' ZAKAULLAH LODHI, J.-The appellant Rabdino was tried under section 302, P. P. C. On the charge of murder of deceased Muhammad by II Additional Sessions Judge, Hyderabad, who vide his order dated 25th September, 1974, convicted him and sentenced him to death penalty. The appellant has filed appeal against his conviction whereas the learned II Additional Sessions Judge, Hyderabad, has referred the case for the confirmation of death sentence. This judgment will dispose of both the appeal as well as the reference.
2. Briefly narrated the facts of this case are that the deceased was killed by the appellant on 24th March, 1972 by means of a hatchet in the premises of the Court of Civil Judge & F. C. M., Badin at 9- 00 a.m. The F. I. R. Was lodged on the same day at 9-30 a.m. At Police Station, Badin by the complainant Vikio which was recorded by P. W. Fateh Ali Shah, A. S. I., Badin. The complainant stated in the F. I. R. That a suit for dissolution of marriage between his sister P. W. Mst. Nathi and the appellant was pending in the Court of Civil Judge and F. C. M., Badin, for about 6/7 months before the incident. Allandino, brother of the appellant had filed a theft case against his sister P. W. Mst.
Nathi, the deceased, P. W. Siddik and others. On the day of the commission of the offence, he, his sister P. W. Mst. Nathi, the deceased and P. W. Ali Asghar Shah reached the Court at 9-00 a.m. As soon as they entered the Court premises they noticed that the appellant armed with a hatchet was standing by the western door inside the compound wall of the Court premises. As soon as the deceased entered the door, the appellant dealt upon him a hatchet blow with its sharp side on his face and head as a result of which he collapsed. P. W. Mst. Nathi rushed towards the Court room. P.
W. Muhammad Mogheri son of Usma n Mogheri grappled with the appellant and caught hold of him at the spot. He and others also helped Muhammad Mogheri in preventing the appellant from running away. On hearing the cries of P. W. Mst. Nathi and others P. W. Saghir Ahmad Naqvi Civil Judge and F. C. M. Badin, P. W. Mohib Ali Serishtedar and P. W. Ali Ahmad, Advocate immediately came out of the Court room. They also saw the appellant giving hatchet blows to the deceased.
The deceased died instantaneously. Immediately after the incident the report was lodged with P.
W. Fateh Ali Shah, A. S. I. Police Station, Badin who reached the spot. He arrested the appellant from the scene of occurrence in presence of these witnesses. He then secured blood-stained earth from the vardat. Blood-stained hatchet was also taken into possession in the presence of P. W. Allah Bachayo Parhar and P. W. Allah Bachayo Chang. These articles were sealed and their mashirnamas were prepared by him then and other. The inquest report and mashirnama of the arrest of the appellant were also prepared in the presence of the same mashirs. He also secured one boot, one shirt and one loin cloth from the appellant. These articles were blood-stained. They were sealed at the spot. The dead body of the deceased was sent to the Medical Officer, Badin for post-mortem examination through P. W. Naures Khan. He also recorded the statements of P. Ws.
Syed Ali Asghar Shah, Mst. Nathi, Muhammad Mogheri, Mr. Saghir Ahmad Civil Judge Badin, Mr. Ali Ahmad Advocate and Mohib Ali Sherishtedar. On the following day he produced the appellant before the Civil Judge and F. C. M., Matli and got his confession record. He also got the statement of P. Ws. Ali Asghar Shah and Mst. Nathi recorded before the same Magistrate under section 164, Cr. P.
C. On 2nd April, 1973, he examined P. Ws. Pir Ali Shah and Arbab Fazal Ali.
3. Autopsy on the dead body was conducted by Dr. Abdul Karim who found the following injuries on his person: "(1) An incised wound 5-1/2" X 2" X bone deep extending from the upper part of the left frontal region upto the middle of the cheek in longitudinal direction.
(2)Incised wound 6" x 1"X bone deep just one inch laterals to the right eye upto the angle of right mandible in oblique direction.
(3)An incised wound 5"X 1" x bone deep extending from the middle of the lower lip upto the upper part of the neck.
(4)An incised wound 4" x 5-1/2" x muscle deep extending from the left side of the neck up to the middle of neck with approximately separation of neck from the rest of body.
(5) An incised wound 2" x 2-1/2" extending from injury No, 4 in same continuation with the approximately separation of neck from the rest of body.
(6) An incised wound 2" X 1" over the front part of the right thigh in transverse direction."
' In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of injuries Nos. 4 and 5. All the injuries except injury No, 6 were individually sufficient to cause instantaneous death in the ordinary course of nature. These injuries were caused by a sharp- cutting weapon like hatchet.
4. In his defence the appellant has stated that the complainant bad sold his sister and wife to the deceased and as soon as he saw P. W. Mst. Natht with the deceased he lost his self-control. He further stated that the deceased abused him and also raised hatchet to attack him first.
5. The prosecution has furnished occular testimony of six witnesses. P. W. 1 is Ali Ahmad who has stated that he was an Advocate and he worked in Hyderabad as well as in Badin. He knew P. W. Mst.
Nathi who was his clientess. She was married to the appellant and had filed a suit for dissolution of marriage in the Court of Family Judge, Badin. The appellant had also filed a suit for restitution of conjugal rights in the same Court. Allandino, brother of the complainant had filed a complaint against P. W. Mst. Nathi, the deceased and his other relatives under section 403, P. P. C. In which case also he was engaged as a counsel. P. W. 2 Mr. Saghir Ahmad Naqvi was the Presiding Officer of the Court while Mohib Ali was the Serishtedar. The Court was functioning when they heard the cries "murder" "murder!" from outside, upon which he, Presiding Officer of the Court and the Serishtedar came out. He and others saw the appellant giving hatchet blows to the deceased who had already fallen down. According to this witness the injuries were given by the appellant to the deceased within their sight. His statement has been corroborated by P. W. 2 Mr. Saghir Ahmad Naqvi who was Civil Judge and F. C. M., Badin. He has stated that on hearing the cries of murder he came out of his Court room and saw the appellant giving hatchet blows to the deceased. In his presence one hatchet blow was inflicted upon the person of the deceased while other blows had been given to him earlier. He confirmed that the suit filed by the appellant and P. W. Mst. Nathi were pending in his Court. P. Ws. Mohib Ali has stated that he was a Serishtedar in the Court of Mr. Saghir Ahmad Naqvi, Civil Judge and F. C. M., Badin and he came out on hearing the cries alongwith the abovesaid witnesses and he saw the appellant giving hatchet blows to the deceased. The complainant P. W. Vikio who lodged the F. I. R. In this case has narrated the story given out by him in the F. I. R. According to him, he, his sister P. W. Mst. Nathi, the deceased and P. W. Ali Asghar Shah had gone to the Court of Civil Judge and F. C. M., Badin to furnish surety in the case of theft lodged against them in the same Court. Mst. Nathi was also an accused in that case. The appellant was already standing armed with a hatchet at the door of the Court premises. As soon as he saw the deceased entering into the premises he abused him and gave hatchet blows to him with sharp side of the weapon. P. W. Asghar Ali Shah has also corroborated the statements of the witnesses who have been discussed above. He has stated that a suit for dissolution of marriage was pending between P. W. Mst. Nathi, sister of the complainant and the appellant in the Court of Civil Judge & F.
C. M., Badin since 6/7 months prior to the fateful incident. Allandino, brother of the appellant has filed a direct theft case against P. W. Mst. Nathi, the deceased, P. W. Siddik and others. Since P. W.
Mst. Nathi was to furnish surety in the theft case therefore she had gone to the Court of Civil Judge and F. C. M., Badin where the appellant was already standing duly armed with a hatchet and he gave hatchet blows to the deceased who died instantaneously. The last eye-witness is P. W.
Muhammad Mogheri who has stated in his statement that he was an accused in a case in which connection he had gone to the Court. He heard the commotion and reached the place of incident.
He found one person lying on the ground who had died. The other person was giving him hatchet blows. He snatched the hatchet from the hand of the culprit. He identified the appellant as the person who had given hatchet blows to the deceased.
6. In his judicial confession the appellant has 'stated that P. W. Mst. Nathi was married to him. About four months prior to the incident her brother P. W. Vikio and her mother came to his house and lived with him for two days. They asked him to send P. W. Mst. Nathi with them upon which he replied that his mother was ill therefore he was unable to send her. He further said that if they still wanted to take away his wife Mst. Nathi they should bring his sister Mst. Bachaia wife of the complainant to his house so that she could look after his ailing mother. They however, took his wife and he also accompanied them to the house of his wife's mother and lived there for about three days. On third day after her departure he asked them either to send back his wife or send his sister but there was no response. Thereafter he called a "Panchayat" of the respectable persons of the village but they did not attend the "faisla" given by the "Panchayat". He then obtained a letter from Peer Ali Shah for Arbab Fazal Ali who told him that his wife, her mother and her brother were not available in that village. After coming to know that her wife and her relatives have left the village he filed a case in the Court of Civil Judge & F. C. M., Badin for restitution of conjugal rights. This case was pending when on the day of occurrence in the early morning hours a peon of the civil Court informed him that P. W. Mst. Nathi would give a statement in the Court on that day. As on that day the main case was not fixed he apprehended that some injustice was likely to be done to him, hence he became harsh against the deceased to whom his father-in-law had handed over his wife and sister about three months back for using them to earn money by illicit means. Accordingly, he reached the Court of Civil Judge & F. C. M., Badin at 7-30 a.m. With the feeling in his mind that he would save the honour of his wife and sister and murder the deceased. When he saw his wife and sister and deceased in the Court compound at about 9-45 a.m. He abused the deceased. He proceeded ahead and gave him a hatchet blow on his cheek. He further stated that he gave three hatchet blows from sharp side on the deceased's neck. On receiving these blows the deceased fell down on the ground in such a position that half portion of his body was inside the compound and the legs were outside the compound. He died instantaneously. The police arrested him and secured blood- stained hatchet from him.
7. The deposition of six eye-witnesses coupled with the confession of the appellant leaves no doubt about the fact that the appellant had committed the murder of the deceased which was premeditated. There is absolutely no extenuating circumstance in the case. What the entire appellant has stated in his confessional statement is that he committed the murder of the deceased out of "Ghairat". In his statement he has stated that the deceased had abused him first and raised the hatchet in order to attack him. But we do not find an iota of evidence to support his statement. Here and there a few suggestions have been made to the witnesses in order to establish the plea of grave and sudden provocation that the deceased abused the appellant first but these suggestions have been denied by the witnesses. All the witnesses are unnaimous that as soon as the deceased entered the Court compound the appellant who was already standing armed with a hatchet at the gate of the Court premises attacked the deceased with his hatchet and gave successive blows to the deceased who fell down on the ground. The appellant was caught by P. W. Muhammad Mogheri at the spot and handed over to the police.
8. The learned counsel for the appellant has tried to make out a case on the premises that the murder had been committed on account of grave and sudden provocation. We are constrained to hold that there is not an iota of evidence to show that there was any element of grave and sudden provocation in this case. As far as the allegation that the appellant's wife and sister had been sold away by the complainant there is no evidence at all on record. There is also no evidence on record to show that the deceased abused the appellant first and raised the hatchet to attack him. On the other hand, the deceased was abused by the appellant as the appellant has himself confessed in his confessional statement. He has categorically stated that he himself abused the deceased before attacking him. So far as the element of grave and sudden provocation is concerned, it is evident from the statements of the witnesses that litigation was going on between the parties for quite a long time and therefore it cannot be said that any such thing had emerged all of a sudden that day which could cause grave and sudden provocation to the appellant. In our estimation it is a straight case of premeditated murder. It has been proved by overwhelming evidence of such persons who can, by no stretch of imagination, be termed as interested witnesses. In such circumstances we do not find any reason to interfere with the judgment of the trial Court.
9. As a result of the above discussion we reject the appeal of the appellant and confirm the death sentence.