This appeal under section 410, Cr. P. C. Is directed against the judgment dated 6November, 1978 of the learned II Additional Sessions Judge, Larkana, whereby he convicted the appellant for an offence under section 307, P. P. C. And sentenced him to suffer R. I. For 7 years and to pay a fine of Rs. 3,000 or in default to suffer R. I. For 6 months more. The appellant was also convicted under section 13-D of the Arms Ordinance and was sentenced to undergo R. I. For one year. He has separately appealed against this conviction also. I will dispose of both the appeals by this judgment.
2. The facts of the case are that one Mst. Hidayat Khatoon daughter of Atta Mohammad caste Brohi resident of Qambar Town of District Nawabshah lodged her F. I. R., on 14March, 1976 at 00. IS a.m.
At Police Station, Qambar of District Larkana, which reads as under: "I am residing in Kambar Town with my brother Wahid Bux. Mst. Nazeer Khatoon daughter of Umer Brohi is my `Marot', who was gifted to me by her father Umer from her childhood. On her attaining age of majority, her father Umer had got Mst. Nazeer Khatoon married to one Haji Ali Bux son of Shah Nawaz Sial about seven years back. Haji Ali Bux had already two wives, and Mst. Nazeer Khatoon was under the influence of evil spirit, therefore about four months back she was divorced.
Thereafter Mst. Nazeer Khatoon is residing with me. Sabir son of Mohammad Hassan Chandio resident of Lashkari Chandio, taluka Kambar occasionally used to come in our house as he is our relative. On 2-3 occasions, he had asked Mst. Nazeer Khatoon to keep friendship with him. But she was refusing throughout. Tonight, at 8.30 p.m., I and Mst. Nazeer Khatoon were sitting in our house.
My brother Wahid Bux had gone to bring milk, Sabir came, who was armed with a gun. He immediately after his arrival sat on a cot when we both sat on the ground. He asked Mst. Nazirth th Khatoon to come and sit with him on the cot. She told him that she would not sit with him on the cot. On saying so, we stood up, when Sabir fired the gun and fired two shots at us, the pellets whereof hit on the knee of the left leg of Mst. Nazeer Khatoon, and hit me on the calf of right leg. We raised cries. Upon this Sabir ran away with the gun, and Nazir Khatoon became unconscious and fell down, I found the left leg of Mst. Nazeer Khatoon to be broken and was hanging on the skin. On cries, Arbab son of Ali Mohammad Chandio and (2) my brother Wahid Bux came, they also saw the injuries inflicted to me and Mst. Nazeer Khatoon. I narrated the facts mentioned above to them.
Thereafter, I hang carried Mst. Nazeer Khatoon. Came to lodge complaint that the accused with intention to commit murder opened gun fire at us and has injured us. I lodge complaint, investigation be made."
3. The F. I. R. Exh. 6 was recorded by Ghulam Haider Pathan, A. S. I. Qambar Police Station. There were injuries on person of the complainant as well as Mst. Nazeeran who was accompanying her and was in state of unconsciousness. He prepared such mashirnama Exh. 12 of injuries on person of both of the ladies in presence of mashirs Mohammad Bux and Manzoor Hussain. He then referred them to the medical officer for examination, treatment and certificate. He thereafter examined Wahid Bux under section 161, Cr. P. C. He then went to the hospital Qambar and examined Mst.
Naziran under section 161, Cr. P. C. As she was in senses at that time. He thereafter proceeded to the scene of offence and inspected it after sun rise. It was situated in a village of Qamber Town. He secured two empties and blood-stained "Palal" and a "chappal" from there and prepared such mashirnama Exh. 13 in presence of same mashirs. He recorded statement of P. W. Arbab on 5March, 1976 at 4.00 p.m., and thereafter arrested the appellant Sabir Hussain in presence of same mashirs and prepared such mashirnama Exh.
14. He then handed over the case papers to S. H. O. For further investigation.
4. Mohammad Aslam S. H. O. Took up the investigation and interro--gated the appellant who was already under arrest. The appellant voluntarily agreed to produce the gun. Which was used in the crime and he led police and mashirs to his house and produced a single barrel gun with cartridges.
He secured the gun as well as cartridges and prepared such mashirnama Exh. 10, He sealed the gun on the spot in presence of the same mashirs. He thereafter came to the Police Station and lodged a F. I. R. On behalf of the State against the appellant under section 13-D of Arms Ordinance as he was not having a valid licence for the gun in question. He examined mashirs Abdul Majid and Ali Gohar and then challaned the accused/appellant in the Court.
5. The prosecution case is mainly based on ocular testimony consisting of the complainant Mst.
Hidayat Khatoon P. W. 1 and Mst. Naziran P. W. 2, corroborative evidence of Wahid Bux P. W. 3, recovery of gun from the appellant and empties from the place of incident, evidence of motive and medical evidence.
6. The accused however denied all the allegations against him and claimed to have been falsely implicated as the complainant Mst. Hidayat Khatoon and Mst. Naziran were ladies of easy virtues and he had directed them to leave the village therefore these ladies on the instigation of Nawaz Chandio have implicated him in the false case. He also produced a certificate of the Mukhtiarkar, Qambar, showing a distance between Mithal Khan Lakho village and Lashkari Chandio village.
7. As far as injuries on person of the complainant Mst. Hidayat Khatoon and Mst. Naziran are concerned, it has not been disputed that they did not receive injuries on the day and place of incident as stated in the F. I. R. Dr. Nanik Ram, who examined both the ladies has been examined and he has deposed as under:- "On 14th March, 1976, I, was working as Medical Officer, Kambar. On that day, Kambar Police sent to ma injured Mst. Nazir Khatoon and Mst. Hidayat Khatoon for examination, treatment and certi-- ficate. I examined them individually and found the following injuries on their person:-
1. Mst. Nazir Khatoon daughter of Mohammad Umer:th
(1) Fire-arm lacerated type wound 3" x 4"" x bone cut into piece on the left leg surrounded by small wounds --" x ----- x --".
The injury was grievous in nature, and appeared to have been caused by discharge from fire-arm.
It was about 3 hours old. The inured was referred to Civil Hospital, Larkana, for further treat--ment. I issued such certificate, which I produce as Exh.
16. It is same, correct and bears my signature.
2. Mst. Hidayat Khatoon daughter of Alta Mohammad.
(1) Fire-arm shall superficial wounds two in number each about --" x --" on the right leg posterior laterally.
The injury was simple in nature, appeared to have been caused by discharge from a fire-arm. The injury was about 3 hours old. I issued such certificate, which I produce as Exh.
17. It is same, correct and bears my signature.
Cross-examination to Mr. Mohammad Nawaz Chandio Advocate for the accused: It is possible that by one shot injuries to both injured can be caused if they sit or stand nearby each other."
8. The question therefore for determination is whether the complain. Ant Hidayat Khatoon and Mst.
Naziran received injuries at the hands of the appellant or some body else? The prosecution in this regard has led ocular evidence of Mst. Hidayat P. W. 1 and Mst. Naziran P. W. 2, corroborative evidence of Wahid Bux P. W. 3, evidence of motive, recovery of gun from the appellant and empties from the vardat and the medical evidence.
9. I would examine ocular testimony in the first instance. The complainant Mst. Hidayat Khatoon P.
W. 1 and Naziran P. W. 2 have stated before the trial Court that the appellant used to visit their house and compel Mst. Naziran to please him. It was at about 8.00 or 8.30 p.m. On the fateful night when the appellant went to their house with a gun in his hand. He sat on a cot there and called Mst.
Naziran and compelled her to please him but she refused to submit to the wishes of the appellant.
The appellant again asked Mst. Naziran to allow him a kiss but she refused and he got annoyed, and opened a fire at the complai--nant Mst. Hidayat Khatoon and thereafter at Mst. Naziran who went unconscious after receiving injuries and regained her consciousness after sometime. The leg of Mst. Naziran has been cut as a result of fire-arm injuries.
10. The corroborative evidence has been provided by Wahid Bux P. W. 3, who is brother of the complainant whereas Mst. Naziran is his "marot". He has stated that Mst. Hidayat Khatoon and Mst.
Naziran were residing with him. Though he himself was not present in the house at the time of incident as he had gone to purchase a milk and on his return while he was on his way to his house when he heard two gun reports. He came near door of his house and saw the appellant coming out of his house armed with a gun who threatened him to be away from him. He went inside his house and found Mst. Naziran with gunshot injury on her left leg and Mst. Hidayat Khatoon also having injuries on her legs. He noticed that the leg of Mst. Naziran was totally fractured and she was not in senses at that time. He was informed by Mst. Hidayat Khatoon that the appellant had come to their house with a gun and asked Mst. Naziran to sit with him for love-making and on her refusal, he fired .His gun at her which fractured the leg of Mst. Naziran and injured her as well.
11. Abdul Majid P. W. 4 who has acted as a mashir of a recovery of gun from the appellant does not support the recovery of gun from him in his presence. He has stated that the articles secured by the police con--sisting of a gun and the cartridges were already with the police and they were recovered from the appellant at the police station.
12. Ghulam Haider A. S. I. Has investigated the whole case and Mohammad Aslam S. H. O. Who after making recovery of gun from the appellant has only challaned him to stand trial in the Court.
13. Mr. Mohammad Hayat Junejo, the learned counsel for the appellant contends that there is delay in the F. I. R. For which there is apparently no explanation for it when the police Station is situated at a distance of a half mile only. He has also contended that there is not a single independent witness though the incident has taken place at such an hour when other people of the locality are bound to be attracted by the gun-reports. The name of one Arbab finds place in the F. I. R. But he has not been examined by the prosecution and on the contrary his presence is being denied by the complainant as well as her brother Wahid Bux P. W.
3. Therefore presumption be drawn against the prosecution under section 114 of Evidence Act that P. W. Arbab if examined had not supported the prosecution case.
The learned counsel for the appellant has laid great stress on the point that in case of refusal from Mst. Naziran to make love with the appellant, why Mst. Hidayat Khatoon was fired at first which is not natural. He has also urged that it was a case of a single fire-arm shot by the assailant which has injured both the ladies. This also finds support from the Medical Officer Dr. Nanik Ram, who has stated that injuries to both the injured could be possible by one shot when they stood nearby each other. The learned counsel for the appellant has in the last contended that under all circumstances of the case it was clear that there was no intention to cause death of any of the injured and the offence would not in any case fall under section 307 P. P. C.
14. Mr. Manzoor Hussain, the learned counsel for the State has on the other hand contended that the appellant being admittedly an influential Zamindar, the complainant Mst. Hidayat Khatoon and Mst. Naziran who are being dubed as women of easy virtues cannot in any case dare involve him falsely. Though motive advanced by them does not impress and whatever might be the true story, the injured eye-witnesses apart from being natural witnesses have deposed to in such a manner that their evidence cannot be thrown out only because there is a negligible delay in lodging the F. I.
R., and no independent witness is examined. He is however in agreement on the point that the offence would not fall under section 307, P. P. C. But one under sections 326 and 324, P. P. C. He does not support the conviction under section 13-D of Arms Ordinance as the recovery of the gun. Was after a considerable delay of the arrest of the appellant.
15. I have considered the contentions of the learned counsel for the appellant as well as State. I have examined the ocular testimony in the first instance as discussed above and both the injured eye-witnesses have implicated the appellant. Their testimony apart from being natural has stood the test of cross-examination. There is no material on the record to disbelieve their evidence.
Moreover it cannot be thrown out only on the points that the F. I. R. Was a little belated one and there was no independent witness to support them. As far as a little delay in lodging of the F. I. R. Is concerned, it can be easily ignored in view of the fact that Mst. Naziran went unconscious immediately after receiving the injuries and it would naturally take some time to report to the Police as all efforts in the first instance must have been made to save her life. They have been supported by Wahid Bux P. W. 3 who had immediately come to his house where the occurrence took place. He has stated that he had seen the appellant going out of the house along with a gun after injuring both the ladies. He was informed by the complainant of the occurrence. He is of course brother of the complainant but is again a natural person to have been informed as it has been done in this case. I consider his evidence to be true and natural which was provided a proper corroboration. There is no doubt that no independent witness has been examined though one Arbab was cited in the F. I. R. But subsequ--entry his presence at the trial has been denied. The non-availability of independent witnesses is due to the fact that .The appellant is admittedly an influential Zamindar, who is holding a lot of influence in the locality and people of the locality would always prefer to remain away from the controversy so as to avoid his animosity. I therefore accept the evidence of both the injured eye-witnesses and Wahid Bux P. W. 3 as worthy of reliance. The ocular testimony apart from corroboration of Wahid Bux is also supported by the medical evidence which is also worthy of reliance and is accordingly accepted. The contention that there is no reason as to why the appellant would fire at the complainant first in case Mst. Naziran refused a kiss or love-making to the appellant, has of course a force and I am in agreement with the learned counsel for the appellant that certain facts about the manner in which this incident took place have been suppressed. I feel that clear picture of motive has also been suppressed. I am also in agreement with the learned counsel for the appellant that both the injured have received injuries as a result of one shot from the gun particularly when it was possible even according to the Medical Officer. Moreover the appellant was a usual visitor to the hose of the injured and used to ask the injured Mst. Naziran to please him but she used to refuse on every occasion. If that was the case, there is nothing to show as to what prevented them to report the matter to some other nekmard, police or any authority. Since it has not been done it is bound to affect the aspect of the case in respect of motive and the point which naturally arose after it would be that refusal of Mst.
Naziran to please appellant was not yet clear. Therefore it could be safely concluded that the incident did not occur on what has been stated but on some thing else which has been suppressed by the prosecution.
16. It would be clear from the above discussion that the prosecution has not been straightforward for motive. However there is no doubt that it was the appellant who inflicted the injuries on person of both the injured. But in absence of actual motive about commission of this offence, it seems from the circumstances that the incident has taken place in a different manner and the injuries on both the injured have resulted from one gunshot. It has also been supported by Dr. Nanik Ram who has examined the injured. It is therefore clear that there was no intention on the part of the appellant to commit murder of any one otherwise there was nothing to prevent him from repeating other shots for committing the murder as every body else in the house was without any weapon and protection. The fact that even this fire-arm injury has been aimed at the legs of the injured which is not a vital part of the body shows that there was no intention on the part of the appellant to cause death of any one of the ladies.
17. As far as recovery of gun from the appellant is concerned, it cannot be connected with the commission of this offence. This recovery apart from being a belated one as it is after 5 days of the appellant's arrest has no value as empties and gun have neither been sent to the Ballistic Expert nor any such report of the Ballistic Expert has been brought, on the record so as to connect the gun in question with the commission of offence. Moreover Abdul Majid P. W. 4 who has acted as mashir of recovery of gun has not supported the prosecution case and the prosecution did not examine the other mashir. Therefore this recovery seems doubtful and is being not accepted by me.
18. Thus it is clear from the above discussion that the appellant had no intention of committing murder of any of the injured. He ha however caused grievous injury to Mai Naziran and simple injuries to Mst. Hidayat Khatoon by way of firing- at them with a gun.
The learned counsel for the State is also of this view. Therefore I alter the conviction of the appellant from 307, P. P. C. To one under section 326, P. P. C. For causing grievous injury to Mst, Naziran and sentenced him to undergo R. I. For four years and to pay a fine of Rs. 2,000 and in case of default of payment of fine to undergo further R. I. For six months more. The fine if recovered shall be paid to Mst. Naziran as compensation he is also further convicted for causing simple injuries to Mst.
Hidayat Khatoon under section 324, P. P. C. And sentenced to R. I. For one year. Both sentences shall run concurrently. His period of detention as under-trial prisoner shall be counted towards his sentence.
19. I have already discussed the recovery of gun and cartridges from the appellant which has been held doubtful and not worth reliance. Therefore I allow this appeal of conviction of the appellant under section 13-D of Arms Ordinance and set aside the conviction and sentence awarded to him.
20. In the result the conviction of the appellant is altered from 307, P. P. C. To one under sections 326, P. P. C. And 324, P. P. C. And with the above modification in conviction and sentences, his appeal regarding his conviction under section 307, P. P. C. Is dismissed. The appeal for convic--tion under section 13-D, Arms Ordinance is however allowed.