1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from the judgment dated 31st of May, 1979, passed by the High Court of Sind ; whereby while disposing of a murder reference and a criminal appeal, arising out of a case under section 302, P. P. C., the petitioner's conviction for murder of his wife Mst. Jivi and her cousin Mst. Sharam Khatoon, was maintained. The sentence of death however, was reduced to imprisonment for life and a fine of Rs, 1,000. His co-accused who is his father : namely, Umar Hayat accused was acquitted by extending to him the benefit of doubt.
2. The petitioner's conviction and sentence of one year's rigorous imprisonment under section 13-D of the Arms Ordinance, was also maintained. It was however, directed that both the sentences would run concurrently.
3. ' The F. I. R. Lodged by Ghulam Qadir P. W. At 3-10 p. m. On 22nd of August, 1976, as reproduced in leave petition, reads as follows :- "Complaint is that house of Rabimdil Jakhrani is adjacent to my house. Today in the morning at about 8-00 a. m.1, Noor Khan son of Ghulam Nabi, Ghulam Nabi son of Mohammad Khan Jakhrani were standing nearby house. When we heard gun report and cries of murder--murder from the house of Rahimdil Jakhrani. Whereupon I, Noor Khan. And Ghulam Nabi rushed to that side, where we saw Mst. Sharam Khatoon wife of Rahimdil, my niece, lying on the ground while accused `Sherdil son of Umar Hayat who was armed with a gun and Umar Hayat who x had a lathi, were giving blows to Mst. Jivi wife of Sherdil....... ,..Jakhrani by lathi and butt of the gun. On seeing us, accused persons challenged us that we should not approach them as they were killing Kari and if we tried to approach them, we would also be murdered. Due to fear, we did not go near them. After giving blows, accused persons ran away towards west. After departure of the accused persons, we saw that Mst. Sharam Khatoon had gunshot injury on her left side below breast. Blood was oozing out She was in senses, Mst. Jivi had in juries on her head and she was unconscious. On enquiry Mst.
4. Sharam Khatoon told that 'I and Mst. Jivi were in the house when above named accused persons came there. They declared Mst. Jivi as Kari and accused told me that I was also in collusion with her ; and therefore they would kill us. Thereupon I requested them not to commit murder. In the meantime Sherdil fired at me which hit me and I fell down. Thereafter both accused persons gave lathi and butt blows to Mst. Jivi and on seeing you accused persons have run away. Thereafter we took Mst Sharam Khatoon to Thul for treatment but she died on the way. Noor Khan and Ghulam Nabi went to Thul along with dead body and I have come for report. Accused persons, without any justification, have blamed Mst. Jivi to be Kari and Mst. Sharam Khatoon to be in collusion with her, and they had caused injuries to Mst. Jivi with intent to commit her murder and caused death of Sharam Khatoon. Justice bed one."
5. ' At the trial the prosecution relied on the ocular testimony of Ghulam Qadir, Noor Khan and Ghulam Nabi P. Ws. ; the dying declaration made by Mst. Sharam Khatoon before the aforementioned P.
6. Ws., the abscondence of Sherdil petitioner for 40 days and Umar Hayat acquitted for 8 months : and the motive that Mst. Jivi deceased was Kari and Mst. Sharam Khatoon had colluded with her in the said act. The accused did not stick to the version noted from their side in the F. I. R. Instead, there was a plea of total denial. Three witnesses were produced in defence : namely Razi Khan, a Nekmard of the locality, Shah Nawaz a disinterested person, and Mohammad Hayat, father of Mst.
7. Jivi deceased. Their plea was that it was in the early morning that a fire shot was heard. When they reached the spot after hearing the gun report, both the ladies were found in injured condition and that the assailants had neither been seen nor identified by any person.
8. ' The learned trial Judge believed the prosecution case, found-both the accused guilty of murder on two counts and sentenced them to death. Sherdil was also convicted and sentenced for offence under section 13-D of the Arms Ordinance. The High Court, after careful marshalling of the facts and analysis of the evidence led from both the sides, agreed with the finding of the learned trial Judge that Sherdil petitioner fired the shot at Mst. Sharam Khatoon which hit her in the chest and ultimately proved fatal and further that he was responsible for causing serious injuries with the blunt side of the butt end of the gun to Mst. Jivi. He had, therefore, rightly been convicted for offence of murder. However, in view of the motive, put forward from the prosecution side, it was considered just and proper to reduce the sentence to imprisorment for life. Reliance in this behalf was placed on Muhammad Ranizan v. The State (1) : Umar Hayat v. The State (2) and Khudadad and 2 others v. The State (3). His conviction under the Arms Ordinance was also maintained. Two eye-witnesses did not attribute any direct part to Umar Hayat accused. After comparison of the evidence in this behalf, the learned Judges in the High Court gave him the benefit of doubt, resulting in his acquittal.
9. ' Learned counsel for Sherdil petitioner has raised three contentions in support of this petition : that both the learned Courts below have ignored the fact that while the fire shot injury on the person of Mst. Sharam Khatoon was from a rifle, the prosecution witnesses insisted that Sherdil was carrying a gun that the petitioner could not be convicted for the murder of Mst. Jivi because even if it be assumed that he was responsible for causing her the injuries which were noticed by the Doctor when she was alive ; after her death, the autopsy was performed by the Doctor 6/7 months after the occurrence and he was obliged to express only a suspicion that the fracture of the parietal bone could be the cause of the death the argument being that the death of Mst. Jivi could not be connected with the injuries caused by Sherdil to her on the Doctor's opinion of suspicion only ; and lastly that the version given by the three defence witnesses merited more serious consideration.
10. According to the learned counsel, Razi Khan, the Nekmard had no interest against the prosecution, nor Shah Nawaz the independent witness was interested in making a false statement so as to screen the petitioner and the third defence witness namely, Mohammad Hayat being the father of one of the deceased would not have spared Sherdil if he was the real culprit-emphasis was also laid on the fact that Muhammad Hayat being an inmate of the house was not only a natural witness but also in a better position than the eye witnesses to have seen and identified the assailant.
11. ' Learned counsel, while elaborating the first argument stated that in Sind when describing a gun people call it a bundu and when describing a rifle they call it'a refie. But when questioned as to whether a rifle is never described as gun and vice versa, learned counsel was unable to give a definite reply. There is nothing in the evidence to show that the prosecution witnesses were unable to identify the weapon which was carried by Sherdil petitioner at the time of occurrence. Nothing has been elicited in cross-examination to support the contention of the learned counsel that there was a contradiction between the ocular account given by the prosecution witnesses and the medical evidence. The plea being raised now for the first time does not merit any further consideration. The same, accordingly, is repelled.
12. ' It is true that the Doctor who performed the autopsy on the body of Mst. Jivi, after it was exhumed several months subsequent to the
(1) PLD 1966 SC 119 (2) PLD 1966 SC 602
(3) 1974 SCM R 485 ' occurrence, was unable to give a clear cut reply to the question as to what was the cause of death. He, however, gave the probable cause being the fracture of the parietal bone. He also, it is evident from his deposition, co-related fracture of the left parietal bone found by him during the autopsy with injury No, 1, found by the Doctor on examination of Mst. Jivi in injured condition on the day of occurrence. It was a lacerated wound 11/4" x 1/4 scalp deep on the left parietal region. It would not be out of place to mention here that the second injury on the person of Mst. Jivi was also on the left parietal region but 2 lateral to the first injury. It was 2' x 4" and was scalp deep. The third injury on the left eye brow, although was in the same region, may not have been directly connected with the first two injuries. It can be safely assumed that when the Doctor used the words 'doubt and suspicion' he did so in connection with the location of the injuries which were found on the person of Mst. Jivi when she was alive. He could not be certain that the death could be caused by the third injury : namely ; one on the left eye brow. Medical evidence shows that the injuries on the parietal region which resulted in the fracture underneath (which, of course, could also be left without an X-ray,) could be the probable cause of the death. Nothing was suggested before the learned Courts below that there was any other cause for the death of Mst. Jivi. The case put forward from the prosecution side namely, the serious injuries caused by Sherdil with the butt end of his weapon on a vital part of the body (left parietal region) of Mst. Jivi has considerable causal proximity with her death. There is nothing in the evidence to suggest that another supervening factor contributed to her death. We, therefore, are not inclined at this stage to differ with the learned Courts below with regard to the cause of death of Mst. Jivi. As to the offence also, the repeated injuries having been caused by the petitioner on the head of Mst. Jivi, there could be no other intention than to cause her death. In so far as this argument of the learned counsel is concerned, the conviction of Sherdil for murder on two counts is unexceptionable.
13. ' Learned counsel for the petitioner also tried to argue that the defence version regarding the time of occurrence being early hours of the morning, gets support from the Doctor's statement in that the death of Mst. Sharam Khatoon had taken place "more than three hours after the last meals".
14. From this learned counsel tried to make a point that the occurrence took place at the most three hours after the last meal during the night which would place it somewhere at midnight. This obviously would not support the defence version as according to the P. Ws. It was dawn or asure time when the occurrence took place. Be that as it may, the Doctor's statement does not at all limit the maximum period which elapsed between the last meal and the death. The limitation was only with regard to the minimum time being three hours. The argument has, therefore, no force.
15. ' It is true that one of the defence witnesses, the father of Mst. Jivi in normal circumstances would not spare the real culprit, nor would he substitute an innocent person for the guilty one. However, in this case the plea put forward from the prosecution side that the motive with the petitioner was that Mst. Jivi was a Kari, would reduce the strength of the argument qua Mohammad Hayat, father of Mst. Jivi. If her husband could kill her for being a Kari, there is no reason to suppose that her own father would try to save her husband for the same reason which impelled the accused to kill his own wife. Same consideration would apply to Razi Khan, the Nekinard. The case of Shah Nawaz, the third eye-witness would also fall in the same line, The prosecution witnesses are not outsiders. They are also related to the parties. The version from the very inception given in the F. I. R. Was that the petitioner committed the offence on account of Mst. Jivi being a Kari and Mst. Sharam Khatoon being her assso ciate in the black deed. There is no compelling reason, for this Court to differ with the assessm ent of prosecution evidence by the learned Courts below whether it relates to what the eye-witnesses themselves saw or what they heard as dying declaration from Mst. Sharam Khatoon. The findings of fact reached by the learned Courts below with regard to the culpability of the petitions are unexceptionable.
16. ' Nothing has been urged regarding the conviction and sentence of the petitioner under the Arms Ordinance.
17. ' There is no force in this petition. It is accordingly dismissed.