GHOUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Is directed against the judgment dated 1st April, 1976 of the learned IInd Additional Sessions Judge, Nawabshah, whereby he convicted the appellant Haji Usman under section 302, P. P. C., and sentenced him to imprisonment for life and also to pay a fine of Rs. 500 or in default of payment of fine to undergo further R. I. For three' months more. There is also a Suo Motu notice issued to the appellant as to why his sentence be not enhanced. We shall dispose of the appeal as well as Suo Motu notice by this judgment.
2. The facts about the incident are given by the complainant Haroon son of Abdullah Bughio resident of village Moulvi Mohammad Dawood, Taluka Moro of District Nawabshah, in his F. I. R.
Which he lodged on 2nd April, 1975 at 18.30 hours at Police Post Pabjo of Police Station, Doulatpur of District Nawabshah, which reads as under :- "Juwan and Saleh are my caste fellows and relatives. About 12 months back, Saleh gave Mst.
Bhawal niece of Saleh in marriage to Juwan Bughio. About one month ago, Juwan stopped his wife Mst. Bhawal from visiting the house of Saleh. Today at about noon time, Saleh said to me and Kbair Mohammad that we should accompany him to Juwan as he has to arrange for "Urs" ceremony, hence Juwan should allow Mst. Bhawal. There after we together came to Juwan. Juwan was present in house. We asked him regarding permission of Mst. Bhawal but he refused, Whereupon Mst. Bhawal being annoyed went and slept on the cot lying in front at the house. We stood up and started going. While we were getting down from the raised platform, we heard cry of Mst. Bhawal from back side. We saw that Juwan was having a pickaxe "Chanjoor" and was giving blows on neck of Mst. Bhawal. We rushed while raising "hakkals" and captured Juwan. We found that the head of Mst. Bhawal was separated from the body and she had also received blows on right side of the back. Juwan told us that neither Mst. Bhawal would be alive nor Saleh will take her. Thereafter, Saleh advised me to go and inform respectable person Mehmood about the above incident. I then deputed the above persons to keep guard over accused Juwan and dead body. Thereafter other persons from the village also came there. I left them there and went to Mehmood, who was at the lands to whom I narrated the above incident. He advised me to go and lodge report with the Police.
I have come to lodge report to the effect that Juwan had committed murder of his wife Mst. Bhawal by giving her pickaxe "chanjoor" blows for the reason that neither she would be alive nor Saleh will take her. I lodge complaint, action be taken."
3. The F. I. R. Exh. 15 was recorded by Ghulam Kader, A. S. I., who was Incharge of the police-post and he forwarded the same to the Police Station which was subsequently incorporated in 154, Cr. P. C.
Book, by S. H. O. Nazir Hussain on 3rd April, 1975 at 18.15 hours. The A. S. I. Proceeded to scene of offence which was situated in the house of the appellant/accused Juwan, in village Moulvi Mohammad Dawood Taluka Moro it was shown by the complainant Haroon where dead body of Mst., Bhawal was lying and the accused/appellant was sitting tied up there. He also saw blood and a blood-stained Chanjoor" lying at the wardat. He secured the blood-stained earth and sealed it and prepared such a mashirnama Exh. 10 in, the presence of mashirs Mehmood and Abdul Karim.
He also prepared the inquest report Exh. I l of the deadly of Mst. Bhawal in presence of same mashirs and sent it through P. C. Mohammad Kamil to the Medical Officer, Moro for post-mortem examination.
He arrested the accused who was sitting tied up at the wardat and was wearing a blood-stained shirt which he secured, sealed and prepared such a mashirnama Exh. 12 in presence of same mashirs. He also secured a blood-stained "Chanjoor" which was produced before him by P. W.
Saleh at the wardat. He sealed it and prepared such mashirnarna Exh. 13 in presence of same mashirs. He then examined P. Ws. Saleh, Khair Mohammad and Mehmood. He thereafter handed over papers to S. H. O. Nazir Hussain for verification. Nazir Hussain S. H. O., sent the blood-stained articles to the Chemical Analyser for examination and challaned the accused.
4. The prosecution case is mainly based on ocular testimony, corroborative evidence of Mehmood, recoveries of blood-stained clothes and a blood-stained "chanjoor", medical evidence, Chemical Analyser's positive report Exh. 19 and circumstance of the appellant/accused being captured on spot immediately after the occurrence alongwith a blood--stained "Chanjoor".
5. The accused has himself admitted to have killed Mst. Bhawal in his statement before the trial Court and according to him, he killed her as it was from God. He has prayed for mercy.
6. The medical evidence shows that the deceased Mst. Bhawal died due to shock and haemorrhage as a result of injuries received from a sharp-cutting weapon such as hatchet or "chanjoor", Dr. Abdul Sattar, Medical Officer, Tehsil Hospital, Moro who performed the autopsy has thus supported the prosecution case.
7. The point for determination is whether the offence was committed by the appellant or somebody else ? If yes, whether he committed the murder under some provocation or he bad intention to kill the deceased. In this regard the prosecution has led the evidence of eye-witnesses, complainant Haroon P. W. 2 and Saleh P. W. 3, corroborative evidence of Mehmood P. W. 4, who is also a mashir of recoveries of blood--stained clothes and "Chanjoor", medical evidence and report of the Chemical Examiner Exh. 19.
8. We will first of all examine the evidence of eye-witnesses so as to satisfy ourselves if it is worthy of reliance for upholding the conviction and sentence of the appellant. The complainant Haroon P.
W. 2 and Saleh P. W. 3 are related to the appellant as the complainant Haroon is sister's son of the appellant Juwan whereas Saleh P. W. 3 is uncle of his wife Mst. Bhawal (deceased) and also distantly related to him. They have stated that they went to the house of the appellant/accused on the day of the incident and requested him to allow his wife Mst. Bhawal to go to the house of Saleh P. W. 3 to attend "Urs" feast which had been arranged by him. The appellant Juwan refused such a permission to Mst. Bhawal who became annoyed. She therefore went and slept on a cot in courtyard of her house to show her annoyance to her husband. The complainant Haroon aced Saleh left the house after it. They had hardly covered a few paces when they heard cries of Mst.
Bhawal they therefore returned and saw that the appellant/accused was inflicting a "Chanjoor" blows to her who died instantaneously on the wardat. Saleh P. W. 3 asked the complainant Haroon to inform Mehmood; their Nekmard, and the complainant accordingly narrated the above incident to him who advised him to lodge report with the Police. He, leaving Khair Mohammad and Saleh to stand guard over the accused /appellant went and filed such report with the police. Mst. Bhawal is "Phuphat" of the complainant.
9. Mehmood P. W. 4 who is admittedly a Nekmard of the parties and also a mashir for inspecting "wardat" arrest of the accused/appellant, securing of blood-stained clothes from his person and a "Chanjoor". He has stated that the complainant Haroon went to him at about. 2,00 p. m., and informed him about the appellant having killed his wife Mst. Bhawal who became annoyed with the appellant/accused as he did not permit her to go with Haroon and others. He has also supported the recoveries of blood-stained clothes from the person of the appellant a "Chanjoor" and the arrest of the appellant/accused from the, scene of offence where he was sitting tied up. He has also admitted in cross--examination that the complainant had informed him that Mst. Bhawal had altercation with her husband when he did not allow her to go with him.
10. The medical evidence as discussed above proves death of the deceased as a result of injuries by a sharp cutting weapon such as ---Chanjoor".
11. The report of the Chemical Examiner Exh. 19 is positive showing "Chanjoor", earth and white shirt to be stained with human-blood.
12. Mr. Nooruddin Sarki, the learned counsel appearing for the pauper appellant/accused has contended that the appellant had no intention to commit murder of the deceased as the incident which resulted in death of the deceased had actually occurred at the spur of moment when the deceased insulted the appellant by abusing and throwing a shoe to him. It was only after this that the appellant was gravely and suddenly provoked and he attacked the deceased with a "Chanjoor" which resulted in his death. Therefore the offence would not fall under section 302, P. P. C. But under section 304(11), P. P. C. The appellant's case therefore would be one of grave and sudden provocation. He has therefore contended that conviction under section 302, P. P. C. Be altered to one under section 304(II), P. P. C. The appellant has admitted to have killed his wife but under different circumstances which developed at the spur of moment. It has also been contended that there being no motive for commission of offence under section 302, P. P. C., the suo motu notice issued for enhancement of the sentence be vacated.
13. Mr. Murtaza Hussain, the learned counsel for the State has frankly stated that the suo motu notice issued to the appellant for enhancement of his sentence be vacated as the appellant has killed his wife under such circumstances which prompted at the spur of moment. As far as his conviction under section 302, P. P. C. And sentence awarded to him is concerned, he has contended that the ocular testimony supported by an evidence of corroborative witness Mahmood coupled with a fact of recoveries and the appellant having been captured on the spot after the incident have proved the guilt of the appellant beyond any reasonable doubt. There are 'absolutely no circumstances to alter the conviction under section 302, P. P. C. To one under section 304, p. P. C.
He has therefore supported the conviction and sentence awarded to tire appellant fully.
14. We have heard the learned counsel for the appellant as well as State. We have carefully examined the ocular testimony consisting of the witnesses who are related to the appellant/accused as well. There is nothing to disbelieve both the eye-witnesses particularly when the appellant/accused himself in his statement under section 342, Cr. P. C., before the trial Court has stated that they have rightly stated that he had killed his wife. We therefore entirely believe their evidence which is even otherwise worthy of reliance. It has also been supported by Mehmood P. W. 4 who is corroborative witness and a mashir of recoveries of blood-stained clothes and "Chanjoor". The appellant used the "Chanjoor" for causing injuries to the deceased. It has also been satisfactorily proved by the prosecution that the appellant/accused was arrested by the Police from scene of offence where he was tied up and made to sit by the eye-witnesses after the occurrence.
15. We have considered the contentions of the learned counsel for the appellant as well as State.
We do not find any force in what has been stated by the learned counsel for the appellant after carefully examining all evidence against the app911ant. We are in full agreement with the learned counsel for the State that there is sufficient satisfactory evidence to maintain the conviction and sentence awarded to the appellant by the trial Court. The appellant has inflicted such injuries with a heavy sharp-cutting weapon as "Chanjoor" with no other intention but to kill her and has therefore been rightly convicted and sentenced to imprison--ment for life. We also agree with the learned counsel for the State that there was no prior motive for commission of offence. The incident has occurred as a result of a request to the appellant to allow the deceased to attend "Urs" feast arranged by Saleh P. W. 3, which was followed by an annoyance from the deceased. There are really no circumstances to enhance the sentence already awarded to the appellant, therefore the sou motu notice issued to the appellant for his enhancement of the sentence is hereby vacated.
16. In the result, we maintain the conviction and sentence awarded to the appellant and dismiss his appeal.