Abdul Hameed Dogar, J.--By this common order we propose to dispose of Jail Petition Nos, 418 and 426 of 2002 filed by petitioners Muhammad Rafique and Mst. Bibi Khatoon arising out of judgment dated 23.10.2002 passed by learned Division Bench of Peshawar High Court, Abbottabad Bench whereby Criminal Appeal Nos, 19 and 20 of 2002 filed by them were dismissed and their conviction under Section 302(b) PPC read with Section 34 PPC and sentence of death alongwith payment of Rs, 30,000/- each as compensation to the legal heirs of deceased or in default whereof to suffer six months R.I. were maintained. Murder reference under Section 374 Cr.P.C. for confirmation of death sentence was also answered in affirmative.
2. Precisely, stated facts leading to the filing of instant petitions are that on 5.7.1999 PW-Hazrat Nabi ASI of Police Station Havelian lodged the case on the information of complainant Mst. Bibi Khatoon that on 5.7.1999 at about 11.50 p.m. she woke up on hearing fire shot report and saw her husband lying in injured condition and could not answer her query. She neither saw anyone firing nor had any suspicious on anyone. On her hue and cry villagers got attracted at the spot and shifted injured to the hospital where he succumbed to the injuries.
3. The post-mortem examination was conducted by Dr. Muhammad Saeed PW-4. According to him there was a circular wound on left side of abdomen 5" below the umbilicus and 3" from the mid- line and 4" from left iliac crest size 1/2 cm x 1/2 c.m. edges inverted, margins blackish and blood oozing out with no exit wound. He also elaborated the internal extensive damage caused to the vital organs resulting into the death of the injured. He also recovered a metallic piece of bullet from the left iliac crest, weighing 5 grams and was sealed in a bottle. 3-A. During investigation police arrested petitioners on 6.7.1999 who volunteered to confess the guilt as such their confessional statements were recorded on 7.7.1999 by Judicial Magistrate (PW- 6).
4. Petitioner Mst. Bibi Khatoon led to the recovery of pistol which was taken into possession and sent to Fire Arms Expert alongwith crime empties which was later on opined by the Forensic Science Laboratory to be positive.
5. In their statements recorded under. Section 342 Cr.P.C. they denied to have confessed the guilt and pleaded innocence.
6. On conclusion of trial both the petitioners were found guilty of offence and convicted and sentenced as stated above.
7. We have heard Syed Ali Hasan Gillani, learned counsel for the petitioners, Ch. M. Akram, learned AOR for the complainant and Mr. M. Bilal, learned Sr. ASC on behalf of AG NWFP at length and have gone through the record and proceedings of the case in minute particulars.
8. Learned counsel for the petitioners has failed to point out any illegality, infirmity, misreading, non-appreciation of evidence from the judgments of both Courts below. He admitted that though there is evidence of judicial confession and recovery against the petitioners yet they deserve leniency in the sentence.
9. On the face of record, it is established that petitioners Mst. Bibi Khatoon and Muhammad Rafique had developed illicit relations and they with common intention conspired to kill deceased husband of petitioner Mst. Bibi Khatoon which fact came on record from the confessional statement of petitioners. Petitioner Mst. Bibi Khatoon in her confessional statement candidly admitted to have killed her husband. The same is reproduced as under:-- "My marriage took place with the deceased Muhammad Yousaf about 15/16 years ago. We had two male issues; one namely, Shakeel at the age of about 9 years and the second one is Jamil at the age of about 7 years. My husband became impotent after the birth of our second child. He was suspicious about my moral character and used to beat me every now and then. I developed relations with Muhammad Rafique son of Abdul Aziz, my neighbour, about a year ago. We liked each other and Muhammad Rafique promised me that he will marry me after my husband is removed from the path. In the meanwhile my husband become aware of my relations with Muhammad Rafique and because of this he started cursing and abusing me. Rafique told me that he will kill my husband and than marry me. He made his efforts but could not succeed. Accused Rafique came to my house one day prior to the occurrence and gave me the pistol which was already loaded. He narrated the plan to me that I should kill my husband during the night by making firing when he is asleep and then raise hue and cry that someone has killed my husband.
Rafique also told me how to use the pistol. Consequently, on the night of occurrence I slept with my husband in the same cot and fired the shot in his abdomen because of which he was injured. I raised noise. Rafique also came to the spot. I hided the pistol at the instance of Rafique. I also made the report to the local police on the directions of Rafique."
10.For better appreciation, the confessional statement of petitioner Muhammad Rafique is also reproduced as under: "I was working with deceased Muhammad Yousaf as labourer/assistant in the work of shuttering of roofs for the last 3 years. In the meanwhile I developed relations with Mst. Bibi Khatoon wife of Muhammad Yousaf. We liked each other but had not committed any Zina. About a year ago, Yousaf became aware of this and he started beating his wife. At this Mst. Bibi Khatoon asked me to kill her husband, but I refused. At this she asked .me to bring some weapon to her so that she might kill the husband herself. I also liked Bibi Khatoon and wanted to marry her. I brought a pistol from Peshawar and handed it over to Mst. Bibi Khatoon about a week prior to the occurrence. I had given her the pistol duly loaded and has also tutored her how to make the shot. On the night of occurrence she fired a shot in the abdomen of her husband during the mid-night which resulted in serious injury to him. I had also told Mst. Bibi Khatoon to raise noise after killing her husband, that some unknown person had killed her husband and run away from the spot. She acted accordingly, I had also instructed her to hide the pistol and she accordingly did so by burying the pistol about 100/150 paces from the spot. She also made the report to the local police according to my plan. We had also stolen away a .7 mm rifle of Muhammad Yousaf about two days prior to the occurrence.
The rifle was brought to my house by Mst. Bibi Khatoon, and I concealed it below the husk in my room. We did this so as to make a false story that a robbery had occurred in which Yousaf was killed and his rifle and other valuables were stolen away."
11.Irrespective of above confessional statements, the prosecution B has succeeded in establishing its case by bringing on record unimpeachable circumstantial evidence of recovery of pistol from petitioner Mst. Bibi Khatoon and its matching with empty recovery from the spot. The recovery of matching of piece of bullet from the body of the deceased further corroborates that he was fired at by pistol.
12.There is no dispute with regard to the factual of incident because, firstly, petitioner. Mst. Bibi Khatoon has admitted about the killing of deceased Muhammad Yousaf her husband inside her house; secondly, her real son namely, Shakeel also testified about the killing of his father at the relevant time. When examined this aspect inconsonance with the confessional statement of petitioner Mst. Bibi Khattoon the case that deceased was done to death by petitioner Mst. Bibi Khatoon stands established. Even otherwise petitioner Mst. Bibi Khatoon has not been able to show other manner in which deceased was done to death. She in order to save her skin from the clutches of law attempted to become complainant but failed and during investigation she was found to be the real culprit and volunteered to make confessional statement. The Magistrate PW-6 deposed that he recorded the confessional statements of both the petitioners after fulfilling all the legal formalities. According to him both the petitioners made their voluntary confession with their own will and without any duress or compulsion.
13.What has been discussed above, we are of the considered opinion that defence has failed to shatter the case of prosecution. Accordingly, finding no merits both petitions are dismissed and leave to appeal refused.