' Being aggrieved and dissatisfied by the impugned judgment, dated 25th April, 1993, passed by the learned Sessions Judge, Shikarpur, whereby the appellant has been convicted and sentenced to undergo imprisonment for life and also to pay fine of Rs,5,000. In default of payment of fine it was ordered that the appellant will undergo R.I. For six months more and if the fine was recovered, half of it was to be paid to the children of deceased as compensation under section 544(A), Cr.P.C. And the remaining amount was to be deposited in Government account for the State. The appellant was allowed the benefit of section 382(B), Cr.P.C. As well.
2. The brief facts of the prosecution case are that on 1-12-1987 at about 7-30 p.m. Complainant Khuda Bux Channo resident of Gajanpur Muhalla, Larkana, lodged the F.I.R. At Police Station Dakhan for the murder of his daughter Mst. Razia, wherein he reported that about 8 years back Mst. Razia was married with appellant Mashooq Ali alias Iqbal. She gave birth to three daughters and a son who were living with appellant at village Dakhan. The appellant prevented his wife from visiting her parents. On the day of incident, complainant Khuda Bux alongwith his sons Mushtaq and Aftab went to the house of appellant for meeting Mst. Razia. The appellant was also present there. They talked with deceased for some time and thereafter, she went into kitchen of the house. The complainant then sought permission from appellant for taking deceased to his house, but appellant refused and threatened to kill her, whereupon deceased insisted upon the appellant for going alongwith the complainant due to which there was exchange of hot words between them. It was 7-00 p.m. The appellant being annoyed, took out his licensed gun from the room of the house and fired upon the deceased and she succumbed to injuries as a result of gun shot injuries. The appellant then carrying gun went out of his house. Complainant leaving his sons Mushtaq Ali and Aftab over the dead body of his daughter went to police station where he lodged report. After usual investigation, the appellant was sent up for trial.
3. Appellant pleaded not guilty of the charge. The prosecution examined complainant Khuda Bux Exh.6, P.W. Mushtaq Ali Exh.8, P.W. Aftab Exh.10, P.W. Nek Muhammad Exh.12, Medical Officer Muhammad Sarwar Javed Exh.14, Tapedar Niaz Hussain Mangi Exh.16, Investigating Officer Ghulam Kadir Exh.18, P.W. Ghulam Sarwar Exh.25 through statements Exhs.21 to 23. District Attorney produced the reports of Chemical Analyser before the trial Court and that of ballistic expert and made statement closing the side of the prosecution vide Exh.26.
4. The appellant was examined under section 342, Cr.P.C. In his statement he denied the allegations regarding commission of murder of his wife. He stated that witnesses had deposed against him due to enmity. He further stated that he was running a medical store at Dakhan and the complainant used to force him to give share in the said store to his son which he refused whereupon the complainant was annoyed and he implicated the appellant in the present case.
The appellant had three daughters and one son who were living with him. Regarding the murder of his wife the appellant stated that it was committed by thieves at sunset time and golden ornaments were also stolen. According to the appellant, on the day of incident he had gone to Sukkur for purchasing medicines. On his return he (appellant) came to know about this incident. He has further stated that he alongwith deceased and her children was living in his house. The assailants could not be identified. He went to police station for lodging report but police instead of registering the F.I.R., arrested him and took his licensed gun from his house and implicated him in the present case.
5. I have heard the arguments of Mr. Nisar Ahmed Bhatti learned counsel for the appellant as well as Mr. Rashid Ali G. Shaikh, learned counsel for A.A.-G. For the State.
6. The learned counsel for the appellant has contended that the ocular evidence is interested and inimical one, it cannot form the basis of conviction of the appellant that one of the witness namely Ghulam Sarwar has not supported the prosecution regarding the recovery of crime weapon; that the other Mashir Nek Muhammad is kith and kin of the complainant and as such no implicit reliance could be placed on his evidence that the case is doubtful and the appellant is entitled to the acquittal.
7. The learned counsel for the State has contended that the witnesses are natural and there is nothing on the record from which it could be deduced that they have deposed against the appellant due to enmity; that the judgement of the trial Court does not suffer from any legal or factual infirmity and that the sentence has been rightly recorded.
8. I have carefully considered the contention of the learned counsel for the parties and perused the relevant record. The perusal whereof shows that admittedly the scene of offence was in the house of the appellant and the time of incident was 7-00 p.m. The death of Mst. Razia was result of fire- arm injuries. There is ocular evidence of complainant Khuda Bux and P.Ws. Mushtaq and Aftab.
They stated in unequivocal terms that the incident took place in their presence in the house of appellant which was situated at Dakhan town. The Investigating Officer Ghulam Kadir Exh.18, who visited the scene of offence and found the dead body lying there and he also noticed blood on the ground. He secured the blood-stained piece of cemented ground, and prepared such Mashirnama of scene of offence Exh.19. The Mashirnama shows that Wardat was committed in the kitchen of the house of the appellant. Mashir Ghulam Sarwar Exh.25 did not support the Mashirnama of Wardat.
He was, therefore, declared as hostile. P.W. Niaz Hussain was Tapedar who visited the scene of offence and prepared sketch which was produced as Exh.17. The sketch and scenes of offence confirm the scene of offence as shown in the Mashirnama of Wardat Exh.19. The place of incident is not disputed by the appellant in his statement under section 342, Cr.P.C. The Renort of Chemical Examiner Exh.22 shows that the cemented piece of ground secured from scene of offence was stained with human blood.
9. The complainant Khuda Bux and P.Ws. Mushtaq and Aftab who are eye-witnesses of the occurrence have stated that incident took place on 1-12-1987 at 7-00 p.m. And time of incident is not disputed by the defence. The death of deceased Mst. Razia as result of fire-arm injuries is also not disputed and is confirmed by ocular evidence, evidence of Investigating Officer, inquest report and post-mortem conducted by the Medical Officer.
10. On 2-12-1987 post-mortem was conducted by Dr. Muhammad Sarwar Javed Exh.14 and he found the following external injuries on the person of deceased:--
(1) Lacerated oval wound 1 c.m. In dia below and behind the left ear.
(2) Lacerated oval wound 1 c.m. In dia below left clavicle bone going inside i,e, in left (enterance wound).
(3) Two lacerated oval wounds 1 c.m. Each in dia at the back of left shoulder going in side.
(4) Three lacerated oval wounds 1 c.m. Each in dia at the back of left shoulder at right of injury No,3 going inside.
(5) Lacerated wound 2 c.m. x 1 c.m. x skin deep at the front of chest.
(6) Lacerated wound 1 c.m. x 1/2 c.m. x skin deep at the left and front of neck.
(7) Lacerated wound 1 c.m. At the back of right side of chest scapular region i,e, out let wound (exit wound).
11. On the external examination of the body he found both lungs punctured, right as well as left. He opined that injuries Nos.5 and 6 were caused by some hard and blunt substance while rest of the injuries are caused by a fire-arm He has specifically stated that injury No,2 which was caused by fire-arm was individually sufficient to cause death in ordinary course of nature. The time between injuries and death was within few minutes and the time between death and post-mortem was about 12 hours. He has produced post-mortem note as Exh.15. It is crystal clear that the death of deceased was result of fire-arm injuries. The post-mortem notes further confirms the time of death.
12. The ocular evidence is that- of complainant Khuda Bux who is admittedly father of the deceased and P.Ws. Mushtaq and Aftab who are brothers of the deceased. All these witnesses are residents of Larkana. Complainant Khuda Bux Exh.6 promptly lodged the F.I.R. At 7-30 p.m. i,e, half and hour of the incident and he has furnished all the details of the incident including the motive. He has stated that the appellant who was his son-in-law prevented deceased from visiting her parents. On the day of incident, complainant alongwith his sons went to the house of appellant for meeting her and when they demanded permission for taking the deceased to her parents house at Larkana, the appellant refused, whereupon deceased insisted for going with her father which annoyed the appellant and he killed the deceased, by causing gun shot injuries to her. He has produced the F.I.R. As Exh.7, P.W. Mushtaq Exh.8 has also supported the complainant and produced his 164, Cr.P.C. Statement as Exh.9 P.W. Aftab Exh.10 P.W. Has supported his father, the complainant Khuda Bux, and his brother P.W. Mushtaq. He produced 164, Cr.P.C. Statement as Exh.11. There are no material contradictions or discrepancies in the evidence of eye-witnesses from which it could be deduced that none of them was present at the scene of offence at the time of incident. Despite lengthy cross-examination nothing has been brought on record from which it could be ascertained that their evidence is tainted with lies. There are some contradictions in the evidence of these prosecution witnesses, but those are of minor nature and do not adversely reflect upon the veracity of the testimony of the eye-witnesses. The incident took place on 1-12-1987 and their examination-in-chief was recorded on 6-11-1990 and they were cross-examined on 12-1-1991 when the evidence of P.W. Aftab was also recorded, but no material contradictions appear in their evidence. Their evidence is consistent and unshaken. No previous enmity between the appellant and prosecution witnesses is proved. The witnesses are natural and the complainant being father and P.Ws. Mushtaq and Aftab being brothers went to the house of appellant for meeting the deceased. The kith and kin of the deceased were present when this unfortunate incident occurred.
Since they were only the persons present in the house, therefore, they would be the only natural witnesses and their evidence cannot be discarded merely on the ground that they are related to the deceased. It is well-settled that mere close relationship of P.Ws. With deceased is no ground for discarding the evidence of such prosecution witnesses.
13. From the above discussion, I am of the considered view that the ocular evidence is true and natural, and it can be implicitly relied upon .
14. Investigating Officer Ghulam Kadir Exh.18 has stated that when he visited the scene of offence he secured empty cartridge which was sealed at the spot. The Mashirnama of Wardat Exh.19 reveals that a red colour empty was found at the Wardat. The appellant was arrested on the next day of the incident and he voluntarily produced his licensed SBBL gun of .12 bore alongwith his licence and two live cartridges. The other Mashir Nek Muhammad Exh.12 has fully supported arrest and recovery of gun and licence, from the appellant. He produced such Mashirnama as Exh.13. The Investigating Officer has also supported the arrest of the appellant and recovery of gun and cartridges. The empty secured from Wardat alongwith gun of the appellant were sent to ballistic expert who by his report Exh.24 has opined that the empty which was secured from Wardat was fired from this gun.
The ocular evidence is, thus, corroborated by the circumstantial evidence of recovery of gun with positive report of ballistic expert.
15. The upshot of the above discussion is that the judgement of the trial Court does not suffer from any legal and factual infirmity and conviction was rightly recorded by the trial Court. Consequently, the present appeal stands dismissed.
16. In the end I would like to place on record the valuable assistance rendered by the learned counsel appearing for the pauper appellant. It appears that he took great pains in presenting the case of the appellant.