1. SAJJAD ALI SHAH, J.---Appellant Mukhtiar has filed appeal against the judgment dated 14th November 1976 passed by First Additional Sessions Judge. Larkana, whereby he has been convicted under sec--tion 302, P. P. C. And sentenced to life imprisonment. By the same judg-- ment the learned trial Court has acquitted co-accused Nazar Mohammad of the charge under section 302/34, P.P.C. Against which State has filed acquittal appeal. There is also Revision application for enhancement of sentence of appellant Mukhtiar for life imprisonment to capital punish--ment. We propose to dispose of the above-mentioned two appals and Revision application by this single judgment as they arise from the same decision and the facts are common.
2. Shortly stated prosecution story is that deceased Fateh Ali, a police constable, was resident of Nazar village Taluka Larkana. On account of his service in police, he did not care much about appellant and his brother Nazar Mohammad, who were big Zamindars, hence they were annoyed with him on this score. On the day of incident, i.e. 3rd May 1975, at about 9.30 a. m. Deceased Fateh Ali, his brother complainant Nazar Hussain and their Kamdar Allah Warayo were on their way to the field, when in the uncultivated land near Dhadhar Wah in Deh Nazar Thirid, they were encountered by appellant and his brother Nazar Mohammad acquitted accused. Appellant Mukhtiar was armed with a single barrel gun while Nazar Mohammad had a revolver. At the insti--gation of Nazar Mohammad not to spare, appellant Mukhtiar fired a gunshot at Fateh Ali, who became injured and fell down. Appellant fired still another shot, which hit Fateh Ali on his navel and thighs. Meanwhile Nazar Mohammed kept witnesses at bay by aiming his revolver at them. During the attack on Fateh Ali, witnesses raised cries, which and reports of gunfire attracted to the spot Abdullah Khakhrani. Appellant and his brother ran away with their weapons. Witnesses went near and found Fateh Ali having expired due to gunshot injuries. Leaving others near the dead body, complainant went to the agricultural office where he informed his relative Noor Mohammad Khan Abro. Who advised him to lodge the report. Complainant came to the Police Station Taluka Larkana where he filed F.I.R. Exh. 7 at 11 a. m. On the same day. The distance between spot and Police Station is three miles.
3. P. W. 8 Ali Hassan A.S.I. Incharge Police Station after recording report of the complainant came to the vardat, which he inspected in presence of mashirs. He saw the dead body, secured blood- stained earth and put it into a sealed parcel. He also secured two crime-empties from the spot which he made into a sealed parcel. He prepared inquest report and despatched the dead body to the hospital for post-mortem examina--tion. He prepared mashirnama of vardar and recorded police statements A Abdullah and Allah Warayo. P. W. 10 Mohammad Ismail S.H.O. Then took over investigation from him. S.H.O. Examined P. W. Noor Mohammad and on the same day i.e. 5th April 1975, he arrested appellant Mukhtiar, who while in custody produced his licensed gun along with licence and the gun was made into a sealed parcel. On the next day he produced appellant Mukhtiar recorded his judicial S.H. O. Also had statements under section 164, Cr. P. C. Of witnesses Abdullah and Allah Warayo recorded on that day. On 6th May. 1975, he arrested co-accused Nazar Mohammad, who produced his licensed revolver, which was secured. After completing other steps of investigation, he challaned appellant and his brother Nazar Mohammad on 19th May 1975.
4. Prosecution examined in all 11 witnesses in support of its case. P.W. 1 Mohammad Nawaz tapedar has prepared sketch of vardat Exh.
4. P. W. 2 Ghulam Abbas constable is Corpse-bearer. P. W. 3, Nazar Hussain complainant and P. W. 4 Allah Warayo have been examined as eye-witnesses of the occurrence. P. W. 5 Abdullah has deposed that on reports of gun-fire and cries he was attracted to the spot, where he found Fateh Ali lying dead, while Mukhtiar had a gun and Nazar Mohammad was armed with a revolver. He also saw P. Ws. Nazar Hussain and Allah Warayo, who appraised him of the incident. P. W. 6 Noor Mohammad has deposed that complainant came to his office and informed him about the incident and gave him names of assailants. P. W. 7 Maula Bux is mashir, who has attested mashirnama of vardat Exh. 28, inquest report Exh. 29, recovery of gun from appellant Exh. 30 and recovery of revolver from Nazar Mohammad Exh.
31. P. W. 8 is Ali Hassan A.S.I.
5. Who has partly investigated the case. P. W. 9 Dr. Mohammad Amin has performed post-mortem examination. P. W. 10 Mohammad Ismail S.H.O. Has investigated the case. P.W. 11 is Mr. Ghulam Dastagir, Mukhtlarkar and F.C.M., who recorded judicial confession of appellant Mukhtiar Report of Ballistic Expert Exh. 37 is to the effect that the two crime empties have been fired from the gun of appellant.
6. On 3rd May 1975 Dr. Mohammad Amin examined dead body of Fateh Ali son of Kaiser Khan Abro, in Civil Hospital, Larkana. He started post-mortem at 1.45 p. m. And finished it at 3 p. m. On external examination he found the following injuries:---- (1)One lacerated punctured wound --" x --" on medial side of upper 1/3rd of left thigh.
7. (2)One lacerated punctured wound -- " x --" on medial side of lower half of the left thigh.
8. (3)One lacerated punctured wound -- " x --" on front of the left knee.
9. (4)One lacerated punctured wound 1" x --" on the medial side of right leg.
10. (5)One lacerated punctured wound -- " x --" on medial side of the right leg.
11. (6)One lacerated punctured wound --" x --"on metal side of lower 1/3rd of right thigh.
12. (7)One lacerated punctured wound --" x --" on posterio medial side of middle 3rd of right thigh.
13. (8)Three lacerated punctured wounds each --" x --" on medial side of upper -- rd of right thigh.
14. (9)One lacerated punctured wound --" x --" on left supra public region of the abdomen a wound - - "x --" on left supra pubic (10)Nine lacerated punctured wounds each --" x --" on left scapula region of the back of chest.
15. (11)One blue staining 2" x -- " on right lateral side of the middle of the chest.
16. On internal examination, he found the following damage :- (1)Left side of the chest cavity was congested and filled with blood. Right side of chest cavity was also congested and filled ribs were fractured on both sides. Plourage were ruptured. Right and left lungs were lacerated and congested. The stomach was empty.
17. From the external as well as internal examination of the dead body the doctor was of the opinion that the cause of death was due to shock and haemorrhage resulting from the above injuries. All the injuries were ante-mortem and appeared to have been caused by discharge of fire-arm except injury No. 11 which appeared to have been caused by some hard blunt substance. The probable time between death and injuries was few minutes and the time between death and post- mortem was about 6 hours.
18. Appellant Mukhtiar in his statement under section 342, Cr. P. C. Before the trial Court has denied prosecution allegation including recovery of his licensed gun. He has retracted from his judicial confession and stated that it was given under undue influence and coer--cion of police.
19. The defence of appellant and acquitted co-accused in their statements under section 342, Cr. P. C.
20. Before the trial Court is total denial of all allegations levelled by the prosecution. Appellant has denied having produced his licensed gun. He had also retracted from judicial confession and stated that the same was given under undue influence and coercion of police. His womenfolk were called at the Police Station and he was pressurised to make confession. He bad asserted that prosecution witnesses were interested and partisan. Appellant had adopted further statement of his brother co-accused. Acquitted accused Nazar Mohammad, denying the allegations as his brother did, produced true copy of plaint Exh. 43, which was filed by his wife, Inayat Khatoon, his sister Mst. Shabzadi, Mohammad Ishaq and others, wherein his wife has been shown as daughter of Sher Mohammad. He also produced copy of the plaint Exh. 44 filed by Ghulam Sarwar against the complainant and deceased. He has also produced true copy of revenue record Exh. 45 to show that his father had no sister. He further produced true copy of F. I. R. And challan Exhs. 46 and 47 to show that P. Ws. Allah Warayo and Abdullah were mashirs in a case for offence under section 13-D of the Arms Ordinance.
21. Now in the evidence produced by the prosecution there is ocular testimony of two eye-witnesses namely P. W. 3 Nazar Hussain and P. W 4. Allah Warayo. Admittedly P. W. Nazar Hussain is interested witness as, he is brother of deceased. He claims to have seen the incident as he was in the company of deceased and they were on their way to see the lands of deceased in Deh Nazar Thariri and Deb Shahnawaz which were at a distance of 1-- miles from their village. The other eye- witness P. W. 4 Allah Warayo is not related to the deceased or the complainant and is Khakhrani by caste, while the complainant is Abro, but this witness was kamdar of the deceased at the time of the incident. P. W. 4 Allah Warayo had come to the village of the complainant and on learning that deceased had arrived there, met him and had accom--panied him and the complainant to see the lands of the deceased. There is nothing unnatural about the fact that deceased should see his agricultural lands in presence of his kanrdar. The evidence of these two eye--witnesses is fully corroborated by the evidence of P. W. 5 Abdullah, who came to the spot and saw the dead body of Fateh Ali with gunshot injuries and appellant armed with a gun and acquitted accused Nazar Mohammad armed with a revolver. Both eye-witnesses were present there and they apprised him of the incident. This witness is also not related to the complainant and is Khakhrani by caste. This witness had admitted that his sister's daughter is married to Anwar, brother of the appellant.
22. Complainant in F. I. R. Has shown this witness as eye-witness of the occurrence, but in the Court this witness testified that he did not see the actual firing but when he reached at the spot appellant and acquitted accused were still present with their weapons. Complainant in his deposition has stated that this witness came to the spot after firing when the accused persons were still present there and he was informed about the details of the incident. Before the trial Court the complainant was confronted with F. I. R. And he admitted having stated in F. I. R. That P. W. Abdullah came to the spot and saw the incident. No further clarification was sought from him and in these circumstances we feel inclined to think that complainant had inadvertently mentioned in F. I. R. That P. W. Abdullah had seen the incident because P. W. Abdullah arrived at the spot while the accused persons were still present with their weapons. P. W. Abdullah has further convin--cingly explained that his village was at a distance of one mile from the vardat and at the time of incident he was going from his village to Larkana in order to purchase salt and chillies He has admitted that there was a shop of Ghulam Mohammad Khakhrani in his village but on that date salt and chillies were not available in that shop, hence he had to go to Larkana to purchase the same. He was confronted with his state- -ment before the lower Court wherein he had stated that be saw the accused persons at the spot from their backs, as such could not identify them. In view of this contradiction, as a matter of abundant caution, we discard the identification part of his evidence and rely upon him as corroborating witness. The ocular testimony is further supported by P.W. 6 Noor Muhammad who is brother of widow of the deceased. At the time of the incident be was Extra Assistant Director, Agriculture in Larkana. Complainant on his way to the police station informed him about the incident and gave him names of the accused persons. It was alleged against this witness that he was masat of Faqir Mohammad who was convicted for murder of Nazar Ali Abro in which case acquitted accused Nazar Mohammad had appeared as mashie. This witness denied that Faqir Mohammad was his masat He has fully supported the prosecution case and we find no reason to disbelieve this witness. Apart from this prosecution case finds formidable support from the following circum--stances (1)F.I.R. Is recorded with due promptitude. Incident took plat, at 9-30 a. m. And report was registered at 11 a. m. When the distance between the spot and the Police Station is three miles. Complainant went to the office of Agriculture, in Larkana and informed P. W. Noor Muhammad about the incident before coming to the Police Station.
23. (2)Eye-witness Allah Warayo and P. W. 5 Abdullah were named in F. I. R. And were present at the spot when the Investigating Officer went there after registering the report and recorded their statements, (3)Two crime-empties left at the spot by assailants are specifically mentioned in F. I. R, which were recovered by the Investigating officer.
24. (4)Time of incident and nature and locale of injuries to the deceased mentioned in F. I. R. Are fully supported by medical evidence.
25. Appellant was arrested on 4-5-1975 and he produced his licensed gun along with its licence, which was seized by Police. The gun which smelled of fresh firing was put into a sealed parcel. On 6-5- 1975, acquitted accused Nazir Muhammad was arrested, who produced his licensed revolver along with its licence. Ballistic Expert has given a positive finding that two crime empties recovered from the vardat were fired from the gun of the appellant, P. W. 7 Maula Bux mashir has been examined to prove the recovery of incriminating articles. He had denied the relationship with the deceased. An attempt was made to show his enmity with acquitted accused Nazar Muhammad and he was cross-examined at length in that context but to no avail. There is nothing in the evidence of this witness to convince us that he should not be believed on the question of recoveries, Appellant was arrested on 4.5-1975 from his house at 2 p. m. And he had made judicial confession on 5.5-1975, which is incorporated in the record as Exh.
39. The narrative part of his confession is reproduced as under:-- Fateh Ali was my caste-fellow. He was police constable at Damrah Police Station. He was 'karo' with my step-mother Mst. Rabat Khatoon, who bad died about three months back. 1 had seen with my own eyes Fateh Ali and Rabat Khatoon in compromising position in my house. At that time I had no weapon, therefore, Fateh Ali escaped away and I could not do any thing. I also did not say anything to my stepmother. I had narrated such fact to my mother and relatives and Fateh Ali was also asked (through others) to compensate 'karap'. Three days back in the morning, I had gone to look after my land in Deh Nazar Thariri, as ploughing work was gong on in the land. I was armed with licensed single barrel gun and four live cartridges. About 8/9 O'clock in the morning I was returning towards village after looking after the land. When I reached near the abandoned Dhadhro Jarho Wah, I saw Fateh Ali was also going towards land along with his kamdar Allah Warayo Khakhrani.
26. On seeing, Fateh Alt said to me that he is our `karo' hence I should not come in front of him with a gun. Allah Warayo Khakhrani was behind Fateh Ali. Allah Warayo had a revolver in his neck, and Fateh was armed with a 'panda'. I got 'Ghairat' (sense of honour) due to taunting of Fateh Ali, and therefore, I fired a gunshot from my single barrel gun at Fateh Ali, whereupon he raised his hands, fire hit him at the side of his left arm and he fell down. I fired again at him, after he had fallen down which hit him at his thigh, and due to these fires, he expired, and Allah Warayo ran away. Thereafter I returned back towards village, along with gun, and due to fear of police I ran away. Yesterday I returned to my village, where police arrested me along with my gun.
27. The appellant has retracted from his confession on the ground that it was made under duress of police and his women folk were called at Police Station. This confession as a whole, is in conflict with prosecution story. It admits presence of only one witness Kamdar Allah Warayo at the spot. It also exculpates co-accused Nazar Muhammad and in fact denies his participation in the assault.
28. The motive as given in the confession is that deceased was 'Kayo' with Mst. Bahat Khatoon, step-- mother of the appellant, who had died about three months before the incident. It is stated that appellant had seen with his own eyes deceased Fateh Ali in compromising position with Mst. Rabat Khatoon in his house, but since appellant had no weapon at that time be could not do any thing.
29. Subsequently appellant informed his other relatives and demanded compensation of 'karap'. On this story of motive no question has been put to any of the prosecution witnesses hence there is nothing on the record to show that this assertion is true. It is also surprising that no harm was done to Mst. Rabat Khatoon who continued to live in the house of appellant till her natural death before the incident. It is further stated that on the day of the incident, deceased Fateh Ali taunted appellant who was armed with his gun as to why he was coming with his gun in front of a person who has been declared ---karo'. On this taunt, the appellant claims to have been provoked and committed murder. This story also does not appeal to the common sense. It is improbable that deceased Fateh Ali, if he had really been declared Karo, would be so foolhardy to Court death by taunting the appellant when he was armed with a gun. We, therefore hold that the confession is not the whole truth.
30. Acquitted accused Nazar Muhammad has produced some documents relating so litigation in order to prove enmity. In this connection questions have been put to P. W. 7 Maula Bux mashir. He has admitted in his cross-examination that he knew Wadero Sher Muhammad Khan Abro, who is dead. Mst. Inayat Khatoon daughter of Sher Muhammad Khan Abro is wife of acquitted accused Nazar Muhammad. Mst. Shehzadi sister of Nazar Muhammad was married to Sher Muhammad Khan Abro. This mashir further has admitted in the cross examination that Qadir Dad Abro is his uncle and is also his father-in-law. Acquitted accused Nazar Muhammad had produced a copy of the plaint which is Exh. No. 43 on the record. This suit was filed in the year 1973 in the Court of Civil Judge, Larkana. It was a suit for declaration and injunction, in which prayer was made for setting aside the sale of suit-land. There are 15 plaintiffs including Mst. Inayat Khatoon, daughter of Sher Muhammad and Mst. Shehzadi wife of Sher Muhammad. The defendants are four including (nadir Dad. The mashir has further admitted the pendency of this civil suit. Qadir Dad Abro, who is a party to this suit, is uncle and father-in-law of this mashir. It is dispute of civil nature and on this account we do not feel that mashir Maula Bux would be motivated to falsely implicate the accused persons.
31. The evidence of this mashir only relates to the recoveries. Even if, on this account, as a matter of abundant caution, we exclude from considera--tion the evidence of this mashir, then also in the absence of the other mashirs having not been examined, the investigating officer can be believed against whom there is no allegation of interestedness or partisan--ship, The gun of appellant which is a crime weapon about which the Ballistic Expert has reported that the crime empties have teen fired from it, is admittedly a licensed gun which was produced by him before the police along with its licence. This fact is admitted by the appellant in his judicial confession that he had produced the crime weapon along with its licence before the police. The defence has also produced a copy of the decree in suit for possession which is Exh. No. 44 on the record. This suit was filed in the year 1965. Ghulam Sarwar son of Allahdad Abro is plaintiff', while Nazar Hussain complainant in this case, and Fateh Ali, deceased are defendants. Then the complainant was in the box, this question was put to him and he has admitted this litigation with Ghulam Sarwar but the record does not show as to what relationship Ghulam Sarwar has with the accused persons. The defence has also produced the copy of F. I. R. Which is Exh.
46. This F. I. R. Is in respect of offence under section 13-D of the Arms Ordinance. In this F.I.R. The complain--ant is S. H. O. Sad the accused is Jan Muhammad son of Musafir Brohi. The record does not show as to how this is relevant.
32. After careful analysis of the evidence in the light of defence pleas, and the criticism made by the learned counsel for the appellant we have come to the conclusion that there is sufficient evidence of incriminating nature produced by the prosecution against the appellant. We believe eye- witnesses Nazar Hussain complainant and Allah Warayo. Corrobora--tion is available in the evidence of Abdullah P. W.5 and Noor Muhammad P. W. 6, circumstantial evidence of recovery of crime weapon from appellant with positive Ballistic report, medical evidence and admissions made by the appellant in his judicial confession with regard to have committed the said murder and production of crime weapon along with its licence. In the judicial confession, it is admitted that two shots were fired at the deceased. The first was fired near his shoulder and the second at thighs while the deceased had fallen down. Medical evidence also proves that two shots were fired at the deceased and the locale of injuries is also same. Two crime empties have been recovered from the spot. There is one other factor which requires consideration. The motive alleged by the prosecution that the deceased being a police constable did not care much about the appellant and his co- accused who are big Zamindars and that resentment motivated the appellant and his brother to commit murder, does not appear to be sufficient and realistic as the deceased was in police since a long time and both parties lived in the same village. If deceased was throwing his weight around, it could be possible in the be-inning when he was appointed as a constable. Secondly it does not appeal to common-sense that such allegation, as is made, would provide such a great resentment to kill a person. On the other hand, the motive alleged in the judicial confession is also no believable as already discussed above, hence motive in this case is not proved. It is a settled proposition of law that when there is sufficient evidence in the case to connect accused with the commission of crime but motive is not proved or is weak then, capital punishment is not called for Reliance is placed on the decision in Bahadur v The State (PLD 1959 Kar. 578).
33. For the foregoing reason appeal is dismissed and the conviction of the appellant under section 302, P. P. C. And his sentence of life imprisonment is upheld.
34. So far the appeal filed by the State against the acquittal of Nazar Muhammad is concerned, we have examined the record and find that cogent reasons are given for such decision. As stated above against the acquitted accused, there is no circumstantial or corroborative evidence available on the record. The case of the prosecution does not say that he used his revolver during the incident hence recovery of his revolver is meaningless.
35. Acquittal of Nazar Muhammad on the grounds mentioned to r the judgment does not call for any interference by us.
36. There is also revision application for enhancement of appellant's sentence from imprisonment of life to death. In view of our decision given above in the appeal in which we have maintained the order of conviction and sentence of life imprisonment, the revision application stands dismissed.