' Z. A. CHANNA , J.-Appellant Muhammad, who has been convicted by the learned Sessions Judge, Tharparkar, at Mirpurkhas, by his judgment delivered on 30-10-1976, of committing the murder of his neighbor's wife, Hit. Bahawal, and sentenced to (team for tee said Taxa, has appealed from jail against his conviction and sentence. The learned Sessions Judge has also referred his case to this Court for the confirmation of the death sentence awarded to the appellant. This judgment will dispose of both the appeal and the reference.
2. The incident which has culminated in the conviction of the appellant occurred on 23.4-1975, at 00-10 hours, in the house of first informant Qaim Machi, in Deh Dengan, at a distance of about 12 miles from Samaro Police Station. On the night of incident, the deceased was sleeping inside a shed of her house while her husband, Qasim Machi, and her brother, Urs, were sleeping on a raised platform in front of the shed, when at about mid-night, Qaim Machi and Urs woke upon the cries of Mst. Bahawal and are said to have seen, by the light of a le.Ntera which was burning near the place where Mst. Bahawal was sleeping, that blood was oozing out of her forehead and the appellant was standing near her armed with a hatchet. On their cries, their neighbors, Abdullah and Foist.
Somari, came running out and are said to have seen the appellant running out of the house of the complainant with a blood-stained hatchtt. Other villagers also turned up on the commotion and the complainant informed them that the appellant had caused hatchet injuries to his wife. Mst.
Bahawal was found to have succumbed to her injuries. The complainant at once appraised his Zamindar, Punhun Rind, about the matter, but he advised him to wait till morning when Haji Dodo, the nekmard of the village, was due to arrive. In the morning, at about 11 a.m., Haji Dodo came to the vardat and after he had been appraised of the matter, he took complainant Qaim Machi to Samaro Police Station, where the latter lodged his F.
1. R. At 12-15 p.m. On the same day. The motive for the murder is said to be the fact that some 15 days prior to the incident complainant's son, Khair Mohomed, and the deceased had given a beating to Mst. Hakiman, the wife of the appellant, because of some quarrel between the two ladies, and on this account the appellant bore a grudge against the deceased.
3. The investigation in this case was conducted by S. H.
0. Mahomed Jamil. After recording the F. I. R. He accompanied the complainant to the scene of offence, where i.e recorded the statements of Mst. Soomri, Abdullah, Urs, Haji Dodo, Punhoon, Khair Mahomed and others. He also prepared a Mashirnama of the scene of offence and sent the dead body of the deceased to the Medical Officer, Samaro, for post-mortem examination. The S. H. O.
Made search for the appellant and learnt that he had disappeared from the village. The S. H. O.
Followed the appellant in his jeep and overtook him near Haji h o village, a distance of four miles from the scene of offence. The appellant was arrested and on interrogation volunteered to produce the hatchet with which the murder eeas committed. He took the Police and Mashirs to his landht in his village and from the thatched roof of his landhi took out a blood-stained hatchet and produced it before police. The hatchet W39 subsequently sent to the Chemical Examiner to Government whose report is to the effect that human blood has been detected on it.
4. On the day following the incident, the appellant was produced before the Mukhtiarkar and F. C.
M., Samaro, to whom he made a judicial confession. On completion of the police investigations the appellant was challsned.
5. The defence of the appellant is complete denial. He has denied that he murdered the deceased, was arrested while running away from his village, had produced a blood-stained hatchet before the police or made a confession before a Magistrate. He claimed that he has been falsely implicated by the P. Wa. Who are on inimical terms with him.
6. The autopsy on the deceased was conducted by Dr. Mohomed Hashim who found the following external injury on the deceased :- "Incised wound 8r 1" x i" on the forehead, oblique in direction, cutting the bone and the brain was protruding out."
7. The doctor has opined that the above injury was caused by a sharp-cutting weapon such as a hatchet and was sufficient in the ordinary course of nature to cause death.
8. We have been taken through the record of the case by Mr. Nooruddin Sirki, the learned counsel who appears for the pauper appellant, and Mr. Usman Ghani Rashid, the learned Assistant Advocate-General, and we are of the opinion that there i9 overwhelming evidence to sustain the conviction of the appellant.
9. The direct evidence in the case has been provided by complainant Qaim Machi, his brother-in- law Urs and their neighbor Abdullah. Although all these 3 witnesses have admitted that they did not actually see the appellant giving the fatal blow to the deceased, they have testified to the presence of the appellant at the scene of the offence at the time of the incident. Complainant Qaim and P. W. Ors have deposed that they wake up on some sound and cries and found a person, whom they identified to be the present appellant Mobammadu, who was armed with a. Hatchet.
They have further testified that out of fear they did not go near the appellant as he was armed but they raised cries on which the appellant ran away. P. W. Abdullah, whose house adjoins the house of complainant Qaim, has deposed that on hearing cries coming from the complainant's house, he and his wife, Mst. Soomri, rushed towards the house of the complainant and saw the present appellant, whom they identified clearly in the strong moon-light and who was armed with a hatchet, coming out from the courtyard of the complainant's house. The witness hag further deposed that he was informed by the complainant that the appellant had killed the former's wife.
Since the appellant was well known to the witness and it was a moon-lit night, it being the 11th of Rabiussani, it was quite easy for the witness to have identified the appellant. We find no circumstance for rejecting or not relying upon the testimony of these witnesses, especially P. W.
Abdullah, who is a disinterested witness and against whom the appellant has alleged nothing.
10. The evidence of the above witnesses finds support from the testimony of P. W. Punhoon, who is the Zamiodar of both the appellant and the complainant. He has testified that on the night of the incident he was sleeping in his house when complainant ()aim aed Abdullah came and woke him up and informed him that the appellant had given hatchet blow to Mst. Bahawal and run away, whereupon he rushed to the house of Qaim and saw Mst. Bahawal lying dead in a pool of blood near the shed of her house.
11. Another piece of evidence against the appellant is the recovery of bloodstained hatchet from his house at his pointation. S. H.
0. Muhammad Jamil has testified that he had arrested the appellant near Haji Jio village, some 4 miles from the scene of offence, and on interrogation, the appellant volunteered to produce the weapon of offence and led him to his house in his village, and from the thatched roof in the shed took out a bloodstained hatchet and produced the same, which he seized. The S. H. O. Is supported In regard to the recovery of the hatchet by Mashir Ohulam Muhammad. This witness was confronted with his statement in the lower Court wherein he has stated that the appellant produced the hatchet at the time of his arrest, but he appears to have been mistaken in this behalf.
The Mashir is an independent witness, residing in the village of the appellant, and nothing has been brought out against him which would suggest that he has not given true evidence against the appellant.
12. The next piece of evidence against the appellant is his ascendance immediately after the incident. The S. H.
0. Muhammad Jarnil, has deposed that when he came to the scene of offence after recording the F. I. R. He made search for the appellant but could not locate him and learnt that he had run away along the Kucha Road, whereupon he pursued the appellant in the jeep and apprehended him ahout 20 paces away from Jio Village, some 4 miles distant from the Licence of offence.
13. Finally there is against the appellant his judicial confession which was recorded by Mr. Doongromal, the Mukhtiarkar and F. C. M., Samaro, on 24-4-1975, i,e, on the day following the incident and the arrest of the appellant. The confession was recorded by the learned Magistrate with due formality and after giving the appelant 5 hours' time for reflection. The relevant portion of the confession as follows :- "About 10-15 days back deo eased Babawal and her son Khairo had attacked me. I and my wife were given blows. The neighbors did not allow me to lodge report, and told me that they would get me some money as compensation. I was not paid any money for treatment (dressing) etc. Despite this opposite-party threatened me of dire consequences. I was afraid. They made plans to kill me and my wife. Once I was out of my house and the night had fallen, they had come to kill my wife. My wife raised cries. Was coming to my house along with bullocks. I came running but both mother and son made their escape good. Then due to provocation and in order to save my respect, I inflicted batches below on the head of Mst. Bahawel at 12 O'clock mid-night and due to which she expired."
14. Although the confession was retracted by the appellant, there is ample corroboration to it on almost all points stated therein. The confession mentions the motive for the murder, which was the incident which occurred some 15 days prior to the murder, in which the deceased with her son Khair Muhammad had given a beating to wife of the appellant. This incident has been admitted by both complainant Qaim and P. W. Urs. Although complainant Qaim has stated that the said incident was settled at the instance of nekmard Haji Dodo, who had fined him 40 or 50 Rs. For it, we are inclined to the view that this part of his evidence is not free from reasonable doubt. In the first place, if he had really been fined and paid up the fine he would have recollected the amount of fine. The fact that he gave vague reply as to the amount of the fine imposed on him seems to suggest that no fine had been imposed on him or at least paid by him. Furthermore, P. W. Urs denied knowledge about a settlement or the payment of any fine by the complainant. Finally, Haji Dodo, who is said to have brought about the settlement between the parties and admittedly had accompanied the complainant for the lodging in the F. I. R. Has not been examined by the prosecution. If, in fact he had settled the dispute there is no reason why he should not have been examined and been kept back. The confession states that only one hatchet blow was given to the deceased. This fact is supported by the Medical Evidence. Finally, the time of the incident given in the F. I. R., namely 12 0' clock mid-night, corresponds with the time of the incident given in the F. I. R.
And by the P. Ws.
15. The above pieces of evidence, in our opinion, establish the guilt of the appellant beyond any reasonable doubt. Even the learned counsel for the pauper appellant conceded that the evidence in the case fully establishes the guilt of the appellant. He, however, submitted that there are mitigating circumstances in the case which entitle the appellant to the lesser penalty. The learned counsel pleaded that it was an admitted position that only a few days prior to the incident the complainant's wife and son had given a beating to the wife of appellant, who must, therefore, have felt aggrieved over the matter and brooded over it, especially as his grievance had not been redressed and neither any compensation nor even any money for the treatment of his wife and had been paid to him. The learned counsel contended that it was in this frame of mind and while suffering from a sense of genuine grievance and the fact that justice had not been done to him, that he decided to avenge the insult on his wife. The learned counsel further submitted that only one blow was given to the deceased though he conceded that the blow was given with such force on the head of the deceased that her skull was smashed and the brain matter came out. The learned Assistant Advocate-General also submitted that in the circumstances of the case the appellant is entitled to the lesser penalty. We are inclined to agree with their submission that the appellant killed the deceased whilst suffering from what he considered to a genuine grievance. In the circum. Stances, while upholding the conviction of the appellant under section 302, P. P. C., we would alter his sentence from dean to imprisonment for life. Subject to this modification, the appeal is dismissed. The reference for the confirmation of the death is rejected.