' MRS. KHALIDA RACHID, J.--- By this judgment we propose to dispose of Criminal Appeal No,303 of 1996, Jail Criminal Appeal No,305 of 1996 and Murder Reference No,17 of 1996, all arising out of the common judgment of S. Musadiq Hussain Gilani, Sessions Judge, Mardan, dated 14-10-1996 whereby Bismillah Jan, appellant was convicted under section 302(b), P.P.C./Qisas and Diyat Ordinance and sentenced to death.
2. The eye account of the incident was narrated by Mst. Jamila, aged 17/18 years (deceased), herself to Muhammad Jan Khan, A.S.-I. (P.W.9) during his Gasht at Par Hoti Bazar Mardan on 20-9- 1994 at about 13-15 hours to the effect that in the absence of her husband, who being a taxi driver was away from home, her father-in-law Bismillah Jan appellant came to the house and asked her for illicit relations. She refused and went to her neighbour Maulvi Ghulam Muhammad (P.W.1) who is also Pesh Imam of the village mosque and complained to him about the ill-intention of her father- in-law. Maulvi Ghulam Jan (P.W.1) told her that it is "Pashin" prayers time, he would settle the dispute after the prayers. However, at 12-45 hours, Bismillah Jan, appellant, again arrived with a "Bandooq" and forced her for immoral sexual relations and upon her resistance opened fire hitting her with two shots leaving her injured. The appellant absconded after the occurrence. On her screaming and crying the villagers were attracted to the spot. Maulvi Ghulam Muhammad (P.W.1) also reached the spot within few minutes and took her (Mst. Jamila) to the police station. The report of the deceased then injured who was in full senses was recorded vide Murasila (Exh.P.A./1) which was later on incorporated into F.I.R. No,866, dated 20-6-1994 under section 324, P.P.C.
Registered at Police Station "B" Division, Mardan. Later on Mst. Jamila succumbed to the injuries in the hospital and the section of law was altered to section 302, P.P.C. In the F.I.R.
3. The accused was arrested on 20-4-1994 by Muhammad Iqbal, S.-I. (P.W.8). He made confessional statement before Sultanat Khan, M.I.C. (P.W.7) on 26-10-1994. Muhammad Jan Khan, A.S.-I. After recording statement of Mst. Jamila and preparing injury sheet in the presence of Maulvi Ghulam Muhammad (P.W.1) sent her to the hospital for treatment, he then proceeded to the spot where he received information that the injured had expired. He came to the hospital and prepared the inquest report of Mst. Jamila (Exh.P.N./3). He handed over the dead body of Mst. Jamila to Sher Rehman, F.C. (P.W.2) to take it to mortuary and proceeded to the spot where he prepared the site plan (Exh.P.B.) at the instance of Maulvi Ghulam Muhammad (P.W.1). During the spot inspection, he recovered five pellets (Exh.P.2), one card board (Exh.P.1) and sealed them into parcel vide memo.
Exh.P.E. He also took into possession one Shalwar (Exh.P.7) stained with blood belonging to the accused from his residential Kotha which was sealed into parcel Exh.P.E./4. He also sealed into the parcel Exh.P.E/1 one shirt Exh.P.2, Shalwar Exh.P.4, Dupatta Exh.5 of the deceased Mst. Jamila all having corresponding cut marks, sent by the doctor through constable. Vide memo. Exh.P.E./3 he took into possession a sealed bottle Exh.P.6 containing one card board and one pellet blood- stained recovered from the dead body of Mst. Jamila. He sent the blood-stained clothes to the Chemical Examiner and the reports received are Exh.P.F. And Exh.P.F./1.
4. In the hospital, Mst. Jamila, then injured was examined by Dr. Farhat Rahman who found the following:--
(1) There are eight entry wounds each measuring 1/2" x 1/2" on the front of abdomen.
(2) Ten fire-arm entry wounds on the front lateral part of left leg measuring 1/2" x 1/2" each.
(3) Ten fire-arm exit wounds on the front to medial part of left leg 1/2" x 1/2" in size.
(4) Fire-arm entry wound on the front of left thigh 1/2" x 1/2".
(5) Corresponding F.A. Exit wound on the front of left thigh 3" x 3" in size.
(6) F.A. Entry wound on the front of right thigh 1/2" x 1/2" in size.
(7) Corresponding F.A. Exit wound on the front of right thigh below to wound No,6, 3.5" x 4" in size.
' The same day Mst. Jamila expired at 1-50 p.m. And Dr. Farhat Rahman (P.W.5) conducted the post-mortem examination and found the following:- External examination:
(1) Eight fire-arm entry wounds on front of abdomen 1/2" x 1/2" in size.
(2) Ten F.A. Entry wounds on front to lateral part, of left leg 1/2" x 1/2" in size.
(3) Ten F.A. Exit wounds on the front to medial part of left leg 1/2" x 1/2".
(4) F.A. Entry wound on the front of left thigh 1/2" x 1/2" in size.
(5) Corresponding F.A. Exit wound on front of left thigh 3" x 3" in size.
(6) F.A. Entry wound on front of right thigh 1/2" x 1/2".
(7) Corresponding F.A. Exit wound on the front of right thigh below to wound No,6, 3.5" x 4".
Internal examination: ' Abdomen Walls, small and large intestine. Kidneys, organ of generation were healthy, two vaginal swa bs were taken. The stomach was healthy and contained semi-digested food.
5. The ocular version of the incident was furnished by Maulvi Ghulam Muhammad (P.W.1). This witness is Pesh Imam of the said village and also neighbour of both of them. He confirmed the complaint made, to him by the complainant about the ill-intention of the appellant over the deceased. He almost supported the statement of Mst. Jamila. Sher Rahman (P.W.2) escorted the dead body to the mortuary and also handed over clothes of the deceased to the Investigating Officer.
6. Muhammad Ashraf Khan (P.W.3) incorporated the Murasila Exh.P.A./1 into F.I.R. Exh.P.A. And also changed the section of law from 324 to 302, P.P.C. On the expiry of Mst. Jamila deceased. Sultan Ahmad I.H.C. (P.W.4) and Liqatullah I.H.C. (P.W.6) are marginal witnesses to recovery memo. Exh.P.C.
Vide which the Investigating Officer took into possession D.B. Shotgun No,2368 MRS along with five cartridges of the same bore from the house of the appellant at the potation of the appellant. The appellant was arrested on 20-4-1994 by Muhammad Iqbal, S.-I. (P.W.8) and produced before Sultanat Khan, M.I.C. (P.W.7) at 1-00 p.m. For recording his confessional statement. Statement of the appellant recorded under section 342, Cr.P.C. Is of total denial and pleaded innocence and false implication in the case. However, he denied to be examined on oath or to produce defense.
7. The learned trial Judge after assessing and evaluating the evidence of the parties, did not succumb to the defense version and consequently convicted and sentenced the appellant through the impugned judgment.
8. We have very carefully heard the arguments advanced by Mr. Muhammad Isa Khan, Advocate, for the appellant, Barrister K.G. Saber for the complainant and Mr. Imtiaz Ali, Assistant Advocate- General for the State.
9. Admittedly there is no eye-witness to the occurrence. The case primarily rests on the dying declaration of the deceased. The confessional statement of the appellant can also be very conveniently taken into consideration.
10. It is commonly stated that the dying declaration being statement of a dying person and he being in immediate apprehension of death and meeting his God hardly implicate innocent person falsely. However, this understanding should not be taken for granted as the dying declaration is never subjected to cross-examination and, therefore, it needs to be scrutinized closely. It could only be accepted if received satisfying corroboration from the physical circumstances of the case.
11. Mst. Jamila in the first information report which was later on treated as dying declaration stated that on the day of occurrence she was all alone in the home as her husband who was a taxi driver was away from home and her father- in-law who was also residing with them came home and asked her for illicit relation to which she refused and complained to her neighbor Maulvi Ghulam Muhammad (P.W.1) who is also Pesh Imam of the village. The Pesh Imam told her that he would settle the issue after "Pashin" prayers. She was taken home by Maulvi Ghulam Muhammad (P.W.1).
Her father-in-law (appellant) again came up with another attempt and asked for illegal relation and upon her denial fired two shots at her leaving her injured. This statement of the deceased received ample corroboration from the evidence available on record. Maulvi Ghulam Muhammad (P.W.1) categorically supported the dying declaration on material particulars. He categorically stated that at noon time Mst. Jamila came to him and complained about her father-in-law that he had bad eye on her. He had brought the lady to her house and found Bismillah (appellant) present in home. He told them that he would settle the dispute after prayers. He was preparing for the congregational prayers when he heard screams and noises to which he was attracted and found Mst. Jamila lying injured. Upon his query, she told him that Bismillah Jan wanted to have sexual intercourse with her and on her refusal, fired two shots at her. Maulvi Ghulam Muhammad (P.W.1) had no with the appellant and there was no cogent reason for implicating the appellant falsely in the case. The presence of the appellant in the house at the time of occurrence is confirmed by this witness who stated that when he had brought the lady to home, he found the appellant present in the house. No material discrepancies could be figured out by the defence in the cross- examination. Maulvi Ghulam Muhammad (P.W.1) has categorically stated that though the deceased was semiconscious but she could talk. Hence dying declaration does not suffer from any infirmity. It is genuine document containing true narration of the incident fully corroborated from the physical circumstances of the case.
12. Reverting to the medical evidence, the deceased was examined by Dr. Farhat Rehman (P.W.5) at 1-45 p.m. She was reported to be in shock. She was not described to be unconscious. The definition of shock was rightly given by the trial Court describing as "the state of extreme weakness caused by physical injuries which does not connote unconsciousness". It is not necessary that the person in shock would not be able to talk and understand. It is nowhere proven by the defense that the deceased was totally unconscious and was not in a position to talk. The motive put forth by the deceased also fully stood supported by the statement of Nasrullah, husband of the deceased.
Nasrullah though not produced in the Court at the trial but in his statement recorded under section 164, Cr.P.C. Confirmed that he was informed by his wife that she was being teased by his father Bismillah Jan appellant. He had stated that it was because of his attitude that he left his house and is living with his in-laws but after two weeks one Wazirzada of their village and his father brought them back and by force made them to reside with him in his house. He charged his father for the murder of his wife. We see no reason as to why his own real son, whose statement was recorded after a week, in a cool passion would charge his own father falsely for such a heinous crime.
13. Coming to the confessional statement of the appellant which was recorded by Sultanat Khan (P.W.7) on 26-4-1994 after performing all the legal formalities. The appellant in the confessional statement, though deviating from the motive had admitted the commission of the offence. There is sufficient corroboration on record for reinforcing this confessional statement. The main corroborative piece of evidence is the crime weapon (shotgun) recovered at the pointation of the appellant and later on recovery of five pellets and card board from the spot and blood-stained pellets and card board from the dead body of the deceased also supports his confessional statement. Further recovery of bloodstained Shalwar P.7 belonging to the appellant from his Kotha is another corroborative piece of evidence. The ascendance of the appellant after the occurrence is also a substantial corroboration. As for the contention of the learned counsel for the appellant that the confession of the appellant was recorded after police custody is without any force. Mere fact that the accused remained in police custody for some time would not lead to conclusion that the confessional statement was not voluntary. Sultanat Khan, M.I.C. (P.W.7) had afforded sufficient time to the appellant for reflection. He repeatedly cautioned the appellant of the consequences and circumstances in which was making the confession and, therefore, cannot be said that the confession was made by inducement, threat and coercion. In the circumstances, the confession is proved to be voluntary and was rightly relied upon by the trial Court.
14. The learned counsel for the appellant also grudged the inconsistencies in the timings. According to the learned counsel, the time of occurrence shown to be 12-45 hours in the F.I.R. And the report was recorded at 13-15 hours while Maulvi Ghulam Muhammad (P.W.1) was attracted to the spot at 1-30 p.m. The stance of the learned counsel for the appellant is that this witness is a concocted witness, therefore, could not account for correct timings. The contention of the learned counsel for the appellant has no weight. The irregularity in the timings is not that material so as to discard the prosecution case. We cannot expect accuracy and exactness in timings from an illiterate and layman of 65 years of age particularly when statement of Maulvi Ghulam Muhammad was recorded after lapse of one year.
15. At the last limb of arguments, Mr. Muhammad Isa Khan, the learned counsel for the appellant urged that if the Court takes positive view of the case, then lesser of the two punishments, provided in law, keeping in view of the old age of the appellant, may be taken into consideration. There is no denying of the fact that normally while imposing the sentence specially in the murder cases, the Court takes into consideration the mitigating circumstances and if there exist such circumstances, sufficiently justifying imposition of lesser penalty, the Court imposes less punishment as the Court always values the sanctity of human life and liberty. Where there is no mitigating circumstances, the end of justice would be met only to award the normal penalty of death. In the present case, the appellant, who now prays for mercy of the Court on the ground of old age, destroyed the sanctity of relation of father and daughter ignoring all norms of decency and morality. There could be no mercy for such a cruel shedder of blood in the society for ,a person who is a black spot on human race and culminating running sore for humanity.
16. There are no words to condemn such a terrible act of the people like him who are beyond any repair of soul and character and shall not be dealt with leniency. This poor girl (deceased) who was supposed to be under the sanctuary of her father-in-law himself turned to be a wolf to destroy her veneration. In the result, we believe that the trial Court has rightly and justifiably awarded normal penalty of death. Hence, the appeal of the appellant is dismissed. The murder reference is confirmed.