MUHAMMAD MUNIR FARUKEE, J.---This is a reference under section 374 of the Criminal Procedure Code for the confirmation of the death sentences passed under section 302/34, P. P. C. (on two counts) on 14th February 1970, by the then Additional Sessions Judge, Dera Ghati Khan, against the four accused Abdur Rashid alias Rashid, aged 26 years, Yasin son of Ismail, aged 28 ;fears, caste Rajput, residents of Kotla Isan, Imam All son of Mohr Din, aged 26 years, Ziladar son of Radar Din, aged 30 years, castle Rajput, residents of Mauza Sahanwala for committing the murders of Mst.
Bilqis and her father Abdur Ghafur (deceased) in furtherance of their common intention at about 2-00 a.m. On the bight between 10th/11th August 1968, inside their house in ---Nai Basti' situate at a distance of one furlong 40th Police Static" Fazilpur, District D. G. Khan.
They have also preferred an appeal under section 410, Cr. P. C. Questioning the correctness of this order, and both these matters are being disposed of by this judgment.
2. Hassan Muhammad (P. W. 9), the elder brother of Mst. Bilqis (deceased) and the son of Abdul Ghafoor (deceased) had lodged the first information report (Exh. P. K) within half an hour of this occurrence at the police station which disclosed that these ghastly murders were the outcome of a matrimonial crisis between the two families.
3. Mst. Bilqis (deceased) was married to Abdur Rashid accused in exchange for the marriage of his sister, Mst. Rashidan (p. W. 10) with, her brother Hassan Muhammad (P. W. 9) about five/six years before this occurrence. Mst. Bilqis being a minor was not sent along with her husband Abdur Rashid accused at the time of her nikah and on attaining the age of puberty she exercised her option against him and obtained a decree for the dissolution of her marriage from the local civil Court about a year before her murder: Mst. Rashidan, the sister of Abdur Rashid accused, had however, settled down quite happily with her husband Hassan Muhammad (P. W. 9) and bore him some children as well out of their wedlock. Abdur Rashid accused felt greatly distressed as in the meanwhile the parents of Mst. Bilqis had decided to perform her marriage with Muhammad Ali, one of her maternal cousins. The situation so created added fuel to the fire already smouldering in his heart over his misfortune, so he decided to retrieve her at all costs.
4. On 10th August 1968, her mother and younger sister Mst. Iqbalan had gone to village Kotla Androon to meet her relatives, while her brothers Hassan Muhammad (P. W.) and Muhammad Asghar were away to Rajanpur leaving her alone in the house with her old father Abdul Ghafoor (deceased) and his own sister Mst. Rashidan (P. W. 10) which intrigued him and conspiring with the other accused Yasin, his maternal uncle and the two cousins of the latter Imam Ali and Ziladar about it reached the house of Abdul Ghafoor (deceased) on the eventful night and found him asleep near his son Hassan Muhammad (P. W. 9) in the open space in front of the main door and entered the court. Yard by climbing over the out wall, where Mst. Bilqis (deceased) and his sister Mst. Rashidan (P. W. 10) had spread their cots quite close to each other. Abdur Rashid was armed with chhuri, Yasin, Imam Ali and Ziladar had a hatchet each. Abdur Rashid accused caught hold of Mst. Bilqis and asked her to accompany him but she refused to do so. On this Yasin accused planted a hatchet blow on Mst. Bilqis and Abdur Rashid accused inflicted injuries on her person with his chhuri. Imam Ali and Ziladar accused also gave her some blows with their respective hatchets. Mst. Rashidan (P. W. 10) who had also woke up at that time quietly slipped outside the house and rushing to the cot of Abdul Ghafoor (deceased) informed him about the calamity which had befallen Mst, Bilqis. Hassan Muhammad (P. W. 9), who was sleeping besides his father on a separate cot, had also woke up on bearing about it. Both of them dashed towards the courtyard headed by Abdul Ghafoor (deceased) and as the latter reached the main entrance of the house he was accosted by the accused. Rashid gave him a chhuri blow while Yasin, Imam Ali and Ziladar showered blows on him with their respective hatchets mad which fell him to the ground. Hassan Muhammad P. W. And his wife Mst. Rashidan P. W. Out of fear retreated and watched this dreadful tragedy from a safer distance. The alarm so raised had attracted Juma and Rahim Hussain, who also claimed to have witnessed the occurrence. On seeing them arrive the four accused made good their escape with their respective weapons. They then attended to the victims of this dastardly assault and found that both of them had succumbed to their injuries. Leaving Me.
Rashidan (P. W. 10) and aforesaid Juma and Rahim Hussain at the spot to guard the dead bodies Hassan Muhammad P. W. Went to the police station and lodged the above report at 2-30 p. m. On the same night, which was recorded by Shah Alam Khan, Station House Officer.
After the formal registration of the case, the Sub-Inspector reached the spot and. Despatched the two dead bodies after preparing the necessary injury statement Exh. P. Q. And inquest report Exh.
P/Q/1 in respect of Mst. Bilqis and the injury statement Exh. P. R. And inquest report Exh. P. R/1 with regard to Abdul Ghafoor (deceased) Ahmad Khan, Foot Constable (P. W. 4) had escorted the dead bodies to-the mortuary, who brought back blood-stained clothes. Chadar (P. 1) of Abdul Gahfoor and, shalwar (P. 2), Dopatta (P. 3) and shirt (P. 4) of Mst. Bilqis (deceased) and produced them before the Sub-Inspector vide Exhs. P. A. And P. B. Respectively. During the inspection of the spot he took into possession blood-stained earth from the place of murder of Abdul Ghafoor vide Exh. P. C.
And that of Mst. Bilqis vide Exh. P. D. Which he sealed into separate parcels. He found nikahnama (P.
5) and a silken handkerchief (P.6J"with two currency notes of one-rupee each (P. 7/1-2), tied in it lying in the street just outside the main entrance which he took into posses--sion vide Exhs. P. E.
And P. F. Respectively in the presence of Abdur Razzaq (P. W. 6). As the nikahnama was found stained with blood he sealed it into a parcel. He had immediately deputed Mushtaq Hussain, Assistant Sub-Inspector (P. W. 12) for the arrest of the accused who apprehended Abdur Rashid accused at about 5-30 c.m. " early in the morning and on his personal search recovered blood, stained chhuri (P. 9) from the right fold of his loin cloth which was made into a sealed parcel vide Exh. P. H. In the presence of Karim Bakhsh (P. W. 8). His clothes were found stained with blood, so he got removed from his person chador (P. 10), turban (P. 11) and shirt (P. 12) which were also made into a separate scaled parcel vide Exh. P. J. In the presence of the same witnesses.
Yasin and Ziladar accused were produced by Muhammad Iqbal Bodhla before Sub-Inspector Shah Alain Khan (P. W. 11) at the Police Station Fazilpur on 12th August 1968. In the course of his interrogation while in custody, Yasin accused led to the recovery of hatchet (p. 8) from an abandoned Math (oven) which was sealed into a parcel vide Exh. P. G. In the presence of Syed Mulk Shah (P. W. 7). Umar Farooq, Foot Constable brought Imam Ali accused from Kot Samba. District, Rahimyarkhan and produced him before the S. I. On 14th August 1968, who formally arrested them.
The Sub-Inspector got prepared site plan Exh. P. O. From Ghulam Hussain Patwari (P. W. 1) and patting his note in red ink on the same signed it in token of its correctness. The sealed parcels containing earth from two places, chhari, hatchet, nikahnama and the clothes (of Abdur Rashid accused) were sent to Chemical Examiner, who vide his report Exh. P. T. Found them stained with blood which was traced by the Serologist as that of 'human origin vide his report Exh. P. U.
5. On 11th August 1968, at 10-00 a.m. Dr. Sher Muhammad Kaleem (P. W 14) performed post-mortem examination on the dead body of Abdul Ghafur (deceased) and found the following injuries vide Exh. P. L:----
(1) A lacerated wound 1' x --''on the left side of head 2--'' above the left ear.
(2) An incised wound 4' x 2' x 2' obliquely on the left side of the head extending on the middle of the back of the left ear downward and inward cutting the underlying bones.
(3) An incised wound 4--''x 1'x 1--'' on the right side of neck extending from middle of front of neck to 1--'' below the right ear cutting carotid vessels and nerves in the way.
(4) An incised wound 2--'' X 1' x 1' on the left side of neck below the body of left mandible cutting the left side of trachea.
(5) An incised wound 6' x 2' x 3--'' on the front of left shoulder cutting the clavical in the middle and other structures in the way.
(6) An incised wound 4' x 2' x 3' on the back of middle of left arm cutting the humerus in the middle.
(7) An incised wound 1--'' x --'' on the abdomen 1' above and to the right of umbilicus
(8) An incised wound 3/4' and 1/4' on the abdomen 2' to the left of umbilicus.
On dissection the doctor found scalp, skull, trachea, thorax and large vessels of the neck cut under the above injuries to cause death in the ordinary course of nature. The death was immediate and the probable time that elapsed between the death and post--mortem was 6 to 12 hours.
On the same day the same doctor also held autopsy on the dead body of Mst. Bilqis (deceased) and found the following injuries on her person vide Exh. P. N:----
(1) An incised wound 6' x 2' x 5' on the anterior part of the top of head obliquely in curved position from before backward and downward cutting the underlying bones and brain.
(2) An incised wound '4' x --'' x 2--'' on the back of right s of head 2' above and to the back of tight ear cutting the underlying bones and brain.
(3) An incised wound 1--'' x --' x --' on the right side of posterior part of head below and outward to injury No. 2.
(4) An incised wound 4` x 1' x 1' on the left side of head from before backwards --'' above the left oar cutting the underlying bones.
(5) An incised wound 2--''' x --'' x --'' on the back of lower part of the head from above downward cutting the underlying bones.
(6) An incised wound 2--''' x --'' x --'' on the back of lower part of the head in transverse direction -- '' below injury No. 5.
(7) An incised wound 4' x 1' x 1' on the back of neck 1 /2' below and parallel to injury No. 6.
(8) An incised wound 6' x 1--'' x 1' on the left side of back of neck extending from below the left and of injury No. 7 down--ward and outwards to the middle of spine of scapulae.
(9) An incised wound 8' x 4' x 4' on the right side of neck cutting the carotid vessels, trechea, essophagus cervical vertebrae and other structures in the way.
(10) An incised wound 2' x 1' x sking deep on the right side of neck below the body of mendible.
(11) An incised wound 4--- x 2--'' x 2' on the right shoulder, just outer to the tip of shoulder.
(12) An incised wound 3' x 3/4' x 1/2' on the back of outer side of the right hand and back of thumb cutting the second metacapal bone.
(13) An incised wound 4' x 2' x 2' on the outer side of the middle left arm cutting the humerus.
Scalp, skull, membranes, brain and carotid vessels were cut under these injuries which were anti- mortem and sufficient to cause death in the ordinary course of nature. The probable duration between injury and death was immediate and between death and the post-- mortem was 6 to 12 hours.
6. The four accused when examined at the trial pleadings not guilty to the charge denied all these allegations and averred their false implication in the case on account of enmity.
Abdur Rashid accused, however, admitted that he had married Mst. Bilqis (deceased) in exchange for the marriage of his sister Mst. Rashidan P.W. With her brother Hassan Muhammad (P.W.9) and she had obtained divorce through the Court. Yasin accused, his maternal uncle, stated that he had been involved in this case as he had been pursuing the divorce suit filed by Mst. Bilqis (deceased) against Abdur Rashid accused, but neither of them led any evidence in defence.
7. The prosecution in its turn had relied for its case on the testimony of Hassan Muhammad (P. W.
9) and Mst. Rashidan (P. W. 10) for the ocular account of the occurrence, who faithfully adhered to the above narration. Of the other two persons who had arrived at the spot on hearing the hue and cries of the inmates of this house and witnessed it, Rahim Hussain was given up while juma had died before the commencement of the trial and his statement recorded by the committing Magistrate on 26th December 1968, was transferred to this record under section 33 of the Evidence Act on the request of the learned Additional public prosecutor, wherein he had also lent due support to the prosecution case.
8. The learned trial Judge accepted their evidence, which has been assailed before 'us as extremely discrepant tainted and insufficient to bring home the evidence against any of the four accused, Malik Saeed Hassan, Advocate, appearing on behalf of the accused, urged that the assailants had admittedly muffled their faces to conceal their identity when they launched this violent attack on their victims, so there was no possibility of their identification by the prosecution witnesses in the fear and fright of these anxious moments much less in case of Imam Ali and Ziladar, who had rarely met them and bad no motive of their own to join hands with the other accused. He seriously contested the claim of Hassan Muhammad (P. W. 9) that he had returned from Rajanpur on that evening and witnessed the occurrence.
9. On being taken through the record I am inclined to agree with leis last contention that Hassan Muhammad P. W. Was not presence at the house on the fateful night and Mst. Rashidan (P. W. 10) could not have identified Imam Ali and Ziladar accused as she ha nss r se n them r heard their voice since her childhood.
10. Hassan Muhammad (P. W. 9) had stated in the first information report (Exh. P. K.) that on the preceding day in the morning he had gone to Rajanpur along with his younger brother Asghar and a bullock to fetch a cart for which he had placed an order with a mistri there, but as the cart was not ready he came back telling his brother to follow him with the bullock, but at the trial he had clearly avoided to mention in examination-in-chief about his visit to Rajanpur for reasons which are not far to seek. It appears that he was conscious of this inherent improbability in the case as it would not appeal to reason that be would have taken the risk of leaving his brother to cover a distance of 30 miles all alone with the bullock especially when they had to go back to Rajanpur again on the next day. When questioned about it in his cross-examination he stated that he had left his brother Asghar in Rajanpur and himself returned to his house on that evening and thereby departed from his earlier statement that be had asked his brother to follow him with the bullock to his village. His sleeping outside the house was also unnatural as his wife Mst. Rashidan was living in the same house and in the normal course of events they should have slept together in the courtyard and when questioned about it he explained this departure from the normal routine by deposing that he was feeling tired on account of his journey, so he slept outside in the open space near his father adding that he had to go back to Rajanpur on the next morning.
There is yet another unnatural aspect of his conduct which speaks volumes about his absence from the house on that night and that be found in the absence of even on hisbody in this occurrence. It would not appeal to reason that a stalwart son of 32 years in age would permit leis old father and a younger sister to be hatched to death in front of his eyes without any attempt on his part to save their life.
The description of the clothes of the assailants given by this witness, also' from that given by Mst.
Rashidan P. W. Who has seen them from close quarters. According to Hassan Muhammad P. W. The accused had put on langotas and were wearing shirts with turbans on their heads. He denied that they had muffled' up their faces while Mst. Rashidan, as P. W: had stated emphatically that; they had muffled up their faces with dark clothes and only their eyes were visible and some of them were wearing chadars and other trousers (as distinct from langotas). This glaring discrepancy about the description of the clothes worn by the accused would indicate that 'Hassan Muhammad (P. W.) had not seen them at all at the time of this occurrence. He had also made substantial improvements over his earlier statement which also went along way to discredit his-testimony. He had stated in the first information report (Exh. P. K.) that his wife (Mst. Rashidan P. W.) came to him at 2-00 a. m. And waking him up and his father told them that four persons had entered the house, by scaling the outer wall without mentioning the name of either of them or their assault on Mst.
Bilqis (deceased) but in his statement at the trial he deposed that he was asleep along with his father on the night of the occurrence when at about mid-night his wife Mst. Rashidan woke up his father and told him that Mst. 'Bilqis was being murdered by Rashid. Yasin, Imam Ali and Ziladar accused and that he also woke up on hearing about it. He was duly contented with this improvement in his statement but insisted that he had mentioned the same in his statement before the police as well as before the committing Magistrate, although it was not recorded in any of these two statements. He had also changed the sequence of the arrival of Juma and Rahim Hussain P. Ws. At the spot and the information given to them by him at that time. In view of these salient features of the case I have great doubts about his presence in his house on the night of the occurrence.
11. As regards the testimony of Juma P.W. I am of the view that without recording the evidence of the official who had been entrusted with the service of summons on him (deceased) and had reported his inability to serve the same on account of his demise or production of some other reliable evidence about his death his statement recorded by the committing Magistrate could not be transferred to the record of the Sessions trial under section 33 of the Evidence Act and it would, therefore, be inadmissible in evidence as held in Allah Ditta v. The State (PLD 1958 SC (Pak.)290I accordingly exculde this statement from consideration in this case.
12. I am then left with the direct evidence supplied about the occurrence by Mst. Rashidan (P. W. 10), who had frankly admitted that she did not know the names of the father, brother or sister of Imam Ali or that of Ziladar accused and that she had seen, them only when she was a child. She had stated before the committing Magistrate that she had recognized the four accused from their voice when they talked to each other during is occurrence and reiterated the same in answer to a Court question during her testimony at the trial. In fact she had stayed the courtyard for only a few seconds after the arrival of th accused as she immediately slipped outside to inform Abdul Ghafoor about it and remained outside due to fear till their cape from the haveli as stated by her during the cross-exami--nation. She could thus have no more than a casual glance on the accused and could not have identified all of them in the hurry and worry of this moment. In view of her admission that she had not seen Imam Ali and Ziladar accused since her childhood the could not be so familiar with their voice as to be able to rocognize either of-them. Her claim that she had identified these a two assailants from their voice was apparently incredible. It would therefore be unsafe to rely on her testimony with regard to the participation of these two accused in this occurrence. Moreover, there is no incriminating recovery from either of them to connect them with this offence. I, therefore, decline to confirm the sentences of death awarded to them and setting aside the ram direct that Imam. Ali and Ziladar accused shall be set at liberty forthwith, if not required by the. Police in any other case. Thy reference with regard to these accused accordingly fails.
13. As regards Abdur Rashid and Yasin accused the evidence of Mst. Rashidan (P. W. 10) would, however, form an unsure---mountable hurdle against them. She is a real sister of Abdur Rashid accused and a niece of Yasin being a daughter of his real sister. On account of this close relationship inter se and their frequent contacts it would not be difficult for her to identify them in a moonlit night especially when she had seen them from close quarters being the occupant of a nearby cot where Mst. Bilqis (deceased) was sleeping when attacked by them. She had no ill--will or malice against either of them on account of which she could have falsely implicated them in this serious case.
14. It was urged that Mst. Rashidan had herself admitted that the assailants had muffled their faces with black cloth in such a manner that only their eyes were visible to her, so the possibility of mistaken identify could not be excluded in respect of these two accused as well, but to my mind it was no more than a parting concession made to favour her brother and I attach no importance to it.
15. The two accused had a strong motive to kill Mst. Bilqis or any one else who might think of resisting their attempt to abduct her as she had frustrated the plan of Abdur Rashid accused by securing her divorce through a Court of law where Yasin accused was defending him. He had married her in exchange of her own sister who was faithfully living with her brother as hip wife during all this time. This violation-of the watts marriage had brought ruin to both the families which is a common feature of rural life in backward areas like Dora Ghazi Khan. This important factor provided ample corroboration to the testimony of Mst. Rashidan in this case. I, therefore, feel no hesitation in placing my implicit reliance on her statement about the participation of Abdur Rashid and Yasin accused in this gruesome tragedy.
16. They were arrested by the police immediately after the occurrence and led to the recoveries of blood stained hatchet (P. 8) and blood-stained chhuri (P. 9) while the clothes of Abdur Rashid accused were also found blood-stained and taken into possession by the police as stated above.
All these recoveries were effected in the presence of Syed Mulk Shah, Abdur Razzaq and Karim Bakhsh P. Ws. Which had further reinforced the prosecution case against them. They are disinterested and independent witnesses who had seldom joined any police investigation and nothing was brought on record to impeach their credit. I have, therefore, no reason to doubt their veracity and accept their evidence about these recoveries. The prosecution had thereby established the charge of a double murder against each of them without any shadow of doubt.
It no doubt involved a question of family honour and provocation so far as Mst. Bilqis deceased was concerned but the were no such mitigating circumstances for the murder of her old father, Abdul Ghafoor deceased. These were deliberate and cold---blooded murders. I have, therefore, no option but to dismiss their appeal and maintaining their conviction under section 302/34, P. P. C. On both counts confirm the sentence of death awarded to each of them by the trial Court.
MUHAMMAD AFZAL ZULLAH, J.----I concur in the judgment of acquittal of Imam Ali and Ziladar for the grounds stated by my learned brother. On account of their clean acquittal I feel, by way of abundant caution, that in order to sustain the conviction of Rashid and Yasin, corroboration of the statement of Mst. Rashidan P. W. Qua each of them is essential. There is more than enough cor-- roboration against Rashid and it cannot be said that there is none against Yasin. Therefore, I agree with my learned brother that the conviction and sentences of Rashid and Yasin be confirmed.