RUSTAM ALI MALIK, J.----Through this judgment we intend to dispose of Criminal Appeal No.190 of 2000 and Murder Reference No.247-T of 2000.
2. The brief facts are that the appellants were tried by the learned Judge, Anti-- Terrorism Court No. 1, Lahore in a case based on F.I.R. No. 108 of 1997 registered on 28-2-1997 in Police Station Saddar, Raiwind. The formal F.I.R. Exh.P.C./1 was registered on the basis of statement Exh.P.C. Of Maqbool Ahmad son of Aurangzeb. He had stated therein that he was working as an employee in Zahoor Textile Mills. Around 10/12 years ago he was married with Mst. Hamidan Bibi daughter of Faqir Muhammad and out of the wedlock five children were born and who were Naazir aged 8/9 years, Kazim Ali aged 6/7 years, Sharifan Bibi aged 5/6 years, Mst. Fakhra Bibi aged 4/5 years and Mst.
Amna Bibi aged 2 years. Maqbool Ahmad had stated in the F.I.R. That he was living with his parents in the haveli in a separate room. On the night between 27/28-2--1997 he was away to his duty in the Mills as usual and his were and children were sleeping in the residential room. When after getting relieved from his duty he reached his house around 11-00 a.m., the room was found bolted from inside and the electric bulb was also on. He i.e. Maqbool Ahmad knocked at the door and also called the inmates but no one opened the door. He peeped through the crevices of the door and saw blood on the floor. One of his daughters was seen lying on the ground. The complainant made his parents and brother Azam Ali were up and all of them tried to open the door but it did not open.
Thereupon the complainant with the help of a bamboo stick and his father with the help of a Kandhala pushed the door and the chain (Kunda) of the door broke and fell on the co (which was lying in the room). Maqbool Ahmad and others entered the room and saw that Mst. Hamidan were of Maqbool Ahmad was lying dead on the ground, smeared in blood. One of his daughters namely Fakhra was lying on the floor while his remaining kids were lying dead on the cots. All of them had wounds on their necks. Near the dead body of his were Mst. Hamidan Bibi a blood-stained hatchet and a blood--stained Churri were lying.
3. In his statement Exh.P.C. Maqbool Ahmad also stated that after his marriage Mst. Hamidan Bibi used to remain frequently under the influence/spell of Jinnat and on the night of occurrence, Mst.
Hamidan had killed her children with the hatchet and Churn and thereafter she killed herself. On hearing the noise, Kashmir Ali and Salamat Ali, P.Ws. And other residents of the village reached their house. Leaving them near the dean bodies he i.e. Maqbool Ahmad was proceeded to the Police Station when Rab Nawaz, Inspector/S.H.O., Police Station Saddar, Raiwind met him at Bus Stop Phoolnagar and who recorded his statement Exh.P.C. And thereafter sent the same, through Akbar Ali, Constable to the Police Station for the registration of formal F.I.R.
4. P.W.17 is Dr. Tallat Akram who on 1-3-1997 had conducted the post-mortem examination of the dead bodies of the deceased. He had found the following injuries, on the dead body of Mst.
Hamidan Bibi deceased:-- (1)An incised wound 11 x 3 c.m. Bone deep was present on left side of front of neck starting from hyoid bone to the back of the neck.
(2)Another incised wound 3 x 1 c.m. Muscles deep on right side of the neck 3 c.m. Away from the tip of hyoid bone.
(3)On the back of the neck an incised wound 5 c.m. x 1 c.m. Muscles deep present between anterior border of shoulder blades.
(4)Another incised wound muscle deep 5 x 1 c.m. x 1-1/2 c.m. Above and lateral to first wound.
(5)Another incised wound skin deep 3 x 1 c.m. Above the injury No.4.
(6)Another incised wound 4 x 1 c.m. Muscle deep 1 c.m. Above injury No.5 and just below the nap of the neck.
5. On the same day P.W.17 had performed post-mortem examination on the dead body of Nazim aged 9/10 years and had found the following injuries:-- (1)An incised wound 12 x 5 c.m. Into bone deep on back of neck.
(2)An incised wound 6 x 2 c.m. Bone deep on right side of neck.
6. On the same day P.W.17 had conducted the post-mortem examination on the dead body of Kazim Ali aged 6/7 years and had found the following injuries on the dead body:-- (1)An incised wound 12 x 6 c.m. Into bone starting from front of neck towards left side of neck up to the back of the neck.
7. On the same day i.e. 1-3-1997 he had also conducted the post-mortem examination on the dead body of Sharifan Bibi aged 5/6 years and had found the following injuries on the dead body:-- (1)An incised wound 10 x 2 c.m. Into bone deep on occipital area of skull.
(2)An incised wound 4 x 1 c.m. Bone deep 2 c. m. Below injury No. 1.
(3)Multiple incised wound in an area 12 x 8 c.m. Into bone deep including back of neck and behind left ear.
8. On the same day, P.W.17 also conducted the post-mortem examination on the dead body of Mst.
Fakhra aged 4 years and had found the following injuries on the dead body:-- (1)An incised wound 8 x 5 c.m. Bone deep on right side of neck.
(2)Another incised wound 5 x 2-1/2 c.m. Tracgea deep on front of neck.
(3)An incised wound 3 x 1 c.m. Into bone deep on back of right shoulder
9. On 1-3-1997. P.W.17 had conducted the post-mortem examination on the dead body of Amna aged 2/3 years and had found the following injuries on the dead body:-- (1)An incised wound 7 x 5 c.m. Bone deep on right side of neck vertebral column was cut at level of first and second cervical vertebra cut. Spinal cord was cut. Muscles and large vessels were cut.
10. P.W.14 i.e. Rab Nawaz, the former Inspector/S.H.O., on 28-2-2001 was posted as S.H.O. Police Station Saddar, Raiwind. On the aforesaid day, he had recorded the statement Exh.P.C. Of Maqbool Ahmad complainant and had sent the same for registration of the case and on the basis of the same formal F.I.R. Exh.P.C/1 was registered at the Police Station. Thereafter he proceeded to the place of occurrence, inspected the spot and took into possession the blood-stained earth Exh.B.1, blood--stained hatchet P.1, blood-stained Kunda Exh.P.3 vide recovery memo. Exh.P.A. Then he sent the dead body to the mortuary at Kasur, recorded the statements of P.Ws. Under section 161, Cr.P.C.
On the same day he handed over the case property to Moharrer Malkhana and on 1-3-1997 took into possession the lost-worn clothes of the deceased person. These clothes are Exh.P.4 to Exh.P.17 and were taken into possession vide memo. Exh.P.B. He handed over rough notes (regarding the place occurrence) to Muhammad Nasrullah. Draftsman and on the basis of which prepared the site plans Exh.P.D. And Exh.P.D./1 on 9-3-1997. He added that the sketch had been prepared on the pointation of P.Ws. And on the direction of the police and it was in the scale of 20 feet = 1 inch. He recorded the statements of P.Ws. Arrested Aurangzeb accused on 17-3-1997. The reports about Chhurri, hatchet and the blood--stained earth were received and the same were attached with the file. On 3-6-1997 an incomplete challan was sent against Aurangzeb. Thereafter the investigation was transferred from him and was entrusted to Nabi Bakhsh, D.S.P., Chunian.
11. P.W.15 is Malik Muhammad Hussain, S.-I. Who on 15-7-1997 was posted as S.H.O., Police Station Saddar, Raiwind and on the said day the D.S.P., Chunian had sent the file of this case to him. He deposed that on 22-7-2001 the complainant, Riasat Ali, Sajjan son of Sultan and Muhammad Iqbal son of Ahmed Ali had joined the investigation of this case and he had recorded the statements of Sajjan and Iqbal, P.Ws under section 161, Cr.P.C. On 28-7-1997, he had arrested Maqbool Ahmed, Muhammad Azam and Mst. Naziran i.e. The sons and were of Aurangzeb. On 29-8-1997 he prepared the challan and sent up the same to the Court.
12. P.W.16 is Nabi Bakhsh, D.S.P. Chunian who on 8-7-1997 was posted as D.S.P., Chunian when the S.P: entrusted to him the investigation of this case and ordered him to complete the same within 10 days. He also gave him a direction to investigate whether this case was a suicide or murder. He thus investigated this case, visited the place of occurrence and recorded the supplementary statements of Riasat Ali and Amanat Ali, P.Ws. He had also enquired from the persons of the locality and during the investigation he reached the conclusion that it was intentional murder i.e. ---Qatl- i-Amd".
13. P.W.12 is Waris Ali Constable No.245 who had escorted the dead bodies of the six deceased persons to the Civil Hospital, Kasur. After the post-mortem examination, the Doctor had handed over to him one sealed bottle and 6 pairs of clothes i.e. The last-worn clothes of the deceased and he brought the said articles to hand over the same to the Investigating Officer and who took the same into possession vide memo. Exh.P.B. Which was also attested by him.
14. P.W.13 is Muhammad Saleem. Constable No.72g. On 15-3-1997 the Moharer had entrusted to him the parcels containing blood-stained earth. Blood-stained hatchet Exh.P.1 acid blood-stained Chhurri Exh.P.2 for delivering the same the Office of Chemical Examiner.
15. P.W.10 is Muhammad Nasrullah. Draftsman who had prepared the site-plans Exh.P.D. And Exh,P.D./1 in the scale of 20 feet = 1 Inch.
16. P.W.11 is Mushtaq Ahmed who had identified the dead bodies of the deceased in the mortuary at the time of their post-mortem examination.
17. P.W.9 is Ghulam Abbas, Head Constable No.487 who on 28-2-1997, while posted as Moharer at Police Station Saddar, Raiwind had recorded the formal F.I.R. Exh.P.C./1 on the receipt of the complaint Exh.P.C. He had also kept the sealed parcels of blood-stained earth and Chhurri etc. In Maalkhana in safe custody and on 15-3-1997 had handed over the same to Muhammad Saleem, Constable No.728 for onwards transmission to the Office of Chemical Examiner.
18. P.W.8 is Muhammad Iqbal who deposed that about two years ago this incident had happened in which Hameedan and her five children had been murdered. He deposed that about 5/6 months ago when he was sitting in the house of Sajjan, P.W. Maqbool, Naziran and Azam accused came there and said that they had killed Hameedan Bibi and her five children and begged that they be forgiven for this act by Riasat Ali, the brother of Mst. Hameeda Bibi through their intervention. During the cross-examination he stated that he never met Riasat Ali and Amanat Ali to inform them that three accused named above had come to the house of Sajjan P.W. For compromise. He deposed that Sajjan P.W. Had refused to do so as it was a brutal act.
19. P.W.7 Sajjan deposed that on 17-7-1997 none of the accused had come to his residence. He further deposed that they had received information about the death of Hameedan Bibi and her five children and had reached the place of occurrence where the dead bodies were lying. On the request of the Public Prosecutor the learned trial Court declared this witness to be hostile and allowed him to cross-examine him i.e. P.W.7. During the cross-examination he denied that the accused persons had requested him to patch up the matter with Riasat Ali, P.W. In answer to certain questions put by the Court this witness stated that Naziran accused is his maternal cousin while Aurangzeb is his brother-in-law and that Maqbool and Muhammad Azam accused are the sons of Aurangzeb accused. During the examination by the learned defence counsel he admitted that Hameedan Bibi under the fits of some unnatural disease she became uncontrollable.
20. P.W.6 is Muhammad Aslam who stated that on coming to know about the occurrence he had proceeded to his house in village Butt and then he went to the Police Station alongwith some other persons who were summoned by the police. After 20 days the police had recorded his statement and had then informed him that he had become a witness of this case. He was also declared hostile on the request of the learned Public Prosecutor and was allowed to cross-examine him.
However, he said nothing in favour of the prosecution.
21. P.W.1 is Riasat Ali. He deposed that on 28-2-1997, Raja Muhammad Babur informed him from Manga Mandi, Lahore around 10-00 a.m. That his sister alongwith her five children had been murdered. On receiving the said information he alongwith Rehmat Ali, Muhammad Aslam, his mother Sakeena Bibi, sisters Rasheeda Bibi and Sughra Bibi and some other people belonging to his brotherhood who were 22 in number, hired a wagon from Sharqpur Adda and reached Mauza Butt, Police Station Saddar, Raiwind. Before they reached there, the dead bodies of his sister and her five children had been removed to Kasur. He inspected the place of occurrence. The door of the room was broken and the Kunda was lying near the cot about 10 feet away from the door. He deposed the Bandial, S.H.O., Police Station Saddar, Raiwind met him there and asked him whether they had suspicion against anybody. On this he told him that he will first examine the dead bodies and then will be in a position to say anything. Then he proceeded to Kasur Hospital where he identified the dead bodies and at that time Waris Ali, Constable met him there. Thereafter he returned to Mauza Butt and met Bandial, S.H.O. Who took into possession the "Kulharri" (hatchet), bedding and Churri from the place of occurrence. At that time he told the S.H.O. That Aurangzeb and Azam were the murderers of his sister and her children. He deposed that at that time Aurangzeb and Azam accused confessed before him and also before Rehmat Ali and Muhammad Aslam of their guilt and asked for pardon. He then took the dead bodies and buried them and came back to his village.
22. P.W.2 is Salamat Ali who deposed that two years ago he was present in the house of Aurang Zeb where the dead bodies of the deceased were lying. He stated that in his presence the Investigating Officer had taken the blood-stained earth from underneath the dead bodies of the deceased into possession and made the same into a packet. He deposed that in his presence the Investigating Officer had taken into possession the blood-stained hatchet P.1, Chhurri P.2, Kunda P.3 and also cot vide recovery memo. Exh.P.A. During the cross-- examination he stated that he had heard that Mst.
Hameedan Bibi deceased was under the influence of Jinnat and it was also heard by him that when Mst. Hameeda Bibi deceased was under the influence of Jinnat she became uncontrollable and violent and if somebody came in front of her in that situation she attacked him. In an answer to another question he stated that Maqbool Ahmed accused had told him that Mst. Hameedan Bibi in the course of fits had killed her children and had committed suicide.
23. P.W.3 is Barkat Ali who stated that it was around 12-00 midnight that he was sleeping in his house. On the alarm being raised, he proceeded to the spot where several people had gathered and that Hameedan Bibi alongwith her five children was found murdered and her husband Maqbool was sitting outside the room and was weeping. He stated that he did not know who had killed them. On the request of the learned Public Prosecutor this witness was also declared hostile.
24. P.W.4 Muhammad Arshad stated that on 24-2-1997 he had come to see his sister at Mauza Butt and stayed there for two days and that Azam accused had beaten his nephew Nazim Ali aged 6/7 years and his sister Hameedan Bibi had exchanged hot words with Azam accused and then Aurangzeb, Naziran and Azam accused gave beating to his sister. He had asked his sister Mst.
Hameedan Bibi to accompany him to his village as the accused were always beating her but in reply she had stated that she had five minor children and thus she could not leave the house and that she had to live there. The witness stated that due to the same (answer) he became angry with Hameedan Bibi deceased and left the village and went to his house. After he had left their village, Aurangzeb, Maqbool; Azam and Naziran accused killed Hameedan Bibi deceased and her children namely Azam Ali, Kazim Ali, Sharifan Bibi, Fakhra Bibi and Amna Ribi, with a common intention.
25. P.W.5 is Mehmood Ahmed who deposed that he was sleeping in the cattle-- shed (on the night of occurrence) and on the hue and cry which was being. Raised, he reached the spot/place of occurrence and saw that the door of the house was broken and the is dead bodies were lying there and these dead bodies were of Hameedan Bibi, Nazim Ali, Kazim Ali, Sharifan, Fakhra and Amna Bibi. He alongwith Mushtaq P.W. Had gone to Civil Hospital, Kasur for the purpose of post-mortem examination of the dead bodies and after the post-mortem examination he came to Police Station Saddar, Raiwind and in his presence the blood-stained clothes of the deceased were taken into possession by the Investigating Officer and these clothes were P.4 to P.17 (described in detail by the P.W. In his statement) and the same were taken into possession by the Investigating Officer vide Exh.P.B. Which was thumb --marked by him. He stated that he had identified the dead bodies at the mortuary alongwith Mushtaq Ahmed P.W. At the time of post-mortem examination.
26. The public prosecutor tendered in evidence the reports Exh.P.L., Exh.P.M. And Exh:P.N. And closed the case for the prosecution. On the conclusion of the prosecution evidence the statements of the four accused were recorded by the learned trial Court under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances. Aurangzeb accused in an answer to the question as to why the P.Ws. Had deposed against. Him, stated that there is no evidence against him and that the question did not relate to any piece--of evidence on record. In answer to the question as to why this case against him, he replied that there was no evidence against him and the case was outcome of Police Karwai, conducted in collusion with the brothers of Hameedan Bibi, deceased. In answer to the question as to whether he wanted to say anything else he answered as follows:-- "I have been falsely involved in the case. There is no evidence against me. It is inconceivable that I will kill my own posterity at this old age. There is no motive either. It has appeared in evidence and even confirmed by Sajjan P.W.7, real uncle of Hamidan Bibi that she and her father had contracted some disease which caused fits, and that they were under influence of some supernatural beings.
He and other P.Ws. Admitted that in the course of fits she used to become uncontrollable and in that condition she used to try to kill herself. Salamat Ali P.W.2 also admitted that under the influence of Jinnat, she became uncontrollable and violent and would try to attack anyone who came in front of her. Her husband Maqbool also stated in the F.I.R., which was recorded shortly after the occurrence that Mst. Hamidan Bibi was under the influence of Jinnat and that under the influence of Jinnat she killed herself and her children. It is true that she used to have fits and was considered to be under the influence of Jinnat or evil spirits and in the course of such a fit she killed her children and herself. "
27. Mst. Naziran accused in an answer to a question as to why this case against her replied that the case against her was a false one and the result of Police Karwai. In answer to the question as to whether she wanted to say anything else she gave the following reply:-- "It is tragic that family has been stricken grief and tragedy and also facing ordeal of trial. Hamidan Bibi was suffering from mental disorder. She inherited the affliction from her father. She often used to get fits during the continuation whereof she would become violent and lost control of herself and would try to attack anyone who came in front of her. It so appears that in the course of such fits she killed the children and herself. Otherwise it is unthinkable that anyone of the family without there being any strong motive will try to kill their own posterity. "
28. Muhammad Azam accused in an answer to the question as to whether he wanted to say anything else deposed as under:-- "I have been falsely involved in the case. There is no evidence against me. It is inconceivable that I will kill my own kith and kin. There is no motive either. It has appeared in evidence and even confirmed by Sajjan P.W.7, real uncle of Hamidan Bibi that she and her father had contracted some disease which caused fits and that they were under influence of some supernatural beings. He and other P.Ws. Admitted that in the course of fits she used to become uncontrollable and in that condition she used to try to kill herself. Salamat Ali P.W.2 also admitted that under the influence of Jinnat she became uncontrollable and violent and would try to attack anyone who came in front of her. Her husband Maqbool also stated in the F.I.R. Which was recorded shortly after the occurrence that Mst. Hamidan Bibi was under the influence of Jinnat and that under the influence of Jinnat, she killed herself and her children. It is true that she used to have fits and was considered to be under the influence of Jinnat or evil spirits and in the course of such a fit she killed her children and herself."
29. Maqbool Ahmad accused in his statement under section 342, Cr.P.C. In an answer to a question relating to suppression/concealment and destruction of evidence of murders by him he replied as under:-- "There is no such evidence in the case. It must not be overlooked that I was father of five children beside being husband of Hamidan Bibi, mother of these children. The two boys were on the threshold of youth. It is inconceivable for me to have tried to suppress, conceal and destroy evidence of killing of his own children. It is against course of nature. Indeed I am the most aggrieved person. I have lost my most dear ones and also facing ordeal of trial. This is oppressive."
"I am the most aggrieved person, indeed victim of tragedy. Instead of being consoled I am facing trial. F.I.R. Which was lodged by me immediately, I stated that Mst. Hamidan Bibi was suffering from mental disorder and was suspected to be under influence of evil spirits and used to get fits. During such fits she would become violent and uncontrollable, and would try to commit violence against herself and others. This is confirmed by Sajjan P.W.6 a real uncle of Mst. Hamidan Bibi, who stated that her father was also suffering from mental disorder. It appears that in the course of such fits she killed children and herself. Salamat P.W.2, and Barkat Ali P.W.3 also confirmed it."
30. None of the accused produced any evidence in defence nor any of them appeared to have made statement on oath under section 340(2), Cr.P.C.
31. On the conclusion of trial the learned trial Court acquitted Mst. Naziran Bibi by giving her benefit of doubt. However, Aurangzeb accused/appellant was convicted under section 302(b), P.P.C. For committing Qatl-i-Amd of Mst. Hamidan Bibi and her five children in furtherance of his common intention with his co-accused Muhammad Azam and was sentenced to death on six counts.
Similarly Muhammad Azam accused was also convicted under section 302(b), P.P.C. And was sentenced to death on six counts. Maqbool Ahmed accused/appellant was convicted under section 201, P.P.C. And sentenced to 7 years' R.I. And was also directed to pay a fine of Rs.20,000 and in case of default in the payment of fine to further undergo R.I. For six months.
32. Aggrieved of the said judgment, Aurangzeb, Muhammad Azam and Maqbool Ahmed accused filed a joint appeal (Criminal Appeal No. 190 of 2000). The learned trial Court also sent a reference for confirmation of sentence of death awarded to Aurangzeb and Muhammad Azam accused. The aforesaid criminal appeal and the murder reference both being disposed of through this judgment.
33. Arguments have been heard and record perused.
34. The learned counsel for the appellants has argued that admittedly it is an unwitnessed occurrence and the only evidence available on record is the circumstantial evidence. The F.I.R. Had been lodged by Maqbool Ahmed accused himself when he submitted the complaint Exh.P.C. Before Rabnawaz, the then Inspector/ S.H.O/ P.W.14 and who had sent the same to the police station for the registration of the F.I.R. He has argued that in order to warrant conviction on the basis of circumstantial evidence it was necessary that not a single link of the chain of the prosecution story should be missing. However, in this case a number of links were missing. He has submitted that when the complainant reached the house and with the help of his other family members he managed to open the door of the room which was chained from inside, his were and children were found lying dead in the room. He has argued that the fact that the room was chained from inside, indicates that the murders had been committed by someone inside the room as there was no other passage of his escape, as was also evident from the site-plan Exh.P.D. He has argued that the hatchet and the blood-stained Chhurri were found lying near the dead body of Mst. Hameedan Bibi deceased and the aforesaid fact suggests that it was she who had killed her children and thereafter had killed herself. He has argued that it is on record and was proved from the prosecution evidence itself that Mst. Hamidan Bibi used to have fits occasionally and when she was having the fits she used to become violent. Referring to the statement of P.W.1 Riasatl Ali he has argued that when the S.H.O. Police Station Saddar, Raiwind met him and asked him as to whether he suspects any body, he had replied that he will first examine the dead bodies and then will be in a position to say anything. It clearly means that P.W.1 Riasat Ali, the brother of Mst. Hamidan Bibi at that stage did not suspect the complainant, his father, brother or any other member of his family in that respect. He also referred to the cross-examination of P. W .2 Salamat Ali and wherein he had stated that he had heard that Mst. Hamidan Bibi deceased was under the influence of Jinnat and that whenever she was under the influence of Jinnat she became uncontrollable and also became violent and if somebody came in front of her in that situation, she would attack that person. He also referred to the statement of P.W.3 Barkat Ali who had turned hostile and had not supported the prosecution story and deposed in the course of examination-in-chief that he did not know as to who had killed the deceased. The learned counsel for the appellants further referred to the statement of P.W.6 who had deposed that it was after 20 days that police had recorded his statement and had told him that he had become a P.W. In this case. He has further argued that P.W.6 had also denied that Aurangzeb accused had told him that he was overpowered by lust and in pursuance of the same he had tried to commit Zina with Mst. Hamidan Bibi and who raised alarm and on which her children were up and that he had stabbed her and killed Mst. Hamidan Bibi and her children with Chhurri and hatchet. The learned counsel for the appellants has argued that even P.W.7 Sajjam had turned hostile and had not supported the prosecution story. He has referred to the cross-examination of P.W.7 by the prosecutor and in the course of which he had stated that he had enmity with the accused persons on account of murder of Mst. Hamidan Bibi and that this P.W. Had denied that he was on visiting terms with the accused, although he had admitted that Aurangzeb is his brother-in-law while Naziran Bibi is his maternal cousin. Referring to the statement of P.W.8 Muhammad Iqbal, the learned counsel for the appellant has argued that the alleged extra judicial confession of the accused namely Maqbool, Naziran and Azam in the presence of Muhammad Iqbal and Sajjan P.Ws. Was a joint one and the said P.Ws. Also turned hostile and had not supported the prosecution story. The learned counsel for the appellants has further argued that the statements of P.Ws. Were inconsistent and the nature of the prosecution evidence which in merely circumstantial, is such that no conviction could be recorded on its basis, not to speak of recording conviction on capital charge. He has argued that it was inconceivable that Maqbool Ahmed, the husband of Mst. Hamidan Bibi would become a party to the slaughter of his own children and were or would try to conceal evidence so as to save his co-accused from lawful punishment. He has argued that Aurangzeb, the father of Maqbool and Azam accused is an old and aged person and it is inconceivable that he would kill his daughter-in-law and also his grandchildren. He has further argued that Mst. Hamidan Bibi who was afflicted with some mental disease and used to suffer from occasional fits and as a result of which she used to become violent was clearly in that state when she caused injuries to her own children with the hatchet and Chhurri which were found lying near her dead body. He has argued that it was clear from record that Mst. Hamidan Bibi after injuring and killing her own children, she had killed herself and when the complainant reached there, the room was found chained from inside and which is sufficient to prove that no one other than Mst. Hamidan Bibi who had caused the death of her children and had thereafter committed suicide. He has argued that the conviction recorded by the learned trial Court against all the three accused/appellants i.e. Aurangzeb, Azam and Maqbool Ahmed cannot be legally sustained and as such they are entitled to be acquitted of all the charges.
35. From the other side, the learned A.A.-G. Has argued that although there is no eye-witness account of the occurrence in this case, yet there is sufficient circumstantial evidence on record. He has argued that it is not denied that Mst. Hamidan Bibi and her children had been killed in a room of a house where they used to live. He has argued that during the prolonged investigation, nobody had taken the plea that it was somebody else who had entered the house of the deceased and had killed them and in the course of investigation all fingers had pointed towards the appellants.
He has argued that the appellants had taken the plea that it was Mst. Hamidan Bibi deceased who had killed her and her children with the hatchet and Chhurri and thereafter had committed suicide.
However, there are no signs available that it was Mst. Hamidan Bibi who had caused the injuries to her children while she was under the influence of fits of insanity or had become violent. He has argued that the story that Chhurri and hatchet were lying near the dead body of Mst. Hamidan Bibi does not inspire confidence and had she committed suicide, Chhurri would have been in her hand rather than placed at a distance from her dead body. He has argued that it was inconceivable that she could cause injuries at her own back with Chhurri or hatchet and that the nature of the injuries on all the dead bodies was such that the one could draw inference that anyone who had caused the injuries was not suffering from fits of insanity but was perfectly in his senses as the pattern of all the injuries was the same. He has argued that no link was missing from the chain and that there was sufficient circumstantial evidence on record to connect the appellants with the offence and that P.W.4 Muhammad Arshad has furnished sufficient evidence regarding motive. However, even if it may not be believed that the appellants had any motive to kill Mst. Hamidan Bibi and her children, even then there is no justification for disbelieving the prosecution story because sometimes even most heinous offences are committed without the existence of any motive. He has argued that during the prolonged investigation nothing favourable to the appellants had come on record and that the appellants/accused had not produced any evidence to the effect that Mst.
Hamidan Bibi deceased was actually under the influence of Jinnat and that she killed her children and even herself while she was under the influence of Jinnat or was suffering from fits of insanity.
He has argued that the defence version of the appellants was highly improbable and that the against the appellants were proved to the hilt and as such there was no justification for acceptance of appeal and which should be therefore, dismissed.
36. We have carefully considered the arguments. The defence version of the appellants is that Mst.
Hamidan Bibi was suffering from some mental disorder and that she had inherited affliction from her father and while suffering from fits of mental disorder she used to become violent and in that state she would try to attack anyone who came in front of her and that it was in the course of. Such a state of fits that she had killed her children and also herself. Aurangzeb and Mst. Naziran accused had taken the plea that it was unthinkable that any one of the family would do so to kill his own However, the appellants have not produced any evidence about the mental disorder or fits of Mst.
Hamidan Bibi. In that respect they could have produced any Doctor under whose treatment Mst.
Hamidan Bibi 3 ever remained but it was not done. There arose a very crucial question and it was as to whether the injuries on the person of Mst. Hamidan Bibi could be self-inflicted and whether the injuries on the dead bodies of her children were of such a nature which could suggest that these injuries had been caused by a person who was under some mental disorder or was suffering from some type of mental fits. Unfortunately no such question had been put to P.W.17, Dr. Talat Ikram who had conducted the post-mortem examination on the dead bodies of the deceased. As a matter of fact not a single question was put to him in the course of cross-examination. Therefore, with the mutual consent of the learned counsel for the appellants and the learned A.A.-G., we summoned Dr. Khalid Aziz, Head of Forensic Science Department, Fatima Medical College/Ganga Ram Hospital, Lahore to assist us at the time of arguments to understand the nature of injuries of the deceased persons in the light of the post--mortem reports existing on record and in this respect he did assist the Court by explaining the injuries on the dead bodies, as per the post- mortem reports and for which we are thankful to him.
37. The pattern of injuries on all the dead bodies was found to be the same. It appears that all the deceased had been killed in the same manner. Mst. Hamidan Bibi deceased had an injury even on the back of the neck and which was an incised wound. The pattern of injuries did not suggest in any way that it was suicide or that these injuries or the injuries on the dead bodies of the other deceased had been caused by a person who was suffering from mental disorder or from mental fits. The defence version that Mst. Hamidan Bibi. Was suffering from some mental disorder is very weak. Had it been so she would not have been allowed to live alone in a separate room with her children while her husband Maqbool Ahmed was away to his duty. Even if the extra-judicial confession or Maqbool, Naziran and Azam be not believed, as the same was a joint one, and as the same can be ruled out of consideration and even ii the statements of P.W.3, P.W.6 and P.W.7 who had turned hostile be not considered as favourable to the prosecution, even then there is sufficient evidence on record to connect the appellants with the offence. Maqbool Ahmed appellant who is the husband of Mst. Hamidan Bibi deceased and the father of rest of the deceased has not been convicted by the learned trial Court on the charge or section 302(b), P.P.C. But has been convicted and sentenced under section 201, P.P.C. And which under the circumstances of the case appears to be appropriate as by lodging an F.I.R. Based on incorrect facts he had tried to screen the offenders from capital punishment. Maqbool Ahmad appellant was thus rightly convicted by the learned trial Court under section 201, P.P.C. And sentenced to 7 years R.I. And a fine of Rs.20,000 and in case of default in payment of fine to undergo six months' R. I. And we accordingly uphold the said conviction and sentence as aforesaid.
38. So far as Aurangzeb and Azam accused are concerned, the charge under section 302(b)/34, P.P.C. Stood proved against them beyond reasonable doubt and as such both of them had been rightly convicted by the learned trial Court on the said charge. However, keeping in view the peculiar facts of this case and also the fact that the occurrence had taken place during the night and as it is only the circumstantial evidence which is available in this case, in the interest of safe administration of justice, we feel that there do exist mitigating circumstances so far as Aurangzeb and Azam accused are concerned and to their extent sentences of imprisonment for life would serve the ends of the justice.
39. In view of all what has been stated above we uphold the conviction of Aurangzeb and Azam appellants/accused under section 302(b)/34, P.P.C. But we convert the sentence of death awarded to them into sentence for imprisonment for life. They will also pay an amount of Rs.1,00,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
40. Criminal Appeal NoA90 of 2000 is accordingly dismissed with the aforesaid modification. The sentence of death awarded to Aurangzeb and Azam accused by the learned trial Court is not confirmed.
41. Murder Reference No.247-T of 2000 is answered in negative.