' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Mst. Robina Bibi wife of Ghulam Rasool seeks leave to appeal against judgment, dated 2nd November, 1999 passed by Lahore High Court, Lahore whereby following sentences awarded to her by Special Court Anti-Terrorism, Sargodha Division dated 22-4-1999 were maintained:--
(i) Under section 302, P.P.C. To death with fine of Rs,1,00,000 and in default in payment of fine to further undergo R.I. For 10 years;
(ii) Under section 392, P.P.C. '10 years' R.I. With fine of Rs,10,000 and in default in payment of fine to further undergo 3 months' R.I.
2. Precisely recapitulated facts of the case as gleaned from F.I.R. Exh.P.K. Dated 21-12-1998 (No,310 of 1998) lodged by P.W. Akhtar Mehmood son of Malik Khuda Bakhsh at Police Station Factory Area, Sargodha is that his sister Mst. Aziz Begum left his house situated at Jauharabad at about 10-00 a.m. For her own house situated in Civil Lines, Sargodha. When she was going towards her house on Madni Masjid Road in tonga, Mst. Robina Bibi wife of Ghulam Rasool (petitioner), Muhammad Rafique son of Muhammad Shafi alongwith 2/3 unknown persons also boarded on the same tonga and they alighted from it in Factory Area Chowk, they also got alighted Aziz Begum from tonga on the pretext that this tonga is not going towards her home, therefore, they themselves would arrange to take her to her home. At that time deceased lady had 4 golden bangles .(weighing 4 tolas in her hands, 2 ear-rings (weighing 2 tolas) a golden ring (weighing 1 tola) and cash of Rs,300.
In the house belonging to petitioner she herself alongwith Muhammad Rafique and others after snatching forcibly her golden ornaments murdered her.
3. Syed Abul Aasim Jafri, learned Advocate-on-Record contended that prosecution has failed to establish accusation against petitioner because it has failed to produce eye-witnesses. As far as circumstantial evidence is concerned it has also been fabricated to involve the petitioner falsely for the murder of Mst. Aziz Begum, therefore, he prayed for her acquittal and alternatively prayed for reduction in sentence on the consideration of the petitioner being a woman and according to him is 40 years age.
4. This petition is barred by 11 days as per note appended by the office. However, a separate request has been made for condonation of delay because petitioner was not aware that her appeal has been dismissed by the High Court and sentence of death awarded to her by the trial Court has been confirmed.
5. As is evident from the facts narrated in the F.I.R., the incident was unwitnessed because the crime was accomplished inside the house of petitioner, therefore, the prosecution relied upon circumstantial evidence i.e, the evidence of last seen the deceased in the company of petitioner, recovery of dead body as well as the recovery of articles robbed by accused from deceased Mst.
Aziz Begum, the crime weapon and extra-judicial confession made by petitioner on the day of incident before P.W. Muhammad Rafique.
The prosecution after registration of case raided the locked house of petitioner situated in Factory Area and recovered therefrom the dead body of deceased Mst. Aziz Begum lying in a room of the house. The dead body had 14 injuries on it as per contents of injury report Exh.P.C. Prepared by P.W.12 Ibrar-ul-Hassan. Accordingly it was sent to hospital for postmortem. The Investigating Officer collected blood-stained earth lying beneath the dead body besides taking into possession pair of shoes of the deceased.
6. The petitioner was arrested on 2nd January, 1999. During course of investigation on her disclosure the Investigating Officer P.W.12 Ibrarul Hassan recovered following articles belonging to deceased at the pointation of petitioner from her house situated in Factory Area, Sargodha:--
(1) Identity Card of deceased.
(2) String of beads (Tasbih).
(3) Shalwar.
(4) Shirt.
(5) Pair of Chappal.
(6) Service Certificate of husband of deceased.
(7) Panjsura.
(8) Blood-stained Churri taken into possession vide Exh.P.N.
' It may be noted that petitioner has got another house belonging to her situated in Chak No,22/NB and on the same day i.e, 5th January, 1999 she led the police for the recovery of following articles belonging to deceased:--
(i) 4 gold bangles.
(ii) 3 currency notes of Rs,100 denomination.
(iii) A gold finger-ring.
(iv) Two gold ear-rings.
' It may also be noted that prosecution had also produced evidence before the trial Court that the jewellery/golden ornaments were purchased by the deceased from different goldsmiths to establish that these articles belonged to her and have not been foisted upon the petitioner illegally.
7. As far as the recovery of golden ornaments etc. Is concerned it has also been established by the prosecution through trustworthy evidence and the petitioner has failed to shake the evidence of the witnesses who produced the recovered articles in the Court. Thus, the recovery of these articles has furnished most strong and convincing evidence, to connect the petitioner with the commission of the offence.
8. The incriminating articles i.e, blood-stained earth, blood-stained Churri (crime weapon) and blood-stained clothes of the deceased i.e, Chadar, Shaiwar, Kameez and Vest (Articles P/1 to P/4) received by the Investigating Officer from P. W.1 Dr. Nasir Mehmood were sent for the opinion of the Chemical Examiner who has given reports vide Exhs.PS,. PT and PU testifying that these articles were stained with human blood.
9. P.W. Dr. Nasir Mehmood also appeared to testify the contents of post-mortem report, according to which the deceased has received as many as 14 external injuries which all were incised wound in nature. As per the doctor's opinion due to the cumulative effect of all the injuries the death of the deceased had occasioned. The time mentioned by the doctor in the report also coincides with the time when the incident had taken place.
10. Besides the incriminating recoveries the prosecution also produced P.W. Fazal Shaheen who had lastly seen the deceased Mst. Aziz Begum in the company of petitioner on the day of incident. As far as this witness is concerned no animosity or his interest to falsely involve the accused in the commission of the offence has been alleged against him. Therefore, the evidence furnished by him has provided another strong incriminating evidence against the petitioner. Learned counsel failed to convince us as to why this witness has deposed against her. Therefore, following the principle i.e, that if a deceased was lastly seen alive in the company of the accused shortly before the time she was presumed to have met her death, near the place of occurrence, reasonably inference can be drawn that accused is responsible for the death of deceased. (Allah Ditta v. The Crown 1969 SCM R 558).
11. As far as inculpatory extra-judicial confessional statement made before P.W. Muhammad Rafique is concerned it has also provided a great help to the prosecution to establish its case against the petitioner. Although she has retracted the confession but in view of the corroborative evidence discussed hereinabove in detail extra-judicial confession so made by her can be used against the petitioner in view of the principle laid down by this Court in the cases of State v. Minhun alias Gul Hassan (PLD 1964 SC 813) and Bahadur Khan v. The State (PLD 1995 SC 336).
' In view of above discussion we are of the opinion that the prosecution has produced un rebuttable strong circumstantial evidence against the petitioner for the purpose of drawing irresistible conclusion that as per these circumstances of the case it was the petitioner who has committed the murder of Mst. Aziz Begum.
12. Now adverting to the next contention of learned counsel namely that petitioner deserves leniency in exacting sentence to her for consideration of her being a woman who so far has hardly attained age of 40 years, we are of the opinion that in Islamic dispensation of justice in criminal matters no distinction in awarding sentence on basis of sex is available provided the offence under which a culprit is charged is brought home without any doubt. As it has been held hereinabove that deceased Aziz Begum (65) was done to death by the accused with an object to deprive the latter from her golden jewellery, therefore, keeping in view the facts and circumstances narrated hereinabove one can conveniently conclude that the deceased was Maasoomud-Dam, thus as per Injunctions of Islam concerning award of sentence as well as law discussed on the subject by this Court in the cases reported in State v. Muhammad Hand (1992 SCM R 2047) and Abdul Haq v.
The State and another (PLD 1996 SC 1) we are persuaded to hold that petitioner deserves no leniency on the ground put forth by her counsel in the quantum of sentence which has already been awarded to her by the trial Court and confirmed by learned High Court.
13. In view of the conclusions drawn hereinabove the petitioner is responsible for causing the murder of Mst. Aziz Begum, the petition filed beyond the period of limitation deserves dismissal on this score as well.
For the foregoing reasons we see no substance in the petition, as I E such the same is dismissed and leave to appeal is refused.