' AJSIAL MIAN, J.-The appellant has been convicted under section 302, P. P. C. For murdering Mst.
Rukhsana, wife of the appellant and one Nisar on 8-10-1977 at 5-15 p.m. In Amil Colony, Hyderabad, by the learned Ilnd Additional Sessions Judge, Hyderabad, by his judgment dated 7-1-1984 in Sessions Case No, 46 of 1978 and sentenced to death under section 302, P. P. C. Together with the fine of Rs, 10,000 or in default to suffer R. I. For one year more subject to the confirmation by the High Court. It has also been ordered that half of the fine, if realised, may be paid to the heirs of both the deceased in equal share. The appellant has filed the above appeal against the above judgment, whereas the learned and Additional Sessions Judge, Hyderabad has made the above reference for confirmation of the death sentence by this Court.
2. The prosecution case was that Mst. Rukhsana was married with the appellant and her elder sister P. W. 1 Mst. Rehana, complainant was married to the appellant's elder brother. Both the sisters had filed suits for dissolution of their marriages against their husbands, whereas the husbands had filed suits for restitution of conjugal rights. It is stated that at the intervention of the Nekmard the appellant and Mst. Rukhsana entered into a corapromise reflected in the agreement dated 9-5- 1977 Exh. 33 by virtue of which at the relevant time the appellant was putting up with his in-laws in House No, 27, Amil Colony, Hyderabad. It is the case of the prosecution that the appellant had been demanding return of the above document from his wife deceased Rukhsana but she had been resisting the above demand. It is also the case of the prosecution that on the above day of incident at the above time the appellant came to his in-laws' house, the door of which was closed. He scaled over the mat wall which surrounded the courtyard. It is further the case of the prosecution that the appellant attacked Mst. Rukhsana who was at the door of Tehkhana, thereupon P. W. 1 Mst.
Rehana, complainant and the elder sister of the deceased Mst. Rukhsana, tried to save her but she was pushed aside. In the meanwhile Mst. Rukhsana went down in the Tehkhana but the appellant followed her and inflicted 29 injuries. Mst. Rehana came out of the house and raised cries for the help, in response to which inter alia deceased Nisar came running but he was encountered by the appellant who was running away from the scene of offence near the gate. He gave a knife injury at the abdomen of the aforesaid Nisar with the result that he was critically injured and his intestines came out which was witnessed by P. W. 1 Mst. Rehana P. W. 2 Ramzan and P. W. 3 Chand Muhammad. He was removed to the hospital but he succumbed to the injuries at about 10 p.m. On the same night. It is also the case of the prosecution that A. S. I. (P) at the Police Station Market, Hyderabad at about 5-55 p.m. Received a telephonic message from one Aqil Yousuf that somebody had killed his wife and also gave knife blow to one Nisar near the house of Abdul Latif Ansari. The above message was entered vide entry No, 37 in the station diary Exh.
39. Upon receipt of the above message P. W. 13 Imam Bux went to the place of Wardat and recorded the statement of P. W. 1 Mst. Rehana on a plain paper Exh. 11 and after reading over the same obtained her right thumb-impression thereon. In the meantime P. W. 14 S. H.
0. Imdad Ali Khan also reached at the place of Wardat before whom P. W. 13 Imam Bux produced Mst. Rehana. After that P. W. Imam Bux returned to the police station and P. W. Imdad Ali Khan sent the above statement through Head Constable Abdullah which was incorporated in 154, Cr. P. C.
Book by Imam Bux, which is the F. I. R. Exh.
40. P. W. Imdad Ali Khan at the pointation of P. W. Mst. Rehana in presence of Mashirs Ishaq and P.
W. Ramzan prepared the Mashirnama of the place of Wardat Exh.
20. He also prepared the inquest report of the dead body of Mst. Rukhsana Exh. 42 in the presence of the same Mashirs. He sent the dead body of Mst. Rukhsana to L. M. C. H. For post-mortem through Head Constable Abdullah. He also examined P. Ws. Mst. Rehana, Ishaque, Ramzan Aqil Yousif, Abdul Shakoor and Farooq. Upon receipt of a message that injured Nisar had expired in the L. M. C. H. He went to the hospital and prepared the inquest report of the dead body of Nisar Exh. 43 in presence of Mashirs Abdul Shakoor and P. W. 6 Ameen Farooq.
' It is also the case of the prosecution that on 9-10-1977 at 11 a.m. One Kaloo and Dilawar produced the appellant before the S. H.
0. P. W. 14 Imdad Ali Khan, who arrested him and recovered blood-stained clothes under Mashirnama of arrest Exh. 32 in presence of Mashir Kaloo son of Chuttan Shaikh Qureshi and P. W.
Azizur Rehman Rehmani son of Dr. Muhammad Rehman. It is also the case of the prosecution that the appellant on 11-10-1977 at 5 p. m. Led the S. H.
0. And Mashirs P. W. Ghulam Muhammad and one Muhammad Ibrahim to Daulatabad and produced a blood-stained knife from inside the drain which was near the Jama Mosque under Exh.
24. On 24-10-1977 P. W. Imdad Ali Khan got the statements of P. Ws. Ramzan, Chand Muhammad, Azizur Rehman and Aqil Yousif recorded under section 164, Cr. P. C. And on 25-10-1977 of P. Ws.
Muhammad Ibrahim and Ghulam Muhammad. He also sent the incriminating knife, blood-stained clothes, blood-stained earth and Chappal of the accut:d to the Chemical Analyser for report which was received as Exh.
44. Finally he submitted challan on 24-10-1977 in the Court of Vth Extra Joint Civil Judge and F. C. M., Hyderabad.
3. The prosecution in support of the case examined P. W. 1 Mst. Rehana the complainant and an eye-witness of the murder of Mst. Rukhsana and of Nisar, P. W. 2 Ramzan and P. W. 3 Chand Muhammad, the two eye-witnesses of the murder of deceased Nisar, P. W. 4 Ahmad Khan the Tapedar concerned, who prepared the sketch of Wardat Exh. 17, P. W. 5 Muhammad Ramzan one of the Mash irs to the above Mashirnama of Wardat Exh. 20, P. W. 6 Amin Farooq, one of the Mashirs to the dead body of deceased Nisar Exh.
22. P. W. 7 Ghulam Muhammad one of the Mashirs to the Mashirnama of recovery of blood-stained knife Exh. 24, P. W. 9 Habibur Rehman a process-server of the Police Station Market, Hyderabad to prove that Aqil Yousif, who had conveyed the message of the murder to P. W. 13 Imam Bux could not be served with the process as he had left Pakistan and had gone abroad (the above process- server was examined second time in order to prove that Mashir Sher Bahadur had left for Punjab without leaving any address with his ex-employer in Hyderabad), P. W. 10 Azizur Rehman one of the Mashirs to the Mashirnama of arrest Exh. 32 and also one of the witnesses to' the aforesaid compromise agreement between the appellant and deceased Rukhsana (Exh. 33), P.W. 11 Yaseen one of the Mashirs to the dead body of Mst. Rukhsana Exh. 35, P. W. 12 Dr. Muhammad Siddiq Mughal, Medical Officer L. M. C. H., who carried out the post-mortem on the dead bodies of Mst.
Rukhsana and Nisar and prepared the post-mortem reports Exh. 37 and Exb. 38, /' respectively, P. W.
13 A. S. I. P. Imam Bux, who recorded the aforesaid telephonic message and the statement of P. W.
Rehana on the plain paper, which was incorporated in the form of F. I. R. In 154, Cr. P. C. Register and P. W. 14 Imdad Ali Khan the S. H.
0., who carried out the investigations and submitted the challan. The prosecution also relied upon the above documents.
4. The appellant in his 342, Cr. P. C. Statement admitted the factum of having committed the murders of Mst. Rukhsana and Nisar but stated it was because he was gravely provoked as he found deceased Nisar lying on the cost alongwith his wife and kissing and hugging. It may be pertinent to reproduce his statement herein below as it will be pertinent for the purpose of determining the point in issue, which reads as follows :- "On the day of incident, I had gone to attend my job and returned to my house and when I went inside my house I found Mst. Rehana standing at the door of underground room when I entered the room I found deceased Nisar lying on the cot along with my wife and kissing and hugging her I was gravely provoked. I picked up the kitchen knife which was lying in the adjacent space which was used by us as a kitchen. On account of sudden and grave provocation I inflicted knife injuries to my wife. In the meanwhile Nisar took to his heals, I persuaded and gave him knife injury as a result of which, he fell down just outside the house adjacent to door. There was nobody else present or witnessed the incident. I wanted to go to police station but due to fear of the brother of the deceased Nisar who is not only an influential person but I apprehended danger to my life at his hands."
' The appellant has not examined any witness in defence.
5. In support of the appeal Mr. Muhammad Hayat Junejo, learned counsel for the appellant has urged as follows :
(i) That since the names of P. W. 2 Raman and P. W. 3 Chand Muhammad were not mentioned in the F. I. R. Their testimony cannot be relied upon.
(ii) That the recovery of the alleged blood-stained knife is liable to be ignored as there could not have been any blood stains after 2 days as the knife was allegedly recovered from a flowing mala.
(iii) That the defence plea is supported by some material on record and,, therefore, it creates a reasonable doubt in favour of the appellant warranting conversion of the conviction from section 302, P. P. C. Into 304, P. P. C. As the case is covered by exception I to section 300, P. P. C.
' On the other hand Mr. Mustafa learned counsel for the State has contended that the prosecution case stands proved and the defence plea is belied by the medical evidence and the other circumstances of the case,
6. Adverting to the above first contention of Mr. Junejo, it may be observed that P. W. 2 Ramzan and P. W. 3 Chand Muhammad have deposed that they were coming out of the mosque after offering the prayers when they were attracted to the cries of complainant Mst. Rehana coming from her house, Nisar was ahead of them, they saw the appellant was coming out from the house of the complainant, gave one knife blow on the abdomen of Nisar who had by then reached the door with the result that the intestines of Nisar was oozing out and he fell down on the ground after covering a distance of 2-3 paces. They have also deposed that the appellant ran away alongwith knife. They took the injured Nisar to L. M. C. H. But they learnt that he died at about 10 p.m. Both the above witnesses are residents of the locality. Ramzan in his cross-examination has stated that deceased Nisar was his neighbour and caste-fellow. He has also stated that deceased Mst. Rukhsana was not his caste-fellow. He has further stated that he was not present at the place of Wardat when the police arrived. It may be pertinent to mention that P. W. 5 whose name was Muhammad Ramzan and who is one of the Mashirs to the place of Wardat is a different person from this witness. The defence has not brought out anything from P., W. 3 Chand Muhammad in his cross-examination to indicate that he was in any way connected with the two deceased. He has stated that he and P. W.
2 Ramzan were called by the police at the police station and they were taken to the police station by Younus brother of deceased Nisar. Both the above witnesses denied the suggestion that they have not witnessed the incident. Their testimony seems to be natural, however it was contended by Mr. Hayat Junejo that the same is liable to be ignored as their names did not appear in the F. I. R.
Nor they were disclosed to P. W. 13 Imam Bux A. S. I. P. Or to P. W. 14 S. H.
0. Imdad Ali Khan. Reliance has been placed by him on the following cases :
(i) Khalil v. The State PLD 1956 (W. P.) Lah. 840, in which learned Judges of a Division Bench of the erstwhile High Court of West Pakistan at Lahore though were inclined to consider the testimony of P.
W. 7 one Karamdad as truthful but in view of the fact that his name did not find place in the first information report, thought that the safer course would be to keep his statement out of consideration.
(ii) Nisar Hussain v. The State PLD 1964 (P. W.) Pesh.
59. In the above case a Division Bench of the erstwhile High Court of West Pakistan sitting at Peshawar while relying upon the above Lahore case, discarded the testimony of a witness whose presence was not mentioned in the F. I. R. As the learned Judges considered the same to be consistent with. The safe administration of justice.
(iii) Mazhar Ali and others v. The State PLD 1964 (W. P.) Lah. 32, in which the erstwhile High Court of West Pakistan sitting at Lahore kept out of consideration, the testimony of two witnesses, who were domestic servants in the bungalow in which abduction of one Munira Sultana deceased had taken place as their names were not mentioned in the F. I. R. Though they were natural witnesses. It was observed that the omission of their names in the F. I. R. And the mentioning of the same in the supplementary statements create a suspicion that their names were mentioned as an afterthought.
(iv) Mamoon and another v. The State PLD 1962 (W. P.) Kar. 800, in which a Division Bench of the erstwhile High Court of West Pakistan sitting at Karachi kept out of consideration the testimony of two witnesses Mst. Sajan and one Sawan as their names were not mentioned in the F. I. R.
From the above-cited cases, it is evident that as a rule of prudent, the Courts keep out of consideration the testimony of the witnesses, whose names do not figure in the F. I. R. But it is not a rule of law. The Court in a fit case may consider the testimony of such a witness if the same is corroborated with other reliable evidence on record. However, we will examine the present case keeping out of consideration the testimony of the above two witnesses.
7. Reverting to the question of recovery of the blood-stained knife, it may be observed that since in the present case the appellant has admitted the factum of murdering the two deceased, the factum whether the knife was blood-stained or not is of no consequence as the recovery of the blood- B stained knife is generally used as a piece of corroborative evidence to re-enforce the other evidence on record, particularly of interested witnesses, whose testimony require corroboration with the object to prove the factum of killing. In the present case from the cross- examination of P. W. 7 Ghulam Muhammad, one of the Mashirs to the Mashirnama of recovery Exh.
24 and of P. W. 14 S. H.
0. Imdad Ali Khan, it is evident that no question was suggested by the defence that the knife in the Court was not the same which was used by the appellant. The cross-examination was directed to bring about the fact that the recovery was made from a nala ne the mosque where water was flowing in order to canvass that there could not have been any blood stains on the knife. Mr. Muhammad IIayat Junejo has referred to an unreported judgment dated 8-3-197o of the Supreme Court in Criminal Appeal No, K-5 of 1976. (Nazo alias Ali Nawaz v. The State), in which the Honourable Supreme Court while dealing with the question of recovery of the alleged bloodstained hatchet from three feet deep water of the minor pointed out that none of the witnesses of the seizure even the Investigating Officer had stated that the hatchet was blood-stained but in the Mashirnama of recovery it was mentioned that "hatchet besmeared with mud". It was further observed by the Supreme Court that there was no evidence that the blood-stained hatchet was recovered at the instance of the appellant. It was further observed that it was highly improbable that in spite of the fact that the hatchet had remained in water for several days, it would still contain sufficient blood on it to enable the Serologist to find the origin of blood, which aspect was found material by the Supreme Court and was not considered by the trial Court and the High Court. In the present case also neither the Mashir nor the S.H.O. P.W. Imdad Ali Khan has stated that the knife was blood-stained nor this fact has been mentioned under Mashirnama Exh.
34. However, the Chemical Analyser found human blood stains on the above knife as per his report Exh. 44 and, therefore, the above Supreme Court judgment may be pressed into service, but we may observe that the question, whether the blood-stained knife or on an object thrown in a drain would retain traces of blood, would depend on the facts namely, after how many days from the date of throwing the same was recovered, what was the depth of C the drain and what was the quantity of water and what was the speed of flow of water etc. If the recovery is made immediately within a few hours or in a day or two from a drain not having rapid flow of water and having not much depth, there might be still traces of blood.
8. As regards the last submission of Mr. Junejo, it may be observed that he has invited our attention to the statement of P. W. 1 3/st, Rehana made in the cross-examination that Nisar received injuries in the courtyard just near the door and that after sustaining injuries he rushed outside. He further invited our attention to the statement of P. W. 14 Imdad Ali in his cross-examination that Mst.
Rehana had stated in her statement that Nisar son of Amir their neighbour came for help and the moment he entered the house he was given dagger blow in his stomach by appellant Chando with the result Nisar put his hand over the wound and went outside. It has been vehemently urged by Mr. Junejo that the factum that Nisar was given injury by the appellant inside the house of the deceased lends support to the defence plea, as suggested to the prosecution witnesses and narrated by the appellant in his 342, Cr. P. C. Statement reproduced hereinabove in para.
4. In furtherance of the above submission, he has also urged that there is a difference between burden of proof on the prosecution and on an accused person, namely, the prosecution is obliged to prove the case beyond reasonable doubt, whereas the defence is required only to create a reasonable doubt in favour of the truthfulness of his plea. He has referred to the following cases.
(i) Safdar All v. The Crown (1), in which the learned Chief Justice of the Federal Court while agreeing with the leading judgment of Cornelius, J. (as he then was), observed as follows : "I am of the opinion that the decision in the case of Woolmington v. The Director of Public Prosecutions (L R 1935 A C 462) is in no way inconsistent with the provisions of section 105 of the Evidence Act. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt.
' In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. The principles laid down in Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act."
' Whereas Shahabuddin, J. Made the following weighty observations on section 105 of the Evidence Act : "Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof
(1) PLD 1953 F SC 93 is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading."
' It may also be advantageous to reproduce relevant observation of Cornelius, J. On the point : "I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of 'reasonable doubt' which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i,e, to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond `reasonable doubt'. If then an accuse the person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such intention may, of course, be established by proof or circumstances surrounding an evidence act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility of the defence plea being tilt', in order to provide the preponderance of probability necessary for a 'prudent man' to act on the footing that the accused s act was performed with the sole intention of killing, or of causing a necessarily fatal injury."
' In the above Supreme Court case the appellant had taken the plea that he had inflicted four injuries on the deceased in defence as he was attacked by the deceased and received one injury.
The Supreme Court after appraisal of the evidence on record found that there was sufficient material on record to create reasonable doubt in favour of the appellant. The appeal was allowed against the judgment of the Lahore High Court.
(ii) Sultan Muhammad v. The Crawn (1). In the above case the question before the honourable Supreme Court in an appeal filed against the judgment of the High Court confirming the death sentence of the appellant, was whether the appellant had fired deliberately resulting the death of the deceased or was it an accidental fire as pleaded by the appellant, the Supreme Court observed that it is an axiomatic that in estimating the weight to be attached to specific conduct in given circumstances which favours the presumption of innocence must be considered with the same care as other explanations having the effect of implicating the accused in a crime. It was also observed that for the, purpose of determining the question, whether it was accidental or intentional fire, all the facts aid circumstances adduced for the prosecution and the like facts and circumstances adduced for the defence should be placed side by side and after full consideration of their effect upon each other, if there still remains a
(1) D 1954 FC 29 reasonable doubt whether, even if the accused's special pleading be not accepted, the act of killing might be unintentional, the benefit of such reasonable doubt must go to the accused. In the above case the appeal of the appellant was allowed.
' In terms of the above judgments of the Supreme Court, it may be appropriate to examine the prosecution evidence and version in juxtaposition to the appellant's plea reproduced in para. 4 hereinabove. In this regard, it may be pertinent to refer to the ocular testimony of P. W. 1 Mst.
Rehana. She has deposed that appellant was the husband of his sister deceased Rukhsana, whereas she was married to the brother of the appellant in 1974. She has further deposed that they used to reside in House No, 27, Amil Colony, Hyderabad alongwith her mother Mst. Sakina, her deceased sister Rukhsana, her sister Farzana and brother Noor Muhammad. She has further deposed that on the day of incident she was alone with her deceased sister Rukhsana as her sister Farzana was not present and her mother had gone to the doctor. She has further stated that her sister Rukhsana was washing her hands when in the meanwhile they were attracted to the knocking of the door. She has further stated that it appeared to them that somebody was breaking open the door. Her sister Rukhsana enquired as to who was knocking the door, whereupon appellant jum ,ed over the mat wall and entered into the house. She has also deposed that immediately the appellant who was having a vegetable knife in his hand pushed her at one side and followed her sister Rukhsana, who had then gone underneath the room. She has further deposed that she saw the appellant started giving knife blows to her sister Rukhsana on her heart, chest, hand and feet. Thereupon, she raised cries which attracted about 15-20 persons from neighbour including one Nisar who was ahead. She has also stated that the appellant started running outside the door and when he came across to said Nisar the accused also gave knife blow to Nisar on his abdomen with the result the intestines of Nisar came out of his belly and he fell down on the ground. She has also deposed that the appellant used to maltreat his sister, whereas his brother used to maltreat her and, therefore, both had asked them for divorce for which suits were filed by their father against them. She has further degpsed that during the pendency of the said suits the appellant and his sister entered into a compromise with the result the suit between them was disposed of and according to the said compromise the appellant agreed to maintain her sister Rukhsana and to live with them as `Ghar Damad'. She has further deposed that the appellant again started maltreating her sister and that he used to ask her to return the compromise deed else she would be murdered but her sister refused to give the same. In her cross-examination, she has stated that she had not stated before the police that at the time of the incident her sister was cleaning her hands. She has further stated that they used to sleep in the underground 'room in the winter and in the courtyard in summer and that generally there used to be four cots in the underground room of their house. She has also stated that after the door there was a courtyard and then there was a ladder leading towards the underground room. She has further stated that at the base of the ladder they had reserved a space which was used as kitchen.
She has also stated that Nisar received injury in the courtyard just near the door and that after sustaining injuries Nisar rushed outside. She has denied the suggestion that Nisar was on visiting terms with them as they observed Parda. She was further denied that on the day of incident Nisar was lying on the cot with her sister deceased Rukhsana and they kissing and caressing and they were surprised by the accused. She has also denied that she was guarding them in the courtyard.
She has further denied that the knife available in the Court used to be used by them for cutting vegetables in their kitchen and that the appellant bad picked up the knife from the kitchen. She has also denied that the appellant had seen her sister and Nisar in objectionable condition.
9. It is a common ground that the murder of Mst. Rukhsana had taken place in the underground room, but the point in issue is, whether murders had taken place in the manner described by P. W. 1 Mst. Rehana or in the manner stated by the appellant. In this regard, it may be partinent to refer to the testimony of P. W. 12 Dr. Muhammad Siddiq, who on external examination found the following 29 injuries on the person of deceased Rukhsana :
(1) An oblique incised wound 2" x 1/5' ot muscle deep on the right side of the neck lower part.
(2) An oblique incised wound 12" x 1/4" x cavity deep on the front of the chest, right side about 2' below the middle of the right clavical.
(3) An incised wound li" x 1/4" x bone deep on the right of the chest at about its middle about 2" below the upper part of the sternum.
(4) An incised wound 3/4" x 1/4" x cavity deep on the right breast mitially.
(5) An incised wound 1" x 1/5" muscle deep on the right breast lateral to the injury No, 4.
(6) An incised wound i" x 1/5" x muscle deep on the right breast medile to injury No, 4.
(7) An incised wound 1"x 1/4' x cavity deep on the left breast upper part at about its middle.
(8) An incised wound A" x r x muscle deep at the middle of the left breast.
(9) An incised wound r x f" x muscle deep on the left breast below injury No, 8.
(10) An incised wound 3" x r x muscle deep on the dorsum of the right hand and at about the base in between the right thumb and index finger.
(11) An incised wound 11" x r x muscle deep at the middle of the dorsum of the right hand.
(12) An incised wound 3" x muscle deep at the base of the right palm.
(13) An incised wound rxrx muscle deep at the middle of the right palm.
(14) An incised wound 1" x x muscle deep on the left side of the chest at about its middle.
(15) An incised wound x x muscle deep at the left arm at about its middle.
(16) An incised wound 1" x x muscle deep at the left arm at its middle medially.
(17) An incised wound 1" x }" x muscle deep at the lower part of the left arm on the front.
(18) An incised wound 2" x x muscle deep on the left arm laterally at about its middle.
(19) An incised wound 2" x I" x muscle deep on the left forearm upper part, laterally.
(20) An incised wound It x fx muscle deep on the left forearm at about its middle laterally.
(21) An incised wound i" x x muscle deep at the left forearm upper part on the front.
(22) An incised wound i" x x muscle deep at the middle of the left forearm on its front.
(23) An incised wound 1".'x f" x muscle deep on the left forearm at about its middle medially.
(24) An incised wound 1" x f" x muscle deep on the back of the neck, left side, lower part.
(25) An incised wound 1" x x muscle deep on the back of the chest, left side, at about its middle laterally.
(26) An incised wound 1" x x muscle deep on the back of the chest below injury No, 25.
(27) An incised wound 1" x 1" x muscle deep on the left thigh at about its middle laterally.
(28) An incised wound 2" x 1" x muscle deep on the left leg upper most part, below the left knee joint.
(29 An incised wound 22" x i" x muscle deep on the right knee joint, medially on lower most part."
' On internal examination he found that underneath the external injury No, 2 there was cutting of the inter costal muscle and a cut in the upper lobe of the right lung through and through along with pleura. He also found thoracic cavity was full of blood on both sides and underneath the external injury No, 4 there was cutting of the inter costal muscle. He further found that there was cutting in the middle lobe of the right lung along with pleura through and through and also in the pericardium and the right ventricle of the heart. He also found underneath external injury No, 7 there was cutting of inter costal muscle and a cu.: in the upper lobe of the left lung along with pleura through and through. He opined that external Injuries Nos. 2, 4 and 7 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature.
' Whereas on the external examination of the dead body of Nisar he found the following external injury "(1) An oblique incised wound 21" x r x cavity deep on the left umblical region. The intestinal loops were lying out of the wound.
' Whereas he also found the following internal injuries on the person of deceased Nisar: "Underneath the external injury, there was cutting of the pertonium through and through. The abdomenal cavity was full of blood. There was perforation in the small intestine through and through and there was also cutting of the mesentric blood vessels." The stomach contained about 2 ozs. Of semi-digested material.
' He also found stomach containing about 2 ozs. Of semi-digested material. He found that cause of death was due to shock and entraabdoniental haemorrhage as a result of the injury to the peritonium, small intestines and the mesentric blood vessels, which was the result of external injury on the abdomen.
10. It may also be pertinent to reproduce the terms of the compromise agreement dated 9-5-1977 Exh. 33, entered into between the appellant and deceased Mst. Rukhsana about five months prior to the incident, which has been proved by P. W. 10 Azizur Rehman Rehmani who is a witness to the above agreement and who was not challenged in the cross-examination as to the above factum.
The terms of the above compromise are as follows: "(1) That party No, 1 is married with party No, 2 and they are husband and wife. They were married on 1-11-1974 as a result of the ma riage a son namely Rashid was born whose age is about 9 months.
(2) That party No, 2 is living along with her parents for about one year and she has also filed a suit against the husband for the dissolution of marriage. On the other side party No, 1 has also filed a suit for restitution of conjugal rights.
(3) That the father of party No, 2 has died. Now the Nek Mards intervened and succeeded to compromise between the, parties and the party No, 2 started to live as a wedded, wife with the party No, 1.
(4) That party No, 1 to please the party No, 2 and to keep harmonious relation between the parties, eagerly increased the amount of Mehar as Rs, 5,000 (Rupees five thousand) on demand.
(5) Party No, 2 for the time being will live with her mother's house and party No, 1 will also live with her and all incomes will give over to party No, 2.
(6) That in case of any dispute the party No, 2 choice to live separately in the house of her mother the party No, 1 will pay Rs, 300 per month for her maintenance regularly.
(7) That party No, 1 will never ask for or claim to party No, 2 for Ornament valuable cloths.
(8) That both the parties will withdraw their suits which are pending in the respective Court on their own expenses."
11. The following are the pieces of evidence and the circumstances against the appellant's plea :-
(i) That the medical evidence on record indicates that Nisar was not lying on the cot with Mot.
Rukhsana in the underground room. AIM. Rukhsana had 29 injuries on all parts of the body, whereas Nisar had only one injury on the abdomen. The normal conduct of the appellant would have been first to attack the stranger instead of attacking his wife. Furthermore, inflicting of 29 injuries on the person of Mst. Rukhsana must have taken sometime. It is highly improbable that Nisar would have stood by and had witnessed the butchering of Mst. Rukhsana instead of either making an attempt to save her or to run away from the place of Wardat. Additionally, the seat of injury and the factum that there \ \ as only injury on the person of Nisar corroborates the testimony of P. W. 1 Mst. Rehana that Nisar was attacked when the appellant had encountered him while attempting to escape from the place of Wardat. If the appellant would have attacked Nisar while he was running away the seat of the injury would have been back side and not the front side of the body i. e. The abdomen.
(ii)That if factually Mst. Rehana, P. W. 1 was guarding Nisar and Rukhsana and was facilitating them to have immoral affairs, the appellant would have attacked the above witness as well instead of pushing her aside.
(iii) That the time of incident also goes against the version of the appellant, as Nisar and Rukhsana would not have chosen 5-15 p.m. Which is the time for return of the male members of the family and it was possible that they would have been encountered by Rukhsana's brother or even by the appellant.
(iv) That the terms of the compromise agreement Exh. 33 reproduced hereinabove indicate that they were favourable to deceased Rukhsana and unfavourable to the appellant. This fact lends support to P. W. Mst. Rehana's testimony that he was demanding the return of the same.
(v) That it may be observed that Mst. Rehana has not stated in her examination-in-chief that the appellant had inflicted injury to Nisar inside the house, but has stated that the appellant started running outside the door and when came across Nisar he gave knife blow to him. The sketch of the place of Wardat prepared after about 21 years from the date of incident by P. W. 4 Ahmad Khan, Tapedar Hyderabad City indicate that point 'A' where Mst. Rukhsana was murdered from underground room is 12 feet from the place where Nisar was attacked which is outside the house near the gate. It may be observed that 12 feet distance is from the underground. P. W. 13 Imam Bux A. S. I. P. Has stated 4.;lat he had received telephonic message from Aqil Yousuf that somebody had killed his wife and also gave blow to one Nisar in Amil Colony near the house of Abdo, Latif Ansari.
W. P. 14 S. H.
0. Imdad Ali Khan has also deposed that he had prepared the Mashirnama of place of wardat Emil.
20 at the pointation of Mst. Rehana which indicates that Nisar was attacked near the gate. Eye- witnesses P. W. 2 Ramzan and P. W. 3 Chand Muhammad have also stated that Nisar was attacked near the gate but we are not considering their testimony for' the reason already recorded hereinabove. The fact whether Nisar was attacked outside the gate or inside the house just near the gate will have no significance if we were to hold that factually Nisar was not lying on the cot with Mst. Rukhsana in the underground room. We are inclined to hold that deceased Nisar was not lying on the cot with deceased Mst. Rukhsana in the underground room for the aforesaid reasons.
(vi) The defence had not suggested to P.W. 1 Mst. Rehana in her cross-examination that she was a woman of loose character nor it was suggested that deceased Mst. Rukhsana was a woman of questionable character. The fact that the appellant entered into the aforesaid compromise Exh. 33 about 5 months prior to the incident, which was more favourable to deceased Mst. Rukhsana as pointed out herein-above in sub-para. (iv) of para. 11 negates the allegation that she was a woman of questionable character.
12. On other hand the following facts has e been urged in order to canvass that there is a possibility that the appellant's plea might be true (1) That the house of deceased Nisar as per P. W. 2 Ramzan was about 100 paces away from the place of Wardat and that there were 10 or 15 houses surrounding the Wardat as per testimony of P. W. 2 Muhammad Ramzan. It has, therefore, been contended that Nisar could not have been the first person to have been attracted by the cries of P.
W. 1 Mst. Rehana. It may be observed that at the same time the learned counsel for the appellant has urged that P. W. 2 Ramzan's testimony is liable to be ignored as his name was not mentioned in the F. I. R. In our view either his evidence is liable to be kept out of consideration for both the prosecution as well as for the defence or the same can be pressed into service for both. His testimony in fact also lends support to the prosecution case. Furthermore, it is not improbable that Nisar might have been on the street at the time of the incident as it was about 5-15 p. m..
(ii) That the statement of Mst. Rehana in her cross-examination that Nisar was attacked in the courtyard near the gate. It has been urged by the learned counsel for the appellant that this admission in fact reinforce the appllant's above plea as Nisar could not have entered into the house as per P. W. 1 Mst. Rehana they were Pardah observing women. In this regard, it may be observed that it is true that in the cross-examination Mst. Rehana had made the above statement, but her statement in the examination-in-chief and the other evidence on record referred to hereinabove in para. 11(v) indicate that factually Nisar was attacked outside the house near the gate when the appellant started running outside the door and he came across Nisar.
(iii) That as per P. W. 1 Mst. Rehana a space was reserved for cooking purpose in the base of the ladder, which was provided for underground room. It has, therefore, been urged by the learned counsel for the appellant that the appellant's version that he had picked up the knife from the kitchen after seeing Mst. Rukhsana lying on the cot with Nisar gets support from the above factum of the location of the space reserved for cooking. In this regard, it may be stated that we have seen knife in the Court, which is one edged folding knife, which is not normally used as a kitchen knife.
The factum that this knife was recovered at the pointation of the appellant was not challenged in the cross-examination of P. W. 7 Ghulam Muhammad (one of the Mashirs to the recovery) or in the cross-examination of P. W. 14 Imdad Ali, S. H.
0. As pointed out hereinabove in para.
7. Furthermore, Mst. Rehana had .Denied specifically that the above knife was used by them for cooking. Additionally, we have held that Mst. Rukhsana was not lying with Nisar on the cot and, therefore, the question of picking knife from the place reserved for cooking did not arise.
(iv) That list. Rukhsana was an interested witness inasmuch as her suit for dissolution of marriage was pending against the appellant's elder brother, and, therefore, it was urged that her testimony cannot that relied upon. In this behalf, it may be observed that the testimony of Mst. Rehana is supported by other evidence on record, namely, the medical evidence particular the seat of injury of deceased Nisar and the testimony of P. W. Imam Bux and P. W. 14 Imdad Ali and the Mashirnama of the place of the Wardat. Additionally the appellant has admitted the killing of both the deceased The controversy in issue is within a very narrow compass, namely, whether the prosecution's version is proved beyond reasonable doubt or whether on the basis of material on record the appellant can make out a case of reasonable possibility of his plea being true or in other words, can he manifest a reasonable doubt in favour of his plea.
13. It may be observed that the appellant as an accused is not require to prove his plea beyond reasonable doubt, but he is obliged to show from the material on record, whether brought by him or by the prosecution, that there is reasonable possibility of his plea being true or in other words there is reasonable doubt in favour of his plea. We have examined the appellant's plea and the material on record in support thereof in juxta position with the other material on record in support of the prosecution case and we are of the view that there is no reasonable possibility of the appellant's plea being true or in other words, there is no reasonable doubt in favour of the appellant's plea.
14. We are inclined to hold that it was a case of pre-meditated murder of Mst. Rukhsana. The appellant returned his wife i,e, deceased Mst. Rukhsana's parent's house duly armed with knife with the intention to kill her. Whereas Nisar was given fatal injury on the abdomen while the appellant started running outside the door and came access to Nisar. This is a double murder case. We see no mitigating circumstance to reduce the sentence. We are, therefore, not inclined to interfere with the judgment of the learned Sessions Judge, the appeal is therefore, dismissed. The reference is accepted and the death sentence is hereby confirmed.