' MUHAMMAD ANWAARUL HAQ, J.--Feeling aggrieved by the impugned convictions and sentences, Haq Nawaz appellant has filed appeal through jail i,e, Criminal Appeal No, 410-J of 2005, whereas the trial Court has sent Murder Reference (M.R. No, 599 of 2005) seeking confirmation of death sentence awarded to the appellant. Both these matters being integrated are being disposed of together through this single judgment.
2. Haq Nawaz, appellant was tried by learned Additional Sessions Judge, Sargodha in case F.I.R. No, 52, dated 31-3-2005 for an offence under section 302, P.P.C. Registered at Police Station Shahpur Sadar, District Sargodha. The learned trial Court vide judgment dated 2-9-2005 convicted the appellant under section 302(b), P.P.C. And sentenced him to 'Death' for committing Qatl-e-amd of Mst. Irshad Bibi. He was also ordered under section 544-A Cr. P.C. To pay compensation of Rs,50,000 (Rupees fifty thousand only) to the legal heirs of the deceased or in default thereof to further undergo Simple Imprisonment for six months.
3. Prosecution case in brief un-folded by Muhammad Khan, complainant (P.W.6), according to the F.I.R. (Exh. PE) is that on 30-3-2005 he along with Ahmad Khan his brother, Muhammad Ramzan came to Chah-Korra. On the fateful night the complainant along with his brother Ahmad Khan and Muhammad Ramzan slept in front of residential room of Mst. Irshad Bibi whereas Mst. Irshad Bibi along with children slept in a room where electric bulb was on. At about 3-00 a.m. On hearing some noise Muhammad Khan and Ahmad Khan awoke up, at that time door of the room was open, they saw Haq Nawaz appellant sitting on Mst. Irshad Bibi on the cot and was cutting her throat with a chhuri, on their hue and cry Haq Nawaz while brandishing his chhuri ran away. In result of the injuries Mst. Irshad Bibi died at the spot.
' Motive behind the occurrence as per F.I.R. Is that Haq Nawaz used to force Mst. Irshad Bibi for illicit relations and on her refusal this incident took place.
4. After registration of F.I.R. Shah Nawaz 'Khan, S.-I. (P.W.10) inspected the place of occurrence, conducted formal investigation, prepared injury statement Exh.PG and inquest report Exh.PC, collected blood-stained earth vide recovery memo Exh.PD, prepared rough cite plan of place of occurrence Exh.PI and recorded the statements of P.Ws under section 161, Cr.P.C. On 3-4-2005 he arrested Haq Nawaz appellant who while in custody led to the recovery of chhuri (P-4) which was taken into possession by the Investigating Officer vide recovery memo Exh.PG.
5. After completion of investigation, challan against the appellant was submitted before the learned trial Court, charge was framed against him, he pleaded not guilty and claimed trial.
6. To substantiate the charge prosecution has examined ten witnesses in total out of which Dr. Humira Batool (P.W.3) provided medical evidence, Shah Nawaz Khan, S.-I. (P.W.10) conducted investigation of this case, whereas Muhammad Khan complainant (P.W.6) and Ahmad Khan (P.W.7) have furnished ocular account.
7. Dr. Humira Batool (P.W.3) medically examined Mst. Irshad Bibi (deceased) on 31-3-2005 at about 1-00 p.m., and observed the following injuries on her person:--
(1) An incised wound about 14 x 5 cm in front of the neck extending both side of neck up to the angle of jaw. All muscle blood vessels trachea and esophagus were cut through and through;
(2) An incised wound about 4 x 0.25 cm on middle part of the nose. Cutting both nostrils through and through. Other thoraces abdominal viscera were normal and no abnormality was found in skull vertebrate membrane brain and spinal cord.
' In the opinion of the doctor, cause of death was injury No,1 which led to severe haemorrhage shock and death. This injury was ante-mortem in nature and caused by sharp-edged weapon. The time elapse between injury and death was immediate and between death and Post-mortem was 9/10 hours.
8. After recording of prosecution evidence, learned trial Court examined Haq Nawaz, appellant under section 342, Cr.P.C., who while answering to Question No, 10 "Why this case against you and why the P.Ws have deposed against you?", replied as under:- "All the P.Ws namely Fateh Muhammad, Imam Bakhsh, Muhammad Khan and Ahmad Khan are inter se relatives and are resident of village Khanpur Wadhra which is away from Chah Kaurra the place of occurrence. None of the witnesses had witnessed the alleged occurrence and are thus false witnesses, deposing intentionally all untrue facts. The reality is that Mst. Irshad Bibi deceased firstly eloped from Karachi when she was residing there with Abdul Khalid when both were unmarried came both to Chah Korra and hereafter some time got married. This elopement became a bone of contention for her parents and thereafter for these stained relations either of the parties families were not on visiting terms inter se till her death. Unfortunately Abdul Khalid having indulged in narcotics and was confined to bar at Faisalabad forever period of one year. I am a labourer and resides at Karachi. I shall produce my I.D Card in its confirmation. In the absence of her husband, Irshad Bibi also indulged nefarious activities and lastly with one Sher Muhammad Chachar who used to visit her off and on being sound financially so nothing could be done against him at a local level. Mst. Irshad Bibi became pregnant and upon this fact, when she was apprised of the situation she got herself aborted a few days prior to the occurrence with the help of aforesaid Sher Muhammad sarruptiously through one female quaker. To my misfortune I happened to be at Chah Kourra from Karachi two days earlier to the occurrence and on the alleged night of occurrence at about 2/3 A.M. I learnt in the room where Irshad Bibi deceased was present along with kids. I stood up from the cot lying in the courtyard upon which I was sleeping came to the room and saw in compromising position Mst. Irshad Bibi with Sher Muhammad Chachar. I lost my control due to this sudden incident giving me grave provocation ipso facto and thereform I picked up domestic chhuri lying therein and thus injured Mst. Irshad Bibi and then and there but Sher Muhammad Chachar made his escape good from there. Ultimately I went to the police station on the same night and reported the matter to the Investigating Officer but to my surprise Sher Muhammad Chachar happened to be already present there. The contents of the F.I.R.
Arranged and managed at the instance of Sher Muhammad which are fabricated and these true facts have been concealed. Sher Muhammad Chachar had indulged illicit relations to which Irshad Bibi was consenting one and she became pregnant as well. Abortion was also carried on by the consent of both aforesaid a few days prior to the occurrence and again on the eventful night both were gather in compromising position. Sher Muhammad disgraced us as well as get himself saved by this fornication on account of his being sound in wealth this had happened as I had lost my control unintentionally due' to Ghairat we have been giving all the provisions of maintenance through our labourer, but Irshad Bibi did not refrain herself from her nefarious activities and had become approve one bad character lady. Whatever it was, it was as I had not seen any of the events earlier but on the relevant time of occurrence it became unbearable for me when I actually witnessed this compromising position. Hence, I lost my control and I could do nothing otherwise. I swear on the Holy Book Quran-i-Pak that allegation of motive and the factum of P.Ws having witnessed the so-called occurrence is incorrect, as well as false. None of the witnesses had witnessed the occurrence thus their deposition is false and cannot be believed. We are labourers as I have narrated the true story as it happened. So none of the residents of locality has come forward to confront or contradict. It rather of the resident have taken it as pious act eradicating the source of a from the society/village due to strained relations with us and {{URDU TEXT}} being relative inter se P.Ws. Have made false deposition against me."
9. The appellant opted not to make statement under section 340(2) Cr.P.C. But he produced his real brother and husband of the deceased, Abdul Khaliq (DW-1) in his defence. Learned trial Court after appraisal of evidence vide impugned judgment dated 2-9-2005 convicted and sentenced the appellant as narrated earlier, hence these matters.
10. The learned counsel for the appellant, in support of this appeal, contends that motive alleged in the F.I.R. Has not been proved as the complainant has stated that he received. Message from her daughter that the appellant was quarreling with her but the person through whom the said message was received has not been produced and the complainant (P.W.6) has also admitted in cross-examination that at present he does not know the name of that person who given him the message; that all the witnesses of this case are closely related with each other and are chance witnesses and the reason given by them for their presence at the place of occurrence is not probable and does not appeal to reason, as both the eyewitnesses are the residents of Khanpur Wadhra which is at a distance of more than six kilometers from the place of occurrence; that there are material contradictions in the statements of the witnesses; that the appellant has taken a specific plea that he killed Mst. Irshad Bibi when she was in compromising position with Sher Muhammad and even he has produced the husband of the deceased as DW-1 in support of his plea; that keeping the plea of appellant during the trial and prosecution version in juxta position, the version of the appellant appears to be more plausible; that the prosecution has failed to prove its case and in any case it was not a case of capital punishment because it is not known and shrouded in mystery as to what exactly happened prior to the occurrence.
11. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant while opposing this appeal contended that the F.I.R. In this case was promptly lodged with all the details of the incident; that both. The eye-witnesses P.W.6 and P.W.7 are the most natural witnesses; and their presence is fully established from the fact that they remained consistent on all the material particulars mentioned in the F.I.R.; that churi P-4 was recovered at the instance of the appellant which was taken into possession through Exh. PG and that the report of the Chemical Examiner and Serologist are positive; that the appellant has not been able to give any reason for his false implication; that as far as specific plea of the appellant is concerned that cannot be believed because of the reason that he has not produced any evidence in support thereof and that there was no mitigating circumstance in this case, therefore, this appeal be dismissed and the Murder Reference be answered in the affirmative.
12. We have heard the learned counsel for the parties at length, and have given anxious consideration to their arguments and have also scanned the record with their able assistance.
13. Occurrence in this case took place on 31-3-2005 at about 3-00 a.m. And the matter was reported to the police at 5-30 a.m. Thereafter A F.I.R. Was registered at the Police Station, promptly and with full details of the incident.
14. Motive has been established through the evidence of the complainant who has stated that when he reached in the house of Mst.Irshad Bibi she told him that appellant wanted to develop illicit relations with her but she did not agree.
15. Presence of eye-witnesses at the spot is quite natural considering the fact that the deceased was real daughter of P.W.6. Even otherwise they are resident of Khanpur Wadhra which is at a distance of around 6/7 kilometers from the place of occurrence and their presence in view of their consistent, coherent and straightforward evidence has been proved. Defense remained unable to shake their evidence even after lengthy cross-examination. They both had no enmity or ill will of their own to falsely involve the petitioner in this case, mere relationship of the witnesses is not at all a ground itself to discredit their testimony in a murder case and that is so held by the honourable Supreme Court in plethora of judgments.
' Minior variations in minute details of the incident are insignificant, and do not effect their natural narration of the whole incident. The medical evidence and recovery of weapon of offence coupled with positive reports of Chemical Examiner and that of Serologist further corroborate ocular account. We, therefore, hold that the eye-witnesses were present at the time of occurrence and have witnessed the occurrence.
16. As far as plea of the appellant is concerned that he killed Mst. Irshad Bibi when he found her in a compromising position with one Sher Muhammad, we have noted, that after post-mortem examination the doctor handed over the last-worn clothes of the deceased to the police which consist of shirt P-1, Shalwar P-2 and Dopatta P-3 that negate the plea taken by the appellant.
Moreover, the appellant has not been able to produce any evidence in this respect except the statement of Abdul Khaliq husband of the deceased who was admittedly in jail at that time and he has simply stated that his deceased wife was not of a good moral character but he conceded that they were living happily for the last about twelve years. Even otherwise the most natural witnesses in this respect were the real father and the brother of the appellant who were residing in the same house as admitted by D.W.1. It is well-settled principle of criminal jurisprudence that under Article 121 of the Qanun-e-Shahadat Order, 1984 if an accused takes up any specific plea then burden to prove the same shifts upon him. We have noticed in this context that the appellant has miserably been failed to prove this plea. Keeping the plea of appellant during the trial and prosecution version in juxta position, the version of the prosecution appears to be more plausible and also there is no reason of false implication of the petitioner who is a single accused in a promptly lodged F.I.R.
Presence of father of the deceased at the time of occurrence further excludes any possibility of substitution in the circumstances of the case.
17. In view of the above, we are satisfied that finding of conviction and sentence of the appellant recorded by the learned trial Court is quite in accordance with law and is based upon well- recognized principles of appreciation of evidence in a criminal case.
18. As far as quantum of sentence of the appellant is concerned the learned counsel for the appellant remained unable to point out any circumstance in this case calling for any mitigation in favour of the appellant. Act of the appellant and in the manner he committed this cold-blooded murder is shocking. Appellant at the time of occurrence was not of immature mind and he fully knew the consequence of his cutting throat of his innocent victim with a chhuri in such a brutal manner. Normal sentence in Qatl-e-amd is .Death and Court is required to give reasons under section 367(5), Cr.P.C. For not awarding the same. The question of sentence in a murder case is of course a question of very vital importance and all the care and caution is required to be maintained in this regard, but it is equally important aspect of this matter that sentence of death cannot be altered on the basis of flimsy grounds and principle of proportionality cannot be lost sight. Another important feature while considering sentence one out of two in a case of Qatl-e- amd is section 382-C, Cr.P.C. We reproduce the same for ready. Reference:-- Section 382-C, Cr.P.C.--In passing a sentence on an accused for any offence, a court may take into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf.
' The plea taken by the appellant in his defence is not only false but on the face of it scandalous as well and while taking into consideration section 382-C, Cr.P.C we are of the considered view that there is no extenuating circumstance available in favour of the appellant for extending him any benefit regarding his sentence, hence his conviction and sentence under section 302(b), P.P.C. Is maintained and his Criminal Appeal No, 410-J of 2005 is, dismissed.
19. Resultantly death sentence awarded to Haq Nawaz, appellant is confirmed and murder reference (M.R. No, 599 of 2005) is answered in affirmative.