1. HAMOODUR RAHMAN, C. J.-The petitioner in this case was tried and convicted by the Sessions Judge of Rahim Yar Khan for the triple murder of his step-sister, step-mother and step --maternal grand-mother and sentenced to death. The High Court has on appeal and reference upheld the conviction and confirmed the sentence. The petitioner now seeks special leave to appeal.
2. The incident took place on the 29th January 1967 sometime in the afternoon and it was reported at Sadar Police Station, Rahim Yar Khan at 5 p. m. Of the same day.
3. Rasool Bakhsh, the father of the petitioner, had two wives. The deceased Lal Mai was his second wife and from her he had four children ; a son Saleh Mohammad, and daughters Mst. Maqsoodan, Mst. Amna and another. The petitioner is his son from his first wife. The father, it is alleged, was neglecting his second wife and used to reside in another house with his first wife. The second wife, Mst. Lal Mai, and her children lived with her mother Mst. Hurmat, who owned four squares of land.
4. Notwithstanding the fact that Rasool Bakhsh was living with his first wife, the lands of Mst. Hurmat used to be managed by the petitioner. But about a year before the occurrence Mst. Amna was married to Abdul Majid (P. W. 8) and in consequence of this marriage the management of the lands was taken away from the petitioner and made over to the said Abdul Majid. This, it is alleged, furnished the motive for the murders.
5. The Rukhsati of Mst. Amna was to take place on the 30th January 1967 and for this purpose on the day of the occurrence Mst. Hurmat gave Rs. 500 to Shafi Mohammad (P. W. 12), Abdul Ghafoor (P.
6. W. 9) and one Ganhwal at her house at about 12 noon to make some purchases for the feast from Rahim Yar Khan. They went to Rahim Yar Khan by tonga and after making the purchases returned to Basti Ali Akbar Mangi, where the house of the deceased was situated, in the afternoon. The tonga stopped at the adda and the goods were unloaded. Shafi Mohammad (P. W. 12) who suffered from asthama could not take part in the unloading of the articles. He, therefore, returned to the house of Mst. Hurmat. When he reached there he found all the three deceased, namely, Mst. Hurmat, Mst. Lal Mai and Mst. Maqsood Mai present in the house and two other persons, Karim Bakhsh (P. W. 13) and Qadir Bakhsh (P. W. 14) were sitting on the thara. Karim Bakhsh was cooking Pulao and Zarda and Qadir Bakhsh was cutting onions. At or about this time the appellant arrived there with a .12 bore double-barelled gun, entered the house and asked Mst. Lal Mai for some cartridges. She refused to give them to him on the ground that her gun was of a different bore. This annoyed the petitioner who stepped forward and fired at Mst. Lal Mai hitting her in the abdomen. Mst. Maqsood Mai, who was standing near her mother, raised an alarm upon which the petitioner shot her too. The shots hit her on the chest and abdomen and she also fell down. After this he walked out of the house followed by Mst. Hurmat raising a hue and cry. The latter followed him up to the outer door. She then closed the shutters of the door without bolting them and returned back to attend to the injured. At that stage the petitioner, it is said, again came back and fired at Mst. Hurmat from behind injuring her on the back near the kidney. She died instantaneously.
7. Abdul Ghafoor and others had also, in the meantime, arrived with the provisions bought by them at Rahim Yar Khan. Lal Mai, who was still in her senses, narrated the incident to them. The injured ladies were then taken to hospital by Mohammad Shafi (P. W. 12), who then went to the Police Station and lodged the first information report at 6-12 p.m. Naming only the petitioner as the assailant. The injured victims died in the hospital at 7 and 8-30 p.m. Respectively.
8. The petitioner absconded from the village but six days later was produced before the Investigating Officer, on the 5th February 1967, at about 10 a.m. He led to the recovery of a double-barrel--led gun (Exh. P.1) and a bandolier (Exh. P. 26) from his residential house. Two empties were found in the barrels of the gun and two further empties were found in the bandolier and these were sent to the Forensic Laboratory but these recoveries have been disbelieved by the Courts below. In any event, since no empties were seized from the place of occurrence no importance could be attached to these recoveries.
9. The case against the petitioner rested mainly on the ocular testimony of four eye-witnesses, namely, Mohammad Shafi (P. W. 12), Karim Bakhsh (P. W. 13), Qadir Bakhsh (P. W. 14) and Mst. Amna (P. W. 15) and the oral dying declaration of Mst. Lal Mai.
10. The defence of the petitioner was that Mst. Amna was to be sent off from the house of her father and the Doll was to be brought from there to the house of Mst. Hurmat. As such, all the women-folk were in the house of his father Rasul Bakhsh but at Zohar time, the deceased ladies went to the house of Mst. Hurmat for changing their clothes. There was no one else there, hence, none knew as to how they had met their death. He had been accused only out of suspicion because of the fact that he was objecting to the marriage of Mst. Amna with Abdul Majid. Ht: also denied that he had absconded. The Courts below, however, accepted the ocular testimony and the dying declaration and convicted the petitioner as aforesaid.
11. Learned counsel for the petitioner now contends that the case of the petitioner has not been examined with the care that it should have been. His contentions are :-
(i) firstly, that Mst. Amna should not be believed as she was not named as an eye-witness in the F. I.
12. R., and
(ii) secondly, that the other eye-witnesses should not be believed as their oral testimony has been materially contradicted by the medical evidence.
13. According to the learned counsel, the oral testimony is so much in variance with the medical evidence that it strongly supports the defence that none saw the incident. He has drawn our, attention to the injuries of Mst. Hurmat and contended that on this evidence it was impossible for the two injuries found on her to have been caused by the same shot. Similarly, with regard to the injuries on Mst. Maqsood Mai and Lal Mai, it is said, that these different kinds of injuries could not have been caused to these two ladies if the shot was fired from the same position by the same weapon. Reliance is, in particular, placed upon the fact that the dispersal of the pellets on the injuries found upon Mst. Maqsood Mai seem to indicate that the shot was fired from a distance of five or six feet or possibly more. Whereas, the presence of only one wound of entrance on the body of Mst. Lal Mai would seem to indicate that the shot was fired from such a close range that the pellets entered en-masse. Having regard, however, to the differences in the dimensions of the wounds of entrance on the two ladies we cannot agree that the cartridges used were of the same kind. Wound of entrance of Mst. Lal Mai is 2" in diameter, while the injury on Mst. Maqsood Mai is only I" in diameter. This would seem to indicate that different kinds of cartridges were loaded in each barrel of the gun with which the petitioner fired. The injury on Mst. Lal Mai clearly shows that a spherical ball was used otherwise a wound of entrance of 2" diameter could not have been caused.
14. If this be so, then the oral account that only one shot was fired at each would be quite consistent with the finding of only one wound of entrance on Mst. Lal Mai. On the other hand, the cartridge fired at Mst. Maqsood Mai must have been either a No. 1 or No. 2 cartridge containing a number of pellets, hence, the dispersal over a range of about 8" or 9". In this view of the matter, it cannot be said that the medical evidence with regard to the injuries on these two ladies contradicts the oral testimony that one shot was fired at each. It is immaterial that the prosecution has not been able to establish how two injuries were caused to Mst. Hurmat. If it is established beyond doubt that the petitioner killed any one of these three ladies that would be enough for basing his conviction.
15. We are also inclined to agree with the High Court that the possibility of one stray pellet from the shot fired at Mst. Hurmat hitting her on her hand as well has not been altogether excluded.
16. We have given our anxious consideration to the arguments advanced by the learned counsel appearing in support of this petition and heard him at length. We see no reason to differ with the High Court as to its appreciation of evidence, particu--larly, since we find that the first information report was lodged within 1--hours of the incident at the police station, two miles away, after leaving the injured persons at the hospital. This completely excluded the possibility of concoction of a false case and false implication. We are also not inclined to agree that in the case of a day-light murder resulting in the death of three persons a close relative alone would be charged leaving out the real culprit. If they wanted to falsely implicate innocent persons they could also have roped in the father. There was enough scope for it.
17. Since Mst. Amna was not the maker of the F. I. R. That document cannot be utilized to contradict her. In any event, even if the evidence of Mst. Amna, is excluded there are still three other eye- witnesses left whose creditability has not been shaken in any manner. None of them has been shown to have any personal motive for falsely implicating the petitioner. We see no mason to disbelieve them.
18. The petitioner has, in our opinion, been rightly convicted and sentenced upon abundant reliable evidence. We see no reason to interfere. This petition is, accordingly, dismissed.