ARDUL HAYEE KURESHI, J.---Appellant Abdul Samad, aged 26 years, was tried on the charge of murder of Mst. Aisha and causing injuries to Mst. Kubra; in the Court of Ist Additional Sessions Judge, Karachi, and on being found guilty of offences under sections 302 and 307, P. P. C. Was on the first count sentenced to imprisonment for life and on the second count to rigorous imprisonment for three years and a fine of Rs. 2,000 (in default six months' R. I.). He has filed an appeal through Mr. Mohammad Hayat Junejo, Advocate and the State was represented before us by Mr. R. A. Qureshi, Advocate. On the conclusion of the hearing of the appeal on 18-9-1978, we had, by a short order, upheld the conviction and sentence, dismissing the appeal and reasons for such short order follow presently.
2. The brief facts of the case are that a sister of appellant was married to Syed Mohammad Nasir, the son of deceased Mst. Aisha. It seems that the parents of the wife wanted the spouses to reside with them and for such reason the relations between the family of the appellant and the family of Syed Mohammad Nasir were strained. Two days before the occurrence, which took place on 10-6- 1974, the wife of Syed Mohammad Nasir had gone to reside with her parents. On the day of occurrence at about 1-30 p.m. The appellant came to the house of Syed Mohammad Nasir where the deceased, Mst. Aisha resided and sat in the house. After a short time he stated that he was feeling thirsty and went out of the room on the pretext of taking water but he returned immediately having a chhuri with him. He caused injuries to deceased Mst. Aisha, who started raising cries. Mst.
Kubra, a distant maternal grand mother of Syed Mohammad Nasir who was also present in the house was in like manner attacked by the appellant who caused her injuries. After receiving injuries the deceased had gone outside the house in the compound raising cries, which attracted Dr. Akhtar Ahmad, the next door neighbour. He came immediately and saw the deceased lying in the compound but she had died. Mat. Kubra was also found having injuries and bleeding and first-aid was provided by Dr. Akhtar Ahmad. He also asked Mst. Kubra as to the identity of the assailant and was informed that the appellant had killed Mst. Aisha and caused injuries to her. A telephonic call was made to Syed Mohammad Nasir and he reached his house at 2-30 p.m. But in the meantime S. H. O. Rsfiq Ahmad of Nazimabad Police Station was informed by Wahiduzzafar and Abdul Qadir (not examined) in regard to this offence and he also came to the scene where he found Mst. Aisha lying on the outer lawn of the house. This police officer recorded the statement of Mst. Kubra, which was later transcribed in the section 154, Cr. P. C. Book and had been treated as the first information report. An inquest report was prepared. One bed sheet and two pillow covers which were- blood- stained were also seized from the house where the incident occurred. Mst. Aisha was thereafter sent to the hospital where Dr. Abdul Hadi Sherwani performed post-mortem examination. Mst.
Kubra was also examined and treated by Dr. Iqbal Ahmad. On the very day at about 6-30 p.m. The appellant was arrested by this police officer from his house and blood-stained clothes namely a shirt and a shalwar were secured from his person. The appellant thereafter led the police officer and pointed out the blood-stained chhuri from a place at a distance of 1 or 1-- furlongs from the scene. The clothes as well as the chhuri secured from and at the instance of the appellant were sent to the Chemical Analyser, who had certified that the same were stained with human blood. On conclusion of the investiga--tion the appellant was sent up to stand trial which has resulted in the conviction and sentence as stated above.
At the trial the prosecution examined Syed Mohammad Nasir, Zaheer Afzal, the sons of the deceased in regard to motion and in relation to circumstances subsequent to the occurrence. The prosecution also examined Dr. Akhtar Ahmad, the neighbour, who had immediately come on the scene. Two Medical Officers, namely Dr. Abdul Hadi Sherwani and Dr. Iqbal Ahmad were examined to prove the injuries on the person of tile deceased and P. W. Mst. Kubra. Obaid Abdul Kadir, who served as a mashir of the scene of occurrence and the inquest and Mohammad Suleman, who served as mashir of recovery of clothes and knife from the appellant were also produced. The other material witness was S. H. O. Mohammad Rafiq, who investigated the case. Mst. Kubra had been examined in the Committal Court but before the trial in the Sections Court opened, she had died so that her deposition in the Committal Court was brought on the record of Sessions Court under section 33 of Evidence Act after H. C. Ronaq Ali was examined to prove the fact of her death. Abdul Latif Munshi, the Assistant Public Prosecutor, was examined to prove that the original case papers had been burnt on account of fire that had taken place in his office. The remaining witnesses are of formal nature.
4. The appellant in -his statement under section 342, Cr. P. C. Had denied the entire prosecution case and stated that his relations with the deceased were not strained and attributed the case to the interest which the prosecution witnesses had in the deceased or against him. He examined Hafiz Salimullah, a Pesh Imam of Imam Ghani Masjid, to show that at 1-30 p.m., the appellant was in the mosque for the purpose of offering 'Zuhar' Prayer.
5. This case of the prosecution rests on the evidence of Mst. Kubra, which is supported by the recovery of blood-stained clothes and the crime weapon from and at the instance of the appellant. The prosecution also relies on the evidence of motive arising out of the fact that the wife of Syed Mohammad Nasir, who was a sister of the appellant had, for some reasons, gone to stay with her parents. We have read the evidence of Mst. Kubra and she stated that on the day in question she was staying in the house of the deceased. She has related the circumstances and the occurrence on the day of incident. On reading her evidence one is left in no doubt whatsoever that the appellant caused the death of Mst. Aisha and had injured this witness. The evidence of Mst.
Kubra has been criticised by the learned counsel for the appellant on the ground that the witness being 80 years old and having lost the eye-sight of one of her eyes could not have identified the appellant. Additionally, it has been argued by the learned Advocate that her presence at the spot was not probable. It is no doubt true that Mst. Kubra was aged 80 years at the time of her dxamination in the Committal Court, which took place after two months of the incident. While she was in the witness-box she was asked to identify the appellant who was then sitting in the dock but she could not identify him from a distance of 12 feet aid when the appellant was brought near the witness in the company of other, accused persons, who were available in the Court, she pointed out the appellant correctly. She had named the appellant as Gudu in the last sentence of her examination-in-chief but in the earlier part of her deposition she appears to have mentioned the name of the appellant as Bhuddu. It seems to us that the witness had named the appellant correctly but on account of phonetic resemblance between the words "Gudu" and "Bhuddu" the Magistrate had in the earlier portion of her examination-in-chief mentioned the name of appellant as "Bhuddu" and not "Gudu". It is in evidence that she had made a mention abut the appellant as being the brother-in-law of Nasir and the full name of the appellant was mentioned by her as "Samad". There is, therefore, no question of mistaken identity in this case. The appellant had caused injuries to Mst. Kubra and for such reason he must have come very near Mst. Kubra as to be capable of being identified. In addition the evidence discloses that the appellant had first come to the house and sat for sometime before he left on the pretext of taking water but returned with the chhuri in his hand. In regard to the next contention of the learned counsel for the appellant, proceeding on im--probability of the presence of Mst. Kubm, we have been equally unimpressed. 1t it on the record that Mst. Kubra was a distant maternal grandmother of Syed Mohammad Nasir, which would show that she was a very close relative of deceased Mst. Aisha. She bad come and stayed in the house of the .Deceased and such conduct on the part of the witness would not be unusual. However, the learned Advocate has invited our attention to the fact that Mst. Karbra in spite of her relationship did not attend the marriage of Syed Mohammad Nasir and had never visited the house of the deceased prior to this incident. Mst. Kubra has stated that she had not participated in the marriage of Syed Mohammad Nasir, although she went on to state that the marriage bad taken place four or five years before the date of incident. On the other hand, there is no evidence that the relationship between Mst. Kubra and the family. Of the deceased were in any manner strained or far from cordial so as to dissuade Mst. Kubra from visiting the house or the family of the deceased. The most important factor, that has persuaded us, is the presence of injuries on the person of Mst. Kubra and to such extent the presence of Mst. Kubra at the scene is not open to doubt. Dr. Akhtar Abroad, who had come on the scene immediately, also found one lady other than the deceased present in the house and. Having injuries on her person. In addition, S. H. O. Mohammad Rafiq, has clearly stated that Mst. Kubra was present at the scene and the first information report was dictated by her. The police officer had sent Mst. Kubra to the Hospital where she was examined by Dr. Iqbal Ahmad and this Medical Officer has stated that he examined Mst.
Kubra on the date of incident and found five incised wounds on her person. All these pieces of evidence are completely reliable and conclusively establish the presence of Mst. Kubra at the scene as also the fact of her having been injured. We have carefully read the evidence of Mst.
Kubra and found that she is a completely independent and reliable witness. No doubt she has stated that she received eleven injuries but for such statement alone we cannot hold her evidence to be unreliable.
6. The learned Advocate for the appellant next argued that the trial Court acted wrongly in admitting evidence of Mst. Kubra by aid of sec--tion 33 of the Evidence Act. In this context he urged before us that there was no strict proof in regard to the death of Mst. Kubra and in that context he has stated that the death certificate produced by H. C. Ronaq Ali has not been proved in accordance with law. The learned Advocate has relied on the case of Chanchal Singh v. The Emperor (AIR 1946 P C 1). H. C. Ronaq Ali was examined in the Court of Session and he stated that the process for summoning of witnesses was entrusted to him. He stated that Mst. Kubra could not be served because she had died on 29-9-1976 and he had also obtained her death certificate from the Jinnah Hospital. This certificate has been placed on record as Exh. 21 /A. The Medical Officer of the National Institute of Cardio Vascular Diseases has signed the same and it shows that Mst.
Kubra Bibi, aged 80 years, had died at 4 p.m. On 30-9-1976. On the summons for Mst. Kubra H. C.
Ronaq Ali had made an endorsement to the following effect :- "It is submitted that I went to the given address but it was learnt that Mst. Kubra died on 29-9-1976.
Her Death Certificate is attached herewith the summons. The report is submitted.
(Sd.)
H. C. Ronaq Ali, P. S. Nazimabad 10-10-1976."
We have pointedly asked Mr. Mohammad Hayat Junejo, learned Advocate for the appellant if Mst.
Kubra was still alive and he only stated that he could make no statement one way or the other. He stated that he mainly relied on the mode of proof in relation to death of the witness. In the case of Chanchal Singh, the Judicial Committee bad taken the view that in regard to the incapability of a witness to give evidence the fact of such incapability has to be strictly proved. In that case the witness had not died but was sick and the question was if he could not appear in the case and to such extent the Judicial Committee was of the view that such incapability had to be proved conclusively. In the present case we find that the process server H. C. Ronaq Ali had gone to the house of the witness where he learnt that the witness had died. He must have made some more enquiries to find out better proof in regard to her death and having learnt that she had died in the Hospital he even proceeded to that Hospital and obtained a certificate, A This witness had not been cross-examined by the appellant in the trial Court and in our view the fact of death of Mst.
Kubra, besides being not controverted, is fully established in the circumstances of this case.
7. The next piece of evidence against the appellant consists of the recovery of blood-stained clothes and the crime weapon. The mashir who had witnessed the pointing of the knife and seizure of the clothes has not fully supported the contents of the mashirnama. He stated that the appellant was not arrested in his presence nor were blood-stained clothes seized in his presence. Upon such statement the Prosecutor sought permission of the Court to cross-examine the witness on ground of hostility. In such cross-examination mashir Mohammad Suleman has stated that mashirnama Exh. 20) relates to recovery of blood-stained knife from the enclosure of a bungalow which was near the place of occurrence. He has again stated as follows :- "The accused led us and police party to a place in front of the bungalow where the incident took place and from a place in front of the bungalow and from an enclosure on the pointation of accused, a blood-stained chhuri was recovered."
In regard to the two mashirnamas relating to seizure of clothes and recovery of chhuri the mashir had admitted having signed the same. It appears that this mashir has tried to oblige the appellant and such behaviour is not unusual in cases which often come beFOre the Courts. This mashir is in Government service and it is very doubtful if in spite of being a Supervisor in National Fertilizer Company, he would have signed the mashirnamas without knowing the contents thereof. In any case mashir Gul Hassan has admitted that the appellant led the police party to some bungalow from the enclosure of which a blood-stained chhuri was recovered on the pointing out of the same by the appellant. We rely on this statement because it is consistent with other evidence in the case.
The weapon of offence is described as a chhuri by Mst. Kubra and the Medical evidence also discloses that a sharp-cutting weapon had been used for causing injuries to the deceased and Mst. Kubra. The Investigating Officer has also deposed in like terms. When a witness speaks in different tones it is the duty of the Court to determine in which tone is he speaking the truth. We are convinced that blood-stained clothes of the appellant were secured from his person and the chhuri was also secured after the appellant had pointed out the same to the police. These clothes and the chhuri had been certified by the- Chemical Analyser to be stained with human blood.
8. The next piece- of evidence is of motive and even on that point there is nothing to show that the evidence is false or the motive was either insufficient or improbable.
9. Coming to the evidence of defence witness, we have examined the reasons which had been recorded by the trial Court for disbelieving the witness. We agree with such process of reasoning.
Defence witness Hafiz Salimullah has been cross-examined. His evidence in regard to the other persons offering prayers with the appellant is vague and he has also admitted that he often visits the house of the appellant for the purpose of eating with the members of his family and meeting them. We find that the evidence of the defence witness is not reliable and the trial Court rightly rejected that evidence.
10. Summing up, we are of the view that the prosecution has successfully proved its case against the appellant beyond reasonable doubt. We uphold the conviction and sentence. The appeal is dismissed. We must in the end state that the reasons given by the trial Court for imposing lesser sentence on the appellant are absolutely inadequate. The normal sentence in case of murder is death and lesser sentence has not to be imposed only it mitigating circumstances are available. In this case all that the trial Court was persuaded to rely upon was the young age of the appellant (26 years and his being a Science graduate. Both these reasons did not entitle the appellant to lesser sentence. We have; however, refrained from issuing notice of enhancement because the appellant had, by the time the appeal came up for hearing, remained in custody for four years out of which he had remained in custody for 2-- years as a convict. We would only impress upon the trial Judge to keep such factors into consideration while determining the question of sentence in future cases.