1. MUSHTAQ HUSSAIN, J.--Mumtaz Ahmad son of Muhammad Rafiq has been convicted by the learned Additional Sessions Judge, Multan, under section 302 of the Pakistan Penal Code and sentenced to death for having, on 12-3-1966, in the house of Maulvi Muhammad A.I P. W. In Abadi Nawan Shehr, Tehsil Kabirwala, District Multan, committed the murder of his cousin Mst. Gulzar Mai aged 18 years and her sisters Mst. Iqbal Mai aged 13 years and Mst. Nasim Mai aged 10 years. He has filed an appeal and the case is also before us under section 374 of the Criminal Procedure Code for confirmation of the sentence of death.
2. The prosecution story is that the appellant is the son of the sister of Muhammad Bakhsh (P. W. 13).
3. The deceased girls are the daughters of another real sister of the same person. Muhammad A.I (P.
4. W. 12) is the father of the deceased girls. He started living about two months before the occurrence in Nawan Shehr. He was approached by Muhammad Rafiq the father of the appellant and his wife, who was incidentally the sister of Muhammad A.I's wife, and who asked for the hand of his daughter Mst. Gulzar Mai for the appellant. This request was declined. On the following day, Mumtaz Ahmed, appellant, approached Muhammad A.I (P. W. 12) and informed him that his brother-in-law.
5. Mahmoodul Hasan, was unwell and had asked him to come over. Mahmoodul Hasan lived at Jhok Veins. Muhammad A.I and his wife repaired on the next day to the house of Mahmoodul Hasan leaving their daughters in the village. On reaching the house of Mahmoodul Hasan, however, they found that he, in fact, was not ill.
6. On the fateful day, Sher Muhammad (P. W. 18) was going to Kabirwala from Chaddarwala, at about 4/5 p. m. When he heard somebody weeping inside the house of Muhammad A.I (P. W. 12). He found the door locked and when he entered through a hole in the wall in the house he found Mst.
7. Karim Khatoon weeping there. This Mst. Karim Khatoon is the mother of the appellant. He also found the dead bodies of three girls lying inside the room. He was informed by the lady that the parents of the girls had gone to place known as Jhok Veins and she had come to see the girls, the door was, however, locked and when nobody responded to her knocking, she broke the bricks of the wall and entered the house where she saw the girls lying dead.
8. Sher Muhammad (P. W. 18) left for the Police Station Kabirwala where he lodged First Information Report (Exh. P. F.) at 5 p.m. On 12-3-1966. The Police Station is at a distance of about one mile from the place of occurrence. The F. I. R. Was recorded to the spot on the same day. He prepared the Injury statement and inquest report of the deceased persons, despatched the dead bodies for post-mortem examination, recovered blood-stained earth and took into possession a pair of blood-stained shoes from the spot which are said to belong to the accused. On 16-3-1966, Ghulam Rasool (P. W. 16) and Haji Haq Nawaz (P. W. 17) produced the appellant before him and he was placed under arrest. The appellant was found injured and he was therefore got medically examined.
9. On 18-3-1966, i.e., six days after the occurrence and two days after his arrest, the appellant is said to have led the police to the recovery of hatchet (Exh. 2), shirt (Exh. P. 10) and Chaddar (Exh. P. 11) from underneath a sheesham tree on the bank of a khala within the area of village Manwala after digging the earth. He completed the investigation and challaned the appellant.
10. The accused pleaded innocence at a trial held by a Jirga Tribunal. He was nevertheless convicted but the proceedings of the Jirga were held to be void by the High Court and the case was, therefore, tried in the regular way with the result already indicated above.
11. The evidence produced by the prosecution consists of the following categories:--
1. Extra judicial confession 1
2. Motive;
3. Recoveries; and
4. What has been incorrectly termed by the learned Additional Sessions Judge as evidence of last seen together.
12. Extra--judicial Confession: The evidence under this head has been given by Ghulam Rasool (P. W. 16) and Haji Haq Nawaz (P.
13. W. 17). Ghulam Rasool has stated that about five years before the date of trial he was sitting at the dera of Haji Haq Nawaz (P. W. 17) when the appellant came there. The appellant told him in the presence of Haji Haq Nawaz (P. W. 17) that he had committed the murder of the three daughters of Muhammad A.I (P. W. 12). He went on to say that he found it impossible to hide himself and that the police was also disgracing his family where for he wanted to be produced before the police. The appellant also informed the witness that he wanted to marry Mst. Gulzar Mai but as her father refused to give her hand in marriage so he had done away with her, and that since the two younger sisters reached the scene of occurrence when he was committing the murder, he also killed them with the same hatchet to eliminate eye-witnesses. Haji Haq Nawaz and Ghulam Rasool went to the spot along with the appellant. The police was present there and they produced the appellant before the Police.
14. On being cross-examined he said that he had stated before the com--mitting Magistrate that the appellant had said before them that he could not 1 hide and that the police was inquiring for the murder of these girls from his family. He was confronted with the statement made by him before the learned committing Magistrate and no such mention was found in it. The statement did not even contain any mention about the desire of the appellant to marry Mat. Gulzar Mai or that Muhammad A.I P. W. Had refused to give her hand in marriage to the appellant. He also had to be confronted with his statement before the committing Magistrate to prove that he had not said before him about Mumtaz Ahmed having told them that ho murdered the two sisters of Mst. Gulzar Mai to eliminate any eye-witnesses.
15. He also stated before the Jirga that he had gone to the dera of Haq Nawaz P. W. Three days after the occurrence. Before the trial Court, he said he did not remember whether he had said so. If this person went to the dera of Haq Nawaz three days after the occurrence, how did he appear before the police on the 13th at the spot even before the dead bodies were despatched for post-mortem.
16. He denied having said that the dead bodies were despatched to his presence on the morning following the occurrence after he had reached the spot, but he had said so before the committing Magistrate and he had to be confronted with it. The murder took place on the 11th and Ghulam Rasool went to the dera of Haq Nawaz three days after the occurrence, i.e., the 14th and he is supposed to have accompanied Haq Nawaz straight to the spot where they produced Mumtaz appellant before the police. This should, therefore, be on the 14th. As against that Abdul Rashid, Sub-Inspector (P. W. 19) states that it was Incorrect that the accused appeared asserted that the accused had-been produced before him at 3 p. m. On the 16th March, 1966.
17. He stated before the Jirga that Haq Nawaz and he had handed over the accused to the police at Kabirwala. He denied having said so at the trial Curt and he had to be confronted to prove that he was not making a true statement. On the other hand, Abdul Rashid S. I. Has categorically stated that the accused were produced before him at the spot at 3 p. m. On 16-3-1966. The statement of this witness can, therefore, not be accepted at all and the so-called extra-judicial confession cannot be believed simply on the basis of his testimony.
18. Haq Nawaz (P. W. 17) is the other witness of the extra judicial confes--sion, He repeated the prosecution story. He had also stated before Jirga Tribunal that the other witness and he took the appellant to Police StationKabirwala and not to the spot where they handed them over to the Police. He, however, resiled from the statement and said that he had, in fact, produced him before the Police at the spot. He lives at a distance of four miles from the village in which the occurrence took place at the spot. He lives at a distance of four miles from the village in which the occurrence took place and was tilling, the land jointly with Ghulam Rasool (P. W. 14) during the days when the occurrence took place. This, witness bad made an extremely discrepant statement in respect of recoveries to which we shall elude later in the course of this judgment and no reliance can be placed on his statement. We, therefore, decline to rely upon the so-called extra---judicial confession said to have been made before these two witnesses.
19. We now come to the recoveries. Evidence in respect of the recoveries has been given besides the Sub-Inspector Ghulam Rasool (P. W. 16) and Haq Nawaz (P. W. 17). Apart from the fact that we have already declined to accept their testimony regarding the extra judicial confession and we have referred to material discrepancies in their statements. The fact remains that neither of them is a resident of the locality from where the recoveries were made or where the occurrence took place.
20. The law requires that recoveries should be witnessed by person belonging to that locality.
21. Section 103 of the Code of Criminal Procedure makes it mandatory upon the officer or the person about to make a search under Chapter T to call upon two or more respectable inhabitants of the locality in watch the place to be searched is situate to attend and witness the search---. The section uses the words "shall call". If a person has been called from place other than the locality it may not make the search invalid but If it-- is a populated locality grave doubt would be cast on the whole transaction because in such a case the inference would be that the police officer making the search was prompted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward. In the present case, this inference finds strong support from the manner in which the recovery was made. The statements of witnesses of recovery are highly discrepant and lead one to irresistible conclusion that they were not even there when Me search was made or the things were recovered. It was held in Sardar A.I v.
22. The State(PLD 1964 Lah. 386) that:- "The courts should, therefore, insist on strict compliance of the require--ments of section 103 and in cases the prosecution had not satisfactorily explained the reason for non-observance of the requirements of the section, the Courts should look with deep suspicion upon the testimony of the search witness. In cases where the Excise or Police officials making search take with them persons whose respectability is questionable or who come from distant locality, the inference may be drawn that they Were prompted by a desire to have such witnesses as would be easily persuaded to support any story which might be put forward."
23. Even otherwise Shah Muhammad (P. W. 15) claims to have identified the hatchet from a distance of 10 karams when it was supposed to be in the hand of the appellant and he was running away from him towards the west. This is absolutely incredible. He cannot even tell the length of the handle or the blade of the hatchet P.
2. Similarly, Ahmed Bux (P. W. 14), a carpenter, who claimed to have made the handle for the hatchet P. 2, from a piece of wood and, therefore, identified it before the C.
24. M. Stated, that the handle he had made for the hatchet was bigger in size than the handle of hatchet P.
2. He, however; chose to resile from this before the trial Court and had to be confronted.
25. He admitted that the wood and the hatchet are of a common pattern and that he makes 10 to 12 handles for hatchets everyday. It passes one's comprehension as to how he could remember and identify each and every handle out of these hundreds made by him. On top of this is his statement before the Jirga Tribunal that he did not "put any handle in the blade of any hatchet involved in this case". These statements knock the bottom out of the recovery of the hatchet Exh. P. 2 being the same as alleged to have been used by the appellant.
26. Ghulam Sarwar (P. W. 10) identified the chaddar P. 11 and shirt P. 10 which is said to belong to the appellant. He identified them because he had tailored them. He, however, chose to deny having stated before the Jirga that the sewing of these clothes was of a common pattern. If they were of a common pattern, how can he say with any amount of certainty that these had, in fact, been stitched by him. The stitching of a cheddar does not involve any art and it can hardly be said that a particular tailor stitches chaddar in a way different from the others particularly when he himself admits that the sewing was of a common pattern.
27. But this is not all. The recovery memos in respect of the shoe does not bear any date while that in respect of the hatchet and the blood-stained clothes of the appellant bears the date 18-3-1966.
28. Haq Nawaz (P. W. 17) stated before the committing Magistrate that recoveries were made on the 16th March, 1966. He denied having said so when he appeared before the trial Court and he had to be confronted with his previous statement. His presence at the time of making of the recoveries, can, therefore, not be accepted. Similarly Ghulam Rasool (P. W. 16) would have the Jirga believe that the confession was made on the 14th and since he has stated at the trial that the recoveries were made two days after the production of the accused, the date of recovery would be the 16th and not the 18th as shown in the recovery memo. On the other hand, we find Abdul Rashid (P. W. 19) stating that the recoveries were made on the 18th March, 1966. The alleged recovery of the hatchet and the blood-stained clothes can, therefore, not be relied upon for proving the guilt of the accused.
29. So far as the gurghabi is concerned, we have already stated above that the recovery memo does not even bear a date. The two witnesses in this case are also not from the locality. In fact, only one, i.e. Jamshed A.I has been produced who appeared as P. W.
8. He is a wajtakkar witness the house of the deceased. He found the dead bodies of three girls lying near the hand-pump in a room. Sher Muhammad P. W. Went to the police station to lodge information while Jamshed A.I remained at the spot. The Police recovered in his presence a pair of blood-stained shoes P. 1/1-2 ride memo. Exh.
30. P. B. From the spot. He stated that these shoes were recovered from the spot. According to him they were lying at a distance of 4/5 kadams from the dead bodies outside the room. He has also stated that it is incorrect that the hand-pump is not situated inside the room.
31. On the other hand, Ahmed Bux Machhi (P. W. 9) who is said to have identified the shoes has stated in cross-examination that when he was called by the police to the spot the pair of shoes were lying in the Houzy of the hand-pump outside the house. He has also stated that the hand-pump is situated in a courtyard and is not covered by a small room. Both of these witnesses could not be right. Either the hand-pump is in the room or outside; either the shoes were lying in the Houzy or outside. It cannot be determined with any amount of certainty as to what was the location of the hand-pump and where were the shoes lying. Be that as it may, these witnesses gave divergent statements on the question of the recovery of the pair of shoes while P. W. 8 had stated before the committing Magistrate that the recovery was made at about 6 p. m. According to the Sub- Inspector it was made at 9 p. m. The occurrence has taken place in the early hours of the evening and there is lot of difference between 6 p. m. And 9 p. m. Particularly in that part of the year. It is, therefore, not possible to believe the recoveries.
32. Even otherwise the only identification of the shoes as belonging to the appellant was made by Ahmed Bux (P. W. 9) a cobbler. He has had an occasion to see it as it had been taken to him for repairs. He admits that he repairs about 12 pairs of shoes daily and his statement that he remembers each one of them as well as its owner, is too much for us to believe.
33. The learned Sessions Judge has also relied upon a piece of evidence which he has termed as evidence of "last seen together". This has been furnished by Shah Muhammad (P. W. 15). The land of this witness is situated at a distance of one square from the house of the appellant. He is said to have seen the appellant running at a distance of 10 karams from him towards the west at about peshiwela on the date of occurrence. He saw the blood-stained hatchet in his hands and his clothes were blood: stained. He also identified hatchet P. 2 as being the same hatchet which was being carried by this man and which he saw at a distance of 10 karams. He does not own that land.
34. He does not even know the number of the field or the square in which it was situated. He does not even know the owner of the adjoining field. He admits that the land is adjacent to a very busy road but still no other person saw the appellant in that condition.
35. Before the police he stated that the appellant was running from the field of the witness at degarwela. But he denied having said so when he ap--peared before the trial Court. He reached the scene of occurrence at about sun-set and told the police about his having seen Mumtaz appellant with a hatchet in his hand. In his own narrative of the course of investigation, the Sub- Inspector has not mentioned anywhere that Shah Muhammad (P. W. 15) had informed him about his having seen the appellant running away with blood-stained hatchet in his hand. It is only in the course of cross---examination that he had referred to it. Shah Muhammad (P. W. 15) claims to have been the first to inform the police about the possible complicity of Mumtaz appellant in the case and it is strange that the Investigating Officer does not choose to even mention this in his statement.
36. We are now left with the evidence with regard to motive. Nazar Hussain Shah (P. W. 11) is the first witness of the motive. He is a former Police constable and is now engaged in business. He is not related to the appellant and no reason was given to warrant the appellant approaching P. W. 11 for an intercession. He is not even related to them nor does he claim to belong to their biradri.
37. Muhammad A.I (P. W. 12) is the father of the deceased girls. In his statements although he has brought about that the father of the appellant approached him for the hand of Mst. Gulzar Mai for his son but there is not even a suggestion that there was any liaison or love affair or anything of that sort between he two young people. There is no suggestion even that the appellant was very anxious to marry Mst. Gulzar Mai. He stated before the committing Magistrate that he had to leave his previous residence because his father and brother had quarrelled with him and he had sought shelter with Muhammad Rafiq, the father of the appellant. He denied this before the trial Court. He even denied that he had stated before the committing Magistrate that Habib-ur-Rehman one of the brothers of the appellant is in the Army. He even did not admit that he had stated before the committing Magistrate that this Habib-ur-Rehman was a bachelor. He had to be confronted with his previous statement on all these points.
38. The appellant stated before the trial Court that Mst. Gulzar Mai has already been betrothed to his elder brother Habib-ur-Rehman in exchange for his sister Mst. Shamim Akhtar who was engaged to Abdul Qayyum brother of Mst. Gulzar Mai deceased. This version of the appellant is borne out by the fact that Muhammad A.I (P. W. 12) the father of the girl had himself admitted before the Jirga Tribunal that it had been settled an the family that they will marry Mst. Gulzar Mai to Habibur Rehman the elder brother of the appellant. He denied it before the trial Court and he was confronted with his previous statement. Even the route adopted by him and the manner of his having allegedly gone to Jhok Veins on the date of occurrence given before the trial Court is not the same as given by him earlier before the committing Magistrate. He has perjured himself on a number of points and his statement is hardly worth the paper on which it is written.