' MUHAMMAD SIDDIO, I-Abdul Rahman and Abdul Aziz appellants are real -brothera while Nazi'. _Ahmad appellant is the son of Abdul Rehrnan appellant. Munir Abmad aFpellant, is the son of Abdul Aziz. Mst. Rani deceased was daughter of Abdul Rehman appellant and sister of Nazir Ahmad appellant. She was married to one Mukhtar Akmad. Her age at the relevant time was about 16 years. The second deceased in this case was Saeed Ahmad son of complainant Muhammad Zahid P. W. At the time of occurrence he was student of Second Year in Government College, Bahawalnagar. Both the parties were residents of Mauza Massawala situated within the jurisdiction of Police Station Minchinabad. Their houses were also in the same vicinity close to each other. The motive alleged by the prosecution is that the accused party suspected illicit intimacy between Mst.
Rani deceased and Saeed Abmad deceased. On the day of occurrence, namely, 29-7-74, at about 10-30 a. m. Saeed Ahman deceased was present in the house of his paternal aunt Mst. Sughran Bibi P. W. Her house is also close to that of Abdul Rehman appellant. Abdul Rehman appellant scaled over the wall of the house o= said Mst. Sughran Bibi P. W, and then unchained the door of the house from inside. After unchaining the door, Abdul Aziz appellant who was armed wish a hatchet, also entered the house. Both the appellants caught hold of Saeed Ahmad deceased and started forcibly taking him towards their own house. Met. Sughran Bibi P. W., her mother Mst. Sardaran isirce dead) and her niece Mst. Shamshad Begum (given ua P. W.) were present in the house at that time.
These women folk raised alarm and sent Mst. Shamshad Begusn (given no P. W.) to inform Muhammad Zahid P. W. About the incident. Accerdinglya Met, Seamslaad Begum went to her house and informed her father complainant Muhammad Zahid P. W. And narrated the incident regarding forcibly taking away of her brother Sexed Ahmad deceased by the two appellants towards their own hoarse. On receipt of this information the complainant rushed towards the house of Abdul Rahman appellant and entered the courtyard. To saw that Nazir Ahmad, Munir Abmad and Abdul Rahman appellants were joining Saeed Ahmad deceased and then he was tied to a Shisham tree in the courtyard, Abdul Aziz appellant aimed with a hatchet was also present there. Mst. Sughran Bibi P W. And ,sk1St. Sardaran (since dead) were imploring the appellants eot to beat Saeed Abmad deceased. When complainant Muhammad Zahid P. W. Tried to rescue his sen, 0.) of Mst. Rani deceased and despatched the dead bodies to the mortuary for postanorteea examination. He collected the blood-stained earth from near the dead body of Saeed Ahmed deceased and scaled it into a parcel vide Memo. Exh. P. B. He also took into possession bloastained earth from near the dead body of Mst. Rani deceased and sealed it inte a parcel vide Memo. Exh. P.
C. He picked up lock (Exh. P. i.) from near the kotha of Abdul Rehman appellant and a broken chain (Esh. P. 2) of the door. Lie also secured a wooden plank (Exh. P 3) of the door of the said kotha. The e articles were taken into possession vide memo. Exh. P. D. He picked up a pair of shoes (Eth 4/1-2) of Saeed Ahmad deceased and ckdar (WI. P. 5) of Abdul Rahman appellant aid took these articles into possession vide (emo. Exh. P. E. He arrested Abdul Rahman and Abdul Aziz appeliants on the same day. While in police -custody, Abdul Rahman appellant produced blood-stained sow ,Exh. P.
6) his blood-stained shirt (Exh. P. 7) and. Chadar (Exh. P. 8) and the same were taken into posses&on vide Memo Exh. P. F. This police officer then handed over the investigetion to S. H. O.
Fereze Qareshi. P. W. On 30-7-1974. Nazir Ahmed, and Munir Ahmad appellants were produced before him and he arrested them. On the same day, Nazir Ahmad appellant while in police custody, got recovered blood-stained ::;,at,ci.Iet (Exh: P. 10), chador (Exh. P. 11), shirt (Exh. P. 12) and sofa (Exh.
P. 13) which were taken into possession vide Memo Exh. P. G. He got prepared the site plan (Exh. P.
Q.) from the draftsman. After the completion of the investigations, the police challaned all the four appellants under section 302/34, P. P. C, They were tried by the Sessions Judge. Bahawalnagar, Aho vide the impugned sudg,eent dated 2-6-76, convicted them under section 302/34, P. P. C. On two counts and sentenced Nazir Ahmad and Munir Ahmad appellants to death each on two counts subject to confirmation, by this Court, while Aadul Rahman and Abdul Aziz appellants were sentenced to lire imprisonment each on each count. Each of the four appellants was also sentenced to pay a floe of Rs. 2,000 on eech count. In default of payment of the fine each of the appellants was ordered to undergo further rigorous imorisenment for a period of two years on each count. The sentence of imprisonment in case of Abdul Rahman and Abdul Aziz appellants were ordered to ran concurrently. The sentences of imprisonment in default of payment of fine in case of Nazir Ahmed and Munir Ahmad appellants were ordered to run concurrently if the sentence of death was not confirmed. Alt the four appellants have challenged their conviction and sentences through Criminal Appeal No. 662 of 1976. The case is also before us under section 374, Cr.
P. C. For confirmation of the sentence of heath awarded to Nazir Ahmed and Munir Ahmad appellants by the trial Court. Complainant Muhammad Zahid P. W. Has filed Criminal Revision No. 66 of 1976 praying that the sentence awarded to Abdur Rahman and Abdul Aziz appellants may graciously be enhanced. Thisdeeision petition was ordered to be heard along with the present appeal. This judgment will dispose of Criminal Appeal, the Murder, Reference and the Criminal Revision.
2. Dr, Muhammad Rafique Zafar on 30-7-74 conducted the post-mortem examination on the dead body of Saeed Ahmed and found the following injuries on it
(1) Incised wound 6" x x bone cut completely, oblique in direction, on the right side and posterior surface of the neck starting from just below the angle of right mandible and extending backwards towards the posterior surface of the neck.
(2) Incised wound 44" x 3/4' x bone cut on the posterior surface of the head about 1 above and behind the right ear.
(3) Two incised wounds 2' x 1/3' and 1r x 1/3" x nausele deep on the right side of the beck about 2' below and behind the right ear.
(4) Incised wound 1' x 4" x skin deep on the right side of three head about 3" above and behind the right ear.
(5) Incised wound ?4" x x skin deep on the posterior surface of the neck about 3' below and behind the left ear, transverse in direction.
(6) Incised wound 3/4' x 4' x skin deep on the palmer surface of the proximal inter phalycgeal Joint of left ring finger.
(7) Two incised wounds 3/4" x r and x 4" x skin deep on the palmer surface of the middle phalynx of left index finger and middle finger respec tively.
(8) Incised wound lr x 1/8' x skin deep, transverse in direction on the front of left forearm about in the middle.
(9) Incised wound l' x 1/3' x muscle deep longitudinal in direction on the posterior surface of the left elbow-joint.
(10) Incised wound 11" x 4" x skin deep on the outer aspect of left hip-joint.
(11) Incised wound 4" x 4" x skin deep, transverse indirection on tne palmer surface of the middle pholynx of right little finger.
(12) Two incised wounds 4" x 1/8' each x skin deep on the palmer surface of the proximal phalynx of right ring and middle fingers respectively.
(13) Incised wound 4" x r x skin deep on the dorsal surface of the middle phalynx of right index finger.
(14) Incised wound 14' x 4' x skin deep on the front of the abdomen about 1 lateial to the umblicus.
(15) Puncutured wound 3/4" x r x 14' on the back of the left chest about 44" below the inferior angle left scupula.
(16) Lacerated wound 1' x x skin deep on the outer aseect of right eye-brow.
(17) Lacerated wound 1r x 4" x scalp deep on the right side of the forehead about 14' above the right eye-tero
(18) Lacerated wound 2' x 1/3' x scalp deep on the left side of the head about 34 above and front of left-ear.
(19) Lacerate 1 wound x r x skin die" on the left side of the head about 44" above the left ear,
(20) Lacerated wound 3/4' x 1/4' x skin deep on the posterior surface of the head about 4' above and behind the left ear.
(21) Lacerated wound 4" x x skin deep on the left side of the head about 14" above and behind the left ear.
(22) Contusion mark 3' x 14 with lacerated wound 1/3' x 1/8' x skin deep over the left cheek, just below the lower eyelid of left eye,
(23) Contusion mark 2' x 1r over the right upper and lower eye-lids, and over the right cheek just below the lower eye-lid of right eye.
(24) the root of the nose, with fracture of nasal nose.
(25) Contusion mark 1" x 3/4' on the dorsal surface on the middle phalynx of left little finger.
(26) Two contusion marks 4" x 1' and 34" x 1' on the outer aspect of left upper arm about 3r above the left elbow-joint.
(27) Contusion mark 5' x 2" over the right scapular region and also posterior surface cf the right shoelder joint.
(28) Contusion mark 2r x 1" on the posterior surface of right upper arm about r above the right elbow-joint.
(29) Contusion mark 14' x 3/4' over the right side of upper lip.
In the opinion of the doctor the cause of death was severe haemorrhage and shock due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 14 were caused by a share edged weapon, while injury No. 15 was caused by a sharp poicted weapon and injuries Nes, 16 to 29 were caused by a blunt weapon. Probable time between injuries and death was instantaneous, while between death and POE,- modem examination it was 24 hours.
3. The same doctor on the same day at 11-15 a. m. Conducted the postmortem examination on the dead body of Mst. Rani and found the following injuries on it
(1) Prised wound 3" x 3/4' x bone cut on the head about 3" above-and behind the left ear, oblique in direction.
(2) Incised wound 24' x 3/4' x bone cut over the lower part of the left ninna and over the left side of the face.
(3) Incised wound 5' x 3' bone x cut completely, oblique in direction on the left side and posterior surface of tee neck about 4' below the left ear.
(4) Incised wound 3/4' x 3/4' x f.TUISOie deep on the posterior surface the eeck about 3/4" below the injury No. 3 oblique in direction.
(5) Incised wound 2f" x 3/4' x muscle deep transverse in direction over the left scapular region,
(6) Incised wound If" x 1/3' x muscle deep on the front of the left side of the neck just above the medial end of k=it clavicle.
(7) Incise! Wound 34' x 1/16' x superficial skin deep on the front of the right chest, just blow the medial end of right clavicle.
(8) Leched wound 4' Al 4' x skin dee? Cai the dorsal surface or the proximal phalynx of right little finger.
(9) Incised wound 1' et skin deep on the pahra. Surface of the middle and dorsal phalynx of right finger.
(10) Incised wound 4' x x skin deep on the dorsal surfae,e of the proximal phalynx of right ring finger.
01) incised wound 4' x f' x skin deep on the dorsal surface of the middle phalynx of right middle finger.
(t2) Incised wound 34' x 1/8' x skin doze on the nosterior surface of left thigh about 9' above the left knee-joint.
(13) Two incised wounds 24' x 1/16' x skin deep and 3' x /e6' x skin deep on the back of the left side of the chest, just below and medial to interior angle of left scapula.
(14) Contusion mark 2' x over the top of left shoulder-joint.
(15) Contusion mark 11' x 3/4' over the right cheek.
(16) Contusion mark x 1' on the outer aspect of left thigh about on the upper half.
In the opinion of the doctor the cause of death was severe haemorrhage and shock due to injury No. 3 which was sufficientto cause death in the ordinary course of nature. Iniuries Nos 1 to 13 were caused by a sharp, edged weapon while injuries Nos. 14 to 16 were caused by a blunt weapon.
Probable time between injuries and death was instantaneous, while between death and post- mortem examination, it was 24 hours.
4. The appellants when examined under ssction 342, Cr. P. C. Deried the prosecution allegations.
Nazir Ahmed appellant in his statement before the Committing Magistrate ,rhen asked the following questions, stated as under .- "Q. No. 5.-Is it correct that on 30-7-74 at the time of your arrest you got recovered chadar P. 11, shirt P. 12, Sofa P. 13, all blood-stained and then a hatchet P. 10, this also blood-stained and all the articles belong to you. Ans.-Correct.
Q. No. 6.-Why this case against you ?
Ans. On the day of occurrence who I reached home, I saw Rani and Saeed commit adultery, I was suddenly and gravely rrovoked over the situation. I picked up a hatchet from the same kotha and murdered both of the accused. Just after the occurrence Bakhshai, Abdul Hag, Qutaaba P. Ws.
Came there whom I narrated the whole story. None of the other accused was at the spot."
Before the trial Court when asked why th:s case was made against him, he stated as under :- "The prosecution version of the occurrence is incorrect. The true facts are that on the day of oceurrence at about 10-0:01-00 a. m. My sister Rani deceased was all shone in our house who was putting up with us because her husband was minor and the other family members were out in the fields I came to my house per chance when I saw the doer of the room of my house bolted from inside. I peeped threugh the ,'oor and saw Mst Rani and Saeed Ahmad in compromising positien on one and the same cot, I lost my control and picked up a hatchet from the courtyard of my house. I broke open the door and killed both the deceased persc:s inside the room under grave and sudden provocation. My co-accused were not present at the spot. After killing the deceased persons I myself reported the matter to the police. The police in collusion with the complainant fabricated the facts and registered a false case againt myself and my co-accused. I had thrown the hatchet at the spot after killing the deceased petsons."
Munir Ahmad, Abdul Rehman and Abdul Aziz appellants in their atatemehts before the trial Court stated that they were falsely implicated due to enmity with P. Ws. And relationship with co-accused Nazir Ahmad who had kilned the deceased persons under grave and sudden provocation. They further stated that they were present (sic) on the spot at the relevant time. Tney, however, admitted their relationship inter se and that of Mst. Rani deceased. The appellants, however, produced no evidence in defence.
5. In support of its case, the prosecution produced four eye-witnesses, namely, Muhammad Zahid Oh W. 61, Mst. Sughran Bibi (P. W. 7), Sardar Shah (P. W. 8) and \ uhammad Zeman (P. W. 9). Tee prosecution also relied upon the recoveries, the motive and the medical evidence. The trial Court believed the prosecutioc evidence and convicted and sentenced the appellants as mentioned above.
6. As mentioned above, Nazir Ahmad appellant has admitted the killing of the two deceased persons but has given his own version, while the remaining three appellants have totally denied the charge and have denied even their presence on the spot. There are, therefore, two versions of the same oesturrence one given by the prosecution and the other suggested by Nazir Ahmad appellant. In this situatiea, we have to examine whether the prosecution has establilhed the guilt of the appellants beyond doubt and whether the plea taken up by Nazir Ahmed appellant is probable and believable. The first nark of the prosecution store is supportei by Mst. Sughran Bibi P. W.
According to her, on the day of occurrence Saeed Ahmad deceased was present in their house and she had served aim with meal, Abdul Rehman appellant entered the courtyard after scaling over the wall of her house. He then unchained the door of her house from inside. Abdul Aziz appellant who was armed with a hatchet, there entered her house. Both Abdul Rehman and MilUi Aziz appellants caught hold of Saeed Ahmed deceased and forcibly took him towards their own house. Mst. Sughran P. W., her mether Mst. Sardaran (since dead) and Mst. Shamshad Begun' a minor daughter of complainant Muhammad Zahid P. W. Raised alarm, Mat Shamshad Begun, (given up P. W.) was sent by Mst. Sughran P. W. To inform her fatter Munammad Zahid (P. W.). /list.
Sughran P. W. And her mother (since dead) followed Abdul Rahman and Abdul Aziz appellants and kept on shouting. Saeed Ahmad deceased was taken into the house of Abdul Rehman appellant where Nazir Ahmad and Munir Ahmad appellants were already present. According to Mst. Sughran alibi, she and her mother were asking the accused persons not to beat Saeed Ahmad deceased. In the meantime, complainant Mulaametad Zahid P. W. Also reached the spot. Abdul Aziz appeilaat then pushed Mst. Sughran Bibi, P. W. And her mother Mst. Sardaran (since dead) out of the Haveli and bolted the door from inside, She and her mother kept on raising alarm, bat she does not claim to have men anything after this. The main attack of Mr. M. Anwar, the learoed defeece counsel, against her statement is that she is contradicted by the medical evidence regarding last meal taken by Saeed Ahatad deceased in her house and that no marks of dragging were found on the person of Saeed Ahmad deceased by the doctor. It is further argued that the Investigating Officer did not sea any marks of scaling over the wall by Abdul Ratimaa appellant. We do not attach much importance to the absence of dragging marks, because no witness has stated that the deceased had fallen down and he was dragged by the t so appellants while lying on the ground. If a person is dragged forcibly while lying on the ground, he will definitely receive some scratches or abrasions, but if a person is forcibly taken while standing, it is not necessary that he should receive dragging marks on his person. Since Mst. Sughran Bibi, P. W. Has not stated that Saeed Ahmad deceased had fallen down and was then dragged by the two appellants, her statement is not, therefare, contradicted by the medical evidence on this point. It seems that the deceased was taken into japha and forcibly taken by the two appellants towards the house of Abdul Rahman appellant.
Tnus, the absence of dragging marks on the dead body of Sued Ahmad does not conflict with the medical evidence, The other argument of the learned defence counsel is that according to Mst.
Sughran Bibi P. W. Saeed Ahmed deceased had taken his last meal shortly before his death, while the doctor found six ounces of digested food in the stomach and the large intestine containing faeces. According to the learned defence counsel, the doctor's evidence goes against the statement of this witness. We have given our anxious tlaaught to this argument, but find no force in it. No doubt, Mst. Sughran Bibi P. W. Had stated in cross-examination that Abdul Rahman appellant had entered her courtyard about ten minutes after Saeed Ahmad deceased had taken the meal in her house, but the estimate of time given by her cannot be tie same as understood by literate persons in the cities. She is an illiterale rustic village woman and her guess about the time cannot be the same as stated by her and understood by civilized persons. About the duration of occurrence also the witnesses have given different estimate of time some have said half an hour, while the others about one hour. Reliance in this behalf can safely be placed upon the following observation made by their Lordships of the Supreme Court in Gul Sher's case "It seems to me that this argument was based on the statements of the witnesses that the occurrence took place at about 1 a. m. These village folk, especially women witnesses, gave the time not by watch but by mere guess and hence much would not turn on such statements."
Further, we find that there is nothing on the record to show the exact natere of food taken by Sseed Ahmad deceased. The State Counsel suggests that the deceased being a college student, may have been offered biscuits or some such like light food by her aunt Mst. Sughran Bibi P. W. No question was put to her in cross-examination as to the exact kind of food taken by the deceased in her house. Further, also it is not denied that digestion works differently with different people. The possibility that the process of digestion A continued even after the death also cannot be ruled out.
The doctor was not preperly cross-examined on this point. In the circumstances of the case, we attach no imporance to this argument advanced on behalf of the defence. After going through her statement and keeping in view the situation of her house, being close to the place of occurrence, Mo. Sughran Bibi P. W. Seems to ite a natural witness as the occurrence started from her house. It may be observed that she has clearly admitted in her statement that the accused persons had not murdered Saeed Ahmed deceased within her view. This shows that she did not try to make a false statement to depose regarding the actual killing of the two deceased persons. She had not enmity to falsely depose against the appellants. If the occurrence had not started from her house, the prosecution could not fabricate this story by introducing a woman withess who is coesidered to be weak evidence arid whose testimony can easily be shaken through cross-examination by the1 defense. We find that Mat. Sughran Bibi P. W. Has been rightly believed by the trial Court. We also endorse that view.
7. The second part of tie prosecution vennen relates to the pinhaing and tying of Sneed Ahmad deceased to a tree and giving hieei eeating in the courtyard of Abdul Rahman appellant. The eye- witnesses claim to have witressed this part of the case from over the wall of one Allah Ditta which is common with Abdul Rahman appellant. In the site plan Bah. P. Q. This -place is shown at Point No.2.
At that time, Mahammad Zahid P. W. Was also accoaspanied by Sardar Shah and Mohammad Zaman P. Ws. According to the learned defence counsel, if those witnesses really had been there, then they could not remain as mere spectators but would have taken some steps to save Saeed Ahmad deceased from the clutches of the appellants. No doubt, Muhammad Zahid complainant is the father of the deceased while Sardar Shah is husband of Mst Sughran Bibi P. W. Who is real sister of Muhammad Zahid P. W. And Muhammad Zaman P. W. Is also related to the complainant being uephew of the father-in-law of the complainant, but they may be persons of weak nerves or coward and, therefore, did not dare to go near the appellants and may be afraid of receiving injuries themselves. Moreover, as observed by their Lordships of the Supreme Court in Nura's case all persons do not have the heart to risk their own safety in such situations. Further, after chaining the outer door it was not quite easy to reach the courtyard of Abdul Rahman appellant. They may also have thought that the deceased would not be killed but may be given a thrashing only to teach him a lesson to behave in future. It is also argued by the learned defence counsel that no blood was found by the Investigating Officer from the courtyard, although the appellants are alleged to have given some blows to the deceased while pinioning and tying him to a Shisham tree. Similarly, no marks of dragging were witnessed by the Investigating Officer. Again we do not attach much importance to the omission of these things as it is not clear bow the deceased was dragged whether he was lying flat on the ground or was just forcibly taken while standing. Similarly, the blood coming out of the injuries at that stage may have been absorbed by the clothes of the deceased. Same is the position of Mst. Rani deceased. The prosecution could not introduce these things unless Sated Ahmad deceased was actually pinioned and tied to the tree, because by doing so, the prosecution was exposing this part of their story to be witnessed by other people. The time and place of occurrence are not disputed by the defence. The occurrence, therefore, could not remain towitnessed,
7. As regards the actual killing of the two deceased persons inside the kotha, it is vehemently argued by Mr. M. Anwar that the eye-witnesses could not see as to who inflicted which injury and to whom. Since the occurrence took place in broad daylight at about 10-30 a. m. And the witnesses were on a hirer level being on the wall of the courtyard of the place of occurrence, there was nothing in-between them and the place of occurrence to obstruct them from seeing the occurrence. The distance between these two places is also a short one. An ordinary person from such a distance at such a height at that hour of the day, could easily see what was inside the kotha having its door open. Thus, we have reached the conclusion that the trial Court has rightly accepted the version of the eye-witnesses regarding the actual occurrence. Sardar Shah P. W. Is the husband of Mst. Sughran Bibi P. W. According to him he had gone out to ease himself when Saeed Ahmed deceased was forcibly taken from the courtyard of his house by Abdul Rahman and Abdul Azle appellants. On his return, on hearing alarm coming from the house of Abdul Rahman appellant, he rushed in that direction and saw that his wife Mst, Sughran Bibi P. W., his mother-in- law Mat. Sardaran (since dead), Shamshad Bogum (given up P. W.) and complainant Muhammad Zahid P. W. Were raising alarm outside the house of Abdul Rehman appellant. At that time the door of the house of Abdul Rahman appellant was open. He claims to have seen the pinioning and tying of Saeed Ahmad deceased in the courtyard of Abdul Rahman appellant. After chaining the door of the house of Abdul Rahman appellant, he followed complainant Muhammad Zahid P. W. To the wall2 of Allah Ditta from where he saw the remaining ocourrence. The statement of this witness is not seriously challenged by the defence. His house is adjacent to the place of occurrence. If the prosecution wanted to improve its case, he could be easily made the witness of the earlier part of the occurrence as well. His mere relationship with the complainant is not sufficient to discard his tese timony, as he had no enmity or motive to falsely involve the appellant. B Same is the position of Muhammad Zaman P. W. Who though distantly related to the complainant, had no enmity against the appellants. He is the resident of a different village situated at a distance of about two miles from the place of occurrence, He had come to village Mausamwala to recover some money front one Zulfigar. He has supported the prosecution story as on hearing the alarm he v as attracted to the spot and then saw the whole occurrenc with other eye-witnesses. The defence has not tame able to shake his veracity in cross-examination. The trial Court after discussing their statements in detail has rightly believed him and Sardar Shah P. Ws, After minutely scrutinising the statements of the eye-witnesses, we have reached the conclusion that they have been rightly believed by the trial Court. Some minor discrepancies and contradictions in their statements are not sufficient to discard their testimony,
9. It is argued by the learned defence counsel that the occurrence having taken place in broad daylight in the aeart of the village, many other persons must have been attracted to the spot and, therefore, the prosecution should have produced some independent witnesses in this case. No doubt some people from the adjoining houses must have been attracted to the spot, but nowadays the tendency of the so-called independent witnesses is not to appear as witnesses in murder cases as by doing s, they are considered to be partisans in future.
10. According to the learned defence counsel, the recoveries should not be believed in this case.
Blood-stained sota (Exit. P. t), shirt (Exh. P. 7) and chador (Us. P. 8) were recovered at the instance of Abdul Rahman appellant and the same were taken into possession vide Memo Exh. P. F. Dated 29- 7-74 attested by Muhammad Zaman (P. W. 9) and A. S. I. Nazir Ahmad (P. W. 10e We have already believed Muhammad Zaman as eyewitness. The police officer had no enmity to plant these recoveries. Chadar (Exh. P. 5) which was taken into possession alongwith the pair of shoes of Saeed Ahmad deceased, also belonged to Abdul Rahman appellant. After killing the two deceased persons, the dead bodies were covered with this chadar. The learned defence counsel has tried to argue that this clad= belonged to Saeed Ahmad deceased and, therefore, he was found naked at the time of occurrence. This is, however, actually incorrect. In the recovery Memo. (Exh. P. E.) itself it is specifically mentioned that this chadar (Eth. P. 5) was of Abdul Rahman appellant Muhammad Zaman P. W. In his statement has clearly stated that chadar (Exh. P. 5) belonged to Abdul Rahman appeliant, To the same effect is the statement of A, S. I. Nazir Ahmad P. W. From Nazir Ahmad appellant bleod-stained hatchets (Exh. P. 10) (Exh. P. D), shirt (Exh. P. 12) and sofa (Exh. P. 13) were recovered and taken into possession vide memo. Ezra P. G. Attested by Sardar Shah and Muhammad Zaman P. Ws. In addition to the Investigating Officer. Regarding the recovery of hatchet (Exh. P. 10) it is argued by Mr. M Anwar, the learned defence counsel, that it is fabricated one, as on 31-7.1974 while asking for further remand from the Magistrate, the Investigating Officer mentioned in the application that the weapon of offence was yet to be recovered from the accuse'`. No doubt, it is so mentioned in Exh. D. C. But this may be done so by the Naibe..0111i, or some other subordinate official in routine as is generally done by these people. In the presence of positive' and direct evidence of three witnesses, the mention of this fact in the said application does not disprove the recovery of this hatchet, especially when the recovery of other articles alongwith the weapon of offence is not disputed. We have already believed Sardar Shah and Muhammad Zaman P. Ws. As eyewitnesses. We have no reason to disbelieve them as recovery witnesses. After going through their statements and of the Investigating Officer we find that the recoveries have been rightly believed by the trial Court.
11. The learned counsel has also argued that the trial Court WAS not justified to use the medical evidence as corroboration. According to him; the medical evidence rather belies the ocular testimony as the doctor who performed the postmortem examination on the dead body of Mst.
Rani took vaginal swa bs which were sent to the Chemical Examiner who found the same stained with semen. We are unable to agree with the defence counsel. Mst. Rani was admittedly a married girl The doctor has stated that semen sperms can be detected in the vanina up to about one week.
On the basis of this it is contended by the State Couesel that he may have had sexual intercourse with her husbaud prior to the occurrence. In reply, Mr. M. Anwar, the learned defence counsel, argues that her husband at the relevant time was of tender age and not capable of producing semen sperms. There is no material on the record to show the exact age of her husband and his capability of committing sexual intercourse or produce semen sperms. The appellants in their statemeati under section 342, Cr. P. C. Have stated that the husband of Mst. Rani was a minor.
However, no evidence was-, produced to substantiate this fact. Even n) question was put to the witnesses in cross-examination on this point. However, at the conclusion of the arguments. Mr. M.
Anwar, the learned defence counsel, submited an application on 24-1-1977 praying that medical certificate be allowed to be placed on the record, The said medical certificate is also attached with the application. According to this certificate, the Medical Superintendent, District Headquarters Hospital, Bahawalnagar had examined Mukhtar Ahmed, son of Abdul Karim, resident of Maim Musamwala on 1-3-1975 and in the opinion of the doctor his age was 13/14 years. The certificate is completely silent about the capability of said Mukhtar Ahmad to produce semen. This application is vehemently opposed by the State Counsel. This certificate has to be proved in a legal manner.
Said Mukhtar Ahmad has not been examined as a witness in this case. Moreover, mere age is not sufficient, because it is not denied even by the learned defence counsel that in this age even a boy of 13/14 years can be capable of performing sexual act. There is force in the objection and being placed at a very late stage this certificate does not advance the case of the defence on this point.
Accordingly, we are not inclined to allow this certificate to be placed on the record. The mere fact that vaginal swa bs of .Mst. Rani deceased were found stained with semen, does not adversely affect the prosecution case which otheinaiac' stands established. It is not denied that if semen could he on the vaginal swa bs, then in ordinary circumstances it should also have been found on the other parts of the body of Mst. Rani deceased like pubic hair, thigh etc. Further in case of fresh intercourse semen should also have been present on the male organ of Saeed Ahmed deceased or otherwise it should have been found greasy. No such thing was found or observed by the doctor while performing the post-mortem examination.
12, The 'prosecution has also relied upon the motive in this case. As mentioned in the F. I. R. The alleged motive is that the appellants were suspecting Mg. Rani deceased illicit intimacy with Saeed Ahmed deceased. This intimacy is admitted even by the defence. Even otherwise it has been proved by the prosecution and not doubted by the defence and also no question 'was put to any of the witnesses on this point. We find that the motive has been fully established against the appellants.
13. Now we take up the defence version. As mentioned above, Nazir Ahmad appellant in his statement under section 342, Cr. P. C. Has stated that on the day of occurrence at about 10/11 a. m his sister Mst. Rani. Deceased was all alone in their house where she was at that time staying as her husband was a minor and the other family members had gone out in the fields. This appellant per chance came to his house and found the door of the room bolted from inside, He peeped through the door and saw Mst. Rani and Saeed Ahmad deceased in compromising position on one and the same cot. He lost his control and piked up a hatchet from the courtyard of his house and atter breaking upon the door killed both the deceased persons inside the room under grave and sudden provocation. He has furthet stated that the other appellants were not present on the spot. After killing the deceased persons he himself reported the matter to the police, but the police in collusion with the complainant party fabricated the facts and registered a false case against him and his co-accused. He had thrown the hatchet at the spot after killing the deceasel persons. The other three appellants supported this version and stated that they were faltely implicated due to their relationship with Nazir Ahmad apeellant. No evidence was led in support of this version. We have considered this version with care, but are unable to accept the same. The defence version has also been rightly rejected by the trial Court. We are censcious of the fact that the defence is not required to prove this version to the same extent as the prosecution has to prove its version and the defence has only to show that it may be probable or believable. It is not denied even by the learned defence counsel that the injuries found on the dead bodies were caused by more than one weapon, as some injuries are by a sharp-edged weapon and others by a blunt weapon, According to the doctor, injury No. 15 found on the dead body of Saeed Ahmad was caused by a sharp- pointed weapon. This, according to the medical evidence, three kinds of weapons were used to cause injuries to the deceased persons. We are quite clear in our mind that the injuries found on the two dead bodies coula not be caused by a hatchet as stated by Nazir Ahmed appellant. The defence counsel has tried to argue that this appellant may have used both sides of the hatchet, namely, the sharp as well as the blunt Ride and injury No. 15 of Saeed Ahmad deceased may have been caused by the edge of the said hatchet. We do not agree with him. The size of some of the blunt weapon injuries is so large that they could not possibly be caused with the blunt side of the hatchet. It is nobody's case what this appellant used the handle of the hatchet like a sots. Thus, the medical evilence belies the defence plea. Moreover, it was not possible for Nazir Ahmed appellant alone to cause as many as 45 injuries to both the decease 1 persons. Another circumstance, which goes against the defence, is that coming of Nazir Ahmed appellant in the house could be known or at least would have alerted the two deceased persons, as the main gate of the house of Abdul Rahman appellant is situated close to the kotha where the occurrence took place. If after entering through the gate and coming to the courtyard Nazir Ahmad appellant peeped through the door and then after picking up a hatchet from the courtyard broke open the door, this process must have taken some time and dsriag this period it cannot be believed that Mst. Rani and Sued Ahmed deceased would not get up and put on their shalwar and loin-cloth, respectively, and would not try to escape. In such a situation, the two deceased persons must be very vigilent and even the slightest indication of anybody's entering the house must have alerted them and then as ordinary human beings, they could try to run away or conceal their action. The doctor who perfermed the post-mortem examination on the dead body of Mst. Rani, found her shalwar with untied and loose azarband. It is a question of common sense that when Nazir Ahmad appellant broke open the door, she could not remain lying on the cot and must have got up without wasting any time and the first thing she must have done was to tie her azarband. It is understandable how her shalwar could remain untied with loose azarband. She must have stood up and in that position either the shalwar must fall on the ground or must be around her waist. In a standing position, her shalwar and azarband could not remain in that position as alleged by the defence. If Mst. Rani deceased was suspected of this illicit liaison with Saeed Ahmad deceased by her parents and relatives, then she could not be left alone in the house, especially when her paramour was available in the village. We have already dealt with the blood-stained chadar (Exh. P. 5) which according to defence was of Saeed Ahmad deceased who had removed it before indulging in sexual intercourse while according to the prosecution, this belonged to Abdul Rahman appellant who after committing the murders had covered the dead bodies with it. Similarly, the staining of vaginal swabs of Mst. Rani deceased has been dealt with earlier. Another circumstance which goes against the defence, is that if Nazir Ahmed appellant alone had entered the kotha, the two deceased had some time at their disposal to make some attempt to escape and run away. This appellant was armed only with a hatchet and, therefore, he could not simultaneously disable both the deceased persons at one and the same time. When he tried to inflict blow to one deceased, the other could easily run away.
Even after receiving one blow, the deceased could try to escape and at least could come out of the kotha. Both the deceased persons were stout youths and could easily try to ward off the attack of this appellant. The deceased and this appellant are practically of the same age. The learned defence counsel has tried to argue that on seeing Nazir Ahmad appellant, both the deceased persons should have surrendered themselves, as they may have felt that they had morally committed a sin and, therefore, could not show their face to the people. We are unable to accept this argument. Human instinct, as it is they must have tried to escape in order to save their lives.
After considering the various aspects of the defence version, we find that the trial Court has rightly rejected the same and we also endorse that view.
14. After hearing the arguments of the counsel for the parties at length and going through the entire material available on the record, we have reached the conclusion that the prosecution has established its case beyond any shadow of doubt. Now we consider the nature of offence committed by the appellants. It is an admitted fact that Abdul Rahman and Abdul Aziz appellants are of advance age. The learned Sessions Judge in his judgment has given the age of Abdul Aziz appellant as 85 years and that of Abdul Rahman appellant as 80 years. These ages seem to be wrong. During the pendency of this appeal, these two appellants had applied for bail on the ground of infirmity and old age. They were examined by a Board of three eminent doctors of B. V. Hospital, Bahawalpur. In the opinion of the Board, both these appellants were not infirm and their approximate ages are given between 60 and 70 years. The role attributed to these two appellants is that they after entering the courtyard of Mst. Sughran Bibi P. W. Caught hold of Sated Ahmad deceased and toe): him forcibly towards their own house. During this process the deceased was also given beating. When they took the deceased in their courtyard, there he was pinioned and tied to a tree, Abdul Aziz appellant is aiso alleged to have given blows with hatchet to Saeed Ahmad deceased in the courtyard before he was ultimately dragged towards the kotha where he was done to death along with Mit. Rath deceased by Nazir Ahmad and Munir Ahmad appellants. During the actual killing, the part attributed to these elderly appellants is that they were exorting the other two appellants to kill the deceased persons. The result is that so far as the actual killing of Saeed Ahmed and Mat. Rani is concerned, only Nazir Ahmed and Monir Ahmad appellants caused injuries to them resulting in their instantaneous death. We are not prepared to believe that these elderly appellants were raising lalkaras at the time when the two deceased persons were being killed inside the kotha. Such verbal lalkaras are generally attributed to elderly people who otherwise could not be expected to participate in the actual commission of murder. It is not denied even by the learned State Counsel that there is no evidence on the record to show that all the four appellants had conspired or preplanned the killing of the two deceased persons. Tine learned State Counsel, however., ensues that from the circumstanses of the case, it can be inferred that the whole affair was prearranged, However, the prosecution has not placed any material on the record on this aspect of the case. It seems that initially the object of Abdul Aziz and Abdul Rahman appellants was only to bring Saeed Ahmed deceased to their courtyard and after pinioning and tying him to a tree to show to the village people that they bad vindicated the honour of their family.
Up to that stage, the object of these two elderly appellants may be to give a good thrashing to Saeed Ahmad deceased and disgrace him publicly by tying him to a tree in the open courtyard. It is not denied that the object of such tying in such a situation could be to publicly disgrace the family of this deceased. This is generally the tendency of this class of people living. In the villages, Keeping in vie Ar their advance ages and the fact that they did not make any contribution in the actual killing of the two deceased persons, it can safely be inferred that Abdul Rehman and Abdul Aziz appellants did not share the common intention with Nazir Ahmad and Munir Ahmed appellants who actually caused the deaths. It is possible that at the time of pinioning and tying Saeed Ahmed deceased to the tree in the courtyard, these two young appellants may have lost their control and decided to finish both the deceased persons. It is not denied that the passions of such youths in such a situation generally rise very high and such people without the consent and approval of their elders, take drastic steps. Nazir Ahmed and Munir Ahmad eppellaets therefore, may have independently acted and killed the two deceased persons and the other two appellants may not be knowing that two murders would be committed. Another circumstance which supports our inference is that during the earlier part of the incident Mat. Rani deceased remained at large and moving about in the courtyard. If it had been a prearranged affair, then she could be previously secured or confined in a safe place, because the possibility of her escaping and running away from the house when Saeed Ahmad deceased was dragged towards the kotha after breaking open the lock of the door, could not be ruled out. In this view of the matter, Abdul Aziz and Abdul Rahman appellants could not be held guilty under section 302/34, P. P. C. For the murders of the two deceased persons. They are, however, responsible for giving beating to Saeed Ahmed deceased, while dragging him towards their courtyard. They are therefore, liable under section 323/34, P. P. C. Abdul Aziz appellant is also guilty for causing hatchet blows to Saeed Ahmad deceased in the courtyard and that offence falls under section 324, P. P. C. Accordingly while acquitting Abdul Aziz and Abdul Rabmad appellants under rection, 302/34,1 P. P. C. For the murders of Sued Ahmad and Mat. Rani we convict meld under section 323/34, P. P. C. And sentence each of them o the period )1' imprisonment already undergone by them. Abdul Aziz appellant is further convicted under section 324, P. P. C. And sentenced to the period of imprisonment already undergone by him. Both his sentences are ordered to run concurrently. They shall be released forthwith if not required in connection with any other case.
15. As regards Nazir Ahmed and Munir Ahmad appellants, we have already held above that the prosecution has established its case against them and that the defence version is not believable.
They have been rightly convicted by the trial Court under section 302/34, P. P. C. For the murders of Steed Ahmad and Mst. Rani. We also maintain their conviction on two counts. According to the learned defence counsel the motive alleged by the prosecution that Steed Ahmad deceased had illicit intimacy with Mst. Rani deceased, sister of Nazir Ahmed appellant and first cousin of Munir Ahmad appellant, is a valid mitigating circumstance to award lesser penalty. He has cited some authorities also to justify lesser sentence. On the other hand, it is vehemently argued by the learned counsel for the State as well as the counsel for the complainant that a mere suspicion of illicit intimacy ii not sufficient to award lesser penalty. They have also relied upon certain vulings. We have given our anxious thought to the question of sentence and are inclieed to agree with the learned defence counsel. It is an admitted fact that carar there was no enmity whatever between the appellants and the family of Sued Ahmad deceased. The counsel for the State and the complainant have not been able to point out material from the record to show that apart from the alleged intimacy, there could possibly be any other cause to commit the murder of Saeed Ahmed deceased. It is not denied that the only cause for his murder is his alleged illicit intimacy with Mat.
Rani deceased. It may be a mere suspicion for others, but the accused party may ::eve believed it to be true. Another most important circumstance in this behal< is the killing of Mst. Rani deceased who was closely related to the appellant, being the real sister of Nazir Ahmad appellant and real daugter of Abdul Rahmau appellant. They could not kill their own daughter or sister unless they believed that she was really involved in this illicit affair. In the absence of any other motive or enmity it can safely be infrred ;hat they killed h.:4 only because of this illicit liaison. In these circumstances, to have to judge whether the appellants took this fact as a mere suspicion or as a reality. After considering the facts and circumstances of the case and keepi-g in view the social conditions of our society, especially in the rural areas we heel that the motive alleged by the prosecution regarding illicit intimacy of Saeed Ahmad deceased with Mst. Rani deceased, is a valid mitigating circumstance to justify lesser penalty. Accordingly, while maintaining their convictions under section 302/34, P. P. C. On two counts for the murders of Saeed Ahmed and Mat. Rani, we alter the sentence of death of Nazir Ahmad and Mueir Ahmad appellants to life imprisonment on each count. Both the sentences shall run concurrently. Their sentences of fine, however, are maintained. Both are sentenced to life imprisonment on each count.
16. This appeal stands disposed of in the above terms.
17. On the view we have taken above, Criminal Revision No. 66 of 0976 has got no force and is dismissed. 1968 SCM R 756 1971 SCM R 213