ABDULLAH Versus THE STATE ABDULLAH , S.Murtaza Hussain
Appellant Abdullah has filed this Jail Appeal against the judgment dated 27‑3‑1982 of Sessions Judge Thatta, whereby he has convicted the appellant under section 304, P.P.C. to suffer R.I. for 10 years and pay fine of Rs.5,000 or in default to suffer R.1 for 2 years and it has further been ordered that fine if recovered be paid to heirs of deceased Haji.
2. Brief facts of the case are that Aleem and Haji, came from their village to the lands of Lala Kehar, Deh Jhenge Jalbani for harvesting. Their relatives Abdullah and Hussain were already there. On 11‑10‑1979 Aleem came back from lands to his house at sunsent time where lie found his brother Haji lying injured. He had a hatchet injury on his head. On enquiry Haji told him that in the morning he alongwith his wife Mst. Rajoo daughters Mst. Phatul and Niamat and relatives Abdullah and Hussain went for harvesting in the land of Lal Kehar where Abdulah and Hussain exchanged harsh words over removing of paddy crop thereafter they went away. He further stated that after finishing work we all were returning when at about 5 p.m. reached near the house they met appellant Abdullah with hatchet and Hussain empty‑handed, they told him that he prevented them from taking harvested crop and abused him and deceased also abused them on which Hussain caught hold and gave him kicks and fists blows while Abdullah gave hatchet blow to him, Mst. Raju, Mst. Niamat and Phutal, tried to rescue him.
3. On getting this information Aleem brought his injured brother Haji to Government Dispensary Choohar Jamali and then proceeded to Police post where he lodged his report on 12‑10‑1979 at 8.30 a.m. A.S.I. Choohar Jamali entered his report under sections 304/323/324, P.P.C. in Roznamcha and sent the same to Police Station Lahdyeen through P. C. Moula Bux for incorporating in 154, Cr.P.C. book.
4. Muhammad Jumman A. S. I. after recording report of Aleem Exh.16, went to Hospital where he recorded statement of injured Haji and prepared Mashirnama of injuries Exh.21. He proceeded to Wardat from where he secured blood and sealed it and prepared such Mashirnama Exh.32. The statement of Mst. Raju was recorded as she was present at Wardat. He arrested both the accused in presence of Mashirs Din Muhammad and Allah Warayo. The appellant produced hatchet Mashirnama which is at Exh.35. He released the appellant on bail because F.I.R. was initially registered under sections 324, 323, 304, P.P.C. and offence shown in F.I.R. were bailable. On 13‑10‑1979 he examined Mst. Niamat, Mst. Hawa and Mst. Phatul and handed over papers to S.H.O. Ladhun for further investigation.
5. On 23‑10‑1979 one Umer informed S.H.O. that Haji has died in the village, who recorded the statement of Umer and went to the village and sent the dead body of Haji to Civil Hospital Thatta for post‑mortem. He arrested the appellant on 25‑10‑1979 vide Mashirnama as Exh.25 and on 27‑10‑1979 got confessions of appellant recorded and re‑examined same witnesses and filed challan of both the accused under sections 30?/34, P.P.C. on 10‑11‑1979 in the Court of Civil Judge & F.C.M., Sujawal. Co‑accused Hussain was acquitted.
6. The prosecution has examined 12 witnesses at the trial. P.Ws. Mst.Raju, Exh.17, Mst. Niamat Exh.18, Mst. Phatul Exh.19, as eye witnesses. The complainant Aleem Exh.15 was informed about the incident by his deceased brother Haji, Rehmatullah, Mukhtiarkar & F.C.M. Exh.28 has recorded the confession of appellant Abdullah. Dr. Tajar am Exh.17, has produced medical certificate and post‑mortem report of Haji. Muhammad Umer, Exh.20, Muhammad Hassan Exh.31 and Allah Bachayo Exh.33, are Mashirs. Muhammad Jumman A.S.I Exh.36 and S.H.O. Khalilur Rehman are investigating officers.
7. Prosecution evidence consists of following particulars:‑
(1) Ocular evidence of Mst. Raju, Mst. Niamat and Mst. Phatul.
(2) Medical evidence.
(3) Confession.
(4) Recovery of hatchet.
(6) Motive and evidence of Aleem complainant.
8. P.W.4 Mst. Raju Exh. 17, has stated that on the day of incident they went to the land of Lal Kehar for harvesting there was alteration between Abdullah, Hussain and her husband Haji and they threatened her husband. At about 5 p.m they returned to their village where Abdullah appellant, and Hussain abused her husband Haji who also abused them thereby Hussain caught hold of Haji when Abdullah gave hatchet blow to him. Hussain gave kicks and fists blows to Haji. She further stated that at that time Mst.Niamat and Mst. Phatul were also present and they witnessed the incident. Thereafter Hap was brought to the house. In the evening Aleem came they all including Hap informed him about the incident who took Hap to hospital and then lodged the report. Hap was admitted in the hospital for 3 days and then he was brought to the village by the complainant for taking to Karachi but his condition became serious and he died. She in her cross‑examination stated that sister of deceased Hap is married to appellant, Abdullah. P.W.5 Mst. Niamat Exh.18 has corroborated the version of her mother P.W. Raju and stated that Abullah gave hatchet blow to her father while Hussain gave her father fists and kicks blows. She has stated that Hussain and Abullah gave abuses to her father from their house while her father also exchanged abuses from the house. P.W. Mst. Phatul Exh.19 supports the version given by her mother Raju and sister Niamat and states that appellant gave hatchet blow when Hussain caught hold of her father Hap. P.W.3 complainant Aleem Exh.15 has corroborated his F.I.R. Exh.16 as mentioned in para. 2 of this judgment. He was informed by his deceased brother that appellant caused him hatchet injury. He has stated that both accused are brothers inter se and‑ are his cousins. He has also admitted that Hap brought wife of Abdullah to his house and went to Abidullah s house and abused him and incident took place in the house of appellant and there were no previous enmity between them and always they used to reside together. P.W.10 Allah Bachaya is Mashir of arrest of both accused on 12‑10‑1979 and produced Mashirnama Exh.
34. He has also stated that he also made Mashir of securing of hatchet from appellant and he produced Mashirnama Exh.35. Hatchet according to Mashirnama was not blood‑stained. The report of Chemical Examiner is at Exh.38. P.W.7 Muhammad Umer Exh.20 is Mashir of injuries of Hap and also stated Mashirnama of Wardat Exh.23. He has stated that appellant and Hussain were arrested in his presence vide Mashirnama Exh.25 and arrests were made again after death of Hap. P.W.9 Muhammad Hussain is Mashir of Wardat and has produced Mashirnama Exh.32.
8‑A. Next piece of evidence is confession. P.W.8 Rehmatullah has stated that on 27‑10‑1979 he was Mukhtiarkar & F.C.M. Shah‑Bandar at Ladyun where S.H.O. produced appellant Abdullah and Hussain for confession and after observing necessary formalities he recorded their confessions and according to him confessions are correct and given voluntarily. He after recording confessions remanded back the accused to judicial custody.
9. P.W.1 Qadir Bux Tapedar has produced sketch of Wardat Exh.
9. Dr. Taljaram Exh.11 has stated that on 12‑10‑1979 he was Medical Officer, Civil Hospital, Thatta and on that day he examined injured Hap and found following injury on his person:‑
"Incised wound 5" x 2" cutting the bone meninges and the brain matter was protruding out.."
"Incised wound 5" x 2" cutting the bone extending from the mid of the head going towards the posterior aspect of the route of the right ear a: mid and cutting the route of ear partially."
The injury was grievous and appeared to have been caused by sharp cutting weapon about 18 hours before the examination. He has stated that injured was brought by his brother Aleem who was accompanied by compounder of Chuhar Jamali Health Centre and injured was unconscious. He has produced certificate Exh.12 on 22‑10‑1979 the injured was referred to Civil Hospital Karachi, as per letter of Civil Surgeon Exh.13. He has further deposed that on 24‑10‑1979 the dead body of Hap was brought and he conducted post‑mortem and on External Examination he found one incised wound over the right head extending from mid of head going towards the posterior aspect (if the route of the right ear at mid measuring 5" x 2" cutting the bone meninges and the brain matter was protruding out. He produced post‑mortem notes as Exh.14. P.W.11 Juman Khan Exh.36 recorded the F.I.R. and investigated the case as stated above and P.W.12 Khalilur Rehman was S.H.O. and he received information about the death of Hap through Umer and then took up the remaining investigation and challaned both the accused.
10. Appellant in his 342, Cr.P.C statement denied the allegation and stated that he had not given any statement before the Magistrate and confession Exh.29 is not correct. He claims to be innocent
11. I have heard the appellant and Mr. S. Murtaza Hussain, Advocate for the State. Appellant has submitted that he has falsely been implicated. Mr. S. Murtaza Hussain contended that case against the appellant has been proved but in view of the evidence he submits that conviction be altered from 304, P. P. C. to 326, P.P.C. as fight seems to be sudden and therefore sentence undergone will meet the ends of justice.
12. From the evidence furnished by three eye‑witnesses Mst. Raju, Mst. Niamat, Mst. Phatul coupled with confession and corroborated by medical evidence it is proved beyond any shadow of doubt that appellant did cause injury to Hap who died due to that hatchet injury.
13. The learned Sessions Judge convicted him under section 304, P.P.C., though charge against the appellant was framed under section 302, P.P.C. The co‑accused Hussain was also acquitted by the trial Judge.
14. Complainant Aleem, brother of deceased Hap has admitted in his evidence that incident in which his brother Hap received injury took place in the house of Appellant Abdultah and they always used to reside together and there was no enmity between them. He has also stated that it is learnt that Hap again went to the house of Abdullah and he again abused him. P.W. Mst. Phatul daughter of deceased has stated that Hussain and Abdullah gave abuses to his father from their house and his father Hap also exchanged abuses and then Hussain caught hold of Hap while appellant gave hatchet blow. The F.I.R. was recorded under sections 324/323/504, P.P.C. and no intention on the part of appellant to commit murder of deceased has been shown in F.I.R. as well as in the evidence. All these circumstances show that fight is sudden and death was caused without any intention but knowledge on the part of appellant that injury might cause death exists in the circumstances when injury is on vital part and is grievous which resulted in the death of Hap. Accordingly in my view offence falls under section 304, Proviso 2 which is punishable to ten years, or with fine or both. Appellant was arrested on 25‑10‑1979. He is stated to have remained in custody for more than 41 years. He has also been released by Government on parole under Good Conduct Prisoners Probation/ Reclamation Act. The trial Court while convicting the appellant has not passed any order for compensation as provided under section 544‑A , Cr. P. C. though sentence of fine has been imposed and half of the fine if recovered has been ordered to be paid to the heirs of the deceased. The order under section 544‑A , Cr. P. C. is an independent order in addition to fine imposed as provided in law, and that order is not passed and Court has probably exercised discretion in favour of the appellant.
15. The circumstances of this case as discussed above require consideration so far as sentence is concerned.
16. I, therefore, modify the sentence from 10 years and fine o Rs.5,000 to sentence already undergone which will meet the ends o justice when appellant has already remained in jail for more than 41B years. He should be released forthwith if not required in any other case.
17. Copy of this order be sent to Assistant Director, Reclamation and Probation, Hyderabad, Division Hyderabad.
S. G. D. Order accordingly.