1. This criminal appeal under section 410, Cr.P.C. Is directed against the judgment dated 13th June, 1988 of Vth Additional Sessions Judge (South) Karachi, whereby he convicted the appellant Muhammad Younus under section 302, P.P.C. And sentenced him to imprisonment for life and pay fine of Rs.6,000 in default to suffer R.I. For one year more. In case the fine is recovered the half of the same has been ordered to be paid to all the heirs of the deceased in equal share.
2. The facts of the prosecution case are that on 9-8-1983 at 15-00 hours Abdul Shakoor, Muhammad Nawaz Baboo and Yar Muhammad were sitting in a hotel when they heard cries of Chaman, wife of Muhammad Younus. They rushed to the house of Chaman Begum and found blood flowing through the door. They scalled over the wall of the house and saw that Muhammad Younus was having Toka (meat cutter) and Chhuri in his hands and was causing injuries to his wife while his daughter and minor son were lying near the main door of courtyard in injured condition and were bleeding. They asked Muhammad Younus to come out otherwise he would be caught. In the meanwhile so many peoples of Mohallah collected to which Muhammad Younus could not escape and he threw both the weapons in the room. He was apprehended and brought at the Police Station Baghdadi, Karachi, where Abdul Shakoor lodged report at 15--45 p.m. For committing murders of Mst. Chaman Begum and child Tauseef and Alya. Police during the investigation challaned the appellant. The case proceeded and appellant in his 342, Cr.P.C. Statement (Exh.40) stated as under:- Q. Why are the P.Ws. Deposing against you?
2. A. They are friend of my in-laws and deposing at their instance.
3. Q.Do you wish to say anything else?
4. A.I am innocent. My wife was on illicit terms with one Shari. I saw them in compromising position prior to this. I asked my wife and my mother-in---law to mend their ways. On the day of incident when I entered my house my children informed me that my wife was in the room with Shari. I opened the door forcibly and found both of them naked and in compromising position. I went and brought Holy Qur'an to my wife. Meanwhile Shari ran away with his Shalwar. I asked my wife not to do such act in future at the name of Holy Qur'an but she kicked the Holy Qur'an, which fell on ground from my hand. I, therefore, went out of my possession and I could not control myself and I lost my senses due to grave and sudden provocation of seeing my wife naked with paramour and also when she kicked the Holy Qur'an. I took some weapons which were lying near me, started giving blows out of senses to my wife. I do not know when my daughter and son came in-between me and my wife and how I killed them. According to Qur'an the person who insults the Holy Qur'an is liable to be killed have obtained such paper torn) (Fatwa) from Mufti Wali Hassan of Jamia-Al- Uloom Alama Banori Masjid. I produce the same as Exh.40-A. I am an old man of about 70 years and also a patient of T.B. I have also 4 children to look after. I pray for mercy."
5. His statement on oath was also recorded as provided under section 340 subsection (2) of the Cr.P.C. In which he also admitted to have killed his wife and pleaded that he found his wife in compromising position with one Shari, who ran away. He also stated that his wife insulted the Holy Qur'an.
3. The charge was framed on 29-10-1983 by the Additional Sessions Judge, Karachi (Exh.5), to which the appellant pleaded not guilty.
4. The evidence against the appellant consists of the following circumstances:-- (i)Ocular testimony; (ii)Recoveries; (iii)Judicial confession.
5. Complainant Abdul Shakoor (Exh.6) has supported the case as given in the First Information Report (Exh.7). He has stated that on the cries from the house of the appellant he alongwith Baboo and Yar Muhammad and Muhammad Nazir rushed to the house of the appellant, where he was holding Toka and Chhuri and had caused injuries to Mst. Chaman Begum, Alya and Tauseef. They caught him and took to the police station and lodged the report. He stated that appellant under arrest came alongwith police at the place of incident where 3 dead bodies were lying. The Wardat was shown to the police from where blood--stained clothes, Toka and Chhuri were secured and Mashirnama was prepared, which he produced as Exh.8. Hi; has produced Mashirnama of arrest as Exh.9.
6. Baboo Rasheed (Exh.12) has corroborated the version as given by the complainant and stated that they scaled over the wall and got the door opened and found dead bodies in the house of the appellant. He was armed with Toka and Chhuri. The clothes of the appellant were stained with blood. They caught him and took to the Police Station Baghdadi, where Abdul Shakoor lodged report. He also stated that he was also Mashir of Wardat.
7. P.W.3 Muhammad Nawaz (Exh.4) and Yar Muhammad (Exh.15) have also supported the case of prosecution.
8. P.W.5, Muhammad Jamil is a Mashir of inquest of dead body of Mst. Chaman Begum, Alya and Tauseef. He has produced inquest report as Exhs.17, 18 and 19.
9. Dr. Muhammad Faraz (Exh.30) conducted the post-mortem of the dead body of Mst: Chanlan, wife of the appellant and found following 14 injuries:- "(1)Incised wound 4-1/2" x 1" O/D x B/D over left parietal region.
10. (2)Incised wound 3" x 3/4 x T/D x C/D over right parietal region.
11. (3)Incised wound 3-1./2 x 3/4 x O/D x- C/D over right tempero parietal region.
12. (4)Incised wound 7-1/2 x 1" x 1/4" x C/D from left lateral eye canthus via temporal region upto left occipetal region.
13. (5)Incised wound 7" x 1/4" from left angle of month across face, cutting left ear pinna 2 halves into mastoid region with fracture of left maxilla, mandible and mastoid bones.
14. (6)Incised wound 7" x 1-1/2 from left angle of mouth laterally downward upto left lateral and upper side neck with fracture of mandible and transverse process of third cervical vertebra.
15. (7)Incised wound 1/2" x 1/2" over right chin x M/D.
16. (8)Incised wound 5" x 1-1/2" over left lateral and posterior side neck into O/D X M/D.
17. (9)Incised wound 3" x 1/2" posterior aspect lower part of neck x M/D.
(10) Incised wound 1' x 1/4" over posterior aspect right shoulder in transverse directions.
(11) Incised wound 5" x 1"bone deep over upper part body of right scapula x O/D.
(12) Incised wound 2" x 1/2" M/D x OD right lower arm middle part.
(13) Incised wound 3" x 1/4" x M/D x O/D over dorso lateral aspect right hand.
(14) Incised wound 1/2" x 1/4" right upper arm lower lateral aspect x M/D x O/D.
18. All the above injuries were ante-mortem."
19. He has stated that in his opinion death was caused due to acute head injuries resulting from blow by sharp-edged heavy substance as Toka or axe etc. He found following 14 injuries on Mst. Alya daughter of appellant, who was about 15 years old-- (1)Incised wound 3-1/2 x 1/2" B/D left parietal region front and lateral side.
20. (2)Incised wound 1-1/2" X 1/4" x M/D left parietal region medial aspect middle parts.
21. (3)Incised wound 3" x 1/2" x M/D left parieto frontal region medial aspect x V/D.
22. (4)Incised wound 4" x 2" x C/D over body of sternum and both sides into the front of chest in the fourth intercostal space in transverse direction.
23. (5)Incised wound 3" x 2" x O/D over right scapular region into B/D.
24. (6)Incised wound 1" x 1/2" x M/D over left scapular region over its upper border in transverse direction.
25. (7)Incised wound 8-1/2' x 3" over right hypochondrium and right lumber region x C/D x O/D.
26. (8)Incised wound 5" x 3" over left forearm upper half x O/D over its flexor and medial aspect x M/D.
27. (9)Incised wound 4" x 3" left forearm and covering over its flexor medial and extensore surfaces x M/D in its middle and upper third.
(10) Incised wound 2-1/2" x 1" x M/D on left forearm upper third of extensor surfaces.
(11) Incised wound 1-1/2" x 1/2" x M/D over dorsal aspect right wrist x T/D.
(12) Incised wound 1/2" x 1/4" x M/D upper part palmer aspect left little ringer middle phalynx.
(13) Incised wound 3/4" x M/D lower part palmer aspect of left right finger middle phalynx.
(14) Incised wound 3/4" x 1/4" x M/D lower part palmer aspect left middle finger middle phalynx.
28. He also conducted post-mortem of a boy Tauseef aged 3 years and found following 2 injuries:- (1)Incised wound 4-1/2" x 1-1/4" x T/D over and cutting (fracture) of 11th thoracic vertebra at the back and on the both left and right sides of chest and abdomen respectively. Loops of small intestine were lying out on the abdomenal wall posteriorly.
29. (2)Incised wound 1/2" X 1/4" x T/D and M/D on right side abdomen about 1" above umbilicus and near the midline.
30. All the above injuries were ante-mortem."
31. The injuries on Alya and Tauseef were by sharp-edged heavy weapons and cause of death was due to the injuries as mentioned in the post-mortem report.
32. Dr. Asudomal Khemani (Exh.33) examined the appellant on 9-8-1983 at 11-40 p.m. And found following injuries:- (1)"Incised wound 3" x 1/4" x skin deep x obliquely transverse in direction with tapering ends over the left hypochondrium.
33. (2)Incised wound 1-1/2" x 1./4"'transverse in direction skin deep 1/2" below the injury No.1.
(3) Incised wound 1/2" x 1/10" x vertical in direction epidirmis deep, connecting both incised wounds.
(4) Swelling 1-1/2" x 1" over the right parietal region with three abrasion 1/4" x 1/4" size.
(5) Contusion 2" x 1-1/2" over front of middle of left thigh."
34. According to doctor injuries Nos. 1, 2 and 3 by sharp-edged weapons and could be self-inflicted while injuries Nos.4 and 5 were result of hard and blunt substance. The injuries were simple in nature.
35. P.W.9, Nazar Muhammad, the Additional City Magistrate, recorded the confession of appellant on 13th August, 1983. He has stated that he gave 2 hours' time to the appellant and repeated warnings that he is not bound to make confession in spite of that voluntarily made a statement which he recorded and finally remanded the accused to judicial confession.
36. P.W.6 Kh. Nasir Ahmad (Exh.21) is the Investigating Officer. He has stated that on 9-8-1983 he was posted as S.H.O. Baghdadi Police Station. On that day Abdul Shakoor brought the appellant alongwith the other witnesses. He recorded his First Information Report (Exh.7) and arrested the appellant in their presence. He secured the blood-stained clothes, Toka and Chhuri in presence of Abdul Shakoor and prepared Mashirnama (Exh.9). He then proceeded to the place of incident, which was in the house of the appellant where he found dead bodies of a boy and the girl in the courtyard. The dead body of wife of the appellant was in the room. He recovered Toka and blood- stained Chhuri from the place of incident and also secured the blood from the Wardat and prepared Mashirnama. He prepared inquest reports (Exhs.17, 18 and 19) of Mst. Chaman, Alya and master Tauseef in presence of Mashir and sent the dead body to the Civil Hospital for post- mortem. He examined Baboo Rasheed, Yar Muhammad and Muhammad Nawaz, Muhammad Asif and Muhammad Jamil. The appellant was produced before the Additional City Magistrate for judicial confession. He has produced a chemical report as Exh.25.
6. I have heard Miss Wajahat Niaz, Advocate for the appellant. It is argued by the learned counsel that appellant has committed murder of Mst. Chaman under grave and sudden provocation as he found his wife in compromising position with one Shar. It is argued that he is liable to be convicted under section 304, P.P.C.
37. Mr. M.A.I. Qarni, appearing for the State, has argued that case of the appellant requires leniency in sentence.
7. In this case, there is an overwhelming evidence against the appellant. Complainant Abdul Shakoor, Baboo Rashid, Yar Muhammad and Muhammad Nawaz are independent persons and they all have supported the case. They immediately went to the place of Wardat and found the appellant having Toka and Chhuri in both hands respectively. The dead bodies of Mst. Chaman, Alya and Tauseef were lying in the house. The appellant was caught red handed with blood- stained articles. He was taken to the police station by these independent witnesses. There is no reason to disbelieve their evidence. The blood-stained clothes were secured from the appellant.
38. Crime weapons Toka and Chhuri were found at the place of Wardat and according to the report of Chemical Examiner these articles were stained with human blood. The medical evidence fully supports the ocular testimony furnished by 4 witnesses, From the medical evidence, it is apparent that appellant has committed 3 murders in cruel manner in his house. He gave confession and also admitted to have committed the murders in confession in 342, Cr.P.C. Statement as well as in 340, subsection (2), Cr.P.C. Statement recorded on oath.
8. The plea advanced by the appellant is that he found his wife in compromising position with one Shafi does not get support from any circumstances. Complainant and the witnesses rushed at the Wardat immediately and they were not informed about this situation. Had it been so, there was no reason for Abdul Shakoor not to disclose this fact in the F.I.R. He has admitted in his statement that blood-stained clothes were secured and complainant and others entered in his house while he was having Toka and Chhuri in his hand, but stated that he voluntarily took them to the police station. This is a case where appellant has also committed murder of his own daughter Alya aged 15 years and an innocent child, therefore, his plea of grave and sudden provocation is unbelievable and cannot be accepted. Learned Additional Sessions Judge has taken all the factors into consideration and it was argued by the learned counsel for the appellant that he is 70 years old.
39. There may be mitigating circumstances under which he committed the murders; therefore, lesser sentence of imprisonment of life has been awarded. The case under section 302, Cr.P.C. Against the appellant has been proved beyond reasonable doubt.
40. The appeal, having no force, is dismissed.
41. N.H.Q./M-768/K