I. MAHMOOD, J.-----The appellant, Mirza Inayat Beg aged 35 years, along with three other accused A.I Haider Shah, Muhammad Siddiq and Shah Nawaz were committed for trial under sections 302, 324 read with section 34 P. P. C. On a charge of murder of a minor boy, Hanif, aged 10 years and also causing simple injury to one Mst. Durnaz, by firing from a revolver from inside a taxi.
By his judgment dated 2-1-1971, the Additional Sessions Judge, Karachi convicted the appellant under section 302/34, P. P. C. And sentenced him to transportation for life under section 302, P. P. C.
And one year R. I. Under section 324, both sentences to run concurrently. He, however, acquitted the other three accused as he found that common intention had not been proved. There is also a reference for enhancement of his sentence to death. This judgment will dispose of both the matters.
2. The prosecution case was that on 31-3-69 at about 2-00 p. m. The appellant and acquitted accused A.I Haider Shah hired a taxi No. KAX/4848 which was driven by Ghulam Qadir son of Chhar Shambey, (P. W. 9) for having a joyride and indulging in frolic. On the way from various parts of the city, they picked up firstly Muhammad Siddiq, then Shah Nawaz and lastly one Siddiq alias Billa, who was declared an absconder. They had liquor and wine with them and they picked up a few bottles of soda water and some glasses on the way. They stopped at various places drinking and were in a state of intoxication. At Plaza Quarters, acquitted Shah Nawaz picked up a revolver. They also stopped to take charas. At about 4.45 p. m. The taxi was passing Gabole Road. It is alleged by the prosecution that the appellant fired from his revolver haphazardly from inside the taxi from the right side as a result of which one Mohammad Hanif a boy aged 10 years was injured on his forehead and a woman Mst. Durnaz was injured in the foot. After firing, the taxi proceeded towards Ghas Mandi where the fifth person Siddiq alias Billa got down and disappeared into a lane. The incident was witness--sed by the taxi driver Ghulam Qadir (P. W. 9), the complainant Noor Muhammad (P: W. 1) and several other P. Ws. Who were either sitting at that time in a restaurant on Gabole Road or were passing it. The complainant Noor Muhammad (P. W. 1) who was sitting in a hotel at Gabole Road and who saw firing coming from the taxi went on his bicycle to lodge the F. I.
R. At the Kalakot Police Station, a mile and a half away. On the way, he met Khawaja Nisar A. S. I.
Riding a motor-cycle to whom he narrated the incident. The police officer seated the complainant on his motor-cycle and both chased the taxi which was soon overtaken and seized. The A. S. I.
Found seated in the taxi, besides the taxi driver Ghulam Qadir (P. W. 9), four persons including the appellant, who was seen seated in the back seat on the right hand side of the taxi. Acquitted accused Shah Nawaz was seen seated by the side of the taxi driver in the front seat. The appellant and the remain--ing three occupants were secured and searched. From the person of the appellant, a .32 bore revolver No. BB-5153 with two fired cartridges and one live cartridge and from acquitted accused Shah Nawaz, a .32 bore revolver No. BB-4930 with three live cartridges were recovered. A full bottle of wine and another empty bottle of whiskey and some glasses and soda water bottles were also recovered from the taxi. These recoveries were made in the presence of mashir Ghulam Muhammad (P. W. 4) who was passing-by and who also saw the firing. The appellant along with the other three acquitted accused were taken to the Police Station and were produced before Muhammad Nishan, S. H.O., Kalakot Police Station (P. W. 14) who recorded the complaint of Noor Muhammad (P. W. 1), arrested the accused and completed the investigation.
After recording the statements of the witnesses comment to the wardat, took samples of blood- stained earth and clothes of tea he went which he sent to the chemical examiner, who reported that they deceased stained with human blood. He sent the two revolvers to the ballistic were slat for examination and report. He then challaned the appellant and the expert declaring Siddiq alias Billa as an absconder.
3. The medical evidence is that of Dr. Moosa Ibrahim (P. W. 10), who examined the injured Mohammad Hanif and found a punctured wound on the right side forehead having diameter --" with edges inverted and brain matter coming out and one contusion on the left side of his forehead. He stated that the former injury was caused by a fire-arm. Muhammad Hanif died on that evening. The appellant and the other acquitted accused were also examined by him for being drunk and on examination were found to smell of alcohol from their mouths and expressed his opinion that all of them had taken alcohol.
4. The evidence of the Ballistic Expert Mukhtar Ahmad (P. The effect that the two crime empties were fired only from the .32 caliber revolver No. HB-5153 which was recovered from the person of the appellant.
5. In his statement before the trial Court the appellant denied that he fired from a revolver. He stated that he was sitting on the left side in the back seat of the taxi and that it was Siddiq alias Billa who was sitting on the right side in the back seat. The appellant admitted having gone with the others in the taxi and in reply to the question as to whether he and other acquitted accused were secured by the police from the taxi he stated that being in a state of intoxication he could not say what was recovered from the taxi. He, however, admitted that he was Excise Police Constable and kept revolver under licence. He also stated that he was being falsely implicated because he and other excise people have been raiding Kalakot for security e contraband articles and hence the witnesses were deposing against him.
6. In support of its case, the prosecution relied on three pieces of evidence, namely, ocular evidence, the recovery of the revolver and the opinion of the ballistic expert. There is unequivocal evidence of Ghulam Muhammad, Taj Muhammad and Abdul Hameed that the shots were fired from inside the taxi. Complainant Noor Mohammad has not supported the prosecution case to the extent that in his testimony he has resiled from his earlier version and stated that he only heard from others that shots were fired from the taxi. This will not however affect the other ocular testimony on this aspect of the case. Mst. Durnaz merely stated that having reached Gabole Road she was hit by a bullet but she was unable to say from which direction the bullet had come. This would also not affect the other ocular testimony as she may have been unmindful at that moment and therefore unable to see for herself. However the most important evidence is that of Ghulam Qadir taxi driver. It is from his evidence that the prosecution set out to prove that firing came from inside the taxi, and that the appellant was sitting in the back seat and that therefore it was he, who had fired the shots. On this aspect, the ocular evidence is that of the taxi driver Ghulam Qadir (P. W.
9) who is the most natural witness and one who was in the closest proximity to the appellant. He stated in his evidence that as the taxi was turning towards Gabole Road, he heard the sound of firing and turned back and saw the appellant firing. That at the time, the appellant was sitting on the back seat behind him on the right side of the taxi while Shah Nawaz, the acquitted accused, who was sitting in the front seat besides him did not fire. After the firing, the taxi went towards Ghas Mandi when the fifth man, namely Siddiq alias Billa the absconding accused, got down and went into a lane. But in the cross-examination, he admitted that Siddiq alias Billa was also sitting on the back seat. It Is not in doubt that the appellant was sitting on the back seat, but Ghulam Qadir was confronted with his section 164, Cr. P. C. Statement in which he had not stated that appellant sat on the right side behind him, and further that he had seen him firing the shots, nonetheless the fact remains that shots were fired from inside the taxi by some one sitting on the back seat. However the circumstantial evidence is that the taxi was pursued by Nisar Ahmed A. S. I. And on being stopped at Nawabshah Road, three persons were found on the back seat while one on the front seat next to the driver. That person was Shah Nawaz. One of the three persons on the back seat of the taxi was the appellant. From his personal search, a licensed revolver with two crime empties and one live bullet in the chamber were secured. The appellant while admitting that he possessed a licensed revolver denied knowledge of what was secured from him. Under the circumstances the seizure of that revolver cannot be doubted. He has not offered any explanation as to how the chamber contained two crime empties. In the context of the evidence of the ballistic expert that the two crime empties were fired by the same revolver and that the shots undisputedly were fired by one of the persons sitting in the taxi, the irresistible conclusion is that it must be the appellant who had fired the revolver shots. It may be of advantage to mention that Shah Nawaz was also armed with a revolver but Ghulam Qadir has stated that he had not fired the shots. Equally, there is no evidence that the absconding accused Billa was armed with a revolver. It is therefore far-- fetched to assume that Billa was the likely person who could have fired the shots. It was urged that none of the witnesses in their earlier versions have stated that the appellant, was sitting on the right side of the back seat and had fired and therefore what was stated at the trial, was an exaggeration and could not be acted upon. This distinction is artificial, for even if the witnesses had omitted to say so in their earlier statements, that at best was an inconsequential omission having regard to the strong circumstantial evidence against him. The appellant in his explanation has stated that it was Billa who was sitting on the right side of the back seat and the learned counsel wanted me to infer that it might have been Billa who had fired the shots. There is no evidence on record to lead to the inference that Billa was armed at all and if that was so, it could only be an assumption without any substance. There is unimpeachable evidence that two crime empties were found in the chamber that this much can be said with certainty that, at least, two shots were fired from the revolver from the person of the appellant which is consistent with the injuries found on two different persons of whom one died and the other injured but is alive.
7. The learned counsel again urged that the evidence of the ballistic expert could not be relied upon because of the delay in sending the weapon for matching. In support of his contention he relied on the fact that in case of delay some chemical changes occur in the barrel of the weapon which make it difficult to connect it with the crime empties. The ballistic expert while admitting that it may be so, repelled the fact that in the instant case, such a change had taken place to make it difficult to identify the crime empties with the crime weapon. There is therefore no substance in this contention as there is nothing on record to doubt his opinion. We have noticed from the evidence that the appellant had no particular reason to kill any one but that be fired the shots while under the effect of intoxication. That would not mitigate the offence, for the appellant had fired two shots at a place in a crowded area and actually the shots hit in the leg which leaves no room for doubt that the appellant had knowledge that the act was no imminently dangerous that it would in all probability cause death, or such bodily injury as is likely to cause death. Accordingly, be was rightly convicted under section 302, P. P. C. The next question is whether his sentence should be enhanced.
We would like to observe that the conviction was recorded on 2nd January 1971 and if he had been sentenced to death his sentence would have been commuted as was in the case of others, pursuant to an order of the President. Accordingly, we do not propose to deprive him of that benefit. Even otherwise, he had not planned to kill any one and possibly under the effect of intoxication, he indulged in firing at the crowd, which could also be a mitigating circumstance.
While therefore maintaining his conviction and sentence, we dismiss the appeal but vacate the notice.