1. This is a criminal appeal filed under section 410, Cr.P.C. By appellant Qadir Bux son of Sultan Lashari against the Judgment, dated 16-11-1982 passed by the learned 1st Additional Sessions Judge, Khairpur, in Sessions Case No.37 of 1979. The appellant alongwith three co-accused namely Sathi, Dost Ali and Bashir were tried under section 302/34, P.P.C. For the murder of Mst. Nazan. By the impugned judgment, the three co-accused had been acquitted but the appellant has been convicted under section 302, P.P.C. And sentenced to undergo rigorous imprisonment for life. In addition, the appellant had also been ordered to pay a fine of Rs. 5,000 or in default of payment of fine to undergo R.I. For two years more. It was further stated that in case the amount of fine was recovered, it be paid to complainant Mst. Pathani daughter of the deceased Mst. Nazan. I have heard at length the arguments of Mr. Raja Qureshi, learned counsel for the appellant and Mr. Rashid Tariq Khan, learned counsel for the State, who have taker, me through the entire record.
2. The incident is alleged to have taken place on 8-8-1978 at Tipahri time in the house of P.W. Phog Shaikh, which is at a distance of about five miles from Police Station Kotdiji, District Khairpur. The F.I.R. Was lodged at 7-10 p.m. On the same day but Mst. Pathani, daughter of deceased Mst. Nazan and it is reproduced hereinbelow:- "It is complained that my father died about nine months back. I had been residing with my mother Mst. Nazan in the same house. My elder sister Mst. Waziran is married with Muhammad Saleh Lashari since 12 years. She resides in the same village alongwith her husband. Accused Qadir. Bux alias Kado son of Salam Lashari used to demand my hand from my mother but my mother refused it and about six months ago I was given in marriage to my Masat Riaz who started residing with us as Ghar Damad. Qadir Bux did not like that. He used to threaten m1 mother that he would one day kill her. Today at noon time, my sister Mst. Waziran came to our house. The accused Qadir Bux alias Kado who used to visit our house came and talked harsh words with my mother and went away extending threats saying that he would kill her by that night. By about Tripahri time I, my sister Waziran and my mother Nazan went to the house of Phog Straikh as my mother owed some amount from Phog. We all the three sat in front of the house of Phog on a cot; when the accused Qadir Bux suddenly appeared from western entrance. AS he approached to my mother, he abused her having country --made pistol in his hand. No soon he fired at my mother which hit her on her left shoulder. My mother raising a cry started running to the entrance leading to the house of my sister Mst. Waziran. By the time each of the accused Bashir son of Chutto, Dost Ali and Sathi sons of Dhani Bux by caste Lashari came and caught her near the entrance and made her to fall on the ground. The accused Qadir Bux who was chasing her from behind made accused shot on her abdomen. We raised the cries of Mufer Muhamamd Saleh son of Jam came running on our cries.
2. He also saw the accused causing my mother to fall down and the accused Qadir Bux firing at her.
3. Then the accused ran away to their houses. We went and saw my mother lying dead due to the injuries and bleeding profusely. Then I alongwith my relative Ghous Bux have come to the P.S. To lodge F.I.R. For justice. My mother Mst. Nazan has been killed, by the accused making shots on her by country-made pistol, as my hand was refused to accused Qadir Bux."
4. The prosecution case depended on the ocular testimony of the following four witnesses:- (i)P.W. 1, complainant Mst. Pathani were of Riaz (who is nephew of appellant Qadir Bux); (ii)P.W, 2 Mst. Waziran, sister of complainant and daughter of the deceased; (i.e)P.W. 3 Mst. Kamalan, a relation of the complainant and deceased and daugher-in-law of Phog (P.W.4); and (iv)P.W. 4 Phog Shaikh, a relation of complainant and deceased and father--in-law of Mst.
5. Kamalan.
6. Apart from the ocular testimony, the prosecution relied upon recovery of an unlicenced country- made pistol and two empties from appellant Qadir Bux, and motive, which is spelt out in the F.I.R.
7. Then there is the evidence of the Medical Officer and P.W. S.H.O. Manzoor, the Investigating Officer.
8. One Mashir Ali Nawaz was also examined. He is the real brother of deceased Mst. Nazan the co- Mashir was not examined.
3. Mr. Raja Qureshi, learned counsel for the appellant, has argued that the motive attributed for the murder of the deceased by the appellant is unbelievable and in any case satisfactory explanation is lacking. According to the learned counsel, the evidence shows that the marriage of Mst. Pathani with Riaz, who is the nephew of appellant Qadir Bux, took place about six months prior to the incident. According to the learned counsel, if the motive for murder was to take revenge from Mst.
9. Nazan, who had refused to give the hand of her daughter, Mst. Pathani, to the appellant, most appropriate time would have been either before the marriage of Mst. Pathani with Riaz or at the time when the marriage took place or immediately thereafter. According to the learned counsel, the evidence has also clearly indicated that even after the refusal of Mst. Nazan to accept the proposal of appellant Qadir Bux and even after the marriage of Mst. Pathani with Riaz, the relations between the appellant Qadir Bux and Mst. Nazan and her family did not become strained or else Qadir Bux would not have been visiting her family of and on. It may be observed here that the.
10. Complainant-party and appellant Qadir Bux are also related to each other. The motive attributed to the appellant for the murder of the deceased on the evidence on record is weak. The evidence indicates that the relations between the parties, did not become strained after the refusal of Mst.
11. Nazan to give the hand of her daughter Mst. Pathani to appellant Qadir Bux and even after the marriage of Mst. Pathani with Riaz, as the appellant had been visiting the house of Mst. Nazan even after these two incidents. Then the marriage between Mst. Pathani and Riaz had taken place about six months prior to the murder of Mst. Nazan. Additionally, it may be observed that Riaz is the nephew of appellant Qadir Bux. Riaz had not been examined. There is no evidence on record to show that after the marriage of Riaz with Pathani, uncle of Riaz namely appellant Qadir Bux became annoyed with Riaz. The real reason for the murder of Mst. Nazan, in my view, has not come on record. If at all the motive that has been attributed for the murder of Mst. Nazan is correct, it appears to be a very weak motive.
4. Recovery of the crime fire-arm and the two empties had been rightly rejected by the trial Court.
12. Out of the two Mashirs, the independent Mashir had not been examined. The only Mashir examined was P.W. Ali Nawaz, who is the real brother of the deceased. For the purposes of making Ali Nawaz a Mashir for the recovery of the crime weapon and the empties, the Investigating Officer S.H.O.
13. Manzoor Ahmad had gone several miles away to get hold of Ali Nawaz. The evidence of Ali Nawaz, in the circumstances, as Mashir was rightly rejected by the B trial Court. As observed earlier, the co- Mashir had not been examined. Then if the prosecution version of the recovery of the unlicenced country-made pistol and two empties from the appellant is to be believed, the facts would be that after the firing the first shot at Mst. Nazan, the appellant took out the empty from the pistol and kept it in his pocket or in the fold of his Shalwar and then reloaded the pistol with another cartridge which was kept by him in his pocket or in the fold of his Shalwar and after firing the second shot he ran away and while hiding the country-made pistol he took out the empty of the first short from his fold of Shalwar and the second empty from the gun and also hid the two empties alongwith the gun. The sequence of events appeared to be rather out; of ordinary and in the circumstances even on the basis of the evidence of the investigating Officer about the recovery, it would have been unsafe for the trial Court to rely upon such recovery. It may again be observed that the trial Court had correctly rejected the recovery of the unlicenced country-made pistol and empties from the appellant.
14. The conviction of the appellant has been based by the learned trial Court on the ocular testimony of the four prosecution witnesses namely complainant Mst. Pathani; Mst. Waziran, daugher of deceased; Mst. Kamalan; and Phog and motive. I have already considered the evidence regarding the motive and in my view the motive if at all established was very weak. The ocular testimony on behalf of the prosecution shows that just before the appearance of the appellant on the scene, the three ladies had come to the house of P.W. Phog, namely deceased Mst. Nazan, Mst. Pathani and Mst. Waziran and they were sitting on one cot and Phog was sitting on another cot. The position of Mst. Kamalan was not clear. Either she was sitting on the same cot with other three ladies or she was sitting on the cot on which Phog was sitting. The first shot was fired from some distance by the appellant. This distance is given by Mst. Kamalan in her evidence as 50 paces from the cots. Both the learned counsel stated that this is the distance which may be taken as the distance from which the first shot was fired by appellant Qadir Bux. The cartridge used for firing was a .12 bore cartridge of Shaheen Make. Learned counsel for the appellant stated that such cartridge has about 250 to 300 pellets whereas according to Mr. Rashid Tariq Khan, learned counsel for State, such cartridge has about 200 pellets. The evidence that has come on record shows that the first shot was fired from a distance of about 50 paces from the cots, on which the three or four ladies were sitting, but according to the prosecution witnesses the pellets from the first shot only hit the deceased Mst.
15. Nazan and not any other lady sitting on the same cot. If a shit of a cartridge which has as many as 200 or even more pellets, is fired from a distance, the pellets are bound to d3-perse. Learned counsel for the appellant has referred to a D.B. Decision in the case of Haq Nawaz v. State PLD 1959 Kar.
137. A passage at pages 141-142 of this report is reproduced herein below:- "This evidence no doubt shows that the firing took place from a' distance of 100 to 120 feet, and on this statement the incident could not have taken place in the house of P.W. Muhammad Ramzan.
16. But in our opinion, the statement of the Medical Officer on this point is not conclusive. The injuries on the person of the deceased from unshots are four in number. Injury No.1 is an entry wound 1 -- ' in diameter on the left upper side chest. Injuries Nos. 2, 3 and 4 are exit wounds 1" in diameter on the back right side of chest -- x -- " on the back chest above injury No. 2 and --" x --" just parallel to injury No.3 on it left side respectively. This shows that the gun was fired at the deceased not from a distance of 100 or 120 feet but from a distance of riot more than four yards. These injuries could easily be caused even from a distance of four yards. Mr. Junejo, the learned counsel for the State, has invited our attention to the observation of Dr. Sydney Smith in Volume I of Taylor's Principles and Practice of Medical Jurisprudence at page 441. According to this observation the shot begins to disperse in any ordinary cylindrical barrel at about three yards, at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shots around it. The dispersion gradually increases, and at about five yards an open pattern about ten inches in diameter is found.
17. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches and so on. With fully choked barrels the dispersion is about half the above."
18. If the first shot had been received by the deceased while she was sitting at the cot and then she had started running away towards the entrance of the house apparently to avoid further shots from the attacker, in the normal circumstances, she must have left a trail of blood from the place near the cot where she received the first shot till the place where her dead body was found.
19. According to the ocular testimony, the deceased was bleeding profusely from the injury caused by the first shot and left a trail of blood from the cot to the place where the second shot was received by her. However, the Investigating Officer in his evidence has clearly stated that no blood was found either at the cot or from the cot till the place where the dead body was found. According to the Investigating Officer blood was only found at the place where the dead body was lying and there was no trail of blood from the cot till the place where the dead body was found. The ocular testimony and the evidence given by the Investigating Officer is conflicting on this point.
20. As regards the second shot, there is contradiction between section 161, Cr.P.C. Statements and the evidence given by some of the eye-witnesses inasmuch as in the 161, Cr.P.C. Statement such eye- witnesses had stated that they had not seen the second shot being fired but they had only heard the second Shot. Whereas in the Court they improved upon their testimony and deposed that they had actually seen the appellant firing the second shot.
21. Then the four eye-witnesses are related to each other and they are interested witnesses and in the circumstances of this case and the infirmities pointed out in the earlier part of this judgment the evidence of these four inter-related and interested witnesses not only required very close scrutiny and examination with great caution but also, in the circumstances, required independent corroboration which is lacking. No other witness had been examined by the prosecution. It may also be observed that on the same evidence the learned trial Court acquitted the co-accused on the ground that there was no motive for the three co-accused to take part in the murder of the deceased.
5. In my view, a case beyond reasonable doubt has not been made out against the appellant Qadir Bux and this appeal is to be allowed. Criminal Appeal No. 4 of 1983 is allowed and the judgment, dated 16-11-1982 of the learned 1st Additional Sessions Judge, Khairpur, in Sessions Case No. 37 of 197'9 is set aside. The appellant Qadir Bux son of Sultan Lashari is ordered to be released forthwith, if not required in any other case.