Muhammad Imran vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.07 of 2018 (The State Vs. Muhammad Imran)

Criminal Appeal No.176-J of 2018 (Muhammad Imran Vs. The State and another)

Date of hearing: 05.10.2021.

Appellant by: Sardar Israr Hussain Dahir, Advocate (learned defence counsel appointed on State expense).

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by: Mr. Muhammad Jamil Akhtar Chohan, Advocate.

SADIQ MAHMUD KHURRAM, J. – Muhammad Imran son of Hazoor Bakhsh (convict) was tried by the learned Additional Sessions Judge, Rahim Yar Khan in case FIR No. 579 of 2013 dated 14.10.2013 registered at Police Station Rukan Pur , District Rahim Yar Khan in respect of offences under sections 302 and 324 PPC for committing the Qatl-i-Amd of Haseena Bibi wife of Haji Ahmad (deceased) and Fatima Bibi daughter of Zafar Hussain (deceased). The learned trial court vide judgment dated 13.03.2018, convicted Muhammad Imran son of Hazoor Bakhsh (convict) and sentenced him as infra:

Muhammad Imran son of Hazoor Bakhsh:-

i)Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Haseena Bibi wife of Haji Ahmad (deceased) and Fatima Bibi daughter of

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Zafar Hussain (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the two deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default. The convict was ordered to be hanged by his neck till dead.

ii)Rigorous Imprisonment for ten years under section 324 PPC for attempting to commit Qatl-i-Amd of Azra Bibi (PW-4) and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to undergo further Simple Imprisonment for three months.

iii)Rigorous Imprisonment for ten years under section 324 PPC for attempting to commit Qatl-i-Amd of Zakia Bibi (PW-3) and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to undergo further Simple Imprisonment for three months.

The learned trial court also directed that the sentences awarded to the convict namely Muhammad Imran son of Hazoor Bakhsh were to run concurrently. The convict namely Muhammad Imran son of Hazoor Bakhsh was also extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.

2.Feeling aggrieved, Muhammad Imran son of Hazoor Bakhsh (convict) lodged Criminal Appeal No.176-J of 2018 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.07 of 2018 under section 374 Cr.P.C.

seeking confirmation or otherwise of the sentences of death awarded to the appellant namely Muhammad Imran son of Hazoor Bakhsh. We intend to dispose of the Criminal Appeal No. 176-J of 2018 and Murder Reference No.07 of 2018 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Jam Haji (PW-1), the complainant of the FIR, are as under:-

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“Stated that 03 years and 03 months ago at 3.00 p.m, I alongwith Ghulam Nazik and Ghulam Raziq PWS were standing outside my house near the gate on the Southern side; that there is a small gate of my Hawali towards Eastern side; that my wife Mst. Haseena Bibi was sitting on a cot inside the Hawali and was taking meal while my daughter- in-law namely Zakia Bibi was also present inside the house; that accused present in Court, who is my real nephew, entered in the Hawali through the small gate and started to cut tree standing near Southern side of the house, upon which my wife forbade him that these were sunny days and he should not cut the tree. At this, accused became furious and told that he will cut them; that on hearing the noise, I alongwith above said PWS entered inside the gate and within our view, accused inflicted hatchet blow on the neck of my wife. As soon as Mst.Zakia Bibi stepped forward, he also gave hatchet blow to her which hit on her left ear and she fell down on the ground and he gave repeated blows of hatchet which hit on her back. On seeing us, accused went outside the house from small gate and rushed towards Northern side and at a distance of two acres there was a pacca water course where my daughter Mst.Azra Bibi alongwith her minor daughter namely Fatima aged 02 years was washing the clothes. Accused present in the Court gave repeated blows of hatchet to my daughter Azra Bibi at the water course and pressed throat of minor Fatima Bibi and threw her in the water course. Due to the injuries, my wife Haseena Bibi and grand daughter Fatima Bibi died while Mst.Zakia Bibi my daughter-in law and my daughter Azra Bibi were seriously injured. The people of the locality informed the police and police came at the spot and I got recorded my statement Exh.PA to Baggu Ahmad SI of P.S.Rukken Pur which bears my signature in Urdu language which is Exh.PA/1. ”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Muhammad Imran son of Hazoor Bakhsh was sent to face trial. The learned trial court framed the charge against the accused on 21.04.2014, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as nineteen witnesses recorded. The ocular account of the case was furnished by Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi

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(PW-3) and Azra Bibi (PW-4). Yasir Mehmood 1600/HC (PW-8) stated that on 14.10.2013, Baggu Ahmad, SI (PW-11), the Investigating Officer of the case, handed over to him one sealed parcel said to contain blood stained earth and subsequently also handed over to him a sealed parcel said to contain the recovered hatchet and on 11.12.2013 he handed over both the said parcels to Niaz Ahmad 349/C (PW-6) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Hasnain Ahmad 1683/C (PW-9) stated that on 14.10.2013 he escorted the dead bodies of the deceased namely Haseena Bibi and Fatima Bibi to the hospital for their post mortem examinations and also escorted Azra Bibi (PW-

4)and Zakia Bibi (PW-3) to the hospital for their medical examinations and after the post mortem examinations had been conducted he received the last worn clothes of the deceased. Ghulam Hussain 1227/C (PW-12) stated that on 02.11.2013 he was handed over the warrants of arrest of the appellant, however, the same could not be executed and he made his report (Exh.PS) and further stated that on 21.11.2013 he was handed over the proclamation under section 87 of the Code of Criminal Procedure, 1898 for its publication and his report on the same was (Exh. PT). Khuda Bkahsh (PW-13) stated that he identified the dead bodies of the deceased and after the post mortem examinations, the Medical Officer handed over the last worn clothes of the deceased to the police. Riaz Ahmad Patwari, (PW-18) prepared the scaled site plan of the place of occurrence (Exh.PX). Baggu Ahmad, SI (PW-11), the Investigating Officer of the case, investigated the case from 14.10.2013 till 29.10.2013, and

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detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Ijaz, SI (PW-14) stated that on 14.10.2013 he recorded the formal F.I.R (Exh.PU) and also investigated the case from 30.10.2013 till 04.01.2014, arrested the appellant on 10.12.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Sumera Sarwar (PW-15) examined, who on 14.10.2013 was posted as demonstrator at the Sheikh Zayed Hospital, Rahim Yar Khan and received the dead bodies of the deceased namely Haseena Bibi and Fatima Bibi. On 15.10.2013, Dr. Sumera Sarwar (PW-15) conducted the postmortem examination of the dead body of Haseena Bibi wife of Haji Ahmad (deceased). Dr. Sumera Sarwar (PW-15), on examining the dead body of the deceased namely Haseena Bibi wife of Haji Ahmad, observed as under:-

“DETAILS OF INJURIES.

1). An incised wound measuring 8 c x 2 cm from lateral to the lower border of right sternocleidomastoid extending to the lower end of the occiput. Depth of wound was 3 cm cutting all vessels, muscles and exposing cervical vertebrae. Middle part of the wound was 8 cm below right ear lobule

OPINION.

After conducting thorough autopsy, I was of the opinion that injury No.1 caused by sharp edge weapon which damaged the major blood vessels and tissues of neck leading to massive hemorrhages and shock was sufficient to cause death in the normal course of life.”

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On the same day, Dr. Sumera Sarwar (PW-15) also conducted the postmortem examination of the dead body of Fatima Bibi daughter of Zafar Hussain (deceased). Dr. Sumera Sarwar (PW-15), on examining the dead body of the deceased namely Fatima Bibi daughter of Zafar Hussain (deceased), observed as under:- “Final opinion.

After examining the reports of Histopathologist, Forensic Toxicological Analysis, Forensic Serology analysis and Radiology, my final opinion regarding the cause of death is ante- mortem drowning. My final opinion Ex.P-K/4 is in my handwriting and signed by me.”

Dr. Sumera Sarwar (PW-15) also stated that she had received the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the analysis of the hyoid bone and other viscera of the deceased namely Fatima Bibi daughter of Zafar Hussain. The following relevant analysis was made in the said report (Exh.PBB):- “The adjacent soft tissue and muscle of neck reveals blood haemorrhages suggesting ante-mortem nature of injury at the level of neck.”(emphasis supplied)

The prosecution also got Dr. Shaista Anwar (PW-16) examined who stated that she had been working with Dr.Rawish Nawaz ( the presence of Dr. Rawish Nawaz could not be procured) and was familiar with her handwriting. Dr. Shaista Anwar (PW-16) stated that Dr. Rawish Nawaz had examined Azra Bibi (PW-4) on 15.10.2013 and issued the Medico Legal Examination Certificate (Exh.PL) and had also examined Zakia Bibi (PW-3) on the same day and had issued the Medico Legal Examination Certificate (Exh.PM) . The prosecution also got Dr. Ghazala Ahmadani (PW-5) examined who

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stated that on 03.01.2014 she was posted as WMO at Sheikh Zayed Hospital Rahim Yar Khan and on the same day she examined Zakia Bibi (PW-3) and determined that there was no dental trauma suffered by Zakia Bibi (PW-3) and issued her report (Exh.PD) . On the same day Dr. Ghazala Ahmadani (PW-5) also examined Azra Bibi (PW-4) and observed injuries on the teeth of Azra Bibi (PW-4) and issued her report (Exh.PE). The prosecution also got Dr. Anees ur Rehman (PW-

10)examined who stated that on 30.12.2013 he was posted as Assistant Professor ENT at Sheikh Zayed Hospital Rahim Yar Khan and on the same day examined Zakia Bibi (PW-3) and found her hearing to be normal and issued his report (Exh.PH). The prosecution also got Dr. Salman Ahmad (PW-17) examined who stated that on 28.12.2013 he was posted at Sheikh Zayed Hospital Rahim Yar Khan and on the same day issued his report (Exh.PV) with regard to the injuries observed on the person Zakia Bibi (PW-3) and his report (Exh.PW) with regard to the injuries observed on the person of Azra Bibi (PW-4) { the reports Exh.PB and Exh.PW show that Zakia Bibi (PW-3) and Azra Bibi (PW-4) had been admitted in the Sheikh Zayed Hospital Rahim Yar Khan since 14.10.2013}. The prosecution also got Dr. Asif Javed (PW-19) examined who stated that he had been working with Dr. Kashif Nadeem, ( the presence of Dr. Kashif Nadeem could not be procured) and on 14.10.2013 Dr. Kashif Nadeem had examined Azra Bibi (PW-4) who had suffered fracture of occipital bone and the report of Dr. Kashif Nadeem was (Exh.PY).

7.On 23.10.2017, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Haji Naziq and

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Sabir Hussain as being unnecessary. On 21.02.2018, the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding the blood stained earth and the external and internal vaginal swabs of the deceased, the report of Punjab Forensic Science Agency, Lahore (Exh.PAA) regarding the analysis of the viscera of the deceased and the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the analysis of the hyoid bone and other viscera of the deceased namely Fatima Bibi daughter of Zafar Hussain .

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Imran son of Hazoor Bakhsh under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent and the occurrence had been committed by his brother namely Zafar Hussain, father of Fatima Bibi (deceased). The appellant namely Muhammad Imran son of Hazoor Bakhsh opted not to get himself examined under section 340(2) Cr.P.C and did not adduce any evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan, convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant is that whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the

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facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Jam Haji (PW-1) , Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that both the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Jam Haji (PW- 1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) .

The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further argued that the recovery of the hatchet (P-

1)also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real

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offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal.

12.We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial.

13.The whole prosecution case revolves around the statements of Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4). A perusal of the record reveals that the examination in chief of the Jam Haji (PW-1) was recorded on 24.01.2017, after the charge had been framed on 21.04.2014, however, prior to the cross-examination of Jam Haji (PW-1), the said witness died on 15.05.2017, hence he could not be cross examined.

The submission of the learned counsel for the appellant is that unless Jam Haji (PW-1) was subjected to cross-examination ,such piece of evidence had no evidentiary value, therefore, it was not be taken into consideration or made basis for awarding conviction to the appellant.

The learned counsel for the appellant, however, could not cite any specific provision of the Qanun-e-Shahadat, 1984 or any other law in force in support of such submission. The moot point for consideration before us is as to what could be legal value of the evidence of Jam Haji (PW-1) in the form of his examination-in-chief, when he had died before he could be subjected to cross-examination by the appellant. By virtue of Article 47 of the Qanun-e-Shahadat Order, 1984, evidence given by a witness in a judicial proceeding or before

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any person authorized by law to take it, is relevant for the purpose of proving the same in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence. Article 47 of the Qanun-e-Shahadat Order, 1984 provides as under :-

“ 47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.---Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:---

Provided that:---

the proceeding was between the same parties or their representatives- in- interest;

the adverse party in the first proceedings had the right and opportunity to cross-examine;

the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.---A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the Article.”

Article 47 of the Qanun-e-Shahadat Order, 1984 visualizes relevancy and significance to the evidence of a witness in a judicial proceeding or before any person authorized by law to take evidence, when the said witness is dead or cannot be found or is incapable of giving evidence, subject to the conditions, provided in the proviso to the said Article, that the proceedings were between the same parties or their representative-in-interest, which for the purpose of criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the said Article; when the

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adverse party in the first proceedings had the right and opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding. Article 131 of the Qanun-e- Shahadat, 1984 leaves at the discretion of the Judge to decide admissibility of any evidence and for this purpose gives wide powers to him subject to the language of this Article. More so, as there is no provision in the Qanun-e-Shahadat Order which specifically makes such piece of evidence inadmissible. A perusal of the record reveals that the examination in chief of the Jam Haji (PW-1) was recorded on 24.01.2017, after the charge had been framed on 21.04.2014, however, prior to the cross-examination of Jam Haji (PW-1) , the said witness died on 15.05.2017, hence he could not be cross examined by the appellant .The order sheet of the learned trial court reflects that Jam Haji (PW-1) appeared before the same on numerous occasions but his evidence was not recorded due to the failure of the appellant and the non-availability of his counsel which ended with the result that Jam Haji (PW-1) died and could not be cross examined by the appellant . It is not a case that the statement of Jam Haji (PW-1) was not recorded due to the absence of the appellant rather in this case the appellant simply did not cross examine Jam Haji (PW-1) till he remained alive, though Jam Haji (PW-1) kept appearing before the learned trial court for the said purpose. The appellant in a deliberate and calculated manner himself avoided to avail such an opportunity.

Therefore we are holding that the evidence of Jam Haji (PW-1), in the form of examination-in-chief, was an admissible piece of evidence, which could be legally taken into consideration by the Court in the

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peculiar facts and circumstances. Reliance in this regard is placed on the case of ARBAB TASLEEM VS. THE STATE (P L D 2010

Supreme Court 642) wherein the august Supreme Court of Pakistan has held as under:-

“16. After careful analysis of the legal and factual position, involved in this case, we cannot resist, but to say that the evidence of P.W.11, in the form of examination-in-chief, was an admissible piece of evidence, which could be legally taken into consideration by the Court in the peculiar facts and circumstances, but with extra care and caution, which has already been taken by the two Courts below, as in this case such evidence of P. W.11 is fully corroborated from the medical evidence and other surrounding circumstances of the case.

17.To put it bluntly, the manner in which the proceedings before the Sessions Court were delayed, due to the conduct, acts of omissions of the appellant or otherwise, the Trial Court cannot be absolved of its lethargy, inaction or to some extent, negligence, which ended in the incident dated 20-1-2004 of the murder of P.W. 11 on the date of hearing i.e. 20-1-2004.

18.Indeed, legally and technically examination-in-chief of P.W.11, recorded on 18-12-2003, may not be termed as a statement under section 512, Cr.P.C. in the strict sense, nor Appellate Court in its impugned judgment had held so, but the fact remains that in the peculiar facts and circumstances of the case, the manner in which proceedings in the Sessions case were delayed; the star eye-witnesses of the incident were repeatedly required to appear in Court for their evidence, the circumstances under which examination-in-chief of P.W.11 was recorded before the Trial Court on 18-12-2003; the conduct of the appellant and his counsel in Court on 18-12-2003; non-availing of the opportunity of cross-examination even thereafter for a period of over one month and three dates of hearing, are the material facts which could not be to give benefit of such delay in the proceedings of Sessions Case to the appellant. There is hardly any need to observe that law is a living organ and it is the duty of the Court to adopt a realistic and pragmatic approach for its application, looking to the peculiar facts and circumstances of each case. In the instant case, as discussed above in detailed, it cannot be said that the evidence of P.W. 11 in the form of his examination-in-chief is liable to be rejected to simple proposition that he was not subject to cross- examination, but it is case where in a deliberate and calculated Manner the appellant himself avoided to avail such an opportunity. To put it differently, a distinction drawn between the two situations, one where opportunity to cross-examination was not given or denied to a party, and second where it was given but deliberately or otherwise not availed of. Instant case, undoubtedly, falls under the second category, where ample opportunity was given but not availed by the appellant we have, therefore, no reason to disbelieve or disagree with the observation of the trial Court that appellant's side deliberately avoided to cross-examine deceased P.W. Jehanzeb. Even the trial Court, to a greater extent, cannot be blamed in not engaging a State counsel on behalf of the appellant in the matters, as on one hand at one stage of proceedings such request was made by the appellant to the Court, which was kept on hollow hopes nor the Court was given such impression to enable it to undertake such exercise to avoid further delay in the cross-examination of P.W.11. Seemingly, the trial Court exercised restraint in appointing State counsel

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on behalf of the appellant as it might have given the appellant yet another cause of grievance to challenge it before the higher forum, and in this manner to further delay the conclusion of the trial.

19.Learned counsel for the appellant appearing before us could not controvert at all that upon taking into consideration the evidence of P.W.11, the only eye-witness of the incident examined by the trial Court, the prosecution succeeded to prove its case beyond reasonable doubt against the appellant and, thus, the concurrent findings of the two forums below against the appellant regarding his conviction and sentence are unexceptionable.”

14.As mentioned above, the whole prosecution case revolves around the statements of Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4). These witnesses namely Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) were related to each other and the deceased and the appellant also. Their relationship with the deceased is also on record.

The deceased namely Haseena Bibi was the wife of Jam Haji (PW-1) , mother in-law of Zakia Bibi (PW-3) and mother of Azra Bibi (PW-4) . The other deceased of the case namely Fatima Bibi was the maternal grand-daughter of Jam Haji (PW-1), niece of Zakia Bibi (PW-3) and daughter of Azra Bibi (PW-4). The appellant namely Muhammad Imran son of Hazoor Bakhsh; is the tragic paternal uncle of the deceased namely Fatima Bibi, the nephew of the deceased namely Haseena Bibi wife of Haji Ahmad, brother in-law of Azra Bibi (PW-

4)and paternal nephew of Jam Haji (PW-1). The occurrence in this case took place at two different places. Haseena Bibi wife of Haji Ahmad (deceased) was murdered and Zakia Bibi (PW-3) was injured by the appellant inside their house, whereas Fatima Bibi daughter of Zafar Hussain (deceased) was murdered and Azra Bibi (PW-4) was injured at a distance of two acres from the house of Haseena Bibi wife of Haji Ahmad (deceased), Jam Haji (PW-1) and Zakia Bibi

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(PW-3). The place of occurrence whereas Haseena Bibi wife of Haji Ahmad (deceased) was murdered and Zakia Bibi (PW-3) was injured by the appellant , was the residential house of Jam Haji (PW-1), Zakia Bibi (PW-3), Haseena Bibi wife of Haji Ahmad (deceased) and the place where Fatima Bibi daughter of Zafar Hussain (deceased) was murdered and Azra Bibi (PW-4) was injured, was at a distance of two acres from the first place of occurrence. All the prosecution witnesses namely Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) explained their presence at the places of occurrence categorically. As the occurrence of the murder of Haseena Bibi wife of Haji Ahmad (deceased) had taken place inside her own house and Zakia Bibi (PW-3), the daughter in-law of Haseena Bibi wife of Haji Ahmad (deceased) , hence the presence of Zakia Bibi (PW-3) inside her house, at the time of occurrence, was all but natural. During the course of cross-examination it was not even suggested to Zakia Bibi (PW-3) that she was not present at the place of occurrence, at the time of occurrence. Even otherwise the occurrence had taken place at 3.00 p.m on 14.10.2013 when the appellant entered into the house of Jam Haji (PW-1) ,therefore, there did not exist any possibility that Zakia Bibi (PW-3) , the daughter in- law of Jam Haji (PW-1), could have been anywhere else but inside her house at the time of the occurrence. Similarly, Jam Haji (PW-1) also explained in examination in chief that he was present just outside his house when the appellant, his nephew, entered into his house and murdered Haseena Bibi wife of Haji Ahmad (deceased), his wife and gave serious injuries with a hatchet to Zakia Bibi (PW-3), his

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daughter in-law. Ghulam Raziq (PW-2) also explained that he was present outside the house of Jam Haji (PW-1) when the appellant entered into the house and he followed the appellant into the house of Jam Haji (PW-1) and saw the appellant murdering Haseena Bibi wife of Haji Ahmad (deceased) and causing grievous injuries to Zakia Bibi (PW-3). Ghulam Raziq (PW-2) during cross-examination explained as under:-

“Haji Ahmad complainant (deceased) is my brother-in-law. Haji Nazik is my real brother. We were present there to have a dealing of cotton as well as for collection of cotton. The police also inquired us about our presence at the spot and we told the police the fact which I have mentioned earlier. ” We have noted that the prosecution witnesses namely Jam Haji (PW- 1), Ghulam Raziq (PW-2) and Zakia Bibi (PW-3), in a very natural and forthright manner, narrated the occurrence wherein Haseena Bibi wife of Haji Ahmad (deceased) was murdered and Zakia Bibi (PW-3) was injured by the appellant and gave each and every detail of the same. More importantly the occurrence took place inside the house of the witnesses namely Jam Haji (PW-1) and Zakia Bibi (PW-3) at about 3.00 p.m and the presence of Jam Haji (PW-1) and Zakia Bibi (PW-3) at that time, inside their own house, the place of occurrence, cannot be suspected. During the course of investigation, Baggu Ahmad, SI (PW-11), the Investigating Officer of the case , also collected the blood stained earth from underneath the dead body of the deceased namely Haseena Bibi wife of Haji Ahmad from the place of occurrence and took the same into possession through recovery memo (Exh.PB). The report of the Punjab Forensic Science Agency, Lahore (Exh.PZ) establishes that the said blood taken from the place of

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occurrence was of human origin. The place of occurrence wherein Haseena Bibi wife of Haji Ahmad (deceased) was murdered and Zakia Bibi (PW-3) was injured was further established by the rough site plan (Exh.PN) as prepared by Baggu Ahmad, SI (PW-11), the Investigating Officer of the case and the scaled site plan of the place of occurrence (Exh.PX) as prepared by Riaz Ahmad Patwari (PW-18).

As the occurrence had taken place within the compound where both the witnesses namely Jam Haji (PW-1) and Zakia Bibi (PW-3) were residing, hence their witnessing the same cannot be put to question in absence of any circumstance necessitating raising of doubt over the presence of the witnesses namely Jam Haji (PW-1) and Zakia Bibi (PW-3). In this regard, reference is made to the judgment in the case titled as Shaheen Ijaz Alias Babu v. The State (2021 S C M R 500) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“.....petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation. Petitioner's sole nomination as being the one to have targeted the deceased with five entrance wounds is a circumstance that reflects positively on complainant's conduct; nomination of co-accused with inconsequential roles notwithstanding, their presence at the scene followed by acquittal, seemingly out of abundant caution, does not tremor prosecution's mainstay qua the role assigned to the petitioner.”

Reference is also made to the judgment in the case titled as Abid Ali v.

The State (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the

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complainant in her house at that time was nothing but natural and expected.”

Reference is made to the judgment in the case titled as Nadeem Raamzan v. The State (2018 SCMR 149) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- “The said eye-witnesses were inmates of the house wherein the occurrence had taken place and, thus, were nothing but natural witnesses.”

Reference is made to the judgment in the case titled as Muhammad Ikram and another v. The State (2011 SCMR 1133) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- “Aqeel Shahzad (complainant) and her sister Mst. Saima were natural witnesses as the occurrence took place inside the house where they were residing.”

With regard to the occurrence wherein Fatima Bibi daughter of Zafar Hussain (deceased) was murdered and Azra Bibi (PW-4) received injuries at the hands of the appellant, we have noted that all the three witnesses namely Jam Haji (PW-1), Ghulam Raziq (PW-2) and Azra Bibi (PW-4) gave consistent and reliable evidence with regard to the presence of the witnesses at the place of the murder of Fatima Bibi daughter of Zafar Hussain (deceased) , the manner of the occurrence and the role of the appellant in the occurrence. As mentioned above, the place where Fatima Bibi daughter of Zafar Hussain (deceased) was murdered was at a distance of only two acres from the house of Jam Haji (PW-1). According to the statements of the prosecution witnesses, the appellant after murdering Haseena Bibi wife of Haji Ahmad (deceased) and giving injuries to Zakia Bibi (PW-3), proceeded to the place where Fatima Bibi daughter of Zafar Hussain (deceased) was present along with her mother namely Azra Bibi (PW-

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4), who was washing clothes, and at the said place the appellant not only injured Azra Bibi (PW-4) with a hatchet but also pressed the throat of Fatima Bibi daughter of Zafar Hussain (deceased) and threw her in the water stream, causing her death. It was also explained by the witnesses namely Jam Haji (PW-1) and Ghulam Raziq (PW-2) that they had followed the appellant and hence seen the occurrence wherein Fatima Bibi daughter of Zafar Hussain (deceased) was murdered and Zakia Bibi (PW-3) received injuries. Furthermore, in the incident in issue, the weapon had been used from very close proximity and, thus, it would not have been difficult for the complainant party to identify the present appellant. We have scrutinized the evidence of Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said witnesses namely Jam Haji (PW-1) , Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) were motivated by any enmity to depose against the appellant. As mentioned above, all the witnesses namely Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) were closely related to both the deceased as well as the appellant and no reason existed prior to the occurrence which could have interested Jam Haji (PW-1) , Ghulam Raziq (PW-2) , Zakia Bibi (PW-3) and Azra Bibi (PW-4) to get the appellant involved in this occurrence falsely and let of the real accused. Three of the witnesses namely Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) were subjected to lengthy cross-examination

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but the defence failed to make cracks in their deposition and the genuineness of their statements has been proved. Moreover during the cross-examination the sequence of the occurrence was brought on record and both the witnesses remained consistent. Additionally the role of the appellant during the occurrence was further explored and got proved during the cross-examination of the prosecution witnesses namely Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4). Hence, in view of the above facts, Jam Haji (PW-1) , Ghulam Raziq (PW-2) , Zakia Bibi (PW-3) and Azra Bibi (PW-4) by no stretch of imagination, can be declared as chance witnesses or be declared not to be present at the time of occurrence. Moreover according to column No.8 of the inquest report (Exh.PJ/1) relating to the deceased namely Haseena Bibi wife of Haji Ahmad and according to column No.8 of the inquest report (Exh.PK/1) relating to the deceased namely Fatima Bibi daughter of Zafar Hussain, at the time of preparation of the same, the eyes and mouths of both the deceased were also closed and had the deceased met their deaths in absence of the witnesses, then their eyes and mouths would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes and mouths of both the deceased at the time of the preparation of the inquests reports at the place of occurrence, further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. The presence of the witnesses namely Jam Haji (PW-1) , Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) at the two places of occurrence, at

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the time of occurrence stands proved beyond a shadow of doubt.

Additionally, Jam Haji (PW-1) , Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) being close relatives of the deceased as well as the appellant , had no reason to falsely implicate the appellant in the commission of the offence or substituting the appellant namely Muhammad Imran and letting off the real culprit.

There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit.

Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow the real culprit for the murder of their relations let off by involving an innocent person. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellant namely Muhammad Imran has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-

3)and Azra Bibi (PW-4), in a forthright manner, held the appellant namely Muhammad Imran responsible for the murders of both the deceased namely Haseena Bibi wife of Haji Ahmad and Fatima Bibi daughter of Zafar Hussain. Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

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"In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."

Reference is made to the judgment in the case titled as Ghulam Murtaza v. The State (2021 S C M R 149) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- “Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye-witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy.”

15.Furthermore, the presence of the witnesses namely Zakia Bibi (PW-3) and Azra Bibi (PW-4) at the places of occurrence cannot be doubted as they had stamp of injuries on their bodies. According to the available record, Zakia Bibi (PW-3) was injured by the appellant when she was trying to save Haseena Bibi wife of Haji Ahmad (deceased), her mother in-law, from the wrath of the appellant ,who had already been injured by the appellant, whereas Azra Bibi (PW-4) was also injured by the appellant when she was present along with Fatima Bibi daughter of Zafar Hussain (deceased) at a distance of two acres from her house. According to the injury statement (Exh.PL) relating to Zakia Bibi (PW-3) and according to the injury statement (Exh.PM) relating to Azra Bibi (PW-4) , Zakia Bibi (PW-3) and Azra Bibi (PW-4) were initially shifted to the RHC Mian Wali

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Qureshian, however as a Woman Medical Officer was not available at the said RHC, therefore, then they were referred to the Sheikh Zayed Hospital, Rahim Yar Khan. According to the available documents, including the opinion (Exh.PV) of Dr. Salman Ahmed (PW-17) relating to Zakia Bibi (PW-3) and (Exh.PM) of Dr. Salman Ahmed (PW-17) relating to Azra Bibi (PW-4), both Zakia Bibi (PW-3) and Azra Bibi (PW-4) were admitted to the Sheikh Zayed Hospital Rahim Yar Khan on 14.10.2013, where they remained under treatment and were also examined at the said hospital by the Woman Medical Officer. According to the Medico Legal Examination Certificate (Exh.PL) related to Azra Bibi (PW-4), she had received as many as seven injuries on her person, whereas according to the Medico Legal Examination Certificate (Exh.PM) related to Zakia Bibi (PW-3), she had suffered three injuries on her body. According to the medical evidence available on record both the witnesses namely Azra Bibi (PW-4) and Zakia Bibi (PW-3) had suffered the injuries with a use of a sharp edged weapon and the said injuries had been inflicted on the vital parts of their bodies. In this manner, implicit reliance can be placed upon the statements of Zakia Bibi (PW-3) and Azra Bibi (PW- 4), whose statements are duly supported by the medical evidence available on record. During the course of cross-examination, it was not even suggested that Azra Bibi (PW-4) and Zakia Bibi (PW-3) were not injured during the occurrence or that they had fabricated the injuries observed on their bodies by the various Medical Officers. The august Supreme Court of Pakistan in the case of Khadim Hussain vs.

The State (P L D 2010 Supreme Court 669) has held as under:-

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“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”

Reliance is also placed on the case of “KHADIJA SIDDIQUI and another Vs. SHAH HUSSAIN and another” (P L D 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case.

16.As mentioned above, the occurrence in question had admittedly taken place in broad daylight at 3.00 p.m and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellant was closely related to all the prosecution witnesses, the question of his misidentification does not arise. We have also appreciated the fact that the occurrence in this case took place at about 3.00 p.m and was reported by the complainant namely Jam Haji (PW-1) and whose oral statement (Exh.P.A.) was recorded by Baggu Ahmad, SI (PW-11) , the Investigating Officer of the case at 4.45 p.m. On the basis of the oral

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statement (Exh.PA) of the complainant namely Jam Haji (PW-1) , the formal F.I.R. (Exh.PU) was registered at 5.15 p.m by Muhammad Ijaz, SI (PW-14), when the distance between the place of occurrence and the Police Station was as much as nineteen kilometres. Thus, it is apparent that the formal F.I.R (Exh.PU) was got lodged with remarkable promptitude specially when Jam Haji (PW-1), the complainant of the case, had suffered the trauma of the death of his wife and his two years old maternal grand-daughter namely Fatima Bibi daughter of Zafar Hussain (deceased)and that too at the hands of his own relative, the appellant, the paternal nephew of Jam Haji (PW-1) . Jam Haji (PW-1), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in his oral statement (Exh. PA), which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The essential features of the occurrence have been elaborately explained in the F.I.R. The promptitude in lodging of the FIR also corroborates the case of the prosecution as against the appellant. This promptitude in reporting the matter to the police also establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as Muhammad Waris v. The State (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”

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Reliance is also placed on the case of MUHAMMAD ARSHAD Versus The State (2020 S C M R 2025) wherein it has been held as under:- “There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10- KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society.”

Reliance is also placed on the case of Noor Sultan and others Versus The State (2021 S C M R 176) wherein it has been held as under:- “The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

Reliance is also placed on the case of Shaheen Ijaz Alias Babu Versus The State (2021 S C M R 500) wherein it has been held as under:- “ ..........petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’

17.The medical evidence produced by the prosecution in the case, proves that both the deceased namely Haseena Bibi wife of Haji Ahmad and Fatima Bibi daughter of Zafar Hussain succumbed to the injuries caused by the appellant. The medical evidence fully

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supports the ocular account. A perusal of the record reveals that initially the dead bodies of both the deceased namely Haseena Bibi and Fatima Bibi were sent to RHC MianWali Qureshian , however, according to the application for conducting the post mortem (Exh.PJ) related to Haseena Bibi (deceased) and according to the application for conducting the post mortem (Exh.PK) related to Fatima Bibi (deceased), a Woman Medical Officer was not available at the said RHC MianWali Qureshian, therefore, then the dead bodies were sent to the Sheikh Zayed Hospital, Rahim Yar Khan for Post Mortem examination. According to the post mortem examination report (Exh.PJ/2) of Haseena Bibi wife of Haji Ahmad (deceased) and the post mortem examination report (Exh.PK/2) of Fatima Bibi daughter of Zafar Hussain (deceased), Dr. Sumera Sarwar (PW-15) received the dead bodies of the deceased namely Haseena Bibi and Fatima Bibi on 14.10.2013 at 9:00 pm and also received the complete police papers on the same night i.e.

14.10.2013 at 9:30 pm and on 15.10.2013, Dr. Sumera Sarwar (PW-

15)conducted the postmortem examination of the dead body of Haseena Bibi wife of Haji Ahmad. Dr. Sumera Sarwar (PW-15), on examining the dead body of the deceased namely Haseena Bibi wife of Haji Ahmad, observed an incised wound of the dimension of 8 cm x 2 cm present from the lateral to the lower border of right sternocleidomastoid, extending to the lower end of the occiput, the middle part of the wound was 8 cm below right ear lobule, the depth of wound was 3 cm, cutting all vessels, muscles and exposing cervical vertebrae. Dr. Sumera Sarwar (PW-15) further

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opined that the said injuries had been caused by the use of a sharp edged weapon which resulted in damaging the major blood vessels and tissues of neck, leading to massive hemorrhages and shock, and the said injury was sufficient to cause death in the normal course of life. Dr. Sumera Sarwar (PW-15) also conducted the postmortem examination of the dead body of Fatima Bibi daughter of Zafar Hussain (deceased) o 15.10.2013. Dr. Sumera Sarwar (PW-15), on examining the dead body of the deceased namely Fatima Bibi daughter of Zafar Hussain (deceased) and after receiving the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the analysis of the hyoid bone and other viscera opined that the cause of death was ante-mortem drowning. Dr. Sumera Sarwar (PW-15) also stated that she had received the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the analysis of the hyoid bone and other viscera of the deceased namely Fatima Bibi daughter of Zafar Hussain . We have ourselves gone through the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the analysis of the hyoid bone and other viscera of the deceased namely Fatima Bibi daughter of Zafar Hussain and according to the said report the adjacent soft tissue and muscle of neck revealed blood hemorrhages suggesting ante- mortem nature of injury at the level of neck.” (emphasis supplied) . In this manner, the statements of the prosecution witnesses namely Jam Haji (PW-1) , Ghulam Raziq (PW-2) and Azra Bibi (PW-4) that the appellant pressed the throat of the minor namely Fatima Bibi daughter of Zafar Hussain (deceased), causing

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her death and threw her in the water, find sufficient support from the medical evidence. We have already discussed the medical evidence available on record with regard to the injuries suffered by the witnesses namely Azra Bibi (PW-4) and Zakia Bibi (PW-3) at the hands of the appellant. As mentioned above, Zakia Bibi (PW-3) had suffered incised wounds on her left ear , left shoulder and left arm , which wounds were muscle deep. Similarly, Azra Bibi (PW-

4)had suffered numerous injuries on her head, right shoulder, left shoulder, left arm, right arm and left hand, which injuries were of grievous nature and caused by the appellant .In this manner the ocular account is fully verified by the medical evidence available on record. In view of the above discussion, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of both the deceased namely Haseena Bibi wife of Haji Ahmad and Fatima Bibi daughter of Zafar Hussain and the appellant is also guilty of attempting to commit Qatl-i-Amd of both the witnesses namely Azra Bibi (PW-4) and Zakia Bibi (PW-3).

18.Then there is also the matter of the unexplained disappearance of the appellant after the occurrence. Ghulam Hussain 1227/C (PW-

12)stated that on 02.11.2013 he was handed over the warrants of arrest of the appellant, however, the same could not be executed and he made his report (Exh.PS) and further stated that on 21.11.2013 he was handed over the proclamation under section 87 of the Code of Criminal Procedure, 1898 for its publication and his report on the same was (Exh. PT).Muhammad Ijaz, SI (PW-14) stated that on 02.11.2013, he moved a written application (Ex.P-S/1) before the

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learned Magistrate for issuance of warrants of arrest of the appellant namely Muhammad Imran and the learned Magistrate issued the warrants of the accused accordingly and the said warrants (Ex.P-S/2) were handed over to Ghulam Hussain 1227/C (PW-12) for execution.

Muhammad Ijaz, SI (PW-14) further stated that when the warrants could not be executed, he moved another written application (Exh.PT/1) for issuance of proclamation before the learned Magistrate which application was allowed. Muhammad Ijaz, SI (PW-

14)further stated that on 25.11.2013, Ghulam Hussain 1227/C (PW-

12)returned to him the proclamation (Exh.P-T/2) after publication.

Thereafter Muhammad Ijaz, SI (PW-14) arrested the appellant on 10.12.2013. There is no explanation forthcoming of the abscondence of the appellant. Article 21 of the Qanun-e-Shahadat, 1984 provides that the fact that any person accused of a crime absconded after the same is a relevant fact to prove the fact in issue. Illustration (i) of Article 21 of the Qanun-e-Shahadat, 1984 reads as under:- “(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.”

This conduct of the appellant to evade the law after the occurrence is a further indicator pointing towards of his guilt when considered in conjunction with the ocular evidence in the case. The august Supreme Court of Pakistan in the case of “ Mst. ROHEEDA Versus KHAN BAHADUR and another” (1992 SCM R 1036) has held as under:- " No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct

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an circumstantial evidence in the case. In the instant case the accused/respondent No.l, Jahanzeb accused (since murdered) and their brother Aurangze remained fugitive from justice for a very long time without any plausible an reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."

The august Supreme Court of Pakistan in the case of “ASHIQ HUSSAIN Vs. The State” ( 2017 SCMR 188) has held as under:- “ During the investigation the appellant had made himself scarce and had, thus, been declared a Proclaimed Offender and such conduct on the appellant's part had provided further corroboration to the ocular account.”

The august Supreme Court of Pakistan in the case of “MUHAMMAD LATIF alias TIFA Vs. The State” ( 2008 SCMR 1106) has held as under:-

“It is also an admitted fact that after the occurrence, the appellant remained at large for about 41⁄2 years and his abscondance was taken as an incriminating piece of evidence.”

The august Supreme Court of Pakistan in the case of “SAIF-UL- ISLAM Vs. The State” ( 2008 SCMR 1236) has held as under:- “ The occurrence took place on 4-7-2004 but accused/petitioner did not joint investigation rather he went abroad (Dubai). He was brought to Pakistan through Interpol Police and on 23-2-2005 he was arrested in this case. The petitioner was declared P.O. He has failed to explain as to why he remained absent and this incriminating circumstance too operates to his disadvantage.”

19.Regarding the recovery of the hatchet (P-1) from the appellant namely Muhammad Imran son of Hazoor Bakhsh, the same cannot be relied upon as the Investigating Officer of the case, did not

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join any witness of the locality during the recovery of the said hatchet (P-1) from the appellant, which was in clear violation of section 103 of the Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

We have also noted that according to the statement of Muhammad Ijaz, SI (PW-14), the appellant was arrested on 10.12.2013, whereas the hatchet (P-1) was got recovered by him on 13.12.2013, however Yasir Mehmood 1600/HC (PW-8), the Moharrir of the Police Station , stated that he had already received a sealed parcel said to contain the recovered hatchet and had already sent the same to the Punjab Forensic Science Agency, Lahore on 11.12.2013. Yasir Mehmood 1600/HC (PW-8) in his statement before the learned trial court stated as under:-

“Thereafter another sealed parcel said to contain hatchet was also handed over to me by Muhammad Ejaz S.I for onward transmission to the Office of PFSA, Lahore. I kept both the sealed parcels in Thana Malkhana for safe custody and on 11.12.2013, I handed over both the aforesaid sealed parcels to Niaz Ahmad No.349/C for onward transmission to the Office of PFSA, Lahore, intact.” (emphasis supplied)

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Niaz Ahmad 349/C (PW-6) also stated that on 11.12.2013 he was handed over a sealed parcel said to contain a hatchet which on 12.12.2013 he deposited in the office of Punjab Forensic Science Agency, Lahore. Niaz Ahmad 349/C (PW-6) in his statement before the learned trial court stated as under:-

“Stated that on 11.12.2013 I was posted at P/S Rukkan Pur, Rahimyarkhan. On the same date, Moharrir Muhammad Yasir No.1600?/HC handed over me four sealed parcel said to contain hatchet, envelope, blood stained earth and one tin for onward transmission to the Office of PFSA, Lahore, which I deposited in the said office on the following day i.e. 12.12.2013, intact. My statement U/S 161 Cr.P.C was recorded in this regard.” (emphasis supplied).

Yasir Mehmood 1600/HC (PW-8) and Niaz Ahmad 349/C (PW-6) were not re-examined by the prosecution nor any application was moved for their re-examination and in presence of their unchallenged statements that the sealed parcel said to contain the recovered hatchet was handed over to Niaz Ahmad 349/C (PW-6) on 11.12.2013 , no reliance can be placed on the recovery of the hatchet (P-1) , which was shown to have been recovered from the possession of the appellant on 13.12.2013 i.e two days after the sealed parcel had already been sent to the office of Punjab Forensic Science Agency, Lahore. We have also perused the statements of the recovery witnesses namely Ghulam Raziq (PW-2) and Muhammad Ijaz, SI (PW-14) as well as the recovery memo (Exh.PC) by way of which the recovered hatchet (P-1) was taken into possession by the Investigating Officer of the case and find that none of these witnesses stated that the hatchet (P-1) was stained with blood and similarly in the recovery

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memo (Exh.PC) it was not recorded that the recovered hatchet (P-1) was stained with blood. Moreover, no report of the Punjab Forensic Science Agency, Lahore was produced so as to establish whether the hatchet (P-1) was stained with blood or otherwise. Therefore, the recovery of the hatchet (P-1) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the hatchet (P-1) is not proved and the same cannot be used as a circumstance against the appellant.

20.The motive of the occurrence, as mentioned by the prosecution witnesses namely Jam Haji (PW-1) , Ghulam Raziq (PW-

2)and Zakia Bibi (PW-3) was that the appellant entered the house of Jam Haji (PW-1) ,started cutting the tree standing inside the boundary wall of the house of Jam Haji (PW-1) and when he was confronted by Haseena Bibi wife of Haji Ahmad (deceased) , who asked him not to cut the said tree, it angered the appellant and he proceeded to murder the two deceased namely Haseena Bibi wife of Haji Ahmad and Fatima daughter of Zafar Hussain and caused grievous injuries to Azra Bibi (PW-4) and Zakia Bibi (PW-3). We have perused the prosecution evidence and find that the motive as stated by them which triggered the occurrence was not proved. We have perused the rough site plan (Exh.PN) as prepared by Baggu Ahmad, SI (PW-11), the Investigating Officer of the case and the scaled site plan of the place of occurrence (Exh.PX) as prepared by Riaz Ahmad Patwari (PW-18) and find that the said tree which was allegedly present inside the compound of Jam Haji (PW-1) and which tree the appellant attempted to cut, has not been marked in the said site plans (Exh.PN and

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Exh.PX) . We have also noted that though a tree has been shown in the rough site plan (Exh.PN) as prepared by Baggu Ahmad, SI (PW- 11), the Investigating Officer of the case, however, the said tree was not planted inside the compound of Jam Haji (PW-1) and hence was not the same tree which was being cut by the appellant. Moreover, Baggu Ahmad, SI (PW-11), the Investigating Officer of the case, during cross-examination admitted that upon his arrival at the place of occurrence, he did not observe any branch of the tree which had allegedly been cut by the appellant. Baggu Ahmad, SI (PW-11), the Investigating Officer of the case during cross-examination stated as under:-

“ I have not seen any branch (Tehni) cut by the accused at the spot.”

Moreover, in the inspection note as prepared by the Baggu Ahmad, SI (PW-11) , the Investigating Officer of the case, in the rough site plan of the place of occurrence (Exh.PN) as prepared by Baggu Ahmad, SI (PW-11), the Investigating Officer of the case and in the scaled site plan of the place of occurrence (Exh.PX) as prepared by Riaz Ahmad Patwari (PW-18), no point has been mentioned detailing the datum that if any tree was present inside the compound of Jam Haji (PW-1) and the claim that the appellant attempted to cut the said tree prior to the occurrence. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of both deceased namely Haseena Bibi wife of Haji Ahmad and Fatima Bibi daughter of Zafar

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Hussain. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

21.We have disbelieved the evidence of prosecution qua the motive and recovery of the hatchet (P-1) in this case. However, if the evidence of motive and recovery of the hatchet (P-1) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Imran son of Hazoor Bakhsh to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Jam Haji (PW-1), Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4). Three of the said eye-witnesses namely Ghulam Raziq (PW-2), Zakia Bibi (PW-3) and Azra Bibi (PW-4) stood the test of lengthy cross-examination, but their evidence could not be stunned.

Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence, therefore, we hold that the prosecution has proved its case

Crl. Appeal No. 176-J of 2018 37

against the appellant Muhammad Imran son of Hazoor Bakhsh beyond the shadow of any doubt.

22.Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant namely Muhammad Imran son of Hazoor Bakhsh, firstly, the evidence of recovery of the hatchet (P-1) from the possession of the appellant namely Muhammad Imran son of Hazoor Bakhsh has been disbelieved by us for the reason mentioned in Para No.19 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court has held as under:-

"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Imran son of Hazoor Bakhsh in the peculiar

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circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant, which had resulted into the death of both deceased namely Haseena Bibi wife of Haji Ahmad and Fatima Bibi daughter of Zafar Hussain, therefore, in our view the death sentence awarded to the appellant is quite castigatory .It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of “Ahmad Nawaz and another v. The State” (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:- "10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i- amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd,

Crl. Appeal No. 176-J of 2018 39

keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz- Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst.

NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :-

“In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

We are also fortified in our view in this regard by the cases of “Nawab Ali v. The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v.

Muhammad Akhtar and others” (2016 SCMR 2035), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R 149).

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23.In the light of above discussion, the conviction of the appellant namely Muhammad Imran son of Hazoor Bakhsh, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death on two counts awarded to the appellant namely Muhammad Imran son of Hazoor Bakhsh under section 302(b) P.P.C. is altered to imprisonment for life on two counts. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and the sentences in default thereof are maintained and upheld. The other sentences awarded to the appellant namely Muhammad Imran son of Hazoor Bakhsh under section 324 PPC are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Imran son of Hazoor Bakhsh. All the sentences of the appellant namely Muhammad Imran son of Hazoor Bakhsh are ordered to run concurrently.

Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Imran son of Hazoor Bakhsh under section 302 (b) PPC, Criminal Appeal No.176-J of 2018, is hereby dismissed.

24.Murder Reference No. 07 of 2018 is answered in Negative and the death sentences awarded to Muhammad Imran son of Hazoor Bakhsh are Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Crl. Appeal No. 176-J of 2018 41 Approved for Reporting

JUDGE JUDGE