GHAUS ALI SHAH, J.--This appeal under section 410. Cr. P. C. Is directed against the judgment dated 16-1-1978, of the learned Additional Sessions Judge, Dadu, whereby he convicted the appellant under sections 302 and 452, P. P. C. And sentenced him on the first count to imprisonment for life and a fine of Rs. 5,000 or in default of payment to undergo R.I. For six months while on the second count to suffer R. I. For three years.
2. The brief facts of the case are that one Mithoo Khan son of Fakeer Muhammad resident of village Mithoo Babar Taluka Khairpur Nathan Shah of District Dadu, lodged a F. I. R. On 19-6-1975, at 11-30 a.m. At Police Station Khairpur Nathan Shah to the effect that he was originally residing in village Shadan Taluka Johi from where he alongwith his other brothers shifted and settled in village Mitho Babar where he was working as "Hari" of Wadero Haji Allah Takhio Khan. He has a son by name Ghulam Nabi aged about 18/19 years and four daughters out of them he got his daughter Mst.
Shahar Bano married to Kamaluddin son of Haji Ghulam Qadir, his maternal uncle about 10/12 years back. Kamaluddin is resident of village Shadart Taluka Johi. In exchange for hand of his daughter Kamaluddin promised to get a "woman" for the marriage of his son from somewhere else.
Mst. Shahar Bano gave birth to one daughter during this period of 10/12 years but she died after one year. The complainant used to ask his son-in-law Kamaluddin to arrange for a "woman" for marriage of his son but he used to avoid the same and did not arrange such woman for this purpose. It was about a year back when his son-in-law Karnaluddin beat Mst. Shahar Bano and turned her out from his house and she came to the house of the complainant as a result of it and started residing with him. Kamaluddin, his son-in-law used to reside in village Shadan Taluka Johi.
Mst. Shahar Bano filed a suit for dissolution of marriage in the Court of Civil Judge, Dadu, which was decided ex parte as Kamaluddin did not attend the Court. Mst. Shahar-Bano was allowed to pass her life at her own choice and she started residing with the complainant in the village Mithoo Babar. Kamaluddin used to ask the complainant and other respectable persons to get back his were Mst. Shahar-Bano for which he was told by the respectable persons to get a "woman" for marriage as per his promise and thereafter he would get Mst. Shahar Bano. He was displeased on account of it. It was on 29-6-1975, when at about 1-- "pahar" after sun rise, the complainant, his brother Shah Muhammad and his son Ghulam Nabi were sitting in their house whereas his 'daughter Mst. Shahar Bano was sitting in the courtyard of his house when all of a sudden there was a gunshot report in their house. The complainant, his brother Shah Muhammad and his son Ghulam Nabi came out of their house on this and saw that Kamaluddin son of Ghulam Qadir Soomro (accused/appellant) was standing inside the alley of their house and was armed with a single-barrelled gun. Mst. Shahar Bano was raising cries in the courtyard and was bleeding from her mouth. Kamaluddin again loaded the gun with cartridges and fired another direct shot at her, which hit her on arm-pit near her left breast. She cried as a result of it and fell down. The complainant and the other gave "Hakkal" to the accused and told him not to commit the murder but he gave "Hakkal" in return to be away else he would kill them. They stood there silently due to fear. He loaded the gun with third cartridge, came near her and fired the same at the waist of Asst.
Shahar Pano Kamaluddin in the meanwhile loaded the gun with fourth cartridge, went near the alley, fired a direct shot at Mst. Shahar Bano which hit her on her left wrist. He thereafter went out of alley and ran away towards South. The complainant and others went to Mst. Shahar Bano after the accused left and found her bleeding from the injuries. They took her and laid her down on a cot and after a short while she died. The other people of the village arrived there in the meanwhile and the complainant after leaving his brother Shah Muhammad, and his son Ghulam Nabi for keeping watch over the dead body went to "otak" of Allah Rakhio Khan, the respectable person of the village, who was not there and had gone to Daud side. He thereafter left to lodge such report with the police. The motive for the offence was shown that Kamaluddin murdered Mst. Shahar Bano by firing direct gunshots at her over matrimonial dispute.
3. The F. I. R. (Exh. 21) was recorded by Muhammad Shah, A. S. I. P. Khairpur Nathan Shah Police Station, who proceeded to scene of offence which w4s: situated in the house of the complainant in village Mithoo Babar inspected the place where dead body of Mst. Shahar Bano was lying on the cot. He secured blood-stained earth and sealed it. He also secured four empty cartridges from the house and sealed them and prepared such niashlrnatna Exh. 13, in presence of mashirs, Ghulam Mustafa and Muhammad Saleh. He also prepared inquest report Exh. 14 of the dead body which was sent by him for post-mortem examination. He then recorded the statements of P. "Ns. Shah Muhammad, Ghulam Nabi and Chhutto Khan. He on 2-7-1975, arrested Kamaluddin (accused/appellant) duly armed with a gun from Chhandan Mori of Johi Canal and prepared such mashirnama Exh.
10. It was the complainant who had pointed out the accused to him. He secured the gun from him and three live cartridges from the pocket of his shirt. He sealed the gun on the spot which was loaded with a live cartridge. He prepared such a mashirnama Exh. 10 in presence of mashirs Muhammad Ismail and Muhammad Ramzan. He then took the accused and property to police station where he interrogated the accused about the licence of the gun and on his failure to possess such licence he registered a case against him under Arms Ordinance. He on 3-7-1975, produced the accused before Mukhtiarkar & F. C. M., Khairpur Nathan Shah for recording his confession. It was on 5-7-1975, when one Khair Muhammad produced the gun licence at the Police Station which he secured and prepared such mashirnama Exh.
22. He then recorded the statements of Amanat Khair Muhammad, Mir Muhammad and Hamza. He got statements under section 164 Cr. P. C. Of P. Ws. Shah Muhammad and Ghulam Nabi recorded before the Mukhtiarkar & F. C. M., Khairpur Nathan Shah on 7-7-1975. He thereafter handed over the case papers to S. H. O.
Abdul Razzak, who challaned the accused in the Court. The blood-stained earth, gun and the empty cartridges were sent to the Medical Examiner and Ballistic Expert respectively by the S. H. O.
And their reports have been produced as Exhs. 23 and 24.
4. The prosecution case is mainly based on ocular testimony, corrobora--tive, evidence, retracted confession, recovery of gun from the accused, empty cartridges from the vardat, Ballistic Expert's report, medical evidence and the evidence of motive.
5. The accused however denied all the allegations against him and claimed that his confessional statement was at the instance of police as he was injured and detained by police for four days. He also produced a true copy of an affidavit Exh. 33 given by Mazhar Khan in family suit filed by Mst.
Shahar Bano.
6. There is no dispute that deceased Mst. Shahar Bano did die on the day and place of incident as stated in the F. I. R. Due to gunshot injuries. The question therefore for determination is whether the offence was committed by the appellant Kamaluddin or somebody else? In this regard prosecution led ocular evidence, corroboratory evidence of P. W. Chutto, retracted confession, recovery of empties from the place of incident and securing of unlicensed gun from the possession of the appellant, Ballistic Expert's positive report, medical evidence and evidence of motive.
7. Before coming to the ocular testimoney, it is necessary to mention that the complainant Mithoo who was also an eye-witness died before the trial of this case proceeded and therefore was not examined. P. W. 1 Shah Muhammad, who is brother of the complainant and P. W. 6, who is son of the complainant have stated before the trial Court that Mst. Shahar-Bano (deceased) was married to the accused/appellant; She used to live in the house of the accused after marriage at village Shadan Taluka Johi. In exchange for her hand, the accused had agreed to provide a girl for marriage to Ghulam Nabi but h. Ultimately failed to provide any girl for marriage to Ghulam Nabi.
The accused/appellant had a daughter from the wed-lock who subsequently died. Mst. Shahar Bano was maltreated by the accused/appellant and thrown out of her house. She thereafter started living in the house of her father and then filed a suit for dissolution of her marriage which was decreed ex parte as the accused/ appellant did not contest it. The true copy of such decree Exh. 7 has been produced by P. W. Shah Muhammad. Mst. Shahar Bano continued to live in the house of her father where both these P. Ws. Used to live together with them even after the abovesaid decree of the Court. Both these P. Ws. And Mitho were sitting in tine house where Mst.
Shahar Bano was also present in the courtyard. It was about 1-- 'Pahar' after sun rise when they heard a fire-arm report. They went out of the room of the house and saw accused/appellant Kamaluddin duly armed with a gun and Mst. Shahar Bano raising hue and cry as site had received injuries on her face. The accused/appellant filed another gunshot at Mst. Shahar-Bano in their presence which hit. Hoe on her right side of her chest. They asked accused not to kill bee but he threatened them of dire consequences in case they approached him. He fired third shot at her waist and she fell down and fourth one hit her on her left wrist, thereafter the accused made his escape good. Mst. Shahar Bano was put on a cot but she soon after succumbed to her injuries. No material contradictions have been brought out by the defence in cross-examination of both the P.
Ws. So as to make their presence doubtful on the scene of offence on the day of incident. They are natural witnesses and their version is true and is being accepted by us.
8. Now we corns to corroboratory evidence of P. W. Chutto. The name of this witness does not find place in the F. I. R. Filed by Mithoo, father of the deceased. We will therefore keep his evidence out of consideration as it does not inspire confidence to the effect if he bad actually arrived on the spot soon after the occurrence.
9. The appellant/accused was arrested by Muhammad Shah S. I. P. Khairpur Nathan Shah on 2-7- 1975, when he was duly armed with gun and such mashirnama Exh. 10 was prepared. He was produced before lair. Abdul Karim Abro, Mukhtiarkar & F. C. M. Khairpur Nathan Shah on 3-7-1975, who recorded his confession after satisfying himself that the confession was being made voluntarily. The accuse has subsequently retracted his confession at the trial but Mr. Abdul Karim Abro Mukhtiarkar F. C. M., Khairpur Nathan Shah, and Muhammad Shah, S. I. P. Have deposed to about his arrest on 2-7-1975, and making voluntary confession on 3.7-1975, before the trial Court.
The relevant portion of the confession of the accused is reproduced as under:- "I am originally resident of village Shadan, Taluka Mohi. I had married my maternal uncle Mitho son of Fakeer Muhammad Soomro's daughter Mst. Shahar Bano, about 8/9 years back. My maternal uncle also used to live earlier in village Sbadan, Taluka Johi but had shifted from there about 5/6 years ago and started living in village Mithoo Babur Taluka Khairpur. Nathan Shah. My maternal uncle took a sum of Rs. 1,000 from me. He got written from me in exchange a female issue and to live with him as his "Ghar Damad". After this marriage, I used to live with my father-in---law. It was about 1-- years ago when people of different castes started visiting the house of my father-in-law and I restrained them but still such strangers continued visiting the house. After this, I went to complaint to our respectable person by name Muhammad Ismail Soomro and to bring back my luggage, from the house of my father-in-law. But our respectable man, was not in the village. My brother Khair Muhammad who also lived in village Shadan was also not present in his house. Then I entered the house of my brother Khair Muhammad during the night and broke open lock of his trunk and committed theft of his licensed gun alongwith 8/9 cartridges and returned to the house of my father-in-law in village Mithoo Babar. It was at about 9-00 a.m. When male members had gone for transplantation of rice and females had gone to wash clothes on bank of a canal and as soon as I entered the house, I found my were Mat. Shahar Bano kissing a stranger. I was provoked. I loaded the gun and in the meanwhile the stranger ran away from other entrance and I under provocation fired two gunshots at my were and then went away."
Though this confession has been retraced at the trial but there are lot of circumstances to corroborate its inculpatory part such as evidence of eye-witnesses Shah Muhammad P W. 1 and Ghulam Nabi P. W. 6, securing of the gun from the accused and positive report Exh. 24 of the Ballistic Expert in respect of the empties secured from the scene of offence to the effect that they were fired from the gun secured from the accused at the time of his arrest. The recovery of the gun stands proved by evidence of Muhammad Shah S. I. P. Who, arrested the accused and secured gun from him. The S. I. P. Has been supported by mashie Muhammad Ismail, who has deposed to as such before the trial Court. The medical evidence is also supporting the factum of firing at the deceased as mentioned in inculpatory Net of his confession.
10. Dr. Abdul Khaliq P. W. 8 has stated before the trial Court, that, "I was working as Medical Officer K.
N. Shah on 29-6-1976, when I received the dead body of Mst. Shahar Bano were of Kamaluddin from K. N. Shah Police Station for post-mortem examination. I started the post-mortem at 6-45 p.m. And finished it at 7-45 p.m. The same day. On external examination I found the following injuries:- "(1) A lacerated gunshot wound 2' in diameter surrounded by multiple pellet wounds of --' in diameter on the back at lumbar region.
(2) A lacerated gunshot wound 4' x 1-- x 1' oz. Left axillarr region.
(3) A lacerated gunshot wound 1' x --' x --' on left lower lip.
(4) A gun shot wound 1--' x -- x '-- on lower 1/3rd of right forearm."
On internal examination I found the following damages:- "3 and 4 lumbar vertebrae were fractured. Spinal cord at 3rd and 4th lumbar vertebrae was ruptured. Abdominal cavity was full of blood. Stomach contained semi digested food. 11 pellets were taken from inside the abdominal cavity and were sent to Police Station, K. N. Shah in a sealed bottle. Rest of the organs of the dead body were found normal.rd th From the external as well as internal examination I am of the opinion that the cause of the death was due to shock and haemorrhage as a result of fire-arm injuries. All the injuries were ante- mortem. Injury No. 1 was sufficient individually to cause the death in the ordinary course of nature.
The death was instantaneous. Time between death and post-mortem was about 8 to 10 hours. I issued such post-mortem note which I produce as Exh. 26 which are same, correct and bears my signature."
It reveals from the post-mortem notes that Mst. Shahar Bano has sustained gun hot injuries which support the prosecution case.
11. Now we come to last piece of evidence i.e. Evidence of motive. This has been deposed to by Shah Muhammad P. W. 1 and Ghulam Nabi P. W.
6. The accused/appellant according to Shah Muhammad P. W. 1 did not visit the house of Mithoo during the twelve months before the occurrence and that he was being asked by his father-in-law to provide a girl in exchange of the hand of Mst. Shahar Banu for marriage of Ghulam Nabi P. W. 6 as promised by him at the time of his marriage. Since he could not manage a hand of it girl in exchange of his marriage with Mst.
Shahar Bano, she filed a suit for dissolution of her marriage which was decreed as ex parte as the appellant did not pursue the matter and instead was trying to get back his were through good offices of Nekmards which did not work up.
12. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant has led great stress on the point that it was a unwitnessed crime as all the male persons of the village were expected to be at their lands at such an hour of the incident. We are not impressed by this contention as the eye- witnesses of this occurrence are not haris only but one of them by name Ghulam Nabi P. W. 6 is a student who is not expected to be working on land when he comes to meet his parents. They being inmate's of the house are natural witnesses. The incident has taken place in the courtyard of the house and there are no circumstances to disbelieve them We therefore accept their evidence as true and natural.
13. The other contention of the learned counsel for the appellant is that there are no injuries on person of any of the eye-witnesses and their relationship is admitted and therefore their evidence requires great caution before believing them. The evidence of witnesses who are inter related is generally rejected if their evidence appeared to be false. But each case is to be considered in its' peculiar circumstances. He has also contended that no attempt of catching hold of the appellant was made when he was loading and unloading the gun. We have considered this aspect of the case and we see no reason as to why real culprits would be substituted by the appellant, accused who is their kith and kin being husband of sister and niece of P. Ws. Ghulam Nabi and Shah Muhammad respectively. The absence of any injury on their person is quite natural as the assailant in this case was with a loaded gun and so much determined to finish Mst. Shahar Bano that he was firing one shot after the other till he became sure that there was no chance of her survival. It is very seldom that any person would risk his own life for some one for whom there was absolutely no hope of saving life by intervening in the matter, and accepting, the risk of sustaining injuries.
14. Mr. Muhammad Hayat has also contended that houses of other persons were also admittedly nearby the house in which the incident has occurred still no independent witness has been either cited or examined by the prosecution in support of testimony of the eye-witnesses who are related inter se. We do not find any force in this contention firstly on the ground that other people very seldom come forward to give evidence and thereby earn animosity of the assailant's side and secondly the time taken in the commission of this offence would be hardly a few minutes and therefore it would be only the inmates of the house who could witness the incident. Moreover the time chosen by the assailant for commission of this offence is such that almost every body in the village would be busy with their own occupation. Therefore absence of any other independent eye- witness in this case is quite natural.
15. The last contention that has been raised before us is that in spite of the fact that other ladies were also living in the house not a single witness has been examined. The suggestion by this contention is again same that it was an unwitnessed crime so much so that even females of the house have not witnessed it, being out of house to wash their clothes, The very fact that Mst.
Shahar Bano has been shot at in the house shows that she was undoubtedly present in the house and had not gone out with other females. Moreover in case even if all females go out of the house, one is always left behind to look after the house and also to prepare the meals for those who go out for work. We therefore do not find any force in this contention also.
16. We have heard Mr. Niaz Ahmed, the learned counsel for the State, who has contended that their being ocular testimony of natural witnesses supported by inculpatory part of the appellant's confession there remains no doubt that it was the appellant who committed this offence. He has also pointed oat that the appellant after committing theft of his brother's gun carte well prepared to commit murder of Mst. Shahar Bano as he was frustrated after Mst. Shahar Bano succeeded in setting decree of dissolution of marriage and there was no chance lett for rue appellant to get her back. He therefore came with stolen gun having no other intention but to kill Mst. Shahar Bano so that she should not live a comfortable life after dissolution of marriage with him. He, has shown us the sketch of scene of offence which does nut show any other entrance to the house where the incident took place except the one which is being used by the inmates of the house. The exculpatory part of the confession and plea that Mst. Shahar Bano was kissing astranger who ran away from other entrance of the house when the appellant was loading his gun is therefore of no consequence. The appellant hag committed the murder under frustration after Mst. Shahar Bano succeeded in suit for dissolution of the marriage. He has met the arguments of the learned counsel for the appellant by submitting that every body loves his own life and the contention that no effort was made to catch hold of the appellant while he was loading and unloading the gun at the scene of offence was not natural as it is very rare that a man with a gun and particularly who has already killed aperson could easily be caught hold of under such circumstances. He has full supported the judgment of the trial Court.
17. We have given our anxious thought to all the contentions of the learned counsel for the appellant and the State. We see no substance in this appeal and dismiss it accordingly.