1. Hussain Chachar who has been tried for the murder of his father Haji Manthar by the Sessions Judge Hyderabad and convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000 or in default to suffer further rigorous imprisonment for one year has filed the instant appeal from jail against his aforesaid conviction and sentence. At the stage of hearing of the appeal, however, Mr. Abdul Hafeez Lakho, Advocate was engaged to appear on behalf of the appellant and has argued the appeal. Mr. Habibur Rashid appeared on behalf of the State.
2. The case of the prosecution briefly stated is as under; Haji Manthar was the father of the appellant and they both used to reside together in village Mevo Chachar. Besides the appellant, he had two sons, namely Photo and Mukeem who, however, were residing separately. On 15th May, 1976 at about 4 p. m. Haii Mantbar deceased was in his otaq. He and his friend Sajian Fakir were resting on cots when his son Hussain came to him and asked for Rs.
100. Haji Manthar refused to give him the money. The appellant was annoyed, picked up a piece of brick, which was lying near the window and threw it at his father. The piece of brick struck the deceased over his right ear and caused him injury due to which he died. Haji Waroo son of Mahi Chachar, who is son-in-lair of the deceased, was passing in front of the otaq of the deceased at the time as he had come to fetch water from the tap which is in front of the gate of the otak. He saw the appellant coming out of the otak in a hurry and enquired from him as to what was the matter. The appellant told him that he had demanded Its. 100 from his father as he required it, but since his father had refused to give him the money, he had felt annoyed and had picked up a piece of brick with which he gave his father a blow due to which he had perhaps died. On hearing this confession from the appellant, Haji Waroo went inside the otak along with the appellant where he found Haji Manthar lying on the cot. Blood was oozing out from his ear, nose and mouth, and he was dead. Saban Fakir was sitting on the other cot near the cot of the deceased and, on enquiry, disclosed the same facts as the appellant had related to him. Leaving Saban Fakir near the dead body Haji Waroo took the appellant to Hala to his Nekmard, but since the Nekmard was not available, he took the appellant to the otak of Muhammad Umar Chachar and met Muhammad Umar and Muhammad Siddiq to whom he narrated the facts. They also enquired from the appellant who confessed his guilt before them. They then advised Haji Waroo to take the appellant to Saeedabad Police Station and report the matter to the Police. First informant Haji Waroo reached the police station at 8 p. m. That very day and lodged F.
1. R. With Syed Jaffer Raza who was Additional S. H. O. Saeedabad on that day. Complainant Haji Waroo had taken the appellant to the police station, and after recording the F.
1. R. S. I. P. Syed Jaffer Raza interrogated the appellant and arrested him in presence of Mashirs Photo and Mir Muhammad. The appellant was weaning a shirt having bloodstains which was secured and sealed by the police in presence of the same mashirs.
3. Witnesses Muhammad Umar, Saban Fakir, Haji Siddiq, Photo and Muqeem had also come with the complainant to the police station. He recorded their statements. He then sent the accused to the police lock up and himself accompanied complainant Waroo to the scene of offence which was in the otak of deceased Manthar, father of the accused--appellant in village Mevo Chachar. The dead body of Haji Manthar was lying on a cot in the otak: He secured the rilli and roomal which were stained with blood. He found a brickbat lying at the scene of offence near the cot. The brickbat had no bloodstains, but he secured it. There was another cot lying at a distance of about two feet from the cot over which the dead body was lying. Outside the door of the otak there was water-tap with a hand pump. He prepared mashirnama of vardat in presence of mashirs Photo and Mir Muhammad and also prepared the inquest report in their presence: He despatched the dead body through Police Constable Ghulam Husain to the Medical Officer Saeedabad for post- mortem examination: The D. S. P. Reached the vardat and had verified the investigation.
4. On 17-5-1976 he produced the accused appellant before Mukhtiarkar and F. C. M. Hala before whom the appellant made a judicial confession. On the same day he had the 164 statements of prosecution witnesses Saban, Muhammad Umar and Haji Siddiq recorded by the Mukhtiarkar and First Class Magistrate, Hala in presence of the accused. On the same day be recorded the statement of Haroon. He had sent the blood-stained articles to the Chemical Analyser for examination and report which he bad later produced in Court. On completing the investigation, the appellant was sent for trial.
5. The appellant in his statement before the Sessions Court denied all the allegations and denied that he had made extra judicial confession before complainant Haji Waroo or before Muhammad Umar and Haji Siddiq in Hala. He denied that the police had secured blood-stained shirt from his possession at the time of arrest He had also denied that P W Saban Fakir was present at the otak and had seen the incident or .That he had voluntarily made a judicial confession before the Mukhtiarkar and F. C. M. Hala. It was his plea that his deceased father had fallen down and sustained injuries. He further tried to explain that Haji Waroo was his enemy and also his brother Photo, as he had deprived them of furtile lands belonging to his father. According to him, the lands were grabbed by Haji Waroo who is son-in-law of the deceased. A few months prior to the incident a dispute bad arisen between Haji Waroo and Photo, brother of the appellant over the lapels. In his state Went he also referred to application against Waroo which he had made to the D.I: G. Police as Waroo had cut off the trees from his lands and was trying to grab his lands. Shortly after making his application to the D. I: G. His father had fallen down and sustained the injury, and Haji Waroo had cooked up the false case against him. He further explained that other witnesses are related to Haji Waroo and therefore had falsely implicated him in the case.
6. There is sufficient evidence to prove that the appellant caused injury to his father which resulted in his death. There is firstly the evidence of eye--witness Sajjan Fakir who was sitting on the next cot in the otak of the deceased at the time and who has fully supported the prosecution that the accused came in the otak and demanded Rs. 100 from his father who. Had replied that he did not possess the money at the moment. The witness further states that the accused appellant felt annoyed, picked of a brickbat lying at the door of the otak and struck him a blow by throwing, it at him and due to the injury the deceased bled from -his nose and mouth and fell down upon the cot.
7. The witness stated that the deceased died immediately after receipt of the injury. He fully corroborated the evidence of Haji Waroo son-in-law of the deceased who was the first informant by stating that he had related these facts to Haji Waroo. The testimony of ''this witness is the testimony of an independent person against whom there is no allegation of any enmity with the accused and whose testimony has stood the test of cross-examination. He has supported the prosecution by stating that the appellant voluntarily accompanied Haji Waroo to Hala after committing the crime. Dr. Muhammad Iqbal who performed the post-mortem examination of the dead body of the deceased has given evidence about only one external injury, namely, that there was contusion and laceration of pinna of right ear and there was clotted blood under the skin by the side of the injury. On internal examination he found that there were blood clots on the right side of the brain. According to his opinion, the death of the deceased was due to head injury and. Shock due to internal haemorrhage. Thus there is complete and full corroboration of the testimony of eye-witness Sajjan Fakir and the evidence of the doctor also is in consonance with the circumstantial evidence of the finding of the brickbat lying near. The cot which was not stained with blood. As already observed, according to the doctor, there was clotted blood under the skin by the side of the injury and, therefore, the brick--bat could not have been stained with blood; although there having been internal haemorrhage, as stated by the doctor blood had oozed out from the nose and mouth of the deceased.
8. Haji Waroo, the first informant, is the brother-in-law of the appellant and his testimony also appears to be truthful in that he has not posed to be an eye-witness and he has merely stated that on hearing the noise he went towards the scene of offence and saw the appellant coming out of the otak walking fast. It was the accused who, on enquiry, informed him about what had happened.
9. P. W. Photo, who is the brother of the appellant, has fully corroborated the testimony of Haji Waroo about the appellant making confession of having thrown a brick at his father and of having killed him. There is further corroboration with regard to the fact of extra judicial con--fession by P. W.
10. Muhammad Umar to whose otak in Hala-Haji Waroo had taken the appellant, after finding that Makhdoom of Hala was not available at his residence.
11. The testimony of the eye-witnesses and all the witnesses before whom the appellant made extra judicial confession is also supported by the judicial confession made by the appellant before the Mukhtiarkar and First Class Magistrate of Hala in which the appellant had confessed that he had committed the murder of his father deceased Haji Manthar at noon time in their-e- village Mevo Chachar with a pucca brick as his daughter aged about three months was seriously ill and he had asked for Rs. 100 from his father for her treatment. He had therefore felt annoyed and had given him a blow with a pucca brick above the right ear due to which he had died.
12. On behalf of the appellant certain minor discrepancies in the evidence of the witnesses have been pointed out, but the same are not of such a nature as to throw any doubt on the evidence given against the appellant. The plea of the appellant regarding enmity of Haji Waroo is also not such as could be considered sufficient for false implication of the appellant who is his brother---in-law.
13. However, it is obvious from the evidence already discussed that the appellant felt annoyed with his father on his refusal to give Rs. 100 which the appellant bad asked for getting his little daughter treated and had thrown a piece of brickbat at his father. It is difficult to conceive looking to the inadequacy of the motive that the appellant intended to cause the death of his father. The most that can be gathered from the facts on record is that he, at the most, intended to cause grievous hurt.
14. Under the circumstances, the appeal is partly accepted and the conviction is altered from section 302, P. P. C. To one under section 325, P. P. C. And he is sentenced to imprisonment already undergone. He was arrested on 15th May, 1976 and convicted on 17-4-1979. Thus he remained in custody as under-trial prisoner for a period of 2 years 10 months and 28 days. He has remained in custody after his conviction till today and, therefore, taking into consideration the provisions of section 382-B, Cr. P. C. He has been awarded the sentence of imprisonment already undergone. He may, therefore be released forthwith if there is no other case pending against him.