P L D 1965 (W (PLP)

S. A. MAHMOOD, J.‑

This appeal is by Kak alias Abdul Razzak, who has been sentenced to death for committing the murder of Ghulam Mustafa by firing at him with a gun at about 4 a. m. on the 19th of July 1962, at village Bhitshah. The case is also before us for confirmation of the death sentence. The appeal and the reference will be disposed of by this judgment.

2. The appellant Kak is a first cousin of Toot (P. W. 7), whose wife is the sister of Ghulam Mustafa deceased. Kak appel lant had demanded the hand of Mst. Maryam, daughter of Toot P. W., but he had refused, and this had annoyed him. He had, therefore, threatened to kill him. Ghulam Mustafa deceased had told him that he could not do any harm to Toot so long as he was with them. Toot was, however, frightened by the threat of the appellant and he migrated to Village Jam Nawaz Ali, in the District of Sanghar, along with his family, about nine months before the occurrence.

3. On the 18th of July 1962, Ghulam Ali (P. W. 3), Sain Dino (P. W. 4), Araz Muhammad (P. W. 5) and Ghulam Mustafa deceased went to see the fair at Bhitshah in connection with the anniversary of Shah Bhitai. They also came across Allah Bakhsh in that fair, and he joined them. At night, they went to see a circus show in the fair and remained there till about 2 a, m, After seeing the circus show, they went to the quarter of Sodho (P. W. 6) in order to sleep there during the remaining portion of the night. Sodho P. W. provided them with two cots. Ghulam Mustafa deceased slept on one cot and Allah Bakhsh on the other. The remaining three, namely, Ghulam Ali, Sain Dino and Araz Muhammad, slept on the ground. It was a moonlit night, being the 16th of the lunar month. At about 4 a.m., they were awakened by the report of. a gunshot and saw two persons standing by the side of the cot of the deceased. Of them, Kak appellant was armed with a gun. and his companion, who was unknown to them, was holding a danda. Ghulam Ali and Araz Muhammad P. Ws. identified Kak appellant. He is in fact related to them also, but Sain Dino did not know him before. Kak appellant threatened them to keep quiet, or other wise he would kill them also. Sain Dino P. W., however, took up courage and caught hold of Kak appellant, on which his companion gave him a danda blow on his arm. The appellant also struck him on the head with the butt‑end of his gun. Thereafter, the appellant and his companion ran away. Ghulam Mustafa died soon after. The appellant, while fleeing away from the spot, fired three shots in the air from his gun. Many other persons, including Sodho (P. W. 6), came to the spot and were informed of how the appellant had fired at the deceased and he and his companion had injured Sain Dino P. W. with the butt‑end of the gun and a danda. Leaving the body of Ghulam Mustafa deceased on the spot Ghulam Ali and Sain Dino P. Ws. went to Police Outpost, Bhitshah, and made report Exh. 8, which was recorded at 6 a. m. by Dodo Khan, S. H. O. of Police Station Hala (P. W. 9), who happened to be encamp ing at the outpost on account of the fair, the outpost being within the jurisdiction of Police Station Hala. The Sub‑Inspector prepared the injury statement of Sain Dino and sent him to the Medical Officer, Hala, for examination after recording his statement. The S. H. O. then went to the spot. He found the body of the deceased lying on a cot and a pool of blood under the cot. He prepared the mashirnama Exh.

20. Having prepared the inquest report Exh. 21, he sent the body to the Civil Hospital, Hyderabad, for post‑mortem examination. He secured blood stained earth from the spot. He also recorded the statements of Araz Muhammad and Sodho P. Ws. and others. The appellant had already been declared an absconder in other cases. In spite of his best efforts the S. H. O. could not effect his arrest. Information of his arrest was received by the Committing Magistrate, and on being sent for was placed on trial.

4. On the 19th of July 1962, Dr. Ausaf Husain P. W. performed the post‑mortem examination on the body of Ghulam Mustafa deceased at 5‑30 p.m. and found the following injury on the body:‑-- "A gunshot wound, 1" circular, with inverted margins and charred skin. There was ecchymosis around the wound at the sixth rib mid‑clavicular line, on the left chest. The sixth rib was fractured. The wound was found, on probe, to be chest deep. The fifth rib was also fractured on the right side in the mid‑axillary line. Pellets were also felt under the skin at the Site of the injury." On internal examination, the fifth and sixth ribs were found fractured at the mid‑clavicular and mid‑axillary lines on the right side of the chest. The pleura was ruptured on both sides. There was blood in the larynx and trachea. The right lung had collapsed having been injured with a bullet. The left lung had also collapsed. The heart and its coverings were shattered into pieces. The diaphragm was punctured with pellets. The liver was also shattered into pieces. The spleen was ruptured. This internal damage was the result of injury No. 1, which was ante‑mortem. The injury was caused with gunshot, and was sufficient, in the ordinary course of nature, to cause death. Death was the result of shock and haemorrhage due to the gunshot injury. In the opinion of the doctor the shot appeared to have been fired from close range, i.e. from a distance of 3 or 4 feet.

5. Dr. Ausaf Husain also examined Sain Dino P. W. on the same day, and found the following injuries on his person:‑-- (1) A lacerated wound, 3/4'' x 1/4'' x scalp deep, on the left parietal area, above the ear. (2) A contusion, 2'' x 1'', on the posterior side of the left forearm at the middle. The injuries were caused by blunt weapon, such as lathi, or butt end of a gun. The injuries were simple in nature and were about 8 or 12 hours' old.

6. Kak appellant pleaded that he was innocent, and the case against him was false. He added that since Ghulam Mustafa deceased was related to him, he could not have committed his murder. According to him the witnesses were deposing against him because they were under the influence of Jiandal Shah, who had enmity with him. No evidence was produced in defence.

7. Ghulam Ali (P. W. 3), Sain Dino (P. W. 4) and Araz Muhammad (P. W. 5) are eye‑witnesses of the occurrence. They have fully supported the prosecution story. Ghulam Ali and Araz Muhammad knew the appellant and had identified him. Sain Dino P. W. did not know him before, nor was the appellant put up in any identification parade for his identification. His evidence is not, therefore, of much value with regard to the identity of the appellant. His identity is established by the evidence of the other two eye‑witnesses. The appellant is maternal uncle of Ghulam Ali P. W., and since Araz Muhammad P. W. is his cousin, he is also related to the appellant. Therefore, they could have had no difficulty in identifying him. It was undoubtedly a moonlit night and identification was quite easy and possible. All the three eye‑witnesses are, of course, related to the deceased, who was a cousin of Ghulam Ali. Sain Dino was married to a uterine sister of the deceased.

8. Two questions arise for consideration: Firstly, whether the three eye‑witnesses were accompanying the deceased, and, secondly, whether, on hearing the report of the gun, they were able to see the man who had fired, or he was able to flee after firing at the deceased and he could not be noticed and identified. We have no doubt that the three eye witnesses were accompanying the deceased. Ghulam Ali and Araz Muhammad P. Ws. belong to Taluka Sehwan while Sain Dino was at the moment residing at Village Jam Nawaz Ali, Taluka Sinjhoro. They say that they had gone to Bhitshah in connection with the fair in the company of Ghulam Mustafa deceased. Their presence is proved by the evidence of Sodho (P. W. 6), who belongs to Bhitshah. He stated that the deceased and the three eye‑witnesses stayed with him as his guests. Sain Dino accompanied Ghulam Ali to Police Outpost Bhitshah, where Ghulam Ali P. W. made report Exh. 1‑A at 6 a. m., which would not have happened if they had not accompanied the deceased.

9. With regard to the second question, there is no doubt that the culprit did not fire and run away without being observed. In the first instance, the gunshot injury caused to the deceased in the abdomen of the deceased is 1" in diameter with charring, which shows that the pellets had not spread. The three eye‑witnesses were sleeping close to the deceased and were bound to have been awakened by the report of the gunshot. Consequently, they would have seen the man who fired and could have no difficulty in recognizing him. It is also quite clear that the miscreants were two in number, and did not run away immediately after the shot was fired. Sain Dino P. W. received injuries. One of these injuries was given to him with a danda by the companion of the appellant on the arm, and the other, on the head, was inflicted to him by the butt‑end of the gun by the appellant. These two injuries are enough proof of the fact that the culprits clashed with Sain Dino P. W., and as the other two witnesses must have been awakened by the report of the gunshot, they could have recognised the appellant. There is, therefore, no possibility in this case of the appellant having fired and made good his escape without being observed. It is also established beyond doubt that the miscreants were two in number. The injury on the arm of Sain Dino P. W. is a typical danda injury, and the other one is by the butt‑end of a gun. We are, therefore, satisfied that the eye‑witnesses have stated the whole truth in Court, and there is no reason to suspect their evidence.

10. The learned counsel for the appellant argued, firstly, that there was .delay in making the F. I. R. since the Police Outpost is only half a mile from the spot and as the occurrence had taken place at 4 a. m., the report could have been lodged earlier. But, there is no reason to doubt the fact that the appellant was named not out of suspicion and as a result of consultation, but because he had actually been observed by the witnesses. Since the appellant was, and must have been, observed, there is no possibility of substitution of the actual culprits by the appellant. There is no real reason why he should have been so accused of the crime. The learned counsel for the appellant argued that there is ample cause for it, because Ayub, a relation of Ghulam Ali (P. W. 3), had been injured by the appellant about nine months before the occurrence, as a result of which he had lost the balance of his mind and the accused had become an absconder ; but since the appellant had been prosecuted for the offence, there was no impelling ground for his false implication in this case. It has also been brought out that the appellant was involved in a case of robbery of bullocks, but it has no bearing on this case. It was also attempted to be shown, though unsuccessfully, that a dispute existed between Toot and the appellant over some property and the appellant had been falsely implicated, but beyond the fact that there was enmity between the appellant and Ayub, nothing has been shown which would have led Ghulam Ali P. W. to sub stitute the appellant for the actual culprit. As we feel reason ably certain that the culprits were seen by the eye‑witnesses, we must rule out the question of substitution. We do not find any substance in the contention of the learned counsel for the appellant that the appellant has been falsely named.

11. The learned counsel for the appellant also argued that the appellant had no motive to cause the death of the deceased. The prosecution alleges that the appellant had threatened to kill Toot P. W. because he had refused to give the hand of his daughter in marriage to the appellant. This afforded a direct motive against Toot, but he had left the village. The prosecution case is that the deceased had sided with Toot and had warned the appellant against doing any harm to him. It is argued for the prosecution that it may be for this reason that the appellant took the life of the deceased. The motive is not strong, but if the prosecution evidence is clear, the weakness of the motive does not destroy the value of the evidence. Indeed, the pro secution need not establish a motive, which must necessarily be in the mind of the appellant.

12. Learned counsel for the appellant further argued that the trial Court should not have refused the request made on behalf of the appellant to examine Allah Bakhsh as a Court witness. He was cited as a prosecution witness and was examined as a witness in the Committing Court, but was given up by the A. P. P. on the ground that he had been won over. The Court refused the request because it thought it was not "feasible that a witness of this type should be examined by the Court as a Court witness" He, however, gave an opportunity to the learned counsel for the defence to examine him in his defence. In the circumstances, no illegality is made out. As one of the prosecution witnesses has not appeared in support of the prosecution, the presumption is that if he had appeared, he would have gone against the prosecution. All the same, we are left with no doubt about the guilt of the appellant on the evidence of Ghulam Ali, Sain Dino and Araz Muhammad P. Ws. In our view, their evidence does not require any corro boration. Although they are related to the deceased. Ghulam Ali and Araz Muhammad are also related to the appellant. No advantage can, however, be taken by the prosecution of the abscondence of the appellant as he was already absconding in connection with the case of assault on Ayub.

13. Learned counsel for the appellant argued that it was possible that thieves, in attempting to steal buffaloes which were tied at the place of the occurrence, had fired at the deceased when he had tried to intervene, and that since the eye‑witnesses had not been able to identify the culprits, the appellant had been named instead out of enmity or suspicion. Sam Dino P. W. admitted that five or six buffaloes were tethered near the cots, but he denied that anyone of them had been untethered when they woke up on hearing the report of the gunshot. We find no substance in this theory because if this was the cause of murder, the appellant and another person would not have been mentioned as the culprits. The eye witnesses have been honest enough to mention that there were only two culprits, one of them not known to them, and it is established that one of them was armed with a gun and the other with a stick.

14. The appellant stated in his statement that the witnesses had deposed against him under the influence of Randal Shah, but it has not been brought out how he is inimical to him and how the witnesses are subservient to him and would be inclined to oblige him. This is not a case of false implication of the appellant at all.

15. For the reasons given above, believing the evidence of the eye‑witnesses and upholding the conviction of the appellant under section 302 of the P. P. C., we confirm the sentence of death imposed upon him, for there are no mitigating circumstances, and dismiss his appeal. K. E.A. Appeal dismissed.