1979 PLP 92 (PCRLJ)

G. M. SHAH, J.-The appellant Ahmed Ali (23) was tried for the murder of Mst. Zubeda (25) by the learned Ist Additional Sessions Judge, Sukkur and convicted on a charge under section 302, P. P. C. and was sentenced to death by the judgment dated 29-6-1977. The reference under section 374, Cr. P. C. for confirmation of the death sentence is also before us. This judgment will dispose of both the appeal as well as the reference.

2. The incident is alleged to have taken place on 11-12-1976 at 6 p.m. near Loco Shed Railway Colony, New Pind, Sukkur. The report (Exh. 8) was lodged by Ghulam Rasool (P. W. 1), step-father of the deceased on the same day at 6-40 p.m. (after 40 minutes), at the Police Station `B' Section Sukkur, which is at a distance of about half mile from the place of occurrence. It was recorded by A. S. I. P. Muhammad Sharif. According to the prosecution, the deceased Mst. Zubeda was the daughter of Mst. Hayat Khatoon and was step-daughter of complainant Ghulam Rasool Chang. The deceased was first married by the complainant, to the appellant, who was related to him, about three or four years before her murder. She lived with the appellant in Ruk Village for about a year. Due to certain serious differences between them, the deceased came to the house of her mother, Mst. Hayat Khatoon and lived there with her step-father, the complainant, at Sukkur. She filed a suit for dissolution of her marriage in the civil Court. The appellant was paid Rs. 3,500 as compensation and the suit was decreed in her favour. After that she was married to Nazir Ahmed and started living with him in old Sukkur.

3. On the day of occurrence (11-12-1976) the deceased and her husband had gone to the house of her parents who lived near Loco Shed Railway Colony New Pind, Sukkur. She developed some ear trouble there. At about -6 p.m. her mother Mst. Hayat Khatoon and the complainant took the deceased and started walking to the doctor's clinic. Whereas her husband P. W. Nazir Ahmad stayed at home. When they reached near the Railway Line of the Shed, they saw the appellant suddenly appearing, armed with a hatchet. He challenged the deceased saying that he will not spare her because he had not divorced her so that she should get married, with Pirzada, his enemy. He gave her hatchet blows on the head and neck and she fell down. On the cries raised by Mst. Hayat Khatoon and the complainant, P. W. Muhammad Nasir Head Constable and others reached there running and saw the appellant causing injuries to the deceased. The appellant started running with the hatchet in his hand. He was chased and was caught by the complainant, H. C. Muhammad Nasir and others. The blood-stained hatchet was snatched from his hand by H. C. Muhammad Nasir, who took him back to the vardat, where the deceased was found lying dead. Her mother Mst. Hayat Khatoon was sitting there. So many other people had also collected. Muhammad Nazir, husband of the deceased in the meantime had also arrived. The Head Constable Muhammad Nasir accompanied by Ghulam Rasool complainant took the appellant to the Police Station `B' Section, Sukkur and produced the appellant as well as his blood-stained hatchet. His clothes, Tehmad and shirt were also blood stained, which were secured and sealed in presence of the Mashirs. The report was lodged by Ghulam Rasool. The appellant was arrested.

4. After registering the case, the A. S. I. P. Muhammad Sharif accom panied the first informant Ghulam Rasool to the vardat. The dead body of the deceased was lying with hatchet injuries on her person. There was a pool of blood. A Mashirnama of the vardat was prepared. The dead body was sent to the Hospital for post-mortem examination. Statement of H. C. Muhammad Nasir was recorded. In the meantime S. H. O. Irshad Ahmad arrived and took up the investigation of the case at about 8-30 p.m. He recorded statements of Mst. Hayat Khatoon and Nazir Ahmed and returned to the police station.

5. On 13-12-1976, result of the post-mortern was received and on 23-12-1976 the sealed packets of clothes and the hatchet were sent to the Chemical Examiner, who found the articles stained with human blood. After completing the investigation, the case was submitted to the Court on 27-12-1976.

6. The fact that the deceased had died of the hatchet injuries received by her, is not disputed. The evidence of the two eye-witnesses, Ghulam Rasool and Mst. Hayat Khatoon proves it. In addition, the medical evidence also supports it. The autopsy on the deceased revealed the following external injuries :-- (1) Incised wound measuring about 3 x 2" x deep to bone on the left side of the face near the left ear. There was fracture of maxillary bone. (2) Incised wound on the left side of the face 2" away from the first injury near the nose measuring about 6" x 2 1/2" x deep to bone. In this injury the left eye was damaged. (3) Incised wound on the neck below the chin measuring about 4" x 2" into deep viscerae. In this injury oesophagus, trachea and major blood vessels and thyroid cartilage were out. (4) Incised wound over the lower lip measuring about 1" x 1/2". (5) Incised wound over right forearm measuring about 237" x 1 1/2" deep to bone. Under this injury there was fracture of radius and ulna bones. All the injuries were caused by a sharp-cutting weapon like a hatchet and were antemortem. The Medical Officer had further deposed that injury No. 3 individually and others collectively were sufficient in the ordinary course of nature to have caused the death, which was instantaneous. 6-A. The case of the appellant at the trial was of denial. About the witnesses he had stated, that they had deposed against him as they were friends and connected inter se. He further explained that complainant and P. W. Nazir, being influential with the police, had involved him in the case falsely. He further asserted that he had disputes with Ali Muhammad uncle of the complainant Ghulam Rasool. He had examined no witness in defence.

7. The direct evidence in the case is furnished by the two eye-witnesses, complainant Ghulam Rasool and his wife Mst. Hayat Khatoon, who had accompanied the deceased. Both of them have consistently maintained having seen the appellant giving blows with the sharp side of the hatchet to the deceased, who fell down and died at the spot. On their cries, P. W. Muhammad Nasir, head constable, who was going on the road in plain clothes, as he was off duty, was attracted as the complainant was chasing to catch the appellant. Head Constable Muhammad Nasir and others joined the complainant in the chase and apprehended the appellant near the scene of offence carrying a blood-stained hatchet and wearing "tehmad" and shirt, which were both stained with blood. It may be pointed out that the complain ant Ghulam Rasool is related to the appellant. He had got the appellant married to the deceased, about three/four years before the occurrence, who was his daughter. Mst. Hayat Khatoon is the real mother of the deceased. Both the eye-witnesses have also testified about the motive that the marriage between the appellant and the deceased was dissolved about two years before the murder. The appellant was paid the compensation. Thereafter the deceased was married to P. W. Nazir Ahmad. We have very carefully analysed the evidence of the two eye-witnesses coupled with the supporting evidence of Head Constable Muhammad Nasir, who had joined in the chase and caught the appellant. The deceased had developed some ear trouble. She was being taken to a doctor's clinic, by her mother Mst. Hayat Khatoon and her step-father, Ghulam Rasool had accompanied them. As such the two eye-witnesses were natural witnesses and their testimony cannot be doubted, for having seen the murder being committed. It is correct that the complainant Ghulam Rasool, when shown the hatchet in Court, did state that it was not the same, but this failure to identify the hatchet will not belie the eye-witness account deposed to by him. It is possible that being related to the appellant, he had made an obliging statement. Likewise Mst. Hayat Khatoon had stated. that "when she and her husband complainant Ghulam Rasool raised cries, on which several persons came and secured the appellant alongwith the hatchet; which was blood-stained. One of these persons claimed to be a police Jamadar, and he and her husband and others took the appellant to the police station." At the same time, she also stated that "the hatchet was lying there at the vardat", which seems to be due to a mistake in understanding the question put by the prosecutor, which was not even subsequently clarified. Having lost her real daughter, the witness could have been confused. However, the evidence of Ghulam Rasool and Head Constable Muhammad Nasir is clear on the point that the appellant was caught with blood-stained hatchet and was brought back to the vardat from where he was taken to the police station by them where the hatchet was produced. Being a Head Constable in police, it is contrary to reason that after having secured the blood-stained hatchet, a weapon of offence with which the murder was committed, P. W. Muhammad Nasir would leave the hatchet behind at the vardat and take the appellant without it to the police station. His blood-stained clothes which he was wearing, were also secured. No enmity or any hostility has been shown whereby it can be presumed that the witnesses were persuaded to falsely implicate the appellant. There is nothing alleged against H. C. Muhammad Nasir, who was going on the road and was attracted by the cries of Mst. Hayat Khatoon and complainant Ghulam Rasool. He had responded to the cries and joined the complainant in the chase of the appellant and apprehended him near the vardat.

8. Mr. Muhammad Hayat Junejo, learned counsel for the appellant has argued that P. W. Muhammad Nasir, head constable was an interested and chance witness and his statement should not be accepted as he is neighbour of the complainant and is on visiting terms with him. This can hardly be a reason for discarding the evidence of this witness. He is not related to the complainant or the deceased and apart from visiting the complainant no other interest has come out; to make him an interested witness. We find this witness truthful and reliable. His presence cannot be doubted as it is corroborated by the recovery, Mashirnamas and his name being mentioned in the F. I. R. It is also contended by the learned counsel that several persons had come and had helped in securing the appellant. Houses of Wazir Shaikh and others are situated near the place of occurrence. There are shops as well as hotels on both the sides of the road, but none of them were produced as witnesses by the police. It is not the number of witnesses which is required for accepting their version. It is the quality of the evidence which counts. The presence of the two eye witnesses Ghulam Rasool and Mst. Hayat Khatoon, as we have already discussed is natural and reliable. So is the evidence of P. W. Muhammad Nasir H. C. His presence at the place of occurrence cannot be discounted on a supposed improbability and we have, therefore, no hesitation in holding that this witness was on the road at the relevant time and had witnessed the occurrence.

9. The hatchet and the clothes secured from the appellant were sent to the Chemical Examiner who found human blood on them. The learned Counsel Mr. Muhammad Hayat Junejo has strenuously argued that from the timings shown in the F. I. R., when it was lodged and the time shown in the Mashirnamas of recovery and arrest of the appellant, when they were prepared, indicates that the entire case against the appellant was fabricated. We have considered this aspect of the case while reading the record of the case with the learned counsel. We regret, we are not in agreement with him. The learned trial Judge while dealing with this point in his judgment had observed that the A. S. I. P. Muhammad Sharif who recorded the F. I. R. as well as prepared the Mashirnama had stated that the Mashirnamas were prepared after recording of the F. I. R. which was recorded at 18-40 (6-40) p.m. Therefore the learned Judge has observed that it could be a genuine mistake that after recording the F. I. R. at 18-40, the Mashirnamas instead of showing the time 19-5, 19-10 and 19-40, show 18-5, 18-10 and 18-40. It is possible, as there could be no motive attributed to the A. S. I. P. for wilfully and malicious!y contributing to the preparation of the Mashirnama falsely. The A. S. I. P. himself admitted in his deposition that "there appears to be mistake." The finding of the learned Judge, in our opinion appears to be reasonable and we have no material on the record to decide it otherwise. It is further contended before us by Mr. Muhammad- Hayat Junejo that the F. I. R. was not recorded immediately. The circumstances show that it was recorded after completing the investigation, therefore, this reflects on the entire case. We do not find any force in this argument. As is discussed herein above that there was a possibility of a genuine mistake in noting down the time on the Mashirnamas, which could not pave the ground in succeeding to establish the fact that the F. I. R. was lodged after completing th; investigation. We find that the recovery Mashir, Muhammad Bashir in whose presence the blood-stained shirt and tehmad of the appellant were secured from his person and the blood-stained hatchet produced by P. W. Muhammad Nasir, has not supported the prosecution and was declared hostile. We do have such situations, where the recovery Mashirs give a gobye to the prosecution. In this case we have already observed that P. W. Muhammad Nasir and the complainant Ghulam Rasool had produced the appellant, with the blood-stained hatchet and wearing blood-stained clothes, before A. S. I. P. Muhammad Sharif. All these three witnesses have been subjected to lengthy cross-examination and nothing has come out to effect their credibility, nor there is any basis for any false implication of the appellant. The Police officer who has made the recovery or before whom the incriminating articles are produced, is as much a reliable prosecution witness as any one else, unless some interest or hostility is shown against him. We would therefore accept the evidence of the recovery of the hatchet and the blood stained clothes.

10. It was next argued by Mr. Muhammad Hayat Junejo that there was no motive to persuade the appellant to commit the murder. It was easy for him to have murdered the deceased at Ruk, rather than on the busy road in daylight, to create evidence against himself. Since the marriage was dissolved long time back and the appellant was adequately compensated, there was no reason for him to kill the deceased. The evidence of Nazir Ahmad, husband of the deceased was criticised on the ground that be had conveniently stayed back at home and appeared at the scene under mysterious and suspicious circumstances, later on. He could have been the invisible hand in the commission of the crime. From the lengthy cross examination, we further gather that it was also the defence contention that the brothers of the deceased were angry with her marriage with Nazir Ahmad, therefore they had murdered her. We are not convinced with this argument, as it is without any force. There is occular evidence of the eye-witnesses Ghulam Rasool, a relative of the appellant and Mst. Hayat Khatoon against the appellant. Both have fully implicated the appellant. Their version is supported by Muhammad Nasir H. C., who is an independent witness and was present on the road. He had joined the complainant in the chase to catch the appellant. There' are recoveries of blood-stained clothes from the person of the appellant, who, was armed with the blood-stained hatchet when he was caught. We have, therefore, no hesitation in reaching the irresistible conclusion that the', appellant had committed the murder of the deceased.

11. It was also faintly argued by Mr. Junejo that there is no proof of the dissolution of marriage. The deceased had married Nazir Ahmad, whom the appellant had considered his enemy, which fact is disclosed in the F. I. R. and is admitted by P. W. Mst. Hayat Khatoon. Since the deceased had come with Nazir Ahmad to the house of her parents, the appellant on seeing the deceased was provoked and under the circumstances, the murder was mitigated by the exceptions to section 300, P. P. C. We have read the statement of the appellant at the trial. To a pertinent question, that "it is alleged that you had a grudge against the deceased Mst. Zubeda, your divorced wife, as she had married P. W. Nazir Ahmad, whom you considered as your enemy. What have you to say? His answer was, "No Sir, that is all wrong".

12. In the case of Abdul Rashid (1969 S C M R 403), almost identical question was raised. Abdul Rashid had confessed to have killed his wife whom he stated to have found in actual sexual intercourse with another person. It was further mentioned by him that he had not divorced his wife but as a result of coercion, he was made to affix the thumb impression upon a paper, which was described as a Deed of Divorce. The case of Abdul Rashid, both in the committal Magistrate Court and at the trial had been that he had divorced his wife. In the face of this statement of Abdul Rashid, it was held that the deceased was no longer his wife and any misconduct on her part, could not, therefore, constitute a valid reason for stabbing her to death and as such the case of Abdul Rashid would riot be covered by Exception 1 to section 300, Penal Code. In the instant case, the deceased had obtained the decree of dissolution of her marriage with the appellant from the Court against payment of compensation to him. The question, who paid the money, is not material. The prosecution case is that the money was paid to the appellant. The deceased, therefore, was no longer, his wife and he had no reason to kill her. The plea of provocations is, accordingly not available to the appellant.

13. It was finally contended by Mr. Junejo that this was a chance encounter and the attack was not premeditated. It was a sudden provocation which may have been result of something happening between the deceased and the appellant. It was, therefore, argued that this is a case calling for a lesser sentence. We have given our serious consideration to the question and are of the view that there are no mitigating circumstances to justify the reduction in the sentence. The appellant had come armed with a deadly weapon and had caused as many as five incised wounds on the vital parts, head, neck, etc. of the deceased, which shows that there was premeditation. From the circumstances and facts discussed above, this is not a fit case frl reduction of the sentence, which we are not inclined to reduce, as it was a brutal and determined attack on the helpless unarmed deceased. We would, therefore, reject the appeal and confirm the sentence of death imposed upon the appellant. The reference is accordingly accepted. Order accordingly.