Z. A. CHANNA, J.---The appellant was tried by a learned Additional Sessions Judge, Karachi, on the charge of committing the murder of his father-in-law, Afzal Khan, with a knife and has been sentenced for the said offence to death. The appellant has come up in appeal to this Court against his conviction and sentence and we have also before us a reference from the learned Additional Sessions Judge for the confirmation of the death sentence awarded to the appellant. This judgment will dispose of both the appeal and the reference.
2. The incident which resulted in the murder of Afzal Khan occurred on 1-2-1974, at 1-45 p.m., in his quarter, in Asif Colony, at a distance of about 2 miles -from Kalakot Police Station. On that day, at 2-20 p.m., 2 persons, namely Ansar Hussain and Musharraf Hussain, brought Afzal Khan, who was alive but in an injured condition, and the appellant to Wilayatabad Police Outpost, and handed over the appellant along with.a blood-stained knife, said to have been secured at the site from the appellant, to A. S. I. Akhtar Hussain. Afzal Hussain then lodged a report With the A. S.1. Which is to the following effect :- "I, Afzal Khan son of Naimat Khan live in Quarter No. E/5/33. Asif Colony, Karachi. That the visiting of my son-in-law (Damad) Jamil Ahmad son of Baboo Khan is stopped for about three years. Today at about 13-45 hrs. Jamil came to my house and on coming he began abusing to all my family members. On preventing of mine Jamil gave blows of knife after taking out the knife from the pocket of his pant, which struck on the ribs of my right side. My family members made noise `Save !
Save'. Then Jamil told beware otherwise I will kill you to death. Hearing this noise Ansar Hussain son of Allahdin and Musharraf Hussain son of Mohammad Wasi and Shafiq Ahmed son of Ateeq Ahmed entered in my house and caught hold of Jamil. Ansar Hussain snatched knife from Jamil and have brought at the police station. My complaint on Jamil Ahmed is giving of blows of knife with the intention of killing me to death. The statement got beard being read over, admitted correct."
3. A. S. I. Akhtar Hussain sent injured Afzal Khan to Civil Hospital for treatment and recorded the statement of Ansar Hussain, Musharraf and Junaid. Thereafter he went to the place of occurrence and prepared a mashirnama. The vardat was pointed out to him by Mst. Khurshid Fatima, the daughter of Afzal Khan. It was the house of Afzal Khan. The A. S. I. Found blood stains at the vardat.
On the same day the A. S. I. Recorded the statement of Rais Ahmed. He also sent the blood-stained clothes of Afzal Khan and the knife delivered to him by the witnesses, to the Chemical Examiner to Government for examination and report. On 5-2-1.974, Afzal Khan died in the Hospital of his injuries.
The subsequent investiga--tion was conducted by S. I. Mohibullah.
4. Injured Afzal Khan was first examined and treated by Dr. Moosa Ibrahim, who however, has not been examined as he is reported to have been out of the country when the case against the appellant was being tried. However, Dr. Abdul Hadi, who had conducted the post-mortem on the deceased, has been examined. According to the latter's evidence, the follow--ing external injuries were found on the person of the deceased "(1) Incised wound ----- x 1/6--- oblique in direction in between 8th and 9th ribs, 7--- below the apex (pit) of axilla in mid axillary line.
(2) Incised wound 1--- below the injury No. 1, ----- x 1/6--- vertical in direction between 9th and 10th ribs in mid axillary line."
5. On internal examination, it was found that injury No. 1 had reached only up to the intercostal muscles. However, injury No. 2 was of very much more serious nature. According to the Medical Officer it had passed through the upper margin of the 10th rib, penetrating upwards and forwards into the lower lobe of the right lung the depth of the wound wherein was about 2---. A big mass of clotted blood was taken out from the pleural cavity on the right side. According to the Medical Officer, injury No. 2, with its internal damage, was sufficient to cause death in the ordinary course of nature.
6. The appellant has denied having caused any injuries to the deceased or a knife having been recovered from his possession. He has, however, in his statement before the Sessions Court admitted his presence at the vardat at the time of the incident, but his explanation therefore and the cause of his dispute with his wife is as follows :- "About four years back on the night of Idul Zuha I went to my house at about 10-00 p.m. I found my wife and children missing. I went to Afzal Khan at 11-00 p.m. The door was closed. I jumped through the door of latrine inside the house. I found my wife with one Rafiq with whom she had illicit connection: There was a marpet and so I went to the police station and lodged report. But police did not take any action. Thereafter my wife did not return to me. After about three years she filed a divorce-suit in the civil suit. I demanded back my two children. On the day of incident I went to the house of my father-in-law to get back my children on which there was a quarrel between me and my father-in-law, mother-in-law and wife and sons. Rafiq was also present at that time. In the quarrel Rafiq wanted to stab me but I stepped aside and the stroke fell on Afzal Khan. My wife was not residing with me for the last three years and yet she gave birth to an illegitimate child. The witnesses which the prosecution has produced were not there and they have falsely deposed against me. I am innocent."
7. In his defence, the appellant has examined two witnesses, namely, Mansoor Ali and Babu Ali. All that they have, however, stated is that the appellant's wife, Mst. Khurshid Akhtar, had eloped some years back with Rafiq.
8. We have carefully considered the evidence led in the case and are of opinion that there is overwhelming evidence to establish the guilt of the appellant. The main evidence against the appellant is of the two eye-witnesses, Ansar Hussain and Musharraf Hussain, who had produced the appellant at the police station along with a knife. Both of them are natural witnesses, being neighbours of the deceased. The house of Ansar Hussain is opposite the house of deceased while that of Musharraf Hussain is at a distance of some 20 paces from the house of the deceased. Both of them have testified that on hearing cries they rushed to the house of the deceased and found the deceased and the appellant present there, that the deceased had already received one injury in his side, that the appellant was armed with a knife and that within their sight he caused a second injury to the deceased in the region of the ribs. They have further testified that they managed to overpower the appellant and secure the knife from him, whereafter they took the appellant and the injured to the Wilayatabad Police Outpost, where the injured, who was still alive, lodged his report. P. W. Musharraf Hussain has admitted that the deceased was his friend. However, the n-ere fact that the witness was a friend and the neighbour of the deceased does not appear to us to be a circumstance which would justify the rejection of the natural and what we consider to be truthful evidence given by him. It was suggested to P. W. Ansar Hussain that Mst. Khurshid bad informed him that the appellant had killed her father. This question was apparently suggested with a view to establishing that the witness had come after incident and had not witnessed the actual stabbing. The witness, however, denied this suggestion and has unequivocally stated that an injury was given by the accused in his presence to the deceased.
9. In addition .o the above two eye-witnesses, there is the ocular testimony of Mst. Khurshid. As she was at the relevant time residing with the deceased, her presence at the scene of offence cannot be disputed, She has deposed that she was married to the appellant some 8 or 9 years previously, but since the appellant suspected her, hence he turned her out of his house and consequently she went along with her children and put up with her father, the deceased, and subsequently filed a suit against the appellant for dissolution of marriage. She has further testified that on the day of the incident, at about 1-30 or 2-00 p.m. The appellant came to the house of the deceased, armed with a knife, and started abusing the deceased, and when the latter remonstrated with" the appellant, he inflicted an injury with the knife upon the right side of the ribs of the deceased. She has also deposed that on her cries P. W. Ansar Hussain and the other witnesses turned up and they too witnessed the incident and saw the appellant inflicting a second injury on the deceased in the side. She has also supported the evidence of Ansar Hussain and Musharraf Hussain that they had apprehended the appellant and secured the blood-stained knife from his possession. No doubt, the relations between this witness and the appellant were strained not only because of the suspicion which the appellant seems to have entertained as to her fidelity but also on account of the fact that she and their children were no longer living with him and she had in fact declined to live with him and further she had filed divorce proceedings against him. But, while duly making allowance for all these circumstances, which undoubtedly indicate some hostility between them, we nevertheless do not think that she would have exonerated the real culprit whom she undoubtedly must have seen and instead falsely implicated her husband. Mr. Nasiruddin, the learned counsel for the appellant, has invited our attention to the fact that this witness has stated in the lower Court, with which statement she was confronted in the Sessions Court, that 4 or 5 injuries were caused to her father. We do not, however, consider that this incorrect statement on her part makes any material difference, as it was either due to incorrect observation on her part or she seems to have exaggerated the number of blows given. The medical evidence, on the other hand, clearly establishes that only two injuries were caused. The presence of .The witness in the house cannot be doubted, as already stated. In fact, the appellant in his statement in the Sessions Court has stated that he had gone to the house of the deceased to demand back his children.
Since the children were putting up with their mother at the house of the deceased, the inference is clear that the witness was present in the house and was residing there at the relevant time. Further, the presence of this witness at the scene of the offence is even otherwise specifically admitted by the appellant.
10. The next piece of evidence which strongly connects the appellant with the murder of Afzal Khan is the latter's dying declaration, which has already been reproduced in the earlier part of this judgment as the F. I. R. This dying declaration was made within 35 minutes of the incident. There is no evidence that prior to the making of that statement the deceased was tutored or prevailed upon by his relatives or others to falsely implicate the appellant. In fact, as will presently be shown, even Rais Ahmed, the brother-in-law of the deceased saw and met the deceased subsequently. In his dying declaration, the deceased has given substantially the same version of the incident as has been given by Mr. Khurshid Akhtar and P. Ws. Ansar Hussain and Musharraf Hussain. The learned counsel for the appellant was unable to point out to us any circumstance from which it could be inferred that either it was made on account of the promptings of any person or there was any falsehood therein on a material point.
11. Next, there is the corroborative evidence of P. Ws. Shafiq Ahmed and Rais Ahmed. The former is the neighbour of the deceased and like Ansar Hussain and Musharraf Hussain had rushed to the house of the deceased on hearing cries. He, however, went to the house of the deceased after the arrival of the other two witnesses and thus did not see the actual incident of stabbing. He has, however, deposed that he found the injured and the appellant at the house and that in his presence P. Ws. Musharraf Hussain and Ansar Hussain bad apprehended the appellant and secured a blood-stained knife from his possession, which he' was holding. The evidence of this witness, who is an independent witness and like P. Ws. Ansar Hussain and Musharraf Hussain bears no animus or hostility towards the appellant, substantially supports the ocular testimony.
12. So far as P. W. Rais Ahmed is concerned, who is the brother-in---law of the deceased, though he claims that he had gone to the house of the deceased on hearing at the mosque about the attack on the deceased and had seen the appellant in the custody of P. W. Ansar Hussain, but we find it difficult to rely upon his testimony in view of his admission in the lower Court that he had gone to the hospital on hearing of the incident. This admission of his thus belies his story of his having gone to the scene of offence shortly after the incident. We, therefore, are unable to place any reliance on his evidence.
13. In addition to the other pieces of evidence there is also the evidence of motive against the appellant. Both Mst. Khurshid Akhtar and the Dying Declaration make mention of the motive: which was that the appellant was anxious to get back his wife and children who had left him because of the strained relations between the wife and the husband on account of the latter's suspicion regarding the wife's fidelity. The appellant himself, in his statement in the Sessions Court, has admitted that he had gone to the house of his father-in-law to get back his wife and, children.
Evidence of Mst. Khurshid and the dying declaration, in our humble view, establish that when the appellant found that he was unable to get the custody of his wife and child--ren, he caused the fatal injuries to the deceased, who in the view of the appellant was presumably encouraging Mst.
Khurshid not to return to the appellant.
14. Finally, there is against the appellant the evidence of his being apprehended at the scene of offence and the weapon of offence being secured from his possession. On these points we have the evidence of P. Ws. Ansar Hussain and Musharraf Hussain who had actually apprehended the appellant and produced him along with the knife at the police station. Their evidence finds corroboration from the testimony of A: S. I. Akhtar Hussain, before whom the appellant and the knife were produced: The report of the Chemical Examiner is to the effect that the knife was stained with human blood. The learned counsel for the appellant referred us to the fact that though according to the report of the Chemical Analyser the clothes of the deceased were found to be having thereon blood of `O' group, no such grouping has been indicated in the case of the knife. The learned counsel accordingly tried to argue that the knife sent to the Chemical Examiner was not the knife with which injuries were caused on the deceased for if it had been, it also should have had blood of `O' group. We find no substance in this contention. According to the report of the Chemical Analyser, the blood group on the knife could not be determined as the quantity of blood thereon was insufficient. Since the injuries on the deceased were admittedly caused with a knife and a knife was immediately produced by the witnesses at the police station along with the appellant, there was no reason to substitute the knife. The failure to indicate the group of the Blood on the knife thus clearly was attributable to insufficiency of the quantity of blood on the knife, as stated by the Chemical Examiner in his report. The various pieces of evidence have been carefully appraised by the learned Additional Sessions Judge an4 in our opinion rightly relied upon by him.
15. The learned counsel for the appellant tried to urge that we should accept the version of the appellant that when he went to the house of the deceased to take his wife, he found the paramour, Rafiq, present there, who tried to assault him with a knife but the blow fell upon the deceased. On our pointing out to the learned counsel that there were two injuries on the deceased and the extreme improbability of Rafiq, assuming for the sake of argument that he was there and further assuming that he was armed with a knife, giving two blows by mistake to the deceased, the learned counsel was unable to explain away the presence of the two injuries, which in our opinion are clearly indicative of a deliberate attack upon the deceased. We, accord--ingly, are of opinion that the version of the appellant contains no grain of truth therein at least as to the person by whom the injuries were caused to the deceased.
16. It was next urged by the learned counsel for the appellant that even if it be held that the fatal injuries on the deceased were caused by the appellant, the offence established would not fall under section 302, P. P. C. This argu--ment was based on the assumption that Rafiq was present in the house of the deceased when the appellant went there to bring his wife and children and the contention of the learned counsel was that Rafiq's presence should be deemed to be a sufficient provocation to the appellant to reduce his crime from murder to culpable homicide under section 304, Part I. The contention of the learned counsel in short is that the murder was committed in consequence of grave and sudden provocation on seeing Rafiq in the house where his wife was then residing. There is, however, not an iota of evidence to suggest the presence of Rafiq in the house of the deceased at the relevant time. None of the witnesses have admitted his presence in the house. In fact, all of them have denied his presence, though P. W. Rais Ahmed has admitted that he knows one Rafiq who is putting up about 70 paces from his house. The mere fact that one Rafiq was a neighbour of the deceased cannot possibly lend support to the bare allegation of the appellant that his wife was carrying on illicit relations with this Rafiq.
17. It was finally submitted by the learned counsel for the appellant that on the facts and in the circumstances of the case the appellant should not have been awarded capital sentence but is entitled to the lesser sentence. It was urged by the learned counsel that the appellant had not gone to the house of the deceased to kill him but his motive in going to the house was merely to obtain the custody of his wife and children and it was only when this was refused by the deceased that the appellant seems to have lost control over himself and in the heat of the moment, without any premeditation and possibly on some provocation having been given to him by the deceased, the appellant took out a knife, which is normally carried by persons of the class to which the appellant belongs, and caused couple of injuries with the same to the deceased. We have carefully considered these contentions but find ourselves unable to agree with the same. The crime knife was of the type having a spring and had a blade of 3--. A person does not ordinarily carry such a knife if he is bent upon a peaceful purpose: The fact that the appellant had armed himself which such a deadly weapon seems to indicate that he had pre-planned an attack on the deceased if there was any opposition to his demand for the return of his wife and children. There is also no evidence whatsoever to indicate that there was any altercation between the appellant and the deceased prior to the fatal assault on the latter. All that the evidence discloses is that as soon as the appellant came to the house of the deceased he started abusing the latter and when the deceased remonstrated with him for using abusive language, be attacked the deceased. Such remonstration on the part of the father-in-law against the most improper language of a son-in- law cannot be considered to be an altercation or a circumstance which could entitle the appellant to award of a lesser penalty. The deceased was unarmed and the appellant had com--e ready armed to attack him. Possibly the appellant may have considered himself aggrieved at his wife and children, abandoning him but that did no justify an unprovoked attack on the deceased. We, accordingly, consider that there is no mitigating circumstance in the case and would therefore maintain the appellant's conviction and confirm the death sentence awarded to him. In the circumstances, the appeal is dismissed.