PLJ 2018 Cr.C. (Quetta) 116 (DB)
Qunan-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 39--Extra-Judicial Confession--There is no cavil to proposition that statement of an accused before police officer being extra-judicial confession is not admissible in evidence under Article 39 of Qanun-e-Shahadat Order, 1984 (“Order, 1984”)--Case against appellant hinges upon circumstantial evidence and, generally capital punishment cannot be awarded to accused on basis of circumstantial evidence. [P. 127] B
“Res-gestea”--
----Provision supra in English law of evidence is known as doctrine of “res-gestea”, which stipulates that facts which though not in issue, are so connected with a fact in issue as to form part of same transaction are relevant--Thus, a statement made immediately after murder occurrence under influence of occurrence or in remorsefulness, in order to justify or characterize it, and while trying to explain circumstances connected therewith, would be admissible as res-gestea evidence. [P. 127] C
PLD 1956 (WP)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Quantum of sentence--Principles of last seen evidence would also come into play because appellant is such person in relation to deceased and when deceased was lastly found with appellant under same roof, and then appellant would be required to explain circumstances in which deceased lady met with unnatural death--In case appellant fails either to plausibly explain aforesaid circumstances or to furnish true account of event which led to unnatural death of deceased, would otherwise form very strong corroboration to his retracted confession--Held: It is also well settled that any piece of evidence either accepted or discarded cannot be taken in piecemeal but shall be admitted or discarded in toto--Motive part of occurrence furnished by appellant shall also be admitted in toto--According to extra judicial confession of appellant due to altercation, he was provoked and as it was also mentioned in extra judicial confession at they were annoyed with each other due to alleged immoral activities of deceased--Appellant was admonishing her and was compelling her to refrain from her immoral life, when both of them indulged in quarrel, which provoked appellant and he attacked deceased--Thus, in aforesaid circumstances possibility of sudden provocation cannot be ruled out--It cannot be said with certainty that appellant who attacked deceased with a girdle and committed her murder, has committed crime with premeditated mind and intention--No one else was present on spot and for aforesaid reason developing of sudden provocation at spur of moment cannot be ruled out--Aforesaid circumstances are sufficient as extenuating factors for determining quantum of sentence, therefore, death sentence under Section 302(b), PPC cannot be awarded to appellant and only sentence of imprisonment for life as Tazir would be permissible--Appeal was dismissed. [Pp. 126 & 129] A, D, E & F
Messrs Syed Ayaz Zahoor and Arthur Victor, Advocates for Appellant (in Crl. No. 149/2014).
Mr. Ali Ahmed Kurd, Advocate for Complainant (in Crl. A. No. 149/2014).
Mr. Yahya Baloch, D.P.G. for State (in Crl. R. P. No. 29/2014).
Mr. Ali Ahmad Kurd, Advocate of Petitioner (in Crl. R. P. No. 29/2014).
Date of hearing: 30.3.2016.
PLJ 2018 Cr.C. (Quetta) 116 (DB)
Present: Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ.
versus
STATE and another--Respondents
Crl. Appeal No. 149 and Crl. Rev. 29 of 2014, decided on 30.6.2016.
Judgment
Muhammad Kamran Khan Mulakhail, J.--The learned Sessions Judge (Adhoc), Quetta (“Trial Court”) vide judgment dated 27th May 2014 (“the impugned judgment”) passed in Sessions case No. 16 of 2011 convicted the appellant in Criminal Appeal No. 149 of 2014 under Section 302(b) of the Pakistan Penal Code, 1860 (“PPC”) and sentenced him to suffer life imprisonment for committing murder of the deceased Tayaba Ibrahim. The appellant was further convicted under Section 338, PPC and sentenced to suffer rigorous imprisonment for five years. Both the sentences were directed to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Being aggrieved of the impugned judgment the mother of the deceased (Tayaba Ibrahim) viz Umme Kalsoom has filed Criminal Revision Petition Bearing No. 29 of 2014 for enhancement of the sentence awarded to the appellant in the aforesaid case.
On three scores, firstly both the cases emanate from the same judgment; secondly the facts and circumstances involved therein are same and; thirdly common question of law needs to be addressed in both the cases, this common judgment shall dispose of both the cases.
3. It is the prosecution’s case that on 04.11.2012 a case vide crime No. 168 of 2012, under Section 302, PPC was registered at Shalkot police station, on the report of complainant Niaz Hussain SI/SHO, wherein he alleged that on receipt of information from Civil Hospital Quetta that an injured lady brought to the casualty ward of the hospital, has expired, he along with other police officials reached the hospital and found the dead body of Tayaba Ibrahim. Alongside the deceased her husband Abu Bakar Siddiq (the appellant) was standing who disclosed the backdrop of the incident that the deceased was his wife and due to a quarrel between them he had assaulted her, which resulted into injuries to the deceased, whereafter she was brought to Civil Hospital on the doctor’s advice, where she succumbed to her injuries. The appellant was apprehended on the spot and thus the FIR was lodged against him.
4. Upon arrest of the appellant, the challan was submitted before the learned Sessions Judge Quetta which was subsequently transmitted to the file of the trial Court. The trial Court framed charge against the appellant on 12.12.2012, to which he did not plead guilty and claimed trial. Thereafter the prosecution in order to substantiate the charge produced following witnesses:
PW-1, Niaz Hussain SI/SHO, the complainant, produced his written report Ex.P/1-A and the report under Section 174, Cr.P.C. Ex.P/1-B.
PW-2, Dr. Abdullah Jan, is the doctor on whose advice the deceased was brought to Civil Hospital Quetta.
PW-3, Abdul Razzaq is the Security Guard of Sheikh Zayed Hospital colony.
PW-4, Muhammad Afzal, is also the Security Guard at Sheikh Zayed Hospital colony.
PW-5, Dr Ali Mardan MLO, conducted the postmortem of the deceased vide report Ex.P/5-A.
PW-6, Umme Kalsoom, is mother of the victim/deceased.
PW-7, Tahir Ibrahim, is brother of the victim/deceased.
PW-8, Muhammad Idrees ASI, is recovery witness, who produced the site-plan Ex.P/8-A, recovery memos. of blood-stained piece of wire, blood-stained packet of cigarette as Ex.P/8-B; blood-stained shawl Ex P/8-C; blood-stained household articles Ex.P/8-D; blood-stained clothes of deceased Ex.P/8-E, the extrajudicial confession of the appellant Ex.P/8-F and pointation memo. Ex.P/8-G.
PW-9, Ghulam Muhammad SI, is the Investigating Officer of the case, who produced the FIR as Ex.P/9-A, visual site sketch Ex.P/9-B, inquest report under Section 174, Cr.P.C. Ex.P/9-C, visual site sketch of place of recovery Ex.P/9-D, supplementary challan as Ex.P/9-E, Forensic Science Laboratory report Ex.P/9-F and complete challan Ex.P/9-G.
5. On conclusion of the prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P C, wherein he once again professed his innocence and denied the allegations leveled against him. The appellant also recorded his statement on oath as envisaged under Section 340(2), Cr.P.C. but did not produce any evidence in his defense. On conclusion of the trial the appellant was convicted and sentenced in the above terms. Hence, this appeal.
6. Learned counsel for the appellant contended that the impugned judgment has not only been passed in utter violation of law and facts rather the same is result of misreading of the evidence; that there is no eye-witness of the alleged incident in view thereof the prosecution had miserably failed to prove the charge, yet the trial Court recorded conviction against the appellant; that the trial Court has not been able to take into consideration the provisions of Article 40 of Qanun-e-Shahadat Order, 1984 with regard to recovery of the crime weapon and other articles from the place of alleged incident; that in-spite of glaring contradiction and improvements in the statements of prosecution witnesses, there was no occasion for the trial Court to have gone on and recorded conviction against the appellant; that the prosecution’s case is of no direct evidence or for that matter the incident has not been witnessed by any of the prosecution witnesses except a few circumstantial witnesses therefore, the prosecution was required to substantiate the charge through strong, independent, corroborative and confidence inspiring evidence, which it has failed to substantiate; that the guidelines, laid down by the superior Courts in respect of undoubtedness of the prosecution evidence have also not been taken into consideration in the impugned judgment as there was enough doubt in the prosecution’s case, on basis whereof the appellant could have easily been acquitted of the charge; that another important aspect of the matter has also escaped the notice of the trial Court that on the date of alleged incident the appellant himself brought the deceased to the hospital for medical treatment but due to doctors strike the deceased could not get treatment, which resulted into her sad demise. Learned counsel urged with vehemence that though the blood-stained clothes of the deceased were produced at the trial but no burn marks were found on clothes as alleged by the prosecution in view of opinion rendered by the medical witness; that the appellant was arrested on 04.11.2012 before registration of FIR when the house was searched and certain utensils were also recovered and taken into possession but again his disclosure was shown to have been recorded; that thereafter the house was again searched on 05.11.2012 showing the recovery of certain other blood-stained utensils on pointation of the appellant just to bring the disclosure within the purview of Article 40 of Qanun-e-Shahadat Order, 1984, which course has caused another glaring doubt in the prosecution case; that no blood grouping was carried out during the medical/post-mortem examination of the deceased therefore, the FSL report showing detection of human blood would not be helpful to the prosecution’s case, in addition when the recovered blood-stained articles were sent to FSL after the delay of one and a half year and the prosecution has failed to plausibly explain the same, which has totally diminished the prosecution’s case; that statement of PW-6, mother of the deceased was also left uncorroborated when her contention with regard to telephonic conversation with the deceased was not established by bringing Call Data record of the mobile phone of the deceased as well as of the witness; that the statement of PW-1, if excluded from consideration being the witness of extra judicial confession before the police, there would be no evidence against the appellant. The learned counsel strongly urged that based on material contradictions the prosecution’s evidence has to be discarded, whereas the appellant be acquitted of the charge after setting aside the impugned judgment.
7. Learned counsel for the petitioner in the connected revision petition, on behalf of the mother of the deceased strongly opposed the contentions by contending that the impugned judgment to the extent of awarding lesser punishment is quite contrary to the law as well as facts of the case; that the conduct of the appellant soon after the occurrence was sufficient to establish his guilty intention when he instead informing his mother-in-law gave the phone numbers to the police officer on duty; that he being remorseful was unable to inform the mother of the deceased about the occurrence; that the appellant being chief pharmacist was well aware of the immediate medical treatment, therefore he was initially trying to provide the necessary treatment to the deceased at home and on realization that he would not be able to manage the same, decided to take her to the doctor (PW-2 Dr. Abdullah Jan), and on his advice brought his injured wife to the hospital, thus the manner and procedure opted by the appellant reflect his guilt; that in a span of 48 hours the appellant introduced three different stories but failed to establish either, therefore, the contradiction in his stance was sufficient to pinpoint him as the sole perpetrator of the crime; that once the prosecution’s case stands proved, only capital punishment needs to be imposed and the accused has to be dealt with accordingly, which in the instant case has not be dons by the trial Court; that the indifference of the trial Court is also evident from the fact that while awarding lesser punishment under Section 302(b) the trial Court has not given any explicit reasons for awarding lesser punishment, whereas in view of the facts and circumstances of the case proved by unimpeachable evidence, only capital sentence was the way that the appellant deserved to be dealt with. The learned counsel vehemently urged for dismissal of the appeal and enhancement of sentence awarded via impugned judgment.
Learned APG supported the arguments raised on behalf of the petitioner and added that the facts and circumstances of the case clearly establish that the charge has successfully been proved by the prosecution against the appellant beyond any shadow of doubt. He also strongly opposed the impugned judgment and urged for setting the same said and prayed for enhancement of the sentence awarded to the appellant.
8. Heard the learned counsel and perused the available record. It is the prosecution’s case that after the incident the appellant brought his wife in injured condition at Civil Hospital Quetta, where the casualty department of the hospital after initial examination informed the police; that on arrival of the complainant PW-1 Niaz Hussain SI/SHO, and on his report Ex.P/1-A, the FIR Ex.P/9-A was lodged against the appellant.
9. The statement of PW-1 shows that after receiving information from police control that a severely injured woman brought to the hospital has succumbed to her injuries. On arrival of police party the appellant was also found in the hospital with blood-stained clothes and injuries on his hands, who immediately disclosed the facts and circumstances of the occurrence and also admitted his guilt before PW-1 by stating that on account of altercation with the deceased, he was provoked and reacted bewilderingly by hitting the deceased on her head with a girdle. This witness also informed the mother of the deceased on the telephone number provided by the appellant.
The details given by the appellant to PW-1 were fully corroborated by medical evidence, which shows that the injuries/scratches were also found on the hands of the appellant, while burn marks were also seen on person of the deceased. Though initially no disclosure of the appellant was reduced into writing but the inquest report prepared under Section 174, Cr.P.C. compiled on the spot has fully corroborated the injuries found on the deceased’s body. Neither the unnatural death of the deceased was disputed by the defense nor was any animosity or mala fides of PW-1 suggested to establish that the said witness had enmity with the appellant reasoning to his false implication towards the commission of crime.
10. PW-2 Dr. Abdullah Jan deposed that he was asleep at his home when the door was knocked, he came out and saw the appellant standing at the door worrisome and his clothes soaked with blood, who told him that his wife is not feeling well, on which PW-2 brought the stethoscope and found the deceased lying on the rare seat of the car drenched with blood: that on query the appellant disclosed that she had fallen downstairs; that the deceased’s condition was critical, therefore, he advised the appellant to take her to the hospital; that subsequently he learnt that the death of the deceased occurred due to severe torture. This witness was cross-examined at reasonable length but astonishingly his statement with regard to appellant’s disclosure about the deceased’s falling downstains; was not denied by the defense nor was it suggested that the deceased was subjected to torture by the bandits, as was subsequently pleaded by the defense.
11. PW-3 Abdul Razzaq is the Security Guard who was called by the appellant for shifting the deceased to the hospital but this witness also did not support the defense with regard to injuries of the deceased by the bandits nor any such suggestion was put to him. This witness also denied that the deceased at the time of shifting to the hospital was crying and proclaiming chor chor (چور چور)
12. The statement of PW-4 Muhammad Afzal corroborates the statement of PW-3, both of them helped the appellant for shifting the deceased to the hospital. This witness has also denied the suggestion that the deceased at the time of shifting was proclaiming (چور چور) The statement of aforesaid witnesses totally negated the defense version that on the fateful day bandits had entered the appellant’s house and the deceased was injured at their hands. Though the presence of these witnesses was not denied by the defense but at the same time both PW-3 and PW-4 denied the suggestion that on the said day thieves/bandits had entered the appellant’s house or even the appellant himself had not told them that his wife got injured by the bandits, who had entered into his house, therefore, their statements recorded under Section 161, Cr.P.C. were also silent in this respect.
13. The statement of PW-5 Dr. Ali Mardan, who initially examined the deceased and subsequently conducted her post-mortem, shows that soon after clinical examination, he informed the police about the unnatural death of the deceased. He denied that burning marks found on the person of the deceased were old, however voluntarily stated that some old while the rest were fresh. He has also admitted that family members of the deceased were contacted by the police officials through cell phone in his presence. He has categorically denied the suggestion that during initial examination the deceased told him that she and her husband were tortured by some unknown persons, but voluntarily stated that this was only disclosed by the appellant. The injuries noted by this witness, which were subsequently mentioned in the post-mortem report Ex.P/5-A are relevant, therefore, it would be helpful to reproduce the same hereunder:
“There were multiple lacerated wounds on top of skull about 3 in No and Muscle deep of size. Respectively 3, 1 & 1 cm. Swelling on it [sic] check. Hematoma on right side forehead. Multiple cigrate [sic] burns on Back of chest, abdomen, Both legs and it thigh. Multiple scratches on Rt, Lt arms, forearms, Rt, Lt. legs. Lacerated wounds on Rt leg anteriority 2 x 2 cm. Multiple Bruises of Different size on Both arms, hands, thigh and both legs, swelling of both hands Rt & left.
Remarks by Medical Officer
The deceased died of Netrogenic shock, Bleeding and cumulative effects of said injuries on all over her body. Injuries are caused by blunt object.”
On the fateful day the appellant was also examined by PW-5. Though his medical certificate was not produced by the prosecution but subsequently the same was brought on record by the appellant as Ex.D/1-A, which shows the following injuries:
“Multiple scratches on Right hand, palms surface and face. Redness on Right hand right finger with swelling.”
The MLC Ex.D/1-A has not only corroborated the statement of PW-1, but the appellant also failed to explain about the injuries he sustained. This aspect of the case will be discussed in the latter part of this judgment while dealing with what the defense had to offer.
14. PW-6 Umme Kalsoom is mother of the deceased. She deposed that she received a telephone call from the police officials from Shalkot police station in respect of death of her daughter due to severe torture. She also deposed that her daughter contacted her on phone on 2nd November 2012 and informed that the appellant used to torture her and on 3rd November 2012 her deceased daughter told her on telephone that the appellant has again tormented her, but she was informed on 04.12.2012 about the murder of her daughter. She also deposed that police had informed her that the appellant has been arrested along with the weapon of offence.
15. PW-7 Tahir Ibrahim is brother of the deceased supported the statement of PW-6 and deposed in the same lines.
16. PW-8 Muhammad Idrees ASI, deposed that he was accompanying the Investigating Officer in the hospital when the inquest report was prepared, thereafter he along with other police officials visited the place of occurrence when blood-stained wiper, a blood-stained cigarette packet, blood-stained shawl of the deceased, blood-stained mattress and various blood-stained utensils were taken into possession through recovery memos. Ex.P/8-B to Ex.P/8-E. He also produced the disclosure of the appellant as Ex.P/8-F recorded on 05.11.2012. He also produced recovery memo. Ex.P/8-G in respect of other blood-stained utensils recovered on pointation of the appellant.
17. Finally the statement of PW-9, the Investigating Officer Ghulam Muhammad SI, was recorded who produced the FSL report as Ex.P/9-F, FIR as Ex.P/9-A and inquest report as Ex.P/9-C. On completion of prosecution’s evidence, the appellant was examined under Section 342, Cr.P.C., however he did not opt to produce any defense witness but recorded his statement under Section 340(2), Cr.P.C.
18. The statement of the appellant recorded under Section 340(2), Cr.P.C. shows that the appellant had introduced that defense plea, that on the fateful day unknown persons launched an attack upon his house and he was asleep upstairs along with his son Muhammad Ali, who was suffering from allergy; that at midnight he heard hue and cry on which he came downstairs and saw that a muffled face person having something like iron clip in his hand was standing while his wife Dr Tayyaba (deceased) was lying on the floor in injured condition. He indulged into scuffle with the said person, meanwhile his other companion who was in the bedroom appeared and both of them pushed him. Both escaped through the kitchen door and after scaling over the exterior wall fled away; that he went out shouting ‘chor chor’ and when came inside he saw that his wife was severely injured; that he rushed to the Guard Room and asked them to help him out and he immediately took his wife to the house of Dr. Abdullah Jan, and told him whole story, who after examining his wife advised him to take her to the hospital; that due to doctor’s strike, nobody was on duty except one dresser; that he himself informed the police surgeon after obtaining his telephone number from the department; that he went to bazar for medicines but on his return he came to know that Dr. Tayyaba has succumbed to her injuries. After an hour the police arrived and he provided the telephone number to them to inform the mother of the deceased; that he told the whole story to the police but they refused to look into any reason, that he was tortured and on account of influence of the deceased’s family the instant case was lodged against him. He professed his innocence and prayed for acquittal.
The appellant has introduced the defense plea and deposed that his wife was lying on the floor in injured condition but again he had failed to explain the injuries sustained by him. He also failed to explain that how the burning marks were found on the person of the deceased as well as multiple injuries on the other parts of her body. However, he admitted the presence of PW-3 and PW-4, soon after the occurrence and also admitted that he took the deceased to PW-2 Dr. Abdullah Jan and on his advice brought her to the hospital. The defense introduced by the appellant is not supported with the facts and circumstances of the case while the suggestions in defense were denied by PW-2, PW-3 and PW-4, in respect of decoity at his home. Even the appellant did not suggest his aforesaid defense plea to the prosecution witnesses who were attracted to the place of occurrence on his invitation. It is not acceptable to the prudent mind that the thieves/bandits during the course of occurrence would severely torture the deceased by causing multiple injuries on her person as well as burning her body with cigarette. It is also not acceptable that PW-3 and PW-4 being guards on duty would remain silent without any explicit reason in respect of decoity allegedly committee in the appellant’s house. The unexplained delay for sending the blood-stained utensils and other articles to the FSL, would be of no avail to the defense when neither the unnatural death of the deceased was denied nor the appellant could explain that when the deceased was being thrashed by the bandits, he was sleeping upstairs but was not attracted to the spot immediately. Even the two guards on duty remained unaware about the decoity; that no valuable article was mentioned to have been stolen/looted A feeble attempt to build up the defense based on fabricated plot is not worthy of credence.
19. We are unable to agree with the contention of the learned counsel for the appellant that in absence of any direct ocular evidence and while excluding the disclosure of the appellant there would be no evidence against him on the prosecution file. The statement of PW-1 is not only reliable but his natural and unimpeachable deposition furnished very strong corroboration, which the appellant told him in the hospital by narrating the complete scenario in which the deceased got injured. Another aspect, which further corroborates the statement of PW-1 is, when neither the appellant nor the deceased or for that matter her family in Lahore was known to PW-1. When the police official on duty reached the hospital, he was told the whole story, which was in nobody’s knowledge except the appellant and the deceased but she had died at that time, therefore, the account of occurrence furnished by the appellant cumulated into registration of FIR. The witnesses who immediately reached the spot saw and heard what the appellant told them, while PW-2 Dr. Abdullah Jan was told an entirely different story. Again PW-1 was told the true account of the occurrence. Yet another aspect when the appellant lied to PW-2 Dr. Abdullah Jan regarding the injuries of the deceased, which were stated to have been caused due to falling downstairs and this narration by PW-2 was not denied in his cross-examination.
Here the principles of last seen evidence would also come into play because the appellant is such person in relation to the deceased and when the deceased was lastly found with the appellant under the same roof, and then the appellant would be required to explain the circumstances in which the deceased lady met with unnatural death. In case the appellant fails either to plausibly explain the aforesaid circumstances or to furnish the true account of the event which led to unnatural death of the deceased, would otherwise form very strong corroboration to his retracted confession.
20. There is no cavil to the proposition that the statement of an accused before the police officer being extra-judicial confession is not admissible in evidence under Article 39 of the Qanun-e-Shahadat Order, 1984 (the “Order, 1984”). The case against the appellant hinges upon the circumstantial evidence and, generally capital punishment cannot be awarded to accused on basis of circumstantial evidence.
But if the pieces of circumstantial evidence are put in juxtaposition and if they would bring the case in the area where prima-facie, the case is made out against the accused, coupled with the fact that the prosecution witnesses are disinterested while the chain of evidence touching the dead body from one side and to the neck of the accused on the other, then on unimpeachable circumstantial evidence, in which no link of the chain is missing, capital punishment can be recorded. Reference is made to the case of Inayatullah v. The State (PLD 2007 SC 237).
21. The question of prime importance in the instant case would be that how much of information received from the accused can be termed as relevant fact forming the part of same transaction. Article 19 of the Order, 1984 corresponding to Section 6 of the Evidence Act, 1872, since repealed provides a complete answer to the proposition discussed herein above. Article 19 of the Order, 1984 speaks as under:
“19. Relevancy of facts forming part of same transaction. Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”
The provision supra in English law of evidence is known as doctrine of “res-gestea”, which stipulates that the facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant. Thus, a statement made immediately after murder occurrence under influence of occurrence or in remorsefulness, in order to justify or characterize it, and while trying to explain circumstances connected therewith, would be admissible as res-gestea evidence. Reliance is placed on the cases of The Crown v. Abdul Ghani (PLD 1956 (WP) Lahore 300) and Muhammad v. The State (1994 P.Cr.L.J 2102).
However, said evidence can only be considered as one link of the chain but this evidence cannot be made the only reason for recording the conviction. Therefore, the Court should dig out for an independent corroboration of such evidence.
22. We have found corroboration of initial statement/ disclosure of the appellant from three important circumstances. One that the appellant at the time of occurrence was an inmate of the house along with the deceased and he therefore, in normal circumstances would not only know the facts it stantly leading to the unnatural death of his wife living under the same roof, but would also be required to establish and/or plausibly explain his innocence in that behalf. However, this would not be so if another person more in authority would either independently or in addition to such an inmate i.e. the husband, would be present in the said house to be burdened with this responsibility, but this is not the case here and the appellant being the only person present with his deceased wife in the house where she was statedly found injured/dead.
Thus, failure of the appellant to explain the circumstances, when his wife was died unnatural death in dubious and mysterious circumstances, when the deceases lastly accompanied the appellant and multiple injuries and burn marks were noted by the doctor on her person, blood-spread all over the house, injuries of the appellant on his hands, blood-stained utensils and other articles, extra-judicial confession soon after the occurrence, forming the part of res-gestea, the statements of PW-2, PW-3 and PW-4, three contradictory statements of the appellant uttered to the witnesses till registration of the FIR and, his failure to rebut the aforesaid circumstances in plausible manner, altogether conclude that the cold blood murder of the deceased was committed by the appellant. Reference in this behalf is made to the cases of Noor Muhammad v. The State (PLD 1991 SC 150) and Azeem Khan v. Mujahid Khan (2016 SCMR 274).
23. Now adverting to the quantum of sentence. It is admitted fact that prosecution case hinges upon the circumstantial evidence and there was no eye-witness of the occurrence. The statement of PW-6 shows that her daughter was earlier divorced and the appellant was her second husband. It has also come on record that earlier marriage of the deceased had dissolved due to her infertility/frigidity and after her marriage with the appellant a baby boy was born through IVF in-vitro fertilization (i.e. fertilization of eggs by sperm outside the body).
In the instant case initially charge was framed for an offence under Section 302, PPC on 12.12.2012 but, subsequently on the application filed on behalf of mother of the deceased, vide order dated 15th April 2014 charge was amended and Section 338, PPC was incorporated in the charge. Section 338, PPC was incorporated due to the reason the post-mortem report disclosed that the deceased was pregnant and her fetus also died due to her unnatural death. This aspect of the prosecution case has remained unexplained that when according to the statement of mother of the deceased/PW-6, her earlier marriage was dissolved due to infertility of the decetised and first baby was born through IVF but if remained in mystery that how second time she became pregnant. While determining the quantum of sentence and while relaying on extra judicial confession of the appellant before PW-1 and since it is also well settled that any piece of evidence either accepted or discarded cannot be taken in piecemeal but shall be admitted or discarded in toto. Therefore, the motive part of the occurrence furnished by the appellant shall also be admitted in toto. According to the extra judicial confession of the appellant due to altercation, he was provoked and as it was also mentioned in the extra judicial confession that they were annoyed with each other due to alleged immoral activities of the deceased. The appellant was admonishing her and was compelling her to refrain from her immoral life, when both of them indulged in quarrel, which provoked the appellant and he attacked the deceased. Thus, in the aforesaid circumstances the possibility of sudden provocation cannot be ruled out. It cannot be said with certainty that the appellant who attacked the deceased with a girdle and committed her murder, has committed the crime with premeditated mind and intention. No one else was present on the spot and for the aforesaid reason the developing of sudden provocation at the spur of moment cannot be ruled out.
The aforesaid circumstances are sufficient as extenuating factors for determining the quantum of sentence, therefore, death sentence under Section 302(b), PPC cannot be awarded to the appellant and only the sentence of imprisonment for life as Tazir would be permissible.
In view of principles laid down by the Apex Court, we do not find ourselves in agreement with learned counsel appearing on behalf of mother of the deceased for enhancement of the sentence awarded to the appellant.
Thus, it can safely be concluded that the trial Court has rightly awarded the sentence of imprisonment for life to the appellant. Consequently the appeal against conviction, as well as the revision petition for enhancement of sentence is dismissed accordingly.
(A.A.K.) Appeal dismissed
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