' MUHAMMAD ZAHOORUL HAQ, J.-This is a confirmation case under section 376, Cr. P. C. For confirmation of death sentence awarded by II-Additional Sessions Judge, Sukkur to accused Dhani Bukhsh under section 302, P. P. C. And a fine of Rs, 5,000 or in default to undergo R.
1. For six months, fine if paid Rs, 2,500 was to be given to the heirs of the deceased. The appellant Dhani Bukhsh has also sent an appeal in respect of the same sentence, which has been registered as jail appeal 294/78. Along with this jail appeal we have also heard the connected Jail appeal 316/78 against the judgment of the same Judge dated 19th October, 1978, whereby, the appellant was convicted under section I3-E of the Arms Ordinance and sentenced to suffer R. I. For one year.
The appeals have been heard together as they were in respect of the same incident and the recovery of pistol was involved in the same confirmation case.
' The relevant facts leading to these cases are that on 13th March, 1976 at 8.30 a.m. P. W. 1 Mohammad Yousuf lodged a F. I. R. Exh. 7 at Bagerji Police Station, district Sukkur, which was recorded by P. W. 7 Wahid Buksh Head Constable.
' The F. I. R. Is to the following effect : "Complaint is that deceased Abdul Rahman son of Ghous Bux was my son-in-law who was private servant on the shop of Abdul Shakoor Muhajir in Sukkur. He used to go daily in the morning to Sukkur and used to return to the house in the evening. Today in the morning while I was sitting in my house, when there was commotion towards the house of deceased Abdul Rahman, I came out.
On this commotion Muhammad Siddiq son of Mohd. Bux and my brother Muhammad Unis also came out of the houses. We saw that accused Dhani Bukhsh and deceased Abdul Rehman were abusing each other. In the meanwhile within our seeing accused Dhani Bukhsh took out an unlicensed revolver from the folds of his trousers and made a direct fire on Abdul Rahman which hit him and he fell down. We all three challenged the accused who ran towards the graveyard of Zahir Pir. We followed him in order to catch him but accused Dhani Bukhsh went on firing in the air and after crossing the bund ran away towards forest. We then all three returned back and saw that Abdul Rahman was lying on the ground in the courtyard of his house and, had expired. We saw that he had a pistol shot injury on the left arm near the shoulder and a small blood had flown. Then I left the above witnesses over the dead body of deceased Abdul Rahman and have come over for lodging the report. Accused Dhani Bukhsh has killed deceased Abdul Rahman by giving him pistol shot as about two months back my brother Muhammad Younis had agreed to give the hand of his daughter in marriage to the son of accused Dhani Bukhsh who refused to accept that hand. About 2/3 days back Muhammad Younis gave the hand of his daughter to Mohammad Ibrahim the Masat of Abdul Rahman and then the accused Dhani Bukhsh told my brother not to give the hand of his daughter to them but should give to his son. The deceased Abdul Rahman and Muhammad Younis told him that since they have given a word to Muhammad Ibrahim for the hand of this girl and on this accused Dhani Bukhsh said that this whole mischief is of Abdul Rahman and he would see Abdul Rahman. Due to this enmity the accused Dhani Bukhsh has murdered Abdul Rahman by giving him pistol shot. I am complainant. Action may be taken."
The investigation was conducted by P. W. 10 Mazar Ali, who was the Head Constable of that Police Station as the S. H.
0. Shafi Mohammad P. W. 5 was busy at that time. P. W. 10 Mazar Ali proceeded to vardat, examined the dead body of deceased Abdul Rahman, prepared mashirnama of vardat Exh. 11, and inquest report Exh.
12. These two memos. Were witnessed by Mohammad Ismail and Ellahi Bukhsh. He then recorded the statements of P. W. 3 Mohammad Siddiq and P. W. 2 Mohammad Younis. Thereafter, he handed over the papers to Shafi Mohammad S.H.O. After sending the dead body for post-mortem examination. S. H. O. Shafi Mohammad P. W. 5 got the papers on 8th April, 1976 and when he was going to Sukkur with Police party he was stopped by Police Constable Nazir Hussain Shah at about 6 p.m. Near Police canteen and he produced accused Dhani Bukhsh for arrest. Accused was arrested and mashirnama was made Exh. 16 in presence of Police Constable Mir Muhammad and Police Constable Atta Mohammad. Next day the accused was interrogated and he volunteered to produce the pistol and cartridges used by him in the commission of offence. Mashir Ellahi Buksh and Mohammad Ismail were called and the accused led the party to the western side of his house there the accused after digging about two feet of earth produced the pistol which was wrapped in the piece of cloth. The cloth was opened and country made pistol of 12 barrel and two live cartridges were recovered. The barrel of the pistol had blackening marks. Mashirnama was prepared Exh. 13 and the separate report was lodged against the accused under section 13-E of the Arms Ordinance. The blood-stained articles were sent to the Chemical Examiner for chemical report. These articles were one Bunyan shirt and Shalwar of the deceased which had been secured by P. W. 10 Nazar Ali and are mentioned in his deposition as well as the vardat memo. Exh.
11. He thereafter, challaned the accused in Court. The prosecution has examined three eye- witnesses, namely, Mohammad Yousif complainant, P. W. 2 Mohammad Younis brother of the complainant and P. W. 3 Mohammad Siddiq cousin of the complainant. The circumstances relied upon by the prosecution are the recovery of the pistol from under the earth dug out by the accused on 19th April, 1976 and the motive of the matrimonial dispute as mentioned in the F. I. R.
And proved by the eye-witnesses. The injuries upon the person of deceased Abdul Rahman have been proved by medical officer P. W. 9 Doctor Abdul Karim, who performed the post-mortem on the body of the deceased. The post-mortem report is Exh.
21. The sketch of the vardat is Exh. 19 which was made by. Tapedar Abdul Majeed P. W.
8.
' The accused in his statement under section 342, Cr. P. C. Has denied the case of the prosecution.
He stated that his relations with P. Ws. Are strained. He further stated that 107, Cr. P. C. Proceedings were instituted against him by P. W. Yousif. He did not examine any person in defence. P. W. 1 Mohammad Yousif stated that Abdul Rahman was his son-in-law and P. W. Mohammad Younis is his brother. P. W. Mohammad Younis had agreed to give the hand of his daughter Mst. Aisha to the son of accused Dhani Bukhsh. But Dhani Bukhsh had refused to accept Mst. Aisha for marriage, with his son Nazeer Ahmad. Muhammad Younis, thereafter promised to give Mst. Aisha in marriage to Mohammad Ibrahim S/o Abdullah who is Masat, of deceased Abdul Rahman, which had annoyed accused Dhani Bukhsh. On the day of incident at 7-30 a.m. Complainant Mohammad Yousif was sitting in his house. He heard loud voices of exchange of conversation going on between the accused Dhani Bukhsh and Abdul Rahman. On this commotion Mohammad Yousif came out of his house and saw Dhani Buksh and Abdul Rahman deceased having hot exchange of discuss on and they were about to fight each other. He gave them 'hakkals' on which Mohammad Younis and Mohammad Siddiq also came there and they also gave `hakkals' and prevented them from fighting with each other. Complainant saw that accused Dhani Bukhsh fired shot from his revolver at Abdul Rahman which hit him. They tried to arrest the accused but he ran away, when they came to the injured he was found dead. The complainant then went to the Police Station, Bagerji and filed his F. I. R. Exh.
7. He gave the motive of the murder, matrimonial dispute about Mst. Aisha. This witness was cross- examined at length. The only things worthmentioning are that the complainant was at a distance about 80 feet when he gave qtakkals' to the accused and there are houses of other persons near the houses of Junejos and there is a closed rice husking machine where there is one Chowkidar.
The complainant had also admitted that he had filed proceeding under section 107, Cr. P. C.
Against the accused two months before the incident. The complainant had denied that he filed proceedings under section 107, Cr. P. C. In order to get the possession of land which belonged to the accused and which had been mortgaged by him to a Hindu and was declared as evacuee property and allotted to some claimant and it had been purchased by P. W. Mohammad Siddiq about 3-4 years ago. He denied that there was any dispute between Dhani Bukhsh and P. W.
Mohammad Siddiq the transferee of land from the claimant. He denied the suggestion that due to their dispute over possession of land the accused had been falsely implicated. He also denied the suggestion that the accused was not present in the village and had gone out for earning livelihood.
He stated that after the incident he had given his daughter Karimdini in marriage to Nazeer Ahmad, the son of accused who was living separately. Thus it is apparent that contents of the F. I. R. Have been fully supported by the complainant Mohammad Yousif. It is not clear from the statement as to what was the case of 107, Cr. P. C. Filed by P. W. Yousif against the accused Dhani Bukhsh but the suggestion in-cross-examination that 107, Cr. P. C. Proceedings were filed in order to get possession of the land which was purchased by Mohammad Siddiq P. W. Does not seem to be of any substance as P. W. Siddiq had stated that he was cultivating the said land and the complainant Yousif had stated that P. W. Siddiq was cultivator and Hari of the said land for 27 years. P. W. 2 Mohammad Youhis has stated that about 7.30 a.m. While sitting in his house he heard commotion and on coming out he saw Abdul Rahman deceased and accused Dhani Bukhsh standing there and exchanging hot words and talking in a loud voice and saw accused fire pistol at Abdul Rahman which hit him. Complainant Mohammad Yousif had arrived there earlier. He stated that accused Dhani Bukhsh is his cousin and husband of his sister. He repeated the motive, allegation in respect of matrimonial dispute about Mst. Aisha and he further stated that Dhani Bukhsh suspected that Mohammad Younus had finalised the talks for giving his daughter Mst.
Aisha in marriage to Ibrahim through the efforts of Abdul Rahman. He also stated that deceased Abdul Rahman and the accused were real "Masat" i,e, sons of their mother's sister. In cross- examination he stated that his consultations with accused and other cousins about marriage of Mst. Aisha were held about 8-9 months before the incident and about 15 days before the incident the talks for giving his daughter in marriage to Ibrahim were finalised. He had seen the accused and deceased at a distance of 20 paces from each other. He admitted that he saw the accused and deceased Abdul Rahman exchanging the abuses and were coming near to each other. The accused fired from the pistol while he was about 2 feet away from the deceased. He had stated that none had come there except complainant Mohammad Yousif and Siddiq and himself whose houses were in the compound. There are other houses of Junejos, Kumbhar and Muhajirs in the vicinity. He denied that he was witness in 107, Cr. P. C. Proceedings filed by Yousif. He admitted that P. W. Siddiq is his real cousin and also husband of their sister. In respect of land purchased from Siddiq the claimant he stated that Siddiq was cultivating that land and now the said land is being cultivated by son of the accused. He denied that accused was claiming his right in the said land.
He also denied the suggestion that he was deposing because of strained relationship on account of 107 proceedings. He denied that he or the accused were not present at the time of the offence. P.
W. 3 Mohammad Siddiq has stated that deceased Abdul Rahman was his `Maroc' and accused Dhani Bukhsh is his cousin. He stated that he heard commotion at 7-30 a.m. And he came out of his house and gave `hakkals' to accused not to fight. Accused Dhani Bukhsh fired at deceased Abdul Rahman. He repeated the same motive in respect of Mst. Aisha as the cause of murder and stated that deceased Abdul Rahman had also taken part in the talks of marriage initiated by Mohammad Younis. In cross-examination, he stated that the vardat was 10 paces away from his house.
Accused and deceased had not grappled while he saw them. He admitted that he stated before the police that the accused and deceased were exchanging abuses. He denied that the accused had been claiming his right or interest in the land purchased by him. He denied that he was deposing on account of dispute over land. He denied that he was not present in his house. He stated that P. W. Ellahi Buicsh mashir was his son-in-law and Ismail mashir was his nephew. Ellahi Buksh was cousin of complainant Mohammad Younis. The statements of P. Ws. Mohammad Younis and Mohammad Siddiq seem to be quite straight and truthful. There is very close relationship between the accused, the deceased and the P. Ws. And it is unlikely that P. Ws. Would falsely involve such a close relation in a case of murder. The accused is real brother-in-law of complainant Mohammad Yousif and P. W. Mohammad Younis and he is also the maternal cousin of Mohammad Siddiq. No foundation has been laid by the accused for any dispute over land between him and Mohammad Siddiq as accused never initiated any proceeding to get that land declared as non-evacuee. It does not seem to be reasonable that merely because P. W.
Mohammad Yousif had filed case under section 107, Cr. P. C. Proceedings against accused Dhani Bukhsh, therefore, Younis would also be inimical against the accused to the extent that he would involve him in a false case. It is correct that complainant Mohammad Yousif has some animosity against the accused as he has filed 107, Cr. P. C. Proceedings against the accused but it can be forgotten that complainant's own sister is married with the accused and no other enmity is suggested. After the incident the complainant has given his own daughter in marriage with son of the accused therefore, even P. W. Yousif was not likely to involve the accused falsely in a murder case. The offence has taken place in compound of Junejos and these P. Ws. Are the residents of that compound and they are natural witnesses and the accused and deceased had also their houses in the same compound and therefore, the P. Ws. Were expected to be near that place and were likely to have witnessed incident in view of the loud voices and exchanging of hot words having preceded the incident. We, therefore, believe the version given by these witnesses whose deposition has not been damaged in any way by the defence. The oral evidence has been corroborated by the recovery of the pistol produced by the accused on 19th April, 1976 from his own house after digging 2 feet of earth from under the wall. The recovery is fully established by the evidence of Mashir Ellahi Buksh P. W. 4 who was the near relationship of the deceased as well as the accused. It has also been proved by P. W. 5 Shafi Mohammad S. H.
0., against whom nothing has been alleged by the defence, and his testimony cannot be discarded merely because he is a police officer. No allegation of any coercion or maltreatment to the accused was made against P. W. 5A Shafi Mohammad. The recovery of the pistol alongwith 2 cartridges has been recorded in rrzashirnama dated 9th April, 1976 at 15-00 hours. Nothing has been pointed out to us as to why the said recovery should be disbelieved merely because Mashir Ellahi Buksh is the son-in-law of P. W. Siddiq, we cannot discard his testimony as he was closely related to the accused as well as the deceased in cross-examination of Mashir Ellahi Buksh there is not even a suggestion of any enmity or bad blood between this witnesses accused Dhani Bukhsh and we therefore, find that the recovery of pistol at the instance of Dhani Bukhsh is fully proved and since this pistol could cause the injuries which have been caused upon the deceased therefore, this recovery of pistol sufficiently corroborates the testimony of the P. Ws. And burdens the accused with the crime. We find that P. W. 9 Doctor Karim who performed the post-mortem examination of the deceased had found 6 injuries by gunshots on the persons of the deceased caused by many pellets which had caused circular contused wounds on the left shoulder, left upper and anterior side of axilla, upper left arm, lower left arm and left axilla. In his opinion the injuries were caused by fire arm from a distance of 6 to 12 feet, the cause of death was excess of loss of blood and shock.
Injury on the left upper side and anterior side of axilla was explained to be on the chest and its caused puncture to the,lung. The doctor had admitted in cross-examination that except twe; injuries all the injuries were half inch in diameter while injuries 5 and 6 were 1/3" of diameter, he cannot say whether cartridges of two different sizes were used. He could not say as to how many shots were fired. These suggestions in cross-examination are not such as to diminish the testimony of the P. Ws. Who have stated that there was one shot by the accused from some distance.
' The appellant was heard in person and he simply stated that he was innocent.
' Counsel for the pauper appellant Mr. Manzoor Hussain submitted that independent witnesses have not been produced and therefore the interested testimony of the P. Ws. Should not be relied upon and therefore accused should be acquitted.
' We do not find any justification to do so and we find that the P.Ws. Are worth being relied upon and in fact the relations between the accused and P. Ws. Were so close that false involvement in a murder case is out of question. In any case P. Ws. Mohammad Siddiq, P. W. Mohammad Younis and P. W. Ellahi Buksh were not shown to be having any antagonism against the accused, and therefore we have relied upon their testimony.
' Mr. Manzoor Hussain then argued that it is an admitted position that there was exchange of hot words and exchange of abuses between the deceased and the accused, and therefore, there may have been some provocation offered in the abuses by the deceased which may have provoked the accused to take out the pistol and fire at him. The accused has not stated in his statement as to whether there was any such provocation given by deceased. Moreover, the fact that it was early morning and the accused had come from pis house and was standing at the hous of the deceased where the loud voices, exchanging of hot words had taken place and the accused had thereupon, taken out the pistol and fired from a short distance shows that the accused had prepared himself in advance to pick-up fight with the deceased and had taken the pistol from his house which would lead to an inference that he had come determined to kill the deceased and therefore, the offence had clearly, been preplanned and murder of unarmed relation by a person duly armed with a fatal weapon was committed. Mr. Manzoor Hussain has not been able to produce, any ruling that merely on account of exchange of abuses if murder has been committed then lesser sentence of life imprisonment should be awarded. On the other hand it was held in AIR 1941 Sind 117 that in case of murder of unarmed person by bully, who was armed with the weapon, the correct sentence to be awarded was the punishment of death so that the other persons may learn lesson from the same.
' We therefore, dismiss the appeal and confirm the sentence of death under section 376, Cr. P. C.
We also dismiss criminal Appeal No, J-316/78 as we find that the recovery of the pistol at the instance of the appellant was fully established and we have also seen that the investigating officer S. H.
0. Shafi Mohammad had demanded the licence for the pistol from the appellant but he had failed to produce the same and he was therefore rightly convicted for the possessing of unlicensed arm under section 13-E of the Arms Ordinance.