GHULAM HUSSAIN Versus STATE
Appellant abovenamed, being aggrieved, by judgment, dated 18th August, 1979 of the learned Sessions Judge, Hyderabad, in Sessions Case No. 2014176, by which appellant has been convicted under section 302, P. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 or in default to suffer further R. I. for one year, and to pay compensation of Rs. 1,000 under section 544-A, Cr. P. C. to the heirs of the deceased or in default to suffer further R. I. for six months, has preferred the above appeal, on the following facts and grounds.
2. Briefly stated the prosecution case against the appellants as well as acquitted co-accused is that the appellant and co-accused are brothers inter se. On 27th February. 1975 herd of sheep of co-accused Yaqoob trespassed into the wheat cultivation of deceased Aban. Deceased Aban drove the sheep out of the field and intended to take them to the cattle pound when co-accused Yaqoob confronted him. Co-accused Yaqoob asked the deceased to leave the sheep but the deceased declined to do so, whereupon co-accused grappled with the deceased and tried to fell him down on the ground. The other appellant Ghulam Hussain was standing at a short distance. He was armed with a 'Biano' (a long wooden implement for removing Dhinger) reached the vardat and struck blows with it at the deceased. On receipt of blows deceased Aban fell down and became unconscious. The incident was witnessed by Ali Bux cousin of the deceased, who was scaring birds in the nearby field and also by Gul Muhammad, who was carrying grass from his field to his house. Ali Bux and Gul Muhammad rushed to the vardat. One Shahzaman also reached there and on seeing these P. Ws. the appellant as well as co-accused went away. Appellant Ghulam Hussain, while going away also took with him his Biano. Ali Bux left Gul Muhammad and Shahzaman near the injured deceased and he himself went to Abbas Ali and apprised him of the facts of the incident. Abbas Ali came to the vardat and advised Ali Bux to lodge the report. Ali Bux also informed one Haji Hamid about the occur rence and borrowed his jeep and then removed the injured to P. S. Husri, which was at a distance of about 12 miles and lodged the report (Exh. 5) at 6-30 a. m. on 28th February, 1975. Deceased Aban, however, died on the way to the Police Station. S. H. O. Khurshid Ahmed took up the investigation. He prepared the mashirnama of injuries of the dead body (Exh. 4) and inquest report (Exh. 10) in presence of mashirs Nabi Bux and Siddique. He also inspected the vardat and prepared its mashirnama (Exh. 1) in presence of mashirs Nabi Bux and Abbas Ali. He also recorded the statements of Gul Muhammad, Shahzaman Palari, Abbas Ali and Haji Hamid. On the same day he arrested the appellant and co-accused Yaqoob under mashirnama (Exh. 12). Nabi Bux and Abbas Ali acted as mashirs. On interrogation Ghulam Hussain produced a Biano from the Mannah. The Biano was, however, not blood-stained. The S. H. O. secured the same and prepared mashirnama (Exh. 13). On 1st March, 1975 the S. H. O. got recorded, through the A. S. I. the statements of P. Ws. Gul Muhammad and Shahzaman under section 164, Cr. P. C. by A. C. M., Hyderabad. On 3rd March, 1975, the S. H. O. challaned the appellant and co-accused in the Court.
3. At the trial before the trial Court, the prosecution examined complainant Ali Bux (Exh. 4), P. W. Gul Muhammad (Exh. 8), Nabi Bux (Exh. 9), Muhammad Usman Tapedar (Exh. 15), Allahdad P. C. Corpse-bearer (Exh. 18), Dr. Abdul Majid Memon (Exh. 20) and S. H. O. Khurshid Ahmed (Exh. 22). The former four witnesses were examined by predecessor. The D. C. gave no objection for taking the trial from the stage where it was left by learned predecessor and the remaining witnesses were examined by prosecution. The defence also called D. W. Lai Khan H. C. Husri P. S. (Exh. 29) for proving their plea, that the com plainant could have lodged his report at P. P. Tando, Fazal, which was nearer than P. S. Husri to the vardat.
4. Appellant as well as co-accused pleaded not guilty to the charge and denied the allegations. Their case was of bare denial. Appellant Ghulam Hussain made the following statement and it was also adopted by the other co-accused Yaqoob:-
"I and my brother Yaqoob are Zamindars. We own about 20 Acres of land near Sono Almani village having garden as well as other cultivating land. We had also grown wheat in those days. We had purchased 5 Acres of land from Mst. Bhagul and Mst. Haws. The wife of P. W. Gul Muhammad had also a share in this land. We had demanded possession of this land from P. W. Gul Muhammad as the whole land was in his possession. He was not giving us the possession of our share and he had grabbed all the 5 Acres including the share purchased by us. There was ill-will between us and the P. W. Gul Muhammad over possession of this land. The com plainant used to side Gul Muhammad on this issue. Gul Muhammad had no land near the vardat. The complainant had also no land near vardat. He is a labourer on daily wages. There are houses of Kolhis near vardat. Our garden is adjacent to the vardat. We were arrested from our garden, on the next day of the incident. I did not produce any Biano from my house. We had no sheep but we possessed cows and buffaloes only. All the P. Ws. are related inter se. P. W. Gul Muhammad is brother-in-law of complainant while deceased was cousin of complainant. Nabi Bux mashir is also relation of the complainant and Gul Muhammad. They all live in the same village, which is about 1 miles from vardat. Finding this opportunity, when Aban bad received injury by some unknown person, P. W. Gul Muhammad and complainant have falsely implicated me and my brother in this case."
Neither the appellant nor co-accused produced any defence witness, except D. W. Lal Khan H. C.
5. The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Yaqoob convicted and sentenced the appellant abovenamed as hereinbefore mentioned and con sequently the appellant has filed the above appeal, on the grounds men tioned in the memo of appeal.
6. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That there was a sudden quarrel over trespass of sheep, accord ing to prosecution, in which deceased received only one blow with fork and as such question of appellant having motive to kill deceased did not arise at all and as such prosecution case even if believed, would fall under section 325, P. P. C. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1975 P Cr. L J 264 and P L D 1965 Lah. 378.
(b) There was delay in lodging of F. I. R. nearly 12J hours, which has not been satisfactorily explained by complainant and as such consultations and false implication on the part of the complainant cannot be ruled out.
(c) P. W. 1 Ali Bux and P. W. 2 Gul Muhammad are close relation of the deceased so also mashir of the alleged recovery and as such no reliance can be placed on their statements, without indepen dent corroboration, in view of the enmity suggested by appellant in his 342, Cr. P. C. statement.
7. The learned Advocate for the State on the other hand submitted, that he was supporting the impugned judgment as far as causing of injury to deceased by the appellant is concerned. However, he submitted, that offence committed by appellant would fall under section 325, P. P. C. and not under section 302, P. P. C., as urged by the learned counsel for the appellant, in view of cases cited by him.
8. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R and P of the learned trial Court as well as impugned judgment and cases cited by the learned counsel for the appellant.
9. It is admitted position, that there was a sudden quarrel between deceased and acquitted co-accused over alleged trespass of sheep, in which present appellant intervened and gave three blows according to P. Ws. on the head, nose and eyes of the deceased. Two of the injuries on nose and eyes were simple, whereas injury on head of deceased was grievous, which proved fatal. According to 'P. W. 6 Dr. Abdul Majid, all injuries on person of the deceased could have been caused by one blow by weapon alleged to have been used by appellant. Even P. W. 3 Ali Bux in his examination-in-chief stated, that appellant gave one blow on the head of deceased, while P. W. Gul Muhammad stated, that appellant gave three blows. Statement of P. W. Ali Bux seems to be strictly forward and convincing in respect of the injury recorded by the deceased.
10. The delay in lodging of F. I. R. has been explained by com plainant. No serious enmity has been even prima facie established by appellant against two eye-witnesses examined by prosecution, specially P. W. Ali Bux.
11. Keeping in view above facts, and that there was a sudden quarrel and appellant gave only one blow on the hand of the deceased, by a weapon, which is not normally selected for the purpose of causing death and was one which happened to be at hand, it is not possible to say, that any of the various states of mind, which are contemplated by section 299 of the Penal Code existed. Therefore, I do not think, that this is a case, which falls under the definition of culpable homicide, muchless of murder. In my opinion, since injury was given on head, which is proved to be grievous according to P. W. 6 Dr. Abdul Majid, appellant can only be held guilty of having caused grievous hurt to the deceased, as neither knowledge nor intention to cause murder can be presumed from the facts of the present case. In this view of mine I am fully supported by D. B. deci sion of this Court reported in 1975 P Cr. L J 264, with which I am in respectful agreement for cogent reasons given in the said judgment.
12. Therefore, while dismissing above appeal on merits, I alter the conviction of appellant from section 302, P. P. C. to one under section 325, P. P. C. and consequently reduced his sentence from life imprisonment to 5 years' R. I. and impose a fine of Rs. 2,000 or in default to suffer further R. I. for one year and direct that in case fine is recovered, a sum of Rs. 1,000 be paid as compensation to the legal heirs of the deceased.
13. I further direct that benefit of provisions of section 382-B, Cr. P. C. be given to the appellant in respect of his period of detention, as under-trial prisoner towards his substantive sentence, in addition to all other remissions to which appellant may be entitled, in accordance with rules.
14. Since appellant is on bail, his bail bond is cancelled and the learned trial Court is directed to issue non-bailable warrants for the arrest of the appellant and on his arrest to remand him back to judicial custody, in order to serve out remaining sentences awarded to him, by this judgment.
M. Y. H. Appeal dismissed.