Maqsood Ahmad, appellant herein, was tried by learned Additional Sessions Judge-V, Peshawar for offences under sections 302/ 182/201/202/203, P.P.0 vide F.I.R No,608 dated 30-5-1994 registered at Police Station West Cantt for the murder of his wife Mst. Kausar Parveen and vide judgment dated 4-10-1999 he was convicted under section 308, P.P.0 and sentenced to 14 years R. I, as Tazeer and to pay a sum of Rs,270493.53 as Diyat. The appellant was also convicted under section 182.
P.P.C, and sentenced to six months S.I. With a fine of Rs,1,000 or in default to undergo three months S.I. With benefit of section 382-B, Cr.P.C. He was however acquitted of the charge under sections 201/202/203 P.P.C. Feeling aggrieved of his conviction and sentence the appellant has filed instant Criminal Appeal through Superintendent Central Jail, Haripur.
2. Brief facts of the case as narrated by the appellant in F.I.R No,608 dated 30-5-1994 are that the appellant was serving in Pakistan Air Force and was living alongwith his family membeit in quarter No,28/6 Shaheen Camp. He was transferred and posted at Karachi in Unit No,101 and was preparing for proceeding Karachi. On the day of occurrence at 1105 hours he was packing his luggage and his wife was standing in front of him. He had kept his .30 bore pistol in a dish in an Almirah when all of sudden the dish fell on the floor alongwith pistol. Since the pistol was already loaded, it went off and the bullet hit his wife. She was rushed to M.I. Room of PAF Hospital where she expired.
3. The prosecution examined 12 witnesses in all in support of its case. The appellant was examined under section 342, Cr.P.C., who denied all the charges and pleaded innocence. He did not opt to be examined on oath or to produce any witness in his defence.
4. Shahen Shah ASI (PW-6) on receipt of Murasila (Exh.PA/1) received from Habib Shah A.S.-I. (P.W .12) recorded F.I.R (Exh.PA), prepared injury sheet (Exh.PM/2) and inquest report (Exh.PM/3) and dispatched the dead body to KMC for post-mortem examination under the escort of Shah Sawar FC (P.W.4). He prepared site plan (Exh.PB) at the pointation of complainant/accused in presence of PAF Officers. He carried out necessary investigation and on completion of the investigation handed over the file to S.H.O.. Inspector Sultan Akbar Khan (P.W.1) after completion of investigation submitted complete challan in Court.
5. Lady Dr. Kishwar Sultana M.O. KMC Peshawar (P.W.5) on 30-5-1994 at 4-25 p.m., conducted post- mortem examination on the dead body of Mst.Kausar Parveen deceased and found the following on external examination:--
(1) Fire arm entry wound on the abdomen on right para umbical region circular in shape 1/2 cm of diameter with collar of abrasion 2 cm to the right of mid line and 6 cm above the umbilicus.
(2) Fire arm exit wound on the left side of the lower back oval in shape 1/2 c.m. x 1/3 c.m. Of diameters, 5 c.m. To the left of mid line and 8 cm above the iliac crest. On external examination the doctor found anterior and posterior abdominal walls, peritoneum injured. Stomach and its contents were found injured and empty. Small and large intestines and right kidney injured. In the opinion of the doctor the cause of death was injury to right kidney, stomach, small and large intestines and blood vessels leading to shock due to haemorrhage due to fire-arm. Probable time between injury and death was opined to be 20 to 40 minutes and between death and post-mortem examination 5 to 9 hours.
6. I have heard Mr. Peer Bakhsh Mehtab, Advocate learned counsel for the appellant, the learned counsel for the State and have also perused record of the case with their able assistance.
7. This. Jail Criminal Appeal was filed in this Court on 8-1-2003 whereby the conviction and sentence of the appellant recorded by the trial Court vide judgment dated 4-10-1999 is questioned.
The appeal was heard in motion on 17-2-2003 and admitted to full hearing subject to all legal and valid objections from the opposite side regarding condonation of delay. The learned State counsel objected to the maintainability of appeal being miserably barred by time. The appellant has applied for condonation of delay through Cr.M.No,43/2003 wherein it is alleged that he had sent jail appeal to this Court in November, 1999. The contention for condonation of delay is not acceptable for want of proof. The learned counsel for the appellant was afforded an opportunity to search for case-law regarding the issue involved. Today learned counsel for the appellant produced 2003 SCM R 1001, 1985 PCr.LJ 808, 1978 PCr.LJ 546 in all these cases time-barred appeals against conviction were entertained and disposed of on merits in the interest of justice. Taking guidance from the case-law produced by the counsel for the appellant, it would be appropriate to dispose of the instant Jail Criminal Appeal on merits instead of dismissing it on technical ground of limitation.
8. Learned counsel for the appellant contended that this is a case of no evidence and the conviction recorded by the trial Court through impugned judgment based on retracted confession is not sustainable. The appellant himself is the maker of F.I.R. And he remained in custody of the police since the date of registration of the case i,e, 30-5-1994 and the alleged confessional statement of appellant was recorded on 2-6-1994, thus the delay in recording said confessional statement creates doubts in its genuineness. The confessional statement is not in accordance with law as the appellant was not asked about his police custody which was mandatory before recording the confession statement. The confessional statement is also not worth reliance because no sufficient time was afforded to the appellant for thinking over the consequences of recording his confessional statement. He further contended that as evident from the statement of Investigating Officer five live rounds of his own were sent to the F.S.L. And thus a procure positive report was obtained. If the alleged confession of appellant recorded on 2-6-1994 and the recovery of pistol coupled with the F.S.L. Report are taken out of consideration then there is no evidence to hold the appellant guilty of the commission of offence.
9. Learned State counsel while supporting the impugned judgment submitted that the deceased was the wife of appellant and both the spouses had strained relations which fact has fully been established through the prosecution witnesses. The appellant after committing the murder of his wife in a lonely room he admitted to suppress his crime and twisted the matter and recorded himself First Information Report alleging accidental death of deceased but subsequently when he was formally arrested in the case on 1-6-1994 he led the police party to the venue of occurrence and pointed out various spots for which the Investigating Officer prepared a site plan. The medical report negates the coercion of accidental death reported by the appellant as the medical officer has positively deposed that the injury on the person of deceased could not be termed as self- inflicted. The confessional statement of the appellant, medical report, recoveries from the spots, motive between the appellant and deceased and the positive report of F.S.L. Regarding the pistol produced by appellant and the empty shell recovered from the spot are sufficient to hold the appellant guilty of the committing murder of his own wife.
10. The record reveals that the appellant who was serving as senior Technician in P.A.F. Made an application in writing to the Senior Naik Maqsood Ahmad, Account Assistant to C.A.O. Of the P.A.F.
Air Headquarter, Peshawar stating therein that for the last two years he is residing alongwith his family in Quarter No,28/6 Shaheen Camp. On his posting to Karachi he was busy in preparation at about 11-05 hours while packing the luggage his wife was standing in his front, meanwhile, his private licensed pistol which was also containing the magazine fell on the ground and his wife was hit with a bullet whereafter he visited the quarter of Ashraf, Chief Technician from whom he took a cycle went to D.S.G. Check post and informed the M.I. Room through phone. On coming back to his quarter Ashraf, Chief Technician, a sister and a lady was found present in the door of his quarter meanwhile, ambulance also arrived there and all of them took his injured wife to M.I. Room where she succumbed to the injures. This statement in writing was sent to S.H.O., Police Station West Cantt., Peshawar by Chief Warrant Officer through a covering letter which was incorporated in First Information Report Exh.PA. The statement in writing by the appellant Exh.PA/1 and the covering letter is Exh.P.W.11/1.
11. After registration of the case, Habib Shah, Incharge P.P. Nothia Police Station West Cantt. P.W.12 prepared the injury sheet and inquest report of the deceased lying in the M.I. Room as Exh.PM/2 and Exh.PM/3 respectively. The dead body was sent to K.M.C. For autopsy duly escorted. The site plan Exh.PB was prepared at the instance of appellant. The Investigating Officer took into possession blood collected from the spot by means of cotton, some broken pieces of bangles were sealed into a parcel through memo. Exh.PC/1-A, .30 bore pistol bearing No,B4751 lying on the floor of room having a live cartridge in chamber and also one cartridge in its magazine. The pistol was giving the smell of fresh discharge which was sealed into a parcel in presence of marginal witnesses. He also found a mark of bullet at the bottom of the door and recovered a bullet P-6 which were taken into possession through memo. Exh.PC/3. He also recovered a bandolier containing 10 live cartridges of .30 bore in open condition which was taken into possession through memo. Exh.PC/5. The appellant produced licence bearing No,1059 issued up to 22-2-1993 in the name of /appellant renewed up to 31-12-1994 issued for pistol No,B4751 country made of .30 bore which was taken into possession through memo. Exh.PC/6. Some broken house hold articles were also taken into possession through memo. Exh.PC/4. The blood stained garments of the deceased produced by F.C. Who is escorted the dead body to the mortuary was also taken into possession through memo. Exh.PC/7.
12. The appellant was arrayed as accused in the case and for his formal arrest the PAF authorities were approached who handed over the appellant to the police on 1-6-1994 through letter Exh.PW.12/18. After his formal arrest, the appellant once again led the police party to the spot for pointation where Exh.PB/1 with all its foot note was prepared. The appellant was produced on the following day i,e, 2-6-1994 for recording his voluntary confessional statement through application Ex,h.PW.12/26 where the confessional statement of appellant Exh.PW.3/1 with questionnaire Exh.PW.3/3 and certificate Exh.PW.3!2 were recorded by P . W .3 .
13. The contention of the learned counsel for the appellant regarding delay in recording the confessional statement has got no support from the record as he was taken into formal custody on 1-6-1994 and he confessed his guilt before Magistrate on the following day of his arrest. The statement has got sufficient corroboration from the record. Mere retraction from the confessional statement would not make the confessional statement unbelievable even in absence of query regarding his police custody by the Magistrate will not adversely affect the clean breast voluntary confession of the appellant as the documents produced before the Magistrate were clear to show that no police custody was obtained for the appellant as he was produced within 24 hours of his arrest before Magistrate where he recorded his confessional statement.
14. The pictorial of the deceased Exh.PM/1 disclosed that deceased sustained injury on the abdomen on right paraumbical region causing exit on the left side of lower back oval. Such type of injury could not be caused from fall of the pistol as stated by the appellant in his First Information Report and the Lady Doctor who conducted the autopsy while appearing as P.W.5 stated as follows:-- "The possibility of self-infliction and the injury being caused by fall of a weapon on the ground is excluded."
She stated that blackening is possible if the assailant is at a distance of 15 c.m. From the victim.
Further disclosed that up to a distance of one, metre tattooing and charring marks would be caused. Since no blackening or charring was found around the inlet wound, therefore, his report is silent in this respect. The medical report also negates the version of complainant recorded in F.I.R.
15. The brother of deceased was examined during investigation under sections 161 and 164, Cr.P.C.
Wherein he disclosed inter se relations between appellant and deceased party and also disclosed about the strained relations between appellant and the deceased. He also disclosed about the registration of criminal cases against the appellant and his family for causing aggression against the family of the deceased. While appearing in the trial as P.W.10. Wherein he informed the Court that during the pendency of criminal cases the appellant executed an agreement in favour of deceased undertaking therein that he will give a constructed house within 4 years or in lieu thereof shall pay Rs,50,000 apart from other commitments. The motive elaborately disclosed by the brother of deceased P.W.10 was not subjected to cross-examination thus admitted.
16. The crime weapon alongwith live cartridges and garments of deceased were sent to F.S.L. The same day through application Exh.P.W.12/14 and 12/15 respectively and the F.S.L. Issued positive report Exh.PZ on 4-7-1994. Not only the crime weapon was registered in the name of appellant but the appellant has also conceded that deceased was hit through the same weapon which fact is further supported from the F.S.L. The overall circumstances brought on record were sufficient to hold that the deceased was not hit accidentially but was murdered intentionally. Although none has deposed to be the eye-witness of occurrence but the circumstances collected during the investigation and brought on record during the trial reasonably connected the appellant with intentional murder of his wife.
17. For the discussion recorded above, I found this appeal without any substance which is hereby dismissed not only being barred by time but also being without substance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.