' AJMAL MIAN, J.-- The appellant has been convicted under section 302, P.P.C. And sentenced to death by learned IInd Additional Sessions Judge, Karachi by his judgment, dated 22-4-1984 for murdering Mst. Mushtari Khanum. The appellant has filed the above appeal, whereas the learned 2nd Additional Sessions Judge has made the above reference for confirmation of the death sentence. We intend to dispose of the same by this common judgment.
2. The case of the prosecution in brief is that the appellant, who is the younger sister of P.W.1 Rafique Ahmad Khan, complainant's second wife Nasreen (who was at the relevant time living with her parents at Lahore), was putting up with the complainant's first wife, Mst. Mushtari Khanum (deceased) at Flat No,18-C (second floor), Al-Azam Block No,13/A, near Hassan Square, University Road, Karachi, and was working as a maid servant. On the day of the incident the deceased in the morning had asked the appellant to cook the meals but the latter declined on the plea that the requisite food items for cooking were not available. It is said that there was altercation on that account.
' In the evening when the complainant had returned from his work, he was informed by his wife that the appellant had misbehaved with her and that she would not like to keep her any longer.
Thereupon, the complainant asked the appellant to be ready for going with him to his sister's house in New Karachi for spending night and that she could go anywhere thereafter. It is also said that the complainant's mother, a blind old lady, who was also putting up with him at the relevant time also expressed her desire to go to New Karachi with thecomplainant and the appellant. It is further said that at about 10-30 p.m. The complainant and his brother-in-law Dewan Aftab Khan with the luggage of his mother started going down after asking the appellant to follow them with her luggage, but when they reached ground floor they heard cries from the flat, thereupon both came up and found that in front of the kitchen P.W. Mst. Saeeda Khanum had caught hold the appellant in whose hand there was a Chhuri. In front of the chest and stomach blood was oozing out from the deceased. The complainant and Dewan Aftab Khan took Mst. Mushtari to Civil Hospital. P.W. 10 Mushtaq Ahmad who was In charge A.S.I. Of outpost Gulshan-e-lqbal between the night of 29-3-1977 and 30-3-1977 received report on 29-3-1977 at 11.58 night from New Town Police Station Exh. 17, which reads as follows: "Copy of Report No, 62 time 2350, dated 29-3-1977.
' At this time Dr. Muhammad Rafique C.M.O. Civil Hospital got written on telephone that one Mst.
Mushtari Begum wife of Rafique Ahmad Khan, aged 35 years r/o 18/C Al-Azam Apartments, Gulshan-e-lqbal, is brought by Rafique Ahmad Khan injured by knife to Civil Hospital. Someone be deputed for action. Copy of report is sent 2780 to A.S.I. Mushtaq Ahmad, M.L. No,1637".
' Upon receipt of the above report P.W. Mushtaq Ahmad proceeded to the Civil Hospital and gave a written letter to the C.M.O. For permission for recording of statement of injured Mst. Mushtari Begum but the same was declined on the ground that she was in critical condition. He then recorded statement of her husband complainant Rafique Ahmad Khan under section 154, Cr.P.C. Exh. 4/A which was incorporated in the F.I.R. Book at 4.15 a.m. On 30-3-1977 by P.W.11 Zafar Ali Baloch A.S.I.
And Duty Officer Police Station New Town. P.W.10 Mushtaq Ahmad proceeded to the scene of offence and prepared Mashirnama of the same in presence of Mashirs P.W. 11 Mumtaz and one Feroze Khan Exh.
18. He also recorded the statements of eye-witnesses P.Ws. Saeeda Khanum and Dewan Aftab Khan. He also found the appellant at the scene of offence in the adjacent room where she allegedly confessed her guilt and voluntarily led him and Mashirs Mumtaz and Feroze and produced blood-stained Chhuri from inside the bed from the room of the flat. He secured the blood-stained Chhuri and arrested the accused in presence of the above Mashirs. He prepared Mashirnama of recovery Exh. 19 but no Mashirnama of arrest was prepared. He also procured blood-stained clothes of the appellant namely Shalwar, Kamiz and Dopatta under Mashirnama Exh.20. He brought the appellant to the police station and recorded the arrest in the station diary.
' The injured Mst. Mushtari Khanum expired on the following day in operation theatre at about 2-00 p.m. And, therefore, the case was converted from section 307, P.P.C. Into 302, P.P.C.
3. The prosecution in support of the case has examined P.W.1 Rafique Ahmad Khan, complainant and husband of deceased Exh.4 an eye-witness, P.W.2 Dewan Aftab Khan, brother-in-law (deceased's brother) Exh.5/D another eye-witness, P.W.3 Mst. Rabia Aftab, wife of P.W.2 Dewan Aftab Khan Exh.6 another eye-witness, P.W.4 Mst. Saeeda Khanum, elder sister of the deceased, another eye-witness, P.W.5 Aftab Ahmad Khan, brother-in-law of deceased Exh.8, who reached the place of Wardat at about 1.00 at night upon receipt of telephone from P.W. Dewan Aftab Khan, P.W.6 Ali Anwar Shaikh, a Magistrate, who recorded 164, Cr.P.C. Statement of the witnesses Exhs.4/B, 5/D, 6/A and 7/A on 7-4-1977 (Exh.9), P.W. 7 Syed Iqbal Ahmed, Medico-legal Officer in Civil Hospital on 30-3-1977 who produced the case sheet of Mst. Mushtari Khanum deceased (M.L.C.No, 1634/77, P.W.8 Dr. Col. Asafali Nur Exh.13, who treated and operated upon the deceased before her death and produced treatment sheet, which also contains the reason of death and has been shown as post-mortem report in the paper book Exh.13/A, P.W. 9 Dr. Mohammad Rafique, Medico-legal Officer on 29-3-1977, when at about 11-25 p.m. Injured Mst. Mushtari Khanum was brought by her husband P.W. Rafiq Ahmad and he informed the New Town Police Station vide entry No,
62. On examination he found the following injuries on the person of the injured: "(1) Incised wound right chest front 1" below right breast 1" x 1/3" x suspected cavity deep.
(2) Incised wound right abdomen at the level of 2" above the umblicus 1/2" x 1/3" x skin deep.
(3) Incised wound right abdomen 1/2" below the injury No,2, measuring 1/3" x 1/4" x suspected cavity deep.
(4) Incised wound left lower abdomen 1" x 1/4" x skin deep.
(5) Incised wound left abdomen 1" below the injury No,4, measuring 1/2" x 1/4" x skin deep.
(6) Incised wound right thigh middle front 3/4" x 1/8" x superficiousal."
' He found all the injuries fresh in duration and simple in nature excepting 1 to 3, the nature of which were reserved for want of X-ray and ward report. He prepared the report of the injuries Exh.14/A. He found that the injuries were caused by sharp-edged weapon and were caused within a period of six hours from the time of examination.
' The prosecution also examined aforesaid A.S.I. P.W.10 Mushtaq Ahmad Exh.16, P.W. 11 Zafar Ali Baloch Exh.21 P.W. 11 Mumtaz, one of the Mashirs referred to hereinabove Exh.24, P.W. 12 Dr. Hassan Javed, who examined the appellant upon reference by the police and found one incised abrasion 1/3" x 1/4" on the ventral aspect of terminal phalynx of index finger of (L) hand and prepared the medical report Exh.27. He found the injury was simple in nature and was caused by some sharp- edged weapon probable duration of which was within 24 hours.
' The prosecution also examined P.W. 13 Inayat Ali, who was S.H.O. New Town Police Station on 29-3- 1977 and had recorded the above 154, Cr.P.C. Statement of the complainant in the F.I.R. Register and also forwarded the blood-stained articles to the Chemical Analyser and produced Chemical Analyser's report Exh.29.
4. The appellant in her 342, Cr.P.C. Statement denied the factum of having committed the offence but stated as follows: "About 10 days prior to the incident I had come from Lahore to attend marriage of my friend Shirin alongwith elder sister of Shirin and was staying in her house situated in Soldier Bazar, Karachi. On the day of incident at about 5 or 6 p.m. I had gone to the house of my brother-in-law complainant Rafiq Ahmad to meet him as I was leaving for Lahore where my elder sister Nasreen was staying. At about 8-30 p.m. I, deceased Mushtari Begum, complainant Rafiq Ahmad and mother of the complainant were sitting in the drawing room. At that time complainant had exchanged some hard words with his wife Mst. Mushtari, on which I and complainant's mother left the drawing room and went in the Balcony of the bed room.
' We then heard cries of Mushtari Begum and went in the drawing room and found that she was lying injured in the pool of the blood on Soofa. At that time Tanveer neighbor also came. The complainant told him to go out as it was their domestic dispute. The complainant then went to bring a doctor and came back after half an hour as no doctor was available. After some time Mst.
Rabia and Dewan Aftab Ahmed Khan and Aftab Khan and Sayeeda Khanum came from Al-Noor Society. They had some conversations with each other and then they removed Mst. Mushtari Begum to hospital. The incident took place on 29-3-1977 at about 9-00 p.m. And on the next day i.e, on 30-3-1977 Dewan Aftab Ahmed Khan at about 8-30 a.m. Came from the hospital and told me to accompany him to police station where complainant Rafiq Ahmed was also present for my statement. I then went to the police station alongwith Dewan Aftab Ahmed Khan. At the police station after my reaching the police arrested me as well as complainant Rafiq Ahmed. Afterwards at the instance of complainant I was falsely implicated in this case and the complainant was set free as he was influential person. I am innocent, I had received injury on my index finger one day prior to the incident in the house of Mst. Shirin while cutting some vegetable."
' The learned Second Additional Sessions Judge on the basis of the above evidence recorded the conviction as mentioned above.
5. Mr. Hassan Hameedi, learned counsel for the appellant in support of the appeal has urged as follows:
(i) That alleged eye-witnesses are not reliable.
(ii) That the recoveries are liable to be ignored.
(iii) There was delay, in lodging of the F.I.R.
(iv) Motive not proved.
(v) That the factum that the death was caused on account of the injuries allegedly inflicted by the appellant has not been proved.
(vi) That the evidence on record indicate that the plea of the appellant in her 342, Cr.P.C. Statement is plausible.
(vii) That various infirmities in the prosecution case create doubt in favour of the appellant and, therefore, she is entitled to the benefit of doubt.
' On the other hand Mr. Murtaza Hussain learned counsel for the State has vehemently urged that the case of -the prosecution has been proved beyond reasonable doubt and that at the most the appellant may be entitled to claim reduction of sentence from death to imprisonment for life.
5.(a) Mr. Hameedi in furtherance of his above first submission that the eye-witnesses are not reliable has advanced three-fold arguments, firstly that P.Ws Dewan Aftab Khan, Rabia Aftab and Mst. Saeeda Khanum were not in fact eye-witnesses, secondly that the above alleged eye- witnesses were related to the deceased and also were inter se related and thirdly that in any case the alleged eye-witnesses have made a number of improvements in their statements before the learned Ilnd Additional Sessions Judge on material facts and, therefore, their testimony cannot be relied upon without having independent piece of corroborative evidence. It may be observed that the incident had taken place in the month of March, 1977 when P.N.A's. Movement was going on and curfew was imposed in a number of localities of Karachi including the Federal 'B' Area. The above three witnesses namely P.Ws. Dewan Aftab Khan, Rabia Aftab and Saeeda Khanum were inhabitants of Federal 'B' Area whereas the complainant was putting up in Gulshan-e-Iqbal in a flat having five rooms as per Mashirnama. Inter alia P.Ws. Rabia Aftab and Saeeda Khanum have deposed that they had come to live with the complainant on 27-3-1977. Even the appellant in her 342, Cr.P.C. Statement has admitted the factum that the above witnesses had reached the place of incident immediately after the incident. We have noticed that in the cross-examination nothing has been brought on record which can belie the statements of the above two witnesses that they had come to stay with the complainant on 27-3-1977. This has been corroborated by the complainant himself by stating that the above witnesses had come to stay with him two days prior to the incident. We are therefore, not inclined to subscribe to the above contention of the learned counsel for the appellant that the above P.Ws were not present at the time of the incident.
(b) Adverting to the second limb of the above contention that witnesses are related to the deceased and are also inter see related and, therefore, are interested witnesses, it may be observed that Mr. Hameedi has placed reliance on the following cases:
(i) Soof and another v. The State 1976 P Cr.L J 382, in which the parties were admittedly on inimical terms. The prosecution witnesses were related to the deceased. It was held that their testimony cannot be accepted without additiopal corroborative circumstances.
(ii) Muhammad Hassan v. The State PLD 1982 Lah.
577. In the above case inter alia there were three eye-witnesses, namely, one eye-witness the complainant, father of the deceased, second eye-witness was having joint cultivation With the father of the deceased and the third eye-witness was a friend of the deceased. A Division Bench of the Lahore High Court held that though no enmity was suggested on behalf of the accused to the eye-witnesses but they cannot be termed as uninterested.
(iii) Ilahi Bux v. The State 1982 SCMR 57 in which inter alia it was observed by the Honourable Supreme Court as follows: "No doubt it is open to the Court to sift grain from the chaff.
' But before relying on certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of their statements on which it wishes to rely. But we feel that in the present case, the conduct of the prosecution in effecting false recoveries is so grossly dishonest as to cast a grave doubt on the entire case and reflect adversely on the veracity of the prosecution version and in a case like the present one where the witnesses have not only contradicted themselves but have been anxious to make absolutely false statements which according to the High Court itself were motivated, no amount of corroborative evidence can rectify the defect and it would be extremely dangerous to depend upon such testimony for maintaining the conviction of the accused. In these circumstances, motive alone, even if believed, is not such a piece of corroboration as would be sufficient to make it safe to rely on the testimony of the eye-witnesses."
(iv) Bagh An and 4 others v. The State PLD 1973 SC 321. In the above case it was inter alia held by the Hon'ble Supreme Court that in order to carry conviction on capital charge ocular evidence must come from unimpeachable source or must be supported by some strong circumstances.
(v) Mohammad Khan and another v. The State PLD 1984 Lah. 522, in which the learned Chief Justice of the Lahore High Court held that in view of the backgrcund of previous and long standing enmity of the eye-witnesses, their testimony cannot be accepted without corroboration.
' On the other hand Mr. Murtaza Hussain learned counsel for the State has relied upon the following cases:
(i) Niaz v. The State PLD 1960 SC (Pak.) 387, in which the Hon'ble Supreme Court while dealing with the question of interested witnesses has made the following observation: "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However, the circumstance itself must be proved beyond all reasonable doubt. This rule of prudence requiring corroboration of partisan evidence has generally been accepted by Courts and was accepted by all the Judges of the Federal Court of Pakistan in Ashraf and others v. The Crown 1955 FC R 93=PLD 1956 FC 86 although the learned Judges were not in agreement as to what constituted corroboration."
' Nazeer v. The State PLD 1962 SC 269. In the above case the Hon'ble Supreme Court of Pakistan inter alia held that a witness can be said to be an interested witness, "one who has a motive for falsely implicating an accused person". It was also held that the necessary corroboration to the testimony of an interested witness does not necessarily mean the independent witness but anything in circumstance which tends to satisfy the Court that witness has spoken the truth.
' Tawaib Khan v. The State PLD 1970 SC 13, in which the Hon'ble Supreme Court on the maxim "falsus in uno falsus in omnibus" has observed as follows: "The maxim "falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, 'the grain has to be shifted from the chaff' in each case, in the light of its own particular circumstances."
(c) The preponderance of ratio decided of the above cited cases is that if an eye-witness in a criminal proceeding is related to a victim upon whom offence has been committed and who was on inimical terms with the accused concerned such witness can be termed as an interested A witness having motive to implicate the accused falsely. But simplicity relationship between an eye- witness and a victim does not make him an interested witness. Furthermore, even the testimony of an interested witness can be relied upon if corroborative piece of evidence even in the form of any circumstance which tends to satisfy the Court about the guilt of the accused is available on record.
' In the instant case the simpliciter relationship between the eye-witnesses and the deceased, in our view, does not make them interested witnesses. However, it was further urged by Mr. Hameedi that the fact that the appellant was the sister of the second wife of the complainant furnishes sufficient motive to the above eye-witnesses, who were admittedly related to the first wife i.e, the deceased to implicate the appellant falsely. In this regard, it may be observed that the complainant Rafique Ahmad Khan had married Mst. Mushtari Khanum the deceased in 1961, whereas to Mst. Nasreen in 1974. It is true that a second marriage by a husband is not liked by a first wife and her relations but this fact itself will not be sufficient to prompt the relations of the first wife to falsely implicate the younger sister of the second wife in a murder case in substitution of the husband. In the present case the defence plea seems to be that the murder was in fact committed by the complainant, husband of the deceased.
' Furthermore, the very fact that the appellant was kept by the first wife indicates that she and her close relations were not hostile to the appellant. We are, therefore, inclined to hold that in the present case the eye-witnesses cannot be said to be witnesses having motive to implicate falsely the appellant and, therefore, they are not interested witnesses in the sense referred to in some of the above cited judgments.
(d) This leads us to the last aspect of the above submission namely that since a number of improvements have been made by the eye-witnesses before the learned Ilnd Additional Sessions Judge, their testimony cannot be relied upon without having some independent piece of corroborative evidence, it may be observed that Mr. Hameedi has referred to the testimony of the above eye-witnesses and has pointed out that P.W. 1 the complainant Rafique Ahmad Khan has made a number of improvements, namely, (i) that in his statement before the Ilnd Additional Sessions Judge, he has added that his mother also asked him to accompany to the house of his sister which was not mentioned in his 154, Cr.P.C. Statement, (ii) that in his 154 statement his version was that he heard loud cries from the flat but before the Sessions Court he has deposed that he heard cries raised by his sister-in-law Saeeda Khanum and Mst. Rabia Aftab from the house calling him and his brother-in-law Dewan Aftab Khan to return back, (iii) that before the Sessions Court he has stated that his wife cried that accused Rehana has given several Chhuri blows on his chest and abdomen and that she should not be left but no averment of this fact was made in 154 statement, (iv) that in his statement before the Sessions Court he has stated that appellant also said that she had given the Chhuri blows to his wife as she wanted her to get out from the house but there was no such averment in his 154 statement and (v) that he has also stated before the Sessions Court that the appellant while being pushed into the room said that she had taken the revenge from Mushtari Khanum and that for the purpose she had come there and that as the complainant was not residing with the appellant's sister but was putting up with Mushtari Khanum.
' It seems that the above facts were not referred to by the complainant in his 154, Cr.P.C. Statement.
However, it cannot be overlooked that the above statement under section 154, Cr.P.C. Of the complainant was recorded by the police officer at the hospital when the injured was lying in critical condition and, therefore, complainant's state of mind cannot be expected to be normal. In any case, even if we were to discard the evidence of the complainant, there still remains the evidence of the other eye-witnesses.
' Mr. Hameedi has also invited our attention to the improvements made by P.W. Dewan Aftab Khan, namely that in his 164 statement he had not stated that he saw accused Rehana giving Chhuri blows to Mst. Mushtari Khanum or that he and the complainant had locked up accused Rehana in her room alongwith the Chhuri. It is true that the above witness had not referred to the above facts in his 164 statement as recorded in deposition before the Sessions Court. The above improvement at the most will necessitate the corroboration of his statement.
' Mr. Hameedi has also referred to the testimony of P.Ws. Rabia Aftab and Saeeda Khanum and pointed out certain alleged improvements in their statements before the Sessions Court.
6. There is no doubt that there are certain improvements and discrepancies in the testimony of the eye-witnesses but the Court has to sift the grain from the chaff and to ascertain whether the improvements or the discrepancies are such which negate the prosecution case or which render the testimony of the witnesses wholly unreliable warranting exclusion from consideration. There are no discrepancies as, to the, identity of the appellant and on the factum that the appellant was the assailant or as to the time of incident etc. ' In the present case, in our view, the controversy is within the very narrow compas namely, whether the murder was committed by the complainant P.W. Rafique Ahmad Khan or by the appellant. Even as per appellant's 342, Cr.P.C. Statement in the flat in question at the time of the incident, there were three persons, namely, the complainant, his blind old mother and the appellant. The defence plea that the murder was committed by the complainant, the husband of the deceased and not by the appellant is belied by the evidence on record and the circumstances of the instant case namely (i) as per P.W. Rafique Ahmad Khan and Dewan Aftab Khan the injured was in his senses when she was taken to the Civil Hospital. This fact has been corroborated by Exh.13/A, treatment sheet (at the bottom of page 107 of the paper book) which document was proved by P.W.8, Dr. Col. Asafali Nur, which contains the following entry "the patient states that at about 11.00 p.m. She was being attacked by knife by a lady and received multiple injuries on her body". If factually the complainant would have attacked his wife, latter would have disclosed this fact to her close relations, who were present even according to the appellant immediately after the commission of the incident, (ii) that if the complainant would have been the assailant, he would not have rushed to the hospital for providing medical attendance to his wife in order to save her life without loss of time (iii) that as per P.W.13 Inayat Ali, S.H.O. New Town Police Station he had referred the appellant to the Civil Hospital as she had some injury on her finger of left hand. The medical evidence in the form of deposition of P.W. 12 Dr. Hassan Javed Exh.26 and the medical report Exh.27 confirms the fact that the appellant had incised abrasion 1/3" x 1/4" on the ventral aspect of terminal phylanx of index finger of (L) hand, duration of which was within 24 hours. The appellant was examined by above P.W. Dr. Hassan Javed on 30-3-1977. However it was urged by Mr. Hameedi learned counsel for the appellant that as per appellant's statement under section 342 she had received the injury on her index finger one day prior to the incident in the house of Mat. Shirin while cutting some vegetable and therefore the appellant's version be accepted in preference to the prosecution version. It may be pointed out that in the cross-examination of P.W. 1 Rafique Ahmad Khan, it was not even suggested that the appellant had come to attend the marriage and was putting up with Shirin. On the contrary the tenor of cross-examination indicates that the factum that the appellant was living with the complainant and was working for him was admitted. In this regard, it may be pertinent to quote the relevant. Portion of the cross-examination, which reads as follows:- "A baby girl was born from my wife deceased, in the year 1970. It is incorrect to suggest that I had myself asked accused Rehana to reside in my house to look after my daughter born from my first wife Mst. Mushtari Begum, now deceased. It is incorrect to suggest that accused was residing in my house as a guest but she was working as a maid servant in my house."
(iv) That in fact if the complainant would have been the assailant, his second wife, who was the real sister of the appellant would not have come and live with the complainant for the reason that her sister was falsely involved in the murder case by him. From the deposition of the complainant, it seems that after the death of his first wife in the above incident (after two months), he brought his second wife from Lahore to Karachi and in February 1979 she gave birth to a baby girl.
7 Reverting to the learned counsel for the appellant's contention that there was delay in recording of the F.I.R. And, therefore, the complainant had sufficient time to fabricate the case, it may be observed that from the evidence on record, it is evident that the police had reached the hospital immediately on receipt of the telephonic message from the doctor from the Civil Hospital and recorded the statement of the complainant under section 154 without any delay. The above statement was transmitted in the register of the F.I.R. At about 4-15 a.m. In our view, the delay in incorporation of the above statement in the register does not amount to lodging of the F.I.R. After delay. The incorporation of 154 statement is a clerical job, whereas actual recording of the statement under section 154 is an act towards recording of the F . I . R .
7. As regards Mr. Hameedi's contention that motive has not been proved, it may be observed that all the eye-witnesses are unanimous on the point that there was altercation between the appellant and the deceased in the morning about the cooking of the meals. P.W. Rafique Ahmed, the complainant has introduced the additional motive by stating that the appellant had remarked immediately after the incident that she had come to take revenge as the complainant was not living with her sister. This new introduction will not nullify the testimony of the other eye-witnesses on the question of motive as they have not introduced any other motive than the motive disclosed in 154, Cr.P.C. Statement of the complainant. Even otherwise, non-proving of motive is not fatal to the prosecution case. At the most it may entitle the appellant to a lesser punishment than the capital punishment in a murder case.
8. Reverting to Mr. Hameedi's contention that on the basis of the evidence the appellant's plea is plausible, it will suffice to reiterate that for the reasons already referred to hereinabove in para. 5(d) the appellant's plea is belied.
9. As regards the recoveries, it may be observes that we are not inclined to rely upon the same for more than one reason, namely that one of the Mashirs, P.W. 11 Mumtaz who was examined, did not belong to the locality where the incident had taken place but was resident of Liaquatabad.
Furthermore, his reason being present at the bus stop at night at 2-00 or 2-30 a.m. When no bus was plying according to his own admission, does not inspire confidence, secondly there are material discrepancies as to the place of recovery of the blood-stained knife. According to the above Mashir the Chhuri was recovered from kitchen lying on the table, whereas according to the police officer the Chhuri was produced by the appellant from the bed of his room. Thirdly as per Chemical Examiner's Report Exh.29 the articles were referred to him in January 1984, i.e, after expiry of nearly 7 years.
It may be observed that Mr. Murtaza Hussain has contended that delay simplicity in referring the articles to the Chemical Examiner is not fatal. On the other hand, it was urged by the learned counsel for the appellant that in a number of cases it has been held that delay in referring the blood-stained articles to the Chemical Examiner is fatal. It will suffice to observe that delay simplicity of a reasonable period may not be fatal but delay of a period of 7 years without any explanation cannot be justified. Furthermore, as pointed out in the present case there is discrepancy as to the place of the recovery of the crime weapon and therefore in the case of the alleged crime weapon there is not only delay but also the recovery is doubtful. Therefore, we are not inclined to rely upon the recoveries and hence the same are kept out of consideration but this does not mean that the prosecution has failed to prove the case. The evidence of the eye- witnesses corroborated by the circumstances referred to hereinabove, particularly the factum that the appellant had an injury on her index finger duration of which was within 24 hours proves the prosecution case.
11. Adverting to the question, whether the factum of death on account of the injuries inflicted by the appellant has been proved or not, it may be observed that there is no post-mortem report. P.W.8 Dr. Col. Asafali Nur who had operated upon the deceased before her death had produced Exh.13/ A the treatment sheet and has also deposed that in his opinion the deceased died due to heamorrhage from injury on her liver which resulted in her cardic arrest. Whereas in the above treatment sheet Exh.13/ A cause of death stated is as follows: "Sudden Cardiac arrest."
' In his deposition before the Sessions Court he has stated that he had performed the operation on Mst. Mushtari on the same day and on opening the abdomen he found the cavity was full of blood and there was a deep wound in the right lobe of liver. Apart from this he also found perforation in small intestine. He has further deposed that both these wounds were repaired and bleeding was stopped but at the end of the said operation when Mst. Mushtari was coming out of anesthesia her heart suddenly stopped and she could not be revived. She died at 2-4 p.m. On the same day.
' It was contended by Mr. Hameedi learned counsel for the appellant that the oral testimony of above P.W. Dr. Col. Asafali Nur after the expiry of nearly five years from the date of incident cannot be substituted for a post-mortem report, or in any case it cannot supplement the treatment sheet Exh.13/A, which has given the reason for the death as sudden cardic arrest.
' On the other hand, it was urged by Mr. Murtaza Hussain learned counsel for the State that the testimony of the above doctor is a piece of evidence on record and therefore the learned IInd Additional Sessions Judge, could have, on the basis of the above evidence held that the deceased died on account of the injuries inflicted by the appellant.
' Learned counsel for the appellant has referred to the case of Ismail and 3 others v. The State, reported in 1983 P Cr. L J 823, in which a learned Single Judge of this Court. Has held that in the absence of medical evidence having cause of death of the deceased, it could not be stated with certainty that injuries found on his person were responsible for his death. Mr. Hameedi has also referred to a passage from Moth's Medical Jurisprudence and Toxicology, Twenty First Edition, which reads as follows: "POST-MORTEM EXAMINATION (AUTOPSY)
' The Object.- The object of the post-mortem examination of a body is to establish its identity when not known, and to ascertain the time since death and the cause of death; natural or unnatural, homicidal, suicidal or accidental, but in addition, the question of live birth and viability has to be determined in the case of the body of a newly-born infact."
We are inclined to hold that in order to saddle an accused person with the responsibility of commission of a capital crime and to visit him with the capital punishment of death, the prosecution is obliged to prove beyond reasonable doubt that the injuries inflicted by the accused on the deceased person concerned were sufficient to cause death in normal/ordinary course of life.
' We are also inclined to hold that in case of ambiguity or doubt C as to the reason of death, the same is to be resolved in favor of the accused.
' Since in the instant case the treatment sheet Exh.13/A does not attribute the death on account of the injuries inflicted by the appellant and gives reason "sudden cardic arrest" and as for the first time P.W. Dr. Col. Asafali Nur in his deposition has given the reason after the expiry of nearly five years from the date of the incident, we are inclined to take the view which favours the appellant namely, that the cause of death was sudden cardic arrest but the factum that the appellant had inflicted the injuries on the deceased referred to hereinabove stands proved beyond reasonable doubt.
We would, therefore, convert the conviction from 302 to 307, P.P.C. As injuries Nos. 1 to 5 were on vital parts and award sentence of seven years' R.I. In place of death sentence. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C. While computing the above sentence.
' With the above modification the appeal is dismissed but the reference is also rejected.