Z. A. CHANNA , !.-The appellant, who was a Constable in the Police Force, was tried by a learned Additional Sessions Judge, Larkana; in respect of offences punishable under sections 302, 307 and 429, P. P. C. And has been sentenced on the first count to death, on the second count to imprisonm6nt for 4 years and on the third count to imprisonment for 6 months. He has appealed against his convictions and sentences and also we have reference from the learned Additional Sessions Judge, for the confirmation of the death sentences awarded to the appellant. This judgment will dispose of both the appeal and the reference for confirmation of the death sentence
2. The incident which has given rise to the instant case occurred on 13-11-1974, at some time after Bipahri, in the house of first informant Misri, in Misri Jarwar village, at a distance of 12 miles from Shahdadkot Police Station. The appellant was married to Mat. Hurmat, the daughter of first informant Misri, some ,10 or 12 years prior to the present incident. The appellant also had a previous wife by name, M,s. Dadi. A day prior to the present incident, Mat. Hurmat returned to the house of her father Misri, complaining that her husband and his second wife, Mst. Dadi, had quarrelled with her and maltreated and beaten her because she had demanded from them her radio which they had stolen or concealed. It is alleged that on the day of the incident, at some time after Bipahri, the appellant came to the house of first informant Misri. He was craned with a Government rifle and also had with hurt a bandolier full of bullets. He was accompanied by his first wife, Mst. Dadi. He asked Misri to permit him to take away Mst. Hurmat as she had left his house without permission.
Misri, however, was not willing to let Mst. Hurmat go with the appellant before the matter regarding the radio was settled and the blame in respect thereof apportioned. In the meanwhile, Ghulam Nabi, another son-in-law of Misri, who is also his nephew, and who was living in an adjoining house, turned up. He also took the side of Mat. Hurmat and stated that the latter would not return unless her radio was returned to her. This reply of Ghulam Nabi appears to have infuriated the appellant who abused Ghulam Nabi rind fired at him, in consequence whereof Ghulam Nabi was hit and fell on the ground outside the house of Misri. On the commotion and the rifle shot, Ghulam Nabi's son, Minhoon, came running, and on seeing . Him, the appellant fired at him, hitting him in the back. The appellant next turned his attention to Mst. Hurmat and the latter's mother Mst. Rahmat, who ran into the house to escape from the wrath of the appellant. The appellant, however, followed them and fired at both of them, killing them on the spot. The appellant then left the house firing in the air.
One of his shots struck a young she-buffaloe of Misri. Subsequently, a police patrol party, headed by S. H. O. Manzoor Ali, arrived at the spot. The S. H. O. Recorded the F. I. R. Of Misri on a blank sheet of paper at 7-00 p.m. Which was sent to the Shahdadkot Police Station where it was registered in the F.1. R. Book at 9-00 p. m. By Writer Head Constable Raza Muhammad.
3. S. H. O. Manzoor Ali first examined injured Minhoon and then referred him to the Medico1 Officer, Shahdadkot, for examination and treatment. He also saw the injuries on the young bufaloe of the complainant. On the same day, the S. H. O. Recorded the statements of witnesses Miandad, Mst.
Kaz'bano, Mst. Daduli and Achar. On the following morning, the S. H. O. Prepared Mashirnama of the vardat, the inspection whereof had been delayed because the Police party had reached the vardat after sunset. From the vardat, the S: H. O. Secured 2 empty skills303 rifle and sealed the same. The S, H. O. After preparing the inquest reports in respect of Mst. Hurmat, Ghulam Nabi and Mat. Rahmat, sent a letter to the Medical Officer, Shabdadkot, to conduct the post-mortem on the 3 deceased at the site. On 1Ihe same day, at I 1-aft a. m. The S. H. O. Arrested the appellant, while he was going along the bottom of Saifullah Minor near village Mulan Brohi. The; S. H. O. Secured from the appellant, in the presence of Mashirs Dur Muhammad and Raza Muhammad, a '303 rifle, bearing No. D/9979, containing 7 live bullets inside its magazine, and also a bandolier with 26 live - -303 bullets. These articles were sealed by the S. H. O. On the spot. The appellant, at the time of his arrest, was wearing the uniform of a Police Officer. On the same day, the S. H. O. Produced the appellant before the learned Mukhtiarkar and F. C. M. Shahdadkot, who recorded his judicial confession. The same day, Head Constable Rasool Bux, Incharge of Police Post Muhammad Ali Khuhawar, where the appellant was posted. Submitted before the S. H. O. His report and copies of the Roznamcha regarding the absence of appellant Alihassan from his duties. The rifle secured from the appellant and the 2 empties secured from the vardat were sent, by the S. H. O. To the Ballistic Expert whose report is to the effect that the said two empties had been fired from the 303 rifle allegedly recovered from the possession of the appellant.
4. The appellant has wholly denied the prosecution allegations. Fie has, however, admitted that he had - made a confession before the learned Mukhtiarkar and F. C. M. But has explained that it was made due to coercion of police. He has further stated that a day prior to the incident, he was given a rifle with 50 rounds and was entrusted with the duty of arresting Ali Jan Chandio and Birdo. He claims that he does not know anything further about the incident, but has alleged that his wife was a bad character and has many enemies.
5. We have heard the arguments of Mr. Murtaza Hussain, the learned counsel appearing for the pauper-appellant, and Mr. Manzoor Hussain, who appeared for the State. We have also carefully.
Examined with their assistance the record of the case. We are of opinion that there is overwhelming evidence to establish the guilt of the appellant on the various charges of which he has been found guilty.
6. The main evidence against the appellant consists of the ocular testimony of first informant Misri.
The ratter's 2 sons, Mianded and Achar, Mst. Moran, the widow of Ghulam Nabi, and lastly injured Minhoon, the son of deceased Ghulam Nabi. All of them have testified to having seen the appellant firing rifle shots at the 3 deceased. Ghulam Nabi, Mst. Hurmat and M .St. Rahmat. In consequence of which they died on the spot. They have further testified that the appellant had also shut at injured P. W. Minhoon who had rushed up to the rescue of his father, Ghulam Nabi. All these witnesses are not only natural witnesses; as the incident occurred in or in the vicinity of their houses, but further they are closely related to the appellant and nothing has been brought out on record to indicate that they have an motive for falsely implicating the appellant. It is true that all these 4 eye- witnesses are inter-related but since they are natural witnesses and furthermore bore no hostility or illwill against the appellant, there is no valid reason for discarding or mistruting their evidence as held by their Lordships of the Supreme Court in the cases reported in 1968 SCMR 878 and 1977 SCMR 150. It may be pointed out that the -appellant was not only the son-in-law of complainant Misri but also his sister's son. From the pedigree-table, which the learned trial Court has prepared and incorporated in its judgment, it is clear that P. Ws. Miandad, Mst. Moran and Archar are all the first cousins of the appellant. So far as P. W. Minhoon is concerned, he is a nephew of the appellant, being the son of a sister of his wife, Mst. Hurmat. There was no history of dispute or hostility between the parties. The dispute arose over the trivial incident of the theft or removal of the radio of Mst.
Hurmat. Which was given to her by her sister, who resides in Dubai, and consequently she seems to have valued it highly, and when :.The was deprived of it, she left her husband's house in a huff and came tai her father's house. This trivial incident. Cannot, in our view, have engendered such animosity in the minds of the witnesses so as to induce them to falsely implicate the appellant on a capital charge. The presence of Minhoon at the time of the incident cannot be doubted in view of the fire-arm injury sustained by him. No questions have been suggested to the complainant or other witnesses that they were not present during the incident. We are accordingly satisfied that all the 4 witnesses were present at the time of the incident and had seen the fire-arm shots being fired at the 3 deceased and injured Minhoon. As the incident occurred during broad day-light and the appellant was well known to them, being their close relative, the possibility of their being mistaken as to the identity of the culprit is altogether ruled out.
7. Strong corroboration is provided to the ocular testimony by recoveries from the appellant, his conduct to absconding, the medical evidence and his judicial confession. The appellant was arrested by S. H. O. Manzoor Ali on the very next day of the incident, while the appellant was trying to slink along the bottom of Saifullah Miner and a regulation rifle, bearing No. D/9979, containing 7 bullets inside its magazine, and a bandolier containing 26 live '303 bullets were secured from the appellant in the presence of Al'ashfrs Dur Muhamraad and Razes h1uhammad. Evidence regarding these recoveries has been given by the S. H. O, and Masher Dur Muhammad who have given convincing evidence on this point and who have remained unshaken in their cross-examination.
Mashir Dur Muhammad is an indepen--dent witness and has no connection with the complainant party: It is true that the appe11ant was a Police Constable and at the time of his arrest was wearing a Police uniform but it appears from the evidence of Head Constable Rasool Bux, under whom the appellant was posted at Police Outpost Muhammad Ali Kuhawar, that the appellant left the Muhammad Ali Police Outpost on 6-11-1974, after receiving his pay and taking with himself his official rifle along with 50 bullets with him. The Head Constable had made such an entry in his Roznamcha and also had informed the S. H. O. About the matter. The Head Constable has stated that thereafter the appellant remained absent from duty. The appellant has not explained his absence from duty since 6-11-1974 and has also not been able to explain that when he was given 50 rounds. Why only 33 rounds were recovered from him and what he did with the remaining 17 rounds. The recovery of the rifle and only 33 rounds from the appellant thus lends strong support to the testimony of the eye-witnesses that the appellant had fired numerous shots in and around their houses. The abscondence of the appellant from his duty is a further factor which lends corroboration to the version of the eye-witnesses.
8. Another piece of evidence which lends support to the ocular testimony is the medical evidence.
Dr. Alinawar, who had examined injured Minhoon and performed the post-mortem on deceased Mst. Hurmat, Mst Rahmat and Ghulam Nabi, has testified that he found the following rifts-shot injuries on their person:-- "Minhoon son of Ghulam Nabi-
(1) One lacerated punctured type of Wound 4'' x 1'' muscle deep on back of sacral region. It was wound of entry and there was no charring.
(2) One lacerated punctured type of wound 1/6'' in diameter on the right of abdomen at right illiac region. It was wound of exit.
Mst. Hurmat-
(1) One lacerated punctured type of wound 1 -- '' x 1'' on left side of neck. Charring was present. It was wound of entry.
(2) One lacerated punctured type of wound 1--- in diameter on back of right shoulder. It was exit wound.
Mst. Rehmat:
(1) One lacerated punctured type of wound 2--'' x 1'' on back of beck. Charring was present. It was wound of entry.
(2) One lacerated punctured type of wound 2'' in diameter on right side of back below scapula. It was wound of exit.
Ghulam Nabi:
(1) One lacerated punctured type of wound 1/6'' in diameter on right of side lower part of chest. It was wound of entry.
(2) One lacerated punctured type of wound 1'' in diameter on the right side of back at lower part. It was wound of exit."
A further confirmation of the ocular testimony is provided by the report of the Ballistic Expert which has been tendered in evidence under the provisions of section 510, Cr. P. C. S. H. O. Manzoor Ali and Mashir Muhammad Ali have testified that two empty bullets were secured from the scene of offence. The S. H. O. Has further testified that these empties were of '303 rifle. These two empties and the rifle recovered from the possession of the appellant were sent to the Ballistic Expert, Mr. Ghulam Abbas Jafri, who has reported that the examination of these revealed that these two empties had. Been fired from the 303 rifle No. D/9979. Mr. Murtaza Hussain. The learned counsel for the pauper appellant, assailed this report on the ground that it does not contain the reason on the basis of which the Ballistic Expert had formed his opinion. It may be pointed out that section 510 Cr.
P. C. Provides that the report of the Ballistic Expert, like the report of the Chemical Examiner to Government, is admissible in evidence without calling such a witness, but the Court itself may, if it considers necessary in the interest of justice, summon and examine the person by wham such report has been made. The report of the Ballistic Expert has thus been bracketed with the report of the Chemical Examiner and the Serealogist so far as it admissibility is concerned, without the necessity of calling the ballistic Expert. The reports of the Chemical Examiner and Serealogist have since long been received in evidence without such reports containing the reasons on which the findings or the opinions are founded. Since the law does not seem t require that the Ballistic Expert, in his report, must give reasons in support of it, but merely provides that it must be signed by him,: the absence o reasons upon which- the opinion of the report of the Ballistic Expert is based, would not, in our humble opinion, make such a report inadmissible in evidence. However, if the Court considers that it should have before it the reasons or the material on the basis of which the Ballistic Expert has given his opinion, it could summon the Ballistic Expert for, giving evidence and for this provision specifically has been made in the law. It may also be pointed out that in the instant case there is further evidence, as given by the S. H. O. That the empties were of '303 bullets.
10. Finally, there is against the appellant, the judicial confession which was given by him before Mr. Lutuf Ali, the then Mukhtiarkar and F. C. M., Shahdadkot, on the very next day of *the incident. In fact, the confession was given by the appellant on the very day that he was arrested, he having been arrested at 11-30 a. m. While he was produced before We Magistrate for the recording of his confession at 2-00 p m. That is within 2 --hours of his arrest. In his confession, which was recorded with due formalities and after he was allowed time for reflection by the Magistrate of one hour, the appellant has admitted killing Mst. Hurmat, Ghulam Nabi and Mst. Rahmat with his rifle and also causing injuries with his rifle to P. W. Minhoon and she buffaloe of the complainant. He has also admitted in the confession that he was arrested on the very day that he was making his confession in the bed of Saifullah Minor by S. H. O. Manzoor Ali and that the S. H. O. Had secured the Government rifle and bullets from him. However, the reason given by him for killing the 3 deceased and causing injuries to Minhoon and a buffaloe is that when he arrived in the courtyard of the house of the complainant he found the door of the room closed from inside and on peeping through the door, he found his wife, Mst. Hurmat, sleeping together on a cot with Ghulam Nabi, while his mother-in-law, Mst. Rehmat, was sitting inside on the ground, at which sight, in sudden provocation, he kicked open the door, killed his wife and mother-in-law by firing at them inside the room and thereafter shot dead the Karo Ghulam Nabi, who tried to run away and he also shot and injured Ghulam Nabi's -son, Minhoon, who had run up with a gun to rescue Ghulam Nabi and was giving him "Hakkals". We have carefully considered the reasons alleged by the appellant in his confession for the killings and causing injury to Minhoon but we are of opinion that these reasons are without substance and in fact are clearly false. No doubt, Ghulam Nabi was killed at a distance of 54 feet from house of the complainant, as stated by Abdul Latif, Tapedar, who had prepared the sketch of the scene of offence, but if he had been running away when the appellant fired at him, the shot would have struck him in the back. The story of his running away is falsified by the medical evidence which shows that the shot was fired at him in the front and that he was hit in the chest. It thus appears that deceased Ghulam Nabi was facing the appellant at the time when the fatal shot was fired at him. This quite clearly could not have been the case if he was trying to run away on being discovered sleeping with the appellant's wife, as alleged by the appellant. We also consider that the story of Ghulam Nabi sleeping with the appellant's wife in the middle of the day is wholly unbelievable, specifically when the appellant alleges that Mst. Rahmat, the mother of Mst. Hurmat, was also sitting in the same room. In our country, people are not so devoid of shame and morals that the mother should be sitting in the same room where her daughter is having illicit and criminal intimacy with the husband of her another daughter. Furthemore, if Ghulam Nabi was carrying on illict relations with Mst. Hurmat, it is hardly likely that his wife, Mst. Moran, would have given evidence against the appellant. All these circumstances indicate that the story spoken by the appellant regarding the alleged sleeping of Mat. Hurmat with Ghulam Nabi is quite false and unbelievable.
11. We are convinced on the overwhelming material that is available on record that the appellant committed murder of Ghulam Nabi, Mst. Hurmat and Mst. Rehmat and also caused injuries to P. W.
Minhoon and a she-buffaloe which later on died of her injuries.
12. It was strongly urged by Mr. Murtaza Hussain that the appellant appears to have committed the offence under some powerful influence which had deprived him of the power of self-control and consequently this should be 'considered to be at least a mitigating circumstance for reducing his sentence from death to imprisonment for life. In support of his contention, the learned counsel relied upon a decision of this Court reported as Chando v. State (PLD 1963 Kar. 1034and also upon the decision in State v. Baharldas (PLD 1962 Dacca 467). In Chando's case, the sentence of death was reduced to transportation for life, firstly,. Because there was absence of premeditation, secondly, as the accused had been acting in a very strange fashion and in a motiveless manner and finally he was found completely naked. .In Baharida's case, though it was held that he had committed a crime which was revolting to civilization, yet the death sentence awarded to him by the Sessions Court was reduced to transportation for life because of the fact that the wrong act committed by him had partially been avenged by the people who bad given an unmerciful beating to him. The decisions in the two reported cases are of no assistance to the appellant as.
None of the circumstances which induced the learned Judges in those cases to reduce the capital sentence, are present in the instant case. The appellant has committed 3 murders on a trifiling provocation of his wife daring to leave his home without his permission and refusing to accompany him. We find not mitigating circumstances whatsoever in the case. 'Ale would according! Uphold the convictions and sentences awarded to the appellant, confirm his sentence of death and dismiss his appeal.