1. ' These appeals are filed against the judgment passed by the District Court of Criminal Jurisdiction, Mirpur on 30-9-1997, whereby the appellant-Muhammad Ilyas is sentenced to 10 years' rigorous imprisonment in offences under sections 5, I.P.L and 313, A.P.C. Convict accused has filed the appeal for his acquittal, while the complainant for enhancement of sentence.
2. ' The facts giving rise to these appeals are that Kabeer Hussain appellant, filed a report on 11-4- 1995 at Police Station Dodyal, Tehsil Mirpur at 5-00 a.m. Alleging that he was at his home at Bahlote where he came to know that his sister Mst. Shameem is murdered by her husband Muhammad Ilyas son of Allah Ditta (accused-appellant) resident of Thab, at 3-30 a.m. On receiving the information, he went to Thab where he saw his sister lying soaked in blood who was killed by her husband by axe. The motive behind the offence is stated that the couple was not happy with each other due to some family dispute on account of which Muhammad Ilyas killed his sister Mst.
3. Shameem. The accused-appellant was arrested on 11-4-1995 and after conducting the investigation, he was challaned in the Court of law on 11-6-1995. The trial Court after recording the evidence of the prosecution and statement of the accused-appellant under sections 242 and 342, Cr.P.C. Held him guilty of the offences stated above and convicted him through the impugned judgment.
4. ' The learned counsel appearing for the accused-appellant contended that there is no eye-witness in the case except Mst Irem daughter of Muhammad Ilyas-appellant aged 7 years, on whose solitary statement the Court below has placed reliance in convicting the accused-appellant which is not sustainable under law. He further contended that out of 13 witnesses cited in calendar, the police abandoned Tika Khan and Rashid while chemical examiner is not produced. It is also contended that first informant was also not an eye-witness and he has filed the report on hearsay which cannot be relied upon. The learned counsel referring to the statement of Mst. Irem contended that she has stated that she was taken on motorcycle by Kabeer Hussain while Kabeer Hussain has not supported her statement which according to the learned counsel is a glaring inconsistency. He also contended that being minor, Mst. Irem was easily liable to be tutored and produced against the accused-appellant, hence,. Her statement cannot be relied upon. The learned counsel placed reliance upon 1999 PCr.LJ 735 and PLD 1978 SC tAJ&K)
102. Elucidating his arguments he contended that when the statements of Kabeer Hussain and Irem are read together, it can easily be concluded that Mst. Irem has been tutored. The learned counsel further contended that besides Mst. Hem, the trial Court has placed reliance upon the recoveries none of which has been made in the presence of the local witnesses, hence, no reliance can be placed on these recoveries. They also contended that the Investigating Officer has not recorded the statement of any witness on spot and that the Court below has committed gross illegality in not extending the benefit of section 382-B, Cr.P.C. To the accused-appellant. He placed reliance upon 1999 PCr.LJ 735 and PLD 1978 SC (AJ&K) 102.
5. ' The learned Advocate appearing on behalf of the respondent-complainant fully supported the judgment of the Court below contending that the statement of Mst. Irem who is daughter of accused-appellant unequivocally implicating the accused-appellant in killing Mst. Shameem with the axe. The defence while cross-examining Mst. Irem has suggested that on the day of occurrence none awoke except Irem and her deceased mother. This according to the learned Advocate, proves the presence of Mst. Irem in the house on the day of occurrence. According to him, as her presence is admitted, hence, she is the natural witness and whatever she stated, it directly implicates the accused-appellant with the commission of offence. The learned counsel also contended that the recovery witnesses have not been cross-examined on recoveries, hence, their evidence shall be deemed to have been admitted. The learned counsel referring to statement of Khaleel contended that Tika Khan and Rashad had stated before Khaleel that Ilyas has killed his wife. According to him, their admission before Khaleel is directly a connecting factor against the accused-appellant, He also contended that no discrepancy or contradiction inter se is found in the statement of the prosecution witnesses. The learned counsel further contended that as the case of the prosecution is proved beyond reasonable doubt, hence, the Court below was obliged to award the maximum sentence to the accused-appellant. He placed reliance upon 1997 PCr.LJ 375 and 2001 PCr.LJ 225. According to him, the appeal is filed for the enhancement of sentence which should be accepted in view of the circumstances of the case and the accused be awarded the maximum sentence provided for the offences. The learned Counsel relying upon 1994 PCr.LJ 789 contended that reliance can rightly be placed upon the statement of a minor witness if she/he is competent to depose.
6. ' After hearing the learned Advocates for the parties, I have gone through the judgment of the Court below and have perused the record and statements of the prosecution witnesses recorded by the Court below.
7. ' The only eye-witness in the case is Mst. Irem whose statement is supported by the recoveries in connecting the accused-appellant with the commission of the offence. The motive set up by the complainant is strained relationship between the spouse and earlier conduct of accused in beating and maltreating the deceased wife. The accused-appellant has not produced any evidence in defence, though, in his statement under section 342, Cr.P.C. He had stated that he will produce the defence evidence.
8. The perusal of the record reveals that F.I.R. Is lodged immediately after the occurrence and the accused-appellant is specifically named in the F.I.R. With the motive of killing the deceased wife.
9. Mst. Irem, the daughter of accused-appellant who is the only eye-witness of the occurrence has stated that on the day of occurrence her father Muhammad Ilyas gave a knock to Shameem, her mother and to her and asked her mother that buffalo is unchained on which her mother went out and she followed her. Her father gave an axe blow upon her mother on which she fell down and then he gave another blow on which her mother died. She states to have seen this in the bulb light.
10. She has stated in the cross-examination that on the day of occurrence her grandmother, grandfather and uncle were also in the house and also states that when she woke up in the morning -she saw her paternal aunt present in the house and her maternal uncle Kabeer had come to her house. The suggestion of the defence that she was in the house on the day of occurrence and she alone woke up when the occurrence took place is admitted by her. Having admitted that her grandfather, grandmother and uncle were also present in the home, the accused-appellant could have produced any of them in defence to state that occurrence did not take place in the house and if so, how did it occur. The accused had in his statement under section 342, Cr.P.C. Stated that he would lead the defence evidence. Having failed to produce any of them leads to conclude that inmates of the house, particularly the parents and the brother preferred to keep them away from the gruesome act of the appellant. Khaleel before whom, Tika Khan uncle and Rashad brother of the accused-appellant had stated that appellant had killed his wife have also not been produced in defence, though they being prosecution witnesses were abandoned on the apprehension of being won over. Whether they were won over by the accused-appellant or not is immaterial, but the fact is that they were also relatives of the accused against whom a statement incriminating the accused is attributed, their non-production as defence witnesses also leads to believe truth of the statement of Khaleel. The recoveries of the blood-stained soil, chappal, the clothes of the deceased which were blood-stained, the recovery of the axe, the weapon of offence on the pointation of the accused from the room of the house where occurrence took place are testified by the witnesses Kabeer Hussain and Aghaz before the Court and the memos are duly exhibited in evidence, similarly the recoveries of clothes of the accused on his pointation from the room and its seizure by the police and later on its being testified and exhibited in evidence by the witnesses Kabeer and Aghaz, are the factors which directly connect the accused-appellant with the commission of offence. In his statement Kabeer Hussain, the brother of the deceased stated that on account of the cruel treatment of the appellant to her wife Mst. Shameem, she had been coming to him and later was being sent to her husband on intervention of the elders. It establishes the strained relations between them which ultimately resulted in the killing. The report of the chemical examiner testifying the human blood on the clothes, axe and soil also connect the accused with the commission of the offence. The post-mortem report of the Doctor Allah Reham, reveal that the cause of death of Mst. Shameem was injury on neck and head and the excessive bleeding. He also stated that deceased was hit at head and neck which supports the version of Mst. Irem that two axe blows were given to her mother by accused-appellant. Similarly the police constable and other witnesses who witnessed and took possession of the different articles recovered from the spot on the pointation of the accused-appellant also connect the accused- appellant with the commission of the offence. The Investigating Officer Muhammad Munshi Khan, S.-I. Unequivocally proves the recoveries made during the investigation and the report of the chemical examiner with respect to articles stained with the blood. He admitted in his statement that other persons present on spot did not agree to be witnesses of the recoveries on account of which Kabeer and Aghaz who were natural witnesses, witnessed the recoveries which were made in their presence. This is sufficient explanation to objections regarding recoveries. The other witnesses produced on behalf of the police are formal i,e, Patwari who has prepared the site plan and constable who took articles from the place of occurrence, Chaudhry Sabir Hussain, D.S.P who has given the satisfaction report over the investigation. The Court below has rightly come to the conclusion that the guilt against the accused is proved and he is directly connected with the offence. The accused-appellant has failed to prove that he was in Sohawa on the day of occurrence as stated by him in his statement under section 342, Cr. P.C.
11. The argument of the learned Advocate for the appellant that Mst. Irem being minor was amenable to be tutored cannot be accepted as she was of age in which one can see and perceive the happening; she is the natural witness and being the daughter of the accused as well as of the deceased cannot be tutored or compelled to lie. Moreover, none would be benefited by telling lie, particularly Mst. Irem as life of her father, the only hope after her mother is at stake. Her statement is otherwise supported by the report of the doctor and recoveries. When all these factors are read together, the possibility of Mst. Irem being tutored is excluded. The authorities relied upon by the learned Advocate for the appellant are not attracted. The learned Advocate for the respondents- complainant has rightly relied upon 1994 PCr.LJ 794. Mst. Irem appeared in the estimation of Court as competent in making the statement, having seen the occurrence with her naked eyes. The relationship of Kabeer with the deceased itself is not sufficient to discard his statement, moreover, Kabeer is not an eye-witness, he stated what he was told which is proved by the witnesses, The learned counsel for the complainant-respondent has rightly placed reliance upon 1994 SCR 155.
12. The contention of the learned Advocate for the accused-appellant that Irem in her statement stated that Kabeer took her on the motorcycle while Kabeer has not stated so is not a material contradiction which may destroy the credibility of the prosecution case. Moreover, the case does not depend upon the hem being taken on motorcycle or not which is a post occurrence event and is just a casual assertion.
13. It now brings me to the appeal for enhancement of punishment. As the accused appellant had been challaned under Islamic Penal Laws Act under which the punishment of Qisas can be awarded only when the Nisab of evidence is available. In this case there is only one eye-witness, hence, the Nisab being not available, the accused cannot be awarded the sentence of Qisas.
14. However, the Court is competent to award any other sentence including the sentence of death in view of sections 3 and 24 of the Islamic Penal Laws Act, 1974. The offence of murder of Mst.
15. Shameem by the accused is proved in view of above. It is also deliberate as the accused gave another blow of axe to the deceased even after she fell down, which implies that the accused intended to see her dead. Under the circumstances, the contention of the learned counsel for the prosecution that when the offence is proved, the accused must be given the maximum punishment cannot be brushed aside, but the criteria of evidence for the maximum punishment i,e, Qisas not being available, hence, it rests with wisdom of the Court as to what punishment be awarded. In view of above, the Court may either award the death sentence as Tazir or imprisonment for life in view of sections 3 and 24 of the Islamic Penal Laws Act, 1974. Death sentence is practically equal to Qisas, as the later also results in death, hence, it would indirectly amount to do what directly cannot be done. The accused has also a daughter who will lose father as well after the mother being lost in murder. In the circumstance, the sentence of life imprisonment will meet the interest of justice.
16. ' The accused is also charged for offence under section 313, A.P.C. Which is proved by the post- mortem report which states as follows:-- "Utrus fundal beight shown 2 months pregnancy. There was material embyo with bleeding in utrus and some blood in vaginal cavel."
17. ' This part of the post-mortem report is not controverted nor cross-examined by the accused, .Hence, the allegation stands proved. The Court below has not passed any order on this count, though the offence carries a sentence of three years and seven years depending upon the quickness of the child. In this case it is stated to be of two months, miscarriage of which resulted due to murder of the mother. The offence of miscarriage is not committed with the intention of commission of this offence, but it is in fact the result of murder of Mst. Shameem. Being husband he was expected to know the pregnancy of his wife, hence, intentional murder of wife resulting in miscarriage as well, indirectly amounts to commission of the offence of miscarriage. The Court, therefore, feels that imprisonment of six months will meet the ends of justice.
18. ' As far the contention of the learned Advocate for the accused-appellant that the Court below has committed an error in not extending the benefit of section 382-B. Cr.P.C. Is concerned, it is worth consideration. The accused remained in detention from 11-4-1995 to 13-6-1997, when he was released on bail. There is no doubt that it is the discretion of the Court to extend the benefit of section 382-B, Cr.P.C. Or not while awarding the punishment, but the reason for not extending must be cogent. Thus essence of the section is to make the Court benevolent while sentencing an accused to imprisonment by keeping in mind the period of his detention before actual sentence of imprisonment, as the sentence after trial is the essence of justice not pretrial incarceration; and if any period is spent in detention before actual sentence that must be benevolently credited to the account of accused provided the accused is himself not responsible for prolonging the detention.
19. The only reason given by the Court is that the accused had remained on bail during the trial. It is not a valid reason as benefit of detention is to be given or refused the enlargement of an accused on bail does not deprive him of this benefit. Bail is a concession which is right of an accused person within the parameters of law. The accused is therefore, held entitled to the benefit of the section and the period spent by him in detention shall be computed towards his period of imprisonment.
20. ' In the circumstances of the case, finding no force in the appeal filed by the accused, it is dismissed. However, the appeal tiled by Kabeer Hussain complainant is accepted and the accused-respondent is sentence to life imprisonment in offence under section 5, I.P.L. And to six months' imprisonment in offence under section 313. A.P.C. The sentences shall run one after other.
21. The period undergone in detention from 11-4-1995 to 13-6-1997 shall be computed towards the imprisonment awarded under section 5, I.P.L.