P L D 1959 (W (PLP)

WAHIDUDDIN AHMED, J.‑Appellant Haq Nawaz, his father Karimdad and his brother Rab Nawaz were put for trial before the learned Sessions Judge, Jacobabad under sections 302, 324, 323 read with section 34, P. P. C. and section 19‑E, Arms Act for the murder of deceased Bakhtawar and for causing injuries to Mst. Sabhai and Mst. Miran. The learned Sessions Judge acquit ted all the other persons and convicted the appellant Haq Nawaz under section 302, P. P. C. and section 19‑E of the Arms Act. The appellant has been sentenced to death under section 302, P. P. C. and to 12 months, rigorous imprisonment under section 19‑E of the Arms Act. This matter has come up before us by way of con firmation of the death sentence and also by way of appeal under section 410, Criminal P. C. The parties in this case also are very closely related to each other. Deceased Bakhtawar was first married to Raza Muhammad. who divorced her. The deceased then married appellant Haq Nawaz. The deceased lived with the appellant for about two months, but their relations were not cordial. Appellant due to disagreement left the deceased at the house of her brother P. W. Ramzan. The case of the prosecution is that after about two months, on the 26th of January 1958 at about 8 p.m., the appellant accom panied by four armed persons entered the house of P. W. Ramzan situated in Deh Akero, Taluka Kandhkot, District Jacobabad, and killed Mst. Bakhtawar. Appellant Haq Nawaz was armed with a gun and killed Mst. Bakhtawar by gunshots Karimdad accused since acquitted, is alleged to have given hatchet blows to deceased Mst. Bakhtawar. Rab Nawaz the other accused, since acquitted armed with a Lathi belaboured P.W. Ramzan in the said occurrence. The fourth unknown culprit gave Lathi blows to P.W. Miran. P. Ws. Ramzan, Sabhai and Miran, who were present in the house, raised cries which attracted P. Ws. Suleman and C. W. Ramzan on the scene of occurrence. P. W. Muhammad Ramzan (Exh. 7) then went to lodge the report at the police station. On the way he met Mr. Akhtar Muhammad, A. S.‑I. P., who told him that the matter had already been reported by appellant Haq Nawaz. The appellant was taken to the scene of occurrence by the A. S. I. P., who, after seeing the dead body on the scene, sent it on for post‑mortem examination. From the scene of occurrence four wads of cartridges and blood‑stained mat were secured. Exh. 19 is the Mashirnama of the scene of occurrence. The appellant immediately after the occurrence at about 9 p.m. lodged the F. I. R. (Exh. 25) at Kandhkot Police Station. At that time his clothes were found stained with blood, which were secured by the police. Exh. 17 is the Mashirnama of the clothes secured from his person. The remaining two accused Karimdad and Rab Nawaz were arrested on the 31st of January 1958 and the case was challaned in Court on the 10th of February 1958. The motive for the murder is alleged to be bad relations between the husband and wife resulting in a criminal complaint filed by the deceased against the appellant, his father and brother for assault. The appellant has denied the offence. He admitted having made the report (Exh. 25) before the police but denied that blood stained clothes were secured from his person. He also denied having murdered the deceased. According to him his relations with the prosecution witnesses are strained and they have falsely impli cated him over the dispute on "Sanga‑Bandi". The learned Sessions Judge acquitted the other accused on the ground that the statements of the eye‑witnesses are exaggerated in so far as they did not disclose the names of Karimdad and Rab Nawaz to P. W. 6 Suleman (Exh. 13) and C. W. Muhammad Ramzan (Exh. 15) who appeared on the scene of occurrence imme diately after the alleged murder. The learned Sessions Judge also found that the eye‑witnesses' statements that a hurricane lamp was burning in the house were not supported by the Mashirs and the A. S. I. P. The A. S. I. P. also found no injuries on the person of P. W. 2 Muhammad Ramzan, although this witness stated that he was given Lathi blows. The learned Sessions Judge, however, convicted the appellant relying on the evidence of eye‑witnesses Muhammad Ramzan son of Khuda Bux, Mst. Miran and Mst. Sabhai. He also relied for his conviction on the circumstan tial evidence that the appellant immediately after the occurrence lodged the F. I. R. at the police station, Kandhkot, and at that time his shirt and shalwar were found blood‑stained. The learned Sessions Judge also found that there is strong evidence of motive to show that the appellant has committed the murder of the deceased. Mr. Tufail Ali Abdul Rehman, the learned counsel for the appellant, has not challenged the finding of the learned Sessions Judge that deceased Bakhtawar was killed and murdered as alleged by the prosecution. The evidence on this question shows that the deceased received four injuries by gunshot, which included one entry wound and three exit wounds. She also received four incised injuries which appeared to have been caused by a sharp- cutting weapon such as a hatchet. According to the medical evi dence injury No. 1 caused by a gunshot could individually be responsible for the death of the deceased. There is no doubt on the evidence of P. W. Muhammad Samid Saud (Exh. 23‑B), the Medical Officer, and P. W. 8 Bahadur (Exh. 18), the Mashir, that deceased Bakhtawar died of the gunshot injuries and hatchet injuries inflicted on her person. The next question for determination in this case is whether the appellant was responsible for the murder of deceased Bakhtawar. P. W. 2 Muhammad Ramzan son of Khuda Bux (Exht. 7), P. W. 4 Mst. Miran (Exh. 10) and P. W. 5 Mst. Sabhai (Exh. 12) have deposed that deceased Bakhtawar was married to appellant Haq Nawaz after she was divorced by first husband Raza Muhammad. Trouble between appellant Haq Nawaz and deceased Bakhtawar started within two months of their marriage. The appellant left her at the house of P. W. 2 Muhammad Ramzan. Deceased Bakhtawar then filed a criminal case against the appellant his father Karimdad and his brothers. Rab Nawaz and Shah Nawaz for beating her in their own house. On the night of occurrence these witnesses were present in their house. P. W. 2 Muhammad Ramzan was reading a book in the room while deceased Bakhtawar, P. W. Sabhai and P. W. Miran were taking their meals. They saw appellant Haq Nawaz armed with a gun, his brother Rab Nawaz armed with a Lathi, his father Karimdad armed with a hatchet and another unknown persen armed with a Lathi suddenly appeared in their house. Appellant Haq Nawaz shouted at deceased Bakhtawar "You have taken bread for long now I will finish up your taking meal". He then fired a gunshot at deceased Bakhtawar, who fell down. Karimdad then gave hatchet blows to deceased Bakhtawar. P. W. Sabhai also received gunshot injuries on her legs. P. W. Miran raised cries and ran outside the door but was attacked by the fourth unknown person by a Lathi on her head. All the culprit then escaped carrying away their weapons. These statements are supported by the statements of P. W. Suleman and C. W. 1 Muhammad Ramzan who arrived at the scene of occurrence immediately thereafter. We have carefully examined the statements of P. Ws. Ramzan. Miran and Sabliai and there is no doubt that the crime was committed in their presence and that they were present on the scene of occurrence. The learned Sessions Judge was perfectly justified in not convicting the other accused on the evidence of these witnesses as they were not materially corroborated in respect of the part played by them, Their evidence, however, against appellant Haq Nawaz is corrobo rated by the fact that his name was disclosed to P. W. Sideman and C. W. 1 Muhammad Ramzan, Their statements are also corrobo rated by the fact that the appellant immediately after the occurrence reported the matter to the police. The First information Report (Exh 25) was lodged at his instance at Police Station Kandhkot and blood‑stained clothes were found on his, person which were secured at the time of his arrest by the police. The fact that these clothes were secured at the time of his arrest immediately after he lodged the report (Exh, 25) is proved by the statement of P. W. 7 Bahar (Exh. 16), an independent witness, and the Mashirnama (Exh. 17) about the securing of the blood‑stained clothes from the person of appellant Haq Nawaz. The Mashirnama (Exh. 19) further shows that the deceased was attacked by gunshot and that three wads of cartridges were recover from the scene of occurrence. Mr. Tufail Ali Abdul. Rehman, the earned counsel for the appellant, has however urged that the prosecution story should not be accepted as the eye‑witnesses of the occurrence are admittedly interested persons and on the facts proved on the record could not see the murder of deceased Mst. Bakhtawar. He contended that the incident took place at about 8 p.m. when the prosecution. witnesses and the deceased were taking their meals, but this fact is belied not only from Mashirnurna (Exh. 19), which disclosed that no meal utensils were found on the scene of occurrence but also by the medical evidence, which shows that the stomach of the deceased was empty and did not contain any food. The learned counsel further argued that the murder did not take place in the house of P. W. 2 Muhammad Ramzan but somewhere outside the house, In support of this contention the learned counsel drew our attention to the statement of P. W, Muhammad Samid Saud, Medical Officer, which shows that the deceased was shot at by a gun from a distance of about 100 to 120 feet The learned counsel argued that the width of the room, the place of murder, being only 30 feet x 15 feet, the gunshot could not have been fired inside the room but some where outside. According to him the absence of char marks on the gunshot wound found on the dead body of the deceased also supports the defence theory that the murder did not take place inside the room. In the alternative the learned counsel contended that the appellant cannot be held guilty under section 302, P. P. C. but only under section 304, P. P. C. as the possibility that appellant Haq Nawaz murdered the deceased on seeing her in a compromis ing position with Sarmast under provocation cannot be ruled out. For this purpose he relied on (Exh. 25), F. I. R. lodged by the appellant which, according to him, is the first hand information of the circumstances under which the deceased was murdered. There is no doubt that the statements of the prosecution wit nesses Muhammad Ramzan, Mst. Sabhai and Mst. Miran are in some respects exaggerated. The learned Judge has also not relied upon their statements for the conviction of the other two accused namely, Karimdad and Rab Nawaz in the absence of any corrobo rative evidence. But this by itself cannot lead to the conclusion that these witnesses were not present on the scene of occurrence and did not witness the murder of deceased Bakhtawar. So far as the presence of P. W. Mst. Sabhai on the scene of occurrence is concerned, it cannot be doubted. The medical evidence shows that she also received a gunshot injury on her leg. She has named the appellant as one of the assailants and stated in clear terms that the appellant fired shots at Mst. Bakhtawar with the gun and she also received injuries from the said shots. The presence of the other two prosecution witnesses Muhammad Ramzan and Miran also on the scene of occurrence cannot be doubted because they are admit tedly the occupants of the house where the alleged occurrence is alleged to have taken place. The time of occurrence is 8 p.m. and unless the contrary is proved, there is no reason to disbelieve their statements that they were, present in their house. The learned counsel's contention that the murder could not take place inside the room is based on the evidence of P. W. Muhammad Samid Saud, the Medical Officer. This witness stated as under :‑ "Injuries Nos. 1 to 4 appeared to have been caused by the discharge of the firearm and the remaining by some sharp‑cutting (instrument) such as a hatchet. The distance of the firing of the gun or any such weapon will be between 100 to 120 feet. There was no charring present." This evidence no doubt shows that the firing took place from a distance of 100 to 120 feet, and on this statement the incident could not have taken place in the house of P. W. 2 Muhammad Ramzan. But in our, opinion, the statement of the Medical Officer on this point is not conclusive. The injuries on the person of the deceased from gunshots are four in number. Injury No. 1 is an entry wound 1 " in diameter on the left upper side chest. Injuries Nos: 2, 3 and 4 are exit wounds 1" in diameter on the back right side of chest, " x " on the back chest above injury No.2 and " x " just parallel to injury No. 3 on its left side respectively. This shows that the gun was fired at the deceased not from a distance of 100 or 120 feet but from a distance of not more than four yards. These injuries could easily be caused even from a distance of four yards. Mr. Junejo, the learned counsel for the State, has invited our attention to the observation of Dr. Sydney Smith in Volume I of Taylor's Principles and Practice of Medical Jurisprudence at page

441. According to this observation the shot begins to disperse in any ordinary cylindrical barrel at about three yards, at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shots around it. The dispersion gradually increases, and at about five yards an open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches and so on. With fully choked barrels the dispersion is about half the above. The learned commentator has further stated "It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shotgun, or at more than half a yard with a revolver". Modi also in his book on Medical Jurisprudence and Toxicology at page 218 has observed: "If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder." A little further he observed: "No blackening or scorching is found, if the firearm is discharged from a distance of more than four feet". It is thus abundantly clear that the theory put forward by the learned counsel for the appellant is not in the least supported by the views of the commentators on the treatise of medical jurisprudence. The statement of the doctor, therefore, that the firearm was used from a distance of 100 or 120 feet cannot be accepted for disbelieving the prosecution witnesses that the deceased was murdered inside the room of P. W. Ramzan. No significance can be attached to the contention of the learned counsel for the appellant that no food was found in the stomach of the deceased at the time of the post‑mortem examina tion. The report of post‑mortem examination of the deceased on this point is silent. The column against stomach shows that it was normal. There is nothing on the record to show on what basis P. W. Muhammad Samid Saud, Medical Officer, has noted in the report that the murder took place six hours after taking the last meal. The appellant appeared on the scene when the female inmates just started taking the meals. The possibility of the deceased actually not taking any meals on hearing the voice of her husband cannot be ruled out. We are not inclined to give much significance to this point in the presence of other circumstances in this case. Lastly, it was urged by the learned counsel for the appellant that (Exh. 25) throws light on the circumstances under which the deceased was killed, The learned counsel referred us to section 25 of the Evidence Act and contended that under this provision of law, although the first information report in the nature of confes sion cannot be used against an accused person, but there is no bar for an accused person to use it in support of his defence even if it is in the nature of confession. In our opinion the point raised before us is not very material for the decision of this case because even if we use the contents of Exh. 25 to find out whether there are any extenuating circumstances in favour of the appellant, the appellant cannot derive any help from it. There is overwhelming evidence in the record to show that the contents of this document are in material details false. The appellant totally denied the commission of the offence at the trial. He did not take any plea of grave and sudden provocation or any provocation whatsoever. In our opinion it will serve no useful purpose to consider the F. I. R. lodged at the instance of the appellant for finding out whether there‑are any extenuating circumstances in his favour or whether the offence falls within the purview of section 304, P. P. C. After careful consideration of the matter we are clearly of the opinion that there is not only the evidence of the eye witnesses to the effect that the appellant killed the deceased but there is other reliable corroborative evidence to show that the appellant participated in the crime. As already observed there is sufficient material on the record to corroborate that the appellant participated in the crime. P. W. Suleman and C. W. 1 Muhammad Ramzan have clearly stated in Court that immediately on their arrival on the scene of occurrence all the prosecution eye‑witnesses informed them that the appellant had killed the deceased. Appellant's participation in the crime is further corroborated by the fact that at the time when he went to lodge the first informa tion report at the police station Kandhkot, his clothes were blood‑stained. These clothes were secured from his person in the presence of independent Mashirs. They were sent to the Chemical Analyser and the report of the Chemical Analyser shows that the blood‑stained spots on his clothes are those of human blood. In these circumstances we are satisfied that the appellant is respon sible for the murder of the deceased and the case against him has been proved beyond any reasonable doubt. For the reasons given above we dismiss the appeal and confirm the sentence of death awarded to the appellant by the learned Sessions Judge. A. H. Appeal dismissed.