MUSHTAK ALI KAZI J.----The appellant has been convicted by the II Additional Sessions Judge, Nawabshah for offence under S. 302, P. P. C. For having committed murder of one Shamman Shah and he has been sentenced to undergo transportation for life and to pay fine of Rs. 5,000 or in default to suffer further R.I. For one year.
2. On 12-5-1971 in the afternoon deceased Shamman Shah, a boy of about 17 years had gone to attend the wedding ceremony of Mirbahars at Lalia village. Accused Moula Bux Jessar, Khanu Paryyhar and Piru Bhatti were also present at the ceremony. After dinner at about 10-30 p.m. The feast came to an end as the music programme which was to follow the dinner had been cancelled. Shamman Shah accompanied by P. W. Mauj A.I Shah and accused Moula Bux, Khanu and Piru left together for going on foot to lanalo village where they resided. Complainant Miral Shah and P. W. Noorul Shah also left for the same village and were going at a distance of about 50 paces behind the party of Shamman Shah. They had hardly gone for a few furlongs when appellant Moula Bux was heard cutting jokes with Shamman Shah who got annoyed and asked Moula Bux not to indulge in that type of mischief with him. This was followed by exchange of abusive language. Shamman Shah tried to get away from them when appellant Moula Bux fired a pistol shot at his buttocks from behind at a very close range. Shamim shah raised a cry and fell down as a result of the pistol shot. Miral Shah and Noorul Shah ran up to the place of the incident on hearing the gun report. Miral Shah and Mouj A.I Shah caught hold of appellant Moula Bux and seized the pistol from his hand. His pistol smelt of gun powder Find there was an empty .12 bore cartridge still inside tire barrel. P.W. Noorul Shah was then sent to inform Syed A.I Shah father of Shamman Shah, at his village Junali, about what had happened. Noorul Shah on reaching the village at about mid- night, informed Syed A.I Shah, that Moula Bux at the instigation of Khanu and Piru had caused pistol shot injury to Shamman Shah. Syed A.I Shah and his son Masum A.I Shah accompanied Noorul Shah to the scene of occurrence situated between Lalia and Junalo villages. These two villages were about one mile apart. Syed A.I Shah found his son Shamman Shah lying injured. Mouj A.I Shah, Miral Shah and others were with him. Accused Moula Bux, Piru and Khanu were also present. Miral Shah handed over the pistol which he bad snatched from Moula Bux to Syed A.I Shah. Appellant Moula Bux admitted his guilt and begged to be pardoned. Syed A.I Shah then took his injured son and the accused persons towards Moro Police Station for lodging report. On tine way ear Sabil, injured Shamman Shah succumbed to his wounds Accuse. Piru then slipped away from the party.
They reached the Police Station at about 2.30 a.m. They were however asked to come in the morning. They therefore took the dead body and the accused to the house of Mr. Jam Karamdin who was an advocate and was also Zamindar of accused Moula Bux. The party Informed Jam Karamdin to what had happened, and thereafter they came back to the Police Station in the morning.
3. S. H. O. Dost Mohammad of Moro Police Station recorded the F.I. R. Lodged by Miral Shah at 6-30 a.m. He prepared mashirnama of injury or the dead body of Shamman Shah and also inquest report. He then sent the body to Medical Officer, Moro for post-mortem examination. But since he was not available, the body was taken to Medical Officer Tharo Shah. P. W. Syed A.I Shah produced the country-made pistol of 12 bore. Secured from Moula Bux before the S. H. O. Alongwith the crime empty cartridge. Moula Bux had no licence for this pistol. S. H. O. Then recorded the statements of witnesses Syed A.I Shah, Mouj A.I Shah, Masum A.I Shah, a, Noorul Shah and others and then arrested accused Moula Bux and Khanu. Thereafter he visited the scene of occurrence situated on the Kutcha road between Lalia and Junalo villages. He secured the blood-stained from the scene.
Mashirnama of the scene was prepared. Accused Piru was then arrested from his house. On 17-5-71 the S. H. O. Got 164 Cr. P. C. Statements of the prosecution witnesses recorded by the Mukhtiar kar and F. C. M. Moro. The three accused were then sent up in Court under a charge-sheet on 28-5-71.
The blood-stained earth was sent to the Chemical Examiner while the pistol and the crime empty were sent to the Ballistic Expert. The accused were committed to stand their trial in the Court of Sessions. The learned Additional Sessions Judge, Nawabshah acquitted accused Piru and Khanu for want of sufficient evidence regarding investigation of this murder but he convicted the main accused Moula Bux and sentenced him as above.
4. There can be no doubt regarding the fact that Shamman Shah died as a result of the gun-shot injuries. Dr. Sikandar A.I who performed the post-mortem examination on his dead body found the following external injury: One circular rupee-sized gun-shot wound of entrance and abdomen deep over the left lumber region. The surrounding skin of the wound was burnt and of black colour.
5. On internal examination the Medical Officer found that his 11 left rib was fractured at the back.
The pancreas were congested and burnt. The small intestines as well as the large intestines were congested burnt and pierced. The spleen was burnt and smashed. The left kidney was also burnt and smashed while the right kidney was badly congested. Three pee-sized pellets were taken out from the wounds. Death had occurred due to shock and haemorrhage as a result of the above injuries, which appeared to have been caused by discharge from a fire-arm such as a gun or country made pistol. The injury was sufficient in the ordinary course of nature to cause death. It is thus clear that Shamman Shah died on account of a pistol shot fired behind him at his buttocks from very close range causing blacken--ing and burning of the skin around the wound of entrance.
Any one who fired the pistol shot such close range, must have intended to cause such injury as was sufficient in the ordinary course of nature to cause death.th
6. The next question for consideration in this case is whether appellant Mould Bux fired that fatal shot with the requisite intention. On this point there is ocular testimony of complainant Miral Shah and prosecution witnesses Mouj A.I Shah and Noor Shah. There is also extra judicial confession of appellant Moula Bux before Syed A.I Shah, Masum A.I Shah and other witnesses. Lastly there is the circumstantial evidence that the smo king pistol was snatched from appellant Moula Bux by Miral Shah and it still contained the crime empty, which was later on found by the Ballistic Expert to have been fired from the same pistol.
7. Complainant Miral Shah had resiled from his deposition made in the lower Court and the F.I.R.
Lodged by him, at the stage of his evidence at the trial. He was confronted with his deposition in the lower Court, which has been brought on record as substantive evidence under S. 289 Cr. P. C. The evidence given by Miral Shah before the committing Magis--trate is consistent with his F. I. R. And is corroborated by P. W. Mouj A.I Shah and the surrounding facts and circumstances which have otherwise been thoroughly established from independent evidence. This evidence of Miral Shah before the committing Magistrate, is therefore more reliable and convincing than his evidence recorded in the Court of Sessions. In his evidence under S. 288 Cr. C. P. Miral Shah has narrated the facts as already described above in the prosecution story.
8. Then there is evidence of P. W. Mouj A.I Shah who was with the deceased at the time of the incident of murder. He has deposed that after the three accused joined them, he and Miral Shah lagged behind by about 2 paces while Shamman Shah went ahead with the accused. They then heard Shamman Shah and the accused engaged in loud talk and found Shamman Shah trying to run away. This was followed by the pistol shot. They rushed to the place and found Shamman Shah lying injured and Moula Bux still having the pistol in his hand. Moula Bux gave up the pistol and offered to pay compensation.
9. Then there is evidence of Noorul Shah, who also turned hostile while giving evidence at the trial.
His deposition before the committing Magistrate has accordingly been brought on record under S. 288 Cr. P. C. This deposition stands corroborated by the 164 Cr. P. C. Statement made earlier by the witness.
10. It appears that P. Ws. Miral Shah and Noorul Shah have tried to whittle down their evidence at the late stage of trial, by making obliging statements in favour of the appellant. They have accordingly gone back oil their previous statements. Their evidence before the committing Magis- -trate however appears to be more plausible and true, as it is consistent with other evidence and the surrounding facts and circumstances.
11. Then there is evidence regarding the extra judicial confession of the appellant in presence of Syed A.I Shah, Masoom A.I Shah and others. According to Syed A.I Shah appellant Moulu Bux accepted his guilt, and begged for pardon. P. W. Masoom A.I Shah has also stated that Moula Bux informed his father that by chance Shamman Shah had received pistol injury at his hands and he may be excused. This extra-- judicial confession can be considered against the appellant as it is consistent with the facts of the case and other evidence.
12. The position and nature of the gun-shot injuries is such that any suspicion of the shot having beer, fired accidentally is to be excluded. In case of accidental firing, the pistol is generally pointed upwards at an obtuse angle or downwards at the ground, but not at right angles as in the present case. The position of the injury on the buttocks at close quarters, shows that the shot was fired after deliberate aim so as to injure that particular portion of the body the deceased was a young boy of about 17 years of age. Evidence shows that the appellant was trying to play mischief with him while the deceased was resenting it. It may be presumed that the de--ceased at first sight have been friendly with the appellant but he had afterwards given him up and turned his affection to someone else. The appel--lant had found this to be a good opportunity to try and win back the boy on his side. On the refusal of the boy the appellant must have got annoyed, and must have thought of gratifying his desire by destroying the very object of his love. This form of sexual perversion has also been described by Dr. Modi in his work on Medical Jurisprudence under the Leading--- "Sadism. He has described extreme cases in which the sadist may gratify his sexual desires by murdering his beloved and causing injuries on the genitals. Dr. Modi has described such murders as ---Lust Murders---. In case of lust murder of a girl aged 7 years, incised wounds were inflicted, inflicted on the lower part of her abdomen cutting off the pubic and external genitals. Such murders are generally committed due to anger, jealousy, revenge or allied motives. Murders of this type committed by sexual perverts are of common occurrence In this country. We are therefore inclined to believe that the shot was deliberately aimed at and fired by the appellant at the buttocks of the boy for similar reasons.
13. In the result the conviction and sentence passed against the appel--lant are maintained and his appeal is dismissed.