P L D 1982 Karachi 163 (PLP)

G. M. KOUKEJO, J.‑The appellant Muhammad Afzal son of Amir Khan Pathan, aged about 30 years was tried by the learned Ex Officio Vth Additional Sessions Judge, Karachi, for an offence under sec tion 302, P. P. C. and was sentenced to death by the judgment dated 6th June, 1979. The appellant has preferred this appeal against the conviction and sentence. There is also a reference made under section 376, Cr. P. C. for confirmation of the death sentence. This judgment will dispose of both the appeals as well as the reference.

2. The facts of the prosecution case as disclosed in the F. I. R. briefly stated are, that on 23‑11‑1974 Sub‑Inspector Mahboob Khan was returning from security duty in connection with the visit of President of Pakistan from Mauripur Road via Nazamabad on his motor‑cycle. H. C. Muhammad Rafique was seated on the back seat of his moter‑cycle. When they reached near Sir Syed Girls College at about 5.30 p. m. they saw a person who subsequently disclosed his name as Muhammad Afzal son of Amir Khan causing knife blows one after the other to a woman whose name subsequently transpired to be Sayadah Iqbal‑un‑Nissa. The woman was lying on the ground, whereas 3‑4 girls raising alarm. Sub‑Inspector Muhammad Mahboob Khan stopped his motor‑cycle and with the help of Head Constable Muhammad Rafique and by showing his service revolver to the appellant snatched the blood stained knife from him and arrested him. Many people were collected on the vardat. Muhammad Mahboob Khan then stopped a private car and put the injured in it and sent her to the hospital alongwith Muhammad Sabir an eye‑witness to the incident and a Police Constable. He recovered the knife under mashirnama in presence of mashirs Abdul Aleem and Abdul Rashid. He then accompanied by Head Constable Muhammad Rafique, took the appellant Muhammad Afzal along with the knife to the Golimar Police Station and produce the appellant and knife before Muhammad Munir S. H. O. Golimar Police Station.

3. Muhammad Mahboob Khan Sub‑Inspector and Head Constable Muhammad Rafique produced the appellant and knife with hair sticking to it and the mashirnama of the recovery of the knife (Exh. 19) and the appellant before Muhammad Munir S. H. O. Golimar Police Station at about 6.00 p. m. on 23‑11‑1974. Muhammad MahboobKhan Sub‑Inspector lodged the F. I. R. which was recorded vide Exh. 24 by S. H. O. Muhammad Munir. He recovered the blood‑stained knife in presence of mashirs Abdul Aleem and Abdul Rashid vide Exh. 20 and prepared into a sealed parcel. He then examined the person of the appellant and found little finger of his right hand freshly injured. His shirt was also stained with blood. He secured the shirt from his person and prepared it into sealed parcel in presence of the same mashirs. He referred the appellant to the Medical Officer, Civil Hospital, Karachi for his examination. He proceeded to the hospital where he inspected the dead body of Sayadah Iqbal‑un‑Nisa and prepared inquest report vide Exh.

39. He prepared mashirnama of injuries on the dead body vide Exh.

40. He sent a letter vide Exh. 30 to the Police Surgeon for post‑mortem examination on the dead body. He then pro ceeded to the vardat and prepared its mashirnama on the pointation of the com plainant Sub‑Inspector Muhammad Mahboob Khan in presence of mashirs Muhammad Ashraf and Muhammad Yasin vide Exh.

50. He secured blood from the vardat and prepared a mashirnama in presence of the same mashirs. He then recorded statements of Sub‑Inspector Mahboob Khan, Muhammad Sabir, Abdul Aleem, Abdul Rashid, Barkat, Abdul Rasool, Muhammad Yasin and Ashraf. On, 27‑11‑1974, he recorded the statements of the remaining prosecution witnesses. After the post‑mortem examination, on the dead body of deceased Sayadah Iqbal‑un‑Nissa, he secured the blood‑stained clothes of the deceased from the Medical Officer duly seated. He then sent the sealed parcels containing the blood‑stained knife, blood‑stained shirt of the appellant and blood‑stained clothes of the deceased to the Chemical Analyser for examination and report. He produced the Chemical Anaiyser's report vide Exh.

41. He got the statements of the prosecution witnesses Sabir, Abdul Alim and Abdul Rashid recorded under section 164, Cr. P. C. on 7‑12‑1974. On 29‑12‑1974 he cballaned the appellant in the Court with the result that ultimately he was convicted and sentenced as stated above.

4. Dr. Syed Iqbal Ahmed on 24‑11‑1974 performed the post‑mortem examination on the dead body of Sayadah Iqbal‑un‑Nissa. The clothes which she was wearing were blood‑stained and had corresponding cuts. He started post‑mortem examination at 1000 p. m. which was finished at 10‑30 p. m. On external examination be found the following injuries :‑ (1) Incised wound right side cheek 1' x ' x muscle deep about I' away from ear, vertical in direction. (2) Incised wound left side neck 2' from left ear lobule measuring 1 ' x 1' muscle deep vertical in direction. (3) Incised wound left side neck about ' below Injury No. 2 measuring 1' x ' x Muscle deep vertical in direction. (4) Incised wound back of the neck 2' x 1' bone deep horizontal in direction. (5) Incised wound back neck just below Injury No. 4 measuring 1' x 4' x muscle deep. Vertical in direction. (6) Incised wound occipital region 1' x ' muscle deep vertical in direction. (7) Incised wound back of neck right side 1' x ' X muscle deep vertical in direction. (8) Incised wound left side back lumbar region 1' from mid line about 10' from the tip of shoulder measuring 3' x ' ' x cavity deep. (9) Incised wound right side glutial region 2' x 1' X muscle deep horizontal in direction. (10) Incised wound left lumbar region 2' x 1' x muscle deep oblique in direction. (11) Incised wound left supra clavical region 2' x ' x suspect to cavity deep, horizontal in direction. (12) Incised wound back of right ear 1' X " x muscle deep vertical in direction. (I 3) Incised wound right upper area 1" x " x muscle deep 1' x 4' below the tip of the shoulder. (14) Thumb 1' x ' x muscle deep vertical in direction. (15) Incised wound left forearm back middle 2' x " x oblique in direction. On internal examination, he found that under external injury No. 2, the weapon of assault after piercing the skin, soft tissues and muscles of neck gave an incised cut in the lateral wall of external carotid artery measuring 1/6' x 1/8' through and through. There was an incised wound in the posterior surface of left kidney 1' x I' x tissue deep. Under external Injury No. 8 there was also an incised wound in spleen 1' x ' x through and through. Spleen had partially collapsed. Right kidney and liver were pale but normal. There was no mark of injury on external genitaria. Vagina was pateleious. In the opinion of the Medical Officer, external Injuries Nos. 2 and 8 with its internal findings were individually and collectively sufficient to cause death in the ordinary course of nature. The death was the result of shock and haemorrhage as a result of multiple homocidal injuries inflicted on body by a sharp and pointed weapon like a knife, churri or any other similar weapon of assault. All the injuries were anti‑mortem.

5. Dr. Syed Iqbal Ahmed on 23‑11‑1974 at about 11.30 p. m. had also examined the appellant Muhammad Afzal son of Amir Khan and found the following injuries on his person :‑ Incised wound right hand palm on middle medial aspect 3/4" x 1/8' muscle deep. The above injury appears to have caused by a sharp‑edged weapon. The injury was fresh and was simple in nature. The inured was referred to him by Golimar Police. He produced his Medico Legal Certificate vide Exh. 31.

6. The case of the accused appellant Muhammad Afzal is of a denial. He admits his presence at the vardat but denies to have caused injuries to the deceased resulting in her death. He claims the deceased as his wife and claims to have gone to the vardat to protect her from Sarajuddin and Nooruddin Butchers as they were harassing her and she was expecting danger from them on the day of incident. According to him as soon as he reached vardat he found Sarajuddin butcher causing injuries to her with a knife: He claims to have grappled with Sarajuddin as a result of which his knife feli on the ground and he was injured on his right palm. He denies to have been apprehended on the spot by the Traffic Police Sub‑Inspector Muhammad Mahboob Khan and Head Constable Muhammad Rafique. According to him S. I. Mahboob Khan arrived on the spot after Sarajuddin butcher had run away. According to him Muhammad Mahboob Khan picked up knife of Sarajuddin from the ground and thereafter arrested him in spite of his repeated protests. He denies the presence of Head Constable Muhammad Rafique at the vardat. He denies that his shirt was stained with blood. He admits that the deceased had obtained divorce from him on the ground of Khula` by filing a suit in the Family Court. He claims that the Family Suit was the result of mis understanding between the two families and not between the deceased and himself. He produces a letter written by the deceased in support of his contention vide Exh.

43. He admits to have remarried the deceased as she insisted on such remarriage but he denies that there was subsequent separation and a divorce between them. He claims that they were living as loving couple. He further contends that a day or two before the incident she had complained to him that Sarajuddin and Nooruddin butchers had threatened her to abduct her and on the day of the incident she told him that she was likely to be ab ducted after coming from the examination hall where she had gone to appear in the examination. According to him he went to the vardat to protect her from Sarajuddin and Nooruddin butchers. He further claims that she had moved such an application against Sarajuddin and Nooruddin to S. H. O. New Town Police Station vide Exh.

7. According to him the prosecution witnesses have deposed against him at the instance of his wife's brother and his family members with whom he had strained relations. As regards S. I. Muhammad Mahboob Khan, according to him, he arrived at the scene of offence 10.15 minutes after the incident and after Sarajuddin butcher had managed to escape, and therefore he is not a true witness. He has not examined any evidence in his defence.

6. The death of the deceased Sayadah Iqbal‑un‑Nissa as a result of injuries caused to her with a knife is not disputed. The only dispute is as to whether the present appellant caused the alleged injuries to the deceased resulting in her death. The prosecution case in that respect is based on the evidence of as many as six eye‑witnesses to the incident, who claim to have seen the appellant causing knife blows to the deceased and was apprehended on the spot and produced at Golimar Police Station alongwith blood‑stained knife and blood‑stained shirt on his person. There is also corroborative evidence of the appellant having a fresh injury on his little finger of his right hand at the time of his arrest, blood‑stained knife recovered from him on the spot, blood‑stained shirt recovered from his parson and a motive.

7. As regards the occular evidence the prosecution version is, that as soon as Sayadah Iqbal‑un‑Nissa who was employed in Karachi University and was also prosecuting her studies, was coming out of the examination hall alongw4h the other girl students on the day of incident, she was attacked by the appellant with a knife causing her as many as 15 injuries. On commotion and cries, S.

1. Muhammad Mahboob Khan and Head Constable Muhammad Rafique who were returning from their duty were attracted by the incident and Muhammad Mahboob Khan S. I. who was armed with his service revolver challenged the appellant and with the help of Head Constable Muhammad Rafique and show of his service revolver snatched the blood‑stained knife from the appellant and caught hold of him and arrested him. He put the injured in a private passing by car in company of Muhammad Sabir an eye witness to the incident and a Police Constable and sent her to the hospital. He recovered the blood‑stained knife from the appellant in presence of mashirs Abdul Aleem and Abdul Rashid, prepared its mashirnama and took the appellant and the blood‑stained knife to Golimar Police Station. P. Ws. Muhammad Mahboob Khan and Head Constable Muhammad Rafique have fully supported the prosecution version in that respect. According to them finding the appellant .causing knife injuries to the deceased they challenged him and snatched knife from him and caught hold of him on the spot. Their version is clear to the effect that at the time of arrest the appellant had a fresh cut of knife on his little finger of right hand. According to them they produced the appellant alongwith blood‑stained knife at Golimar Police Station. P. W. Nafisa Begum fellow student of the deceased who was also appearing in the examination alongwith her and had come out of the examination hall with her is another eye‑witness to the incident. According to her, after coming out of the examination hall they had come in front of the Sir Syed Girls College, Nazimabad, and had crossed the road, when the deceased Sayadah Iqbal‑un‑Nissa was attacked by the appellant with a knife. According to her he caught hold of the hands of the deceased dragged her and started giving her injuries with the knife one after the other. She has further stated that one Police Officer immediately reached the scene of offence and apprehended the appellant at the spot. According to her she did not know the appellant before but she could identify him in Court and he was the same assailant whose name subsequently transpired to be as Muhammad Afzal who had caused knife injuries to the deceased and killed her. P. W. Muhammad Sabir is also the eye‑witness to the incident. He is an employee in Pakistan Education Conference with the office situated in Nazimabad. According to him he was returning from his office and stopped at the vardar due to heavy traffic. According to him 2‑3 girls and appellant were standing on the green belt of the road. He has further stated that as soon as he had crossed the parallel road he heard cries. He tried to retrace his steps to the place of occurrence but due to heavy rush he could not do so. In the meantime a Police Officer came there and apprehended the appellant Muhammad Afzal. According to him he did not know the appellant before the incident but he could identify him in Court as the assailant who was caught hold by the Police Officer. This witness accompanied the deceased Sayadah Iqbal‑un‑Nissa to the hospital. She died on her way to the hospital. P. W. Abdul Rashid who is carpet maker by profession is yet another eye witness to the incident. According to him he was coming from Lalukhait side on motor‑cycle when he saw the incident. In the meantime a Police Officer came there on the spot on motor‑cycle and they ran after the culprit and caught hold of him at the spot. He was not known to him before but he could identify him in Court to be the assailant who committed the crime. He has further stated that Police Officer also secured the blood‑stained knife from the appellant. He further stated that the Police told him that the name of the culprit had transpired to be Muhammad Afzal. Lastly, P. W. Muhammad Alam Khan who was working as cook in the Coast Guards also witnessed the incident. According to him on the day of incident at about 5.30 p. m. he was going to Golimar from Nazimabad side and when he reached near the vardat he saw the incident, one man giving knife blows to a woman at a distance of about 1 i furlong. According to him the assailant was apprehended at the spot by the Police Officer and Head Constable of Police. They also secured knife from him. According to him the assailant had also an injury on his right side little finger. According to him the name of the assailant subsequently transpired to be Muhammad Afzal son of Amir Khan. According‑ to him he has given his name in the statement under section 164, Cr. P. C. but due to lapse of long time be is not able to identify him to be the same culprit. The ocular evidence very clearly disclose that the appellant was apprehended on the spot and arrested by the two Police Officers while com mitting the crime, inflicting knife injuries to a woman resulting in her death. Mst. Rehmaturinisa a college‑mate of the deceased who in company of Nafisa Begum rushed to the house of the .deceased and informed her sister Malka Jehan and her brother‑in‑law Syed Abdul Rasool about the incident. They rushed to the hospital where they were informed that she was already dead. According to them the name of the appellant Muhammad Afzal transpired to be the assailant.

8. The learned counsel for the appellant, Mr. Muhammad Hayat Junejo, has assailed this ocular evidence mainly on the ground that the appellant was not put to identification test from the above‑mentioned eye‑witnesses to the incident and that they did not disclose the features of the appellant at any earlier stage and that their evidence is interested. So far the last contention is concerned none of the above‑mentioned eye‑witnesses to the incident admittedly are in any way related to the deceased. Moreover, there is no dispute that they have no motive to falsely implicate the appellant. They are the people from different localities and were returning from their respective jobs and had to pass by the place of incident and we do not consider their presence at the vardat which is undisputed, at the time of incident which was 5.30 p. m. unnatural and uncalled for. The learned defence counsel has failed to show in the circumstances that they were interested witnesses, and, therefore, they had no reason to falsely implicate the appellant. So far the contention to the effect that the appellant was not put to the identification test from the above‑mentioned eye‑witnesses to the incident and that they had failed to disclose his features at any stage of the investigation, it has equally no force for the simple reason that the appellant was apprehended on the spot, caught alongwith the blood‑stained knife, with a fresh injury on his little finger of right hand and a blood‑stained shirt on his person which fact has been proved by a overwhelming reliable evidence on the record. In such a situation it was absolutely unnecessary and irrelevent for the Investigating Police to put the appellant to an identification test from the eye‑witnesses to the incident as the prosecution case was not based on the evidence of identification alone, ‑ or that of mistaken or insufficient identity. Similarly, disclosing of the features of the appellant at the stage of investiga tion when he was caught on the spot was equally immaterial and irrelevant. In that respect the learned defence counsel has relied on the case of Ramzan and others v. The Emperor A I R 1929 Sind. 149, and an unreported judgment dated 27‑1‑1981 in Criminal Appeals Nos. K‑19‑20 of 1979 in the case of Abdul Sattar and Yakoob v. The State of Supreme Court of Pakistan but we find that these cases are very clearly distinguishable for the simple reason that they are based on the evidence of identification alone, whereas in the instant case the appellant was apprehended on the spot while committing the crime. The reliance placed by the learned counsel for the appellant on the above‑men tioned authorities is, therefore, clearly misplaced.

9. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has further contended that there has been a delay in lodging the F. I. R. on the admitted facts of the case the incident took place at about 5‑30 p. m. when the distance between the vardat and the police station is four furlongs. But we find that the appellant was overpowered and caught on the spot and recovery mashirnama of the blood‑stained knife was also prepared by Muhammad Mahboob Khan A. S. I. He also managed to send the injured alongwith Muhammad Sabir eye‑witness to the incident and one Police Constable in a private car to the hospital. He thereafter went to the Police station taking the appellant and the blood‑stained knife and the recovery mashirnama with him accompanied by Head Constable Muhammad Rafique, two mashirs of recovery Abdul Aleem and Abdul Rashid, and in the circumstances ordinarily he could take at least half an hour to complete the process and we do not consider that there was any delay in lodging of the First Information Report.

10. The defence of the appellant mainly is that the deceased was attacked by Sarajuddin and Nooruddin Butchers at whose hands she was expecting danger on the day of incident and he had reached thereto defend her. His contention mainly is that as soon as she was attacked by the two ghundas he went to rescue her when he was mistaken to have attacked and killed her. According to him A. S.

1. Mahboob Khan and Head Constable Muhammad Rafique reached little later after Sarajuddin and Nooruddin had run away and they arrested him taking him to be the assailant, otherwise she was his legally wedded wife. In support of his contention he has relied on two letters, one is addressed to S. H. O. New Town Police Station, Karachi (Exh. 7) by deceased Sayadah Iqbal‑un‑Nissa and other is addressed by the deceased to the appellant (Exh. 43). Letter Exh. 7 is a photo copy produced by P. W. Malka Jehan, sister of the deceased but it is neither original nor does it bear the date. Had the letter been addressed to the S. H. O. New Town Police Station by the deceased, how it went to the custody of Malka Jehan and how she produced only a photo copy of it. There is no reason as to why this letter was not produced from New Town Police Station when it has been addressed to the S. H. O. The genuineness of this letter is, therefore, very much doubtful. As regards the letter Exh. 43, allegedly written by the deceased to the appellant Muhammad Afzal, it also does not bear the date. Its contents if carefully read would clearly disclose that it was written by . her much before their marriage, when their love seems to have been in full speed. To our mind this letter was never written by the deceased to the appellant after their marriage and little before the incident. What is further clear as indicated by the evidence on the record that the deceased and the appellant had already separated resulting in divorce for the second time and they were not married couple at the time of incident and were having strained relations. What we further find that the defence of the appellant to the effect that the deceased was attacked by Sarajuddin and Nooruddin butchers when he had appeared on the vardat to protect her and that he was mistakenly taken to have attacked her, has not been suggested to any of the eye‑witnesses to the incident who were present on the vardat, and whose presence has not been disputed. The defence of the appellant, therefore, appears to be clearly an afterthought and false and in view of the evidence on the record. We, therefore, find no force in any of the contentions raised on behalf of the appellant.

11. The ocular evidence on the record as disclosed above very clearly proves that the appellant was apprehended on the spot with a blood‑stained shirt on his person and a fresh injury on the little finger of his right hand, and a blood‑stained knife recovered from him. The appellant caused as many as 15 injuries to the deceased. The ocular evidence in that respect, therefore, very clearly proves that the appellant intentionally caused the murder of Sayadah Iqbal‑un‑Nissa and the ocular evidence alone is sufficient to warrant conviction against the appellant for an offence under section 302, P. P. C.

12. However, there is independent corroboration to the above mentioned ocular evidence of the eye‑witnesses to the incident. P. W. Abdul Aleem and Abdul Rashid are the mashirs of the recovery of blood‑stained knife from the appellant and that of blood‑stained shirt from his person immediately afrer the incident. The version of these two mashirs supported by that of Muhammad Mabboob Khan. S. I. and the Investigating Officer S. H. O. Muhammad Munir of Golimar Police Station has not been successfully assailed on behalf of the appellant by his learned counsel. There is no material on the record to challenge that recovery. In view of the evidence, therefore, the blood‑stained knife is proved to have been recovered from the appellant at the time of the incident and blood‑stained shirt from his person at the police station where he was taken immediately after the incident. They were prepared into sealed parcels immediately and were sent to the Chemical Analyser for examination and they are reported to have been stained with human blood. The contention raised on behalf of the appellant has been that there was delay of one week in sending the parcels to the Chemical Analyser as the parcels were received on 23‑11‑1974 by Shabbir Ahmad A. S.

1. Police and were despatched on 30‑11‑1974 to the Chemical Analyser and were lying at the Police Malkhana for the period of one week. There is nothing to suggest that during the period of this one week the sealed parcels were tampered with in any manner and in the circumstances of the present case this delay of only one week does not appear to have damaged the prosecution case. Accordingly, it is proved by sufficient and satisfactory evidence on the record that the knife stained with human blood was recovered from the appellant at the time of the commission of the offence and a blood‑stained shirt on which blood was detected immediately at the time of incident and subsequently found to be human blood as reported by the Chemical Analyser, was recovered from him at the police station where he was produced immediately after the incident.

13. The ocular evidence also receives corroboration from the fact that the appellant had a fresh injury on his finger of the right hand at the time he was apprehended on the spot and that having been referred to the Medical Officer for his medical examination ; Dr. Syed Iqbal Ahmed on 23‑11‑1974 at about 11‑30 p.m. found this injury " x I/8' having been caused by a sharp‑edged weapon and was fresh. There is no doubt that the appellant having used the knife indiscriminately by causing as many as 15 injuries to the deceased appears to have injured himself on his, right hand while handling the knife. This piece of corroborative evidence very clearly lends support to the ocular version of the eye‑witnesses to the incident who have deposed .that they saw the injury on the hand of the appellant at the time of the incident when he was apprehended.

14. The prosecution case is also supported by the motive which is clearly indicated in the evidence on the record to the effect that the appellant had strained relations with the deceased obviously on account of the fact that she obtained divorce from him through a suit in a Family Court on the ground of Khula' and after their remarriage which appears to have materialised only on account of their only child out of the wedlock, their remarriage again ended in a divorce and that they were no more husband and wife at the time of the incident, though the appellant has claimed otherwise in order to put up a defence.

15. Accordingly, we find that the prosecution has proved its case against the appellant for an offence under section 302, P. P. C. having caused an intentional murder of deceased Sayadah Iqbal‑un‑Nissa beyond reasonable doubt and that he was rightly convicted for that offence by the learned trial Court.

16. As regards the sentence the learned Additional Sessions Judge observed that the pathetic aspect of the case is that the appellant has spent his best 4 vears in tail. He further observed that it was also heart rending that his young boy who lost his mother in the unfortunate dastardly incident would also loose his father if extreme penalty of death is exacted. He further observed that although in 1969 S C M R 521 it was held that the fact that accused remained in jail for nearly six years on charge of murder can be taken into consideration in assessing punishment but he did not find authority to support the view that 4J years in custody will also produce the same result. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has referred us to the cases Abdul Hamid v. The State (P L D 1962 Quetta 111 ) and Moonda and others v. The State (P L D 1961 Lah. 333) wherein protracted trial for more than five years was considered to be mitigating circumstance for not calling for the extreme penalty of death. He has also referred us to a case Kambar ALI Shah v. The State (P L D 1959 Kar. 460) wherein delay of four years in a trial for murder was considered as a mitigating circumstance for awarding sentence.

17. We know that foul murder has been committed but we also know that a young boy born out of the wedlock who has already lost his mother is also likely to loose his father who has already undergone an agony of , protracted trial for a period by now for more than six years. We, therefore, find that in the circumstances of the present case, instead of an extreme penalty of death, lesser penalty of imprisonment for life shall meet the ends of justice.

18. The result is that with the above modification the appeal is dismissed. The reference made by the learned Additional Sessions Judge under section 376, Cr. P. C. for confirmation of the death sentence is rejected. Appeal dismissed.