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Petitioner: MEENHAL VS Respondent: THE STATEHonorable Justice A. K. SHAIKHMuhammad Ibrahim Memon,Ali Raza
1969 P Cr
1969 P Cr. L J 1241
[Karachi]
Before Abdul Kadir Shaikh and G. Safdar Shah, JJ
MEENHAL‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. J‑318 and Confirmation Case No. 43 of 1968, decided on 14th May 1969.
Penal Code (XLV of 1860), S. 302‑Murder‑Ocular evidence of eye‑witnesses sufficiently supported by circumstantial evidence as to recovery of blood‑stained loin cloth from person of accused and blood‑stained crime weapon at his instance‑No enmity between accused and witnesses suggested‑Conviction upheld.
(b) Penal Code (XLV of 1860), S. 302‑Murder‑Sentence‑ No previous motive or enmity suggested between accused and deceased‑Deceased administering abuses to accused in presence of latter's wife and mother‑Accused losing temper and self‑control and dealing fatal blow to deceased‑Extenuating circumstance for awarding lesser sentence‑Sentence of death converted to that of transportation for life.
Muhammad Ibrahim Memon for Petitioner.
Ali Raza for the State.
Date of hearing : 14th May 1969.
JUDGMENT
A. K. SHAIKH, J.‑The appellant Meenhal son of Hashim, aged 25 years was tried by the Additional Sessions Judge, Thar parkar at Sanghar, for the murder of Sajan son of Abdul Raoof aged 45 years, on the 4th of September 1967 at about noon time on the land of Jan Muhammad Narejo in taluka and District Sanghar. He was found guilty under section 302, P. P. C. and sentenced to death by the judgment dated the 17th July 1968. This case has come up before us on reference made by the learned Additional Sessions Judge for confirmation of the death sentence and also by way of appeal filed by the convict.
The prosecution case, briefly narrated, is that on the day of occurrence the deceased and the appellant were working in the field situated oil the bank of Nara canal, between the Inspection Path and the canal, at a distance of one mile from their village. Alinawaz and Allan P. Ws., who are brothers inter se, were working in the adjacent field at a distance of about 360 feet, while Hoth Khan P. W. a Beldar of Irrigation Department, was on his duty on the canal bank looking after the flow of water. At about 12 noon these three persons heard cries coming from the direction where the deceased and the appellant were working and they saw the latter striking the deceased with a spade. They went running to the spot but before they could apprehend the assailant, he ran away taking the spade with himself. Sajan injured was found lying in the cotton cultivation, and on inquiry from him lie told these witnesses that he had abused the appellant because of his failure to cut the grass for feeding his bullocks as he had directed him to do and thereupon the appellant got annoyed, and while he started cutting the grass for the bullock himself, the appellant struck him with the spade. Alinawaz P. W. went to the village and informed his maternal uncle Abdullah and they brought a bullock cart from the village and carried the injured on it to the police out post Tando Mitha Khan at a distance of about one mile where Alinawaz lodged the Report Exh. 11 which was recorded in the Station‑diary at 4‑15 p.m. by A. S. I. Shah Baig. This report was subsequently registered as F. I. R. in the case. The injured Sajan was sent for medical aid to the Hospital but before it could be administered to him, he died on the way. The offence was therefore converted from section 307, P. P. C. to section 302, P. P. C. and the police investigations then took a more serious turn and these were finalized by S. H. O. Ghulam Mustafa.
At the Civil Hospital, Sanghar the body of the deceased was examined by Dr. Bhagchand who also conducted the post‑mortem examination. The deceased had the external injuries of the following description :‑
(1) Incised wound 3" x 1 " x scalp deep on the posterior part of scalp over occipito parietal region in the middle.
(2) Incised wound 2" x 2" x bone deep on left parietal region.
(3) Incised wound 1 " x 1"x bone deep at the root of left ear from above and behind.
(4) Incised wound 4" x 2" x bone deep on lower part of front of left thigh.
(5) Incised wound 1 " x 1" x skin deep on dorsal aspects of root of index and middle finger of left hand.
(6) Incised wound 1" x 1/3" x muscle deep on palmer aspect of terminal phalynx of right hand."
The internal damage was as follows :‑
"Big haemotoma seen under the scalp over left paristo occipital region. Left parietal bone was broken into four pieces. Left temporal bone was broken. Left Occipital bone was broken. Big extra dural and sub‑dural haemotoma was seen over left occipito parietal region."
Each of the first three injuries in the opinion of the doctor, was individually sufficient to cause the death of the deceased, in the ordinary course of nature and these were caused by a sharp cutting weapon, such as a hatchet or by .a sharp side of a spade. The doctor was, however, of the opinion that the deceased must have gone unconscious due to the shock on receiving the injuries and he could not have spoken after the receipt of these injuries.
The appellant was arrested on the third day of the crime,. the 7th September 1967. On arrest the loin cloth worn by him was found to be blood‑stained. It was therefore seized under Mashirnama Exh. 15 in the presence of mashirs Mithan, Shahand Mian Jalal Din. He volunteered to point out the weapon of offence, namely, the spade and led the police party to his house and the same was recovered under Mashirnama Exh. 17 in the presence of the same mashirs. Both these articles were sent to the Chemical Analyser and the report Exh. 24, subsequ ently received, proved that both the spade and the loincloth were stained with human blood.
At the trial the three eye‑witnesses Ali Nawaz, Allan and Hoth Khan narrated the incident in the details given above. The first two are brothers inter se and they are related to the deceased in that the deceased was married to the daughter of their maternal uncle. The version of both these brothers consistently was that the appellant had been working as a sub‑hari under the deceased for about a year before the incident, and on that fateful day they were near about the scene of offence when they heard the cries of the deceased. They therefore went towards that direction and simultaneously Hoth Khan also reached there but the assailant of the deceased who was no other than the present appellant ran away carrying with him the spade. Sajan, whom they found having fallen down, according to them as well in senses to tell them on inquiry that the accused had not cut the grass for his bullock and a quarrel had taken place between them and it was on that account that the appellant had attacked him while he himself was cutting the grass for his bullocks. The version of Hoth Khan who is admittedly an independent person, and against whom no enmity was suggested, in fact none was suggested even against these two brothers, was equally consistent with that of Alinawaz and Allan at the trial. Besides we find that the presence of Hoth Khan was natural because he was working :is a beldar on the Nara Canal and the place of his duty was near about the scene of occurrence. He claimed to have been only at a distance of about 50 paces from the place where the deceased was done to death and was able to see the actual attack being carried out by the appellant. We have no doubt in our mind that the prosecution witnesses examined in this case have nothing by way of grudge to falsely depose against the appellant on the serious charge of murder and their evidence has been rightly believed and held to be sufficient to uphold the conviction in this case. Moreover, we find that the ocular evidence of these three witnesses is sufficiently separated by the circum stantial evidence as to the recovery of the blood‑stained loincloth from the person of the appellant and his pointing out the weapon of offence from his own house which was also stained with human blood. As against this weight of the prosecution evidence all that came from the mouth of the appellant in defence was a total denial of the prosecution case as being false. No enmity whatever was suggested against three eye‑witnesses who were the natural witnesses at the scene. We have therefore no doubt that the prosecution have proved beyond any reasonable doubt the appellant's guilt for the murder of deceased Sajan.
The question of sentence however, needs consideration. In this connection it may be stated that all the three eye‑witnesses in the cross‑examination admitted that the mother and the sister of the appellant were present at the time of the occurrence. Hoth Khan went further to admit that the deceased had abused the appellant. If the motive suggested by the prosecution is to be believed that the appellant had refused to carry out the instructions of deceased Sajan, under whom he was working, then it automatically follows that the deceased must have given him some abuses for disobeying his orders. It is said that the deceased then himself picked up the sickle to cut the grass and did the same job he had directed the appellant to do. It is natural in the human conduct that the deceased must have been greatly annoyed by the conduct of the appellant in not obeying his order. The conclusion therefore is irresistible that he must have given him certain dirty abuses sufficient enough to provoke the appellant to give the type of injuries found on the person of the deceased, three of these were very serious in the region of his head; the first three injuries were individually sufficient in the ordinary course of nature to cause death. There was no previous motive or enmity suggested between the parties which could give rise to the loss of self‑control or temper to the extent manifested by the appellant's attack on the deceased. The fact that these abuses were administered in the presence of his wife and mother the indication are that these were directed against the two womenfolk, it was but natural for a villager like the B appellant that he must have lost his tamper and self‑control and this is sufficiently an extenuating circumstance to instead award him the lesser sentence than the death sentence. We would therefore convert the death sentence into the lesser one admissible to him under the law, namely, transportation for life. While, therefore, converting the death sentence to transportation for life we find no force in this appeal. It is accordingly dismissed.
Sentence reduced.