MIAN BURHANUDDIN KHAN, J.-- This petition for leave to appeal is directed against the judgment and order of the Sind High Court, Hyderabad Circuit, dated 8-5-1984 passed in Criminal Appeal No.24 of 1983, whereby the petitioner's appeal against the judgment passed by the learned Sessions Judge, Thatta was dismissed. The learned trial Judge vide his judgment, dated 27-2-1983 had convicted and sentenced the petitioner to imprisonment for life and a fine of Rs.10,000 or in default to undergo R.I. For to years more, under section 302, P.P.C. Half of the fine, if realized, was to be paid to the heirs of the deceased Mst. Muntazira as compensation. The petitioner was further convicted under section 324, P.P.C and sentenced to one year's R.I. And to pay a fine of Rs.500 or in default to suffer R.I. For to months more. The fine, if realized, was ordered to be paid to the injured Ghulam Ali as compensation. The sentences were ordered by the learned trial Judge to run concurrently.
2. According to the prosecution case, on 26-10-1979 at 17-15 hours one Sher Wali son of Shah Saeed Pathan, resident of village Shewa, Tehsil Swabi, District Mardan was, during the relevant the, residing in Deh Kakrand, Taluka Mirpur Sakro, lodged F.I.R. Under sections 302, 307 and 324, P.P.C.
Which was recorded by the S.H.O., Mirpur Sakro Police Station, stating that he is a Hari on the lands of Zamindar Haji Dost Muhammad Pathan in Deh Kakrand, alongwith another Hari namely Halim son of Noor Khan Pathan resident of village Mohib Tehsil and District Mardan. Both of them had taken loan from their said Zamindar Haji Dost Muhammad Pathan. A day before the occurrence the landlord called the complainant and told him that he was going to his village in District Kohat for celeberating Eid and would return after about 10/12 days and that the complainant should watch Halim so that he should not leave the land in his absence because Halim had taken loan from the landlord. On 25-10-1979 Haji Dost Muhammad left for his village. The petitioner Halim informed the complainant that he would leave the land of Haji Dost Muhammad whereupon the complainant asked him not to do so till the landlord returned from his village and if he attempted to leave, he would not be allowed to.Do so. At about morning the the accused/ petitioner took his mother Mst.
Sahibzadi to go somewhere but he was intercepted by the complainant who asked the petitioner as to where he was going alongwith his mother, to which he replied that he was taking her to one Maqadar Pathan. The same day the accused /petitioner returned but again he was seen accompanying his wife whereupon the complainant stopped him and caught hold of his wife Mst.
Azra which enraged the accused/ petitioner and a fight ensued between the to in which minor injuries were caused to each other. However, Halim accused /petitioner got his wife released and warned the complainant that he had insulted him and he would not spare him for that reason.
Later on the wife of the complainant and her son Ghulam Ali aged 6/7 years, went to a water- course near the house of the complainant for washing clothes while the complainant was busy in his work on the land. At about 12-00 hours the complainant heard gun-shots and cries of children.
He rushed towards the spot and found his wife Mst. Muntazira seriously wounded. She was bleeding and died soon. He saw the accused/ petitioner Halim with a gun in his hand running towards his own house. The complainant also found his son Ghulam Ali P.W. Weeping having been injured on his foot by a pellet. He was informed by Ghulam Ali that Halim Pathan had fired to shots and injured his mother and him to. Two empties were also found near the spot which were taken into possession alongwith the chappal left by the accused/ petitioner. He then took his son Ghulam Ali, leaving the dead body of his wife on the spot, to the village where he narrated the occurrence to one Amanat Pathan who informed the other residents of the village. Amanat, Fazal Ghani, Muhammad Ghani and Ibrahim and Rahim Gul came to the spot, while the complainant left for the police station where he lodged the F.I.R. The police, after investigations, submitted the challan against the accused/ petitioner under section 302 read with section 307, P.P.C. And the learned trial Judge convicted and sentenced the accused/ petitioner as mentioned above.
3. Prosecution examined Ghulam Ali P.W. And after putting some questions the learned trial Judge was satisfied that Ghulam Ali is well --conversant with Urdu and can understand the questions and he gave proper and rational replies. According to this witness, the deceased. Mst. Muntazira was his mother. She was washing clothes at a distance of 200 paces from the land where his father Sher Wali was also present, and his to minor sisters were also there at that the. At about 12 noon Halim the accused/ petitioner came and fired to shots with his gun and hit his mother and one of the pellets injured him to on his leg; that Halim was previously known to him as he used to work with the same landlord. He raised alarm and his father came running to the spot and saw the accused running away; thereafter he was taken, alongwith his sisters to his house wherefrom his father left for the police station. This witness was cross-examined at length and from the answers to questions' posed to him it appears that he had made a very) straightforward statement which the to Courts below have relied.
4. Learned counsel for the petitioner, however, urged before us that there was no other ocular evidence except the statement of Ghulam Ali P.W. Who at the the of occurrence was about 5/6 years of age and, therefore, it involved great risk to rely on the testimony of a child who can be tutored and who can repeat the story like a parrot; that the complainant Sher Wali himself was not an eye-witness and the report lodged by him is belated and no plausible explanation has been offered by him for the delay in lodging the report. Moreover, he had given to versions of the occurrence one in the F.I.R. And the other in his deposition in Court; mhat the motive for the crime has also not been established' as the landlord Dost Muhammad P.W. Has contradicted the version of the complainant; that recovery of the weapon of offence has been wrongly relied upon as the gun was recovered from one Noor Zaman and not from the accused/ petitioner and, therefore, the learned trial Judge should not have relied upon the recovery of the gun.
5. We have examined the contentions raised by the learned counsel and find as already observed that the statement of Ghulam Ali P.W. Who sustained injury of a pellet, cannot be ignored and the same has to be accepted as correct and straightforward statement of the said eye-witness.
6. Dr. Ghulam Muhammad P.W. Who examined the body of the deceased found the following injuries on her person:-
(a) Oval shaped lacerated wound 4" x 1" deep up to chest cavity with inverted edges surrounding skin within 2" area scorched and blackened with smoke on the right side of chest at fourth and fifth inter costal space and also three separate openings made by pellets of shot about 2" away from the central apparture.
(b) Lacerated wound 5.1/4" x 2.1/2" x muscle deep on the medical aspect of upper third right forearm, muscles blackened with smoke and six pellets visible and palpable under skin about 1" above the wound.
(c) Six lacerated wounds 1/4" x 1/3" x muscle deep on the lower third of left leg near ankle joint with to exit wounds 1/2" x 1/4" on the lateral surface of lower left leg near ankle joint.
(d) Lacerated wound 1/3" x 1/6" x muscle deep on the left buttock near gluteal fold.
Rib pieces seen scattered into the lung tissue and pellets were also removed from long tissue and liver. Wads of cartridges removed from the lung tissue. On internal examination the doctor found the right lung middle and lower lobe of right lung crushed into pieces. In the doctor's opinion the death was caused due to shock and haemorrhage and injuries to vital organs which was result of fire-arm. Injury (a) was received from the distance of about 6 feet while injury (b) and (c) from a distance of more than 12 feet. This statement of the doctor further supports the prosecution case.
Furthermore, Ghulam Ali P.W. Also sustained a pellet injury on his leg in the same incident. Perusal of the doctor's statement shows that deceased Mst. Muntazira was fired at from very close quarter and the by was also injured by the same shot. We rely on the statement of Ghulam Ali which is further supported by other witness. Long absence of the accused/ petitioner from the place of occurrence and his arrest in April, 1980 from Mardan, is a lengthy period of abscondence which further supports the prosecution case. We, therefore, find no merit in this petition which is, accordingly; dismissed.