1982 P Cr (PLP)

MUHAMMAD ILYAS, J.-This is, an appeal by Liaqat Ali son of Sultan Ali, caste Arain, aged 25 years, labourer, resident of village, Wan Khara. Police Station Pattoki, District Kasur, against the judgment, dated the 23rd September. 1978, passed by the Sessions Judge, Lahore, whereby he convicted him under section 302 of the Pakistan Penal Code and sentenced him to death and a fine of Rs. 10,000 for having killed Bashir Ahmad, his wife named Mst. Reshman and his two children, namely. Muhammad Aslam and Mst. Bashiran, aged about 2J years and 5-6 years respectively. The learned Sessions Judge has also made a reference (Murder Reference No. 221 of 1978) for confirmation of the death sentence awarded to the appellant. By this judgment we will be disposing of the appeal as well as the reference.

2. The prosecution case is that the appellant and Bashir Ahmad, deceased were employed as labourers in connection with the construc tion of a house of Malik Sher Muhammad in Muslim Colony, Bastami Road, Lahore. Mst. Reshman deceased used to come to her husband, Bashir Ahmad deceased from her village to collect wages paid to him from time to time. On 7th July, 1978 also she had come there along with her two children, namely, Muhammad Aslam and Mst. Bashiran deceased. At the night following the said day, the couple alongwith their two children were sleeping on the roof of the car porch of the house of Malik Sher Muhammad, which was under construction, when at about 3-30 a. m. the appellant killed all four of them by causing them injuries with a kassi and then ran away after leaving the kassi at the spot. This incident was witnessed by Abdul `Razzaq (P. W. 6) and Asghar Ali (P. W. 7), who were present at the spot. Abdul Razzaq was employed there as a Chaukidar while Asghar Ali worked as mason for the cons truction of the said house and both had slept on the ground floor of the said house on the night of occurrence.

3. The motive for the present occurrence is stated to be the dispute between the appellant and Bashir Ahmad deceased over the alleged illicit intimacy of Mst. Reshman deceased (wife of Bashir Ahmad deceased) with the appellant. It is alleged that the appellant professed to have developed unlawful relations with Mst. Reshman and this was also known to her husband, Bashir Ahmad. About two weeks before the incident, the appellant and Bashir Ahmad had also quarrelled due to the unholy liaison of the appellant with Mst. Reshman. Again they had a scuffle at about 9 p. m. on the night of occurrence but they were separated by Abdul Razzaq and Asghar Ali. On this, the appellant left the place in an angry mood and after about 61 hours, that is, at 3-30 a. m. he killed Bashir Ahmad together with his wife and two children.

4. After the incident, Abdul Razzaq (P. W. 6) left for the Police Station, Nawankot, to report the occurrence. On the way, however, he came cross Ayaz Ahmad, A. S.-I. (P. W. 9) who recorded his statement, Exh. P. E. On the basis of that statement, formal F. I. R. Exh. P. E./1 was drawn up by the said A. S.-I. at the Police Station. He then visited the site and prepared injury statements and inquest resports in respect of the four deceased persons and despatched the dead bodies to the mortuary for post-mortem examination. He also collected blood-stained earth from the spot and made it into the sealed parcels. In addition, he took into possession two blood-stained cots Exhs. P. 8 and P. 9 and the blood stained kassi. Exh. P. 7 which was lying at the spot. He also investi gated the case till the investigation was taken over by the Station House Officer, Abdul Munir (P. W. 8). The S. H. O. arrested the appellant from his native village, Wan Khara. After completing the investigation he sent up the appellant for trial.

5. Dr. Muhammad Nazeer Chatha (P. W. 1) conducted autopsy on the dead bodies. He found the following injuries on the dead body of Bashir Ahmad :- (1) Big lacerated wound 6 " x 9" x brain cavity deep on left forehead and head. (2) Lacerated wound 1 x " x bone deep on left zygmaticarae. (3) Lacerated big wound 41" x 1f" x brain deep on left side and front of head. (4) Big lacerated wound 5' x 2" bone deep on right cheek. Bone broken. An incised wound 7 " x 1" x cutting whole pinna on right side and adjoining in transverse position at middle of pinna. On internal examination, his scalp was found injured. His skull was fractured and membranes and bran were injured. In the opinion of the doctor, the death of Bashir Ahmad occurred due to the injuries to his brain, skull, right pinna and cheek which had caused shock and haemor rhage and loss of brain function. According to the doctor the injuries were sufficient to cause death in the ordinary course of nature. On the dead body of Mst. Reshman the doctor had noticed the following injuries :- (1) Big lacerated wound 7 x 2 cm x brain matter deep on top of head in transverse position. Skull and brain were injured. (2) An incised wound 2 x 1 cm x bone deep on right side of head and forehead at hair margin in downward direction. (3) An incised wound 8 x 3 cm x skin deep on back and upper part of right forearm. (4) Lacerated wound 3 x 1 cm x brain deep on back and top of head. Bone was broken. (5) An abrasion 3 x 1 cm on back of right scapula. (6) An incised wound 5 cm x bone deep on left side of head. On dissection, her scalp was also found injured. Her skull was fractured and membranes and brain were injured. It was reported by the doctor that she had died due to shock and haemorrhage and loss of brain function caused by the injuries. In the opinion of the doctor the injuries found on the dead body of Mst. Reshman were sufficient to cause death in the ordinary course of nature. The doctor had noted the following injuries on the dead body of Mst. Bashiran, girl of about 2 years :- (1) Head and skull and top were broken and depressed. On internal examination, her scalp was found injured. Her skull was found broken and depressed and the membranes and brain injured. According to the doctor, her death bad occurred due to loss of brain func tion and shock caused by the fracture of scalp bone. The injury suffered by her was reported to be sufficient to cause death. The doctor had reported the following injuries on the dead body of Muhammad Aslam. a child of 5-6 years :- (1) An incised wound x cm x scalp deep on in front of head. Underneath bone was broken. (2) An incised wound 1 x cm x bone deep on left side of head. Underneath bone was broken. (3) An incised wound 2 x cm x bone top and mid of bead in transverse position. Bone was broken. (4) Swelling 6 x 4 cm on right side of head. (5) Swelling 6 x 3 cm on left cheek before the ear. On internal examination, he found the scalp injured, skull fractured and the brain and membranes also injured. In the opinion of the doctor, the boy had died due to shock, haemorrhage and loss of brain function. The said injuries, in the opinion of the doctor, were sufficient to cause death in the ordinary course of nature.

6. Besides Abdul Razzaq (P. W. 6), Asghar Ali (P. W. 7), Ayaz Ahmad, A. S. 1. (P. W. 9), Abdul Munir, S. H. O. (P. W. 8) and Dr. Muhammad Nazeer Chatha (P. W. 1), referred to above, the prosecution examined Muhammad Ramzan Moharrir A. S. I. (P. W. 2), Muhammad Akhtar, A. S. 1. (P. W. 3), Muhammad Rafiq Foot-constable (P. W. 4), and Muhammad Yaqub, Naqsha Nawees (P. W 5). Abdul Razzaq and Asghar Ali, who had given ocular account of the occurrence are also witnesses of motive. They supported the prosecution version as spelt out earlier. Ayaz Ahmad, A. S. I. and Abdul Munir, S. H. O. made statements in regard to the aforementioned action taken by them in connection with the present case. Dr. Muhammad Nazeer Chatha proved his post-mortem examination reports and the sketches showing the injures of deceased persons. Muhammad Ramzan Moharrir, A. S.-I. M4hammad Rafiq Foot-constable and Muhammad Akhtar, A. S.-I. (P. W. 3) are formal witnesses. Muhammad Yaqub, Naqsha.Nawees had prepared site plans, Exh. P. G. and P. G./1 of the place of occurrence.

7. After the prosecution had closed its evidence, statement of the appellant, Liaqat Ali, was recorded under section 342 of the Criminal Procedure Code. He denied all the allegations levelled against him. While explaining as to why the case had been brought against him, he said :- "I used to work as labourer at the house of Malik Sher Muhammad. Mistry Muhammad Asghar P. W. also worked there. He had turned me out on the evening preceding the night of occurrence. Mistry Muhammad Asghar and Mailk Sher Muhammad had beaten me up on the allegation of stealing the iron bars. I was proceed ing to my village when I came across to Zulfiqar Ali Lambardar and I apprised him of the said incident. Thereafter the police reached there on 8th July, 1978 at about 1 p. m. and arrested me from my house. I have been falsely implicated by Mistri Muhammad Asghar. The latter was maintaining illicit intimacy with Reshman deceased". He did not like to produce any evidence in defence.

8. The learned Sessions Judge found that the prosecution case had been fully established and, therefore, he convicted and sentenced the appellant by the impugned judgment.

9. Mr. Sana Ullah Bajwa, learned counsel for the appellant, opened up his argument with an attack on the mode of trial resulting in the conviction of the appellant. He contended that the learned Sessions Judge had framed one charge relating to all the four murders involved in the case instead of framing separate charge for each murder, and, therefore the trial held by him was not in order. It is true that instead o framing separate charge for each murder the learned Sessions Judge had drawn up a composite charge embracing the four murders but since n prejudice seems to have been caused to the appellant due to the non framing of separate charges, the technical objection raised by learned) counsel for the appellant is of no consequence.

10. Next it was urged by the learned counsel for the appellant that the presence of one of the eye-witnesses, namely, Asghar Ali (P. W. 7) at the time of occurrence was doubtful. It was pointed out by him that Asghar Ali had his own house in the same locality in which the under construction house, where the incident had taken place, was situate and, therefore, there was no occasion for his sleeping at the spot on the fateful night. It was admitted by Asghar Ali that he owned a house in the said locality but he explained that as the iron bars for the house under construction were brought to the spot on the said night he was there to take care of the said material. We see no good reason to dispute the explanation given by Asghar Ali and, therefore, the existence of his house in the locality in question does not make his presence, at the time of occurrence, doubtful.

11. Another contention raised by the learned counsel for the appel lant was that since the two eye-witnesses were sleeping on the ground floor they could not possibly see the occurrence taking place on the roof of the car porch of the house under construction. In this connection, the explanation offered by the eye-witnesses was that on hearing alarm, Abdul Razzaq went up on a bamboo ladder and Asghar Ali on the top of a wall and saw the occurrence. This was indeed, a convincing reply to the plea advanced by learned counsel for the appellant.

12. With a view to finding fault with the ocular evidence, learned counsel for the appellant had posed a question that if the eye-witnesses were there at the time of the infliction of the injuries why did they not make an effort to save all or some of the lives alleged to have been taken by the appellant. When cross-examined on this point, Abdul Razzaq (P. W. 6) had stated that he and Asghar Ali had asked the appellant not to kill the deceased persons but he had threatened them also. Similarly Asghar Ali (P. W. 7) had deposed that they had challenged the appellant on which he had threatened them. How desperate was the appellant at the relevant moment is clearly discernible from his killing of four persons one after the other. In this state of affairs, if the eye-witnesses had not intervened in order to save their own skin they are not to be blamed for that shortcoming. The appellant cannot, therefore, make capital out of the scare created by him for which the eye-witnesses could not deliver goods at the lawful moment. 13. 1n addition, it was submitted by the learned counsel for the appel lant that the medical evidence did not support the ocular account of the occurrence. He pointed out that according to memo: Exh. P. H., by which kassi Exh. P. 7 was taken into possession, the length of its blade was 6 inches. It was stated by the eye-witnesses that the said kassi was used by the appellant as the weapon of offence. Learned counsel for the appellant maintained that the incised wounds on the dead bodies of the deceased were less than 6 inches in the length and therefore, they could not be caused by the kassi in question. As indicated earlier, some of the wounds found on the dead bodies were more than 6 inches long and, therefore, they could be inflicted by the kassi involved in the instant case. Faced with this situation the appellant's counsel invited our attention to the cross-examination of Dr. Muhammad Nazeer Chatha (P. W. 1) during the course of which it was stated by him that dimensions of all the injuries found on the dead bodies were in centimetres but he had inadvertently described them in inches. This explanation speaks of, to say the least, the negligence of the doctor in dealing with the present case. In the post-mortem examination reports, he, while giving dimen sions of certain injuries, did indicate that they were in centimetres but in the case of a large number of injuries there is no indication as to whether their dimensions had been given in inches or in centimetres. There are also glaring variations in his statement before the trial Court and the post-mortem examination reports in respect of Bashir Ahmad and Mst. Reshman. Despite all this, if his statement that the dimensions of the injuries given by him were in centimetres is relied upon, it would not be of much help to the appellant because, more often than not, full blade of a sharp-edged weapon does not strike against the body at the time of the causing of the injuries. It was also conceded by the doctor that some of the injuries on the persons of Bashir Ahmad and Mst Reshman could be caused with a weapon having 6 inches long blade. Therefore, the length of the blade of the kassi and the dimensions of the injuries found on the dead bodies do not justify the rejection of the ocular evidence.

14. There is yet another point canvassed by the learned counsel for the appellant which deserves to be discussed. He submitted that according to the post-mortem examination reports bladders of all the deceased persons were empty. In view of this, it was urged by him that the occurrence had not taken place at about 3-30 a.m. as alleged by the prosecution. The bladders would have been empty by the said time if the deceased had urinated sometime before the occurrence which is not uncommon especially amongst the children. According to the learned counsel for the appellant the incident had taken place during day time but no suggestion in this behalf was made to the eye-witnesses. Needless to say that if the incident had occurred during day time there would have been many more eye-witnesses because as disclosed by Asghar Ali (P. W. 7) during day time there used to be 8 to 10 persons working on the house under construction. We are also not unmindful of the fact that, as explained above the doctor who had conducted autopsy on the dead-bodies had done so without due care and attention. In the circumstances, we are not inclined to allow any concession for the reported emptiness of the bladders.

15. We have considered all the material points raised by the learned counsel for the appellant to challenge the judgment under appeal but all of them are devoid of force. In view of the evidence of motive, the ocular testimony, the medical evidence arid the recoveries made at the spot, we are convinced that it was the appellant who had mercilessly hacked a full family, including two small children, to death. We, therefore, maintain his conviction and also the sentence of death and fine awarded to him.

16. While disposing of this case, the learned Sessions Judge, in disregard of the provisions of section 544-A of the Code of Criminal Procedure, did not award any compensation to the legal heirs of the deceased. We therefore, order that out of the amount of fine, if re covered, a sum of Rs. 8,000 shall be paid to the legal heirs of the deceased by way of compensation.

17. The appeal is dismissed, the death sentence awarded to the appellant is confirmed and the reference of the learned trial Court is disposed of accordingly. Death sentence confirmed.