' ZAKAULLAH LODHI, J.-Appellant Muhammad Anwar was tried by the learned Ist Additional Sessions Judge Karachi, under section 302/307, Pakistan Penal Code on the charge of murder of deceased Ali Dad and Abdul Karim and causing grievous injuries to Mst. Rusan Ara wife of Fazal Mahmood. He was found guilty on both the counts and was sentenced to death penalty on the charge of murder while on the charge of causing grievous injuries be was convicted to seven years' rigorous imprisonment. He has filed appeal against this conviction on both the counts while the learned 1st Additional Sessions Judge, Karachi, has referred the case for the confirmation of death sentence.
This judgment will dispose of both the appeals as well as reference.
2. Briefly narrated the facts forming the background of this case are that on 30th April, 1970 at 1-00 a.m. The appellant committed murder of deceased All Dad and Abdul Karim and grievously injured Mst. Husan Ara in their house, situated on second floor of the building constructed on Plot No, C/500, Central Commercial Area, P. E. C. H. S., Karachi. The first information report was lodged by complainant Mst. Husan Ara at 1-50 a.m. In Ferozabad Police Station. The report was initially recorded by P. W. Ahmed Hussain, Sub-Inspector Police who handed over the same to P. W. Fazal Dad, Sub-Inspector for incorporation in the Book maintained under section 154, Criminal Procedure Code. In the F. I. R. It was stated that the complainant was living in the above said flat alongwith her husband, her brother-in-law, Ali Dad (deceased), a boy servant, Abdul Karim (deceased) and her children. Her husband P. W. Fazal Mahmood was running a hotel in the vicinity by the name of Cafe Al-Tariq which he used to close after mid-night. The appellant was a relative of her husband who was previously living with them. He had contacted them for service. Her husband got him employed in the Army but he left the job and again started living with the complainant's family. A short period before the incident ho had shifted from their house but he continued to work in the hotel of the complainant's husband. He however, insisted upon her husband to get him a suitable employment elsewhere. Upon his leaving the Army service a Discharge Certificate had been issued to him which he had kept in the house of the complainant. This certificate was misplaced somewhere and therefore he insisted upon the husband of the complainant to return the same.
Besides demanding the certificate, he also demanded his wages which were duo against the complainant's husband. However, he was told that the wages would be paid to him, while about the certificate he was told that the duplicate copy of the same would be obtained and handed over to him. During the day preceding the night of incident he came to complainant's house and accused both the deceased of having deliberately misplaced his certificate. However, the complainant tried to console him and he left their house. In the night of the incident he reached at about 1.00 a.m. With a "toka" ("chopper" used for cutting meat) in his hand and attacked both the deceased. The complainant witnessed the scene and immediately made noise and also tried to prevail upon the appellant not to kill the deceased. Upon this the appellant gave a "take" blow to her on the chest. She stopped the blow with her left hand and while doing so her arm was injured.
She ran from there towards the roof and the appellant followed her. In all he gave three "toka" blows to the complainant while she was running to save her life which injured her on thighs. The appellant followed her up to the roof but she managed to jump from the roof of the house and reached the roof of one "mithaiwald whose house was contiguous to their house. On the noise raised by her Sub-Inspector Ahmed Hussain who was passing through that way, Head Constable Riaz Muhammad and Constables Mehboob Hussain and Asghar also reached there. Some other persons namely, Muhammad Siddiq, Jawaid Malik, Jan Muhammad, Muhammad Hassan, Shahid Zeman All Akhtar and Nazir Khan whose names the complainant came to know later on also reached there. The 'police arrested the appellant from the spot with blood-stained "toka" in his hand.
3. P. W. Ahmad Hussain, S. H. O. Who was passing by the side of the house stopped there on hearing the cries of the complainant. He went upstairs along with other persons who had gathered there.
He found one dead body lying in a pool of blood and the other person lying grievously injured in the room. The complainant's husband P. W. Fazal Mahmood also arrived there in the meantime. P. Ws.
Jawaid Malik, Saeed Ahmad, Abdul Hakim and Shahid also accompanied P. W. Ahmad Hussain, S. H. O. To the flat of the complainant. He prepared the memo. Of inspection of the dead body of Abdul Karim Exh. 12 in the presence of the mashirs Fazal Mahmood and Kabir Shah. He sent the dead body to Civil Hospital for post-mortem examination through P. W. Fakir Muhammad. The injured was also taken to the Civil Hospital. In the meanwhile a police patrolling party consisting of P. W. Muhammad Riaz, H. C. And some constables bad also arrived there and with their assistance as well as with the assistance of people of the vicinity he apprehended the appellant who was present on the roof of Cafe China situated nearby with the blood-stained "toka" in his hand. The roof of Cafe China is contiguous to the roof of the flat of the complainant. He prepared a memo. Of inspection Exh. 11 in the presence of mashirs P. Ws. Fazal Mahmood and Kabir Shah. He also prepared mashirnama of arrest of the appellant and recovery of "toka" Exh. 13 which was signed by the same mashirs. He sealed the blood-stained "toka" and prepared a mashirnama Exh.
14. Thereafter he sent the appellant to the Police Station. He then entrusted the investigation of the case to P. W. Fazlurrehman, S. H. O. Who had arrived at the scene of occurrence at the same time.
4. P. W. Raja Fazlurrehman who was S. H. O. Of Ferozabad Police Station recorded the F. I. R. In the case aid took into his charge the leftover investigation. He also visited the scene of offence which was situated in the flat of the complainant. When he reached there P. W. Ahmad Hussain was already available at the place of occurrence and investigating the crime. The appellant had been arrested and P. W. Ahmad Hussain, S. H. O. Was busy in preparing inquest report, etc. He entrusted the investigation then and there to P. W. Raja Fazlurrehman, S. H. O., who recorded the statements of the complainant, her daughter P. W. Afst. Shahida, her husband P. W. Fazal Mahmood, P. Ws. Syed Abdul Kabir Shah, Abdulmannan, Abdul Ghaffar, Muhammad Shafi, Muhammad Rashid, Muzaffar Khan, Muhammad Siddiq, Jan Muhammad, Jawaid Malik, Ahmad Hussain, Constables Mehboob Hussain, Muhammad Asghar and Riaz Muhammad, Foot Constables Fakir Muhammad, Muhammad Humayun and Muhammad Muzaffar. He himself witnessed the scene of occurrence soon after the incident had taken place. By the time he reached the scene of occurrence neither the people who had gathered there and helped P. W. Ahmad Hussain, S. H. O. In arresting the appellant had dispersed nor the appellant had yet been taken to the Police Station. He was also present there. This witness took into possession the blood-stained clothes of the deceased, blood- stained "toka" and blood-stained carpet and sent the same to the Chemical Examiner for his report. He referred the dead bodies of deceased Abdul Karim and Ali Dad to the Civil Hospital for post-mortem examination and also referred the injured P. W. Mst. Husan Ara to Civil Hospital for medical examination and treatment of her injuries. He has produced the inquest report in respect of deceased All Dad which was prepared by him as Exh. 35 and memo. Of inspection in respect of deceased Ali Dad as Exh.
36. The report of the Chemical Examiner has been produced by this witness as Exh, 34 which says that the "toka", clothes of the deceased and the carpet which were sent to him in different parcels contained human blood.
5. Dr. S. Akbar All attended to P. W. Fazal Mahmood and the complainant Mst. Husan Ara The medical certificates issued by him in respect of these two persons were produced by Dr. Azhar Usmani who has stated in his evidence that be was well conversant with the handwriting of Dr. S. Akbar Ali who had since left the Civil Hospital. Mst. Husan Ara had following injuries on her person :- "(1) Lacerated wound left forearm 1 j' x 1/4"x r.
(2) Contusion left thigh 6' x 1".
(3) Abrasion left knee I" x I".
(4) Haematoma right knee 1" x Ir.
' P. W. Fazal Mahmood had one abrasion of 1' x 1' in the centre of his forehead which was simple in nature. It may be mentioned here that how and when P. W. Fazal Mahmood received the injury is not explained in the evidence.
' As far as autopsy on the dead bodies of Abdul Karim and All Dad, who had died a little white after the police had reached the spot is concerned, the same was carried out by Dr. Muhammad Umar Khan. Dr. Muhammad Umar Khan who found the following injuries on the person of deceased Abdul Karim and Ali Dad :- ' Abdul Karim :
(1) Incised wound on top of middle and to right side of skull from before backward 4-1/2 xrx a portion of left parietal, and right parietal and right of occipital bone was cut.
(2) Incised wound left side forehead and temporal region 5'x 1r x a portion of left temporal and frontal bone cut.
(3) Incised wound at middle of neck in front obliquely below the thyroid cartilage on trachea 2"x torcha half cut.
(4) Incised wound right side just over and below lateral and of clavicle 2' x i" x bone deep and collar bone was cut.
(5) Incised wound left forearm laterally i" below elbow-joint 4r x ir x bone deep and a portion of bone (Redlaus and ulna) was cut.
(6) Two small abrasions on back of left shoulder I" x each, and 1" apart.
' Ali Dad :
(1) Incised wound frontal region of skull transverse oblique in direction just above forehead stitched it was 3"x bone deep and a portion of bone was cut.
(2) Incised wound right parietal region stitched 5"x bone deep and a portion of bone was cut, it was vertical in direction.
(3) Incised wound right occipital region oblique in direction extending from above ear, to back of skull it was stitched and was 5' x x bone deep, a portion of the bone was cut.
(4) Incised wound right forehead and eyebrow oblique in direction 6' x x bone deep cutting eyelids and nose and a portion of frontal bone it was also stitched.
(5) Incised wound right dorsal hand 2' x x bone deep.
' In the opinion of the doctor the cause of death of deceased A bdul Karim was shock and haemorrhage due to multiple injuries of which injury No, 1 was individually and the rest collectively sufficient to cause death in the normal course of nature. These injuries were caused by sharp- edged and heavy weapon which could be a "toka". In case of deceased All Dad also his opinion was that the death had occurred due to shock and haemorrhage by multiple injuries on his person.
Injuries Nos. I, 2 and 3 were individually and collectively sufficient to cause death in the normal course of human life. The weapon used was sharp-edged and heavy.
6. The appellant has squarely denied that he had committed the offence and stated that while he was staying in the house of P. W. Fazal Mahmood, husband of the complainant, there used to be quarrel between Fazal Mahmood and deceased Ali Dad. He tried to prevail upon them and told them not to quarrel but Fazal Mahmood, asked him to mind his own business. In the night of the incident he was sitting in the hotel of P. W. Fazal Mahmood when he heard the commotion from his house. He entered the house and saw P. W. Fazal Mahmood, both the deceased and one Siddiq fighting with each other. In this scuffle he also received a "lathi" blow and sustained injury. He therefore came down from the house and finding him injured the police party arrested him in the street. Thereafter he was taken to the police station and falsely implicated in this case.
7. The prosecution has furnished ocular testimony of the complainant who was herself injured. She has narrated in her statement the entire story which was recorded in the F. I. R. The other eye- witness is P. W. A1 st. Shahida who is daughter of the complainant. She says that she was about 12 years of age at the time of incident. She has stated in her statement that her father P. W. Fazal Mahmood, uncle deceased Alt Dad, appellant Anwar and a boy-servant deceased Abdul Karim and her brothers and sisters lived in that flat when the fateful incident had taken place. The appellant left their flat about a week before the said incident. On the day preceding the night of incident at about 12 noon the appellant visited their flat and demanded his Discharge Certificate from deceased Ali Dad. There was exchange of hot words between them. Her mother, the complainant, intervened and the quarrel was subsided. Thereafter the appellant went away. On the same night at about 1.00 a.m. She was present with her mother and waiting for the arrival of her father. The door of the house was left open. All of a sudden she heard cries of deceased Abdul Karim and All Dad saying "bachao!" "bachao!". Her mother the complainant immediately rushed into the room wherefrom the cries were heard. She followed her mother and saw the appellant who was armed with a "toka" inflicting injuries on deceased Ali Dad while deceased Abdul Karim was lying dead. Deceased Abdul Karim's head was chopped off. Her mother asked the appellant not to kill deceased Ali Dad upon which he gave "toka" blow on the forearm of her mother. Her mother asked her to run away and she rushed upstairs. The complainant jumped over the roof of the flat of one Abdul Mannan while she herself jumped over the roof of Altahwala Hotel. She got down on the ground with the help of a sanitary pipe and informed her father about the incident at his Cafe. Her father P. W. Fazal Mahmood and other servants of the hotel accompanied her to the flat. Her mother also came down from the flat of Abdul Mennen. In the meantime, a police patrolling party and some other persons arrived at the spot who succeeded in arresting the appellant from the roof of Allahwala Hotel. These two witnesses had themselves seen the commission of the offence as they were present in the flat. When they entered the room, the appellant had already killed deceased Abdul Karim and was inflicting "toka" injuries upon deceased Ali Dad. When the complainant who is mother of P. W. Shahida tried to intervene, the appellant gave her "toka" blows which injured her in her arm. She ran away from there to save her life and so did P.W. Mst. Shahida.
They were followed by the appellant who gave further blows on the thighs of the complainant. This evidence is sufficient to prove that the offence had been committed by the appellant who had come prepared for the same as during the day also he had come to their house and quarrelled with deceased All Dad and Abdul Karim as he was under the impression that his Discharge Certificate obtained from the Army had been deliberately misplaced by the deceased person. At that time the quarrel subsided due to intervention of the complainant but later in the night he came duly armed with "toka" and killed both the deceased and injured the complainant. The prosecution has also examined P. W. Ahmad Hussain, S. H. O. Of the Ferozabad Police Station . Who was passing by the house of the complainant when he heard the cries from the flat of the complainant. He, with the assistance of the police par trolling party climbed up the roof where the appellant was still standing,. With "toka" in his hand and arrested him. The other witness is Abdul Mannan whose flat is adjacent to the flat where the deceased persons lived. He has confirmed the story given out to the police by the complainant. He has stated that at about 1-00 a.m. When he was sleeping he heard a cry which he ignored treating it to be the noise raised by some cat.
Immediately thereafter the door of his bed-room was knocked. Whereupon he got up from his sleep and found that the complainant was standing there. She was bleeding from her forearm. She told him that a person with muffled face had killed the brother of her husband and was following her in order to attempt at her life. She also added that he had done to death her servant deceased Abdul Karim also. P. W. Mazhar Khan has stated in his statement that he was taking tea in Qadri Hotel situated at Tariq Road when he heard certain commotion and found a woman raising cries.
She had injuries on her arm. She was saying that the appellant had murdered her servant and brother of her husband. Some one informed him that the appellant had gone over the roof of Cafe China situated adjacent to the house of the injured woman. In the meanwhile a police party also arrived there and many private persons also collected. He and some other persons alongwith the police party went upstairs and caught hold of the appellant who was carrying a "toka" in his hand.
The clothes of the appellant were bloodstained. The next witness who has corroborated the testimony of the aforementioned witnesses is P. W. Mahboob Hussain. He was posted as a Foot Constable at Ferozabad Police Station. He has stated in his statement that on the night of occurrence be was posted on patrol duty in the Commercial Area, P. E. C. H. S. P. Ws. Riaz, H. C. And Asghar, Constable were also with him on patrol duty. P. W. Ahmad Hussain, S. H. O. Was on checking duty. At about 1.00 a.m. He noticed commotion and found a woman injured on her left arm raising cries. She was crying "murder" "murder" and seeking assistance. They went towards her. In the meantime P. W. Ahmed Hussain also reached there. About 8/10 persons from the public also collected there. He alongwith others went into the flat of the woman and found a person lying injured and a dead body of a boy. 'I here he learned that the appellant had gone to the roof of the adjoining flat after committing the murder of the deceased and injuring the complainant. He was carrying a "toka" in his hand. He and others arrested him and secured the "toka" from his hand which was blood-stained.
8. Before we proceed further we may mention here that much capital has been tried to be made out from the fact that P. W. Fazal Mabmood had an injury on his forehead. It was argued that there was free tight between him and the deceased persons and one Siddiq and therefore P. W. Float Mahmood had received injury. But practically nothing turns on this argument because it is not even sufficient to create any genuine suspicion in our mind mainly because the appellant was arrested red-handed from the roof adjoining the flat where the murder was committed. Had it been otherwise one could say for the sake of argument that P. W. Fazal Mahmood might have quarrelled with the deceased in which the deceased persons were killed. In this case there is no scope of any such suspicion and therefore despite it that a simple injury was found on the forehead of P. W. Fazal Mahmood, the prosecution case is not the least adversely affected because even the defence has not made any suggestion that this injury was received during the scuffle between him and the deceased. All what has been suggested by the appellant in his statement is that he himself saw P.
W. Fazat Mahmood, deceased All Dad, deceased Abdul Karim and one Siddiq fighting with each other. This statement is not sufficient to prove that there was any quarrel between P. W. Fazal Mahmood and the said persons which could result into the death of deceased persons and injury on the face of P. W. Fazal Mahmood. Moreover, it has also not been explained by the defence as to why P. W. Fazal Mahmood would try to kill his wife, his own brother and his servant. On the contrary it has come in evidence that P. W. Fazal Mahmood was present in his hotel when his daughter P. W.
Mst. Shahida informed him about the incident and when he reached his flat alongwith his servants another person named Mazhar Khan who was taking tea in Qadri Hotel also reached there and by that time several persons including the police party had arrived.
' The learned counsel for the appellant has tried to take advantage of the simple injury found on the forehead of P. W. Fazal Mahmood but that is not sufficient for creating any doubt in our mind about the commission of the offence by the appellant.
9. There is overwhelming uninterested evidence that the appellant killed deceased Ali Dad and Abdul Karim because he suspected them of having misplaced his "Discharge Certificate" which he had obtained from the Army. During the day he came and quarrelled with deceased All Dad but by the intervention of the complainant Mst. Husan Ara the quarrel was subsided. In the night he came duly armed with a "toka" and killed both the deceased Abdul Karim and All Dad and injured the complainant who had intervened when she saw him inflicting "toka" blows on All Dad. He also injured the complainant and continued giving her "toka" blows even when she ran from there to save her life. There is not even a slightest suggestion indicating any reason as to why the complainant and her daughter P. W. Mst. Shahida would falsely implicate the appellant in this case.
Their evidence is not the solitary evidence in this case. It is srongly corroborated by the circumstantial evidence furnished by the testimony of P. Ws. Ahmad Hussain, Abdul Mannan, Mazhar Khan, F. C., Mahboob Hussain, F. C. A and Fazlurrehman, S. H. O. To whom the incident was narrated and who arrested the appellant soon after the incident from the roof of the China Hotel. It was thus a premeditated murder with no extenuating circumstances at all.
10. For the reasons given above, we do not find any substance in the appeal which is hereby dismissed. The death sentence is confirmed.