' ZAFAR PASHA CHAUDHRY, J.---Faqir Hussain alias Faqira and Mst. Zenab were tried by learned Additional Sessions Judge, Layyah for the murder of Muhammad Ramzan, who vide judgment, dated 23-12-1992 convicted them under section 302, P.P.C. For Qatle Amd and sentenced each of them to death and also ordered to pay compensation of Rs,10,000 each to the heirs of the deceased or in default to suffer six months' R.I. Mst. Zenab has filed Criminal Appeal No, 7 of 1993 against her conviction and sentence from jail while Faqir Hussain has filed Criminal Appeal No, 8 of 1993 against his conviction and sentence also from jail. The learned trial Court has also sent a reference under section 374, Cr.P.C. For confirmation of the death sentences. This judgment will dispose of both the appeals as well as the Murder Reference.
2. The prosecution case in brief as emerges from the F.I.R. (Exh.P.H.) recorded on the statement of Muhammad Bakhsh (P.W.9) brother of Muhammad Ramzan (deceased) was that Muhammad Ramzan deceased was married to Mst. Zenab appellant who developed illicit relations with Faqir Hussain alias Faqira appellant (hereinafter called as Faqira) About one year prior to the occurrence, Mst. Zenab eloped with Faqir Hussain appellant. A case was got registered against both of them who were challaned and subsequently a compromise was effected. Faqir Hussain agreed to pay Rs,20,000 as compensation to Muhammad Ramian deceased. On account of this grudge, on the night intervening 12/13-11-1991 after Isha prayer time, Muhammad Ramzan deceased told the complainant that he in the company of his wife Mst. Zenab was going to the house of Faqir Hussain to receive the agreed amount of Rs,20,000. The complainant was asked to follow him. The complainant alongwith Atta Muhammad (P.W.10) and some other persons followed them. When they were about 12/13 Karams from the house of Faqira, they heard the report of fire shot and cries from inside the house. They rushed towards the place of occurrence and witnessed in the light of the lantern and torch that Mst. Zenab had taken Muhammad Ramzan deceased into her clasp on the back. Faqira was holding hatchet in one hand and a pistol in the other, who inflicted various hatchet blows on the head of the deceased. The complainant as well as the witnesses were threatened that in case they came near, they will not be spared. Faqira made his escape good alongwith his pistol while threw the hatchet in his room. Mst. Zenab also tried to decamp but was overpowered. Muhammad Ramzan had succumbed to the injuries. It was further alleged that on account of the illicit liaison in-between Mst. Zenab and Faqira, Muhammad Ramzan was murdered as a result of a plan to eliminate him from their way. A number of inhabitants were attracted to the scene of occurrence but Faqira could not be traced or apprehended.
3. After the occurrence, Muhammad Bakhsh (P.W.9) lodged F.I.R. (Exh.P.H.) with Police Station Kot Sultan, District Layyah on the same night at 12.'t5 a.m. Which was recorded by Ghulam Qadir, S.-I.
(P.W.12). After recording the F.I.R., the said S.I. Proceeded to the spot, prepared injury statement (Exh.P.C.) and inquest report (Exh.P.D.) and dispatched the dead body of Muhammad Ramzan to the mortuary for post-mortem examination. He took into possession blood-stained earth which was made into a sealed parcel and secured under memo. Exh.P.J. Blood-stained hatchet (P.7) was taken into possession from the place of occurrence and secured vide memo. Exh.P.K. Its sketch Exh.P.K./1 was also prepared. One empty cartridge (P.8) was secured from the place of occurrence vide memo. Exh. P.L. Lantern (P.9) was taken into possession vide memo. Exh.P.M. While torch (P.10) was taken into possession vide memo. Exh.P.N. Some female apparels were also taken into possession alongwith Identity Card (P.24) vide memo. Exh. P.P. Mst. Zenab was present at the place of occurrence while clad in blood-stained clothes. She was arrested and her blood-stained clothes Qameez (P.11), Shalwar (P.12) and Dopatta (P.13) were taken into possession vide recovery memo.
Exh. P.O. After the post-mortem the last worn clothes of the deceased were taken in possession vide memo. Exh.P.Q. Mst. Zenab was sent to judicial lock-up. Faqira was arrested on 19-11-1991 from General Bus Stand, Layyah. On 20-11-1991 while in custody he led to the recovery of pistol (P.1) loaded with five cartridges (P.2 to P.6) which were taken into possession vide memo. Exh.P.G. Site plan of the place of occurrence depicting the relevant points was prepared as P.G./1. Subsequently scaled site plan in triplicate was got prepared from the Patwari vide memo. Exhs.P.B., P.B./1 and P.B./2. Marginal notes were given on the same by the Investigating Officer. He got Faqira medically examined as according to him, he was injured. He conducted the investigation and on completion of the same, submitted challan in Court against both the appellants.
4. The prosecution to establish its case produced Dr. Faqir Hussain as P.W.1 who examined Faqira appellant on 19-11-1991 i,e, 16 days after the occurrence and found the following injuries on his person:---
(1) A septic lacerated wound 2 c.m. x 2-1/2 c.m. x skin deep. Puss was coming out from the wound on left side of forehead.
(2) Blackening blow the left eye 3 c.m. x 2 c.m.
(3) Old healed abrasion on outer surface of left elbow joint.
(4) Old healed abrasions on outer surface of left elbow joint.
(5) An old lacerated wound 1 c.m. x 1 c.m. On the right side of the skull 10 c.m. Above the right ear.
(6) A lacerated wound around the middle joint of right index finger.
' In the opinion of the doctor, all the injuries were simple caused by blunt weapon with a probable duration of 4-7 days. Dr. Muhammad Sadiq Ansari (P.W.3) conducted post-mortem examination on the dead body of Muhammad Ramzan deceased and found following injuries on his person:---
(1) Incised wound 16 c.m. x 8 c.m. Bone badly crushed. Brain matter coming out from wound on the left side of head and face below the pina of left ear. It extends up to the neck.
(2) Incised wound 5 c.m. x 1 c.m. x bone deep on the left side of the head 4 c.m. Above the injury No, 1.
(3) A hole 1 c.m. x 1 c.m. (wound of entry) of fire-arm on the later'al aspect of left upper arm.
(4) Hole 1 c.m. x 1 c.m. (wound of exit of fire-arm) on the medial aspect of upper arm.,
(5) Contusion mark 4 c.m. x 3-1/2 c.m. On the left nipple.
' All the injuries were found to be ante-mortem. Injuries Nos.1 and 2 were caused by sharp-edged weapon whereas injuries Nos.3 and 4 were caused by fire-arm. Injury No,1 was grievous and dangerous and sufficient to cause death in the ordinary course of nature. The remaining injuries were declared as simple. Death was caused instantaneously whereas post-mortem was conducted after 12 to 20 hours. Exh.P.C. Is the post-mortem report whereas Exhs.P.C./1 and P.C./2 are the pictorial diagrams.
' P.Ws. 2, 4, 5, 6, 7 and 11 are formal in nature. Allah Bakhsh (P.W.8) is a witness of recovery of pistol (P.1) alongwith cartridges (P.2 to P.6). He attested the recovery memo. Exh.P.G. Muhammad Bakhsh (P.W.9) is the complainant as well as an eye-witness. He is brother of Muhammad Ramzan deceased and made statement deposing about the facts he narrated in the F.I.R. Which have been detailed above. Atta Muhammad (P.W.10) is an eye-witness of the occurrence. He supported the statement of Muhammad Bakhsh P.W.9. He also attested the various recoveries which were affected from the place of occurrence by the Investigating Officer which have been described above. Ghulam Qadir S.-I. (P.W.12) is the Investigating Officer The investigation conducted by him and the recoveries/seizures made by him have been narrated above. The A.D.A. Tendered in evidence the Report of Chemical Examiner (Exh.P.R.) and that of Serologist (Exh.P.S.) and closed the prosecution evidence.
5. Faqira appellant when confronted with the prosecution version, denied the same while making his statement under section 342, Cr.P.C. He denied the recovery of pistol at his instance and to a question as to why the witnesses have deposed against him and why he has been implicated in the present case, he came forward with the following plea:--- "Muhammad Ramzan, Muhammad Baldish and Muhammad Hanif had illicit relations with my sister and when my mother checked them, she was murdered by Hanif, but case was registered against me. Later on, a case for abduction of Mst. Zenab was got registered against me falsely.
' For the aforesaid enmity, I have been falsely implicated in this case. .... The aforesaid persons wanted to kill me and to the same end Muhammad Ramzan (deceased) had come to my house who gave me beating and in self-defence, I killed him."
' Similarly Mst. Zenab appellant in his statement under section 342, Cr.P.C. Was asked to explain as to why the witnesses have deposed against her, whereupon she made the following statement:--- "I had married with Ramzan deceased (voluntarily so was not liked by the complainant party.
Muhammad Bakhsh complainant (brother of my husband) wanted the hand of my daughter Mst.
Fatima (aged 12/13 years) which I refused because the complainant party did not like me.
Muhammad Bakhsh and Ramzan gave me beating, so I went to my parent's house alongwith my children, whereafter I was involved in a, false Hudood case in which I was acquitted. I am mother of fourteen children and all my children were snatched and I was falsely involved in murder case due to the aforesaid enmity... I am innocent."
6. It has been argued on behalf of the appellants that the prosecution version is not plausible and does not appeal to reason; that Faqira accused would not be holding hatchet in one hand and pistol in the other; had the appellant intended to kill Muhammad Ramzan, he could have very easily done the same with the fire-arm he was carrying; it is not possible to cause injuries with the hatchet as well as pistol while holding both of the weapons in both hands; that the witnesses have deposed only with regard to injuries inflicted on the deceased with hatchet but no witness has seen the causing of fire-arm injuries to the deceased which were found by the doctor during post- mortem examination, therefore, this negates that the witnesses had seen the occurrence; that the occurrence seems to have taken place in the manner different to that as stated by the witnesses; that the role attributed to Mst. Zenab appellant of having held the deceased in her clasp from back, does not seem to be possible because according to the prosecution, Faqira was armed with pistol and in that event any fire shot aimed at the deceased could have caused damage to Mst. Zenab as well; that there was no occasion for Mst. Zenab to hold the deceased in her clasp; that the motive an alleged by the prosecution that Mst. Zenab in the company of her husband Muhammad Ramzan had gone to the house of Faqira to receive the amount of compensation agreed by him during Punchayat, seems to be only a made up story otherwise it is not acceptable that the deceased would have taken Mst. Zenab alongwith him who according to him had illicit relations with Faqira and they would not have chosen to visit the house of Faqira at night time after Isha and that too without arming themselves, that according to the prosecution, enmity between the deceased and the appellant was admitted, therefore, it is not acceptable that Muhammad Ramzan would have visited the house of Faqira at night time; that the injuries on the person of Faqira appellant have not been explained by the prosecution which indicates that the occurrence has taken place in a manner different to that as stated by the P.Ws.; that the defence version as putforth by Faqira appellant, if kept in juxtaposition with that of the prosecution version, the defence version seems to be more plausible and acceptable. On the other hand, learned counsel appearing on behalf of the State has defended the conviction and sentences awarded to the appellants by the learned trial Court.
7. We have given our anxious thought to the contentions raised by learned counsel for the parties.
We have also gone through the record and perused the evidence both oral as well as documentary minutely. With a view to examine the prosecution evidence, we have to take into account certain admitted facts i,e, the murder has taken place in the house of Faqira appellant; the deceased was done to death on account of hatchet blows received by him on his head; the bloodstained clothes which were smeared with blood at the time of occurrence were removed from the person of Mst. Zenab which strongly indicate that Mst. Zenab was present at the time of occurrence; the motive to eliminate the deceased has been described by the P.Ws. Right from the time of lodging the F.I.R.; there is not only oral deposition but also documentary evidence in the form of registration of case against the appellant; the occurrence took place after Isha prayer on 12-11-1991; the matter was reported at the police station which is located at a distance of 12 miles from the place of occurrence at 12-45 a.m. With extreme promptitude; in such a short interval there was no possibility of any deliberations on the part of the complainant to falsely implicate the accused persons; the prosecution witnesses have fully supported the case as disclosed in the F.I.R.
By the complainant; and the medical evidence in substance supports the prosecution case.
8. While analysing these factors and by considering the prosecution as well as the defence versions, the fact that the murder took place in the house of Faqira appellant and that the appellant was present at the time of commission of Murder, it cannot be believed that anyone else other than Faqira appellant could be responsible for commission of the murder. His subsequent conduct to abscond from the place of occurrence and apprehension of Mst. Zenab from the place of occurrence has been supported by the Investigating Officer. The fact that Mst. Zenab was arrested from the place of occurrence, furnishes strong circumstantial evidence to believe the prosecution story. Had the appellant not been responsible for the murder the arrest of Mst. Zenab at the place of occurrence was not in any manner possible. The recovery of blood-stained clothes worn by Mst. Zenab at the place of occurrence also lends strong corroboration to the prosecution witnesses that she was present and had participated in the commission of the crime. Although the prosecution story that Faqira appellant was carrying both pistol and hatchet looks a bit odd in the first instance but if examined minutely by keeping in mind the statements of the P.Ws. That they heard the report of fire-shot and rushed to the place of occurrence and witnessed that hatchet blows were inflicted on the head of Muhammad Ramzan deceased, it is clarified that firstly the fire- arm injuries were caused but they did not prove fatal and then Faqira appellant took up hatchet and inflicted blows on the head of the deceased. It is quite obvious that on receipt of fire-arm injuries the victim i,e, Muhammad Ramzan deceased must have tried to escape, yet Mst. Zenab caught hold of him from the back and facilitated Faqira to inflict injuries with hatchet on his person.
Obviously when the deceased was in the clasp of Mst. Zenab it was not safe to commit murder with fire-arm lest it may have harmed her as well. This version of the occurrence if examined by keeping in view the statements of the P.Ws., gets strengthened and has to be believed because when the witnesses saw the occurrence, the appellant was armed with hatchet and inflicted hatchet blows on the head of the deceased and Mst. Zenab was holding him from the back. Viewed from that angle, the contention that the prosecution version does not seem to be plausible that the assailant would have carried pistol as well as hatchet simultaneously stands repelled. As observed above, whenever a certain situation or version is analysed certain undeniable facts cannot be ignored as in the present case the death occurred in the Kotha of the appellant and Mst. Zenab Bibi's clothes were blood-stained. Moreover, the prosecution version on the face of it may have looked improbable to the defence but if probed into minutely the same is not impossible and in fact the occurrence took place in the manner as observed above. The prosecution version that the witnesses have no enmity to falsely implicate the appellants can also not be ignored as why the witnesses should falsely implicate the appellants when they did not gain anything and as such had no motive to falsely implicate them. The fact that the witnesses have seen the occurrence is abundantly proved from the fact that the F.I.R. Was lodged promptly and when the Investigating Officer visited the spot Mst. Zenab was there and the statements of the witnesses were recorded there at the place of occurrence.
9. The plea taken up by Faqira appellant in his statement under section 342, Cr.P.C. That a number of persons came there and committed the murder of Muhammad Ramzan is not acceptable for the reason that sufficient evidence has come on the record to show that Faqira appellant and Mst.
Zenab had illicit liaison in-between and carrying on for quite some time. The presence of Mst.
Zenab in the house of Faqira eliminates the presence of other persons who could have possibly mounted assault and committed his murder. As such presence of Mst. Zenab is very significant. If she was present then no one else could be present over there with her connivance as stated by the prosecution. Otherwise it was not possible that in the presence of Mst. Zenab, other assailants would have come and tried to commit the murder and they would have brought Mst. Zenab alone with them. As regards the defence version, the stand that in fact Faqira was aggressed upon and according to him a number of persons came to his house who committed his murder is not acceptable by keeping in view so-called injuries on his person. Any assailant who according to him was more than one would have done much more damage to the victim than alleged by the appellant. These injuries could have possibly be caused during the scuffle took place between him and Muhammad Ramzan which is fortified by the fact that Muhammad Ramzan had to be held in Japha and was done to death. It cannot be accepted that these injuries had been caused by any enemy and on account of those injuries the appellant had a right of self-defence to kill Ramzan.
10. The prosecution has also assailed the acceptability of motive. The argument that it cannot reasonably be accepted that Mst. Zenab would have taken the deceased alongwith her to receive the amount of compensation from Faqira, learned trial Judge has also made observation that accompanying of Mst. Zenab with Ramzan to the house of Faqira does not seem to be probable but the learned counsel for the appellants as well as the trial Judge have not taken note of the fact that it had been proved as a fact that Mst. Zenab and Faqira had illicit relations between them which was widely known and that on account of registration of case, Faqira had a strong grievance against the deceased. Both of them had intention to eliminate him. It is quite possible that Mst.
Zenab would have prevailed upon Muhammad Ramzan to accompany her to receive the amount and the poor victim would have accompanied her by falling prey to the confidence demonstrated by Mst. Zenab. Anyhow the fact remains that Mst. Zenab and Ramzan both were present in the house of Faqira at the time of commission of the murder. Sometimes the facts are stranger than fiction. Examined by keeping in view the background and all the ambient facts and circumstances of the case, the motive does lend support to the prosecution case.
11. The upshot of the entire discussion is that the prosecution has successfully discharged its onus by proving the guilt of the appellants beyond any shadow of doubt which is based on ocular account furnished by independent witnesses, evidence of recoveries of incriminating articles and blood-stained clothes supported by medical evidence and motive. The learned trial Court was, therefore, right in convicting Faqira appellant under section 302, P.P.C. The conviction and sentence to the extent of Faqira as awarded by the learned trial Court is upheld and maintained.
12. As regards Mst. Zenab appellant, the prosecution has adduced same evidence against her as well but the learned trial Judge omitted to advert to one important legal aspect. Section 308, P.P.C.
Which has been incorporated on account of Qisas and Diyat Ordinance provides a different sentence to a convict than that under section 302, P.P.C. Section 308, P.P.C. Deals with cases of Qatl-i-Amd not liable to Qisas, which is reproduced as under:- "308. Punishment in Qatl-e-Amd not liable to Qisas etc.--- (1) Where an offender guilty of Qatl-i- Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: ' Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court: ' Provided further that, where at the time of committing Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for term which may extend to fourteen years as Tazir: ' Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than the offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Tazir."
' The third proviso of this section unambiguously lays down that if Qisas is not enforceable under section 307, P.P.C., the offender shall be liable to Diyat only if there is any Wali other than the offender. If there is no Wali other than the offender, he shall be punished with imprisonment with either description which may extend to 14 years as Tazir. The third proviso of section 308, P.P.C.
Read with section 307, P.P.C. When applied to the facts and circumstances of the present case, Mst.
Zenab appellant was admittedly wife of Ramzan deceased at the time of occurrence. The offender Mst. Zenab is amongst the L.Rs, of Ramzan deceased as sharer and as such comes within the definition of Wali. Her case, therefore, will be covered by sections 308 and 307, P.P.C. Under subsection (2) of section 308, P.P.C., the appellant can be punished with Diyat as well as with imprisonment for a term up to 14 years as Tazir. Our view is fortified by the law laid down by the HonOurable Supreme Court in the case of Khalil-uz-Zaman v. Supreme Appellate Court PLD 1994 SC 885 wherein a husband had killed his wife and the sentence of death under section 302, P.P.C.
Awarded by the learned Judge, Special Court for Speedy Trial was upheld by the Honourable Supreme Appellate Court. Their Lordships of the Supreme Court observed that section 302, P.P.C.
Was not applicable and the offence was covered by sections 307 and 308, P.P.C. Sections 305 and 306, P.P.C. Were also referred. Respectfully following the law laid down by the Honourable Supreme Court the conviction and sentence of Mst. Zenab appellant under section 302, P.P.C. Is held not maintainable. The same is set aside and she is convicted under section 308(2), P.P.C. The sentence provided is Diyat plus 14 years' imprisonment. Mst. Zenab has acted in extremely cruel as well as immoral manner as she betrayed the confidence of wife and murdered her husband. As such no extenuating circumstances are available to extend any concession to her. She is, therefore, sentenced to 14 years' R.I. She shall also pay Diyat the minimum amount of which has been fixed as Rs,2, 20,000.
13. The upshot of the above discussion is that Criminal Appeal No,8 of 1993 is dismissed, the conviction and sentence awarded to Faqira appellant by the trial Court is upheld and maintained.
As regards Criminal Appeal No,7 of 1993, the same is dismissed but for the modification in conviction and sentence as mentioned above. The death sentence of Faqir Hussain alias Faqira appellant is confirmed. The death sentence of Mst. Zenab is not confirmed.