G. M. SHAH, J.---.The four appellants herein, namely Jumo son of Khawand (38), Rab Nawaz son of Soomar (23), Sadullah son of Khawand (26) and Khawand son of Mubarak (45) have been convicted under section 302 read with 34, P. P. C. By the learned Sessions Judge, Jacobabad, of committing the murder of Mst. Fatima, in furtherance of their common intention, by firing from the guns and sentenced each of them to surer rigorous imprisonment for life and to pay a fine of Rs.
500 or in default thereof, to suffer further R.I. For four months. Appellants Jumo and Sadullah were additionally convicted under section 13-D of the Arms Act and each of them was sentenced to suffer R. I. For two years. Substantive sentences of imprisonment, were directed to run concurrently, whereas the sentence in default of payment of fine, to run consecutively. In case, the amount of fine was paid, half of it was to be paid to the father of Mst. Fatima as compensation under section 544-A of Cr. P. C.
2. The learned trial Judge had awarded the lesser sentence of Imprisonment for life, than the capital sentence, on the ground that the case of the prosecution itself was that the deceased Mst.
Fatima W/o Arbelo was admittedly, on illicit terms with one 13ahar Shah and the appellants Jumo and Sadullah, who had fired the shots and had killed the deceased, being the cousins of Arbelo, had the motive for committing the murder of Mst. Fatima, which was a mitigating circumstance.
3. All the appellants have filed this appeal against the judgments of conviction and sentence, under section 302, P. P. C. Read with section 34, P. P. C., and appellants Jumo and Sadullah have also appealed against their conviction and sentence under section 13-D of the Arms Act.
4. The background, which had given rise to the present case, is that the deceased Mst. Fatima was the were of one Arbelo, who lived in the village, about 15 to 20 miles away from the place of occurrence and it comprised of 10-15 houses. About four months before the occurrence, Arbelo had seen the deceased, having sexual intercourse with one Bahar Shah and she was declared `Kari'.
Bahar Shah also lived in the same village of Arbelo. As a result of the allegations, the deceased was apprehensive and in order to save herself, had left her husband and came to live with her father Sahibdido, who is blind and her mother Mst. Shafooran. Mst. Nooran is maternal grand mother of the deceased, Mst. Fatima, being the mother of Shafooran. Mohammad Siddique (P. W. 5) is the brother of Mst. Nooran. Mst. Rani is the were of P. W. Kamal, who is son of Mst. Nooran. The houses of Mst. Shafooran, Mst. Nooran and Mst. Rant are separate; but are located inside the same common courtyard, which is an open space. All the fonr appellants are related inter se. They are also related to the deceased and her family member. Appellant Jumo and Sadullah are brothers. Appellant Khawand is their father, whereas appellant Rab Nawaz is son of the maternal cousin of appellant Sadullah. Appellants Jumo and Sadullah are also cousins of Arbelo, husband of the deceased Mst.
Fatima. They lived in the same village, where the deceased had come to live with her father Sahibdino, at a distance of about 50 paces only. Appellant Khawand is the brother of Sahibdino and brother-in-law of Mohammad Siddique (P. W. 5) as his sister Mat. Begum was married to Mohammad Siddique, whom he had divorced about 5-6 years back. After the deceased Mst.
Fatima came to live with her parents, the appellants were looking for an opportunity, as they wanted to kill her, being the 'Kari', with Bahar Shah.
5. On 10th October, 1976, at about sunrise time, Mohammad Siddique (P. W. 5) had gone to the house of his sister Mst. Nooran and her husband Jamal for taking some milk. Mst. Rant was also sitting there. After some time, Mst. Shafooran and the deceased also came there. All the ladies were making "Sagis" (headtails). The deceased and Mst. Rant sat together and were making the -- -Sagis". At about 10 a. m. The four appellants entered the house of Mst. Nooran. Appellants Jumo and Sadullah were armed with guns. Appellant Rab Nawaz had a hatchet in his hand, whereas appellant Khawand Bux was carrying a lathi. Appellants Jumo and Sadullah challenged the deceased as `Kari'. They fired from their guns and the shots hit her and she fell down crying. On the cries 'raised by the inmates of the house, the appellants ran away, firing in the air. Mohammad Siddique immediately arranged for a tonga and carried the deceased, with the help of Kama], Shaft Mohammad and Mst. Shafooran, to the Thul Police Station which is hardly three furlongs away from the vardat. The deceased was alive and conscious, but due to shock and pain of the injuries, was not able to give a statement. Mohammed Siddique lodged the F. I. R., which was taken down by A. S. I. P. Abdul Sattar, who was then, the incharge P. S. Thul. The deceased was immediately sent to the Thul Dispensary for examination, treatment and certificate, where she reached at about 10-50 a. m. On the same day. Dr. Mohammad Alain was the M. O. Thul, who examined the injuries, which were about an hour old. The deceased was conscious and could talk.
The doctor, therefore, informed the S. H. O. Police for making arrangements for recording her dying declaration. A. S. I. P. Abdul Sattar wrote a letter to the Head Munshi and Second Class Magistrate P.
W. Abdul Aziz. The A. S. I. P. Then himself took the H. M. & SC. M. Abdul Aziz to the Hospital, there, he in presence of the M. O. Dr. Mohammad Alain, recorded the (lying declaration of the deceased at about 11-30 a. m The deceased was all the time conscious, when her dying declaration was recorded in presence of the Medical Officer. After the dying declaration was completed, which took about 1 to 3 minutes, it was signed by the Medical Officer, certifying that the injured was in proper senses while making the dying declaration (Exh. 10). The deceased had fainted only about 10 minutes before her death at 12-35 p. m. In the dispensary.
The dying declaration reads as under:- "I was sitting in the house of my maternal grand father Jamal, alongwith my maternal grand mother Noori and maternal aunt---(mami) Mst. Rani, when Shadoo (Sadullah), Jumo, Raboo (Rab Nawaz) and Khandoo (Khawand) entered the house. Shadoo and Jumoo were armed with guns.
Raboo was armed with a hatchet and Khandoo was armed with a lathi. Jumo and others opened gun fire at me whereupon, I fell down. Previously there was allegation of `Karaah' against me with Syed Bahar Shah. Jumo end Shadoo had opened fire at me."
6. The place of occurrence was visited by the A. S. I. P. Abdul Sattar at about 12 noon, on the same day (10-10-76) in presence of the mashirs Kamaluddin and Shafi Mohammad. 1t was in the courtyard. In front of the door of the house of Jamaluddin. A cot was lying at the spot, on which the deceased was stated to be sitting and making the "Sagies" when she was fired upon. Blood was found on the cot, as well as, on the ground, underneath the cot. White beeds and blue-- coloured thread balls for making the `Sagis', were also found on the cot, and one of them was blood-stained.
Eleven pellets were lying at the vardat and one empty shell of a -12 bore cartridge was lying at a distance of only one pace away. Another empty shell, also of a -12 bore cartridge, was lying at a distance of 5 paces away. Two more empty shells of -12 bore cartridge were lying at a distance of 15-20 paces away towards the west of the `vardat'. All the blood-stained articles, two wads of cartridges, 11 pellets and four empty cartridge shells, were secured and sealed at the spot by the Police under memo. Exh.
22. Statements of witnesses Mst. Shafooran, Mst. Nooran, and Mst. Rani were recorded on the same day. The Police raided the house of the appellants in order to arrest them; but they had absconded. On 8November, 1976, appellants Jumo and Rab Nawaz had surrendered at the police station at about 12 noon and were taken into custody under memo. Exh.
31. Only earth was sent to the Chemical Examiner, who gave his report, that it was stained with human blood. On 26December, 1976 A. S. I. P. Ahmed Hayat had arrested appellant Sadullah, near the railway station, which is near his house. On 31December, 1976, appellant Khawand Bux was arrested by Mohammad Ibrahim, the S. H. O. P. S. Thul. The case was sent up to the Court for trial, after the usual investigation was completed.
7. The autopsy on the deceased, was conducted on 10th October, 1976 at about 2-30 p. m. And was completed at about 3-30 p. m. By Dr. Mohammad Alam. Medical Officer, Thul. Following external injuries were found on the dead body:--
(1) One oval punctured lacerated wound. Wound of entrance charring present 3' in diameter on the postereo lateral aspect of the right elbow-joint, and on the lower 1/3rd right arm, and on the upper 1/3rd of the forearm in the middle.
Blackening on the sides of all the wound and forearm were also present, with fracture of the bone, through and through, with exit wound 2" in diameter on the postereo medical aspect of the right elbow-joint. The exit and entrance wounds were 1" apart from each other.
(2) Nine (9) oval punctured lacerated wounds of entrance, each half centimeter in diameter, each half an inch apart from one another on the upper 1/3rd lateral aspect of the right side abdomen and on the lower ;/3rd on right side chest.
(3) Eight (8) oval punctured lacerated wounds of exit, each half centimeter in diameter, 1" apart from one another, on the lateral aspect of the fore abdomen left side.
(4) One oval punctured lacerated wound of entrance 2--" in diameter. Charring present on the lower 1/3rd left arm on the antereo lateral aspect with fracture of the bone through and through on the postereo medial aspect, the exit and entrance wounds were 1" apart from each other.
On internal examination of the body, the doctor found the following injuries:- Viz. 10 and, 11th ribs on the right side were fractured-chest cavity was full of blood. Lower portion of the right lung was ruptured. Stomach was found containing semi-digested food particles and was punctured. Small, as well as, large intestines, liver on both the sides, spleen and left side kidney, were all punctured. There was fracture of both humerous and radious and ulna bones of right and left sides were present.
8. According to the doctor, the cause of death was as a result of the above-mentioned injuries. The three injuries were the result of the three shots fired from a gun. The injury No. 2 was individuallyth th st th and rest of the injuries were collectively sufficient, in the ordinary course of nature, to cause death.
The death had taken place, about two hours after the last meals were taken. The time between the injuries and the death was about 2--hours. One pellet was recovered from the dead body, which was given to the Police.
9. The appellants had deneid having any hand in or knowledge of the murder of Mst. Fatima. All of them had stated at the trial Court that Arbelo, husband of Mst. Fatima, was not the cousin of appellant's Jumo and Sadullah and further contended, that they had no knowledge about the facts relating to the motive in the case; but admitted that at the time of occurrence, the deceased was living with her parents. In addition, appellant Jumo had stated that Mst. Begum was the sister of his father, appellant Khawand. She was married to first informer Mohammad Siddique. He further added that before the occurrence, Mst. Begum had left Mohammad Siddique, who had filed a Civil Suit for restitution of conjugal rights, against Mst. Begum, his father Khawand and himself, which was subsequently withdrawn by Mohammad Siddique. As a result, Mst. Begum was given in marriage to some one else, therefore Mohammad Siddique and his party were annoyed with the appellants. It is further contended by Jumo that his father Khawand, had filed a criminal case against Mohammad Siddique, husband of Mst. Haroon, sister of Mohammad Siddique and 3 others who were convicted. (It may be clarified that there was no case against Mohammad Siddique the first informer). He also stated that Mohammad Zaman cousin of P. W. Mohammad Siddique had filed a robbery case against his father appellant Khawand and himself (Jumo), in which they were acquitted. He had also produced Exh. 40 surety bond, which was an undertaking given by P. W.
Mohammad Siddique, when he was given the custody of Mst. Fatima deceased, who after the allegation of ---Karanh' against her, had apprehended great danger to her life. Appellants Rab Nawaz and Khawand had adopted the same statement of Jumo, and appellant Sadullah further added that appellant Jumo and himself were residing on their own land, which was allotted to them as per Exh. 43 showing that they were not residing in the village, as was alleged. None of the appellants had led any evidence in defence.
10. The question, whether Mst. Fatima had sustained fire-arm injuries and had died on account of them, is not disputed. The evidence of the eye-witnesses Mohammad Siddique (P. W. 5), Mst.
Shafooran (P. W. 6), Mst. Nooran (P. W. 7) and Mst. Rani (P. W. 10) as well as the evidence of Dr. Mohammed Aslam (P. W. 3) has established that the deceased had received gunshot injuries on her person, which were sufficient, in the ordinary course of nature, to cause her death.
11. The only question before us is whether the appellants Jumo and Saudullah had caused the injuries by firing from their guns and how far appellants Rab Nawaz and Khawand had acted in furtherance of the common intention of all of them, for commission of the alleged offence. The prosecution had relied upon the following pieces of evidence in the case:-
(i) Ocular evidence of 4 eye-witnesses.
(ii) Dying declaration.
(i.e) Motive.
(iv) Medical evidence.
12. The case against the appellants mainly rests on the ocular evidence. The eye-witnesses examined in the case aye the first informant Mohammad Siddique, Mst. Shafooran who is the mother of the deceased, Mst. Nooran who is mother of Mst. Shafooran and Mst. Rani w/o Kamal.
13. The evidence of the first informant Mohammad Siddique, Mst. Shafooran, Mst. Nooran and Mst.
Rani is to the effect that on the day of the occurrence Mohammad Siddique had gone to the house of his sister Mst. Nooran after sunrise, where Mst. Nooran and Mst. Rani were sitting in the house.
After some time, the deceased and her mother Mst. Shafooran, also came there. The ladies sat down to make the "Sagies". At about 10 in the morning, all the four appellants entered the house of Mst. Noori. Appellants Jumo and Sadullah were armed with guns; whereas appellant Rab Nawaz had a hatchet in his hand and appellant Khawand was carrying a lathi. Appellant Jumo, while challenging the deceased, being Kari, he and appellant Sadullah fired from their guns at the deceased from a close range, which hit her and she fell down. All the inmates of the house raised cries for help; but none came to help, at that time. The appellants then ran away.' The first informant Mohammad Siddique, made arrangements for a tonga and took the injured to the Police Station Thul and lodged the Report.
14. The learned counsel for the appellant, Mr. Mohammad Hayat Junejo has assailed the evidence of the eye-witnesses on that ground that their testimony being of interested nature and clothed with hostility, cannot be relied upon, unless corroborated by independent piece of evidence of unimpeachable character. He has argued that the first informant Mohammad Siddique did not reside in the same house of Jamal and Mst. Nooran. It is further contended that the dying declaration of the deceased also does not mention his name, which go to indicate that Mohammad Siddique was not present at the time of occurrence and he has been introduced in the case subsequently. As regards the other eye--witnesses, who are all ladies, it has been argued that none of them was injured, in spite of the fact that the deceased was fired upon from a cart-- ridge of .12 bore, the pellets whereof, must have spread and injured at least Mst. Rani who was sitting on the same cot. As a result of going through the entire evidence and hearing the criticism offered by the learned counsel, we are of the opinion that the contentions raised by the learned counsel have no substance. There is no doubt that the deceased Mst. Fatima was closely related to Mohammad Siddique the first infor--mant, as well as, other P. Ws. Mst. Shafooran, who is her mother, Mst. Nooran, mother of Shafooran and Mst. Rani. We are satisfied that their presence in the house of Mst. Nooran and her husband Jamal, was natural as they were present in their own house, where the occurrence had taken place. Mohammad Siddique has testified that he had gone to the house of his sister Mst. Nooran, at about sunrise time and was present, when the occurrence took place at about 10-00 a. m. In the morning. The presence of P. Ws. Mst. Nooran and. Mst. Rani, as well as, Mst. Sharifan at the place of occurrence is not unusual. The houses of all these women are though separate but are situated in the same courtyard. All these eye--witnesses have further testified that the deceased Mst. Fatima and her mother Mst. Shakooran had also come to the house of Mst. Nooran, after some time, and were busy in making the "Sagies". This fact is supported by the circumstance of blood having found on the cot and underneath it. The fact of the deceased being injured by fire-arms---------., is also supported by the medical evidence. The house of Mohammad Siddique, first informant is only about 25 paces away from the house of his sister Mst.
Nooran. He has testified that in the morning, he had come to take milk from the house of his sister, which fact is also admitted by Mst. Nooran in her cross-examination. We further find that the F. I. R.
Which was lodged by Mohammad Siddiqu3 gives the time of 10-30 a.m., when it was recorded which shows that Mohammad Siddique was present, who had admittedly brought the deceased after she was injured, in a tonga, to the police station. If Mohammad Siddique was not present at the place of occurrence, he could not have been able to lodge the report within half an hour of the occurrence, when the vardat is stated to be only three furlongs away from the police station.
According to the medical officer, the time of the examination of the deceased has been given as 10-50 a.m., wherein, it is shown that the injuries on the person of the deceased were about one hour old. If this is so, the occurrence could have taken place at about 10-00 a, m. The subsequent sequence of events suggest that Mohammad Siddique was present at the time of occurrence, who after the deceased was injured, had promptly taken her to the police station first, and then sent her through the police assistance, to the hospital.
15. While perusing the evidence of the other witnesses, who are all ladies, we are clear in our mind that their presence at the spot also cannot be doubted, as Mst. Nooran was present in her own house, where Mst. Shafooran had come along with her daughter, the deceased and where Mst.
Rani was also present. In the cross-examination of all these women wit--nesses, nothing has been brought out of material importance, to discredit their version, of being the eye-witnesses.
16. Mst. Rani was stated to have suffered paralysis and was unable to speak, soon after the occurrence. After she had recovered, she was examined in Court on 11-1-1978. The learned trial Judge had put searching questions to her, to find out, if she could understand the questions, hear the proceedings and would be able to speak. The learned Judge was satisfied that she was able to speak and could give the statement in the Court. She was examined, as well as, cross-examined at length. She had fully implicated the appellants and her version has not been shaken to discredit her testimony.
17. It has next been argued by Mr. Junejo that all the witnesses are hostile to the appellants, who are interested inter se and their version should be rejected, unless it is corroborated in material particulars. All the four eye-witnesses have admitted their relationship inter se, as well as, with the deceased. The alleged hostility of the witnesses with the appellants is not shown to be such which would persuade the witnesses to falsely implicate the appellants and save the real culprits, who had committed the crime during the day time. It is admitted by Mohammad Siddique, the first informant that the deceased Mst. Fatima had filed a complaint before the Head Munshi against her husband Arbelo, his father and brother. She was apprehensive of them, after she was declared `Karl' by her husband, Appellants Jumo and Saadullah are stated to be cousins of Arbelo, husband of the deceased. In the face of such an assertion, the appellants had done nothing, except offering a bare denial that Arbelo was not their cousin, If the appellants were involved falsely due to enmity, then the first person who would have been named, as an assailant would have been Arbelo, the husband of deceased Mst. Fatima, his father and the brother, The documents filed by Jumo are, more or less, admitted by the first informant Mohammad Siddique. Exh. 35 is a plaint in the suit filed by Mohammad Siddique, who had subsequently withdrawn it as per Exh. 36, The plaint in the civil suit was filed by Mohammad Siddique against his were Mst. Begum (sister of Khavand), appellant Jumo, his father Khawand and others in the year 1964. The suit was for restitution of conjugal rights which Mohammad Siddique has withdrawn in the same year (1964). Mst. Begum wag divorced by Mohammad Siddique. There was no reason, therefore, for Mohammad Siddique to develop enmity with the appellants. It would be on the contrary the appellants, who would have had reason to be hostile to Mohammad Siddique. However the filing of the suit and its withdrawal, took place, as far back as 1964, much prior to the occurrence. According to the evidence, the appellants and the witnesses were on visiting terms. Exh. 37 filed by Jumo is the list of witnesses in the plaint. Exh. 38 is a judgment, in appeal, in a case, wherein Mohammad Siddique was not an accused. That appeal was decided in 1965, and had no direct bearing on the instant case, Likewise Exh. 39 relates to the case against the appellants Jumo and his father Khavand, which was filed by one Zaman, said to be the cousin of Mohammad Siddique in the year 1964, which also does not directly concern the first informant Mohammad Siddique. The occurrence in the instant case took place on 10th October, 1976, when all the past differences, between the parties, were not seriously taken and they had continued visiting each other. No direct connection of the first informant Mohammad Siddique has been established against the present appellants to persuade us to discredit the version of the eye-witnesses.
18. The next piece of evidence criticised by Mr. Junejo, is the dying declaration, which was recorded at 11-30 a. m., and according to the Medical Officer Mr. Mohammad Alam it would have, hardly, taken 1 to 3 minutes. In addition to the eye-witnesses, Dr. Mohammad Alain has testified that injuries sustained by the deceased were an hour old. At the time of examination, when he had informed the S. H. O., Thul, for recording of her dying declaration. The deceased was found, by the Medical Officer, to be conscious all the time, when her dying declaration was recorded by the Head Munshi and IInd Class Magistrate Abdul Aziz. After the dying declaration was completed in presence of the Medical Officer, the doctor had signed it certifying that the deceased was in proper senses, at the time, when she had made the dying declaration. The Head Munshi P. W. Abdul Aziz, who had recorded the dying declaration, has also testified that he had taken down the dying declaration of the deceased, which was taken down by him, in question and answer form, and the deceased had stated that when she was sitting with her maternal grand mother Mst. Nooran, and maternal aunt Mst. Rani, in the house of her maternal grand father Jamal, the appellants had come inside the house, where appellants Jumo and Saadullah had fired from their guns at her and she fell down. She further stated that since she was suspected to be on illicit terms with Bahar Shah, she was fired upon and killed by Jumo and Saadullah. About the remaining two appellants Rab Nawaz and Khavand, she stated that the former had hatchet in his hand, whereas the latter was carrying the laths in his hand. The Head Munshi has further testified that he had read over the dying declaration to the deceased and had got her right thumb impression on it. It is further deposed by the Head Munshi that the Medical Officer Dr. Mohammad Alam had also signed the dying declaration in token of its having been made in his presence and was correctly recorded. In view of this evidence, we find no reason to disbelieve the dying declaration, which has been corroborated by the ocular testimony of the eye-witnesses and supported by the medical evidence and motive. It is true that though the dying declarations have a degree of sanctity under the law, being the last statement of the dying man, but we have, in view of the circumstances of the case and the back ground of the family, assessed the entire evidence to exclude any false implication of innocent persons. The E. I. R. Was lodged within hall' an hour of the occurrence, which took place during the day time. There was no mistaken identity. The motive was also disclosed and the names of the appellants, assigning them specific parts are disclosed in the F. I. R. The injuries sustained by the deceased are supported by the medical evidence and are consistent with the eye witness-account. We, therefore, find no reason to disbelieve the dying declaration, which had a direct bearing on the Merits of the case.
19. The learned counsel has then criticized the motive and bas contended that it is rather strange that instead of Arbelo, husband of the deceased, the appellants should have take upon themselves to avenge the family honour and had killed the deceased, when they had not touched her paramour Bahar Shah. According to the prosecution case, the deceased was declared Kari, and consequently, had left her husband and had sought protection of her parents, lest she was murdered. She was declared Kari, only about four months before the occurrence. Her husband Arbelo was living about 15 to 20 miles away from the house of the parents of the deceased, whereas the appellants were residing in the same village. According to the testimony of Mohammad Siddique, the deceased was seen having sexual intercourse with Bahar Shah and she had, therefore, left her husband, in order to save herself and had taken the shelter of her parents.
The appellants though, were on visiting terms with the witnesses, but were looking for an opportunity to kill the deceased, who had disgraced their honour and had an affair with an outsider. The fact of motive is mentioned in the F. I. R., which could not have been thought out at the spur of the moment. The dying declaration also discloses the same motive, which has been consistently testified by the eye-witnesses. We are satisfied that the evidence on the point of motive is reliable and trustworthy.
20. Lastly is the medical evidence which provides sufficient corroboration to the eye-witness account, as well as, dying declaration. We, as a result of the perusal of the entire evidence are satisfied and agree with the findings of the learned Sessions Judge, that the case against the) two appellants Jumo and Saadullah has been proved beyond all reasonable doubt.
21. So far as the evidence against Rab Nawaz and Khavand is concerned, we find that except their presence at the place of occurrence, when Rab Nawaz is stated to be carrying a hatchet and Khavand with a lathi, nothing has been deposed, to indicate or suggest, that they had done any thing, in furtherance of the common intention of the appellants. They had not said a word, at the time of occurrence, nor had used their weapons, to any manner whatever. Except their presence at the Vardat, there is nothing against them, to show their participation in the commis--sion of the alleged crime, We would, therefore, give them the benefit of the reasonable doubt, accept their appeal and acquit them. They shall be set at liberty forthwith, if not required in any other case.
The appeal of Jumo and Saadullah, for the foregoing reasons, is dis--missed, as we are of the opinion, that the prosecution has fully established their guilt beyond all reasonable doubt.