1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the.
2. High Court of Sind & Baluchistan, Karachi, dated the 11th August 1970. By this judgment, the appeal of the appellant was dismissed and his death sentence was confirmed.
3. Appellant Muhammad Akram was tried for the murder of Pahilwan son of Godho and for being in possession of an unlicensed gun by the learned ex officio Additional Sessions Judge, Jacobabad.
4. He was convicted under section 302, P. P. C. And sentenced to death. He was acquitted of the second charge. The appellant challenged this judgment in Criminal Appeal No. 338 of 1969 (Confirmation Case No. 37 of 1969), and a Division Bench of the High Court of Sind and Baluchistan, Karachi, by judgment dated the 11th August 1970, dismissed the appeal and confirmed the death sentence of the appellant.
5. The prosecution case is that on the 22nd January 1968, at noon time, P. W. Dodo was grazing cattle and Pahilwan, his son---in-law was picking cotton pods in his land bearing survey No. 339 in Deh Sohliani. Mst. Bachi, his wife, was filling water from pump and Gul Muhammad son of Dodo was drying the grain in the open courtyard of Pahilwan. It is alleged that at that time, the appellant fired a shot at the deceased with the gun and ran away. The incident was witnessed by Mst. Bachi, Gul Muhammad and Dodo. The motive for the murder is stated to be that on the evening before the day of occurrence, Pahilwan prohibited Akram Khoso not to pass in front of his house. On this, the appellant and the deceased exchanged hot words with each other. Akram Khoso said to Pxhilwan "a man of bad case, I will see you."
6. The matter was reported to the police by Dodo, the uncle and father-in-law of the deceased at 5 p.m. At Police Station, Tangwani, which is three miles away from the place of incident. It was recorded by Mushtaq A.I, A. S. I. P. W.
7. P. W. 7 Mushtaq A.I, after recording the report, visited the place of incident and inspected it in the presence of P. W. 8 Faiz Muhammad and Muhammad Bachal. He secured an empty cartridge and blood-stained earth from there. He did not seal the cartridge into a parcel. He sent the dead body of the deceased for post-mortem examination to the Assistant Medical Officer of Kandhkot. Thereafter, he recorded the statement of Mst. Bachi, wife of the deceased. On the following day, he recorded the statements of Gul Muhammad and Mehar.
7. He arrested the appellant on the 24th January 1968, while he was in the village of Hafizullah Khoso.
8. He recovered from him a gun which he had with him at that time under Mashirnama, Exh. 16, in the presence of Faiz Muhammad P. W.
8. The gun also was not sealed into a parcel. The gun was sent without the crime empty to the Ballistic Expert. During the trial of the case, under the orders of the Court, the crime empty and the gun were again sent for matching. The statement of P. W. 10 Mukhtiar Ahmad, Ballistic Expert, shows that the crime empty was fired from the gun secured from the appellant.
9. The autopsy on the dead body of the deceased was performed by Dr. Muhammad Alam and he noticed eleven gun-shot injuries on the body of the deceased.
10. The appellant was challaned in Court. In defence, he pleaded innocence and alleged that he has been falsely implicated. In the committal Court he did not allege any enmity against the prosecution witnesses He only stated that they were interested and inter-related. At the trial, he alleged enmity against Dodo on account of a dispute between them on trespassing of cattle on their lands. He also denied the motive alleged against him.
11. The trial Court convicted the appellant on the testimony of Dodo, Gul Muhammad and Mst. Bachi. It did not take into con--sideration the evidence of matching of the crime empty with the gun secured from the appellant. The trial Court also acquitted the appellant of the charge under section 13(d) of the Arms Act because the police had not taken proper care to find out to whom the gun belonged. The trial Court also disbelieved the evidence of P. W. 4 Mehar, the third witness.
12. Dodo P. W. 1 stated that he was about 100/120 paces away from the field of the deceased grazing his cattle and at that time the deceased was picking cotton pods while Mst. Bachi was at the water pump filling the Jar of water. Gul Muhammad who is son of Dodo and who cultivated the land of the deceased was drying the grain in the house of deceased. He heard a gun report and the cries of his daughter Mst. Bachi. He went running to that place and saw his son-in-law lying dead and his daughter weeping. The deceased had gun shot injuries. He also saw the appellant running away with his gun towards him about 50/60 paces from where he was standing and being pursued by his son Gul Muhammad. P. W. 2 Gul Muhammad stated that he was drying paddy in the house of deceased Pahilwan. Pahilwan was picking cotton pods in the cultivation. Mst. Bachi was filling jar of water. Dodo was grazing cattle at that time. Mehar was clearing jungle. He saw the appellant with a gun in his hand coming from the western side along the ridge of deceased's field.
13. The appellant fired at the deceased from a distance of 18-20 paces. The shot hit the deceased and he fell down. He followed him about half a furlong but the appellant threatened him. As he was empty-handed he did not pursue him further. P. W. 3 Mst. Bachi also supported the prosecution case. She stated that it was noon time that her husband was picking cotton pods from the cotton cultivation. Mehar was clearing the jungle from cultivation. Dodo was grazing cattle. She was filling jar of water from tape pump. Her brother Gul Muhammad was drying paddy in their house. She saw Akram Khoso coming. He shot at her husband with the gun and ran away.
14. It will be noticed that the High Court has upheld the conviction of the appellant on the. Following pieces of evidence :----
(i) The ocular testimony of Mst. Bachi and Gul Muhammad;
(ii) the evidence of P. W. Dodo to the effect that he saw the appellant running away from the scene of occurrence shortly after the occurrence ; and
(iii) the evidence of motive.
15. Mr. Muhammad Hayat Junejo, learned counsel for the appel--lant, has contended that all the witnesses of the prosecution are interested persons. They are related to each other and, therefore, their statements should not have been accepted without any corroboration. He further contended that P. W. Dodo only named those witnesses in F. I. R. Who were likely to support the case of the prosecution. He referred to the statement of P. W. Mehar whose name was not mentioned in the F. I.
16. R. He referred to the statement of Dodo in which he admitted that as he thought that P. W. Mehar would not support the prosecution case he did not mention his name in the F. I. R. The conten-- petition of the learned counsel has not impressed us. It will be noticed that the apprehension of Dodo that P. W. Mehar might not support the prosecution was well founded because lie lived in the village of Khosos. In any case, the statement of P. W. Mehar has been excluded by the trial Court and the High Court. They have not taken it into consideration for the conviction of the appellant.
17. The learned counsel for the appellant was unable to satisfy us that P. W. Gul Muhammad and P. W.
18. Mst. Bachi were chance witnesses or they have falsely implicated the appellant. There is nothing on the record to show that there was any enmity between Mst. Bachi, Gul Muhammad and the appellant. These two witnesses were not hostile to the appellant. They had, therefore, no reason to falsely implicate a wrong person for the murder of deceased Pahilwan. Mr. Junejo contended that it is strange that at noon time Mst. Bachi was filling the jar from the tape pump. . He contended that she was a chance witness. This contention has no force. The house of the deceased was very near to the place of occurrence and it was not at all surprising that Mst. Bachi was filling jar from the water pump. It was also contended by the learned counsel that P. W. 2 Gul Muhammad was not present at the scene of occurrence as he was not found by the police at the place when they came to investigate the matter. The explanation of Gul Muhammad that he had gone to fetch bullock cart to remove the dead body of the deceased is quite plausible. Therefore, there is no force in this contention also. It was also contended that the injuries on the person of the deceased shows that there was more than one gun--shot fire and this belies the statement of the eye-witnesses that there was only one gun-shot fire. This contention has also no force because the medical evidence shows that the injuries might have been caused by one or more than one gun shot fire. More--over the injuries show that the spread of the pellets have caused eleven injuries.
19. After considering the evidence of the prosecution, we are satisfied that it is trustworthy. The evidence of the prosecution witnesses was not shaken in cross-examination. Their evidence is coherent, consistent and the Courts below were perfectly justified in convicting the appellant on this evidence. We, there--fore, do not see any ground to interfere with the conviction of the appellant. The appeal is dismissed.