CH. KHURSHID AHMAD, J.---Muhammad Ramzan son of Allah Wasaya, appellant, was arrested in case F.I.R. No-28/91 registered at Police Station Mahmood Kot, District Muzaffargarh, on 17-4-1991 under section 302, P.P.C. He was sent up to stand his trial and was convicted by the Sessions Judge, Muzaffargarh on 11-8-1992 and sentenced as under.---
(1) Convicted under section 302, P.P.C. For Qatl-i-Amd of Mst. Sakina and sentenced to death by hanging through neck till death (subject to confirmation by the High Court). Under section, 544-A, Cr.P.C. He shall have to pay compensation of Rs.15,000 to the heirs of deceased Mst. Sakina. In case of default to make payment, he shall have to undergo S. I. For two years.
(2) Convicted under section 337-A.I), P.P.C. And sentenced to pay Daman of Rs.2,000 per injury totalling at Rs.8,000 and is punished with imprisonment for a term of two years' R.I. As Tazir. In case of non payment of Daman to the injured, the accused shall have to undergo S.I. For I-1/2 years.
(3) Convicted under section 337-A(ii) P.P,C. And sentenced to' Qisas in consultation with the authorised Medical Officer. If the Qisas is not executable keeping in view the principles of equality as ordained by Injunction of Islam, the accused was to be liable to Arsh of Rs.3,000 and was also to undergo imprisonment for a period of 5 years' R.I. In case of non-payment of amount of Arsh, the accused was to undergo S.I. For one year.
(4) Convicted under section 337-F(v), P.P.C. And sentenced to Daman of Rs.4,000 and to undergo R.I. For five years. In case of non-payment of Daman to the injured, he was to undergo S. I. For 1-I /2 years.
(5) Convicted under section 336, P.P.C. And was sentenced to Qisas, in consultation with the authorised Medical Officer. In case the Qisas be not executable, in view of the principles of equality as ordained by Injunction of Islam, he was to pay Arsh of Rs.5,000 to be paid to the injured and to undergo R.I. For ten years. In case of non-payment of amount of Arsh he was to undergo S.I. For 1- 1/2 years.
It was further directed that in case sentence of death be altered into life imprisonment, other substantive sentences awarded to the accused were to run concurrently; whereas, sentences to be undergone by the accused in case of failure of payment of amount of Daman and Arsh, were to run consecutively. Amount of Arsh and Daman was to be paid to the injured.
The Trial Court has made the reference for confirmation of death sentence being M.R. No.369-92.
The convict filed the appeal against the judgment of conviction and sentence. This judgment will dispose of both the matters.
2. The occurrence took place at 2 p.m. On 17-4-1991 and the matter was reported by Hakim Khan son of Allah Diwaya to Muhammad Sadiq, A.S.-I. Who recorded the same and sent to the police station for recording of the formal F. I. R.
3. The occurrence as narrated by Hakim Khan was that he was resident of Mauza Haji Shah and was married to Mst. Sakina daughter of Allah Wasaya resident of Mauza Massaram Sandila and his sister Mst. Razia in Watta was married to Muhammad Ramzan son of Allah Wasaya. His sister Mst.
Razia filed a suit for dissolution of marriage and obtained decree of dissolution whereas Mst.
Sakina, his wife, was living happily with him. On the day of occurrence at 2 p.m. He alongwith Mst.
Sakina, his wife, went to his father-in-law's house to greet him Eid. Allah Wasaya P.W. And Muhammad Ramzan appellant were present at their house. When they were to return and came out of the Haveli, Muhammad Ramzan said that as his wife had taken divorce from him he would not allow his sister Mst. Sakina to live with her husband and she will stay back in the house of parents. Allah Wasaya and Mst. Sakina protested. Muhammad Ramzan all of a sudden brought a knife out of his Dub and started giving blows to Mst. Sakina on her chest and belly; the knife fell from his hand, when his father-in-law tried to intervene. Muhammad Rarnzan brought out a Kulhari from the Chhappar and gave injuries to Allah Wasaya hitting him on his left hand, ear and back. He also tried to intervene but was threatened. On his raising alarm Mahi Khan son of Karim Bakhsh and Haji Fida Hussain son of Ranjha Khan came to the spot and witnessed the occurrence. Muhammad Ramzan fled from the spot alongwith the Kulhari. Mst. Sakina, his wife, died on the spot as a result of the injuries. Allah Wasaya was taken to Civil Hospital, KotAddu. Dead body of Mst. Sakina was left under the guard of Mahi Khan and Ghulam Sarwar P.Ws. And he had proceeded to lodge the report.
4. After recording the statement of Hakim Khan the A.S.-I. Read out the same (Exh.PB) to the maker thereof who thumb-marked the same in token of its correctness. "Ferd Biyan" was sent to the police station for formal registration of F.I.R. Through Mureed Hussain, H.C. And he proceeded to the spot alongwith the complainant. He examined the dead body of Mst. Sakina, prepared the Injury Statement Exh.PH and Inquest Report Exh.PI and despatched the dead body of Mst. Sakina through Ashiq Hussain, Constable to the Tehsil Headquarters HoWital, Kot Addu for post-mortem examination. He inspected the place of occurrence, collected blood-stained earth from the spot and sealed the same into a parcel and secured vide memo. Exh.PC.
5. Allah Wasaya P.W. Was admitted in the hospital. Muhammad Sadiq A.S.-I. Made an application Exh.PK to the Medical Officer seeking his opinion if Allah Wasaya injured was fit to make a statement. The reply was in the negative. Ashiq Hussain, Constable (P. W.8) produced before I.O., after post-- mortem examination of Mst. Sakina, her last-worn clothes given to him by the Medical Officer being Shirt P.1, Shalwar P.2, Burqa P.3, Dopatta P.4, two ear rings P.5 and P.6, two nose pins P.7 and P.8, amulet P.9 a key P.10, necklace P.11, two Chhallas P.12 and P.13, one ring P.16, two silvery rings P.17 and P.18 which were secured by the Investigating Officer vide memo Exh.PD. He deposited the parcels containing blood-stained earth, the last-worn clothes and ornaments of the deceased with Muhammad Akbar HC for safe custody. Injured Allah Wasaya was not fit to make statement even on 20-4-1991.
6. The accused was arrested by Muhammad Sadiq A.S.-I. (P.W.9) on 20-4-1991. On 22-4-1991 while in police custody Muhammad Ramzan accused led the police and the P.Ws. To his house and produced knife P.15 which was lying in the closure of reeds. The knife was blood-stained. The same was sealed into a parcel and secured under memo. Exh.PF. Rough site plan of the place of recovery of the knife was prepared by him which was Exh.PL. The accused also led the police party to the recovery of hatchet P.14 which was blood--stained, was made into a sealed parcel and secured vide memo. Exh. PE. He prepared site plan of the place of recovery of hatchet Exh.P.M. Both the parcels were handed over to the Moharrir Ghulam Akbar P.W.7. He got the site plan prepared by Abdul Hameed Patwari (P.W.1) and gave his notes in red ink. He recorded the statement of Allah Wasaya P.W. On 27-4-1991 when the Medical Officer gave him clearance on his application Exh.PN.
He recorded the statements under section 161, Cr.P.C. Of all the P.Ws. And got the report under section 173, Cr.P.C. Prepared and submitted in Court.
7. At trial prosecution produced Abdul Hameed P. W.1, a Patwari, who prepared site plan! Of the place of occurrence Exhs.PA, PA/1 and PA/2 at the pointation of the witnesses in the scale of 16 Karams to an inch. P.W.2 Hakim Khan, P.W.3 Mahi Khan and P.W.4 Allah Wasaya gave the eye- witness account. Dr. Muhammad Rasheed P.W.5 had conducted the post-mortem examination on the dead body of Mst. Sakina and Dr. Abdul Jabbar P.W.10 had medically examined Allah Wasaya P.W. Muhammad Hussain P.W.6 had registered the formal F.I.R. Exh.PB/1 on the basis of Ferd Biyan Exh.PB. P.W.7 Ghulam Akbar, HC was posted as Moharrir at the police station and he was handed over two sealed parcels of blood-stained earth and last worn clothes and ornaments of the deceased for safe custody on 18-4-1991 sent by Muhammad Sadiq, A.S.-I. He was also handed over two sealed parcels of knife and hatchet respectively for safe custody. All the sealed parcels except the one containing last-worn clothes and ornaments of the deceased, were handed over to Ashiq Hussain, Constable P.W.8 who took the parcels to the Chemical Analyst, Lahore. The parcels so long as they remained in his possession were not tampered with by any body. Ashiq Hussain P.W.8 had taken three sealed parcels from P.W.7 on 23-4-1991 and handed over those parcels at Lahore on 24-4-1991 intact.
8. Muhammad Sadiq, A.S.I., the Investigating Officer appeared as P.W.9. P.W.9 stated that he recorded the statement of Hakim Khan Exh.PB, read over the same to Hakim Khan and obtained his thumb-impression on his admitting the same as correct and sent the complaint for formal registration through Murid Hussain, Constable to the Police Station and proceeded to the spot. He narrated all the steps that were taken in the progress of the investigation of the case and during cross-examination stated:--- ---....This fact was not brought on the record that Ahmad Bakhsh son of Illahi Bakhsh and Mst.
Sakina, deceased, were found in objectionable condition in the Chhappar and the accused caused murder of Mst. Sakina due to grave and sudden provocation."
9. Hakim Khan P.W.2 in his statement before the Court stated that he was married to 'Mst. Sakina some 7/8 years earlier in Watta/exchange of his sister Mst. Razia who was married to Muhammad Ramzan accused. He and the deceased were living harmoniously whereas the accused did not extend proper treatment to his sister and she got a decree for dissolution of marriage from the Court. On the day of occurrence he alongwith the deceased went to the house of his in-laws at about noon time to see them and offer Eid greetings. His father-in---law Allah Wasaya and Muhammad Ramzan accused were present in the house. They met each other. At about 2 p.m.
They left their house. When they had covered a distance of about 10 Karams the accused came and caught hold of the deceased saying that he would not allow her to go away because he wanted divorce for Mst. Sakina for the reason that his wife had obtained a decree for divorce. Allah Wasaya P.W. And Mst. Sakina rebuked the accused as to why he wanted divorce for Mst. Sakina who had small children. Then the accused took out a knife from the fold of his Chaddar and stabbed Mst. Sakina causing injuries on abdomen, chest and left side of the shoulder. He cried for help and tried to intervene. Allah Wasaya intervened who received threats of murder. Mahi Khan and Haji Fida Hussain also came to the spot and witnessed the incident. His father-in-law had physically intervened hence the knife which was in the hand of the accused fell down and the accused then picked up hatchet lying under the Chhapper and gave blows to Allah Wasaya causing injuries on the left hand, arm and left side of the head. The accused went away from the spot alongwith the weapons. Mst. Sakina died at the spot. His father-in-law survived, was shifted to hospital for treatment. Ghulam Sarwar arrived and leaving him and Mahi Khan at the spot with the dead body he went to lodge the report. Thanedar met him at Jhakhri Minor Canal. He made statement Exh.PB which was read over to him and he in token of its correctness thumb-marked the same. He also stated the motive which was the decree of divorce obtained by his sister against the accused.
10. Mahi Khan P.W.3 stated that on the fateful day he was going to give gifts to the children of Allah Wasaya. At about 2 p.m. He heard the cries from near the house of Allah Wasaya. Mst. Sakina was raising the cries. He rushed to the spot. Accused Muhammad Ramzan was giving knife blows to Mst. Sakina. Haji Fida Hussain also arrived in the meantime. Hakim Khan and Allah Wasaya had also witnessed the incident. The accused had given knife blows to Mst. Sakina on the left side of abdomen and shoulder. He could not intervene physically because the accused was armed. Allah Wasaya physically intervened by catching hold of the accused. Knife fell down from the hand of the accused who immediately took up hatchet lying under the Chhappar and gave blows to Allah Wasaya on left hand and head. Mst. Sakina died at the spot whereas Allah Wasaya survived. The accused ran away with hatchet and knife. He also stated motive for the occurrence. He had joined the investigation and in his presence blood-stained earth was collected from the spot, sealed into a parcel and secured vide memo. Exh.PC which he thumb-marked as marginal witness. The blood- -stained clothes and the ornaments of the deceased were produced in his presence before the Investigating Officer which were secured vide memo. Exh.PD which he thumb-marked as marginal witness. In his presence accused Muhammad Ramzan produced blood-stained hatchet P.14 which was lying in the north-western corner of his house. The same was secured vide memo. Exh.PE witnessed by him. The same day accused produced knife P.15 before the Investigating Officer in his presence which was blood-stained and was lying underneath enclosure of reeds in his house which was secured vide memo. Exh.PF. Articles P.14 and P.15 were identified by the witness in the Court.
11. Allah Wasaya P.W.4 was the father of Muhammad Ramzan accused and Mst. Sakina deceased.
He stated that his daughter Mst. Sakina was married to Hakim Khan P.W. In Watta of the hand of Mst. Razia Bibi. She was married to Muhammad Ramzan accused who lived together for some time and then Mst. Razia got a divorce. On the day of occurrence Mst. Sakina deceased and her husband Hakim Khan P.W.2 visited his house, being the next day of Eid, to exchange Eid greetings.
They reached his house at 12 O---clock and Muhammad Ramzan accused was also present in the house. They started back at 2 p.m. Muhammad Ramzan caught hold of Mst. Sakina by her arm saying that he would not allow her to go away. Mst. Sakina told that she had small daughter and she would go with her husband whereupon the accused gave knife blows to Mst. Sakina. He, Hakim Khan, Mahi Khan and Fida Hussain witnessed the occurrence. When he tried to intervene to save Mst. Sakina, knife fell down from the hand of the accused who picked up hatchet from the Chhappar and gave him blows on left hand and left side of head near the ear and also on his back as a result of which a finger and thumb of left hand were cut off. Mst. Sakina died on the spot. He became unconscious and was removed to the hospital. He also stated that Muhammad Ramzan committed the murder of Mst. Sakina only for the reason that his wife had got divorce and he wanted that his sister should also seek divorce from her husband which she refused.
12. Dr. Muhammad Rasheed, Medical Officer, Tehsil Headquarters Hospital, Kot Addu, P.W.5 conducted the post-mortem examination on the dead body of Mst. Sakina who was identified by Hakim Khan and Ghulam Fareed P.Ws. And he found the following injuries on the dead body:--
(1) Incised wound 3 c.m. x 2 c.m. On front of left lower chest close to epigastrium.
(2) Incised wound 3 c.m. x 2 c.m. In upper quadrant of left breast.
(3) Incised wound 2-1/2 c.m. x 1 c.m. On front of left shoulder joint.
(4) Incised wound 3 c.m. x 1-1/2 c.m. On lateral aspect of left side of chest.
(5) Incised wound 2 c.m. x 1 c.m. On lateral aspect of upper 1/4th of left arm.
(6) Incised wound 4 c.m. x 1-1/2 c.m. On lateral aspect of middle of left arm.
(7) Incised wound 1-1/2 c.m. x 1/2 c.m. On back of upper half of left arm.
(8) Incised wound 4 c.m. x 1 c.m. On back of left head.
(9) Incised wound 5 c. m. x 1-1/2 c. m. On back of left shoulder.
(10) Incised wound 1 c.m. x 1/2 c.m. On left side of head close of forehead.
All the injuries were, in his opinion, ante-mortem and were caused with sharp edged weapon.
Injuries Nos. l, 2, 4 and 10 were individually sufficient to cause death in ordinary course of nature.
Probable time between injuries and death was immediate while time between death and post- mortem examination was 18 to 20 hours. Copy of the post-mortem examination report was Exh.PG and diagram of injuries was Exh.PG/1. He had handed over the dead body and the articles found on the dead body of Sakina at the time of post-mortem examination as also the police papers to Ashiq Hussain, Constable.
13. Dr. Abdul Jabbar, Medical Officer, T.H.Q. Hospital, Kot Addu P.W.10 had examined Allah Wasaya at 6 p.m. On 17-4-1991 and found following injuries:--
(1) Incised transverse wound 4 c.m. x 1.5 c.m. Present on the upper 1/3rd of the left pinna of ear.
Upper 1 /3rd of the pinna was cut through and through transversely and was attached to the body.
Wound was bleeding.
(2) Incised slipped wound 5 c.m. x 2 cm, bone exposed. It was on the left side of head on occipital region on its post aurical site. Wound was bleeding.
(3) There was obvious fracture of left fore-arm on its lower 1/3rd with the bony crepts and in abnormal movement of the limb present.
(4) Left thumb and index finger of the hand were cut and absent from the hand at their base because of injury with sharp-edged weapon.
(5) A lacertaed wound 3 c.m. x 1.4 c.m. In subcutaneously 1.5 c.m. Behind posterior border of left axilla.
(6) An incised wound 9 c.m. x 2.5 c.m. Into muscle deep on the posterior aspect of cervical region.
(7) An abrasion 5 c.m. x 0.25 c.m. Present on the shoulder about 5 c.m. Lateral to injury No.6.
Injuries Nos.3 and 4 were declared as grievous and the rest of the injuries were declared as simple.
Injuries Nos.1, 2, 4 and 6 were caused with sharp-edged weapon and the remaining injuries with blunt weapon and the duration between injuries and medical examination was 6 hours. He had prepared medico-legal report Exh.PO. Regarding injuries kept under observation his final report was Exh.PQ.
13. Exh.PS was the report of the Chemical Examiner relating to the blood--stained earth, knife recovered from Muhammad Ramzan (accused) and exhibited during the evidence as P.15 and hatchet recovered from Muhammad Ramzan accused and exhibited in evidence during the trial as P.14. All the three articles were found to be stained with blood. Pieces and scrappings were sent by the Chemical Examiner to the Serologist for determination of the origin of blood and its grouping.
The report of the Serologist, exhibited as PT supra, relates to the items aforementioned and the result of the analysis was that the earth, knife P.15, and hatchet P.14 were stained with human blood and as a result of blood grouping, blood-stained earth, knife P.15, and hatchet P.14 were found to be stained with blood of group ' O' which proves that the earth collected from the spot, knife P.15 and hatchet P.14 were stained with human blood of group ' O' .
At the close of the case of the prosecution, Muhammad Ramzan was examined under section 342 of the Cr.P.C. And he took up the following plea:--- "Mst. Sakina, deceased, my sister, was residing in the house of my father Allah Wasaya after the dissolution of marriage of Mst. Razia against me. She was not living in the house of her husband.
During this period, she developed illicit relationship with Ahmad Bakhsh son of Illahi Bakhsh, my cousin. On the day of occurrence, I was present near the Chhappar. I had to slaughter cock which was sick. When I drew near the Chhappar, I heard whispering. When I entered into the Chhappar, I saw Mst. Sakina in compromising physical position with said Ahmad Bakhsh. On seeing me; Ahmad Bakhsh escaped from the crime spot by scaling over small wall of the Chhappar. Mst. Sakina rushed out of the Chhappar. In the meanwhile, I chased her and gave fatal knife blows under grave and sudden provocation. She cried for help which attracted Allah Wasaya, my father. He intervened. Since I had lost self-control due to grave and sudden provocation, therefore, I might have given blows to Allah Wasaya. Mst. Sakina had collapsed on the ground. I threw knife on the spot and ran away."
15. We have heard the learned counsel for the appellant and the learned counsel appearing on behalf of the State. Learned counsel for the appellant has contended that Hakim Khan P.W.2 and Mahi Khan P.W.3 were the interested witnesses and were not present at the spot and they had not seen the occurrence. Regarding Allah Wasaya PWA he had submitted that injuries on his person were given by the appellant when he had lost control over his senses due to the grave and sudden provocation and when the P.W. Was intervening him in giving injuries to Mst. Sakina.
The contentions raised on behalf of the appellant were opposed by the learned counsel appearing on behalf of the State. He submitted that the appellant had taken a plea and it was his duty to prove the exception claimed by him as he had admitted the occurrence and the presence of Allah Wasaya PWA on the spot, defence version was not probable and not borne out from the cross- examination.
16. We have given our anxious consideration to the facts of the case and the evidence produced by the prosecution. The story relating to the occurrence has been narrated by Hakim Khan P.W.2, Mahi Khan P.W.3 and Allah Wasaya PWA. Allah Wasaya P.W.4 was the real father of the appellant Muhammad Ramzan and an independent witness. Mst. Sakina deceased was his daughter too. He supported the prosecution story in all details and was a witness whose presence at the time of occurrence cannot be doubted. He was injured at the spot at the hands of the appellant. The place of occurrence was a few feet away from the house of Allah Wasaya P.W. And it could not be humanly believable or even imagined that Mst. Sakina was in a compromising position with Ahmad Bakhsh in the Chhapper which was situated between the houses of the appellant and Allah Wasaya P.W.4. Yet another piece of evidence which negates the plea taken by the appellant was the articles found on the dead body by the Medical Officer. It is in the evidence of Dr. Muhammad Rashid P.W.5 that the deceased was wearing printed Shalwar and shirt (coloured Janmi), brasier, black Burqa and Dopatta. There were cut marks on shirt, brasier and dopatta. She was wearing golden ear-rings, a necklace and two nose-pins. Besides, she was wearing two amulets, one golden and one silvery. She was also wearing one ring and two Challas. There were two silvery Challas in the left hand of the examinee. The wearing of golden/silver ornaments proved that she was a guest ready to leave. Presence of Burqa and Dopatta on the dead body even at the table of the Medical Officer conducting post-mortem proves that she was given injuries when she was ready to depart.
It does not appeal to reason that the deceased could be in a compromising position with Ahmad Bakhsh while she was wearing Burqa and Dopatta. The version of the appellant, when put in juxtaposition, to the story of the prosecution, has no probability of truth in it.
17. Story of the prosecution supported by ocular account is corroborated by the recoveryof hatchet P.14 and knife P.15 which were found stained with human blood. None of the P. Ws. Produced by the prosecution could be termed as interested witness. The star witness of the prosecution was Allah Wasaya P.W.4 who was the real father of the deceased and the appellant and had received as many as seven injuries and had lost the thumb and finger of his left hand. There is no reason for us to disbelieve his evidence. The presence of Hakim Khan P. W.2 can also not be doubted as he was to accompany the deceased back to his house after they had offered Eid greetings to the family.
Nothing has come out in the cross-examination of Mahi Khan P. W.3 which could suggest that he was not present at the time of occurrence.
18. In view of what has been stated above, we are of the view that the prosecution has proved its case beyond all reasonable doubt through the most natural and independent witnesses. There is no mitigating circumstance in favour of the appellant in the case.
19. The convictions of the appellant and sentence as recorded by the Sessions Judge, Muzaffargarh on 11-8-1992 are upheld. The sentence of death awarded to the appellant is confirmed and the reference is answered in the affirmative.
20. The appeal has no merit. The same is consequently dismissed.