1980 P Cr (PLP)

This appeal under section 410, Cr. P. C. is directed against Judgment of Mr. Abdul Jabber Bachani, Vth Additional, Sessions Judge, Karachi, dated 29‑1‑1973, whereby he convicted the appellant under section 304, Part 1I, P. P. C. for culpable homicide not amounting to murder of his uncle Abdul Rehman and sentenced him to 10 years' R. I. and a fine of Rs. 2,000 in default of payment of fine and further one year R. I.

2. The facts briefly are that deceased Abdul Rehman and Abdul Ghafoor and Ali Hussain were brothers, they used to reside in common Quarter No. 280/2 Liaquatabad, Karachi. It was again divided into two portions, one portion was occupied by Ali Hussain and Abdul Ghafoor and the other by Abdul Rehman. Admittedly their womenfolk constantly used to quarrel. On 14th May, 1968, it is alleged that wife of Abdul Ghafoor accused Abdul Rehman that he was carrying on illicit relations with his own daughter Mst. Tahera which annoyed Abdul Rehman who informed his brother Abdul Ghafoor to tell his wife not to spread scandal. On this both brothers picked up a quarrel, exchanged harsh words but they were however separated by neighbours, Rashid Ali, Azizuddin, Moosa Khan, Bandoo Khan and Rehmat Bibi. On the same evening again quarrel started between two br qthere when they were separated by neighbours and Abdul Rehman returned to his Pan Shop which was adjacent to shop of Abdul Ghafoor. Appellant Mahboob Alam son of Abdul Ghafoor, nephew of deceased however came from behind with ice crushing (danda) and gave blow on head of Abdul Rehman who was sitting in shop. This solitary injury resulted in his death in Civil Hospital, Karachi on 15‑5‑1968.

3. It may be stated when Abdul Rehman received injury he was taken to Civil Hospital, Karachi, from there to Jinnah Hospital. He was unconscious therefore, hic statement could not be recorded. However statement of his brother Ali Hussain was recorded by Police .Officer which was treated as a F. I. R., and incorporated in statement of 154, Cr. P. C. Investigating Officer then went to the vardat, secured blood‑stained earth, prepared Mashirnama Exh. 20 in presence of mashirs Muhammad Moosa and Abdul Saboor. He sealed the blood‑stained earth and it was sent to Chemical Analyser on 22‑5‑1968, he recorded statement of some witnesses and handed over papers to Mr: Sirajuddin for further investigation. In the meantime, however, Abdul Rehman died in hospital and a death certificate was obtained from Medical Officer showing the cause of death but body was then given to Ali Hussain by the Police Officer without post‑mortem examination. The next day appellant was arrested. He interrogated the appellant who led the police and mashirs to his father's shop from where after making voluntary statement produced the ice Frushing danda which had no blood. Statements of P. Ws. Ali Hussain, Azizuddin, Rehmat Bibi and Rashid Ali and Moosa and Bandoo Khan were recorded under section 164, Cr. P. C. The appellant was tried and sentenced as above.

4. The appellant was examined in Committal Court where he denied that he had inflicted any blow with ice crushing danda but he explained that when Jaghra started he saw that Ali Hussain felled down his father Abdul Ghafoor and Abdul Rehman had a chchura in his hand with which he wanted to kill his father. Seeing this, he had ice crushing danda in his hand, he attacked Abdul Rehman in order to save his rather. He did not know on which part of the body danda fell. He admits rest of the story of the prosecution with regard to constant quarrel between womenfolk of the three brothers. In statement before the trial Court he first denied all the allegations; for the instance presence of P. Ws: Rashid Ali, Azizuddin, Moose and Bandoo Khan or that wife of Abdul Ghafoor had accused Abdul Rahman having illicit relation with his own daughter or he voluntarily producing the . weapon of offence, but at the same tune he stated that when Abdul Rehman wanted to attack his father Abdul Ghafoor with knife and his father fell down on the ground and Abdul Rehman was going to attack him "I pushed Abdul Rehman with a danda who fell down on a stone which was flower vase then people came there sod separated Abdul Rehman and his father. Abdul Rehman was taken to hospital. I have given statement in the lower Court."

5. The admitted position, therefore, that emerges is that appellant admits his presence at the time and place of incident and his participation in the offence. Learned counsel for the appellant, however, laid great stress on the point and in fact train argument he advanced was that there is no sufficient evidence or, record that Abdul Rehman died as a consequence of injury caused to him by the appellant, because according to him contrary to general practice no post‑mortem examination was performed if so it cannot be said that Abdul Rehman died due to injury caused to him by the appellant. He however failed to cite any Judgment in support of his argument. I am afraid this argument has hardly any basis and would not in any way advance the case of appellant on this point because the moment Abdul Rehman received injury he was taken to hospital. The Medical Officer incharge informed Liaquatabad Police about the injured state of deceased and Mr. Tajmmal Hussain prosecution witness who was present rushed to the hospital and attempted to record statement of Abdul Rehman but could not do so because of the advice of Medical Officer. Now Exh. 30 is a letter by A. S. I. Police Station, Liaquatabad, Karachi dated 15‑5‑1968, whereby a request was made to the Medical Officer for information with regard to nature of injury caused to Abdul Rehman son of Iddo Mian and whether he is in a position to make statement. He was informed that the patient is unable to make statement at this time and the injured is unconscious due to serious brain injury. Thereafter investigation was taken up by another Police Officer Aga Sharif. When he learnt about death of Abdul Rehman he went to the hospital and inspected the dead body and prepared the inquest report Exhs. 25 and 26 in presence of mashirs Moazam Shah and 1kramullah. The body was identified by All Hussain another brother of deceased. He also obtained death certificate from the Medical Officer showing the cause of death and delivered the dead body to Ali Hussain without post‑mortem examination. When this Police Officer P. W. 9 was examined on question of post mortem examination he stated that as he got a certificate from the Medical Officer with regard to cause of death he was satisfied with the cause of death, therefore, he did not find it .necessary to request for post‑mortem. It may perhaps be lapse on part of Police Officer from the general practice for not getting post‑mortem examination but this by itself does not nullify the overwhelming medical evidence on record with regard to cause of death of the deceased. Therefore I see no force in this argu ment of the learned counsel for the appellant. No doubt some prosecution witnesses attempted to help the appellant that as they deviate from the previous statement by adding that deceased also received some injuries from the cabin wall during the fight, but the learned trial Court very rightly disregarded this sudden change in the statement of prosecution witnesses because otherwise there is sufficient evidence and admission of the appellant himself is sufficient proof that it was the appellant and nobody else who gave fatal blow to the deceased, who died in consequence of that injury.

6. Only question, therefore, for consideration is with regard to the extent of criminal liability of the appellant in the present circumstances and the quantum of sentence of imprisonment. Although counsel for the appellant did not advance any argument on this point, I have given my anxious thought to this aspect of the case and do agree with the conclusion of the learned Sessions Judge that there was no premeditation or pre‑planning on tae part of appellant to commit the crime and that it was a result of sudden impulse when appellant saw his father and uncle quarrelling with each other. No doubt there is nothing on the record to show that the appellant was so provoked or insulted that he lost his self‑control but at the same time this fact cannot be ignored that in normal circumstances a nephew do not take drastic; step to kill his own real uncle on a petty quarrel. This fact is further strengthened by the use of weapon which was produced before the trial Court and looked like a small bat and was not heavy, therefore, the very use of this weapon and only one blow negative intention oaf causing death but all he wanted it appears way to cause hurt. It was a single blow by the danda the consequence of which the appellant reasonably foresee. The appellant is a young man of 20 years and according to his own statement at time of incident he was First Year college student. He may leave felt sick of continuous quarrel between his mother and wife of led uncle, being rent at .lie. time of second quarrel it was not very unnatural for him to take side of hers father He, therefore picked up a danda which was hand and gave a blow which, unfortunately proved to be fatal. Seeing the matter with this angle culpability of appellant is sufficiently reduced and he was rightly convicted under section 304, Part 11 instead of 302, P. P. C. by the trial Court. However considering the circumstances in which this offence is committed I am of the opinion that 10 years' R. I. awarded to the appellant is rather harsh. In case of Bahar Khan and 2 others v. The State (1972 P Cr. L J 411), appellant was convicted under section 302/34, P. P. C. and sentenced to transportation for life for murder of one Muhammad Rahim but, however, on evidence it was held that during quarrel appellant gave one blow although deceased was empty handed and none was to‑intervene that circumstance did not prove intention to kill. Sentence. under section 302, P. P. C. w set aside and he was sentenced to 5 years' R. I. under section 304, Part II P. P. C.

7. In view of the evidence on record and circumstance in which this offence has been committed and for the reasons given above I am of the opinion that this is a fit case where sentence of the appellant instead of 10 years R. I. be reduced to 3 years' R. I. only. I also do not see any reason for imposition of the fine.

8. The result is subject to above modification this appeal stands dismissed. The appellant who is on bail is directed to be taken into custody to serve out his sentence. Appeal dismissed.