' AGHA Au HYDER, J. - The appellant was convicted by the learned Additional Sessions Judge, Sanghar at Mirpurkhas, for an offence under section 302, P. P. C., and sentenced to suffer life imprisonment. He has come in appeal.
2. The appellant resided in the town of Khipro, Distict Sanghar. He had a brother by the name of Yaseen. It appears that his wife, Mst. Majeedan, had taken divorce from her husband, and later married Shareef, since deceased. The marriage is not in dispute, the only suggestion being that the marriage had taken place after the death of Yaseen, who also lived in Khipro. T he prosecution story, in brief, is that, on the evening of the 24th of May 1974, there was an altercation between the aforesaid Mst. Majeedan and Mst. Sakina, the mother of the appellant. At about 10-00 p.m. The appellant had gone to the house of Shareef, and while remonstrating, had struck him with a knife blow on the heart region. Muhammad Shareef was immediately rushed to the local hospital in a state of unconsciousness. Later, Islamuddin, a brother of Muhammad Shareef, had proceeded to the local Police Station, which was just three furlongs away. And lodged the Report at 10-30 p.m. S. H.
0. Abdul K haliq, after recording the First Information Report, proceeded to the dispensary, and found that Muhommad Shareef had succumbed to his injuries. From there, he proceeded to the "Wardat" The appellant, who was living not far away from there, was called out from the house. He was wearing a shirt and a "shalwar" which were smeared with blood. The appellant was arrested, and the said clothes were secured under a "mashirnama". The appellant had then taken the S. H.
0. To his house, and produced a blood-stainad knife from "Pachhandi". The knife was secured under a "Mashirnama" and sealed The next morning, the S. H. O. Prepared the inquest report, and sent the dead body to the Medical Officer for the post. Mortem examination. Thereafter, he secured the blood-stained earth from the "Wardat", and made enquiries from Muhammad Haneef, Karamat, Mst. Majeedan and Mst. Sikana. As the appellant had indicated his willingness to make a judicial confession he was produced before the Mukhtiarkar and First Class Magistrate, Khipro, on the same day. The S. H.
0. Had also sent the blood-stained earth, the clothes and the knife to the Chemical Examiner, and, after due investigation, the case came to be challaned.
3. The appellant in his statement at the Court of Enquiry remained content with denying the various allegations made against him. However, at the trial, be admitted that, at about 9-00 p.m. On the day of the incident, there had been a quarrel between Mst. Majeedan and his mother, MR. Sakina.
He went on to say that he had not been arrested from his house, but had been sent for at the Police Station on the very night. He also denied the judicial confession, which had keen obtained from him by threats and disgrace shown to his mother.
4. As for the death of Muhammad Shareef, apart from the oral testimony, there is the evidence of Dr. Muhammad Saeed, who had held the autopsy. The external examination revealed an incised wound 1i" x i" into cavity deep on the front of chest between 5th and 6th ribs about 2' lateral and left to mid line. According to the Medical Officer, the death had occurred due to shock and haemorrhage due to the aforesaid injury from a sharp cutting weapon, such as a knife, which was sufficient. In the ordinary course of nature, to cause death.
5. There are three witnesses of the incident, Islamuddin and Haneef are brothers of the deceased, and Karamat is their uncle. In this very context, it might be mentioned that even the appellant is a relation of the parties. All of these witnesses lived not far away from each other, and Islamuddin and Haneef were living adjoining the "wardat". Ali Nawaz makes out that Karamat was living at a distance of 200 to 300 feet from the complainant's house, though Islamuddin had chosen to call it a different `mohalla' altogether. There are no discrepancies in their statements worth the name.
The incident had taken place at 10-00 p.m. And the report was lodged promptly within half an hour, in which the names of these witnesses had been duly mentioned. The fact, that there had been some dispute between the woman just an hour earlier before the incident, is also admitted by the appellant. The fact, that the brothers, who were living not far away from the "wardat", should have still been watchful of the happenings, or, tried to stir in time to come to the rescue of their brother, is therefore not strange. It also appears that the appellant was desirous of marrying the daughter of one Sadiq, but the comlainant's family had intervened to his discomfort. It would also appear that Mst. Sakina, the mother of the appellant, was not reconsiled to the marriage of Mst. Majeedan with Muhammad Shareef. So, the things were simmering within the family circle when it came to a climax on the night in question. It is also to be seen that the appellant came to be arrested within an hour, or so, of the incident. His apprehension, when he was putting on blood-stained clothes, is deposed to by Ali Nawaz, the Mashir and also the S. H. O. Thereafter, the appellant is stated to have produced a bloodstained knife. These articles according to the Chemical Examiner's report were stained with human blood. Ali Nawaz appears to be a totally disinterested witness, and nothing smacks of any partisanship in him. That will be a confirmatory circumstance in support of the ocular testimony. Even the appellant, in his statement, had no courage to deny the allegations made against him.
6. The judicial confession had been retracted, and had also not been acted upon by the trial Court, because it was not recorded with all the formalities as enjoined by law, and also because it happens to be inconsistent with the prosecution version in regard to the circumstances ending in the knife thrust. I agree with the view taken by the trial Court, and the assertion there, that the knife injury was given in defence of the person, was neither taken up by the appellant in his statements under section 342, Cr. P. C. Nor in the cross-examination.
7. It is true that there was only one injury in the heart region, but the appellant should have realised that it should be fatal. Otherwise too, seems to have gone with the avowed intention of avenging the insult to his mother. I agree with the learned Additional Sessions Judge that the offence, under the circumstances, would fall under section 302, P. P. C.
8. The appellant has already been given the lesser punishment under the law. There is, therefore, no merit in the appeal, and I will dismiss the same.
' JAMALUDDIN H. AHMED, J.-I agree.