1970 PLP 432 (SCMR)

M. R. KHAN, J. The petitioners Ghulam Muhammad and Bakhshal along with Hassu and Ali Hassan were placed on trial for having committed the murder of Allah Rakhio. On conviction under section 302/34 of the Pakistan Penal Code, Ghulam Muhammad was sentenced to death and Bakhshal to transporta tion for life. Bakhshal was also convicted under section 13‑D of toe Arms Act and sentenced to rigorous imprisonment for two years. The co‑accused Hassu and Ali Hassan were given benefit of doubt and acquitted. On appeal and reference, a Division Bench of the High Court of West Pakistan, Karachi Bench, dismissed the appeal, confirmed the death sentence imposed on Ghulam Muhammad and maintained the sentences imposed on Bakhshal. The occurrence took place on the 2nd December 1967, after mid‑night. On that night, Allah Rakhio, deceased was sleeping in his own house, where his wife Mst. Jawai, his son Ilahi Bakhsh, his sister Sibiani and hey husband Muhammad Umar were also sleeping on separate cots within a short distance of a few paces. At about mid‑night, Muhammad Umar woke up on Bearing some sound and saw four persons of whom the two petitioners were standing near the cot of Allah Rakhio, armed with guns. A lamp was then burning at a distance of three or four aces from the cot of Allah Rakhio. On his challenge, the inmates of the house woke up. Allah Rakhio also raised his head to get sp from the cot when Ghulam Muhammad fired a shot from his gun which struck the face of the deceased. Bakhshal also fired one shot from his gun. The assailants ran away as the inmates of !he house raised alarm. On hearing the alarm, the neighbors 6hulam Hussain and Ali Nawaz hastened to the spot and saw the assailants leaving the deceased's house. When these two witnesses entered the house, they found Allah Rakhio already dead. They sere then told by the inmates of the house that the petitioners had killed Allah Rakhio by gun shots. The motive for the murder, according to the prosecution, was that Allah Rakhio's brother‑in‑law Murid was a witness in a murder case against the acquitted accused Ali Hassan. Allah Rakhio was asked to prevent Murid from giving evidence against Eli Hassan, but he refused to do so. Another piece of motive was Fiat the deceased Allah Rakhio had purchased some land from the father of the acquitted accused Hassu. Hassu wanted back at land, but Allah Rakhio refused. The medical evidence was that the deceased sustained one gun shot injury one inch in diameter on his right eye which caused the complete disappearance of the eye‑ball. The death, in the opinion of the doctor, was due to that injury. The convictions of the petitioners rested on the direct evidence < f four eye‑witnesses, namely, Muhammad Umar, Ilahi Bakhsh, Mst. Jawai and Mst. Sibiani all of whom were the inamates of the deceased's house. They unanimously stated that Ghulam Muhammad red a shot from his gun which hit the deceased. They also waited that Bakhshal also fired one shot. They were also unanimous that they succeeded in identifying the petitioners whom they had known from before, in the light of the lamp which was burning at the time of the incident. Their evidence was corroborated by the evidence of Ghulam Hussain and Ali Nawaz who had rushed to the scene of offence immediately after hearing the sound of gun shots. According to the medical evidence, blackening was there around the entry of the wound. This clearly indicates that the fire was shot from a very close range, as stated by all the eye‑witnesses. Semi‑digested food was found in the stomach of the deceased. This fits in with the time of the incident. Both the trial Court and the learned Judges of the High Court have believed the evidence of the eye‑witnesses and that of the two neighbors who had come to the spot immediately after hearing the sound of gun shots. The motive for the murder, in their opinion, was also proved. Learned counsel for the petitioners submits that the evidence of the eye‑witnesses does not deserve any credit inasmuch as only one gun shot injury was found on the person of the deceased, whereas the witnesses had stated that two gun shots were fired. This point was agitated before both the trial Court and the High Court. Notwithstanding the absence of a second gun shot injury, both the Courts below believed the evidence of the eye witnesses for which they gave reasons. According to them, the second shot might have missed the deceased or it might have struck the quilt which was spread over the body of Allah Rakhio, deceased at the time of the incident. The contention of the learned counsel that the evidence of the eye‑witnesses should not be given any credit because of the absence of a second gun shot injury, does not merit consideration as this relates to appreciation of the evidence. All the eye‑witnesses being the inmates of the house were the most natural witnesses. All of them were named in the F.I. R. which had been lodged without the least delay. Their evidence having been believed by both the Courts of fact interference is not called for. The petition is dismissed. Petition dismissed.