P L D 1985 Karachi 229 (PLP)

(6) An incised wound x 1/5 x muscle deep on the right breast medile to injury No. 4. (7) An incised wound 1" x I/4' x cavity deep on the left breast upper part at about its middle. (8) An incised wound " x " x muscle deep at the middle of the left breast. (9) An incised wound " x " x muscle deep on the left breast below injury No. 8. (10) An incised wound 3" x I" x muscle deep on the dorsum of the right hand and at about the base in between the right thumb and index finger. (11) An incised wound l " x " x muscle deep at the middle of the dorsum of the right hand. (12) An incised wound 3" x x muscle deep at the base of the right palm. (13) An incised wound 1" x X muscle deep at the middle of the right palm. (14) An incised wound 1"x "x muscle deep on the left side of the chest at about its middle. (15) An incised wound " x " x muscle deep at the left arm at about its middle. (16) An incised wound 1" x "x muscle deep at the left arm at its middle medially. (17) An incised wound 1" x x muscle deep at the lower part of the left arm on the front. (18) An incised wound 2" x " x muscle deep on the left arm laterally at about its middle. (19) An incised wound 2" x " x muscle deep on the left forearm upper part, laterally. (20) An incised wound 1 " x "x muscle deep on the left forearm at about its middle laterally. (2I) An incised wound e " x "x muscle deep at the left forearm upper part on the front. (22) An incised wound " x " x muscle deep at the middle of the left forearm on its front. (23) An incised wound 1"x " x muscle deep on the left forearm at about its middle medially. (24) An incised wound 1" x x muscle deep on the back of the neck, left side, lower part. (25) An incised wound I" x " x muscle deep on the back of the chest, left side, at about its middle laterally. (26) An incised wound 1" x " x muscle deep on the back of the chest below injury No. 25. (27) An incised wound 1" x " x muscle deep on the left thigh at about its middle laterally. (28) An incised wound 2" x " x muscle deep on the left leg upper most part, below the left knee joint. (29) An incised wound 2 " x " x muscle deep on the right knee joint, medially on lower must part." On internal examination he found that underneath the external injury No. 2 there was cutting of the inter costal muscle and a cut in the upper lobe of the right lung through and through alongwith pleura. He also found thoracic cavity was full of blood on both sides and underneath the external injury No. 4 there was cutting of the inter costal muscle. He further found that there was cutting in the middle lobe of the right lung alongwith pleura through and through and also in the pericardium and the right ventricle of the heart. He also found underneath external injury No. 7 there was cutting of inter costal muscle and a cup in the upper lobe of the left lung alongwith pleura through and through. He opined that external Injuries Nos. 2, 4 and 7 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature. Whereas on the external examination of the dead body of Nisar he found the following external injury : "(1) An oblique incised wound 2 x x cavity deep on the left umblical region. The intestinal loops were lying out of the wound. Whereas he also found the following internal injuries on the person of deceased Nisar: "Underneath the external injury, there was cutting of the pertonium through and through. The abdomenal cavity was full of blood. There was perforation in the small intestinc through and through and there was also cutting of the mesentric blood vessels." The stomach contained about 2 ozs. of semi-digested material. He also found stomach containing about 2 ozs. of semi-digested material. He found that cause of death was due to shock and entraabdomental haemorrhage as a result of the injury to the p,:ritonium, small intestines and the mesentric blood vessels, which was the result of external injury on the abdomen.

10. It may also be pertinent to reproduce the terms of the compromise agreement dated 9-5-1977 Exh. 33, entered into between the appellant and deceased Mst. Rukhsana about five months prior to the incident, which has been proved by P. W. 10 Azizur Rchman Rehmani who is a witness to the above agreement and who was not challenged in the cross-examination as to the above factum. The terms of the above compromise are as follows: "(1) That party No. 1 is married with party No. 2 and they are husband and wife. They were married on 1-11-1974 as a result of the marriage a son namely Rashid was born whose age is about 9 months. (2) That party No. 2 is living alongwith her parents for about one year and she has also filed a suit against the husband for the dissolution of marriage. On the other side party No. 1 has also filed a suit for restitution of conjugal rights. (3) That the father of party No. 2 has died. Now the Nek Mards intervened and succeeded to compromise between the parties and the party No. 2 started to live as a wedded, wife with the party No. 1. (4) That party No. 1 to please the party No. 2 and to keep harmonious relation between the parties, eagerly increased the amount of Mehar as Rs. 5,000 (Rupees five thousand) on demand. (5) Party No. 2 for the time being will live with her mother's house and party No. 1 will also live with her and all incomes will give over to party No. 2. (6) That in case of any dispute the party No. 2 choice to live separately in the house of her mother the party No. 1 will pay Rs. 300 per month for her maintenance regularly. (7) That party No. 1 will never ask for or claim to party No. 2 for Ornament valuable cloths. (8) That both the parties will withdraw their suits which are pending in the respective Court on their own expenses."

11. The following are the pieces of evidence and the circumstances against the appellant's plea :- (i) That the medical evidence on record indicates that Nisar was not lying on the cot with Mst. Rukhsana in the underground room. Mst. Rukbsana had 29 injuries on all parts of the body, whereas Nisar had only one injury on the abdomen. The normal conduct of the appellant would have been first to attack the stranger instead of attacking his wife. Furthermore, inflicting of 29 injuries on the person of Mst. Rukhsana must have taken sometime. It is highly improbable that Nisar would have stood by and had witnessed the butchering of Mst. Rukhsana instead of either making an attempt to save her or to run away from the place of Wardat. Additionally, the seat of injury and the factum that there was only injury on the person of Nisar corroborates the testimony of P. W. 1 Mst. Rehana that Nisar was attacked when the appellant had encountered him while attempting to escape from the place of Wardat. If the appellant would have attacked Nisar while he was running away the seat of the injury would have been back side and not the front side of the body i. e. the abdomen. (ii) That if factually Mst. Rehana, P. W. 1 was guarding Nisar and Rukhsana and was facilitating them to have immoral affairs, the appellant would have attacked the above witness as well instead of pushing her aside. (iii) That the time of incident also goes against the version of the appellant, as Nisar and Rukhsana would not have chosen 5-15 p.m. which is the time for return of the male members of the family and it was possible that they would have been encountered by Rukhsana's brother or even by the appellant. (iv) That the terms of the compromise agreement Exh. 33 reproduced hereinabove indicate that they were favourable to deceased Rukbsana and unfavourable to the appellant. This fact Lnds support to P. W. Mst. Rehana's testimony that he was demanding the return of the same. (v) That it may be observed that Mst. Rehana has not stated in her examination-in-chief that the appellant had inflicted injury to Nisar inside the house, but has stated that the appellant started running outside the door and when came across Nisar he gave knife blow to him. The sketch of the place of Wardat prepared after about 2J years from the date of incident by P. W. 4 Ahmad Khan, Tapedar Hyderabad City indicate that point `A' where Mst. Rukhsana was murdered from underground room is 12 feet from the place where Nisar was attacked which is outside the house near the gate. It may be observed that 12 feet distance is from the underground. P. W. 13 Imam Bux A. S. I. P. has stated ',;pat he had received telephonic message from Aqil Yousuf that soriaeaudy had killed his wife and also gave blow to one Nisar in Amil Colony near the house of Abdul Latif Ansari. W. P. 14 S. H. O. Imdad Ali Khan has also deposed teat he had prepared the Mashirnama of place of wardat EM. 20 at the pointation of Mst. Rehana which indicates that Nisar was attacked near the gate. Eye-witnesses P. W. 2 Ramzan and P. W. 3 Chand Muhammad have also stated that Nisar was attacked near the gate but we are not considering their testimony for the reason already recorded hereinabove. The fact whether Nisar was attacked outside the gate or inside the house just near the gate will have no significance if we were to hold that factually Nisar was not lying on the cot with Mst. Rukhsana in the underground room. We are inclined to hold that deceased Nisar was not lying on the cot with deceased Mst. Rukhsana in the underground room for the aforesaid reasons. (vi) The defence had not suggested to P.W. 1 Mst. Rehana in her cross examination that she was a woman of loose character nor it was suggested that deceased Mst. Rukhsana was a woman of questionable character. The fact that the appellant entered into the aforesaid compromise Exh,. 33 about 5 months prior to the incident, *h1ch was move favourable to deceased Mst. Rukhsana as pointed out herein above in sub-para. (iv) of para. 11 negates the allegation that she was a woman of questionable character.

12. On other hand the following facts have been urged in order to canvass that there is a possibility that the appellant's plea might be true (i) That the house of deceased Nisar as per P. W. 2 Ramzan was about 100 paces away from the place of Wardat and that there were 10 or 15 houses surrounding the Wardat as per testimony of P. W. 2 Muhammad Ramzan. It has, therefore, been contended that Nisar could not have been the first person to have been attracted by the cries of P. W. 1~ Mst. Rehana. It may be observed that at the same time the learned counsel for the appellant has urged that P. W. 2 Ramzan's testimony is liable to be ignored as his name was not mentioned in the F.

1. R. In our view either his evidence is liable to be kept out of consideration for both the prosecution as well as for the defence or the same can be pressed into service for both. His testimony in fact also lends support to the prosecution case. Furthermore it is not improbable that Nisar might have been on the street at the tune of the incident as it was about 5-15 p. m.. (ii) That the statement of Mst. Rehana in her cross-examination that Nisar was attacked in the courtyard near the gate. It has been urged by the learned counsel for the appellant that this admission in fact reinforce the appllant's above plea as Nisar could not have entered into the house as per P. W. 1 Mst. Rehana they were Pardah observing women. In this regard, it may be observed that it is true that in the cross-examination Mst. Rehana had made the above statement, but her statement in the examination-in-chief and the other evidence on record referred to hereinabove in para. 11(v) indicate that factually Nisar was attacked outside the house near the gate when the appellant started running outside the door and he came across Nisar. (iii) That as per P. W. 1 Mst. Rehana a space was reserved for cooking purpose in the base of the ladder, which was provided for underground room. It has, therefore, been urged by the learned counsel for the appellant that the appellant's version that he had picked up the knife from the kitchen after seeing Mst. Rukhsana lying on the cot with Nisar gets support from the above factum of the location of the space reserved for cooking. In this regard, it may be stated' that we have seen knife in the Court, which is one edged folding knife, which is not normally used as a kitchen knife. The factum that this knife was recovered at the pointation of the appellant was not challenged in the cross-examination of P. W. 7 Ghulam Muhammad (one of the Mashirs to the recovery) or in the crossexamination of P. W. 14 Imdad Ali, S. H. O. as pointed out hereinabove in para.

7. Furthermore, Mst. Rehana had .denied specifically that the above knife was used by them for cooking. Additionally, we have held that Afst. Rukhsana was not lying with Nisar on the cot and, therefore, the question of picking knife from the place reserved for cooking did not arise. (iv) That .list. Rukhsana was an interested witness inasmuch as her suit for dissolution of marriage was pending against the appellant's elder brother, and, therefore, it was urged that her testimony cannot be relied upon. In this behalf, it may be observed that the testimony of Mst. Rehana is supported by other evidence on record, namely, the medical evidence particulary the seat of injury of deceased Nisar and the testimony of P. W. Imam Bux and P. W. 14 Imdad Ali and the Mashirnama of the place of the Wardat. Additionally the appellant has admitted the killing of both the deceased The controversy in issue is within a very narrow compass, namely, whether the prosecution's version is proved beyond reasonable doubt or whether on the basis of material on record the appellant can make out a case of reasonable possibility of his plea being true or in other words, can he manifest a reasonable doubt in favour of his plea.

13. It may be observed that the appellant as an accused is not require to prove his plea beyond reasonable doubt, but he is obliged to show from the material on record, whether brought by him or by the prosecution, that there is reasonable possibility of his plea being true or in other words there is reasonable doubt in favour of his plea. We have examined the appellant's plea and the material on record in support thereof juxtaposition with the other material on record in support of the prosecution case and we are of the view that there is no reasonable possibility of the D appellant's plea being true or in other words, there is no reasonable doubt in favour of the appellant's plea.

14. We are inclined to hold that it was a case of pre-meditated murder of Mst. Rukhsana. The appellant returned his wife i.e. deceased Mt. Rukhsana's parent's house duly armed with knife with the intention to kill her. Whereas Nisar was given fatal injury on the abdomen while the appellant started running outside the door and came across to Nisar . This is a double murder case. We see no mitigating circumstance to reduce the sentence. We are, therefore, not inclined to interfere with the judgment of the learned Sessions Judge, the appeal is therefore, dismissed. The reference is accepted and the death sentence is hereby confirmed. Appeal dismissed.