P L D 1986 Karachi 121 (PLP)

The prosecution case in brief is, that deceased Atiya Bano wife of convict appellant was working as Aiya in Zia Clinic `C' area Malir Colony Karachi and used to live in. the premises of said Clinic. On the day of incident viz. 25‑8‑1977 at about 6‑30 a. m. the appellant came to the Clinic armed with unlicensed revolver and fired several times at the deceased in side her room. Nobody witnessed the. actual act of shooting, but complainant Mushtaque Ahmed and P, Ws. Dr. Khurshed Ahmed, Mst. lshrat Kazmi, Mst. Akhtar Younas Ganga and Mst. Hamida were attracted by these fire shots and screams of the deceased. They saw the appellant coming out of the room of the deceased armed with revolver. When some of them tried to stop the appellant, he threatened them with revolver and made good his escape. The above witnesses found deceased lying injured and unconscious in the room bleeding profusely. P. W. Dr. Khurshid Ahmed informed Malir Police Station on telephone, Comp lainant Mushtaque Ahmed, who was working as Chowkidar in the Clinic lodged F. I. R. at Malir Police Station at 7 a. m. on the same date which was recorded by A. S. I. P. Syed Ali Abbass. Brothers of the deceased P. Ws. Khurshed Ali and Muhammad Anwar who arrived at the spot soon after took the deceased to the hospital where she expired without regaining consciousness, The appellant surrendered at the Police Station on the same date before the Investigation Officer Mirza Muhammad Rafique at about 9. p. m. along with a plastic bag. He was arrested in presence of Mashirs Zafar Hussain and Sadique and a .32 bore revolver containing 4 empties and two live bullets vas also secured from the plastic bag produced by the appellant. On 31‑9‑1977 the judicial confession of the appellant was recorded by P. W. Syed Ali Nawaz Shah A. C. M. V, East Karachi. The appellant in his statement under section 342, Cr. P. C. before the trial Court, admits to have committed murder of his wife Mst. Atiya Bano with a revolver, which he admits to have produced before the police, when he surrendered on the same day. He however claims, that he committed the murder under sudden and grave provocation as he found his wife in compromising position with complainant Mushtaque Ahmed. It may be pointed, that deceased was taken injured to the hospital at 7.20 a. m. where she expired at 7‑25 a. m. She was first examined b Dr. Asif Ali, who issued the medical certificate as Exh.

25. Surprisingly this Dr. Asif Ali has neither been examined, nor does the record of the case disclose any reason for not examining him. This is a very serious lapse on the part of the prosecution and it shows negligence on the part of the prosecution as well as Investigating Officer. However, this lapse on the part of the prosecution has not caused any miscarriage of justice, as the cause bf death, the injuries and the weapon with which they were caused is not disputed, but is rather admitted by the appellant himself. Post‑mortem examination was conducted by Dr. Anwar Ali. The post‑mortem notes disclose following external injuries :‑ "

1. Punctured wound (gunshot wound) right parietal region x cavity deep. Surrounding skin black inverted margins wound of entrance. (2) Punctured wound (gunshot wound) left frontal region x x cavity deep everted margins. Brain material coming out, wound of exit. (3) Punctured wound (gunshot wound) x x breast deep front of chest half inch to right side, over 3rd rib, oval shaped with blacken ing of surrounding skin wound of entry (inverted margins). (4) Punctured wound (gunshot wound) x x front of chest into breast deep with tissue coming out 4' from the mid line and 5' below mid clavical/oblique directions inverted margins wound of exit. (5) Punctured wound (gunshot wound x into back of chest 3' from spine and 5" from acromian process oval in shape with inverted margins‑wound of entry. (6) Puncutured wound (gunshot wound) X left thigh mid shoft 6' about the knee joint interior surface oval to shape and muscle deep." In the opinion of Dr. Anwar Ali injuries Nos. 1 and 2 were individually sufficient to cause death and that these injuries were caused by fire‑arm fired from near distance. As already pointed there is no eye‑witness to the actual act of shooting. Amongst the witnesses who were attracted immediately on the commotion P. W. No. 4 Khurshed Ahmed and P. W. No. 6 Mat. Ishrat Kazmi have been examined. Complainant Mushtaque Ahmed died and could n‑)t be examined. Mst. Hamida has left for London, Mst. Akhtar‑visa and Ganga were given up by the A. P. P. Two material witnesses examined by the prosecution are not only independent witnesses, but they are most natural witnesses, whose presence at the relevant time and place could not be doubted. Dr. Khurshed Ahmed used to live in Clinic with his wife Dr. Rukhsana, who was R. M. O. in the Clinic. P. W. Mst. lshrat Kazmi was Nurse in the Clinic and was on the duty on that night. Both have fully supported the prosecution case. P. W. Dr. Khurshed Ahmed states that he heard 3 or 4 fire arm reports in/ continuity and when he came out, he saw the appellant running away with revolver. P. W. Msr. Ishrat Kazmi states that she heard fire reports and when she came to scene, she found the appellant armed with revolver coming out of the room of the deceased. She further states, that she tried to stop the appellant, but he threatened tier and stated that he had killed his wife due to grudge. She was persuaded by complainants Mushtaque Ahmed arid Ganga not to stop the appellant. No contradictions have been brought on the record in their statements. This occular evidence testimony is supported by the recovery of the weapon of crime viz. revolver from the possession of the appellant,

1. O, Mirza Muhammad Rafique P. W. 10, states that at about 9.5 p. m. on 25‑8‑1977 the appellant appeared at the police‑station with a plastic bag. He arrested appellant in presence of Masghirs Zafar Hussain and Sadiq and secured the revolver from the plastic hand bag produced by the appellant, From the revolver, he secured two live cartridges and four empties,. and prepared such Mashirnama. He is supported in this respect by Mashir Zafar Hussain P. W.

15. The appellant himself admits to have appeared at the police station and produced revolver containing two live cartridges and 4 empties. The Mashirnama has been produced as Exh. 6.1

1. O. sent the revolver, cartridges both live cartidges and empties to the ballistic expert. He has produced report of ballistic expert as Exh. 24,1 which shows that the 4 empties were fired from this revolver, which was of 32 bore and without any number. Mirza Muhammad Rafique further states, that the appellant did not .have any licence for the revolver and, therefore, he challaned him under section 13‑D of Arms Act. On enquiry, we were informed, that this case also been decided and the appellant has been convicted but no appeal against this order has been filed. The alleged motive of the crime appears to be estrangement between the deceased and the appellant. Admittedly the appellant was not living with the deceased. P. W..No. 2 Muhammad Anwar, who is also brother of deceased states" accused was without job before the incident. The relationship of accused with my sister' became strained due to the acts of the accused". In the cross‑examination he has stated "accused was not working and we wanted that accused should work and take Rs. 5 or so from us for his personal expenditure". The prosecution also seeks support from the judicial confession of the appellant which was recorded by Magistrate P. W. 5 Syed Ali Anwar Shah. He states that the appellant was produced before him in chamber and he took all the requisite precautions and observed legal formalities and gave due warnings to the appellant. He gave the appellant three hours for reflection whether he wanted to give confession or not, after which he recorded the confession of the appellant, which is Exh. 10‑D. The relevant part of this confession Exh. 10‑D reads as under :‑ "I have surrendered myself before the S. H. O. of P. S. Malir, I have also handed over the revolver alongwith 2 live ,cartridges and 4 used cartridges. Out of used cartridges. 1 have fired 3 cartridges on my deceased wife and one cartridge was fired in the air." The learned counsel appearing for the appellant Mr. Murtaza Hussain has argued that this confession was recorded after 6 days of the arrest o the appellant and, therefore, it should be discarded. He has relied upon 1975 P Cr. L J 440 wherein in the case of Tooh v. Stare Division Bench of this Court comprising of Agha Ali Hyder, J. and

1. Mahmood, J. (as their Lordships then were) had ruled out and of consideration confession recorded on 3rd day of the arrest of the accused, holding that the delay of 241 hours would normally be fatal to the acceptance of the judicial confession. Apart from the fact that the judicial confession has been recorded after 6 days of the arrest of the appellant, it is observed that the learned trial Judge has not even put any question to the appellant in his statement under section 342, Cr. P. C. whether he had given confession Exh 10‑D and whether it was voluntary and true. It is mandatory that a judicial confession shall be shown to the accused and the Court should question to accused in his statement under section 342, Cr. P. C. to find out if the confession, was voluntary and true. Therefore, we agree with the learned counsel for the appellant and rule out this piece of evidence out of consideration. However, the prosecution gets support from, the statement of appellant, under section 342, Cr. P. C. where he admits to have gone to Zia Clinic, at the relevant date and time and to have murdered his wife with revolver. He states, that he fired 4 times, thrice at his wife and fourth at the Chowkidar. He also admits, that h. surrendered before the S. H. O: Malir at 9 p. m. and produced revolver containing two live bullets and empties. He has produced his further written statement which is Exh.

31. The appellant claims, that he murder his wife under sudden and grave pravocation, because he saw her in compromising position with the Chowkidar Mushtaque Ahmed, The appellant has‑not produced any evidence in his defence and apart from his word alone, there is no other evidence in support of his assertion about compromising position as alleged. As a matter of fact that these is no evidence to show as to what was the immediate cause which led to the murder of the deceased. Under the circumstances we have to rely upon the circurnstanial evidence that has come on the record. The appellant states that he had gone at 6‑30 a. m. to the Clinic to meet his wife in connection with some urgent work. But he has not disclosed the nature of urgent work, which prompted him to go so early to the place of incident. He alleges, that he saw the deceased in compromising position in the bed with complainant Mushtaque Ahmed. He states to have fired only once at the complainant but he missed and complainant ran away. Accor ding to the memo of inspection Exh. a‑A, the room where murder took place is a small room of the size. 14' x 1'_',' ‑with one entrance, through which the appellant would have entered. Under the circumstances, the complainant could not have escaped unhurt, even if the first bullet had missed him. If is stated by P. W. Dr. Khurshed Ahmed, that all the 3 or 4 fire reports were in continuity approximately in half a minute. It is also admitted that the revolver contained 6 bullets. Even the first bullet was unlikely to miss the target at such a near distance, because if what the appellant states is true, the complainant would be covering body of the deceased and would be an easy target like a sitting duck. 1f the complainant was able to leave so quickly, that appellant could not fire second shot, he could not have had the time to put on his clothes. The witnesses, who came immediately on the commotion, did not find the complainant in state of nudity or semi‑nudity. The witnesses, who entered the room of the deceased immediately did not even find the deceased in objectionable condition. After the incident, at least the deceased was not in position to clothe her self‑property. Neither witnesses state, nor it is suggested to them in the cross‑examination, that when the appellant came out and found the complainant alongwith other witnesses, he showed any animosity towards the complainant or tried to shoot him. Admittedly still two live bullets were in the revolver, which were subsequently recovered by the police. The complainant was an old man of 70 years. It is very unlikely that in a place like Clinic and maternity home, he would have indulged in such illicit amorous activities at a time when every one would be awake and would be moving about. Further more, if the appellant had actually found the complainant in compromising position and had shot at him, the complainant, was an old man, would not be so calm and unruffled as to go and file F.

1. R. with the police immediately. Unlike the usual cases of murder under grave and sudden provocation, where culprits normally go and appeared either before the police or before the Nekmard' and confess their guilt, disclosing the reason of their action, the appellant in this case has come up with the theory of sudden and grave provocation after the lapse about 8 years. He admittedly surrendered before the police at 9 p. m. vie 15 hours after the alleged incident. He had enough time to deliberate and decide his course of action. It has not come on the record, that when he appeared before the police officer, he informed the police during the enquiry as to the cause of his action. F The trial Court has erroneously and wrongly allowed I. O. Mirza Muhammad Rafique and Mashie Zafar Hussain to state, that the appellant confessed to have murdered his wife. Such confession is inadmissible under section 26 of the Evidence Act, and could not be taken into consi deration. However, this should have at least prompted the defence to ' suggest to the witnesses in the cross‑examination, that the appellant had informed them, that 'he murdered his wife under sudden and grave pravocation, because he saw her in compromising position with the complainant. The appellant was produced before the Magistrate P. W. 51 Syed Anwar Ali after 6 days of arrest vie on 31‑8‑1977, when he recorded his confession. Even in this confession,,. the accused has not disclosed, that he saw his wife in compromising position. He has not put such suggestion to the witnesses when they were examined under section 164, Cr. P. C. statement on 31‑8‑1977 and he was given opportunity of cross examination. Even in the examination of witnesses during the trial, no such suggestion has been put to any of the witnesses in the cross‑examination. The appellant has come out with this theory of sudden and grave provocation, after the death of the complainant; when he was not available to deny or repell the allegation against him. Mst. Ishrat Kazmi has stated, that the deceased was on duty with her all the night and that she was not feeling well. She states, that the deceased left for her room at morning prayer time to offer her prayers and that after sometime she found the appellant dragging her to her room. Soon after she heard gun reports and saw the appellant armed with revolver come out of the room. The facts and circumstances of this case do not subscribe to or point towards any possibility of sudden and grave provocation. Mr. Murtaza Hussain has relied on the case reported in P L D 1953 F C 93 wherein their Lordships have held "in a criminal case it is the duty of the Court to review the entire evidence, that has been produced by the prosecution and the defence. If after the examination of the whole evidence, the Court is of the opinion, that there is reasonable possibility that the defence put 'forward by the accused might be true, it, is clear that such a view re‑acts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt not as a matter of grace but as of right because prosecution has not proved its 'case beyond reasonable doubt". It has been further held, "The law as formulated (in Woolmington's case) has made material differences in more than one respect. Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) a voluntary act of killing (b) intention to kill (c) absence of provocation. Even where these conditions are satisfied, the Court will not judge the case for the defence (e.g. of accident, self‑defence, provocation) and the case for the prosecution irrespectively of each other, but the whole of the evidence will be regarded, and if than there be reasonable doubt as to whether the act of killing was either unintentional or provoked, the benefit will go to the accused person. There is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of `reasonable doubt' which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged i. e. to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established." No doubt the burden of proof, that his case falls in one of the exceptions contained in section 300, P. P. C. is not as heavy upon the accused, as it is upon the prosecution to prove his guilt beyond any g reasonable doubt. The accused has only to bring such circumstances on record, which can create doubt in the mind of a prudent person that there are chances that what the accused is alleging may be true. The appellant has not only not explained as to why became to visit his wife at such an early hour, he has also not explained as to why he had come armed with a loaded unlicenced revolver. No person can move about in the city like Karachi or visit any person armed with loaded unlicenced revolver, unless he has intention either to commit some offence, or he is in danger of being attacked. There is no evidence to suggest, that the appellant apprehended such danger. The only reason able conclusion, that can be drawn is that the appellant had come armed to the room of his wife, with intention to kill her. No doubt, there is no direct evidence as to the motive of murder but proof of motive is not necessary, when the guilt is otherwise proved. The fact remains, that all was not well between the appellant and decease and they were not living ‑together. May be, that the appellant, who did not do any work, had come to take money from his wife and when she refused. he killed her or may be that , he suspected her character. It is apparent from evidence that there had been no immediate or sudden provocation by the deceased. Rather all the circumstances point to a deliberate and premeditated and could blooded murder. Mr. Murtaza Hussain has also relied upon 1985 P Cr. L J 2790 wherein, in the case of Sher Ali v. The State, Riaz Ahmed, J. (as his Lordship then was) observed "in background of social custom prevailing in our society and also moral value, notion of honour and chastity, se: ins one's wife, in an objectionable condition is regarded as provocation of gravest kind to witness degrading spectacle of a woman of one's family being subjected to illicit intercourse". We are in agreement with the view expressed by his Lordship, but in the instant case, there is neither evidence nor even a reasonabe possibility, that the appellant saw his wife in ,K objectionable condition. Reviewing all the facts and circumstances as discussed above, there is neither reasonable doubt nor there appears to be reasonable possibility that the defence put up by the appellant might be true. We have gone very minutely through the evidence on record and have given serious thought to the circumstances of the case and the plea raised by the appellant to his defence. We find absolutely no reasonable possibility that the defence put forwarded by the appellant might be true. There is no even an iota of evidence in support of the contention of the appellant, that he committed murder of his wife under sudden and grave provocation. In case Mohio Ali v. The State (1985 S C M R 2055 ) their Lord ships have held "that plea of grave and sudden provocation casts heavy onus o! proof upon the accused. Mere allegation of moral laxity without any unimpeachable evidence to substantiate same, would not constitute grave and sudden provocation. If such pleas without any evidence are accepted it would give a licence to people to kill innocent people". We have given anxious thought to the question of sentence. We have disbelieved defence plea. There is no evidence produced by prosecution to show how incident originated. There are no eye‑witnesses, who claim to have seen the actual shooting and what transpired before it. Possibility cannot be ruled out that some talk must have taken place between appellant and deceased, which might have provoked appellant to shoot, which . he did. In such circumstances, when origin of attack is unascer tainable lesser penalty is called for. In support of the above said proposi tion reliance is placed on the cases of Vali Muhammad v. Bajoo an others (1978 S C M R 257) and Muhammad Iqbal and another v. State (1984 S C M R 1184). We, therefore, maintain conviction and dismiss the appeal with modification that sentence is reduced from death to life imprisonment. Reference is rejected. H. A. K. Appeal partly accepted.