2017 Y L R 1987
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
ABU BAKAR SIDDIQUE ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 149 and Criminal Revision No. 29 of 2014, decided on 30th June, 2016.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 338---Qatl -i-amd, isqat -i-hamal ---Appreciation of evidence ---Accused/husband
of the deceased was alleged to have murdered his wife--- Accused had introduced defence plea
that on the relevant day, unknown persons had launched an attack upon his house, while he was
asleep upstairs along with his son---At midnight he heard hue and cry on which he came downstairs and had seen that a muffled face person having something like iron clip in his hand was standing, while hi s wife was lying on the floor in injured condition--- Accused indulged into
scuffle with the said person, meanwhile his other companion appeared and both of them pushed him and fled away ---Accused rushed to the guard room and asked the guards to help him out and
he immediately took his wife to the doctor, told her the whole story, who after examining his
wife advised him to take his wife to the hospital---Accused alleged that he told the story to the police but they refused to look into any reason, he was tortured and on account of influence of the deceased's family, the case was lodged against him ---Record showed that defence plea was
not supported by the facts and circumstances of the case ---Suggestions in defence were denied
by the prosecution witnesses in respect of dacoity at his house---Accused did not suggest his
defence plea to the prosecution witnesses who were attracted to the place of occurrence on his invitation ---Circumstances did not suggest that thieves during the occurrence would so severely
torture the deceased by causing multiple injuries on her person as well as burning her body with
cigarette ---Unnatural death of the deceased was not denied---Accused could not explain as to
when the deceased was being thrashed by the thieves while he was sleeping upstairs, why he did not reach the spot immediately ---Two guards/ witnesses remained unaware about the dacoity ---
No valuable article was mentioned to have been stolen/looted---Circumstances established that a feeble attempt to build up the defence ba sed on fabricated plot was not worthy of credence --
Appeal against conviction was dismissed accordingly.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 338--- Qatl-i-amd, isqat -i-hamal ---Appreciation of evidence ---Prosecution case
was that on receipt of i nformation from the hospital that an injured lady had expired--- Incharge
of police station reached the hospital and found the dead body of the deceased---Alongside the deceased, her husband/ accused was standing, who disclosed that deceased was his wife an d due
to a quarrel between them, he had assaulted her, which resulted into the injuries, whereafter she
was brought to the hospital and she succumbed to the injuries ---No direct ocular evidence was
available against the accused ---Complainant narrated the s tory, which corroborated the contents
of FIR ---Statement of complainant was not only reliable but his natural and unimpeachable
deposition furnished very strong corroboration, which the accused told him in the hospital by
narrating the complete scenario in which the deceased got injured ---Admittedly, neither the
accused nor the deceased or for that matter, her family were known to the complainant ---Other
aspect, which further corroborated the statement of complainant was that police official on duty
reached the hospital, he was told the whole story, which was in nobody's knowledge except the
accused and the deceased, but she had died at that time, therefore the account of occurrence furnished by the accused cumulated into registration of FIR ---Accused was su ch a person in
relation to the deceased and she was lastly found with the accused under the same roof ---
Accused was required to explain the circumstances in which the deceased lady met the unnatural death ---If the failed either to plausibly explain the cir cumstances or to furnish the true account of
the event which led to unnatural death of the deceased, would otherwise form very strong corroboration to his retracted confession---Statement of accused made immediately after the occurrence connected the accus ed with the commission of offence ---Accused had failed to
explain the circumstances, under which his wife died unnatural death in dubious and mysterious circumstances --- Multiple injuries and burn marks were noted by the doctor on the body of
deceased lady ---Blood had spreaded in the house ---Accused failed to explain the cause of
injuries at the hands of accused ---Blood stained utensils and other articles were found at the
place of occurrence ---Accused gave extra- judicial confession soon after the occurrenc e--- Three
contradictory statements of the accused uttered to the witnesses till registration of the FIR and his failure to rebut the circumstances in plausible manner, established that cold blooded murder of the deceased was committed by the accused ---App eal against conviction was dismissed in
circumstances.
The Crown v. Abdul Ghani PLD 1956 (WP) Lah. 300; Muhammad v. The State 1994
PCr.LJ 2102; Noor Muhammad v The State PLD 1991 SC 150 and Azeem Khan v Mujahid
Khan 2016 SCMR 274 rel.
(c) Penal Code (XL V of 1860) ---
----Ss. 302(b) & 338--- Qatl-i-amd, isqat -i-hamal ---Appreciation of evidence ---Award of capital
punishment as Tazir ---Circumstantial evidence capital punishment award of ---Scope---
Prosecution case was that accused committed of murder of his wi fe---No direct ocular evidence
was available with the prosecution ---Case against the accused hung upon the circumstantial
evidence and accused had contended that capital punishment could not be awarded on the basis
of circumstantial evidence--- Validity ---Generally, capital punishment could not be awarded to
accused on the basis of circumstantial evidence ---If different pieces of circumstantial evidence
collected during investigation were put in juxtaposition and prima facie the case was made out against th e accused, coupled with the fact that the prosecution witnesses were dis interested;
chain of evidence touching the dead body from one side and to the neck of the accused on the other, then on unimpeachable circumstantial evidence, in which no link of the chain was missing, capital punishment could be awarded.
Inayatullah v. The State PLD 2007 SC 237 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 338 ---Qatl -i-amd, isqat -i-hamal ---Appreciation of evidence ---Sentence,
quantum of ---Extra -judicial conf ession of the accused showed that due to altercation between
husband and wife, he got provoked and annoyed with her on account of alleged immoral
activities of the wife ---Accused admonished her to refrain from immoral life ---When both of
them indulged in quarrel, he attacked the lady, possibility of sudden provocation could not be ruled out in circumstances and it could not be said that accused committed murder with premeditated mind and intention---No one was present on the spot ---Circumstances of the case
were sufficient as extenuating factors for determining the quantum of sentence, therefore death sentence under S. 302(b) Penal Code, 1860 could not be awarded to the accused and only the sentence of imprisonment for life would be permissible.
Syed Ayaz Z ahoor and Arthur Victor for Appellant (in Criminal Appeal No.149 of 2014).
Ali Ahmed Kurd for the Complainant (in Criminal Appeal No.149 of 2014).
Ali Ahmed Kurd for Petitioner (in Criminal Revision Petition No.29 of 2014).
Yahya Baloch, Deputy Prosecut or General for the State (in Criminal Revision Petition
No.29 of 2014).
Date of hearing: 30th March, 2016.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The learned Sessions Judge
(Ad hoc), Quetta ("trial court") vide judgment dated 27th May 2014 ("the i mpugned judgment")
passed in Sessions case No. 16 of 2011 convicted the appellant in Criminal Appeal No.149 of
2014 under Section 302 (b) of the Pakistan Penal Code, 1860 ("P.P.C.") and sentenced him to suffer life imprisonment for committing murder of the deceased Tayaba Ibrahim. The appellant
was further convicted under Section 338, P.P.C. and sentenced to suffer rigorous imprisonment for five years. Both the sentences were directed to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Being aggrieved of the impugned judgment the mother of the deceased (Tayaba Ibrahim)
viz Umme Kalsoom has filed Criminal Revision Petition bearing No.29 of 2014 for enhancement
of the sentence awarded to the appellant in the aforesaid case.
On three scores, fir stly both the cases emanate from the same judgment; secondly the
facts and circumstances involved therein are same and; thirdly common question of law needs to be addressed in both the cases, this common judgment shall dispose of both the cases.
3. It is the prosecution's case that on 04.11.2012 a case vide crime No.168 of 2012, under
Section 302, P.P.C. was registered at Shalkot Police Station, on the report of complainant Niaz
Hussain SI/SHO, wherein he alleged that on receipt of information from Civil Hospital Quetta
that an injured lady brought to the casualty ward of the hospital, has expired, he along with other police officials reached the hospital and found the dead body of Tayaba Ibrahim. Alongside the deceased her husband Abu Bakar Siddiq (the appe llant) was standing who disclosed the
backdrop of the incident that the deceased was his wife and due to a quarrel between them he had
assaulted her, which resulted into injuries to the deceased, whereafter she was brought to Civil
Hospital on the doctor's advice, where she succumbed to her injuries. The appellant was
apprehended on the spot and thus the FIR was lodged against him.
4. Upon arrest of the appellant, the challan was submitted before the learned Sessions Judge
Quetta which was subsequently transmitted to the file of the trial court. The trial court framed
charge against the appellant on 12.12.2012, to which he did not plead guilty and claimed trial. Thereafter the prosecution in order to substantiate the charge produced following witnesses:
PW-1, Niaz Hussain SI/SHO, the complainant, produced his written report Ex.P/1- A and
the report under section 174 Cr.P.C. Ex.P/1- B.
PW-2, Dr. Abdullah Jan, is the doctor on whose advice the deceased was brought to Civil
Hospital Quetta.
PW-3, Abdul Razzaq is the Security Guard of Sheikh Zayed Hospital colony.
PW-4, Muhammad Afzal, is also the Security Guard at Sheikh Zayed Hospital colony.
PW-5, Dr Ali Mardan MLO, conducted the postmortem of the deceased vide report
Ex.P/5 -A.
PW-6, Umme Kalsoom, is mother of the victim/deceased.
PW-7, Tahir Ibrahim, is brother of the victim/deceased.
PW-8, Muhammad Idrees ASI, is recovery witness, who produced the site plan Ex.P/8-
A, recovery memos of blood stained piece of wire, blood stained packet of cigarette as Ex.P/8 -B; blood stained shawl Ex.P/8- C; blood stained household articles Ex.P/8- D;
blood stained clothes of deceased Ex.P/8- E, the extrajudicial confession of the appellant
Ex.P/8 - F and pointation memo Ex.P/8- G.
PW-9, Ghulam Muhammad SI, is the investigating offi cer of the case, who produced the
FIR as Ex.P/9 -A, visual site sketch Ex.P/9- B, inquest report under Section 174 Cr.P.C.
Ex.P/9 -C, visual site sketch of place of recovery Ex.P/9 -D, supplementary challan as
Ex.P/9 -E, Forensic Science Laboratory report Ex.P/ 9-F and complete challan Ex.P/9 -G.
5. On conclusion of the prosecution evidence, the statement of the appellant was recorded
under section 342, Cr.P.C, wherein he once again professed his innocence and denied the allegations leveled against him. The appellant also recorded his statement on oath as envisaged under section 340(2), Cr.P.C. but did not produce any evidence in his defense. On conclusion of the trial the appellant was convicted and sentenced in the above terms. Hence, this appeal.
6. Learned coun sel for the appellant contended that the impugned judgment has not only
been passed in utter violation of law and facts rather the same is result of misreading of the
evidence; that there is no eye- witness of the alleged incident in view thereof the prosec ution had
miserably failed to prove the charge, yet the trial court recorded conviction against the appellant; that the trial court has not been able to take into consideration the provisions of Article 40 of
Qanun- e-Shahadat Order, 1984 with regard to rec overy of the crime weapon and other articles
from the place of alleged incident; that in -site of glaring contradiction and improvements in the
statements of prosecution witnesses there was no occasion for the trial court to have gone on and
recorded convic tion against the appellant; that the prosecution's case is of no direct evidence or
for matter that the incident has not been witnessed by any of the prosecution witnesses except a few circumstantial witnesses therefore, the prosecution was required to substantiate the charge through strong, independent, corroborative and confidence inspiring evidence, which it has failed to substantiate; that the guidelines, laid down by the superior courts in respect of undoubtedness of the prosecution evidence have also not been taken into consideration in the impugned judgment as there was enough doubt in the prosecution's case, on basis whereof the appellant could have easily been acquitted of the charge; that another important aspect of the matter has also escaped the notice of the trial court that on the date of alleged incident the appellant himself brought the deceased to the hospital for medical treatment but due to doctor's strike the deceased could not get treatment, which resulted into her sad demise. Learned counsel urged with vehemence that though the blood stained clothes of the deceased were produced at the trial but no burn marks were found on clothes as alleged by the prosecution in view of opinion rendered by the medical witness; that the appellant was arre sted on 04.11.2012 before registration of FIR
when the house was searched and certain utensils were also recovered and taken into possession but again his disclosure was shown to have been recorded; that thereafter the house was again searched on 05.11.2012 showing the recovery of certain other blood stained utensils on
pointation of the appellant just to bring the disclosure within the purview of Article 40 of Qanun-e-Shahadat Order 1984, which course has caused another glaring doubt in the prosecution cas e;
that no blood grouping was carried out during the medical/post -mortem examination of the
deceased therefore, the FSL report showing detection of human blood would not be helpful to the prosecution's case, in addition when the recovered blood stained art icles were sent to FSL after
the delay of one and a half year and the prosecution has failed to plausibly explain the same, which has totally diminished the prosecution's case; that statement of PW -6, mother of the
deceased was also left uncorroborated when her contention with regard to telephonic conversation with the deceased was not established by bringing Call Data record of the mobile phone of the deceased as well as of the witness; that the statement of PW -1, if excluded from
consideration being the w itness of extra judicial confession before the police, there would be no
evidence against the appellant. The learned counsel strongly urged that based on material contradictions the prosecution's evidence has to be discarded, whereas the appellant be acqui tted
of the charge after setting aside the impugned judgment.
7. Learned counsel for the petitioner in the connected revision petition, on behalf of the
mother of the deceased strongly opposed the contentions by contending that the impugned
judgment to the extent of awarding lesser punishment is quite contrary to the law as well as facts
of the case; that the conduct of the appellant soon after the occurrence was sufficient to establish his guilty intention when he instead informing his mother -in-law gave t he phone numbers to the
police officer on duty; that he being remorseful was unable to inform the mother of the deceased
about the occurrence; that the appellant being chief pharmacist was well aware of the immediate
medical treatment, therefore he was ini tially trying to provide the necessary treatment to the
deceased at home and on realization that he would not be able to manage the same, decided to take her to the doctor (PW -2 Dr. Abdullah Jan), and on his advice brought his injured wife to the
hospital, thus the manner and procedure opted by the appellant reflect his guilt; that in a span of
48 hours the appellant introduced three different stories but failed to establish either, therefore,
the contradiction in his stance was sufficient to pinpoint him a s the sole perpetrator of the crime;
that once the prosecution's case stands proved, only capital punishment needs to be imposed and
the accused has to be dealt with accordingly, which in the instant case has not be done by the trial court; that the indiff erence of the trial court is also evident from the fact that while awarding
lesser punishment under section 302(b) the trial court has not given any explicit reasons for awarding lesser punishment, whereas in view of the facts and circumstances of the case proved
by unimpeachable evidence, only capital sentence was the way that the appellant deserved to be dealt with. The learned counsel vehemently urged for dismissal of the appeal and enhancement of sentence awarded via impugned judgment.
Learned APG supported the arguments raised on behalf of the petitioner and added that
the facts and circumstances of the case clearly establish that the charge has successfully been
proved by the prosecution against the appellant beyond any shadow of doubt. He also strong ly
opposed the impugned judgment and urged for setting the same aside and prayed for
enhancement of the sentence awarded to the appellant.
8. Heard the learned counsel and perused the available record. It is the prosecution's case
that after the incident the appellant brought his wife in injured condition at Civil Hospital Quetta, where the casualty department of the hospital after initial examination informed the police; that
on arrival of the complainant PW -1 Niaz Hussain SI/SHO, and on his report Ex.P/1- A, the FIR
Ex.P/9 -A was lodged against the appellant.
9. The statement of PW -1 shows that after receiving information from police control that a
severely injured woman brought to the hospital has succumbed to her injuries. On arrival of police party the appellant was also found in the hospital with blood stained clothes and injuries on his hands, who immediately disclosed the facts and circumstances of the occurrence and also admitted his guilt before PW -1 by stating that on account of altercation with the deceased, he
was provoked and reacted bewilderingly by hitting the deceased on her head with a girdle. This witness also informed the mother of the deceased on the telephone number provided by the appellant.
The details given by the appellant to PW -1 wer e fully corroborated by medical evidence,
which shows that the injuries/scratches were also found on the hands of the appellant, while burn marks were also seen on person of the deceased. Though initially no disclosure of the appellant was reduced into wri ting but the inquest report prepared under Section 174 Cr.P.C. compiled on
the spot has fully corroborated the injuries found on the deceased's body. Neither the unnatural death of the deceased was disputed by the defense nor was any animosity or mala fide s of PW -1
suggested to establish that the said witness had enmity with the appellant reasoning to his false implication towards the commission of crime.
10. PW-2 Dr. Abdullah Jan deposed that he was asleep at his home when the door was
knocked, he came out and saw the appellant standing at the door worrisome and his clothes
soaked with blood, who told him that his wife is not feeling well, on which PW -2 brought the
stethoscope and found the deceased lying on the rare seat of the car drenched with blood; tha t on
query the appellant disclosed that she had fallen downstairs; that the deceased's condition was
critical, therefore, he advised the appellant to take her to the hospital; that subsequently he learnt
that the death of the deceased occurred due to sever e torture. This witness was cross -examined at
reasonable length but astonishingly his statement with regard to appellant's disclosure about the
deceased's falling downstairs was not denied by the defense nor was it suggested that the deceased was subjected to torture by the bandits, as was subsequently pleaded by the defense.
11. PW-3 Abdul Razzaq is the Security Guard who was called by the appellant for shifting
the deceased to the hospital but this witness also did not support the defense with regard to injuries of the deceased by the bandits nor any such suggestion was put to him. This witness a lso
denied that the deceased at the time of shifting to the hospital was crying and proclaiming chor chor .
12. The statement of PW -4 Muhammad Afzal corroborates the statement of PW -3, both of
them helped the appellant for shifting the deceased to the hospital. This witness has also denied the suggestion that the deceased at the time of shifting was proclaiming . The statement of aforesaid witnesses totally negated the defense version that on the fateful day bandits had entered the appellant's house and the deceased was injured at their hands. Though the presence of these
witnesses was not denied by the defense but at the same time both PW -3 and PW -4 denied the
suggestion that on the said day thieves/ bandits had entered the appellant's house or even the appellant himself had not told them that his wife got injured by the bandits, who had entered into
his house, therefore, their statements recorded under section 161, Cr.P.C. were also silent in this respect.
13. The statement of PW -5 Dr. Ali Mardan, who initi ally examined the deceased and
subsequently conducted her post -mortem, shows that soon after clinical examination, he
informed the police about the unnatural death of the deceased. He denied that burning marks found on the person of the deceased were old, however voluntarily stated that some were old while the rest were fresh. He has also admitted that family members of the deceased were contacted by the police officials through cell phone in his presence. He has categorically denied the suggestion that dur ing initial examination the deceased told him that she and her husband
were tortured by some unknown persons, but voluntarily stated that this was only disclosed by the appellant. The injuries noted by this witness, which were subsequently mentioned in the post -
mortem report Ex.P/5 -A are relevant, therefore, it would be helpful to reproduce the same
hereunder: --
"There were multiple lacerated wounds on top of skull about 3 in No. and Muscle deep of size. Respectively 3, 1 & 1 cm. Swelling on it [sic] check. Hematoma on right side
forehead. Multiple cigrate [sic] burns on Back of chest, abdomen, Both legs and it (sic) thigh. Multiple scratches on Rt, Lt arms, forearms, Rt, Lt. legs. Lacerated wounds on Rt leg anteriorly 2 x 2 cm. Multiple Bruises of Different size on Both arms, hands, thigh and
both legs, swelling of both hands Rt & left.
Remarks by Medical Officer
The deceased died of Neurogenic shock, Bleeding and cumulative effects of said injuries
on all over her body. Injuries are caused by blunt object."
On the fateful day the appellant was also examined by PW -5. Though his medical
certificate was not produced by the prosecution but subsequently the same was brought on record by the appellant as Ex.D/1 -A, which shows the following injuries: --
"Multiple scratches on Right hand, palms surface and face. Redness on Right hand right
finger with swelling"
The MLC Ex.D/1 -A has not only corroborated the statement of PW -1, but the appellant
also failed to explain about the injuries he sustained. This aspect of t he case will be discussed in
the latter part of this judgment while dealing with what the defense had to offer.
14. PW-6 Umme Kalsoom is mother of the deceased. She deposed that she received a
telephone call from the police officials from Shalkot police station in respect of death of her daughter due to severe torture. She also deposed that her daughter contacted her on phone on 2nd November 2012 and informed that the appellant used to torture her and on 3rd November 2012 her deceased daughter told her on t elephone that the appellant has again tormented her, but she
was informed on 04.12.2012 about the murder of her daughter. She also deposed that police had informed her that the appellant has been arrested along with the weapon of offence.
15. PW-7 Tahir I brahim is brother of the deceased supported the statement of PW -6 and
deposed in the same lines.
16. PW-8 Muhammad Idrees ASI, deposed that he was accompanying the investigating
officer in the hospital when the inquest report was prepared, thereafter he al ong with other police
officials visited the place of occurrence when blood stained wiper, a blood stained cigarette
packet, blood stained shawl of the deceased, blood stained mattress and various blood stained utensils were taken into possession through re covery memos Ex.1318- B to Ex.P/8- E. He also
produced the disclosure of the appellant as Ex.P/8- F recorded on 05.11.2012. He also produced
recovery memo Ex.P/8- G in respect of other blood stained utensils recovered on pointation of the
appellant.
17. Finall y the statement of PW -9, the investigating officer Ghulam Muhammad SI, was
recorded who produced the FSL report as Ex.P/9- F, FIR as Ex.P/9- A and inquest report as
Ex.P/9 -C. On completion of prosecution's evidence, the appellant was examined under section
342, Cr.P.C, however he did not opt to produce any defense witness but recorded his statement under Section 340(2), Cr.P.C.
18. The statement of the appellant recorded under section 340(2), Cr.P.C. shows that the
appellant had introduced the defense plea, t hat on the fateful day unknown persons launched an
attack upon his house and he was asleep upstairs along with his son Muhammad Ali, who was suffering from allergy; that at midnight he heard hue and cry on which he came downstairs and saw that a muffled fa ce person having something like iron clip in his hand was standing while his
wife Dr. Tayyaba (deceased) was lying on the floor in injured condition. He indulged into scuffle
with the said person, meanwhile his other companion who was in the bedroom appear ed and both
of them pushed him. Both escaped through the kitchen door and after scaling over the exterior wall fled away; that he went out shouting 'chor chor' and when came inside he saw that his wife was severely injured; that he rushed to the Guard Room and asked them to help him out and he
immediately took his wife to the house of Dr. Abdullah Jan, and told him whole story, who after
examining his wife advised him to take her to the hospital; that due to doctor's strike, nobody
was on duty except one dr esser; that he himself informed the police surgeon after obtaining his
telephone number from the department; that he went to bazar for medicines but on his return he came to know that Dr. Tayyaba has succumbed to her injuries. After an hour the police arri ved
and he provided the telephone number to them to inform the mother of the deceased; that he told the whole story to the police but they refused to look into any reason, that he was tortured and on account of influence of the deceased's family the instan t case was lodged against him. He
professed his innocence and prayed for acquittal.
The appellant has introduced the defense plea and deposed that his wife was lying on the
floor in injured condition but again he had failed to explain the injuries sustained by him. He also
failed to explain that how the burning marks were found on the person of the deceased as well as
multiple injuries on the other parts of her body. However, he admitted the presence of PW -3 and
PW-4, soon after the occurrence and also adm itted that he took the deceased to PW -2 Dr.
Abdullah Jan and on his advice brought her to the hospital. The defense introduced by the
appellant is not supported with the facts and circumstances of the case while the suggestions in defense were denied by PW -2, PW -3 and PW -4, in respect of decoity at his home. Even the
appellant did not suggest his aforesaid defense plea to the prosecution witnesses who were attracted to the place of occurrence on his invitation. It is not acceptable to the prudent mind that
the thieves/bandits during the course of occurrence would severely torture the deceased by causing multiple injuries on her person as well as burning her body with cigarette. It is also not acceptable that PW -3 and PW -4 being guards on duty would remain si lent without any explicit
reason in respect of decoity allegedly committed in the appellant's house. The unexplained delay for sending the blood stained utensils and other articles to the FSL, would be of no avail to the defense when neither the unnatural death of the deceased was denied nor the appellant could explain that when the deceased was being thrashed by the bandits, he was sleeping upstairs but was not attracted to the spot immediately. Even the two guards on duty remained unaware about the decoit y; that no valuable article was mentioned to have been stolen/looted. A feeble attempt
to build up the defense based on fabricated plot is not worthy of credence.
19. We are unable to agree with the contention of the learned counsel for the appellant that in
absence of any direct ocular evidence and while excluding the disclosure of the appellant there would be no evidence against him on the prosecution file. The statement of PW -1 is not only
reliable but his natural and unimpeachable deposition furnished very strong corroboration, which the appellant told him in the hospital by narrating the complete scenario in which the deceased got injured. Another aspect, which further corroborates the statement of PW -1 is, when neither
the appellant nor the deceased or for that matter her family in Lahore was known to PW -1. When
the police official on duty reached the hospital, he was told the whole story, which was in nobody's knowledge except the appellant and the deceased but she had died at that time, therefore, the account of occurrence furnished by the appellant cumulated into registration of
FIR. The witnesses who immediately reached the spot saw and heard what the appellant told
them, while PW.2 Dr. Abdullah Jan was told an entirely different story. Again PW -1 wa s told the
true account of the occurrence. Yet another aspect when the appellant lied to PW -2 Dr. Abdullah
Jan regarding the injuries of the deceased, which were stated to have been caused due to falling downstairs and this narration by PW -2 was not denied in his cross -examination.
Here the principles of last seen evidence would also come into play because the appellant
is such person in relation to the deceased and when the deceased was lastly found with the appellant under the same roof, and then the appellant would be required to explain the circumstances in which the deceased lady met with unnatural death. In case the appellant fails either to plausibly explain the aforesaid circumstances or to furnish the true account of the event which led to unnatura l death of the deceased, would otherwise form very strong corroboration to
his retracted confession.
20. There is no cavil to the proposition that the statement of an accused before the police
officer being extra- judicial confession is not admissible in ev idence under Article 39 of the
Qanun- e-Shahadat Order 1984 (the "Order 1984"). The case against the appellant hinges upon
the circumstantial evidence and, generally capital punishment cannot be awarded to accused on basis of circumstantial evidence.
But i f the pieces of circumstantial evidence are put in juxtaposition and if they would
bring the case in the area where prima- facie, the case is made out against the accused, coupled
with the fact that the prosecution witnesses are disinterested while the chai n of evidence touching
the dead body from one side and to the neck of the accused on the other, then on unimpeachable circumstantial evidence, in which no link of the chain is missing, capital punishment can be
recorded. Reference is made to the case of In ayatullah v. The State (PLD 2007 SC 237).
21. The question of prime importance in the instant case would be that how much of
information received from the accused can be termed as relevant fact forming the part of same transaction. Article 19 of the Order 1984 corresponding to Section 6 of the Evidence Act, 1872, since repealed provides a complete answer to the proposition discussed herein above. Article 19 of the Order 1984 speaks as under: --
"19. Relevancy of facts forming part of same transaction . Facts which though not in
issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
The provision supra in English law of evidence is known as doctrine of "res -gestea",
which stipulates that the facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant. Thus, a statement made immediately after murder occurrence under influe nce of occurrence or in remorsefulness, in order to justify or
characterize it, and while trying to explain circumstances connected therewith, would be admissible as res -gestea evidence. Reliance is placed on the cases of The Crown v. Abdul Ghani
(PLD 1956 (WP) Lahore 300) and Muhammad v. The State (1994 PCr.LJ 2102).
However, said evidence can only be considered as one link of the chain but this evidence
cannot be made the only reason for recording the conviction. Therefore, the court should dig out
for an independent corroboration of such evidence.
22. We have found corroboration of initial statement/disclosure of the appellant from three
important circumstances. One that the appellant at the time of occurrence was an inmate of the house along with the de ceased and he therefore, in normal circumstances would not only know
the facts instantly leading to the unnatural death of his wife living under the same roof, but would also be required to establish and/or plausibly explain his innocence in that behalf. However, this would not be so if another person more in authority would either independently or
in addition to such an inmate i.e. the husband, would be present in the said house to be burdened with this responsibility, but this is not the case here and the appellant being the only person
present with his deceased wife in the house where she was statedly found injured/dead.
Thus, failure of the appellant to explain the circumstances, when his wife was died
unnatural death in dubious and mysterious circumstances, when the deceases lastly accompanied the appellant and multiple injuries and burn marks were noted by the doctor on her person, blood- spread all over the house, injuries of the appellant on his hands, blood- stained utensils and
other article s, extra- judicial confession soon after the occurrence, forming the part of res -gestea,
the statements of PW -2, PW -3 and PW -4, three contradictory statements of the appellant uttered
to the witnesses till registration of the FIR and, his failure to rebut the aforesaid circumstances in plausible manner, altogether conclude that the cold blooded murder of the deceased was committed by the appellant. Reference in this behalf is made to the cases of Noor Muhammad v The State (PLD 1991 SC 150) and Azeem Khan v M ujahid Khan (2016 SCMR 274).
23. Now adverting to the quantum of sentence. It is admitted fact that prosecution case
hinges upon the circumstantial evidence and there was no eye -witness of the occurrence. The
statement of PW -6 shows that her daughter was e arlier divorced and the appellant was her
second husband. It has also come on record that earlier marriage of the deceased had dissolved due to her infertility/frigidity and after her marriage with the appellant a baby boy was born through IVF in- vitro fertilization (i.e. fertilization of eggs by sperm outside the body).
In the instant case initially charge was framed for an offence under section 302, P.P.C. on
12.12.2012 but, subsequently on the application filed on behalf of mother of the deceased, vide order dated 15th April 2014 charge was amended and section 338, P.P.C. was incorporated in the charge. Section 338, P.P.C. was incorporated due to the reason the post - mortem report disclosed
that the deceased was pregnant and her fetus also died due to he r unnatural death. This aspect of
the prosecution case has remained unexplained that when according to the statement of mother of the deceased/PW -6, her earlier marriage was dissolved due to infertility of the deceased and first
baby was born through IVF but it remained in mystery that how second time she became pregnant. While determining the quantum of sentence and while relying on extra judicial confession of the appellant before PW -1 and since it is also well settled that any piece of
evidence either accepted or discarded cannot be taken in piecemeal but shall be admitted or discarded in toto. Therefore, the motive part of the occurrence furnished by the appellant shall also be admitted in toto. According to the extra judicial confession of the appellant due to
altercation, he was provoked and as it was also mentioned in the extra judicial confession that they were annoyed with each other due to alleged immoral activities of the deceased. The
appellant was admonishing her and was compelling her to refrain from her immoral life, when
both of them indulged in quarrel, which provoked the appellant and he attacked the deceased.
Thus, in the aforesaid circumstances the possibility of sudden provocation cannot be ruled out. It cannot be said with certainty that the appellant who attacked the deceased with a girdle and committed her murder, has committed the crime with premeditated mind and intention. No one
else was present on the spot and for the aforesaid reason the developing of sudden provocation at
the spur of moment cannot be ruled out.
The aforesaid circumstances are sufficient as extenuating factors for determining the
quantum of sentence, therefore, death sentence under section 302(b), P.P.C. cannot be awarded
to the appellant and only the sentence of im prisonment for life as Ta'zir would be permissible.
In view of principles laid down by the Apex Court, we do not find ourselves in agreement
with learned counsel appearing on behalf of mother of the deceased for enhancement of the sentence awarded to the appellant.
Thus, it can safely be concluded that the trial court has rightly awarded the sentence of
imprisonment for life to the appellant. Consequently the appeal against conviction, as well as the revision petition for enhancement of sentence is dismis sed accordingly.
JK/46/Bal Appeal dismissed .This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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