' AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Sukkur, for offences under section 302, P. P. C., and section 13 .D of the Arms Ordinance. On the first count, he was given a sentence of life imprisonment, while he was awarded R. I. For twelve months on the second count; both the sentences to run concurrently. He has come in appeal against the same.
2. There was bad blood between the appellant and Ghulam Qadir, since deceased. There were a number of incidents, the last one being on 23-11-1971, in which the appellant is alleged to have fired at Ghulam Qadir. A ca se was registered under section 307, P. P. C., and the appellant had been arrested. According to Muhammad Umar, the complainant, he had been released on bail some twenty days before the incident. The appellant, however, put it a month before the incident. The prosecution story, in brief, is that, on the night of the 18th of October 1972, Ghulam Qadir, accompanied by his two friends, Niamatullah Qureshi and Lutfullah Soomro had left his house at about 10-00 p.m. The three of them had reached Achhar Street, Sukkur, where they were living, at about 12-30 in the night. It is alleged that the appellant was standing by the side of an electric pole, and seeing Ghulam Qadir shouted, that he would not spare him any more, and fired from his gun.
Ghulam Qadir was struck in the chest region and collapsed on the ground. The appellant is then stated to have gone towards the house of Ghulam Qadir, and fired at the outer entrance, saying that, if any boys dared to come out, he would meet the same fate as had befallen Ghulam Qadir.
The outcries had attracted Muhammad Umar, the brother of Ghulam Qadir, and two other persons by the names of Shahal and Arab, seeing whom the appellant had taken to his heels. Ghulam Qadir was still in his senses, and spoke about the happenings. He, thereafter, was taken on a tonga to the Police Station, "A" Section, Sukkur. Muhammad Umar, after taking a letter from the S. H. 0,, Abdur Rehman, had taken Ghulam Qadir to the Civil Hospital, Sukkur. However, Ghulam Qadir died on the way. Leaving the dead body of Ghulam Qadir at the Civil Hospital, Muhammad Umar had returned to the Police Station, where he lodged the First Information Report at about 1-30 a.m. The next day at about 8-30 a.m., the S. H.
0. Had proceeded to the Civil Hospital, and prepared the inquest report. Thereafter, he went to the "wardat", and found four empty cartridges. The S. H.
0. Secured the empty cartridges, and the blood-stained earth, and sealed the same. Later, enquiries were made from Niamatullah Qureshi, Lutfullah Soomro, Shahal and a number of other persons. The appellant came to be arrested on 6-11-1972. On 15-11-1972, he is alleged to have taken a Police Party and the Mashirs to a dilapidated mosque, and took out a single barrel gun from inside a big hole, which was covered with straws. The gun was secured by the S. H.
0. Under a "Mashirnama", and was sealed. The case, after due investigation, came to be challaned in Court.
3. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him, and maintained that he had been maliciously involved in the case because of previous enmity, and also because Muhammad Umar wanted his accommodation for his office, and, having failed to achieve his object, was nursing a grudge against him.
4. As for the death of Ghulam Qadir, apart from the oral testimony led in the case, there is also the deposition of Dr. Khan Muhammad, who had held the autopsy, finding the following injuries on the person of the deceased :-
(1) Five gunshot wounds about 1/2 in diameter each on left side of the upper part of the chest cavity deep within an area of 10 X 12."
(2) Two gunshot wounds each on upper part of the back of the chest.
(3) Gunshot wound 1' x 1/6' on left shoulder.
' According to the Medical Officer, the injuries appeared to have been caused by some fire arm, and death had occurred due to shock and hemorrhage. The injury No, 1, according to him was individually sufficient, in the ordinary course of nature, to cause death.
5. The evidence against the appellant consists of the eye-witness account of the incident from Niamatullah Qureshi and Lutfullah, who also mention the dying declaration as made by Ghulam Qadir. This was in the presence of Muhammad Umar and Shahal, who had appeared on the scene, once the outcries had been raised. Muhammad Umar has also furnished the motive for the crime.
The last piece of evidence against the appellant is the production of a gun after his arrest, which was sent to the Ballistic Expert, along with the empty cartridges found from the "wardat", and which according to the Ballistic Expert, was used for firing.
6. Both Niamatullah Qureshi and Lutfullah are residents of Achhar Street, and friendly with Ghulam Qadir. They have stated that, on the night of the incident, they had gone with Ghulam Qadir to various places in the town, and had also sat together for a cup of tea at a hotel. After past midnight, they were at their street. They had found the appellant standing by the side of an electric pole, armed with a gun, and clearly identified the appellant. On seeing Ghulam Qadir, the appellant had given a 'Hakal', and thereafter fired a shot, which had struck Ghulam Qadir in the region of the chest, as a result of which he had bled profusely. The appellant had then gone in the direction of Ghulam Qadir's house, and fired a shot at the outer entrance. This had attracted Muhammad Umar. In the meanwhile, tw o other persons by the names of Shahal and Arab had also turned up, and seen the appellant at the site with the gun in hand. In the presence of all these persons, Ghulam Qadir had spoken out as to what had befallen him at the hands of the appellant. They had also testified at the Court of Enquiry, as elicited in cross-examination, that the appellant had fired a number of shots in the air, while departing from the scene. Then, they had mentioned their taking Ghulam Qadir to the Police Station, and from there to the Hospital, and Ghulam Qadir breathing his last before he could be attended to by any doctor. In a very forthright way, they have admitted, that they were on friendly terms with Ghulam Qadir for a number of years, as they were all living in the same Mohalla. It appears that a case under section 377/384 and another under section 392, P.
P. C. We're pending against Niamatullah Qureshi. The suggestion, that the firing took lace in darkness, came to be denied by them; or, that Ghulam Qadir fell at the hands of some other assassin. Muhammad Umar and Shahal, as would he seen from what has gone earlier, were not present when the fatal shot had been fired. Muhammad Umar has stated that the appellant had raised a 'Hakal' at the time of firing at the outer entrance and shouted that anybody staring out would be done away with. He also mentions that he had identified the appellant in the light of the moon and also the street light. In this very context, it might be mentioned that the incident took place on the night of the 11th of Ramzan, as brought on the record. Muhammad Umar was a practising lawyer at the time of the incident, and the Nekmard of Achhar Street, which had been named, as stated by the witness, after his grandfather. A suggestion was put to him that he had expressed the desire to acquire the accommodation of the appellant for use as his office, and that the proposal having been spurned, he was nursing a grudge against him. The suggestion came to be denied. He has also detailed out three incidents, in which reports had been lodged by Ghulam Qadir against the appellant, the last ore being a case under section 307, P. P. C., in which the appellant had been apprehended, and bad been released some twenty days before the incident.
The First Information Report of the last case has also been proved by A. S. I. Imran Khan, and no issues have been joined on that score. Actually, the appellant has produced some judgments on the record in that context. Muhammad Umar has very condidly stated that the appellant, even after seeing him, had neither opened any fire nor abused him. Shahal is a rank outsider; and states to have come out of his house, which is opposite to that of the complainant, on hearing the gun fire. He states to have seen the appellant, armed with a gun, and identified him in the light of the moon and the street light. He also mentions the firing at the house of the deceased, and the coming out of Muhammad Umar later on. He also repeats the narration of the incident as given by Ghulam Qadir. According to him, Ghulam Qadir had talked about the incident for about fifteen minutes before he was removed on the tonga. Nothing worthwhile could be elicited from him in the cross-examination either, though a suggestion was made that he had testified against the appellant at the instance of Muhammad Umar.
7. It was contended by Mr, Azizullah K. Shaikh, learned counsel for the appellant, that the testimony of Niamatullah Qureshi and Lutfullah should be discounted, as the same is in conflict with the medical evidence. According to Dr. Khan Muhammad, the Medical Officer, the three injuries could be caused by two separate gunshots, and one of them was from behind, while the said witnesses only speak of one shot fired at Ghulam Qadir. It is to be seen, however, that the opinion of the Medical Officer is not in categorical and definitive terms. Otherwise too, he mentions finding two bullets, which he had recovered from the chest cavity during the post-mortem examination, and looking to the number and nature of injuries on the chest region, all that he meant was only pellets.
It was also argued by Mr. Azizullab K. Shaikh that the incident could not have taken place at the time mentioned, because Ghulam Qadir had taken the meals after the breaking of the fast, and there was semi-digested food in the stomach at the time of the post-mortem examination.
However, Niamatullah Qureshi and Lutfullah both mention their going with Ghulam Qadir to a hotel, where they helped themselves with tea. Something might have been eaten there also, if not in between by Ghulam Qadir. An irreconcilable conflict is, therefore, not to be found, but, even, in that eventuality, all that it would mean is that Niamatullah Qureshi and Lutfullah were not present at the time when the actual firing took place. However, there are people living close to the `wardat; and could stir out, once the cries had been raised. There is 1 o reason, at any rate, to look askance at the evidence of Muhammad Umar and Shahal in regard to their being resent, while the appellant was still there. Muhammad Umar is a lawyer, and there is nothing to detract from his credibility. He also stales that a shot had been fired at his house, and there is also the evidence of the Tapedar, that there was a hole at the outer entrance of his house. He had taken his brother to the police station, and from there had proceeded to the Civil Hospital, though Ghulam Qadir died on the way.
Muhammad Umar as well as Shahal speak about the dying declaration made by Ghulam Qadir.
These two witnesses had also seen the appellant at the spot, and also Niamatullah Qureshi and Lutfullah. Substitution is a thing of rare occurrence, and it will be idle, in the circumstance of the case, to look in that direction.
8. However, apart from this there is the evidence of the securing of four empties from the `wardati.
The mashir, in that context, is Shaft Muhammad. He was a Government employee, and a resident of the locality. There is nothing whatsoever in his cross-examination to show that he had any partisan feelings at all. Then, there is the evidence of the production of a gun by the appellant. The Mashir, examined in regard to that, is Allah Warayo. He was also an employee of the Irrigation Department. He has stated that the appellant had taken him and the Police Party to the rice canal path, from where the appellant had taken out a gun from inside a big hole, which was covered with straws. This witness also is a totally independent witness, as borne out from the record. Mr. Azizullah K. Shaikh said that this witness had stated that there was a smell of gun-powder coming from the barrel of of the gun. The position remains that the gun had remained here for quite some time and the presence of smell could not be ruled out, especially if the barrel is not cleaned after use. The empties and the gun had been sent to the Ballistic Expert, and Mr. Mukhtar Ahmed has testified that the empties had been fired from the gun in question. Mr. Azizullah K. Shaikh, learned counsel for the appellant, however, contended that since the appellant had been arrested on 6-11-1972, there appeared to be no reason as to why he should have delayed the production of the gun till the 15th of November, The point made by him was that the gun had been foisted. If the Investigating Officer had some such intention, it appears comprehension as to what stopped him from doing it earlier.
However, our attention has not been drawn to any authority, which will impair its evidentiary value.
As referred to earlier, the appellant had also a motive for the commission of the crime which, of course, will not be, by itself, a confirmatory circumstance.
9. I am satisfied that the case against the appellant has been established beyond all reasonable doubts. He has already been given the lesser sentence under the law. I will, therefore, affirm the conviction and sentence on both the counts. As a result, the appeal is dismissed.