ROOH-UL-AMIN KHAN, J:- At a trial held by learned Additional Sessions Judge-VI, Mardan, Zulfiqar and Abdul Ghaf far, the appellants, having been found guilty of committing murder of Mst. Nighat deceased, have been convicted under section 302(b) PPC and sentenced to death as Ta'azir and to pay Rs.5,00,000/- (five lacs) each to legal heirs of the deceased in terms of section 544-A Cr.P.C. and in default thereof to further undergo six months simple imprisonment each, vide judgment dated 01.04.2021, in case FIR No.1292 dated 01.11.2021, under sections 302/34 PPC and section 15 KP Arms Act, Police Station City Mardan. The appellants have been acquitted under section 15 KP Arms Act, 2013.
2. Against their conviction and sentences , the appellants convicts have filed the instant criminal appeal, whereas, the learned trial Court has sent Murder Reference No.9 of 2021 , for confirmation of death sentences of the convicts while the State has filed connected Cr.A. No.780-P/2021, against acquit tal of the accused-respondents, under section 15 KP Arms Act, 2013.
3. As all the three matters are the outcome of one and the same judgment dated 01.04.2021 passed by the learned trial Court, in one and the same FIR, therefore, we propose to decide the same through this single judgment.
4. The prosecution' s case as unfolded in the First Information Report ("FIR") Exh.P A is that on 01.11.2021 at 0430 hours, Mst. Nighat (wife of appellant Abdul Ghaf far and step-mother of appellant Zuilfiqar) , in injured condition and fully conscious reported to Karim Khan ASI (PW.6) in District Headquarter (DHQ ) hospital Mardan to the effect that on the fateful night i.e. 01.11.2018 she along with her kids was asleep in her house, situated in village Shaheen Bagh Mardan, when at 0400 hours, her husband Abdul Ghaf far along with her step-son Zulfiqar , the appellants, respectively , entered her room and started giving her dagger blows, as a result, she got injured.
Besides her, the incident is stated to have been witnessed by her children. Domestic dispute between the parties has been advanced as a motive behind the occurrence. She charged both the appellants for commission of the offence. Her report was (PW.10), conducted autopsy on her dead body and found the reduced into writing in the shape of Murasila Exh.P A/1 by Karim Khan ASI, who also prepared her injury sheet Exh.PW .6/1 and referred her for medical examination.
5. On 01.11.2018 at 4.20 a.m., Lady Dr. Zakiya Younas (PW.4) examined injured Mst. Nighat. As per medico legal report, she was in shock, however , after administering emergency treatment she became conscious. Following injures were noticed by the Medical Of ficer on the body of Mst. Nighat vide MLR report Exh.PW .2/1:-
1. 3x4 inches deep lacerated wound on middle of the forehead.
2. Lacerated wound of about 2x3 inches seen on pre-auricular area and pena of left ear .
3. Lacerated wound of 2x2 inches seen on right post auricular area.
4. Two open deep lacerated wound on dorsal and ventral aspect of right shoulder .
5. Two open deep lacerated wound on dorsal and ventral aspect of right forearm.
6. 2 inches lacerated wound on left maxillary area.
7. 2x 2, 1/2 inches lacerated wound on left elbow .
8. Lacerated wound 1 1/2x2 inches in left flank area.
9. Lacerated wound on dorsal of right thigh.
10. Few scratches on left buttock.
11. Part of mesentery (intestinal) coming out from wound above the umbilical.
12. One inch in size a lacerated wound on right perennial area.
6. On 06.11.2018, Mst. Nighat injured succumbed to injuries. On the same day at 07.30 p.m. Dr. Ayesha Qayum same injures on her body as referred in the medico legal report (ibid).
Opinion: According to her opinion cause of death of the deceased was stab wounds to vital organs, like stomach, small and large intestines and blood vessels.
7. Jamshed Khan SI (PW.9) conducted investigation in the case, who on receipt of copy of FIR, proceeded to the spot and prepared site plan Exh.PB on the pointation of eyewitnesses, namely , Hasnain and Mst. Husna. During spot inspect, he secured blood through cotton from the place of the deceased and a bloodstained dagger Exh.P .1 from the spot tip of which was broken vide recovery memos Exh.PW .2/1 and Exh.PW .2/2, respectively . Vide recovery memo Exh.PW .2/3 he took into possession an electric bulb/energy saver Exh.P .2 from the spot room and Banyan of minor Husna stained with the blood of the deceased vide recovery memo Exh.PW .2/4 and vide recovery Exh.PW .5/1, he took into possession the last worn bloodstained garments of the deceased. He sent the bloodstained articles to the FSL, report whereof is Exh.PZ, initiated proceedings under sections 204 and 87 Cr.P.C. against appellant Abdul Ghaf far, produced appellant Zulfiqar before the learned Illaqa Judicial Magistrate for custody , interrogated him and recorded his statement under section 161 Cr.P.C. On expiry of the deceased then injured he prepared her inquest report and issued Parwana for insertion of section 302 PPC in the FIR, recorded statements of the PWs under section 161 Cr.P.C. and after completion of investigation handed over case file to the SHO for submission of complete challan against appellant Zulfiqar and challan under section 512 Cr.P.C. against appellant Abdul Ghaf far. During pendency of trial of appellant Zulfiqar , appellant Abdul Ghaf far was arrested and on completion of necessary investigation supplementary challan was submitted against him before the learned trial court on 04.06.2020.
8. After compliance of the provisions of section 265-C Cr.P.C., both the appellants were formally charge sheeted to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as thirteen witnesses. After closure of the prosecution' s evidence, statements of the appellants were recorded under section 342 Cr.P.C., wherein they denied the prosecution' s allegation and professed their innocence. They , however , declined to be examined on oath or to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides convicted and sentenced the appellants as mentioned above.
9. We have heard the arguments of learned counsel for the parties and perused the record with their able assistance.
10. In this case, Mst. Nighat has been done to death, who initially was shifted in injured condition to the hospital, where in her initial report in the shape of murasila Exh.P A/1/dying declaration has charged her real husband Abdul Ghaf far and her step son Zulfiqar (the appellants) for giving her dagger blows.
11. To prove the guilt of the appellants the prosecution has relied upon the dying declaration of the deceased then injured Mst. Nighat, recorded in the shape of Murasila Exh.P A/1, ocular account furnished by Hasnain (PW.7) and Mst. Husna (PW.8), minor son and daughter , respectively , of the deceased then injured, medical evidence in the shape of medico legal and post mortem reports of the deceased then injured, statements of the Medical Officers coupled with recovery of blood from the spot, the last worn bloodstained garments of the deceased, banyan of Mst.
Husna stained with the blood of the deceased, and bloodstained dagger from the spot.
12. Before reappraising the ocular account of the prosecution' s case, we are taking the dying declaration of the deceased then injured for discussion first. It appears from record this untoward incident has taken place in the month of November , 2018 at 04.00 a.m (night) in the house of appellant Abdul Ghaffar inside his residential room, which has been reported with promptitude at 04.30 a.m. by the deceased then injured. In the Murasila Exh.P A/1/dying declaration it has been categorically mentioned by its author Karim Khan ASI (PW.6) that at the time of report, the deceased then injured was in full senses. He while appearing as PW.6 deposed that on 01.11.2018, on receipt of information, he rushed to DHQ hospital Mardan where Mst. Nighat the deceased then injured reported him in injured condition at 4.30 a.m. and he recorded her report in the shape of Murasila Exh.P A/1.
PW Karim Khan ASI has been subject to cross-examination by the defence, but nothing material to prove that the deceased then injured was not able to talk has been brought from his mouth, rather by putting him a positive question the defence itself has admitted that the Murasila Exh.P A/1 was thumb impressed by the deceased then injured. The relevant part of cross-examination of PW Karim Khan ASI is reproduced below:- "It is correct that Mst. Nighat according to me was illiterate so has thumb impressed the Murasila."
13. Lady Dr. Zakiya Younas (PW.2) who at first instance examined the deceased then injured deposed that on 01.11.2018 at 04.20 a.m., Mst. Nighat was brought before her by Constable Arshad No.943. She (the patient) was in shock at the time of examination, however , after giving her emergency treatment she became conscious. In cross-examination she remained stuck to her stance that initially Mst. Nighat was in shock but after administering her emergency treatment she became conscious. Record depicts that Mst. Nighat remained hospitalized and succumbed to injuries on 06.11.2018 i.e. on the 6th day of occurrence which fact supports the statement of lady doctor . It is manifest from the medico legal report and statement of Lady Dr. Zakiya Younas (PW.2) that deceased then injured was examined at 4.20 a.m. whereas the time of report is 4.30 a.m. meaning thereby that after giving first aid at 4.20 a.m, the deceased then injured gaining senses, made a report at 4.30 a.m. Though, examination of the deceased then injured at 4.20 a.m is prior to report but this aspect of the case would not damage the prosecution's case keeping in view the time of occurrence i.e. 4.00 a.m. and nature of the incident wherein the deceased then injured has charged none but her real husband and her step son and that at the time of report no relative of the deceased then injured was present with her. In light of the statement of Karim Khan ASI, author of the dying declaration coupled with statement of Lady Dr. Zakiya Younas, we are firm in our view to hold that at the time of making report, the deceased then injured was fully conscious and able to make a statement.
14. In the dying declaration, Mst. Nighat the deceased then injured has directly charged her husband Abdul Ghaf far and her step-son Zulfiqar , the appellants, for giving her dagger blows. The occurrence has taken place inside a residential room of the deceased and the appellant Abdul Ghaf far in the odd hours of night at 4.00 a.m. From the spot besides blood and bloodstained dagger , an electric bulb/energy sever Exh.P .2, has been taken into possession, eliminating the possibility of mistaken identity . Blood recovered from the spot and the last worn bloodstained garments of the deceased, were sent to the FSL by the I.O. and positive serologist report in respect Exh.PZ in respect thereof corroborate the dying declaration of the deceased then injured. Similarly , medico legal report of the deceased then injured and statement of Lady Dr. Zakiya Yousans (PW.2), also support the dying declaration.
15. Hasnain while appearing as PW.7 deposed that Mst. Nighat deceased was his real mother . Appellant Abdul Ghafar is his real father and appellant Zulfiqar is his step brother . On 01.11.2018 he along with his mother , sister Mst. Husna and father Abdul Ghaf far, was sleeping in a room. Mst. Husna was asleep in one bed with the deceased whereas he was in a separate bed/Cot. Suddenly , on hue and cry of his mother he and his sister woke up and saw his father Abdul Ghaf far and step brother Zulfiqar giving dagger blows to her mother due to which she sustained injures. After the occurrence the accused decamped from the spot. His injured mother was shifted to the hospital where after few days she succumbed to the injuries. At the time of occurrence an electric bulb/energy saver was lit in the room. The site plan was prepared at his and on the pointation of his sister Mst. Husna. The I.O. recorded his statement under section 161 Cr.P.C. and Mst. Husna. Motive behin d the occurrence was domestic dispute between the deceased and appellant Abdul Ghaf far.
Mst. Husna while appearing as PW.8 deposed that on 01.11.2018 she along with her mother Mst. Nighat was sleeping in one Charpai/Cot while her brother Hasnain and father Abdul Ghaf far were in sleeping in separate Charpai/Cots. On hue and cry of her mother , she and her brother Hasnain woke up and saw ther father Abdul Ghaf far and brother Zulfiqar giving dagg er blows to her mother due to which she sustained injuries. After the occurrence the accused decamped from the spot. Her injured mother was shifted to hospital where she subsequently succumbed to injuries. At the time of occurrence an electric bulb/energy saver was lit in the room.
The I.O prepared site plan at her and on the pointation of her brother Hasnain. Her banyan was also stained with the blood of the deceased. The I.O. recorded her statement under section 161 Cr .P.C.
16. Though the names of PWs Hasnain and Mst. Husna as eyewitnesses are not mentioned in the initial report Exh.P A/1, however , it has been stated by the deceased then injured that besides her the incident was witnessed by her children. Both, Hasnain and Mst. Husna are the kids of the deceased. The former is her real son and the latter as her real daughter . The occurrence has taken place inside a residential room at 4.00 a.m., therefore, presences of Hasnain and Mst. Husna being kids of the deceased at the time of occurrence seems quite natural. Besides, recovery of Banyan of PW Mst. Husna stained with the blood of the deceased is a strong and sufficient circumstance to prove her presence at the spot at the time of occurrence. No doubt, both the PWs have charged both the appellants for giving dagger blows to the deceased then injured, however, one thing is evident from their statements rather proved that appellant Zulfiqar, is their step brother, who during the days of occurrence was residing in a separate house along with his brother and mother. In this regard we would refer to the relevant part of cross-examination of PW Hasnain wherein he has stated that:- "The name of mother of Zulfiqar is Mst. Wilayat. Mst. Wilayat have two sons, namely , Zulfiqar , the accused facing trial, Abdur Raziq and one sister , namely , Mst. Hidayat. Mst. Hidayat is married. My step brothers Zulfiqar and Abdur Raiq are married. They are residing in separate house at village Toru at a distance of 8/9 Kilometers from their house".
Similarly , Mst. Husna in cross-examination has admitted that "It is correct that accused Zulfiqar along with my step mother , is residing in separate house since my birth".
17. Record depicts that on 02.11.2021 i.e. the next date of the occurrence, appe llant Zulfiqar was arrested vide arrest card Exh.PW .9-D/3. Jamshed Khan IO (PW.9) in cross-examination stated that in the arrest card of appellant Zulfiqar it is mentioned that he was arrested from his shop. In light of the statement of PWs Hasnain and Mst.
Husna coupled with the arrest of appellant Zulfiqar on the next day of occurren ce from his shop and domestic dispute between the spouses, participation of appellant Zulfiqar in the commissio n of crime does not appeal to a prudent mind. In this view of the matter , the learned trial Court by not appreciating the evidence in its true perspective has arrived at a wrong conclusion by holding appellant Zulfiqar as guilty of the of fence.
18. On reappraisal of the prosecution' s evidence we have arrived at a conclusion that the prosecution has proved murder of Mst. Nighat deceased by her husband appellant Abdul Ghaf far, through the dying declaration and ocular account furnished by PWs Hasnain and Mst. Husna, son and daughter of the deceased, respectively , corroborated by circumstantial evidence in the shape of recovery of blood of the deceased from the spot, her bloodstained garments coupled with bloodstained dagger as well as supported by medical evidence in the shape of medico legal and post mortem report of the deceased and statements of the Medical Of ficers.
19. Yet there is another aspect of the case, Abdul Ghaf far, the appellant, being husband of the Mst. Nighat deceased was legally , morally and ethically under an obligation to take notice of murder of his wife or if his hands were not sullied with her blood, he should have shifted her to the hospital and made a report. Contrary , appellant Abdul Ghaf far went into hiding and did not bother to participate in her funeral ceremony or at the most to give courage and support to his orphans' children. The appellant has not furnishe d any explanation, much less plausible, with regard to his unexplaine d and noticeable abscondence, which speaks volume about his guilty conscious. The appellant and the deceased (spouses) were residing in one room of a dwelling house along with their children PWs Hasnain and Mst. Husna. Both have charged their father appellant Abdul Ghaf far for murder of their mother . We see no reason much less convincing to remotely suggest false implication of appellant Abdul Ghaf far by their minor children. It also does not appeal to a prudent mind that minor kids who have already lost their mother would implicate their innocent father so as to deprive themselves from the shadow of their father . The prosecution has succeeded in proving that the spouses spent the night together in the room of their house. The deceased/wife of the appellant has been murdered at 4.00 a.m. inside her room; therefore, the appellant/husband was under laden duty to explain the death of his wife. If he could not offer any explanation about the injuries sustained by his wife then it shall be treated as and taken as a strong circumstance indicating his irresponsible attitude about murder of his wife. In this view of the matter , the learned trial Court has rightly held the appellant Abdul Ghaf far guilty of the of fence to which no exception can be taken.
20. The next question for determination is what should be the quantum of sentence to be awarded to the appellant Abdul Ghaf far to meet the ends of justice. Admittedly , the deceased is survived by a son and a daughter , who have already lost their mother and if they are also deprived from their father by awar ding him capital sentence, they would suffer to the maximum because in absence of their parents, they would become shelter less. Besides, dwelling of the appellant Abdul Ghaf far and the deceased in one house and one room till the night of occurrence is suggestive of the fact that there was nothing too much serious between them while on the night of occurrence exchange of some hot words taken place between the spouses, as a result, the appellant Abdul Ghaf far lost his temper and in the heat of passion committed the offence. In this view of the matter , the incident being the result of sudden flare up also warrant leniency in the matter of sentence.
21. As regards Cr.A. No.780-P/2021, filed by the State against acquittal of the accused/respondents under section 15 KP Arms Act, 2013, it is evident from the record that the crime dagger has not been shown recovered from possession of the appellants or on their pointation, therefore, findings of the learned trial court qua acquittal of the appellants under section 15 KP Arms Act, does not warrant any interference by this court.
22. For what has been discussed above, this appeal is partially allowed to the extent of appellant Zulfiqar , his conviction and sentences recorded under section 302(b) PPC by the learned Additional Sessions Judge-VI, Mardan vide judgment dated 01.04.2021, are hereby set-aside and he is acquitted from the charge leveled against him in case FIR No.1292 dated 01.11.2018, under sections 302/34 PPC, section 15 KP Arms Act, Police Station City Mardan. He be set at liberty forthwith if not required or confined in any other case.
To the extent of appellant Abdul Ghaf far, this appeal is dismissed in terms that his conviction under section 302(b)
PPC is maintained, however , his senten ce is reduced from death penalty to imprisonment for life at Ta'azir On acquittal of appellant Zulfiqar and reduction in the sentence of the appellant Abdul Ghaf far, the Murder Reference No.9 of 2021 , sent by the learned trial Court, is answered in the Negative .
Connected Cr.A. No.780-P/2021, filed by the State against acquittal of accused/respondents Zulfiqar and Abdul Ghaf far, under section 15 KP Arms Act, 2013, is hereby dismissed.
22. These are the reasons of our short order of even date which is reproduced below:- "For reasons to be recorded later on, this appeal is partially allowed to the extent of appellant Zulfiqar , his conviction and sentences recorded under section 302(b) PPC by the learned Additional Sessions Judge-VI, Mardan vide judgment dated 01.04.2021, are hereby set-aside and he is acquitted from the charge leveled against him in case FIR No.1292 dated 01.11.2018, under sections 302/34 PPC, section 15 KP Arms Act, Police Station City Mardan. He be set at liberty forthwith if not confined in any other case.
To the extent of appellant Abdul Ghaf far, this appeal is dismissed in terms that his conviction under section 302(b)
PPC is maintained, however , his sentence is reduced from death penalty to imprisonment for life at Ta'azir On acquittal of appellant Zulfiqar and reduction in the sentence of the appellant Abdul Ghaf far, the Murder Reference No.9 of 2021 , sent by the learned trial Court, is answered in the Negative .
Connected Cr.A. No.780-P/2021, filed by the State against acquittal of accused/respondents Zulfiqar and Abdul Ghaf far, under section 15 KP Arms Act, 2013, is hereby dismissed.