1. SAJJAD ALI SHAH, J.-----Above-named appellant has filed this appeal against the judgment dated 29th October, 1977 passed by learned Sessions Judge, Badin, whereby he has been convicted for offence under section 302, P.P.C. And sentenced to death and for offence under section 307, P.P.C. Sentenced to R. I. For 7 years and a fine of Rs. 3,000 in default of the payment whereof he is sentenced to R. I. For one year more. Fine, if recovered, is directed to be paid to three injured persons and heirs of the deceased. There is a reference before us for confirmation of death sentence. Appellant has also filed appeal from Jail Bearing No. 289/1977 against his conviction under section 13-D of the Arms Ordinance and sentence of R. I. For one year. Since both appeals are interconnected and relate to the same incident and the evidence is also common, we propose to dispose of both appeals and the reference by this single judgment.
2. Shortly stated prosecution story is that complainant Ali Mohammad was very friendly with appellant Gul Mohammad and was living with him at Badin for the 6-7 years before the incident.
3. Since about a month before the incident they developed differences, in consequence of which complainant left appellant and came away to reside with his relatives in his village in Deb. Janki.
4. On 11th January 1976, at about 4-30 p. m. Complainant was sitting in his house with Bakhsho Chang, when appellant came there and asked the complainant to accompany him. Complainant refused on which appellant became very angry and went away extending threats that he would see him. At night complainant was sleeping in his house with other inmates, when at about 2.30 a. m.
5. Appellant Gul Muhammad came to his house and gave a call from the entrance, upon which Uris, brother of complainant, and Natho, Masat of complainant, went to the door followed by complainant himself, who took with him a lighted lantern. Appellant was identified in the light of lantern and in the meantime appellant challenged complainant and fired from his gun at the complainant, who became injured and fell down. Appellant ran away and in the mean while on cries and report of gun-fire, Ahmad son of Achar Junejo, Aloo and Khamiso, who are maternal uncle and Masat of complainant respectively, and Mst. Niamat Massi of complainant rushed there, who were apprised about the incident. On finding complainant injured, they took him to the raised platform and lit fire and were tending his injuries, when after a short while appellant appeared again armed with gun and after raising hakal fired a shot which hit Mst. Niamat, Uris and Ahmed Junejo. Mst. Niamat died at the spot due to gunshot injuries. Appellant made good his escape.
6. Meanwhile Nekmard Allahdino Junejo also came to the spot, who was informed about the incident.
7. Due to night and fear of appellant, complainant remained indoors and in the morning he took the injured persons in the bullock-cart and came to the Police Station, Badin, where first informa--tion report was filed by him at 8-45 a. m. On 12th January, 1976.
8. S. H. O. Allah Bux after recording F.I.R. Took down statement of Uris and as Ahmad was not able to give statement, he sent all three injured to the hospital. Then he came to the vardat and inspected the same. He found dead body of Mst. Niamat lying there with gunshot injuries. He saw blood at two places and ash of fire. He secured blood--stained earth and one empty cartridge from the spot, which he put into sealed parcels. After preparing inquest report, he sent tire dead body for post- mortem examination. He recorded statements of Khamiso, Achar Allahdino, Natho and Bakhsho.
9. On the same day he arrested appellant from Basin. On personal search of appellant, be secured Rs. 3 in cash, identity card and licence of gun in name of Akbar. Appellant while in custody led to the recovery of gun crime-weapon from the bed in his house which was seized and put into sealed parcel. It was licensed gun of one Akbar. Appellant also led to the recovery of two live cartridges from a cultivation near the vardat. On 13th January 1976, the Investigating Officer recorded statements of Akbar, licence-holder of the gun, and P. C. Ali Asghar Shah. On 15th January 1976, he recorded statement of Mst. Khatoon wife of Akbar from whom the appellant had taken the gun on the pretext that her husband wanted it. After completing other steps of investigation, the S. H. O.
10. Presented challan in the Court.
11. Prosecution has examined 10 witnesses in support of its case. P.W.1 Ali Mohammad complainant, P.
12. W, 2 Uris, P. W. 3 Ahmad, P. W. 4 Natho and P. W. 5 Ali Mohammad alias Aloo have be; n examined as eye-witnesses, out of them the first three were injured during the incident. The evidence of P. W. 6 Allahdino is of corroborative nature. P. W. 7 Mst. Khatoon is wife of Akbar from whom the appellant took the gun, which was licensed gun of her husband. P. W. 8 Jumoon is mashir. P. W. 9 Allah Bux S. H 4. Has investigated the case. He has produced report of ballistic expert Exh. 29 and of chemical examiner Exh. 30, which are both positive.
13. P.W. 10 Dr. Jamilur Rehman, Medical Officer, Badin on 12th January 1976, conducted post-mortem examination on the dead body of Mst. Niamat. On external examination, he found the following injuries :-
(1) Semi-circular wounds of entry 2 in number adjacent to each other on middle third right side of the back each measuring --" in diameter deep in the thoraxic cavity.
(2) 2 wounds of exit on the medial wall of the axilla each --' in diameter. These injuries were inter connected to Injury No. 1.
14. On internal examination he found the following: The thoraxic walls were torn during the course of the injuries. 9th and 10th ribs were fractured. The thoraxic cavity was full of blood. The pleura and the lungs were reptured. Blood vessels during the course of injuries were torn. The stomach was empty.
15. From both the external and internal examination he was of the opinion that the death of the deceased was due to shock and haemorrhage as a result of the gunshot injuries which were sufficient to cause instan--taneous death. The injury was ante-mortem. The time between injury and post-mortem was about 14 hours.
16. On the same day the doctor examined complainant Ali Mohammad and found the following injuries on his person :- (1)Semi-circular wound of entry on upper third front of the right arm -- x" in diameter muscle deep.
17. Charring was present.
18. (2)Lacerated wound in transverse direction the anterior part of the right axilla 2" x 1" muscle deep.
19. (3)Semi-circular wound of entry on right pectoral region -- in diameter deep to the thoraxic cavity.
20. Pheumo-thorax was present.
21. The injuries were of about 8 hours duration. The injuries appeared to have been caused from the discharge of fire-arm, from close range. Injury No. 3 was grievous and dangerous in nature to life if not properly attended.
22. Injured Uris was examined and the following injuries were found on his person :--- (1)Circular wound of entry on the lateral side middle of the right arm -- " in diameter fracture of the right humerous bone under--neath.
23. (2)Circular wound of the entry on upper third of the right leg latterly --" in diameter through and through the leg transversely.
24. (3)Semi-circular wound of exit on the medial of upper third of the right leg --" in diameter inter- connected to injury No. 2.
25. (4)Circular wound of entry on, front upper lower third of right thigh. -- in diameter muscle deep.
26. Charring was present.
27. (5)Circular wound of exit it on medial side opposite to injury No. 4 on the anterior third fright thigh - -' in diameter inter-connected to injury No. 4.
28. All the injuries were about 8 hours of age and appeared to have been caused from discharge of fire-arm-from close distance.
29. The doctor examined P. W. Ahmed and found the following injuries on him:-- (1)Circular wounds of the entry 2 in number adjacent to each other on the upper part of the right inguinal region each measuring 1/5' in diameter deep into the lower abdominal cavity.
30. (2)Circular wound of the entry on the lower third lateral side of the right leg 1/5" in diameter muscle deep.
31. All the injuries were of 8 hours duration. Injury No. 1 was grievous and dangerous for life. The injuries appeared to have been caused by some fire-arm.
32. Before the trial Court the defence of the appellant was denial of prosecution allegations. In his statement under section 342, Cr. P. C. Appellant has further stated as under:---- I have been falsely implicated in this case on account of the complainant party. Complainant Ali Muhammad used to live with me since last 14/15 years and I got him the service is the P.A.F. Base, where he used to work in the office and Bungalow of Abdul Waheed, one officer in P.A.F., where Akbar was also work--ing as Chowkidar, The complainant Ali Mohammad developed intimacy with the daughter of the officer and he got her photo snapped with him and he was dismissed from service on that account. After the dismissal of service he started residing with me at Badin. If I had the intention to kill the complainant that could be done even at Badin. My brother is also married with the sister of the complainant and on that account the complainant party and Junejos were annoyed with me. I am also serving in P.A.F. Base Badin. My brother has also got a licensed gun. I am the victim of enmity as the complainant was under impression that his service have been terminated on account of me. The complainant party had also matrimonial enmity with us on account of the wife of my brother. I am also victim of suspicion. I had no enmity with Mst. Niamat.
33. We have carefully examined the record in the light of arguments advanced by learned counsel appearing for both sides. In the evidence produced by the prosecution there is ocular testimony of five eye--witnesses. Out of, them P. W. 1 Ali Muhammad complainant, P. W. 2 Uris, P.W. 3 Ahmad are injured eye-witnesses, hence their presence at the spot at the time of incident cannot be disputed.
34. Admittedly all the eye-witnesses are related inter se except P. W. 3 Ahmad, who is Junejo by caste, but he resides at a distance of 40-50 paces from the house of com--plainant and he was attracted to the spot on hearing report of Ist gun--shot and saw the second part of incident in which he was himself injured. P. W. I complainant Ali Muhammad and P. W. 2 Uris at, brothers, P. W. 3 Natho is Masat of complainant. P. W. 5 Alit Muhammad alias Aloo is maternal uncle of complainant.
35. This witness also came to the spot on the report of sun-fire and saw the, second part of incident in which appellant came back again and fired from his an second shot, which hit Mst. Niamat, Ahmad and Uris. This witness as well as P. W. Ahmad were informed by P. Ws. Uris and Natho that appellant came to the entrance of the house, gave call and fired at complainant from his gun and that appellant was identified in the light of lantern Jo be Gul Muhammad. At the time when appellant came again and fired second shot, he was identified by the witnesses in the light of fire, which was set aglow. All these witnesses except P. W. Ahmad reside in the same enclosure, hence they are inmates of the house and since the incident took place in the house, they are the most natural witnesses. We have appraised the evidence of these witnesses very care--fully. P. W. 4 Natho has testified that be has seen both parts of inci--dent but in his statement under section 164, Cr. P. C.
36. He had stated that after hearing the report of first gunshot, he went and saw complainant lying injured and Gul Muhammad running away with gun. In view of this admission, we do not consider him as eye-witness to the first part of incident. He has seen the second part of incident and so far the first part is concerned, we use his evidence as of corroborative nature. Except what is stated above there are no material contradictions or dis--crepancies in the evidence of the eye- witnesses, who have given a very consistent version of the whole incident.
37. It is admitted position that incident took place at night time but there is sufficient evidence to convince that appellant has been positively identified. Appellant is previously known to the eye- witnesses and it has come on the record that Sanwan brother of appellant is married to the sister of complainant. Secondly that on the preceding evening appellant had come to take back complainant and on his refusal to go with him. Appellant went away annoyed with threat that be would see him. Thirdly that appellant at the time of Inci--dent came to the entrance of the house of complainant and gave a call for him on which complainant and P. W. Uris went out and complainant had a lighted lantern, appellant was identified and be fired at the complainant.
38. Immediately thereafter at the time of second gunshot, fire was ablaze near the raised platform where complainant's injuries were being attended by other eye-witnesses and appellant again gave a hakal, where after he fired second shot, so he was identified in the light of fire. It is also admitted position that Investigating Officer did not secure the lantern from the vardat, but the fact cannot be lost sight of that complainant has stated specifically in F.I.R. That appellant was identified in the light of lantern, hence it was incumbent upon the Investigating Officer to have asked for lantern. No such question has been put to Investigating Officer during his cross- examination before the trial Court as to why the lantern was not secured. In mashirnama of vardat mention is made by the Investigating Officer about presence of burnt wood and ashes at the place of occurrence, which indicates that fire was alight at the time of incident. It is a case of crime committed by one person single-handedly and in view of the evidence of eye-witnesses including injured persons, there is no room for presuming mistaken identity.
39. The evidence of eye-witnesses is further fully supported by P. W. 6 Allahdino who is nekmard. He came to the spot after the incident and was apprised of the occurrence and was also given the name of appellant. He has acted as mashir for a part of investigation. He is not related to the complainant party and there is nothing in his cross-examination to suggest that he has given false evidence. The only suggestion made to him is that he was not invited at the marriage of Sanwan with the sister of the complainant. W e do not find any reason to doubt his testimony. The evidence of eye-witnesses is further fully supported by other circumstances that blood had been found at two places, at the entrance and near the platform at the vardat. Two crime empties have been found, one near the entrance and the other near the hedge on the western side, which is consistent with the prosecution version. Medical evidence fully corroborates the ocular account of occurrence. Nature, distance and time of injuries given in medical evidence fits in completely with ocular testimony.
40. There is delay in filing the report but it has been convincingly explained at the earliest possible opportunity. It is mentioned in F I. R. That due to night and fear of appellant, complainant did not venture to go out immediately. P. W. 6 Allahdino has also admitted that he had advised complainant not to go out at night because the appellant might be in Jungle hence the complainant took the injured in the bullock cart and went to Police Station in the morning. In the circumstances this explanation appears to be justifiable.
41. Appellant was arrested on the same day and he led to the recovery of gun from his house from the bed. Gun which is crime weapon was immediately sealed and the report of ballistic expert is that two crime empties sent by police have been fired from this gun. Recovery of gun is fully. Supported by P.W. 8 Jumoo mashir. He is an independent witness and is not related to the complainant party.
42. He has admitted to be cousin of P. W. Allahdino nekmard, who is again an independent witness and is in no way related to the complainant. We put full reliance on the evidence of P. W. Jumoo as there is nothing in his evidence to suggest otherwise. This gun belongs to Akbar, in whose name it is licensed. P. W. 7 Mst. Khatoon has testified that appellant, who was on visiting terms with her husband, came to house and asked her to give the gun as the same was wanted by her husband hence she gave it away along with licence. She had further stated that when her husband came to know about it, he beat her and she left the house and went to live with her parents. There is nothing in her evidence to suggest that she was falsely deposing against the appellant. The appellant also led to the recovery of two live cartridges from sugar-cane cultivation near the vardat where appellant stumbled and the cartridges fell down. The licence of gun in the name of Akbar was also recovered from the possession of appellant.
43. Finally we find that no witness had any animus or enmity to falsely implicate the appellant, neither the appellant has alleged any such enmity. The only reason he has given against the complainant is that he got the complainant a job in P. A. F. Base, Badin in the house of one officer by name Abdul Waheed and complainant developed friendship with the daughter of that officer, which fact was discovered and complai--nant was driven out. Appellant also produced a photograph of the complainant with some girl and alleged that complainant was snapped with the daughter of that officer. Complainant has denied these sugges--tions outright. Even if for the sake of argument we assume that this may be true, then also it does not appeal to common sense that Abdul Waheed would send some persons to kill the complainant and the complainant would spare the real culprit and falsely implicate his benefactor, who got him the job and allowed him to reside with him for such a long time. Appellant in vain hope of wriggling out of it has even suggested to the complainant that Akbar was angry with the complainant on account of his relations with the daughter of the officer, which only shows that appellant did not have any definite reason to put forward for his own implication in the case, lastly we would like to observe that we had seen the photograph minutely and find that it is a fake photograph and com--plainant in fact was never snapped together with that girl in the photo--graph. In fact what has happened is that a separate photograph of that girl had come in the hands of some persons and subsequently it was added to the photograph of complainant and a copy has been made of the two photographs together to give false appearance that both have been snapped together. We have seen this copy with magnifying glass and it unequivocally appears that both photos are taken at different times and in different surroundings and even quality of paper and lighting arrangements are different. It therefore follows that it is a fake photo--graph and does not help appellant in advancing his so- called and false' plea. We are, therefore, firmly of the view there is overwhelming evidence of incriminating nature to connect appellant with the commission of crime and he has been rightly convicted and sentenced. We find no reason whatsoever to interfere. Appeal is, therefore dismissed and the reference is accepted. Appeal against conviction and sentence under the Arms Ordinance is also dismissed for reason stated above.