' G. M. SHAH, J.-The appellant was convicted by the learned II Additional Sessions Judge, Hyderabad by the judgment dated 30-8-1975 of an offence under section 302, P. P. C. With a fine of Rs, 1,000 or in default of payment of the fine, to undergo R. I. For one year more. The appellant has preferred the appeal, against the said judgment of conviction. There is also a reference before us. Both, the appeal, as well, as the reference shall be disposed of by this judgment.
2. The appellant is accused of having murdered Mst. Mukhtar Begum wife of Fazlur Rehman complainant on 19-7-1972 at about 3 p. m. The complainant lodged the report at the Cantonment Police Station, Hyderabad in the following words :- " I work in Khoski Sugar Mill as electrician. I was married to Mst. Mukhtar Begum daughter of Mohd.
Ramzan four years back. I have one little daughter aged about two years, and a little son aged about Li (one and a half months) from Mst. Mukhtar Begum. About one week from today my wife Mst. Mukhtar Begum, had come to Peela Mandir, Barrage Colony, to meet her relatives with Amir Hussain. Before my marriage with Mst. Mukhtar Begum, Abdul Salam alias Salamoon had demanded her hand from my in-laws ; but they refused to give her hand to him. On this Salamoon kept on threatening, by saying, that he would see that Mukhtar Begum and I would not be able to remain alive.
' Today on 19-7-72 in the morning I had come from Khoski to take my wife from Hyderabad and was sitting in the Baithak (Otak) of my maternal uncle Nasir Ahmad. I was sitting along with Nasir Ahmad and Abdul Rashid son of Zahoor Mohd. Khan Pathan. My wife, along with her little son, had gone in the street to bid good-bye to her relatives, when suddenly cries of 'Save! Save!' were heard, which were being raised by my wife, who was saying, "Salamoon is stabbing me with a knife." On the said cries 1, Nasir Ahmad Khan and Abdul Rashid came out of the Baithak. We saw in the street that Salamoon gave a knife blow on the back of my wife. On receiving the knife blow, my wife fell down, bleeding, along with her child. Salamoon ran away along with, the knife. It was 3 p. m.
Meanwhile on her cries, other neighbors, each Abdul Aziz son of Zahoor Mohd. Pathan, Ibrahim son of Moula Bux and Abdul Jabbar son of Shakoor Mohd. Were attracted, who also saw this plight. We went and picked up Mst. Mukhtar Begum, who was still alive, who stated that Salamoon had stabbed her with a knife. After this, she lost consciousness. We got her removed to Civil Hospital Hyderabad, where she died. Now I have come to lodge report to the effect that my wife Mukhtar Begum, had been murdered by Salamoon with a knife."
' After registering the case, the police took up the investigation. Abdul Haq Kazi, S. H.
0. (P. W, 10) visited the place of occurrence pointed out by the complainant Fazlur Rehman (P. W, 3).
There was blood found at the vardat, which was situated in Peela Mandar, Barrage Colony, Hyderabad. In front of the 'Otaq (baithak) of Nasir Khan (P. W. 4). Statements of Nazir Ahmad Khan (P. W. 4) and Abdul Rashid (P. W. 5) who were present at the vardat, were recorded by the Police.
On the following day (20.7-72) statements of Abdul Jabbar and Abdul Latif were recorded. The appellant had escaped, and the search for apprehending him, was continued. He was, however, arrested on 21-7-72 from Hala Road, Hyderabad. On interrogation, the appellant volunteered to produce the knife, which was the crime weapon, and led the police to the Agricultural Store of Barrage Colony. From the back side of the said store, the appellant produced a knife, from the bushes, around there, which was secured in presence of the mashirs under the mushirnama Etch.
16. The knife was blood-stained. On 22-2-72, the appellant volunteered to make a confession, and was accordingly produced before the A. C. M. No, III, Hyderabad at 11 a.m. And his confession was recorded on the same day. After completing the investigation, the case was challenged in the Court by the police.
3. The case of the appellant, on the other hand, was of denial. He had led no defence. He had alleged maltreatment at the hands of the police and had stated that the judicial confession, made by him, was not true, and was extorted from Wm, as his married sister, as well as, her husband, were detained by the S. H.
0. And were disgraced at the police station. He further stated that he was living in the house of his brother-in-law, at the time of the occurrence. He blamed Abdul Ghaffar, who used to work in the hotel of his brother-in-law, who was inimical with Nasir, which had resulted in his false implication.
4. The death of the deceased Mst. Mukhtar Begum is not disputed. She admittedly died an unnatural death. The doctor Muhammad Siddiq, who was Medical Officer and Civil Surgeon, Hyderabad, had performed postmortem examination on 19-7-72. On external examination, he found the following injuries :-
(1) An oblique incised wound 2" x x deep ? On the back of the chest left side at its lower third part just half inch lateral to the vertebral region.
(2) An oblique incised wound r xrx deep on the hack of the chest left side Just below the inferior border of the left scapula. The injuries are anti-mortem and appeared to have been caused by a knife.
' In addition, there is occular evidence of Fazlur Rehman (P. W. 3) and Abdul Rashid (P. W. 5), who had witnessed the occurrence and had seen the deceased being injured with the knife, which subsequently resulted in her death.
5. The eye-witness account in this case was given by the husband of the deceased Fazlur Rehman (P. W. 3). He was married to the deceased in 1968. He had two children from her. At the time of her murder; she had one child, aged about 1 months and the second child was 2 years old, who was a girl. At the time of occurrence, the deceased, and Fazlur Rehman, were putting up in Fauji Sugar Mills in Khoski. About a month before the occurrence, the deceased had come, along with her children, to see her parents, who, at the time, were residing in Barrage Colony, Hyderabad. On the day of occurrence, Fazlur Rehman complainant (husband of the deceased) had gone to the house of his in-laws to take his wife and their children back to Khoski. At about 3 p. m., Fazlir Rehman was sitting in the `Otaq' (Baithak) of his father-in-law, Nasir. Abdul Rashid was also sitting with them.
The deceased Mst. Mukhtar Begum had gone to say good bye to the neighboring house of Abdul Jabbar. Abdul Rashid (P. W. 5) who was present in the Otak, with Fazlur Rehman, had just then come out of the Otak Soon thereafter, cries of the deceased were heard "Amma (mother)! Abdul Salam had given her knife blows". On hearing the cries, Fazlur Rehman, her nusband and Nasir Khan, maternal uncle of the appellant, rushed out from the `baithak'. At the same time, Abdul Rashid and Ibrahim reached the place of occurrence. While Fazlur Rehman was in the 'gal?, he saw the appellant taking out the knife from the body of his wife and running away. The deceased was still alive and told her husband Fazlur Rehman that the appellant had caused her the knife blows.
The infant son of the deceased, who was hardly I months old was in her lap. The deceased walked a few paces and fell down bleeding on the ground. In the meantime Mst. Khatoon Jannat, mother of the deceased, also reached there. Subsequently Abdul Jabbar (P. W. 8) and other ladies from the neighborhood, also collected. In their presence, the deceased went unconscious. In order to save her life, she was taken, by her husband the complainant, in a Rickshaw, to the Civil Hospital, where he was informed that she had died. The doctor on duty, directed Fazlur Rehman to lodge the report, and accordingly he reached the Cantonment Police Station, Hyderabad and lodged his report at 4. p. m. On the same day (Exh. 9).
' The other eye-witness examined in the case is Abdul Rashid (P. W. 5), who is an independent witness from the neighborhood. He was sitting with Fazlur Rehman and Nasir Ahmad (P. W 4) in his (baithak) `otaq'. He has narrated verbatim the same facts, as were deposed by Fazlur Rehman. It is needless to repeat them. Soon after receipt of injuries on her person, the deceased had informed her husband Fazlur Rehman (P. W. 3) in presence of Abdul Rashid, as well as Nasir Ahmad (P. W. 4) who is the maternal uncle of the appellant, that the appellant had caused her the knife injuries.
6. The prosecution, in support of the case, had relied upon the following pieces of evidence :-
(1) Ocular evidence of Fazlur Rehman and Abdul Rashid (P. W. 5).
(2) Corroborative piece of evidence by Nasir Ahmad (P. W. 6) who is the maternal uncle of the appellant.
(3) Dying declaration,
(4) Confession.
(5) Recovery of blood-stained knife.
(6) Motive.
7. As is mentioned above, Fazlur Rehman, husband of the deceased had come from Khoski to the house of his in-laws in Barrage Colony, Hyderabad. He was sitting alongwith Nasir Ahmad Khan (P.
W. 4) who is the maternal uncle of the appellant and Abdul Rashid (P. W. 5). They all heard the cries of the deceased Mukhtar Begum "Amma appellant has given me knife blows". The evidence of the remaining two witnesses Abdul Rashid and Nasir Khan corroborates the version given by Fazlur Rehman. In the lengthy cross-examination, nothing has come on the record, to discredit the testimony of these witnesses, out of whom Nasir Ahmad, particularly, happens to be the maternal uncle of the appellant, who had come out with the truth to state against his own nephew. He has, in clear terms, fully implicated the appellant and has pi voided corroboration to the eye-witness account, deposed to by witnesses Fazlur Rehman and Abdul. Rashid, as well as, the dying declaration, made by the deceased.
8. As regards the dying declaration, the evidence of Fazlur Rehman, husband of the deceased and Abdul Rashid, who is an independent witness and Nasir Ahmad (P. W. 4) who is the maternal uncle of the appellant, it is proved beyond all reasonable doubt, that the deceased had given dying declaration implicating the appellant, which testimony is unshaken at the trial. In addition, there is medical evidence, which further supports the dying declaration, inasmuch as, the doctor has stated that in the case of this nature "It is very rarely that the death could be instantaneous. The person could remain conscious for some time," which supports the fact that the deceased was in a fit condition to speak and give the statement, which she did.
9. The appellant was produced for his judicial confession on 22-7-72 at 11 a. m. The report in the case was lodged on 19-7-72 at 4 p. m. The appellant was arrested on 21-7.72 at about 6 p. m. And after about half an hour, he led the police party and produced the knife, which was certified to be blood-stained. On the following day the appellant was produced before the Magistrate for recording the judicial confession. The narration given in the confession appears to be true and consistent with the eye-witness account, given by the witnesses and the circumstances connecting him with the commission of the crime. The confession given by the appellant is in the following words :- "I was betrothed with Mukhtar Begum about 20 years ago by my mother. Mukhtar Begum was daughter of my maternal aunt. When we were grown up, the parents of the girl (Mukhtar Begum) refused to marry her with me and wanted to marry her with somebody else. In spite of that they called me at Lahore and took money from me and disgraced me. Yet they did not marry her with me and married her with a stranger, namely Fazlur Rehman, Meo by caste, about 3/4 years back out of which Mukhtar Begum gave birth to 3 children. About 12/15 days back Mukhtar Begum had come to see her mother here at Hyderabad in Barrage Colony and used to reside there. Her husband Fazlur Rehman on the day of incident had come from Lahore to take her back. On that day I was sitting in my otaq. Our houses are situated in the compound of a temple and there are about 10-15 houses. At about 1-30 p. m. I listened the news from Radio and the request programme of songs. I then asked from Mukhtar Begum "Will you go to Khoski Sugar Mill today". On this she replied yes and that should we not go ? In the meanwhile I lost my senses and Mukhtar Begum having noticed the change of my mind started running. On this I caught hold of her and inflicted the 'Churree' in her abdomen. I immediately ran away. I do not know what happened thereafter. In the evening I went to Karachi Hotel where I learnt that the police had taken away my sister and brother. This gave me a sense of honour (ghairat) that the police had taken away my sister and as such I personally went at the P. S. I saw from the distance that my sister and brother were not available at the P. S. It was 8 p. m. Thereafter I went away to the park of Jam Shoro and slept for the night there. In the morning 1 got up and phoned from Kotri to Cantonment Police Station and inquired from them as to whom they have caught in this connection. On this the police replied that they have not arrested anybody. I then thought that since they have not arrested any body then why 1 should court arrest myself. On that day also I was loitering for the whole day and in the night went and slept in the Jam Shoro Park. On the next day again I came to Hala Road and continued loitering where police came and arrested me."
10. About the recovery of the blood-stained knife, it is satisfactorily proved, through the mashirs Muhammad Sadiq (P. W. 6) in whose presence as well as, the presence of the Investigating Officer Abdul Haq Kazi (P. W. 10), the appellant had produced the blood-stained knife, which was recovered from the bushes on the back side of the agricultural store of the Barrage Colony.
' The motive for committing this crime was that the appellant had demanded the hand of the deceased in marriage, which was refused by her parents. She was, instead, married to the complainant Fazlur Rehman. Thereafter the appellant kept on threatening the deceased and her husband complainant, that he would not leave them alive. The motive was, in clear words, mentioned in the F.
1. R. And the deposition of the complainant, husband of the deceased, Fazlur Rehman (P. W. 3) and the judicial confession given by the appellant.
11. Mr. Manzoor Hussain had led stress only on the point of sentence and has not contested the factual aspect of the case. His main contention is that the appellant is a young man of about 25 years, which fact, in my opinion, is not the mitigating circumstance, to be considered for awarding lesser sentence than the normal penalty of death, in a case in which, it has been established to be a wanton and heartless murder.
12. From the above discussion, I find that the evidence against the appellant is direct and reliable, which was accepted by the trial Court. The ocular testimony is supported and corroborated by the other pieces of evidence of motive, recovery of blood-stained knife, dying declaration and the medical evidence. The case against the appellant is therefore, proved beyond all reasonable doubt. This was a cold-blooded murder and to award lesser sentence to the appellant, would amount to a miscarriage of justice. I would, therefore, confirm the sentence of death and accept the reference and dismiss the appeal.
' AGHA ALL HYDFR, J.-I agree.