' SALAHUDDIN MIRZA, J--The appellant is charged with the murders of his wife Mst. Rubina and his parents-in-law Noor Muhammad and Mst. Memoona. The F.I.R. Of this case was lodged by Mst.
Seema Naz, P.W.3, sister-in-law of the appellant. She stated in the F.I.R. That her deceased sister Mst. Rubina was married to the appellant and the couple had a one year old girl Mst. Aysha, that three months before the incident there was some quarrel between Mst. Rubina and the appellant and the appellant had left his wife Mst. Rubina at the house of her parents. On the day of the incident the appellant came to the house of his parents-in-law and wanted to take away with him his one year old daughter. This was resisted by Mst. Rubina whereupon a quarrel ensued between Mst. Rubina and the appellant during which the, appellant beat Mst. Rubina. Her father Noor Muhammad and her mother Mst. Memoona intervened but the appellant abused them and went away after threatening them that he would be soon coming back. He then came back at 5-00 p.m.
And first assaulted his father-in-law Noor Mohammad. On hearing the noise Mst. Seema Naz, her niece Shabbana and appellant's wife Mst. Rubina, as well as their mother Memoona and their brothers Nadeem and Usman rushed towards the room where Noor Muhammad was being attacked. Noor Muhammad rushed out of the room in injured condition followed by the appellant who repeatedly gave him chhurri blows whereupon Noor Mohammad fell outside the house and died of his injuries. Thereafter the appellant again went inside the house and attacked Mst. Rubina with churri. She also ran out of the house to save herself but was followed by the appellant and given further churri blows and when Mst. Memoona intervened to save her daughter she was also attacked in the lane outside the house. All the three persons, Noor Muhammad, his wife Mst.
Memoona and his daughter Mst. Rubina all died on the spot. The appellant is then reported to have himself gone to the Police Station and confessed to the crime. He was accordingly arrested. He was also produced before a Magistrate First Class for recording confession in which he confessed to the crime. After necessary investigation the appellant was challaned under section 302, P.P.C. Before the learned Chairman/Judge of the Special Court for speedy trial at Karachi. The prosecution examined as many as 15 witnesses, including five eye-witnesses. The prosecution also relied on the confession of the appellant, which was, however, retracted before the learned trial Court, and on the existence of motive. In his 342 Cr.P.C. Statement the appellant denied his involvement in the crime and claimed that he had been falsely implicated at the instance of his brother-in-law Farooq. According to him, Farooq had apprehended that his deceased parents Noor Mohammad and Mst. Memoona intended to give their house . To him (the appellant) and in order to prevent this, Farooq involved him in this case. He also alleged that Farooq had deprived him of all his dowry.
The appellant also examined himself in his own defence. He denied having made any confession before Magistrate and claimed that he had told the Magistrate that he was innocent. No defence evidence was produced. After assessing the evidence before him, learned Judge of Speedy Trial Court found the appellant guilty of tripple murder and vide impugned judgment dated 18-12-1988 sentenced the appellant to death and to pay fine of Rs,50,000. The case has come for confirmation of the death sentence and the appellant has also appealed against his conviction and sentence.
2. Learned counsel for the appellant and the learned AA.-G. Have been heard and record perused.
3. The defence plea is that it was a blind murder, that although the incident happened during the day time in a thickly populated area, still no independent witness has been examined by the prosecution, that there are material contradictions in the statements of P.Ws. Seema Naz, Shabbana, Mohammad Usman and Khursheed-ul-Haq and, besides, they are interested and related witnesses and, therefore, cannot be relied upon, that the motive set up by the prosecution in the F.I.R. And evidence of the complainant has been disproved by the evidence of other witnesses, that the investigation was started by the S.H.O. Prior to the registration of case, that the retracted confession was involuntary and had been recorded in English Language with which the appellant was ignorant.
4. We would first deal with the eye-witnesses of the incident. P.W.3 Mst. Seema Naz is the complainant. She is the daughter of deceased Noor Muhammad and Mst. Memoona and she stated that at the time of incident she, her brothers Mohammad Usman and Nadeem and Mst.
Shabbana, her niece, were all living in the same house. She further stated that deceased Mst.
Rubina was her sister and was married to appellant Riaz three years before the incident and had a one year old child named Mst. Aysha. She further stated that about two days prior to this incident, the appellant had quarrelled with his wife and had brought her and left her at the house of her parents. On the day of incident, the appellant came at noon time and demanded the custody of the minor daughter from Mst. Rubina who, naturally, resisted the demand whereupon the appellant gave beatings to her and when her parents intervened, the appellant picked up quarrel with them and left the house after threatening that he would come back and see them. He came back at 5- 00 p.m. The same day, armed with two churris. At that time the witness Mst. Seema Naz, her parents, her sister Mst. Rubina and niece Mst. Shabana and her brothers Usman and Nadeem all were present in the house. The appellant straightaway went to the room of her father Noor Mohammad and attacked him with chhuri and, on the cries of the injured, Mst. Seema Naz and others rushed to the room from where the cries were coming. Mst. Seema Naz further stated that her father was seriously injured and had fallen down at the main door of the house but the appellant even then inflicted further chhurri blows on him as a result of which he died on the spot whereupon the appellant again went inside the house and inflicted churn blows on his wife Mst.
Rubina who ran towards the Gali. The appellant followed her and gave her further churri blows in the Gali as a result of which she also died. She further stated that her mother had tried to save Mst.
Rubina whereupon she was also attacked by the chhurri in the Gali and she also fell down and died. Mst. Seema Naz further stated that minor Mst. Aysha was with her mother Mst. Rubina when she was attacked by the appellant and as a result the minor also sustained some injuries on her leg. The next eyewitness is P.W.4 Mst. Shabbana maternal granddaughter of deceased Noor Mohammad. She was living in the adjacent house with her parents and at the time of incident she was present in her `Nanaa's house. Her version is the same as that of Mst. Seema Naz. The third eye-witness is P.W.11 Mohammad Usman, son of deceased Noor Mohammad and Mst. Memoona.
His evidence is also to the same effect as that of the first two. The fourth eye-witness is P.W.12 Muneer Ahmad, a neighbour, According to him, he offered Asar Prayers in Umer Farooq mosque which is in the same locality and when he was coming out of the mosque he heard some commotion on the main road and saw a number of small children raising cries and coming towards the mosque and pointing towards the house of deceased Noor Mohammad. Witness Muneer Ahmed went there and saw the dead body of a woman lying at the corner of the Gali. He also saw a man having two chunk in his hand coming from the Gali towards the main road. The witness asked the man as to what was the matter whereupon he signalled with the churris to give him way whereupon the witness moved to one side and the man proceeded to the main road and at that stage some persons started pelting stones towards him whereupon he started running and when a motor-cycle slowed at a speed-breaker, that man jumped over it and thus forcibly took a lift from the motorcyclist and vanished from the scene. The witness identified the appellant in the Court as the man whom he had encountered with the churris in his hand and who had run away on the motorcycle as stated above. The last eye-witness of the occurrence is P.W-14 Khursheedul Haq. He is the resident of Federal 'B' Area but had a karkhana of plastic in Farooq Colony near the house of deceased Noor Muhammad. He stated that on 27-5-1988 he was in his karkhana at about 5.00 p.m. When some one violently knocked at the door whereupon he opened the door of the karkhana and saw that appellant, whom he identified in the Court, was giving dagger blows to a lady who was lying on the ground about 5/10 feet away from the door of karkhana. The witness further added that due to fear he again closed the door of karkhana. Learned counsel for the appellant argued that the first three witnesses were related to the deceased and were, therefore, interested witnesses and for that reason could not be relied upon. We are of the view that although these witnesses are related to the deceased but through the marriage of Mst. Rubina they are also related to the appellant and it is unthinkable that they would falsely implicate their brother-in-law and Khaloo in this triple murder. According to learned counsel for the appellant, the motive for false implication of appellant is that deceased Noon Muhammad and Mst. Memoona wanted to give their house as a gift to the appellant but Farooq, one of the sons of deceased Noor Muhammad and Mst. Memoona, did not like this and in order to frustrate this gift he prevailed upon his sisters and niece to falsely implicate the appellant. The alleged motive makes no sense. Even according to learned counsel for the appellant, the said gift had not taken place and was only in the stage of contemplation. If so, the desire of deceased Noor Muhammad and Mst. Memoona to gift their house to the appellant came to an end with their death and therefore it was not possible that the house could be obtained by the appellant by way of gift. Even otherwise there is absolutely no evidence on record that deceased Noor Muhammad and Mst. Memoona had ever contemplated to give their house to the appellant. In addition to this it was also alleged by the defence that the dowry and other ornaments of Mst. Rubina were in possession of Farooq and he wanted to misappropriate them and for that purpose wanted to do away with the appellant who inherited this property after the death of Mst. Rubina and therefore the appellant was implicated in this crime at the instance of Farooq. This story is rather too far fetched to be believed. Hardly 45 minutes elapsed between the death of Mst. Rubina and her parents and the recording of the F.I.R.
And the commencement of the investigation. It is impossible to believe that Farooq hatched this plot against the appellant within a split second. All the first three eye-witnesses, P.W-3 Mst. Seema Naz, P.W-4, Mst. Shabbana and P.W-11 Muhammad Usman are the inmates of the house where the incident took place and although they are the daughter, maternal-granddaughter and the son of Noor Muhammad and Mst. Memoona, they are also related to the appellant through his marriage to Mst. Rubina. In a way, these witnesses are related to deceased as well as to the appellant. We disbelieve the alleged motives imputed by the defence to Farooq for falsely implicating the appellant. The motive for falsely implicating the appellant having thus been ruled out as illogical and unbelievable, there is no reason why the testimony of these three witnesses should not be believed. In this connection a reference may be made to 1985 SCMR 860 Mst. Sadio Jan v.
Muhammad Rashid and others in which it is held that when there is no contrary indication with regard to the presence of a witness at the place of incident at the time of occurrence and his presence is natural and consistent with the circumstances, then the testimony of such witness cannot be brushed aside on an inference not founded upon anything in evidence but purely speculative in character. It is further held in this judgment that inmates of the house are natural witnesses. Apart from these related witnesses there is the evidence of two independent witnesses as well, namely, P.W-12 Muneer Ahmad and P.W-14 Khursheedul Hag. Both these witnesses are of the neighborhood and no ill-motive or enmity could be alleged against them for falsey implicating the appellant. Learned counsel for the appellant pointed out certain contradictions in the evidence of these witnesses. He referred to the cross-examination of P.W-3 wherein she stated that the appellant turned to the room and inflicted churri blows on her deceased sister Rubina who ran towards the Gali and the appellant then rushed at her and inflicted churri blows on her in the Gali and pointed out that in her 154, Cr.P.C. Statement Mst. Seema Naz had stated that appellant Riaz came inside and injured his wife Mst. Rubina by inflicting churri blows and she ran to save her life but the appellant followed her and murdered her in the house and learned counsel argued that there was contradiction in the two inasmuch as while in the Court Mst. Rubina was said to have died in the Gali, in the 154, Cr.P.C. Statement of the same witness Mst. Rubina was said to have been murdered in the house. We are of the view that, firstly, it is minor contradiction and, secondly, a careful reading of the relevant portion of 154, Cr.P.C. Statement of Mst. Seema Naz shows that word 'house' seems to have been misrecorded for the word 'Gali'. The relevant portion is quoted below:- "Then Riaz came inside and injured Rubina by inflicting churri blows. She ran to save her life and he followed her and murdered her in the house."
' Now when appellant Riaz went inside the house and injured his wife there and she ran to save her life, it follows that she ran outside. When the appellant is further said to have followed his wife, the question arises "Followed where?". The obvious inference is that he followed her and murdered her in the Gali. This is further clear from the subsequent statement of Mst. Seema Naz that when her mother tried to save Mst.Rubina, she was also murdered in front of the lane. Another contradiction pointed out by the learned counsel for the appellant is that in examination-in-chief P.W-3 Mst.
Seema Naz stated that "as soon as accused Riaz entered our house he straightaway went to the room of my father and attacked him with a churri" whereas in her cross-examination she stated that "I. Had not seen myself the accused entering into my house and I found him in the room of my father when we were attracted with his cries."We fail to note any contradiction in the two statements quoted above. No further contradiction could be shown in the evidence of the eye- witnesses. For the reasons given above we have no hesitation in believing their version.
5. The next piece of evidence against the appellant in his retracted confession recorded on 29-5- 1988 by MrAbdul Hakeen, A.C.M. Karachi, who has been examined as P.W-5 (Ex.24) who deposed that Orangi Town Police produced the appellant before him on 29-5-1988 at about 10.00 a.m. Along with a letter on 28-5-1988 (Ex.25) for recording his judicial confession whereupon he got removed the hand-cuffs of the appellant, asked the police constables to go out of the Court room and made over the appellant to the custody of his peon, introduced himself to the appellant and warned him that he was not bound to make confession but if he did make a confession, it could be used in evidence against him and that he would not be remanded back to police custody and gave the appellant two hours for reflection and that at the end of two hours he again repeated the above warnings and when he felt sure that the appellant was willing to make confession of his own free will, he took down the confession of the appellant in English since he was not enough well- versed in Urdu, being a Baluch, to take it down in that language. According to learned 'Magistrate, the appellant stated that he first assaulted his father-in-law and on the intervention of his mother- in-law and wife they were also assaulted by churri and thereafter he himself went to Police Station and surrendered himself. Learned Magistrate further stated that he had translated and explained the contents of his confessional statement to the appellant before getting his signatures thereon.
In reply to a Court question he admitted that he had not given separate certificate as provided under Section 164(3), Cr.P.C. Even though such certificate was printed on page 2 of the Confession Form and added that necessary questions and answers had been written by him but he just did not sign under it at the appropriate place where the word "Magistrate" was printed. He denied that the appellant was produced before him on 28-5-1988 and added that he was produced before A.D.M. On 28-5-1988 and A.D.M. Had (informally) asked him the same day to record the statement of appellant the next day and that when the appellant was produced before him the next day (29th May), the Police Officer had also brought the written order of the ADM dated 28th May to the same effect. Learned Magistrate further stated that after recording the confessional statement of the appellant, he remanded him to judicial custody but handed over the appellant to the same police (which had brought him) but by way of abundant precaution had asked his peon to go with the appellant up to jail. The confessional statement of the appellant is on record as Ex.26 in which the appellant first gave the background of the dispute with his wife and then stated that he and his wife passed the night prior to the incident at the house of his parents-in-law but the next morning (i.e, the day of incident) his wife refused to go with him to his house and he had to go back alone and on reaching his house he took a `churri' and returned to his `susraar whereupon his father-in- law rebuked him, asked him as to why he had come back and gave him danda blows whereupon he took out his `churri' and assaulted him and when his mother-in-law and wife intervened they were also assaulted whereafter he went to Police Station and surrendered along with the churri.
6. Learned counsel for the appellant raised a number of objections about the admissibility of the confessional statement that it was recorded in English which language was not understood by the appellant, that the appellant was actually first produced before the Magistrate on 28th May, when the appellant had refused to give confessional statement whereupon he was remanded back to the police and was again produced before him on 29th May, when his confessional statement was recorded and this showed that it was not voluntary, that mandatory certificate given by the Magistrate did not bear his signatures and that even though the appellant was remanded to judicial custody he was handed over to the same police and the further statement of the Magistrate that he had asked his peon to accompany the appellant to the jail was only an obliging statement and an afterthought. As for the recording of the confessional statement in English, the explanation of the Magistrate is that, as given by him in his examination-in-chief, that he is a Baluch and was not well-conversant enough with Urdu so as to record the statement in that language and therefore he recorded the same in English but took the precaution of translating and explaining the same to the appellant in Urdu before obtaining his signatures. We are of the view that there is no force in this objection since section 364, Cr.P.C. Clearly provides that such statement shall be recorded in the language in which the accused is examined, or if that is not practicable, in the language of the Court 'or in English' and that if the accused does not understand the language in which such statement is written, the same shall be interpreted to him in a language which he understands. The objection is on the very face of it, frivolous and the explanation given by learned Magistrate for not recording the confessional statement in Urdu is sufficient to justify its recording in English. The second objection that the appellant was first taken to P.W.5 Mr. Abdul 'Hakim ACM Orangi Town, Karachi, on 28th May is also without any force since there is nothing on record to substantiate this allegation of learned counsel for the appellant. On the contrary, the record shows that the appellant was on this date produced before learned ADM who did not record the statement but directed learned ACM to do so the next day. Thirdly, it is not disputed by the learned counsel for the appellant that formalities with regard to the recording of the confessional statement had not been completed by the learned Magistrate before recording the confessional statement but his objection is that learned Magistrate, even though he appended his certificate on the form of the confessional statement as provided under Section 164, Cr.P.C. Did not sign the same. However, learned Magistrate appeared before the trial Court and was examined in this regard. Learned counsel for the State has relied upon PLD 1972 SC 363 Syed Sharifuddin Pirzada v. The State and 1969 SCM R 521 Muhammad Sharif v. The State in which it is held that mere fact that the person making confession remains in police custody for some time does not lead to the conclusion that the confession was tutored and if full opportunity had been given to the accused to explain circumstances in which confession was made, then the confession must be deemed to have been made voluntarily and could be relied upon. The observations in this judgment knock out the objection that the confessional statement is unreliable because the .Appellant was handed over to police custody after the confessional statement was recorded.
Firstly, the appellant was remanded to judicial custody and sent to jail, as admitted by the appellant himself in his cross-examination, even though he was handed over to the same police for carrying him from the Court to the jail. Secondly, there is also no reason to disbelieve the learned Magistrate when he stated that he had asked his peon that he should go with the appellant up to jail to make sure that he was not maltreated. As for the Magistrate not signing the certificate on the confession form, his omission to do so amounts to an irregularity and as held in PLD 1950 Balochistan 1 Chandar v. Crown such irregularities can be cured by examining the Magistrate in the Court. Since this has been done in the present case, the omission on the part of the Magistrate is no bar to rely upon the confessional statement as the irregularity stands cured. In his cross-examination the appellant denied having made any confessional statement at all, not even under coercion and threat of the police, and stated that he expressed his innocence before the Magistrate where after the Magistrate obtained his signatures on some documents and referred him to jail custody. If the appellant had stated that he had made confessional statement under the threat and coercion of the police that would have been another thing but his total denial is unbelievable. There is no reason why the learned Magistrate should have recorded the false confessional statement. The appellant does not claim to know him or having any enmity with him.
Fully supported and corroborated as it is by no less than five eye-witnesses, there is no reason to doubt that the appellant made the confessional statement at his own free will and without the influence or any undue pressure of the police and can therefore be safely relied upon.
7. Next we come to the evidence of motive. Even though in a case where there is sufficient ocular evidence of unimpeachable character to the commission of the crime, it is not necessary for the prosecution to prove motive as held in PLD 1975 SC 160 Syed Mushtaq Ahmed v. Siddiqullah and 1968 SCM R 781 Akhtar Ali Syed v. The State, the prosecution has been able to bring on record sufficient evidence to establish the motive for commission of the offence. This motive was the family dispute between the appellant and his wife as a result of which she had stayed back in her parents' house and refused to go with the appellant. P.W-3 Seema Naz deposed that two days prior to the incident there was quarrel between the appellant and his wife and the appellant had left his wife at her parents' house where he came at noon time on the day of the incident and asked his wife to hand over to him the custody of his minor daughter Mst. Aysha and when the wife refused to do so she was beaten and when deceased Noor Muhammad and Mst. Memoona intervened, the appellant picked up quarrel with them as well as went away after extending threats. P.W-4 Mst.
Shabbana and P.W-11 Muhammad Usman have also supported this version of the motive. We are, therefore, of the view that the prosecution has sufficiently proved the existence of motive for the commission of the crime. Learned counsel for the appellant pointed out that while prosecution witnesses claimed that the appellant was armed with two churris, only one has been recovered by the police and on this account evidence of recovery of the weapon of offence is doubtful. We are of the view that this is not a case of contradiction but that of exaggeration and as held in PLD 1963 Kar. 1062 Bachal v.The State, mere exaggeration by an eyewitness is no ground for discarding the evidence. Learned counsel for the appellant then referred to the evidence of P.W-9 Israr Ahmed who stated in his examination that he was present inside the police station when he saw the appellant Riaz entering the police station with a blood-stained churri in his hand and marks of blood on his clothes and pointed out that while in his cross-examination he stated that co-mashir.
Noor Muhammad was not previously known to him and had met him for the first time in the bus on that day, the said co-Mashir Noor Muhammad appearing as P.W-13 stated that ho. Knew Israr Ahmad for the past about five or six years, Similarly learned counsel for the appellant also pointed out some contradictions in the deposition of P.W.9 Israr Ahmad and P.W.13 Noor Muhammad as to the preparation of the Mashirnama of the seizure of churri and clothes of the appellant and also between the statements of P.W.15 SHO Abid Hussain Naqvi and P.W.12 Muneer Ahmed inasmuch as the SHO stated that after obtaining the blood stained shirt of the appellant, the appellant was provided with another shirt whereas P.W.13 Noor Muhammad stated that after the blood-stained shirt of the appellant was secured he was provided a chadar to cover his body. In our view these are minor contradictions and by themselves they do not lead to the conclusion that whatever the witnesses stated on the salient features of the case and which conformed to other evidence on record must be discarded and thrown out, as held in PLD 1977 SC 577, Roshan v. The State.
8. In short, the prosecution has proved beyond doubt that the appellant had assaulted his wife and his parents-in-law with a churri with the intention of killing them. Three of the eye-witnesses are close relatives of the deceased, inmates of the house where the offence took place and, through the marriage with deceased G Mst. Rubina, they are also related to the appellant and there is no reason to suspect that they would falsely implicate the appellant and let go the actual culprit. The other two eye-witnesses P.W-12 Muneer Ahmad and P.W-14 Khursheedul Haq are the neighbors with whom the appellant did not have any enmity or ill-feeling which could be the motive on their part for falsely involving the appellant. Then there is judicial confession of the appellant which has been duly proved by the evidence of P.W-5 Abdul Hakim ACM Orangi Town, Karachi.
9. We agree with the findings of the learned trial Judge and accordingly uphold the impugned judgment, confirm death sentence awarded to the appellant and (sic).