MUHAMMAD SADIQ LAGHARI, J.--Muhammad Azam and Ghous Bux appellants were tried by the learned Additional Sessions Judge, Gambat for murder of Raza Muhammad Sarohi and convicted under sections 302/34, P.P.C. Vide judgment dated 27-5-1999. Muhammad Azam was awarded death penalty when Ghous Bux was sentenced to imprisonment for life and Rs,2,00,000 was imposed upon each of the appellants as fine in default whereof to suffer one year R.I. Further. It was ordered that the amount of fine if paid be given to legal heirs of the deceased.
2. Prosecution case is that Muhammad Azam had expressed that Raza Muhammad was his KARO, therefore, he shall kill him. Afterwards during night between 8th and 9th April, 1995 Raza Muhammad was sleeping on a cot in the veranda of house whereas other family members including his son Ehsan Ahmed, nephew Muhammad Nawaz, Nisar Ahmed and Nazir Ahmed were sleeping in Sufa (Hall). At about 1-30 a.m. Complainant and others got up on the cries of Raza Muhammad They found Muhammad Azam inflicting blows to Raza Muhammad with the leg of cot.
Ghous Muhammad having country-made pistol fired at Raza Muhammad. Both the culprits then decamped throwing leg of cot there. Raza Muhammad succumbed to the injuries within the sight of the P. Ws. Ehsan Ahmed reported the incident at Police Post Baharo, where the report was entered in the Roznamcha.
3. A.S.-I. Pervez Ali Shah, Incharge of Police Post Baharo dispatched
4. The entry to Police Station Gambat for incorporation under section 154, Cr.P.C. And then proceeded to the place of incident. There he prepared the inquest report of the dead body, recovered the blood-stained bed-sheet and pillow and prepared the memo. Of Vardat. He dispatched the dead body for post-mortem to Medical Officer, Gambat. Doctor Bashir Ahmed Solangi, M.O. Performed the autopsy.
5. During investigation Muhammad Azam was arrested on 22-4-1995. On 23-4-1995 his judicial confession under section 164, Cr.P.C. Was recorded by Mukhtiarkar and First Class Magistrate, Gambat, after that he was sent to judicial custody. On 24-4-1995 Ghous Bux was arrested. He is said to have produced 'country-made pistol while being under arrest.
6. The trial of the case was assigned to learned Additional Sessions Judge; Gambat who tried and convicted the appellants as mentioned above. He referred the case to this Court for confirmation of the death penalty awarded to Muhammad Azam; and Ghous Bux appealed against the judgment and sentences.
6 We have heard the learned counsel and reappraised the entire evidence. Mr. Mehmood A.
Qureshi whose services were provided to pauper appellant Muhammad Azarn on State expenses contended that the evidence produced by the prosecution is not of such standard which could bring conviction of accused for the offence of murder. According to him the material on record especially the evidence of defence witnesses establishes that neither the complainant nor any of the eye-witnesses was available at the place of incident when the deceased was killed. Had they been present they must have put some resistance to the culprits but nothing such has come on record, which could indicate their reaction. Further that the witnesses did not disclose as to where Muhammad Azam was during the night of incident. According to him the appellant was inmate of the same house and the witnesses were supposed to speak about that fact also. It was also his contention that no cot was found present in the courtyard of the house where the eye-witnesses claim to have been sleeping. He further contended that the confession recorded by Mukhtiarkar and FCM, Gambat was the result of pressure and coercion as the family members of Muhammad Azam were pressurized for compelling him to confess before the Magistrate. Secondly the confession could only be recorded by the trial Court and conviction could not be based on the confessional statement before the First Class Magistrate. Moreover, the Magistrate having recorded the confession was not examined due to his demise therefore it was not proved legally.
Mr. Mehmood A. Qureshi further argued that the alleged blood-stained weapon of crime was neither examined by the Chemical Examiner nor shown to appellant Muhammad Azam under section 342, Cr.P.C. Therefore it cannot be considered as evidence.
7 Mr. Nooruddin Serki, Advocate for the appellant Ghous Bux argued that the ocular evidence about the role of Ghous Bux has been contradicted by the medical evidence. According to him P.Ws.
Alleged this accused to have fired shot from very close range from the distance of hardly 1 to 3 feet but the medical evidence does not show presence of blackening or charring around the pellet wounds and also the pellets had scattered which prove that the shot was not fired from the very close range as alleged by the eyewitness. He also argued that the recovery of pistol could not be used as corroborative evidence in absence of any link connecting the weapon with the murder.
Further that according to Masheer Wahid Bux the deceased had no fire-arm injury.
8. Mr. Nooruddin Serki further argued that the confessional statement of co-accused does not implicate Ghous Bux as Muhammad Azam has not stated that Ghous Bux was equipped with pistol or that he had fired at the deceased. On the contrary only doubt has been expressed in the confessional statement that if there is pistol shot injury that may have been caused by Ghous Bux.
Learned Advocate also contended that Ghous Bux had no motive to kill the deceased. On the contrary the prosecution witnesses had grudge against him over the purchase of land which was sold by their relative to one Punjabi and that Punjabi sold it to Shafqat Shah. They wanted Ghous Bux to persuade Shafqat Shah to re-convene the land to them but he did not oblige them.
9. The learned State Counsel defended the conviction and argued that all the eye-witnesses are natural witnesses being residents of same house. They had no motive to implicate the appellant falsely. Two of the eyewitnesses are real brothers of Muhammad Azam and they have fully implicated him. He also contented that the judicial confession of Muhammad Azam has been legally proved. In the confessional statement he has disclosed the motive'also and association of co-accused Ghous Bux and his presence with him at the time of .Offence. He further argued that the ocular evidence is not in conflict with the medical evidence and the defence evidence is not of such standard which-could affect adversely the huge ocular evidence coming from the natural witnesses.
10. The prosecution mainly relied upon ocular evidence of Ehsan Ahmed the son of deceased Raza Muhammad, Muhammad Nawaz, Nazir Ahmed and Nisar Ahmed. They all reside in the house wherein the incident took place. Two of them namely Muhammad Nawaz and Nisar Ahmed are real brothers of appellant Muhammad Azam. They have deposed that they were sleeping on cots in Sufa whereas Raza Muhammad was sleeping on cot at verandah. At about 1-30 p.m. They got up on the cries of Raza Muhammad and found appellant Muhammad Azam and Ghous Bux at his cot.
Muhammad Azam was inflicting on his face the blows with the leg of cot, whereas the Ghous Bux fired country-made pistol at him which too hit his face. Muhammad Azam threw the leg of cot there and both the appellants decamped. Raza Muhammad succumbed to the injuries in their presence. Ehsan Ahmed then went and reported the matter to Khanpur Police. The arguments that no cots were found in the courtyard are completely devoid of. Substance. The P. Ws. Claimed to have been sleeping on cots in Sufa and not the courtyard. Sufa was a covered hall and veranda was in between Sufa and courtyard.
11. The huge ocular evidence having come through natural witnesses gets confirmation from the medical evidence. Doctor Bashir Ahmed Solangi, M.O., Gambat has deposed that deceased had seven lacerated wounds and A one swelling on the face and head. Out of them three injuries appeared to have been caused by fire-arm and the remaining by hard and blunt substance. He further deposed that the death was instantaneous.
12. The blood-stained leg of cot recovered from the place of incident also confirms the version of the eye-witnesses in respect of the weapon used by Muhammad Azam. Further is the motive attributed to Muhammad Azam by all the witnesses who are not only residents of same house but are his kith and kin too. They have deposed that Muhammad Azam had expressed that he shall kill Raza Muhammad as he was his Karo.
13. Other very strong evidence is Muhammad Azam's judicial confession. Wherein he admitted that he killed Raza Muhammad as he was his Karo. Giving details he stated that during the night of incident he and Ghous Bux kept watch over the moment of deceased and Ghous Bux informed him (Muhammad Azam) that deceased had gone to his (Muhammad Azam's) wife but when they went there the deceased had already left that place. Then they came at the cot of the deceased and he killed him by giving blows with the leg of cot. He further stated that his Massat Ghous Bakhsh who was with him at that time had also left that place. If any fire was there that might have been made by Ghous Bux. The part of confession in respect of Ghous Bux specially about his presence with Muhammad Azam at the time of incident can be used as supporting circumstantial evidence against him.
14. The recovery of country-made pistol if believed does not connect the weapon with the crime as no empty was recovered from the place of incident.
15. It is true that Ghous Bux alleges the witnesses to be inimical to him over the matter of land as he did not help them in getting the land reconvened from Shafqat Shah but the P. Ws. Did not admit that plea. Thus there is no substantial evidence proving direct enmity between the eyewitnesses and Ghous Bux. Evidence of defence witnesses examined by Ghous Bux does not affect the prosecution evidence. D.Ws. Ali Akbar and Ghulam Abbas who are residents of same village have deposed that on commotion and cries from the house of deceased at about 1-30 a.m. When they went there, found Raza Muhammad lying dead, family foke of the deceased informed them that Muhammad Azam had killed the deceased with the leg of cot. It is also their evidence that Ehsan Ahmed was at Shadadpur whereas Muhammad Nawaz and Nazir Ahmed were at Gambat and they (D.Ws.) informed them about incident on telephone i,e, PCO. It is further in their evidence that Muhammad Nawaz and Nazir Ahmed had come from Gambat in a van sent by them (D.Ws.).
16. The D.Ws. Have completely suppressed the presence of tire-arm injuries on the person of the deceased. Also no bill of telephone proving any telephonic call to Gambat or Shandadpur was produced. It is ridiculous that Muhammad Nawaz and Nazir Ahmed would not get conveyance at divisional head quarter Gambat and would wait for the van coming from their village. It is also not stated by the D.Ws. That how did they arrange the van and who was its owner or driver. Thus the defence evidence does not affect the prosecution evidence. It on the contrary, confirms the ocular evidence to the extent of its main part relating to time and place of incident and the injuries ID caused to the deceased by Muhammad Azam using leg of cot.
17. Although, the Magistrate having recorded the confession could not be examined due to his demise but the confession was proved by producing it in original, through Amanullah; Reader of Mukhtiarkar, Mr. Rehmatullah, Dhalet who was well-conversant with his signature. Even otherwise, appellant Muhammad Azam himself admitted the making of confessional statement More the Mukhtiarkar and FCM, Gambat. It is true that he alleged it to have been obtained by torturing him but there is no evidence to substantiate that allegation. The original confession produced in evidence does contain that the appellant replied in negative all the questions as to whether he was tortured or given any inducement or any of his family members were pressurized. Thus the confession can safely be accepted as voluntarily.
Contention about confession before the trial Court is also without substance. P.P.C. Provides in respect of the modes of proof of Qatl-i-Amd liable to. Qisas. True and voluntary confession of the commission of the offence before the Court competent to try the case is one of the modes of proof required for awarding the punishment of Qisas. This provision does not affect the provisions of sections 164 & 364, Cr.P.C. Confession of commission of the offence before the Magistrate competent to record the same is admissible in evidence. The distinguished feature is that punishment of Qisas can be based on true and voluntary confession of the offence before the Court competent to try the same only. Whereas the confession before the Magistrate is to be proved before the trial Court and that itself cannot become the proof required for awarding the punishment of Qisas.
17. No doubt the blood-stained leg of cot was not examined by chemical examiner but it is nobody's case that it was not stained with human blood or that it was not used in commission of crime. Although it was not shown to appellant Muhammad Azam while recording his statement under section 342, Cr.P.C. By putting question to him that he had used that leg of cot in commission of the offence but omission is not of much significance. Firstly the omission did not affect the appellant adversely in his defence. He was already knowing that the allegation was that he used leg of cot for killing the deceased and that he had left it at the place of incident and police secured it from there. Secondly the reply would have certainly been the denial had the leg of cot been shown to him saying that it was the weapon used by him in crime. The view gets support from most famous pronouncement of Supreme Court of India in Rama Shankar Singh v. State of West Bengal AIR 1962 SC 1239.
18. In respect of Ghous Bux the absence of charring and blackening arouna the pellet wound is not of much importance. In the present case the evidence of eyt. Witnesses shows the fire to have been made from the distance up to three feet. The witnesses gave the distance approximately and not the exact distance. Possibility of the distance being little more than three feet cannot be excluded in the circumstances. On the basis of presence or absence of blackening and split of the pellet no definite opinion about the distance from which a fire-arm was discharged can be given.
While dealing with the question of the distance of the fire-arm in his Medical Jurisprudence, 13th Edition, at pages 226 and 227 Modi has observed as under:-- "In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a fire-arm was discharged. According to Taylor no general rule can be laid down." Thus the medical evidence in present case cannot be said to be in conflict with the ocular evidence. In case of country-made pistol even pellets can spread to some extent when fired from such distance. There can be no definite opinion on the question of distance from which fire was made on the basis of, split of the pellets and absence of blackening as it depends upon the make of the weapon, length of the barrel etc. And the powder used in the cartridge.
20. None of P. Ws. Has stated a single word as to what happened before the actual attack upon the deceased. It is only in the confessional statement of Muhammad Azam that deceased had gone to and returned from his wife. That statement coupled with the prosecution evidence that Muhammad Azam had declared Raza Muhammad his Karo can legitimately be treated as mitigating circumstances justifying the lesser penalty to Muhammad Azam. In these circumstances he deserves imprisonment for life for offence under clause (b) of section 302, P.P.C.
21. In the result of above discussion the sentence of death is riot confirmed. Muhammad Azam is awarded sentence of imprisonment for life maintaining the sentence of fine inflicted upon him and sentences of imprisonment and fine imposed upon Ghous Bux under section 302(b), P.P.C. With the above order the appeals are dismissed.