AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Karachi, for an offence under section 302, P.P.C. And sentenced to death. There is a reference from the learned Additional Sessions Judge, as required under section 374 of the Code of Criminal Procedure, and there is also an appeal filled by the appellant. The refer--ence and the appeal will be disposed of by this composite judgment.
2. Mst. Kulsum alias Kulla, residing in Ibrahim Hyderi, had been married to one Aboobakar. A son by the name of Younus was born from the said wedlock, ending In a divorce. The father of Mat. Kulsum, by profession a fisherman, was alive, but, for sometimes she had stayed, as she says, with a 'Saheli' of her, and it was during that stay that she had come across the present appellant. It appears that the appellant was prepared to keep her in his house as a mistress, but Mst. Kulsum wanted to share big roof as a duly wedded wife. The appellant was not agreeable to the latter proposal, and was persuading her to accompany him to his house. This proposal was spurned. It transpires that the appellant had detained the son of Mst. Kulsum at his house to force the issue, but that did not weaken the resolve of Mst. Kulsum. On the 16th of July, 1971, Mst. Kulsum had come to a hospital at Kagzi Bazaar, Karachi, to see her aunt, who was admitted there. She had taken a bus to travel back home. When the bus bad reached near about the Spencer's Eye Hospital, the appellant, who had boarded same bus, came to the ladies Compartment, where Just. Kulsum was sitting, and dealt her a number of knife injuries. The bus was stopped, but the appellant made good his escape. P. Iii.
Abdur Razzaq, the driver of the bug, took Mst. Kulsum on the bus to Napier Police Station to report the incident, but was informed that it was the Risala Police Station, which had the jurisdiction In the matter. However, as the condition of Mst. Kulsum appeared to be precarious, P. W. Abdur Razzaq took her on the bus to the Civil Hospital. A message about the condition of Mst. Kulsum was given to the Risala Police Station, which was recorded in the Station Diary. And a copy of the same was handed over to S. I. P. Shamim Ahmed. The latter immediately proceeded to the Civil Hospital, and recorded the First Information Report of Mst. Kulsum. The same was later transcribed by S. I. P.
Shamim Ahmed in the book maintained under section 154 of the Criminal Procedure Code with himself as the complainant. S. I. P. Shamim Ahmed had also visited the ' wardat' and inspected the bus, and secured the blood stains from the scene of the offence, for which he prepared a 'Mashirnama'. The investigation, thereafter, was taken over by S. H. O. Siranjam Khan at about 8-00 p. m. He proceeded to the 'Wardat', and made enquiries from a few witnesses. Mst. Kulsum suc-- cumbed to her injuries in the hospital, and the information reached the S. H. O. On 17-7-1971. The S. H. O. Had proceeded to the hospital and prepared the inquest report. Thereafter, be examined P.
Ws. A.I Moham--med, Ayoob and Mohammed alias Badar. On 18-7-1971, he arrested the appellant.
The latter is stated to have taken the S. H. O. And the mashies to the house of Mst. Zainab, and produced a knife and some clothes, which were blood-stained. The S. H. O. Then made enquiries from Mst. Zainab, Mohammed Siddiq and Ghulam Mohammed Shad. The blood stained articles were later sent to the Chemical Examiner. On 30-7-1971, it is alleged that an identification test of the appellant was held in the Central Prison, Karachi, through Abdur Razzak and A.I Mohammed. The case, in due course, came to be challaned.
3. The appellant in his statement at the trial denied the various allegations made against him. He, however, admitted that, on 18-7-1971, he had visited Syed Ghulam Mohammad Shah, but it was only to collect his dues. The latter was annoyed with him because of these demands and rang up the police authorities. In reply to the question, as to why the witnesses were deposing against him, he stated that it was at the instance of Syed Ghulam Mohammad Shah, or, rosy be that of the investigating authorities.
4. As to the death of Mst. Kulsum, apart from the oral testimony in the case, there is also the deposition of Dr. Mohammad Umar Khan, who had held the autopsy. According to him, the injuries on the person of the deceased were as follows :-
(1) Incised wound on left cheek -- below eye transverse oblique in direction 3' long which was stitched and after removing the stitches it was 1/4' broad and muscle deep.
(2) Incised wound over right side chest at 8th intercostal part of body 2-- lateral to mid eternal line.
It was stitched and after removing the stitches it was found 3/4' x 1/4' cavity deep.
(3) Incised wound left epigastric region and chest, vertical oblique in direction 2--x -- x cavity deep and sixth and seventh costal carnage was also cut.
(4) Incised wound lower chest and upper abdomen stitched and was about 3' x --' x cavity deep.
(5) Incised wound over abdomen stitched 1' x 1/4' x cavity deep.
(6) Incised wound right lower thigh on medial side 1'x 1/4'x muscle deep.
(7) Incised wound paramedian stitched 16' long (it was of operation).
(8) Incised wound transverse at middle of chest on left side 10 long and was stitched (it was of operation).
According to him, the injuries had been caused by a sharp-edged Weapon like a knife, and death had occurred as a result of haemorrhage and shock due to multiple stab wounds. Injuries Nos 3 and 4 collectively and individually were sufficient to cause death in the ordinary course of nature.
5. The ocular testimony has been furnished by P. Ws. Abdur Razzak, A.I Mohammad, Mohammad Siddiq and Mohammad alias Badar. Abdur Razzak was the driver, and A.I Mohammad, the conductor of the bus, on which the incident is alleged to have taken place. Abdur Razzak bad stated that, when the bus had reached nearabout the Spencer's Eye Hospital, the appellant proceeded towards the ladies compartment, and started giving knife injuries to a lady sitting there, Once the hue and cry had been raised, he got down, but the appellant jumped from the bus and took to his heels. He had taken the bus to the Napier Police Station, and from there to the Civil Hospital, where Mst. Kulsum was taken on a stretcher to the doctor, on duty. He had been examined at the Hospital, arid also accompanied the Police Party to the 'Wardat'. After a month, he had been called for an identification test at the Central Prison, Karachi, where he had picked up the appellant. In cross-examination, however, he conceded that he had not seen the face of the appellant, and that two three days after the incident, he had been taken to the Police Station, where the appellant was shown to him. A.I Mohammad mentions seeing the appellant running away after getting down from the bus. He admitted that he had stated at the court of enquiry that he had seen the appellant only at the time of his getting down from the bus. Anyway, there is note that he had said so. However, he also mentions that the appellant had been shown to him/two three days after the incident at the Police Station. According to the S. H. O. Siranjam Khan, there was an identification parade held as late as 30th July, 1971. However, neither the Mashir nor the Magistrate, who supervised the parade, had been examined. Anyway, the fact, that Abdul Razzaq was the driver and A.I Muhammad was a conductor of the bus, will leave no manner of doubt that the attack took place at the time and place as mentioned by them.
6. Muhammad Siddiq and Muhammad Badar state to have been travelling by the bus. In question.
Muhammad Siddiq states that the screams from the ladies' compartment having been raised, he got up from his seat, and saw the appellant stabbing Mst. Kulsum, who was known to him before.
He had tried to catch hold of the appellant, when the bus has stopped, but all in vain. From there, he had taken a taxi to Ibrahim Hyderi, and broken the news of the tragedy to A.I Muhammad, the father of Mst. Kulsum. Thereafter, he had left for his home, and was examined by the Police the next day. He denied that he was related to the deceased, but admitted that he knew A.I Muhammad from his childhood. He could not give the name of any passengers. Nothing could be elicited from him in cross-examination. It is true that he was examined by the Police the next day, but, as he was just aft acquaintance, he might have been reluctant to return from his house after breaking the news to A.I Muhammad. Muhammad Alias Badar also was on the bus at the time of the incident.
His version approximates with that of Muhammad Siddiq. He knew the appellant from before, and was also known to the father of the deceased with whom he was on visiting terms. However, there is nothing to show that there were any closer ties. He was examined by the police two days after the incident. There is no mention of his name in the dying declaration made by Mst. Kulsnm either.
He also states to have gone to break the news to the uncle of Mst. Kulsum. However, there were a number of passengers on the bus, and we need not look askance at their evidence, because of the delay in the inquiry from them, or the non-mention of their names in the First Information Report.
There is nothing to show that Mst. Kulsum also knew them.
7. Then, there is the dying declaration made by Mst. Kulsum. This was recorded by S. I. P. Shamim Ahmad at the Civil Hospital between 7.00 and 7-30 p. m. It was also signed by Dr. Ghulam Sarwar, but the latter had not been produced. However, a dying declaration may even take the form of a First Information Report, as in the present case, or, a statement before the Police recorded under section 161 of the Code of Criminal Procedure. It was recorded under section 154 of the Criminal Procedure Code, and no fault can be found with the same, as the entry in the Station Diary will not constitute a First Information Report, looking to its contents. Mst. Kulsum was taken straight to the Hospital. There is nothing to show that she was accompanied by any relation. No such suggestion was made to any of the witnesses examined at the trial. P. W. A.I Muhammad, the father of Mst.
Kulsum, states to have reached the Civil Hospital at about 9.00 a. m. It was not even suggested to S. I. P. Shamim Abroad that any prompting was involved from any quarter. The dying declaration is sufficiently detailed, and shows that the appellant was unhappy with Mst. Kulsum, as she had declined to join his roof as his mistress. Even P, W. Syed Ghulam Muhammad Shah, as we shall see later on, states that the appellant had visited him a few days before the days before the incident, and bad requested him to exercise his good offices for the restoration of Mst. Kulsum to him, who he called as his wife. His evidence also shows that the appellant had visited him on the 16th of July, 1971, and apprised him that Mst. Kulsum was in the town, visiting a relation of her. The narration of events mentioned in the dying declaration is coherent, and the facts mentioned therein could certainly not be known to anybody else at the time it was recorded. It is true that Abdul Razzaq and Alt Moham--mad had mentioned that Mst. Kulsum had become unconscious after the attack, but looking to the physical environment and circumstances of the case, it would appear that she regained consciousness to have made the statement that she did make, which also finds support from independent quarters. It has, therefore, to be acted upon, which, by itself, is sufficient to drive the guilt home against the appellant.
8. There is also the evidence of extra-judicial confession by Syed Ghulam Muhammad Shah. He is the managing partner of Kalandari Transport Company, with his office at Lea Market. He bad deposed that he knew the appellant since five years before the incident, as he had worked as a conductor with Howkna Bus Transport. In 1971, he had complained against his in-laws and sought assistance of the restoration of his wife, Mst. Kulsum, who lived in Ibrahim Hyderi. Shorn of further details in regard to what he had done in the matter, he had deposed that the appellant continued visiting him off and on, and had also come on 16-7-1971, at about 4.00 p. m. At his office and told him that his wife had come to Lea Market, and that he should do something for him. The witness had deposed that he evinced no interest in the matter, and gave Rs. 2-00 to the appellant to have his meals. It might be mentioned that the incident took place an hour, or, so later on this very day.
Again, the appellant is stated to have turned up at his office on 18-7-1971, and apprised him that be had killed his wife, and that he should be produced before the Police. It was thereafter that he had sent a man to the Napier Police Station, and the appellant had been apprehended by S. H. O. Aziz- ur-Rahman of the said Police Station.
5. H. O. Aziz-ur-Rehman also had been examined in regard to that matter. A suggestion was made to him in cross-examination that the appellant was working in his Transport Company, and that a salary of two months had still remained unpaid, and that it was on this account that he had got him falsely involved in this case. The suggestion came to be denied. It is noteworthy that the appellant in his statement at the trial did admit that he bad been at the office of Syed Ghulam Muhammad Shah, but it was to recover his dues, and it was then that Syed Ghulam Muhammad Shah rang up the Police. The appellant had also examined a defence witness by the name of Baboo to lend support to the suggestion referred to earlier. D. W. Baboo was testified that about two years earlier, he had parked his bus in Lea Market, and had seen the appellant exchanging harsh words with Syed Ghulam Muhammad Shah. The appellant hail told him, on his queries, that Syed Ghulam Muhammad Shah was denying him the wages for three/four days. Thereafter, he had gone back. Suffice it to say that his name has not been introduced by the appellant in his statement at the trial Court. He had been rightly disbelieved for the precious little that he had to say. Syed Ghulam Muhammad Shah was the managing partner of a Transport Company, and the appellant. Who bad worked as a conductor earlier, decided to make a clean breast before him. It is an admitted position that the appellant was present with him when S. H. O.
Aziz-ur-Rahman nabbed him. Looking to the attending circumstances, it is safe to rely on the evidence of Syed Ghulam Muham--mad Shah.
9. The last piece of evidence against the appellant is the production of the knife and his blood stained clothes soon after his arrest. These incriminating articles which are referred by the Chemical Examiner, to be stained with human blood had been produced from the house of Mst.
Zainab, who also had been examined. She had stated that the appellant was known to her since childhood and used to call her his aunt. He had come to her two days earlier in the morning time, when she was leaving for work, and asked her to keep his clothes, She had allowed him to do so.
Thereafter, both of them had left the house. The next day, tile appellant bad come in handcuff's with a Police Party and demanded back his clothes. Eventually, the same were collected by the appellant and produced before the Police. Nothing smacks of any strains, or, embellishment in the version of this witness. Nor can any fault be found in the testimony of the Mashir, namely Mahboob Khan. Under the circumstances, this confirmatory circumstance is not open to any exception.
10. The findings of the trial Court, under the circumstances, cannot be assailed. There are no mitigating circumstances. Mst. Kulsum as the record shows, was not his duly wedded wife, and, even if she was the duty wedded wife, she could not be cut to pieces, if she did not want to go back with the appellant. It was a cold, calculated murder of a most diabolic nature. The appellant must, therefore be visited with the supreme penalty under the law, as was done, I will therefore, affirm the conviction and sentence, accept the reference and dismiss the appeal.