1. This appeal is directed against judgment, dated 2nd September, 1978 of learned Sessions Judge, Thatta whereby appellant has been convicted for offences under sections 302 and 324, P. P. C. And has been sentenced to life imprisonment on the first count and to R. I. For one year on the second count.
2. Shortly stated prosecution case is that appellant Popat was married to.Deceased Mst. Mani, daughter of complainant Sangram and used to live with her in village Qaisar near Tando Adam, District Sanghar. Deceased Mst. Mani used to keep bad health and a few days before the incident she came with her husband appellant to the village ofcomplain--ant Sangram. After staying a night there complainant, deceased and appellant went together to the house of P. W. Ramoo, who is husband of Mst. Jamna, sister of the deceased and daughter of the complainant and amulet was obtained from Mohin Kolhi for treatment of deceased Mst. Mani and after staying for 2 or 3 nights in the house of P. W. Ramoo, appellant wanted to take his wife back to his village but she resisted on the ground that she wanted to stay for a few days more with her sister. Appellant persisted to take her away and on the day of the incident i.e. 9th October, 1975, at about 12-30 noon appellant took deceased with him and were followed by complainant Sangram and P. W. Ramoo to catch a bus from Jherruk. When appellant and deceased reached at K. B. Feeder culvert at National Highway, Mst. Mani requested her husband to allow her to stay for a few days more in the house of her sister, upon which appellant exchanged with her harsh words, took out a dagger from the fold of his trousers and gave her a stab-wound on her abdomen in the result whereof she became injured and fell down bleeding. Near the spot several persons were present and from them P. W. Badal rushed to rescue the deceased and attempted to snatch the dagger from the appellant. In the struggle appellant gave injury to P. W. Badal, who ultimately succeeded in snatching the dagger. Appellant jumped into the water of canal. Incident was seen by several eye- witnesses including Sangram and Ramoo. Witnesses went near and found Mst. Mani in injured condition and she had become unconscious. Complainant Sangram and injured P. W. Badal went to Police Station, Jherruk where Sangram lodged F.I.R. And P. W. Badal produced blood-stained dagger snatched from the appellant. Muhammad lqbal Head Constable I/C. Police Station registered report and secured dagger produced by P.W. Badal. He prepared mashirnama of injury of P. W. Badal and sent him to the hospital for oft examination and treatment. He visited scene of offence which was pointed out by the complainant Sangram. He found Mst. Mani injured lying under a Babul tree on the bank of K. B Feeder near the bridge where she was removed by the witnesses. He prepared mashirnama of injuries and sent her to the hospital. He found appellant Popat in the water of K. B. Feeder near the bridge and called him out and took him in custody. He prepared mashirnama of arrest and inspected the scene of offence and secured blood-stained dust. He recorded statements of the witnesses present there and then took the appellant in custody to police station. He submitted papers of the investigation to the S. H. O. And in the meantime constable who accompanied injured Mst. Mani to the hospital came back with news that Mst. Mani died on the way. After completion of investi--gation challan was presented in the Court.
3. Prosecution has examined 15 witnesses in support of its case. Ocular testimony is furnished by 6 eye-witnesses namely P. W. 11 Sangram com--plainant, P. W. 2 Badal, P. W. 5 Khudadino, P. W. 6 Nabi Bux, P. W. 9 Yaqoob and P. W. 12 Ramoo, P. W. 1 Dr. Muhammad Siddik conducted post-mortem examination on the dead body of Msr. Mani at L.M.C. Hospital, Hyderabad. He found one incised wound cavity deep at the epigastric region. According to the doctor this injury had caused internal damage and had cut the spleen. Cause of death was due to shock and intra abdominal haemorrhage. P. W. 7 Dr. Muhammad Tayyab examined injury of P. W. Badal and issued such medical certificate, Exh. 20, According to the doctor P. W. Badal had sustained incised wound 1 --" x 1/3 muscle deep on his left cheek. P. W. Khamiso is a mashir who has attested mashirnamas, Exhs. 9 to 13. P. W. Muhammad is also mashir who has attested mashirnamas, Exhs. 12 and 13. P. W. 10 is Mr. Muhammad Shafi, Mukhtiarkar and F. C. M. Who has recorded judicial confession of the appellant and produced the same as Exh.
26. P. W. 15 is Muhammad lqbal H. C. Who has investigated the case. Other witnesses are formal in nature. Prosecution has produced report of Chemical Examiner, Exh. 37 which is to the effect that earth, dagger and clothes of deceased were found to be stained with human blood.
4. In his statement under section 342, Cr. P. C. Recorded by the trial Court, the appellant has denied the prosecution allegations. He stated that on the day of the incident he was going with his wife when at the bridge over K. B. Feeder, P. W. Badal misbehaved with his wife and he resented it. Badal took out a dagger and tried to assault him but his wife intervened and in the result she became injured. Appellant has further stated that he jumped into the water fearing assault from Badal.
5. Appel--lant has denied that dagger was snatched from him and has retracted from his judicial confession saying that he was maltreated by Police and his L.T.I. Was obtained on the confession forcibly. He has stated that he has been implicated falsely in the case to save Badal. Badal and Ramoo are haris of one and the same zamindar. Other witnesses are related to Badal.
6. Complainant Sangram is under the influence of Ramoo. Appellant further declined to produce any witness in his defence. Prosecution has produced several pieces of evidence to prove case against the appellant. Ocular testimony is furnished by as many as 6 eye-witnesses. From these eye- witnesses P. W. Badal is an injured eye-witness and has received injury on his cheek while he tried to save Mst. Mani and attempted to snatch the dagger from the appellant. This witness is not related to the com--plainant and has absolutely no reason whatsoever to implicate falsely appellant. He has deposed that on the day of the incident he was waiting at the bus stand when he saw one man and a lady coming towards the bridge. He further saw two persons following the couple. The couple had a loud talk in the language which he did not understand. The man took out a dagger and stabbed the lady. He intervened to save the lady and the assailant struck him with dagger on the left side of the face. He grappled with the assailant and succeeded in snatching the dagger from him and in that process the appellant fell down in the canal water. Presence of this witness at the spot cannot be denied because he was injured. His name appears in the F. I. R. And this witness had produced dagger at police station before the Investigating Officer. He did not know the complainant or the deceased or the appellant before. He had no reason to falsely implicate the appellant. Another thing which is very prominent in the evidence of this witness is that allegation made by the appellant in his 342, Cr. P. C. Statement that P. W. Badal misbehaved with the deceased and attempted to assault to appellant with a dagger but Mst. Mani intervened and was injured, is not put to this witness by the defence in the cross-examination of this witness before the trial Court. Absence of such suggestion to this witness is indicative of the fact that the plea taken by the appellant in his 342, Cr. P. C. Statement was an afterthought and is false. Injury on P.W. Badal is medically proved. I find no reason to discredit this witness. Similarly P. W. 5 Khudadino, P. W. 6 Nabi Bux and P. W. 9 Yaqoob are independent and disinterested witnesses who have no relationship with the complainant and no enmity with the appellant. P. W. 5 Khudadino has a hotel near the bus-stand. His presence at the spot is well accounted for. He has fully supported the prosecution case. Similarly P. W. 6 Nabi Bux and P. W. 9 Yaqoob who were present near the bus- stand and saw the incident have fully supported the prosecution case. This witness Yaqoob is brother of P. W. Badal. There is nothing in the cross-examination of these independent witnesses to suggest that they have not seen the incident or falsely implicated the appellant. They have nothing to do with the appellant or the complainant who are kothis. Similarly P. W. l I Sangram complainant who is father-in-law of the appellant and P. W. Ramoo who is hushand of the sister of deceased have fully supported the prosecution case as eye-witnesses. Although both these witnesses are related to the deceased but at the same time they are related to appellant also. Their presence at the spot cannot be disputed for the reason that they had come to see off appellant and deceased at the bus-stand. Complainant Sangram has lodged F.I.R. Promptly without any delay within half an hour from the time of the inci--dent. Name of P. W. Ramoo is mentioned in F. I. R. As eye-witness.
7. These witnesses have no reason to falsely implicate appellant Popat who is clearly related to them.
8. Plea taken by appellant in his 342, Cr. P. C. Statement that P. W. Badal misbehaved with deceased and on his protest assaulted him with dagger and deceased Mst. Mani intervened and received injury, is palpably false for the reason that as stated above no suggestive question was put to P. W.
9. Badal when he was being examined in the trial Court. The plea taken by the appellant is false for the reason that had the incident taken place in the manner stated by the appellant, complainant Sangram and P. W. Ramoo would have not saved Badal to falsely impli--cate their own relative appellant Popat. In the circumstances and for the reasons mentioned above I find no defect in ocular testimony given by these 6 eye-witnesses. Of course there are very minor discrepancies in the evidence of these witnesses but they are trivial in nature and are insignificant.
10. Another very strong piece of circumstantial evidence is that appellant immediately after the assault fell down in the canal water near the spot and remained stranded there till the arrival of Police and was 'taken out from the water and arrested. It is expedient by the prosecution that since the appellant remained in water for sufficient time blood on his clothes had washed out.
11. Mashirnama of arrest of appellant, Exh. 9 on the record shows that during the search of his person one cover made of lai wood of a dagger was recoverd from the left side fold of his trousers.
12. Recovery of this sheath of dagger from the possession of appellant clearly proves that the dagger was with him and not with Badal as alleged by the appel--lant. P. W. 3 Khamiso mashir who has attested various mashirnama prepared during the investigation has not supported the prosecution case. Co-mashir Muhammad Ismail examined as P. W. 8 has supported the prosecution case and re-affirmed the contents of mashirnama as Exhs. 10 and I1 which relate to the injury of P. W. Badal and production of dagger by P. W. Badal at police station. In addition to this I find no reason to disbelieve the Investigation Officer on the question of recoveries and pre--paration of mashirnamas. No enmity is alleged against Investigating Officer and he has no motive whatsoever to falsely implicate appellant.
13. There is judicial confession made by the appellant which was recorded by P. W. 10 Mr. Shafi Muhammad, Mukhtiarkar and F. C. M. This judicial confession is retracted by the appellant and the trial Court has excluded it from consideration on the ground that it was recorded after a delay of 2 days and also for the reason that story contained in the judicial confession is inconsistent with the prosecution case. The story in the judicial confession is a long narration of the events which relate to the period prior to the incident. The gist of the confessional statement is that while staying in the house of P. W. Ramoo appellant found at night his wife deceased Mst. Mani in embrace with Ramoo. Appellant after seeing this act remained quiet and controlled himself. In the morning he stole dagger from the house of Mohin Kolhi and kept it concealed. While be was taking his wife to the bus-stand he saw complainant, Ramoo and Mohin coming after him. He became afraid that they would kill him hence he took out the dagger and gave blow to his wife and jumped into the canal water for self-defence. He remained in the water till police came and took him- out with a rope. This confessional statement obviously is very much inconsistent with the prosecution case.
14. This confession is inconsistent with statement of appellant recorded by the trial Court under section 342, Cr. P. C. Where he has alleged that Badal gave injury to his wife. On the face of it the confession does not appear to be truthful version of the incident. For the reason mentioned above no reliance can be placed on this confession.
15. The case of the prosecution stands fully established by overwhelming evidence of convincing nature convicting appellant with commission of crime. The learned counsel for the appellant submitted that from the evidence of prosecution it appears that something had happened between appellant and his wife before the incident which provoked appellant to stab her. On this point the prosecution case is that deceased kept on requesting the appellant to allow her to stay in the house of her sister for a few days more but the appellant persisted to take her back home. In any case deceased Mst. Mani had accompanied appellant from the house of her sister and was on way to bus-stand when the incident took place Even if she implored the appellant on the way to allow her to stay for a few days more does not entitle the appellant to be provoked so much cause her death by stabbing her with a dagger. This particular circumstance as to what was the talk between the appellant and the deceased before the incident the trial Court has already considered it as extenuating circumstance not to award capital punishment.
16. For the facts and reasons mentioned above I find no justification to interfere with impugned judgment which is hereby upheld and in the result appeal is dismissed.