RAJA SAEED AKRAM KHAN, J. --- This appeal, has been addressed against the judgment of the Shariat Court dated 9th December, 2013, whereby the appeals filed by the convict-appellant; have been dismissed; the murder reference has been answered in affirmative.
2. The facts necessary for disposal of the instant appeal are that, on 03.01.1999, a case under Section 302, APC and Section 13 of Arms Act, 1965 was registered at police station, Kotli on the complaint of Muhammad Suleman. It was reported that the complainant is resident of village Neli Tehsil & District Kotli. On 03.01.1999, the complainant alongwith his brother, Babar Nawaz, mother, Jannat Begum and others was present in his house. The complainant's sister, Mst. Freezam was married with Muhammad Riaz. She came to the house of the complainant at 3:00 a.m. and told that Muhammad Riaz quarrelled with her and threw out of the house. In the meantime, the convict- appellant also reached there and fired at his wife with 12-bore gun. The pallets hit the victim at right side of her face. She fell down and succumbed to the injuries. Muhammad Riaz, convict- appellant, fled away after committing the offence.
3. After registration of the case, the convict-appellant was arrested by the police and on completion of investigation, the challan was presented in the District Court of Criminal Jurisdiction, Kotli. At the conclusion of trial, the Trial Court vide its judgment dated 31.12.2002, awarded the sentence of death as Qisas to the convict-appellant under Section 302, APC and sentence of 1 year's rigorous imprisonment under Section 13 of the Arms Act, 1965. reeling dissatisfied, the convict-appellant filed two appeals before the Shariat Court which were dismissed and the reference submitted by the Trial Court for confirmation of death sentence was answered in affirmative. Hence, this appeal.
3. Mirza Abdul Aziz Ratalvi, Advocate the learned counsel for the convict-appellant argued that the judgments of the Courts below are based on non-appreciation of evidence. He contended that this is an unseen occurrence not witnessed by any one and the whole story has been manoeuvred just to implicate the convict-appellant in the offence. He submitted that there.are glaring contradictions in the ocular account and the medical evidence. The Courts below fell in error while not taking into consideration the time of death of the deceased as the post-mortem was conducted after 32 hours of the death of the deceased which negates the whole prosecution story and creates a serious doubt regarding the manner and time of occurrence. He also referred to the inquest report while submitting that nobody touched the dead-body. He added that semi digestive food was found in the stomach of the deceased at the time of post-mortem which also negates the story of the prosecution. In this way, the Courts below have not appraised the evidence of the prosecution according to the settled norms of justice. In continuation of his arguments, he submitted that according to the statement of prosecution witness, namely, Babar Nawaz, the relations between the spouses were not sour. In this way, the version of the prosecution regarding the motive is not proved. He strongly argued that the evidence brought on record by the prosecution does not warrant to award the capital punishment as the case of the convict appellant securely falls under Section 308 or 302(c), APC. He further contended that no explanation has been offered by the prosecution regarding the injury appears to be caused with the sharp edge weapon on the face of the deceased which itself makes the prosecution case doubtful. The statement of another witness, namely, Muhammad Suleman, is also not consistent with the prosecution story. He added that when there are serious contradictions in the ocular account then every possible benefit arising out of the prosecution story and evidence must be extended to the convict-appellant. He further added that the convict-appellant is behind the bars for the last more than 161/2 years, therefore, the death penalty amounts to make this case as of double jeopardy. He submitted that all the prosecution witnesses (PWs) are close relatives and their statements are full of contradictions which cannot be believed for awarding capital punishment. He lastly argued that if the Court comes to the conclusion that it is not a case of acquittal, then alternate sentence of life imprisonment be awarded to the convict-appellant. He has relied upon the cases reported as Muhammad Feroze v. The State [PLD 2003 Karachi 355] and Niamat Ali v. The State [1998 P.Cr.L.J.
1072].
4. On the other hand, Muhammad Ilyas Ch.,Advocate, the learned counsel for the complainant, strongly refuted the arguments advanced by the learned counsel for the convict-appellant while submitting that both the Courts below have concurred with the matter after analysing the evidence and came to the right conclusion that the prosecution has succeeded to prove its case beyond doubt. He contended that specific motive has been established by the prosecution and proved the same while producing the overwhelming evidence. All the PWs are natural and their presence at the time of occurrence has been proved by the strong evidence. He added that all the PWs remained consistent in their statements on all the material points and in spite of lengthy cross-examination, the defence failed to secure anything in its favour. He contended that it is a case of direct evidence and in such-like cases, the corroborative evidence can easily be ignored.
The convict-appellant is a habitual offender as he remained involved in another murder case but the same was compromised. The conduct of the convict-appellant disentitled him for any sort of leniency. The prosecution story has been narrated in a natural manner as the parties were known to each other, therefore, the question of identification does not arise. He added that it is recognized principle of law that in case of single accused the substitution of culprit is rare phenomenon. He has relied upon the case reported as Muhammad Ilyas v. Kabir Hussain and another [2002 SCR 510].
5. Ch. Muhammad Ashraf Ayaz, the learned Addl. Advocate-General adopted the arguments advanced by the learned counsel for the complainant while submitting that credible and trust- worthy evidence has been brought on record which cannot be disbelieved without any strong reason. Both the Courts below have evaluated the prosecution evidence in a legal manner and rightly came to the conclusion that the prosecution has proved the case against the convict- appellant. He added that no such mitigation has come on the record to award the lesser sentence to the convict. It is settled principle of law that once a case has been proved, the capital punishment should have been awarded. He submitted that the mere fact that the convict is behind the bars for the last 16 years, does not make the case of double jeopardy.
6. We have heard the learned counsel for the parties and gone through the record alongwith the impugned judgment. According to the prosecution story, the deceased was wife of the convict- appellant. On 03.01.1999, in the month of Ramdan, at the time of Sehri, i.e, 3:00 a.m., the deceased came to the house of her parents and told that the convict-appellant quarreled with her. In the meantime, the convict-appellant also came there and fired a shot of 12-bore gun which hit the deceased and she succumbed to the injuries. The main thrust of the arguments of the learned counsel for the convict-appellant is that the case of the convict-appellant is of lesser punishment.
In support of this version, he addressed three-folded arguments. The first argument of the learned counsel for the convict-appellant is regarding the delay in lodging of FIR. To meet the arguments, we have examined the record. It transpired from the record that the occurrence took place on 03.01.1999 at about 3.00 a.m., whereas, the F.I.R. was lodged after 8 hours of the occurrence at about 11.00 a.m. Admittedly, the occurrence took place at night time, in the area which is situate at a considerable distance from the police station and the transport was not easily available to the complainant party at the relevant time. It will be useful to reproduce here the explanation offered by the complainant while recording his statement which reads as under:--- {{URDU TEXT}} After going through the above-said portion of the statement of the complainant, we are fully convinced that the explanation offered by the complainant regarding the delay is plausible and the delay caused in lodging of F.I.R. is not fatal for the prosecution.
7. The next argument of the learned counsel for the convict-appellant is that according to the prosecution story the deceased received only fire-arm injury, whereas, according to the post- mortem report there was also an injury appears to be caused by sharp-edged weapon on the face of the deceased which makes the case doubtful. To appreciate this argument, we have examined the record minutely. The record shows that regarding the said injury, the opinion had been sought from the doctor by the prosecution. According to the opinion of the doctor, such-like injury can be caused due to failing on a sharp-edged object. The opinion of the doctor which is available at page 27 of the Trial Court's file reads as under:-- "This type of injury is possible by failing on sharp object."
After going through the opinion formed by the doctor, we do not think that the prosecution has not furnished any plausible explanation regarding the injury appeared to be caused by sharp-edged weapon. Moreover, the injury on the face of deceased itself shows that at the house of her husband, the deceased might have been beaten severely and to save her life she rushed towards her parent's house but the convict-appellant while chasing her came there to do away with her life.
Thus, the argument of the learned counsel for the convict-appellant has no substance.
8. Another argument which was stressfully argued by the learned counsel for the convict-appellant to bring the case of the convict-appellant within the purview of mitigation, is that the period intervening between the death and the post-mortem of the deceased is 24 to 32 hours which cannot be adjusted easily. Through this argument the learned counsel for the convict-appellant tried to convince the Court that the manner and time of occurrence are highly doubtful and the benefit of the same must be extended to the convict-appellant. While considering the crucial argument, we have thoroughly examined the post-mortem report. It appears from the post- mortem report that the post-mortem was conducted on 04.01.1999 at about 10:45 to 12:45 a.m.
According to the prosecution version, the occurrence took place on 03.01.1999 at about 3.00 a.m., the doctor also mentioned in the post-mortem- report that the time between death and post- mortem of the deceased comes to 24 to 32 hour i.e, After examining the post-mortem report there is no ambiguity in our mind that the time mentioned in the post-mortem report is in consonance with the time of death as narrated by the prosecution. In this scenario, it can safely be held that the doctor has rightly mentioned that intervening period of death and post-mortem of dead-body is 24 to 32 houi.e, Thus, the argument in this regard is not helpful to the convict-appellant as the learned counsel failed to substantiate any mitigation in this regard. Mere delay in conducting the post-mortem is no ground for reduction of sentence when there is no contradiction in the story established by the prosecution and the post-mortem report.
8. Although, the learned counsel for the convict-appellant has failed to any serious material contradiction in the statements of PWs, however for doing complete justice and for our own satisfaction, we have examined the same. According to the prosecution story the occurrence took place at the time of Sehri, when the inmates of the house were busy in preparation of Sehri.
Suddenly, the deceased came there and immediately after her entrance in the house, the convict- appellant armed with gun also entered and make a straight shot which hit her at the face and she succumbed to the injuries. The occurrence alleged to have been witnessed by the complainant, Muhammad Suleman, Babar Nawaz, Mst Jannat Begum and Mst Robina Kausar. It is admitted fact that all the PWs are the inmates of the house, therefore, their presence at the place of occurrence appears to be natural. We deem it proper to reproduce here the relevant portion of the statements of eye-witnesses which read as under:--- The complainant, Muhammad Suleman, stated in his statement that:- {{URDU TEXT}} The eye-witness, namely, Babar Nawaz, stated in his statement that:-- {{URDU TEXT}} One of the eye-witnesses, namely, Jannat Begum, stated in her statement that:--- {{URDU TEXT}} The eye-witness, namely, Robina Kausar, stated in her statement that:-- {{URDU TEXT}} After going through the statements of the eyewitnesses, there is no doubt in our mind that all the PWs remained consistent regarding the time of occurrence, manner of occurrence and place of occurrence. It also reveals from the perusal of statements that in spite of lengthy cross- examination the defence failed to shatter the confidence of the witnesses. In the light of the survey of PWs statements and the documentary evidence produced by the prosecution, we are of the unanimous view that the prosecution has succeeded to prove the case against the convict- appellant beyond any shadow of doubt.
9. The argument of the learned counsel for the convict-appellant that all the PWs are close relatives, therefore, their statements cannot be relied upon, is not convincing in nature. There is plethora of judgments on the point that mere relationship cannot be made a ground for discarding the evidence when no ill-will or animosity against the convict has been brought on record. In the instant case, the defence failed to bring any element of animosity against the convict on record, thus, in absence of that, the testimony of the statements of PWs Who otherwise appear to be natural witnesses, cannot be discarded. In a recent unreported judgment titled Karim Dad v. Javed and others (criminal appeal No, 25 of 2011, decided on 23.02.2015) while dealing with the proposition this Court observed as under:-- "10. The argument of the learned counsel for the convict-appellants that all the PWs are inter se related, therefore, their statements cannot be taken into consideration, has also no substance. It is now settled principle of law that mere relationship is no ground to discard the testimony of the witnesses until some ill-will or animosity against the accused comes on the record. Nothing is spelt out from the record through which it could be ascertained that there was any enmity of the PWs with the convicts-appellants to falsely implicate them in the case. In absence of that, their statements can safely be relied upon."
10. The perusal of record shows that to adjudge the credibility of witnesses, the purgation was also conducted by the Trial Court. In purgation report, the witnesses have been shown by the Muzakki as Adil. The relevant portion of the report reads as under:-- {{URDU TEXT}} After going through the purgation report, we are of the view that the requirements of Section 304, APC have been fulfilled by the Trial Court while awarding the sentence of death as Qisas to the convict. The learned counsel for the convict-appellant also failed to point out any irregularity or departure from the relevant provisions of Section 304,APC. In such-like situation, the proper course for the Trial Court was to award the punishment of death as Qisas. In a recent judgment titled Ghazanfar Ali .v. The State (Criminal Appeal No, 31 of 2011, decided on 13.04.2015) this Court observed as under:-- "14. So far as the crucial argument forcefully stressed by the learned counsel for the convict appellant that standard of evidence brought on record does not allow to award the normal penalty of death as Qisas is concerned, we have appreciated the evidence brought on record. It is pertinent to mention here that difference between Qisas and Tazir is that in case of Qisas the Court has no discretion in the matter of Sentence, whereas, in case of Tazir the discretion lies with the Court to award sentence if death or life imprisonment. For awarding the sentence of Qisas the requirements of Section 304, APC are required to be fulfilled. During the course if arguments, a query was made to the learned counsel for the convict-appellant whether he has any reservation/objection regarding Tazkiyat-ul-Shahood (purgation), he fairly stated that he has no objection regarding the same. However, for our own satisfaction, we have minutely examined this aspect of the case. In this regard, we have gone through the relevant provisions of law, i.e, Section 304, APC are read with Article 17 of the Qanun-e-Shahadat Order 1984. It will be advantageous to reproduce here the relevant provisions of law. Section 304, are reads as under:-- '304. Proof of qatl-i-amd liable to qisas, etc. (1) Proof of qatl-i-amd shall be in any of the following forms, namely:--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No, 10 of 1984).
(2) The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas.'
' Article 17 of the Qanun-e-Shahadat Order, 1984 reads as under:--- '17. Competence and number of witnesses. (1) The competence of a person to testify, and the number of witnesses' required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2)Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,--- (a)in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall beled accordingly, and (b)in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.'
After going through the above-said provisions of law, it appears that the prerequisites for punishment of Qisas are the proofs as provided in Section 304, APC itself with reference to either accused makes confession before the Court or as required under Article 17 of Qanun-e-Shahadat Order, 1984. Where proof of Qatl-i-Amd liable to Qisas as required under Section 304, APC is not available, the accused is liable to be convicted and sentenced under Section 302(b), APC. It may be observed here that in Hudood and Qisas cases, tazkiya of witnesses is an obligation on the Court for ascertaining their competency and righteousness and the record shows that Trial Court has fulfilled its obligation in this regard. The learned counsel for the convict-appellant has also not raised any serious objection regarding the purgation. In this scenario, it can safely be held that punishment of Qisas can be awarded in the case in hand as the prosecution has fully proved its case beyond reasonable doubt. The learned counsel for the convict-appellant failed to bring its case within the purview of lesser punishment as he failed to point out any mitigation. The sentence of death as Qisas can only be converted into life imprisonment as Tazir where requirement of Section 304,, APC has not been fulfilled, whereas, in the case in hand no such situation has arisen."
11.It also appears from the record that at the time of occurrence the deceased was pregnant; but the convict-appellant while acting in a brutal manner murdered her alongwith genan. The convict- appellant also bears a criminal history as he remained involved in the murder of his former wife.
Although, the said murder case was compromised between the parties, however, the same reflects the conduct of the convict-appellant. As the convict is involved in the murder of his wife, therefore, here we would also like to attend the question, whether being a husband, the sentence of death as Qisas can be awarded to the convict-appellant or not? The wife of the convict was pregnant at the time of occurrence and premature baby was also died during this occurrence, meaning thereby, she is not survived by any Mali (legal heir). Moreover, no other direct descendent of the deceased is available in the case in hand. The eventualities for non-awarding the death sentence as Qisas are provided in Sections 306 and 307, are which read as under:-- "366. Qatl-i-amd not liable to qisas.
Qatl-i-amd shall not be liable to qisas in the following cases, namely:---
(a) when an offender is a minor or insane: Provided that, where a person, liable to qisas associates himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas;
(b) when an offender causes death of his child or grandchild, how lowsoever; and
(c) when any wall of the victim is a direct descendant, how lowsoever, of the offender.
307. Cases in which qisas for qatl-i-amd shall not be enforced. Qisas for qatl-i-amd shall not be enforced in the following cases, namely:---
(a) when the offender dies before the enforcement of qisas;
(b) when any wall voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under Section 309 or compounds under Section 320; and
(c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender."
After going through the supra provisions of law, we are of the view that no eventuality for non- awarding the sentence of death as Qisas to the convict-appellant is available in the case in hand as neither any Wall nor any direct descendent of the victim is alive. As we have observed earlier that the prosecution has succeeded to prove the case against the accused, therefore, the law does not impose any embargo to award the sentence of death as Qisas to the convict-appellant.
Section 306, APC has been interpreted by the apex Court of Pakistan in a case reported as Khalil- uz-Zaman v. Supreme Appellate Court, Lahore and 4 others [PLD 1994 SC 855], in the following manners:-- "7.On our independent assessm ent of the facts, circumstances of the case and appreciation of the relevant provisions of law, we find that the F.I.R. and the prosecution evidence reveal that the deceased was the wife of the offender. A daughter namely, Mst. Amina was born out of the wedlock. Mst. Amina is alive. She is a Wali of the deceased and is also the direct descendant of the offender/petitioner. From the judgment of the Trial Court and the Appellate Court is very much obvious that both the learned Courts were fully aware of this aspect of the case. Yet, the offender has been sentenced to death as Qisas under Section 302(a) of P.P.C., whereas, provisions of Section 306(c), P.P.C. clearly lay down that Qatl-i-Amd not liable to Qisas, under Section 308, P.P.C., which does not provide death penalty, so we are in no manner of doubt that the Trial Court and also the learned Appellate Court had no lawful authority/jurisdiction/power whatsoever to convict the petitioner under Section 302, P.P.C, or to impose penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the accused from the statute. If the statute does not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same, and, as such, the conviction and sentence of the petitioner recorded under Section 302, P.P.C. is coram non judice."
Similarly, in a case reported as Nasir Mahmood and another v. The State [2006 SCMR 204] it has been observed that:-- "4.We have examined the judgment of the learned Trial Court delivered in the present case.
Paragraph 45 of the said judgment, dated 2.11.1995 reveals that Nasir Mehmood appellant had not been punished with death by way of Qisas under Section 302(a) of the P.P.C. but had been directed to suffer death by Wali of Tazir under Section 302(b)/34, P.P.C. The provisions of Section 306, P.P.C. provide on that Qisas shall not be enforced on an offender whose descendants were Wali of the deceased person."
In another case reported as Muhammad Akram v. The State [2003 SCMR 855], it has been observed that:-- "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-i-Amd which are liable to Qisas under Section 302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd has been awarded as Tazir under Section 302(b) and (c)."
It has further been observed in a case reported as Faqir Ullah v. Khalil-uz-Zaman and others [1999 SCMR 2203] that:--- "17. We are, however, unable to agree with Mr. Muhammad Ismail Qureshi, learned Senior Advocate Supreme Court, that there is no Injunction of Qur'an that absolves an offender from the sentence of death by way of Qisas if Wall of the victim is descendant of the offender."
12. From the survey of case-law, it reveals that punishment of death as Qisas cannot be awarded if the case of the offender is covered under Section 306, APC, whereas, in the case in hand, we have already observed in the preceding paragraphs that no eventuality for non-awarding of the sentence of death as Qisas, is available. Even otherwise, if the case is proved against the accused the death penalty can also be awarded as Tazir if the requirements of Qisas are not available. The only difference between Qisas and Tazir is that in case of Qisas no discretion is left with the Court except to award the sentence of death, whereas, in case of Tazir, the discretion lies with the Court to award the sentence of death or life imprisonment, according to the circumstances of the case.
13. Thus, keeping in view the overall circumstances of the case, we are of the view that the convict- appellant is not entitled for any leniency. The Trial Court has not committed any illegality while awarding the sentence of death as Qisas and the learned Shariat Court has rightly upheld the same as it is settled law that if a case under Section 302, APC is proved against .an accused beyond reasonable doubt, the normal penalty of death should be awarded to the accused. This Court in a recent judgment titled Ghazanfar Ali v. The State (criminal appeal No, 31 of 2011, decided on 13.04.2015) has observed that:-- "It may be observed here that it is recognized phenomenon of law that when .the prosecution proved its case beyond reasonable doubt then it is paramount duty of the Courts to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minted people."
In the light of above discussion, this appeal having no substance stands dismissed.