Penal Code (XLV of 1860)--
---S.302--Accused killed deceased with a hatchet on latter's refusal to give him provisions on credit--First information report showing that incident occurred in quick succession and no time elapsed for passion of accused to cool down--Story appearing to have been concocted by prosecution to saddle accused with offence under S.302, Penal Code, entailing capital punishment--Material contradictions existing in case which were fatal to prosecution case--No previous enmity existing between parties and they were living in same village- Prosecution silent as to what transpired between accused and deceased at time of actual incident--Single blow given by accused to deceased which proved fatal--Case against accused not amounting to culpable homicide amounting to murder and offence falling under S.304, Part II, Penal Code--Conviction altered accordingly and sentence reduced in circumstances.
HADI BUX VS THE STATE1987 M L D 1565[Karachi]Before Abdul Qadeer Chaudhry, JHADI BUX--AppellantVersusTHE STATE--RespondentCriminal Appeal No.228 of 1986, decided on 26/01/1987.
JUDGMENT
The appellant has been convicted by the learned Sessions Judge Hyderabad by his judgment dated 15-11-1986 under section 302, PPC and sentenced to imprisonment for life.
2. The prosecution case in brief is that P.W. Sher Muhammad Chandio lodged the first information report wherein he stated that in the morning his son Muhammad Hanif was sitting in the cabin for selling the provisions and he was also sitting there. In the meantime Hadi Bux, the present appellant duly armed with hatchet came there and started demanding bread and cigarettes on credit. His son Muhammad Hanif refused to give him the same on credit whereupon Hadi Bux became displeased and went away while abusing. He went and sat in the hotel of Shah Baig which is nearby, alongwith hatchet. His son Muhammad Hanif accompanied by Sher Muhammad Leghari went at the hotel of Shah Baig for taking tea where appellant Hadi Bux asked his son while abusing, that he had not given him the provisions on credit and on saying so he gave sharp-sided hatchet blow to his on Muhammad Hanif on the left side of his head within his sight and presence of P.Ws. Haider Bux, Sher Muhammad and Allah Bux Legari. The deceased fell down. The accused ,vas apprehended alongwith the hatchet. After registration of the case usual investigation was conducted and the accused was sent up to face his trial under section 302, PPC.
3. At the trial the prosecution examined Sher Muhammad Chandio, Allah Bux, Hyder Bux, Sher Muhammad Leghari, Muhammad Umar, Ghulam Hussain, Ali Bux and Dr. Anisul Hassan.
The accused did not plead guilty to the charge. In his statement under section 342, Cr.P.C.he denied the prosecution allegations. He did not lead any defence.
4. On the assessment of the evidence, the learned trial Judge came to the conclusion that the case against the accused stood established beyond all reasonable doubt under section 302, PPC.
The death of the deceased is not denied. It has been proved through the evidence of Sher Muhammad Chandio complainant, P.Ws. Allah Bux, Haider Bux and Sher Muhammad Leghari Dr. Anisul Hassan performed the autopsy on the dead body of th_p deceased and found the following injury on the person of the decease`:
An incised wound 10 c. m. x 2 c. m. x brain deep over left tempero-zygomatic region with visibility of the brain matter.
The doctor gave his opinion that the death of the deceased was due to haemorrhage and shock and injury to the brain substance and that the only injury on the person of the deceased was individually sufficient to cause his death in ordinary course of nature. The defence has also not denied the death of the deceased.
5. In order to bring home the charge against the appellant, the prosecution relied upon the ocular testimony of P. Ws., Sher Muhammad Chandio, Allah Bux, Haider Bux and Sher Muhammad Leghari and the apprehension of the accused alongwith the blood-stained hatchet at the Wardat. The hatchet was sent to the Chemical Analyser and the report of the expert is in positive. The complainant in his statement has corroborated the allegation against the accused which he made in his first information report. The other witnesses have also supported the prosecution case against the appellant. They have stated that the appellant was present alongwith the hatchet in the hotel of P.W. Haider Bux when the deceased came to the hotel. The appellant gave hatchet blow on the head of the deceased as a result of which the deceased fell down and became unconscious. All the witnesses are consistent in their statements that the appellant was already present in the hotel. The deceased came to the hotel and in their presence the appellant had attacked the deceased with hatchet. The defence has not been able to challenge the veracity of the statements of these witnesses.
6. Learned counsel for the appellant has also not disputed that the appellant had caused the hatchet blow co the deceased as a result of which he died. He has accepted the prosecution case so far as it implicates the present appellant. However, his contention is that the prosecution has not been able to show that the case squarely falls under section 302, PPC. He has referred to certain circumstances in support of his contention that at the most the case falls under section 304, (II) PPC. I see force in the contention. The material on record substantiates the contention that the prosecution has not been able to show that the case falls under section 302, PPC. The complainant in his first information report has stated that in the morning the appellant came to his cabin where the deceased was sitting. On the refusal of the deceased to give `him provisions on credit, the deceased was abused and accused went and sat in the hotel alongwith the hatchet. Thereafter, the deceased accompanied by P.W. Sher Muhammad Leghari went to the hotel where the deceased was given hatchet blow. The perusal of the first information shows that this incident had occurred in the quick succession and time had not elapsed so as to cool down the passion of the appellant. The appellant was agitated as he was refused to be given articles on credit; but at the trial the complainant has stated that the first A incident had occurred in the morning and at about 2-30 or 3-00 p.m. the deceased was deputed by him to take grass from the shop of Sher Muhammad Leghari. It appears that this theory has been set up as to saddle the appellant with an offence under section 302, PPC which entail capital punishment. The story built up at the trial that the deceased came to the shop of Sher Muhammad Leghari and demanded grass appears to be an afterthought. The complainant has omitted this fact in the first information report and Sher Muhammad Leghari has not said this fact in his statements under sections 161 and 164, Cr.P.C. Another important omission in the statement of Sher Muhammad is that accused attempted to give another blow to the deceased. This improvement has been made in order to bring home the charge against the appellant under section 302, PPC. These are not minor omissions but material contradictions and fatal to prosecution case. P.W. Haider Bux hotel keeper denied the presence of complainant in his previous statement. He has further stated that deceased was putting water in his glass when he was abused and attacked by the appellant but he has not said so in his statement at the trial. Allah Bux in his 164 statement has stated that Muhammad Hanif came all alone. If we accept the statement of this witness recorded under section 164, Cr.P.C. then the presence of Sher Muhammad Leghari becomes doubtful. There was no previous enmity between the appellant and the deceased. They were residing in the same village. The accused had come to the cabin of the deceased duly armed-with hatchet and according to the complainant the accused abused him. It means that the grievance if any was caused to the deceased. In the circumstances of the case the deceased was an aggrieved person as he had been insulted by the appellant. If the accused was annoyed on account of refusal of the deceased to give articles on credit then the accused could attack the deceased at the very moment but he did not do so. He came to the hotel where the deceased followed him. The prosecution is silent as to what transpired between the accused and the deceased at the time of actual incident. The statement of the complainant cannot be accepted that the first incident had occurred in the morning; because it cannot be believed that the accused was waiting for the arrival of the deceased upto 2-30 or 3-00 p. m. There was a single blow on the person ef the deceased which proved fatal. In such circumstances it is not a case of culpable homicide amounting to murder but the offence falls under section 304 (lI). I, therefore, while dismissing the appeal alter the conviction under section 304 (II) and sentence the appellant to suffer R.I. for eight years. The appellant is also entitled to the benefit of section 382-B, Cr.P. C. With this modification in conviction and sentence the appeal is dismissed.
The appeal was disposed of by short order dated 18-1-1987 and the above are the reasons for the same.
M.Y:H./H-38/KAppeal party allowed.
The appellant has been convicted by the learned Sessions Judge Hyderabad by his judgment dated 15-11-1986 under section 302, PPC and sentenced to imprisonment for life.
2. The prosecution case in brief is that P.W. Sher Muhammad Chandio lodged the first information report wherein he stated that in the morning his son Muhammad Hanif was sitting in the cabin for selling the provisions and he was also sitting there. In the meantime Hadi Bux, the present appellant duly armed with hatchet came there and started demanding bread and cigarettes on credit. His son Muhammad Hanif refused to give him the same on credit whereupon Hadi Bux became displeased and went away while abusing. He went and sat in the hotel of Shah Baig which is nearby, alongwith hatchet. His son Muhammad Hanif accompanied by Sher Muhammad Leghari went at the hotel of Shah Baig for taking tea where appellant Hadi Bux asked his son while abusing, that he had not given him the provisions on credit and on saying so he gave sharp-sided hatchet blow to his on Muhammad Hanif on the left side of his head within his sight and presence of P.Ws. Haider Bux, Sher Muhammad and Allah Bux Legari. The deceased fell down. The accused ,vas apprehended alongwith the hatchet. After registration of the case usual investigation was conducted and the accused was sent up to face his trial under section 302, PPC.
3. At the trial the prosecution examined Sher Muhammad Chandio, Allah Bux, Hyder Bux, Sher Muhammad Leghari, Muhammad Umar, Ghulam Hussain, Ali Bux and Dr. Anisul Hassan.
The accused did not plead guilty to the charge. In his statement under section 342, Cr.P.C.he denied the prosecution allegations. He did not lead any defence.
4. On the assessment of the evidence, the learned trial Judge came to the conclusion that the case against the accused stood established beyond all reasonable doubt under section 302, PPC.
The death of the deceased is not denied. It has been proved through the evidence of Sher Muhammad Chandio complainant, P.Ws. Allah Bux, Haider Bux and Sher Muhammad Leghari Dr. Anisul Hassan performed the autopsy on the dead body of th_p deceased and found the following injury on the person of the decease`:
An incised wound 10 c. m. x 2 c. m. x brain deep over left tempero-zygomatic region with visibility of the brain matter.
The doctor gave his opinion that the death of the deceased was due to haemorrhage and shock and injury to the brain substance and that the only injury on the person of the deceased was individually sufficient to cause his death in ordinary course of nature. The defence has also not denied the death of the deceased.
5. In order to bring home the charge against the appellant, the prosecution relied upon the ocular testimony of P. Ws., Sher Muhammad Chandio, Allah Bux, Haider Bux and Sher Muhammad Leghari and the apprehension of the accused alongwith the blood-stained hatchet at the Wardat. The hatchet was sent to the Chemical Analyser and the report of the expert is in positive. The complainant in his statement has corroborated the allegation against the accused which he made in his first information report. The other witnesses have also supported the prosecution case against the appellant. They have stated that the appellant was present alongwith the hatchet in the hotel of P.W. Haider Bux when the deceased came to the hotel. The appellant gave hatchet blow on the head of the deceased as a result of which the deceased fell down and became unconscious. All the witnesses are consistent in their statements that the appellant was already present in the hotel. The deceased came to the hotel and in their presence the appellant had attacked the deceased with hatchet. The defence has not been able to challenge the veracity of the statements of these witnesses.
6. Learned counsel for the appellant has also not disputed that the appellant had caused the hatchet blow co the deceased as a result of which he died. He has accepted the prosecution case so far as it implicates the present appellant. However, his contention is that the prosecution has not been able to show that the case squarely falls under section 302, PPC. He has referred to certain circumstances in support of his contention that at the most the case falls under section 304, (II) PPC. I see force in the contention. The material on record substantiates the contention that the prosecution has not been able to show that the case falls under section 302, PPC. The complainant in his first information report has stated that in the morning the appellant came to his cabin where the deceased was sitting. On the refusal of the deceased to give `him provisions on credit, the deceased was abused and accused went and sat in the hotel alongwith the hatchet. Thereafter, the deceased accompanied by P.W. Sher Muhammad Leghari went to the hotel where the deceased was given hatchet blow. The perusal of the first information shows that this incident had occurred in the quick succession and time had not elapsed so as to cool down the passion of the appellant. The appellant was agitated as he was refused to be given articles on credit; but at the trial the complainant has stated that the first A incident had occurred in the morning and at about 2-30 or 3-00 p.m. the deceased was deputed by him to take grass from the shop of Sher Muhammad Leghari. It appears that this theory has been set up as to saddle the appellant with an offence under section 302, PPC which entail capital punishment. The story built up at the trial that the deceased came to the shop of Sher Muhammad Leghari and demanded grass appears to be an afterthought. The complainant has omitted this fact in the first information report and Sher Muhammad Leghari has not said this fact in his statements under sections 161 and 164, Cr.P.C. Another important omission in the statement of Sher Muhammad is that accused attempted to give another blow to the deceased. This improvement has been made in order to bring home the charge against the appellant under section 302, PPC. These are not minor omissions but material contradictions and fatal to prosecution case. P.W. Haider Bux hotel keeper denied the presence of complainant in his previous statement. He has further stated that deceased was putting water in his glass when he was abused and attacked by the appellant but he has not said so in his statement at the trial. Allah Bux in his 164 statement has stated that Muhammad Hanif came all alone. If we accept the statement of this witness recorded under section 164, Cr.P.C. then the presence of Sher Muhammad Leghari becomes doubtful. There was no previous enmity between the appellant and the deceased. They were residing in the same village. The accused had come to the cabin of the deceased duly armed-with hatchet and according to the complainant the accused abused him. It means that the grievance if any was caused to the deceased. In the circumstances of the case the deceased was an aggrieved person as he had been insulted by the appellant. If the accused was annoyed on account of refusal of the deceased to give articles on credit then the accused could attack the deceased at the very moment but he did not do so. He came to the hotel where the deceased followed him. The prosecution is silent as to what transpired between the accused and the deceased at the time of actual incident. The statement of the complainant cannot be accepted that the first incident had occurred in the morning; because it cannot be believed that the accused was waiting for the arrival of the deceased upto 2-30 or 3-00 p. m. There was a single blow on the person ef the deceased which proved fatal. In such circumstances it is not a case of culpable homicide amounting to murder but the offence falls under section 304 (lI). I, therefore, while dismissing the appeal alter the conviction under section 304 (II) and sentence the appellant to suffer R.I. for eight years. The appellant is also entitled to the benefit of section 382-B, Cr.P. C. With this modification in conviction and sentence the appeal is dismissed.
The appeal was disposed of by short order dated 18-1-1987 and the above are the reasons for the same.
M.Y:H./H-38/KAppeal party allowed.
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