1968 P Cr (PLP)

Usman Ghani for the State. Date of hearing:27th September 1966. H. T. RAYMOND, J.‑The appellant, Haji Khan, was tried along with his brother Allah Bachayo and cousin Ahmed by the Additional Sessions Judge, Tharparkar at Sanghar for offences under sections 302 and 307 read with section 34, P. P. C. But, in the result, the appellant was alone convicted under each of the two sections 302 and 307, P. P. C. under the former he was sentenced to death and under the latter no sentence was awarded to him. He has appealed from jail against this conviction and sentence. The learned A. S. J. has also referred this matter to us for confirmation of the death sentence. This judgment, then, will dispose of both the appeals as well as the murder reference.

2. The appellant, the deceased and the injured in this case are all Thahims by caste and residents of village Tharo Thahim situated some 6 or 7 miles away from the town of Shahdadpur in District Sanghar. The appellant was a Police constable and at the time of the incident he was on night duty outside the National Bank of Pakistan in the town of Shahdadpur. Actually, his guard duty started at 2‑00 a.m. on the morning of 3‑9‑

64. He had then his .303 service rifle with him and fifty rounds of amunition in his possession. He stole fifteen more rounds from the posses sion of his companion Zewar Shah who was sleeping at that time and towards early dawn he deserted from his post of duty outside the National Bank Building and proceeded to his village armed with his rifle and sixty‑five bullets. On reaching there he found deceased Misri, the other deceased and the injured sleeping outside in the courtyard and picking up his rifle he began shooting at them. He fired several rounds as a result of which he killed Misri, Mst. Husna, Mst. Kaim Khatoon, Mst. Siani and caused injuries to two more, namely Mst. Fatima P. W. 2 and Mst. Maryam P. W.

4. Complainant Allahwarayo P. W. 5 maternal uncle of the appellant was also sleeping that night with his wife Mst. Siani deceased on different cots in the same courtyard when he awoke on hearing the gun shots and found the appellant firing at Misri and his family who were then asleep on their respective cots. Allahwarayo arose from his cot intending to speak to his nephew the appellant: but, the latter fired at him and also at his wife Mst. Siani. Allahwarayo succeeded in dodging the bullet but his wife deceased Mst. Siani was shot dead. Mst. Dhayani P. W. 3 the elder wife of deceased Misri who was also sleeping in the same courtyard awoke on hearing the shots and found the appellant shooting at them with his service rifle. The inhabitants of the adjoining houses such as Achar P. W. 6, Jaro p. W. 7, Saleh and others also came up and witnessed the incident. The appellant after firing several rounds then left the scene for his own house in the same village. Muhammad Ali P. W. 8, a resident of the neighbouring village came up on hearing the shots and Allahwarayo and others informed him about the incident giving him the names of the appellant and his companions. Haji Yar Muhammad P. W. 9 brother of Muhammad Ali telephoned the Shahdadpur Police Station from his house which message was immediately delivered by the S. H. O. to Akram Baig P. ‑ W. 11 then D. S. P., Shahdadpur. The Police arrived at the scene and recorded the complaint of complainant Allahwarayo on a blank piece of paper which was later transferred to the section 154, Cr. P. C. Book.

3. D. S. P. Akram Baig on receiving the message immedia tely left for the scene in the taxi of Juman P. W. 10 accompanied by a Police party. At about 5‑30 a.m. as they had covered three miles on the road from Shahdadapur to the village of the deceased, they came across the appellant returning on foot to Shahdadpur wearing his Police uniform and with his service rifle in his hands. He was secured and relieved of his rifle and twenty‑five rounds under mashirnama Exh.

19. D. S. P. Akram Baig then proceeded to the scene of offence where he found Misri and Mst. Husna lying there dead with bullet injuries and Mst. Maryam, Mst. Fatima and Ust. Siani and Mst. Kaim Khatoon lying injured there also with bullet wounds. Of these four only Mst. Siani was conscious and her dying declaration was recorded. The D. S. P. recorded the statement of Allahwarayo and sent it to the Police station for being incorporated in the F.

1. R. Book. He examined the scene and secured 18 empty shells and one bayonet as mentioned in the mashirarna of the Vardat Exh.

15. He prepared an inque3t report on the dead bodies and sent them to the Medical Officer, Shahdadpur, for post‑mortem examination. He also prepared a mashirnama of the injuries on the four women and sent them to hospital but while he was still there he received a message that Mst. Siani and Mst. Karim Khatoon had expired in the hospital at Shahdadpur. He then recorded statements of witnesses and on the following day sent appellant Haji Khan to the Sub‑Judge and F. C. M., Shahdadpur who recorded his judicial confession Exh.

27. The rifle and the empties secured from the scene were sent to the Ballistic Expert at Lahore, at the conclusion of the investigation into this case, the appellant was challaned in Court.

4. The appellant in his statements in the two Courts below has admitted having killed the deceased and shot at the injured in this case. He also admitted the truth and voluntariness of hit judicial confession Exh.

27. He said that the reason for this be haviour on his, part was that he was piqued at not getting the hand of Mst. Maryam in marriage after having given his sister to Bachal son of Mst. Husna and brother to Mst. Maryam. He added that on the day of the incident, he learnt that Msr. Maryam was to be married that night to Bahadur and on this provocation he deserted his duty in the early hours of the morning took his service rifle and sixty‑five rounds of ammunition with him and came to his village where he started firing at Misri and the other members of his family lying asleep there. He further states that he lost control of himself and fired freely and at random at every body there present. He was then returning on foot to Shahdadpur Police Station when the DSP came across him and arrested him. He denied that he had committed these murders because Mst: Husna his aunt who had lived with him for six years had left him shortly before the incident and had gone to live with her son‑in‑law Misri.

5. The fact that the four deceased in this case, Misri, Mst. Husna, Mst. Kaim Khatoon and Mst. Siani were killed is not dis puted in this case: nor, has it been questioned that the two injured Mst. Fatima and Mst. Maryam received bullet injuries. Apart from the evidence of the several eye‑witnesses, there is also on record the evidence of Dr. Mir Beg then M. O., Shahdadpur who examined the injured and performed post‑mortems upon the dead bodies. In regard to the dead bodies he is certain that death was due to shock and haemorrhage as a result of bullet injuries sustained by each of them which injuries were sufficient in the ordinary course of nature to cause death.

6. The only point of importance for determination in this appeal is whether the guilt of the appellant has satisfactorily been established by the evidence available on the record of this case. But, in this case, even before proceeding to consider the prosecution evidence, it is of importance to note that the appellant has pleaded guilty throughout in both Courts below and has admitted having shot and killed the deceased and injured Mst. Fatima and Mst. Maryam. The only point of difference between his defence version and the prosecution case is that whereas according to the prosecution the appellant was annoyed with his aunt Mst. Husna mother of Mst. Dhayani and mother. in‑law of Misri deceased for having left him and gone to them after having lived with him for the six previous years during which she supported him from the produce of her own fields, the appellant puts forth as the motive for this crime the fact that he was not given the hand of Mst. Maryam in marriage although he had earlier given his sister to Bachal son of Mst. Husna. We observe that even in his appeal from jail the appellant admits having shot at the deceased and the injured though, here, he introduces a new version to the effect that when he entered the village that morning the inhabitants started firing at him before he could even talk to them so that he had no other alternative but to fire back at them. In view of these admissions made by the appellant particularly his admission of the correct ness and voluntariness of his judicial confession it becomes unnecessary to consider at any length the evidence of the six eye witnesses. In his judicial confession which was recorded the following morning by the Civil Judge and F. C. M. Shahdadpur after observing all the necessary formalities the appellant admitted that his guard duty at the Bank on the night of 3‑9‑64 was from 2‑00 a.m. to 4‑00 p.m. at about 3‑00 a.m. picking up his gun and his fifty catridges and stealing another fifteen from his companion P. C. Zewar Shah who was then asleep he proceeded to the village of Tharo Thahim where he fired at Misri and his aunt Mst. Husna killing them on the spot. Complainant Allahwarayo ran away but, be, the appellant then fired at Mst. Siani, Mst. Dhayani, Mst. Maryam and Mst. Kaim Khatoon. On his way back to the Shahdadpur Police Station he was arrested by Police party. In this confession he gives as the motive for these murders his grievance with his aunt Mst. Husna for departing from her promise of giving him the hand of her daughter Mst. Maryam in marriage. He also admits that they had had a quarrel over land.

7. The prosecution have examined no less than six eye witnesses in this case, namely, Mst. Fatima P. W. 2, younger wife of deceased Misri, Mst. Dhayani P. ‑W. 3 elder wife of deceased Misri, Mst. Maryam P. W. 4 cousin of deceased Misri, complainant Allahwarayo brother‑in‑law of deceased Misri having married his sister deceased Mst. Siani, Achar P. W. 6 a nephew of the appellant and Jaro P. W. 7 a first cousin of the appellant. The evidence of these six eye‑witnesses is of a piece and to the same effect. They were all present that night when the appellant entered their village armed with his service rifle with which he started firing at deceased Misri and the members of his family. In addition to these eye‑witnesses we have also on record the corroborative evidence of the two brothers Mohd. Ali and Haji Yar Mohd. P. Ws. 8 and 9, who on hearing the shots came up from their neighbouring village and heard from complainant Allahwarayo and the other P. Ws. of what had happened in the courtyard of Misri. Haji Yar Mohd having a telephone at his house immediately telephoned the Shahdadpur Police Station. Next, we have the evidence of Juman Taxiwala P. W. 10 who brought the D. S. P. Akram Baig and his party to the scene from Shahdadpur and found the appellant on route returning to Shahdadpur on foot wearing his uniform and with his service rifle in his hands. The appellant was immediately arrested and his rifle and fifty rounds of bullets secured under mashirnama Exh.

19. Finally, there is .the Ballistic Expert's report Exh. 21 which establishes that the crime empties found from the scene of offence were fired from the service 303 rifle secured from the appellant at the time of his arrest. In view of all this evidence on record there can be no difficulty in arriving at the conclusion that the guilt of the appellant has fully been established in this case.

8. The only point urged on behalf of the appellant by Mr. M. Mustafa the learned defence advocate is that the appellant as would appear from his conduct had lost control of himself and, therefore, is deserving of mercy. But, the evidence shows that the appellant on deserting his guard duty at the National Bank Building had proceeded some seven miles to his village of Thahim to commit these murders. The appellant has stated in his judicial confession that he deserted his duty at 3‑00 a.m. and taking with himself .his service rifle and sixty‑five catridges he walked all the way to his village in order to kill Misri and his aunt Mst. Husna because he had a dispute with her. He states that this dispute was over her refusal to give him the hand of her daughter Mst. Maryam in marriage in return for his sister whom he had given to her son Bachal but, this, evidently, is not the truth because it is in evidence that in return for Mst. Arbab Khatoon sister of the appellant who was married to Mst. Kaim Khatoon sister of Mst. Maryam was given in marriage to Saleh, the younger brother of appellant. Besides, the appellant in his confession also adds that he had a quarrel over land and this would support the prosecution that he was piqued at his aunt Mst. Husna who had lived with him for six years and supported him with the produce of her field leaving his abode and going to live with deceased Misri. Thus, in our view no ca has been made out to show that the appellant was unde any severe provocation so that he had lost control of himself. Hi murder of Misri and Mst. Husna was deliberate and preplanned. We find no good reason for altering the sentence of death imposed upon the appellant. Accordingly, this appeal stands dismissed and the sentence of death confirmed. Appeal dismissed.