KHUDA BAKHSH MARRI, J.-This appeal under section 410, Cr. P. C. Is directed against the judgment of learned Additional Sessions, Judge, Hyderabad Mr. Ghulam Muhammad M. Kourejo, dated 29-6- 1968, whereby he convicted the appellant for the offences under sections 302 and 323, P. P. C. And section 13-E of the West Pakistan Arms Act and sentenced him to transportation for life and to pay a fine of Rs. 1,000 as compensation to the heirs of the deceased Mst. Shahzadi or in default of payment of fine to further one year R. I. He was also sentenced to six months' R. I. For offences under section 323, P. P. C. And one year R. I. For offence under section 13-E of the West Pakistan Arms Act.
The sentences are to run concurrently.
2. The brief facts of the case are that one Hussain Khan resident of Marechi Brothel, Hyderabad filed a First Information Report on 20th January 1966 at 13-15 hours at Market Police Station, Hyderabad Town to the effect that he was residing in his personal double-storeyed house in Marechi Brothel, Hyderabad with his wife Mst. Zarina, sister-in-law Mst. Suria, his father's sister Mst. Shahzadi and her daughter Mst. Pari. Mst. Pari and Mst. Zarina were singing girls. At about 10 a.m. Of the same day Mst. Pari told him that when she was purchasing pan from the shop in front of the Dargah Shareef of Khaki Shah, appellant contractor Azhar Ali met her, who admittedly was a visitor to their house and asked her to go with him to his house which she refused, and on this he threatened Mst. Pari in presence of Roshan Panwalla and others and then went away.
3. At about 1 p.m. When he was sitting in the courtyard of the lower storey of his house with his wife Mst. Zarina, sister-in-law Mst. Suria and Mst. Pari was sitting on the roof of the house, and his aunt Mst. Shahzadi was descending the staircase coming towards them when the door was knocked, no sooner she did open the door from inside, appellant Azhar Ali stepped in. He was in a furious mood and with a double-barrel gun in his hand, enquired about Mst. Pari and was told that she is sitting in the sun over the roof on which the appellant rushed towards the stairs to go on the roof but was stopped by Mst. Shahzadi standing on the staircase blocking his way. The appellant threatened her not to do so otherwise she will be killed. On hearing this commotion they also ran there and tried to stop the appellant but before they could do anything, the appellant shot at deceased Mst.
Shahzadi, who was standing on the staircase which struck her on the left side of the head.
Immediately she rolled down from the staircase on the floor and died. Appellant thereafter rushed up stairs with the gun in hand he was followed by them for the purpose to catch and prevent him to do more harm. On reaching the roof the appellant attacked Mst. Pari who however, courageously grappled with him and caught hold of his gun. The appellant did his best to release the gun but seeing the complainant party there, he became nervous, left the gun in the hands of Mst. Pari, climbed over the roof of the house of prostitute Gulzar and jumped down. From there he climbed over the house of prostitute Nawabi and opened the door from inside and ran away. They raised cries and rushed down. By that time Mst. Shahzadi had died, smeared with blood, spreading over the floor, stairs and the adjoining walls. Her brain had come out due to pellets and the scull had fractured. On hearing the gunshot immediately Mst. Nawabi and Gulzar and their servant Muhammad Sabar Kashmiri reached at the place of occurrence and witnessed Mst. Shahzadi dead. The complainant further stated that he along with his servant gave a chase to the appellant but they failed to catch him and he ran away. He knew appellant since long time who was on friendly terms with Mst. Pari, he complained that murder of Mst. Shahzadi was intentionally committed by him, he thereafter produced the weapon of offence i.e. a double-barrel gun to the Police.
4. The F. I. R. Was recorded by Raja Ahmed Ali P. W. 14, S. H. O. Market Police Station, he secured the gun produced by the complainant and sealed the same In a parcel in presence of mashirs and he thereafter visited the vardat and prepared the necessary mashirnama which is Exh. 13 in presence of mashirs Rahim and Wali Muhammad. He found deceased Mst. Shahzadi lying dead in the staircase of the house near the outer entrance of the house of complainant Hussain Khan. There was blood around and the brain was separated from the body due to gun shot. He also found a cap of muzzle loading gun lying there and 3-4 pellets as well. He secured blood from the ground, put it in a bottle and seated the same. Thereafter, he prepared the inquest report of the dead body in presence of the same mashirs Exh. 33, and then sent the same to the Civil Hospital, Hyderabad for post-mortem examination. He then visited the roof of the house where he found dragging marks on the walls, in between the house and on the wall of Gulzar and he mentioned the same in mashirnama of vardat, he made enquiries from Mst. Pari and inspected her person and prepared mashirnama of injuries Exh. 34 and then sent Mst. Pari to Hospital for medical treatment and certificate. He recorded the statements of Mst. Zarina, Alidad, Mst. Nawaban, Abdul Rashid, Abdullah, Muhammad Sabir, Mst. Fajju Gulzar, Qamar and Zubeda, and also of appellant's brothers Hamid Ali and Masood Ah. Masood Ali produced a receipt of the licence of the gun belonging, to the appellant which is Exh.
36. He then secured clothes and shoes of deceased Mst. Shahzadi. He then proceeded and arrested the appellant from Sarfraz Colony. Exh. 41 is mashirnama of arrest. He secured two railway tickets from his coat pocket. The coat and the shirt were found blood-stained which were secured. A mashirnama was prepared of these articles.
5. The prosecution case is mainly based on the statements of eyewitnesses P. Ws. Hussain Khan, Mst. Zarina, Mst. Suria, Mst. Part and corroborated by statements of P. W. Mst. Nawaban, Mashir Abdul Rahim, Raja Ahmed Ali, P. W. 14, the Investigating Officer and the statement of Dr. Rafi Ahmed as well as statements of Abdullah, Mst. Gulzar and Mst. Qamar and the recoveries.
6. The accused however, denied all the allegations against him and claimed to have been falsely implicated on account of enmity with the prosecution witnesses and the police. He however, in his statement admitted that he had intimate relations with Mst. Part and used to live in the same house in which incident took place. According to him, deceased Mst. Shahzadi had purchased the house in a claim from the Settlement Authorities for a sum of Rs. 9,500 which sum was paid by the appellant. He goes on to state that he did not like Hussain Khan and other members of his family to live in the same house and at the same time Hussain Khan and his family members resented his staying with Mst. Shahzadi and Mst. Pari m the house. Mst. Shahzadi had told Hussain Khan and others to leave the house and shift from there. He further states that P. Ws. And complainant Hussain Khan are related inter se they have joined hands with the police and falsely implicated him on account of his resentment to leave the house, and this was the main cause of enmity between them. He denies the murder as well ownership of the weapon of offence, the gun. He also denied the recovery of clothes from his-person by the police. In his defence he produced solitary defence witness Shah Jehan Khan, Fire-arms Expert whose statement is Exh. 59 which will be discussed later on.
7. There is no dispute that deceased Mst. Shahzadi did die on the day and place of incident, as stated in the F. I. R. Due to gun shot. The question therefore, for determination is whether the offence was committed by appellant Azhar Ali or some body else? In this regard prosecution led ocular evidence, evidence of motive, recovery of gun and the blood-stained clothes, coat and shirt and also corroboratory evidence connecting the appellant with the crime.
8. P. W. 7 Mst. Zarina stated before the trial Court that she lives along with her husband complainant Hussain Khan, Mst. Suria, Mst. Pari and Mst. Shahzadi In the same house. She stated to be working as a singing girl, she knew the appellant who used to come to their house. On the day of incident she, Mst. Suria, her sister, Hussain Khan, her husband and deceased Msr. Shahzadi were sitting in their house when at 10 a.m. Mst. Part came back after purchasing pan and bidis who told them that while she was purchasing pan at Rashid's shop, she met the appellant there who insisted her to go to his house. She refused on which the appellant got annoyed and threatened her. After this, Mst. Part went to the roof of the house along with her mother deceased Mst.
Shahzadi. She however, con--tinued to sit on the ground floor along with Hussain Khan and Mst.
Suria, when at about 1-50 p.m. While deceased Shabzadi was coming down from the stairs towards them, somebody knocked the door from outside and Mst. Shahzadi opened it and she saw the appellant armed with a double-barrel gun rushing in and enquired about Mst. Pari. , She told him that she is sitting on the roof of the house on which he proceeded towards the staircase leading to the roof, on this, deceased Mst. Shahzadi went in front of him and obstructed his way from going up. The appellant threatened her not to block his way otherwise she will be killed. She did not give him the way to go up. On this, appellant levelled his gun at her and shot at her on her head. Mst.
Shahzadi fell down and a piece of her brain was separated from the body. She died immediately.
Thereafter, the appellant went up to the roof of the staircase, he was followed by complainant Hussain Khan and Mst. Suria. She however, continued to stand on the ground floor and started weeping and crying. On this neighbours Gulzar, Nawaban, and Mst. Fujjo and Muhammad Sabir and others arrived there. Soon after Mst. Part. Hussain Khan and Suria came down on the ground floor. Mst. Part had a double-barrel gun in her hand. She was told by Hussain Khan and Mst. Suria that appellant assaulted Mst. Part with the gun but she caught hold of the barrel and grappled with the appellant while they reached there on which he left the gun and jumped over the roof of the house and ran away and she told the other persons present there that Mst. Shahzadi was killed by the appellant who also attacked Mst. Part leaving the gun behind. The statement of this witness with all material fact is supported by the statement of com--plainant Hussain Khan and P. W. Suria.
No material contradictions have been brought out by the defence in their cross-examination.
9. Now we come to the statement of other important eye-witness Mst. Part P. W.
9. She stated that she knew the appellant Azhar Ali who used to visit her and hear her songs in her house since 5 or 6 years prior to the incident. On the day of incident, she goes on to state, that while purchasing pan at 10 a.m. From Rashid's shop, she met the appellant who asked her to go with him to his house.
This suggestion was rejected by her on which he abused her and she also abused in retaliation in presence of Rashid, Ghulam Nabi, Abdullah and Bashir and many other persons. This infuriated the appellant and he left the place with a threat that he will see her. Thereafter, she came to her house and told this incident to P. W. Suria, Mst. Zarina and Hussain Khan and Mst. Shahzadi deceased. She then went on the roof of the house where her mother already was sitting.
At abut 1-15 p.m. Her mother Mst. Shahzadi went down stairs, at this time. Mst. Zarina, Hussain Khan and Mst. Suria were sitting on the ground floor, after her mother went down and while she was sitting on the cot on the roof, she heard a gun report from down below the -staircase. She was about to get up when the appellant came armed with a double-barrel gun who immediately levelled the gun at her. She however, caught hold of the barrel of the gun and tried to snatch the gun from him. The appellant struggled to release the gun but he could not. In this struggle she received injuries on her chin, chest, and back while he pushed her towards the wall of the roof. In the meanwhile however, Hussain Khan, and Mst. Suria reached the roof. On seeing them coming the appellant left the gun in her hand and jumped over the wall of the roof and jumped into the house of Gulzar. From there he got into the house of Nawaban and then ran away. She was told by Hussain Khan that the appellant had killed her mother Mst. Shahzadi and finished her. She accompanied them down stairs and found her mother deceased Mst. Shahzadi lying dead, her brain was oozing out and found also Mst. Zarina present at the scene of offence. In the meanwhile their servant Sabir also came in. Thereafter their neighbours Mst. Gulzar, Fajju, Mst. Nawaban and many others reached there. Complainant Hussain Khan and Sabir went after the appellant. On enquiries she was told by Mst. Zarina and Mst. Suria as to how the appellant knocked the door which was opened by Mst. Shabzadi deceased and how he attempted to go up stairs after hearing that she was on the roof but was stopped by deceased Mst. Shahzadi which was resented by him and he immediately shot and killed Mst. Shahzadi. After a while the complainant and Sabir came back and told her that the appellant had run away. This witness then handed over the gun of the appellant to Hussain Khan who went to the Police Station to file the report. Her statement was recorded by the Police under section 161, Cr. P. C. She further states that Mst. Gulzar told her that the appellant jumped into her house from where he had jumped into the house of Nawaban and had run away, and this statement was confirmed by Mst. Nawaban that the appellant jumped in her house from the house of Mst. Gulzar and opened the door from inside and ran away. She told in her cross-examination that when she handed over the gun to Hus,.Ain Khan it was loaded one barrel and the other barrel was empty and while the appellant was levelling the gun towards her his finger was on the trigger. She struggled with the appellant and caught hold of the gun and snatched it from him. She rejected the suggestion of the defence counsel that the gun in question was not in working order at the time of incident. Nothing worthwhile contradictory was brought by the defence in the cross-examination of this witness. The statement of this witness with regards to the occurrence and participation of appellant at the time and place and the manner in which it took place tallies in all material respects with the statements of other eye-witnesses, complainant Hussain Khan, Mst. Zarina and Mst. Suria. The statements of these witnesses to my mind are straightforward and therefore inspire confidence. It is even admitted by the appellant himself that he knew these witnesses since sometime and had intimate relations with Mst. Pari and used to visit her house for listening songs. The statement of the appellant however, with regard to his living with Mst. Pari is denied by her. Nonetheless the intimate relations of the appellant and Mst. Pari are admitted. Perhaps there is some truth in the statement of the appellant that he paid Rs. 9,500 or a part of it, to deceased Mst. Shahzadi for purchasing the house for her and her daughter Mst. Pari with whom he was intimate and to some extent infatuated as well, this infatuation or love may have led the appellant to make certain payments for purchasing house for Mst. Pari. It is also probable that the appellant insisted her to leave the profession of prostitute and to live with him although there is nothing on the record, because of his love and admitted intimate relations and his burdening himself with financial expenses although this fact is denied by Mst. Pari and other witnesses. This suggestion, having been rejected, may have caused great annoyance to the appellant, leading to nursing a grudge against the deceased and her daughter Mst. Pari resulting in death of Mst. Shahzadi. This may, have been the motive on part of the appellant to commit the henious murder. We, therefore, are, of the firm opinion after giving our anxious thought that P. Ws.
Hussain Khan, Mst. Suria and Mst. Zarina were the eye-witnesses of the offence and Mst. Pari was also attacked by the appellant and fortunately she saved her life by picking up courage and snatching the gun from the appellant who had become naturally nervous while seeing the complainant Hussain Khan and Mst. Suria reaching the spot on the roof. Therefore, these witnesses are telling the truth and there is no reason for us not to believe them.
10. The statement of this witness is further corroborated by the statement of P. W. Mst. Gulzar, this witness being prostitute, knew the appellant and the complainant party. She states that she lives in the first storey of the building in Merachi Brothel Area, Hyderabad, on the ground floor of which lives Mst. Nawaban and the complainant Hussain Khan lives in the adjacent house where deceased Mst.
Shahzadi, Mst. Pari, Mst. Suria and Mst. Zarina also used to live. The roof of her house and that of Hussain Khan is adjoining which is separated by a small wall. On the day of incident she heard a gun report while sitting in her house and she saw the appellant who jumped over the roof of the house of Hussain Khan on to the roof of her house and then jumped into the house of Mst.
Nawaban and ran away. She goes on to state that she tried to talk to him but he immediately got down. She went thereafter to the house of her neighbour Hussain Khan and saw Mst. Shahzadi lying dead. Some people had collected there. Mr. Nawaban also reached there. Mst. Suria, Mst. Pari, Mst.
Zarina, Hussain Khan and others were present. She made enquiries from them and she was told that the appellant after killing her ran away. Her statement is corroborated by the statement of Mst.
Nawaban the manner in which the appellant after committing the crime ran away.
11. P. W. 15 Dr. Rafi Ahmed Khan stated that on 20-1-1966, he was Medical Officer in Liaquat Medical College Hospital. He received the dead body of Mst. Shahzadi for purposes of post-mortem examination and certificate, which he performed at about 4-30 p.m. And on examination he found the following injuries:- "There was a circular wound on the middle of the vault of the skull. The wound was occupying about 1 /4 of the vault. The brain substance was coming out of the wound. Some of the brain substance was brought in a separate cloth. The wound was almost rounded in shape and the margins of the wounds were irregular. The edges of the wound were inverted and echymosed. The pieces of clotting were present in the skins surrounding the wound."
On internal examination found the following injuries: "The frontal bone both the parietal bones and anterior part of the occipital bone was fractured. The medial part about 1/8 of both the parietal bones in the mid line was absent. Some of the anterior part of the occipital bone and posterior part of the frontal bone was absent. One pellet was found lodged in the middle cranial fossa."
He goes on to state that the internal damage was the result of the external injuries. The injuries were, sufficient to cause death in the ordinary course of nature and the probable time lapsed between the injury and the death in his opinion was to be instan--taneous. He also stated that he examined. Mst. Pari on the same day and found on her the following injuries: "(1) Abrasion 2" x 1" on the clavicular region on right side.
(2) Abrasion 1' x 1" on the chin in the middle."
The nature of injuries was simple and appeared to have been caused by a hard and blunt object and the duration of injuries was few hours and he issued requisite certificates. He also states that in his opinion the distance between the assailant and the victim could not be beyond 6 feet and the direction was some below downwards, the assailant was at some height and the victim was at a lower position. By stating this, he corrected his statement that the direction was from below downward. He stated that he sent the pellets to the police and also that in the circumstances there would not be any exit wound at all but he did not find any charing from the wound of victim. Exh. 54 is a medical certificate issued by Examining Medical Officer, Liaquat Medical College, Hyderabad who examined appellant Azhar Ali on.23-1-1966 and found the following injuries on his body:- "(1) Evidence of tracuma upper mid lip present.
(2) Abrasions from --" x 1/6" to 1/8" x 1/10' on the back of the right palm.
(3) Abrasions from --" x --" to --" x --" on the back of the left palm.
(4) Abrasions from 2" x --" x 1" x --" on the back of right mid forearm.
(5) Abrasions from 1" x --" to --" x 1/6" on the back of the right mid forearm.
(6) Abrasions 2" x 1" on the right mid anterior chest.
(7) Abrasions from 1/6" x 1/8" to 1/8" x 1/10" on both anterior." and in his opinion the nature of the injuries was simple and the kind of ,weapon used was blunt and the duration of injuries could be three days. The injuries sustained by Mst. Pari and appellant Azhar Ali as revealed by the certificates issued by the Medical Officer goes to show the presence of the appellant and Mst. Pari in the incident, therefore, it supports the prosecution case.
12. We have heard Mr. Azizullah Shaikh, Advocate for the prosecution and Mr. Murtaza Hussain, Advocate for the State. Great stress was laid by the counsel for the appellant on the statement of solitary defence witness D. W. Shah Jahan Khan, Fire-arms Expert who stated that on 25-2-1966 (after one month) three sealed parcels from S. H. O., Hyderabad containing a muzzle loading gun for opinion whether the right barrel of the gun was fired or not and also another parcel containing four pellets and a brass cap. The third parcel contained one pellet. He examined the gun and did not find powder smell as such he did not express opinion whether the gun fired from the right barrel or not. The nozzle of the right barrel was missing. In his opinion, it was not possible that this gun could be fired from the right barrel without the nozzle. The gun in question was muzzle loading had two triggers, hammer of the right side barrel was found in not working condition therefore, he opined that since the hammer was jumped and was not in working order he could not prepare a test cap for comparison from the right barrel. The opinion which he submitted on 22-4-1966 Exh. 60 may be reproduced verbatim- "No opinion can be expressed as to whether or not the gun in question was fired from the right barrel as no powder fouling were received. Moreover it does not have its firing nozzle.
No opinion can be expressed as to whether or not the brass cap has hammer marks because sufficient identifying data is not available.
No opinion can be expressed as whether or not the pellets were fired from the gun as they lack sufficient identifying data."
To clarify the statement of this witness who in our opinion somehow was not very straightforward in his statement which as an expert he was expected to be. In any case the statement of this witness in no way helps the appellant. The learned counsel for the appellant submitted that according to the expert the nozzle was missing therefore, the prosecution story that the gun was fired from the right barrel may not be believed. We are afraid we cannot agree to this argument of the counsel.
Firstly, because this D. W. In his opinion in Exh. 60, is not sure as to whether or not the gun was fired from the right barrel because no fouling powder was received by him and secondly he slid not have the fire nozzle, He also is not sure to give any definite opinion as to whether or not the pellets were fired from the gun as they lack sufficient identifying data. This witness, however, in his cross- examination states that muzzle loading gun, as the gun in question, is loaded from front side of the barrels, the nozzle cannot break by firing but he admits that the nozzle can break by mis-handling and according to him "it is possible that the hammer might have been jumped after it was fired as its spring or lever may have been broken by mis-handling. The powder smell cannot remain beyond three hours after the gun is fired." Therefore, it is evident that this witness in fact contradicts his own opinion in cross-examination not to say that the earlier certificate issued by him which is reproduced in verbatim above is no evidence worth the name, for consideration either way.
Therefore, in our opinion the statement of this witness in no way supports the contention raised by counsel for the appellant. The counsel for the appellant argued that the eye-witnesses, complainant Hussain Khan, Mst. Zarina, Mst. Suria and Mst. Pari are inter-related therefore, interested witnesses, may not be believed. He however, failed to show as to why these witnesses implicated the appellant innocently. No doubt generally the statements of witnesses who are inter- related, are rejected if their statements appear to be false but each case has to be considered with its peculiar circumstances. As we have stated already, to our mind these P. Ws. Are eye-witnesses of the offence and their statements inspire confidence. Even if we disregard the recovery of the clothes allegedly stained with blood from the appellant, as argued by the counsel, still there is other sufficient material on the record to show that it is the appellant and nobody else who has committed this heinous offence. He has already been leniently dealt by the learned trial Judge by sentencing him transportation for life for this uncalled for unjustified murder.
13. The result is we see no substance in this appeal and dismiss the same.
NOORUL ARFIN, J.-I agree.
S. G. D./S. A. H.