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Criminal Appeal No. 228 of 1962, decided on 18th January 1966.
‑Minor discrepancies in statements of prosecution witnesses‑Do not demolish whole prosecution case Penal Code (XLV of 1860), Ss. 302 & 304.
Safdar All v. The State P L D 1953 F C 93 and Ghulam Safdar v. The Crown P L D 1956 F C 126 ref.
S. 304, Part II‑Death caused by one blow in sudden quarrel and without deliberate intention to cause death‑Deceased paternal uncle of assailant‑Accused, held, acted in cruel manner‑Sentence of 10 years' R. 1. maintained.
Farida v. Emperor A I R 1933 Lah. 851 distinguished.
Ch. Khalil‑ur‑Rehman for Appellant.
Masud Ahmad Khan for A: G. for the State.
Dates of hearing: 2nd, 3rd, 8th and 9th December 1965.
By his order dated the 9th of May 1961, the learned ex officio Additional Sessions Judge, Montgomery, convicted the appellant under section 304, Part II, P. P. C. for causing the death of Ali Muhammad alias Mahand, deceased, and sentenced him to ten years rigorous imprisonment. By the same order, Bashir, co‑accused of the appellant, was found guilty under section 323, P. P. C. and was sentenced to six months' rigorous imprisonment. The appellant Muhammad Husain, has come in appeal against his conviction and sentence.
2. On the morning of 23rd June 1960, the children of the house of the deceased and that of Ibrahim, father of the appellant had a quarrel. Mst. Rehmat Bibi, widow of the deceased and Mst. Jannat, mother of the appellant, started a row in front of the cattle‑shed of the deceased. In the meanwhile, the deceased arrived in a gadda laden with fodder and prunings. He reproached his wife, Mst. Rehmat Bibi and his sister‑in‑law, Mst. Jannat Bibi, wife of Ibrahim, and called them to order, which instead of quietening them led to a flare up. The appellant armed with a dang, his brothers, Bashir, with a danda and Nazir empty handed appeared on the scene. Muhammad Husain, appellant, gave the deceased a dang blow on his head and dropped him un conscious. Bashir, accused, struck Mst. Rehmat Bibi on her head and left arm. Nazir, accused, then assaulted Mst. Rashidan, Halima, and Karima, daughters of Mst. Rehmat Bibi, with fist blows. The uproar attracted Subhan‑ud‑Din, Ilam Din and Ibrahim P. Ws. to the scene. Last of all Wali Muhammad, a blacksmith, came to the spot. The patient was transported to the hospital at Arifwala at 10 miles, at about 6/7 p. m. He remained unconscious and died at 11‑30 p. m. the same night. The police recorded the statement Exh. P. D. of Subhan‑ud‑Din, on which formal F. I. R. was recorded and usual investigation ensued. Mst. Rehmat, widow of the deceased, was also medically examined in the hospital. The accused were arrested on the 25th of June 1960, who produced the dang Exh. P. 1 allegedly used by the appellant at the time of the occurrence and sota Exh. P. 2 was produced by Bashir, his brother. On the 25th of June 1960, Mst. Rashida was also medically examined.
3. The motive for the occurrence, of course old one, is that in the month of Katak, prior to the incident, Muhammad Husain, appellant, criminally approached Mst. Karima P. W. and the village panchayat ordered the expulsion of the appellant from the village. The appellant accordingly left the village, however, he returned a few days earlier than he was ordered to remain in exile. On the complaint of the deceased to the panchayat, father of the appellant, namely, Ibrahim refused to obey any more the decision of the panchayat and it appears that the old grievance was re‑agitated. It is recorded in the judgment that some days after his return to the village, the hand of Mst. Karima was asked for the appellant but the proposal was rejected. This fact, however, is contradicted by the evidence because the marriage of Mst. Karima had already taken place with another Muhammad Husain, brother of Subhan‑ud‑Din.
4. The immediate cause of the occurrence is the squabble of the women‑folk. May be, the earlier incident was a reason for magnifying the smaller incident.
5. On the 23rd of June 1960, Dr. Abdul Hamid found the following injuries on the deceased person:
(1) A contusion mark 2 " x 1" on the left side of the head 1-1/8" x 2" from the middle line and parallel to it. There was an abrasion " x 1/3" in the contusion at its interior part.
(2) A swelling 6" x 2 " on right temporal region of the head, obliquely.
(3) A swelling 3" x 2 " on left side of the head over the temporpariental region, oblique.
(4) A swelling 1 " x " on right lid upper part. All the injuries were caused with blunt weapon.
Dr. Muhammad Ikram Qureshi, performed the autopsy on the dead body and found all the above‑stated injuries except injury No. 4, that is, swelling on the right lid upper part was not mentioned.
The injuries on the person of Mst. Rehmat Bibi were:
(1) A lacerated wound 1 " x " x 1/3" on the right side of head 31" above the ear, obliquely. Wound was blood‑stained.
(2) A contusion 1 " x 1/3" on back and middle of left fore‑arm, transvers in direction.
Both the injuries were simple, caused by blunt weapon.
On the 25th of June 1960, Mst. Rashidan was examined for her following injury:
(1) Contusion mark with swelling 1 " x " on the back of left 4/5" metacarpul bone, obliquely. There was a swelling 1 " x 1" round the contusion.
The injury was simple of three to four days duration, and according to the doctor, could be caused by a fist. The injuries of Mst. Rehmat Bibi were opined to have been caused with a sota. The doctor categorically denied the suggestion that the injuries could be caused by friendly hand. The injury on the person of Mst. Rashidan was opined by the doctor that it could be the result of a fall or friendly hand.
6. The prosecution produced Muhammad Ilyas and Karim Bakhsh P. Ws. 6 and 7, whose testimony is to the effect that Muhammad Husain, appellant, left the village according to the decision of the panchayat but he had returned a few days before the murder of Ali Muhammad and that the deceased had vainly sought the re‑expulsion of the appellant from the village. The prosecution version is supported by Ilam Din (P. W. 12), Ibrahim (P. W. 13), Subhan Din, Mst. Rashidan, Mst. Karima, daughters of the deceased, and Mst. Rehmat Bibi. The other witnesses are formal. The eye‑witnesses above‑stated supported the prosecution version in its detail. According to Mst. Rehmat Bibi, she was having a row with Mst. Jannat Bibi, mother of the appellant. Her daughters, Mst. Karima, Halima and Rashidan were also with her. Her husband arrived in the meanwhile who reproached her and Mst. Jannat for the squabble. In the meanwhile the appellant along with his brothers ‑ appeared on the scene and delivered one dang blow to the deceased. Mst. Karima does not appear in the F. I. R. (Exh. P. A). to have witnessed the occurrence. She was of course mentioned as one of the injured persons. The statement of Ibrahim contradicts the presence of Mst. Karima on the spot and the statement of Mst. Karima shows that Ibrahim, Subhan Din and Ilam Din came to the spot when the deceased was being lifted from the spot.
7. The learned counsel strenuously argued this point that the statements of these three persons should not be relied upon because of the discrepancies in their statements.
8. The appellant in his statement made admission of two important facts: (1) his expulsion from the village, but gave a different version for exile, however, it is not important to discuss it at any length and (2) that the deceased was given a push by him as a result of which he fell against the pinjri of the gadda which caused him injuries on his head region.
9. Mst. Rehmat Bibi (P. W. 9) stated that her daughters, Mst. Halima, Rashidan, and Karima, came to the spot after Mahand was attacked and he had fallen down, therefore, the evidence of Mst. Karima and Rashidan were not accepted by the learned trial Court and it was right in doing so because their presence is ousted by the statement of Mst. Rehmat Bibi.
10. The point for determination is whether the injuries to the deceased were caused by a blow given by the appellant, or it was the result of a fall against the pinarz of the gadda, consequent to the push of the appellant given to the deceased. The learned counsel drew my attention to some discrepancies in the statements of the P. Ws., the commulative effect of which is that either the daughters of the deceased, Karima, etc. were not present at the time when the deceased dropped down, or, Ilam Din, Subhan Din and Ibrahim were not present. I have affirmed the view taken by the trial Court, therefore, the presence of the daughters of the deceased is doubtful. The discrepancies in the statements of P. Ws. do occur in every criminal case and if they are not serious enough to the extent of demolishing the whole structure of the prosecution case, are liable to be ignored. Respectfully following the dictum or the Federal Court in the case of Safdar All v. The State (P L D 1953 F C 93) the appellate Court should be slow to upset the conclusion reached at by the trial Court who both saw and heard the witnesses in the case. It was held in the case of Ghulam Safdar v. The Crown (P L D 1956 F C 126):
"The fate of a criminal case does not depend upon the existence of minor discrepancies."
The presence of Mst. Rehmat Bibi on the spot is an established fact, whose statement is corroborated by three eye‑witnesses. Muhammad Ibrahim in no manner is interested witness, his house is close to the spot, therefore, he cannot be a chance witness. The fatal blow attributed by the P. Ws. to the appellant leaves me in no doubt. The smashing injury to the skull of the deceased in the ordinary course of nature does not appear to be the result of a mere push against the pinjri of the gadda. In arming this view of the trial Court, I am quite convinced of the truthfulness of Mst. Rehmat Bibi who could easily attribute the other injuries of the deceased to the other two brothers of the appellant but she did not do so. This shows that her statement is not embolished.
11. The learned counsel argued that in any case the sentence is not in proportion to the offence committed by the appellant. Reliance is placed on A I R 1933 Lah. 851, wherein it was held:
"Death caused by one blow in sudden quarrel without deliberate intention, sentence of five years' R. I. was excessive."
While respectfully agreeing with the dictum, it is submitted that the condition precedent is that the assailant should not have acted in a cruel manner. The deceased was the paternal uncle of the appellant and the very assault on him by the appellant by no stretch of imagination can be termed as not cruel. The conduct of the accused was obviously against the positive rule of morality. The position may have been otherwise had the assailant been the uncle and the victim his nephew. It is not in evidence that the deceased spoke even a word to the appellant. He only called to order his own wife and mother of the appellant and he was right to do so being an elderly man of the family but that should not have given an exception to the appellant to assault him.
12. In these circumstances, I am of the view that the appellant did act in a cruel manner by giving a smashing blow to his aged uncle without direct provocation having been given by the deceased to him. I see no ground for taking a lenient view of reducing the sentence. The appeal on these grounds fails and is, accordingly, dismissed.
K. B. A.
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