NASIR ASLAM ZAHID, J.-This jail appeal has been filed by the appellant Gul s/o Sabu Wandyar, who has been convicted under section 302, P. P. C. And sentenced to transportation for life by the then Sessions Judge, Hyderabad vide judgement dated 30th August, 1972. The charge against the appellant was that on 2nd August, 1971, at dawn time at house in Hala, he murdered his were Mst.
Kaima by giving her hatchet blows thereby committing an offence punishable under section 302, P.
P. C.
2. The F. I. R. Was lodged on the same day at 9-10 a. m. By Kadir Bux s/o the appellant at Police Station, Hala, District Hyderabad. The house of the appellant (also of the complainant), which was the scene of the incident, is situated three miles towards west of Police Station, Hala. F. I. R. Lodged by Kadir Bux son of the appellant is reproduced here:- "I used to cultivate the land of Haji Mohd. Ibrahim Memon, near Hala Old. My father Gul also cultivates the land. We are six brothers inter se, I am eldest. I have also three sisters. Mehar is on second number and the rest all are youngers. My mother's name is Qaiman. About 2 years back, I was working in my field when at dawn time, my father Gul brought meals for me. He told me, "During the night one Yaroo son of Sahibdino Wandyar tres--passed into our house. I saw that he awakened your mother by holding from her leg, I also were up. On seeing me, Yaroo ran away. I made enquiry from your mother about the above affair, but she replied that he Yaroo did not awake her. I am sure that your mother is carrying on illicit terms with Yaroo." Thereafter my father complained to Kazi Ghulam Mohd resident of Old Bala, whereupon Kazi sent for the Yaroo and others. But Yaroo did not accept it. Since that day, my father used to beat my mother. I also feel that my mother is carrying on illicit terms with Yaroo, and I also seen him while coming out of our house for two three times. The persons of whole town know that my mother is in-toe with Yaroo Wandyar. Tonight, I, my mother Qaiman, my father Gul, my brother Mehar and other younger brothers and sisters, after taking meals, slept in the house. My father Gul, my mother Qaiman and my younger sister Amir slept on one cot. At about Fajar prayers time, 'my sister Amee started weeping and raised cries. I, my brother Hashim and other inmates of the house were up and found that my father was having a blood-stained hatchet and my mother had received hatchet injury on her neck, which was bleeding profusely and had expired. Our father gave us hakkal and asked us not to come near. We raised cries. On our cries namely Ilyas, Arab, Dino Wandyar and other persons arrived there. My father Gul, within my sight, took the hatchet and went away towards south. I went to Ghulam Mohammad and narrated him above facts. He advised me to lodge the complaint. I have come to lodge complaint. Investigation may be held.
Note.-A Complaint was read over, heard, admitted correct and affixed L. T. I. Thereon.
L. T. I. Of Complainant Kadir Bux.
3. S. H. O. Abdul Ghafoor (P. W. 10) started the investigation immediately after recording the F. I. R. He visited the scene of offence and found the dead body of Mst. Kaima lying on a cot on the thalla of the house. There were two hatchet injuries on the dead body on the neck. P. W. Abdul Ghafoor secured the blood-stained earth as well as the blood--stained `ralli' and the cot. After preparation of the inquest report, be sent the dead body through Constable Faiz Ali (P. W. 2) to the Medical Officer, Hala for post-mortem. P. W. Abdul Ghafoor then recorded the statements of Mehar son of the appellant (P. W. 5) Dhani Bux, Yaroo, Ilyas neighbour of appellant (P. W. 7) and Ghulam Mehdi.
After recording the statement of these persons, P. W. Abdul Ghafoor went to Hala Purana Police Outpost at about 2.15 p. m. The same day and according to his deposition the appellants came there and surrendered himself before P. W. Abdul Ghafoor alongwith his blood-stained hatchet. The accused was wearing at that time a white shirt and white shalwar which also appeared to be stained with blood. The S. H. O. Secured these clothes and sealed them in the presence of the mashirs. Appellant Gul was then taken to Bala Police Station. On 3August, 1971 the appellant and the witnesses were produced before the Civil Judge and First Class Magistrate for their 164, Cr. P. C.
Statements. The S. H. O. Then examined Nekmard Ghulam Mohammad (P. W. 3). The blood-stained articles were sent to the Chemical Examiner and according to his report the earth, hatchet, the shirt of the appellant as well as the clothes worn by the deceased at the time of her death, and secured by the police were all stained with human blood.
4. According to the post-mortem report (Exh. 26) the following two injuries were found on the dead body of the deceased Mst. Kaima w/o appellant Gul:-
(i) Incised wound on left side middle of the neck measuring 3" x 1" muscle deep carotid vessels cut.
(ii) Incised wound just below injury No. 1 measuring 3" x 1/6" skin deep.
The Medical Officer, Hala certified on the post-mortem report that in his opinion death had been caused by shock and haemorrhage as a result of injuries and injury No. 1 was individually sufficient to cause instantaneous death. In his statement before the committing Magistrate, Medical Officer Jamilur Rehman's who had performed the post-mortem stated that the injuries on the dead body of the deceased appeared to have been caused with sharp weapon, like the hatchet.
5. The appellant had, in his statement before the committing Magistrate denied the charge that be had murdered his were but he admitted the allegation of the prosecution that before this incident the appellant had seen Yaroo visiting his house and meeting his deceased were.
6. In his statement under section 342, Cr. P. C. Before the learned Sessions Judge, he denied the charge that he had murdered his were but admitted that he had seen his were in compromising position with Yaroo twice during 12 months prior to this murder. The entire statement of the accused made before the Sessions Judge, Hyderabad may be reproduced here:- Q.---Your lower Court statement has been read out to you. Do you want to adhere to it here?rd A.--Yes Sir.
Q.-You have heard the prosecution evidence that you caused the death of your were Mst. Kaima while she was sleeping on a cot in the courtyard of your house by giving her hatchet blows.
What have you to say ?
A.-I have not killed my were.
Q.-It is.-stated that you suspected your were to be on illicit term with your neighbour Yaroo and you .Complained about it to Nekmard Kazi Ghulam Mohammad but he took no action. You, therefore, killed your were?
A.-I had seen my were in compromising position with Yaroo twice during 12 months prior to this murder. I had complained to Makhdoom Mohammad Zaman of Hala. He replied tome that Yaroo and others were denying these facts. He sent me to Kazi Ghulam Mohammad of Hala Purana.
Q.-It is stated that you were seen running away from your house in the morning at the time of murder of your were by witnesses Arab and Ilyas while your son Kadir Bux was running after you and crying out that you had killed your were.
What have you to say ?
A.-I have not killed my were. I do not know anything.
Q.-It is stated that on the same clay you surrendered yourself alongwith your blood-stained hatchet before S. H. J. Hala at Hala Purana Outpost and the clothes on your person were also blood-stained. The hatchet and clothes were secured by police and you were arrested. The Chemical Examiner's report shows that the blood on your shirt and hatchet was human blood?
A.-Police arrested me outside Hala Purana while I was bringing fire--wood on my head. I was then brought to Hala, to show me the dead body of my were who they said had been murdered but I had not murdered her. I had not produced any hatchet before the Police. Police had not secured my clothes. My clothes were not blood--stained.
Q.-Why do P. Ws. Depose against you ?
A.-I do not know.
Q.-Have you anything else to say ?
A.-No Sir.
7. The evidence against the appellant before this Court comprises of the ocular evidence of the complainant Kadir Bux (P. W. 4) and his brother Mehar (P. W. S) both real sons of the appellant as well as the deceased, who were present in the house when the murder took place. Then there was the evidence of Arab (P. W. 6) and Ilyas (P. W. 7), the next door neighbours of the appellant, who were attracted by the cries of Kadir Bux and who saw the appellant running away from the scene of murder with a hatchet in his hand. The prosecution had also led evidence regarding the motive and, both in his statement before the Committal Magistrate as well as before the Sessions Judge under section 342, Cr. P. C., the appellant admitted that his were, the deceased, was on illicit terms with Yaroo. Apart from this, there was the evidence relating to recoveries and the evidence of S. H.
O. Abdul Ghafoor (P. W. 10) accord--ing to whom the appellant had surrendered himself before the S. H. O. On the day of the incident. Medical evidence also confirmed that the deceas--ed was killed on the day of incident through hatchet injuries.
8. The two witnesses, P. W. 4 Kadir Bux and P. W. 5 Mahar at the time of their evidence before the Sessions Judge, Hyderabad resiled from their statements under section 164, Cr. P. C. And P. Ws. 6 and 7, namely, Arab and Ilyas also changed their version to a certain extent at the trial.
9. The learned Sessions Judge, while dealing with this change in the testimony, observed that all the prosecution witnesses were close neigh--bours of the appellant while two of them were his own sons and they had accordingly tried to take obliging statements in favour of the appel--lant in order to save him from punishment. According to the Sessions Judge, therefore, their evidence had to be judged as a whole in the light of surrounding facts and in the circumstances of the case. After dealing with the entire evidence in a very well-reasoned judgment, the learned Sessions Judge came to the conclusion that the ocular and circumstantial evidence taken together left no room for any doubt regarding the murder of the deceased having been committed by the appellant. The appellant had not led any evidence in his defence.
10. When this Jail appeal was filed, it was found that the appeal was time-barred by five years five months and 20 days. The facts that can be gathered from the file show that on 29June, 1977, when the Superintendent, Central Prison, Hyderabad was making his usual round, the appellant/convict requested the Superintendent for filing a jail appeal against the judgment, passed by the Sessions Judge, Hyderabad on 30th August, 1972. On the same day the Superintendent requested the concerned Court for supply of a copy of the judgment vide his office Letter No. 3876 dated 29th July 1977. The Superintendent, Central Prison, Hyderabad further stated in his letter of 7th March, 1978 addressed to the Superintendent (Criminal Branch), Sind High Court, Karachi that, on perusal of the record it had been found by the Superintendent, Central Prison, Hyderabad that at the time of his admission the appellant had declined to file the jail appeal. Copy of the judgment of the trial Court was received by the Superintendent, Central Prison, Hyderabad on 5th March, 1978 and under cover of his aforesaid letter dated 7th March, 1978, the Superintendent, Central Prison, Hyderabad forwarded to this Court the copy of judgment as well as the grounds of jail appeal moved by the appellant.
11. In the memo of the Jail appeal dated 7March, 1978, the appellant had stated that when he was confined in the Central Prison, Hyderabad, the then Superintendent of Jail. Enquired from him whether he wanted to prefer an appeal but "due to the heavy load of the sentence over my mind I declined to appeal at the time of admission. Hence I or any of my relatives did not prefer to appeal.
The appellant then goes on to state that on the visit of the Superintendent Jail (apparently on 29th June, 1977 as mentioned by the Superintendent in his letter dated 7th March, 1978) he requested that appeal be filed from jail as he was a bit better than before. He prayed for condonation of delay and also stated that he was an old man of about 60 years and had undergone at that time about six years' imprisonment.
12. Before the admission of the above appeal, this Court vide order dated 3rd May, 1978, while observing that the appeal was undoubtedly hopelessly time-barred but being an appeal against the conviction the Court wanted to bear the learned Advocate-General, issued notice to the Advocate-General. On 24th May, 1978, after hearing the Assistant Advocate----General who had argued that their appeared no valid reason for condoning the delay in filing of the present appeal, this Court admitted the appeal as the sentence was imprisonment for life subject, however, to the condi--tion that the question of limitation would be considered at the time of final hearing.
13. We find no reason whatsoever for condonation of delay which in the present case is for about 5- - years. Reasons given by the appellant that there was load on his mind when he was convicted and accordingly he had declined to file the appeal but later on after the passage of about five years he had become a bit better and was accordingly filing the appeal, cannot be considered as sufficient ground for the condonation of delay.
14. In the circumstances we are of the view that this appeal is hopelessly barred by time and is liable to be rejected on this ground alone. Even otherwise on merits also we do not find any ground or reason to take a different view then taken by the learned Sessions Judge, Hyderabad.
15. As a result this appeal is dismissed and the conviction and sentence of the appellant through judgment dated 30August, 1972 of the learned Sessions Judge, Hyderabad are maintained. th th th