19771 Cr (PLP)

MUHAMMAD SIDDIQ J‑‑ Abdul Rahman and Abdul Aziz appellants are real brothers, while Nazir Ahmad appellant is the son of Abdul Rehman appellant. Munir Ahmad appellant is the son of Abdul Aziz. Mst. Rani deceased was daughter of Abdul Rehman appellant and sister of Nazir Ahmad appellant. She was married to one Mukhtar Ahmad. Her age at the relevant time was about 16 years. The second deceased in this case was Saeed Ahmad son of complainant Muhammad Zahid P. W. At the time of occurrence he was student of Second Year in Government College, Bahawal nagar. Both the parties were residents of Mauza Massawala situated within the jurisdiction of Police Station Minchinabad. Their houses were also in the same vicinity close to each other. The motive alleged by the prosecution is that the accused party suspected illicit intimacy between Mst. Rani deceased and Saeed Ahmad deceased. On the day of occurrence, namely, 29‑7‑74, at about 10‑30 a. m. Saeed Ahmad deceased was present in the house of his paternal aunt Mst. Sughran Bibi P. W. Her house is also close to that of Abdul Rehman appellant. Abdul Rehman appellant scaled over the wall of the house of said Mst. Sughran‑Bibi P.W. and then unchained the door of the home from' inside. After unchaining the door, Abdul Aziz appellant who was armed with a hatchet, also entered the house. Both the appellants caught hold of Saeed Ahmad deceased and started forcibly taking him towards their own house. Mst. Sughran Bibi P. W., her mother Mst. Sardaran (since dead) and her niece Mst. Shamshad Begum (given up P. W.) were present in the house at that time. These women folk raised alarm and sent Mst. Shamshad Begum (given up P. W) to inform Muhammad Zahid P.W about the incident. Accordingly, Mst. Shamshad Begum went to her house and informed her father complainant Muhammad Zahid P. W. and narrated the incident regarding forcibly taking away of her brother Saeed Ahmad deceased by the two appellants towards their own house. On receipt of this infor mation the complainant rushed towards the house of Abdul Rahman appellant and entered the courtyard. He saw that Nazir Ahmad, Munir Ahmad and Abdul Rahman appellants were joining Saeed Ahmad deceased and then he was tied to a Shisham tree in the courtyard. Abdul Aziz appellant armed with a hatchet was also present there. Mst. Sughran Bibi P. W. and Mst. Sardaran (since dead) were imploring the appellants not to beat Saeed Ahmad deceased. When complainant Muhammad Zahid P. W. tried to rescue his son, Abdul Aziz appellant aimed his hatchet at him and threat ened him with dire consequences. After pushing out all these persons out of the house the appellants bolted the dour of the house from inside. The complainant along with the women folk then went to the house of Allah Ditta, which was adjacent to the house of Abdul Rahman appellant. From over 'the common wall, they saw that Abdul Aziz appellant gave a hatchet blow to Saeed Ahmad deceased. The complainant again raised alarm, which attracted Sardar Shah. Muhammad Zaman P. Ws. and Mst. Shamshad Begum and Mst. Bakhshai (given up P. Ws.) Nazir Ahmad appellant is alleged to have broken open the door of the room and then the appellants took Saeed Ahmad deceased inside that room. Nazir Ahmad appellant at that stage had takers the hatchet from the bands of Abdul Aziz appellant. Mst. Rani deceased who was present in the courtyard was also taken inside that room where both the deceased persons were done to death. Complainant Muhammad Zahid P. W. then went to the police station. At Pattan Chabian he met A. S. I. Nazir Ahmad P. W. who recorded his statement (Exh. P. A.) at 4 p.m on the same day. This statement was sent to Police Station Minchinabad where formal F. I. R. (Bib. P. A/1) was registered at 5.15 p. m. on the same day. A. S. I. Nazir Ahmad P. W. after recording the statement and sending it to the police station himself reached the spot and found the two dead bodies lying in a kotha of the house of Abdul Rehman appellant. He prepared the injury statement (Exh. P. K.) and inquest report (Exh. P. K.) in respect of Saeed Ahmed deceased and injury statement (Exh. P. N.) and inquest report (Exh. P. O.) of Mst. Rani deceased and dispatched the dead bodies to the mortuary for post-mortem examination. He collected the blood-stained earth from near the dead body of Sated Ahmad decades and scaled it into a parcel vide Memo. Exh. P. B. He also took into possession blood-stained earth from near the dead body of Mst. Rani deceased and sealed it into a parcel vide memo. Exh. P. C. He picked up lock (Exh. P. I ) from near the kotha of Abdul Rehman appellant and a broken chain (Eth P.2) of the door. He also secured a wooden plank (Exh. P. 3) of the door of the said kotha. These articles were taken into possession vide memo. Exh. P. D. He picked up a pair of shoes (Exh. 4/1-2) of Saeed Ahmad deceased and chadar (Exh. P. 5) of Abdul Rahman appellant and took these articles into possession vide Memo. Exh. P. E. He arrested Abdul Rahman and Abdul Aziz appellants on the same day. While in police custody, Abdul Rahman appellant produced blood-stained sots (Exh. P. 6) his blood-stained shirt (Exh. P. 7) and chadar (Exh. P. 8) and the same were taken into possession vide Memo Exh. P. F. This police officer then handed over the investigation to S. H. O. Feroze (Qureshi P. W. on 30-7-1974. Nazis Ahmad and Munir Ahmad appellants were produced before him and he arrested them. On the same day Nazir Ahmad appellant while in police custody, got recovered blood-stained hatchet (Exh. P. 10), chadar (Exh. P. 11), shirt (Exh, P. 12) and safa (Exh. P. 13) which were taken into possession vide Memo Exh. P. G. He got prepared the site plan (Exh. P. Q.) from the draftsman. After the completion of the investigations, the police challaned all the four appellants under section 302/34, P. P. C. They were tried by the Sessions Judge. Bahawalnagar, who vide the impugned judgment dated 2-6-76, convicted them under section 302/34, P. P. C. on two counts and sentenced Nazir Ahmad and Munir Ahmad appellants to death each on two counts subject to confirmation by this Court, while Abdul Rahman and Abdul Aziz appellants were sentenced to life imprisonment each on each count. Each of the four appellants was also sentenced to pay a fine of Rs. 2,000 on each count. In default of payment of the fine each of the appellants was ordered to undergo further rigorous imprisonment for a period of two years on each count. The sentence of imprisonment in case of Abdul Rahman and Abdul Aziz appellants ware ordered to flan concurrently. The sentences of imprisonment in default of payment of fine in case of Nazir Ahmad and Munir Ahmad appellants were ordered to rain concurrently if the sentence of death was not confirmed. All the four appellants have challenged their conviction and sentences through Criminal Appeal No. 662 of 1976. The case is also before us under section 374, Cr. P. C. for confirmation of the sentence of death awarded to Nazir Ahmed and Munir Ahmad appellants by the trial Court. Complainant Muhammad Zahid P. W. has filed Criminal Revision No. 66 of 1976 praying that the sentence awarded to Abdur Rahman any Abdul Aziz appellants may graciously be enhanced. This revision petition was ordered to be heard along with the present appeal. This judgment will dispose of Criminal Appeal, the Murder Reference and the Criminal Revision.

2. Dr. Muhammad Rafique Zafar oh 30-7-74 conducted the post-mortem examination on the dead body of Sated Ahmad and found toe following injuries on it: (1) Incised wound 6 x 2 x bone cut completely oblique in direction. on the right side rind posterior surface of the neck starting from just below the angle of tight mandible and extending backwards towards the posterior surface of the neck. (2) Incised wound 4 " x 3/4" x bone cut on the posterior surface of the head about 1" above and behind the right ear. (3) Two incised wounds 2" x 1/3" and 1 " x 1/3" x muscle deep on the right side of the back about 2" below and behind the right ear. (4) Incised wound 1" x " x skin deep on the right side of the head about 3" above and behind the right ear. (5) Incised wound If 1 " x 1/3" x skin deep on the posterior surface of the neck about 3" below and behind the left ear, transverse in direction, (6) Incised wound 3/4" x " x skin deep on the palmer surface of the proximal inter pharyngeal joint of left ring finger. (7) Two incised wounds 3/4" x " and " x " x Ain deep on the palmer surface of the middle phalynx of left index finger and middle ringer respectively. (8) Incised wound 1 " x 1/8" x skin deep, transverse in direction on the front of left forearm about in the middle. (9) Incised wound 1" x 1/3" x muscle deep longitudinal in direction on the posterior surface of the loft elbow joint. (10) Incised wound 1 " x " x skin deep on the outer aspect of left hip‑joint. (11) Incised wound " x " x skin deep, transverse indirection on the palmer surface of the middle photynx of right little finger. (12) Two incised wounds " x 1/8" each x skin deep on the palmer surface of the proximal phalynx of right ring and middle fingers respectively. (13) Incised wound " x " x skin deep on ‑the dorsal surface of the middle phalynx of right index finger. (14) Incised wound 1 " x " x skin-deep on the front of the abdomen about 1" lateral to the umbilicus. (15) Punctured wound " x " x 1 " on the back of the left chest about 4 " below the inferior angle left scupula. (16) Lacerated wound 1" x " x skin deep on the outer aspect of right eye‑brow. (17) Lacerated wound 1 " x " x scalp deep on the right side of the forehead about l " above the right eye‑brow. (18) Lacerated wound 2" x 1/3" x scalp deep on the left side of the head about 3 " above and front of left‑car. (19) Lacerate wound 1" x " x skin doe a on the left side of the head about 4 " above the left ear. (20) Lacerated wound 3/4" x 1/4" x skin deep on the posterior surface of the head about 4" above and behind the left ear. (21) Lacerated wound " x " x skin deep on the left side of the head about if above and behind the left ear. (22) Contusion mark 3" x 1 " with lacerated wound 1/3" x 1/8" x skin deep over the left check, just below this lower eye‑lid of left eye. (23) Contusion mark 2" x 1 " x over the right upper and lower eye‑lids and over the right cheek just below the lower eye‑lie of right eye. (24) Contusion mark 1 " x 1" over the bridge of the nose, just below the root of the nose, with fracture of nasal nose. (25) Contusion mark 1" x 3/4" on the dorsal surface on the ‑ middle phalynx of I.‑ft little finger. (26) Two contusion marks 4" x 1" and 3 " x 1" on the outer aspect of left upper arm about 3f above the left elbow joint. (27) Contusion mark 5" x 2" over the right scapular region and also posterior surface of the right shoulder joint. (28) Contusion mark 2 " x 1" on the posterior surface of right upper arm about 1 " above Vie right elbow‑joint. (29) Contusion mark 1 " x 3/4" over the right side of upper lip. In the opinion of the doctor the cause of death was severe haemorrhage and shock duo to injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 14 were caused by a sharp- edged weapon, while injury No. 15 was caused by a sharp pointed weapon and injuries Nos. 16 to 29 were caused by a blunt weapon. Probable time between injuries and death was instantaneous. While between death and post- mortem examination it was 24 hours.

3. The same doctor on the same day at 11‑15 a. m. conducted the post- mortem examination on the dead body of Me. Rant and found the following injuries on it :‑ (1) Incised wound 3" x 3/4" x bone cut on the head about 3" above and behind the left ear, oblique in direction. (2) Incised wound 2 " x 3/4" x bone cut over the lower part of the left pinna and over the left side of the face. (3) Incised wound 5" x 3" bone x cut completely, oblique in direction on the left side, and posterior surface of tine neck about " below the left ear. (4) Incised wound 3/4" x 3/4" x muscle deep on the posterior surface of the neck about 3/4" below the injury No. 3 oblique in direction. (5) Incised wound 2 " x 3/4" x muscle deep transverse in direction over the left scapular region. (6) Incised wound 1 " x 1/3" x muscle deep on the front of the left side of the neck just above the medial end of left clavicle. (7) Incised wound 3 " x 1/16" x superficial akin deep on the front of the right chest, just below the medial end of right clavicle. (8) Incised wound " x " x skin-deep on the dorsal surface of the proximal phalynx of right little finger. (9) Incised wound 1" x " x skin-deep on the palmer surface of the middle and dorsal phalynx of right finger. (10) Incised wound " x " x skin deep on the dorsal surface of the proximal phalynx of right ring finger. (11) Incised wound " x " x se skin deep on the dorsal surface of the middle phalynx of right middle finger. (12) Incised wound 31' x 1/8' x skin deep on the posterior surface of' left thigh about 9˝ above the left knee joint. (13) Two incised wounds 2 ˝ x 1/16˝ x skin deep and 3˝ x 1/16˝ x skin deep on the back of the left side of the chest, just below and' medial to interior angle of left scapula. (14) Contusion mark 2˝ x 1˝ over the top of left shoulder‑joint. (15) Contusion mark 1 ˝ x ˝ over the right cheek. (16) Contusion mark 3 ˝ x 1˝ on the outer aspect of left thigh about on the upper half. In the opinion of the doctor the cause‑ of dead was severe haemorrhage and shock duo to injury No. 3 which was sufficient to cause death in tae, ordinary course of nature. Injuries Nos a sharp edged weapon caused me to 13 while a blunt weapon caused injuries Nos. 14 to

16. Probable time between injuries and death was instantaneous, while between death and post‑mortem examination, it was 24 hours.

4. The appellants when examined under section 342, Cr. P. C. denied the prosecution allegations. Nazir Ahmad appellant in his statement before the Committing Magistrate v; hen asked the following questions, stated as under :‑ "Q. No. 5.‑‑Is it correct that on 30‑7‑74 at the time of your arrest you got recovered chadar P. 11; shirt P. 12, Sofa P. 13. all blood‑stained and then, a hatchet P. 10, this also blood‑stained and all t1se articled belong to you. Ans.‑Correct. Q. No. 6.‑Why this case against you ? Ans. On the day of occurrence when I reached home. I saw Rani anal Saeed commit adultery; I was suddenly and gravely provoked over the situation. I picked up a hatchet from the same kotha and murd ered both of the accused. Just after the occurrence Bakhshai, Abdul Haq, Qutaaba P. Ws. come they re who I narrated the whole story. None of the other accused was at the spot" Before the trial Court when asked why this case was male against hire, lie stated as under: ‑ "The prosecution version of the occurrence is incorrect. The true facts are that on the day of occurrence at about 10‑00/11‑00 a.m. my sister Rani deceased eras all alone in our house who was putting up with because her husband was minor and the other family members were out in. the Fields. I came to my house per chance when I saw the door of the room of my house bolted from inside. I peeped through the door and saw Mst. Rani and Saeed Ahmad in compromising position on arse and the same cot. I lost my control and picked up a hatchet from the courtyard of toy house. I broke open the door and killed both the deceased person inside the room under grave and sudden provocation. My co‑accused were root present at the spot. After killing the deceased persons T thyself reputed the matter to the police. The police in collusion with the complainant fabricated tile facts and registered a false case against my co‑accused and myself. 1 bad thrown the hatchet at the spot after killing the deceased persons." Munir Ahmad, Abdul Rehman and Abdul Aziz appellants in their statements before the trial Court staged that they were falsely implicated due to enmity with P. Ws. and relationship with co-accused Nazir Armed who had killed the deceased persons under grave and sudden provocation. They further stated that they were present (sic) on the spot at the relevant time. They, however, admitted their relationship inter se and that of Mst. Rani deceased. The appellants, however, produced no evidence in defence. 5. in support of its case, the prosecution produced four eye‑witnesses, namely, Muhammad Zahid LP. W. 6), Mst. Sughran Bibi (p. W. 7). Sardar Shah (P. W. 8) and, Muhammad Zaman (P. W. 9). T‑‑.e prosecution also relied upon the recoveries, the motive and the medical evidence. The trial Court believed the prosecution evidence and convicted and sentenced the appellants as mentioned above.

6. As mentioned above, Nazir Ahmad appellant has admitted the killing of the two deceased persons but has given his own version, while the remaining three appellants have totally denied the charge and lave de led even their presence on the spot. There are, therefore, two versions of the same occurrence one given by the prosecution and the other suggested by Nazir Ahmad appellant. In this situating, we have to examine whether the prosecution leas establish the guilt of the appellants beyond doubt an::; whether the plea taken up by Nazir Ahmad appellant is probable and bale- able. Mst. Sughran Bibi P. W supports the first part of the prosecution story. According to her, on the day of occurrence Saeed Ahmad deceased was present in their house and she had served him with meal. Abdul Rehman appellant entered the courtyard after scaling over the wall of her house. He then unchained the door of her house from inside. Abdul Aziz appellant who was armed with a. hatchet, they entered her house. Both Abdul Rehman and Abdul Aziz appellants caught hold of Saeed Ahead deceased and forcibly took him towards their own house. Mst. Sughran P. W., her mother Mst. Sardaran (since dean) and Mst. Shamshad Begum a minor daughter of complainant Muhammad Zahid P. W. raised alarm, Mst. Shamshad Begum (given up P. W.) was sent by Mst. Sughran P. W. to inform her father Muhammad Zahid (P. W.). Mst. Sughran P. W. and her mother (since dead) followed Abdul Rehman, and Abdul Aziz appellants and kept on shouting Saeed Ahmad decease was taken into the house of Abdul Rehman appellant where Nazir Ahmad and Munir Ahmad appellants were already present. According to Mst. Sughran Bibi, she and her mother were asking the accused persons not to beat Saeed Ahmad deceased, In the meantime, complainant Muhammad Zahid P. W. also reached the sprat. Abdul Aziz appellant then pushed Mst. Sughran Bibi. P. W. and her mother Mst. Sardaran (since dead) out of the Haveli and bolted the door from inside. She and her mother kept raising alarm, but she does not claim to have seers anything after this. The main attack of Mr M. Anwar, the learned defence counsel, against bee statement is that she is contradicted by the medical evidence regarding last meal taken by Saeed Ahmad deceased in her house and that no marks dragging were found on the person of Saeed Ahmad deceased by the doctor. It is further argued that the Investigating Officer did not see any marks scaling over the wall by Abdul Rahman appellant. We do not attach much importance to the absence of dragging marks, because no witness had stated that the deceased had fallen down and the two appellants while lying on the ground dragged lie. If a person is dragged forcibly while lying out the around, he will definitely re‑give some scratches or abrasions, but if a person is forcibly taken while standing, it is not necessary that lie shoat receive dragging marks on his person. Since Mst. Sughran Bibi, P. W. has not stated that Saeed Ahmad deceased had fallen down and was then dragged by the two appellants, her statement is not therefore, contradicted by the medical evidence on this point. It seems that the deceased was taken into Japha and forcibly taken by the two appellants towards the house of Abdul Rahman appellant. Thus, the absence of dragging marks on the dead body of Steed Ahmad does not conflict with the medical evidence. The other argument of the learned defence counsel is that according to Mst. Sughran Bibi P. W. Sneed Ahmad deceased had taken his last meal shortly before his death, while the doctor found six ounces of digested food in the stomach and the large intestine containing faeces. According to the learned defence counsel, the doctor's evidence goes against the statement of this witness. We have given our anxious thought to this argument, but find no force in it. No doubt, Mst. Sughran Bibi P. W. had stated in cross‑examination that Abdul Rahman appellant had entered her courtyard about ten minutes after Saeed Ahmad deceased had taken the meal in her house, but the estimate of time given by her cannot be the same as understood by literate persons in the cities. She is an illiterate rustic village woman and her guess about the tithe cannot he the same as stated by her and understood by civilized persona. About the duration of occurrence also the witnesses have given different estimate of time some have said half a boor, while the others about one hour. Reliance in this behalf can safely be placed upon the following observation made by their Lordships of the Supreme Court in Gul Sher's case (1968 S C M R 756): - "It seems to me that this argument: was based on the statements of the witnesses that the occurrence took place at about 1-00 a.m. These village folk, especially women witnesses, gave the time not by watch but by mere guess and hence much would rot turn on such statements." Further, we find that there is nothing on the record to show the exact nature of food taken by Saeed Ahmad deceased. The State Counsel suggests that the deceased being a college student, may have been offered biscuits or some such like light food by her aunt Mst. Sughran Bibi P. W. No question was cut to her in cross‑examination as to the exact kind of food taken by the deceased in her house. Further, also it is not denied that digestion works differently with different people. The possibility that the process of digestion continued even after the death also cannot be ruled out. The Doctor was not property cross‑examined on this point. In the circumstances of the case, we attach no importance to this argument advanced on behalf of the defence. After going through her statement and keeping in view the situation of her house, being close to the places of occurrence, Mst. Sughran Bibi P. W. seems to be a natural witness as the occurrence started from her house. It may be observed that she has clearly admitted in her statement that the accused versions had not murdered Saeed Ahmad deceased within her view. This shows that she did not try to make a false statement to depose regarding the actual killing of the two deceased persons. She had not enmity to falsely depose against the appellants. If the occurrence had not started from her house, the prosecution could not fabricate this story by introducing a woman witness who is considered to be weak evidence sad whose testimony can easily be shaken through cross‑examination by the defence. We find that Mst. Sughran Bibi P. W. has been rightly believed by the trial Court. We also endorse that view. 7 The section part of file prosecution version relaxes to the pinioning and tying of Saeed Ahmad deceased to a tree and giving him beating in the courtyard of Abdul Rahman appellant. The eye‑witness claim to cave witnessed this part of the case from over the wall of one Allah Ditta which is common with Abdul Rahman appellant. In the sire plan Exh. P. Q. this place is shown at Point No.

2. At that time, Muhammad Zahid P. W. was also accompanied by Sardar Shah and Mohammad Zaman P. Ws. According to the learned defence counsel, if these witnesses really had been there, then they could not remain as mere spectators but would have taken some steps to save Saeed Ahmad deceased from the clutches of the appellants. No doubt, Mohammad Zahid complainant is the father of the deceased while Sardar Shah is husband of Mst Sughran Bibi P. W. who is real sister of Muhammad Zahid P. W. and Muhammad Zaman P. W. is also related to the complainant being nephew of the father‑in‑law of the complainant, but they may be persons of weak nerves or coward and, therefore, did not dare to go near the appellants and may be afraid of receiving injuries themselves. Moreover, as observed by their Lordships of the Supreme Court in Nura's case (1971 S C M R 213) all persons do not have the heart to risk their own safety in such situations. Further, after chaining the outer door it was not quite easy to reach the courtyard of Abdul Rahman appellant. They may also have thought that the deceased would not be killed but array be given a thrashing only to teach him a lesson to behave in future. It is also argued by the learned defence counsel that no blood was found by the Investigating Officer from the courtyard, although the appellants are alleged to have given some blows to the deceased while pinioning and tying him to a Shisham tree. Similarly, no marks of dragging were witnessed by the Investigating Officer. Again we do not attach much importance to the omission of these things as it is not clear how the deceased was dragged whether he was lying flat on the ground or was just forcibly taken while standing. Similarly, the blood coming out of the injuries at that stage may have been absorbed by the clothes of the deceased. Same is the position of Mo. Rani deceased. The prosecution could not introduce these things unless Saved Ahmad deceased was actually pinioned and tied to the tree, because by doing so, the prosecution was exposing this part of their story to be witnessed by other people. The time and place of occurrence are not disputed by the defence. The occurrence, therefore, could not remain un witnessed.

8. As regards the actual killing of the two deceased parsons inside the kotha, it is vehemently argued by Mr. M. Anwar that the eye‑witnesses could not see as to who inflicted which injury and to whom. Since the occurrence took place in broad daylight at about 10-30 a. m. and the witnesses were on a higher level being on the wall of the courtyard of the place of occurrence, there was nothing in‑between them and the place of occurrence to obstruct theca from seeing the occurrence. The distance between these two places is also a short one. An ordinary person from such a distance at such a height at that hour ox the day, could easily see what was inside the kotha having its door open. Thus, we have reached the conclusion that the trial Court has rightly accepted the version of the eye‑witnesses regarding the actual occurrence. Sardar Shah P. W. is the husband of Mst. Sughran Bibi P. W. According to him he had gone out to ease himself when Saeed Ahmad deceased was forcibly taken from the courtyard of his house by Abdul Rahman and Abdul Aziz appellants. On his return, on hearing alarm coaxing from the hour of Abdul Rahman appellant, by rushed in that direc tion and saw that his wife Mst. Sughran Bibi P. W., his mother‑in‑law Mst. Sardaran (since dead), Shamahad Begum (given up P. W.) and complainant Muhammad Zahid P. W. were raising alarm outside the house of Abdul Rehman appellant. At that time the door of the house of Abdul Rahman appellant was open. He claims to have been the pinioning and tying ns Saeed Ahmad deceased. in the courtyard of Abdul Rahman appellant. After chaining the door of the house of Abdul Rahman appellant, he followed complainant Muhammad Zahid P. W. to the wall of Allah Ditta from where he saw the remaining occurrence. The statement of this witness i9 not seriously challenged by the defence. His house is Adjacent to the place of occurrence. If the prosecution wanted to improve its case, he could be easily made the witness of the earlier part of the occurrence‑as well. His mere relationship with the complainant is neat sufficient to discard his testimony, as he had no enmity or, motive to falsely involve the appellant. Same is the position of Muhammad Zaman P. W. who though distantly. related to the complainant, had no enmity against the appellants. Ho is the resident of a different village situated at a distance of about two miles from the place of occurrence: He had come to village Mausamwala to recover some money fro one Zulfiqar. He has supported the prosecution story as on hearing the alarm he wag attracted to the spot and then saw the whole occurrence with other eye‑witnesses. The defence has not been able to shake his veracity in cross‑examination. The trial Court after discussing their statements in detail has rightly believed him and Sardar Shah P. W. After minutely scrutinising the statements of the eye‑witnesses, we have reached the conclusion that they have beers rightly believed by the trial Court. Some minor discrepancies and contradictions in their statements are not sufficient to discard their testimony.

9. It is argued by the learned defence counsel that the occurrence having taken place in broad daylight in the heart of the village, many other persons trust have been attracted to the spot and, therefore, the prosecution should have produced some independent witnesses in this case. No doubt some people from the adjoining houses must leave been attracted to the spot, but nowadays the tendency of the so‑called independent witnesses is not to appear as witnesses in murder cases as by doing so, they are considered to be partisans in future.

10. According to the learned defence counsel, the recoveries. should not be believed in this case. Blood‑stained sota (Exh. P. b), shirt (Exh. P. 7) and chadar (Exh. P. 8) were recovered ,at the instance of Abdul Rahman appellant and the same were taken into :possession ride Memo Exh. P. F. dated 29‑7‑74 attested by Muhammad Zamaa (P. W. U) and A. S. I. Naair Ahmad (P. W. 10;. We have already believed Muhammad Zaman as eye witness. The police officer bad no enmity to plant these recoveries. Chadar (Exh. P. 5) which was taken into possession alongwith the pair of shoes of Speed Ahmad deceased, also belonged to Abdul Rahman appellant. After killing the two deceased persons, the dead bodies were covered with this chadar. The learned defence counsel has tried to argue that this chador belonged to Speed Ahmad deceased and, therefore, he was found naked at the time of occurrence. This is, however, actually incorrect. In the recovery Memo. (Exh. P. E.) itself it is specifically mentioned that this chadar (Exh. P. 51 was of Abdul Rahman appellant Muhammad Zaman P. W. in his statement has clearly stated that chadar (Exh. P. 5) belonged to Abdul Rahman appellant. To the same effect is the statement of A. S. I. Nazir Ahmad P.W. from Nazir Ahmad appellant blood‑stained hatchets (Exh. P. 10) (Exh. P. 11), shirt (Exh. P. 12) and sofa (Exh. P. 13) were recovered and taken into, possession vide, memo. Exh. P. G. attested by Sardar Shah and Muhammad Zaman P. Ws. in addition to the Investigating Officer. Regarding. the recovery of hatchet (Exh. P. 10) it is argued by Mr. M Anwar, the learned defence counsel, that it is fabricated one, as on 31‑7‑1974 while asking for further, remand from the Magistrate, the Investigating Officer mentioned in the application that the weapon of offence was yet to be recovered from the accuser. , No doubt, it is so mentioned in Exh. D.. C. but this may be done so by the Naib‑court or some other subordinate official in routine as is generally done by these people. In the presence of positive and direct evidence of three witnesses, the mention of this fact in the said application does not disprove the recovery of this hatchet, especially when the recovery of other articles alongwith the weapon of offence is not disputed. We have already believed Sardar Shah and Muhammad Zaman P. W. as eye witnesses. We have no reason to disbelieve them as recovery witnesses. After going through their statements and of the Investigating Officer we find that the recoveries have been rightly believed by the trial Court.

11. The learned counsel has also argued that the trial Court was not justified to use the medical evidence as corroboration. According to him, the medical evidence rather belies the ocular testimony as the doctor who performed the post‑mortem examined on the dead body of Mst. Rata took vaginal swabs which were sent to the Chemical Examiner who found the same stained with semen. We arc unable to agree with the defence counsel. Mst. Rant was admittedly a married girl. The doctor has stated that semen sperms can be detected in the vagina up to about one week. On the basis of this it is contended by the State Counsel that she may have had sexual intercourse with her husband prior to the occurrence. In reply, Mr. M. Anwar, the learned defence counsel, argues that her husband at the relevant time was of tender age and not capable of producing semen sperms. There b no material on the record to show the exact age of her husband and his capability of committing sexual intercourse or produce semen sperms. The appellants in their statements under section 342, Cr. P. C. have stated that the husband of Mst. Rant was a minor. However, no evidence was produced to substantiate this fact. Even in question was put to the witnesses in cross‑examination on this point. However, at the conclusion of the arguments. Mr. M. Anwar, the learned defence counsel, submitted air application on 24‑1‑1977 praying that medical certificate be allowed to be placed on the record. The said medical certificate is also attached with the application. According to this certificate, the Medical Superintendent, District Headquarters Hospital, Bahawalnagar had examined Mukhtar Ahmad, son of Abdul Karim, resident of Mauaa Musamwala on 1‑3‑1975 and in the opinion of the doctor his age was 13/14 years. Tae certificate is completely silent about the capability of said Mukhtar Ahmad to produce semen. This application is vehemently opposed by the State Counsel. This certificate has to tae proved in a legal manner. Said Mukhtar Ahmad has not been examined as a witness in this case. Moreover, mere age is not sufficient, because it is not denied even by the learned defend counsel that in this age even a boy of 13/14 years can be capable of performing sexual act. There is force in the objection and being placed at very late stage this certificate does not advance the case of the defence on this point. Accordingly, we are. not inclined to allow this certificate to be placed on the record, The mere fact that vaginal swabs of Mst. Rani deceased were found stained with semen, does not adversely affect the prosecution case which otherwise stands established. It is net denies that if semen could be on the vaginal swabs, then in ordinary circumstances it should also have been found on the other parts of the body of Mst. Rant deceased like pubic hair, thigh etc. Further in case of fresh intercourse semen should also have been present on the male organ of Speed Ahmad deceased or otherwise it should have, been found greasy. No such thing was found or observed by the doctor while performing the post‑mortem examination.

12. The prosecution has also relied upon the motive in this case. As mentioned in the F. I. R. the alleged motive is that the appellants were suspecting Mst. Rant deceased illicit intimacy with Screed Ahmad deceased. Even the defence admits this intimacy. Even otherwise it has been proved by the prosecution and not doubted by the defence and also no question was put to any of the witnesses on this point. We find that the motive has been fully established against the appellants.

13. Now we take up the defence version. As mentioned above, Nazir Ahmad appellant in his statement under section 342, Cr. P. C. has stated that on the day of occurrence at about 10/11 a. m. his sister Mst. Rant. Deceased was all alone in their house whore she was at that time staying as her husband was a minor and the other family members had gone out in the fields. This appellant per chance canoe to his house and found the door of the room bolted from inside. He peeped through tie door and saw Mst. Rani and Screed Ahmad deceased in compromising position on one and the same cot. He lost his control and picked up a hatchet from the courtyard of his house and after breaking upon the door-killed boar the deceased persons inside the room under grave and sudden provocation. He has further stated that the other appellants were not present on the spot. After killing the deceased persons he himself reported the matter to the police, but the police in collusion with the complainant party fabricated the facts and registered a false case against him and his co‑accused. He had thrown the hatchet at the spot after killing the decease) persons. Tile other three appellants supported this version and stated that they ware fatherly implicated due to their relationship with Nazir Ahmad appellant. No evidence was led in support of this version. We have considered this version with dare, but are unable to accept the same. The defence version has also been rightly rejected by the trial Court. We are conscious of the fact that the defence is not required to prove this version to the same extent as the prosecution has to prove its version and the defence has only to show that it may be probable or believable. It is not denied even by the learned defence counsel that the injuries found on the dead bodies were caused by more than one weapon, as some injuries are by a sharp‑edged weapon and others b f a blunt weapon. According to the doctor, a sharp‑pointed weapon caused injury No. 15 found on the dead body of Saeed Ahmad. This, according to the medical evidence, three kinds of weapons were used 'so cause injuries to the deceased persons. We are quite clear in our mind that a hatchet as stated by Nazir Ahmad appellant could not cause the injuries found on the two dead bodies. The defence counsel has tried to argue that this appellant may have used both sides of the hatchet, namely, the sharp as well as the blunt Aide and injury No. 15 of Screed Ahmad deceased may have been caused by the edge of the said hatchet. We do not agree with him. The size of some of the blunt weapon injuries is so large that they could not possibly he caused with the blunt side of the hatchet. It is nobody's case what this appellant used the handle of the hatchet like a sota. Thus, the medical evidence belies tile defence plea. Moreover. it was not possible for Nazir Ahmad appellant alone to caution as many as 45 injuries to both the decease persons. Another circumstances, which goes against the defence, is that coming of Nasir Ahmed appellant in the house could be known or at least would have alerted the two deceased persons, as the main gate of the house of Abdul Rahman appellant is situated close to the kotha whore the occurrence took Place. If after entering through the gate arid coming to the courtyard Nazir Ahmad appellant peeped through the door and then after picking up a hatchet from the courtyard broke open the door, this process must have taken so a time and during this period it cannot be believed that Mst. Rant and Saeed Ahmad deceased would not got up and put on their shalwar and loin‑cloth, respectively, aid would not try to escape. In such a situation, the two deceased persons must be very vigilant and even the slightest indication of anybody's entering the house must have alerted them and then as ordinary human, beings they country to run away or conceal, their action. The doctor, who performed the post‑mortem examination on the dead body of Mst. Rant, found her shalwar with untied and loose azar band. It is a question of common sense that, when Nazir Ahmad appellant broke open the door, she could not remain lying on the coot and must have got up without wasting any time and the first thing she roust have done was to tic her azarband. It is understandable how her shalwar could remain untied with loose azarband. She must. Have stood up and ire that position either the shalwar mast fall on the ground or must; be around, her waist. In a standing position, her shalwar and azarband could not remain in that position as alleged by the defence. If Mst. Rant deceased was suspected of this illicit liaison with Saeed Ahmad deceased by her parents and relatives, then she could not be left along in the: house, especially when her paramour was available in the village. We have already dealt with the, blood‑stained chadar (Exh. P. 5) which according to defence was of Saeed Ahmad deceased who hail removed it before indulging in sexual intercourse while according to the prosecution, this belonged to Abdul Rahman appellant who after committing the murders had covered the dead bodies with it. Similarly, the staining of vaginal swabs of Mst. Rant deceased has been dealt with earlier. Another circumstance which goes against the defence, is that, if Nazir Ahmad appellant alone, had entered the kotha, the two, deceased had some time at their disposal to make soma attempt to escape and run away. This appellant wad armed only with a hatchet and, therefore, he could not simultaneously disable both the deceased persons at one and the same time. When he tried to inflict blow to one deceased, the other could easily run away. Even after receiving rune blows the deceased could try to escape and at least could come out of the kotha. Both the deceased persons were stout, youths and could easily try to ward off the attack of, this appellant. The deceased and this appellant are practically of the same age. The learned defence counsel has tried to argue that on seeing Nazir Ahmad appellant, both the deceased persons should have surrendered themselves, as they may have felt that they, had morally committed a sin and, therefore, could not show their face to the people. We are unable to accept this argument. Human instinct, as it is they must have tried to escape in order to save their lives, after considering the various aspects of the defence version, we find that the trial Court has rightly rejected the same and we also endorse that view.

14. After hearing the arguments of the counsel for the parties at length and going through the entire material available on the record; we have reached the conclusion that‑the prosecution has established its case beyond any shadow, of doubt. Now we consider the nature of offence committed by the appellants. It is an admitted fact that Abdul Rahman and Abdul Aziz appellants, are of advance age. The learned Sessions Judge in his judgment has given the age of Abdul Aziz appellant as 85 years and that of Abdul Rahman appellant as 80 years. These ages seem to be wrong. During the pendency of this appeal, these, two appellants had applied for bail on the ground of infirmity and old age. A Board of three eminent doctors of B. V. Hospital, Bahawalpur examined them. In the opinion of the Board, both these appellants were not infirm and their approximate ages are given between 60 and 70 years. The role attributed to these two appellants is that they after entering the courtyard of Asst. Sughran Bibi P. W. caught hold of Saeed Ahmad deceased and took him forcibly towards their own house. During this process the deceased was also given beating. When their took the deceased in their courtyard, there he was pinioned and tied to a tree. Abdul Aziz appellant is also alleged to have given blows with hatchet to Saeed Ahmad deceased in the courtyard before Nazir Ahead and Munir Ahead appellants ultimately dragged him towards the kotha where he was done to death along with Mst. Rani deceased. During the actual killing, the part attributed to these elderly appellants is that they were exerting the other, two appellants to kill the deceased persons. The result is that so far as the actual killing of Saeed Ahmad and Mst. Rani is concerned, only Nazir Ahmad and Munir Ahmad appellants caused injuries to them resulting in their instantaneous death. We are not prepared to believe that these elderly appellants were raising lalkaras at the time when the two deceased persons were being gilled inside the kotha. Such verbal lalkaras are generally attributed to elderly people who otherwise could not be expected to participate in the actual commission of murder. Even the learned State Counsel that there is no evidence on the record to show that all the four appellants had conspired or preplanned the killing of the two deceased persons does not deny it. The learned State Counsel, however, argues that from the circumstances of the case, it can be inferred that the whole affair was. Prearranged. However, the prosecution has not placed any material oat the record on this aspect of the case. It seems that initially the object of Abdul Aziz and Abdul Rahman appellants was only to bring Sneed Ahead deceased to their courtyard and after pinioning and tying him to a tree to show to the village people that they had vindicated the honour of their family. Up to that stage, the object of these two elderly appellants may be to give a good thrashing to Sneed Ahead deceased and disgrace him publicly by tying him to a tree in the open courtyard. It is not denied that the object of such tying in such a situation could be to publicly disgrace the family of this deceased. This is generally the tendency of this class of people living in the village. Keeping in view their advance ages and the fact that they did not mike any contribution in the actual killing of the two deceased persons, it can safely be inferred that Abdul Rehman and Abdul Aziz appellants did not share the common intention with Nazir Ahead and Munir Ahead appellants who actually caused the deaths. It is possible that at the time of pinioning and tying Sneed Ahmad deceased to the tree in the courtyard, these two young appellants may have lost their control and decided to finish both the deceased persons. It is not denied that the passions of such youths in such a situation generally rise very high and such people without the consent and approval of ~ their elders, take drastic steps. Nazir Ahead and Munir Ahead appellants therefore, may have independently acted and killed the two deceased persons and the other two appellants may not know that two murders would be committed. Another circumstance, which sup ports oar inference, is that during the earlier part of the incident Mst. Rani deceased remained at large and moving about in the courtyard. If it had been a prearranged affair. Then she could be previously secured or confined in a safe place, because the possibility of her escaping and running away from the house when Saeed Ahead deceased was dragged towards the kotha after breaking open the lock of the door, could not be ruled out. In this view of the matter. Abdul Aziz and Abdul Rahman appellants could not be" held guilty under section 302/34, P. P. C. for the murders of the two deceased persons. They are, however, responsible for giving beating to Sneed Ahead deceased, while dragging him towards their courtyard. They are therefore, liable under section 323/34, P. P. C. Abdul Aziz appellant is also guilty for causing hatchet hlows to Sneed Ahead deceased in the courtyard and that offence falls under section 324, P. P. C. Accordingly while acquitting Abdul Aziz and Abdul Rehman appellants under section, 302/34, P. P. C. for the murders of Sneed Ahead and Mst. Rani we convict them under section 323/34, P. p. C: and sentence each of then to the period of imprisonment already undergone by them. Abdul Aziz appellant is further convicted under section 324, P. P. C. and sentenced to the period of imprison ment already undergone by him. Both his. Sentences are ordered to run concurrently. They shall be released forthwith if not required in connection with any other case:

15. As regards Nazir Ahead and Munir Ahead appellants, we have already held above that the prosecution has established its case against them and that the defence version is not believable. They have been rightly convicted by the trial Court under section 302/34, P. P. C. for the murders of Steed Ahead acid Mst. Rani. We also maintain their conviction on two counts. According to the learned defence counsel the motive alleged by the prosecution that Saeed Ahead deceased had illicit intimacy with Mst. Rani deceased, sister of Nazir Ahmad appellant anal first cousin of Mania Ahead appellant, is a valid mitigating circumstance to award lesser penalty. He has cited some authorities also to justify lesser sentence. On the other hand, it is vehemently argued by the learned counsel for the State as well as the counsel for the complainant that a mere suspicion of illicit intimacy ii not sufficient to award lesser penalty. They have also relied upon certain rulings. We have given our anxious thought to the question of sentence and are inclined to agree with the learned defence counsel. 1t is an admitted fact that earlier there was no enmity whatever between the appellants and the family of Saeed Ahead deceased. The counsel for the State and the complainant have not been able to point out material from the record to show that apart from the alleged intimacy, there could possible, be any other cause to commit the murder of Sneed Ahead deceased. It is not denied that the only cause for his. Murder is his alleged illicit intimacy with Mst. Rani deceased. It may be a mere suspicion for others, but the accused party may lave believed it to be true Another most important circumstance in this behalf is the killing of Mst. Rani deceased who was closely related to the appellant, being the real star of Nazir Ahmad appellant and real daughter of Abdul Rahman appellant. They neither could nor kill their own daughter or sister unless they believed that she was really involved in this illicit affair. In the absence of any other motive or enmity it can safely be inferred that they killed her only because of this illicit liaison. In these circumstances, to have to judge whether the appellants took this fact as a mere suspicious or as a reality. After considering the facts and circumstances of the ease and keeping in view the social conditions of our society, especially in the rural areas we feel that the motive alleged by the prosecution regarding illicit intimacy of Saeed Ahmad deceased with Mst. Rani deceased, is a valid miti gating circumstance to justify lesser penalty. Accordingly, while maintaining their convictions under section 302/34, P. P. C. on two counts for the murders of Saeed Ahmad and Mst. Rani, we alter the sentence of death of Nazir Ahmad and Munir Ahead appellants to life imprisonment on each count. Both the sentences shall run concurrently. These sentences of fine, however, are maintained. Both are sentenced to life imprisonment on each count.

16. This appeal stands di3posed of in the above terms.

17. On the view we have taken above, Criminal Revision No. 66 of 1976 has got no force and is dismissed. Order according.