FAKHRUDDIN H. SHAIKH, J.-Appellant Talib Masih has been convicted by learned Additional Sessions Judge, Karachi by his judgment, dated 16th October, 1982 under section 302, P. P. C. And sentenced to death. The learned Judge has referred the case to this Court for confirmation of death sentence under section 374, Cr. P. C. The appellant has also filed appeal challenging his conviction and sentence. Both the appeal and the reference were heard together and are being decided by this judgment.
2. The charge against the appellant was that on 12th October, 1977 at 8-30 a. m. The appellant entered the house of Ghafoor Masih armed with a chhuri and killed Mst. Bashiran wife of Ghafoor Masih by giving her blows with chhuri. She suffered as many as 13 injuries with the chhuri as a result of which she died instantaneously. Two young children of Mst. Bashiran namely, Razzak Masih aged 7 years (at the time of the incident and Riaz Masih aged about 4i years (at the time of the incident) were present in the house. On their cries their neighbourers Hamreza Bibi and Mst. Grace came out and saw the appellant running away with blood-stained clothes. They also raised cries whereupon Mr. R. M. Jehangir Master Warrant Officer P. A. F. And Mr. Faiz Senior Technician in P. A. F. Were also attracted. They chased the appellant and caught him at a short distance away. It may be stated that this incident had taken place in P. A. F. Base No, 2 at Shahrah-e-Faisal, Karachi. The quarters where the witnesses and the husband of the deceased lived were also situated in the Base.
3. Mr. R. M. Jehangir wrote a letter to S. H. O., Mauripur Police Station describing the incident. Mr. Maqbool Hussain was S. H.O. At Mauripur Police Station on that day. He had received the letter of Mr. M. Jehangir on the basis of which he recorded a formal F. I. R. And proceeded to the P. A. F. Base No, 2 where the appellant was produced before him by Mr. R. M. Jehangir. The appellant was arrested by the H.O. In presence of mashirs Muhammad Ashraf and Jamaluddin. His blood-stained clothes were also secured. A blood-stained chhuri said to have been snatched from the appellant, was also secured by the S. H.O. In presence of the same mashirs. These blood-stained articles were sealed in separate parcels.
4. The S. H.O. Then proceeded to the Servant Quarters of the Base where the houses of the deceased and the witnesses Hamreza Bibi and Mst. Grace were situated. He saw the dead body of Mst. Bashiran lying in a pool of blood in her quarter. Inquest was held on her dead body in presence of the same mashirs. He then recorded statements of witnesses and sent the dead body to Civil Hospital, Karachi the same day for postmortem examination. Dr. Muhammad Abbas had received the dead body at 1-25 p. m. The same day and held post-mortem examination. He found as many as 13 incised wounds on various parts of her body including neck, face, shoulder, chest and costal margin. According to the Doctor death was due to shock and haemorrhage as a result of the above injuries which appeared to have been caused by sharp-edged weapon like a knife or chhuri.
5. After completing the investigation the case was sent up to the Court of law for trial. Appellant Talib Masih has, in his statement under section 342, Cr. P. C. Before the trial Court, denied having killed Mst. Bashiran by causing her stab wounds with chhuri. He denies that he was caught while running away by P. A. F. Officers. He also denies that any blood-stained chhuri or clothes were secured from him. His allegation is that Ghafoor Masih had himself killed his wife Mst. Bashiran because they had dispute with each other. In cross-examination also it was suggested to the witnesses that the appellant used to visit the house of Ghafoor Masih during some nights. Such suggestion was made to P. W. Mst. Grace but her reply was in the negative. The plea of the appellant appears to be that due to his visits to the house of Ghafoor Masih the latter suspected that there was illicit intimacy between the appellant and Mst. Bashiran and therefore, Ghafoor had himself killed his wife. The appellant, however, has not produced any witness in defence.
6. In support of the prosecution case there is ocular testimony of P. W. Razzak Masih (Exh. 8) and P.
W. Riaz Masih (Exh. 10). There is further corroborative evidence of Mst. Hamriza Bibi (Exh. 9) and Mst.
Grace (Exh. 12), who are next door neighbourers of the deceased. They had come out of their Quarters on hearing cries of the children Razzak Masih and Riaz Masih and had seen the appellant running away with bloodstained clothes. They had also raised cries. There is evidence of Mr. Faiz P.
A. F. Technician (Exh. 15) who lived in the base. He and Mr. R. M. Jehangir were also attracted by the cries and had chased the appellant and caught him. Mr. R. M. Jehangir could not be examined because after the incident he had gone out of the country and was not available for evidence.
7. So far as the factum of murder of Mst. Bashiran is concerned, there is no dispute. The dispute is only about the person who committed the murder. According to the appellant, it was Ghafoor Masih, the husband of Mst. Bashiran, who had killed her. There is the evidence of Dr. Muhammad Abbas (Exh. 17) who had held post-mortem examination on the same day and found 13 incised wounds on her body which had resulted in her instantaneous death.
8. So far as the connection of the appellant with this crime is concerned, there is direct testimony of P. Ws. Razzak Masih (Exh. 8) and Riaz Masih (Exh. 10). They were inmates of the house and as such natural witnesses. The incident had taken place at 8-30 a. m. Hence their presence cannot be doubted at the scene of offence i. e. Inside their quarter. Both of them have stated in unequivocal words that Talib Masih entered their house with chhuri and stabbed their mother with the chhuri and then ran away. So far as P. W. Razzaq Masih is concerned, he was aged 12 years at the time when he was examined by the Court on 21st January, 1982 i. e. After about 4 years and 3 months of the incident. At the time of the incident his age must be between 7 and 8 years and therefore, he must have been in a position to see, remember it and describe it in a rational manner. P. W. Riaz Masih who is brother of P. W. Razzak Masih and spn of the deceased was aged 9 years at the time when his statement was recorded by the trial Court on 27th May, 1982. This means that at the time of the incident he must be about 4i years of age. The learned trial Judge had put certain questions to this witness by way of preliminary inquiry to ascertain whether the witness was in a position to understand the questions and give rational answers. He was satisfied that the witness was intelligent enough to understand the questions and give proper answers and thereafter he recorded his statement. There is no reason to disbelieve the straightforward version about the incident given by the two boys Razzak Masih and Riaz Masih. The incident of murder must have created a serious impact upon the mind of the children, because it was most unusual and horrible thing which the children could have seen. They could not, therefore, have been expected to have forgotten such incident. The appellant was also known to them because they have said that they used to call the appellant as 'uncle Talib Masih'. A bare perusal of their evidence would show that there is a ring of truth about it. Their evidence is consistent and there is nothing in cross- examination to detract from their veracity.
9. The evidence of the above children is corroborated by the evidence of Hamrezan Bibi (Exh. 9) and Mst. Grace (Exh. 12) who were next door neighbourers of the deceased. Their presence at the vardat cannot be doubted. They had come out of their houses immediately on hearing the cries of the children and seen the appellant running away. He was holdin a chhuri in his hand and his clothes were blood-stained. The most important evidence is of Mr. Faiz (Exh. 15) who alongwith Mr. R. M, Jehangir had chased the appellant and caught him almost red-handed and snatched the chhuri from him and kept him tied at the base and produced him before the S.H.O. Later. None of these witnesses had any enmity with the appellant. Not a single question has been put in cross- examination to the two children or to the two neighbourers or to Mr. Faiz to suggest that they had any motive to implicate the appellant in a false case. The evidence of each and every witness in this case has a ring of truth about it and there is no reason whatsoever to doubt their veracity.
10. From the above evidence 1 am satisfied that the charge of murder of Mst. Bashiran has been brought home to the appellant beyond any shadow of doubt. He had killed the woman brutally and in cold-blood without any provocation. He had entered the house of the deceased armed with a chhuri which indicates that his action was premeditated. The only question that now remains to be determined is that whether he should be awarded the capital sentence or the lesser sentence of life imprisonment.
11. The motive which had prompted the appellant to commit this heinous crime is not clear from the evidence. P. W. Razzak Masih states in his examination-in-chief that before killing his mother the appellant had demanded clothes which were given to him and that thereafter the appellant accused his mother of misappropriating his money. The accusation was refuted by his mother whereupon the appellant started stabbing his mother with the chhuri. P. W. Riaz Masih, who was only 4 years old at the time of the incident, has not deposed about the motive in so many words.
He has simply stated that as soon as the appellant entered their house, he demanded his clothes from his mother, then abused her and thereafter tarted stabbing her with a chhuri. Reference may also be made in this onnection to the statement of Ghafoor Masih, the husband of the deceased, who was examined as P. W. No,
1. He states that one month before the accident the appellant had lost his money and for this he wanted to search be house of the deceased. Ghafoor Masih did not allow him to search he house. It appears that on the day of the incident he had again come the house in the absence of Ghafoor Masih suspecting that his money had been misappropriated by Ghafoor Masih or the decea4ede
12. Even if it is assumed that the money of the accused was misappropriated by the deceased or her husband, it would not be a ground for . The appellant to commit murder or to give him benefit of the lesser sentence.
13. Learned counsel for the appellant has urged that the appellant has already remained in detention for more than five years and that this should be a mitigating circumstance entitling the appellant to the lesser sentence of life imprisonment. In support of this plea reliance has been placed on a decision of Division Bench of this Court in the case of Kamber Ali Shah v. The State .
The relevant observation made by Illahi Bakhsh Khamisani, J. On the question of sentence under such circumstances runs as under :- "14. The only question which requires consideration in the present case is the question of sentence.
The offence in this case was committed on the morning of 28th January, 1947 and the appellant was challaned on 4th September, 1955. The proceedings continued to trail along till 16th February, 1959 when he was convicted. The fact that the appellant has faced a trial on a murder charge for nearly four years is a circumstance which, in our opinion, would be a mitigating circumstance for considering the question of sentence. The other important factor which appears on record is that the motive for committing the offence has not been established. We do not know the circumstances under which this murder was committed. The evidence otherwise establishes that the appellant and the deceased had lived a happy married life for a long period of about 22 years without any untoward incident having happened in their life. To expect in those circumstances suddenly on the morning of 28th January, 1947 the appellant to pick up a hatchet and brutally murder his wife remains absolutely unexplained. In the absence of motive having been established by the prosecution for the appellant having committed this offence, we consider the extreme penalty of death, in the circumstances of this case, to be in expedient. We think that the sentence of transportation for life would meet the ends of justice. We, therefore, dismiss this appeal filed by the appellant but reduce the sentence of death to that of transportation for life."
In another case of Muhammad Afzal v. The State the accused in a murder case had undergone protracted trial for a period of six years. This circumstance, inter alia, was deemed sufficient ground for reducing death sentence to that of imprisonment. In another case decided on 25th May, 1982 by a Division Bench of this Court i. e. Mooso son of Bakhar (Confirmation Case No, 30/1981 and Criminal Appeal No, 119/1981) a period of six years detention during the trial in a murder case was taken to be a mitipgating circumstance justifying lesser sentence of life imprisonment for offence under section 302, P. P. C.
14. The Supreme Court has, however, taken a different view in this behalf in the case of Kala v. The State in which it was held as under :- "On the question of delay in the disposal of the present appeal, the law is now well-settled that delay per se would not be made a ground for altering the death sentence to life imprisonment, as the doctrine of expectancy of life could not be invoked in the present state of work in our Courts of law. For all these reasons we are of the view that the trial Court was right in awarding death sentence to the appellant, and there is no justification for us to interfere with the same."
This case could not be brought to the notice of the learned Judges who had decided the cases of Muhammad Afzal and Mooso quoted above, because it was reported later in 1983. In view of the principle laid down by the Supreme Court the detention of the appellant for over five years during the trial, cannot be taken to be a mitigating circumstance. Consequently the appeal is dismissed and the death sentenceis confirmed. PLD 1959 Kar. 460 PLD 1982 Kar. 163 PLJ 1983 SC 88 1 2 3 1 2 3