1. ABDUL HAFEEZ MEMON, J.-Appellant Abdul Latif son of Ghulam Muhammad has been convicted under section 302, P. P. C. And sentenced to death by the Additional Sessions Judge, Karachi for committing murder of his wife Mst. Naima. The appellant has appealed against his conviction and the case is also before us for confirmation of sentence of death passed on the appellant. By this judgment we propose to dispose of the appeal as well as the reference.
2. Prosecution cast was that on 7th October 1969, Mst. Janat had returned to her Jhuggi after selling milk and was sitting on her takhat when, at about 2-30 p.m. Deceased Naima came rushing inside the but of Mst. Jannat and asked her to save her as the appellant, her husband, was coming behind her and would kill her. Immediately thereafter, Mst. Janat saw that the appel--lant came from the road side and stabbed Mst. Naima and thereafter ran leaving the churri at the place of incident. On her cries P. Ws. Mahboob A.I, Mir Zaman and Khawas Khan ran after the appellant and caught him at little distance from the scene of offence and brought him there. P. W. Khawas Khan went to the police station and lodged the report which was recorded by S. H. O. Ghulam Rasool. The S. H. O. After recording the F. I. R. Reached the wardat where he secured the blood stained churri near the dead body, arrested the appellant who was held by P. W. Mir Zaman and others, got the appellant's blood-stained clothes removed and sent him to the hospital for examination as he had some scratches on his face and then recorded the statements of the witnesses and sent the secured article to the chemical analyser which were found to be stained with human blood.
3. After investigation was completed, the appellant was challaned and com--mitted to the Court of Sessions for trial. At the trial, the prosecution relied upon the evidence of (i) Mst. Janat, who had seen the appellant causing injuries to the deceased, (ii) Mst. Ghulam Fatma, who lived in a but near to Mst. Janet and saw the accused running away after stabbing the deceased, (iii) Mahboob A.I, Mir Zaman and complainant Khawas Khan who had given chase to the appellant and caught him and brought him to the wardat, (iv) recovery of blood-stained knife from the scene of offence,
(v) presence of human blood on the clothes of the appellant, (vi) extra judicial confession made by the appellant to P. W. Mahboob A.I to the effect that he had killed the deceased because she was of a bad character and (vii) presence of minor injuries on the person of the appellant.
4. 'The defence of the appellant at the trial was one of denial and false implication at the instance of his father-in-law Abdul Samad who was a police constable at the New Town Police Station. He denied to have been caught by the witnesses at the wardat or thrown the knife near the dead body and stated that he was not even present at the wardat. About his blood--stained clothes and injuries on his person, he explained that he was beaten by the police at the police station and hence the blood on his clothes and injuries on his person. He also denied to have made any extra judicial confession to Mahboob A.I. He did not lead any defence.
5. The trial Court did not rely on the evidence relating to extra-judicial confession, presence of blood on the clothes of the accused and the injuries on the person of the accused. It, however, considered the other evidence of the witnesses who had seen the accused causing the injuries to the deceased and those who had caught the accused immediately after the incident reliable and convicted the appellant.
6. The main evidence against the appellant is the ocular testimony of P. W. Mst. Jannat. She has deposed in her evidence that she had returned to her but after selling milk and was sitting on a takhat when deceased Naima came to buy milk. As she entered, she asked her to save her from her husband who was coming after her to kill her. She then saw that the appel--lant came from the road-side and gave knife blow to the deceased on her stomach when she was 3-4 feet away from her. Mst. Naima fell down and the appellant started to run leaving the churri at the wardat.
7. She raised cries which attracted many people who ran after the appellant and caught him. She identified P. W. Mahboob A.I as one of the person who had chased and caught, the appellant. She was cross-examined at length but nothing material was brought out in her cross-examination, save some minor contradictions. One contradiction brought out was that whereas she had stated in her statement to the police that often there used to be fight between the deceased and the accused so that since about six months before the incident, the appellant was residing in P. E. C. H.
8. S. And his wife went to live with her father; she denied at the trial to have made such a statement.
9. Another contradiction brought out was that whereas she had stated to the police that deceased was coming from P. I. B. Colony, at the trial she denied to have made such a statement. Third contradiction brought out was that whereas in her statement to the police she had given the name of the appellant, she denied at the trial that she had given the appellant's name to the police.
10. The above contradictions are however, of no significance and do not detract from the evidentiary value of her evidence as to the main incident. She was an old woman and lived in the but where her presence at the time of incident has not been questioned. The deceased was at a distance of 3-4 feet only from her when she was stabbed by the appellant so that Mst. Janant had full opportunity of witnessing the crime and identifying the appellant. Also there is no reason why she would implicate the appellant by deposing falsely against him. She is neither shown to be interested in the deceased nor biased against, much less inimical, the appellant. Her evidence is natural, convincing and reliable and also stands substantiated by the recovery of the knife from the wardat and the apprehension of the appel--lant on her cries. Her evidence has, therefore, been rightly believed by the trial Court.
11. It was argued by the learned counsel for the appellant that she had weak eye-sight and for that reason could not have seen and identified the appel--lant. In support of his argument the learned counsel pointed out that Kist. Janant was asked to identify the article, a pen, lying on the Court bench, but she could not.
12. There is no force in the argument. She has stated in her evidence that the deceased was only 3-4 feet away from her when the appellant stabbed the deceased and that before being stabbed the deceased had told her to save her from her husband who was coming after her to kill her. She having been alerted and the deceased being within the distance of 3-4 feet, P. W. Mst. Jannat could very well have seen and identified the appellant. Besides, identifying a small pen lying on the bench at the distance of 5 feet, is quite different from identifying a man at a distance of 3-4 feet.
13. The learned counsel next argued that she was not an independent witness as she used to sell milk to police constable P. W. Abdul Samad, father of the deceased. The argument is without force. It being her pro--fession she would be supplying milk to number of persons. Does it mean therefore that, for that reason, even if she were in fact to witness any of her customers being stabbed or killed, she would be disqualified as non-indepen--dent witness? Answer can only be in negative. As pointed out by the Supreme Court in Bashir Ahmed v. Muhammad Azam (PLD 1969 SC 469), ultimately the acid test of the veracity of a witness is the inherent merit of his own statement.
14. The learned counsel then argued that the evidence of Mst. Jannat be ruled out of consideration as Mst. Ghulam Fatma, another witness, whose evidence will be presently considered, has not mentioned about the presence of Mst. Janet at the scene of offence. There is no substance in the argu--ment. What Mst. Ghulam Fatma has said in her cross-examination is that when she came out on the cries of the deceased, she did not see Mst. Janet at the time which cannot be taken to mean that she did not at all see Mst. Janet at the wardat. Next is the evidence of P. W. Mst. Ghulam Fatma. She has stated in her evidence that she lived in the but very near to the but of Mst. Janat.
15. She was in her house when on hearing the cries of "HAI BACHAO HAI BACHAO", she came out and saw the deceased holding her bleeding stomach with her hands. On enquiry, the deceased told her to catch the person who was running. She looked and saw the person running and identified him to be the present appellant. She also raised cries of "PAKRO PAKRO" and on hearing them several persons came, whereafter she fell unconscious. She was cross-examined at length but nothing material was brought out and her evidence has gone unscathed. She was, however, asked in her cross-examination whether she had stated in her statement before the Court of enquiry that it would be difficult for her to identify the man who was running away as she had seen his back only. She did not hesitate to admit having said so; but in the very cross-examination, she unhesitatingly stated that she had identified the person running away as he was looking back while he was running. She lived next door to the Mst. Janet and her presence in her house has not been doubted. She had come out on hearing cries and seen the deceased holding her stomach at a distance of 3-4 feet from her jhugee. She had seen the appellant running and had identified him as he was looking back while running and was at a near distance and had not gone far from the scene of offence. Then, she did not even know the deceased or the appellant so that she is not shown to be in any way connected with or interested in either party. There is, therefore, no reason for her deposing falsely against the appellant. Her evidence is natural, convincing, and reliable and has been rightly believed by the trial Court. Indeed, the learned counsel for the appellant had not much to say against this witness.
16. P. W. Mir Zairian's evidence is to the effect that he was having a cup of tea in the hotel of Ashraf Khan when he heard women raising cries that murder had been committed and the murderer was running away. He rats after the appellant followed by Khawas Khan. P. W. Mahboob A.I, who was ahead of them, caught the appellant and they brought him to the scene of offence. He was cross- examined but nothing material has been brought out in his cross-examination to discredit his testimony. The only contradic--petition pointed out by the learned counsel for the appellant was that whereas at the trial he stated that his quarter was fifth in line from the quarter of P. W. Mst.
17. Janet, he had stated before the Court of enquiry that his quarter was fourth in line and about 150 paces away from the quarter of P. W. Mst. Janet. Whether his quarter was fourth or fifth in line from the quarter of Mst. Janet, it has been established that he lived very near to the quarter of Mst. Janet and was taking tea at the hotel at a distance of about 300 paces from the scene of offence. His presence at the wardat was, there--fore, natural and cannot be doubted. His evidence has ring of truth in it and also stands substantiated. He was one of the persons who on hearing cries of women ran after the appellant and caught him along with P. W. Mahboob A.I and others and handed him to the police and it has come on record through P. Ws. Mst. Janet and Ghulam Fatima that they raised cries to catch the assailant and through P. W. Mahboob A.I that besides himself other persons also ran after the appellant and caught him. S. H. O.
18. Ghulam Rasool has also stated in his evidence that when he reached the scene of offence, he "found that the present accused was caught by the persons there namely, witness Mir Zaman and others". This witness appears to us to be an independent witness. He is not shown to be either interested in the deceased or biased against the appellant. He did not even know the appellant. It is, therefore, difficult to accept that he would depose falsely against the appellant on a capital charge. The suggestion to him by the defence that he was deposing at the instance of Abdul Samad is rather far-fetched. Consequently, be being an independent witness and his evidence being convincing and reliable, he has been rightly believed by the trial Court.
19. The evidence of Khawas Khan is practically the same as that of P. W. Mir Zaman. He was cross- examined at length. It was suggested to him in his cross-examination if he knew that the appellant was a tailor having his shop in PECHS to which he replied in the negative. When further asked if he had stated before the Court of enquiry that he personally knew that the appellant was a tailor master in PECHS. He replied that he did not remember having so stated. However, he was confronted with his statement before the Court of enquiry wherein he had stated that he personally knew that the appellant was a tailor master in PECHS. He was then asked if one Ashraf (presumably referring to the owner of the hotel was present in the hotel to which he replied that he could not say if he was there. He was then asked if he had stated before the Court of enquiry that Ashraf was present in the hotel, he replied that he did not remember to have so stated. He was, however, confronted with his statement before the committal Court wherein he had stated that Ashraf was present in the hotel. He was further asked if there was a gambling case filed in the New Town Police Station against him which was pending at the time when his statement before the committal Court was recorded. He admitted that there was a gambling case filed against him at the New Town Police Station but he was acquitted in that case. He, however, did not remember if that case was pending at the time he gave his statement before the Court of enquiry.
20. The learned counsel for the appellant argued that in view of the con--tradictions and the fact that he was involved in a gambling case by the same police station, his evidence was not worthy of reliance and it be kept out of consideration. The contradictions pointed out by the learned counsel, however, are not material and do not affect the testimony of this witness. He had a Karyana shop and a hotel near the scene of offence and he knew the appellant who lived in a jhugge one furlong away from his hotel. His presence at the hotel of Ashraf where he was taking tea stands corroborated by P. W. Mir Zaman. Nothing has been brought on record to show that either he was inimical to the appellant or interested in the deceased. Even if a gambling case had been filed against him and was pending, it seems rather difficult to believe that he would for that reason depose falsely against the appellant on a capital charge. In any case, his is not the only word on this important piece of circumstantial evidence so that, even if his evidence is kept out of consideration, the testimony of P. Ws. Mahboob A.I and Mir Zaman, who have been held to be reliable is enough to implicate the accused on this piece of evidence. The explanation of the accused that be was not present at the spot is belied by the evidence brought on record and was, therefore, rightly disbelieved by the trial Court.
21. The learned counsel for the appellant argued that P. Ws. Mehar Gul and Saidan Gul who are the mashies of the wardat, arrest of the appellant, and of the recovery of knife from the scene of offence have not supported the prosecution inasmuch as they have both stated in their evidence that they did not see the present appellant at the wardat at the time when they were made mashies of the arrest of the appellant. It is true that they have stated in their evidence that they did not see the appellant present near the dead body at the time they were made mashir; but in view of the evidence of Alit. Janet who has categorically stated in her evidence that on her cries many people ran after the appellant and brought him at the scene of offence, and the evidence of P. Ws.
22. Mahboob A.I and Mir Zaman, it would appear that these witnesses have been manoeuvred and they have made this statement as a concession to the appellant There is also the recovery of the knife from the wardat. P. W. Mst. Janet had seen the appellant throwing the; knife at the wardat after stabbing deceased. The knife was sent to the chemical analyser whose report showed that it was stained with human blood. The mashir examined by the pro--secution on the point of recovery is P. W. Mahar Gul. He has produced the mashirnama of vurda t as well as recovery of the knife as Exh.
11. No question was even suggested to him on behalf of the appellant to question the recovery of the knife from the scene of offence.
23. Thus, the evidence of eye-witness Mst. Janet and the evidence of Ghulam Fatma and the circumstantial evidence of the appellant being caught immediately after the incident near the scene of offence by P. Ws. Mahboob A.I and Mir Zaman fully connect the accused with the crime he stood charged with and he has been rightly convicted by the trial Court.
24. The learned counsel for the appellant lastly urged that in case the conviction was maintained, the appellant may be awarded lesser penalty for the reason that, admittedly the relations between the deceased wife and the appellant husband had been strained for a long time, and, therefore, this offence was committed by the appellant out of slicer frustration. We regret we are unable to agree with the learned counsel, This was a cold-blooded murder of a helpless woman. Consequently, the appellant does not deserve) any leniency and the sentence passed by the trial Court does not call fort interference.
25. For the aforesaid reasons, we dismiss the appeal, accept the reference and confirm the sentence of death passed on the appellant.