This appeal under section 410, Cr. P. C. Is preferred from Jail by the appellant and is directed against the judgment dated 1-4-1980 of the learned Sessions Judge, Sanghar, whereby he convicted the appellant under section 302 P. P. C. And sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 2,000 as compensation to the heirs of the deceased and in default of payment of fine to suffer further R. I. For 3 months. He was also convicted under section 307, P. P. C.
And sentenced to undergo R. I. For three years. The sentences are of course ordered to run concurrently.
2. The facts of the prosecution case are that one Sawan son of Ramzan, Machbi by caste, resident of Laiq Pir of District Sanghar lodged his F.1. R. On 14-6.1976 at Police Station Phuladion of District Sangbar which reads as under;-- "I, Yousuf, Yakoob, Ghazi and Wassayo by caste Machhi are cultivating land of Haji Ali Sher Maree on "Harap" basis. Our houses are separate, close to each other. Our houses are surrounded by a hedge and there -is an entrance from the East of my house for passage and from South there . Is an open alley. Today on 16-6-1976 in- the morning I went to my land for working at my cotton crop.
Ghazi, Wassayo, Yakoob and Yousuf also went to their land for working and looking after the same.
At about 4-30 p.m., there were cries of `murder; murder;' from the side of my house. I went running there and found that Yakoob. Yousif and Kaloo alias Alidino were standing at the courtyard of our house and Amir Bux was duly tied there. Kaloo was bleeding from the side of his face. I made enquiry from Yarkoob, whereupon he said that 'I and Kaloo were working at the land and were looking after the cattle there near our houses, when there were cries from the house. We both went running there and found that Amir Bux was armed with hatchet. He gave 'hakal' to his wife Mst.
Sahil to the effect that he will kill her. Upon this I and Kaloo gave him a ' hakal' not to kill maternal- aunt. On our saying so, Amir Bux gave sharp-sided hatchet blows to Mst. Sahil on her occiput and near the face within our sight, as a result of which she fell down. Amir Bux proceeded ahead towards us and gave sharp-sided hatchet blow to Kaloo and his face. Thereafter I grappled with maternal uncle Amir Bux and thereby captured him. Had I not captured maternal-uncle Amir Bux, he must have also killed Kaloo. There--after I and Kaloo. Tied, him and made him sit there. Kaloo was bleeding from his face. Now you have come and I narrate the above facts to you.' On having these facts from Yakoob. I and Yakoob went together and saw our sister Mst. Sahil who had died and was bleeding from her occiput and mouth. Accused and the weapon used by him are in the custody of Yaqoob at the place of occurrence. Accused Amir Bux used to ask my sister Mst. Sahil, his wife, that he will kill her as she was Kari'. On having these facts, I have come here at the Police Station to lodge the report. Justice be done."
3. Muhammad Qasim A. S. I., P. W. 6, recorded the F. I. R. Bxh.
15. He went to the scene of offence accompanied by Haji Ali Sher and Muhammad Bux mashirs. He found injuries on person of P. W.
Kaloo and prepared such mashirnama Exh.
9. He examined him and then sent him to the hospital for examination, treatment and certificate. The accused Amir Bux who had three injuries on his body. Was produced before him by Yakoob P. W. 1 at the scene of offence. He noted injuries, secured his blood-stained loin cloth and "Ajrak", sealed it and arrested the. Accused and prepared such mashirnama Exh. 20: Yakoob also produced blood-stained hatchet which he secured, sealed and prepared such Mashirnama Exh.
21. He then inspected the scene of offence which was situated in the house of the complainant "Sawan" where dead body of Mst. Sahil was lying with injuries on her body. There was also blood on the ground and he secured the blood-stained earth, sealed it and prepared such mashirnama and the inquest Report of the dead body Exhs. 22 and 23 respectively. He then sent the dead body to the medical officer through P. C. Ilyas for post-mortem examination. He recorded statements of Yakoob, Yousuf, Wassayo, Ghazi, Muhammad, Mst.
Sohagan, Mst. Naimat Mst. Lali and Mst. Marul. He then banded over the police papers to the S. H. O.
On 29-6-1976 who challaned the accused to stand trial in the Court.
4. There is no doubt that Mst. Sabil died as a result of hatchet injuries. Dr. Arif Khan Medical Officer, Phuladion who performed the autopsy has been examined and he has stated as under :- "On 15-6-1976 I was Medical Officer, R. H. O. Phulladion when at about 8-00 a.m.. I received the dead body of Mst. Sabil wife of Amir Bux Machhi through P. C. Muhammad Ilyas from P. S. Phulladion for post-mortem examination and certificate. The body was identified by (1) Sawan son of Ramzan brother, (2) Imam Bux son of Daud brother-in-law: I started the post-mortem examination at about 8-30 a.m. And finished at about 9-30 a.m. Dead body was of a Muslim female aged about 35 years. Body was stout, rigor mortis were present. On external examination of the dead body I found the following injuries
(1) Incised wound 5' x 1 -- ' x 2 -- ' at right side of face extending down--wards up to the middle of chin, cutting and fracturing the right mandible. The teeth on right lower jaw have been cut and broken and pushed into the mouth.
(2) Incised wound 1 -- ' x -- ' x --at the outer surface of lower 3rd of right upper arm.
(3) Incised wound 7' X 4' x 3' at the back and right side of the neck, cutting the muscles and cutting and fracturing the 2nd cervical vertebra and spinal cord. The neck was attached with skin and muscle only on front and left side.
(4) Incised wound 3 -- ' x 1/6' X 1/8' at the back of upper part of right side."
On internal examination of the dead body I found as follows;-
(1) The heart was found empty.
(2) The small intestines were full of gas and semi-digested food material.
(3) The stomach was found full of gas and semi-digested food material.
(4) The large intestine was full of gas and digested food material.
(5) The bladder was empty.
(6) The uterus was found empty. No staining of blood or semen on vagina and thighs."
In my view, the injuries were caused by sharp cutting weapon such as hatchet. Injuries Nos. 1 and 3 were individually sufficient to cause death in ordinary course of nature. Injuries were ante-mortem in nature. Death was caused immediately on sustaining the injuries. Time that elapsed between death and post-mortem examination was bout 12 to 16 hours. Deceased died due to shock and haemorrhage consequent upon above mentioned injuries. I issued such post-mortem notes which I produce as Exh.
26. It is same, .Correct and bears my signature."
He also produced the. Post-mortem report as Exh. 26.
5. The accused in his statement before the trial Court denied the allegations of committing murder of Mst. Sahil. He has however stated that the deceased Mst. Sahil was his wife and he was provoked on seeing her with Zamindar Haji Ali Sher. He had a hatchet in his hand and he gave injuries to the deceased Mst. Sahil and P. W. Kaloo in self-defence. He has further stated that he gave him one hatchet blow. He has been implicated in this case by Haji Ali Sher.
6. The point for determination is whether Mst. Sahil was murdered by the accused or he killed her under grave and sudden provocation? Whether he caused injuries to P. W. Kaloo in right of his private defence of his person?
7. At the trial, the prosecution examined the complainant Sawan and eye-witnesses Yakoob and Kaloo. The complainant has deposed to facts given by him in the F.
1. R. He has stated that he came on the scene of offence on commotion immediately after the incident as he heard cries of 'murder'! 'murder;' He was informed of the incident by the eye-witnesses P. Ws. Yakoob and Kaloo. He found his sister lying dead and the accused sitting tied on the scene of offence.
P. Ws. Yakoob and Kaloo, are eye-witnesses, who attracted by cries went on the scene of offence.
They have stated that they found the accused inflicting injuries to Mst. Sahil. They have also stated that the accused also attempted to kill P. W., Kaloo and he inflicted a hatchet injury to him which has been certified to be grievous in nature caused by sharp cutting weapon such as a hatchet.
Dr. Arif Khan who examined the injured of Kaloo has stated that he found the incised wound 5' x 1' xon the left side of mouth up to the left ear. His teeth were visible from the wound. The cheek has been cut up to the teeth, cutting and fracturing the 2nd left premolar tooth and one left molar tooth." He has stated that the injury was therefore grievous.
Haji Ali Sher mashir and the Investigating Officer Muhammad Qassim have supported the arrest of the accused from the scene of offence, recoveries of hatchet and clothes from him.
As the accused in the first instance tried to set up his case that he was an insane person. He was therefore referred to the Mental Hospital for examination on this point. Dr. Ghulam Sarwar P. W. 1 and Dr. Osaf Hussain P. W. 2 have been examined and they have stated before the trial Court that the accused was not an insane person. .
8. The appellant has been produced from Jail .And he. Is ,present in person. He does not reply to any question put to him by me.
9. Mr. Murtaza Hussain, the learned counsel appearing for the State has stated that the prosecution has successfully proved its case against the accused and the plea of grave and sudden provocation set up by him has not been substantiated by him. He therefore supports the convictions and .Sentences awarded to the appellant by the trial Court.
10. I have considered the case set up by the accused. I have also read the evidence on record and have considered the contentions of the learned counsel for the State. There is absolutely nothing on the record except oral allegation that the accused killed his wife Mst. Sahil under grave and sudden provocation when be found her in compromising position with Haji Ali Sher. The appellant has not substantiated the case set up by him except a mere oral allegation against mayhir Haji Ali Sher. The accused was 50 years of age at the time of incident and he would not have left Haji Ali Sher to run away without settling accounts with him if he had seen him in compromising position with his wife. Haji Ali Sher is sufficiently old of an advanced age of 70 years and he could not have run away from the clutches of the accused. Moreover this fact has not been supported by any other piece of evidence. There was also no evidence that Haji Ali Sher was found even near about the scene of offence. The allegation of the accused that he found him in compromising position with his wife has not been supported in any manner from the evidence on record. I therefore do not accept the plea set up by the accused in his defence. It being mere allegation, without any material on the record, cannot be accepted under the circumstances o the case.
11. In the result, I am of the view that the pros6cution has successfully proved its case beyond any reasonable doubt and the appellant has bee rightly convicted by the trial Court and the sentences awarded to him being proper are hereby maintained. There is therefore no merit in this appear which is accordingly dismissed.