ASLAM RIAZ HUSSAIN, J.-Ghani son of Ghulam Sarwar aged 26 years and Bashir son of Chatta aged 25 years. Were tried by the learned Sessions Judge, Dera Ghazi Khan for the murder of Sobba deceased. By his judg--ment dated 25th April 1973, the learned trial Judge acquitted Bashir but convicted Ghani under section 302, P. P. C. Add sentenced him to death and a fine of Rs, 1,000. In default of payment of fine he was ordered to undergo a further period of two years' R. I. Ghani has filed an appeal against his conviction and sentence. The matter is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death. We propose to dispose of the appeal as well as the Murder Reference by a single judgment.
2. The facts of the prosecution case are briefly as follows :- Paira P. W. 8, his brother Mehrab, Bakhshu son of Murad P. W. 9 and Sobha deceased used to live in the same haveli in Basti Mad Mulana Dakhli; village Charmer (within the area of P. S. Dajal), district D. G. Khan. Since 2/3 months one Chandi, a Machhi of the same village, suspected Mehrab of having illicit relations with his (Chandi's) wife Mst. Sughran. Even prior to the present occurrence, Ghani appellant, the brother of Mst. Sughran and his cousin Bashir (acquitted accused), had attempted to Murder Mehrab but they could not get a chance. Since two days (prior the occurrence) Mehrab had gone out of the village.On the night between 6/7-8-1972, Paira, P. W. 8, Bakhshu P. W. 9 and Sobha deceased were sleeping in the courtyard of their house, on separate cots, when the P. Ws. Woke up due to the barking of the dogs. They saw Ghani appellant and Bashir (acquitted accused), armed with guns standing near their cots. Bashir accused threatened that if any one raised a noise he would be killed. I the meanwhile Ghani appellant fired at Sobha (who was sleeping on his cot with a chaddar over him, covering his face), under the impression that he was Mebrab the brother of Paira P. W.
8. The shot hit Sobha on the right flank and the bullet went out from the other side, grazing the upper parts of the right as well as the left arms. Sobha fell down from the cot and the two assailants ran away. Thereafter the P.W. 8 went and lodged waslifted and placed on his cot. Leaving the dead body under the custody of the chaukidar and other persons, Paira P.W. 8 went and lodged F.I.R. Exh. P.A. At Police station Dajal (in District D.G. Khan), at a distance of 9 miles from the spot. It was recorded by Muhammad Yaqub S.H.O. P.W. 12 at 7a.m. After recording the F.I.R the S.H.O went to the spot and collected some blood-stained earth from underneath the cot of the deceased, vide memo. Exh.P.C. He also picked up a .303 empty cartridge P.3 from near the spot and took it into possession vide memo. Exh. P. D. On 17 August 1972, the two accused are said to have made an extra judicial confession of their guilt before Abdul Karim P.W.7, who produced them before the S.H.O alongwith their fire-arms, which they were carrying when they went to Abdul Karim P. W. The S. H. O. Arrested them and took into possession gun P. 4 of Bashir (acquitted accused) and rifle P. 5 of Ghani appellant, ride memo, Exhs. P. E. And P. F. Respectively.
Rifle P. 5 as well as empty cartridge P. 3 were sent to the Forensic Expert but his report was not produced at the trial. After preparing the usual documents, the Investigating Officer sent the dead body to the mortuary for post--mortem examination which was conducted by Dr. Ghulam Farid M.
O. Civil Hospital, Jampur. He found four injuries on his person.
3. Both the accused were challaned and were subsequently committed to stand their trial before the Court ' of Sessions, the result whereof has already been mentioned above.
4. At the trial the prosecution produced 12 witnesses in support of its case. The prosecution evidence consists of
(i) the evidence of motive,
(ii) the ocular evidence,
(iii) extra-judicial confession said to have been made by the two accused before Abdul Karim P.W.7.
(iv) the evidence of recoveries, and
(v) the medical evidence.
5. When examined at the trial the appellant simply denied his guilt and pleaded innocence and stated that he had been involved in the case due to enmity with the P. Ws.
6. We have heard the learned counsel for the appellant as well as the learned State counsel and have gone through the entire record with their help. The appellant's counsel pointed out that since the report of the Ballistics Expert was not produced at the trial, there is no evidence connect--ing rifle P. 5 and the crime empty P. 3 and therefore these recoveries even if believed, cannot be treated as evidence corroborative of the ocular testi--mony. He submitted further that, out of three eye-witnesses produced at the trial, Bakhsh A.I P. W. 10, has not been relied upon by the learned trial Judge. As to the remaining two eye-witnesses i.e. Pairs P. W. 8 and Bakhshu P. W. 9, he submitted that their testimony is discrepant and there--fore is not worthy of reliance. He also attacked the statement of Abdul Karim P. W. 7 who has deposed with regard to the extra-judicial - confession said to have been made by the two accused before him and recovery of their respective fire-arms which were produced by him before the Investiga--ting Officer and pointed out the contradiction in his testimony and that of Hazoor Bakhsh P. W., another witness of the recovery of the aforementioned fire-arms. He argued that their testimony, too is not worth relying and appellant deserves to be acquitted.
7. We have considered all the aforementioned contentions. It is correct that crime empty P. 3 was not got matched with rifle P. 5 recovered from Ghani appellant and as such these recoveries do not advance the prosecution case and cannot be used to corroborate the ocular testimony. It is also correct that out of three eye-witnesses Bakhsh A.I P. W. 10, the father of Paira P. W. 8, has not been relied upon by the learned trial Judge as his name was not mentioned in the F. I. R. The learnedth State counsel also did not press his testimony before us. We are, therefore, inclined to keep the same out of consideration.
The two accused are said to have appeared before Abdul Karim Lambardar P. W. 7 alongwith their firearms made their, extra-judicial confession before him and asked him to produce them before the police ; the latter is said to have produced them before the Investigating Officer "at the spot" where he (Abdul Karim P. W.), also presented the two fire-arms, P. 4 and P. 5, to the Investigating Officer. The recovery memos. Exh. P. E. And P. F., were signed inter alia, by Hazoor Bakhsh P. W.
6. But this witness is said to have been present when Abdul Karim P. W. 7 produced the appellant and his co-accused before the Investigating Officer but he has stated before the police and the committing Magistrate that Abdul Karim P. W. Had produced the appellant and his co-accused before the Investigat--ing Officer "at the Police Station" (which is 9 miles from the spot according to the F. I. R.) but finding this to be inconsistent with the story given by the Investigating Officer-and Abdul Karim P. W. He changed his statement and said that Abdul Karim P. W. Had produced the two accused before the police 'at the spot'. This casts a doubt in our mind, not only with regard to the recovery of the weapons of which Hazoor Bakhsh P. W. 6 is a witness but also to the testimony of extra judicial confession, of which Abdul Karim P. W. Is the solitary witness.
8. But notwithstanding the abovementioned facts we are inclined to rely on the testimony of Paira P. W. 8 and Bakhshu P. W.
9. No doubt they are related to the deceased but they are natural witnesses inasmuch as they lived in the ihata where the incident took place. Moreover it is not the defence case that they had any enmity whatsoever with Ghani appellant. As a matter of fact no suggestion of any serious enmity to the witnesses was put during their cross-examination. As already mentioned above, the motive for the offence is said to be that Mehrab, whom the accused had come to kill, was suspected of carrying on with Mst. Sughran, the wife of Chandi but the witnesses have not mentioned the name of Chandi as the accused but that of Ghani appellant and Bashir co-accused. Had they not witnessed the occurrence they would certainly have named Chandi, the husband of Mst. Sughran as the assailant, as he would have been the primary suspect.
The fact that they have not mentioned him but the present appel--lant and his co-accused as the assailants, goes to show that the F. I. R. Was not the result of guess work and that it is not a case of substitution. It is in evidence that it was a moon-lit night and the moon was in the sky at the time of the occurrence, which had taken place in the later part of the night. Since, the eye-witnesses knew the two assailants previously they could easily have recognised them. There can, therefore, be and doubt as to the identity of the assailants.
9. We now proceed to consider the medical evidence. According to the post-mortem report there were four injuries on the person of the deceased which are as follows :-
(i) One lacerated wound 2" x 1--" x muscle deep at right angles to the length of the right upper arm, near about the middle on' the posterior surface.
(ii) One lacerated wound with inverted margins 1" x 1" on the right mid axillary line on the posterior surface of the right lung, left atrium of the heart and middle of the left lung, breaking the 5th rib.
(iii) One lacerated wound 1--" x 1--" with everted margins on the left anterior axillary line at the 5th rib.
(iv) One lacerated wound 2" x 2" on the anterior aspect of the left upper arm on the level of the injury No. 3. It was muscles deep, transverse to the length of the arm.
There are two wounds of entry and two wounds of exit. At first glance it would appear that the number and nature of the injuries does not support the testimony of the eye-witnesses. Yet, on closer examination, one finds that these four injuries could have easily been caused by a single shot. The doctor has also categorically opined that all the injuries on the person of the deceased were the result of a single fire. It appears that the assailant fired a shot which first pierced the right upper arm entered into the right side of the chest and passing through chest, came out of opposite side and while coming out also grazed the left upper arm, thus causing the four injuries mentioned above. We, therefore, feel that the ocular testimony which is in itself reliable, is also supported by the medical evidence. We, therefore, see no reason to interfere with the judgment of the learned trial Judge and reverse the conviction. The appeal is, therefore, dismissed.
We now take up the question of sentence. Although the appellant killed a person other than the one he had come to murder yet, in law, his liability remains the same as if he had murdered the person whom he intended to kill (Refer section 301 of the P. P. C.).
Keeping in view that he had entered the house of the opposite-party at the dead of night and shot at and killed a sleeping person, we feel that he deserves no leniency. The sentence of death awarded to him is justified in the circumstances of the present case. The same is, therefore, confirmed.
This disposes of the appeal as well as the Murder Reference.