' AGHA ALI HYDER, J.-The appellant had been convicted by the learned Additional Sessions Judge, Karachi, for offences under sections 302 and 307, P. P. C. On the first count, he had been sentenced to death, and, on the latter count, he had been awarded seven years' R. L and a line of Rs, 500 or, in default, to undergo further R. I. For six months. There is a reference by the Additional Sessions Judge for the confirmation of the death sentence, and there is also an appeal at the instance of the convict. The reference and the appeal will be disposed of by this common judgment.
2. The appellant, with his family members, resided in Quarter No, 123/26, situated in Korangi. The prosecution story is that, on 28-4-1970, at about 10-30 p. m. He was taking his meals in his drawing room, when one of his sons, by the name of Muhammad Naseem, came from outside. The appellant was annoyed that Muhammad Naseem had failed to wish him, and made some bitter comments about it. The ladies of the house had tried to pacify him. Thereupon, he lost his temper, took out his gun and fired, Killing his daughter, by the name of Mst. Akhtari, and his first wife, by the name of Mst. Shah Jehan. His second wife, by the name of Mst. Jamila Begum, however, was lucky to survive. Mst. Akhtari and Mst. Jamila Begum were immediately taken to the Jinnah Central Hospital by P. W. Muhammad Naseem, and the information about their admission was communicated to Raja Sultan, S. H.
0., Korangi Police Station on telephone, by Dr. Akbar Ali. Raja Sultan made an entry to this effect in the station diary, and proceeded to the "wardat". He found the dead body of Mst. Shah Jehan lying at the "wardat", and prepared the inquest report, after securing the blood-stained articles and some pellets. The dead body was then sent to the Civil Hospital, and S. H.
0. Raja Sultan proceeded to the Jinnah Central Hospital, and found that Mst. Akhtari had also succumbed to the injuries. He made an inquest report in that connection, and sent the dead body to the Civil Hospital for the post-mortem examination. It was thereafter that he had returned to the "wardat", and made enquiries from Mst. Jamila Begum, which had been treated as the so-called First Information Report. Thereafter, he made enquiries from Zafar All Khan, Mst. Saha Bano, Mst.
Anjum Nigar, Mst. Qadeeran and a number of other persons. The appellant came to be arrested from the bus stand of Korangi at about 2-30 a.m. By Additional S. H.
0. Ghulam Lutfi. He was taken to the house, and the double-barrel gun owned by the appellant, along with some live cartridges, were produced before A. S.
1. Islamul Haq. On 4-5-1970, the appellant was produced before a Magistrate at Karachi, where his judicial confession was recorded. The S. H.
0. Had sent the pellets and the gun to the Ballistic Expert, and the blood-stained articles to the Chemical Examiner. After due investigation, the case came to be challenged in Court.
3. The appellant in his statement at the Court of Enquiry refused to open out. However, at the trial, he stated that the confession had been made by him at the instance of the Police. Inter alia, he had the following to say :- "On the material day at 11-00 p. In. After having taken my meals, I had gone to toilet when I heard fire-arra reports. On coming out, I found Mst. Akhtari and Mst. Shan Jehan lying seriously injured. I went to the exit door and opened it when P. W. Zaffar entered my quarter. I then went to the P. S. Korangi, and reported the matter to Head Moharir, but he did not record it. I was drunk at the time of incident. I produce a letter regarding my ailment Each.
64."
4. In regard to the death of Mst. Shah Jehan and Mst. Akhtari, apart from the oral testimony, there is the evidence of Dr. Umar Khan. Mst. Shah Jehan, according to Dr. Umar Khan, had three injuries, out of which, two were exit wounds. According to him, the injuries had been caused by a 12 bore gun, using big pellets, and from the distance of less than three feet. The death of Mst. Shah Jehan had taken place as a result of the injury No, 1, which was sufficient, in the ordinary course of nature, to cause death. Mst. Akhtari had four injuries, out of which, two were lacerated wounds and one a contused wound. According to the Medical Officer, she had died as a result of coma caused by the fracture of skull, severe brain laceration and hemorrhage as a result of the injury from a projectile fire-arm, like a '12 bore gun, and the firing having been done from a distance of over three feet. The Injury No, 1 was sufficient, in the ordinary course of nature, to cause death. Mst. Jamila Begum had two injuries, which were also from a gun fire. According to the Medical Officer, there was no injury on any vital organs, or, bones. Hence, the injuries ultimately came to be declared as simple.
5. The incident had taken place inside the house of the appellant, and the main witnesses were the inmates of the house, closely related to the appellant. They did their best to soften down and make matters easy for the appellant, as was to be expected. The corroborative evidence has come from Zafar Ali Khan, who lived in the neighbourhood. P. W. Anjum Niger, a daughter-in-law of the appellant, is his niece, and the second daughter-in-law of the appellant, by the name of Mst. Saira Bano, is also his cousin's daughter. He has also tried to subvert the course of justice. The two other pieces of evidence are the judicial confession made by the appellant, and what the learned trial Judge has chosen to incorporate from the report of tie Ballistic Expert in regard to the 12 bore crime empty, being fired from the right barrel of his gun.
6. At the very outset, it might be mentioned that the learned Additional Sessions Judge was in error to have treated the report of the Ballistic Expert as evidence in the case. The evidence could come from the Ballistic Export himself, if be entered the witness-box. 1-lis report would not be admissible in law, without his being examined as a witness, unlike the report of the Chemical Examiner, for which, there is a specific provision in law that is section 510 of the Criminal Procedure Code. So, that has to be eliminated from consideration. Even the judicial confession has to be ruled out, because, though the appellant was arrested within a few hours of the incident, that is, on 29-4-1970 at about 2-30 a. m., yet the confession was recorded as late as 4-5-1970. The delay involved will be the rub.
We are, therefore, left with the evidence of the eye-witnesses, some of whom have also mentioned the events preceding the happenings, and the corroborative evidence of Zaffar Ali Khan.
7. Muhammad Naseem has stated that he had returned to the house at about 10-00 p. m. And found his father taking meals in the drawing room. He did not wish his father, as he was busy taking meals, but the latter did not talk to him. After he had retired to his bed, he found his sister Mst.
Akhtari lying injured in the drawing room, and did not find his father, and the deceased mother in the drawing room. However, he did not choose to make any enquiries as to how his sister had received injuries. He could not say as to whether his mother Mst. Shah Jehan was lying dead in the drawing room, or, that his father was there, as he had lost his senses, and could not recapitulate the events. He was not cross-examined by the learned A. P. P., as probably he had nothing better to say even at the Court of Enquiry. Mst. Anjum Nigar, however, has added that the appellant had asked Muhammad Naseem as to why he had not wished him, but Muhammad Naseem had not replied to the same. Soon thereafter she had heard a firearm report and the cries of murder. She had come out of the room, and seen Mst. Shah Jehan lying in a pool of blood, while Mst. Jamila Begum was bleeding from her injuries. However, she did not know as to who had murdered her mother-in-law. Without asking as to who had been responsible for the tragedy, she had run to the house of her maternal uncle Zafar Ali Khan. She was cross-examined by the learned A. P. P. And was confronted with certain passages of her statement made at the Court of Enquiry, wherein she had deposed that the appellant had rebuked his son, and, coming to the drawing room, had fired from his gun, firstly at Mst. Akhtari, and then towards Mst. Shan Jehan. She did not remember to have stated, but she had stated therein, that he had also fired at Mst. Akhtari, and she died at the spot. These passages were brought on the record, though tardily by the learned Additional Sessions Judge, under section 288 of the Criminal Procedure Code. In reply to the only question of the learned counsel for the appellant, she admitted that she had told Zafar Ali Khan that she had seen Mst. Shah Jehan dead, and Mst. Jamila Bugum having been injured.
8. Mst. Jamila Begum has deposed about Muhammad Naseem passing by the side of the appellant. During the meals, and the appellant taking umbrage for Muhammad Naseem not wishing him. According to her, there was an exchange of some harsh words between Muhammad Naseem and the appellant, whereupon she had asked the appellant not to make noise, as Mst.
Akhtari was lying on the bed being unwell. Then, there were two fire-arm reports, as a result of which, Mst. Shah Jehan died instantaneously, and injuries were received by her. She has very categorically stated that these shots had been fired by the appellant with the gun, which was shown to her. She also mentions Mst. Anjum Nigar going to the house of Zafar All Khan, after the incident. However, she had not mentioned at the Court of Enquiry, as duly brought on the record, as to who had actually fired at Mst. Akhrari and Mst. Shah Jehan, or, that it was the gun shown to her, which had been used for firing. She also stated in the cross-examination that the appellant was a drunkard, and was drunk at the time of the incident. Mst. Saira Bano is the wife of Muhammad Naseem. She mentions about the appellant remonstrating with Muhammad Naseem as to why he had failed to wish him, and the latter going to his room. Thereafter, there was a shot fired, and ongoing to the drawing room, she found a pool of blood, seeing which she became unconscious.
When she had recovered her senses she learnt about the murders of Mst. Shah Jehan and Mst.
Akhtari. Mst. Qadeeran is the sister of the appellant. Her presence in the house is deposed to by a number of witnesses, and that has not been also challenged in cross-examination. She states to have been sleeping, when she had woke up on a noise, and found his brother carrying a gun. There was a pool of blood in the drawing room, and she found Mst. Shah Jehan lying dead, and Mst.
Akhtari and Mst. Jamila Begum having injuries on their persons. However, she has not stated at the Court of Enquiry, as duly brought on the record, that she had seen the appellant with a gun in hand.
Zafar Ali Khan, as referred to earlier, lives in the vicinity. He mentions the arrival of Mst. Anjum Nigar at his house after the incident. He testified that Mst. Anjum Nigar had told him that a fire-arm had been used in the house, and that Mst. Shah Jehan and Mst. Akhtari were dead, On the way, he met Mst. Qadeeran, and she also gave the same story. He had seen Muhammad Umar coming from the house, but he does not say anything more than he suspected him to be responsible for the murder.
He goes on to say that he left the appellant in the custody of Mateen Khan, a neighbour, and, on going to the "wardat" found the dead bodies of Mst. Shan Jehan and Mst. Akhtari on a bed.
9. Notwithstanding the performance of the witnesses, what has come on the record leaves hardly any doubt that it was the appellant who had been responsible for the deaths of Mst. Shah Jehan and Mst. Akhtari, and injuries to Mst. Jamila Begum. The learned Additional Sessions Judge exercised a proper discretion in accepting the version of Mst. Anjum Nigar, transferred on the record under section 288 of the Criminal Procedure Code. As would have been seen from the statements referred to earlier, there are some pieces let fall by the witnesses, in spite of all their contrivances, to establish the guilt of the appellant. None of the witnesses in, regard to the incident, or, for the matter of that, Zafar Ali Khan, have got any ill-will against the appellant. As would be seen, they have done their best to come to his help. Even the appellant in his statement at the Court of Enquiry did not muster courage to deny his involvement in the crime. At the trial, he did deny the allegations made against him, saying that, at the time of the incident, he was in the toilet room, and, on coming out, had found Mst. Akhtari and Mst.. Shah Jehan lying seriously injured. He also adds that, at the time of the incident, he was drunk. So, he knew about the tragedy that had occurred at his house, and still is not be found at the house, when the police party reaches there, and he is arrested after a few hours near a bus stand of Korangi. I am clearly of the opinion that he was the author of these crimes, and that an offence under section 302 P. P. C. Has been clearly made out against him. However, looking to the nature of the injuries on the person of Mst. Jamila Begum, the offence on the second count will fall under section 324, P. P. C.
10. The exchange of harsh words is admitted by Mst. Jamila Begum. The events had taken an ugly turn all of a sudden, and for next no cause. The appellant would be an old man, and the victims being his closest family members. The trial was a protracted one. This, by itself, would not be sufficient, but, looking to the totality of circumstances, I am of the opinion that the lesser punishing under the law would meet the ends of justice. IA would, therefore, substitute the sentence of transportation for life for the death sentence awarded by the trial Court. Accordingly, the reference is not accepted. The conviction and sentence under section 307, P. P. C. Is set aside, and the appellant is convicted for an offence under section 324, P. P. C. He is awarded a sentence of three years' R. I. On that count. Both the sentences under sections 302 and 324, P. P. C. Will be concurrent.
11. With those modifications, the appeal is dismissed. JAMALUDDIN H. AHMED, J.- ' I agree.