1. ' MUHAMMAD ZAHOORUL HAQ, J.-This is a case for confirmation of death sentence awarded to Mohammad Saleem under section 302, P. P. C. By Additional Sessions Judge, Karachi, on 23rd July, 1978. The appellant has also filed an appeal against the sentence of death. This Judgment will dispose of both the confirmation case and the appeal.
2. ' The relevant facts leading to the conviction are as follows ' P. W. 2 Mohammad Jamil lodged a F. I. R. Exh. 4 at Police Station, Landhi, on 3rd May, 1976 at 5-30 a.m. Alleging that a thief, who later gave his name as Saleem had entered the house of the complainant situated at Landhi at about 5 a.m. In the morning and had gone to the room of his bhawaj, who was sleeping with her children in the room, and on hearing some click deceased Mohammad Saleem, who was maternal-nephew of the complainant had got up from his bed and cried "thief !" "thief !" on which other persons of the house got up. Complainant saw that man and both had tried to catch him, whereupon, accused Saleem took out revolver and fired 3 shots at deceased Saleem, who was injured in the abdomen and left thigh., On cries, some persons of the locality including Usman, Abdul Malik and Hameed Baksh gathered and they all overpowered accused and complainant snatched the revolver from the' accused. The complainant further stated that he had brought the accused and injured Saleem to the Police Station and had also brought the revolver, which he had snatched from the accused Mohammad Saleem.
3. ' F. I. R. Was recorded by P. W. 12 A. S. I. Police Hafeezullah. The police arrested the accused under a Mashirnama Exh. 10, and revolver produced by complainant was taken into possession by Police vide memo Exh. 9, The revolver contained one live cartridge and three empties. The investigation was made by P. W. 9 Naim Bahadur, who was S. I. Police of Landhi Police Station. He examined P. Ws.
4. Naseem Begum, Yasmeen, Mohammad Kamal, Mohammad Usman, Mohammad Younus, Abdul Shakoor and Rasheed Ahmad Khan. The statement of the injured Saleem could not be recorded as he was unconscious. Deceased died in hospital on the same day. On the death of the deceased inquest report was made vide memo Exh.
12. The dead body was sent to the Police Surgeon for post-mortem. The clothes of the accused had been secured on 3-5-1976 vide mashirnama Exh. 19-B. They wore one shirt and one shalwar. They were blood-stained and were sent to the Chemical Examiner and the report of the Chemical Examiner Exh. 19-A shows that the clothes were stained with human blood.
5. ' The prosecution has relied upon the oral testimony of 4 eye-witnesses, namely Mst. Naseem Begum P. W. 1, who is the mother of the deceased and P. W. 2 Mohammad Jamil, who is the uncle of the deceased. P. W. 3 Mst. Yasmeen, who is the sister of the deceased and P. W. 4 Mustafa Kamal, who is the younger brother of the deceased. All these persons were inmates of the same house, where the deceased lived. Mst. Naseem Begum stated that at about 5. 30 a.m. She Was sleeping in the room with children, when she found the accused entered the room, his face was muffled and he was armed with revolver. The accused put, revolver on her chest and demanded keys of the house. She asked accused why he entered the house. On her voice, her son Saleem entered in the room. The accused fired on her son Saleem and he started crying. He received injury upon abdomen. The accused fired three shots on her son, who fell down. On noise, Mohammad Jamil and other children came running. She caught hold of the accused of his arm, Mohammad Jamil also caught hold of the accused and her son Saleem while lying also caught hold of the legs of the accused. On cries, Mohallah people came, accused Saleem was tied down. In cross-examination.
6. She has admitted that one door of the room was kept open for the purpose of the gas and air. She denied the suggestion that the accused was visiting her house and was on illicit terms with her. She also denied the suggestion that her daughter had seen the accused in her bedroom, and there upon, she raised cries. She has also denied the suggestion that her son Saleem and complainant Mohammad Jamil came inside the room on that account and one of them fired at accused, which hit Saleem deceased. She has denied that accused Saleem was empty-handed. P. W. 2 Mohammad Jamil has reiterated the allegations of the F. I. R. In his deposition with some minor variance. He stated that he was sleeping in a room with his nephew Saleem, while P. W. 1 Naseem Begum and other children were sleeping in the adjoining room. At about 5-30 a.m. He heard fire shots from adjoining room and wokeup and went towards the room and saw accused Saleem standing armed with a revolver and saw his nephew Saleem injured having injury on his abdomen and leg. He saw that his bhabhi Mst. Naseem Begum had caught hold of the accused from his arm, and his nephew Mohammad Saleem was holding the accused from his legs. He also caught hold of the accused. His Bhabhi snatched the revolver from the accused. On cries P. W. Abdul Malik and other Mohalla people came there. They all caught hold of the accused and tied his hands. The accused was made to sit there and he took the injured Saleem to Police Station, Landhi, where he lodged his F. I. R. Exh.
4. In cross-examination, he stated that he heard his bhabhi was crying (thief thief). He stated that his brother was in Musqat. He admitted to have stated in F. I. R. That he and Saleem tried to catch hold of the accused, but the accused fired at Saleern. He denied the suggestion that Saleem had got injury from the fire that one of them fired at accused. We have been at a loss to follow the purpose of this suggestion in cross-examination that one of them fired. Deceased Saleem could not have fired upon himself. P. W. 3 Mst. Yasmeen has supported the version of Mst. Naseem Begum P. W.
1. Mst. Yasmeen said that she woke up on the noise and saw him. Standing in the room at 5 a.m.
7. She saw the accused put the revolver and demanding the keys. On noise her brother Saleem came running inside the room and accused fired 3 shots at her brother Saleem. Her brother . Caught hold of the accused. On receiving injuries her brother fell down, but caught hold of accused from his legs, and in the meantime Mohammad Jamil and her younger brother Mustafa Kamal came there.
8. On their cries, the neighbours came and the accused was overpowered. She denied the suggestion in cross-examination that her uncle Mohammad Jamil fired at the accused but it hit her brother Mohammad Saleem. P. W. 4 Mustafa Kamal, who is 13 years old, brother of the deceased has almost given the same version as given by P. Ws. 1 to 3.
9. ' The eye-witnesses P. Ws. 1 to 4 are inmates of the house and their presence cannot be denied.
10. Their testimony is supported by the corroborative statements of P. W. 5 Abdul Malik, P. W. 6 Mohammad Usman and P. W. Abdul Shakoor Khan, who are neighbours of the complainant and came in almost immediately after the occurrence. P. W. 5 Abdul Malik, who is immediate neighbour of the complainant had seen the revolver in the hand of the accused, while he was being grappled with by Mohammad Jamil, Mst, Naseem Begum and deceased Saleem. They all snatched the revolver from the accused. The deceased Saleem had informed the persons present not to leave the accused as the accused had given him injury with revolver. P. W. 5 was also the mashir of vardat, mashir of arrest of accused and also the mashir of personal search of accused Saleem vide a Mashirnama Exh. 10, where one torch, one currency note of one hundred rupees, one cap, and muffler and one sun glass were secured from the accused. He has also seen one injury on the hand of the accused with which he was holding the revolver. In cross-examination, he stated that P. W. Mohammad Jamil and inmates of house were present at the place of vardat, before his arrival. He stated before Police that he heard children crying 'thief ! Thief !' and also heard cries of Mst. Naseem Begum, P. Ws. Usman and Abdul Shakoor had reached the place of offence just after the time, when the revolver had been snatched from the accused and he was being tied. They were informed that accused committed theft in the house and had given injury to Saleem. There is no particular damaging admission. Which has been obtained from these 2 witnesses in their cross- examination by the defence counsel. P. W. 9 Naim Bahadur, who investigated the case has proved that he proceeded to the place of vardat and prepared the memo. In the presence of mashirs as Exh. 8,-and then, examined the P. Ws. In cross-examination, he admitted that P. W. Mohammad Jamil did not state that he heard firing shots in the adjoining room, where he was sleeping. Mst Naseem did not state before him that she woke-up on the noise of the accused. P. W. Abdul Malik did not state before him that he heard cries of Mst. Naseem Begum. P. W. Naseem did not state before him that accused put revolver on her chest and demanded keys. P. W. 4 Mustafa Kamal had stated before him that deceased Saleem and P. W. Jamil were sleeping in the drawing room, and he was sleeping in the room of his mother. The post-mortem examination of deceased Saleem was done by Dr. Abdul Hakeem Khan, but since, he had been transferred from Karachi, therefore, the post-mortem report was proved by Dr. Abdul Hadi P. W. 10 who identified the signature of Dr. Abdul Hakeem Khan. In the post-mortem Exh. 21 two fire-arm injuries on the abdomen and below the hip joint were found. The injury below the hip joint showed charred marks around the wound, which indicates that the same was fired from a very close range of about 3 to 4 feet. The cause of death was given as haemorrhage and shock due to injuries on the body by projectile fired from a fire-arm. One bullet was recovered from the body.
11. ' The revolver, which had been secured from the accused with the crime empties was sent to the fire-arm expert. P.W. 11 Mukhtar Ahmed, the Ballistic Expert stated that after having carried out different tests he had come to the conclusion that the 3 crime empties had been fired from the 32 bore revolver sent to him. He also opined that one bullet, which was secured from the body of deceased Saleem was also fire from the same crime revolver. His report was Exh.
25. P.W. 12 Hafeezullah, who was A S. I. Police of Landhi Police Station deposed that he recorded the F.I.R. Exh. 4, lodged by complainant P.W. 2 Muhammad Jamil. He also deposed that accused had been brought at the Police Station by the complainant, who was arrested under Masnirnama Exh.
10. The revolver with crime forties was aldose cured under Mashirnama Exh.
9. The accused Mohammad Saleem had received injury, probably, when he was overpowered by the P.Ws. However, there is no positive statement to that effect from any side but a reasonable inference from the nature of injuries are that he received the same as a result of grappling and snatching away of the revolver from him. He was examined by Dr. Lqbal Ahmed P.W. 13 on 3rd May, 1976 and 2 lacerated wounds on the left thumb and one contusion on left eye and one abrasion on right-hand palm side were found. Injuries were declared to be simple and caused by hard and blunt weapon. In cross-examination, the doctor denied that injury No, 1 on the left thumb of accused could be caused by passing bullet. He admitted that injury No, 3 viz. Contusion on left eye could be caused by receiving fist blow, but denied that abrasion of right hand palm could be caused by fist blow. In his opinion it could be caused by fall on the ground. The certificate of injuries is Exh.
12. 29.
13. ' The accused in his statement has admitted that he had gone to the house of the complainant on the relevant date, but the reason for the same, he gave was that he was an illicit terms with Mst.
14. Naseem Begum. He denied that he fired bullet upon deceased Saleem and stated that uncle of Saleem deceased had fired at him (accused), but the same hit complainants nephew Saleem (deceased). He denied that the revolver had been snatched from him. He also stated that he was detained by the complainant party and that revolver did not belong to him. In respect of the blood found on his shirt and shalwar, he asserted that it was his own blood. He admitted that he had received injuries and he was sent to the hospital. To the question as to why the witnesses deposed against him, his answer was that witnesses are neighbors of the complainant and hence, they had deposed against him. The accused did not lead evidence in defense.
15. ' Khawaja Naveed Ahmad, on behalf of the appellant Saleem has argued that the case is doubtful as all eye-witnesses are inmates of the house and relations of the deceased and they have also made contradictions in their statements, and hence, they should be disbelieved. He also submitted that the firing was by P.W. Jamil and accidently, it had hit P.W. Saleem, He has also argued in the alternative that there was no intention on the part of the accused to cause death as he probably wanted to escape from arrest and had fired only to ward off arrest. Lastly, he argued that the accused was only 20 years of age at the time of occurrence, therefore he should be given a lighter sentence.
16. ' Mr. Murtaza Hussain, Advocate for the State, argued that the discrepancies if any in statements of the P.Ws. Are of minor nature and they are of no consequence. He relied upon PLD 1977 SC 557 where the discrepancies in that cases were considered of minor consequence. The discrepancies pointed out by Mr. Naveed Ahmed are that in the F.I.R. P.W. Jamil had stated that he and his Bhatija (deceased Saleem) had tried to catch the thief, who then took out a revlover and at once stated firing on his nephew Saleem, while in his deposition in Court, he said that lie woke-up on the firing and went towards the room and saw the present accused armed with a revolver. He also stated that F. I. R. Did not state that the face of the accused was muffled, while Mst. Naseem has deposed that the face of the accused was muffled. He pointed out that P.W. Mustafa Kamal had told the police that he was sleeping in the same room with his mother, but in the Court, he stated that he was sleeping with his uncle P.W. Jamil outside. He also pointed out that there is some divergence as to what type of the cries were made by the inmates of the house. He has also submitted that the P.Ws. Mention the firing of three shots, where as the medical evidence shows that there are only two bullets wounds on the person of the deceased.
17. ' We are of the view that the discrepancies pointed out by the learned counsel of the appellant are not of such nature, which can make the case of the prosecution as doubtful. It is the admitted position that the offences took place at 5 a. m. In the morning, in the month of May, 1976 at which time there is sufficient light and the same was promptly reported by the complainant Mohammad Jamil at Landhi Police Station within half an hour of the occurrence. There was, therefore, hardly any chance of any improvement in the version of the case. All the 4 eye-witnesses viz. P.W. 1 Naseem Begttm, P.W. 2 Mohammad Jamil, P.W. 3 Mst. Yasmeen and P.W. 4 Mustafa Kamal are inmates of the same house, where the offence took place and they are natural witnesses and they have no antagonism or enmity against the accused and there is no reason for them to falsely implicate him. The accused was arrested on the spot and P.W. 5 Abdul Malik, who is a close neighbour has very clearly stated that when he reached the house he had seen the revolver in the hand of the accused, who was being grappled with by P.Ws. Mohammad Jamil and Mst. Naseem Begum. The story given to P.Ws. Mohammad Usman and Abdul Shakoor Khan who reached the house immediately thereafter, by the inmates of the house was that the accused had injured Saleem. There is no reason for either Abdul Malik or Mohammad Usman or Abdul Shakoor Khan to give any false evidence and they all are natural witnesses of the locality. The accused has admitted his presence in the house and has given explanation of the injuries, which were caused upon Saleem, therefore, the minor discrepancy in the statements of the P.Ws. As to who got up first and as to what type of cries were made by the inmates of the house or even the discrepancy about 3 shots having been fired and 2 bullets wounds having been found are really of no significance as they are minor discrepancies and could be the result of confusion. Such minor variations in fact go to show that witnesses are truthful. The F. I. R. Had clearly mentioned only 2 wounds. Since, the accused had admitted his presence in the house, therefore, the presence of the accused at the time of occurrence is beyond doubt. The explanation of his presence in the house given by the accused that he was on illicit terms with Mst. Naseem Begum is completely unfounded and is simply an effort to tranish. Mst. Naseem Begum who grappled this accused and was instrumental in snatching the revolve' from him. The counsel of the accused had put 3 or 4 questions to Ms Naseem Begum, in this respect of illicit intimacy, but Mst. Naseem Begum firmly denied those suggestions. Thereafter, this line of defence seems to have been abandoned and no question whatsoever in this respect was put to any inmates of the house or even the 4 neighbours, who were examined on behalf of the prosecution. After all if the accused claimed to be on illicit terms with Mst. Naseem Begum, then he must have visited her several times and should have been seen by some- one. The illicit terms could not develop momentarily and there should have been, therefore, some suggestion to some of the P.Ws. That accused had been visiting the house of Mst.
18. Naseem Begum, but no such question or even a suggestion to any of the other P.Ws. Having been made, we are convinced that story of illicit intimacy was an absolute lie. Moreover, we find that the accused had given his address of Malir City and the complainant's house is in Landhi Colony, and there is at least more than 2 miles distance between Malir City and Landhi Colony, and therefore, also it is not probable that an illicit intimacy could develop between Mst. Naseem Begum and accused, The accused has failed to establish any intimacy and has not given any details in respect of the same. Furthermore, the accused is 23 years of age while Mst. Naseem Begum is 36 years of age and having 9 children and on account of this difference in age also the defence of intimacy seems to be far-fetched. The accused has tried to take undue advantage of the absence of the husband of Mst. Naseem Begum from Pakistan, who was employed at Maskat. And therefore, the accused made up this unfounded and malicious allegations. Therefore, the purpose of the accused seemed to be nothing else, but to steal from the house.
19. ' The main contention of illicit intimacy made by the accused having been found to be untrue and the presence of the accused at the time of occurrence having been admitted by him and the accused having been arrested at the spot, the simple question remains as to whether the accused caused injuries upon deceased Saleem or whether P.W. Muhammad Jamil by accident caused injuries upon Saleem as suggested by the accused. At the outset, we may state that we do not find any reason to disbelieve the statements of inmates of the house and we find their depositions fairly consistent with each other in respect of all material particulars of the assailant, the injured, the weapon used and the arrest of accused. Everyone, of them stated that it was the accused, who fired at deceased Saleem and their neighbor Abdul Malik saw the revolver in the hand of accused and he further saw that the revolver was snatched by the inmates of the house from the deceased.
20. The deceased as well as the inmates of the house told P.W. Abdul Malik, Muhammad Usman and Abdul Shakoor Khan that it was accused, who had given injuries to Saleem. There is no reason to disbelieve the statements of these neighbors, who provide ample corroboration to the statements of the eye-witnesses although no corroboration was necessary in the circumstances of this case.
21. Moreover, the cries of thief ! Thief ! Had been raised by the inmates of the house, which cries and the firing of shots attracted these neighbors, therefore. Also the story given by the witnesses is basically convincing.
22. ' Another, important fact, which is established on record is that injury on the hip joint of deceased Saleem was caused by firing from such a short range that the wound had charring marks.
23. Considering that at 5 a.m. In May, there is sufficient light and the shot was fired from a close range of 2 to 3 feet it is inconceivable that P.W. Jamil would fire from such a close range at the time of dawn with sufficient light upon his own nephew and not upon the accused who was available in the room. Therefore, this shot could not be fired by P. W. Jamil and it has been fired by accused himself and by no-one else. Therefore the version of accused that P.W. Jamil fired upon the accused, but it accidentally hit upon the deceased is completely false and untenable. Moreover two shots having been fired upon deceased, if it is presumed against evidence that P.W. Jamil had fired the first shot by accident from a distance upon the deceased then the second shot at least could not be fired in the same manner as the same would be against all human conduct because the first shot must have elicited cries from deceased Saleem, and hence, the second shot could not be fired in the same manner by accident. The obvious conclusion is that accused alone fired the two shots.
24. ' Another fact which militates against this theory of defence is that neither the deceased nor his mother nor still the sister or brother raised any protest against P.W. Jamil for firing two shots into their kith and kin deceased Saleem, but on the contrary the deceased himself as well as the P. W.
25. All give the story to the neighbours that accused Saleem had fired upon deceased Saleem. Still further the conduct of deceased Saleem that after having been fired at he clung to the feet of accused in order to get him arrested clearly shows that it was the accused Saleem only, who had fired the shots and not P.W. Jamil.
26. Khawaja Naveed then argued in the alternative that the intention of his client even if he fired the shot was not to kill the deceased, but to escape from arrest. There is no justification for this argument on the part of the learned counsel. The act of the accused in firing shot from such close range could not be with any other intention, but to cause death or such bodily injury which any reasonable person in the circumstances could know that it was likely to cause death. In any case, the act of firin from such a close range was so imminently dangerous that in all probability it could cause death or at least such bodily injury which was likely to B cause death, and there was no excuse for firing such shots as the idea of escape from the arrest could not entitle the accused to fire upon the deceased who was coming into the room. The case of the appellant was, therefore, obviously covered by section 300, P.P.C. And particularly the second and fourth part of main section 300 of P.P.C. Which defines murder.
27. ' Khawaja Naveed then argued that the accused being only 20 years of age at the time of the commission of the offence he was entitled to be treated leniently. We do not agree that 20 years of age at the time of commission would entitle the person to be awarded with a lesser sentence.
28. Moreover, in this case, the accused had come with the intention of committing theft and has caused the death of a boy who wanted to apprehend him. The accused had not only come to commit theft, but had come armed with deadly weapon and he had, therefore, intended from very beginning to try to avoid arrest by using deadly weapon.
29. ' In these circumstances, he is not entitled to any leniency and therefore, the sentence of death has rightly been awarded to him. We, therefore, confirm the sentence of death under section 376, Cr. P.
30. C. And dismiss the appeal.