P L D 1957 (W (PLP)

BACHAL, J.

The appellant Ghulam Ahmed Khan, son of Ahmed Bakhsh has been convicted by the 2nd Additional Sessions Judge, Karachi under section 302, P. P. C. in respect of the murder of his German wife Anne Marie and sentenced to transportation for life. The question of enhancement of the sentence is also before us. The incident is alleged to have taken place on the 14th of July 1953 at about 8 p.m. in room No. 4, Shah Jehan Hotel near Express Market, Karachi where the appellant and his wife were staying before the incident. Mr. Pereira and his wife, the occupants of room No. 5, state that at about 8 p.m. when they were having their dinner in the room, they heard a knock at their door. They saw the appellant peeping through their window. Then they opened the door and saw the appellant bleeding profusely in the passage in front of the room from the injuries on his throat and he was not able to speak. Mr. Fernandez the occupant of room No. 3, states that he also saw the appellant in the above condition. Chowkidar Loung Shah and Bahadur Khan, lessee of the hotel, state that on hearing the noise in the first floor they went upstairs and .saw the appellant lying injured in the passage and his wife also lying injured and dead in the room. Loung Shah went to the police station where his information was recorded at 8-30 p.m. to the effect that two persons, husband and his German wife, were staying in room No.

4. The wife was lying motionless in the room and was probably dead and the husband was in agony and crying. The medical evidence shows that the deceased had 22 injuries caused by a knife on the neck, left lower jaw, left ear, mouth, cheek bone, right eye, forehead, left shoulder joint, left breast, left forearm, left hand, abdomen, right index finger and right arm. The following 4 injuries were each sufficient to cause death ; " (1) Incised wound 12" x 3" x 2" from the middle of the left side of the neck, across the front, on level with the 4th ring of tile wind pipe. It proceeded upwards and outwards to the right about 1" below the right ear, and then continues into a deep scratch about 2 " long behind the ear. (2) Incised wound 4" x 2" x W. It started 1 " below the left angle of the lower jaw and ended 3" below the chin. (3) Incised wound 4" x 1" x 1 " starting from 2" below the left ear to 4' below the chin. (4) Incised wound 3" x 1" x 1" from mid-line.2" below the chin outwards and upwards 'to" the middle of the right side of the lower jaw." Death was due to shock and haemorrhage resulting from the incised wounds over the throat. Blood stains were seen on the mattress and pillow. This and the position of the fatal injuries show that the deceased was attacked and died while asleep with the result that' the neighbours did not hear the cries. The articles in the room were not found scattered. When the police visited the scene a trail of blood was found from room No, 4 upto the place where the appellant was lying in the passage. All the doors and the windows and ventilators were closed and a fan was lying on the bed. Loung Shah in his cross-examination denies that he, Bahadur and Jamaluddin got the wife of the deceased killed. This fact excludes the possibility of an outsider committing the murder in the room of the appellant. A note-book which was found blood stained was secured from the room. The contents of this note-book some of which are in shorthand and Urdu, which the appellant knew, and the toped letter secured from Germany by German Embassy written by the appellant to Frau Smeichts in Germany, tally. The hard-writing expert found that the words in hand on the letter "kindly write in English " with the admitted specimen handwriting of the appellant obtained by Magistrate and the hand-writing in the diary were of the same person. These make allegations of the past immoral conduct of the wife of the appellant, her suitors, which the appellant discovered after his marriage with her in Karachi on 25th December 1952. In her letter dated 2nd July 1953 to her daughter the deceased had com plained that Smeichts was inimical to her and the appellant was trying to find out her antecedents through her. Her letters slated 21st February 1953 to German Embassy here and to her daughter and Mrs. Mueller in Germany showed that .the deceased was tired of the appellant and wanted secretly to get away from him after pension was restored to her by the government in Germany. The appellant was not prepared to leave her as he wanted her influence to make import and export business. These letters are admissible under Section 32 (1), Evidence Act for the circumstances mentioned therein have a proximate relation to the transaction of strain- A ed relations between the husband and tile wife which later resulted in the death of the latter, it being immaterial that tile statements in the letter were made before the cause of death had arisen or before the deceased had any reason to anticipate being killed. These letters were proved from tile evidence of hand-writing expert that tile signature of the deceased on the Marriage Register and. the letters were of the same person. The learned judge took into consideration the extra-judicial confession of the appellant in his slips written after the incident in the hospital and letter dated 28th July 1953 to his friend Sharif Kabir but as the appellant stated that he acted in self-defence these cannot be used as confessions but can be used only as admissions regarding his presence at the scene. Where an accused person makes a statement to another person in presence of the police the question whether that statement was made to the other person or to the police is a question of fact and not of law. In this case we are satisfied that the appellant wrote these slips and gave them to the doctor. He made no statement in the presence of tile policeman who was present at the time with the doctor. The appellant admitted having stayed with his wife in room No. 4 in Shah Jehan Hotel. His version in the Sessions Court was that on the day of the incident in the evening hours his wife was preparing meals. She went to latrine. They had no light inside and put a candle stick. He then went to latrine had found it closed. When he returned from there after sometime someone caught hold of him in the passage and a knife was thrust in his neck. There was tic light in the passage. He attempted to go to his wife but collapsed. Thereafter he found himself in tile hospital and learnt that his wife had died. In the room of the appellant an open note-book was lying on the beach and on it an open fountain pen was lying. On the open page of tile note-book the words " Anne Marie killed me and also herself " were written by the appellant. The page and the table on which the note-book was lying were blood stained. The medical evidence shows that the appellant had an incised wound across the upper part of neck about 6" long. The epilaryngeal area was completely cut above the thyroid cartilage and air was passing through the wound on breathing. The wound was deeper on the right side, where the sternomastoid muscle was also found cut. The injury appeared to be self-inflicted and could be caused by the sickle and the knife found from the room on which tile Chemical Examiner found human blood stains. According to the doctor is unlikely that a person having received the neck injury as the appellant would cause so many injuries to the deceased. It is not open to the learned Advocate for the appellant to argue oil passages from medical jurisprudence not put to doctor. There is no reasonable possibility of the theory of self -defence being true. We may say broadly what is really elementary in con nection with the cases of circumstantial evidence, that a violent presumption arises-perhaps one of the strongest pre sumptions known to the law that the wife died in the room occupied by her with her husband who admitted his presence at the time and no explanation is forthcoming as to what had happened to cause her death. Where in addition to such violent presumption, the accused is proved to have been guilty of persistent lying and is also shown to have cooked up false defence to save himself, the presumption becomes cer tainty. We see no reason to differ and in fact we agree with the conclusion of the learned Additional Sessions judge regarding the guilt of the appellant from the circumstances mentioned above proved against him. The appellant remained under trial prisoner from the 14th July 1953, till 18th February 1957. Having regard to the delay in the disposal of the case and the fact that Government have not filed any appeal we see no reason to enhance the sentence and discharge the notice for enhancement of the sentence. We accordingly dismiss the appeal and maintain the conviction and the sentence passed against the appellant. Z. A. S./A. H. Appeal dismissed.