' G. M. SHAH, J. - The appellant was convicted of an offence punishable under section 302, P. P. C. By the learned 1st Additional Sessions Judge, Khairpur, who by the judgment dated 25-3.1976, sentenced him to death and also to pay a fine of its 500 or in default to undergo R. I, for six months.
He has preferred this appeal against the said judgment, There is also a reference under section 374, Cr. P. C. This judgment will dispose of both, the appeal, as well as, the reference.
2. The deceased Din Mohammad son of Lal Khan Pathan, was the Contractor of brick-kiln situated in Nandhi near Thari, Mirwah, District Khairpur. His brother Wazir Khan and their father, as well as, co Qutubuddin were residing at Khandyari. On 17-6-73, in the early morning the deceased had gone to Khandyari to see them. He was returing from there, alongwith his cousin Qutubuddin, in the morning at ab ant 9 a. m to Than Town. When they reached the `chousool in the middle of the town, they saw the appellant, who was also related to the deceased, coming from the opposite direction.
As soon as the appellant came near them, he took out a revolver from his fold, under the shirt, and challenged them and started firing at the deceased, who started running. The appellant continued firing at the deceased who was hit on the right arm and on the right side, as well as, on his back. To save his life, the deceased continued running towards east of Mirwah Town towards the canal. The appellant shot at him 4th time. On the cries raised by the deceased, his cousin Qutubuddin and P.
Ws. Ghulam Mohammad and Mohammad Chuttal also reached there and challenged the appellant. So many other people of the town had also collected there. As a result of the injuries, the deceased fell down on the inspection path of Mirwah Canal. On seeing the witnesses coming, the appellant tried to escape with the revolver, but he was challenged and surrounded by the public and was Trade to sit there. In the meantime A. S. I. Mohammad Paryal (P. W. 10) received a telephonic message from the operator, that one Pathan has fired upon another Pathan, in the bazar of Thari-Mirwah Town. After making such an entry in the Roznamcha'. The A. S. I. P. Left for the bazar with the police party. The police reached the place and arrested the appellant, who was surrounced by the public tie was armed with a revolver, which was secured and seized by the police The chamber of the revolver contained four empty and one live cartridge. The appellant had some scratches on his face, on the left side of his right hand palm, as well as, on his leg. From the scratches the blood had also come oat, The dereased Din Mohammad was lying on the ground, near the bridge of Mirwah Canal. Both, the deceased. As well as the injured were taken to the Police Station Mirwah where the F. L R. Of deceased Din Mohammad, who was fully conscious, was recorded and the case under section 307, P. P. C. Read with section13-D of the Arms Ordinance, was registered against the appellant. After the F.I.R. (Exh. 38) was read over to the injured Din Mohammad, he had affixed his thumb-impression thereon, and admitted its contents. The injured was sent to the Hospital, Mirwah, for exam ination and treatment, alongwith a letter addressed to the Medical Officer. On the same day the police bad inspected the vardat and had prepared the mashirnama Exh.
31. Statements of the witnesses Mohammad Patial, Ghulam Hy der, Urbelo and Mohammad Chuttal were recorded on the same day. On 18.6-73 information was received from the Medical Officer, Mirwah that injured Din Mobammad had expired in the hospital, at 8 p,m. The case was therefore registered for an offence under section 302, P.P.C. Read with section 13-D of the Arms Ordinance.
The investigation of the case was also verified by the S. H. O. Kamber Ali Khan (P. W. 9). The revolver secured with the four empties and one live cartridge was sent to the Ballistic Expert, Mr. Mukhtar Ahmed (P. W. 1) who had opined that the crime empties marked 'C-1' to 'C-4' had heed fired from the revolver, which was secured from the possession of the appellant. After completing the investigation the case was cnallaned in the committal Court on 17-7-1973.
3. The motive for the commission of the crime was said to be an amount of Rs. 3,600 which was outstanding against the deceased, which he bad borrowed three years before the occurrence, from the appellant, who had made demands of the same, but was not being paid.
4. The case of the appellant on the other hand, in the committal Court was of denial. He had contended that the revolver was foisted upon him. As regards the identification test, he stated that he waa shown to the P. Ws. Before the identification test was held. In respect of the eye-witnesses, he stated that they were interested and had deposed against him due to the relatives of the deceased, who were inimical to him ; whereas in the Court of Session also, his case was of denial.
He further stated that the F.
1. R. Was concocted and fabricated by the police with the help of the witnesses. As regards the recovery of the revolver containing four empty and one live cartridge from his possession, he stated that they were planted on bim by the police, in collusion with the Mashirs and Wadero Suleman. For the identification test, he explained that he was shown to the witnesses before the test. He further stated that P. W. Qutubuddin was related to the daceased, and about the remaining a}e-witnesses, including all the Mashirs, he conter ded, were set up witnesses, at the instance of Wadero Suleman and the police. He led no defence.
5. It is not disputed that deceased Din Mohammad died an unnatural death. He was examined by Dr. Khudad Abro (Exh. 13), who held the postmortem on the dead body and found the following injuries on his person:- (1)One lacerated type of penetrating wound 1/6' x 1/6" x muscles deep ors right upper arm anterior surface at lower 1/3rd Blackening of the wound margin were present on the lateral suffance.
(2)One lacerated type of penetrating wound 1/6"x 1/6" on medical size of upper right arm at its lower 1/3rd.
(3)One lacerated type of penetrating inlate wound 1/6" x 1/6" x cavity deep, on the right side of wound margin were present.
(4)One lacerated type of penetrating inlate wound 1/6' x 1/6".; x cavity deep on right scapular region of the back of the chest. Blackening of the wound margin were present. On internal examination the doctor found the following damages:- On right side chest wall was punctured at two places.
(1) Pleura of the right lung was punctured at two places.
(2) Right lung was punctured at two places.
(3) Blood vessels of the right lung and liver were punctured.
(4) Diaphragm was punctured at right side.
' As a result of the internal and external injuries, the doctor was of the opinion that the cause of death was shock and haemorrhage due to the injuries, which appeared to have been caused by the discharge of a fire-arm, such as pistol or revolver from a close distance of about 5-6 feet. The injuries Nos. 3 and 4 were individually sufficient to cause death in the ordinary course of nature.
One bullet was secured from the right side of the chest of the dead body and was preserved. All the injuries on the dead body were ante-mortem, Besides, there is also evidence of three eye- witnesses, namely Qutubuddin (a. W. 4), Mohammad Chuttal (P. W. 5) and Urbelo (P. W. 7).
6. Following pieces of evidence have been led by the prosecution, in support of their case t
(i) Ocular evidence of eye-witnesses.
(ii)Dying declaration incorporated in the F. I. R.
(iii) Arrest of the appellant at the spot.
(iv) Recovery of the revolver containing four empties and one. Live cartridge.
(v) Opinion of Ballistic Expert.
(vi) Motive. _' Qurubuddin is admittedly the cousin of the deceased Din Mohammad and was with him on the day of occurrence. In the morning they were returning from Khandyari near Thari, where they had gone to meet the father and brother of the deceased. While returning, they had gone to their town to make some purchases. When they reached the market, they saw the appellant coming from the opposite direction towards them. Lie challenged the deceased and took out his revolver from the fold of his shirt and fired at the deceased, who tried to run towards Mirwah Canal to save himself but three, four successive shots brought him down and he fell down there. Many persons in the bazar bad witnessed the incident, and had followed the appellant and surrounded him. He could not escape. In the meantime, on receipt of a telephonic message the police reached the vardat within15 minutes, and arrested the appellant. From his possession the revolver containing four empties and one live cartridge, were recovered from its chamber and were seized under the Mashirnama (Exh. 29). His relationship with the deceased does not take away the evidentiary value of his statement. His statement is in the natural course of events, and leaves no room for doubt. His presence at the place of occurrence is established by the other eye-witnesses. His narration of the occurrence is consistent and is corroborated by the medical evidence, as well as, the recoveries made from the appellant. Mere relationship, by itself, does not render his statement unworthy of credence, particularly in absence of previous enmity between the parties ; which also should be of such a nature to indicate false implication in the crime.
8. Next is the eye-witness account furnished by Mohammad Chuttal. He was named in the F. I. R. By the deceased as having witnessed the occurrence. This witness is a tailor. He had a shop in the bazar in Than Mirwah. In the morning at about 9 a. m. He had gone out of his shop to purchase a thread ball from the bazar. As so an as he came out of his stop, be heard the fire-arm report. He saw the deceased whom he already knew, sunning towards Mirwah Canal being followed by the appellant, who was armed with revolver, and was firing at him. On receipt of the injuries, the deceased fell down. In his presence, the police had arrived. The appellant was arrested on the spot and from his possession, the revolver was recovered by the police. The police had taken the appellant, as well as, the deceased, who was injured and was alive, but as per the statement of this witness, was unconscious. Nothing of importance had been brought on the record in the cross- examination to render his statement unreliable.
9. The other eye-witness is Urbelo (P. W. 7). It is necessary to mention that in the P. I. R., the deceased had stated that in addition to the eye-witnesses named by him, there were so many other people from the public, who had collected there, and had witnessed the occurrence. This witness was not mentioned, by nave in the F. I. R. Whether the deceased knew him by name, is not known. His statement was recorded at the place, where he was carrying on his business, as is stated by him in his examination-in-chief. Whereas in the cross-examination, he had stated that be was caged at the police station on the third day, which was presumably for the purpose of identification. From his cross-examination there is no indication, if this itness had any motive or enmity to falsely implicate the appellant. This witness is Chano by caste, whereas the appellant, as well as, the deceased are Pathans.
' The statement of Mohammad Paryal (P. W. 6) is on the point that at about 8 or 9 in the morning, he was working in the bazar, when he heard a fire-arm report. He looked up and saw that one Pathan armed with a revolver in his hand, was chasing another Pathan, and was firing at him. Both the Pathans were stated to be running towards Mirwah Canal. Many persons of the public had followed the two Patbans. He was informed by some persons that one Pathan had received fire- arm injuries and had fallen near the Mirwah Canal. The police had arrived and had taken away the injured, as well as, the appellant, to the police station. This witness was declared hostile by the A. P.
P. Who was appearing for the elate, on the ground that his committal Court statement was that of an eye-witness, having himself seen the shooting down of the deceased ; but at the trial, this witness had given a gc-bye to the prosecution. This witness is the nephew of Urbelo (P. W. 7) whose statement has been discussed herein above. In any case, this witness does provide corroboration to the eye-witnesses inasmuch as, that be bad seen the appellant chasing the deceased and firing and injuring him, whereafter the police arrived and took away, both, the injured deceased and the appellant.
10. Next piece of evidence is the dying declaration of the deceased, who had himself lodged the report with the police and narrated the details of the occurrence. It is consistent and supported and corroborated in material particulars by the eye-witnesses, as well as, the recoveries. It was made at the earliest opportunity and was not tutored. A. S. I. Mohammad Paryal (P. W. 10) who had recorded the F. I. R. Bad stated on oath that deceased was conscious and had himself narrated the contents of the F. I. R. Mohammad Paryal had no reason to falsely implicate the appellant. He was not at all cross-examined in respect of the dying declaration and its genuineness. I am convinced that intrinsically, the dying declaration rings true.
11. The appellant was arrested at the spot. There was hardly any need to bold any identification test through the witnesses, who had chased him and bad kept him encircled and surrounded till the arrival of the police. He was seen t y the eye-witnesses filing at the deceased with he revolver, which was secured from his possession, having four empties and one live cartridge in its chamber, which was seized. There is no doubt in my mind about the identification of the appellant, and also the recovery of the revolver having four empties and one live cartridge its chamber. The opinion of the Ballistic Expert Mukhtar Ahmad (P. W. 1) provides corroboration to the testimony of the eye- witnesses. His statement has gone almost unchallenged.
12. The upshot of the above discussion of the pieces of the evidence is that I consider the ocular testimony worthy of reliance and I accept the dying declaration to be genuine and true.
13. About the opinion of the Ballistic Expert, Mukhar Ahmad (P. W. 1), it is satisfactorily established that the crime empties marked `C-1' to 'C-4' had been fired from the revolver which was secured by the police from the possession, of the appellant in presence of witness Punhal (P. W. 8) and was seized under the Mashirnama. The revolver contained four empties and one live cartridge. The testimony of this witness has not been challenged on the crucial point, whether the crime empties were fired from the revolver, so recovered from the possession cf the appellant. Nothing has been said against this witness during the trial, or even before us during the arguments to discredit his testimony, which in my opinion, is reliable and trustworthy.
14. So far as the motive for the commission of the crime is concerned, it is said to be the money in the F. I. R. (Exh. 38) lodged by the deceased himself, it discloses the motive. There was an amount of Rs. 3,000 outstanding against the deceased, which the appellant was demanding and the deceased had not, so far, paid. Non-payment of the money had annoyed the appellant. In many cases, this factor of non-payment of money to a Pathan in this part of the country, does give rise to hostile feelings, which, in this case, had resulted in the commission of the crime. No effort had been made to discredit the motive which stands corroborated by the dying declaration, as well as, the testimony of the eye-witness Qutubuddin (P. W. 4).
' Mr. Mohammad Hayat Junejo learned counsel for the appellant has relied upon the ruling reported in PLD 1975 SC 187, in support of his argument that Mohammad Chuttal should not be relied upon, as he was not the natural witness of the locality. In the authority cited, the facts of the case under discussion were different from the present case. Accordingly, I find that the appellant had fired at the deceased from the revolver, secured from his possession, as a result of which the deceased had died.
' I would dismiss the appeal, uphold the conviction of the appellant and maintain the sentence. I do not find any mitigating circumstance in his favour for a lesser sentence. He deserves the normal penalty of death. The sentence of death is hereby confirmed.
AGHA Au HYDBR, J.--I agree.