' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No. 867 of 2008 filed by Muhammad Tahir appellant against his conviction and sentence, and Murder Reference No. 317 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Tahir appellant, as both these matters have arisen out of the same judgment dated 30-6-2008, rendered by the learned Additional Sessions Judge, Sheikhupura, in case F.I.R. No. 240 dated 24-6-2007, offence under sections 302/34, P.P.C., Police Station City Farooqabad District Sheikhupura, whereby, Muhammad Tahir, appellant was convicted under section 302(b) of P.P.C. For committing the murder of his wife Mst. Aasma Bibi (deceased) and sentenced to death with a direction to pay the compensation amount of Rs.50,000 (Rupees fifty thousand only) to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six months' S.I. However, through the same judgment, Sodagir co-accused of the appellant was acquitted of the charge by the learned trial court while extending benefit of doubt to him.
2. Brief facts of the case, as disclosed by Naeem Abbas, complainant (P.W.7) in his complaint (Exh.PB/1) on the basis whereof, the formal F.I.R. (Exh.PB) was recorded are that he (complainant) was resident of Mohallah Jehangir Abad, Police Station A-Division, Sheikhupura and was a labourer by profession. The marriage of Mst. Aasma Bibi (deceased) aged about 20 years, real sister of complainant was solemnized with Muhammad Tahir (appellant) 9/10 months prior to the occurrence. She Was pregnant of five months. The relations between the spouses remained strained and they used to quarrel with each other due to matrimonial disputes. A few days earlier to the occurrence Mst. Aasma Bibi (deceased) after quarrelling with her husband, came, to the house of complainant Muhammad Tahir (appellant), husband of Mst. Aasma Bibi (deceased) and his brother Sodagir (acquitted accused) came to the house of complainant and after effecting compromise, they took along Mst. Aasma Bibi (deceased) to their house and Sodagir Ali (acquitted accused) gave assurance that the spouses will not quarrel in future. On 23-6-2007, at evening time, Mst. Aasma Bibi (deceased) told the complainant, on telephone that her husband, Muhammad Tahir (appellant) and Sodagir (acquitted accused) were quarrelling with her since morning, they had beaten her and were also extending threats to kill her. Mst. Aasma Bibi (deceased), therefore, called the complainant to her house at Farooq Abad. The complainant, his brother Jamil (given up P.W.) and Nazir Ahmad (P.W.8), thereupon, reached the house of Mst.
Aasma Bibi (deceased) at the time of 'Isha' prayer, for the purpose of effecting compromise between the spouses. It is also mentioned in the F.I.R. (Ex.PB) that whole of the night passed during this process, but the compromise could not be effected. At 4-30 a.m. (night) Sodagir (acquitted accused) raised a lalkara and asked Muhammad Tahir (appellant) to make fire if they (complainant party) don't agree with them, whereupon, Muhammad Tahir (appellant) made' a fire shot with his pistol 30 bore which hit Mst. Aasma Bibi (deceased) on the right side of her buttock and then he made second fire shot hitting on her left side of the chest. Then Muhammad Tahir (appellant) made third fire shot hitting on the backside of head near the ear of Mst. Aasma Bibi (deceased). Muhammad Tahir (appellant) extended threats to the complainant and P.Ws. That if anyone would come forward, he will be done to death. Sodagir (acquitted accused) then took pistol from Muhammad Tahir (appellant) and pointed the same towards the P.Ws. And he asked Muhammad Tahir (appellant) to flee away from the place of occurrence and he will himself cope with the P.Ws. Mst. Aasma Bibi succumbed to the injuries at the spot. It was further alleged that Muhammad Tahir (appellant) in consultation with Sodagir Ali (acquitted accused) has committed the murder of Mst. Aasma Bibi.
3. The appellant was arrested on 20-7-2007 by Nasrullah Khan, Inspector (P.W.10). He (appellant) while in police custody, after making disclosure, got recovered pistol .30 bore (P-5) along with five live bullets (P-6/1-5), which were taken into possession vide recovery memo Ex-PD. After completion of investigation, the challan was prepared and submitted before the learned trial court.
The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 25-9-2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced ten witnesses, during the trial. Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) are the witnesses of ocular account while Naeem Abbas complainant (P.W.7) is also the witness of recovery of pistol .30 bore (P.5) from the possession of the appellant.
' The medical evidence was furnished by Lady Dr. Marryam Aftab Khan (P.W.9) who on 24-6-2007 at 4-25 p.m. Conducted the postmortem examination on the dead body of Mst. Asma Bibi (deceased).
' Nasrullah Khan, Inspector/S.H.O. (P. W.10) is the Investigating Officer of the case.
' Tanvir Hussain (P.W.1), Zulfiqar Ali (P.W.2), Muhammad Ramzan (P.W.3), Abdul Hameed, S.I. (P.W.4), Muhammad Siddique (P.W.5) and Muhammad Riaz, Draftsman (P.W.6) are the formal witnesses.
' The prosecution also produced documentary evidence in the shape of memo of possession of last worn clothes of the deceased, Ex. PA, copy of F.I.R. (Exh.PB), application for registration of case (Ex.
PB/l), scaled site plan in duplicate of the place of occurrence, Ex. PC and Ex. PC/1, recovery memo of pistol 30 bore (P.5) along with five live bullets P-6/1-5, (Ex. PD), rough site plan of the place of recovery Ex. PD/1, memo of possession of blood-stained earth from the place of occurrence, Ex. PE, recovery memo of three crime empties from the spot Ex. PF, copy of postmortem report of Mst.
Aasma Bibi, deceased, Ex. PG, pictorial diagram Ex. PG/1, Inquest report of the deceased Ex. PH, application for conducting postmortem examination on the dead body of Mst. Aasma Bibi deceased Ex. PJ, Injury statement of Mst. Aasma Bibi deceased (Ex. PK), rough site plan of the place of occurrence, Ex. PL, report of Chemical Examiner, Ex. PM, report of Serologist Ex. PN, report of Forensic Science Laboratory, Ex. PO and closed its evidence.
5. The statement of the appellant under section 342 Cr.P.C. Was recorded by the learned trial court.
He refuted the allegations levelled against him and professed his innocence. While answering to question "Why this case against you and why the P. Ws. Deposed against you?" the appellant replied as under:-- "I committed this murder on the pretext of honour. P. Ws. Deposed falsely. None of them was present at the spot and witnessed the occurrence. I alone committed this murder. None else instigated, abeted or participated with me to accomplish this offence. Name of my brother Sodagir All was falsely mentioned in the F.I.R. "
' The appellant opted to make statement on oath, under section 340(2), Cr.P.C., however, he did not produce any evidence in his defence. He (appellant) in his statement on oath recorded under section 340 (2), Cr.P.C., took this plea that he committed the murder of his wife Mst. Aasma Bibi (deceased) on account of honour (ghairat). He further deposed that on 23-1-2007, he went to the house of his in-laws where he saw his wife Mst. Aasma Bibi (deceased) in an objectionable condition with her 'Behnoi' Nazir as they both were busy in sexual act at that time. It was further deposed by the appellant that he controlled himself at that time, however, on the night of occurrence, i.e. On 24-6-2007 at about 3-00 a.m. (night), he was present in his room alongwith his wife when he inquired from her about her illicit relations with her `Behnoi' Nazir, whereupon Mst.
Aasma Bibi (deceased) confessed her illicit relationship with Nazeer. The appellant further deposed that when his wife Mst. Aasma Bibi (deceased) confessed about her illicit relations, he could not control himself, thus, he fired at Mst. Aasma Bibi (deceased) who succumbed to the injuries.
6. The learned trial Court vide judgment dated 30-6-2008, found Muha ad Tahir appellant guilty and convi ted and sentenced him as mentioned and tailed above.
7. Learned counsel for the appellant, port of this appeal, contends that a false case has been registered against pellant: that both the eye-witnesses mittedly chance witnesses and they of been able to prove their presence place of occurrence, at the relevant that Naeem Abbas complainant ) is real brother of Mst. Aasma Bibi ed) while Nazir Ahmad (P.W.-8) is i' of the complainant and as such f them are close relatives of the d, who are inter se related and are ed witnesses and as such their e requires strong and independent ration which is very much lacking case; that the alleged recovery of 30 bore P-5 has been planted against appellant in order to strengthen the tion case; that the motive as alleged prosecution, has not been proved in se, as no specific reason of the onial disputes has been disclosed by s.; that version of the appellant in cumstance is more probable and ing which has been rejected by the trial court without any valid reason; counsel for the appellant has also ed that at least it is not the case, of punishment because the appellant itted the murder of Mst. Aasma eceased) his wife on account of 'ghairat', therefore, lenient view may be taken in this case; that the death sentence awarded to the appellant is not sustainable while- keeping in view the provisions of sections 306, 307 and 308 P.P.C. Because the appellant being husband of Mst. Aasma Bibi deceased is also her legal heir; that the prosecution has miserably failed to prove its case against the appellant; thus, this appeal be accepted. In support of his contentions, learned counsel for the appellant has placed reliance on the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others, (PLD 1994 Supreme Court 885).
8. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that F.I.R. In the present case was promptly lodged as incident took place on 24-6-2007 at 4-30 a.m., whereas, the matter was reported by Naeem Abbas complainant (P.W.7) through complaint (Ex. PB/l), on the 'basis whereof, formal F.I.R. (Ex. PB) was chalked out by Abdul Hameed, S.I. (P.W.4) on the same day at 5-55 a.m.
That specific role of firing at Mst. Aasma Bibi deceased has been attributed to the appellant; that the eyewitnesses have no reason to falsely, implicate the appellant in the present case; that there was no reason for substitution of the appellant by the eye-witnesses as there was no serious enmity existing between them and the appellant; that medical evidence substantially supports the ocular account furnished by the eye-witnesses. Of the occurrence; that recovery of pistol .30 bore (P.5) has also been effected from the possession of the appellant which further corroborates the prosecution case; that the motive as alleged by the prosecution has also been proved in this case; that the plea taken by the appellant is an afterthought and he has not produced any witness in support of his plea; that as the appellant has caused three firearm injuries on the person of the deceased, therefore, he does not deserve any leniency in respect of his sentence; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the appellant, the-learned Deputy Prosecutor-General assistet by the learned counsel for the complainant and have also gone through the record wit! Their able assistance.
10. It would not be out of place to mention here that it is a case of two versions, i.e. One put forth by the prosecution in, the form of ocular account furnished by Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8), whereas, the other has been brought on the record through the statements of Muhammad Tahir (appellant), recorded under section 342 and 340(2), Cr.P.C. And suggestions put to the prosecution-witnesses during their cross-examination.
11. It has been settled now by the Hon'ble Supreme Court of Pakistan through number of judgments that it is the prosecution which is required to prove its case against the accused person beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C,. Is exculpatory, then he must be acquitted if the statement under section. 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors farming belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence A plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The above mentioned view has been reiterated by the August Supreme Court of Pakistan in the case reported as Amin All and another v. The State (2011 SCM R 323). Therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution.
12. The occurrence in this case took place on 24-6-2007 at 4-30 a.m. In the house of Muhammad Tahir appellant situated in the area of 'Mohallah Shamus Abad, Farooqabad falling within the territorial jurisdiction of Police Station City Farooqabad District Sheikhupara, whereas the matter was reported by the complainant Naeem Abbas (P.W.7) through complaint Ex. PB/1, on the basis whereof, formal F.I.R. (Ex. PB) was chalked out by Abdul Haineed, S.I. (P.W.4) on the same day at 5- 55 a.m. The distance between the place of occurrence and police station is 2 kilometers.
Considering the time of incident, the place of occurrence and its distance from the police station, we are of the view that there was no delay in B reporting the matter to the police.
13. The ocular account of the prosecution was furnished by the complainant Naeem Abbas (P.W.7) and Nazir Ahmad (P.W.8). The examination-inchief of Naeem Abbas complainant (P.W.7) recorded by the learned trial Court on 3-11-2007 is reproduced hereunder for ready reference:-- "9-I0 months before the present occurrence the marriage of my sister was solemnized with Tahir accused. He used to beat my sister Alma. She had come to our house due to altercation, few days before the occurrence. Tahir and Sodagar came to our house after , some days; Sodagar expressed that he was responsible for the peaceful union of the spouses and no beating shall take place in future. He took responsibility of the matter. They thus took my sister with them. On the same day i.e. 23-6-2007 in the evening, my sister Asma rang me up and told that Sodagar and Tahir accused were extending threats to kill her and beating her. I, my brother Jamul and Nazir son of Rehmat All reached the house of Asma at Esha Prayer time. We advised Sodagar and Tahir accused throughout the night. At about 4-30 a.m. Sodagar asked Tahir accused to murder Asma.
Tahir brought out a pistol from the drawar and hit fire shot to my sister Asma on the right side of buttock, second fire shot hitting on the left of her chest. Tahir hit the third fire shot on the back of left ear of Asma. Asma succumbed to the injuries at the spot. I, Nazir and my brother Jamil had witnessed the occurrence. Sodaghar accused then took pistol from Tahir and pointed the same towards us. He arranged the fleeing away of Tahir accused. I went to police station City Farooqabad and moved written application for registration of case Ex. PB/I which bears my thumb impression. Lateron I had joined the investigation. Tahir accused in custody made disclosure and led to the recovery of pistol .30 bore P-5 with magazine containing 5 rounds which were taken into possession by 1.0. Vide recovery memo Exh. PD attested by me and Aslam."
' The statement of other eye-witness namely, Nazir Ahmad (P.W.8) is also on the same lines. The occurrence took place in the house of Muhammad Tahir appellant who is husband of Mst. Aasma Bibi deceased. Naeem Abbas complainant is real brother of Mst. Asma Bibi deceased whereas Nazir Ahmad (P .W.8) is brother-in-law of the deceased. Both the above mentioned eyewitnesses have plausibly explained their presence at the spot at the relevant time by stating that the appellant used to beat his wife Mst. Asma Bibi (deceased) and due to the altercation which took place some days prior to the occurrence, Mst. Asma Bibi (deceased) came back to the house of complainant, however, few days prior to the occurrence, Muhammad Tahir appellant alongwith nis brother Sodagar (acquitted accused) came to the house of complainant and took his wife (Mst.
Aasma Bibi deceased) back to his house with the assurance that he will not beat the deceased in future. One day prior to the occurrence, i.e. On 23-6-2007 Mst. Aasma Bibi (deceased) rang up her brother Naeem Abbas complainant (P.W.7) and told him that Muhammad Tahir appellant and his brother Sodagar (acquitted accused) have beaten her and had also extended threats to kill her.
On this information complainant (Naeem Abbas P.W.7) along with his brother namely Jamil (given up P.W.) and brother-in-law Nazir Ahmad (P.W.8) went to the house of the appellant at the time of 'Esha Prayer'. They tried to pacify the matter throughout the night which pr6ved to be in vain and at about 4-30 a.m. The appellant brought out pistol from the drawar and made three successive fire shots at Mst. Aasma Bibi deceased which landed on her buttock, left side of chest and on her head near left ear.
14. It is a common observation that whenever altercation takes place between spouses, their near relatives try to intervene and patch up the matter. Therefore, in the above circumstances, presence of Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) in the house of their sister/sister- in-law, at the time of occurrence is neither unnatural nor improbable. The complainant Naeem Abbas (P.W.7) is real brother of hist. Asma Bibi (deceased) and it is.Highly improbable that he will falsely implicate the appellant and would let off the real culprit_ Substitution in such-like cases is a rare phenomenon. Although the eye-witnesses, namely, Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8) are closely related to the deceased but their evidence cannot be discarded outrightly on account of their relationship with the deceased provided the same is confidence- inspiring and straight forwarding. We may refer here the case of Haji v. The State (2010 SCM R 650), wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would sot be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
' The above mentioned eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is straightforward and confidence-inspiring.
5. The medical evidence of the prosecution was furnished by Lady Dr. Marryam Aftab Khan, (P.W.9).
She, on 24-6-2007 at 4-25 p.m. Conducted postmortem examination on the dead body of Mst.
Aasma Bibi (deceased) and found the following injuries on her person:-- "(1) Wound of entry, fire arm wound of entry 2 x 2 cm on the right side of the skull (vault) which made an exit wound 3 x 3 cm on the left side of the head 3 inches above the left ear.
(2) Fire arm wound of entry on the front of the left side, chest 0.5 x 0.2 cm, three inches below the left nipple, which made an exit wound on the right side of the back at the right lumber region of size 3 x 3 cm.
(3) Fire arm wound of entry 1.3 x 1.3 cm left side on the left buttock making an exit 2 x 2 cm on the inner aspect of the left thigh."
' In her opinion, all the injuries were ante-mortem, caused by fire-arm weapon and death occurred due to severe shock, haemorrhage, injury to the vital organ leading to cardiorespiratory failure. All injuries collectively and Injuries Nos. 1 and 2 individually were sufficient to cause death. The probable duration between injuries and death was immediate whereas, between death and postmortem was within 24 hours. The aforementioned, medical evidence has fully supported the ocular account furnished by Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8). The ocular account about the seat of injuries, the kind of weapon used during the occurrence and the time of incident as narrated by the eye-witnesses of the occurrence, has fully tallied with the afore- D referred medical evidence.
16. The motive of the occurrence, as per prosecution case was that the appellant used to quarrel with his wife Mst. Aasma Bibi (deceased) and on the night of occurrence the complainant party tried to pacify the appellant, but he became infuriated and committed the murder of Mst. Aasma Bibi (deceased). The evidence of above mentioned motive was, produced by the prosecution through the Naeem Abbas complainant (P.W.7) and Nazir Ahmad (P.W.8). Both the abovementioned eye-witnesses remained consistent regarding the motive part of the prosecution case. They were cross-examined at length but nothing favourable to the appellant could be brought on record. In his statement recorded under section 340(2), Cr.P.C. The appellant has admitted, though in a different manner, about his quarrels and strained relationship with his wife Mst. Aasma Bibi (deceased). We are, therefore, of the view that the motive has been proved E by the prosecution in this case.
17. So far as the recovery of pistol .30 bore P-5 from the possession of the appellant is concerned, we have noted that three crime empties were recovered from the place of occurrence on 24-6- 2007 by Nasrullah Khan, Inspector (P.W.10), vide memo Ex. PF. The said crime empties were deposited in the office of Forensic Science Laboratory on 14-7-2007. According to the statement of Nasrullah Khan, Inspector (P.W.10), the appellant was arrested in this case on 20-7-2007, who on 22-7-2007, white in police custody, after making disclosure, got recovered pistol .30 bore (P-5) along with five live bullets (P-611-5), which were taken into possession vide recovery memo Ex-PD.
The parcel of pistol was deposited in the office of Forensic Science Laboratory on 11-8-2007 and according to the report of Forensic Science Laboratory Exh.P0, all the three empties recovered from the place of occurrence were found to have been fired from the pistol P.5 which was recovered from the possession of appellant. Therefore, the prosecution case against the appellant has also been corroborated by the recovery of F pistol P.5 on his pointation and the positive report of Forensic Science Laboratory Exh. PO.
18. Now coming to the plea taken by the appellant in his statements recorded under section 342 and 340(2), Cr.P.C. The statement of the appellant recorded under section 342, Cr.P.C. Has already been reproduced in para No. 5 of this judgment. We have noted that the appellant took the following, plea in his statement on oath recorded under section 340(2), Cr.P.C.
"My marriage with Aasma deceased, who was my Maternal cousin took place 9/10 months prior to this occurrence. I suspected that she (Asma deceased) having some relations with some one, which turned to be true, when on 23-1-2007, I came to the house of my in-laws. My wife already was there. After stayed 15/20 minutes, I went out to Market for purchase of maple leaf, after about half an hour when I came back, I found my wife Aasma (deceased) and her Behnoi Nazir in an objectionable condition. They both were busy in sexual act, at that time, no male member of my in-laws was present in house. I controlled myself, bite my hand and came out side the house of my in-laws. At about 6-00 p.m. My father-in-law came . Back, I told him about this and asked my wife to accompany me back at home. About this, I felt shamed of that incident and did not tell to my elder brothers, strictly stopped Mst. Asma Bibi to go to her parents house, but in my absence, she used to visit the house of her parents, just to meet Nazir (Behnoi). On 24-6-2007, about 3-30 a.m. At night, I along with my wife were in our room when I enquired my wife that why she indulged in fornication with Nazir, she confessed her illicit relations with Nazir, then I could not control myself and fired at Asma deceased, who fell down and succumbed to the injuries. Thai opend the door which was bolted inside of my room and fled away. I committed this murder on the pretext of honour. We have joint family system. My brothers namely, Sodagir Ali, Dilawar, Liaqat Ali with their families were also residing in the same house. This occurrence took place in my room which was bolted from inside' and at that time, nobody including my brothers were present in my room and neither any of them instigated, abetted or participated with me in commission of offence. I alone committed this offence under the passion of heat. When I committed this offence, my all three brothers were sleeping in their separate rooms and nobody from my in-laws was present in my home when this occurrence took place and they deposed falsely when they appeared as P. Ws. Name of my brother Sodagir Ali was falsely involved in this case and he neither abetted nor participated with me in this commission of offence. No body arrested me. On 20-7-2007, produced myself before the Local Police with Pistol .30 bore which was used by me during occurrence."
' The above-mentioned plea taken by the appellant in his defence that he had committed the murder of Mst. Aasma Bibi (deceased) on the pretext of honour is not convincing due to number of reasons. It is manifest from the perusal of his statement that on 23-1-2007, in the house of his in- laws, he had allegedly seen Mst. Aasma Bibi ,(deceased) and her 'Behnoi' Nazir Ahmad in an objectionable condition, as they both were busy in the sexual act, but it is strange to note that he did not take any action at that time, rather he brought his wife Mst. Aasma Bibi (deceased) back to his house where they. Lived as husband and wife for more than five months and then on 24-6-2007 at about 3-30 a.m. (at night) he inquired from his wife who admitted her illicit relations with her 'Behnoi' Nazir Ahmad, whereupon, he (appellant) committed the murder of his wife Mst. Aasma Bibi (deceased) on account of `Ghairat' (honour). It does not appeal to common sense that he did not feel any ghairar (honour) at the time when he had allegedly seen Mst. Aasma Bibi (deceased) and Nazir Ahmad while committing sexual intercourse, but after the lapse of more than five months, on one fine morning he realized that there was some element of Whariat" (honour) also involved in this case. He has admitted during his cross-examination that Mst. Aasma Bibi (deceased) had seven sisters and four brothers. He has further admitted that apart from three married sisters, all the remaining sisters and brothers of Mst. Aasma Bibi deceased were living in. The house of his father-in-law. It is not probable that Mst: Aasma Bibi (deceased) would indulge herself in the sexual act with her Behnoi Nazir Ahmad in a house where his four brothers and three sisters were also residing and she will commit the sexual intercourse in a manner where she will also provide a chance to the appellant to witness the said act.
19. We have scrutinized the statement of appellant in detail and we have come to this conclusion that if the plea of the appellant is accepted even then the offence of 'qatl-e-amd' of Mst. Aasma Bibi (deceased) has been established and proved against him. As discussed earlier, even according to his own statement the appellants on 23-1-2007, saw Mst. Aasma Bibi deceased and het 'Behnoi' Nazir Ahmad, while busy in the sexual act but he did not take any action at that time and after the lapse of more than five months, on 24-6-2007 he committed the murder of Mst.
Aasma Bibi (deceased) on the pretext that he had seen her in an objectionable condition, five months prior to the occurrence. As the appellant did not take any action for a period of more than five months, therefore, question of grave and sudden provocation does not arise in this case.
20. Learned counsel for the appellant has argued that at least it is not a case of capital punishment because the appellant has committed the murder of Mst. Aasma Bibi (deceased) on account of ghairat therefore, lenient view may be taken in this case. The said argument of learned counsel for the appellant is misconceived. We have noted that the occurrence in this case took place on 24-6- 2007, whereas, amendment/ proviso was introduced in section 302(c) P P C . By the Criminal Law (AMdt.) Act, 2004 (I of 2005) dated 10-1-2005, which reads as under:-- "Provided that nothing in this clause shall apply to the offence of qatl-e-amd if 'committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be."
' It is evident from the perusal of above mentioned amendment/proviso introduced in section 302(c) P.P.C. In the year, 2004 that no lenient view can be taken in the instant case on account of ghairat' (honour).
21. Learned counsel for the appellant lastly argued that the death sentence awarded to the appellant is not sustainable while keeping in view the provisions of sections 306. 307 and 308 P.P.C.
Because the appellant being husband of Mst. Aasma Bibi deceased is also her legal heir. In support of this contention he has also placed reliance on the case reported as Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others, (P1,D 1994 Supreme Court 885). The said.Contention of learned counsel for the appellant is also without any substance because the appellant has been awarded death sentence by way of Taz'ir under section 302(b) P.P.C. And not as of Qisas, as provided under section 302(a) P.P.C., therefore, provisions of sections 306, 307, and 308 P.P.C. Are not applicable in the instant case. Even otherwise, the case of "Khalil-uz-Zamase supra, cited by the learned counsel for the appellant has already been reviewed by the Hon'ble Supreme Court of Pakistan, vide the judgment reported as, Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCM R 2203), wherein at page Nos.2214 and 2215, it has been held as under:-- "19. In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances.
20. After hearing the learned counsel for the petitioner, the convict-respondent, the learned D.A.G. And the learned State Counsel, we find that the learned Division Bench of this Court which annulled the death sentence awarded to the convict-respondent did not notice as to how the learned Supreme Appellate Court had converted the conviction of the convict-respondent from Tazir to that of Qisas. A bare perusal of the order of the Supreme Appellate Court would reveal that no reasons for alteration of sentence of death by way of Tazir to that of Qisas were furnished. According to Mr. M. Ismail Qureshi learned Senior Advocate Supreme Court representing the petitioner, it was on account of inadvertence. Another possibility appears to be that the statement of the convict-respondent recorded under section 342, Cr.P.C. By the learned trial Judge confessing his guilt on the ground of Whairat' was taken to be a voluntary and true under section 304(1)(a) of the P.P.C. This possibility is also not strong enough in that the question is if such a statement is at all a `confession' falling within the ambit of Qanun-e- Shahadat, 1984.. Again even if it be so, whether it is not a sine qua non for such a confession to be true and voluntary because it has to be either accepted as a whole or rejected in toto. In this view of the matter, the conversion of death sentence by the learned Supreme Appellate Court awarded by the learned trial Court by way of Tazir into death by way of Qisas' was sheerly an inadvertence. The learned Division Bench of this Court ought to have but had not adverted at all to this question and had, therefore, gone wrong in taking it for granted that the convict- respondent had been legally awarded death sentence by way of Qisas. The death sentence was awarded to him by the learned trial ,Judge by way of `Tazir' under section 302(b), P.P.C. It was certainly by inadvertence that it was converted into death sentence by way of Qisas. The question referred to lastly was very vital for the disposal of the Constitutional Petition No. 36 and passing of the impugned order.We are of the considered view that there was no ground for conversion of the death sentence by way of Qisas. And this conversion being inadvertent is not sustainable in law.
21. The delay in filing the review petition is condoned in the interest of justice as the proposition of law involved is of public importance and is of far-reaching consequences.
22. The error of omitting to take note by the learned Division Bench of this Court of the impugned order of the learned Supreme Appellate Court was apparent on the face of the record and was related to the impugned order passed by the learned Division Bench. The existence of the error or inadvertence was not disputed before us. The order of this Court dated 3-84994 based as it is upon the mistaken view that the convict-respondent had been awarded death sentence by way of Qisas thus needs to be reviewed.
23. Accordingly, we accept this review petition, set aside the impugned order of the Court and restore that of the learned Special Judge who awarded sentence of death to the convict- respondent by way of Tazir.
' Similarly in another case of Muhammad Akram v. The State (2003 SCAM 855), the Hon'ble Supreme Court of Pakistan, upheld the death sentence awarded to a husband for the murder of his wife by observing that it is not permissible to extend benefit of provisions of sections 307 and 308, P.P.C. In the cases which are punishable under sections 302(b) and 302(c), P.P.C. As Tazir, because it would amount to grant the license of killing of innocent persons by their Walies. The relevant part of the said judgment at pages 859 and 860 reads as follows:-- ".....The first contention of 'the learned counsel relating to the application of section 308, P.P.C.
By virtue of sections 306, P.P.C. Is without any substance, sections 306, 307 and 308, P.P.C.
Would only attract in the cases of Qatl-e-Amd which are liable to Qisas under section 302(a), P.P.C. And not in the cases in which, sentence for Qatl-e-Atnd has been awarded as Tazir under section 302(b) and (c), P. P.C. For the purpose of removing the confusion and misconception of law on the subject the above provision must be understood in the true spirit. Section 306, P. P.C.
Provides that Qatl-e-Amd shall not be liable to Qisas in certain cases mentioned therein inoperative but there is no such exception in a case of Qatl-e-Amd punishable as Tazir. Under section 307, P.P.C. The sentence of Qisas for Qatl-e-Amd cannot be enforced in the cases referred therein and therefore, the exceptions mentioned in sections 306 and 307, P.P.C. Are confined only to the cases liable to Qisas and not Tazir. Under section 308, P.P.C. It is provided that where an offender guilty of Qatl-e-Amd is not liable to Qisas in terms of section 306, P.P.C., the sentence of Qisas will not be enforced against him as provided under section 307, P.P.C., and he shall be liable' to Diyat and may also be punished with imprisonment which may extend to a term of 14 years as Tazir. The above provision of law can be made- applicable only if the essential conditions contained therein are available in a case which is liable to Qisas, and not in the cases of Qatl-eAmd punishable as Tazir. The petitioner was tried for the charge of Qatl-e- Amd under section 302(b), P.P.C. And was convicted and sentenced to death as Tazir, therefore, he would not be entitled to the benefit of section 308, P.P.C. And was rightly punished under section 302(b), P.P.C. It is, not permissible to extend the benefit of provisions of section 308, P.P.C. In the cases of Qatl-e-Amd which are punishable 'under section 302(b) and (c), P.P.C. As Tazir and therefore, the extension of such benefit to cases falling under section 302(a) and 302(c), P.P.C. Would amount to grant the licence of killing of innocent persons by their Walies.
' The abovementioned view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nasir Mehmood and another v. The State (2006 SCM R 204) and the death sentence awarded to the appellant who had murdered his wife was upheld by the Hon'ble Supreme Court of Pakistan and it was observed that as the appellant was punished with death penalty by way of Taz'ir under section 302(b)/34, P.P.C., therefore, he cannot take the benefit of section 306, P.P.C. And resultantly the death penalty awarded to the appellant who had committed the murder of his wife was upheld and maintained by the Hon'ble Supreme Court of Pakistan.
22. Having considered all the pros and cons of this case, the irresistible conclusion drawn by this Court is that the prosecution has proved its case against Muhammad Tahir appellant through the aforementioned confidence-inspiring and reliable evidence. The appellant committed the murder of his wife Mst. Aasma Bibi (deceased) by inflicting repeated firearm injuries on her person and according to the evidence of Lady Dr. Marryam Aftab Khan (P.W.9), there were as many as three firearm entry wounds on the person of Mst. Aasma Bibi (deceased). We are unable to find out any mitigating circumstance in favour of the appellant. He has committed a shocking, callous and cold-blooded murder of his wife namely Mst. Aasma Bibi (deceased), therefore, he does not deserve any leniency. In the circumstances we are of the considered view that there is no extenuating circumstances 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.867 of 2008 is, dismissed.
' Resultantly death sentence awarded to Muhammad Tahir appellant is confirmed and Murder Reference (M.R. No.317 of 2008) is answered in the affirmative.