1. MUNAWAR ALI KHAN, J.--The accused Abdul Sattar has filed this appeal from the judgment of the (II-Additional Sessions Judge, Sukkur (Mr. Ghulam Muhammad Rajput) dated 30th June, 1982, by which he has been convicted for the triple murders of his wife, Mst. Fahmida and his sisters. Mst.
2. Shahzadi and Mst. Kashmir, and for the attempt to commit murder of Mst. Mumtaz, his brother's widow. The accused has been sentenced to death and fine of Rs, 15,000 or in default R. I for two years on first count and R. I. For 10 years and a fine of Rs, 5,000 or in default R. I.' for one year on second count. The case has also been referred to his Court for confirmation of the death sentence awarded to the accused. We propose to dispose both the appeal and the reference by this common judgment.
3. The prosecution case as disclosed in the F. I. R. Is that on the day of occurrence which took place on 31st May, 1979, Mst. Mumtaz who had completed the period of `Id.Dat' following the death of her husband, Abdul Razzak, was taken by Mst. Shahzadi wife of the complainant Muhammad Tagial to her house for ceremonial visit. The accused Abdul Sattar had also brought his wifeeMst. Fahmida to meet Mst. Mumtaz. The complainant who is a peon in the Sukkur Begari Office had returned from his office at 12-00 Noon and was available.In his house. At about 12.30 p. m. He saw the accused making angry exchanges with Mst. Shahzadi who also happened to be accused's mother-in-law.
4. The accused wanted her to get him the amount of Rs, 300 from Mst. Kashmir his another sister whose husband owed the said amount to hint on account of disposal of his share of the house to him. Intervening Mst. Fahmida and Mst. Mumtaz tried to pacify the accused who thereupon lost his balance and took out a dagger from the folds of his Shalwar' and inflicted injuries tO Mst. Shahzadi.
5. As. Mst. Fahmida grappled with the accused she too was caused injuries by him with the dagger. In the course of same incident Mst. Mumtaz was also attacked by the accused and caused injuries with the dagger. Sikandar and other persons of the locality were attracted on cries raised by the complainant and Mst. Mumtaz whereupon the accused fled away. The complainant found that his wife was lying dead in the street near the house of Ghous Bux, his daughter Mst. Fahmida was lying dead in his own house and Mst. Mumtaz was lying semi-unconscious on account of the injuries she had received.
6. Meanwhile Altaf brother-in-law of the complainant arrived with the news that accused Abdul Sattar had killed even Mst. Kashmir by inflicting dagger injuries to her. He further disclosed that the accused had run away on cycle leaving behind the dagger at the door of the house. On hearing about the death of Mst. Kashmir, complainant accompanied by Altaf rushed to Sikandar's house where he found Mst. Kashmir lying dead with injuries on her chest and abdomen. Mst. Amir who was present in the house also narrated the facts to the complainant, thereafter the complainant leaving the witnesses to look after the dead bodies, made his way to the Police Station `A' Section, Sukkur and lodged F. I. R.
7. Ghulam Muhammad who was S. H.0. Incharge of the 'A' Section Police Station, Sukkur, after registering the F. I. R. (Exh. 6) at 1-30 p. m. Proceeded to the place of occurrence. He first went to the house of Ghous Bux in Aachar Street where Mst. Mumtaz was lying unconscious. He prepared memo. Of her injuries (Exh. 12), in presence of mashirs Badaruddin and Abdul Khaliq. She was referred by the S. H.0. To Civil Hospital, Sukkur, for examination and treatment. The S. H.0. Then went to the house of the complainant. He found the dead body of Mst. Shahzadi, wife of the complainant, lying in the street outside that house. He further saw that the dead body of Mst. Fahimda, accused's wife was lying in the complainant's house. He secured bloodstained earth from the aforeside places, beside loin cloth stained with blood was said to be of the accused Abdul Sattar. The blood- stained articles were sealed at the spot and mashirnama (Exh. 13) was prepared by the S. H.0. He then prepared inquest reports of the dead bodies of Mst. Fabmida (Exh. 14/1) and Mst. Shahzadi (Exh. 14/2) and despatched the dead bodies to the Civil Hospital, Sukkur, for post-mortem examination.
8. He then went to the house of Sikandar Bhutto where he found the deadbody of Mst. Kashmir lying, He secured the blood-stained earth from that place and also dagger stained with blood which was lying at a few paces from the dead body. The S. H.0. Took the dagger in his possession and prepared mashirnama in presence of mashirs Ghulam Shabir and Shafi Muhammad. The inquest report of the dead body of Mst. Kashmir was also prepared by him. From there he went to the house of accused Abdul Sattar situating two furlongs away from the house of Ghous Bux. The accused's cycle and his blood-stained clothes namely shirt and shalwar were secured by the S. H.0. From the said house. The clothes were duly sealed at the 'spot. The S. H.0. Recorded the statements of Altaf, Shall Muhammad, Mst. Amir, Ghulam Shabir, Qadir Bux, Ghous Bux, Rasool Bux and Abdul Aziz. He also recorded the statements of Shah Baig and Mst. Mumtaz. At this stage the S. H.0. Was transferred. Accordingly further investigation was made by Inspector Hafeez Baig.
9. However, the S. H. 0 had forwarded the blood-stained articles secured by him to the Chemical Examiner for his opinion. He has produced chemical report (Exh. 36). The S. H. O's efforts to arrest the accused did not bear fruit as the accused had absconded. On 9th May, 1980 the accused was produced by Constable Muhammad Ramzan before Muhammad Rafiq Shah who put him under arrest in presence of Mashirs Mushtaq and Altaf and prepared memo. Of his arrest (Exh. 24). The accused was ultimately sent-up to face his trial in the Court of law.
10. The injured Mst. Mumtaz was examined by Dr. Imdad Ali Shaikh of Sukkur Civil Hospital (P. W. 15). He found the following injuries on her person.
(1) Incised wound on right side of abdomen measuring about 3x4 deep to abdomen cavity.
11. Peretoneum was cut.
(2) An incised wound over left side of abdomen measuring about 6ffx 2- x deep to abdomen cavity. The peretoneum was also found cut and intestinal loops were cut.
12. (3)An incised wound on back of left side of chest. Pleura came out of the wound while on despirtion.
13. (4)An incised wound on the back side of the neck measuring about x 1" x (5)An incised wound on right chest measuring about 1" X 4# X 4#.
14. The injuries Nos. 1, 2 and 3 were certified by the Doctor to be grievous in nature whereas injuries Nos.
15. 4 & 5 were certified by him to be simple. According to the Doctor all the above injuries were caused by sharp-cutting weapon such as knife.
16. Dr. Imam Bux Abasi (P. W. 8) of the same Civil Hospital conducted the autopsy on the dead bodies of Mst. Shahzadi, Mst. Fahmida and Mst. Kashmir. He discovered the following injuries on the dead body of Mst. Shahzadi
(1) A stab wound on the left side of neck, size about 3" x 1" x cavity deep.
17. (2)Incised wound just below the chin size 4''x 1" structured deep.
18. (3)A stag wound on the left side of waist size about 3'x 1" by cavity deep.
19. On internal examination the following damages was found : Chest cavity opened, clotted blood present. Internal muscle above the left cervicals is cut. Left pleurae cut and full of clotted blood, upper lobe of left lung cut and damage stained with clotted peritoneum blood conjested. A stab wound on the left side of waist posterior abdominal wall cut.
20. Kidney left kichey slightly damaged, small cues present in the outer surface.
21. From the above injuries, the doctor formed an opinion that the death was due to shock and haemorrhage resulting from above injuries which were caused by sharp-cutting weapon. In his opinion the injuries Nos. And 2 were sufficient in the ordinary course of nature to cause death. On the dead body of Mst. Fahmida the doctor noticed the following injuries :
(I) Two incised wounds on the left shoulder size about 3" x 1/2" and one on anterior surface size about I i" x .
22. (2)A stab wound on the left side of abdomen size about 4i" x 1" x stractured deep.
23. (3)Two incised wounds on the upper left upper arm size about 4"X 4"x muscle deep.
24. (4)An incised wound on the back of neck size i" x I".
25. On internal examination following damages was found incised stab wound on the left side of abdomen, anterior wall cut, and internal small intestine protruding out, peritonium cut small intestine with multiple cut, large intestines cut. Rest of the organs were normal and healthy."
26. The doctor w as of the opinion that the death of Mst. Fahmida was due to shock and haemorrhage resulting from above injuries and the death was instantaneous. So far the dead body of Mst.
27. Kashmir was concerned, the doctor found the following injuries :-
(1) A stab wound on the left breast size about li" x
(2) An incised wound on the left shoulder size about 1"x it" muscle deep.
(3) A stab wound on the just below the left hypocardium loops of small intestines are out size 3/4" x 1".
(4) An incised wound on the left shoulder size about 1"X fx muscle deep.
28. On internal examination following damages was found : A stab wound just below the left hypocardium size about 3/4' x 1/4" and loops of intestines are coming out, peritonium are cut and damaged. Small intestine cut and damaged with undigested food coming out from the loops. A stab wound on the left breast size lr x r x cavity deep, cavity was full of blood, pleurae cut and conjested and stained with blood.
29. The doctor was of the opinion that the death was due to shock and haemorrhage which was the result of the aforesaid injuries caused by sharp-cutting weapon. According to him injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death.
30. It is proved from the medical evidence discussed above that Mst. Shahzadi. Mst. Fahmida and Mst.
31. Kashmir had died of the injuries found on their persons. It is further proved that Mst. Mumtaz had also sustained injuries.
32. The next point that falls for consideration is as to who was the author of the injuries found on the bodies of the above ladies. To answer this question the prosecution have produced ocular evidence regarding recovery of blood-stained dagger, evidence of absconsion of accused and finally evidence about the recovery of blood-stained clothes and cycle from house of the accused.
33. The eye-witness account is furnished by complaint Muhammad Tagial (P. W. 1) and Mst. Mumtaz (P. W. 4).. They have been corroborated by Mst. Sakina (P. W. 2), Sikandar (P. W. 6) and Altaf Hussain (P. W. 9). The complainant has stated that on 31st May, 1979, at 12.00 noon he was in his house when the accused came there. According to him Mst. Mumtaz who had completed the period of her Iddat' following the death of her husband was brought to his house by his wife and Mst. Fahmida accompanied by her husband, accused Abdul Sattar had also come to meet Mst. Mumtaz. His evidence further goes to show that he saw the accused making angry exchanges with Mst.
34. Shahzadi. The accused asked Mst. Shahzadi to get him his money from Mst. Kashmir to which Mst.
35. Shahzadi replied him that it was not the appropriate occasion to make such demand because the guests had collected. But her reply could not satisfy the accused who was so annoyed that he took out dagger from the folds of his shalwar and inflicted injuries to Mst. Shahzadi. He has further stated that as Mst. Fahmida and Mst. Mumtaz intervened in an attempt to save Mst. Shahzadi they too were caused injuries with the dagger by the accused. According to him Mst. Mumtaz ran into the house of Ghous Box and took shelter there, and the accused "ran away on the cycle. Thereafter the complainant found that his wife was lying dead in the street . In front of his house while the dead body of Mst. Fahmida was lying inside the house. He further found Mst. Mumtaz lying unconscious in the house of G hous Bux. His evidence shows that meanwhile Altaf arrived with a news that accused Abdul Sattar had murdered even Mst. Kashmir in her house and had decamped leaving behind the dagger at the vardat.
36. The complainant is fully corroborated by Mst. Mumtaz who has confirmed having gone to the complainant's house at the conclusion of her `Iddat' period. She has also confirmed that when accused came and asked his sister (Mst. Shahzadi) to get him Rs, 300 from Mst. Kashmir, she was present at the vardat beside the complainant and Mst. Fahmida. She has stated that on the exchange of hot words between accused and Mst. Shahzadi the accused took out dagger from the folds of-his shalwar and inflicted injuries to Mst. Shahzadi. She also confirms that she and Mst.
37. Fahmida grappled with the accused in order to save the life of Mst. Shahzadi, whereupon he inflicted injuries also to them. She has further stated that on her cries amongst other women of the neighbourhood, Mst. Sakina and Sikandar were attracted. Her evidence also shows that after receiving injuries she went into the house of Mst. Sakina where she fell semi-unconscious and it was on the next day that she regained her senses when she found herself in the hospital.
38. The evidence of the complainant and Mst. Mumtaz finds further support from Mst. Sakina and Sikandar. Mst, Sakina claims to be living adjoining to the complainant's house. According to her she heard cries of 'murder, murder' coming from the house of complainant at about 12.30 p. m. And as she came out of the house she found Mst. Mumtaz lying injured. She further saw that Mst. Shahzadi was lying in the lane in the injured condition. It is also in her evidence that Mst. Shahzadi told her that Abdul Sattar had caused her injuries. It is further claimed by Mst. Sakina that she saw accused Abdul Sattar running away from the vardat on the cycle. As for Mst. Fahmida who was found by her lying dead in the complainant's house, she was informed by the complainant that accused Abdul Sattar had caused her injuries.
39. The statement of. Sikandar shows that he was at the bakery which situates at 10-15 paces away from the vardat when he heard cries. On going to the vardat, he found that the accused Abdul Sattar was running away on a cycle, his stepmother Mst. Shahzadi was lying in the street and Mst.
40. Mumtaz was lying in the injured condition in the house of Ghous Bux. He also found Mst. Fehmida lying dead at the vardat. The complainant who is father of this witness also met him at vardat. He has further stated that while he was still at the vardat Altaf Hussain arrived there and broke the news of the accused Abdul Sattar having murdered Mst. Sakina in presence of Mst. Amir.
41. According to P. W. Altaf Hussain, while he was returning from his duty at about 1-00 p. m., he saw accused decamping on a cycle. When he went inside the house he found a crowd of people collected there. He learnt from Mst. Amir who was amongst the crowd that accused Abdul Sattar had inflicted fatal blows to Mst. Kashmir who was lying dead in the house. He then went to complainant's house and informed the complainant accordingly. There he saw Mst, Shahzadi and Mst. Fahmida lying dead and Mst. Mumtaz lying injured.
42. According to the prosecution case, even Mst. Amir was eye-witness to the murder of Mst. Kashmir.
43. She has however nor supported the prosecution case fully. However she has admitted her presence in the very house in which Mst. Kashmir was present in the kitchen. She has also stated that on hearing commotion as soon as she came out she was told that accused Abdul Sattar after committing the murder of Mst. Kashmir had decamped. She further admits having heard the deceased Mst. Kashmir saying that she had been caused injuries by the accused Abdul Sattar.
44. Thus although Mst. Amir does not say that she saw the accused inflicting injuries to Mst. Kashmir with her own eyes, she cannot be said to have belied the prosecution case. As stated above she heard the deceased crying that she was being injured by the accused Abdul Sattar, By proving the dying statement of Mst. Kashmir, she has lent sub-4 stantial support to the prosecution case. It is quite understandable why she has refrained from giving direct evidence against the accused.
45. Blood is thicker than water. She being a real sister of the accused has avoided implicating him directly. As has been pointed out above the deviation made by her in her evidence has least affected the prosecution case.
46. Mr. Gul Bahar Korai who has appeared as Pauper's counsel on accused's behalf has attacked the above evidence on being of interested character, as it has come from the witnesses who are closely related to the deceased ladies. His contention, therefore, was that such evidence of partisan witnesses cannot be made basis for conviction of the accused unless it is corroborated by independent evidence which must come from an unimpeachable source. It was further submitted by him that although ghastly murders have been committed in the thickly populated locality where a number of independent persons had admittedly turnedup, not a single independent witness has been produced in evidence in support of the prosecution case. According to the learned counsel the omission on the part of prosecution to produce independent evidence seriously reflects on the genuineness of their case.
47. No doubt the aforementioned witnesses apart from being interrelated, are bound with the deceased ladies by blood ties. It is admitted that deceased Mst. Shahzadi was wife and deceased Mst. Fahmida was daughter of the complainant. The injured lady, Mst. Mumtaz is widow of the complainant's brother-in-law Abdul Razzak. Similarly deceased Mst. Kashmir is sister of complainant's wife. P. W. Sikandar and P. W. Mst. Sakina are respectively son and daughter of the complainant. P. W. Altaf Hussain is maternal cousin of the complainant's wife. P. W. Mst. Amir is wife of P. W. Sikandar and hence daughter-in-law of the complainant. However the inter-relationship of the witnesses would not disqualify their evidence from being trust worthy. It is now well-settled that mere relationship of the witnesses with the victims of the crime is no reason to discard their evidence.In this connection we may refer to the case of Gulla v. The State , wherein it was observed: "We are in agreement with the High Court that mere relationship, of these witnesses with the deceased was not sufficient to exclude their evidence in the absence of other circumstances which1 could reasonably be accepted to cast doubt on their veracity."
48. In order to show that the witnesses are interested and hence their evidence is unworthy of credit, it has to be established further that they are hostile to ' The accused, in any way their evidence has been inspired by animosity with him. There is absolutely no evidence on the record to indicate that any or hostility exists between the parties. On the contrary there is abundant material available on the record that all the above witnesses have close relationship with the accused. The complainant Muhammad Tagial is admittedly his father-in-law, and hence P. W. Sikandar is his brother-in-law and Mst. Sakina is his sister-in-law. It is admitted that Mst. Mumtaz is widow of his brother Abdul Razak and Mst. Amir is his sister and Altaf Hussain is his maternal-cousin. Such close relatives cannot be expected to implicate the accused in the false case involving capital punishment unless they have very strong motive to do so. All that the accused has alleged in his statement under section 342, Cr. P. C. Is that the witnesses have turned against him at the instance of one Papoo who wanted to marry Mst. Mumtaz, his brother's widow. According to him as he had objected to the said marriage the murders which were actually committed by the said Papoo, have been attributed to him. This is patently absurd First of all the accused has unfolded this plea for the first time in his statement under section 342, Cr. P. C. When he had opportunity to cross-examine the witnesses, not a single question has been put to them in this regard. Moreover since the accused was alone in his opposition to the said marriage, Papoo should have 'grievance against him only.
49. He had no reason to kill the ladies who were supporting his marriage with Mst. Mumtaz. If at all he wanted to settle the issue by resorting to violence, he would have rather eliminated the accused so as to remove him from his way. It is equally unbelieveable that the accused would be fastened with the liability of the killings actually done by Papoo and again such charge would be levelled by the persons who are more or less from accused's own family. Accordingly we are convinced that the witnesses incriminating the accused have absolutely no motive against him and their evidence is, therefore, beyond any reproach. We can safely rely upon their testimony without any mental reservation. We feel that no corroboration is needed for their evidence. The story of accused having insisted for payment of his dues by Mst. Kashmir has gone unchallenged. The witnesses have not been cross-examined this on point, controverting the said motive. It seems to us that the accused became violent over Mst. Shahzadi's reluctance to get him his dues from Mst. Kashmir.
50. ' We need not be surprised if no witness unrelated to the deceased ladies has been examined in support of the prosecution case. This is not the first case of this kind in which such omission has been made by the prosecution. It has been observed that when any such incident occurs, the persons unconnected with the parties invariably scare away with a view to avoid being involved for the purpose of giving evidence in the case. Even though they happen to have witnessed the incident they are most unwilling to offer themselves for the evidence. Such behavior on their part is indeed not commendable. By such attitude they simple. Exhibit total lack of moral courage. As a true Muslim it should be their religious duty to come to the rescue of the victims of the crime in the hour of the need and extend all possible assistance to them that they are capable of rendering They should also participate in the efforts for tracing out the culprits and when they are apprehended and brought to book, the witnesses should not hesitate to give true evidence against them and ensure that they are awarded appropriate punishment they really deserve. But unfortunately what we see in practice is something contrary to what is expected of the witnesses.
51. We would like to reiterate s that the evidence of accused's own family members is more weighty and cannot be doubted in any manner whatsoever. In Lala v. The State, the Supreme Court .Considered sisters and brothers of the deceased as the natural witnesses. Thus the fact that no independent witness has been produced in support of the evidence of close relatives of the accused cannot be allowed to cloud the testimony of the said witnesses whose evidence, we are convinced, is free from any taint.2 The next piece of evidence used by the trial Court as corroborative of the ocular evidence is the recovery of cycle and blood-stained clothes from the house of the accused. The S. H.0. Ghulam Muhammad (P. W. 16) has made these recoveries in presence of mashir Ghulam Shabir (P. W. 10).
52. No doubt both these witnesses have proved the recovery of the said articles from the accused's house. Furthermore their evidence in this regard has not been seriously contested. Even the Chemical report (Exh. 36) discloses that at least the shalwar recovered from accused's house was stained with human blood. There is also evidence to show that Mst. Sakina and Altaf had seen the accused Abdul Sattar decamping from the vardat on a cycle. Even Shah Baig (P. W. 12) has stated on oath that accused Abdul Sattar had hired cycle from him which he did not return until he was called by the Police. The learned Additional Sessions Judge, has, therefore, relied upon this evidence as corroborating the ocular evidence. The articles mentioned above have been admittedly secured in absence of the accused. There is nothing to show that they were the property of accused or were in his exclusive possession. There is also no evidence to the effect that the cycle secured from his house is the same which the accused had used as a means for running away from the vardat. Similarly it has not been established that the clothes secured from his house in his absence were same which he was wearing at the time of incident. In our opinion the recovery of the above articles has very little evidentiary value.
53. The other evidence relied upon by the prosecution is recovery of blood-stained dagger from vardat. The recovery has been proved by the S. H.0. Ghulam Muhammad (P. W. 16) and,mashir Ghulam Shabir (P. W. 10). As stated above their evidence remains unshaken. The accused has not been able to bring out anything on record to show that their evidence as to the recovery of the dagger should not be believed. However the learned trial Court has chosen to exclude this piece of evidence from consideration. The only reason which seems to have impressed the learned Additional Sessions Judge, in this connection is that no witness has claimed to have seen the accused throwing the dagger at the vardat. It may be so, but it is not disputed that the dagger which was 'blood-stained was actually secured from the vardat. The medical evidence also shows that the injuries discovered by the doctors on the persons of the deceased ladies and injured Mst.
54. Mumtaz were stab wounds caused with sharp-cutting weapon. Mst. Mumtaz had seen the accused taking out the dagger from the folds of his shalwar inflicting injuries to the deceased ladies and Mst. Mumtaz with the same. From the above evidence we are in no doubt that the dagger secured from the vardat was same which had been used by the accused in the commission of the crime.
55. Thus the recovery of the dagger from the vardat is significant circumstance which lends strong support to the eye-witnesses.
56. We cannot persuade ourselves to endorse the reasoning adopted by the learned Additional Sessions Judge, for excluding the recovery of the blood-stained dagger from consideration.
57. The last piece of evidence which incriminates the accused is hi absconsion. It has been proved through the evidence of Muhammad Rafique Shah Additional S. H.0. (P. W. 14) that accused was arrested on 9th May, 1980. It has come on record that eversince the gruesome murders were committed, the police made frantic efforts to locate the accused but somehow he was untraceable until his arrest was effected. Thus his continued absence from his house for nearly one year is without any justification. The accused's explanation in this regard is that he was unaware if any criminal case had been registered against him and that he was at Karachi during the whole intervening period. May be he was available at Karachi but he has given no satisfactory explanation about his continued stay at Karachi. He being closest relative of the deceased ladies, was expected to be present at the time of the incident. He was however no wherein sight. He was found running away from the vardat and thereafter he was conspicuous by his absence from the vardat. It clearly shows that he disappeared immediately after the occurrence and his sudden disappearance accompanied by his long absence from the house until he was arrested in some other case which too relates to the murderous assault on Mst. Mumtaz is incon. Sistent with his innocence and proves his absconsion to avoid being hauled up.
58. In view of the above appraisal of evidence, we are inclined to hold that the prosecution have proved their case against the accused K beyond any shadow of doubt.
59. The learned counsel for the appellant has however, contended that even if the accused is held guilty, his act was sudden and unpremeditated and as such his conviction under section 302, P. P.
60. C., was not called for. In this connection he has placed reliance on several authorities.
61. The first case relied upon by the learned counsel is of Muhammad Amin v. The State wherein it was observed :- "It is on the record that there were exchange of abuses between the deceased and the appellant before the fatal injuries were caused to the deceased. There were also some grappling between the two immediately before the incident. We also find the motive to be weak one. It is also not the case of the prosecution that there was anyother enmity between the deceased and the appellant excepting the harsh words exchanged between them earlier in the day. That being so, and keeping in view the observations made in the cases Sikandar v. State PLD 1966 SC 555 and Karim Bux v.
62. State PLD 1977 Kar. 108 we feel that the ends of justice will be adequately met by awarding to the appellant lesser sentence of R. I. For life instead of sentence of death passed on him. Accordingly, while maintaining the conviction of the appellant under section 302, P. P. C. We reduce the sentente on the appellant from that of death to R. I. For life."
63. The next case on the same point is of Mahmood alias Mat/ca v. The State wherein it was held :- "With regard to the enhancement of sentence we see no reason to enhance the same. At least two circumstances have impressed us as justifying the lesser sentence. The first is that this is not a case of cold-blooded, premeditated murder, but a case of a sudden attack on the deceased on a chance meeting. The second is that the prosecution has not come out with a convincing motive for the murder, which also justifies awarding of lesser sentence as held by a Division Bench of this High Court in Abdul Ghani v. The State 1977 P Cr. L J 377. We would accordingly dismiss the Revision Application. The third case to which our reference has been invited is of Masoom Baig v.
64. Muhammad Munir and another 1971 SCM R 476 wherein it was held :- "The evidence of these witnesses as discussed above clearly shows that on seeing the accused, the deceased remonstrated as the former had gone to Anarkali despite his prohibition and that they exchanged abuses and grappled, too. It is also clear from the evidence that it was only in the course of the grappling that the accused stabbed the deceased. Apparently, the fatal blow was inflicted without premeditation in a sudden quarrel in the heat of passion. Learned counsel for the appellant submits that the accused went to Anarkali with the deliberate intention to kill the victim and that this can be inferred from the fact that he went there armed with a knife. The mere fact of carrying a knife does not imply that accused went to Anarkali with the intention to kill the accused."
65. In the fourth case on the same point reported as Shahid Hussain v. The State it was held :- The possibility, cannot be excluded that on the day and at the time of occurrence something was said or done by either party which led to a scuffle between Zahid Hussain and the complainant party which initially consisted of Muhammad Jamil and his father Muhammad Ismail. The appellant then in the heat of the moment fired a shot on Muhammad Jamil, when his brother was in a "helpless" state. Although in the circumstances of the case the appellant had neither the right of private defence nor all the conditions contained in Exception-IV to section 300, P. P. C. Are satisfied, yet the flare-up being sudden and involvement of Zahid Hussain accused, having remained shrouded in maystry, we deem it a fit case for award of lesser of the two penalties.
66. Accordingly while maintaining appellant's conviction under section 302, P. P. C. His sentence is reduced from death to imprisonment for life."3 4 5 It would appear that the aboye reported cases are clearly distill. Guishable from the instant case and, therefore, are of no assistance to the accused. First of all we are unable to see any justification for the accused in bringing the dagger with him, having concealed the same folds of his shalwar on such ceremonial occasion. It would appear that the dagger was not an ordinary pen-knife the carrying of which may not be considered of any consequence. Even if we believe that flare-up that followed the angry exchanges between accused and Mst. Shahzadi was sudden and unpremeditated, the accused was totally unjustified in attacking the deceased ladies with deadly weapon like a dagger particularly when they were unarmed. Apart from this the accused is shown to have taken the life of Mst. Kashmir his own sister living in a house situating at an appreciable distance from the house of complainant where he had killed his wife and his mother-in-law. It cannot be argued that even the murder of Mst. Kashmir was the result of the sudden and unpremeditated act of the accused. Havin finished the two ladies namely Mst. Shahzadi and Mst.
67. Fahmida at the place where he had sharp exchanges with one-of them he traversed some distance to reach the house of Mst. Kashmir where being totally unprovoked by her, attacked the said lady killing her at the spot. Thus at least his act of killing the last mentioned lady cannot, by any stretch of imgination, be designated as sudden and unpremeditated.
68. We are of the view that even the killing of first two ladies was not the result of the accused's sudden and unpremeditated act. As stated above the accused had no justification in carrying on his person such a deadly weapon like the dagger on the ceremonial occasion. Moreover mere reluctance of his sister Mst. Shahzadi to get him his dues from his another sister Mst. Kashmir was no reason for him to become so violent as to lose his balance totally and attack unarmed ladies Thus above-cited cases are not applicable in the instant case.
69. We may refer to the case of Hakoomat Khan and two others v. Crown wherein it was argued before Supreme Court that there was no previous enmity between the parties and the whole transaction which ended in the death of the deceased was sudden and unpremeditated and as such sentence of death was to be reduced to lesser sentence. It was held "Obviously we cannot lay down the proposition that if a murder is committed without premeditation and in the course of sudden fight, however cruel the killing and however and undue the advantage that the murderer takes of his position, the sentence of death should not be passed.
70. The proper course for the condemned appellant is to apply for the commutation of his sentence to the Government which has unrestricted discretion to act where this Court will not,"
71. In view of the above discussion we are convinced that the accused ha rightly been convicted under section 302, P. P. C. And sentenced to death. Accordingly by short order dated 18th April, 1983, we dismissed the appeal maintaining his conviction and confirming the death sentence awarded to him by the trial Court. By the same judgment we accepted reference for confirmation of death sentence. The above are the reasons in support of our short order referred to above. 1969 SCM R 195 1969 SCM R 821 1981 P Cr. L J 536 1981 P Cr. L J 555 1983 SCM R 201 1969 SCMR 575 6 1 2 3 4 5 6