1. ' USMAN ALI SHAH, J.--This appeal by leave of the Court has arisen from the judgment and order dated 14-2-1982 of the High Court of Sind at Karachi, wherein, Criminal Appeal No, 152 of 1982 of the respondents Nos. 1 and 2 against their conviction under section 302/34, P.P.C. And sentence to life imprisonment and with fine of Rs, 5,000 each, to be paid to the heirs of the deceased, by the learned Sessions Judge Sangar, vide his judgment dated 12-8-1981, was accepted, by the impugned judgment.
2. ' The prosecution story in brief, according to the F.I.R. Is that on 8-8-1980 at about 4.30 p.m. Hamzo (deceased) was reading a newspaper in the dispensary of Ghulam Hussain (P.W. 2) when both the accused Muhammad Ali and Dhani Bux armed with country made pistols (Tamanchas) appeared and within the sight of Ghulam Hussain (P.W. 2), both of them fired at the deceased from their pistols which hit the deceased and as a result of which he fell down. On hearing the fire reports complainant Azizullah (P.W. 1) son of Hamzo (deceased), Bachal (P.W. 3) and others came running to the spot and they saw both the accused armed with pistols, came out of the dispensary. The accused also threatened P.Ws. Nos. 1 and 3 not to come near them. The accused also said that they had killed their enemy Hamzo. After commission of the offence, both the accused decamped in a jeep which was driven by Yaqoob, father of the accused Muhammad Ali. The complainant and Bachal (P.W. 3) went inside the dispensary where they found Hamzo (deceased) in an injured and unconscious condition. Ghulam Hussain (P.W. 2) told them that the deceased was fired at with pistols by the accused Muhammad Ali and Dhani Bux. Thereafter, the deceased succumbed to his injuries. The complainant Azizullah went to the Police Station Shahpurchakar, where he lodged the F.I.R. At 5 p.m. On the same day. After recording the F.I.R. The S.I.P. Muhammad Yamin (P.W. 7) went to the spot where he found the dead body of Hamzo (deceased). S.I.P. Muhammad Yamin prepared inquest report and site plan. He also collected blood stained earth, Ralli and pillow and "Daily Ibrat" newspaper with holes of firing and blood-stains. He secured all these articles. He sent the dead body of the deceased to the hospital Shahpurchakar for post-mortem examination. S.I.P.
3. Muhammad Yamin (P.W. 7) examined Noor Muhammad, Abdul Aleem, Ghulam Hussain (P.W. 2), Bachal (P.W. 3), Haji Abdul Kareem (P.W. 4) and Haji Parial. Further investigation was done by S.H.O.
4. Muhammad Usman (P.W. 10).
5. ' On the same day at 7 p.m. Dr. Alam Kumar (P.W. 6) Medical Officer, Shahpurchakar hospital conducted the autopsy on the dead body of the deceased and found the following external injuries on the dead body of the deceased:--
(1) Five gun shot lacerated wounds on right side of chest each 4 c.m. In diameter going deep into chest cavity cutting skin, muscles, 4th, 5th and 6th ribs, pleura, right lung, heart, big blood vessels, slight scorching present.
(2) Two intrinsic gun shot wounds each 4 c.m. In diameter going deep into the chest cavity and right axilla.
(3) Eight gun shot lacerated wounds on right hand and fore-arm on back each 4 c.m. In diameter cutting skin, muscles, nerves, blood vessels, bones of the fore-arm, wad was secured.
(4) One extrinsic wounnd on front of the right fore-arm wrist and hand communicates with injury No, 3, 6 c.m.
(5) One gun shot wound on right cheek above upper lip 4 c.m. In diameter. On internal examination the doctor found as under:--
(1) Membrane of the brain and spinal chord found congested, so also the brain and spinal chord itself.
(2) Pleura found ruptured.
(3) Larynx found congested.
(4) Right lung ruptured at multiple places.
(5) Left lung smoky.
(6) Heart found empty and ruptured, so also the blood vessels of chest.
(7) Abdomen wall distended.
(8) Peritoneum found stretched.
(9) Diaphragm raised.
(10) Stomach empty.
(11) Small intestine contained semi-digested food and gas.
(12) Large intestine contained gas and faecal matter.
6. ' The Doctor opined that all the injuries were caused due to fire-arm shots. Injuries Nos. 1 and 3 were individually so grievous and sufficient to cause death in the ordinary course of nature.
7. ' The motive for the alleged occurrence, according to the prosecution, is that Mitho was Hari on the land of Haji Abdul Karim, cousin of the complainant which he got on lease from Haji Pario, uncle of the complainant. Dhani Bux respondent No, 2 is nephew of Mitho and Yaqoob father of the respondent No, 1 is cousin of Mitho. Haji Abdul Karim had filed ejectment application against Mitho which was decided in his favour. Mitho filed appeal against his ejectment which was also dismissed. He then filed revision before the Deputy Commissioner, Sanghar. Mitho and Yaqoob thought that Hamzo has a hand behind these litigations and they had threatened Hamzo for the consequences. In addition to this about 7 years prior to this occurrence Yaqoob father of respondent No, 1 had sustained gun shot injuries. Complainant Azizullah and others were charged in that case who were subsequently acquitted.
8. ' On 10-8-1980 S.H.O. Muhammad Usman (P.W. 10) arrested both the accused respondents Muhammad Ali and Dhani Bux, from the Otaq of Yaqoob in presence of Mashirs Abdullah (P.W. 8) and Abdul Hakeem. Both the accused produced one country made .12 bore pistol and one empty cartridge each which were secured in sealed cover by the S.H.O. During the investigation Yaqoob was found innocent. On examination the Ballistic expert opined that the said empty cartridges have been fired from the pistols recovered from the accused.
9. ' After completion of the investigation formalities both the accused were challaned by the police to stand their trial. During the trial they pleaded their innocence. The learned Sessions Judge Sanghar found both the accused guilty of the charge, convicted them under section 302/34, P.P.C. And sentenced them to life imprisonment for the murder of Hamzo (deceased) and a fine of Rs, 5,000 was also imposed upon each of them to be given to the heirs of the deceased or in default to undergo further R.I. For 3 months, vide his judgment dated 12-8-1981.
10. ' Muhammad Ali and Dhani Bux respondents Nos. 1 and 2 herein, filed Criminal Appeal No, 152 of 1981 before the High Court of Sind at Karachi against their conviction and sentence. A learned Single Judge of the High Court who heard the appeal, vide his judgment dated 14-2-1982 accepted their appeal and acquitted them from the charge of murder of Hamzo (deceased). Leave was granted to the present appellants to examine whether the acquittal of the respondents Nos. 1 and 2 is in disregard of the well-settled principles governing the administration of criminal justice.
11. ' We have heard the learned counsel for the parties and gone through the evidence on record. A perusal of the record will show that the learned Sessions Judge after having considered the entire material available on record, based his finding on the motive, testimony of the eye-witnesses, medical evidence and other evidence of the prosecution witnesses found the prosecution's case as proved against the respondents Nos. 1 and 2 beyond any reasonable doubt and sentenced them to life imprisonment with fine of Rs, 5,000. Ghulam Hassain (P.W. 2), owner of the dispensary was the eye-witness to the actual firing of the occurrence by respondents Nos. 1 and 2.
12. Complainant Azizullah (P.W. 1) and Bachal (P.W.3) were witnesses of the accused respondents Nos.
13. 1 and 2, coming out from the dispensary after firing at the deceased and their extra-judicial confession that they had killed their enemy. The learned Single Judge of the High Court did not rely on the evidence of the eye-witness Ghulam Hussain (P.W. 2) on the point that a number of factors were brought forth in substantial evidence in Court which were not mentioned in his statement under section 164, Cr.P.C. The evidence of the complainant Azizullah (P.W. 1) and Bachal (P.W. 3) were also discarded by the learned High Court on some minor omission in their statements under section 164, Cr.P.C. And the fact for non-prosecution of Yaqoob father of respondent No, 1, though implicated by these witnesses before the Court of Sessions by the prosecution and the names of these witnesses were not mentioned in the statement of Ghulam Hussain under section 164, Cr.P.C.
14. On the basis of the above factors the learned Single Judge of the High Court acquitted the respondents Nos. 1 and 2 by giving them the benefit of doubt.
15. After a careful examination of the evidence on record our assessment is that Ghulam Hussain (P.W.
16. 2) is the eye-witness of the occurrence. He is a disinterested and natural witness. The occurrence took place in his dispensary before his eyes and in a broad daylight. He saw from a very close distance and specifically named both the accused respondents Muhammad All and Dhani Bux that they had fired from their .12 bore country made pistols at Hamzo (deceased) when he was sitting and busy in reading the newspaper in the dispensary. The medical evidence bears testimony in this behalf. According to the Doctor Alam Kumar (P.W. 6) who performed autopsy on the dead body of the deceased all the injuries were caused by 2 shots. The recovery of the newspaper which was found stained with human blood and pellets holes on it also corroborates the evidence of the prosecution witnesses. The motive for the offence was also proved by the prosecution. These are sufficient grounds to prove the prosecution's case beyond any shadow of doubt. We have examined the judgment of the learned Single Judge of the High Court and find that the reasons for disbelieving these witnesses are inadequate. In the statement of Ghulam Hussain (P.W 2) under section 164, Cr.P.C. There is neither any contradiction nor omission to discard him as an eyewitness. As the story of the occurrence is very clear and natural, a mere minor discrepancy or omission in the statement under section 164, Cr.P.C. Has very little effect on the substantial part of evidence. The F.I.R. Was lodged very promptly just after half an hour of the occurrence. The ocular evidence furnished by the eye-witnesses is consistent against the accused respondents Nos. 1 and 2 that they were armed with country made pistols and fired at the deceased. The pistols recovered from them alongwith cartridges was proved by the Ballistic Expert to match with the empties recovered from the spot.
17. In facts and circumstances of the case the guilt of the respondents Muhammad Ali and Dhani Bux for murdering Hamzo (deceased) by firing at him thus stands proved beyond any reasonable doubt. Therefore, we allow the appeal, set aside the impugned judgment of the learned Single Judge of the High Court dated 14-2-1982 and restore the judgment of the learned Sessions Judge dated 12-8-1981. Keeping in view The young ages of respondents Nos. 1 and 2 and they being students at the time of the commission of the crime, we give them the benefit of section 382-B, Cr.P.C. In the matter of computation of sentence.