JAMALUDDIN H. AHMAD, J.-----The appellant Muhammad son of Duet A.I Khan has filed this appeal against the judgment of the Sessions Judge, Sanghar, dated 9-4-174, who has convicted him for offence under section 302, P. P. C. And sentenced him to imprisonment for life, for having murdered one A.I Bux Machi.
2. The case of the prosecution is that on 6-3-1973 the appellant had appeared himself at the Shahpur Chakar Police Station at 7 a.m. And produced his licensed '12 bore D. B. Gun and had made a statement which was recorded by the A.S.I. In the 154 book and treated as F.I.R. For the crime, he becoming the complainant on behalf of the State. The appellant, himself is a zamindar and lived in his own village which was at a distance of about 1-- S. Nos. From the land of Haji A.I Nawaz Sanjrani where the deceased A.I Bux lived and worked as a hart. He was also employed on the shop of Haji A.I Nawaz Sanjrani which was at Shahpur Chakar. The route of the deceased for going to Shahpur Chakar lay through the fields near the house of the appellant where his wife Mst. Mariam and daughter-- in-law Mst. Moumal wife of Allah Devayo also lived. These women had been complaining about the misbehaviour of the deceased A.I Bux, in that he used to make gestures to them by folding hands and also by taking of his turban thus making entreaties for illicit relations.
The appellant mace a complaint of this to the zamindar of the deceased, i.e. Haji A.I Nawaz Sanjrani and his Kamdar Sodo Khaskali who had promised to admonish the deceased for his misbehaviour.
3. A day prior to the incident there bad been a confrontation between the deceased and the appellant at evening time when the deceased bad abused the latter, asking him to keep his cattle under control so that crop may not be damaged in the fields of Haji A.I Nawaz Sanjrani. This happened near the water Minor, on the track leading to the house of the appellant. Oil reaching home he again received a fresh complaint from the women folk that the deceased had misbehaved with them as before, during day time. On the following day i.e. On 6-3-1973 when the deceased A.I Bux was passing by the same route the appellant fired at him successively which resulted is a his death.
4. The A. S. I. Muhammad Shaft who recorded this F. I. R. At 7 a.m. Arrested the appellant and secured the licensed gun alongwith 3 empty cartridges and 5 live cartridges, that were produced by him and he sealed them separately. The appellant was sent to a Magistrate for recording his confession which however was not done as the appellant refused to make any.
5. To support this case the prosecution examined P. W Akk Sanjram and Dhani Bux Machi as eye- witnesses of the incident who claim to have seen the appellant actually firing at the deceased and killing him with his gun. To corroborate their eye version Sulleman Kumbhar was examined to say that he was informed about this incident by Akk, and he on his turn related the same story to Bahadur Machi who also so deposed in Court. 'The A. S. I. Muhammad Shafi and the mashir P. W.
Gul Hassan were examined to prove that the appellant appeared at the police station before him and produced the D. B. Gun alongwith the empty cartridges which were sealed, which were sent to the ballistic expert P. W. Mukhtar Ahmad. The opinion of this expert was that two of the crime empties had been fired from the left barrel of the crime weapon while he could not form any opinion about the third crime empty for lack of sufficient identifiable data. It was further stated that the appellant took the A. S. I. And the moshir and showed them the place of incident as well as the dead body that was lying there. He also pointed out the place where he was sitting in waiting for the deceased to come. Mashirnama to this effect is also prepared and produced. Dr. Muhammad A.I who had examined the injured deceased and had also held post-mortem of his body supported the fact that the deceased died an unnatural death due to injuries that had been caused by a fire arm. The tapedar Din Muhammad was shown the place of incident on 13-3-1974 by one of the eye- witnesses, Dhani Bux and he prepared the sketch of the said place by taking measurement with a tape.
6. The appellant's own case was that of denial wherein he did not admit that he appeared before the Shahpur Chakar P. S. To make any statement or that he produced his gun and the empty as well as live cartridges. He had not led the police to the spot where the murder was committed or where he himself was alleged to have been sitting in waiting for his arrival. According to him, no complaint was made to him by his wife or daughter-in-law about the misconduct of the deceased and that the witnesses who had deposed against him and in favour of the prosecution were men of A.I Nawaz, Shah Nawaz and Abdul Qadir Sanjranis who were opposed to him. They had enmity with him over land matter as well as on account of the fact that he had opposed the election of Abdul Qadir Sanjrani.
The trial Court, however, disbelieved the evidence produced try the appellant and examined the ocular testimony of P. Ws. Akk and Dhani Bux, supported by the corroborative evidence Sulleman and Bahadur and production of the crime weapon etc. By the appellant alongwith the evidence of the ballistic expert and the medical officer and considered all this evidence to be reliable and Sufficient for the conviction of the appellant.
7. Before us the learned counsel for the appellant has severely attacked the various pieces of evidence produced against the appellant. According to him the statement made by the appellant which is recorded and used as F. I. R. Was inadmissible in evidence and could not be taken into account against the appellant. This statement should be wholly and completely excluded from consideration as being the statement of an accused person made before a police officer which is in the nature of a confession. The contention has any amount of force in it but this can always be limited only in so far as it extends and is applicable to the inculpatory part of the state--ment made by the appellant before the police is concerned and it cannot be accepted as a general proposition of law to exclude whatever he said in the presence of the police. In fact the Sessions Court itself has not used any such part of the statement of the appellant in its judgment against him except perhaps while considering the question of motive, a reference has been made to the F.
I. R. And it is stated "hence he made up his mind to finish accused A.I Bux. Consequently on 6-3-73 at 6-30 a.m. A.I Bux was murdered." On the point of motive there is also the evidence of the other witness Bahadur who was the maternal uncle of the deceased A.I Bux hence this reference to the statement of the deceased in the F. I. R. Was totally unnecessary. Any statement made by the appellant in his statement to the police which tended to incriminate him with reference to the offence with which he is charged is not to be considered.
8. The ocular testimony of the two witnesses Akk and Dhani Bux which has been corroborated by witnesses Sulleman and bahadur who were immediately informed was also criticised as being interested. P. Ws. Dhanl Bux, and Bahadur are of course relations of the deceased, A.I Bux. Bahadur is also a hari of the Sanjranis. P. W. Akk himself a Sanjrani by case in related to Shah Nawaz Sanjrani, the brother of a A.I Nawaz Sanjrani on whose lands the deceased lived and whom he worked.
Witness Dhani Bux although a Kumbhar by case was a Munshi of Shah Nawaz Sanjrani. According to the learned counsel these witnesses were all connected with the Sanjranis with whom the appellant claimed to have a dispute over land and also on account of the fact that he had not taken their side in the election of Abdul Qadir Sanjrani.
Now this argument taken by itself has not been impressive at all. A witness could be discredited and disbelieved on account of his relationship or any other such attachment with the deceased if it could be positively shown that the interest of the witness is of a nature which would inspire him to an extent so as to implicate others falsely for a crime which to his knowledge is not perpetrated by those whom he is accusing. It is a weld established proposition of law that a witness is not to be disbelieved merely) on account of the fact of his relationship with the deceased. The enmity of the Sanjrani zamindar with the appellant in the case is not established in fact it exists only as an allegation, which exists in not more than a mere suggestion in the form of questions to the effect that there was a dispute over land or that the :appellant had opposed Abdul Qadir Sanjrani in the election. Actually it was the case of the prosecution that the appellant had complained to Haji A.I Nawaz Sanjrani about the misconduct of deceased A.I Bux. This was not only in the statement of the appellant himself but also it? The deposition of P. W. Bahadur who apart from being a relation of the deceased was also the hari of A.I Nawaz Sanjrani and this part of his statement has not been challenge in cross-examination, If the feelings of A.I Nawaz Sanjrani towards the appellant were inimical, this conduct by way of a complaint to him would not have been natural.
What the appellant has said in his own statement ors this aspect of the matter is also nothing more than a vague allegation :- "They are men of Shah Nawaz and A.I Nawaz Sanjranis with whom I have enmity on land matter as well as because of election of their brother Abdul Qadir whom I opposed.-- He has examined in his defence, witness Muhammad Juman who was also a mashir for the prosecution regarding production of the incriminating articles and taking the police to the place of murder. He has supported the appellant on the alleged enmity of the Sanjranis but has deposed to facts which were not even mentioned by the appellant in his own statement, nor even put in cross- examination to any other witness.
He said :- "Mohabat, his father and other relatives opposed Abdul Qadir in elec--petition. Accused has also dispute with Sanjranis over lands. Since then they are angry. Last year during these days Abdul Qadir's brother Shah Nawaz was arrested. Muhabat and other persons sent applications against them."
9. The medical evidence shows that the deceased had the following injuries:--- "(1) 9 small points entry wounds 1/6' in diameter each and scattered from each other on left side of the abdomen.
(2) 4 exit wounds 1/2' in diameter on back of the abdomen.
(3) Oval entry wound 1' in diameter on right temporal region near the ear and pinna at the ear lacerated.
(4) Exit wound 2' in diameter on left parito temporal region with brain matter out of the wound."
Dr. Muhammad A.I who had examined the dead body, stated that the injuries had been caused by two gun shots. He has also described the range wherefrom the first injury was caused to be about 20 to 25 yards, which would be equi--valent to 60 to 75 feet and that of the other injury to be about 8 to 10 feet. The opinion of the ballistic expert who had examined the '12 bore D. B. Gun alongwith the three crime empties was also that the two crime empties had been bred from the left barrel of the shotgun. About the third crime empty of course he could not give any opinion as already stated. In the context of this Medical evidence and the opinion of the ballistic expert, the evidence of the two eye-witnesses Akk arid Dhani Bux needs to be examined. Akk had seen the deceased going 40 to 50 paces ahead of him and had heard a gun shot which missed him. The second shot fired at A.I Bux hit him on his abdomen and the third hit him near the ear on his head. According to him deceased A.I Bux then fell down. Same is the evidence of the other eye-witness Dhani Bux, according to whom also the first shot missed deceased A.I Bux while the second hit him on the abdomen. He further said that the appellant thereafter came near the deceased and fired the third shot from the dose range which hit him near the ear on the head. It would thus appear that the evidence of the two eye-witnesses Akk and Dhani Bux is quite in consonance with that of the medical officer and the ballistic expert which in fact supports them. The learned counsel for the appellant referred to the evidence of the tapedar and the sketch prepared by him and attempted to show that the various spots mentioned by the tapedar at the pointation of one of the eye- witnesses Dhani Bux showed that the injuries could not have been inflicted in the manner in which they are described by the eye-witnesses in their own evidence. But even this is not in fact borne out by the statement of the tapedar, Point `F', which is at a distance of 45' from the place where the dead body of the deceased was lying is not the place from where the second shot was actually fired so as to hit him in the head. This point is described as the place from where the appellant actually came up to the place where deceased A.I Bux was and then tired at him, and this was the shot that has hit him on the head. Even on this score there appears to be no discrepancy.
10. The production of the crime weapon i.e. The gun and the empties as well as the unused cartridges before toe police by the appellant has been established by the evidence of the mashirs and the I. O. Himself. Although the other Mashir Muhammad Juman has given a go bye to the prosecution and was subsequently examined in defences, he has not been able to damage this aspect of the prosecution case. According to him he was made a mashir of production of gun and cartridges and the same time was morning timeHe has thereafter made inconsistent statements which shows that he was untruthful witness. He at first stated that appellant Muhabat was already sitting with the police and that the police had the gun and the cartridges. But again in his cross- examination he stated that he was sitting at the police station when the appellant was brought in a tonga by P. W. Nawaz Sanjrani and the police prepared the mashirnama of the appellants arrest and securing of weapon after that. This shows that the witness had an unsuccessful attempt to help the appellant the evidence of the other a witnesses on this point seems to be true and establishes the fact of production of the incriminating articles by the appellant himself before the police.
There is however one aspect of the case emerging out of some state--ments made by the two eye-witnesses Akk and Dhani Bux which according to the learned counsel for the appellants made the whole prosecution case doubtful on the point of identification of the appellant at the time of the commission of this offence. Akk in cross-examination has stated that the appellant was running away with his back towards him, and that his face was muffled. That he identified the appellant by the colour of his clothes, and his structure, as the appellant and the witnesses belong to the same locality. He also stated that the other eye-witness Dhani Bux also had not been able to see the face of this appellant as that was muffled and that he had identified him on account of his size, structure and construction of his body. Same is the nature of the statement made by E. W.
Dhani Bux in his cross-examination, with regard to the identification of the appellant. He was following Akk and bad seen the appellant running away by the path of the canal of the minor with his face muffled and he had identified him by the colour of his clothes, and also because they belonged to the same locality. The counsel for the appellant contended that the time of the occurrence being that when the sun was about to rise, and the eye--witnesses having seen the appellant from a distance of about 185 feet, according to the Tapedar's sketch, it was not possible to rely on this sort of evidence of the eye-witnesses to say without any suspicion or doubt that the appellant had in fact been identified at that time.
11. The learned Sessions Judge has considered these statements to be obliging statements made in cross-examination when in examination-in---chief the two eye-witnesses have fully supported the prosecution case. He, therefore, stated "As far as the obliging-replies of these two witnesses are concerned I do not believe that the face of the accused was muffled in the broad morning light.
Hence I do not place any reliance on these obliging statements made by P. Ws. Akk and Dhani Bux and hold that they had seen and identified the accused while he was committing the murder of A.I Bux."
To the 'learned counsel for the appellant this reasoning of the trial Court was not acceptable as his case was based on the theory of false implication on account of the enmity of Sanjrani zamindar, at whose instance the two witnesses were giving evidence as set-up witnesses. But in spite of the reasoning of the trial Court the case of the prosecution was that the eye-witness Akk followed the appellant who himself went to the police station at Shahpur Chakar. P. W. Dhani Bux who waited by the side of the dead body also states that Akk followed the appellant. In the F.
1. R. The time of occurrence is shown about 6-30 a.m. And that of the report as 7 a.m. If Akk was following the appellant up to Shahpur Chakar P. S. I.e. For a distance of two miles, from 6-30 a.m. To 7 a.m. In the mouth of March, there is hardly any doubt that he would not know as to who the murderer was. And this part of his statement has not been challenged in his cross-examination.
Akk is very clear in his statement that after following the appellant up to the police station, he then came to the bus stand where be requested P. W. Sulleman to go and inform the relations of the deceased A.I Bux in the village. P. W. Sulleman has further clarified this position and confirmed the statement about the identification of the appellant as he was in specific terms informed that Dhani Bux was sitting at the dead body and that appellant Muhabat had gone to the Police Station Shahpur Chakar. The witnesses appear to be truthful and their version has been sufficiently corroborated by other pieces of evidence, as discussed already.
Before parting with this case, it may be necessary to deal with an argu--ment that had been raised by the learned counsel for the appellant about the evidence given by P. W. Akk before the Committal Court and which the trial Court had allowed to be brought on record merely by making a note 'brought under section 288 Cr. P. Code'.
The trial Court in its judgment has neither used this statement recorded in the committal proceedings nor has made any reference to it. Therefore, it is not relevant to discuss the same for the disposal of the case, but it is still necessary to point out that the trial Court must know and carefully follow the procedure that is required to be followed under section 288, Cr. P. C. Before allowing the statement of the lower Court to be brought on the record of the trial Court.
12. In the result, this appeal is dismissed, and the conviction and sentence passed against the appellant is upheld.
AGHA ALI HYDER, J.-----I agree.