' MIAN ABDUL KHALIQ, J.--- Muhammad Riaz aged 24 years was tried and convicted by the learned Additional Sessions Judge-II, Bahawalnagar vide his impugned judgment, dated 14-4-1991 as follows:-- Under section 302, P.P.C.For the murder of Mst. Ghulam Fatima, sentenced to death.
Under section 302, P.P.C.For the murder of Mst. Irshad Bibi alias Shamshad Begum, sentenced to death.
Under section 302, P.P.C.For the murder of Ghulam Haider, sentenced to death, and Under section 302, P.P.C.For the murder of Abdul Maalik, sentenced to death.
3' He was also sentenced to pay a fine of Rs,40,000 in all on four counts. The fine, if recovered, half of it was ordered to be paid to the legal heirs of the above-mentioned deceased persons in equal shares as compensation under section 544-A, Cr.P.C. In default of payment of fine, he was ordered to undergo R.I. For a period of 5 years.
2. The criminal appeal and the murder reference arising out of the same judgment, are being disposed of together by this judgment.
3. P.W.10 Noor Ahmad on 4-2-1990 at 8-30 a.m. Lodged F.I.R. Exh.P.O. At Police Station Khichiwala, District Bahawalnagar to the effect that he was residing in Chak No,427/6-R and four and a half months earlier he was married with Mst. Irshad Bibi alias Shamshad Begum deceased daughter of Ghulam Qadir, resident of Chak,No,178/7-R, who was living with him and about 10/12 days ago P.W.10 Noor Ahmad alongwith Ghulam Haider deceased, his father, his deceased wife Mst.
Shamshad Begum went to see the in-laws of the complainant in Chak No,178/7-R and the step- father Muhammad Maalik of wife of the complainant asked them that he alongwith his wife Mst.
Fatima deceased was proceeding to Daska and in their absence Mst. Shamshad Begum deceased and Ghulam Haider deceased should remain to guard their house, on which the complainant went back to his Chak No,427/6-R and after waiting for some days on 4-2-1990 at about 7-00 a.m. He went to the house of his in-laws in Chak No,178/7-R to take back his deceased wife and deceased father, and when he entered the house, the doors of the residential rooms were open. He entered and witnessed in the northern room the dead body of his deceased father Ghulam Haider and in the southern room the dead bodies of Mst. Shamshad Begum, her mother Mst. Fatima wife of Muhammad Maalik and of Muhammad Maalik son of Sarbuland were lying smeared in blood. The complainant raised hue and cry, on which P.W.11 Muhammad Iqbal and P.W. Sikandar Khan, Lambardar (given up) and other residents of the village reached. P.W.10 suspected that his wife, father, father-in-law and mother-in-law had been murdered by someone out of Mustafa son of Muhammad Abbas, Zakaullah Jat residents of Chak No,176/7-R, Riaz son of Jalal Din, resident of Chak No,278/H.R., Iqbal son of Muhammad Din, caste Jat, resident of Chak No,83/5-R, and Muhammad Bashir son of Nazir Jat, resident of Chak No,178/7-R, as Mst. Irshad Bibi had got divorce from Zakaullah after filing a suit for dissolution of marriage, and Riaz helped his father-in-law and Mst. Irshad Bibi in getting divorce, and Riaz also wanted the hand of deceased Mst. Irshad Bibi for his younger brother. Bashir son of Nazir and Iqbal son of Muhammad Din due to greed of land wanted the hand of Mst. Irshad Bibi deceased, but they could not get her hand. P.W.10 leaving behind the Lamberdar to guard the dead bodies reached the police station and lodged F.I.R.
Exh.P.O.
4. P.W.14 Sajid Hassan, S.I./S.H.O. Recorded the formal F.I.R. Exh.P.O. And thereafter proceeded to the spot. After preparing inquest report Exh.P.B./2, injury statement Exh.P.B./3 of Ghulam Haider deceased; inquest report of Mst. Shamshad Begum deceased Exh.P.C./2 and her injury statement Exh.P.C/3; inquest report of Muhammad Maalik deceased Exh.P.D./2 and his injury statement Exh.P.D./3; inquest report of Mst. Fatima deceased Exh.P.E./2 and her injury statement Exh.P.E./3, despatched the dead bodies for autopsy. He collected blood-stained earth from underneath the cot of Muhammad Maalik deceased vide memo. Exh.P.Q., blood-stained earth from underneath the dead body of Mst. Fatima deceased vide memo. Exh.P.R., collected blood-stained earth from underneath the cot of Mst. Shamshad Begum vide memo. Exh.P.S. And blood-stained earth from underneath the cot of Ghulam Haider deceased vide memo. Exh.P.T. He had prepared sealed parcels. The memos. Were attested by P.W.11 Muhammad Iqbal and P.W. Sikandar Khan (given up).
P.W.14 secured blood-stained piece of cloth P31 from near the dead body of Mst. Fatima vide memo. Exh.P.U. He also secured the beddings P.16 to P.19 of Muhammad Maalik deceased vide memo. Exh.P.B. And beddings of Mst. Irshad Bibi secured vide memo. Exh.P.W. He also secured blood-stained cot P.24, beddings P.25 to P.27 of Ghulam Haider deceased vide memo. Exh.P.X. He noticed during inspection of the site footprints of some persons outside the main door of the house and prepared two moulds of them and took them into possession vide memo. Exh.P.Y. On the same day he also secured kerosene oil Dewa P.15 which also contained prints of fingers vide memo.
Exh.P.B. And made it into a sealed parcel. The memos were attested by the same P.Ws. He had deposited the sealed parcels with the Moharrir and recorded statements of prosecution witnesses.
On 22-2-1990 Shaukat Ali, Member, District Council P.W. (given up) and P.W.12 Muhammad Hayat produced the appellant before him and had stated that the appellant had made extra-judicial confession before them. He arrested the appellant on 22-2-1990 and took into possession a pair of shoes Exh.P.BB/1-2 vide memo. Exh.P.BB. On 23-2-1990 he got prepared specimen finger prints of Riaz appellant before the Magistrate 1st Class, Fortabbas vide Exhs.P.CC., P.DD. And P.EE. On 25-2- 1990, the appellant got recovered blood-stained hatchet P.28, a torn shirt P.29 and Shalwar blood- stained P.30 which P.W.14 secured vide memo. Exh.P.Z. He had compared torn shirt P.29 of the appellant with the piece of cloth P.31 and prepared memo. Exh.P.AA. On 28-2-1990 the appellant Muhammad Riaz offered to make judicial confession whereupon he was produced by P.W.12 before P.W.9 Mr. Ashraf Ali Naeem, M.LC., who recorded the confessional statement of the appellant. After completion of the investigation, the appellant was challaned and sent up for trial. The trial Court framed charge under section 302, P.P.C. Under four heads against the appellant for the murder of Ghulam Haider, Abdul Maalik, Mst. Fatima Bibi and Mst. Irshad Bibi, to which he denied and claimed trial.
5. The prosecution examined 14 P.Ws. In all to substantiate its case. P.W.7 Dr. Muhammad Saeed Qamar on 4-2-1990 at 11-30 a.m. Conducted autopsy on the dead body of Ghulam Haider deceased and found the following injuries on his person:--
(1) An incised wound 11 x 6 c.m. Transversely placed on left side of skull 6 c.m. Above left ear.
Starting from eyebrow skin, muscle bones cut. Brain matter was protruding out.
(2) An incised wound 8 x 3 c.m. Transversely placed on left side of skull 3 c.m. Above left ear. Skin muscle bone cut.
(3) An incised wound 13 x 3 c.m. Transversely placed on left side of skull. 2 c.m. Above left ear. Skin muscle bone cut.
(4) An incised wound 8 x 2 c.m. Transversely placed on upper part of posterios surface of skull. Skin muscle bone cut.
(5) An incised wound 4 x 3 c.m. Obliquely placed on left side of face extending from nose to outer margin of left eye. Skin muscle bone cut.
(6) An incised wound 7 x 3 c.m. On left side of face from left corner of mouth towards ear. Skin muscles cut.
(7) An incised wound 9 x 2 c.m. On left side of face extending from chin towards ear. Skin muscle and left mandible were cut.
(8) An incised wound 12 x 4 c.m. Vertically placed on right side of face extending from cheek to forehead involving outer 1/2 of right eye. Skin muscle cut. Maxillary and frontal bone were cut.
(9) An incised wound 9 x 4 c.m. Transversely placed on anterior surface of upper part of neck. Skin muscle and vessels on both sides of neck were cut. Hyoid bone and thyroid cartilage were cut.
(10) An incised wound 8 x 2 c.m. Obliquely placed on dorsal surface of left hand. Skin muscle third fourth and fifth metacarpal bones were cut.
(11) An incised wound 3 x 1 c.m. On the dorsal surface proximal phalynx of left little finger.
' Injuries Nos.1, 2, 3, 4 and 8 were present on the scalp and skull. There were fractures, of skull corresponding to injuries Nos.1, 2, 3, 4 and 8. Brain and membranes were injuries corresponding to injuries Nos.1, 2, 3 and 4. Larynx and trachea cut corresponding to injury No,9. In the opinion of the doctor, the cause of death in this case was severe shock and haemorrhage as a result of injuries Nos.1, 2, 3, 4, 8 and 9 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon and were ante-mortem in nature. Probable time between injuries and death was instantaneous and between death and post-mortem was 8 to 12 hours. Exh.P.B. Is the carbon copy of the original post-mortem report.
' On the same day he also conducted autopsy on the dead body of Mst. Irshad Bibi and found the following injuries:--
(1) An incised wound 12 x 6 c.m. Obliquely placed on superior surface.
(2) An incised wound 5 x 2 c.m. Obliquely placed on right side of skull 12 can. Above the right ear.
Skin muscles were cut.
(3) An incised wound 10 x 2 c.m. Obliquely placed on right side of posterior surface of head. Skin muscles bones were cut.
(4) An incised wound 10 x 4 c.m. Transversely posterior surface of neck. Skin muscle cut. Second cervical vertebrae was cut. Membranes and spinal cord were cut.
(5) An incised wound 6 x 1 c.m. Obliquely placed on posterior and right side of neck. Wound was Only skin deep.
(6) An incised wound 4 x 1 c.m. Obliquely placed on medial side of middle of right fore arm.
' There was fracture of skull corresponding to injuries Nos.1 and 3. There was fracture of second cervical vertebrae corresponding to injury No,4. Brain and membranes were injured corresponding to injuries Nos.1 and 3. Spinal cord was cut at the second cervical vertebrae. In the opinion of the doctor, the cause of death is shock and haemorrhage as a result of injuries Nos.1, 3 and 4 which were sufficient to cause death in the ordinary course of nature. All injuries were caused by sharp- edged weapons, and were ante-mortem in nature. The probable time that elapsed between injuries and death was instantaneous and between death and post-mortem was 8 to 12 hours.
Exh.P.C. Is the correct carbon copy of the post-mortem report.
' The same day at 12-45 p.m. P.W. 7 conducted post-mortem examination on the dead body of Muhammad Maalik deceased and found the following injuries;--
(1) An incised wound 4 x 3 c.m. Obliquely placed on superior surface of right side of skull close to forehead. Skin muscle bones were cut.
(2) An incised wound 10 x 3 c.m. Obliquely placed on upper part of posterior surface of left side of skull. Skin muscle bones were cut.
(3) An incised wound 8 x 3 c.m. Obliquely placed on upper part of posterior surface of right side of skull joining injury No,2. Skin muscle bones were cut.
(4) An incised wound 13 x 3 c.m. Placed obliquely on left side of posterior surface of skull. Skin muscle bones were cut.
(5) An incised wound 3 x 1 c.m. Skin deep on the dorsal surface of right hand between thumb and index finger.
' There was fracture of skull corresponding to injuries Nos.1, 2, 3 and 4. Vertebrae NAD, brain and membranes were injuries corresponding to injuries Nos.1, 2, 3 and 4. In the opinion of the Doctor, the cause of death in this case was shock and haemorrhage as a result of injuries Nos.1, 2, 3 and 4, which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon and were ante-mortem in nature. The probable time that elapsed between injuries and death was instantaneous and between death and post-mortem was (sic) to 12 hours. Exh.P.D. Is the copy of postmortem report.
' Similarly on the very day P.W.7 conducted autopsy on the dead body of Mst. Fatima Bibi deceased and found the following injuries:--
(1) An incised wound 11 x 3 c.m. Obliquely placed on superior surface of head starting from forehead. Skin muscle bones were cut. Brain matter was protruding out.
(2) An incised wound 7 x 6 c.m. Right side of face extending from cheek to forehead involving right eye. Maxillary and frontal bone were cut. Right eye was totally destroyed and depressed into cranial cavity.
(3) An incised wound 11 x 3 c.m. Obliquely placed on right side of face extending from outer side of nose to forehead. Skin muscles were cut. Maxillary, nasal and frontal bone were cut.
(4) An incised wound 6 x 2 c.m. On right side of skull in the temporal region. Skin muscle and bones were cut.
(5) An incised wound 6 x 2 c.m. Vertically placed on right ear cutting the ear in the centre. Skin, muscle, cartilage and bone of ear were cut.
(6) An incised wound 10 x .4 c.m. On right side of face extending from cheek towards chin. Skin, muscle and right mendible were cut.
(7) An incised wound 10 x 4 c.m. Obliquely placed on left side of face from left corner of mouth to outer margin of left eye. Skin, muscle and left maxillary bone were cut.
(8) An incised wound 5 x 1 c.m. On dorsal surface of right fore-arm close to wrist joint.
' There were fractures of skull corresponding to injuries Nos.1, 2, 3 and 4. Vertebrae NAD, brain and membranes were injured corresponding to injuries Nos.1, 2 and 4. Spinal Cord NAD. In the opinion of the Doctor, the cause of death was shock and haemorrhage due to injuries Nos.1 to 7 which were collectively sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was instantaneous and between death and post-mortem was 8 to 12 hours.
Exh.P.E. Is the carbon copy of the post-mortem report.
6. P.W.2 Rustam Ali, Constable on 42-1990 escorted the dead bodies of Mst. Irshad Bibi alias Shamshad Bibi, Mst. Fatima, Ghulam Haider and Abdul Maalik to the mortuary. After the post- mortem examinations, the Medical Officer handed over to him the dead bodies, last worn clothes and relevant papers, which he produced before P.W.14. P.W.3 Bashir Ahmad on 20-2-1990 received four parcels of bloodstained earth from Muhammad Ashraf, Head Constable, which be delivered in the respective office intact on 21-2-1990. P.W.4 Abdus Sattar on 27-2-1990 took sample paper of the appellant to the Handwriting Expert, Punjab, Lahore for its comparison with lamp (Dia) and delivered the same on 28-2-1990 in the office of Finger Print Expert. P.W.5 Muhammad Ashraf while working as Moharrir on 5-2-1990 had received four sealed parcels containing blood-stained earth from P.W.14, which he kept in Maalkhana and on 20-2-1990 despatched the same through P.W.4 to the respective office. Thereafter, he received sealed parcels of moulds, Diya, blood-stained clothes of all the deceased. The parcels remained intact in his custody. P.W.6 Syed Zahid Iqbal prepared site plan Exh.P.A. And its duplicate Exh.PA./1 in the scale of 1/8" = 1 ft. On the request of the police and on the pointation of P.Ws. P.W.8 Shahid Pervaiz stated that on 4-2-1990 P.W.2 Rustam Ali had produced last worn clothes of the deceased Abdul Maalik, Mst. Fatima Bibi, Ghulam Haider and Mst.
Irshad Bibi, i,e. P.1 to P.14 which P.W.14 secured vide memos. Exhs.P.F., P.G., P.H. And P.I. Attested by him. P.W.9 Ashraf Ali Naeem M.I.C. Stated that on 28-2-1990 he received an application marked to him by the Assistant Commissioner for recording statement of the appellant under section 164, Cr.P.C. And he recorded the same, which is Exh.P.L., according to law. P.W.10 Noor Ahmad is the complainant who narrated the facts mentioned in the F.I.R. Exh.P.O. P.W.11 Muhammad Iqbal, a Lambardar of the Chak after hearing the noise of P.W.10 complainant reached there. He stated that P.W. Sikandar, the other. Lambardar also reached alongwith other persons and witnessed that four persons had been murdered. P.W.10 left him near the dead bodies and proceeded to the police station for lodging report. The police reached there. The S.H.O. Took into possession Diya from near the dead body of Muhammad Maalik deceased, which was blood-stained and had finger prints on it. Diya P.15 was secured by P.W.14 vide memo. Exh.P.P. The police also collected blood-stained earth from underneath the dead bodies of Muhammad Maalik, Mst. Fatima Bibi, Mst. Irshad Bibi and Ghulam Haider vide memos. Exhs.P.Q., P.R., P.S. And P.T. Attested by him. The S.H.O. P.W.14 also took into possession a blood-stained piece of cloth from near the dead body of Mst. Fatima Bibi vide memo. Exh.P.U. Attested by him. The S.H.O. Also secured the cots, quilt and other blood-stained bed sheets etc. From near the dead bodies which he attested. He also joined the investigation after 20/21 days alongwith P.W. Sikandar (given up) and the appellant while in custody led to the recovery of blood-stained hatchet P.28, shirt P.29 and Shalwar P.30 which were secured vide memo.
Exh.P.Z. And were made into 'separate sealed parcels. Shirt P.29 was torn. A piece of cloth was also recovered. Again stated that the piece of cloth was recovered when the dead bodies were removed. After the recovery of clothes of the appellant, piece of cloth already recovered was matched with the shirt P.29 and found the same as a part of that shirt. The S.H.O. Had prepared memo. Exh.P.AA. In that respect which was signed by him and P.W. Sikandar Khan (given up). P.W.12 Muhammad Hayat had stated that 13 months earlier to his statement in the Court he went to see Ch. Shaukat Ali, Member, District Council, P.W. (given up as won over) and was sitting with him at his truck stand at Khichiwala, when the appellant reached and asked that he wanted to see Ch. Shaukat Ali, and P.W. Shaukat Ali stated that he was Shaukat Ali. Riaz appellant confessed before them that 18/19 days earlier he had committed the occurrence in Chak No,178/7-R and requested Ch. Shaukat All to help him and to produce him before the police. The appellant stated that Mst.
Ghulam Fatima deceased was sister of his father and Mst. Irshad Bibi was daughter of Mst. Ghulam Fatima deceased. Riaz appellant wanted the hand of Mst. Irshad Bibi alias Shamshad Begum for his younger brother Fazil and in that connection he came to Mst. Fatima deceased many a time, but she did not agree. Finally some days earlier to the occurrence Mst. Ghulam Fatima and Mst. Irshad alias Shamshad Begum (both deceased) insulted and abused him. He further stated that on the night of occurrence he came to the house of Mst. Ghulam Fatima deceased where Mst. Irshad deceased, Ghulam Haider deceased were present. Again the witness had stated that Riaz appellant told that he had visited the house of Mst. Ghulam Fatima deceased a day before the night of occurrence. The appellant disclosed that he enquired about Mst. Ghulam Fatima deceased and Abdul Maalik, about whom Ghulam Haider deceased and Mst. Irshad told him that they had gone to Daska. Riaz further stated that he stayed there and on the following day, Abdul Maalik and Mst. Ghulam Fatima came back from Daska. On their arrival Riaz sat and chatted with them until 9-00 p.m. And afterwords Riaz appellant and Ghulam Haider deceased went to sleep in one room, whereas Mst. Irshad Bibi, Mst. Fatima and Abdul Maalik, the three deceased slept in another room. The appellant had further stated that at about 1-00/1-30 in the night he got up and picked up a hatchet from the courtyard and first of all caused injuries with it to Mst. Fatima deceased, who tried to resist after getting up, during which she had torn shirt of the appellant, but finally the appellant overpowered her, she fell down and died at the spot. Thereafter, the appellant caused the murder of Mst. Irshad Bibi deceased with the same hatchet while she was lying on the cot. Riaz appellant further admitted that he murdered Abdul Maalik deceased. Similarly, with the same hatchet the appellant further confessed that finally he murdered Ghulam Haider deceased who was sleeping in the second room with the same hatchet. The appellant further told that he caused the murder of Ghulam Haider lest he should be 'a witness of the occurrence. The appellant had further confessed that he saw the dead bodies of all the four deceased in the light of the lamp and confirmed that they had expired and after that he picked up his bag containing his clothes and crime weapon blood-stained hatchet and left the house. He moved towards the road leading to Yateemwala and when the appellant reached near Chak No,179/7-R he buried the bloodstained hatchet in the sand dune and then started towards the bus stand of Chak No,175/7-R where he washed his face, shoes, clothes and got in a bus and went to his house. The appellant had also stated before P.W.12 that he narrated the whole occurrence to his father and then they locked their dwelling house and went underground. The appellant had also stated that the police started searching for them and he thought that they will be insulted by the police and that he should appear before the police through some respectable. Therefore, he had come to Ch. Shaukat Ali P.W.
(not produced), who sent a man to contact P.W.14, but he was not available. However, P.W.14 reached that place after an hour in the presence of P.W.12 and took away the appellant with him after examining him. P.W.14 took into possession a pair of shoes which Riaz appellant was wearing at that time vide memo. Exh.P.BB. The pair of shoes is Exh.P.BB./1-2 attested by P.W.12 and Ch. Shaukat Ali P.W. (not produced).
7. P.W.13 Muhammad Anwar had identified the dead bodies of deceased Ghulam Haider, Mst.
Shamshad Begum, Mst. Fatima and Muhammad Maalik at the time of their autopsy. P.W.14 Sajid Hassan, S.I./S.H.O. Is the Investigating Officer, who after recording the F.I.R. Exh.P.O. On the statement of P.W.10 Noor Ahmad had reached the spot, after completing the formalities at the spot despatched the dead bodies of the deceased to the mortuary for autopsy, had secured blood- stained earth, cot, beddings, noticed during investigation foot prints of some persons and prepared two moulds of the same, had secured Diya P.15, last worn clothes of the deceased and had deposited the sealed parcels with the Moharrir. P.W.12 and P.W. Shaukat (given up) Member District Council on 22-2-1990 had produced the appellant before him and on 25-2-1992, the appellant led to the recovery of blood-stained hatchet P.28, a torn shirt P.29 and Shalwar P.30, which he secured vide memo. Exh.P.Z. The appellant on 28-2-1990 offered to make judicial confession whereupon he wrote an application Exh.P.J./1 and submitted the same before the A.C. Fortabbas, who deputed R.M. For the said purpose, who after recording judicial confession of the appellant handed him over to P.W.14 and the appellant was sent to the judicial custody the same day. After completing the necessary formalities he challaned the appellant.
8. The appellant when examined under section 342, Cr.P.C. Denied the gosecution evidence against him, recovery of incriminating articles and also making of extra-judicial confession before P.W.12 and P.W. Shaukat All (given up) and judicial confession. He also stated that his thumb-impressions were obtained on the judicial confession. In answer to the question "why this case against you and why the P.Ws. Depose against you?" he stated:-- "Abdul Maalik deceased remained bachelor for his whole life and in the last days of his life he entered into Nikah with Mst. Ghulam Fatima deceased, the widow of his brother Qadir Bakhsh. In lieu of dower Mst. Ghulam Fatima deceased got the entire land measuring 12-1/2 acres owned by Abdul Maalik and entered in Nikahnama, but as the instalments of that land were yet to be paid to the Government, therefore, that land could not be transferred in her name. Ghulam Fatima and Abdul Maalik deceased were trying to arrange money for deposit of the Government instalments and a day before this occurrence, they had come back from their relatives in District Vehari with that money. Bashir and his father Nazir who is real brother of Abdul Maalik were against this transfer of land in the name of Mst. Ghulam Fatima deceased for the reason that in that case their ancestral property will go to Mst. Irshad Bibi alias Shamshad deceased who was not the real daughter of Abdul Maalik deceased, therefore, Bashir, his father Nazir alongwith their other relatives murdered Abdul Maalik, Ghulam Fatima, Mst. Irshad Bibi and Ghulam Haider being present during the fateful night was also done to death by them.
' Riaz son of Jalal Din spent a lot of money in getting divorce of Mst. Irshad alias Shamshad from her previous husband with this hope that afterwards, he will marry her but after the decree of the suit for dissolution of marriage Abdul Maalik and Mst. Fatima took money from Noor Ahmad complainant and gave the hand of Mst. Irshad Bibi to him and refused to give her hand to abovesaid Riaz. Due to this reason, Riaz son of Jalal Din also joined hands with the above said Bashir and Nazir and they all committed this occurrence.
' As there were no relatives of Abdul Maalik and Mst. Ghulam Fatima deceased none was left to challenge or pursue this murder case, except Noor Ahmad complainant who settled a compromise with the above said Bashir and Nazir etc. Through Sikandar Khan and Muhammad Khan, Lambardars of the village. My father, Allah Ditta and myself were the only heirs relatives of Mst.
Ghulam Fatima deceased and Mst. Irshad alias Shamshad, being my father the real brother of Mst.
Ghulam Fatima deceased. So, the actual culprits Muhammad Bashir and others named in the F.I.R.
Apprehending this that we may not pursue this murder case they have involved me through the help of the local police in this case in order to save their own skin and for this very reason, all the P.Ws. Have deposed against me falsely." ' and also further stated that he is innocent. The appellant opted to make statement on oath as envisaged under section 340(2), Cr.P.C. And reiterated the same statement recorded under section 342, Cr.P.C. And closed his defence. P.W. Shaukat All was summoned as D.W. He was served twice, but had not turned up due to pressure of S.H.O./Inspector and the complainant party. The appellant did not insist for issuance of warrants for his presence.
9. We have heard the learned counsel for the appellant as well as the learned AA.-G. And have perused the record. There is no eye-witness of the present occurrence. The case of the prosecution rests upon circumstantial evidence i,e. The recoveries, extra-judicial confession and judicial confession. P.W.10 Noor Ahmad complainant in the F.I.R. Exh.P.O. Had suspected four persons namely Muhammad Iqbal, Mustafa, Zakaullah and Muhammad Bashir and had not suspected the appellant. P.W.14 Sajid Hassan, S.H.O. After recording the F.I.R. Exh.P.O. On the statement of P.W.10 Noor Ahmad reached the spot and had also secured kerosene oil Diya P.15 which contained prints of fingers vide memo. Exh.P.B. And had made it into a sealed parcel. P.W.14 had also secured a piece of cloth P.13 from the spot and had prepared a memo. And a sealed parcel. He also prepared moulds P.21 and P.22 of the footprints from the spot which he also sealed. On 22-2-1990 the appellant was produced by P.W. Shaukat Ali (not produced) and Muhammad Hayat (P.W.12) before P.W.14. On 25-2-1990 the appellant led to the recovery of blood-stained hatchet P.28, torn shirt P.29 and Shalwar P.30, which he secured vide memo. Exh.P.Z. And had prepared separate sealed parcels. On the same day P.W.14 had compared the torn shirt P.29 of the appellant with the torn piece of cloth secured from the spot and prepared memo. Exh.P.AA. It is pertinent to mention here that on 5-2-1990 P.W.5 Muhammad Ashraf was working as Moharrir at Police Station Khichiwala and on the same day he received four sealed parcels containing blood-stained earth from P.W.14 for safe custody in Malkhana and on 20-2-1990 he handed over the same to P.W.3 Bashir Ahmad, Constable who had delivered the same in the office of Chemical Examiner on 21-2-1990 intact.
Thereafter, P.W.5 had received sealed parcels of moulds, Diya and blood-stained clothes of the deceased. The parcels remained in his custody. During cross-examination P.W.5 stated that on 5- 2-1990 he had received only four sealed parcels of blood-stained earth and no other parcel was received by him on that day and he could not give exact date when he received the parcels of Diya and moulds etc. He could neither confirm nor deny the suggestion that the parcels containing Diya and moulds were handed over to him. The Investigating Officer had recorded his statement under section 161, Cr.P.C. On 24-2-1990 and in Exh.DA. He had not stated that he had received sealed parcels of Diya and moulds from the Investigating Officer. After 24-2-1990 he did not get recorded his statement before the Investigating Officer vis-a-vis the above titled case.
10. P.W.12 Muhammad Hayat has stated that in his presence and that of Ch. Shaukat Ali, Member, District Council, P.W. (given up), the appellant had made extra-judicial confession, but nothing has been brought on record about the status of P.W.12 in the society. P.W.12 had gone to see P.W.
Shaukat Ali (given up) where the appellant had made extra-judicial confession in their presence.
The appellant was handed over to P.W.14 in presence of P.W.12 by P.W. Ch. Shaukat Ali. P.W.12 is a resident of the same Chak where P.W.10 Noor Ahmad complainant resided and during cross- examination he had stated that the appellant was not previously known to him and the place where the appellant made confession before P.W. Shaukat Ali is at a distance of 20 miles from his Chak and he had gone to P.W. Ch. Shaukat Ali for the return of his servant who was resident of Chak of P.W. Ch. Shaukat Ali. He has further stated that he had been participating alongwith P.Ws. Iqbal and Sikandar in the investigation of the case and it was incorrect to suggest that he alongwith Iqbal and Sikandar P.Ws. Settled a compromise between P.W.10 complainant and the real culprits Muhammad Bashir, Riaz son of Jalal Din, Ghulam Mustafa, Muhammad Iqbal and Zakaullah who were suspected in the F.I.R. By P.W.10 complainant. He further refuted the suggestion that he alongwith Muhammad Iqbal and Sikandar had falsely got involved the appellint in the case in connivance with the local police as a scape-goat. P.W.12 Muhammad Hayat was a chance witness i,e. While he was sitting with P.W. Ch. Shaukat Ali at his truck-stand at Khichiwala, the appellant reached and made extra-judicial confession. He has not been able to give reasonable cause of his being present at the relevant time i,e. When the appellant made extra-judicial confession before P.W. Ch. Shaukat Ali (given up). The appellant had moved an application before the trial Court for summoning P.W. Shaukat All as a Court-witness, but the same was refused. Thereafter, the appellant got summoned P.W. Ch. Shaukat All as a D.W., but in spite of the fact that summons were served twice on him, he did not appear and on that occasion the appellant had stated that due to the influence of S.H.O./I.O. The D.W. Ch. Shaukat Ali was not appearing and closed his defence.
There is no independent corroboration of the statement of P.W.12.
11. P.W.7 Dr. Muhammad Saeed Qamar had conducted autopsy on the dead bodies of the deceased persons. On the dead body of deceased Ghulam Haider he had found 11 incised wounds caused by sharp-edged weapon. P.W.7 also found 6 incised wounds on the person of Mst. Irshad Bibi deceased caused by sharp-edged weapon. He also found five incised wounds on the person of Muhammad Maalik deceased including injury No,5 made on the dorsal surface of right hand between thumb and index finger, and were caused by sharp-edged weapon. P.W.7 also found 8 incised wounds on the dead body of Mst. Fatima deceased caused with sharp-edged weapon. The victims had received total 30 incised wounds on their persons and surprisingly none of them raised hue and cry, whereas the deceased Ghulam Haider's dead body was lying in the northern room and the dead bodies of Mst. Shamshad Begum, Mst. Fatima and Muhammad Maalik were found lying in the southern room of the house. Could no one hear their shrieks and hue and cry and attracted to the scene from amongst the deceased persons, neighbours or persons from the vicinity? The same leads to the conclusion that more than one person had committed the four murders.
12. The appellant is stated to have been produced on 22-2-1990 by P.W. Ch. Shaukat Ali (given up) and P.W.12 before the S.H.O. (P.W.14) after he allegedly made extra-judicial confession. P.W.14 had arrested the appellant there and then and thereafter personal remand of the appellant was obtained. On 25-2-1990 the appellant is alleged to have led to the recovery of bloodstained hatchet P.28, torn shirt P.29 and Shalwar P.30, which were secured by P.W.14 vide memo. Exh.P.Z. And on the same day P.W.14 compared the torn shirt P.29 of the appellant with the piece of cloth P.31 and prepared memo. Exh.P.AA. It is pertinent to mention here that on 5-2-1990 P.W.5 had received only four sealed parcels containing blood-stained earth from P.W.14/I.O. For keeping them in safe custody in the police Malkhana, whereas P.W.14 stated during cross-examination on 4-2-1990 that he prepared seven parcels with regard to incriminating articles on the spot and deposited the same at the police station at about 5-6 p.m. With P.W.S. The parcel of Diya P.15, parcel of piece of cloth P.31 and parcel of moulds P.32/1-2 were also included in the aforesaid parcels. The statement of P.W.5 under section 161, Cr.P.C. Was recorded by P.W.14 on 242-1990 and he could not state that the aforesaid parcels were deposited with P.W.5 on 5-2-1990. It was correct that four parcels were deposited by P.W.14 with P.W.S. Except above-mentioned four parcels no other parcel was deposited by P.W.14 on 4-2-1990 or 5-2-1990 with P.W.S. P.W.14 had further stated during cross- examination that after depositing the aforesaid parcels on 4-2-1990 or 5-2-1990 upto 24-2-1990 he did not deposit any parcel with Muhammad Ashraf (P.W.5) and it was correct that in Exh.DA.
(statement of P.W.5 under section 161, Cr.P.C.), there is no mention of parcels with regard to Diya, moulds of accused and a piece of cloth. In Exh.DA. Only four parcels with regard to the blood- stained earth are mentioned and P.W.14 had not recorded the statement of P.W.5 regarding the deposit of Diya, moulds and piece of cloth parcels from 5-2-1990 to 24-2-1990. P.W.14 had refuted the suggestion that after 24-2-1990 he planted fictitious recovery of piece of cloth. P.W.14 had stated that after the recovery of the clothes of the appellant, a piece of cloth P.31 already recovered was matched with the shirt P.29 and found the same as a part of that shirt. It has come on record as per statement of P.W.14 that he had deposited the sealed parcel of P.31 with P.W.S. But it is surprising that P.W.14 after the recovery of torn shirt P.29 had compared it with the piece of cloth P.31. P.W.14 had already stated that he had deposited the parcels of the case property with the Moharrir (P.W.5). Nothing was brought on record by the prosecution that P.W.14 had deposited the sealed parcel of Diya P.15 and piece of cloth P31 with the Moharrir (P.W.5). Diya P.15 was sent to the Handwriting Expert alongwith the specimen of finger prints of the appellant and otherwise the report Exh.P.K. Of the Incharge Finger Print Bureau was positive. P.W.14 had stated in his statement that he had deposited the case property which he secured on the day of occurrence i,e. On 4-2- 1990, but here he has stated otherwise, i,e. The comparison of piece of cloth P.31 with the torn shirt P.29. It is clear that P.W.14 had either not deposited the whole case property with P.W.5 or was roaming about with P.31 with the view where to use the same i,e. Matching with any shirt and to fabricate the story.
13. The appellant is stated to have offered on 28-2-1990 to make judicial confession of his guilt. It is worth mentioning that the appellant was arrested by P.W.14 on 22-2-1990 after it is stated that he had made extra-judicial confession, but till 28-2-1990 he did not offer to make judicial confession. It clearly leads to the conclusion that the appellant was induced and coerced to make confessional statement and for six days the appellant resisted the pressure and inducement to make judicial confession. The appellant is alleged to have stated before P.W.9 Mr. Ashraf Ali Nadim, M.I.C. That he had demanded the hand of Mst. Irshad Bibi deceased from Mst. Ghulam Fatima deceased for his younger brother Muhammad Fazil, but the same was refused and Mst. Irshad Bibi deceased also refused to marry with Muhammad Fazil. Mst. Irshad Bibi was married in Sadiqabad, from where after 2/3 years she was divorced and thereafter the appellant again demanded the hand of Mst.
Irshad Bibi deceased for his brother, but the deceased Mst. Irshad Bibi and Mst. Ghulam Fatima had refused, and Mst. Irshad Bibi deceased was married with Zakaullah. However, after filing a suit for dissolution of marriage she was divorced and again the appellant had demanded the hand of Mst.
Irshad Bibi deceased, but the deceased Mst. Ghulam Fatima insulted the appellant and married Mst. Irshad Bibi with P.W.10 complainant Noor Ahmad and due to that grouse he committed the murder. It is important to mention here that Mst. Irshad Bibi deceased was 35 years of age and the age of Muhammad Fazil, brother of the appellant was not more than 15 years at the time of the occurrence. Muhammad Fazil, brother of the appellant had not been born even when it was stated by the appellant before P.W.9 in his confessional statement that the hand of Mst. Irshad Bibi had been demanded by him. Mst. Irshad Bibi was divorced twice and thereafter was married with the complainant P.W.10 and at that time the age of brother of the appellant Muhammad Fazil was maximum 15 years. How is it possible that the hand of a girl can be asked for a boy who has not been born so far and also a woman of 35 years for a boy of 15 years and especially in the case when the woman is mother of a child, twice divorced and married thrice? The appellant as stated by P.W.12 Muhammad Hayat and P.W.14 I.O./S.H.O. Was arrested on 22-2-1990 after making extra- judicial confession and till 28-2-1990 the appellant had not offered to make the judicial confession.
There was nothing to deter the appellant from making judicial confession if at all he had already made extra-judicial confession. In the course of events, the only natural course for the appellant was to make voluntary judicial confession after he had already made extra-judicial confession taking the responsibility of the murders. We are of the considered view that the appellant had not made voluntary confessional statement before P.W.9. The statements made by the P.Ws. Have not been found confidence inspiring and no reliance can be placed on their testimony.
14. Pursuant to the above discussion, we hold that the prosecution had not established its case against the appellant beyond doubt. The appeal is allowed B and giving the appellant benefit of doubt, we acquit him of the charge. The appellant is in jail, who shall be released forthwith, if not required in any other case. The death sentence is not confirmed.