Imdadally H. Agha, J.--Appellant Sabir Masih was tried by the learned Sessions Judge, Karachi and was convicted under section 302, P. P. C. for the murder of Qaimdin. He was sentenced to death and to pay a fine of Rs. 500 or in default he was to suffer 2 years' R. I. The appellant has now appealed against his conviction and sentence. His case is also before us by way of confirmation of his death sentence upon such a reference by the trial Judge under section 374, Cr. P. C. This judgment will dispose of both the appeal by the appellant and the reference for confirmation of his death sentence.
2. The relevant facts are these: Complainant Mst. Sardaran Bibi was married to Sadiq Masih about 8 to 10 years before she gave evidence in the trial Court. He divorced her about 3 to 5 years later.
Complainant then came and started living with the appellant but' they were not married.
According to the complainant she has a daughter from the appellant by the name of Irshad but the appellant did not accept her as his child. Th e appellant kept the complainant first in some house in Sweepers Colony near Slaughter House. From there he took her to Future Colony in Drigh Road. The complainant knew the deceased Qaimdin. He was maternal uncle of the former husband of the complainant namely, Sadiq. The appellant then took the complainant to deceased Qaimdin and they lived together in the Jhuggi of Qaimdin. Qaimdin lived in the Central Drug Laboratory. Qaimdin was a sweeper and Chowkidar of the Laboratory. Wife of Qaimdin was dead and he had a son by the name of Mohammad Rafiq (P. W. 14). P. W. Rafiq lived with his father and went to school. After the complainant and the appellant lived with deceased Qaimdin the appellant got an employment. The appellant used to take money as loan from deceased Qaimdin which he promised to repay after getting salary. Deceased Qaimdin then asked the appellant to return the money but the appellant refused to pay money and said that Qaimdin could keep the complainant with him and dispose of the complainant for that money or keep her as his wife. The appellant also said that Irshad was daughter of Qaimdin. After the appellant took money from Qaimdin he went away. The next day complainant went to appellant but he beat her and drove her out. The appellant then used to live in Transt Camp. The complainant returned to deceased Qaimdin. This happened twice or thrice. Then the complainant started living with the deceased Qaimdin as his wife.
3. On the night of occurrence the complainant and deceased Qaimdin were inside the Laboratory.
Deceased Qaimdin had come back from round. He told the complainant that he had some trouble in the stomach and that he would go for urinating. He went out and was coming back when the appellant suddenly appeared and caught hold of the deceased after which the appellant stabbed the deceased in the stomach several times. Deceased Qaimdin cried out that he was dying and told the complainant to save herself and also inform neighbours. The complainant clearly saw the appellant dealing blows with a knife to the deceased. Complainant then raised cries on which Sattar Masih (P. W. 2) came there. He saw the appellant going out of the room. Then came Aichi Masih. Thereafter the appellant went away. According to the complainant the prosecution witnesses who came on cries saw the appellant running away. Due to the injuries intestines of the deceased had come out and lie was bleeding profusely. Subsequently he succumbed to the injuries.
4. In the morning at about 8 a.m. appellant was seen by Shareef Masih (P. W. 7) entering the house of Hazara Masih. As P. W. Shareef Masih was informed that the appellant was wanted for a murder he closed the door of house of Hazara Masih from outside. P. W. Shareef Masih then informed Ghulain Samdani (P. W. 4) a B. D. Member and they came to the house of Hazara Masih with a constable named Sultan Ahmed (P. W. 11). The appellant was arrested by the constable and was taken to the Police Out-post Landhi where he was handed over to A. S. I. Zar Mohammad (P. W. 17).
The A. S. I. confirmed from Police Station Frere whether the appellant was required and then examined the person and clothes of the appellant. It was found that the khaki pants and bush-shirt of the appellant were stained with blood. The appellant was also found to be having an injury on his right small finger and also on his shoulder. The A. S. I. P. secured the blood-stained clothes of the appellant under a Mashirnama Exh. l2 which was prepared in presence of and signed by mashir P.
W. Ghulam Samdani and another. The clothes were sealed into a parcel then and there. Soon thereafter Abdur Rabb Siddiqul (P. W. 21), Incharge Frere Police Station came to the out-post and the appellant was handed over to him. While in the custody of police the appellant in presence of mashir Ameer Khan (P. W. 3) and another produced from the cow-dung in the quarter of Bhangi in Sweepers Colony a knife which [was taken into possession under a mashirnama Exh. 10.
5. In the meanwhile report of the complainant Mst. Sardaran was brought by Constable Mohammad Aslam to the Police Station Frere which was incorporated in section 154, Cr. P. C. book.
This First Information Report is Exh. 35 on record. The S. H. O. Frere Police Station P. W. Abdul Rabb Siddiqui on getting the information of this crime went to the scene of offence. There he prepared inquest report of the dead body of the deceased Exh. 7 in presence of mashir Sattar Masih (P. W. 2) and another. The S. H. O. also prepared the mashirnama of the scene of offence which is Exh.
8. He then recorded the statement of Mst. Sardaran who was there. Thereafter he despatched the dead body of the deceased through Foot Constable Saeed Ahmed (P. W. 9) for postmortem examination to Civil Hospital, Karachi. Further investigation was carried out by the S. H. O. on 14th July 1966 he took the appellant into custody as stated earlier whereafter the appellant produced his knife from the house of Inayat Bibi which was blood-stained. It was sealed then and there. The appellant is then alleged to have led the police and mashirs to the shop of Adam from where the knife was purchased by him. A mashirnama of pointation of the shop of Adam was prepared and is Exh. 25 on record. The S. H. O. sent the blood-stained articles to the Chemical Analyser whose report he has produced as Exh.
40. The report is in the positive as regards all articles. The appellant was produced before the A. D. M., Karachi for recording his judicial confession but the A. D. M. remanded him to judicial custody. On 19th July 1966 the appellant was again produced before A. C. M. No. 13, Karachi Mr. Mohammad Abdul Bari Khan (P. W. 20) who recorded the judicial confession of the appellant on his making a confession. On 5th September 1966 the appellant was challaned in the Court. He was committed to the Court of Session, Karachi where he took his trial with the result already mentioned above.
6. The appellant questioned at the trial under section 342, Cr. P. C. denied the prosecution allegations and professed innocence. Regarding securing of his blood-stained clothes he stated that he was wearing Shalwar and shirt. As regards pointing out of shop of Adam he said that police had beaten him and taken to that shop. Regarding the judicial confession he stated that he was produced before Magistrate Sahib but he kept mum there and did not say a word. Incharge kept on talking to him and put his thumb-mark because police said that he would be sent to jail. As to why the P. Ws. deposed against him he said that they were doing so at the instance of police. He further stated as follows :-- "Mst. Sardaran went to our Mohalla from here. My mother sent me with her to Karachi for job. She induced me for immoral acts. She took me to the house of Qaimdin. Sardaran was pregnant of Qaimdin and Sattar. They asked me to marry her. J refused. Sadiq informed me that the girl was bad. I left her and went to duty in camp. Sardaran came to me in the camp. I beat her. She lodged the report in the police. Thereafter she filed case before Mrs. Suraiya Pal. I was on duty on the day of the incident. Sardaran used to meet me in jail and asked me to keep her for which she offered to change her statement, I refused."
7. There can be no manner of doubt that the deceased Qaimdin Masih was killed. On this point we have the evidence of Dr. Major A. Hassan who conducted the post-mortem examination on the dead body of the deceased which is conclusive. The doctor in his deposition of the committal Court which was brought on record of the trial Court as Exh. 42 has said that on external examination of the dead body of the deceased he found the following 11 injuries on it
(1) Two oblique incised wounds l"x J"x 1/4' and 3/4'x 1/10* skin deep on the right cheek.
(2) Oblique incised wound l"x 1/6* chest deep situated IV below the right nipple.
(3) Oblique incised wound l*x 1/6" chest deep on the right exphyidternal region.
(4) Oblique incised abrasion 3/4" long, 4}" below the left nipple.
(5) Oblique incised wound l'xl/4' cavity deep with a tail one inch long directed upwards situated i" right of the umbilicus.
(6) Transverse incised wound 1" x 1/4" x abdomen deep 2^* right of injury No. 5.
(7) Two incised wounds 3/4"x bone deep each front and middle of left ring and little fingers.
(8) Incised wound x tissue deep on the right palm.
(9) Oblique incised wound l*x l/4"x 1" back of left arm.
(10) Two oblique incised wounds l$"x 1/4" x chest deep each situated on the left side back of chest.
(11) Oblique incised wound 3/4"xl/4*x chest deep on the right side, back of chest lower part."
8. The above injuries in the opinion of the doctor were Caused by sharp-edged penetrating weapon like a knife. On internal examination of the dead body the doctor found the following damage done to it:-- "On internal examination the chest wall was punctured under injury No. 2 in the right fourth interspace puncturing the lobe lung. Under injury No. 10 the 9th and 10th interspaces were punctured injuring the lower lobe lung \" deep. Under injury No. 3 xiphysternum, the pericardial sac and right venterical of the hard were cut cavity deep at a depth of 3|". Both pleural cavities and the pericardial sac were full of blood. The abdominal cavity did not contain blood. Injuries Nos. 5 and 6 had cut the abdominal wall only. Injury No. 11 was kidney deep cutting its outer border and causing retroperitonial bleeding. This stomach contained digested fluid. Rest of the organs of the body were pale looking and normal."
9. The doctor also opined that the external injury No. 3 was sufficient to cause death in the ordinary course of nature. He also further said that the cause of death was haemorrhage and shock as a result of stab wound in the chest.
10. This evidence of the doctor has not been challenged by the learned counsel for the appellant.
Nor we see any reason not to believe it. Hence we find that the prosecution has proved beyond all reasonable doubt that the deceased was killed.
11. To connect the appellant with the crime the prosecution relies on the ocular testimony of P. W.
Mst. Sardaran Bibi supported by that of P. W. Sattar Masih, securing of bloodstained clothes of the appellant, production of blood-stained knife by him, judicial confession of the appellant and the pointing out the shop of Adam from where the appellant is alleged to have purchased the knife, the crime weapon.
12. P. W. Mst. Sardaran Bibi has supported the prosecution and implicated the appellant for the present crime. Inter alia she deposes that on the night of the incident she and the deceased went inside the Laboratory as the deceased had come back from a round. He told her that he had some trouble in the stomach and that he would go for urinating. He went out and was coming back when the appellant appeared there suddenly and caught hold of the deceased, whereafter he stabbed the deceased in the stomach several times. Cries were raised by P. W. Mst. Sardaran Bibi and the appellant started running away. On her cries P. Ws. Sattar Masih and Ahichi Masih also turned up.
13. P. W. Sattar Masih inter alia deposes that he woke up on the cries of P. W. Mst. Sardaran Bibi at about 4 or 4-30 a.m. She was crying that Sabir Masih was killing Qaimdin deceased. The deceased and P. W. Mst. Sardaran were sleeping in room No. 2 in the Laboratory. This witness went there and saw the present appellant running from the back door and he alleges that he identified him but since this witness saw the appellant running away from his back it is quite possible that he may not have been able to recognize him as such his evidence is excluded from consideration. As regards P. W. Mst. Sardaran Bibi it appears that she has seen the offence being committed by the appellant as she was with the deceased at that time and ordinarily there would be no reason not to rely upon her word but it appears from the evidence that she is of bad immoral character. Therefore, we consider that unless there is corroboration of her solitary word should not be relied upon. This corroboration we find is furnished by the other evidence which will be discussed hereafter. The learned counsel for the appellant has also not been able to challenge the evidence of P. W. Mst.
Sardaran Bibi on any other ground.
14. The next piece of evidence we have is the production of knife by the appellant. On this point we have the evidence of mashir Amir Khan (P. W. 3) and the evidence of S. H. O. P. W. Abdur Rabb Siddiqul. Both these witnesses state in their evidence inter alia that the appellant on interrogation volunteered to produce the knife from a house in Future Colony and he actually led the Investigating Officer and the mashirs to the house of Inayat Bibi and produced the knife from heap of dungs just near the door. The knife was taken into possession under a mashirnama Exh. 10 as it was found to be blood- stained. There appears no reason not to rely upon this evidence nor the leamed counsel for the appellant has been able to challenge it successfully.
15. Next piece of evidence is the securing of the clothes of the appellant, i.e. his pant and bush-shirt which were found to be blood-stained. On this point we have the evidence of mashir Ghulain isamdani (P. W. 4) and A. S. I. P. W. Zar Mohammad. Both these witnesses say that when the appellant was arrested his bush-shirt and khaki pant appeared blood-stained which were secured under a Mashirnama Exh.
12. There appears no reason to doubt this evidence nor the appellant's counsel has been able to discredit it. It is, therefore, clear that the blood-stained clothes were secured from the person of the appellant.
16. The next piece of evidence is the judicial confession cf the appellant which is as follows :-- "Qaimdin was maternal uncle of my wife Sardaran. They both had illicit connections among themselves. One person told me after several days i.e. after 20 or 25 days the name of that person is Inayat. My wife Sardaran had become ill. She told me that I should send her to Qaimdin, her maternal uncle.
I sent her. When I went to take her back, they both were talking against me among themselves. I came back and told the same to my men. Thereafter I went to the house of Qaimdin with a 'panchayat' at all and said that he would not send back Sardaran and on the contrary he got a suit for maintenance filed against me by Sardaran. Suraiya Ahmad Pai the Magistrate, got the same compromised and sent Sardaran w.ith me. A few days after Sardaran took my Rs. 500 and again ran away to Qaimdin her maternal uncle. I again consulted my men who advised me to leave her as she was a bad woman and I should obtain my daughter Irshad. After 4-5 days I went to take Irshad and I found Qaifndin tying his 'Dhoti' after having committed sexual intercourse while the Shalwar of my wife was quite below. Having seen this, I could not control and Qaimdin got struck with the knife from my hand. Sardaran ran away. After receiving knife, Qaimdin fell down. I heard through the police that Qaimdin had died. After stabbing knife, I ran away and came to Saddar. I was arrested the next day at 8-00 a.m. I killed Qaimdin out of 'Ghairat!."
It will be seen from the confession that the appellant admits having killed the deceased but he pleads grave provocation for which there is no evidence on record to support his case nor even any of the witnesses were cross-examined on this point. This plea of grave provocation is, therefore, not substantiated. The confession has been recorded by Mr. Mohammad Abdul Bari Khan, A. C. No. 13, Karachi after due observance of all the formalities required by law to do so. It, therefore, appears to be voluntary. However, the admission of the appellant that he killed the deceased can only be made use of from his confession.
17. The last piece of evidence against the appellant is that . lie pointed out the shop of Adam (P. W.
13), from whom he is alleged to have purchased the knife. P. W. Adam has himself been examined and he states that the appellant had purchased a knife from him two or three days before. His shop was pointed out by the appellant. The evidence of rnashir Abdul Ghaffar (P. W. l2) is also to the same effect. Of course the statement of the appellant that he informed the police that he had purchased the knife from P. W. Adam is not proved because rnashir P. W. Abdul Ghaffar does not support the prosecution on this point. Another rnashir Abdul Karim has also been examined by the appellant in his defence, who also states the same thing as rnashir P. W. Abdul Ghaffar. So that this much is proved against the appellant that P. W. Adam stated to the police that the appellant had purchased the knife from him 2 or 3 days before the appellant was taken to his shop. This evidence also has not been discredited by the learned counsel for the appellant and we see no reason not to rely upon it.
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19. For the foregoing reasons the appeal of the appellant is dismissed and his death sentence is confirmed. The reference is, accordingly accepted. .