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Petitioner: KHUDA DINO VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Durab Patel, Imdad Ali H. Agha Title: KHUDA DINO vs THE STATE Case No.: Criminal Appeal No.J-316 of 1969 Date of Judgment:1972-02-23 Reported As: 1973 P Cr. L J 186 Result: Appeal dismissed
JUDGMENT
JUDGMENT IMDADALLY H. AGHA. J.-Appellant Khuda Dino whose mother's name is Mst. Jamal Khatoon was tried by the learned Sessions Judge, Khairpur for the murder of his own father-in-law deceased Muhammad Paryal and for causing hurts to Abdul Majid (P. W. 4), son of the deceased, and Mst. Fatima (p. W. 5) widow of the deceased as well as for kidnapping his own son aged about 5 to 6 years from the possession of his wife Uat. Zainab (P. W. 6) who is the daughter of the deceased and was convicted under sections 302, 324, 323 and 363, P. P. C. He was sentenced on the murder charge to transportation for life, under section 324 he was sentenced to two years' R. I., under suction 323, P. P. C. He was sentenced to one year R. I. And under section 363 P, p, C, he was sentenced to two years' R. I. His sentences were ordered to run concurrently. He has now filed this appeal from jail against his convictions and sentences. 2. The facts of the prosecution case as gleaned from the testimony of the P. Ws. Briefly are these. Complainant Muhammad Urs (P. W. 3) in this case is a cousin of the deceased Muhammad Paryal and this house was adjoining to the house of the deceased in the same village. Along with the deceased his son P. W. Abdul Majid and his wife Mst. Fatima also resided together. Muhammad Bux (P. W. 7) is also the cousin of the deceased and his house as well as the house of one Mehar so also the house of the complainant are all within the same enclosure in which there was the house of the deceased. The enclosure of these houses had one common entrance. The house of the appellant was about a mile away from the village of the deceased. P. W. Mst. Zainab, daughter of the deceased, as already mentioned, was married to the appellant about 7 or 8 years before this witness gave evidence at the trial. Out of this wedlock she had got a son who was aged about 5 or 6 years at the time of the occurrence which took place on 9th of October 1967, at about 5-30 p.m.
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In the house of the deceased Paryal. P. W. Mst. Zainab wife of the appellant was suffering from typhoid since about few days before the occurrence. Her husband, the appellant, was not getting her treated so her father, the deceased Muhammad Paryal, brought her and her minor son Allah Dino from the house of the appellant to his own house for the purpose of treatment to her. 3. It is the prosecution case that on the day of occurrence Mst. Jamal Khatoon, the mother of the appellant, came to the house of the deceased at about Tepahri time and asked the deceased to allow P. W. Mst. Zainab, wife of the appellant, to go to the house of her husband. The deceased replied that his daughter P. W. Mst. Zainab was still ailing and he would leave her in the house of the appellant when she got well. The mother of 'the appellant, therefore, went away. Short-time thereafter, the appellant with a hatchet in his hand came to the house of the y, deceased and asked him to allow the appellant to take away his wife and son back to his house. But the deceased replied that P. W. Mst. Zainab was still not well and he would allow him (the appellant) to take her away when she got well or he would himself leave her at the house of the appellant. Thereupon, the appellant insisted that the deceased should allow the appellant to take away his wife but the deceased during the course of this argument said to the appellant that the latter had not given any--thing in exchange for his wife P. W. Mst. Zainab which infuriated the appellant as a consequence of which the appellant gave hatchet blows to the deceased who fell down unconscious. Seeing the appellant causing injuries to his father, the deceased's son P. W. Abdul Majid tried to intervene, but the appellant gave him blows also with the hatchet. Then the mother of P. W. Abdul Majid, namely, Mst. Fatima, widow of the deceased, also tried to save her son and husband from the injuries of the appel--lant and intervened but in the process she also received injuries from the appellant with the hatchet. Cries were raised where--upon P. W. Muhammad Bux and Mehar who were scaring birds from their land which was at the back of the house of the deceased came running to the scene of offence. P. W. Muhammad Bux, it is said, saw the appellant giving blows to P. W. Abdul Majid by which time the appellant had already caused injuries to the deceased and P. W. Mst. Fatima. This witness found the deceased and his widow P. W. Mst. Fatima lying on the ground. He, therefore, shouted at the appellant and told him not to kill people but the appellant threatened him not to approach him (the appellant). The appellant then took away his minor son Allah Dino from the custody of his mother who was also lying on a cot being ill about several paces away from the spot where the appellant had caused injuries to the deceased and the other two injured. The appellant also took away his hatchet along with himself carrying away his own minor son. The complainant Muhammad Urs on that day had gone to Hingorja and returned home at sunset time. He found deceased Muhammad Paryal lying injured in the courtyard of his house and unconscious. He also saw P. Ws. Mst. Fatima and Abdul Majid lying injured. He, therefore, made enquiries from P. W. Abdul Majid as to what had happened and the latter informed him of the whole occurrence and gave him the facts as have been disclosed already above in the narrative of the prosecution story. The complainant then went to the Zamindar Mir Muhammad (P. W. 8) who was their Nekmard and lived at a distance of about 3 survey numbers away and informed him about the occurrence implicating the appellant for the crime. P. W. Mir Muhammad advised him - to carry the injured to the hospital. The com--plainant, however, then went to another Zamindar Ali Nawaz (p. W. 9), in the latter's village which was about - 1 /4 mile away from the scene of offence and informed him about the occurrence again implicating the appellant for the crime. P. W. Ali Nawaz also advised the complainant to get the injured persons removed to the police station. The complainant then returned to the scene of offence and tried to arrange for a transport which he could not make available. After the complainant had informed P. W. Mir Muhammad about the occurrence the present appellant also went to P. W. Mir Muhammad about an hour and half subsequent to the complainant's visit and the
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appellant told P. W. Mir Muhammad that he had gone to his in-laws to bring back his wife as a result of which there was a quarrel in which his father-in-law Muhammad Paryal, Majid, Fatima and he had sustained injuries. The appellant then asked this witness Mir Muhammad that he should intervene and bring about settle--ment instead of their lodging complaint against him. P. W. Mir Muhammad told him that he had already advised the com--plainant Muhammad Urs to lodge the report. The appellant admitted before him that he had given blows with hatchet to Paryal, Majid and Fatima. He then left from there. After the complainant had gone to P. W. Ali Nawaz and informed him of the occurrence at Somhami time the present appellant subse--quently at about 10 or 10-30 p.m. Also went empty-handed to P. W. Ali Nawaz and admitted to him that he (the appellant) had gone to his in-laws to get back his wife where a tiff took place between him and his father-in-law in which he had given blows to Paryal. The appellant did not mention to this witness that he had given blows to his mother-in-law or brother-in-law also. He then asked P. W. Ali Nawaz to intervene and see that the matter was not reported to the police. The latter told him that he bad already advised the complainant Muhammad Urs to lodge the report. He then asked the appellant to come back to him the next day and the appellant came to him on the next morning at sunrise time. P. W. Ali Nawaz then sent the appellant through Fateh Ali to the police and that is how it appears the appellant was arrested by the police as stated later. 4. It appears that neither the complainant nor any other person went to lodge a report on the night of the occurrence because the deceased by then had not died and perhaps it was expected by his relations that he might survive and had not received such serious injuries to result in his death, therefore, they did not care to lodge a very prompt report. However, the deceased died at Asur time (early morning). Therefore, the com--plainant went to Hingorja Out post at dawn time on foot which was 3 miles away from the scene of crime. 5. The complainant reached the out post at 7-30 a.m. And lodged his report which was taken down on a white piece of paper on 10-10-1967 by the Head Constable Incharge, Sodho Khan (P. W. 10) of the out post. The Head Constable then sent the com--plaint in original to Gambat Police Station in whose jurisdiction the out-post was for transcribing it in 154, Cr. P. C. Book as no such book was maintained at the outpost. The Head Constable P. W. Sodho Khan then accompanied the complainant to the scene of offence. There he found blood which he secured and made into a sealed parcel and also prepared a mashirnama of the scene of offence Exh. 17 in presence of masMrs P. W. Mir Muhammad and Pandhi. He also saw the dead body of the deceased lying there and from the shirt pocket of the deceased he secured a medical prescription which he has produced as Exh. 16. The Head Constable then prepared inquest report of the deceased Exh. 18 in presence of the same mashirs and despatched the dead body through Foot Constable Muhammad Jurial (P. W. 2) to Hingorja hospital for post-mortem examination. He then recorded the statements of P. W. Mir Muhammad, Mst. Fatima and Abdul Majid. He also prepared a mashirnama of the injuries on P. Ws. Mst. Fatima and Majid which is Exh. 19 on record and it was attested by the same aforesaid mashirs. The Head Constable then sent the two injured eye- witnesses to the hospital. Thereafter, he recorded the statements of Mst. Zainab, Mahar, Muhammad Bux, Mohram and Zamindar Ali Nawaz. He then went to the house of the appellant and found him standing at the canal. Mashirs P. W. Mir Muhammad and Pandbi Khan as well as Atta Muhammad were in his company. The Head Constable found the appellant at 4 p.m. And put him under arrest. The appellant was found wearing a blood-stained shirt, loin cloth and had a Angosha, which appeared blood-stained and, therefore, they were secured by the Head Constable and made into a sealed parcel then and there as per mashirnama Exh. 20. The appellant was also found to be having some injuries and the appellant offered to produce his hatchet. The appellant then took the said Head Constable and the mashirs and produced a hatchet from the thatched roof of his house which was secured by the Head Constable as per mashirnama Exh. 21. The blood
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of the hatchet appeared washed but still there were some marks of blood stains on the blade and the handle. The hatchet was accordingly made into a sealed parcel in presence of the aforesaid mashirs. The Head Constable P. W. Sodho Khan then went back to the scene of offence where S. H. O. Of Gambat Police Station namely, Kajlo Khan had already arrived as he had received the report of this crime at - 12-20 noon at his police station which he had incorporated in the 184, Cr. P. C. Book maintained there and this first report has been produced as Exh. 9 by the prosecution. The scene of offence is about 15 or 16 miles away from the Gambat Police Station. When the S.H. O. Reached there he verified the investigation already conducted by Head Constable P. W. Sodho Khan. He then sent the property recovered by the Head Constable i.e. The blood-stained articles, to the Chemical Analyser whose report he has produced as Exh. 26. This report shows that the clothes said to have been secured from the appellant were found to be stained with human blood by the Chemical Analyser but no blood was detected on the hatchet of the appellant. The appellant was produced before the S. H. O. By the Head Constable and he had some scratches on his person, therefore, the S. H. O. Directed the Head Constable to take the appellant to the Medical -Officer. The S. H. O. Thereafter went to the Hospital, to verify the statements of the injured P. Ws. Mst. Fatima and Abdul Majid but they were not able to make any statement on account of their head injuries. On 11-10- 1967, i.e., the next day, the Head Constable P. W. Sodho Khan took the appellant to the Medical Officer, Hingorja Hospital for examination, treatment and certificate. The appellant was, accordingly, examined by the Medical Officer, who was Dr. Abdul Rehman. The doctor found the following simple injuries on the person of the appellant: - (1) Bruise above the lateral angle of the right eye 3' x 1/4' in size oblique in direction. (2) Bruise on the right temporal region 2' same size as that of injury No. 1. (3) Bruise on the back of chest on the left side 3" x 1/2' in size. (4) Bruise on the right scapular region 3--x --" x --'. The doctor described these injuries as simple and they appeared to have been caused by a blunt weapon. He also stated that the duration of the injuries was two days and issued a medical certificate Exh. 8/D. 6. After the investigation was over the appellant was sent up on interim challan to a Court of law on 21-10-1967 and his final challan was submitted to the same Court on 9-11-1967. Tire appellant took his committal enquiry in due course and was committed to the Court of Session where he took his trial with the result already mentioned above. 7. When questioned at the trial under section 341, Cr. P. C. The appellant denied all the prosecution allegations and professed innocence. 8. When the motive regarding the offence was put to him that he had gone to the house of the deceased to bring back his own wife P. W. Mst. Zainab he replied in the negative and stated that his wife was with him already. Regarding kidnapping of his own minor son from the custody of his mother he also replied in the negative and said that his child was with him. As regards the extra judicial confessions made by him to P. Ws. Mir Muhammad and Ali Nawaz he replied in the negative. When questioned about his blood-stained clothes having been secured by the police he replied that he was arrested by the police from his land where he was harvesting his crop and the clothes and the coat were not his. About the production of the blood-stained hatchet by him he replied in the negative and stated that the hatchet in Court was not his. When questioned regarding his injuries on his person he explained that he was beaten by the police. In reply to the last question as to why the P. Ws. Deposed against him he stated as under: - "Mehar, Moharram, Muhammad Bux and Muhammad Uris were all opposed to my marriage with Zainab but still my father-in-law gave his daughter in marriage to me. The trouble continued till then as a result of which Muhammad Parial and Majid gave blows to Moharram who died. They were tried and I incurred expenditure on the litigation. They were' convicted and sentenced to 12
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months. Even after their release, his relatives were not happy over my marriage. They picked up Muhammad Paryal and threw him into the well. Mian Mir Muhammad got him removed from there. Muhammad Paryal was bitter against his relatives on this account and he did not desire to get his daughter divorced by me. How could I inflict injuries on three persons and take away the boy without leaving a scratch on my wife from the house of the deceased where so many persons are living. I am a victim of circumstances." 9. The appellant did not examine any witness in defence. 10. There can be no manner of doubt that the prosecution has proved beyond all reasonable doubt that the deceased Muhammad Paryal died of hatchet injuries and P. Ws. Abdul Majid and Mst. Fatima also sustained hurts as alleged by the prosecution. The appellant does not dispute this point and I find that the evidence of Dr. Abdul Rehinan who conducted the post-mortem examination on the dead body of the deceased and also examined and treated the two injured eye-witnesses con--clusively establishes the point under consideration. Dr. Abdul Rehman in his deposition in the committal Court which was brought on record of the trial as Exh. 27 has stated in his evidence that when he examined the dead body of the deceased he found the following external anti-mortem injuries on it: --- "Injury No. 1: (1) Blunt injury on the right tempro mandibular region starting from the angle of mandible towards the petron 4' x 3' in size. The injured part was black and swollen. It was longitudinal in direction. (2) Similar injury as previously mentioned 3' x 2" in size on the left side longitudinal in direction. (3) Upper and lower lids of left eye were black and oedematous. (4) Wound having toothed margin situated on the vertex anteroposteror in direction size 3' x 1 / 4' x 1/2". Injury on the scalp and vertebrae (1) Wound 3' x 1/4' x 1/2' situated in the scalp in the region of vertex caused by blunt weapon. (2) Frontal bone of the scalp was fractured with four pieces in front of vertex. (3) Left temporal bone fractured in the region of petron; alongitudinal in direction." 11. On the internal examination of the body he found the following damage done to it (1) Membranes on the frontal lobes of brain were injured; there were black clots of blood present before brain and membranes. (2) Similar clots of blood on the left side, (3) Brain matter at both the regions (left and right side) was coming from the fractured sides. Rest of the organs were normal." 12. On the external and internal examination of the dead body the doctor was of the opinion that the cause of death was the head injury (internal haemorrhage in the brain). According to him injury No. 4 was individually sufficient and the rest were collectively sufficient to cause the death of the deceased in the ordinary course of nature. 13. This doctor also examined on the same day P. W. Mst. Fatima and found the following four injuries on her person. "(l) An incised wound vertical in direction situated on the left frontal region of head 2' x 1/4' x 1/2' the frontal bone was visible. (2) Incised wound on the head outer posterior in direction above the right temporal region 4" x 1/4' x 1/2'. (3) Upper and lower lids of both eyes black and oedamatous. (4) Bruise in front of right chest 4' x 2' in size. 14. According to the doctor the injuries Nos. 3 and 4 were simple in nature and appeared to have been caused by a blunt weapon. He also said that injuries Nos. 1 and 2 were also simple and appeared to have been caused by a sharp weapon.
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15. The same doctor also examined on the same day injured P. W. Abdul Majid and found the following 7 injuries on his person: - "(1) Wound 3" x 1/4" x 1/4' situated on the right side of the head caused by blunt weapon vertical in direction. (2) One bruise behind the previous wound 3' x 1/2' in length. Vertical in direction. (3) Bruise starting from the middle left axilla running towards the nipple 5' x 1/2' in size. (4) Bruise on left deltoid region 3" x 1/2' transverse in direction. (5) Bruise on the lateral part of the elbow joint 2' x 1/4' in size. (6) Bruise on the lateral part of the left knee joint I' x 1/4' in size. (7) Bruise on the lateral part of the left hip joint 2'x 1/4' in size oblique in direction." 16. The doctor opined that all the above injuries were simple in nature and appeared to have been caused by means of a blunt weapon. He also further opined that in the case of deceased Paryal the weapon used was a blunt weapon in all the injuries on him but there was one sharp-edged weapon injury on the person of the deceased. 17. There is no reason not to believe the evidence of the doctor which conclusively establishes the death of the deceased as described by him and injuries on the person of injured P. Ws. Abdul Majid and Mst. Fatima. I, therefore, find that the deceased was killed as described in the medical evidence and P. Ws. Abdul Majid and Mst. Fatima sustained injuries as also stated above. 18.The prosecution has adduced the following pieces of evidence against the appellant to connect him with the present crime: - (1) Ocular evidence of P. Ws. Abdul Majid, Mst. Fatima, Mst. Zainab and Muhammad Bux of all these eye-witnesses P. W. Abdul Majid and Mit. Fatima were found by the Medical Officer to have sustained injuries as already mentioned, there--fore, their presence at the time of occurrence is beyond doubt. Furthermore the scene of offence is situated in their own house, therefore, on that account also their presence cannot be doubted at all at the time of the occurrence. (il) Corroborative evidence of the complainant Muhammad Uris. (iii) Extra judicial confessions of the appellant to Zamindars P. Ws. Mir Muhammad and Ali Nawaz. (iv) Securing of blood-stained clothes consisting of a shirt, loin-cloth and Angosha of the appellant from his person as per the Chemical Analyser's report Exh. 26. (v) The motive alleged by the prosecution that the appellant wanted to take away his wife P. W. Mst. Zainab from the house of her father the deceased, which was not being allowed by the deceased, therefore, he committed the alleged offence. (vi) Injuries on the person of the appellant. 19. All the aforesaid four eye-witnesses, namely, two injured of them, i.e., Abdul Majid and Mst. Fatima and the remaining non-injured i.e., P. Ws. Mst. Zainab, who is the wife of the appel--lant, and Muhammad Bux, fully support the prosecution case. They have deposed to the same facts regarding the incident as have been detailed in the narrative of the prosecution story above in the paragraphs in the beginning of the judgment and these facts need not be repeated. It would suffice to say that the appellant came to the house of the deceased in order to take his ailing wife P. W. Mst. Zainab back to his house and requested for it to his father-in-law who refused permission to him for taking back his wife. Thereupon, the appellant got infuriated and caused injuries to the deceased which resulted in his death subsequently and on the intervention of P. Ws. Abdul Majid, the son of the deceased, and P. W. Mst. Fatima, the widow of the deceased, he also caused these two witnesses injuries as it appears from the back side of the hatchet as well as with its sharp side. Cries were raised during the incident whereupon P. W. Muhammad Bug who was scaring birds in his land which was situated behind the house of the deceased reached at the scene of offence and according to him he actually saw the appellant causing injuries to P. W. Abdul Majid and further found the deceased already lying injured along with his wife P. W. Mst. Fatima who was also
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injured. The presence of all these four eye-witnesses at the scene of offence at the time of the occurrence cannot be doubted as the circumstances are quite clear that three of them i.e., P. Ws. Abdul Majid and Mst. Zainab are the occupants of house of the deceased where the occurrence took place and P. W. Muhammad Bux also lives within the same enclosure and is about 40 paces away at the time of the occurrence and was attracted to that place on the cries raised by the injured eye-witnesses. As already stated no doubt all these four eye---witnesses are related to the deceased which relationship has already been mentioned above and need not be repeated but the mere fact of their relationship with the deceased would not make their evidence incredible because the principle of appreciation o evidence of such witness has by now been well established by the Supreme Court which has laid down in its decision State v. Muhammad Hussain (1972 P Cr. L J 107) and Muhammad Hussain v. State (1969 SCMR 64) that mere relationship of witness with deceased and other P. Ws. Is not by itself enough for brushing aside his evidence. However, the matter does not rest here and the prosecution case does not consist only of the ocular evidence of these four eye-witnesses but there is other sufficient corroborative evidence also which will be presently referred to. Before dealing with it I will refer to the testimony of the complainant. 20. The complainant Muhammad Uris, to repeat, has sub---stantially stated that on the day of the incident he had gone to Hingorja and returned to his house which was adjoining the house of the deceased where the occurrence took place, at evening time and found the deceased Muhammad Paryal and P. Ws. Abdul Majid and Mst. Fatima lying injured. On his enquiries from P. W. Abdul Majid the latter disclosed to him all the…
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