B. G. N. KAZI, J.---This order will dispose of the reference with regard to the confirmation of the death sentence passed on appellant Ishaque son of Mohammad Siddique Panhwar and his appeal from the Jail against his conviction by the Sessions Judge, Dadu under section 302 and sentence of death. The Sessions Judge, Dadu, further directed that the accused Pay a compensation of Rs. 4,000 to the heirs of deceased under sec--t ion 544-A, Cr. P. C. In default of which appellant was to suffer R. I. For 6 months in case his death sentence is not confirmed by the High Court.
2. The appellant is the sister's son of deceased and also of Ramzan son of Haji Dilawar, who is brother of the deceased. The houses of Ramzan and Shamsuddin are adjacent in village Obhayo Panhwar, Taluka Dadu. On 13th May, 1975, deceased Shamsuddin who resided with his children in his own house near the house of complainant was doing the work of brick making. In the morning he had gone for the Purpose to survey number of Ghulam Rasool, near their village in Deh Purandero. Ramzan and his son Hashim and Shafi Mohammad had gone with him to help him in his work. Mst. Asiat had brought meals for them at about 11 a.m. Shortly thereafter at about noon time when they were all working and Shamasuddin was preparing bricks, they saw the appellant coming from northern side. He abused Shamsuddin saying that Shamasuddin bad implicated him in theft cases before the Police and Waderas and, therefore he would not spare him. The appellant is then stated to have challenged that if the others went near him he would murder them.
Approaching nearer the appellant fired from his country --made pistol at the head of Shamasuddin who on getting the injury fell down. The accused appellant then fired another shot at his chest and ran away taking his pistol with him. Due to receiving injuries Shamsuddin died on the spot.
On the cries of the aforementioned witnesses and on hearing the shots, Ghulam Qadir and Sher Mohammad son of Raza Mohammad and other people of the village came running, to whom the incident was narrated.
4. Ramzan left the dead body of the deceased in case of the witnesses and went to report the matter at Phulji Police Station. At about 14 hours. H. C. Ahmed Khan who was incharge of the Police Post Phulji recorded the F. I. R. And sent it to Police Station, Rukkan. He then accompanied complainant Ramzan to the scene of offence and in presence of mashirs Shafi Mohammad and Darya Khan prepared the mashirnama of the scene of offence. He secured the blood-stained earth, packed and sealed it from the spot. One empty cartridge of -12 bore was secured by him also from the scene, which was lying at a distance of 6 paces from the dead body. The empty cartridge was packed and sealed. There were freshly prepared bricks at the scene of offence. H. C.
Then held inquest over the dead body in presence of the said mashirs and prepared the report. He then sent the dead body to Civil Hospital, Dadu, for post-mortem examination through P. C.
Mohammad Nawaz. He examined prosecution witnesses Hashim, Shafi Mohammad, Mst. Asiat, Ghulam Qadir and Sher Mohammad and handed over the papers to S. H. O. Wazir Ali, who came there. The chemical analyser found the earth stained with human blood. The accused appellant was absconding and on 3April, 1977 Abdul Razzak, S. H. O., Dadu, received spy information that the proclaimed offender Ishaq Panwhar, who was required in the murder case was taking refuge with one Imam Bux Machhi. He took police staff and mashirs Mohammad Siddik and Mohammad Mehrab surrounded the house of Imam Bux Machhi near village Moonder. After gun battle the accused and Imam Bux Machhi were arrested and from the possession of appellant one single barrel gun was secured. One country-made pistol and 3 S. G. Cartridges were secured from Imam Bux Machhi. Abdul Razak S. H. O., brought the appellant 2nd Imam Bux to the Police station where he lodged report of a case under sec--tion 307, P. P. C. And under the Arms Ordinance against them.
Rukkan police bad taken custody of the appellant for conducting further investigation.
5. Firstly there was the ocular evidence against the appellant of witnesses Ramzan, Hashim and Shafi Mohammad. It is true that the aforesaid witnesses are close relatives of the deceased and therefore can be said to be interested witnesses. At the same time it cannot be over--looked that the aforesaid witnesses are also related to the accused appellant and there is no allegation of any enmity of the witnesses with the appellant. The appellant in his statement before the Court suggested that the prosecution witnesses were deposing against him because they are retted inter se. However as already stated they are also related to the appellant and the mere fact that they could be said to be interested witnesses being related to the deceased is not sufficient to discard their evidence as hey are natural witnesses who have fully explained their presence at the Scene of offence at that time. It has come in their evidence that while the deceased was making bricks, Ramzan, Shafi Mohammad and Hashim were digging earth to collect it in a ditch which was just a few paces away from the place where deceased Shamsuddin was standing and they had clearly witnessed the entire incident. The evidence of these witnesses has stood the test of cross- examination and is wholly reliable. There is no particular number of witnesses required fur proving facts even in a murder case and evidence has to be weighed and not counted. The evidence is corrobora--ted by the evidence of Dr. Nawaz Ali who made the post-mortem examination of the body of the deceased. He found 5 injuries on the person of the deceased but injuries Nos. 1 and 2 which are main injuries were caused by fire-arm like gun or country-made pistol. The doctor has stated that the injuries were result of more than one shot and fire-arm was discharged from a short distance of 3 to 6 feet. Excluding the exit wounds the main wound was in an area of 4" x 3" on the middle of left parietal region. The other wound is --" in diameter on the front of upper part ofrd right side of chest. Since the weapon used was a country made pistol in which cartridge had been used the possibility) of the pellets spreading out or hitting other parts cannot be scored out and the evidence of the eye-witnesses has been supported in that they had stated that the pistol was fired first at the head and then at the chest of the deceased.
6. The evidence of the eye-witnesses is fully corroborated by the evidence of Ghulam Qadir, who is the maternal uncle of the appellant and cousin of the deceased. He has stated that on hearing pistol fire and cries he had gone to the scene of offence followed by Sher Mohammad and many others. He had seen deceased Shamsuddin lying dead with pistol shot injuries and Ramzan, Hashim and Shah Mohammad told them 'bat the appellant had murdered Shamusddin and run away. He further corroborates the testimony of the eye-witnesses by stating that they had told him that the appellant was armed with country-made pistol and he fired on Shamsuddin. This witness like the other witnesses common relative of the appellant as well as the deceased. His sister married to complainant Ramzan and Ramzan's daughter is the were his brother. However for reasons already given since no allegation enmity against any of these witnesses has been made or suggested these is no reason to disbelieve their testimony which on the contrary support the prosecution case as they would otherwise have been reluctant or unwilling to implicate such a near relative in a case of murder.
7. There is evidence on record of S. H. O. Abdul Razak, about the appellant having absconded and the manner in which the appellant was arrested alongwith Imam Bux Machhi. There is also evidence of Din Muhammad, clerk of the Sessions Court, who produced the record to show that an order under section 512. Cr. P. C. Had been passed against the absconding appellant and the case kept on the dormant file after examining 5 witnesses. The evidence of Dr. Ali Nawaz is also corrobora--tive oft a evidence of eye-witnesses with regard to the time of incident. According to him the incident could have taken place between 8 a.m. And mid-day time. Complainant Ramzan has given the time of incident at about11 a.m. P. W. Hashirn has also given almost the same time of the incident. P. W . Shafi Mohammad stated that Mst. Asiat had brought meals at 11 a .m. And/ 10 minutes thereafter they had heard challenge from the south.
8. It was contended on behalf of the appellant before the learned Sessions Judge that non- examination of Mst. Asiat, an eye-witness raises presumption under section 114 of the Evidence Act, against the prosecution. The D. P. P. Had given up the witness as according to him she was very old and sick person and not able to move freely. She is the mother of the deceased and there is no reason not to accept the explanation of the Public Prosecutor for giving her up.
9. With regard to motive all the eye-witnesses have stated that the appellant had told the deceased before firing the pistol at him that, he has been making false allegations that he was a thief and had been maligning him before the police and the Nekmards. Since the evidence of the aforesaid eye witnesses is found wholly credible there is no reason to disbelieve them with regard to the evidence given by them about motive.
10. Under the circumstances stated the sentence of hanging given by the Sessions Judge, Dadu is hereby confirmed and the appeal preferred by the accused appellant is dismissed.