1. The appellant was charged and tried under section 302, P.P.C. Before the learned Additional Sessions Judge, Sanghar, who has convicted him under section 302, P.P.C., and sentenced him to imprisonment for life and fine If Rs.10,000 in default to suffer further R.I. For one year. Fine if recovered was on be paid to the heirs of deceased Muhammad Siddique under section 544-A, Cr.P.C. Vide judgment dated 7-5-1988.
2. The brief facts of the prosecution case arc that on 11-9-1985, one Moula Bux lodged a report at P.S. Phullahdyon, Taluka Khipro, District Sanghar which reads as follows:- "I am Hari of Zamindar Habibullah Chaniho. I am residing with ray family members in village Matoon. My nephew deceased Muhammad Siddique also used to live with me. Today, dated 11-9- 1985 at noon time I had gone to Town Matoon for making purchases from a shop, where my son Luqman came to me and narrated the facts that today in the evening, I, Muhammad Siddique, and relative Usman and others were cutting the grass from cotton crop of harap. Where at about 17.00 hrs. Evening Sher Khan son of Ma'azullah by case Pathan resident of Matoon came there, and asked that he be allowed to cut the grass. On which we told him that he is cutting the grass daily from our land, and there is no much grass, he could cut the grass from any other place. Whereupon he got annoyed and started abusing and said that he will cut the grass from the place: Thereupon we exchanged harsh words with each other. In the meantime, Sher Khan took out revolver from his fold and asked that he shall be allowed to cut the grass, otherwise he would (till us. On saying so, he fired pistol shot at Muhammad Siddique but he sat down. We prevented him not to fire, but he did not refrain. Again he directly fired at Muhammad Siddique, which hit him on left side of rib, whereupon Muhammad Siddique raised cry and fell down and became unconscious. Due to fear we did not go near Sher Khan Pathan. Then Sher Khan ran away alongwith pistol. Leaving Usman at Muhammad Siddique, now I have come to narrate the facts to you. On receiving the above facts, I came at the scene of offence and saw that my nephew (sister's son) Muhammad Siddique had received pistol shot injuries on left side of rib, and was unconscious. Thereafter, eve were carrying him on jeep to Khipro Hospital, but Muhammad. Siddique died on the way. Leaving my son Luqman and relative Usman ;o look after Muhammad Siddique, who was left in the Khipro Hospital, I have come to lodge report that Sher Khan Pathan has murdered my nephew Muhammad Siddique by firing at him on preventing him from cutting the grass. Justice be done."
3. This F.I.R. Was recorded by A.S.I. Muhammad Anwar P.W.9 and the same has been produced as Exh.9. After recording the F.I.R., A.S.I. Muhammad Anwar went to Khipro Hospital and prepared Mashirnama of dead body and inquest report, which have been produced as Exh.16 and Exh.17. He then handed over the dead body to Medical Officer through P.C. Tufail for post-mortem examination. Thereafter he handed over the case papers to S.H.O. Haji Aziz Ahmed for further investigation. S.N.O. Aziz Ahmed on receipt of papers went to the Wardat and prepared such Mashirnama in presence of Mashirs Gul Muhammad and Hakim, which has been produced as Exh.18. He had also prepared sketch of Wardat which has been produced as Exh.24. He then recorded statements of P.Ws. Usman and Luqman at the Wardat, thereafter he arrested accused Sher Khan Pathan from his shop situated in Mathoon in presence of the same Mashirs and prepared such Mashirnama which has been produced as Exh.19. During his personal search, he recovered a pistol made in Spain from the pocket of the shirt of the accused for which he had no licence. He found one used bullet as well as one live bullet in pistol, he secured the pistol under Mashirnama which has been produced as Exh.19. He had sealed the pistol and bullets separately.
4. He then brought the accused to the police station where he registered F.I.R. Against the accused under section 13-D of Arms Ordinance on behalf of State, and the F.I.R. Has been produced as Exh.25. On 14-3-1985 he produced accused Sher Khan before Mukhtiar kar and F.C.M. Khipro for recording his judicial confession. Thereafter, he was remanded to judicial custody. On the same day, he had also produced P.Ws. Usman and Luqman before the same Magistrate for recording their statements under section 164, Cr.P.C. Thereafter he sent the pistol and the bullets to the Ballistic Expert, and blood-stained clothes of the deceased to Chemical Examiner. The two reports have been produced as Exh.26 and Exh.27. After completing the investigation, the case was challaned.
5. A formal charge was framed against the accused/appellant to which he pleaded not guilty.
6. At the trial, prosecution examined P.C. Muhammad Tufail P.W.1, Dr. Faqir Muhammad P.W.2, he has produced the post-mortem report as Exh.7, complainant Moula Bux P.W.3, he has produced the F.I.R.
7. As Exh.9, Tapedar Dad Muhammad P.W.4, he has produced the sketch of Wardat as Exh.11, Luqman eye-witness P.W.5, he has produced 164, Cr.P.C. Statement as Exh.13, Usman eye-witness P.W.6, Mashir Gul Muhammad P.W.7, he has produced the Mashirnama of dead body, inquest report and Mashirnama of Wardat as Exh.16 to Exh.18. He has also produced the Mashirnama of arrest and recovery of pistol from the accused as Exh.19. Mr. Muhammad Mobin the then Mukhtiar kar and F.C.M. Khipro P.W.8, he has produced the confession of the appellant as Exh,21, A.S.I. Muhammad Anwar, P.W.9, S.H.O. Aziz Ahmed P.W.10 he has produced sketch of Wardat as Exh.24, F.I.R. Lodged under section 13-D of Arms Ordinance as Exh.29, the chemical report and ballistic report as Exh.26 and Exh.27.
8. After close of the prosecution case, the statement of appellant was recorded under section 342, Cr.P.C. In which he denied the allegations. As far as judicial confession was concerned, he denied to have made the same before the Magistrate. He has further stated that Zamindar Habibullah Chaniho had asked him to leave the shop which he used to run in the town, the said shop belonged to one Dadoo, he had sought time of one month. Habibullah Chaniho issued threats to see him. Dadoo is Kamdar of Habibullah. He was innocent. All the P.Ws. Were inter-related and interested. He had been implicated due to enmity. He also gave the name of Ghulam Muhammad as defence witness. He has examined Ghulam Muhammad in his defence.
9. The learned trial Judge after taking into consideration the evidence produced by the prosecution and the defence, has convicted the appellant on the basis of ocular evidence alone, as described above, and the present appeal is directed against the above judgment of conviction.
10. Dr. Faqir Muhammad P.W.2 has deposed that on 11-9-1985 he had carried on post-mortem on the dead body of Muhammad Siddique. On external examination of the dead body he found the following injuries:- Fire-arm entry wound 1/2 c.m. In diameter in between 5th and 6th left rib on lateral side on left side of chest on front. The margins were slightly tatooed.
11. On internal examination he found the following damages:-
(1) Thorax wall, ruptured, on entry wound. --
(2) Pleaurae ruptured.
(3) Left lung ruptured.
(4) Peritoneum ruptured on left side.
(5) Stomach ruptured and full of blood.
(6) Small intestine ruptured in upper part.
(7) Liver ruptured in left lobe.
12. From external as well as internal examination of the dead body he was of the opinion that cause of death was haemorrhage and shock due to fire-arm injury, such as, pistol. It was ante-mortem in nature. Injury No.1 was sufficient to cause death. It was fired from more than 10 feet. Time between the injury and death was about 1/2 hours, and time between death and post-mortem was about 4 to 5 hours. He has produced the post-mortem report as Exh.7.
13. Complainant Moula Bux has supported the contents of his F.I.R- The ocular evidence has been furnished by Luqman P.W.5 and Usman P.WA. The have fully supported the complainant. As far as recovery of pistol was concern it has been supported by Mashir Gul Muhammad and S.H.O. Aziz Ahmed. However, it will be worthwhile to mention here that since there were contradictions between the evidence of Mashir Gul Muhammad and S.H.O. Aziz Ahmed on the point of recovery the same has not been relied upon by the learned Judge, Mr. Muhammad Mobin, Mukhtiar kar and F.C.M. Has deposed that the accused was produced before him for recording his judicial confession. He gave him the necessary warnings and after complying with all formalities he recorded the confessional statement of the accused and the same has been produced by him as Exh.21. He then remanded the accused to judicial custody.
14. However, since the judicial confession was in conflict with the prosecution case, the same was not relied upon by the learned trial Judge.
15. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellant, Mr. MA. Qarni, learned counsel appearing for the State, and have gone through R.&.P. Of the case. It has been contended by Mr. A.Q. Halepota, learned counsel for the appellant that the ocular evidence was interested, contradictory, and unreliable, and the learned trial Judge had erred in convicting the appellant.
16. That the appellant had no enmity with the deceased nor he had motive to kill him, and the prosecution story appears to be absurd. It was further contended that Mashirnama of Wardat shows that there was grass at the Wardat which was cut by the deceased alone. That the case of P.W. Usman was that accused/appellant had fired two shots at the deceased but only one empty bullet was found from, the magazine of the pistol while the second was live bullet. That the fact that the witnesses were examined on the following day goes to show that they were not present at Wardat on the day of incident. In the alternative it was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellant, that from the allegations made in the F.I.R. It is clear that there was sudden flare up and exchange of hot words between the parties, and there was no intention to kill the deceased and, therefore, the appellant will he at the most liable under section 304, Part II, P.P.C. In support of his contention, he has relied upon PLD 1971 SC 720.
17. Mr. MA.I. Qarni, leered counsel appearing for the State has contended that no doubt the complainant and witnesses were related to the deceased but they had no reason to implicate the appellant falsely. The incident was broad daylight incident and there was no question of substitution of accused. However, he was also of the view that there was no motive nor intention to kill the deceased and, therefore, the offence will fall under section 304, Part II, P.P.C.
18. I have considered the contentions of the learned counsel. In the present case, it is of course an admitted position that deceased Muhammad Siddique was sister's son of the complainant, P.W.
19. Luqman is son of the complainant while P.W. Usman is cousin of the complainant. The ocular evidence has been furnished by P.Ws. Luqman and Usman which is corroborated by complainant Moula Bux. There was no enmity between the parties and there was no reason for these witnesses to implicate the appellant. It was a broad daylight incident and the complainant party had no reason to substitute the present appellant at the place of the actual culprit. The evidence of complainant, P.Ws. Luqman and A Usman appears to be natural, straightforward and reliable. The plea taken by the appellant that he has been implicated at the instance of Habibullah Chaniho appears to be far-fetched, absurd and unnatural. The evidence of defence witness Ghulam Muhammad is of no help to the appellant inasmuch as even he has not supported the stand taken by the accused regarding the enmity with Habibullah Chaniho over possession of shop. The prosecution case is further supported by the circumst4nce of grass which was found by the police at the Wardat. Merel non-mention of the grass cut by the witnesses in the Mashirnama of Wardat will not affect then evidence in any way. Likewise, the contention of Mr. A.Q. Halepota that to shots were fired and only one empty was, found from the magazine of the pistol has not impressed me, inasmuch as the incident took place in the cultivation, and it is likely that one empty bullet might have fallen in the grass/cultivation and the police may not had been able to locate the same. The evidence of P.Ws has not been shaken in any way in spite of long cross--examination, In view of the above discussion, I am satisfied that the witnesses were natural truthful and were rightly relied upon by the learned trial Judge, since they had no enmity with the appellant nor they had any reason to falsely implicate the appellant. The incident having taken place during day time it was B not possible for the witnesses to implicate an innocent person at the place of actual culprit. Under these circumstances their evidence could safely be relied upon for the purpose of conviction of the appellant.
20. As far as the evidence regarding the recovery and judicial confession were concetned, the learned trial Judge has rightly discarded the same and for cogent reasons. I have no reason to take a different view than the one taken by the learned trial Judge.
21. Adverting to the last contention of the learned counsel appearing for the appellant, the F.I.R. Shows that the appellant had gone to the harap land of the deceased and witnesses, and asked them to allow him to cut grass. It is further mentioned in the F.I.R. That on their refusal to allow him there was exchange of harsh words between them on which appellant took out revolver from his fold and 'gyred at Muhammad Siddique. Even the complainant has stated in examination---in-chief that deceased Mohammad Siddique P.W. Usman and P.W. Luqman were cutting grass in the field of deceased where accused Sher Khan also came for cutting grass. Mohd Siddique asked him not to cut the grass and the accused insisted on doing so which resulted in an altercation between Sher Khan and Mohammad Siddique and thereafter, accused Sher Khan fired at deceased Mohammad Siddique. Admittedly, there was no previous enmity between the parties and, therefore, there could be no intention to kill the deceased. However, the appellant could be burdened with the knowledge that the injury which he was going to cite to the deceased was to cause his death and, therefore, he could be burdened with the knowledge.
22. PLD 1971 SC 720, it was observed by their Lordships of the Supreme Court that: "Part II of section 304 P.P.C. Applies if the fatal injury inflicted on the deceased is caused to him without any intention on `the part of the accused to cause such death, and such bodily injury is likely to cause death but about which the accused can be burdened with the knowledge ' that it is likely to cause his death."
23. I had decided the above Appeal on 24-1-1989 and these are the reasons for the same.