This Jail Appeal has been filed by Shukar Ali son of Rahim Bux against the judgment of Abdul Ghafoor Shaikh, Additional Sessions Judge, Tharparkar at Sanghar, dated 15-5-1970, by which he has been convicted under section 325, P. P. C. And sentenced to two years' R. I. And fine of Rs. 200 or in default of payment of tine to suffer R. I. For three months.
2. Brief facts of the case are that the present appellant and one Mst. Mahmooda Begum alias Mst.
Mends wife of Mukhtar Ahmed deceased resident of Chak No. 24, Taluqa Sinjhoro. District Sukkur were committed for trial in the Court of Additional Sessions Judge, Tharparkar at Sanghar for offences under section 302/34, P. P. C. For the murder of one Ali Mohammad. On 15-11-67, Hassan Mohammad filed an F. I. R. At Police Station Sinjoro District Sukkur at 16 hours, to the effect that some two years ago his aunt Mst. Mends and the present appellant Shukar Ali had poisoned his uncle Mukhtar Ahmed, as a result he died. Both these persons were challaned in the Court for the offence but they were later on acquitted. Mst. Mends had developed relations with appellant this was resented by him and his father Ali Mohammad. His father used to complain to him that appellant used to abuse and threaten him that if he would come now at 24 Jamrao, he will be killed. On 14-11-67 when he came from the fields to his house and enquired from his wife Mst.
Bashiran about his father, he was told that he has gone to 24 Jamrao. In view of the threat of the appellant to his father he left for Sanghar and from there hired a taxi and reached 24 Jamrao at about 3-30 a.m. And he found his father Ali Mohammed and appellant in the house of Mat. Mends.
He also slept there. At about 5-30 a.m. When his father went to mosque for prayer from where he returned by 6 a.m., when appellant asked him that in spite of challenge not to come from Mirpur Khas why he has come, to which his father re--plied that it is his house, why he should not come, Whereupon appellant abused him and took the peg of bullock cart and gave a blow on the head of his father, on this commotion he got up and found Mst. Mends having a brick in her hand and throw on his father in turn his father gave a laths blow on her head and raised cries when Sadiq and Hayat Jat came running there. They tried to arrest them but failed. Thereafter appellant took Mst.
Mends and her children in his taxi and went to Sinjhoro side. His father was lying injured in the street. In the meanwhile Fatah Din Tali, Fazal Illahi and other villagers came and he narrated the facts to them. After half an hour as a result of the blows his father expired who was 70-80 years. He left Sadiq and Hayat at the dead body of his father 'and went to inform the respectable man of the village Ahmed Hassan. He advised him to lodge the report at the Police Station Sinjhoro. It was alleged that his father died due to lathi blows given by appellant and the brick blows given by Mst.
Menda.
3. Police came to the vardat, and dead body was sent for post-mortem examination. Curiously enough Mst. Mends had also lodged a report at the same police station earlier than the complainant on the same day alleging that deceased Ali Mohammed and his son the present complainant Hasan Mohammed caused her lathi injuries on her head, as the offence was not cognizable, no immediate action was taken by the police. This report is Exh. 18 and was filed at about R-10 a.m. It was also stated in this report by Mst. Mends that the beating given to her by them was on the pretext of her illicit relations with appellant Shukar Ali. Police then examined witnesses, secured blood-stained danda, turban of deceased Ali Mohammed from the vardat and the brick bat, which were sealed before the mashlrs and sent to Chemical Examiner.
4. Defence of the appellant was a total denial and he also denied in his statement to have any illicit relations with Mst. Mends. He took the plea of alibi by saying that after the murder of Mukhtar Ahmed (husband of Mst. Mends, brother of deceased Ali Mohammed uncle of complainant Hassan Mohammed), he left the village and went to Multan. At the time of incident he was at Multan. The police has arrested him there and gave beating then.
5. Prosecution has examined Hassan Mohammed complainant P. Ws. Mohammed Siddique, Fazal Illahi and Fatehdin as eye-witnesses of the occurrence. They all stated that Ali Mohammed was murdered with the danda blow. These witnesses are supported by the mashirs of vardat and Investigating Officer who deposed that they found Ali Mohammed lying dead with head injury. The evidence of these witnesses is further supported by the Medical Officer who conducted the post- mortem examination. According to him the dead body externally had one contused wound on the head at the junction of parietal bones more on left side fracturing the left parietal bone damaging the underlying tissues, and brain matter, it was 2--'x 1-- fracturing the bones damaging brain matter. This injury was ante-mortem and sufficient in the ordinary course of nature to cause death.
6. The statement of P. W. Hassan Mohammed (the complainant) is materially supported by P. W.
Mohammed Sadik who stated that deceased had come in their village on previous day while complainant came on the day of incident. He further stated that in his presence the appellant gave two danda blows to Ali Mohammed and Mst. Mends gave blows with brickbat. P. W. Fazal Illahi deposed that Mst. Mends was holding Ali Mohammed while the appellant gave two laths blows to Ali Muhammad, he admitted his relationship with Ali Mohammed. He also justified that he has seen the complainant in the village in the morning. P. W. Fatehdin states that complainant had come in their village' a day or two prior to the incident. The learned trial Court taking together the statement of these witnesses and that of P. W. Mohammed Hayat in the lower Court which was brought on record under section 288, Cr. P. C., believed its veracity that the appellant gave danda blows to Ali Mohammed and also that appellant used to prohibit Ali Mohammed not to visit the house of Mst.
Mends and observed that: --- "besides the above-stated evidence all the witnesses have mostly stated that accused had illicit liaison inter se and accused Shukar Ali was present at the vardat and he gave danda blow to Ali Mohammed. From the F. I. R. And deposition of complainant and other witnesses in Court various points can rightly be raised and believed."
7. After discussing the purposes of visit of Ali Mohammed and complainant Hassan Mohammed to the house of Mst. Mends as deduced from the statement of complainant and of Mst. Mends, the learned trial Judge reached this conclusion "I therefore, find that deceased and complainant and his father-in-law had come to village of accused to decide with her about the children of Mukhtar Ahmad (deceased). Presence of Shukar Ali in the house of Mst. Mends cannot be disputed because besides all the P. Ws. The A. S. I. Police had also stated that when Mst. Mends came to Thana for report he was with her. There were injuries also on the person of Shukar Ali for which he has blamed police, but evidence of M. O.
Shows that they were not fresh. Even learned counsel for accused has conceded that case against Shukar Ali under section 325, P. P. C. Is proved which means he admits the presence of Shukar Ali in the house of Mst. Mends.
From all the above discussed evidence I come to the conclusion that the deceased had come in the house of Mst. Mends on the preceding night and he was staying with her. The complainant with his father-in-law had followed him and in the morning of the day of incident deceased Ali Mohammed and accused Shukar Ali entered into altercation and sudden quarrel arose between them. If accused had intention to kill him they could have one that in the night time when Ali Mohammed was sleeping in the house. In the quarrel Ali Mohammed had given lathi blows to Mst.
Mends and Shukar Ali gave only one blow to Ali Mohammed when while quarrelling both had gone in the street which further suggests that accused wanted to take Ali Mohammed out of the house.
According to evidence of Medical Officer All Mohammed had one contused wound. If Shukar Ali had given two blows as alleged by the prosecution or if Mat. Mends had also given -him blows with brick bat naturally there should have been such marks of violence on the body of deceased. It is therefore, clear that no blow was given to deceased by Mst. Mends and only one blow was given to him by accused Shukar Ali which of course was on head, a vital part of the body and this incident took place without any premeditation and it was due to sudden quarrel between the parties,"
The learned trial Judge goes on to observe that--: -- learned D. P. P. Has admitted that case against Mst. Mends is doubtful and against Shukar Ali it would fall undersection 304, P. P. C. In one case decided in PLD 1965 Lah. 378 it was held that if act of accused is not intended to cause death it amounts to grievous hurt even though death may be caused thereby and conviction under section 302, P. P. C. Read with 34, P. P. C., was altered to one under section 325, P. P. C. Learned counsel of accused admits that accused Shukar Ali is liable under section 325. P. P. C: only." After these observations the learned trial Judge acquitted Mst.
Mends and convicted appellant -Shukar Ali under section 325, P. P. C. And sentenced him to two years' R. I. And a fine of Rs. 200 in default of payment to three mohths' R. I.
8. We have heard Mr. Manzoor Hussain, Advocate for the State and also questioned appellant who was present in the Court. He replied that he has been implicated due to enmity and he was not present at the time of incident in Sind. He was in Multan from where he has been arrested.
9. We are at loss to sec as to how the learned trial Judge after believing the entire evidence of the prosecution, the presence of the appellant in the house of Mst. Mends and his taking part in the offence and the resultant death of Ali Mohammed in which although the witnesses stated that Mst.
Mends had taken part by giving brick blows to Ali Mohammed, he came to the conclusion that Mst.
Mends has not taken part and acquitted her and also how he converted the offence from section 302, P. P. C. Read with section 34, P. P. C. To section 325, P. P. C. It is unfortunate that the learned trial Judge relied too much on, the admissions of D. P. P. As to doubtful participation of Mst. Mends and also absence of intention on the part of the appellant to commit the intentional murder. The learned trial Judge is not - bound under the law to follow what a D. P. P. May state. He has to evaluat the evidence on record and come to his independent decision a to the guilt or otherwise of an accused person. In this case are afraid we do not see that independence to reach a correct conclusion on the part of the learned trial Judge.
10. It is on record and incidentally the learned trial Judge believed it that the enmity existed between the complainant, his father Ali Mohammed on the one hand and appellant and Mst.
Mends on the other hand. The deceased had lost his brother Mukhtar Ahmed allegedly at the hands of appellant and his daughter-in-law Mst. Mends by poisoning, although they were acquitted later on. It is also on record and stated by witnesses that appellant had illicit relations with this very shrewd woman who soon after the incident went in a taxi with the appellant, and was clever enough to file a false complaint wherein very conveniently she has omitted the fight between the deceased and appellant. This was simply done to save the skin of the appellant and as a counterblast for subsequent complaint she expected to be lodged by the deceased's relative, who was at the moment lying injured in the street. Was it not a sufficient circumstance we may think to establish criminal intention on the part of these two persons who allegedly have disposed of one brother earlier although managed to get away from the crime we do not know how this fact could escape the attention of the learned trial Judge particularly with this background,
11. There is another aspect and very material one as regards to the criminal intention on the part of the appellant i.e. As believed by the learned ,trial Judge, his presence in the house of Mst. Menda when deceased Ali Mohammed and his son came there. What business this man had to be in the house of Mst. Menda? What right he had to threaten or otherwise pick up a quarrel with Ali Mohammed deceased and his son who ate the real heirs of the property of the children of their deceased brother Mukhtar Ahmed and also had the right to take care of Mst. Menda as a wife of their deceased brother having the children in her custody? It is obvious that the appellant wanted to continue his illicit relations with this woman Mst. Menda with whom he was infactuated and perhaps wanted to usurp the landed property of deceased Mukhtar Ahmad; therefore, this woman with whom he had no moral or legal right whatsoever to reside. Yet he has shown his high- handedness and inflicted the fatal blows to the deceased who was the rightful heir of the property as well as natural guardian of the children of his deceased brother Mukhtar Ahmed. With this background one wonders how the trial Court came to the conclusion that there was a sudden quarrel and there was no intention on the part of the appellant to kill deceased Ali Mohammed.
12.The reliance of the trial Judge on a judgment (Anwar and another v. The State (PLD 1965 Lab, 378) is misplaced the facts of which he conveniently ignored either to react or to follow, as he cared not even to cite the name of the case. That was a case where a dispute arose with regards as to the purchase of a she-goat which was purchased a month before the incident by one Nikka from deceased Rafique and his brother Sharif on the representation that it was pregnant. Later on the purchaser doubted the pregnancy of the she-goat and represented the deceased and his brother, there was an altercation between the parties. They were separated but after a while appellant Anwar with his nephew Abdul Ghani and the other two persons came to the shop of Mushtaq Ahmed where deceased Rafique and his brother Sharif were present. They challenged the deceased party and a fight took place with the result appellant Anwar gave a stick blow to deceased Rafique on the head. Appellant Abdul Ghani also inflicted injury with the baton who fell down unconscious and the other assailants are also said to have taken part in the fight with deceased Rafique and his brother Sharif. After considering the background of the dispute a Division Bench of the then High Court of West Pakistan, Lahore, consisting of Mr. Justice Shakirullah Jan and Mr. Justice Abdul Hamid came the conclusion that- "the question for determination in this case is whether the appellants intended to cause the death of the deceased. It is apparent from the record that the motive for the murderous assault is inadequate. There was only a slight altercation between the deceased and Anwar appellant immediately before the occurrence. Abdul Ghani appellant was not even present at the time of that altercation. It is obvious that Anwar appellant felt offended and went home and brought Abdul Ghani appellant to the spot to teach a lesson to Rafique deceased and his brother Sharif P. W. Each one of them inflicted one injury on the head of the deceased. Unfortunately, the injury inflicted by Abdul Ghani appellant with a baton proved fatal while the blow given by Anwar appellant was simple in nature. Considering the inadequacy of the motive, we are of the opinion that the assailants of the deceased neither intended to cause death nor knew that they were likely to cause death. We are accordingly constrained to hold that the appellants at the most intended to cause grievous hurt-to the deceased. We, therefore, partly accept the appeal and alter the conviction from section 302/34, P. P. C. To one under section 325/34, P. P. C. Pad sentence each of them to seven years' R. I. The sentence of death imposed on Abdul Ghani appellant is not confirmed.'
The present case is clearly distinguishable from the case cited above because in the case cited above the motive of the fight was found to be inadequate. It was sudden on a petty matter of a purchase of a she-goat and provocation was given to appellant Anwar by the other side. The rest of the injuries except one were also simple in 4ature, therefore, it was held that the deceased neither intended to cause death nor they knew it would cause death, on these reasoning conviction was altered from section 302/34, P. P. C. To one under section 325/34, P. P. C., yet each of them was sentenced to seven years' R. I., as opposite to the sentence of two years aid that also to appellant alone.
13. The trial Judge is again wrong to say in his judgment that--- "the anxiety (of appellant) appears to be only to drive out Ali Mohammed and his party from house and in doing that he had voluntarily caused grievous hurt to Ali Muhammad by giving him a dandy blow for which he- can be liable under section 325, P. P. C.- .
Now a cursory look to the medical certificate Exh. 41 goes to show that deceased had suffered not only one but three injuries. One wonders how, the trial Judge legitimately say that only one danda blow was given to the deceased. It is also not understand--able that how the trial Judge came to the conclusion that Mst. Menda has not participated in the fight. Particularly so when she has sustained certain injuries and there is' medical evidence to that effect. She had three contused injuries on her, body. Had she not participated in the tight, there was no reason for her to receive injuries at the hands of her brother-in-law, Ali Mohammed. Had the trial Judge given a careful attention, to this case, it would not have been difficult for him to come to a proper decision.
14. As no application for enhancement of the sentence have been filed by the prosecution agency, I have -no option but with the above observation, to confirm the sentence awarded to him and dismiss this appeal, A copy of this judgment may be sent to the Advocate-General., Sind.