' MUHAMMAD RAFIQ TARAR, J.-- Muhammad Tufail (30), son of Chiragh, resident of Kot Bismillah, was tried under section 302, P.P.C. On the allegation that on 19th August, 1984 he committed the murders of Qurban Ali and Safdar Ali, minor sons of Nur Ahmad, in the area of Kot Bismillah. His father Chiragh, Mst. Sairan Bibi, wife of Chiragh, Mst. Razia alias Rani, daughter of Chiragh and Ataullah, son of Inayat Ullah, were tried with him under section 302, P.P.C. Read with section 109, P.P.C. For having abetted the murders of aforesaid Qurban Ali and Safdar Ali. By judgment dated 2nd March, 1987, Chiragh, Mst. Sairan Bibi and Mst. Razia alias Rani were acquitted on benefit of doubt while Muhammad Tufail was convicted under section 302, P.P.C. On two counts and was sentenced to death subject to confirmation by this Court and a fine of Rs,20,000 on each count.
Ataullah was convicted under section 302/109, P.P.C. And sentenced to imprisonment for life and a fine of Rs,20,000 on each count. In default of payment of fine they were ordered to undergo rigorous imprisonment for three years on each count. They were also directed to pay Rs,10,000 each on each count as compensation to the legal heirs of the deceased kids. The condemned prisoner has filed Criminal Appeal No, 25/J of 1987 through Superintendent Jail, Kasur, and Ataullah convict has filed Criminal Appeal No, 154 of 1987 to challenge their convictions and sentences. The case is also before us on reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to condemned prisoner Muhammad Tufail. Both the appeals and Murder Reference are being disposed of through this judgment.
2 According to the F.I.R. The prosecution case is that Mst. Nasim Bibi complainant had three sons, namely, Qurban aged 10/11 years, Safdar aged 8 years, Imran aged 3 years, and a daughter aged six months. She was residing with her husband Nur Ahmad in village Kot Bismillah. On 19-8-1984 at 8 a.m. She alongwith Qurban went to a nearby garden in order to purchase guavas leaving Safdar and her infant daughter in the house. After about half an hour she started back for her house alongwith Qurban who was a few paces ahead of her. As soon as she entered the courtyard she heard his shriek. He shouted that Tufail was causing injuries to Safdar with a hatchet. At the same time Tufail accused chased Qurban and gave several hatchet blows hitting his neck, shoulders and back side of head. Mst. Nasim Bibi tried to intervene, upon which Tufail accused wielded a blow but she held the handle of his hatchet and during the process sustained injuries on the left side of neck.
Qurban succumbed to his injuries at the spot. Mst. Naseem Bibi raised alarm attracting Barkat Ali, Ahmad Din and Nazir Ahmad who were already seeing the occurrence. They overpowered Tufail accused alongwith the hatchet. On entering the room, Mst. Nasim Bibi saw the dead body of Safdar deceased lying in a pool of blood under the cot. Acquitted accused Chiragh, Mst. Sairan and Mst.
Rani were present in the courtyard.
' The motive alleged in the F.I.R. Was that four months prior to the occurrence Ataullah accused had purchased the house of the complainant party for a sum of Rs,14,000; after paying Rs,8,000 he occupied one room; it was agreed between the parties that the sale-deed would be executed on payment of the remaining amount but Ataullah later on insisted for registration of the deed without paying the remaining amount, to which Nur Ahmad, father of the deceased children, did not agree.
In order to tease the complainant party, Ataullah installed Muhammad Tufail and his parents in the said room.
' After the occurrence, Mst. Nasim Bibi started for the police station. On the way Mukhtar Ali A.S.I. Met her at the bridge of Kanganpur Minor and she reported the occurrence to him at 10 a.m. Vide her statement Exh.P.C.M./1, on the basis of which formal F.I.R. (Exh.P.C.) was recorded at the police station at 10-15 a.m.
3. After recording the statement of Mst. Nasim Bibi, Mukhtar Ali, A.S.I. Reached the spot and found the dead body of Qurban deceased lying in the courtyard and that of Safdar deceased inside the room. He prepared injury statement (Exh.P.M.) and inquest report (Exh.P.L.) of the dead body of Safdar deceased and injury statement (Exh.P.O.) and inquest report (Exh.P.N.) of the dead body of Qurban deceased and despatched both the dead bodies to the mortuary for post-mortem examination. Then he took some blood-stained earth from the places where dead bodies of Safdar and Qurban deceased were lying and made it into separate sealed parcels vide memos. Exh.P.F.
And Exh.P.J. Respectively. Muhammad Tufail accused was produced before him and he arrested him. Ahmad Din P.W. Produced blood-stained hatchet (Exh.P.4) before him which had earlier been snatched from Muhammad Tufail accused. The A.S.I. Made it into a sealed parcel vide memo.
Exh.P.G. He also removed Shalwar (Exh.P.5) and shirt (Exh.6), both blood-stained from the person of Tufail accused and made them into a sealed parcel vide memo. Exh.P.K. He. Prepared injury statement (Exh.P.Q.) of Mst. Naseem Bibi and got her medically examined.
' Muhammad Ibrahim, S.H.O. Police Station Kanganpur, took over the investigation on 22-8-1984. He arrested Chiragh, Mst. Razia and Mst. Sairan on the same day and Ataullah accused on 2-9-1984.
After completing the investigation, he submitted the challan.
4. On 20-8-1984 at 7 a.m. Dr. Muhammad Rafi, Senior Medical Officer, D.H.Q. Hospital, Chunian, conducted the autopsy on the dead body of Qurban Ali deceased, aged 10 years, and found as many as seven incised wounds on his person. Spinal cord in the cervical region was cut. Lower cervical vertebra was cut under injury No,4. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injuries Nos. 4 and 7. Injury No,4 was an incised wound 8 c.m. x 5 c.m. On the right side of neck. All the structures on the side, i,e, blood vessels, muscles and cervical vertebra were cut. Injury No, 7 was an incised wound 3 c.m. x 2 c.m. On the left side of neck, underlying muscle was cut.
' On the same day, the same doctor conducted the autopsy on the dead body of Safdar Ali deceased, aged 8 years, and found the following injuries on his person.
(1) An incised wound 3-2 c.m. And 1 c.m. Skin deep on the outer side of right eye.
(2) An incised wound involving the whole of front of neck. All the structures in front of the neck were cut.
' In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No,2.
' On 19-8-1984 Dr. Muhammad Arshad, Medical Officer, Rural Dispensary, Kanganpur, examined Mst.
Naseem Bibi alias Sheeman ' P.W. And found the following injuries on her person:-
(1) A small incised wound on right pinna.
(2) An incised wound on the base of neck, 4 c.m. In length, skin deep.
(3) An incised wound on left palm, skin deep.
(4) Multiple abrasions on left shoulder.
5. In support of its case the prosecution examined fifteen witnesses in all, including three eye- witnesses, namely, Naseem Bibi complainant, Ahmad Din (P.W.8) and Nazir Ahmad (P.W.9).
' The appellants pleaded not guilty to the charge. Ataullah appellant when asked why this case against him, made the following statement:- "The P.Ws. Are inter se. Noor Ahmad had struck the bargain of his house with my wife. Rs,8,000 were paid and the remaining amount was to be paid at the time of execution of sale-deed. One residential room of the house of Noor Ahmad was handed over to us. Ghulam Sarwar, an Army man, brother of Tufail co-accused rented the said room for his family (wife and children). Noor Ahmad had never convened any Panchayat or asked me to get the possession of whole house by paying the balance. Actually I had asked him to get the sale-deed executed after having the balance amount. I have never extended any threat to Noor Ahmad or to any other member of his family. Noor Ahmad had never complained to me about the misbehaviour of Muhammad Tufail and his family at any time. The room in my possession was rented out by us to Ghulam Sarwar with the consent that Noor Ahmad and his wife Mst. Nasim Bibi, as said Ghulam Sarwar's family i,e, wife and small children had to stay in that rented house and Ghulam Sarwar at that time was posted at Rahim Yar Khan. There was no motive indicated by the complainant in this case, after due consultation, motive of this case was concocted to strengthen the prosecution case. Noor Ahmad and the complainant in consultation with other P.Ws. And police concocted the motive to implicate me so that Noor Ahmad P.W. And Mst. Nasim Bibi complainant can deprive my family from the house, which was taken by us by paying advance of Rs,8,000 and could digest the advance paid to them. In the agreement subscribed on 9-5-1984 is written that the said portion of house could be rented, mortgaged or could put up himself, Noor Ahmad and his family would have no objection.
On the basis of that agreement to sell I rented out that portion of the house to Ghulam Sarwar bona fide. I was later on involved in this case falsely with mala fide intention in connivance with Ibrahim S.H.O. That is why after such a long period the said S.H.O. In connivance with the complainant party procured false evidence to set up a concocted and afterthought motive (sic)."
' Muhammad Tufail appellant stated that he had been falsely implicated due to enmity and suspicion. When asked whether he wanted to say any thing else, he made the following statement:- "I am innocent. At the time of occurrence I was away from the house, The complainant and I have joint courtyard. When I came back to my house, I saw a number of people and police gathered at the spot. I came to know that some body in the absence of Mst. Nasim Bibi and Noor Ahmad and while none of major members of the house was present at the spot except Safdar, Qurban and their minor sister had committed the murders of Safdar and Qurban deceased. I was made to sit there. The room which was occupied by us was rented to my brother Ghulam Sarwar, a military personnel, by Ataullah accused's family. Nobody had asked me to do any illegal act. I am involved in this case falsely. Nothing was recovered from my person."
' No evidence was led in defence.
6. After examining the evidence on the record, the learned trial Judge acquitted Chiragh Din, Mst.
Sairan and Razia alias Rani by giving them the benefit of doubt. He, however, accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above.
7. Learned counsel for Ataullah appellant vehemently contends that prosecution had been at pains to fabricate evidence against his client and the same was procured at a belated stage. He submits that the evidence produced by the prosecution against Ataullah appellant is not at all sufficient to warrant conviction on the charge of abetment. Mr. Muhammad Rafiq Butt, Advocate, appearing for Muhammad Tufail appellant at State expense frankly conceded that there was nothing in evidence favouring the aforesaid appellant. He, however, submitted that the motive for this unfortunate occurrence is shrouded in mystery, therefore, capital punishment is not called for.
' Learned counsel for the State stoutly argued that the prosecution evidence was rightly relied upon by the trial Court; and Muhammad Tufail appellant who was caught at the spot with the blood- stained hatchet, does not deserve any leniency in the matter of sentence.
8. In support of its case the prosecution examined three eye-witnesses, namely, Mst. Nasim Bibi alias Sheeman (P.W.5), Ahmad Din (P.W.8) and Nazir Ahmed (P.W.9). Mst. Nasim Bibi alias Sheeman, the unfortunate mother of the two deceased kids, had the stamp of injuries on her person therefore, her presence at the spot is not open to the slightest doubt. Ahmad Din P.W. Being her next door neighbour is a very natural witness of the occurrence. Nazir Ahmad P.W. Is the paternal-uncle of the deceased children. He is a resident of Mandi Kanganpur while the occurrence took place in Kot Bismillah, the distance between the two places being ten to fifteen Acres. He stated that he was running a cobbler shop at Mandi Kanganpur jointly with his brother Nur Ahmad, the father of the deceased children. On the fateful morning he went to the house of his brother to have the key of the shop from him which he had taken with him on the previous evening. In that view of the matter, he is a chance witness and out of abundant caution we are keeping his evidence out of consideration. The presence of other two witnesses, namely, Mst. Nasim Bibi alias Sheeman and Ahmad Din, is fully established. In cross-examination Mst. Nasim Bibi stated that the main door of her house is towards the south and door of Ahmad Din's house is almost opposite to the door of her house. The site plan also indicates the same position. Actually it is not denied that the house of Ahmad Din is close to the house of occurrence. A suggestion was hurled on Mst. Nasim Bibi that house belonging to Ahmad Din in her 'neighbour' was on rent with Saeed Shah, Lineman which she categorically denied. Ahmad Din P.W. Has no relationship with the complainant family. He stated that on the fateful morning he was present in his house when he heard shrieks of Mst. Nasim Bibi.
He rushed to her house and saw Tufail appellant giving blows to Qurban deceased who was already lying down. Mst. Nasim was crying and trying to intervene. She strived to catch hold of the hatchet but the accused did not let her do that and caused her injuries. Qurban died at the spot while his brother Safdar was already lying dead inside the room. Tufail accused was overpowered and apprehended at the spot with the blood-stained hatchet. Both Mst. Nasim Bibi alias Sheeman and Ahmad Din were cross-examined at length but nothing favourable to Tufail appellant could be elicited from their statements, which are consistent on the main features of the case. They had no motive at all to falsely implicate him in a heinous crime like the present I one. A suggestion was hurled on Mst. Nasim Bibi alias Sheeman that other enemies of her family were responsible for the murder of her sons which she1 categorically denied. The names and/or other details of the 'other enemies' were! Not put to her and there is nothing on the record to show that the complainant; family had other enemies. The occurrence took place in the broad daylight right inside the house of Mst. Nasim Bibi alias Sheeman. If some body else had! Committed this wanton aggression, there was no earthly reason for Mst. Nasim Bibi to spare him and attribute the gruesome murders to Muhammad Tufail appellant, with whom she had absolutely no enmity which could prompt her to I fit falsely implicate him. Therefore, so far as Muhammad Tufail appellant is concerned, we are fully satisfied that he has been rightly convicted under section 302, P.P.C. On two counts. He committed the murders of two innocent and defenceless children, therefore, death sentence on each count is the only appropriate sentence which could be awarded to him. There is no mitigatingi circumstance in his favour, therefore, we confirm his death sentence on each count. We also maintain the sentence of fine and order regarding compensation His appeal is dismissed.
9. The case of Ataullah appellant, however, stands on different footing. In the F.I.R. It was stated that due to differences over the payment of the remaining price of the house and the execution of the deed, Master Ataullah (this appellant is a school-teacher) installed Muhammad Tufail accused and his parents in the house in order to tease the complainant family. However, at the trial Mst.
Nasim Bibi came up with the version that 'this annoyed Ataullah, who threatened us with dire consequences, saying that we would not be spared. Ataullah hired Muhammad Tufail and asked him to possess the house with his family, so that we could be rendered helpless, and were terrorised'. She was confronted with the F.I.R. Wherein it was not so recorded. In examination-in- chief she further stated that her 'sons were murdered at the instance and with the planning of Ataullah accused'. She was again confronted with the F.I.R. Where it was not so recorded.It is evident that at the trial she had improved her statement with regard to motive and role of Ataullah accused.
' In examination-in-chief Ahmad Din P.W. Almost supported the version of Mst. Nasim Bibi regarding motive. In cross-examination he admitted that he was not a witness to the bargain between Ataullah accused and Nur Ahmad (father of the deceased children) regarding the house in question. His evidence' regarding motive is, therefore, not of much consequence.
10. We have already ignored the statement of Nazir Ahmad P.W. Regarding the actual occurrence.
He also deposed about the motive. He stated that these `murders were committed by Tufail accused at the instance of Ataullah accused' who in order to tease Nur Ahmad (father of the deceased children) had installed aforementioned accused family in the residential room. He further stated that `Tufail used to tease Nur Ahmad and his wife by easing himself right in the courtyard and by making himself naked'. He was confronted with his statement before the police (copy Exh.D.B.) dated 19-8-1984 wherein it was not so recorded. However, substantial part of the above statement finds mention in the supplementary statement (Exh.D.B./1) recorded on 24-8- 1984. It is evident that this version was brought on the file at a very belated stage. In examination- inchief Nazir Ahmad P.W. Further stated that 2/3 days before the occurrence Nur Ahmad requested Ataullah accused through a Punchayat to ask Tufail accused and his family members to vacate as they were putting him to lot of agony and embarrassment, upon which Ataullah stated that Tufail would remain there and that dead bodies of his family members would soon be seen lying on the ground. In examination-in-chief he admitted that he had not attended the Punchayat convened two/three days before the occurrence and what he had stated about the Punchayat and its proceedings was based on hearsay.
11. Statements of Nur Ahmad and Manzur Ahmad under section 161, Cr.P.C. Were also recorded at a very belated stage. According to his own showing, Nur Ahmad was present in his house near the dead bodies when the police arrived there. He claimed that the Thanedar had recorded his statement on the day of occurrence and also on 24-8-1984. He denied the suggestion that he had not made any statement before the police on the day of occurrence. There is a note by the Court that on the record there was only one statement of the witness before the police and that was made on 24-8-1984. So, for the first time he made statement before the police regarding motive on 24-8-1984 and in that view of the matter, his evidence does not inspire confidence.
' Manzur Ahmad P.W. Stated that he made statement before the police on 30-8-1984; on 24-8-1984 a police constable visited him at his shop and he made him aware of what he knew about the incident. The constable told him that he would be summoned at the police station and examined there and he made a statement at the police station on 30-8-1984. The witness claims to have participated in the funeral prayers on 20-8-1984 and visited the house of the complainant family on 22-8-1984 to condole the deaths but for the first time he F made statement before the police on 30-8-1984, i,e, eleven days after the occurrence, and in that view of the matter it will be unsafe to rely on his statement.
12. Shahbaz (P.W.13) was produced to prove that two days prior to the occurrence both the appellants were seen together and he overheard Tufail appellant telling his companion that he would do as desired by him. Shahbaz P.W. Identified Tufail accused from the witness-box but in cross-examination he stated that the 'person sitting in the Court as Ataullah accused was not the man, who was sitting with Tufail accused...'. At this stage it need be mentioned that during the arguments Nur Ahmad, unfortunate father of deceased kids, appeared and stated that in pursuance of a compromise he had forgiven Ataullah accused. The evidence produced by the prosecution against Ataullah accused, as discussed above, is not sufficient to warrant conviction on a capital charge. We, therefore, allow the appeal of Ataullah appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.
13. While parting with this judgment, we are constrained to observe that the conduct of the cross- examiner was highly abominable. The unfortunate mother of the two deceased kids was subjected to humiliating cross-examination, for which there was apparently no justification. It was suggested to her that she had `cultivated illicit relations' with one Saeed Shah. Trial Court's note, at page 26 of the paper book, shows that she strongly protested and burst into tears when another suggestion was hurled on her that she was abducted by one Umar Arain in the year 1981 and had lived with him for one year. Both the suggestions were categorically denied by the poor lady and no attempt was made by the defence to bring any material on the record showing that the same were not false. The cross-examiner owed no duty to his client to put such suggestions to the mother of the deceased kids and add insult to her injury. In some cases such suggestions put at random, without any basis, may lead to prosecution under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. Under section 6(b) Qazf committed in the presence of the Court is liable to Hadd. The cross- examiners are well-advised to get instructions, preferably in writing, from their clients and examine them with a view to find out of what worth they are before challenging the modesty of a female witness.