has made contradictory statements on some material points as well. For instance be has stated that the assailants had muffed up their faces and that they had switched off the light as soon as they had entered the room and further that he had covered his face with a blanket out of fear and yet be was able to identify them. Asghar appellant was identified by him as Mst. Anis Begum had pulled down the cloth by which he bad covered his face while Din Muhammad appellant was identified by him by his voice. According to Muhammad Sharif he had seen the entire occurrence through the holes of the blanket. After carefully considering the aforementioned facts, we have arrived at the conclusion that Muhammad Sharif, P. W. 10 is not a reliable witness as his presence in the house where Hilal Ahmad Siddiqui and his wife Mst. Anis Begum were murdered itself is doubtful. His presence in the house has been shown by the police merely for the purpose of registration of the case at the Police Station. The fact that the autopsy on the dead bodies was held on 13-12-1978 between 9-45 a.m. And 10-30 a.m. When the dead bodies were brought to the mortuary by Abdul Majid Foot-Constable, P. W. 2 as shown in the Medical Officer's notes on the injury statements, Exh. P. W/12/E and Exh. P. W/12/F clearly indicates that the dead bodies were brought for post-mortem examination in the mortuary on 13-12-1976. Had the F. I.
R. Been recorded at 7-30 a.m. And the Investigating Officer Ghanzanfar Hussain Shah, P. W. 15 prepared the inquest reports and injury statements soon after his arrival at the spot, there would have been no difficulty in despatching the dead bodies for post-mortem examination to the mortuary on 12-12-1976. Delay in sending the dead bodies for post-mortem examination was caused as the inquest reports and the injury statements could not be prepared in the absence of the F. I. R. Abdul Hamid, P. W. 3 has disclosed that the dead bodies were not removed from the place of occurrence till 10-00 p.m. On the day of occurrence. He has also admitted that during his stay at the spot till 10-00 p.m. Nobody knew as to who had committed the murders and the people who were present at the spot were only making guess about the culprits. Even Muhammad Sharif, P. W. 10 who had allegedly seen the assailants has stated that he does not know whether the Investigating Officer bad asked people present at the spot to guess as to who could be the assailants. If the names of the assailants were known to the police and Muhammad Sharif, P. W. 10, the latter should have made a categorical statement that the Investigating Officer had not asked any one about the names of the assailants as the same were already known to him. It is in evidence that the mortuary was at a distance of four miles from the house of Hilal Ahmad Siddiqui.
No plausible explanation has been given either by Ghazanfar Hussain Shah, P. W. 15 or Abdul Majid Foot Constable, P. W. 3 as to why the autopsy on the dead bodies was not held on 12-12-1976. They have stated that the dead bodies were removed from the place of occurrence at about 3-30 p.m.
And that the same had reached the mortuary at about 4-00 p.m. It is not possible to accept the above statements because according to the notes recorded by the Medical Officer on the injury.
Statements the dead bodies were produced for post-mortem examination on 13-12-1976 at about 9-30 a.m. It appears that Hilal Ahmad Siddiqui and his wife Mst. Anis Begurh were murdered in their house at night by some unknown persons. No. One had seen the assailants committing the murders. Although the children of the deceased couple were present in the house, it is doubtful whether they had seen the assailants inflicting injuries on the person of their parents. It may be said that Rohail Ahmad, P. W. 13 had seen the occur--rence as he too had received an injury when his father was attacked by the assailants. Since the prosecution has not examined the doctor who had medically examined Rohail Ahmad, it is difficult to say whether the injury found on his person was sustained by him at the time of occurrence and that it was caused with the same weapon which was used by the assailants in committing the murder of his parents. But even if it be assumed that Rohail Ahmad bad seen his parents being murdered by the assailants it would not help the prosecution because, he, being of tender age is incompetent to testify in Court which fact we have already noticed above while discussing his deposition. Confronted with such a situation where two persons were found murdered in their house by some unknown assailants, the police had no choice but to introduce some person who could not only lodge the F. I. R. At the Police Station but could also help the police in solving the mystery of the blind murder. Muhammad Sharif P. W. 10 was found as the most suitable person for the purpose because he not only knew the murdered persons but also had some connection with them on account of which his stay in their house at night could also be justified. The appellants must have been suspected of having committed the murders because Hilal Ahmad Siddiqui had abducted the daughter of Muhammad Din appellant a few months prior to the occurrence. So it was not difficult to implicate them in the case. Munir Akhtar Malik, P. W. 8 a friend of Hilal Ahmad Siddiqui, was picked up as a Wajtakkar witness to corroborate the story narrated in the F. I. R. Which is nothing but a mere concoction and the result of clever imagination of the police officer who investigated the case. Keeping in view the aforementioned facts and circumstances, we are inclined to agree with the learned counsel for the appellants that the F. I. R. In the case was not lodged at 7-30 a.m. On 12-12-1976 and that the case was registered late in the evening after due deliberation as a result of which the names of the appellants were mentioned in the F. I. R. As the assailants.
11. The prosecution has also relied on the recovery of blood-stained chhuris on the pointing out of the appellants as corroborative piece of evidence chhuri, P. 13 was recovered from a residential kotha situated in Walayat Abad Colony, Multan at the instance of Asghar appellant. Muhammad Ijaz, P. W. 14 who was present at the time of recovery has` stated that he did not know as to who was the owner of the house from which the recovery was effected. He has further stated that no one was present inside the house. Ghazanfar Hussain Shah, P. W. 15 who effected the recovery also did not know the name of the owner of the house. In fact he made no inquiry about it after the recovery was effected Chhuri, P. 12 was also recovered from the same house at the instance of Muhammad Din appellant on 23-12-1976. Abdul Qadir, P. W. 7 who had witnessed the aforementioned recovery has stated that the house was found deserted when the recovery was made. From the above evidence it is clear that the prosecution has failed to prove that the blood- stained chchuris allegedly used by the appellants in committing the murders of Hilal Ahmad Siddiqui and his wife Mst. Anis Begum were recovered from their posses- F "ion because the house from where these recoveries were effected was neither owned by the appellants nor was it in their occupation at the time of recovery of the aforementioned chhuris. The prosecution has also relied on the recovery of blood-stained clothes which Asghar appellant was wearing at the time of his arrest. According to the prosecution version Asghar appellant alongwith his father had committed the murders of Hilal Ahmad Siddiqui and his wife Mst. Anis Begum in the early hours on 12-12-1976.
He was arrested by the police in the evening on the same day at about 4-30 p.m. It is inconceivable that Asghar appellant, who was not apprehended from the spot soon after the occurrence, would not have changed his blood-stained clothes till 4-30 p.m. When he was arrested by the police. The recovery of blood-stained clothes under the circumstances does not appear to be genuine and as such cannot used as a piece of corroborative evidence against the appellants especially when the ocular evidence produced against the appellants has already been declared to be unreliable.
12. The upshot of the above discussion is that the prosecution has failed to prove the charges against the appellants beyond reasonable doubt. The order of conviction and sentence passed against the appellants is therefore not legally sustainable. We allow their appeal and set aside the order of conviction and sentence passed against them. They shall be release forthwith if they are not required to be detained in any other case. The sentence of death awarded to the appellants is not confirmed.