AJMAL MIAN, J.-This is an appeal filed by the Appellant/accused Khan alias Khan Muhammad son of Ghulam Hussain Bhand, against the conviction for murdering his wife Khatija recorded by the learned Sessions Judge, Dadu, on 3rd March, 1979 under section 302, P. P. C. Sentencing him to death, and also against the imposition of compensation of Rs. 2,000 to be paid to the legal heirs of the deceased under section 564-A, in default of payment 6 months' R. I. And there is also a reference from the Sessions judge for confirmation of the death sentence.
The facts leading to the filing of the above appeal and the confirmation case are that on 20th June, 1976 at 4.15 a. m. The complainant Akram lodged F. I. R. With Dadu P. S., which was situated 3 miles from the scene of the offence namely, village Meenhor Bhand. In the above complaint the complainant stated that about 3/4 months prior to the date of the incident the appellant was married with Mst. Khatija daughter of Gullan and that due to some mis-understanding between the appellant and Mst. Khatija the appellant used to give beating to Msr. Khatija. It was further stated that about 15/20 days back Gullan had taken away Mst. Khatija from the house in the absence of the appellant and that thereafter for 2/3 times appellant went to his father-in-law and asked him to return his wife, but Gullan and others gave him beating and sent him back because he had given beating to Msc. Khatija. It was further stated that 4/5 days back the appellant approached Gullan through his brother Moharram, whereupon Gullan returned Khatija to the appellant and that on the day of the incident as usual, the complainant and others went to sleep after taking night meal in the courtyard and that the appellant and Khatija were sleeping on one cot at a distance of about 10/15 paces in the house. At 2 a. m. Mst. Khatija raised cries on which Mst. Pathani mother of the appellant, who was also sleeping in the courtyard reached there ahead of the complainant.
After that the complainant, Akram, Punhoon, Alam, Qurban reached there and saw that Mst. Khatija had sharp-edged injury in her stomach. Her intestines had come out. There--upon, they made inquiries from her, who disclosed that her husband Khan had caused her injury because she had left the house without his permission. Thereafter, he had run away. It was also stated that in the meanwhile Usman, Ghulam Gullan, Khanan, Ajoo, Ramzan and others came there whom Mst.
Kliatija narrated the aforesaid facts. The motive disclosed in the F. I. R, was that Msr. Kbatija had gone to her relation without the permission of the appellant, and, therefore, he wanted to kill her.
2. P. W. 15 S. H. O. Khan Muhammad after recording the F. I. R. Saw the injury on the person of Mst.
Khatija (who was taken to the Police Station) in the presence of mashirs Chhuttal and Ali Bux and pre--pared mashirnama Exh.
8. Thereafter, he sent the injured Mst. Khatija to the Civil hospital Dadu for examination and treatment. Before sending her to the hospital, he also recorded her dying declaration Exh.
28. After that he proceeded to the place of wardat and saw, the same at the pointa--tion of the complainant in the presence of P. W. 13 Nasiruddin and Hamid--ali. He noticed that there was no blood at the place of Vardat. He pre--pared a mashirnama in respect thereof Exh.
32. He examined P. Ws. Punhoon, Alam, Qurban Ali, Khannan, Gullan, Ajoo alias Ajeeb, Ramzan Usman as well as Mst. Pathani, he also requested the Mukhtiarkar and F: C. M. Dadu on the very day for recording the dying declaration of Mst. Khatija. However, when the Mukhtiarkar came to the civil hospital according to the medical officer P. W. 14 Dr. Vishandas, Mst. Khatija was not in her senses as she was operated upon and, therefore, her state--ment could not be recorded on that day. After that on 21st June, 1976 the Mukhtiarkar and F. C. M. Recorded the dying declaration of Mst. Khatija Exh.
36. On 21st June, 1976 the appellant was produced before P. W. 15 S. H. O. Muhammad Khan, at the Dadu Police Station. He had injuries on his person of which P. W. 15 pre pared mashfrnama Exh.
9 in the presence of mashirs Miral and Chuttal. The appellant/accused was wearing yellow pehran and shalwar which had blood-stains. The S. H. O. Interro--gated the appellant, whereupon he volunteered to produce one knife which had also blood-stains. On 22nd June, 1976 the S. H. O.
Muhammad Khan received information from the civil hospital Dadu that Mst. Khatija had expired.
Thereupon, he proceeded to the hospital and saw the dead--body and prepared mashirnama Exh.
22 in the presence of mashirs Arab and Ranjho. He also challaned the appellant in the Court of Civil Judge and F. C. M. Dadu.
3. (a) The prosecution has relied upon the dying declarations made by the deceased Mst. Khatija to the persons, who reached the place of the incident upon hearing the cries, dying declaration made by her before the S. H. O. Exh. 28 and the dying declaration recorded by the Mukhtiar--kar and F. C. M. P. W. 10 Ghulam Dastgir Exh.
36. The ocular evidence relied upon by the prosecution comprised of P. W. 1 Akram, P. W. 2 Punh oon, P. W. 3 Gullan, P. W. 4 Mohammad Chuttal, P. W. 5 Dr. Allah Warayo, P. W. 6 Muhammad Alim, P. W. 7 Usman, P. W. 8 Arab, P. W. 9 Mohammad Ramzan, P.
W. 10 Ghulam Dastgir, P. W. 11 Miral, P. W. 12 Khanan, P. W. 13 Nasir, P. W. 14 Dr. Vishandas, and P. W. 15 S. H. O. Muhammad Khan. In addition to the above ocular evidence the prosecution has produced the post-mortem report Exh. 40, Medical Certifi--cate Exh. 50, X-ray report Exh. 60, mashirnama of the dead-body Exh. 22, Inquest report Exh. 23, sketch of the Vardar Exh. 45, mashirnama of Yardat Exh. 32, Medical certificate Exh. 34, Chemical Analyser's report Exh.
36. The prosecution has further relied upon the recovery of the blood--stained knife and the motive.
(b) P. W. 5 Dr. Allahwarayo carried out the post-mortem of the deceased Mst. Khatija on 22nd June, 1976 at 10.30 a. m. And completed the same at 11.40 a. m. On external examination, he found the following injury :- "incised wound about 7" in length on lower part of abdomen in transverse direction, starting from below umblicus extending towards the left lumber region. The wound was stitched."
According to the opinion of the doctor the above injury was sufficient in the ordinary course of nature to cause death and that the time between the injury and the death was about 2/3 days.
The appellant was also-referred to P. W. 5 Dr. Allahwarayo on 21st June, 1976 at 5 a.m.. By the Dadu Police Station for examination, treatment and certificate. Upon examining the accused, 1e found the following 6 injuries on the person of the accused: -
(1) Contusion 1 --" x 1 " x--" on left eye upper and lower eye lids swollen.
(2) Contusion 1 --" x 1" on left of forehead with lacerated wound 1/3rd of a inch x--" x 1" x 1/6" on its top.
(3) Lacerated wound -- " x 1 1/3" x --" on middle of left leg upper 1/3rd,
(4) Contusion 4" x 1 --" on inner aspect of right knee joint.
(5) Contusion 1" x --" just above left knee joint interrior aspect.
(6) Contusion 2 --" x 1 --" on interior aspect of right upper arm."
According to the Doctor's opinion all the above injuries were caused by a hard and blunt weapon like lathi and that the injuries were 6 hours old at the time of the examination and that all the injuries were simple except injuries Nos. 2 and 4, which were kept under observation and later on after X-ray examination injury No. 2 was found to be grievous and injury No. 4 was discovered as simple.
P. W. 14 Dr Vishandas has deposed that on 26th June, 1976 he was M. O. Civil Hospital Dadu, when at 4.30 a. m. Dadu Police referred to him Mst. Khatija wife of appellant Khan for examination and treatment, He found one injury just below umblicus transverse in direction measur--ing about 7" x 3--" abdiminal visera deep, small intestine, large intestine and mesentery coming out. He issued a certificate of the injury Exh.
36. He has further deposed that on 21st June, 1976 the Mukhtiarkar and F.
C. M. Dadu had visited the civil hospital for recording the dying declaration of Mst. Khatija and made inquiries about the state of the health of Mst. Khatija, as to whether she was in proper senses to make a statement and, thereupon, he certified that she was in proper senses and could make a statement. After that her statement was recorded by the Mukhtiarkar and he certified the above statement. He also stated that he was all the time present when the Mukhtiarkar was recording the statement.
(c) There is sufficient ocular evidence to sustain the finding of the learned Sessions Judge that the appellant had caused the injury to the deceased Mst, Khatija in the circumstances disclosed in the F. I. R. P. W. I Muhammad Akram and Q W. 2 Punhoon (both real brothers) real uncles of the appellant were living in the same enclosure in which the appellant was living with his wife and mother. The defence has not been able to shake their testimony in the cross-examination or to attribute any motive on their part to implicate the appellant falsely in the murder of Mst. Khatija.
The other witnesses who reached the place of wardat after hearing the cries or upon being informed about the incident corro--borated the testimony of the above two witnesses.
When the appellant was produced before the S. H. O. Khan Muhammad on 21st June, 1976 at 3.15 p. m., he recorded the F. I. R. At the behest of the appellant under sections 323 and 504, P. P. C. Against Majid son of Taj Mohammad Exh.
43. In the above F. I. R. The appellant stated that yesterday, he and his wife Khatija were sleeping in the house on the same cot and that at about 2 a. m., he became angry on some domestic affairs and stabbed his wife and ran away due to fear that the relatives of the deceased may not beat him. He further stated that he used to hide in the jungle and that on the above date at about 2 hours he was sitting underneath a tree at Khudabad top, when Abdul Majid came from behind and caused him lathi blows on his legs and knee joints and abused him and that in the mean while Punhoon. Sheral, Kasim, all by caste Bhund came challenging and saved him and produced him at the Police Station. He also disclosed that Abdul Majid was his mother's sister's son. However, in his statement before the Sessions Judge, he came out entirely with a new version, namely, that he and his wife were injured by P. Ws. Gullan and others because Gullan had come to take away Mst. Khatija from his house and that she refused to go with his father, and thereupon he was given injuries by P. Ws. Gullan and his companions, when they were taking away Mst. Khatija from his house and that Mst. Khatija was also injured at the same time by them. He also stated that P. W. Gullan being an influential man arranged with the do for and get a wrong time recorded in the medical certificates. The above version given by the appellant stands belied by the evidence of P.W. 5, Dr. Allahwarayo already referred to herein above, namely, that on 21st June, 1976 at 5 p. m. When he examined the appellant's injuries on his person they were 6 hours old at the time of the examination. Dr. Vishandas Exh. 14 has deposed that he had examined Mst.
Khatija on 20th June, 1976 at 4.30 a. m. And found the injury mentioned hereinabove. The version given by the appellant in the F. I. R. Lodged by him against Abdul Majid is in consonance with the medical evidence. Furthermore, the appellant's conduct after the incident (i.e. Absconding) also provides corroboration. If in fact P. W. Gullan and his companions would have caused the injuries to the appellant and to his wife at the same time, the appellant would have also been present at the place of wardat at 2.00 a. m. On 20th June, 1976. He was produced on 21st June, 1976 at the Police Station and a blood-stained knife was produced by him. We are satisfied that the conclusion arrived at by the learned Sessions Judge that the appellant had caused the fatal injury to the deceased is sufficiently proved beyond reasonable doubt. The above ocular evidence is inter alia corroborated by the recovery of the blood-stained knife and the dying declaration made by the deceased.
4. (a) Mr. Hayat Junejo, learned counsel for the appellant has urged that even if the conviction of the learned Sessions Judge is to be sustained, the two questions remain to be considered, namely-
(i) that if the offence is under section 302, P, P. C, what should be the sentence as there was a single injury.
(ii)whether the offence falls within the purview of section 304 (11), P. P. C Mr. Junejo has contended that the appellant cannot be attributed the intention to kill his wife for the reason that he had inflicted only one injury by a knife (the total length of which was about 8" i.e. 3 --" handle and of blade), keeping in view the fact that the appellant was entreating his wife for the return from her father's house. He has also invited our attention to the fact that in the dying declaration recorded by the S. H. O. Soon after the incident the version given by Mst. Khatija is different from the version given in the second dying declaration recorded by the Mukhtiarkar and F.
C. M. On a material point, namely, that before the S. H. O. She had stated that she and her husband went to sleep on the same cot towards the southern side of the house in the courtyard and also the other inmates of the house went to sleep on the cots in the courtyards and that it was 2 a. m. When my husband Khan made chit chatting with me, she asked him not do so, on which he caused her knife blow in her abdomen. (In the Sindhi version the words ---Chair Chaar--- have been used.)
Whereas before the Mukhtiarkar in the dying declaration (which was made after about 2 days), her version was that about a day back she was sleeping with her husband on the same cot when at dawn prayer time her husband caused her knife blow on her stomach. She woke up and saw that her husband Khan Muhammad caused her knife injury. In the second dying declaration apparently an attempt to improve upon the first dying declaration has been made in order to make out a case of premeditated murder.
(b) On the basis of the dying declaration recorded by the S. H. O. It was urged by Mr. Junejo that the very fact that at 2 a. In. The appellant started doing ---Chair Chaar--- indicates that he wanted to have access to his wife and upon her refusal, he was provoked and caused the injury, and therefore, the offence falls within the purview of section 304 (ii) and not under section 302, P. P. C. In support of the above contention Mr. Junejo has referred to the case of Abdul Rashid v. State (1974 P Cr. L J 167) Since the above case has not been fully reported but only synopsis has been given, the ratio decidendi of the above case cannot be appreciated. However, in the head- note (b), it has been stated that the accused getting provoked on account of the deceased (his wife) refusal to let him have access to her, grappled with her and tried to strangulate her and then picking up a hockey stick and gave her one blow on the head which proved to be fatal, held that the conviction altered from section 302 to section 304 (ii). In our view the above case is distinguishable from the instant case inter alla for the reason that in the above cited case the accused had caused one hockey stick blow, whereas in the instant case the accused caused an injury by a knife on a vital part of the body of the nature which was bound to result in death, whereas one hockey stick blow does not normally cause death. q 1n our view simpliciter refusal by a wife to allow her husband to have access to her would not warrant provocation to the extent of causing death to his wife justifying conversion of the conviction from section 302 to section 304 (ii), however, if such refusal is coupled with same insulting remark or followed by some altercation, it may provide provocation as to furnish a mitigating circumstance to impose lesser punishment.
5. (a) It was next contended by Mr. Junejo that in any case it is a case of one injury and, therefore, death sentence cannot be sustained. In support of his above contention he has referred to the case of Mohammad Maroon Rashid and 2 others v. The State (1975 P Cr. L J 264) the case of Mahiwal v: State (1975 P Cr. L J 1121) the case of Darya Khan v. Crown (1969 SCMR 637) the case of Shami v. State (1972 P Cr. L J 149) the case of Mohammad Feroze v. Mohammad Arif and another (1976 SCMR 497) the case of Abdul Nasir v. State (1980 P Cr. L J 898) the case of State v. Balahari Das Sutrp--dhas (PLD 1962 Dacca 467), the case of Gurdev Singh v. Emperor (A I 8 1948 Lab. 58) the case of Sikandar v. State (PLD 1966 SC 555) the case of Ghulam Akbar alias Chappo v. State (PLD 1970 Kar. 621).
(b) In the above 1975 P Cr. L J 264 the accused inflicted a single blow on the head by an iron pipe lying handy at the spur of the moment, resulting in the death of the deceased, the conviction was altered from under section 302 to section 325, P. P. C. Awarding only 5 years imprisonment in place of the sentence of transportation for life.
(c) Whereas in 1975 P Cr. L J 1121, upon certain altercation over money, accused feeling insulted by the deceased's behaviour gave a hatchet blow on his head without any malice. The medical evidence was not certain if the injury was sufficient in the ordinary course of nature to cause death.
The conviction was altered from section 302 to section 304 (11) and the accused was awarded 7 years' R. I. In place of transportation for life.
(d) In the above 1969 SCMR 637 theft of a bullock was commit--ted. Accused Darya Khan and his cousin Lal Khan went to search the bullock and spotted the same with the deceased Yar Mohammad and one Karim. The deceased Yar Muhammad and Karim, upon seeing the accused and his companion left the bullock, but they were chased by the accused and his companion. The accused gave hatchet blows on the head of Yar Muhammad resulting in the death. The accused was awarded death sentence which was confirmed by the erstwhile Sind Chief Court. However, the Supreme Court altered the conviction from section 302 to section 326 and awarded 7 years' R. I. On the ground that from the facts of the case it was not quite clear that the requisite knowledge or intention under sec--tion 300, P. P. C. Was present in the mind of the appellant.
(e) Reverting to the case of 1972 P Cr. L J it may be observed that the facts were that upon refusal of the wife to accompany the hus--band, the latter getting provoked picked up a household danda meant for grinding spices and not used as a weapon of offence caused few blows resulting into her death. A Division Bench of the High Court held that the circumstances negatived the elements of preparation and intention to kill. The conviction was altered to under section 304 (ii) from section 302 and the accused was awarded 10 years' R. I. In place of death sentence.
(f) Whereas in 1976 SCMR the facts were that the accused caused one knife blow on the deceased thigh which was not a vital part of the body resulting in the death. It was held by the Supreme Court that there was no evidence of any pre-meditation on the part of the accused and, therefore, the offence fell within section 326 and not under section 302. Consequently, the petition for enhancing the sentence was dismissed by the Supreme Court and the sentence awarded by the Division Bench of the High Court of 7 years' R. I. In place of transportation for life awarded by the Sessions Judge was maintained by the S.C.
(g) Reverting to 1980 P Cr. L J it will suffice to observe that a learned single Judge of the Lahore High Court altered the conviction from section 302 to under section 304 (i) and reduced the sentence to 5 years' R. I. In place of transportation for life on the ground that the evidence pertaining to motive was not forth coming.
(h) With reference to PLD 1962 Dacca, it may be observed that the High Court of Dacca substituted a sentence of transportation for life in place of death sentence on the ground that the accused was given severe beating at the hands of the crowd which had caught the accused, at the place of the wardat as a result of which the accused remained under treatment of the hospital for long period.
(i) With reference to AIR 1948 Lahore, it may be stated that a Division Bench comprising of Muhammad Munir and Muhammad Jan, JJ made a distinction between a premeditated murder and the one which took place on account of sudden provocation. It was held that in case of premeditated murder the usual sentence is death unless the conduct of the deceased furnishes a grave though not sudden provocation for murder.
For instance where an aggrieved husband or other near relation of woman murders a man who persists in offending the feelings of the aggrieved relative by publicly carrying on an immoral intrigue with the woman.
(j) With reference to PLD 1966 S. C. It may be observed that Cornelius, C. J. Made a distinction between a crime committed in hot blood and a crime committed in cold blood. It was observed that in the former case lesser punishment is to be awarded as compared to the latter case. In the above case the accused was charged with them murder, which had taken place on account of sudden fight and, therefore, it was held that it was not a crime committed in cold blood and the sentence of death was reduced to transportation for life by the S. C.
(k) Referring to PLD 1990 Karachi, it will suffice to observe that in the above case the accused inflicted a single knife blow which proved fatal. It was held that the accused was entitled to lesser punishment, conse--quently, the sentence of death was altered to transportation for life.
6. In our view as a matter of rule, it cannot be said that in every case and in every circumstances whenever an accused causes a single injury resulting in death, he can claim, as a matter of right, lesser punish--ment in the form of life imprisonment or any other lesser punishment in place of death sentence. If it is proved that the murder is a premeditated one, in that event merely the fact that the accused inflicted one fatal injury, will not furnish a ground for a lesser punishment. In the cases cited and discussed herein above the murders had taken place on account of sudden provocation and there was no premeditation to murder.
In the instant case the nature of injury on the delicate part of the body is such, it cannot be urged that the appellant had no intention to cause death of Mst. Khatija. However, the question which is to be considered is, as to whether this was a premeditated murder or it was on account of some sudden provocation caused by .The wife. From the dying declaration made before the S. H. O.
Referred to hereinabove, it is clear (which is in consonance with the F. I. R. Lodged by the appellant Exh. 43) that the appellant wanted to have an access to his wife at 2 a. m. Though she was not willing to perform her marital obligations. There must have been some altercations between the husband and the wife as the deceased herself had stated that there was some ---Chair Chaar--- Her refusal to allow access to the appellant to herself coupled with some insulting remarks might have caused sudden provocation to the appellant. Keeping in view the fact that the deceased was not on good terms with the appellant inasmuch as the deceased's father had taken her away 1520 days back from the appellant's house without his permission, in our view, the instant case was not a case of premeditated murder in other words the crime was not committed in cold blood, and, therefore, the appellant is entitled to the benefit of lesser punishment. We, therefore, dismiss the appeal and sustain the conviction recorded by the Sessions Judge including the compensation awarded, but we would convert the sentence of death into life imprisonment. We also direct under section 382-B of Cr. P. Code that while computing the sentence of life imprisonment the appellant shall be given adjustment of the period, during which he was detained for the offence in question.
The Sessions Judge's reference for confirming the death sentence is not accepted.